CJorttf U ICam ^rlyoiil 2Ithrary Cornell University Library KF 8870.A72 1904 V.1 Brief upon the pleadings in civil action 3 1924 020 182 915 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 9240201 8291 5 BRIEF Pleadings in Civil Actions AT LAW, IN EQUITY, AND UNDER TUE mW PHUCEDUKE. BY AUSTIIT ABBOTT, OF THE NEV The pleadings now more frequently than ever before determine the fate of the cause. Technicalities hare lost importance; and the just principle of fair notice to counsel and court has trained control, and calls for free reasoning in view of the results of forensic and judicial experience. SECOND AND ENLARGED EDITION BY TUB PUBLISHERS' EDITORIAL STAFF. IN TWO VOLUMES TOL. I. THE LAWYERS' COOPERATIVE PUBLISHING COMPANY, ROCHESTER, N. Y. 1904. -A ^ *^— Eutered according to Act of Congress in the year eighteen hundred ninety-ouo By Austin Abbott, In the Ollicc of the Librarian of Congress, at Washington. Entered according to Act of Congress in the year nineteen hundred four By LnOY Abbott Martin, In the Office of the Librarian of Congress, at Washington. PREFACE TO THE FIRST EDITIOISr. This volume is the first in plan and place, though not the first in publication, 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 pro- fessional 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 xiiminishes 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 lesort. I have great satisfaction in the indications I have received that this effort to elucidate the most frequently contested technical questions has aided coimsel 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-^uia., the sufficiency of the allegations to constitute a cause of action or defense, 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 gogs to trial thereby accepts a merely un- certain pleading in the sense most favofSible 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 repetition 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 discrimin- ation 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 experience 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 oonten- tion at the trial; and, after judgment, a record of justice done which 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 u, fit question for litigation ? and, Do the 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, but leave open the questions whether the pleadings present a. question within the jurisdiction of this court, and are all indispensable parties before tlie 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 sucli modification of this aspect of the case as is required by the practical construction 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 plead- ings, 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, fre- quently obscures the lines which strict adherence to the pleadings might have pre- served; and when the time for submission of the cause arrives, the question whether each party gave his adversary fair notice of the question which thSy have actually tried has gone by, for each has taken his part in trying 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 proceedings treated by another division. As in the previous volumes of this series, I have not sought to state all the eases, nor all the peculiarities of local statutory rules. My aim has been, look- ing 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* selec- tion of authoriti(!s from all jurisdictions, and to guard them with a sufficient 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 characteristic provisions of the st.at- utes 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 unless clear than 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 York, May, 1891. PREFACE TO THE SECOND EDITION". , This new edition of Abbott's Brief on the Pleadings, by reason of the very great increase in tlie authorities cited and of the new matters included, has grown to two volumes, each of which contains much more than the entire work contained originally. In the main the work of Mr. Abbott has been taken to represent suf- ficiently the law of the subject down to the time that he prepared his work, and the revision consists chiefly of bringing the subject down to date in the light of the great number of later decisions on the subject. In many instances, however,, the earlier authorities on specific points have been examined to develop those matters more fully than Mr. Abbott had done. Many additional sections cover- ing points not treated in the first edition have also been included. One large new chapter also — that upon Amendments of Pleadings — ^lias been added. Much of the work has been done by Mr. Asa W. RusseJl, and all that he did not person- ally do has been done under his direction and careful supervision. KocHESTEB, N. Y., Mabch, 1904. TABLE OF CONTENTS. TOLUMES I. AND II. , — FORM, SUFFICIENCY, AND PRACTICE ON DEMXfRRER IN GENERAL. page. 1. Statutory grounds exclusive . . 2 2. Precise language of statute not essential 3 3. — intelligible indication enough 4 4. Omission to assign the right ground 4 6. Wrong specification under right ground 5 6. General and special demurrers 5 7. Stipulation cannot avoid stat- ute 11 8. Several specifications, part only being good 11 9. Inconsistent objections 12 Speaking demurrer 12 Objections on face of pleading alone noticed 14 — facts appearing by the proc- ess 18 Facts necessarily implied by the existence of the plead- ings 20 Joint demurrer 20 Verification not required. Cer- tificate. Affidavit 21 Informality disregarded 22 Exceptions 22 Oral or written; ore tenus. ... 23 Frivolous demurrer 24 Demurrer in answer 25 Demurrer; what will be treat- ed as 26 Time to demur 27 Filing demurrer 28 Notice of hearing; hearing; waiver 28 Withdrawal or abandonment of demurrer 29 10. 11, 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. page. 3. Demurrer deemed addressed to amended pleadings 32 4. Decision on original 33 3. One count or defense not aided by another 33 6. General allegation applicable to all of several divisions . . 36 7. Demurrer to whole of plead- ing 36 8. Demurrer to part of pleading 40 9. Effect of answering upon de- murrer 41 10. Amending 43 III.— WHAT LAW GOVERNS IN THE UNITED STATES COURTS. 1. State practice in United States courts — general rule 45 2. — "as near as may be" 48 3. Statutory action given by com- mon-law name 48 4. Use and form of demurrer 49 5. Time of hearing 50 IV.— WHAT KIND OF ALLEGATIONS ARE ADMITTED BY DEMUR- RERS. 1. Facts well pleaded; new mat- ter ; filing 51 2. Immaterial allegation 55 3. Inconsistent allegations; ex- hibits 55 4. Conclusions of fact which the details do not sustain 56 5. Fact not allegea 57 6. Fact judicially noticed 59 7. Prediction 59 8. Impossible fact 60 9. Damages 60 10. Conclusions of law 61 11. Construction of writing, stat- ute, or pleading 65 II.— RULES TURNING ON WHAT V.- ARE THE PLEADINGS DE- MURRED TO. 1. The copy served controls 31 2. Original not considered after amendment 31 ■GENERAL RULES (APPLICA- BLE ON DEMURRER) AS TO THE INTERPRETATION OF AL- LEGATIONS. 1. Liberal construction of plead- ings 66 BKXEi'' ON PI-EADINGS. page. 2. Nature or theoTy of action ... 74 3. Common usages of speech .... 81 4. The whole of what is demurred to, considered 82 5. Inconsistency 83 6. Alternative or equivocal alle- gation 85 7. Description as an allegation . . 88 8. Clerical error 90 9. Grammatical ambiguity 93 10. Fact necessarily implied 94 11. Fact not necessarily implied.. 100 12. Fact presumed by law from what is alleged 103 13. Presumption of continuance of fact 100 14. Legal iiction 107 15. Matters judicially noticed . . . 107 VI.- 10. 11. 12. 13. -GENERAL RULES, APPLICA- BLE ON DEMURRER, AS TO THE FRAME AND SUFFI- CIENCY OF ALLEGATIONS. Directness of allegation 109 — technical words not neces- sary 112 — information and belief .... 113 — recital, "whereas" 116 — videlicet 118 Objection to mode of state- ment, not available 118 Generality 118 General, limited by specific, allegations 127 General averment of negative. 131 Indefinitcness and uncertainty 132 — sometimes fatal 134 Omission of formal allegation required by rule of court.. 13.5 Mixed question of law and fact 137 VII.— DEMURRER FOR INSUFFI- CIENCY. I. Form of Assigning Gbodnd. 1. Sufficiency of the pleading must be tested by demurrer 141 2. Right to raise any objection to cause of action 142 3. Equivalent to want of equity. . 144 4. Specification of defect 144 n. Objections Relating to Pasties. 5. Who may demur 146 6. Want of capacity to sue 146 7. Not the proper plaintiff 149 8. — state practice in United States Court 151 9. Defect of parties plaintiff. . . . 152 10. Improper joinder — of plaintiffs 153 11. application of the rule to husband and wife 155 page. 12. form of assigning ground 156 13. — of defendants; insufiieieney, as against one demurring. . 157 14. insufficiency, as against codefendant not demurring 157 15. Defect of parties defendant. . . 158 III. Objectioks Involving the Form OP the Pleading Demurred to, 16. Form of pleading 159 17. Fact common to several causes of action or defenses 160 18. Duplicity 162 19. Demurrer, without discrimina- tion, to commingled state- ment 163 20. — with discrimination 164 21. Separate statement and num- bering of causes of action or defenses 164 22. Improper division of single cause of action or defense. 166 23. Separate counts for same re- covery 167 24. Separate counts presumed to refer to separate transac- tions 168 25. Verification lacking 108 26. Verification — necessity 170 27. Who may verify pleading.... 171 28. Verification; sufficiency. ... 176 IV. Objections Touching the Nature or Substance of the Cause of Action ob Relief. a. Nature of Claim. 29. Theory of case need not be stated 179 30. General rule for sustaining complaint against demurrer 181 31. Informal pleading , . 184 32. Statutory change of burden of proof 188 33. Penal actions 188 34. Actions without precedent ... 190 35. Allegations stating insufficient grounds with other and suf- ficient grounds 191 36. Allegations involving mistake as to the law 192 37. Immaterial allegations not re- garded 193 38. Various grounds for same re- covery 195 39. Alternative grounds 196 40. Alternative version and relief not demurrable 199 41. — by trustee of a special trust 201 b. Legal or Equiiahle Cause. 42. Jurisdiction 201 TABLE OF CONTENTS. 45. 46. 47. page. 43. Equitable title 203 44. Action for money or chattel . . 203 c. Accounting. Mutual accounts 204 Existence of fiduciary relation, or necessity for discovery. . 206 — remedy at law 211 48. Royalty contracts 212 49. Facts showing groimds for equitable cognizance to be specially alleged 213 d. No Adequate Remedy at Law. 50. Form of demurrer; how objec- tion may be raised 214 51. Showing want of adequate remedy 215 52. — in case of several grounds of relief 220 53. Assignee 220 54. What is a "remedy at law" . . 220 55. Statutory remedy in equity.. 221 56. What is a "plain, adequate, and complete" remedy .... 57. "Jurisdiction clause" directly alleging want of remedy . . . 58. Estoppel against this objec- tion 222 224 225 e. Contract or Tort. 59. Uncertainty as ground of de- murrer 226 f. Demurrer to Relief. CO. General rule 228 61. Relief against demurrant.... 232 62. — against codefendant 232 63. Alternative relief 233 V. Objection that the Action is Pee- MATUEE, OR THAT A DEFENSE IS DIS- CLOSED; Anticipation op Defense. 64. Prematurity not presumed .... 234 65. Violation of positive prohibi- tion 237 66. Enough that any relief is due at time of argument 238 67. Disclosure of defense 239 68. — with avoidance 239 69. Anticipation of defense 240 VI. Pabticular Sitbjects op Allega- tion (ALPHABETICAI.LY Arranged). Abbreviations. 70. General rule 244 .•Ability. 71. Ability io perform an act . . . 245 I page. Acceptance. 72. Acceptance of bill or contract 245 Accident. 73. Sufficiency of averments 246 Accord and Satisfaction. 74. Sufficiency of averments .... 247 Account. 75. General form of pleading in- debtedness on account 247 76. "Justly due" 249 77. Account or particulars coupled with pleading 249 78. Sufficiency of defenses 252 Account Stated. 79. Sufficiency of averments 252 Adverse Claim. 80. Formal allegation not essential 253 81. Insufficient if facts alleged show validity 254 82. Sufficiency of averments 255 Adverse Possession. 83. Sufficiency of averments 256 Agency. 84. Agency an allegation of fact. . 257 85. Act by agent alleged as that of principal 259 Alteration of Instruments. 86. Sufficiency of averments 261 Alternative Charges. 87. Embarrassing ambiguity 261 Amount. 88. Evasive or argumentative alle- gation 262 Appearance. 89. An issuable allegation 264 Approval. 90. When implied 265 Arbitration. 91. Sufficiency of averments 265 Assault. 92. Sufficiency of allegations .... 266 Assessments. 93. Sufficiency of averments 267 Assignment. 94. Mode 270 95. Necessity of averment 271 ix BEIEF ON PI.EAPINGS. page. 96. Sufficiency of averment 272 97. Consideration 273 98. Time 273 99. Leave 273 100. Principal and accessory obliga- tion 274 Attachment. 101. Variance 274 102. Sufficiency of averments 275 103. Wrongful or malicious attach- ment 275 Attorneys. 104. Disbarment 276 Attorneys' Fees. 105. Demand for, not demurrable . . 276 Audit. 106. Audit, demand, presentation, or notice, etc., required by statute must be alleged . . . 277 107. Time of presentation 279 Authokitt. 108. Statutory authority 280 109. Relation of husband and wife 280 110. Necessity of averring author- ity 280 111. Sufficiency of averment 282 112. Revocation 282 Benefit. 113. Telegram sent for plaintiflF's benefit 282 Bn-r, OF Particulars. 114. Not considered on demurrer.. 283 Bill of Review. 115. Necessary averments 285 Bona Fide Purchaser. 116. Conclusion of law 285 117. Sufficiency of averments 285 Bonds. a. Appeal Bonds. 118. What need be alleged 287 119. Sufficiency of allegations 288 b. Attachment Bonds. 120. Sufficiency of averments 289 0. Bail Bonds. 121. Sufficiency of averments 290 d. Executor's Bonds, 122. Sufficiency on demurrer 291 X page. e, Injunction Bonds. 123. What need be alleged 291 f. Liquor Dealer's Bonds. 124. What need be alleged 292 g. Municipal Bonds. 125. Sufficiency of allegations 293 h. Official Bonds. 126. Sheriff's bond 294 127. Treasurer's or collector's bond 295 128. Corporate officers 296 129. Replevin bonds 296 130. Supersedeas bond 297 Boundaries. 131. Sufficiency of averment 297 Bribery. 132. Sufficiency of averments 297 Bridges. 133. Sufficiency of averments 298 Brokers. 134. Sufficiency of allegations 299 By-Laws. 135. Mu,st be pleaded 299 Carriers. 136. Common carrier 300 137. Passengers, — injury or damage to 300 138. Transportation of property. . . 303 Cause and Effect. 139. Relation between wrong and injury must be shown 30-1 Checks. 140. What need be alleged 305 Claims. Cloud on Title. 141. What need be averred 306 Collusion. 142. Must be specially stated 307 Compulsion. 143. General allegation 308 Concealment. 144. Effect of allegation 308 CONI'KDERACT. 145. Tort committed through agent or confederate 310 TABLE OF CONTENTS. page. Consent. 146. General allegation 310 147. Necessity or sufficiency of aver- ment 310 Conspiracy. 148. Damage necessary 311 149. Facts should be stated 313 150. Conspiracy to slander 313 151. Sufficiency of allegations 314 CONTEACTS. a. The Making of the Contract. 152. Implied contract, — facts rais- ing implied promise 316 153. Express contract, — technical words not necessary 318 154. — mutuality 320 155. — execution and delivery .... 320 156. — seal 323 157. — statute of frauds, where contract appears to be oral. 325 158. where contract does not appear to be oral 327 159. — agency in making 329 160. contract not purporting to be that of the party 329 161. appearing on the face of the contract 330 b. Terms. 162. Legal effect 163. Term omitted, implied by law. c. Consideration. 164. Necessity of alleging 165. Formal words not necessary.. 166. Executed consideration 167. Unconscionable consideration . 168. General allegation 169. Sufficiency of allegations d. Extrinsic Facts. 170. Oral, to vary wTiting 171. Usage or custom to aid e. Performance of conditions. 172. Performance by plaintiff 173. — exception or proviso 174. Conditions not alleged 175. Form of allegation at common law 176. Statutes sanctioning general allegation that he duly per- formed 177. What are "conditions," within the statute 178. Form of allegation under the statute 179. Performance by acts of third persons 331 331 332 335 335 336 336 337 338 339 339 345 346 347 348 350 352 355 page. 180. Acceptance of work 356 181. Mutual and dependent condi- tions 356 182. Conditions subsequent 360 183. Excuses for nonperformance of conditions 361 f. Breach. 184. Necessity of allegation, — in money contracts 364 185. — in other actions 367 186. General allegation 368 187. Allegation in terms of contract 370 188. Breach of warranty 372 189. Exception or proviso 372 190. Several parties indebted 373 191. Disabling one's self; anticipa- tory refusal 374 g. Instrumenis for the Payment of Money Only. 192. What are within the statute.. 376 193. Validity, execution, ownership, and conditions 377 194. Form of allegation 380 195. Language 380 h. Cancelation or Rescission. 196. Sufficiency of averments 380 197. 198. 199. 200. 201. 202. 203. 204. 205. 206. 207. COPTEIGHT. Sufficiency of averments 382 CORPOKATIONS. Necessity of alleging incorpo- ration 384 General allegation of organiza- tion 386 Power to act 387 Private or foreign corporation 388 Mode of act 390 Subscriptions 390 Failure to file report, — direct- or's liability 392 Stockholder's action 393 Stockholder's liability 395 Cotenancy. Sufficiency of averments 398 Cbeditoe's Bill. 208. Exhaustion of legal remedy . . 399 209. Sufficiency of averments 401 Damages. 210. Allegation showing damages, — by breach of contract 403 211. — by tort 406 212. Distinction between general and special damages 409 BRIEF ON PLEADINGS. page. 213. Ad damnum; demand of judg- ment 419 214. Demanding too much 420 215. Exemplary damages 421 216. Itemization of damages 422 Date. 217. Dates, if essential to the cause of action .• 423 218. Form of allegation 424 219. Several events 426 220. Continuance of fact or right . . 426 221. "On or about," "thereupon," "at and before," "until sub- sequent," etc 427 Dedication. 222. SufRcioncy of averments 429 Delay. 223. Delay, laches, etc 429 Deliveet. 224. Delivery and acceptance 432 Demand. 225. Promise to pay, naming time or place 433 226. — to pay on demand 434 227. Form of allegation 435 228. Demand implied from other al- legations 430 229. Trover 436 230. Necessity of alleging demand in particular instances .... 437 Descent. 231. Effect of allegation 438 Desceiption. a. Of Real Property. 232. By reference to deed, map, or patent 439 233. By reference to surveys 440 234. Certainty of description 441 b. Of Personal Property. 235. Sufficiency of description 443 Detention. 236. Wrongfulness 44.") Diligence. 237. Conclusion of la-n' 445 Disclaimer. 238. Sufficiency 440 DiVOBCE. 239. Jurisdiction, — residence 446 2^10. Allegation of marriage 447 xii page. 241. — of adultery 447 242. — of abandonment or deser- tion 449 243. — of cruelty 450 244. — of intemperance 453 245. Averments concerning alimony. 453 Documents. a. Documents Pleaded in the Absence of Statutory Regulation. 246. Necessity of copy or substance. 455 247. Pleading legal effect 456 248. Copy embodied in the pleading. 457 249. Copy annexed and referred to. 458 250. Language 460 251. Ambiguities 461 252. Copy accompanied by allega- tion of legal effect; incon- sistency between pleading and exhibit 461 253. Demurrer not aided by origi- nal 465 b. Documents Furnished under Statutes or Rules of Court Rerjuiring Ex- hibits to be Annexed or Filed. 254. What deemed a written "in- strument" 466 255. — subscription paper 467 256. What is "foundation" of the action 467 257. — in action to construe, re- form, or cancel 472 258. — documents collaterally in- volved, — actions on con- tract 472 259. action of tort 473 260. — muniments of title 474 261. Exhibit not called for by the statute 474 262. False reference to filing 475 2(\'i. Indorsements, — ownership of chose in action 476 2H4. Demurrer for failure to fur- nish exhibit 477 205. Copy in body of pleading enough 478 iOO. Exhibit which is mere evidence not noticed on demurrer need not be filed 478 207. Contract not shown to be in writing 480 268. Reference to exhibit; identify- ing 481 269. Appropriate words of reference 482 270. — several counts 483 271. What omissions in pleading supplied by exhibit 483 272. Excuses for not furnishing ex- hibit 490 TABLE OF CONTENTS. page. 273. Amended pleading 492 274. Stale practice in United States court 492 DowEE. 275. Sufficiency of averments 492 Due Pkocess. 276. Conclusion of law 493 Duly. 277. An Issuable allegation 493 Duress. 278. Sufficiency of averments 495 Duty. 279. A mere conclusion 496 Easement. 280. Ground of right 498 Ejectment. 281. Sufficiency of averments 498 Election. 282. Under optional contract 500 Employment. 283. Conclusion of law 501 Estoppel. 284. Conclusion of law 501 285. Sufficiency of allegations 501 Eviction. 286. Sufficiency of allegations 502 EXECUTOES AND AdMINISTEATOES. 287. Actions against executors or administrators 502 288. Accounting 503 289. Claims 504 290. Sufficiency of allegations 504 False Impeisonment. 291. Sufficiency of averments 506 Fences. 292. Conclusion of law 507 293. Sufficiency of averments 507 294. Fence along railroad 507 FoEEiGN Law. 295. General allegation 509 page. 296. Laws of sister state 511 FOEMEE HECOVEEY. 297. Disclosed as a bar 513 Feaud. 298. General allegation not enough. 514 299. Allegation of evidence 517 300. What details necessary 517 301. Intent 521 Gambling. 302. Conclusion of law 522 Goods Sold and Deliveeed. 303. Sufficiency of complaint 522 304. Sufficiency of defenses 523 Heie. 305. General allegation 524 Highways. 306. Restraining opening of road.. 525 307. Obstructions 525 308. Injuries upon defective side- walks 526 Homestead. 309. Conclusion 52S Husband and Wipe. 310. Alienation of aflfeetions 528 Illegality. 311. Disclosure of illegality on pleader's part 530 312. Form of allegation of illegal- ity 531 313. Reference to statute 533 314. Foreign law 533 316. Question left in doubt 533 Inability. 316. Mere conclusion 534 Indebtedness. 317. "Indebted," or "due/' as a con- clusion 534 Indorsement. 318. Consideration 535 Infants. 319. Support, — ^necessaries 536 Injunction. 320. Intent or threats 537 321. Irreparable injury 537 322. Sufficiency of averments 539 Insanity. 323. General allegation 540 Insolvency. 324. Insolvency a fact, but not al- ways enough 540 325. Necessity of averment 541 326. Sufficiency of averments 541 327. Fraudulent conveyances 542 xiii BRIEF ON PLEADINGS. page. 328. Appointment of receiver 542 Iksukance. 329. Accident in.surance 543 330. Insurable interest 544 331. Performance of acts or condi- tions 546 332. Duration of policy 547 333. Occupancy 547 334. Ownership ; value 548 335. Proof of loss, — waiver 549 Iktent. 336. General allegation 549 Judgments. 337. General allegation enough . . . 550 338. — as to co^lrt of sister state. . 551 339. Special jurisdiction in sister state 553 340. United States court practice, — in court of first instance . . 553 341. — on error or appeal 553 342. Allegation of remaining in force 554 343. Jurisdiction of original cause of action 554 344. Statutory short allegation, — "duly given or made" 555 345. — iudgment, etc., of court of United States or of sister state 559 346. Action on judgment 560 347. Suit to set aside or modify judgment 560 348. Res judicata 561 Laches. 349. Ground of demurrer 563 Landlobd and Tenant. 350. Averment of the relation 564 351. Action for rent; use and oc- cupation 565 352. Unlawful detainer 566 Leave to Sub. 353. When must be alleged 566 354. Form of allegation 569 Legality. 355. Necessity of averment 570 Levy and Sbizuke. 356. Sufficiency of averment 570 Liability. 357. A conclusion of law 571 Libel and Slandeb. 368. Words complained of must be set out 571 xiv page 359. Meaning of words 573 360. Publication 576 361. Falsity,— malice 577 362. Words charging a crime 578 363. Injury to business, — special damage 579 Lien. 364. A conclusion of law 580 Limitations. 365. Limitation by statute, when available on demurrer .... 581 Lost Instbuments. 366. SufKcieney of averments 585 Maintaining. 367. Meaning of allegation 586 Malicious Pbosecution. 368. Sufficiency of averments 686 Mabriaqe. 369. Sufficiency of allegations 589 Mabbied Women. 370. Sued as sole 589 371. Sufficiency of allegations 589 Master and Sebvant. 372. Emploj'ment, — necessity and suifieiency of allegations . . . 590 373. Knowledge of defect 591 374. Fellow servants, — incompe- tency 592 Misnomer. 375. Demurrer for misnomer 595 Mistake. 376. General allegation 596 377. Mutuality 696 Money Had and Received. 378. Sufficiency of allegations 597 Money Lent. 379. Sufficiency of averments 599 Mobtgage. 380. Necessity of averments 600 381. Sufliciency of averments 601 382. Conclusion, — presumption . . . 603 Municipal Cobpobations. 383. Allegation of incorporation . . 603 Name. 384. Contract, etc., in wrong name. 604 385. Name unknown 604 TABLE OF CONTENTS. page. 386. Initial 605 387. Introductory description of plaintiffs 606 388. Repeating names of parties . . . 607 389. Title and body of pleading 608 390. Description of partj^ 609 391. Singular and plural 610 392. Variance, — mistake 610 Necessity. 393. Allegation of fact 611 Negligence. 394. General allegation 612 395. Form of allegation 619 396. Agency 620 397. Indirect allegation 621 398. Contributory negligence 621 Nonpayment. 399. By whom 626 627 628 628 629 Notice. 400. Burden to allege 401. General allegation 402. Statutory requirement . . 403. Posting notices 404. Reasonable notice 629 405. Denial of notice 629 406. Knowledge, — facts implying notice 630 Nuisance. 407. General rule 631 Offeb. 408. To whom and where 409. Offer to do equity Ofpicees. 632 633 410. Necessity of averments 635 Ordinances. 41 1. How pleaded 636 OWNBBSHIP. 412. General allegation 638 413. — after ownership shown in third person 640 414. Evidences of title 640 415. Defeasible ownership 641 416. Alternative source of title. . . . 641 417. Ownership imports capacity to own 641 418. Continuance presumed 641 419. Necessity of averments 642 420. Ownership at commencement of suit 643 421. Ownership at time of loss or damage 644 422. Replevin, — claim and delivery. 645 423. Conversiop 646 page, Paetnekship. 424. General allegation 647 Patents. 425. Infringement 647 Payment. 426. Payment otherwise than in money 648 427. Sufficiency of averments 649 Permission. 428. Implies knowledge and con- sent 650 Possession. 429. Sufficiency of averments 650 Public Use. 430. Conclusion of law 651 Ratification. 431. An issuable fact 651 Reasonable Time. 432. Allegation necessary 652 433. An issuable fact 652 434. Meaning of, — what is 653 Receiveks. 435. Appointment 653 Regularity. 436. Details need not be alleged . . . 654 Replevin. 437. Sufficiency of averments 654 Repugnant Allegations. 438. Inconsistency as ground of de- 656 Reward. 439. Sufficiency of averments 658 Rules of Court. 440. Judicial notice 659 Schools. 441. Sufficiency of averments 659 Seisin. 442. General allegation 659 Service. 443. General allegation 660 Specific Performance. 444. Contracts to convey land.... 661 BRIEF ON PLEADINGS. page. Statutes. 445. Public statute, — in other than penal actions 663 446. Action for penalty for an of- fense 665 447. New right or remedy given by statute 667 448. Showing conformity to statute. 671. 449. Allegation of compliance with statutory condition 672 450. St.itutory condition in statu- tory action 673 451. Allegation of interpretation or eilcct 674 452. Pleading in the words of the statute 675 453. Private statutes — common-law rule 676 454. — statutory short form 677 455. — effect of the statutory pro- vision 679 456. Statutes of other states 679 Succession. 457. General allegation 680 Tendek. 458. Interest 680 459. Plea of 680 460. Necessity of averment 681 461. Tender of conveyance 682 462. Tender of valid portion of tax. 682 Thereupon. 463. "Thereupon" does not exclude other causes 683 Time. 464. Implied in allegations without dates 683 Title. 465. General allegation 685 466. Derivation of title, — with or without general allegation.. 686 467. Averment of title 687 468. Title under statute 688 469. Conclusion of law, — "entitled," —"right" 689 Torts. 470. Wilfulness sometimes essential 690 471. "Wilful," an allegation of fact. 690 472. "Wrongful" and "unlawful," mere conclusions 691 473. Malice 692 Tkovee. 474. Sufficiency of averments 693 xvi page. Trusts. 475. Preliminary request to trustee, etc., to sue 694 476. Sufficiency of averments 6.94 Undud Influence. 477. Sufficiency of averments 696 Usage. 478. Necessity of pleading 690 479. Form of allegation 697 Usury. 480. Facts must be stated 697 Waters. 481. Diversion of water 698 482. Obstruction, — overflow 699 Will. 483. Allegation of making, — exist- ence 700 Work, Labor, and Services. 484. Common counts 701 485. Sufficiency of averments 702 VIII.— DEMURRER FOR WANT OF JURISDICTION. I. General Principles. 1. Meaning of "jurisdiction" .... 705 2. Form of assigning ground. . . . 706 3. Want of .jurisdiction "appear- ing on the face of the com- plaint" 706 4. Statutory prohibition 708 5. New York superior city courts. 708 6. Several causes of action 708 II. JUKISDICTION OF SUBJECT-MATTEK. 7. Plnco where cause of action arose 708 III. Federal Question. 8. When sufficiently shown 710 IV. As Affkcied by the Amount In- volved. 9. Apparent want of jurisdiction. 711 10. Minimum amount; "value" in aetioTiR other than for monc.x' demand, etc 711 11. Minimum amount; actions for money demand 714 12. Combining several causes of ac- tion between same parties. . 715 13. Combining joint or several in- terests of difl'erent claim- ants 716 14. Form of allegation 717 TABLE OF CONTENTS. page. 15. Maximum amount as a limit. . 717 V. Citizenship Cases in Federal COUETS. 16. Demurrer lies 718 17. Direct allegation 719 18. — as to corporation 720 19. Form of allegation 722 20. Description in title or in intro- duction 723 21. Time of citizenship 723 22. Suit by assignee 724 23. Citizenship in Federal court, not a personal privilege. . . 725 24. Ranging parties to affect juris- diction 726 VI. As Affected by Dependant's Resi- dence. 25. Defendant sued out of his dis- trict 727 26. Defendant's inhabitancy 727 27. Foreign corporation 728 28. No waiver by qualified appear- ance 728 IX.— DEMURRER FOR WANT OF CAPACITY. 1. Objection must be apparent. . . 729 2. Capacity of natural person presumed 731 3. Use of name of guardian^ com- mittee, etc 731 4. Allegation of capacity not con- clusive 732 5. Allegation of individual cause of action by plaintiff de- scribed as representative. . . 733 6. Allegation of appointment . . . 734 7. Omission to designate in cap- tion 735 8. Subsequent reference to capac- ity 736 X.— DEMURRER FOR MISJOINDER. I. Geneeax Ritles. 1. State practice in United States court 738 2. Specifying objection 738 II. Misjoindee of Causes op Action. a. Form of Demurrer. 3. Goes to the whole pleading. . . 739 4. Joint or separate 739 b. Ohjections for Misjoinder of Causes of Action as Affected by the Ques- tion, What is a Single Cause of Action? 6. Single cause of action 739 Abb. Pl. — ii. page. 6. Separate statement of elements of a single cause of action. . 741 7. Commingled statement 741 8. Multifariousness 743 9. Several grounds for a single recovery 745 10. Several demands for relief on same facts 746 11. Incidental demands 748 12. Inconsistent relief 750 13. Aggi-avation, though such as might be a cause of action by itself 751 c. Objection to Misjoinder of Causes of Action Turning on the Nature of the Claims. 14. Contract and tort 752 15. — electing between contract and tort 755 16. Warranty and false repre- sentations 756 17. Express and implied contract. 757 18. Covenant and trespass 758 19. Injuries to person, character, and property 758 20. Common-law liability, and pen- alty, or statutory liability. 760 21. Legal and equitable 762 22. Action to recover debt and en- force lien 764 23. Incidental relief 765 24. Same transaction or subject. . 767 25. Place and mode of trial 769 26. Inconsistency 769 27. Objection to jurisdiction only. 770 28. Avoiding by reason of insuffi- ciency of one cause 771 d. Objections to Misjoinder of Causes of Action Turning on the Involv- ing of Claims Affecting Different Parties {Including Multifarious- ness ) . 29. Several parties, — at common law 771 30. — under new procedure 772 31. Equitable action; coplaintiffs. 776 32. Codefendants : in equity; mul- tifariousness 777 33. Codefendants under the new procedure 786 34. Different capacities 787 35. Allegation of two capacities, and cause of action in one. . 790 III. Misjoinder of Parties. 36. Presence of improper party. . . 790 37. Coplaintiff's not jointly inter- ested 792 38. Separate relief 793 xvii EBIIOF ON PLEADINGS. page. 39. Persons severally liable on the same instrument 793 XI.— DEMURRER FOR DEFECT OF PARTIES. 1. When demurrer lies 795 2. When demurrer does not He. . 798 3. What constitutes the defect.. 798 4. Absence of "necessary" party. 799 5. Absence of "indispensable" party 801 6. Excuse for nonjoinder 802 7. Presumption that needod party is living 802 8. Form of demurrer 803 SII. DEMUIIRER FOR PENDENCY OF A FORMER SUIT. 1. When demurrer lies 806 2. When demurrer does not lie. . 807 3. General rule as to double vexa- tion 807 XIII.— DEMURRER TO ANSWER. I. General Pkinciples. 1. When demurrer lies .: 810 2. Single answer to several counts, etc 810 3. Several defenses in on6 answer. 811 4. EflFeet of bill of particulars. . . 812 5. Documents required by statute to be filed, etc 813 6. The same; "foundation of de- fense" 814 7. The same; defendant's use of plaintiff's exhibit 815 8. Failure to meet plaintiil'a avoidance of anticipated de- fense 816 9. Equitable defenses; demurrer. 816 10. Equitable bar without afBrma- tive relief 817 11. Demurrer to answer in equity. 818 12. Defenses in United States courts on equitable grounds. 818 13. Inconsistency not groimd of demurrer 819 14. Defendant may attack declara- tion or complaint 822 15. — aider of complaint or an- swer on demurrer to answer. 827 n. Demuheeb to Denials (Including Facts Provable Under General Issue). 16. Mere denials 828 17. Argumentative denial 830 18. Statutes requiring sworn de- nial 830 19. Facts provable under the gen- eral issue 831 xviii page. III. Demukrer to New Matter Con- sidered as Constitotinq a Mere Defense. 20. Justification must state facts in detail 833 21. Plea of truth; new matter... 834 22. Justification must be broad as charge 834 23. Partial defenses purporting to meet the whole cause of ac- tion 835 24. The same; purporting to meet only a. part 836 25. Facts constituting mitigation necessary 837 26. Answer of facts after suit not demurrable 838 27. Mere defense not demurrable because of unnecessary de- mand of affirmative relief. . 838 28. Defensive answer aided by complaint 838 29. Plea of statute of limitations. 838 IV. Demurrer to New Matter Con- sidered AS Constituting a Counterclaim or Ground of Am'irmative Relief. 30. Objection to sufficiency 842 31. Form of demurrer 843 32. Sufficiency of counterclaim... 843 33. Objections to availability .... 844 34. — in actions for specific relief, etc 845 35. — in actions for money de- mands ; counterclaim of specific relief 845 36. — contract and tort, etc 846 37. — double-faced cause of action. 848 38. — counterclaim as on contract by waiving tort 848 39. — allegation of "same transac- tion" 849 40. Time of accrual or vesting... 849 41. Omission to ask affirmative re- lief 849 42. A\'ant of jurisdiction 850 43. Counterclaim not aided by complaint 850 V. Demurrer by a Codefendant. 44. Defendant cannot demur to co- defendant's answer 851 XIV.— DEMURRER TO REPLY. 1. Insufficiency 852 2. Bad denial 853 3. Denial coupled with avoidance. 853 4. Departure 853 5. — allegations in support of complaint, but without vari- ance, not a departure 858 TABLE OF CONTEiNTS. page. 6. Counterclaim against counter- claim 857 7. Defendant may attack declara- tion or complaint 858 8. Demurrer to unauthorized re- ply 859 9. Bad plea or answer reached . . 859 XV.~DEMURRER TO SUPPLEMEN- TAL PLEADINGS. I. To Supplemental Complaint. 1. In general 860 2. Facts which occurred before suit commenced 860 page. 4. Curing defect of parties 862 5. Facts merely additional 863 6. Unnecessary rehearsal of origi- nal 863 II. To Supplemental Answer. 7. Demurrer lies 863 8. Defense arising after suit, in legal action 863 9. Defense arising after suit, in equitable action 865 10. Eight of new party to answer. 866 11. Leave to plead need not be al- leged 866 12. Demand of relief 866 TOLUME II. XVI.— GENERAL RULES FOR DE- FINING THE LIMITS OF THE ISSUE. page. I. Dttty of the Couet. 1. Limits of the issue to be de- cided by the court 872 2. Refusal to try immaterial is- sue 873 II. What System of Law Applies. 3. Cause removed 873 4. State practice in United States court 874 5. Some equity rules same as at law 874 III. What Pleadings Constitute the Issue. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. What pleadings allowable . . . 874 Character determined by averments 875 Question as to service 875 Question as to filing 875 Withdrawal of pleading 876 Amended supersedes original 877 — unless both are answered. 878 Application of answer to amended complaint 879 Omission to designate 880 Omission to amend responsive pleading 881 Delay to respond 882 Demurrer overruled 882 Demurrer sustained 883 Judgment on plea in abate- ment 884 page. 20. Substitute for lost pleading. 884 21. Substituted party 885 22. Stipulations as to character of pleading 885 23. — for trial on the merits... 886 24. Stipulation repugnant to the pleading 886 25. Stipulations as to evidence . . 887 IV. What Kind op Allegations Ten- der AN Issue. 26. Conclusion of law 888 27. What is a fact, and what a conclusion 889 28. Treating insufficient allega- tions as issuable 889 29. Material all^ations 890 30. By virtue whereof — "virtute cujus." 891 31. Hypothetical allegation 891 32. Allegation of contents of doc- ument 892 33. Allegation of amount or value 892 34. Approximate amount, etc. . . . 896 35. Several grounds for one re- covery 897 36. Ground of recovery or defense implied, but not alleged . . . 900 37. Motive of pleader cannot countervail pleading 901 38. Presiunption inconsistent with allegation 902 39. Inconsistent protestation does not prejudice 902 40. Denial of anticipated defense does not change burden of proof 902 xix BKIEF ON PLEADINGS. page. v. Admissions in Genekal. 41. Manner in which admissions arise 903 42. Allegations subject to the rule 905 43. Persons bound 908 44. Pleadings withdrawn or amended 910 45. Admissions made in another suit 912 46. Taking advantage of admis- sions 912 47. Construction 913 48. Effect of admissions 914 VI. Express Admissions. 49. Interpretation of express ad- missions 917 50. Admission of similar fact or instrument 924 51. Admission by tender and pay- ment into court 925 52. Denial and tender 926 53. Admission qualified in sub- stance 927 54. Admission coupled with justi- fication or avoidance .... 930 55. Inconsistent admissions and denials 932 56. Protestation 938 57. Admission of conclusion of law 939 58. Admission denied 940 .59. Disclaimer; its requisites 940 VII. CONSTEUCTIVB ADMISSIONS, IN- CLUDING Admissions by Not De- nying. 60. Sufliciency of complaint, and issues not affecting merits 941 61. Immaterial allegation 943 62. Denial of express admission. . 944 63. Defect of essential allegation 945 64. Denial of mere conclusion of law 946 65. Formal allegations required by rule of court 948 66. Main fact and evidentiary facts 948 67. Avoidance of anticipated de- fense admitted by pleading the defense 949 68. Ground of conclusive pre- sumption 952 69. Tacit, equivalent to express, admission 952 VIII. FoEM op Deniai,, and Admissions BY Bad Denial,. 70. Allegations subject to denial — material allegations.... 960 XX page. 71. — allegations of time, place, amount, or value 962 72. — legal conclusions 965 73. — averments in support of the jurisdiction in general 976 74. — denial of citizenship in Federal courts 977 75. Nature and form of denials in general 981 76. The words of denial 990 77. Surplusage in a denial 995 78. Inconsistency between denial and affirmative defense . . . 995 79. Separation of denials and de- fenses 999 80. Sham, redundant, and friv- olous denials 1005 81. — admission of similar con- tract or other writing. . . . 1014 82. Negatives pregnant 1017 83. — denial of allegations in the conjunctive 1027 84. Evasive denials 1030 85. Qualified denials — exception of allegations otherwise answered 1033 86. — denial upon infonnation and belief 1038 87. — denial of knowledge or in- formation sufficient to form a belief 1047 88. — defendant's means of in- formation 1052 89. — knowledge of defendant presumed 1057 90. The general issue 1061 91. — general issue, with notice of speci.al matter 1069 92. The general denial — form and scope in general 1072 93. — statutes limiting its use.. 1087 94. — its sufficiency as a traverse of particular allegations.. 1089 95. Specific denials; — when nec- essary or proper 1 103 96. — denial of particular alle- gations 1 104 IX. Statutory Traverse of Answers AND Replies. 97. New matter not constituting set-off or counterclaim... 1111 98. Denial in form of new mat- ter 1114 99. Avoidance in form of counter- claim 1115 j 100. Counterclaim not properly I characterized in pleading I it 1116 TABLE OF CONTENTS. page. X. Admissions, and Shifting the Bur- den OF PiiooF BY Unverified De- nial. 101. 102. 103. 104. 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119. 120. 121. 122. 123. 124. 125. Nature of the statutes re- quiring sworn denials .... 1118 Necessary allegation to call for sworn denial 1136 Privileged testimony 1137 Execution ; delivery 1137 Evasive or loose denial 1138 Unverified copy of verified pleading 1140 Affidavit or pleading 1140 Who may verify 1 140 — verification by agent 1141 Information and belief 1141 Translation 1142 Signature by mark 1143 — abbreviation in name ; mis- nomer ; change of name ... 1143 — execution in firm name... 1143 — authority of agent 1144 — authority of corporate offi- cers . . 1145 Defect of parties; question of ownership 1146 Instrument executed by sev- eral 1146 Not a partner 1147 Instruments executed by third person 1147 Revocation of authority 1148 Lost instrument 1148 Plaintiff not the real party in interest 1148 Other issues 1149 Amending 1 149 XI. Inconsistency in a Pleading. 126. Inconsistent allegations in same count or defense 1150 127. Inconsistent allegations in separate causes of action. . 1151 128. Inconsistent defenses 1152 129. What is inconsistency 1153 130. Confession by avoidance 1156 131. Estoppel 1159 132. Denial, and separate admis- sion; plaintiff must give proof 1159 133. Defenses inconsistent in fact 1160 134. Amending to cure inconsist- ency 1161 XII. Aider. 135. Complaint aided by answer; answer, by reply 1161 136. Whole allegation or denial.. 1167 137. Aider by immaterial or non- essential allegation 1167 138. Aider by specific denial 1167 page. 139. Issues on separate causes of action 1169 140. Denial of plaintiff's avoidance of defense without plead- ing the defense 1169 141. Complaint aided by reply. ... 1170 XIII. Departure. 142. Refusal to try departure. . . . 1170 143. Reply to counterclaim 1170 XIV. Issues between Codefendants. 144. Right to prove case against a. codefendant 1171 145. Relevancy ot claim to subject of action 1171 146. Same subject-matter 1172 147. Unnecessary controversy .... 1173 148. Necessity of notice 1173 149. No responsive pleading neces- sary between codefendants 1174 150. Unsuccessful defendant 1175 XV. Waiver by Pleading ob Not Pleading. 151. Objection to be taken by de- murrer or answer 1175 152. Plea of puis darrein continu- ance 1183 153. Waiver of objection to coun- terclaim 1183 154. Abatement and merits 1184 XVII.— APPLICATIONS AT THE OPENING OF THE TRIAL. I. OB.JECTIOXS TO THE JURISDICTION OF THE Court. 1. How available 1189 2. Issue of process 1191 3. Sufficiency of original plead- ings 1192 4. Sufficiency of pleas to juris- diction 1194 6. Several causes of action 1196 6. Transitory action between nonresidents 1190 7. Effect of exemption from ar- rest 1196 8. Retaining jurisdiction once acquired 1196 9. Waiver; where plaintiff's pleading shows want of jurisdiction 1197 10. Waiver by proceeding after objecting 1198 11. Exclusive jurisdiction of an- other court 1199 12. Objection to service, by an- swer 1199 13. — inferior court of local ju- risdiction ; service within limits 1200 BBIEF ON PLEADINGS. page. 14. — residence, etc 1200 15. Objections that may be waived 1200 16. Federal question cases 1203 17. — particular classes of cases 1205 18. Citizenship eases 1205 19. — citizenship appearing in other parts of the record. . 1206 20. — parties collusively made or joined 1206 21. — ranging parties to affect jurisdiction 1207 22. Amending to defeat objection 1207 23. — in United States courts.. 1209 tl. Motions to Dismiss foh Insuffi- cienct, or fob judqjient on the Pleadings. a. Dismissal for Insufficiency. 24. Defendant's motion to dismiss for insufficiency of com- plaint 1210 25. — abandonment 1211 26. — several defendants 1211 27. Answer or proof not to be re- garded 1211 28. — amendment to defeat the motion 1212 29. — exception to ruling 1213 30. Adequate remedy at law.... 1214 31. ■ — objections to form, etc. ... 1214 32. — defenses and counterclaims 1216 33. Effect on cross-bills, answer, counterclaims, etc 1216 34. Pleading objected to, liberally construed 1217 35. Overruling of a demurrer not conclusive 1218 b. Motion for Judgment on the Plead- ings. 36. Nature of judgment on the pleadings 1219 37. Plaintiff's motion 1219 38. Irrelevant, sham, and frivo- lous denials and defenses. 1221 39. Legal conclusions 1222 40. Insufficient denials or defenses 1223 41. Verification 1227 42. Maierial allegations of plain- tiff's pleading denied 1228 43. Sufficient defense; issue of fact 1231 44. Insufficient complaint 1239 45. Omission of essential fact. . . . 1240 46. Immaterial issue 1240 47. New matter sufficient without denial 1241 48. Denial and separate admission 1241 49. Judgment for amount admit- ted to be due 1242 xxii page. 50. Defendant's motion for judg- ment 1244 51. Defendant may move that plaintiff have judgment. . . 1248 52. Pleadings liberally construed 1249 53. Truth of pleading admitted. . 1249 54. Amendment 1250 55. Judgment by default 1251 56. Informal pleadings 1259 57. Statute of limitations 1259 e. Motion to Compel Election. 58. Commingled or dissevered statement 1259 59. Demurrable misjoinder 1260 60. Several counts for same recov- ery — on contract 1260 61. — contract; and judgment, award, or account stated, thereon 1264 62. Alternative relief 1264 63. Account stated 1264 64. Conflicting versions of trans- action, or views of legal effect 1264 65. — torts 1265 66. — inconsi.steney in fact 1207 67. False warranty; and damages for deceit 1268 68. Legal ground, with equitable ground for same recovery 1269 69. — common-law groimd; with a statutory ground 1270 70. — several statutory grounds 1270 71. Contract and tort 1271 72. Election to withdraw count. . 1271 73. Formal allegation of identity 1272 74. Different measure of damages 1273 75. Considerations influencing dis- cretion of the court 1273 76. Inherent authority of attor- ney 1274 77. Dismissal for refusal to elect 1274 78. Plaintiff erroneously com- pelled to elect 1275 79. Plaintiff's voluntary election binding 1275 80. Inconsistent defenses 1275 XVIII.— RECEPTION OF EVIDENCE. I. What Kinds of Axlegations are Necessary or Sufficient to Let in e^^dence. 1. State practice in United States court 1279 2. Exclusive evidence; insuffi- ciency of complaint 1279 3. Scope of issue 1281 4. Essential fact not alleged. . . . 1281 5. Matter in avoidance not al- leged 1282 TABLE OF CONTENTS. page. 6. Defective allegation; indefi- niteness and uncertainty. . 1283 7. Uncertainty as to theory. . . . 1284 8. Hypothetical or contingent al- " legation 1284 9. Notice of intent to prove. . . . 1285 10. Unsupported conclusion .... 1286 11. Clerical error 1286 12. Statutory fiction or presump- tion 1287 13. Judicial notice 1287 14. Several titles to same proper- erty 1287 15. Generality of allegation of matter in pleader's knowl- edge 1288 16. Irrelevant allegation 1288 17. Relevant allegations not pre- judiced by irrelevant 1289 18. Changing line of proof; al- ternative 1289 19. Materiality caused by course of the trial 1289 20. Duplicity not ground for ex- clusion 1289 21. Rights to costs and injunction 1291 22. Counterclaim and set-off.... 1291 23. Liberal interpretation 1291 24. Minor objections waived by entering on evidence 1292 II. Effect of Biix of Paeticitlaes. 25. Evidence beyond bill not ad- missible 1294 26. Bill need not repeat what is' in the pleading 1295 27. Bill cannot enlarge or change cause of action 1295 28. Indefiniteness 1297 29. Several counts in one bill . . . 1298 30. Matter in avoidance of the adversary's case 1299 31. Effect of variance between bill of particulars and evidence 1299 .32. Voluntary bill 1300 33. Unverified bill 1300 34. Effect of failure to serve 1300 35. Bill of particulars as evidence 1301 III. Effect of Admissions. 36. Admissibility of evidence to prove admitted fact 1302 IV. Effect op Denials. 37. Denial lets in any facts con- trary to allegation. . . .rrr 1303 38. General denial, distinguished from general issue 1305 39. Former adjudication 1308 40. General denial not impaired by defective special defense 1309 page. V. Effect of Interlocutoky Decisions ON the Pleadings. 41. Demurrer 1309 42. Demurrer; exhibits 1311 43. Demurrer; facts alleged 1311 44. Effect of motion to strike out or omission to move 1311 45. Allegation mutilated by strik- ing out part 1311 46. Objector who induced the ob- jectionable pleading es- topped 1312 VI. Particxilab Subjects of Allega- tion (Alphabetically Akranged). Abbbeviations . 47. Allegation of meaning 1313 Accord and Satisfaction. 48. Must be specially pleaded... 1313 49. Lets in evidence of payment . . 1314 Account. 50. Effect of failure to serve copy of account mentioned in pleading 1314 51. Account; proving items 1315 52. Effect of serving copy, under the statute 1316 53. Sworn account from abroad. . 1316 54. Disproving balance 1316 Accounting. 55. Particulars of the account ad- missible under general alle- gation 1317 Account Stated. 56. Must be pleaded as such 1317 57. Effect of pleading 1318 58. Agents 1318 59. Joint and several obligations. 1318 60. General denial 1319 61. Impeachment of the account. 1319 Action Premature. 62. Necessity of pleading the ob- jection 1320 62a. General denial 1320 Adequate Remedy Existing at Law. 63. Facts showing adequate rem- edy at law 1321 Adverse Claim. 64. Formal allegation not always sufficient 1321 xxiii BKIBF OH PI/EADINQS. page. AnvEBSB Possession. 65. Under whom claiming 1322 66. Description 1322 67. Prescriptive period 1322 Agency. 68. AU^atlon of act lets in agency or confederacy by which it was done 1323 69. Denial; terms of agency 1324 70. — disproof of authority 1325 71. Variance 1326 Amount. 72. Indefinite allegation 1326 73. — "reasonable" value 1327 74. Specified amount 1327 75. Denials 1328 76. Variance 1329 77. Amending claim 1329 Assignment. 78. Effect of allegation 1330 79. General allegation 1331 80. Averment of purpose 1332 81. Denials 1332 82. Amendment setting up assign- ment 1332 Assignment fob Benefit op Ckeditobs. 83. Allegation sufficient to admit proof 1333 Association ok Joint-Stock Company. 84. General denial puts existence in issue 1333 Assumpsit. 85. Common counts — special con- tract 1334 86. effect of defective spe- cial count 1334 87. — agreed price and value. . . . 1335 88. — excuse 1335 89. Special counts 1335 90. General issue 1336 91. — action premature 1337 92. — coverture 1337 93. — jurisdiction 1337 94. — recoupment 1337 95. — failure of consideration... 1338 96. — defense subsequently aris- ing 1338 97. General issue, with notice of set-off 1338 AUTIIOBITT. 98. Allegation of act by agent im- ports his authority 1339 99. Ratification 1339 xxiv page. Bona Fide Pueciiaseb. 100. General denial 1340 By-Laws. 101. Pleading legal effect 1340 Capacity. 102. Incapacity must be pleaded.. 1341 103. General allegation 1342 Consent. 104. General allegation 1342 Conspiracy. 105. Necessity of allegation 1342 106. Proved without allegation . . . 1342 107. What may be proved under plea of 1343 108. Variance 1343 Contracts. 109. General allegation lets in writing 1344 110. Allegation of written contract may let in oral 1346 111. — variance 1347 112. General allegation and special contract 1347 113. Agreed price and value 1347 114. — variance 1349 115. Identity 1349 116. — variance 1351 117. Code of Civil Procedure 135.5 118. — name; variance 1357 119. — immaterial provision .... 1357 120. -variance 1358 121. Identity uncertain 1359 122. — variance 1360 123. — judicial presumption 1360 124. — extraneous matter; vari- an(» ". . . 1360 125. Execution 1301 126. Contract by agent 1361 127. Legal effect 1361 128. — variance 1362 129. Alternative contract 1364 130. Modification of contract 1364 131. Failure of consideration 1366 132. Want of consideration 1386 133. Conditions precedent; per- ' formance 1367 134. — general allegation 1367 135. executory consideration 1367 136. particulars 1387 137. excuse for nonperform- ance 1368 138. variance 1372 139. — breach; general allegation 1372 140. specific allegation 1373 141. — plaintiff's breach as a bar 1375 TABLE OF CONTENTS. page. 142. Concurrent admissions of de- fect in writing 1376 143. Denials 137G 144. — abandonment 1379 145. — alteration 1379 146. — ambiguity 1380 147. — assignment 13S0 148. — failure of consideration... 1381 149. — fraud in inducing execu- tion 1382 150. — modification 1383 151. — rescission 1383 152. — waiver 1383 153. — want of consideration.... 1384 154. — recoupment 1385 155. — performance 1386 156. with specifications of breach 1387 157. — general allegation and spe- cial contract 1387 158. — excuse 1388 159. — effect of order on demurrer 1389 160. — statute of frauds 1389 161. admission of contract.. 1390 162. — agency or representative capacity 1391 163. — — authority 1391 164. ratification 1391 165. Admission by reply 1392 COBPOEATIONS. 165a. Admissions 1392 166. Contract with individuals 1392 167. Stockholder's liability; stock unpaid 1392 168. denial 1393 169. Denial of individual liability 1393 170. Foreign corporation 1393 Costs. 171. Allegation of ground for costs; right to prove — in equity 1393 172. — in actions of a legal nature 1394 Damages. 173. Necessity of allegation 1395 174. Vague and uncertain allega- tions 1397 175. General allegations; general damages 1397 176. — special damages 1398 177. Diminution of rental value. . 1402 178. — loss of rent 1402 179. Grcneral allegation of damage from personal injury 1402 ISO. — vocation and ordinary earn- ings 1407 181. — loss of wife's services 1410 182. Medical expenses 1411 183. — dependent family; embar- rassment 1412 I page. 184. Damages pending suit; legal actions 1412 185. — equitable actions 1412 186. Rule as to action by married woman 1413 187. Plaintiff's prevention of de- fense 1413 188. Evidence appropriate to dif- ferent theories 1413 189. Aggravation of damages 1414 190. Mitigation 1414 Date. 191. Variance in dates 1416 192. Amending date 1418 Defect of Parties. 193. Must be speciallv pleaded... 1419 194. Evidence of defe"ct 1420 195. Ignorance as an excuse 1420 196. Facts in avoidance occurring after commencement of ac- tion 1420 Demand. 197. Necessity of alleging 1421 Detention. 198. Evidence of conversion 1421 199. Title in a stranger admissible under a general denial. . . . 1421 Divorce. 200. Indefinite allegation 1422 201. Admissibilitv 1422 202. Condonation" 1424 203. Recriminatory evidence 1424 Documents. a. In the Absence of Statute. 204. Admission of allegation of in- strument dispenses with production 1425 205. Description 1426 206. Lost instrument 1427 207. Substituted instrument 1427 b. Under Statutes or Rules of Court Re- quiring Annealing or Filing. 208. What instruments are within such a statute 1427 209. Object of the statutes 1428 210. Copying of instrument into pleading 14.S3 21 1. Amended pleading 1433 212. Replication 1433 213. Language 1434 214. Exclusion of evidence for not furnishing exhibit 1434 XXV BBIElf ON PLKADIXGS. page, 215. Contract not alleged to be in writing 1435 216. Variance between original and all^ation of exhibit. . 1435 217. Exhibit not evidence as such 1435 218. — but admissible as evidence against the pleader 1430 c. Effect of Statutes and Rules of Court Requiring Verified Denials of Written Instruments and Particu- lar Facts. 219. In general 1436 220. Sworn denial not evidence for the pleader 1437 221. Want of consideration 1437 222. Signing as agent 1438 223. Alterations 1438 224. Omission as affecting the issue — dispensing with pro- duction 1438 225. — allowing evidence 1439 226. — admitting validity 1439 227. — fraud inducing execution. . 1440 228. Statutes affecting burden of proof— effect of unsworn denial 1441 229. — effect of sworn denial.... 1441 230. — prelim in.Try proof 1442 "Duly." 231. Substantial as well as formal conditions 1442 232. Ejectment 1443 Election (of Eights, etc.). 233. General allegation enough . , . 1443 Entry, 234. Informal allegation 1443 Estoppel. 235. At law 1444 236. — reversal for invalidity,,,. 1445 237. — formal adjudication; ac- tion pending 1445 238. Equitable estoppel in aid of plaintiff 1445 239. — defendant's case 1446 240. — plaintiff's avoidance of mere defense 1447 241. Incidental fact not pleaded . , 1447 Facts Occtjring Pending the Action. 242. Fact essential to the case .... 1448 243. Exceptional actions 1448 244. What is the time of commenc- ing action 1449 245. Fractions of a day 1449 xxvi page. 246. Lapse of time or further grievance enlarging meas- ure of recovery 1449 247. Facts modifying or support- ing cause of action 1450 248. Leave to file amended or sup- plemental pleading, not evidence of right 1450 249. Amendment inserted in sup- plemental pleading 1451 250. Waiver of objection that orig- inal is insufficient alone. . 1451 251. Mere evidence 1451 252. Facts in avoidance of prima facie defense 1452 253. Repetition of same grievance 1452 254. Amending 1452 Foreign Law. 255. Necessity of allegation; ulti- mate facts 1453 256. — mere evidence 1454 257. Legal effect 145r> FOEMEE ReCOVEBY. 258. Necessity of pleading 1455 Fkatjd. 259. Must be alleged 1457 260. Replevin and trover an ex- ception 1461 261. General allegation not suffi- cient for the pleader 1462 262. Principal and agent 1464 263. Intent es.sential 1464 264. Time 1464 265. Knowledge of falsity 1465 266. The word "fraud" not neces- sary 1465 267. Evidence not to be pleaded. . 1465 268. Variance , . 1466 269. Oral evidence to defeat writ- ten 1467 270. Fraud in inducing signature, etc., distinguished from fraud in inducing agree- ment 1468 271. Fraud does not let in rescis- sion, etc 1468 272. Denial of allegation of good faitli 1468 273. Denial of concealment 1468 274. Plaintiff in pari delicto 1469 275. Fraud to rebut defense 1469 Goods Sold and Deuvkred. 276. Evidence admissible generally 1470 277. Breach of warranty 1470 278. Recoupment 147(1 279. Under the general denial 1471 280. Variance 1471 TABLE OF CONTENTS. page. Heib. 281. SufSdent allegation to admit evidence 1472 Highways. 282. "Highway," a general term . . 1472 283. "Established highway," like- wise provable generally. . . 1473 284. Obstruction 1474 Illegality. 285. Illegality on face of instru- ment 1474 286. Evidence of extraneous ille- gality under a denial 1474 287. Variance as to nature of ille- gality 1477 288. Illegality of counterclaim 1477 Indebtedness. 289. "Indebted," a mere conclusion 1478 290. Plea of nil debet, generally.. 1478 291. Variance 1479 Infant. 292. General answer 1479 Insanity. 293. Allegations 1479 Interest. 294. Laches as barring interest. . . 1480 Judgment. 295. General denial 1480 296. Variaoace 1481 297. Reopening of judgment 1482 298. Execution under judgment. . 1482 Jurisdiction. 299. Statutory allegation as to former judgment, etc 1482 300. Want of jurisdiction on the subject 1483 301. — in United States courts.. 1483 302. — evidence of lack of citizen- ship 1483 Leave to Sue. 303. Omission to obtain or allege. . 1484 Libel. 304. Scope of libel 1484 305. Truth of statement under a general denial 148y 306. Justification generally 1485 307. Special damage must be pleaded 1487 page. 308. Damages — loss of trade 1487 309. Evidence in mitigation under new procedure 1487 Limitations. 310. Must generally be pleaded . . . 1487 311. General allegation not suffi- cient 1489 312. Set-oiTs and counterclaims . . . 1490 313. Avoidance of plea of statute 1490 Malicious Prosecution. 314. Want of probable cause 1491 315. Probable cause — under a de- nial 1492 316. Termination of prosecution.. 1492 Misnomer. 317. Misnomer of a party on the record 1493 318. Oral evidence of mistake in writing 1494 319. — amending 1494 Mistake. 320. Must be pleaded 1496 321. — form of allegation 1496 322. — alternative 1497 323. Demand of refoi-mation 1497 32-1. Mistake as an avoidance, though not pleaded 1497 Money Had and Received. 325. Evidence in support of the count 1498 326. Matters of defense 1498 Money Loaned. 327. Paid to a third party 1499 328. Under a general denial 1499 Money Paid. 329. Sufficiency of payment 1500 Negligence. 330. General allegation 1500 331. Res gestcB 1504 332. Resultant damage ISO.? 333. Specific allegation of negli- gence 1505 334. "Gross" and "wilful" negli- gence 1511 335. ^to overcome allegation of contributory negligence ... 1512 336. Contributory negligence .... 1513 337. Statutory liability 1515 338. Joint negligence 1515 339. Noncompliance with custom- ary precautions 1510 xxvil BEIKF ON PLEADINGJS. page. 340. Denial of defendant's negli- gence 1516 341. Rebuttal evidence 1518 342. L^ality under a denial 1519 Notice. 343. Must be pleaded 1519 344. Notice of defect in highway, etc 1520 345. Notice of recoupment 1520 346. As a defense 1521 Nuisance. 347. Variance 1521 Offer. 348. Omission of offer to do equity 1522 Okdinances. 349. Must be pleaded 1522 350. Variance 1524 Ownership. 351. General allegation 1524 352. Denial 1526 Partnership. 353. Defect of parties 152S 354. Joint act or firm act 1529 355. Separate individual act 1529 356. Abortive special partnership 1530 357. Fa,lse representation of being partners 1530 358. Variance 1531 Patent. 359. Notice 1531 Payment. 360. Evidence admissible generally 1532 361. Medium 1532 362. Set-off, accord, etc 1533 363. Payment by third person. .: . 1534 364. Variance 1534 365. Denial 1535 366. Payment down or in advance 1538 367. Statutory presumption or bar 1538 QiTANTUM Meruit. 368. Express contract — in support of the count 1539 369. — as a defense 1539 370. Joining of express contract and quantum meruit 1539 371. Evidence of value 1540 372. — rebuttal 1540 Real Party in Interest. 373. Facts must be pleaded 1540 xxviii Release and Discharge. page. 374. Must be specially pleaded. . . 1541 375. Denial of release 1541 Replevin. 376. Ownership 1542 377. Denial 1543 378. Special plea of justification. . 1544 379. Exemption 1544 380. Damages 1545 381. Denmnd 1545 382. Variance 1545 Slander. 383. Malice 1545 384. Privilege 1546 385. Variance 1546 386. — foreign language 1547 387. Denial 1548 Tender. 388. Necessity and effect of alleg- ing 1548 Title. 389. General allegations 1549 390. Personal actions 1552 391. Denials 1553 392. Personal action — denial of title 1557 393. Rebuttal evidence 1558 394. Adverse pos.session 1558 395. Variance 1559 396. Unnecessary allegation 1560 397. 398. 399. Tort. Informal allegation of malice 1560 Allegation of malice surplus- age 1560 Justification inadmissible un- der a denial 1560 Trespass. Alia enormia 1562 General denial 1563 Intent and motive 1563 Variance 1564 Tro^'ee. "Converted" not a conclusion of law 1564 Ownership 1564 Damages 1565 Denial 1566 Variance 1567 Use and Occdtation. Damages 1568 Waters. 410. Ownership 1668 400. 401. 402. 403. 404. 405. 406. 407. 408. 409. TABJ^E OF CONTENTS. page. 411. Custom, to support title. . . . 1569 412. Wilful obstruction of stream 1570 413. Evidence not to be pleaded.. 1570 414. Denial 1570 415. Damages 1571 Work and Labor. 416. Evidence to support 1571 417. Damages 1571 418. Denial 1572 TO CON- VII. Variance; Amending FORM TO Proof. 419. In general 1572 420. — at common law 1573 421. — in equity 1573 422. — under the new procedure . . 1574 423. objection to evidence; irrelevant 1576 424. relevant 1579 425. proof must pertain to fact outside the issues. . . . 1579 426. evidence must support. 1579 427. deemed made 1580 428. referee may allow 1580 42fl. — in admiralty 1581 430. Discretionary 1581 431. Party adducing evidence 1582 432. Liberal construction and al- lowance 1583 433. Time 1583 434. Amending as to a cause of ac- tion 1584 435. — first stating a cause 1592 436. — defense 1592 437. — objection to evidence 1593 438. — no defense stated 1594 439. — capacity 1594 440. Variance; materiality 1595 441. — a question for court 1597 442. — disregarded 1597 443. — cured by amendment 1597 444. surprise 1597 445. Unavailing 1599 446. Name of coparty 1599 447. Surprise; proof of 1599 448. — previous knowledge does not disprove 1600 449. Previous knowledge ground for refusing amendment. . 1600 450. Fact implied 1601 451. Inherent power 1601 452. Not precluded by stipulation to try issue 1602 453. Leave to amend does not su- persede waiver of jury. . . . 1602 454. Right of action 1602 455. Jurisdiction 1602 456. Bill of particulars 1002 457. Powers of United States court 1603 XIX.— SUBMISSION AFTER DENCE TAKEN. page. EVI- I. Power and Duty of the Court. 1. Pleadings read without being put in evidence 1607 2. Defining the issues for the jury 1608 3. State practice in United States court 1609 II. Sufficiency and Consistency of THE Pleadings, and of the Con- tentions UPON THE Evidence. 4. Insufficiency 1609 5. Informal or indistinct allega- tion of cause 1609 6. Blending distinct causes 1610 7. Immaterial issues 1610 8. Which cause of action, in am- biguous complaint 1610 9. Alternative ground for conclu- sion of fact 1611 10. Inconsistency in separate counts 1611 11. Effect on the defense of plain- tiff's statement of separate counts for same recovery. . 1612 12. Denial and avoidance 1612 13. Inconsistent defenses 1613 14. Sufficiency of defense not ad- mitted by not demurring. . 1614 III. Burden and Failure of Proof. 15. Burden of proof; denials.... 1614 16. — admissions 1616 17. — corporate existence 1617 18. — as to jurisdiction 1617 19. Amendment 1617 20. Failure of proof; material al- legations 1618 21. — immaterial allegation.. . . 1618 22. — proper but unnecessary al- legation ; legal presump- tion 1620 2.3. several counts 1620 24. legal effect 1621 25. — extent of proof required.. 1621 26. patent infringement... 1624 27. slander 1624 28. Indefinite or uncertain allega- tion 1625 29. Omitted allegations supplied from adversary's pleading 1625 30. Burden to prove negative alle- gation 1026 31. Order of proof of avoidance of defense Ki-" 32. Right of rebuttal 1627 ■xxix BRIEF ON PLEADINGS. page. 33. Admission of allegation of contract 1627 IV. What Gboltnds of Relief or De- fense ABE Waived by Not Plead- ing. 34. In general 1628 35. — rebuttal of cause of action proved but not alleged. . . . 1631 36. Abiindonment 1632 37. Accord and satisfaction 1632 38. Action pending 16.32 .39. Action premature 1632 40. Adequate remedy at law 1633 41. Agency 1633 42. Assault 1634 43. Bona fide purchaser 1634 44. Bona fides 1634 45. Breach of condition in insur- ance contract 1634 46. Champerty 1630 47. Condonation 1636 48. Contracts 1636 40. — collateral undertaking. . . . 1636 50. damages 1636 51. — general Ifi37 52. — special 1638 53. medical expenses 16.38 54. — actual 1638 55. — mitigation 1639 56. — recoupment 1639 57. Defect of parties 1639 58. Double employment 1639 59. Estoppel ; waiver by not pleading 1640 60. — plaintiff's waiver by not pleading when there was opportunity 1642 61. — waiver of conclusiveness.. 1642 62. — proved by both parties. . . . 1643 63. — may avail without being pleaded 1643 64. — equitable regard for 1643 65. — what is "opportunity to plead:" common law 1644 fifi. new procedure 1644 67. Duress 1645 68. Foreign corporation 1645 69. Foreign law 1645 70. Former judgment 1646 71. Fraud..' 1647 72. Illegality 1647 73. — lo^al agreement 1648 74. — -illegal agreement 1649 75. — variance 1650 76. Incapacity 1651 77. — infancy 1051 78. — proper party plaintiff 1651 79. Justification 1652 80. Laches 16.52 81. Misconduct of party to arbi- tration 1652 82. Modification 83. Necessity 84. Negligence 85. — contributory , 86. — of fellow servants 87. Patents 88. Payment 89. Prescription 90. Privilege 91. Public officer 92. Ratification 93. Real party in interest 94. Release 95. Res judicata 96. Statute of frauds 97. Statute of limitations 98. — plaintiff's avoidance 99. Statutory relief 100. Subrogation 101. Trademark a false representa- tion 102. Undue influence 1 03. Use and occupation 104. Usury i 105. Waiver 106. Want of authority \ 107. Want of consideration I 108. Want of funds I 109. Want of jurisdiction 110. Want of verification page. 1652 1053 1653 1654 1655 1655 1656 1656 1656 1656 1657 1657 1657 1657 1657 16.5!) 1662 1062 1663 1063 1664 1664 1064 166.-, 1665 1665 1666 1666 1666 V. Omission to Plead Waived by Not Objecting to Evidence. 111. Necessity of objection 1667 112. Evidence admissible on sev- eral grounds 1668 VI. Sworn Denials and Effect op Omission. 113. Document denied under oath 1668 114. Sworn denial of instrument not evidence 1669 115. Conclusive admission 1669 116. Statutory admission must control verdict and find- ings 1669 VII. Facts Ocoueeing Pending Suit. 117. Facts in furtherance of the original cause of action. . . 1670 118. Additional instalments 1672 119. Additional damages; taxes.. 1673 120. Changed relations of parties litigant 1673 121. Change of party in interest. . 1674 122. Supplemental pleading; mis- nomer; amendment 1674 123. Supplemental answer, affida- vit of defense, and amend- ed answer 1675 TABLE OF CONTENTS. page. 124. Plea puis darrein continu- ance 1678 125. Defendant's procedure in equity 1679 VIII. Conformity of Proofs to Aixe- GATIONS. 126. 127, 128. 129. 130. 131, 132, 133, 134, 135, 136, 137, 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. Allegation of wilful wrong.. Replevin Slander Contract and tort Contract with tort inducing it, alleged Actions based on judgments. Actions affecting title and possession of real estate . . Trespass In equity Aider by answer Waiver Defendant bound by same rule as plaintiff Allegation of individual cause of action by plaintiff de- scribed as representative. . Allegation of representative's cause of action, and proof of individual cause Representative capacity mis- described Counsel's practical construc- tion of pleading Joint and several obligations Omission to reply Departure Contracts Services Success on the evidence, lim- ited by the pleadings Rule to be equitably applied. Breach of contract Accounting Mechanics' liens Sale.s Torts Conversion Injury to person or property Rule for determining material and immaterial variance. . 1679 1681 1682 1683 1684 1685 1686 1688 1688 1692 1693 1694 1695 1696 1697 1697 1698 1699 1699 1699 1704 1708 1709 1712 1713 1714 1715 1717 1719 1720 1726 ix. confoemitt of findings to the Issue and Admissions. 157. Findings controlled by the issues 1729 158. Findings controlled by admis- sions 1730 159. Waiver of admission by going into evidence 1731 page. x. conformitt of relief" to the Peayeb ok Demand for Judg- ment. 160. Scope of the demand for judg- ment 1732 161. Defects in prayer for relief. . 1734 162. In equity 1736 163. Inconsistent relief cannot be granted 1739 164. Amount of recovery limited by pleading 1741 165. Interest 1742 166. Attorney and counsel fees. . . 1744 167. Special damages not proved 1744 168. Special damages not alleged 1744 169. Prayer for specific relief.... 1745 170. Sufficient prayer with insuffi- cient pleadings 1746 171. No relief demanded 1746 172. Circumstances of aggrava- tion not available 1747 173. Treble, double and single dam- ages 1747 174. Granting legal relief under a complaint of an equitable frame 1748 175. Granting equitable relief un- der a complaint of a legal frame 1749 176. Causes of action of concur- rent jurisdiction 1749 177. Equitable ground for relief equivalent to legal 1750 178. Legal case proved imder com- plaint in equity 1750 179. — plaintiff's objection to for- um 1751 180. Equitable case proved under complaint appropriate to legal action 1751 181. Legal or equitable relief on same transaction 1751 182. Equitable avoidance of de- fense to legal claim 1752 183. Necessary allegations of fact 1753 184. Equitable relief as to part, and damages as to part. . . 1753 185. Equitable defense and coun- terclaim 1753 186. Equitable defense lets in plaintiff's equities 1753 187. Affirmative relief in favor of defendant 1754 188. Rights of defendants in de- fault 1754 189. Relief between codefendants; omission of demand and service 1755 190. In case of plaintiff's failure 1756 xxxi BEIEF ON PLEADINGS. page. 191. Incidental relief between co- defendants, involved in shaping plaintiff's relief.. 175fi XI. CuEB BY Verdict. 192. Curable defects 1757 193. Actions to recover damages for injuries due to defend- ant's negligence 1760 194. Actions to recover loss under fire insurance policies.... 1762 195. Formal issue lacking 1764 196. One good count 1764 197. Pleadings considered amend- ed 1764 198. Liberal construction 1764 199. Judgment by confession 1765 200. Aider by subsequent plead- ings 1765 201. Defendant's pleadings 1766 202. Incurable defect 1767 203. Valid objection by demurrer not cured by verdict 1768 204. Judgment by 'default 1768 XX.— AMENDMENTS AND CHANGES. A. Amendments. I. In General. 1. Amendments liberally allowed — discretion of court 1771 2. Applicable to statutory as well as common-law ac- tions 1772 3. Amendments made as of course 1773 4. Right to amend, as affected by stipulation fixing issue 1775 5. Unavailing amendment 1776 6. Number of amendments al- lowable 1777 7. Leave to amend on sustaining demurrer or other objec- tion to pleading 1778 8. Objection to amendments, and waiver thereof 1780 9. Operation and effect of amendment 1782 II. Amendment of Claim. 10. Formal defects 1784 11. Parties; misnomer and mis- description 1785 12. — adding, striking out, or substituting 1787 13. — changing capacity 1794 14. — misdescription of capacity 1797 15. Mistakes of fact in statement of claim 1798 16. Jurisdictional defects 1800 xxxii page. 17. Adding essential allegations. 1802 18. Making more definite and cer- tain 1808 19. Adding new matter in sup- port of claim 1811 20. Enlarging extent of injury. . 1813 21. Changing essential allega- tions 1815 22. Changing ad damnum clause or prayer for relief 1819 23. Introduction of new cause of action 1823 24. Tests 1826 25. Various decisions 1827 26. Statute of limitations 1842 27. Verification 1844 28. Bill of particulars 1844 29. Matters arising pending suit 1845 30. Amendment of reply 1847 III. Time of Amendment; Complaint. 31. Amending plaintiff's pleading before trial 1849 32. — at the trial 1851 33. —after the trial 18.58 34. — laches 1862 35. — terms 1865 IV. Amendment of Defense. 36. Formal defects 186S 37. Parties 1868 38. Mistakes of fact in statement of defense 1869 39. Adding allegations essential to defense 1870 40. Making more definite and cer- tain 1870 41. Adding new defense 1871 42. Changing defense 1872 43. Effect of prior knowledge 1876 44. Statute ends upon its inter- pretation in respect to the nature or frame of the intended action, the court may refer to the process, and deem it controlling upon that ques- tion ii' a case othei-wise doubtful.* ^ It was so held in Cochran v. American Opera Co. 20 Abb. N. C. 114, 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 might come in and adopt it, but there was no direct allegation in the complaint thatj;hey 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 matters pleadable in abatement only, and cannot be taken advantage of on general demurrer to the declaration. Duvall v. Craig, 2 Wheat. 45, 4 L. ed. 180 ; Wilder V. McCormick, 2 Blatchf. 31, Fed. Gas. No. 17,650; Wilkinson v. Pom- eroy, 10 Blatchf. 524, Fed. Gas. No. 17,675. Where a bill alleged that defendant was of a certain county, but the sheriff" I. FOKM OF DEMUEEEE, 19 returned "not to be found," a demurrer based on the ground of want of Jurisdiction on account of nonresidence was properly overruled. The demurrer admitted that defendant was of such county, and the return of the sheriflF could not be considered on such an issue to the contrary. Swann v. Phoenix Iron & G. Co. 58 Ga, 199. That an action was or was not commenced within the prescribed limita- tion period may be determined from the face of the papers, so as to be subject to demurrer, if the date whtn the cause of action accrued is stated in the complaint, and the date of the service of summons appears upon the summons. Patterson v. Thompson, 90 Fed. 647. The court says: "The writ and the complaint must be read together, and what appears upon the complaint and the writ will, for this purpose, be deemed to appear on the face of the complaint." The admission of service indorsed upon the back of a complaint cansiot be refen-ed to, to sustain a demurrer to the pleading, based upon the stat- utes of limitation. Anderson v. Douglas County, 98 Wis. 393, 74 N. W. 109 (Citing Zaegel v. Kuster, 51 Wis. 31, 7 N. W. 781; Gage v. Way- land, 67 Wis. 566, 31 N. W. 108; Benedix v. German Ins. Co. 78 Wis. 77, 47 N. W. 176). ° AlEdavits filed in support of a motion to dismiss an appeal are not avail- able on demurrer. Northwester}) Iron Co. v. Central Trust Co. 90 Wis. 580, 63 N. W. 752, 64 N. W. 323. On demurrer to an answer in abatement as not alleging the nonresidence in the county of one of the defendants, an affidavit in attachment filed with the complaint on the ground of his nonresidence in the state can- not be considered to supply that allegation. Broiim v. Vnderhill, 4 Ind. App. 77, 30 N. E. 430. In determining upon general demurrer the legal sufficiency of an affidavit of illegality, the court should not consider the statement of an account between the mortgagee and mortgagor annexed to the mortgage, or con- tracts made between the parties at various times and annexed to the affidavit of illegality, but not referred to therein nor in any way made a part of it. A demurrer must be decided only upon -a, consideration of the pleadings, and cannot derive any aid from extrinsic evidence. Anderson v. Eilton & D. Lumler Go. 110 Ga. 263, 34 S. E. 365 (Citing Seibels v. Hodges, 65 Ga. 245; Constitution Pub. Co. v. Stegall, 97 Ga. 405, 24 S. E. 33 ; Augusta & S. R. Co. v. Larh, 97 Ga. 800, 25 S. E. 175 ) . • The defense that a claim on an alleged contract is for a penalty may be raised by demurrer, where it appears on the face of the contract, which is set out in haec verba as an exhibit, and made part of the declaration as a basis of the recovery. Goodyear Shoe MuQh. Go. v. Selz, S. <4 Co. 157 111. 186, 41 N. E. 625. A copy of a policy, expressly made a part of the petition in a suit thereon, may be considered as part thereof for the purpose of disposing of a general demurrer. Goldham v. American Casualty cG Secur. Go. 8 Ohio C. C. 620. As to Exhibits and Statutes Requiring Them, see chapter vii., post. 'The fact that the summons is for relief shows that the action must be 20 BEIEF ON PLEADINGS DEMUItKEE. treated as one in tort, where the complaint contains, in the same count, averments appropriate to an action for money had and received, and others appropriate to one in tort for the conversion of money. Kamur nee County v. Decker, 30 Wis. 624. 13. — facts necessarily implied by the existence of the pleadings. A fact which is necessarily implied by the mere existence of the pleadings before the court on a demurrer may be assumed by the court, for the purpose of determining tlie demurrer, as if it were formally al- leged. For instance, the fact that the party was living at the time of pleadins:;* or that a pajty pleading in his own favor a contract made by a third person has ratified the agency of the third person in making it;* 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 probable, cannot be thus noticed.* ' P'reeman v. Frank, 10 Abb. Pr. 370. ' In an action on a subscription for stock in the plaintiff coi-poratioii, a plea that the person who took the subscription as agent had no author- ity is insufficient on demurrer. "Walloer v. Mobile & 0. B. Co. 34 Miss. 245. The court says: "The act was adopted and ratified by the com- pany, as was fully shown by the act of bringing suit upon the subscrip- tion. After such act of ratification it would not have been within the Ijower of the company to disavow the contract and to deny that the plaintiff was entitled to all the privileges of a stockholder. 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." •The answer of a defendant in interpleader may be read to show that adverse claims are made. Ohervet v. Jones, 6 Madd. 207. See also Adverse Claims, chapter vil., §§ 80-82, post. ' Common practice. •Ploading by guardian is not an admission of the party's infancy, whero the appearance is by attorney. Com. v. Moore, 3 Pick. 194. The court says the guardian might have been appointed for some other reason than infancy. 14. Joint demurrer. A joint demurrer is not sustainable for one demurrant, unless sus- tainable for all.* Both defendants may join in a demurrer where the declaration is partly for what is no cause of action against either, and partly for what can be a cause of action against only one defendant^ I. i^OBM OF DEMUEEEE. 21 • A harsh technical rule, fit to allow a prejudiced demurrant to circumvent by amendment. See chapter n., § 10, post. Rogers v. Schulenburg, 111 Cal. 281, 43 Pae. 899; Hi/rshfeU v. Weill, 121 Cal. 13, 53 Pac. 402; May v. Jones, 88 Ga. 308, 15 L. R. A. 637, 14 S. E. 552; Soward v. Edwards, 89 Ga. 367, 15 S. E. 480; Phillips v. Eagadon, 12 How. Pr. 17; Wilkerson v. Rust, 57 Ind. 172; Holaman V. HiUen, 100 Ind. 338; Miller v. Bapp, 135 Ind. 614, 34 N. E. 981, 35 N. E. 693; Armstrong v. Dunn, 143 Ind. 433, 41 N. E. 540; Bradley V. Miller, 100 Iowa, 169, 69 N. W. 420; Goncelier v. Fwet, 4 Minn. 13, Gil. 1; Clark v. Lovering, 37 Minn. 120, 33 N. W. 776 (Citing Lemx V. Williams, 3 Minn. 151, Gil. 95) ; Palmer y. Banlc of Zumbrota, 65 Minn. 90, 67 N. W. 893; Dunn v. Gibson, 9 Neb. 513, 4 N. W. 244; People V. New York, 8 Abb. Pr. 7, 28 Barb. 240: Fish v. Ease, 59 How. Pr. 238; Oakley v. Tugwell, 33 Hun, 357 (Citing Nem York & 2V". E. B. Co. V. Schuyler, 17 N. Y. 592 ) ; Moore v. Charles E. Monell Co. 27 Misc. 235, 58 N. Y. Supp. 430; Dalrymple v. Security Loan & T. Go. 9 N. D, 306, 83 N. W. 245; Stiles v. Guthrie, 3 Okla. 26, 41 Pac. 383; Guy V. McDaniel, 51 S. C. 436, 29 S. E. 196; Stahn v. Catawba Mills, 53 S. C. 519, 31 S. E. 498; Walker v. Popper, 2 Utah, 96; Webster v. Tibbils, 19 Wis. 439; Willard v. Beas, 26 Wis. 540. Compare Ameri- can Button-Eole, Overseaming d Sewing Mach. Go. v. Gurnee, 44 Wis. 49; Mark Paine Lumber Co. v. Douglas County Im/prov. Co. 94 Wis. 322, 68 N. W. 1013. A joint demurrer by all the defendants is improper 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. Eldridge v. Bell, 12 How. Pr. 547. The joinder of improper parties as defendants is only available as a ground of demurrer by the defendants so improperly joined, and is not a ground for a joint demurrer. Brownson v. Gifford, 8 How. Pr. 389, 392 (Citing Story, Eq. PI. §§ 509, 544; Van Santvoord, PI. 384) ; Sweet V. Converse, 88 Mich. 1, 49 N. W. 899. Contra, Story, Eq. PI. § 445; Crane v. Deming, 7 Conn. 387, 394, in which a joint demurrer by husband and wife was overruled as to the husband and sustained as to the wife. A joint demurrer by several defendants to a bill may be sustained as to one and overruled as to the others. Lancaster v. Boberts, 144 111. 213, 33 N. E. 27. 'Kote V. Chicago & 1. C. B. Co. 70 111. App. 284. 15. Verification not required. Certificate. AiRdavit. Statutes which require that pleadings denying tlie execution of writ> teai instruments be verified do not apply to a demurrer, even though the objection raised on the demuri^r be that the execution of the in- strument did not on its face bind the party demumng.^ A demurrer should be disregarded when not supported by the cei-- 22 BRIEF ON PLEADIN'GS— DEMUBKEE. tificate of counsel and affidavit of defendant, required by an equity rule, to the effect that it is well founded in point of law and not inter- posed for delay.^ ^Biiohcock v. Buchanan, 105 U. S. 416, 26 L. ed. 1078. ' Preston v. Finley, 72 Fed. 850. But demurrers insufficient for the want of the required certificate and afli- davit may be considered as grounds of objection to granting a prelimi- nary injunction prayed for. Preston v. Finley, 72 Fed. 850. A demurrer lacking the affidavit of defendant and certificate of counsel required by Florida Rules of Practice is so fatally defective as. not to preclude the entry at the proper time of a decree pro confesso, for want of a plea, answer, or demurrer. Taylor v. Brown, oi Fla. 334, KJ So. 957. 16. Informality disregarded. Infftrmality in a demurrer does not render it error to sustain it, if the pleuding tO' which it is interposed is bad.^ ' "The most that can be said is that u. bad answ'er went out of the record upon a.n informal demurrer; or, in other words, that the court reached a coriect conclusion, in a manner not altogether formal." Mitchell, J., in Palmer v. Eayes, 112 Ind. 289, 13 N. E. 882. It is liarraless en'or to sustain a joint demurrer which challenges as an entirety a pleading, one of the paragraphs of which is insufficient, al- though the demurrer, by reason of its failure to separately challenge such paragraph, is so defective in form that it could have been disre- garded by the court. Goldsmith v. Chipps, 154 Ind. 28, 55 N. E. 85.'). A demurrer to a specified paragraph of a complaint on the ground that the facts therein stated do not constitute a ground of defense, although not proper in form, is properly sustained where such paragraph of the com- plaint is insufficient for want of facts. Oarrett v. Bissell ChiUed Plov Tror/,-.s, 154 Ind. :)19, 56 N. E. 667. As to Amending, sec chapter ii., § 10, post. 17. Exceptions. Exceptions to an answer are allegations in writing stating the par- ticular point or matter with respect to which the cimijlaiiiant consid- ers aji answer insufficient, scandalous, or impertinent.^ An exception tO' an answer must state tlie charge or charges in the bill to which the answer is addressed.^ If the exce^rtion rsiises only an issue of fact, it should not l>e sustained.^ An exception of no cause of action should be taken up separately from any other excep- tion.* A question of venue is properly raised by e>;ccption where the peti- I. I'OBM Oi' DEMUKEEE. 23 tion sliows upon its face that the court has no jurisdiction of tlie de- fendant.^ The proper practice is to raise the question of misjoinder of parties and causes of action appearing on the pleadings by excep- tion, and this matter should be determined in limine.^ 'Pecfc V. Osteen, 37 Fla. 427, 20 So. 549. An exception to a clause in an answer in a suit upon an alleged' contract for insurance, that defendant doth not admit any of the statements made in the bill in regard to negotiations between the agents repre- senting the complainant and the agents for the companies to be true, on the ground that it is not a. specific answer as to the truth or falsity of the allegation, is not proper, as exceptions lie to an insufficient dis- covery, or to scandal and impertinence only. Schultz v. PJi^nix Ins. Co. 77 Fed. 37.5. ■ Sohults! V. Phcnix Ins. Co. 77 Fed. 375. A pleader who excepts to an answer on the ground that it contains incon- sistent defenses must point them out. Peck v. Osteen, 37 Fla. 427, 20 So. 549. All exception that a petition is insufficient because it shows that the fail- ure of plaintiff, suing for delay in delivering a telegraph message, to see his mother before her death, arose from other causes with which the company was not connected, is indefinite, — especially where sucli other causes are not mentioned in the petition. Erie Teleg. & Teleph. Co. V. Grimes, 82 Tex. 89, 17 S. W. 831. 'Surges v. Vew York L. Ins. Co. (Tex. Civ. App.) 53 S. W. 602. * Sligo Iron Store Co. v. Blanks, 105 La. 063, 30 So. 115. 'Kansas City, P. & G. R. Co. v. Bermea Land & Lumber Co. (Tex. Civ. App.) 54 S. W. 324. • Bays V. Perkins, 22 Tex. Civ. App. 199, 54 S. W. 1071. 18, Oral or written; ore tenus. The rule requiring all pleadings to be in writing includes all deniur- rers to pleadings.^ At the hearing of a general demurrer to a complaint, defendant may orally assign any cause of demurrer, which is coextensive with that upon the record.^ A demurrer by a defendant ore tenios at tlie trial is not a waivei" of his formal demurrer, — especially if it presents any question which eould not be raised by the demurrer ore tenus.^ The objection that two causes of action have been improperly united cannot be raised by demurrer ore tenus.* ^ Smith V. Kibling, 97 Wis. 205, 72 N. W. 869: "The time was when aJl pleadings were oral. Then it was competent to demur ore tenus or orally. It is now familiar practice to raise the question of the suffi- 24 BRIEF ON PLEADINGS DEMUEEEK. ciency of the complaint at the trial by an objection to the reception of evidence under the complaint. This objection is something like the demurrer ore tenus of the ancient practice, and some of its conse- quences are the same; and because of this similarity it is, for conven- ience, called a demurrer ore tenus. But it is not a demurrer at all, within the contemplation of the statute." The sufficiency of the complaint cannot be challenged in Wisconsin by an oral demurrer. Ihid. Grounds of special demurrer to a petition are not good, unless set forth in writing and filed at the first term. Calhoun v. Mosley, 114 Ga. 641, 40 S. E. 714. It is error to entertain an oral demurrer to a verified plea in reconvention. Smith V. Tripis, 2 Tex. Civ. App. 267, 21 S. W. 722. ' Burh V. Muskegon Mach. & Foundry Co. 98 Mich. 614, 57 N. W. 804. A demurrer ore tenus for defect of parties plainly apparent on the face of the bill may be made in New Jersey under a general demurrer for want of equity. Johmes v. Cutwater, 55 N. J. Eq. 398, 36 Atl. 483. The defendant is entitled in equity to interpose a demurrer ore tenus on the hearing, where it goes to the whole bill, as did the written demur- rer, and so covers the same ground. Van Orden v. Van Orden (N. J. Eq.) 41 Atl. 671 (Citing Brinkerhoff v. Brown, 6 Johns. Ch. 139). Although W. Va. Code, chap. 125, § 29, does not require causes of demur- rer to be specified in a written demurrer, failure to assign causes gives the court a right to ask an assignment thereof, ore terms or written, or, upon overruling the demurrer, to state that none were assigned. Cook V. Dorsey, 38 W. Va. 196, 18 S. E. 468. 'Stem V. Benedict, 83 Wis. 603, 53 N. W. 891. * Phillips V. Carver, 99 Wis. 561, 75 N. W. 432. But on a demurrer ore tenus to a complaint which is clearly intended as- a complaint in equity, the defendant may avail himself of the objection that the plaintiff has an adequate remedy at law. Stein v. Benedict, 83 Wis. 603, 53 N. W. 891. Tlie defense of equitable estoppel may be considered by the Federal courts, when assigned ore tenus under a general demurrer. Post v. Beacon Vacuum Pump & Electrical Co. 32 C. C. A. 151, 50 U. S. App. 407, 80 Fed. 1. 19. Frivolous demurrer. A demurrer should not be overriTled as frivolous unless clearly bad upon its faoe.i If it presents questions fairly admitting debate, it is not frivolous.^ The court may, on motion, strike out a demurrer clearly frivolous or plainly intended for the sole purpose of delay.^ The objection that a demurrer to the declaration is frivolous is not •waived by joinder in demurrer.* I. FOEM OF DEMUEREE. 2& ^Hopper V. Ersley, 3 Misc. 340, 22 N. Y. Supp. 1050; Perry v. Reynolds, 40 Minn. 499, 42 N. W. 471. A demurrer to a complaint upon a boud giveu to discharge a mechanics'^ lien, on the ground that the complaint fails to state the amount of the bond, the person to whom it was made, the court in which judgment enforcing the lien was obtained, or that such judgment was duly ren- dered, is not so certainly bad upon its face that it should be overruled as frivolous. Hopper v. Ersley, 3 Misc. 340, 22 IST. Y. Supp. 1050. A demurrer is not frivolous where argument is required to show that it is bad; but it may be held so, notwithstanding argument is made, where a mere inspection will show its insuflficiency. Zimmele v. American Plaster Board Co. 50 N. Y. S. R. 756, 21 N. Y. Supp. 846. A demuner to a declaration by the assignee of an account from a firm which owns such account, on the sole ground that the names of the individual members of such firm are not stated, is frivolous, where the identity of the contract sued upon is plain upon the face of the papers. Wyokoff, S. & B. v. Bishop, 98 Mich. 352, 57 N. W. 170. A demurrer should not be struck out as frivolous unless it is manifest, without argument, from a mere inspection of the pleading, that there was no reasonable ground for interposing it. A complaint which does not appear, without argument, to state a. cause of action, although it may be sufficient to make a cause of action for nominal damages, is not such that a demurrer thereto can be struck out as frivolous. Olsen v. Cloquet Lumber Go. 61 Minn. 17, 63 N. W. 95. ' Gamphell v. Friedlander, 61 N. Y. S. R. 349, 29 N. Y. Supp. 790. The questions raised by a demurrer must be clearly without foundation, to justify the court in holding them frivolous. Wood v. Sidney Sash, Blind & Furniture Co. 80 Hun, 604, 31 >r. Y. Supp. 1135. 'Stanbery v. Baker, 55 N. J. Eq. 270, 37 Atl. 351. The inherent power of the New Jersey chancery court summarily to strike out on motion a demurrer which is clearly frivolous, or clearly in- tended for the sole purpose of delay, will not be exercised in case of a demurrer accompanied by the statutory affidavit of defendant and the certificate of his counsel required by N. J. chancery act, § 27, unless the circumstances are such that complainant will be prejudiced by the delay necessary to bring the case on regularly for hearing, — especially if the case is one in which the defendant ought to be peimitted to answer, as provided by § 26, if the demurrer is overruled as frivolou* upon the argument. Ibid. • Wychoff 8. & B. v. Bishop, 98 Mich. 352, 57 JST. W. 170. 20. Demurrer in answer. A demnrreo" cannot be filed in Pennsylvania as a separate pleading,, but nmst be embodied in the answer.^ A demurrer may, in West Virginia, be incorporated in the an- 26 BKXEF OjS' pleadings DEaLUEREB. Defendants who have answered in full cannot include in tlie answer a. demurrer to all or parts of the bill.^ In ISTew York an objection which appears upon the face of tlie complaint cannot be raised by an- swer, but must be taken by demurrer.* ISTo such pleading as a "demuiTer by way of answer" is authorized in Wisconsin, and it in no way challenges the adequacy of the com- plaint."'' ' Mooney v. Snyder, 6 Northampton Co. Kep. 349, 7 Del. Co. Rep. 335. A defendant can set up failure of the plaintifi''s statement to show a legal cause of action, only by his affidavit of defense, which Will stand in the place of a formal demurrer, and must be disposed of before defendant is called to plead to the allegations of fact, under Pa. act May 25, 1887, abolishing the distinction between actions, and providing that defend- ant shall file a sufficient affidavit to the whole or pai-t of plaintiff's claim, and that nonassumpsit, payment, and set-off, and the statute of limitations shall be the only pleas. linbinson v. Montgomery, 2 Pa. Dist. R. 661, 24 Pittsb. L. J. N. S. 194, 14 Pa. Co. Ct. 106, 11 Lane. L. Rev. 242, 326. 'Cook V. Dorsey, 38 W. Va. 196, 18 S. E. 468. Defendants in an action to remove a cloud from title and to obtain posses- sion of land may raise the objection that the statute of limtations has run against plaintiff's claim, in their answer, instead of by special de- murrer to the complaint, in accordance with 2 Hill's Anno. Codes & Statutes (Wash.) §§ 189, 190, where the defect does not clearly appear on the face of the complaint. Damon v. Leque, 17 Wash. 573, 50 Pae. 485. 'Bird V. Magowan (N. J. Eq.) 43 Atl. 278. * NeaUs v. American Tube & Iron Go. 76 Hun, 220, 27 N. Y. Supp. 733 (Cit- ing N. Y. Code C^v. Proc. §§ 498, 499) . ' Smith V. KibUng, 97 Wis. 205, 72 N. W. 869. 21. Demurrer; what will be treated as. A motion for the dissolution of a temporary injunction and the dis- missal of the complainant's bill for want of equity, based solely upon the alleged insufEciency of its allegations, is properly treated as a demurrer to the bill.^ The proper method of testing the legal suffi- ciency of a plea in equity is to set it down for argument, which is in effect a demurrer to the plea.^ An affidavit of defense in a suit on a promissory note, which avers that the statement sets fortli no lia- bility on the part of the defendant tO' pay the claim of plaintifi', is in the nature of a demurrer.^ An allegation contained in an answer will not be construed to con- -stitute a demurrer, when the pleading is designated as an answer, and I. FOllM OF DKMUEEEE. 27 the matter in it is not required to be raised by deniurrer, and is not Avaived by answeiring.* It is error to treat as a demurrer a special pica to the jurisdiction.^ ' Smith V. Kochersperger, 173 111. 201, 50 N. E. 187. ' Spaulding v. Ellsworth, 39 Fla. 76, 21 So. 812. ^ Tradesmen's Bank v. Johnson, 1 Pa. Dist. R. 445, 12 Pa. Co. Ct. 6. A suggestion contained in an affidavit of defense, that the statement of claim is not sufficient in law to entitle the plaintiff to judgment, is in the nature of a demurrer, and is not equivalent to a bill of particulars. Sparks v. Flaccus Glass Co. 16 Pa. Super. Ct. 119. * Camp V. Bedell, 52 Hun, 63, 5 N. Y. Supp. 63. 'Gaines v. Bankers' Alliance, 113 Ga. 1138, 39 S. E. 502. "22. Time to demur. After joinder of issue a defendant may he permitted to witlidraw his plea for the purpose of demurring specially.^ And where defendants have been permitted to amend their answer by setting up a new and independent defense, plaintiff may properly file a demurrer to the amendment, though the time to file a demurrer to the original answer has expired.^ But a defendant who has filed an affidavit of defense tO' the merits, Avhich has been sustained as sufficient on appeal, and the record re- turned with a procedendo J cannot thereafter demur to plaintiff's state- ment^ An answer may be demurred to after service by the plaintiff of no- tice of trial, in the absence of any provision limiting the time for S€irvice of a. demun-er.* Special exceptions to the petition will not be considered when first made after the lajDse of a term of court after ■defendant answers, — especially where no action thereon is invoked until after both parties have announced ready for trial. ^ An order overruling a demuri-er to an insufficient declaration may be subse- quently set aside on the trial and the demurrer sustained, eiven after the opening statement to the jury.^ A demurrer cannot be interposed after the expiration of the time fixed by statute: and after the adverse party has filed a motion for judgment on the pleadings.^ ^MacFarla/ne v. Garrett, 3 Penn. (Del.) 36, 49 Atl. 175. 'Iseniurger v. Hotel Reynolds Go. 177 Mass. 455, 59 N. E. 120. ' Heller v. Boyal Ins. Co. 151 Pa. 101, 25 Atl. 83. ' Brassington v. Rohrs, 1 Misc. 12, 20 N. Y. Supp. 659. 28 BEIEK 01^^ PLEADINGS DEMURKEK. 'Missottri, K. & T. R. Go. v. Doss (Tex. Civ. App.) 36 S. W. 497. • Russell V. Louisville & N. R. Co. 93 Va. 322, 25 S. E. 99. ^ Rhoads v. Gatlin, 2 Colo. App. 96, 29 Pac. 1019. A special demurrer to a plea which substantially and in general tenns sets forth the defense of accord and satisfaction, on the gromid that it does not with sufficient clearness set forth such defense, is properly over- ruled where it appears that the demurrer was not filed within the time required by Gla. Civil Code, § 5047. A. P. Brantley Go. v. Lee, 106 Ga. 313, 32 S. E. 101. 23. Filing demurrer. See also Time to Demur, § 22, supra. A demurreir shown by the journal to have been argued by counsel and decided by the court, and which bears the fHo mark of the clerk, will be treated as duly filed, although the printed record fails to show- that it was filed.-' It is not an abuse of discretion to permit a defendant, on payment of costs and before entry of default has been made, to file his demur- rer, which, by inadvertence or mistake of his counsel, he had omitted to file.2 By filing a demurrer to a petition, which in its first paragraph is a general demurrer, and in others a special demurrer to the jurisdic- tion, the defendant waives the question of jurisdiction.* ' Myers v. Jenkins, 63 Ohio St. 101, 37 N. E. 1089. ^ Davis V. South Gmrolina & G. R. Go. 107 Ga. 420, 33 S. E. 437. It is not error to refuse to allow a demurrer to be filed after the allowance of a fonnal amendment to the complaint introducing no new cause of action, and merely stating more fully what was alleged before. Garroll Gounty v. O'Connor, 137 Ind. 622, 35 N. E. 1006 (Citing Stanton v. Ken- rich, 138 Ind. 382, 35 N. E. 19). Nor can a demurrer be filed in the supreme court after the case has been certified to that court on a claim for jury trial, under a statute provid- ing that in any case so certified either party may file anich further pleas, legal or equitable, as he may see fit, within the period of ten days from the date of certification. Bates v. Oolvin,, 21 R. I. 57, 41 Atl. 1004. ' 8tanda/rd Furniture Go. v. Stanley, 21 Ky. L. Rep. 452, 51 S. W. 611. Filing a demurrer does not operate as a waiver of misjoinder both of causes of actions and of parties, under a code provision for striking out on mo- tion a cause of action improperly joined, and declaring that misjoinder of causes shall be deemed waived unless the objection be made by mo- tion. Faivre v. Gillman, 84 Iowa, 573, 51 N. W. 46. 24. Notice of hearing; hearing; waiver. In Colorado the trial court may, in its discretion, require or dis- pense with notice of the hearing of a demurrer in term time.^ I. FORM OH' DEMUJREEE. 29 A question raised by demurrer cannot be heard lay the judge while tiie case is under reference.^ It is irregular tO' act upon demurrers to pleadings after the case has been dismissed for Avant of parties.^ In Texas the court may in its discretion hear exceptions to the pe- tition before trying a plea of privilege which involves a question of fact* A motion to strike out an answer as sham and irrelevant is waived by the subsequent hearing and determination of a demurrer thereto.^ Failure to bring to a hearing a demurrer to the jurisdiction over the subject-matter of the action, based upon facts apparent on the face of the bill, amounts to a waiver of the right to be heard upon or to stand on the demurrei'.® ' Davis V. Pech, 12 Colo. App. 259, 55 Pae. 192. A demurrer is not a motion within Colo. Code, § 36, requiring notice to be given of the hearing of all motions except those made during the prog- ress of the trial; and notice of the hearing of a demurrer is not re- quired by the Code, unless the hearing is in vacation. Ibid. ' Cariee v. Spence, 24 S. C. 550. " Wadsworth v. Cardwell, 14 Tex. Civ. App. 359, 37 S. W. 367. * rryor v. Jolly, 91 Tex. 86, 40 S. W. 969. " Molman v. De Lin-River-Finley Go. 30 Or. 428, 47 Pac. 708. 'Murphy v. Lincoln, 63 Vt. 278, 22 Atl. 418. 25. Withdrawal or abandonment of demurrer. The filing of a demurrer toi certain paragraphs of an amended com- plaint is equivalent to a withdrawal of a demurrer filed to a prior amended complaint.^ Demurrers once filed cannot be withdravni Avitihout leave, which the court may grant or refuse in its discretion.^ The withdrawal of a demurrer cannot be compelled by the court.^ A demurrer mil be overruled pro format where the defendant ■either withdraws it or admits that it is not well taken.* Failure to reinterpose to an amended complaint the demurrer which was filed to the original is an abandonment of the demurrer.' ' New Albany v. Conger, 18 Ind. App. 230, 47 N. E. 852. = O'Reilly v. New York & N. E. B. Co. 16 E. I. 388, 5 L. R. A. 364, 6 L. R. A. 719, 17 Atl. 171, 906, 19 Ail. 244. In Terry v. Moore, 12 App. Div. 396, 42 N. Y. Supp. 51, defendant was per- mitted to withdraw her demurrer and serve an answer after an unsuc- cessful appeal from a judgment entered upon an order overruling the demurrer, upon condition that she pay all costs taxed, including an ex- 30 BEIEF ON PLEADINGS DEMUREEK. tra allowance, from service of demurrer to time leave was granted, with $10 costs to plaintiflf for opposing the motion, it appearing that the- answer pleaded a good defense and that defendant had had at least two previous opportunities to withdraw the demurrer. • Gammon v. Bunnell, 22 Utah, 421, 64 Pac. 958. Defendant cannot be required to withdraw a. demurrer to the complaint, by an order granted upon the argument of the demurrer and upon the statement in open court that the plaintiff had not intended to serve the complaint upon the demurring defendant. Kaulbach v. Magnus, 40 App. Div. 366, 57 N. Y. Supp. 985. 'Pelleyft v. Comer, 34 Or. 36, 54 Pac. 813. 'Browne v. MoUle, 122 Ala. 159, 25 So. 223. An amended answer takes the place of the previous answer, and a. demurrer incorporated in the original answer and not repeated in the amended answer is abandoned. Wilson v. Vich (Tex. Civ. App.) 51 S. W. 45. II.— EULES TUENING ON WHAT AEE THE PLEADINGS DEMUEEE]) TO. 1. The copy served conti-ols. 6. General allegation applicable to all 2. Original not considered after of several divisions. amendment. 7. Demurrer to whole of pleading. .3. Demurrer deemed addressed to 8. Demuner to part of pleading. amended pleading. 9. Effect of answering upon demurrer. 4. Decision on original. 10. Amending. 5. One count or defense not aided by another. 1. The copy served controls. Under the new procedure, in case of a discrepancy between the pleading on file and a copy served, the party on whom it was served may rely on the copy, and the party who served it cannot, as matter of right, object that the original differs.-' Otherwise, under the old practice.^ ' McCarron v. CaUll, 15 Abb. >f. C. 282, 1 How. Pr. N. S. 305 (motion to overrule demurrer as frivolous) ; Fishe v. Nolle, N. Y. Daily Reg. May 31, 1883 (demurrer to complaint). Both New York city court cases, in harmony with supreme couit practice. But the court may give leave to amend, or amend instanter. See also Clebical Eeeor, chapter v., § 8, post. Trowiridge v. Didier, 4 Duer, 448 ( question of variance at trial ) . A party to an action has a right to believe and rely that a paper or plead- ing served on him. is a copy of the original, where it so purports to be. Welsbach Commercial Co. v. Popper, .59 N. Y. Supp. 1010. The sufficiency of a pleading demurred to must be determined by reference to the copy served upon the demurring party, rather than by the copy on file. Hunt v. UilUr, 101 Wis. 583, 77 N. W. 874. 'Wood V. Bulhley, 13 Johns. 486 (question of variance at the trial). 2. Original not considered after amendment. On demurrer to an amended or substituted pleading, the court ean- 31 32 BUIEF ON PI.EAD1NGS ^DEMUEKEE. not notice the contents of the original pleading.^ Otherwise where an araendment is in tei'ras only .in addition.^ ^ Washer v. Bullitt County, 110 U. S. 558, 561, 28 L. ed. 249, 250, 4 Sup. Ct. Rep. 249; Tompkins v. Hollister, GO Mich. 470, 27 N. W. 651 (plea to original bill not noticed on demurrer to .amended bill). In State v. Simplcins, 77 Iowa, 676, 42 N. W. 516, Rotlirock, 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 contradict- oiy statements or the like, but on a demurrer to the substituted plead- ing, the two pleadings cannot be considered." Tl'e objection that a cause of action set forth in an amended complaint doe? not appear to have any connection with the cause of action set forth in the original complaint cannot be taken by demurrer to the amended complaint, where the latter does not show what appeared in the original complaint. Pottlcamp v. Buss (Cal.) 46 Pac. 169, Modified in banc in 46 Pac. 673. An amended declai-ation cannot be aided by the original declaration to which a general demurrer has been sustained, nor can it be made de- fective by anything contained therein. Foster v. Adler, 84 111. App. 654. An original petition is to be considered in connection with an amended and substituted petition filed as an amendment thereto, in determining whether such amended and substituted petition states facts sufficient to constitute a cause of action. Nagle v. Reutlinger, 19 Ky. L. Rep. 303, 40 S. W. 677. An amended complaint is not demurrable because the amendment is not signed by counsel, it consisting merely of a clause intended as a substi- tute for one in the original complaint, which, as amended, would pre- sent the signature of counsel. Payne v. Crawford (Ala.) 10 So. 911. ' In some Jurisdictions this is a question of intention. See Winter r. Quarles, 43 Ala. 692; Dunlap v. Robinson, 12 Ohio St. 530; Northern Bank v. Warsaw Deposit Bank, 11 Ky. L. Rep. 316, 11 S. W..16. 3. Demurrer deemed addressed to amended pleading, A demurrer seared after the pleading of the adversary has been amended may be deemed to be addressed to the amended pleading, since it could not be to the original ; and the omission to state that the amended pleading was tlie one demurred to may be disregarded.-' 'Whitmg V. Doo6, 152 Ind. 157, 52 N. E. 759; Huntington County v. Bu- chanan, 21 Ind. App. 178, 51 N. E. 939 ; McNab v. Styles, Lawrence, J., N. Y. Sup. Ct. 1881. For Other Cases, see chapter i., § 3, ante. A demurrer which refers to the pleading demurred to as the "complaint," and which was filed after the amendment of the original complaint. vriU II. TJIE PLEADINGS DEMUEKED TO. 33 be deemed to be addressed to the amended complaint. Whiting v. Dooh, 152 Ind. 157, 52 N. E. 759. That an amended answer is not called an "amended" answer, in a. demurrer thereto, does not render the demurrer defective. Long v. Johnson, 15 Ind. App. 498, 44 N. E. 552. A demiiner to the declaration, filed after an amendment adding a second count to the original declaration, to which a general answer was filed, must be restricted to the added count, or to some impropriety in joining the two counts in the same declaration. Lynn Safe Deposit <& T. Co. v. Andrews, 180 Mass. 527, 62 N. E. 1061. 4. Decision on original. A det-'ision overruling a demurrer to an original pleading does not pi-eelude a demurrer tO' an ajnaended pleading.^ Otherwise, if the second pleading raises precisely the same ques- tion of law which Avas disposed of by the appellate court upon the for- mer pleading.^ 'Marie v. Garrison, 13 Abb. N. C. 210, 215, 321; Hauselt v. Fine, 18 Abb. N. C. 142; Post V. Pearson, 108 U. S. 418, 27 L. ed. 774, 2 Sup. Ct. Rep. 799, Affirming 2 Dak. 220, 9 N. W. 684. An amendment of a petition after a demurrer thereto has been overruled and the defendants have answered does not reopen the case to another demurrer unless it materially changes or varies the cause of action as set forth in the petition. Gihson v. Thornton, 107 Ga. 545, 33 S. E. 895. » In Ghaifln v. Taylor, 116 U. S. 567, 570, 29 L. ed. 727, 728, 6 Sup. Ct. Rep. 618, Matthews, J., said: "ITie 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 ease. The proper action of the . . . court . . . [below] upon the man- date of this court would have been- to enter judgment on the pleadings in favor of the plaintiff, and proceed to an assessment of his damages." No demurrer to a so-called "amended complaint" will be heard where it is identical in every respect with the original complaint to which the de- murrer has been sustained. Ellis v. Indianapolis, 148 Ind. 70, 47 N. E. 218. A party waives the right to claim that an amendment made after a de- murrer was sustained is but a restatement of the petition, when, in- stead of moving to strike the amendment, he demurs a second time. Kololiska v. Swehla, 107 Iowa, 124, 77 N. W. 576. ■5. One count or defense not aided by another. A demurrable defect in one separate cause of action^ or defense^ cannot be aided by allegations contained in another cause of action or defense which is separately stated in the same pleading, unless ex- Abb. Pl. Vol. I.— 3. 34: BEIEF ON PLEADINGS ^DEMUKRER., pressly connected therewith by appropriate reference; for which pur- pose any words indicating intent to make one division of the pleading complete by reference to a specified matter stated in another is enough.* '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, inde- pendent of what is gone. Hopkins v. Contra Costa County, 106 Cal. 560, 39 Pac. 933 (Citing Haskell V. Haskell, 54 Cal. 262; Green v. CUfford, 94 Cal. 49, 29 Pao. 331; Head- ing V. Reading, 96 Cal. 4, 30 Pac. 803) ; Farris v. Jones, 112 Ind. 498, 14 N. E. 484 (Citing Smith v. Little, 67 Ind. 549; Entsminger v. Jack- son, 73 Ind. 144; Lynn v. Grim, 96 Ind. 89; Ludlow v. Ludlow, 109 Ind. 199, 9 N. E. 769) ; Baxter v. McDonnell, 18 App. Div. 235, 45 N. Y. Supp. 765 (Citing Reiners v. Brandhorst, 59 How. Pr. 91; Simmons v. FaircUld, 42 Barb. 404; Woodiury v. Deloss, 65 Barb. 501) ; Booz v. Cleveland School-Furniture Co. 45 App. Div. 593, 61 N. Y. Supp. 407 ; Victory Webb Printing & Folding Mach. Mfg. Co. v. Beeoher, 55 How. Pr. 193 ; Anderson v. Speers, 58 How. Pr. 68. S. P. at common law In Hughes v. Moore, 7 Cranch, 176, 3 L. ed. 307, which holds 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 declaration. The mere failure of a complaint to state when the action was commenced does not go to the cause of action, and is not a "defect" within the rule that, upon demurrer to a complaint for insufficiency, all the facts con- stituting the cause of action must appear upon the face of the com- plaint, and the court will not examine the record to find facts to help out a defective complaint. Welsh v. Argyle, 85 Wis. 307, 55 >f. W. 412. 'Jones V. State use of TovMship 16-, 100 Ala. 209, 14 So. 115 (Citing Pope V. Welsh, 18 Ala. 631 ; Clements v. CHbbs, 19 Ala. 241 ; Wright v. Lind- say , 20 Ala. 428) ; Davis' Sons v. Robinson, 67 Iowa, 355, 25 IST. W. 280; Alterman v. Parfitt (N. Y. City Ct.) N. Y. Daily Reg. June 28, 1884; Lansing v. Thompson, 8 App. Div. 54, 40 N. Y. Supp. 425; Craft v. Brandow, 24 Misc. 306, 52 N. Y. Supp. 1078 (Citing Douglass v. Phemx Ins. Go. 138 N. Y. 209, 20 L. R. A. 110, 33 N. E. 938) ; Harman v. Har- mon, 54 S. C. 100, 31 S. E. 881. In Catlin v. Pedriok, 17 Wis. 88, Dixon, J., says: The demurrer to the second paragraph of answer was properly sustained, and the evidence under the third properly excluded. The mistake of the pleader was in separating them so as to make two defenses out of matter which con- stituted but one. Together, they would have made out a counterclaim, and let in the proofs; but apart, neither was sufficient to permit any ev- idence to be received under it. PlaintiflF's attorney should have asked leave to amend by striking out the numerals which distinguished them as separate answers, ajid blending them into one. II. THE PLEADINGS DEMUKEED TO. 35 Nor can the deficiency of an affidavit or defense, obvious on its face, be sup- plied by the history of the case or the argument of counsel. Jolmston V. Mann, 9 Pa. Super. Ct. 251. •An allegation of citizenship in the first count shows jurisdiction as to other counts referring to it. Jones v. Beaton, 1 McLean, 317, Fed. Cas. No. 7,468. The allegations of a count adopted by appropriate averments as part of an- other need not be formally repeated. Hutson v. King, 95 Ga. 271, 22 S. E. 615. An exhibit filed may be referred to in each division of the pleading as a part thereof. Boohstedler v. Hochstedler, 108 Ind. 506, 9 N. E. 467. It is a suflicient reference where, in an action on fire insurance, the first count describes the property as belonging to a designated person, and the second count refers to it as the property thereinbefore set forth. Velie V. THewwrh City Ins. Co. 23 N. Y. Week. Dig. 456. An allegation in a later count that the indebtedness therein alleged was "for the same respective consideration in the last preceding count of this declaration set forth" is a sufficient reference. Freeland v. UeCul- lougTi, 1 Denio, 414, 43 Am. Dec. 685. The words "as above stated" are held a sufficient reference, in Woodhury v. Deloss, 65 Barb. 501. A separate defense may contain all the requisite allegations within itself to make it a perfect counterclaim, 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 counterclaim as if written at length therein. So held where a demun'er to a counterclaim 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 coun- terclaim." Code Civ. Proc. § 495. Cragin v. Lovell, 88 N. Y. 258, 2 N. Y. Civ. Proc. Eep. (Browne), 128, Reversing Gragin v. Quitman, 22 Hun, 101. 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 in- consistency exists between the two counts, the allegations of the second must be adopted as containing the statement intended to be relied on by the pleader. Bogardus v. New York L. Ins. Co. 101 N. Y. 328, 4 N. E. 522. 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 particulars ia filed with it. Dorr v. Mc- Kinney, 9 Allen, 359. If the second count is not good without aid of the reference to the first by 36 BEIEF Olf PLEADINGS DEMUEEEE. the phrase "as aforesaid," it is proper to refer to the first for the pur- pose of ascertaining time and place, etc., and make the second count good in that way, the first count being a good one. Beckwith v. Mollo- han, 2 W. Va. 477. Contra, Potter v. Ewrnest, 45 Ind, 41C. In an action on a promissory note, a paragiaph of an answer setting up a collateral agreement going to a partial failure of consideration, which, for the purpose of showing the consideration, refers to and adopts a former paragraph, is bad on de- murrer. The facts could only become a part of the paragi-aph by set- ting them out by averment. Compare with Stewart v. Balderston, 10 Kan. 131, which holds that al- though the same event can be stated once for all in the same pleading if it be subsequently properly referred to, yet one general statement can- not 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 def- inite has been interposed and o\crruled. 6. General allegation applicable to all of several divisions. A general allegation not included exclusively in one separate cause of action or defense, but so stated that, from its position as introduc- tory to all, or otherwise, it apjiears applicable to all, is to be consid- ered in coiinection with each, though not exprcs.sly referred t-o there- ' As to corporate existence of a party, see West v. Eureka Improv. Go. 40 Minn. 394, 42 N. W. 87; Fisher v. Universal Coolcing Crock Go. N. Y. Daily Reg. April 26, 1887; Abbott, Anno. N. Y. Digest, 1888, PI. f 11. So also of the usual allegation of citizenship or residence, to give juris- diction to some courts, or of leave to svie in cases where that is requi- site. An averment of demand and refusal in one count suffices for any number of counts involving the same transaction, altliough not referred to in such counts. Bider v. Bobbins, 13 Mass. 284. ?or Cases Gontra, see last note. A count may be so considered in aid of others, even after it has been aban- doned. Jones V. Van Zandt, 5 McLean, 214, Fed. Gas. No. 7,505. 7. Demurrer to whole of pleading. A deuiiirrer to a complaint or answer, as a whole, for not stating facts suiRcient to constitute a cause of action or defense, cannot be sustained if there is more than one cause of action or defense stated, and any one is good.^ But a single demurrer, expressed to be to each of several causes of action or defenses, may be sustained as a demurrer to any one that is bad.2 II. THE PLEADIKOS DEMUEEED TO. 37 ^Dallas County v. MacKenzie, 94 U. S. 660, 24 L. ed. 182; Toiimsend v. Jemison, 7 How. 706, 12 L. ed. 880; Bolland v. Howard, 105 Ala. 538, 17 So. 35; Kansas City, M. & B. R. Go. v. Lackey, 114 Ala. 152, 21 So. 444 (Citing Weems v. Weems, 69 Ala. 104) ; Louisville & N. R. Go. v. Morgan, 114 Ala. 449, 22 So. 20; Lea v. Iron Belt Mercantile Co. 119 Ala. 271, 24 So. 28 (Citing Tillman v. Thomas, 87 Ala. 323, 6 So. 151; George v. Central R. & Bkg. Co. 101 Ala. 607, 14 So. 752) ; Griffiths v. Henderson, 49 Cal. 566; Lowe v. Burke, 79 Ga. 164, 3 S. E. 449; Bamer V. Morehead, 22 Ind. 354; Stout v. Turner, 102 Ind. 418, 26 N. E. 85 (Citing McGallister v. Mount, 73 Ind. 559); Plymouth v. Milner, 117 Ind. 324, 20 N. E. 235; Western V. Teleg. Go. v. Tojist (Ind.) 9 West. Eep. 76, 11 N. E. 16; Lincoln v. Bagsdale, 9 Ind. App. 555, 37 N. E. 25; Barter v. Parsons, 14 Ind. App. 331, 42 N. E. 1025; Bormey v. Bonney, 29 Iowa, 448; Wright v. Connor, 34 Iowa, 240; Holbert v. St. Louis, K. G. & N. B. Co. 38 Iowa, 315; Frank v. Magee, 49 La. Ann. 1250, 22 So. 739; Guniher v. Dranbauer, 86 Md. 1, 38 Atl. 33 (Citing Avirett v. State, 76 Md. 527, 25 Atl. 676, 987, and Wheeler v. State, 42 Md. 563) ; Missouri P. R. Co. v. McLiney, 32 Mo. App. 166; Hale v. Omaha Nat. Bank, 49 N. Y. 626; Swords v. Northern Light Oil Co. 17 Abb. N. C. 115; Seaver v. Hodgkin, 63 How. Pr. 128; Martin v. Mattison, 8 Abb. Pr. 3; Butler v. Wood, 10 How. Pr. 222; Newlery v. Garland, 31 Barb. 121; Jaques v. Morris, 2 E. D. Smith, 639; Cooper v. Glason, 1 N. Y. Code Rep. N. S. 347; Munnings v. Hopkins (N. J. L.) 43 Atl. 670; Strange v. Manning, 99 N. C. 165, 5 S. E. 900; Hurst v. Sawyer, 2 Olda. 470, 37 Pa. 817 ; Langley v. Metropolitan L. Ins. Go. 16 R. I. 21, 11 Atl. 174; Carson v. Cock, 50 Tex. 325; Grubb v. Burford, 98 Va. 553, 37 S. E. 4; Robrecht v. Marling, 29 W. Va. 765, 2 S. E. 827; Newlon v. ISeite, 31 W. Va. 483, 7 S. E. 411; Kearney Stone Works v. MoPherson, 5 Wyo. 178, 38 Pac. 920. Wright v. Smith, 81 Va. 777, applying same rule where a single count con- tains several matters which are divisible. Same rule at common law. Douglass v. Satterlee, 11 Johns. 16. A general demurrer to the whole of a pleading will be overruled if any of its counts or pleas are suflBcient to entitle the party pleading to part of the relief claimed. Knowles v. Baldwin, 125 Cal. 224, 57 Pac. 988 (Cit- ing Fleming v. Alleck, 67 Cal. 227, 7 Pac. 659) ; Jones v. Iverson, 131 Cal. 101, 63 Pac. 135; Florence v. Pattillo, 105 Ga. 577, 32 S. E. 642; Knapp, S. & Go. Go. v. Ross, 181 111. 392, 55 N. E. 127; Jacobs v. Postal Telcg. Cable Go. 76 Miss. 278, 24 So. 535; State Bd. of Edu. v. Mobile 6 0. R. Go. 71 Miss. 500, 14 So. 445 ; Van Housen v. Broehl, 59 Neb. 48, 80 N. W. 260; Astor v. Heller, 61 N. J. L. 78, 38 Atl. 819; Hackett v. Equitable Life Assur. Soc. 30 Misc. 523, 63 N. Y. Supp. 847; Hanenkratt V. Hamil, 10 Okla. 219, 61 Pac. 1050; Waggy v. Scott, 29 Or. 386, 45 Pac. 774 (Citing Ketchum v. State, 2 Or. 103; Toby v. Ferguson, 3 Or. 27; Simpson v. Prather, 5 Or. 86; Jackson v. Jackson, 17 Or. 110, 19 Pac. 847) ; Barbre v. Goodale, 28 Or. 465, 38 Pac. 67, 43 Pac. 378; Hall V. Calvert (Tenn. Ch. App.) 46 S. W. 1120; Overall v. Avant (Tenn. Ch. App.) 46 S. W. 1031; Gray v. Kemp, 88 Va. 201, 16 S. E. 225 (Cit- 38 BEIEI' ON PLEADINGS DEMUEEEK, ing Hollmgsworth v. MiUon, 8 Leigh, 50; Fcrrill v. Brewis, 25 Gratt. 766). A general demurrer to a whole bill brought to establish a trust in certain mules is properly overruled where the facts alleged, if true, would ren- der the defendants liable as constructive trustees for one of the mules. Smith V. Jeffreys (Miss.) 16 So. 377. The same rule prevails in the Federal courts. A general demurrer to several pleas is bad if any one constitutes a good bar to the action. United States v. Girault, 11 How. 22, 13 L. ed. 587; Whitenach v. Philadelphia & B. R. Co. 57 Fed. 901 (Citing Hudson v. Winslow Ticp. 35 N. J. L. 437 ) . A general demurrer is not good against a multifarious statement of a cause of action, if one branch of the allegation clearly covers a ground of lia- bility. Nashua Iron & Steel Co. v. Brush, 33 C. C. A. 456, 50 U. S. App. 461, 91 Fed. 213. The rule that a bill which is good in part and bad in part will not be wholly dismissed upon general demiirrer will not be applied to uphold a bill against a corporation, the main object of which is to recover its property, which is alleged to have been misappropriated by its officers, as to which the corporation would properly be complainant, merely be- cause other matters have been alleged as to which the corporation might properly be required to respond. Edwards v. Bay State Gas Co. 91 Fed. 942. A demurrer for uncertainty of description, to an entire complaint in eject- ment, must be overruled, where the complaint describes several parcels, and the description as to one or more of the parcels is suflScient. Bu- chanan V. Larkin, 116 Ala. 431, 22 So. 543 (Citing Louisville & N. U. Co. V. Hall, 91 Ala. 118, 8 So. 371; Flournoy v. Lyon, 70 Ala. 308; Ta- tum v. Tatum, 81 Ala. 388, 1 So. 195). Causes assigned in a demurrer to a whole bill as an entirety will be disre- garded where they go to a part only of the bill. Washington v. Soria, 73 Miss. 665, 19 So. 485. That a bill which sets up good grounds for divorce also asks for the can- celation of defendant's vested interest In a life insurance policy, which relief the court is without power to grant, does not render the bill sub- ject to a demurrer taken to the bill as a whole. Orego v. Grego, 78 Miss. 443, 28 So. 817. A demurrer against the entire bill, which seeks to recover funds alleged to be held by the defendant as guardian, and also seeks a discovery, is properly overruled if only good as to that part of the bill which seeks a discovery. MoNutt v. Roberts (Tenn. Ch. App.) Affirmed by Supreme Court, 48 S. W. 300. A Joint demurrer to all the paragraphs of a pleading should not be sus- tained if any of the paragraphs are good. Alabama Nat. Ba/nlc v. Hal- sey, 109 Ala. 196, 19 So. 522; Moore v. Heinehe, 119 Ala. 627, 24 So. 374; Roimid v. State, 152 Ind. 39, 51 N. E. 914, 52 N. E. 395; Tell City V. Bielefeld, 20 Ind. App. 1, 49 N. E. 1090; Storrs <£- H. Co. v. Fussel- II. THE PLEADINGS BEMUEKED TO. 39 nia)i, 23 Ind. App. 293, 55 N. E. 245; Kenney v. Wells, 23 Ind. App. 490, 55 N. E. 774. A demurrer to the effect that the complaint does not state facts sufficient to constitute a cause of action, and that neither paragraph thereof states facts sufficient to constitute a cause of action, is joint, and not several, and is properly overruled unless each of the paragraphs of the complaint is bad. Gilmore v. Wa/rd, 22 Ind. App. 106, 52 N. E. 810. Where a complaint contains several paragraphs, a demurrer "that the com- plaint does not state facts sufficient to constitute a cause of action" is a joint demurrer, and, if one of the paragraphs is good, the demurrer should be overruled. Green v. Eden, 24 Ind. App. 583, 56 N. E. 240. ' liennick v. Chandler, 59 Ind. 354; Sanford v. Lowenthall, 5 Ky. L. Rep. 206; Bohrecht v. Marling, 29 VV. Va. 765, 2 S. B. 827. A demurrer to several paragraphs of an answer "separately," that "neither of said paragi'aphs states facts sufficient to constitute a defense of said action," is several, not joint; and if any paragraph is bad, the demurrer should be sustained. Glass v. Murphy, 4 Ind. App. 530, 30 N. E. 1097, Rehearing overruled in 4 Ind. App. 536, 31 N. E. 545. So, a demurrer "severally to the second, third, and fourth paragraphs of separate answer" of defendants named, "for the reason that neither of said paragraphs contains sufficient facts in law to constitute a defense to plaintiff's complaint," sufficiently challenges each paragraph. Funk v. Bentohler, 134 Ind. 68, 33 N. E. 364, Rehearing denied in 134 Ind. 75, 33 N. E. 898. A specification which informs the court and party what is intended is enough, though informal. Indiana- B. & W. R. Co. v. Dailey, 110 Ind. 75, 10 N. E. 631, holding that a demurrer taken separately to specified paragraphs, for the reason that none of said paragraphs states facts stifficient, etc., is a good demurrer to each. A demurrer "severally to each paragraph of the complaint as amended, be- cause the same does not state facta," etc., is several, and the words "the same" must be regarded as referiing to each paragraph. Terre Bauie d L. R. Co. v. Sherwood, 132 Ind. 129, 17 L. R. A. 339, 31 N. E. 781. And a demurrer to "each" of several paragraphs of a complaint, referred to by number, "separately and severally," for the reason that neither of "said" paragraphs states facts sufficient to constitute a cause of action, challenges each paragraph severally. Baltimore & 0. 8. W. R. Co. v. Little, 149 Ind. 167, 48 N. E. 862. A demurrer on the ground that the court has no jurisdiction over the sub- ject of the action alleged in either paragraph of a complaint is not ob- jectionable as a joint demurrer. Chicago <& S. E. R. Co. v. Spencer, 23 Ind. App. 606, 55 N. E. 882. So, a demurrer "to each and every defense contained in the answer" is the same in effect as though plaintiff had demurred separately to each de- fense. Kennagh v. McGolgan, 21 N. Y. S. R. 326, 4 N. Y. Supp. 230. But a demurrer to each of several specified paragraphs of an answer, be- cause neither of them shows a good defense to the complaint, presents 40 BEIEE ON PLEADINGS DEMTJEEEK. no question as to the sufficiency of either paragraph. Barry, U. D,, Saw & Supply Co. v. Campbell, 13 Ind. App. 455, 41 N. E. 955. A demurrer the grounds of which apply only to a part of the bill should be taken to such particular part, and not directed against the bill as a whole. Moore v. Alabama Nat. Bank, 120 Ala. 89, 23 So. 831. The proper procedure where there are several counts in the complaint, and one or more is insufficient, is to demur to each of such counts sepa- rately. Palmer v. Breed (Ariz.) 43 Pac. 219. A demurrer to the whole bill, and also specifically to the several claims set out therein, should, where part only of the claims are bad, be sustained as to them, and be overruled as to the residue, with a. rule to answer as to such residue. Gay v. Skeen, 36 W. Va. 582, 15 S. E. 6i (Citing Gi- ant Poicder Co. v. California Poioder Works, 98 U. S. 126, 25 L. ed. 77 ; Castleman v. Veitch, 3 Eand [Va.] 598). 8. Demurrer to part of pleading. A dcmuri-er lies only to a whole pleading or to a single cause of ac- tion or defense.-' But different causes of action, or defenses, contained in the same pleading, although stated as one, iiaay be demurred to separately." 1 Sieenerson v. Great Northern B. Co. 64 Minn. 216, 66 N. W. 723. A demurrer does not lie to part of a complaint, unless the suit is one upon it bond, assig-ning breaches. Louisville d N. R. Co. v. Sine, 121 Ala. 234, 25 So. 857. A demurrer to a complaint, which goes only to a part of a cause of action stated therein, cannot be sustained. McCann v. Pennie, 100 Cal. 547, 35 Pac. 158. Defendant cannot demur to a part of a complaint containing but a single cause of action, and answer another portion thereof, under N. Y. Code Civ. Proc. § 492. McKesson v. Russian Co. 27 Misc. 96, 57 N. Y. Supp. 579. Allegations of a complaint in an action to recover damages for failure to deliver advertising matter, that by reason of defendant's negligence in failing to forward such matter, plaintiffs were compelled to print and distribute an additional advertising sheet, at an expense of, and to the plaintiff's further damage in, a specified sum, — have a beairing upon the special damages only, and do not constitute a separate cause of ac- tion, so as to authorize defendant to demur to a part thereof and answer the remainder. Ibid. Under S. C. Code, § 166, providing that a demurrer may be taken to the whole complaint, or to any of the alleged causes of action, a, demurrer cannot be pleaded to a part of a single cause of action. Lawson v. Get, 57 S. C. 502, 35 S. E. 759. A demurrer to one item or claim in a complaint in intervention will be ov- erruled where the facts alleged in such complaint are pleaded as one cause of action. Lyman County v. Slate, 11 S. D. 391, 78 N. W. 17. II. THE PLEADIKGS BEMUEEED TO. 41 A demurrer to parts of a petition is properly overruled wliere such parts are not detrimental to the defendant, and contain, at most, a mere un- necessary allegation. American Ins. Co. v. Austin, 18 Ky. L. Kep. 632, 37 S. W. 678. A demurrer does not lie to a single paragraph of a complaint unless it pur- ports to present u, complete cause of action. Lowman v. West, 8 Wash. 355, 36 Pac. 258. But a part of a declaration which does not contain a part of plaintiff's case, but merely what he proposed to offer in evidence, is demurrable. Ev)- art Mfg. Co. v. BaUiein Cycle-Chain Co. 91 Fed. 262. '^Y right v. Connor, 34 Iowa, 240; Harris v. Eldridge, 5 Abb. N. C. 278 j Wiles V. Suydam, 64 N. Y. 173. Defendant may demur to one, and answer another, of several causes of ac- tion in a commingled statement. Clarkson v. Mitchell, 3 E. D. Smith, 269. 9. Effect of answering upon demurrer. The court may treat the service of an answer or reply as a waiver of a demnrrer previously interposed by tlae same party ;^ but may in its discretion hear the cause on demurrer, notwithstanding the an- swer.^ A demurrer is properly overruled if an answer has been fir.st filed.^ A party may demur to one count of a petition and answer as to an- other.* A party who fails to abide by his demurrer, but joins issue after it is overruled, must be held to have waived his rights under the demur- rer.^ ^Keek y. McEldowney, 73 111. App. 159; Chicago Athletic Asso. v. Eddy Electric Mfg. Co. 77 111. App. 204; Betser v. Betser, 87 111. App. 399; Barley's Appeal, 119 Pa. 413, 13 Atl. 451. Where a defendant demurs to and answers the same part of a bill, he will, by the answer, be deemed to have waived the demuner as to the matters answered. Harding v. American Glucose Co. 182 111. 551, 55 IN. E. 577. A plea to the merits of a petition for mandamus waives a demurrer there- to. Chicago G. W. R. Go. v. People ex rel. Bennett, 179 111. 441, 53 N. E. 986, Affirming 79 III. App. .329. Defendants who have interposed a demurrer and received no';ice that \i rule to answer will be applied for waive their demurrer bj' failing to attend to answer the bill. Craivford v. Gooh, 55 111. App. 351. Pleading over and going to trial on the merits wai\'es a demurrer to the declaration. Peterson v. Foicler, 76 Jlich. 258, 43 N. W. 10. An objection raised on demurrer on the ground of an improper joinder of parties is waived by answering over. Wilson v. Hoiis, 73 Mo. App. 656 (Citing West v. MoMullen, 112 Mo. 405, 20 S. W. 628). An answer to the whole bill overrules a plea to part of the bill and a de- 42 BKXEF ON PLEADINGS? ^DEJrUHRKn. murrer to another part. Neiv York, 8. <& W. Coal Co. v. Spencer, 3 Pa. Dist. R. 694. An exception of prematurity of an action is not waived or merged in an answer, by a consent to have it referred to be tri-d on the merits, where the answer filed is under reservation of the exception. Murray v. Spencer, 40 La. Ann. 452, 15 So. 25. "It is a rule of equity pleading that a defendant may demur to one part of a bill, plead to another, and disclaim as to another. But all these de- fenses must clearly refer to separate and distinct parts of the bill, for the defendant cannot plead to that part to which he has already de- murred, neitlier can he answer to any part to which he has either de- murred or pleaded; the demurrer demanding the judgment of the court whether he shall make answer, and the plea, whether he shall make any other answer than that contained in the plea. Nor can the defendant, by answer, claim what, by disclaimer, he has declared he has no right to. A plea or answer will, therefore, overrule a demurrer, and an an- swer, a plea." Ihid. An answer to an entire bill overrules a demurrer to the entire bill, — es- pecially where the answer sets up everything that is in the demurrer. But the defendant may demur to a part of the bill and answer as to the residue. Droop v. RiOenour, 9 App. D. C. 95. A party who answers to the whole bill in equity at the same time he pleads and demurs thereto thereby o\crriiles the plea and demurrer, and they will be considered out of tlie ease. Frederick County v. Frederick, 88 Md. 654, 42 Atl. 218. A demurrer to a bill on the merits, incorporated in the answer, is not waived by the answer, under the Tennessee statute expressly providing that defendant need not demur except for want of jurisdiction of the subject-matter or person, but may have all the benefit thereof by relying thereon in his answer. Johnson v. Wingfield (Tenn. Ch. App.) 42 S. W. 203. A plea in abatement is unnecessary where the fact upon which it might be based appears on the face of the record; and it may properly be availed of by motion to dismiss, or by demurrer; nor does an answer filed after the demurrer is acted on overrule it. Brown v. Pace (Tenu. Ch. App.) 49 S. W. 355. The court may allow an answer filed after demurrer to be withdrawn, and the demuner will stand unafl'ected by the answer. Fogg v. Price, 145 Mass. 513, 14 N. E. 541. ' Broum. v. J. I. Case Plow Works, 9 Kan. App. 685, 59 Tac. 001 (Citing Stith V. Full i minder, 40 Kan. 73, 19 Pac. 314; Mccklin v. Deming, HI Ala. 159, 20 So. 507). The court may properly hear a. demurrer filed to a petition, although an answer indorsed "Filed subject to demurrer" was interposed, since the court might have allowed the answer to be ^\'it^ldrawn, and then allowed a demuiTer; and what was done was equivalent to that. Wilson v. Mc- Inti/re, 73 Iowa, 711, 36 N. W. 715. * Dotmhue v. Bragg, 49 Mo. App. 273. II. THE PI,EADIJSrGS DEMUEEED TO. 43 Defendant who has answered the original bill cannot demur in general to the entire bill as amended, but must confine his demurrer to the mat- ters introduced by amendment. Bond v. Permsylvcmia Co. 69 111. App. 507. A defendant cannot demur a second time to the whole bill, upon amend- ment made, when his answer has been put in, but must confine his de- murrer to the matter set up in the last amendment. Bond v. Pennsyl- vania Co. 171 111. 508, 49 N. E. 545, Eeversing 69 111. App. 507. A defendant is not precluded from demurring to an amended bill by an- swering the original bill, where the nature of the case made by the orig- inal has been changed by the amendment. Sanehe v. ElectroUbration Co. 4 App. D. C. 453. After answer and the commencement of the trial it is too late to raise a. question by demurrer to the petition. Lowe v. Webster, 19 Ivy. L. Rep. 1209, 43 S. W. 217. In a suit charging material fraud the respondent sliould answer, denying the fraud. He may then demur, if the demurrer be limited to other separate and distinct parts of the bill, setting up equitable grounds for relief disconnected from the fraud. Hentz v. Delta Bank, 76 Miss. 429, 24 So. 902. ■• Glark v. Ross, 96 Iowa, 402, 65 N. W. 340. It is competent, independent of Michigan supreme court rule 6, to file a dilatory plea or demurrer to one count of a declaration, and plead to the merits to another. Griffin v. Wattles, 119 Mich. 346, 78 N. W. 122. defendants cannot, at the same time, answer to the merits of, and demur to a petition for, mandfmus. Chicago G. W. R. Go. v. People, 79 111. App. 529, AfiSrmed in 179 111. 441, 53 N. E. 986. A defendant cannot both demur and plead to the same count at the same time, as the filing of a plea without first obtaining a decision upon his demurrer is a practical abandonment of the demurrer. Reid v. Provi- dence Journal Co. 20 R. I. 120, 37 Atl. 637 (Citing Moore v. Glover, 115 Ind. 372, 16 N. E. 163; Miller v. Maxwell, 16 Wend. 23). J3ut a court of equity may in its discretion permit defendant to demxir to a bill and interpose pleas to the merits at the same time. Alexander v. Alexander, 13 App. D. C. 334, 45 L. R. A. 806. * Snively v. Mjixsell, 97 111. App. 365; Degenhart v. Gent, 97 111. App. 145; Grand Lodge B. of L. F. v. Orrell, 97 111. App. 246 (Citing Joliet, A. & N. R. Co. V. Telie, 140 111. 59, 29 K E. 706). 10. Amending. The power of the court to amend, and to give a pai-ty lea,\e to amend, extends to demurrers. But it is very rarely invoked, demur- I'ers being usually regarded as dilatory.^ A demurrer to a bill cannot be defeated by treating the bill as amended in the respects in which it is defective.^ •The United States statute is U. S. Rev. Stat. § 954 (U. S. Comp. Stat. 44 BBIEF ON PLEADINGS — -DEMUEREE. 1901, p. 696). The New York statute is Code Civ. Proc. § 723. The better opinion is that tlie court has, also, an inherent power of amend- ment. Withdrawal allowed. Suclcley v. Slade, 5 Craneh C. C. 123, Fed. Cas. No. 13,587. Leave to amend a demurrer which did not go to the merits, refused in Of- futt V. Beatty, 1 Ci-anch C. C. 213, Fed. Cas. No. 10,448. Cooper, Eq. PI. 115; Mitford, Eq. PI. 214, note (1.), 217, note (x.) ; Baker V. Mellish, 11 Ves. Jr. 70; Dell v. Hale, 2 Younge & C. Ch. 1, 3 (amend- ment by narrowiag terms of demurrer). Taylor v. Holmes, 14 Fed. 498, 499, dictum per Dick, 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 chapter i., § 16, ante. A demurrer may be amended, but leave to do so should first be obtained. Dunbar v. Canyon County (Idaho) 49 Pac. 409. A demurrer to a complaint on a sheriff's bond for failure to levy an attach- ment, on the grounds of want of legal capacity to sue and that a cause of action is not stated, cannot be amended by adding the additional ground that the complaint shows that the cause of action, stated was barred by limitation, without the affidavit showing good cause therefor as required by Colo. Civ. Code, § 75, for any amendments except those particularly specified. People u^e of RcpuiUcan Pub. Co. v. Barton,, i Colo. App. 455, 36 Pac. 299. In this case it is said: "Where amend- ments asked are in the interests of justice, courts should be liberal in allowing them; but where the effect of an amendment is to interpose a purely legal obstruction to the enforcement of a just demand, the party making the application should be allowed only what the letter of the law gives him." The court ma.y in its discretion permit the filing of an amendatory demur- rer settinj; up the bar of the statute of limitations. UcClaine v. Fair- child, 23 Wash. 758, 63 Pac. 517. A defendant who, at the appearance term, files a general demurrer to the deelaraLion, cannot at the second term amend such general demui-rer by adding grounds of special demurrer thereto. Augusta v. Lomhard, 101 Ga. 724, 28 S. E. 994. A very large discretionary power is vested in the trial court by Idaho Rev. Stat. § 4229, the provisions of which are broad enough to authorize the couit to permit the withdrawal of an answer and cross-complaint and the filing of an amended demurrer to the complaint. Murphy v. Rus- sell (Idaho) 67 Pac. 421. 'M'lilual Reserve Fund Life Asso. v. Bradbury, 53 N. J. Eq. 643, 33 Atl. 060. III.— WHAT LAW GOVER^Tg ij^r the UlSTITED STATES COUETS. 1. state practice in United States 4. Use and form of demurrer, courts — general rule. 5. Time of hearing. ■2. — "as near as may be." -3. Statutory action given by common- law name. 1. State practice in United States courts — general rule. The state practice of the state in -svhich a United States circuit or Fed. 273, 281, which holds that on a bill in equity removed from a state court, plaintiflf cannot proceed at law and recover on allegations of facts constituting a legal cause of action. •Northern P. R. Co. v. Paine, 119 U. S. 561, 30 L. ed. 513, 7 Sup. Ct. Rep. 323; Whittenton Mfg. Co. v. Memphis & 0. River Packet Co. 19 Fed. 273; Hill v. Northern P. R. Co. 104 Fed. 754. ' United States v. Robeson, 9 Pet. 319, 9 L. ed. 142 (set-oflF in case arising exclusively under the laws of the United States) ; Mutual Bldg. Fund v. Bossieux, 1 Hughes, 386, Fed. Cas. No. 9,977 (statute cutting oflf de- fense for nonfiling within specified time ) . 'Nudd V. Burrows, 91 U. S. 426, 23 L. ed. 286 (mode of instructing jury). •A summons must be signed by the clerk according to U. S. Eev. Stat. § 911 (U. S. Comp. Stat. 1901, p. 683), notwithstanding the state statute allows it to be signed by an attorney. Dwight v. Merritt, 18 Blatchf. 305, 4 Fed. 614. Special proceedings given by act of Congress to restore lost record are ex- clusive of state practice. Turner v. Newman, 3 Biss. 307, Fed. Cas. No. 14,262. 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 i.i unwrit- ten usages of the state courts, if consistent with United States law and court rules. Fullertgn v. Bank of United States, 1 Pet. 604, 613, 7 L. ed. 280, 284. The circuit court may maintain the rules of pleading prescribed by the statutes of a state, or adopt the usual practice in the state, if not con- trary to an act of Congress. Bell v. Vicksbu7-g, 23 How. 443, 10 L. ed. 579. A special plea of the statute of limitations will not be stricken off by a Federal court, in view of U. S. Rev. Stat. § 4920 (U. S. Comp. Stat. 1901, p. 3394), permitting certain defenses to be specially pleaded, al- though by the statute of the state in which the court is sitting such plea is not allowed. Kulp v. Snyder, 94 Fed. 013. "U. S. Rev. Stat. § 914 (U. S. Comp. Stat. 1901, p. 684); Oshorne V. 48 BRIEF OK- PLEADINGS— DEM a i;1;KK. Detroit, 28 Fed. 385; Manville v. Battle Mountain 8nieUmg Co. 17 Fed. 126. The Code rule as to amending applies, as of course, in United States courts. Rosenhach v. Drey fuss, 1 Fed. 391. " Osborne v. Detroit, 28 Fed. 385. "2, — "as near as may be." The provision that the practice is to be "as near as may be" accord- ing to the state practice does not mean as near as possible, nor even as near as practicable. The indeiiniteness of this language gives the id Rapids & I. R. Go. 60 Mich. 124, 26 JSr. W. 855; Feeley v. Wurster, 25 Misc. 544, 54 N. Y. Supp. 1060; Eit- tinger v. Buffalo Traction Co. 160 N. Y. 377, 54 N". E. 1081: American Waterworks Co. v. State ex rel. Walker, 46 Neb. 194, 30 L. R. A. 447, €4 N. W. 711 (Citing Smith v. Henry County, 15 Iowa, 385; Branham V. San Jose, 24 Cal. 585) ; State ex rel. Weiss v. School Dist. No. S, Dist. Board, 76 Wis. 177, 7 L. R. A. 330, 44 N. W. 967; Aran v. Wau- sa-a, 98 Wis. 592, 40 L. R. A. 733, 74 N. W. 354 (Citing Pratt v. Un- coin County, 61 Wis. 62, 20 N. W. 726 ; Williams v. Williams, 63 Wis. 72, 53 Am. Rep. 253, 23 N. W. 110; Slone v. Oconomowoc, 71 Wis. 159, 36 N. W. 829; Brown v. Phillips, 71 Wis. 239, 36 N. W. 242; Palmer V. Hawes, 73 Wis. 50, 40 N. W. 676; Meggett v. Eau Glaire, 81 Wis. 329, 51 N. W. 566; Peake v. Buell, 90 Wis. 508, 63 N. W. 1053). A. conclusion of the pleader, or a judgment formed upon his own concep- tion of the case, will not, upon demurrer, be taken as true. Alter v. Cincinnati, 7 Ohio S. C. P. Dec. 368 (Citing Arenz v. Weir, 89 111. 25; Dubois V. Hutchinson, 40 Mich. 262; Ebersole v. First Nat. Bank, 36 111. App. 267; Saratoga v. Seabury, 11 Abb. N. C. 464; Kellogg v. Lar- kin, 3 Pinney (Wis.) 123, 56 Am. Dec. 164; Kinnier v. Kinnier, 45 , N. Y. 535, 6 Am. Rep. 132; Bonnell v. Griswold, 68 N. Y. 294; Buffalo Catholic Inst. v. Bitter, 87 N. Y. 250; Bogardus v. New York L. Ins. Go. 101 N. Y. 328, 4 N. E. 522). A conclusion of the pleader that the court of a foreign state had jurisdic- tion of a suit in which the claim sued on by the plaintiff was attached by his creditors in such state is not admitted by a demurrer. Douglas v. Phenix Ins. Co. 44 N. Y. S. R. 237, 18 N. Y. Supp. 259. But in an action brought in a state court upon a judgment rendered in 62 BEIEF ON PLEADINGS DEMURKEE. another state, an allegation as to the legal effect of the judgment in- that state is admitted by demuner. Uanley v. DoHOf/hiic, 116 U. S. 1, 29 L. ed. 535, 6 Sup. Ct. Eep. 242. And an averment that, under the laws of the stats in which an action is brought for wrongful death, plaintiff, as administrator of the deceased, has the right to commence the action for the benefit of the next of kin, is not an allegation of fact which is admitted by deniurrei". Davidow V. Pennsylvania R. Co. 85 Fed. 943. An allegation that it was "illegal and false" is not admitted on deraurrei'. Read v. Yeager, 104 Ind. 195, 3 N. E. 866. An averment in a complaint to enjoin enforcement of a judgment, that the judgment is void, is a conclusion of law and hence is not admitted by a demurrer. Bush v. O'Brien,, 47 App. Div. 581, 62 N. Y. Supp. 685 (Citing Talcott v. Buffalo, 125 N. Y. 280, 26 N. E. 263; Starbuck v. Farmers' Loan & T. Co. 28 App. Div. 308, 51 N. Y. Supp. 8). Nor is an allegation in a partition suit, brought by heirs at law, that a will, under a devise in which the testator's widow claims, is void, ad- mitted on demurrer. Garvey v. Union Trust Co. 29 App. Div. 513, 52 N. Y. Supp. 260. An allegation in the complaint, that plaintiff had no adequate remedy at law to establish her claim, is not admitted by a. demurrer, as it is a mere conclusion, of the pleader. Starbuck v. Farmers' Loan & T. Co. 28 App. Div. 308, 51 N. Y. Supp. 8. Since the state's acquiescence in or approval of the indorsement of notes, taken for convict hire, by the superintendent of the penitentiary, could only be manifested by an act of the general assembly, a complaint alleg- ing the government's acquiescence in and approval of such indorse- ment states a mere conclusion of law not admitted by demurrer. Car- olina Nat. Bank v. State, 60 S. C. 465, 38 S. E. 629. So, in a complaint against town authorities for trespass in talcing lands for an extension of the town waterworks, alleged not to have been done in compliance with the statutory requirements, an averment that the town had taken, before the taking complained of, all the lanJ that it was authorized to take, is a conclusion of law not admitted by demur- rer. Lynch v. Forbes, 161 Mass. 302, 37 N. E. 437. And a demurrer to a defense in an action by a city to recover the amount which came into the hands of defendant as an officer, and for which he failed to account, does not admit the allegations thereof with refer- ence to the duty of the city to furnish defendant with a safe place in which to keep the money, further than such duty may have been im- posed upon the city by its charter. Johnstown v. Rodgers, 20 Misc. 262, 45 N. Y. Supp. 661. An allegation that by means of a contract w)iich is set fortli, it became the duty of the defendant to perform certain acts, is bad on demurrer if the complaint does not state the facts necessary to show the duty. Buffalo V. Eolloway, 7 N. Y. 493, 57 Am. Doc 550. A demurrer to a petition does not admit an averment of the petition that IV. KIND OF ALLEGATIONS ADMITTED. 63' a municipal ordinance was passed without warrant of law. Grosdale V. CyntUana, 21 Ky. L. Rep. 36, 50 S. W. 977. An allegation in a. complaint that a village had no power to pass a cer- tain ordinance is purely an allegation of law, and is not within the general rule that all the allegations of a pleading are deemed to be admitted for the purposes of a demurrer. Lechner v. 'Newwrh, 19 Misc. 452, 44 N. Y. Supp. 556. An allegation in a complaint, that "certain rules of order of the common council were and have been in force," is a legal conclusion, and is not admitted by a demurrer. Armatage v. Fisher, 74 Hun, 167, 26 N. Y. Supp. 364. Facts designed to show the invalidity of a statute are not to be talcen as true upon demurrer. State ex rel. McGaffery v. Aloe, 152 Mo. 466,. 47 L. R. A. 393, 54 S. W. 494. The court says : "A public law is not the property of any man, and cannot be confessed away." In an action on an official bond, an allegation by sureties that, by statutes referred to, their liability was materially changed, is not admitted by demurrer. Gompher v. People, 12 111. 290. An allegation in an answer to a, co«nplaint to foreclose a mechanics' lien, that the filing of the complaint is not sufficient to iix a, lien, is a, mere conclusion of law as to facts disclosed by the record, and is not ad- mitted by a demurrer. Wood v. King Mfg. Go. 57 Ark. 284, 21 S. W. 471. In an action to recover a horse from a bailee, a demurrer to the answer, which admitted plaintiff's property, but insisted on defendant's right to retain the animal until his charges for the care of it were paid, does not admit the lien. Mauney v. Ingra/in, 78 N. C. 96. Mere allegations of the effect and operation of the charter or by-laws of a corporation are not facts that are admitted by a demurrer. Glark v. Mutual Reserve Fund Life Asso. 14 App. D. C. 154, 43 L. R. A. 390. An allegation in a complaint, that the tender of resignations by directors of a corporation and acceptance thereof were pretenses, is not admitted by a demurrer, as such allegations are mere conclusions. Buckley v. Harrison, 10 Misc. 683, 31 N. Y. Supp. 999. In a bill to redeem, an allegation after setting forth the facts of the trans- action, that the deed was a mortgage, is a conclusion not admitted by demurrer. Greig v. Russell, 115 111. 483, 4 N. E. 780. In an ejectment suit, where 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 seised of the premises, had lawful title thereto, and was entitled to the posses- sion thereof, — it was held that, as the facts alleged did not show the plaintiff's legal title, the averment of the legal conclusion that he had title should be disregarded, and that the complaint was bad on demur- rer. Lawrence v. Wright, 2 Ihier, 673. Allegations in the complaint in an action to recover possession of real estate, that defendant is wrongfully in possession, and that plaintiff is. 64 BElEi' ON PLEADIiSraS DEMUREEE. entitled to the inimediate possession, are conclusions of law which will not be admitted by a demurrer. Tutt v. Port Royal S A. R. Co. 28 S. C. 388, 5 S. E. 831. In an action upon notes, special pleas alleging that they were given for the purchase price of lands sold by plaintiffs to one of the defendants, that the pufchaser was not put, and has never been, in possession, and is unable to recover possession, and that the plaintiff is unable to put him in possession, — in so far as they aver inability of the purchaser to take, and of the plaintiff to put him in, possession, state no facts, but mere conclusions of law which are not confessed by demurrer. Jones V. State use of Township 16, 100 Ala. 209, 14 So. 115. A demurrer to a bill alleging fraud in general terms, without specifically stating the facts, does not confess an allegation of fraud which is a mere conclusion of the pleader. Penny v. Jackson, 85 Ala. 67, 4 So. 720; McCreery v. Berney Nat. Bank, 116 Ala. 224, 22 So. 577 (Citing Flewellen v. Crane, S8 Ala. 629; Loucheim v. First Nat. Bank, 98 Ala. 524, 13 So. 374; Ft. Payne Furnace Go. v. Ft. Payne Goal & I. Co. 96 Ala. 476, 11 So. 439; McDonald v. Pearson, 114 Ala. 630, 21 So. 534). An averment that relators "filed a supersedeas bond, as required by law," is not admitted by a demurrer. State ex rel. Morrissey v. Ramsey, 50 ^eh. 166, 69 N. W. 758. The identity of the cause of action set up in an additional count with those contained in the original declaration is not admitted by demurrer to the replication to pleas of the statute of limitations filed to such addi- tional counts, although the latt.er alleged such identity, as such allega- tion is one of a pure conclusion of law. Fish v. Farwell, 160 111. 236, 43 N. E. 367. Tlie jurisdiction of the circuit court cannot be supported by averments, in a pt'lition for removal, that the parties reside in different states, with- out averring also that they are "citizens" of such states, although coupled with a subsequent allegation that the controversy is "between eiti/ens of different states," the latter being merely an unauthorized conclusion of law from the facts previously stated. Grace v. American Genl. Ins. Go. 109 U. S. 278, 27 L. ed. 932, 3 Sup. Ct. Rep. 207. An allegation in a complaint that a, person was a legally qualified elector and entitled to vote at a certain election states mere conclusions of law not admitted by demurrer. Brown v. Phillips, 71 Wis. 239, 36 N. W. 242. In a suit for specific performance, an allegation that one contract was an extension of another is not admitted. Stow v. Russell, 36 111. 18. "Demurrer admits all conclusions of law (whether stated or not) which follow from material facts well pleaded. Humbert v. Trinity Church, 24 Wend. 587. As to What are Conclusions of Law Within the Rule, see Pakticdlau Sub- .TEf.Ts OF Allegation, chapter vii., subd. fi. IMcre averments of a legal conclusion are not admitted by a demurrer un- less the facts set forth sustain the allegation. Gould v. Evansville & C. R. Co. 91 U. S. 526, 23 L. ed. 410; Dillon v. Barnard, 21 Wall. 430, 22 IV.- — KIND Olf ALLEGATIONS ADMITTED. 65 L. ed. 673 ; United States v. Ames, 99 U. S. 35, 25 h. ed. 295 ; PullmarOs Palace Car Co. v. Missoun P. R. Co. 115 U. S. 587, 29 L. ed. 490, 6 Sup. Ct. Rep. 194. 11. Construction of writing, statute, or pleading. Where the terms of a writing are pleaded, a demiirrer does not ad- mit the construction which tlie pleader puts upon them, nor the cor- rectness of inferences he draws from them.^ A demurrer does not admit that the construction of a statute set forth in the pleading demurred to is the correct one.^ Nor does it admit the correctness of the construction which the pleading excepted to places upon a former pleading.* ' Interstate Land Co. v. Ma be liberally construed. Overton v. Overton, 131 Mo. 559, 33 S. W. 1. An allegation in a complaint for conversion in fraudulently procuring a, chattel mortgagor to convey the mortgaged property to defendant, that the mortgagor sold and disposed of all the mortgaged chattels during the existence of the mortgage, cannot be fairly construed as meaning that he sold only his qualified limited property in the chattels, or sold them expressly subject to the encumbrance. Cone v. Ivimson, 4 Wyo. 203, 33 Pac. 31. 'Reno Oil Co. v. Culver, 33 Misc. 717, 68 N. Y. Supp. 303; Parks v. State Nat. Bank (Tex. Civ. App.) 34 S. W. 1044. A pleading will be given every reasonable intendment when challenged by 70 BEIEF ON PLEADINGS DEMUllREK. general demurrer. Ervnn v. Hayden (Tex. Civ. App.) 43 S. W. 610 (Citing Whetstone v. Coffey, 48 Tex. 271; Gulf, W. T. & P. R. Go. v. Uontier, 61 Tex. 123; Wynne v. State Nat. Bank, 82 Tex. 378, 17 S. W. 918; International & G. N. B. Go. v. Binzie, 82 Tex. 623, 18 S. W. 681). The general rule that on general demurrer every reasonable intendment will be indulged in favor of the sufficiency of the petition does not ap- ply where, in connection with the general demurrer, the court acted upon, and properly sustained, a special exception to the petition. Texas Water & Gas Go. v. Gleburne, 1 Tex. Civ. App. 580, 21 S. W. 393. See also eases under note 1. Allegations that plaintiff is the surviving wife of the payee of notes sued on, and as such is the owner and holder thereof, are sufficient, when called in question by a general demurrer only, to show the right of plaintiff to sue, as, under Tex. Rev. Stat. art. 2853, community prop- erty goes to a surviving wife in the absence of children, and upon a gen- eral demurrer every reasonable intendment must be indulged in favor of the petitioner. Fant v. Wickes, 10 Tex. Civ. App. 394, 32 S. W. 12C. An averment of an insurable interest in the plaintiff, in an action on a pol- icy of life insurance, as against a general demurrer, but not as against a special exception, may be supplied by reasonable intendment from an averment that the loss or damage occurred under circumstances and in a manner which rendered the defendant liable therefor. Northvpestern Wat. Ins. Go. v. Woodwa/rd, 18 Tex. Civ. App. 496, 45 S. W. 185. A plea in abatement is a. dilatory plea which is not regarded favorably by the courts, which will supply nothing by intendment or construction to make it more definite and certain. Rush v. Foos Mfg. Go. 20 Ind. App. 515, 51 N. E. 143. A pleading, clear enough according to reasonable intendment and constnir- tion, is sufficient on demurrer. Royce v. Moloney, 58 Vt. 437, 5 AH. 395, 397. This rule applies to all defenses. Lewis v. Barton, 106 N. Y. 70, 12 N. E. 437 (usury). 'Evans v. Gollier, 79 Ga. 315, 4 S. E. 264. An allegation of wilful negligence is not enough where wilful injury must be shown. Belt R. & Stockyard Go. v. Mann, 107 Ind. 89, 7 jST. E. 893. Wliile, 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 purpose of supplying fundamental requi- sites of a cause of action. Thus, a written instrument by which a testa- tor promises to pay to a specified person a sum of money "for her at- tention to my son" expresses no consideration, since it affords no pre- sumption that the services were rendered on request, or were beneficial. Spear v. Downing, 12 Abb. Pr. 437. If place is material, and the pleading is ambiguous in reference thereto, the presumption should be against the party whose pleading it is. Beach V. Bay State Go. 10 Abb. Pr. 71. The rule is that allegations which are consistent with there being no causa V. INTERPRETATION OF ALLEGATIONS. 71 of action are not to be deemed as tending to show a cause of action; hence, an allegation that defendant represented that he owned all the stock of a specified corporation, which company owned specified land, "having therein a large and valuable sawmill," is not an allegation that defendant represented that the land had such a mill, Schwenk v. Nay- lor, 17 Jones & S. 99. An answer to mandamus for the reassessment 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 intended to deny that the justice who is stated in the writ to have acted in the proceeding by is- suing the summons 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. Everj' 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 this kind, than he has made for himself." Judgment sustaining demurrer to reply to ansiwer reversed. People ex rel. Lefever v. Ulster County, 34 N. Y. 269. ■* In an action on notes, a general demurrer to a plea setting up usury in the original land contract and the subsequent giving of the notes should not be sustained, although it is not averred distinctly that the notes were for the same transaction. McGee v. Long, 83 Ga. 156, 9 S. E. 1107. The complaint in an action for injuries to a mill privilege by damming up the sti'eam sufficiently shows that plaintiff's mill is on the creek which was referred to in the complaint in describing the land on which the mill is situated, where it i» averred that defendant's mill is on the creek. A pleading is sufficient when tested by a demurrer, if the mate- rial facts are certainly, although argumentatively and inferentially, al- leged. Williamson v. Yingling, 93 Ind. 42. A complaint which avers that the plaintiflF advanced and loaned money to and for the use of defendants, and that the defendants "have refused to pay the plaintifif, though often requested so to do," makes it reasonably certain by inference that the sum advanced is due and unpaid. Wag- oner V. Wilson, 108 Ind. 210, 8 N. E. 925. In an action in equity to set aside a conveyance, accepted under a repre- sentation that the title was perfect, when in fact there was a "prior mortgage'' in favor of a third pei-son, the complaint is not demiujrable for failure to allege that the mortgage was recorded. Shank v. Teeple, 33 Iowa, 189. In an action for damages the question on demurrer was upon the sufficiency of the facts which might fairly be collected from the pleading consid- ered, together with whatever inferences might be drawn from them. MilUken v. Western U. Teleg. Co. 110 N. Y. 403, I L. R. A. 281, 18 N. K. 251, Reversing 21 Jones & S. Ill; Wall v. Bulger, 46 Hun, 346. The imperfect averment of the material fact is not cause for demurrer. 72 BEIEF ON PLEADINGS DEMUKEEB. Where the pleader's intent is apparent, but the phraseology is doubtful in effect, the remedy is by motion. Where, in foreclosure, plaintiff averred that the land in question was the only real estate owned in com- mon by defendants, instead of by the parties, it was held that the alle- gation was only assailable for uncertainty, since, if the allegation were true, the defendants could not hold other lands in common with the plaintiff. Moffatt v. McLaughlm, 13 Hun, 449. Compare Simmons v. Fairchild, 42 Barb. 404, where a count for the con- struction of a will, which assumed that it was the last will of the de- ceased, was held bad for not alleging that he was dead. Story says: "The rule of pleading, that every right is to be taken most strongly against the pleader, it was recently 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 regarded as fairly dedueible from this rule of pleading is that all language used in pleading is to be understood ac- cording to its natural import, in connection and with reference to the subject-matter; but that, in an exact equipoise, the construction should be against the pleader, and that no intendments are to be made in favor of the pleader's case which do not naturally result from the facts stated." Story, Eq. PI. § 452a, p. 413. ' Allegations of a petition the sufficiency of which is raised by an cbjeetioii to the introduction of any evidence under it will be construed liberally, for the purpose of sustaining it. Johnson v. Anderson, 60 Kan. 578, 57 Pac. 513. A declaration alleging 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 damages occasioned by breach of contract, — is not demurrable on the ground that the plaintiff sued as survivor, when the demand was in right of his wife, where the action was brought two years after the expiration of the lease, since it is the fair intendment that she died after the breach of the contract. If the words used in the pleading were susceptible of different meanings, that meaning must be adopted which would sustain the pleading. Pender v. Diclcen, 27 Miss. 252. An allegation in a, complaint that the "defendant refused and neglected to cut the plaintiff's wheat, as defendant had agreed and contracted," is sufficient to sustain a judgment for the full value of the crop, since the word "as," as here used, is equivalent to the word "which." KeUey v. Peterson, 9 Neb. 77, 2 N. W. 346. 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 negli- gence. Rathlurn v. Burlington & M. R. R. Co. 16 Neb. 441, 20 N. \A . 390. In Allen v. Patterson, 7 N. Y. 476, 57 Am. Dec. 542, the complaint stated in substance that defendant was indebted to plaintiffs in u, sum for goods sold and delivered, "and that there was now due them from the V. INTBEPEETATION OF AI-LEGATIONS. 73- defendant" a specified sum. Under the liberal construction required by the Code, the term "due" was considered as used to express the fact that the money sought to be recovered had become payable, or the timo when it was promised to be paid had elapsed. Where words employed are capable of different meanings, that is to be taken which will support the pleading. The court says: "A maxim in pleading, that everything shall be taken most strongly against the party pleading . . . must be received with some qualification, for the language of the pleading is to have a reasonable intendment and constniction ; and when a matter is capable of different meanings, that shall be taken which will support the declaration." It will be presuiued on demurrer to a complaint for failure to state a eausc- of action, that a. testator who devised and bequeathed his property to heirs and next of kin, in accordance with the laws of descent and dis- tribution, and who, on the same day, created a trust for the payment of his debts and funeral expenses, the residue to be divided equally among Jiis children, intended to include his three grandchildren among the ben- eficiaries under the trust, where it does not appear but that they are the descendants of three of his children, since, then, the direction for equal distribution of the trust estate would be in consonance with the will, and every intendment must be indulged that will tend to sustain the complaint. Homer v. Mugridge, 24 Misc. 133, 53 N. Y. Supp. 298. If the language of a complaint is ambiguous, and an intelligible and most natural construction of the words shows a good cause of action, such construction should be adopted on demurrer, rather than one which makes the complaint an absurdity. Olcott v. Carroll, 39 N. Y. 436. An allegation that taxes and assessments to a specified amount have been levied on property, a mortgage on which is sought to be foreclosed, and have remained unpaid for five years, and that more than six months have elapsed since the greater portion became due, will be construed as alleging that such taxes became due from time to time mthin the five years, wlien such construction is required to support the pleading.. Weber v. Huerstel, 11 Misc. 214, 32 N. Y. Supp. 1109. In an action on an insurance policy, where the complaint alleged that the defendant's agent had agreed "at the time of the delivery of said policy, and thereafter, before the fire, as hereinafter stated, that said premises might be lighted with gasoline gas," a contention on demurrer that no- agreement with the agent was pleaded, but only an unfulfilled promise, and that the words "hereinafter stated" referred to the agreement, not the fire, — will not be sustained. The passage quoted fully stated an agreement; and it was plainly the fire, and not the agreement, which was to be thereinafter stated. Winan^ v. Allemania F. Ins. Go. 38 Wis. 342. So, in a doubtful case, where different constructions can be given to a pleading, it will not be considered as consisting of separate defenses, which the pleader has failed to separately state and number as required by N. Y. Code Civ. Proc. § 507. Kager v. Brennewan, 33 App. Div. 452, 54 N. Y. Supp. 94. An averment in a declaration that defendant managed its trains with gross 74 BKIEF ON PLEADINGS DEMUEEEE. negligence in this, — that a long rope was allowed to hang beside the train, — is capable of a construction that defendant knowingly allowed the rope so to hang; and such construction will be adopted on a demur- rer to the declaration. Seymour v. Central Vermont R. Co, 69 Vt. 555, 38 Atl. 236. • 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 allegation that it was awarded to the plaintiff "as" the lowest bidder is not enough, because the allegation may be lit- erally true, and yet the plaintiff may not have been the lowest bidder in point of fact. Iflash v. St. Paul, 8 Minn. 172, Gil. 143. ' In an action against a municipal corporation to recover damages for in- juries sustained from the discharge of a cannon in a public street by an assembly of disorderly persons, an allegation in a petition that the au- thorities of the corporation "had negligently and carelessly given per- mission to such persons to fire the cannon" should be construed with reference to the context, — namely, as an allegation that the authorities took no steps to prevent the firing, and that the demurrer to the peti- tion should therefore be sustained. The court says: "While the com- mon-law rule that pleadings must be construed most strongly against the pleader has been abrogated, we are not required under the present system to construe every equivocal word or phrase most strongly in favor of the pleader." Uobinson v. Greenville, 42 Ohio St. 625, 51 Am. Rep. 857. ' A complaint by a father, showing that the negligence of defendant's serv- ants caused the death of the plaintiff's child, and "that plaintiff was and will be compelled to pay $100 for medical attendance, funeral and other CKpenses caused by the death of his son," is suflGlcient on demurrer. Though no expenses can be recovered except such as are necessary and reasonable, they need not be so described in the complaint. The "other expenses" mentioned could be ascertained by a bill of particulars or mo- tion to make more definite. Roeder v. Ormsby, 13 Abb. Pr. 335. See also chapter iv., §§ 5, 6, ante, as to Facts not Alleged, and §§ 10, 11, 12, of this chapter, as to Facts Inferred. 2. Nature or theory of action. The pleadings detei'raine whether an action is on contract or in tort.i If the cause of action as set forth is doubtful or ambiguous, every intendment is to be made in favor of construing it as an action on contract* The court may construe a pleading which states facts making h good upon either of two theories, as proceeding on the theory most ap- parent, and fairly outlined by thf facts stated, and may require that the case bo tried on one definite theory.* ' Union P. R. Co. v. Shook^ 3 Kan. App. 710, 4-t Pac. 685. V. INTERPKETATION OF ALLEGATIONS. 75 That the court held that an action was a proper one for a partnership ac- counting between the parties, and not an action at law, and directed that the pleadings be amended so as to authorize and provide for a partnership accounting, is not conclusive as to the character of the ac- tion. Its nature is to be determined by the pleadings. White v. Rode- mann, 44 App. Div. 503, 60 N. Y. Supp. 971. ' AtcDonough t. Dillingham, 43 Hun, 493; Goodimn v. Oriffis, 88 N. Y. 629; Foote V. Ffoulke, 55 App. Div. 617, 67 N. Y. Supp. 368. A petition charging the breach of a pai'ol promise by defendant bank to pay a certain check thereafter to be drawn on it, and that, by reason of such promise, plaintiff was induced to sell certain cattle and receive such check in payment thereof, whereby plaintiff was damaged in a specified sum, sets forth a cause of action eai contractu, where there is no allegation of fraud or deceit. Nichols v. Commercial Bank, 55 Mo. App. 81. A complaint alleging an employment of the plaintiff to prosecute an action for defendant, an agreement between them that plaintiff should have half the sum collected, a compromise of the case by the defendant, and the receipt by him of the designated amount, a refusal to pay plaintiff his half thereof, and demand of judgment therefor, with interest, — states a cause of action for money had and received, which is not neces- sarily turned into an action for conversion by an averment that the money was received by defendant in fraud of plaintiff's rights, and fraudulently misappropriated. Stafford v. Aebell, 6 Misc. 89, 26 N. Y. Supp. 41. "Batman v. Snoddy, 132 Ind. 480, 32 N. E. 327; Miller v. Miller, 17 Ind. App. 605, 47 N. E. 338 (Citing Mescall v. Tully, 91 Ind. 96; Western V. Teleg. Co. v. Reed, 96 Ind. 196; Fi/rst Nat. Bank v. Root, 107 Ind. 224, 8 N. E. 105; Feder v. Field, 117 Ind. 386, 20 N. E. 129; Monnett v. Turpie, 132 Ind. 482, 32 N. E. 328 ) . 3f a plaintiff intends to demand a. judgment on different grounds, he shoukl state the facts constituting the several causes of action in separate counts; and when the facts are stated in a single count, he should be •confined to the cause of action which, upon a, fair construction of the complaint, he appears to have selected. Farmers' & M. Nat. Bank v. Smith, 23 C. C. A. SO, 40 U. S. App. 690, 77 Fed. 129. An allegation in a complaint that "the defendants have wrongfully con- verted the same to their own use" does not make an action one for tort, where the demand is for a specified amount due the plaintiff and with- held by the defendants in violation of their contract for its collection. Tan Oss v. Synon, 85 Wis. 661, 56 N. W. 190 (Citing Fifield v. Sxoeeney, 62 Wis. 204, 22 N. W. 416; Rawson Mfg. Go. v. Richards, 69 Wis. 643, 35 N. W. 40; Potter v. Van Norman, 73 Wis. 339, 41 N. W. 524). A petition alleging that plaintiff was a passenger having a ticket upon de- fendant's train, and that the employees wrongfully and wantonly re- fused to allow him. to continue his journey without paying additional and illegal charges, thereby placing him in an ignominious position be- fore the other passengers, states an action ex delicto, and not ex con- 76 BEIEF ON PLEADINGS DEMUEREK. tractu. Atchison, T. & S. F. R. Co. v. Long, 5 Kan. App. 644, 47 Pac. 993. Allegations of bailment and implied contract to use, care tor, and return a chattel in good condition, in a declaration charging wilful and malicious injury to such chattel, are recitals by way of inducement only, and do not affect the character of the action as one eso delicto. State, Kerr, Prosecutor, v. OJwer, »1 N. J. L. 154, 38 Atl. 693. A complaint alleging that defendant, offering to sell plaiutiff a certain mare, warranted and falsely and wrongfully represented her to be sound, free from fault, and correct in every respect, and that the plain- tiff purchased in reliance upon such warranty and representations; that the mare was unsound and afflicted with a. certain disease rendering her practically worthless to the plaintiff; and that such facts were known to defendant; and in consequence the plaintiff was put to great expense, and was injured and misled to his damage in a designated amount, — states an action for fraud, and not upon a contract. Steinam v. BeU, 7 Misc. 318, 27 N. Y. Supp. 905. An action, brought against a company which held a contract authorizing it to cut and remove timber from land, the convplaint in which alleges the iiooding of lands by the maintenance of a dam, the cutting of a road through the tract, and the felling of a large number of small trees, will be construed as founded in tort, and not upon a breach of the contract. Litchfield V. Norwood Mfg. Co. 22 App. Div. 569, 48 N. Y. Supp. 496. A complaint is in tort, and not for mere breach of contract, where it al- Jeges a contract of carriage of a passenger upon a sleeping car, and an implication that defendant would awaken, her before reaching a trans- fer station in time to enable her to dress herself; and that by its rules and common usage it was its duty so to awaken her, and that its serv- ants agreed so to do; but that, upon reaching such station, the porter drew the curtains apart, informed her that she must leave the train at once, refused to hold the train to enable her to dress, and hustled and hurried her to another car so that she fell against its framework and was bruised and injured, and her person was exposed to men occupying the other car, and she was exposed to a hard rain, in consequence of which she suffered a miscarriage. McKeon v. Chicago, M. & St. P. R. Co. 94 Wis. 477, 35 L. R. A. 252, 69 N. W. 175. Contract of employment. A complaint alleging that plaintiff and defendant made a contract for the employment of the former, by which defendant reserved the right of terminating the employment at any time upon the payment of a certain sum, — such employment being for a specified term; that plaintiff en- tered upon the discharge of his duties and continued until a, certain date within such teini, when defendant dismissed the plaintiff from his employ, giving as a reason the winding up of his business ; that plaintiff demanded such sum, but was refused, — states a cause of action upon the contract, and not for liquidated damages for wrongful dismissal. Hecht V. Brandus, 4 Misc. 58, 23 N. Y. Supp. 865, 1004, Aff'g 2 Misc. 471, 21 N. Y. Supp. 1034. V. ^INTEEPI4ETATIO:SI OF ALLEGATIONS. 77 Bale. A complaint which sets out a cause of action for goods sold and delivered, and further avers the execution and delivery of a promissory note for the amount of the hill, and the nonpayment of the note at maturity, and concludes with a demand for judgment for the amount of the hill, interest, and costs, will he treated as one for goods sold and delivered, as the note only operated to extend the time of payment. Smith v. Fer- guson, 33 App. Div. 561, 53 N. Y. Supp. 10B7. Rescission of sale. A. petition cannot be construed as one for the rescission of a contract of sale of a bond and mortgage because of encumbrances upon the mort- gaged premises, where it contains no oflfer to surrender the bond and mortgage for cancelation. Farmers' d M. Nat. Bank v. Smith, 23 C. C. A. 80, 40 U. S. App. 690, 77 Fed. 129. Accounting. A bill alleging that plaintiff is half owner as tenant in common of certain personal property, and asking that it be sold and the proceeds divided, filed by one who has purchased an equitable interest in such property from u. member of a firm for which the legal title is held by one of the other partners, cannot be construed as a bill for a settlement of the partnership affairs and an accounting. Pratt v. McGuinness, 173 Mass. 170, 53 N. E. 380. Actions affecting real property. A complaint in trespass against a railway company for destroying plain- tiff's irrigating ditch and rendering it worthless, thereby flooding his lands, should be treated as a complaint for a permanent trespass, en- titling plaintiff to a, single recovery of general damages, both present and prospective, where the second count of the complaint asking for equitable relief was dismissed upon a stipulation that the cause was to proceed on the first count, for permanent damages, on the understand- ing that the railroad remain permanently as located. Denver, T. & Ft. W. B. Go. V. Pulaski Irrig. Ditch Co. 19 Colo. 367, 35 Pac. 910. A complaint averring the execution of a mining lease for twenty years, conditioned to be void if the enterprise shall be abandoned twelve months; the expiration of more than two years without any mining upon the lands; and the abandonment of the enterprise, and refusal oJ: the lessees to release such lease of record, and that the sajne remains a cloud upon plaintiff's title, — states a cause of action to quiet title, and not an additional cause of action to cancel and forfeit the lease. Wood- ward V. Mitchell, 140 Ind. 406, 39 N. E. 437. A petition alleging that defendant took in his own name the title to land in another state in trust for his father, and accepted the provisions of a will executed by the latter appointing him executor and requiring him to convey such land to designated persons, and asking that he be com- 78 BEIEF OS PLEADINGS ^DEML'EEEB. pelled to convey, — sets forth an action to enforce the trust created by the will, and not one to establish title to land in another state, cogniz- able only by the courts of that state. GillUand v. Inabnit, 92 Iowa, 4B, 60 N. W. 211. The character of a possessory action will not be changed to a petitory one by the fact that plaintiff annexes a deed to and makes it a part of his petition, for the sole purpose of showing the nature of the possession, ajid not of establishing title in him. Hermitage Planting & Mfg. Co. v. Higgason, 46 La. Ann. 425, 14 So. 919. Actions on hands. In an action aided by attachment a cross-action for the wrongf".! suing out of the attachment, the petition in which states that at the time of the suing of such writ of attachment plaintiff filed an attachment bond binding itself to pay all damages sustained by reason of the wrongful suing out of the attachment, and that such bond and writ are "made a part of the answer and counterclaim, as though fully set forth herein," — is a statutory action on the bond, although the defendant claims dam- ages in an amount in excess of the penalty of the bond, under a belief that, as the action is against the plaintiff only, and not the sureties, the penalty in the bond will not limit his liability. Union Mercantile Co. V. Chandler, 90 Iowa, 650, 57 N. W. 595. The allegation in a petition in an action by a county upon a sheriff's bond, that the latter has paid out all the money collected in taxes except certain amounts retained by him aa compensation, and which are al- leged to be excessive, is not an averment of a settlement by the sheriff with a, commissioner appointed by the county, so as to characterize the action as one to surcharge and correct a settlement, as distinguished from one upon a bond without a settlement. Com. use of Bourbon County V. McGhire, 20 Ky. L. Eep. 1568, 49 S. W. 789, Not to be Rep. A complaint upon an insurance agent's bond, alleging that the principal had received various sums for which he had failed to account, and that upon an accounting and settlement with reference thereto a specified sum was ascertained and determined to be due, which the principal promised and agreed to pay, — is not to be construed as declaring upon an account stated, since the averments in that respect may be stricken out, and the complaint will still state a. good cause of action upon the bond. Bailey v. Wilson, 34 Or. 186, 55 Pac. 973. Counterclaim. A pleading by defendant in replevin brought by a purchaser at execution sale other than the execution plaintiff, averring that the levy was made on the property of defendant, who was not the execution defendant, is not to be construed as a counterclaim, but an answer in bar. Shipman Coal Min. & Mfg. Co. v. Pfeiffer, 11 Ind. App. 445, 39 N. E. 291. Foreclosure of lici. A complaint alleging that eight months have not elapsed since filing a log- V. INTEEPEETxVTIOH OF ALLEGATIONS. 7& ger's lien, that such lien was duly filed within thirty days after the lienor ceased to perform work ajid labor on the logs, and that a specified sum is a reasonable attorney's fee for its foreclosure, — states an action for foreclosure instead of eloignment, although there is an allegation that defendant has purchased logs from specified parties upon which plaintiff had filed his lien, within thirty days. State ex rel. Port Blakely Mill Co. v. Skagit County Super. Ct. 9 Wash. 073, 38 Pac. 155. Certiorari. A complaint in an action to enjoin the county treasurer from collecting a tax, upon the ground that it is void, cannot be treated as an applica- tion for a writ of certiorari to review the proceedings of the board of county commissioners in levying the tax. Insurance Co. of N. A. v. Bonner, 24 Colo. 220, 49 Pae. 366. Conspira^;y. An allegation in a complaint in an action by stockholders of a corporation to set aside a fraudulent sale of property to the corporation, by its pres- ident, at a grossly excessive value, of a conspiracy to defraud the corpo- ration thereby, does not render the action one for conspiracy. Gerry v. Bismarck Bank, 19 Mont. 191, 47 Pac. 810. A declaration charging that defendant city officials conspired together to prevent the plaintiff from erecting, a block of houses, and unlawfully required him to obtain a. license, which was vetoed, and thereafter threatened him with great loss if he continued the work, which made it impossible for him to erect the building, whereby he suffered damage, — seeks a recovery for the deceit and threats, and not for the conspiracy. Saae v. Burlington, 70 Vt. 449, 41 Atl. 438 (Citing Bulkley v. Storer^ 2 Day, 531 ; HutcUns v. Hutchins, 7 Hill, 107 ) . Conversion. A complaint alleging that plaintiff, in reliance upon the representations of one of the defendants that he could and would sell plaintiff's saloon and stock for a sum in excess of plaintiff's debts, and would return the ex- cess to plaintiff, executed a bill of sale, as he supposed to such defend- ant, who procured the name of the other defendant and a consideration to be inserted therein without plaintiff's Icnowledge; that the latter de- fendant acted merely as the tool of the former to enable him to obtain the property for his own sole use and benefit, and the consideration re- cited was never received by plaintiff; and that the former defendant received the saloon and stock, which was of a specified value, from plaintiff, and continued to claim and exercise acts of ownership over it, — states a cause of action for conversion, and not to enforce a trust. Boowe V. Kreling, 93 Cal. 136, 28 Pac. 1042. Fraud. A petition cannot be construed as one for fraud and deceit in the sale of a ■80 BEIEF Olf PLEADINGS DEMUEBEE. bond and mortgage, where it contains no allegation that defendant, for the purpose of effecting the sale, falsely represented the title to be free from encumbrances, knowing the representation to be untrue, although the premises were in fact encumbered. Farmers' & M. Nat. Bank v. Smith, 23 C. C. A. 80, 40 U. S. App. 690, 77 Fed. 129. A complaint in an action on a judgment, alleging that the verdict in the former action was rendered for damages sustained by plaintiff by reason of the "fraud and deceit of defendant alleged in the complaint," does not state a cause of action for fraud and deceit unless the complaint in the former action alleged fraud and deceit. Thomas v. Snyder, 77 Hun, 305, 28 If. Y. Supp. 877. (>iia/itum meruit, A petition setting out a contract of employment in selling a large number of lots for defendant, and showing that services were rendered and mon- eys expended by plaintiff in executing it, and averring that defendant wrongfully discharged plaintiff, and stating the value of his services and the moneys expended, and praying judgment therefor less the amount received, — is a petition on a quantum meruit, and not for dam- ages for breach of contract. Glover v. Henderson, 120 Mo. 367, 25 S. W 175. An allegation in a complaint that the defendants agreed to pay a fair and reasonable price for timber which was the subject of a contract between the defendants and the plaintiff, rescinded by defendants because made by one represented to be acting in his own behalf and not for an undis- closed principal, does not render the action one upon an express contract of sale, where the other allegations are appropriate only to one upon a quantum meruit. Lansburgh v. Walsh, 12 Misc. 124, 33 N. Y. Supp. 45. Money had and received. The allegation in a complaint that defendants retained money paid to them by plaintiff, without right, because plaintiff was not indebted to them, makes the action substantially for money had and received,* although there is a prior allegation that the money claimed was originally paid by mistake. Dieckerhoff v. Alder, 12 Misc. 445, 33 N. Y. Supp. 698. Demand for judgment. The conclusion of a cross-complaint with a. demand of judgment for a cer- tain sum does not change it from one for an accounting into one for money due. Miller v. Rapp, 135 Ind. 614, 34 N. E. 981, Rehearing De- nied in 135 Ind. 620, 35 N. E. 693. The complaint in an action for the dissolution of a partnership is not ren- dered a. complaint for a mere demand for money due, by a demand for a money judgment. Adams v. Shevxilter, 139 Ind. 178, 38 N. E. 607. Prayer for relief. The prayer lor relief contained in a complaint miiy properly be considered V. INTEKPEKTATION OF ALLEGATIONS. 81 in determining whether the action is one at law or in equity, although not controlling upon that question. Rogers v. Rogers, 75 Hun, 133, 27 N. Y. Supp. 276. A bill cantaining a prayer for an account, in order that a. final settlement of the estate involved may be made, and the orators receive whatever they may be entitled to of the same, is one for a termination of the trust, settlement, and distribution, and not merely a, bill for account only as a basis of future settlement. Myers v. Bryson, 158 Pa. 246, 27 Atl. 986. A pleading in equity will be construed by the facts it states, and not by its prayer for relief. McOuffey v. McClain, 130 Ind. 327, 30 N. E. 290 (Citing Houck v. Graham, 106 Ind. 195, 55 Am. Rep. 727, 6 N. E. 594 Anderson v. Ackerman, 88 Ind. 481; Carver v. Carver, 97 Ind. 497 Lovely v. Speisshoffer, 85 Ind. 454; Stribling v. Brougher, 79 Ind. 328 Suprevie Sitting, 0. of I. H. v. Baker, 134 Ind. 293, 20 L. R. A. 210, 33 N. E. 1128). The nature of an action is determined, tinder the Nebraska system of plead- ing, from the character of the facts alleged, instead of by the prayer for relief. Stephens v. Harding, 48 Neb. 659, 67 N. W. 746 (Citing Stern- berger v. McOovern, 56 N. Y. 12 ; Missouri Valley Land Co. v. Bushnell, 11 Neb. 192, 8 N. W. 389). 3. Common usages of speech. Language used in pleading must be interpreted with refea-ence to the subject-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.-' The innuendo in a complaint in an action for slander cannot extend the meaning of the words alleged beyond their natiiral import.^ 'A declaration on a promissory note containing the words "use till paid" need not aver the meaning of the words, the obvious meaning being "in- terest till paid." M'Clellan v. Morris, Kirby, 145. An allegation in an action for dama,g6s that the owner and master of a vessel gave defendant notice that "he desired to be discharged," but "de- fendant neglected and refused to discharge the plaintiff," is a sufficient allegation as to discharging the vessel or cargo. Murray v. Worcester Goal Co. 51 Conn. 103. Describing the instrument sued on as an "indenture" is a sufficient showing that it was under seal, to maintain an action of covenant. Wineman v. Eughson, 44 111. App. 22. In an action upon a judgment an allegation that the said judgment re- mains valid and in full force is equivalent to an allegation that the judgment is unpaid. Wise v. Loring, 54 Mo. App. 258. An averment in a complaint that the plaintiff "made and executed" a deed includes all acts essential to the completion of the title; and a, specific Abb. Pl. Vol. I.— 6 82 BEIEF ON PLEADINGS ^DEMUKREE. averment of delivery is not necessary. Brown v. Westerfield, 47 Neb. 399, 66 N. W. 439. An allegation in a complaint in an action on a bond that defendants "made" tlie bond is equivalent to an allegation that they executed it. Eazelet v. Bolt County, 51 Neb. 716, 71 N. W. 717. The term "whiskey" means an intoxicating liquor, and its intoxicatinff quality need not be alleged in a petition to recover a penalty for breach of a liquor dealer's statutory bond by selling liquor to a student of an institution. Daniels v. Grayson College, 20 Tex. Civ. App. 562, 50 S. W. 205. A pleading should be taken in its plain and ordinary meaning, giving such an interpretation to it as fairly appears to have been intended. Men- denhall v. Leivy, 45 Mo. App. 20. ' Craig v. Pyles, 18 Ky. L. Eep. 1043, 39 S. W. 33. Words alleged to be libelous cannot, on a demurrer to the declaj^tion in an action for libel, be pronounced actionable by the court, unless they can be interpreted as such with at least reasonable certainty. Thomp- son V. Levnston Daily Sun Puh. Go. 91 Me. 203, 39 Atl. 556. Innuendoes in a complaint for libel cannot enlarge the natural meaning of the libelous words nor introduce new matter, although they are neces- sary to enable the court to possess itself of circumstances surrounding^ the case, and to construe the pleadings in view thereof. Battersby v. Collier, 34 App. Div. 347, 54 N. Y. Supp. 363. The construction given by an innuendo to alleged slanderous words is bind- ing upon the plaintiff in an action for slander, although it destroys his. cause of action, and the words are susceptible of an actionable construc- tion. Mitchell v. Sharon, 51 Fed. 424. 4. 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 statements thrown into them.' In applying this principle, allegations which are improper and un- necessary may nevertheless be considered in the pleader's favor, for the purpose of ascertaining the reasonable intendment of his pleading, when attacked on demurrer.* 'Action for negligence in grading and overflowing plaintiff's premises. Negligence held admitted, as distinguished from error of judgment in plan, notwithstanding some fugitive denials; North Vernon v. Yoegler, 103 Ind. 314, 2 N. E. 821, 823 (Citing Neidefer v. Chastain, 71 Ind. 363, 36 Am. Rep. 198; Western O. Teleg. Co. v. Reed, 96 Ind. 195, 198). In a complaint against a railroad company alleging that the company neg- ligently permitted combustible matter to accumulate on its right of way, and that it took fire from the sparks of a passing engine, aji aver- ment "that the fire, caused and caught, as aforesaid, through the care- lessness and negligence of said defendant, was pei-mitted to and did spread" upon plaintiff's land, and destroyed his property, will be cob- V. INXEEPEETATION OF ALLEGATIONS. 83 strued as referring to the negligent spread of the fire, and not to the manner in which it was caused, where such Intendment is required by a consideration of the complaint as an entirety. Chicago & E. R. Co. V. House, 10 Ind. App. 134, 37 N. E. 731. The phrase "legal proceedings'' in the averment in a bill that the contract declared on was made in consideration that the orator should intercede with a third person to dissuade him from instituting "legal proceed- ings" against the defendant, "based upon the aforementioned criminal relations" between his wife and the defendant, includes a criminal pros- ecution, where the allegation immediately preceding was to the effect that such third person had threatened to subject defendant to a, ci-im- inal prosecution on account of such relation, and that the defendant be- sought the orator's services to save the exposure, punishment, and scan- dal which would be incident thereto. Mack v. Campeau, 69 Vt. 558, 38 Atl. 149. A complaint in an action to foreclose a mortgage, alleging that a specified defendant claims some interest or title to the land "inconsistent" with the rights of the plaintiff, and that plaintiff's lien is "prior" to any lien of such defendant, will be held to allege simply that defendant's inter- est, whatever it is, is subordinate to that of plaintiff, when such con- struction is required by a reference to all the allegations in respect to the defendant. Kizer v. Caufield, 17 Wash. 417, 49 Pac. 10C4. 'Under the Code, says Turner, J., in Chambers v. Hoover, 3 Wash. Terr. 107, 13 Pac. 466, "a suitor is no longer to be turned out of court, if, by making all reasonable intendments 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 required on motion to conform his statement to the rules of good pleading, and, if he refuses, may be turned out of court; but as against a, demurrer, the office of which is to raise a sub- stantial issue on the law of the case, and not on the law of practice and pleading, evidentiary facts, and even inferences from avei-ments amount- ing to mere conclusions of law, will be considered in his favor." This was an action for forcible entry and detainer, in which the complaint, showing that plaintiff, by a written instrument in writing, not wit- nessed or acknowledged, leased the premises to defendant for at least one year, and probably longer; that tlie plaintiff had the option of ter- minating the tenancy at the end of one year by giving one month's no- tice; that such notice was given, but the defendant refused to vacate, — was held sufficient on demurrer, although vague and indefinite, since 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 tenr ancy at wUl. 5. Inconsistency. When a pleading is otJierwise sufficient, an inconsistency between allegations is not fatal, if it can be hamionized by construing one of thorn in the sense in wliich the pleader must be understood to have 84 liEIEF ON PLEADINGS DEMTTEKEK. used it, supposing him to have intended his pleading to he consistent with itself.^ 'Stevens v. Giison, 69 Vt. 142, 37 Atl. 244; Rex v. Stevens, 5 East, 244; Brady v. McCosker, 1 N. Y. 214. In Royce v. Moloney, 58 Vt. 437, 5 Atl. 395, it was held that the pionouii "which" was to be referred to the antecedent that made the allegation effective, and that a statement of it might be understood to apply to all of several events alleged in connection. But see Felix v. Walher, 60 Kan. 467, 57 Pac. 128, which holds that where there are inconsistent allegations in a pleading, the party making them is bound by those most unfavorable to him (Citing Bierer v. Fretz, 32 Kan. 330, 4 Pac. 284). That lands are described in the complaint in an action to recover pos- session of them as in a wrong governmental subdivision is immaterial if there is also a particular description of them which is correct. Gor- ier V. Chevalier, 108 Ala. 563, 19 So. 798. The word "defendant," in a cross-complaint, will be construed as referring to the defendant in the main action, and not in the cross-complaint, where that was evidently what the pleader intended and all the allega- tions will be reconciled thereby. Warhritton v. Demorett, 129 Ind. 349, 28 N. E. 613, 27 N. E. 730. An averment that an entire transaction was between complainant and de- fendant's husband, acting for himself and defendant, except that the lat- ter executed the papers after they were prepared, plainly negatives any agency in him in the final execution of the papers which will authorize him to make subsequent alterations. Foote v. Samhrick, 70 Miss. 157, 11 So. 567. An averment in a petition, evidently to negative contributory negligence, that, notwithstanding that a hole in a street was a nuisance and a source of danger to the traveling public, the same, under ordinary cir- cumstances and by the exercise of ordinary care, could be passed with safety, does not defeat the effect of the express averment of negligence on the part of the city in leaving the hole. Vogelgesang v. St. Louis, 139 Mo. 127, 40 S. W. 653. A statement in an affidavit for an attachment that the debt was not due will not control the nature of the action as sho\vn by the statements of the complaint, which show that the debt was due and that the action was brought on that theory. Aultma/n v. Daggs, 50 Mo. App. 280. An averment in a bill that defendant filed an account in a suit before a magistrate showing an indebtedness to complainant in a. certain suni will not be deemed to contradict a prior averment of a larger indebted- ness so as to prevent any recovery, it appearing that the amount re- ferred to in the former averment has been fully paid, where the bill, considered as a whole, indicates a contrary intention on the part of the pleader. Royal v. Thompson (Tenn. Oh. App.) 46 S. W. 1022. An averment by defendant in an action of trespass to try title, that the only portions of the lots in question owned or claimed by him lie south- V. INTERP.RETATIOS OF AT^LEGATIOKS. 85 wardly of the true divisional line between two leagues, is not a dis- claimer of a portion of the same lying northwardly thereof, so as to prevent him from setting up a title by adverse possession, where it is his contention that the true line lies far enough north to include such portion within the league of which his land ia a part. Barnett y. Tem- pleman (Tex. Oiv. App.) 31 S. W. 78. The averments in a complaint against indoi-sers of a promissory note, of an indorsement waiving demand and notice of nonpayment, and of a. waiver by the subsequent conduct of the parties, are not necessarily in- consistent. Loveday v. Anderson, 18 Wash. 322, 51 Pac. 463. But a distinct charge in one count of a complaint is not to be overthrown by mere inferences from matters alleged in other counts. Veatch v. American Loan & T. Co. 28 C. C. A. 384, 55 U. S. App. 191, 84 Fed. 274. 6. Alternative or eqiuvocal allegation. An allegation 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 plead- er, and his case is not stronger tlian its weakest aspect ; and if, so un- derstood, it is insuflSeient, it is demurrable.^ A complaint must be construed upon the theory which is most ap- parent and clearly outlined.* In a suit to enforce a claim evidenced by a wi'iting, if the latter is uncertain it will be interpreted in view of the avei-ments in the plead- ing.* '^ Marie v. Garrison, 83 N. Y. 14, Reversing 13 Jones & S. 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 facta constituting the intended cause of action. ° A pleading will be construed most strongly against the pleader. Clark v. Hanchett, 40 111. App. 212; Martin v. Sexton, 72 111. App. 395; Freio v. Richardson, 97 111. App. 18; Caylor v. Caylor, 22 Ind. App. 666, 52 N. E. 465; McKay v. UcKenna, 173 Pa. 581, 34 Atl. 236. The rule is elementary that pleadings must be construed most strongly against the pleader. If the pleading admits of two constructions, that construction will be adopted which is least favorable to the pleader. Western Assur. Co. v. McOlathery, 115 Ala. 213, 22 So. 104. Doubtful language in a pleading will, on demurrer, be construed against the pleader, on the ground that, as he himself selects the language, he should make his meaning clear. Beadle v. Kansas City, Ft. S. & M. R. Co. 48 Kan. 379, 29 Pac. 696 (Citing Draper v. Gowles, 27 Kan. 484). A complainant in a bill in equity cannot take advantage of ambiguous aver- 86 BEIEF ON PLEADINGS DBMUKEER. ments in his bill, but such averments are to be taken most strongly against himself. Townsend v. Vanderwerken (D. C.) 19 Wash. L. Rep. 834. Allegation that underwriters "paid or agieed to pay," not an allegation of payment. Jessel, M. R., said : The pleading being in the alternative, the other side was entitled to interpret it most strongly against the pleader. Tlie Sir Charles Napier, L. E. 5 Prob. Div. 73, 28 Week. Ecp. 718. 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 v. Linn, 1 How. 104, 11 L. ed. 64. To a declaration on a sealed instrument a plea was interposed that, after the instrument had been signed, it had been altered, without the defendant's consent, by affixing seals to the signatures. It wa-; held on demurrer that 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 ease tlie deed was void, in the latter not; and under the rule stated the latter must be regarded as intended. Judgment reversed, because declaration was insufficient. A bill by an assignee of a bankrupt corporation to charge shareholders alleged that there were three classes of shares fraudulently issued, but did not specify in which defendants' were. It was held that they were entitled to assume that theirs were of the class least open to objection. I'orema/n v. Bigelow, 4 Cliff. 508, Fed. Cas. No. 4,934. A plea not denying receipt and full enjoyment of the consideration, but de- signed to defeat an obligation to repay money loaned, because the cor- poration making it exceeded its powers, or contravened a statute, will be strictly construed and the contract upheld, unless the illegality is shown by such unequivocal and complete averments as to exclude any reasonable intendment to the contrary. Gorrell v. Home L. Ins. Co. 11 C. C. A. 240, 24 U. S. App. 188, 63 Fed. 371. An allegation upon information and belief that a transfer of a note by a bank to its cashier was for the purposes of collection seems purposely vague, and should be construed against the pleader, and not as an aver- ment of the fact. Seeber v. Commercial Nat. Bank, 77 Fed. 957. A general allegation repugnant to Bpecifi.c allegations, which would defeat a bill, will be rejected, in considering its equity, under the rule that the averments shall be taken most strongly against the pleader. Strick- land v. Gay, 104 Ala. 375, 16 So. 77. A complaint which charges negligence in the alternative must be taken most strongly against the pleader. Woodivard Iron Co. v. Cool.-. 124 Ala. 349, 27 So. 455. Ail ambiguities and uncertainties found in a pleading will be construed against the pleader. Mclntyre v. Hav-ier, 131 Cal. 11, 63 Pac. BO. Plaintiff in an action for relief from the iillra vi/res and fraudulent acts of corporations in which he claims to be a stockholder by virtue of a cer- tificate issued to him by a trustee in exchange for a certificate of stock in one of the corporations will be presumed to have been owner of the v.- — iJMTJiEPEETATIOK OF ALLEGATIONS. 87 latter certificate at the time of such ultra vires and fraudulent acts, and to have participated therein, where his bill does not negative ownership at that time, and merely alleges that he acquired the certifi- cate without knowledge that iJie same was tainted with any conspiracy or combination. Levin v. Chicago GasUght d Coke Go. 64 111. App. 393. In State ex rel. MaoKenzie v. Casteel, 110 Ind. 174, 11 N. E. 219, 226, Elliott, Ch. J., says: "Construction of doubtful or uncertain allega- tions in a pleading, which enables a party by thus pleading to throw upon his adversary the hazard of correctly interpreting their meaning, is no more allowable now than formerly." (Citing Cla/rk v. Dillon, 97 N. Y. 370; Bates v. liosehrans, 23 How. Pr. 98.) Moores v. Lehman. 20 Jones & S. 283; Slocum v. Clark, 2 Hill, 47.5 (equivocal plea, at common law ) . A complaint for damages for fraudulent misrepresentations inducing the purchase of corporate stock will be construed to charge a purchase from the corporation rather than from the defendant, notwithstanding an averment that plaintiff purchased the stock from the defendant and paid him therefor, where it avers that the stock was issued directly to the plaintiff by the corporation, and there are many other averments showing that the stock was taken by way of original issue, rather than by purchase from defendant. Beints v. Mueller, 19 Ind. App. 240, 49 N. E. 293. A complaint complaining of the obstruction of a ditch known as the "Hol- loway Ditch" will, construing the language most strongly against the pleader, be deemed to refer to an artificial ditch, and not a, natural watercourse, in the absence of any averment tliat it is a natural water- course, or of facts showing it to be such. Cleveland, C. C. & St. L. R. Co. V. Buddleston, 21 Ind. App. 621, 52 N. E. 1008. Under the rule that a pleading must be most strongly construed against the pleader, a demurrer is properly sustained to a pleading from which it is difficult to ascertain whether the plaintiff seeks to recover because the defendants had wrongfully caused the property mentioned in the petition to be placed in the hands of a receiver, or whether the claim is for damages on account of an injunction wrongfully obtained. Friend V. Allen, 21 Ky. L. Rep. 1765, 56 S. W. 418. As pleadings must be construed most strongly against the pleader, the averment of defendant's answer in an action to enforce a purchase- money lien, that "there was a, telephone line along and into the house, and a telephone box in and afiixed to the house for the use of its resi- dents," and that plaintiff removed said telephone box after he conveyed the property to defendant, without her consent, does not raise the ques- tion whether the telephone line and box were fixtures, and passed under the deed, as it is not sufficiently alleged that the telephone line ran into a house which was on the land embraced in the deed, or that the tele- phone box was attached to the house. Mays v. Carman, 23 Ky. L. Rep. 2216, 66 S. W. 1019. Until judgment, a pleading will be taken most strongly against the pleader ; 88 BRIEF ON PLEADINGS DEMUEREK. and unknown, unrecited facts will not be assumed in his favor. Hughes V. Murdoch, 45 La. Ann. 935, 13 So. 182. But respondents to a bill, uncertain or sounding double as to whether it is for specific performance of a contract, or for infringement of a patent, are entitled to elect the construction to be put upon it. American Box Mach. Co. V. Crosmwn, 60 Off. Gaa. 1750. 'Dull V. CleveloMd, 0. C. & St. L. R. Co. 21 Ind. App. 571, 52 N. E. 1013 (Citing Pittsburgh, C. C. & St. L. B. Co. v. Sulliman, 141 Ind. 83, 27 L. R. A. 840, 40 N. E. 138; Jmies v. Cullen,, 142 Ind. 335, 40 N. E. 124; Cleveland, C. C. & St. L. R. Co. v. Dugan, 18 Ind. App. 435, 48 N. E. 238. * Chattanooga Iflat. Bank v. Rome Iron Co. 102 Fed. 755. Where a petition alleges a contract, and that the plaintiff has performed his part thereof, the latter allegation does not render the petition defec- tive for uncertainty, since it is to be construed as having reference to the contract alleged in the petition. Block v. Standard Distilling it Distributing Go. 10 Ohio S. & C. P. Dec. 409. 7. Description as an allegation. Matter introduced in a pleading, merely as descriptive or draigna- tory, with nothing to indicate the time at whidi 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.^ * That parties are mentioned as "E. W., husband of said W," is not an alle- gation of the existence of marriage 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. Wright v. Burroughs, 61 Vt. 390, 18 Atl. 311. Under the new procedure, the question ought rather to be, whether the defendant could have been misled by the indefiniteness. But in Stringer V. Davis, 30 Cal. 318, the court went so far as to hold that an allega- tion in a complaint to foreclose a chattel mortgage, that the "furniture and upholstery were furnished for and used in the 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. In Roberts v. Lovell, 38 Wis. 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 here- inafter mentioned were spoken by defendant, plaintiffs were husband and wife," did not amount to an allegation that defendant spoke them, even for the purpose of letting in evidence at the trial. V. INTJUEPKETATION OF ALLEGATIONS. 89 [These last two rulings may be sustainable on common-law traditions, but are not in accordance with Code practice.] An exception is recognized in equity, in the description of parties, usual in the introductory clause, and the prayer for process when the ques- tion is whether jurisdiction is shown. See Demtjkree fob Want op JuEisDiCTioN, chapter vni., post. ' An indictment alleging that "defendant, being a, common hostler, sold," etc., is a sufficient allegation that he was such at the time of so selling. Johnson's Case, Cro. .Tac. 610. 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 "defendants, the said firm of A. J. Morgan &. Co., executed" their written obligation, sufficiently alleges the partnership of the defendants, and is good on demurrer. Harle v. Morgan, 29 S. C. 258, 7 S. B. 487. Seduction. Allegation 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." Parker v. Monteith, 7 Or. 277. Particula/r instances of construction. A declaration containing a special count in which the plaintiff is called M., "administratrix of the estate of M., deceased," instead of M., "as administratrix," cannot be construed as showing a cause of action in M. personally, where it contains the common counts, in each of which the cause of action is stated to be an indebtedness to "plaintiff's intes- tate." Iowa State Travteling Men's Asso. v. Moore, 19 0. G. A. 662, 34 U. S. App. 670, 73 Fed. 750. The description of plaintiff in an action for the death of her husband, as administratrix of her husband's estate by appointment under the laws of a sister state, may be rejected as surplusage, and judgment accorded her in her individual capacity, where she is also described as his widow, and an issue upon the question of her widowhood has been raised and found in her favor; and she may recover as such widow, although she is not entitled to maintain the action in her capacity of administratrix. Chicago, B. I. & P. B. Go. v. Mills, 57 Kan. 687, 47 Pac. 834. A complaint which contains averments sufficient to state a, cause of action against the defendants personally is not rendered insufficient as a com- plaint against them personally by the addition of the words "executrix" and "executor" after their names in the title, and by allegations de- scribing them as executrix and executor, and referring to the will, — as such allegations may be rejected as surplusage. Genet v. De Graaf, 27 App. Div. 238, 50 N. Y. Supp. 442. In an action to recover for goods sold to a guardian for the benefit of his ward, a reference in the complaint to the defendant as "guardian'' will 90 BEIEF Olf PLEADITiTGS DEMUBEEE. be regarded as "descriptio personce," wliere it is plain that the relief sought is personal. Hall v. Ferguson, 24 Ind. App. 532, 57 N. E. 153. Designation of the defendant in the title of the ca^e as "receiver/' such designation not being preceded by the word "as," must be deemed mere "descriptio personce." Vasele v. Grant Street Electric B. Go. 16 Wash, 602, 48 Pac. 249 (Citing Bennett v. Whitney, 94 N. Y. 302). The term "Pound Publishing Company," in, a complaint alleging that plaintiff's intestate was, at his death, the owner, and entitled to the possession, of specified property, being that of the printing plant and establishment of "the Pound Publishing Company," is merely descrip- tive of the property. Pound v. Pound, 60 Minn. 214, 62 N. W. 204. 8. Clerical error. An obvio'US clerical error, sucti as ought not to have misled the ad- verse party, should be disregai-ded on demurrer, whether it consists merely in a discrepancy or incongruity between different parts of the pleading,^ or the omission of a necessary word which the context sug- gests,^ or the insertion or substitution of a word," even though it re- verses tlie meaning obviously intended. This rule is applied as well to the pleading of a defendant* as to that of a plaintiff ; because if plaintiff wishes a more explicit answer he should seek amendment. ^"One thousand eight and twenty-six" read "one thousand eight hundred and twenty-six;" and special deiraurrer overruled. Athins v. Warrmg- ton, 1 Chitty, PI. 16th Am. ed. 273. Use of "defendant" in place of "plaintiff." 1 Chitty, PI. 16th Am. ed. 253. A petition in an action for personal injuries while coupling cars, alleging that the coupling of the car which plaintiff was ordered to couple was out of repair and rmfit for use, which condition was uuknown to "de- fendant," and could not have been discovered by him by the exercise of reasonable diligence, but could have been ascertained by the defendant's said agents, employees, and servants by the exercise of reasonable care, is not defective because of the clerical error in using "defendant" for "plaintiff." Kentucky G. R. Go. v. Carr, 19 Ky. L. Ilep. 1172, 43 S, W. 193. A demurrer will not be sustained merely for erroneous mention of the "defendants" as singular, or the "plaintiff" as plui-al, if, upon the declaration as a whole, the persons and c?se can be understood. Wood V. Decoster, 66 Me. 542. The omission of the letter "s" in a complaint entitled against two defend- ants, and consisting of a printed form with the blank spaces filled in in writing, alleging a sale of goods "to the defendant," such omission being apparently a clerical error, should be disregarded on demurrer and the allegation deemed to charge both defendants. Chamherlin v. Kaylor, 2 E. D. Smith, 134. V. INTEEPEETATION OF AI,LEGATIONS. 91 The fact that a hill to cancel u, deed alleges that it was executed to com- plainant, instead of defendant, does not render the bill bad on demur- rer, it being evident that defendant was intended ; where the deed, made an exhibit, shows the proper grantee. Piedmont Land Improv. Go. V. Piedmont Powndry & Maoh. Go. 96 Ala. 389, 11 So. 332 (Citing Ear- land V. Person, 93 Ala. 273, 9 So. 379 ) . A mere clerical error in pleading, in using the word "plaintiff," where it is evident the word "defendant" was intended to be used, will be disre- garded. Fry V. GoTburn, 17 Ind. App. 96, 46 N. E. 351 (Citing Landoii V. White, 101 Ind. 249). A clerical error in the name of the defendant in an allegation of a petition is immaterial when not misleading. Knott v. Dubuque & 8. G. R. Go. 84 Iowa, 462, 51 N. W. 57. Merely clerical mistakes, — as, the use of one word or naine for another,— will not vitiate a pleading, where there is no room for doubt as to which one of two words or names the pleader intended to use. War- hritton v. Demorett, 129 Ind. 349, 28 N. E. 613, 27 N. E. 730. The misstatement in a petition to a district court, of the number of the district, will not invalidate the petition, where the parish is named; but such mistake is an immaterial clerical error. Clark v. Comford, 45 La. Ann. 502, 12 So. 763. The statement in a petition in summary proceedings under the New York Code of Civil Procedure, that the petitioner is "lessee or landlord," is manifestly a clerical error, and the judge is warranted in treating the word "lessee" as surplusage and striking it from the petition. Fox v. Beld, 24 Misc. 184, 52 N. Y. Supp. 724. A complaint, alleging in one paragraph facts showing a cause of action for piece of work done and materials furnished, is not demurrable for in- sufficiency 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 allegation?, under the rule requiring pleadings to be construed with a view to sub- stantial justice between the parties. McCarron v. Cahill, 15 Abb. N. C. 2S2, 1 How. Pr. N. S. 305. That a complaint first alleged that the defendant agreed to manufacture . and deliver certain goods "at the price of $475," and further alleged that "plaintiff agreed to pay the defendant therefor the sum of $470," does not render it demurrable, since the discrepancy is probably a cler- ical error. Fickett v. Brice, 22 How. Pr. 194. The mistake in a complaint entitling the plaintiff as administrator of the estate of a certain person deceased, and in the jurat stating that he is administrator of the estate of such person deceased, "the plaintiff in this action," in making it appear that it is an action in favor of such administrator as an individual, is trifling and immaterial, and should be disregarded or corrected as of coui-se, without terms or delay; and any correction necessary is made by an answer admitting that the de- cedent ovnied the booms for storage in which the action is brought, and charging her with negligence, and alleging it to be the same transaction 92 BEIEF ON PLEADINGS ^DKMUEKEE. Bet forth in, the complaint, and admitting the date of the death of such decedent to be such that the plaintiff could not have been personally interested as an individual in the services. Ghomdos v. Eckowrds, 8ft Wis. 493, 56 N. W. 1098. ' In an action on a note, the omission from the clause where the averment of nonpayment was intended of the word "not," and therefore saying "defendant, disregarding, etc., hath paid," etc., instead of "hath not paid," is cured by the statute of "jeofails;" and if it were not, where the sense is so obvious from the words used, the declaration must be held good. Baldwin v. Banks, 20 111. 48, 71 Am. Dec. 249. Allegation that a bond was conditioned that defendant should not appear, instead of that he should appear, held amendable below, and disre- garded on appeal. Cummings v. Lebo, 2 Kawle, 23, 19 Am. Dec. 615. Plaintiff, instead of plaintiffs, in laying damages in declaration by hus- band and wife for slander of wife, not ground for setting aside verdict. Newcomer v. Kean, 57 Md. 121. Mistake of ten years in date of document, as appearing in copy of com- plaint served, not ground of demiu-rer. Marshall v. Bresler, 1 How. Pr. N. S. 217. The averment in a complaint, of the incorporation of a company, is not invalidated by an inadvertent reference to N. Y. Laws 1848, chap. 41, instead of chap. 40, as the act under which it was incorporated. KoJil- meU V. Calkins, 16 App. Div. 518, 44 N. Y. Supp. 1031. In Chamhers v. Robhins, 28 Conn. 544, 650, an illegible word in the origi- nal, represented by a mistaken word in the copy, was held equivalent to an omission of a necessary word. 'Allegation that plaintiff was injured by the negligence of an engineer in "plaintiff's" employ, instead of in "defendant's," is harmless, as "so apparently only an accidental misnaming of a party, that no one could be misled by it." Indiana, B. & W. R. Go. v. Dailey, 110 Ind. 75, 10 N. E. 031. In an action by an administratrix for causing the death of the intestate, an allegation that "said defendant [instead of said decedent] left liim surviving his widow,'' etc., is an obvious clerical error that could not have misled, and should be disregarded. Eenney v. New York G. & H. R. R. Co. 49 Hun, 535, 2 N. Y. Supp. 512. An allegation in a complaint on a note made an exhibit, and which is signed by a company and two other persons, that the latter two signed the note as "security," will be construed to mean that they signed it as "surety." Albany Furniture Co. v. Merchants' Nat. Bank, 17 Ind. App. 93, 46 N. E. 479. Complaint on insurance policy, alleging that the fire was not caused by any of the "accepted risks" contained in the policy, instead of "ex- cepted risks." Roussel v. St. Nicholas Ins. Go. 9 Jones & S. 279, 52 How. Pr. 495. •The writing of a wrong najne in a plea is immaterial when, from an in- spection of the entire plea, it is manifest that it was so written throiigb mistake, and it is obvious what name was intended, without looking V. ^IMTEBPRETATIOH- OF ALLEGATIONS. 93 beyond the plea itself; for in such case, if the party is misled, it is by his own carelessness. Fears v. Albea, 69 Tex. 437, 6 S. W. 286. 9. Grrammatical ambiguity. Whether a personal pronoun shall be understood as referring to the immediately preceding substantive or to an earlier one, is a question •of interpretation to be determined by the apparent intent^ although it may be contrary to the grammatical construction. Thus, the words "the plaintiffs, complaining of the defendants, al- lege that they are,'"' etc., is to be intea-preted as alleging that the de- fendants are or that the plaintiffs are, whidi ever may be necessary to sustain the pleading.^ A complaint alleging the existence of a fact in the present tense will be construed as referring to the time of the commencement of the ac- tion, and not bo the time of verification, which was subsequent to the filing, where the complaint need not have been verified at all.^ " There is no rule of legal or grammatical construction which necessarily requires that a pronoun shall relate to the last noun or nouns men- tioned for its antecedent. This is a matter which is governed by the sense and meaning intended to be conveyed. Thus, in an action to recover land, where the complaint commenced by stating that plaintiffs, naming them, "complain of the defendants," naming them, "and say they are the owners," the word "they" was held to relate to the plain- tiffs, and the complaint was sustained. Steeple v. Downing, 60 Ind. 478. Where the complaint stated that "plaintiffs complain of the defendants, and say they are partners," it was held that the personal pronoun re- ferred to the plaintiffs and that a demurrer to the complaint was prop- erly overruled. Moore v. Beem, 83 Ind. 219. A complaint in an action to recover for medical services, stating that plaintiff complains that defendant is indebted to him for medical treat- ment to himself and servant, is not demurrable on the ground that it charges that the services were rendered by plaintiff for plaintiff. Deo- enbaugh v. Nifer, 3 Ind. App. 379, 29 N. E. 923. The substantial allegations of a declai'ation in an action of tort brought originally against two defendants, from which one defendant has been stricken by amendment, without otherwise altering its language, are to be read and understood as if there had been but one defendant originally. Chattanooga, R. & 0. R. Co. v. Whitehead, 89 Ga. 190, 15 S. E. 44. Heirs substituted as defendants in place of a deceased ancestor stand in the same relation to the plaintiff, and the allegations of the complaint apply to them as to the original defendants. Chamip v. Kendriok, 130 Ind. 549, 30 N. E. 787. A petition alleging that defendant carelessly and negligently hitched and 94 BEIEF ON PLEADINGS ^DEMUEEBK. fastened plaintiff's bull behind a two-horse wagon at his premises, and by such means pulled and drove it unmercifully along the highway, sufficiently shows that the bull, and not the wagon, was treated umner- cifully. Parsons v. Mayfield, 73 Mo. App. 309. 'Bonnow v. Delmue, 23 Nev. 29, 41 Pae. 1074. A complaint in an action on a street assessment, alleging that, in the con- tract for doing the work, the superintendent of streets fixed the timfr for beginning the work to be within fifteen days "from the date there- of," and the time of completing said work to be within a specified num ber of days "thereafter," will be construed as meaning that the worl was to be completed within the specified time after the date of the con- tract, instead of within such time after the beginning of the work Palmer v. Burnham, 120 Cal. 364, 52 Pac. 664, 1080, Affirming in Banc- 47 Pac. 599. An allegation that, "by reason of the injuries sustained, the plaintiff ha& lost the use of her left hand," will be construed to mean a, permanent loss of the member, and not a past loss. Harvard v. SUles, 54 Neb. 26, 74 N. W. 399. An allegation of time in one of two clauses in a declaration connected by the conjunction "and" applies to the other clause. Parker v. Burgess, 64 Vt. 442, 24 Atl. 743. 10. Fact necessarily implied. Allegations will be liberally construed, so as to covei- fiuch facts as are fairly and 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 toi be suf£eiently alleged although not ex- pressly stated. Thus, an allegation of a refusal to exchange, though often requested, implies an offer and ability to give the thing called for by the requested exchange;^ an allegation that a married woman was the o^vner of stock in a corporation implies that she had capacity to hold it f and an allegation that an act was done implies the exist- ence and use of the essential meajis for doing it effectually.* But facts necessarily implied in an allegation of a conclusion of law are not sufficiently alleged thereby,' because an allegation of a conclusion of law is itself insufficient. ' Dissette v. Lowrie, 6 Ohio IST. P. 392 ; Reddick v. Weii, 6 Okla. 392, 50 Pac. 363 (Citing Carroll v. 8mft, 10 Ind. App. 170, 37 N. E. 1061 j Ceezewzka v. Benton-Bellefoniaine B. Go. 121 Mo. 201, 25 S. W. 911; J. Thompson d Sons Mfg. Go. v. Perl- ins, 97 Iowa, 607, 66 N. W. 874; Thomas v. Sweet, 37 Kan. 183, 14 Pac. 545). V. INTEEPBETATION OF ALLEGATIONS. 95 Particular instances of implication. Accounting. In an action upon the official bond of a county dispenser of intoxicating liquors, allegations that the defendant refuses to "account for, pay, and remit the price'' of spirituous beverages furnished him, but has only "accounted for, paid, or remitted" a certain sum, and "has thus misap- propriated, misused, and wiongfully disposed of" a specified amount, will be construed as intending to charge that the liquors which came into his hands were sold by him and that he failed to properly account for the proceeds, and is not demunable for want of such averments. Guy V. UcDaniel, 51 S. C. 436, 29 S. E. 196. Agreement. In a complaint to recover a sum provided for in a contract of employment, in case the employer shall elect to terminate ttie employment, an alle- gation that defendant dismissed the plaintiflF from his employment, giv- ing as a reason the winding up of his business, is equivalent to an alle- gation that he had elected to terminate the agreement. Hecht v. Brandus, 4 Misc. 58, 23 ^t^. Y. Supp. 865, 1004, Affirming 2 Misc. 471, 21 N. Y. Supp. 1034. It is to be understood, by an allegation in a, complaint that a party "agreed" to do a certain thing, that he agreed to do it in a valid and legal manner; and if writing be necessary to a valid agreement, such agreement will be taken to mean that he agreed in writing. Jenkinson Y. Vermillion, 3 S. D. 238, 52 N. W. 1066. An allegation that parties entered into a contract therefor, in a petition to enforce the specific performance of a contract to convey land, will, on demurrer, be construed to mean a contract in writing. Sundbaok v. Gilbert, 8 S. D. 359, 66 N. W. 941. Control. The averment in a petition in an action for personal injuries, that the de- fendant "occupied" the locus in quo as a, place of business, is, by rea- sonable intendment, an averment that defendant had control of the same. Glack v. Southern Electrical Supply Go. 72 Mo. App. 506. Corporations. The averment in a complaint in an action to enforce the personal liability of directors of a corporation, that the defendants were officers and directors of the corporation and failed and neglected to file the required report, is equivalent to an averment in the language of the statute that the corporation failed to file the report. Bradford v. Gulley, 10 Colo. App. 146, 50 Pac. 314. Demand. That a demand was made by plaintiff is fairly to be inferred from the 96 BE1E1-' ON PLEADINGS ^DEMUBEEK. aveiraent in a complaint in an action on policies of life insurance, that satisfactory proofs of death were delivered by the plaintiff, and pay- ment was demanded, and refused by defendant. Ohlsen v. Equitable L. Assur. 8oc. 25 Misc. 230, 55 N. Y. Supp. 73. Duly. An allegation in an action against a city to recover on warrants issued in payment of the contract price for grading a street, that such contract was "duly" entered into, is equivalent to an allegation that it was entered into under a valid ordinance therefor. Bank of British Colum- hia V. Port Townsend, 16 Wash. 450, 47 Pac. 896. Fee. A declaration in a suit to recover an attorney's fee stipulated for in a note, which, as well as the stipulation, is described in the declaration, is to be regarded, where defendant stands on a general demurrer, a-s alleging in substance that the stipulated fee is a reasonable one for the services to be rendered. Dorsey v. Wolff; 142 111. 589, 18 L. R. A. 428, 32 N. E. 495. Eomestead. A denial in an answer in an action to quiet title, that the property i;i con- troversy is the homestead of plaintiff and her husband, as against the judgment of defendant, is equivalent to an allegation that it is their homestead, but that it is subject to sale in satisfaction of the judgment. Miiohell v. McCormick, 22 Mont. 249, 56 Pac. 216. Knowledge. An allegation that representations were false and fraudulent implies that the party making them knew of their falsity, t'orsyth v. Vehmeyer, 176 111. 359, 52 N. E. 55. An allegation in a complaint in an action against a railroad company for the deatli of an employee, that lie did not know of the use of tlocks in switches, or other devices to protect against accidents caused by catch- ing one's foot, authorizes the conclusion that none of the switches on defendant's road were blocked, and that he knew it. Sheets v. Chicago <£• I. Goal B. Co. 139 Ind. 082, 39 N. E. 154. An allegation in a petition, that u, railroad company negligently permitted a brake rod to become defective, and negligently suffered it to remain in a. defective condition, implies that the company either knew or should have known of the defect. Chicago, B. & Q. R. Co. v. Kellogg, '55 Neb. 748, 70 N. W. 462 (Citing O'Connor v. Illinois G. R. Co. 83 Iowa, 105, 48 N. W. 1002; Louisville, E. & St. L. Gonsol. B. Co. v. Utz, 133 Ind. 265, 32 N. E. 881; Crane v. Missouri P. R. Co. 87 Mo. 588). Material furnished. An allegation in the cojnplaint in an action by a materialman to enforce a V. ^i:^'TEKPXiEXATIOiq OF ALLEGATIONS. 97 mechanics' lien, that he began to furnish lumber November 2, 1889, and that all the lumber and material were furnished between that time and May 20, 1890, implies that the last of the material was furnished on the latter date. Rust-Owen Lumier Co. v. Fiteh, 3 S. D. 213, 52 N. W. 879 (Citing McGrea v. Craig, 23 Cal. 522). Mistake. An allegation that it was agreed and understood between the parties to a deed that it should be and was a mortgage is a sufficient averment from which fraud or mistake in the drafting of the deed may be inferred. Runyon v. Pogue, 19 Ky. L. Eep. 940, 42 S. W. 910. negligence. Negligence of a, railroad company in running its train, which might be imputed to its employee, will not be assumed on a demurrer to the declaration in a suit by his mother for damages for his death against another railroad company which owned the track used by both com- panies, and which maintained a bridge spanning the track (for which it was responsible) without warning ropes and so low as to cause his death while performing his duty on the train passing under it, al- though it is not averred that the employer was ignorant of the danger. Ellison V. Georgia R. & Bkg. Go. 87 Ga. 691, 13 S. E. 809. A petition in an action for personal injuries by a passenger against a rail- road company, which avers that, on approaching a town, the porter called out the name of the town and opened the door to allow passen- gers to get on or off; that thereupon the train stopped, and that plain- tiff, being thereby led to believe that the train was at the station, got off, as he supposed, at the platform, when in fact the train had not reached the station, but had stopped on a trestle, and, it being in the nighttime, the plaintiff stgpped out and fell into an excavation and was injured, — ^will be deemed, by unmistakable intendment, to charge such acts as negligence, even if it does not expressly characterize them as such. Missouri, E. & T. R. Co. v. Overfield, 19 Tex. Civ. App. 440, 47 S. W. 684. Oumership. The averment in a complaint in an action to enforce a mechanic's lien, that a certain corporation was the owner of the premises, by reasonable in- tendment charges that it was the owner of the houses on which the work was done. Stone v. Taylor, 72 Mo. App. 482. An allegation in the complaint of a corporation formed by the consolida- tion of other corporations, that it became the owner of the property of the original corporations, is not an allegation of ownership of stock paid as consideration for such property; nor is it an allegation that the consolidated company is the owner of a credit and all rights under a contract made by one of the original corporations with a third person, before the contract by which the consolidated company transferred its stock to such original company. American Waterworks Co. v. Venner, 18 N. Y. Supp. 379, 45 N. Y. S. R. 441. Abb. Pl. Vol.. I.— 7. 98 BRIEF ON PLEADINGS ^DEMUEEEE. Payment. An allegation that a holder of stock has paid only a certain amount per share thereon, and that such stock is held by him aa an original sub- scriber, is equivalent to an allegation that only such amount has been paid on the stock, as it will not be presumed that such holder trans- ferred the stock to another and subsequently took » transfer back t* himself, and that a payment was made thereon in the interval between such transfers. Ryan v. Jacques, 103 Cal. 280, 37 Pac. 186. An allegation in a suit to recover an overcharge of freight, that an excess was paid, authorizes an inference that it was paid by the shipper, — at least as against a demurrer. Louisville, E. & St. L. Consol. R. Go. y. Wilson, 132 Ind. 517, 18 L. E. A. 105, 32 N. E. 311. Performance. A general allegation in a complaint in an action on an insurance policy, that "plaintiff duly performed all the conditions, on his part, of the policy, to be by him done and performed," includes the special allega- tion that the plaintiff duly rendered the proofs of loss required by the policy. Rieger v. Mechanics' Ins. Co. 69 Mo. App. 674. Receipts. An allegation in an answer that receipts exhibited are those of the plain- tiff's intestate and that he delivered them to the defendant is tanta- mount to an allegation that the decedent made the receipts. Maxwell V. Burbridge, 44 W. Va. 248, 28 S. E. 702. Receiver. An allegation in a complaint that the note in suit was made by defendant* to the order of "plaintiff" is equivalent to an allegation that in the note the plaintiff was described as receiver of a designated person, where the action is brought by him as such. Nelson v. Nugent, 62; Minn. 203, 64 N. W. 392. Street. In an action to enforce a lien for street assessments, under Cal. Stat. 1885, p. 147, providing that all streets in the municipalities of this state, now open or dedicated, or which may hereafter be opened or dedicated, shall be deemed to be open public streets for the purposes of this act, an alle- gation of the passage of a resolution to pave a certain street in a given city is equivalent to an averment that it is an open public street. Bitu- minous Lime Rock Paving & Improv. Co. v. Fulton (Cal.) 33 Pac. 1117. An allegation of a threat to "change the grade" of a street is fairly con- strued to mean a, physical grading of the street, and not merely an ordinance establishing the grade. Searle v. Lead, 10 S. D. 312, 39 L. R. A. 345, 73 N. W. 101. V. ^INTEKPKETATIOW OF ALLEGATIONS. 9i) Taxes. A bill against a county trustee and the sureties on his official bond, stat- ing that the taxes sued for embrace all county, special, school, bond, courthouse, and "all other taxes and revenues" due to the county for specified years from the trustee, "whether specially mentioned or not," is sufficiently broad to cover all taxes and revenues received from any source, or which should have been received or collected. Anderson County V. Hayes, 99 Tenn. 542, 42 S. W. 266. Warranty. An allegation by a warrantee against warrantors, that they had executed the deed with a covenant of warranty, which is set out in the pleading, is equivalent to an allegation that they warranted the title to the land. arant v. Hill (Tex. Civ. App.) 30 S. W. 952. •In Marie v. Garrison, 83 N. Y. 14, 28, Reversing 13 Jones & S. 157, Andrews, J., says: "What is implied in an averment is, on demurrer, to be taken, as if the thing implied is directly averred; and an argu- mentative pleading is not for that reason demurrable." • So held in an action against a married women for an assessment on the stock. Bundy v. Goche, 128 U. S. 185, 32 L. ed. 397, 9 Sup. Ct. Rep. 242. *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. Syfers v. Bradley, 115 Ind. 350, 17 N. E. 619. Au allegation that a deed was executed by the grantor as "assignee in bank- ruptcy" and "in due form of law" sufficiently shows that all the pre- requisites necessai-y to pass to the grantee all the title and interest of the assignee were complied with. Coryell v. Klehm, 157 111. 462, 41 N. E. 864. An allegation that a note by a 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. Sac County v. Holbs, 72 Iowa, 69, 33 N. W. 368. An allegation that a charter had been accepted may be dispensed with where the complaint alleged that the company had succeeded to the rights, privileges, and immunities, and become bovmd by the liabilities of its predecessor. Boierts v. Waiash, St. L. <& P. R. Go. (Mo.; 1886) 3 West. Rep. 783. 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 arbitra- tors 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. Frets v. Frets, 1 Cow. 335. An allegation in a complaint that certain drafts were accepted by a corpo- ration, by its treasurer, includes an avennent of authority in the treasurer to accept the drafts, inasmuch as the company could not ac- cept by him unless Le had such authority. What is necessarily under- stood or implied in a pleading forms part of it, as much as if it were 100 BEIBF ON PLEADINGS DEMUKEEE, expressed. Partridge v. Badger, 25 Barb. 146 (Citing Allen v. Patter- aon, 7 N. Y. 458, 57 Am. Dec. 542; Stephen, PI. 220; 1 Chitty, PI. 640; Beys V. HescUine, 2 Campb. 604; Chitty, Bills, 585). la an action by an assignee of assets of a corporation, if the transfer to him can be presumed legal the complaint need not aver that the direct- ors, by resolution, authorized the assignment, as prescribed by statute. Nelson v. Eaton, 2G N. Y. 410, 16 Abb. Pr. 113, Reversing 7 Abb. Pr. 305, and Affirming 15 How. Pr. 305. ' 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 fact not alleged, because we may infer that the party stated his case as favorably as possible for himself. Church, Ch. J., in Hofheimer v. Camphell, 59 N. Y. 274. But in quo warranto, where the complaint alleged that an election was le- gally held, pursuant to statute, for the election of a county judge to discharge the duties of said office from the first day of January, 1852, for the term of four years, it was held, under the liberal construction of pleadings required by the Code, a sufficient allegation of the time when the election 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. People eao rel. Crane v. Ryder, 12 N. Y. 433. See also chapter iv., § 5, ante, as to Fact not Alleged; and § 1, supra, as to liiBEKAL Construction of Pleadings. 11. Fact not necessarily implied. A fact not necessarily implied will not be inferred.^ This is true although the fact which suggests it is alleged. But an allegation that the adverse party represented a material fact to exist may suffice as against that party, in place of an allegation of the existence of the fact.^ ' An allegation that a board of officers rejected an account because of fraud or mistake is not an allegation of the existence of fraud or mistake on their part. Patton v. State ax rel. McCann, 117 Ind. 585, 19 N. E. 303 (mandamus). Nor does an allegation that trustees refused to comply with a demand for a statement of account imply that the refusal was wrongful, for they may have, shortly before, furnished such an account. Magauran v. Tif- fany, 62 How. Pr. 251, Van Vorst, J., holding that a pleading cannot be sustained upon implications, unless they, of necessity, follow from what has been alleged. An allegation of furnishing proof of interest is not equivalent to an alle- gation of the necessary interest, to satisfy the statute against wager contracts. Williams v. Insurance Co. of N. A. 9 How. Pr. 365. An allegation of lawful ownership of a policy and claim thereon is not equivalent to alleging an insurable interest. Fowler v. New York In- demnity Ins. Go. 26 N. Y. 422, Reversing 23 Barb. 143. V. ^INTEEPEETATION OF ALLEGATIONS. 101 An allegation in a petition to set aside a sale of succession property by an executor, that the purchaser prompted bids, to give an appearance of competitive bidding, does not amount to an allegation that there was a combination to prevent bidding. McDermott's Succession, 51 La. Ann. 173, 24 So. 787. An allegation that one falsely said that another had no title or patent cov- ering an article sold by him is not equivalent to an allegation that he had title or held a patent. Germ Proof Filter Go. v. Pasteur Chamber- Imd Filter Co. 81 Hun, 49, 30 N. Y. Supp. 584. A petition in an action for partition, alleging that the deceased made an advancement to a specified person, husband of a designated daughter, is not equivalent to an allegation of an advancement to the daughter. Boyer v. Boyer, 7 Ohio S. & C. P. Dec. 525. An averment that lands described in a mortgage border upon and lie in what is known and platted upon the government surveys as "Tule lake," and the borders of that lake were, in such surveys, meandered by the United States surveyor, is not equivalent to an allegation that what is known and platted upon the public surveys as Tule lake is or was a body of water. Western Invest. Co. v. Farmers' Jiat. Bank, 35 Or. 298, 57 Pac. 912 (Citing Grant v. Hemphill, 92 Iowa, 218, 59 N. W. 263, 60 N. W. 618). A statement in an action to recover the deficiency on a mortgage foreclos- ure, which merely alleges that the defendants expressly agreed and as- sumed to pay a mortgage as a part of the consideration named in a deed which is referred to as of record and made a part of the state- ment, cannot be construed to aver an assumption of the mortgage by the terms of the deed. Wunderlich v. Badler, 189 Ta. 4G9, 42 Atl. 109. An allegation in a complaint in an action to enjoin a city from proceeding with the construction of a waterworks improvement, that the ordinance provided for the submission of the matter to a majority of the electors, is not equivalent to an allegation that three fifths of the electors did not vote in favor of such improvement. Faulhner r. Seattle, 19 Wash. 320, 53 Pac. 365. In an action for damages from an alleged conspiracy in Tiolation of the act of Congress of July 2, 1890, forbidding conspiracies in restraint of in- terstate commerce, an allegation that plaintiff is engaged in the busi- ness of manufacturing certain articles throughout all the states of the United States and in foreign countries does not suiEciently state that complainant is engaged in interstate commerce. Dueber Watoh-Case Mfg. Co. V. E. Howard Watch & Clock Co. 55 Fed. 851. An inference that plaintiff's knowledge precluded him from being a bona fide purchaser will not be inferred where it does not necessarily follow from the facts alleged. Waite v. Santa Cruz, 75 Fed. 967. An averment of infringement after the issuance of a. patent, and after a certain day named, does not import infringement on and after the date named, so that, in case the suit is not brought until a long time after- wards, it will be defeated by laches. Wyckoff t. Wagner Typewrifr Co. 88 Fed. 515. 102 BRIEF OJT PLBADIIirGS BEMUEEEE. An averment in a complaint in an action by an older county to recover from a new county created out of its territory, an amount paid to it by the state treasurer on account of taxes assessed against railroad prop- erty within the old county before the separation, that taxes were not paid until a date succeeding the separation, and were then paid to the state treasurer, does not warrant an inference of a reassessment after the separation, and an apportionment between the two counties. Colusa County V. Glerm County, 117 Cal. 434, 49 Pac. 457. A complaint in, an action for damages for the burning of a building by sparks from a locomotive does not show that the sparks were not the proximate cause of the fire, by alleging that by the force with which they were thrown out by said locomotive "and the wind," they were thrown and carried upon and against such building, since the word "extraordinary," necessary to make the wind the proximate cause, cannot by construction be inserted. Cincinnati, I. St. L. & G. B. Co. v. Bmock, 133 Ind. 411, 33 N. E. 108. A complaint averring that the defendant railroad company ran its cara and locomotives over the track of another company for a long time does not raise a presumption that the owner of the road had the right to direct the defendant's train operatives, although there is no allegation of a contract between the companies. Cleveland, C. C. d St. L. B. Co. v. Berry, 152 Ind. C07, 46 L. R. A. 33, 53 N. E. 415. That plaintiff was in the service of the defendant railroad company at the time of an accident is not shown by allegations that such company, with another company, was engaged in excavating a tunnel beneath its tracks, and that the plaintiff was in such subway or excavation beneath such tracks. Wendell v. Pennsylvania R. Go. 57 N. J. L. 467, 31 Atl. 720. The failure of an affidavit of defense to set forth all facts necessary to make a legal answer to plaintiff's claim cannot be supplied by possible infer- ences. Chatham "Nat. Bank v. Boardman, 13 Lane. L. Rev. 321, 323. It will not be assumed, on demurrer to a general allegation by plaintiff of a promise or agreement, that it was not in writing. Kilpatrick Koch Dry-Goods Co. v. Boao, 13 Utah, 494, 45 Pac. 629. An allegation in a complaint that a deed to land was tendered by plaintiff and his wife does not necessarily imply, in Washington, that the land tendered was community property. Wooding v. Grain, 10 Wash. 35, 38 Pac. 756. A complaint alleging that a named defendant was a duly appointed, acting, and qualified receiver of a Federal court, and was in charge and had control of the business of a specified street railway company at all the times mentioned in the complaint, does not allege that such defendant was in charge and control as the receiver of the company or its prop- erty. Vasele v. Grant Street Electric R. Go. 16 Wash. 602, 48 Pac. 249. 'Coster V. Isaacs, 16 Abb. Pr. 328, 1 Robt. 176 (married woman who car- ried on a separate business represented that the contract was made for its use). V. INTERPEETATION OF ALLEGATIOIJS. 103 12. Fact presumed by law 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 there- from, as matter of law, is not ground of demurrer if the presumption be conclusiva' And it is the 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 disregard on proof of the facts which have been alleged. [This is not so much a rule of pleading (althoiigh the language of m.any of the cases so treats it), as a reason for disregarding 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 ac- tion or defense is penal in its nature. 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 ambiguous allegation in a sense favorable to his case, will never supply an omitted allegation.] * Earnmoor v. California Ins. Go. 40 Fed. 847. Admiralty: seaworthiness, being presumed, need not be alleged. Brown, J., says: "The primary rule in pleading-is that what must be averred must be proved; and con- versely, 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 Chitty, PI. *221, *222. When, then, it is determined 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 admiralty prac- tice, tends to simplify the pleadings, to dispense with needless techni- calities, and to promote certainty as to the real issues intended to be tried. All the references in adjudged cases to the need of averring set- worthiness proceed upon the supposed need of supplying some prima facie evidence of it. When the legal presumption dispenses with such proof, it should be held to dispense with the averment also; and, as I have said, this rule is a desirable and beneficial one in practice." (Cit- ing Guy V. Ciiiaens' Mut. Ins. Co. 30 Fed. 695). An averment that a party to a suit is a railroad company is equivalent to an averment that it is a common carrier, as, under Colo. Const, art. 15, § 4, all railroad companies in the state are common carriers. Denver & R. G. R. Co. V. CaUll, 8 Colo. App. 158, 45 Pao. 285. A plea of the statute of frauds in an action relating to the sale of lands in another state will be presumed to aver the statute of the state in 104 BRIEF ON PLEADINGS ^DEMDEEEE. which the action is brought, and not that of such other state. IftUer V. Wilson, 146 111. 523, 34 N. E. 1111. In an action to enjoin the sale of lands under an execution against a des- ignated person, an allegation that the plaintiff purchased the lands at a sale by the executors of another designated person having the same surname is sufficient; and no presumption arises that the execution debtor was a son of the decedent, and was not a defendant in the pro- ceeding to sell under the direetion of the will for the payment of the debts of the estate, and, consequently, that his interest was not divested by the sale. Goldthait v. Walker, 134 Ind. 527, 34 N. E. 378. A complaint alleging that defendant pointed out certain lots to plaintiflF'& agent as belonging to himself, for which such agent agreed to exchange a stock of goods belonging to plaintiff, will be held to show a convey- ance to plaintiff of such lots, in the absence of a denial that they were so conveyed, notwithstanding an allegation that the deed given by de- fendant did not describe such lots. Smith y. Roseboom, 13 Ind. App. 284, 41 N. E. 552. The expression "reasonable time" in an answer in an action against a bank for failure to present for acceptance a sight draft sent it for collection, averring that the holder had agreed with the bank that the collection of such paper might be delayed a reasonable time, and that it might hold the drafts a reasonable time without notice of nonacceptance or non- payment, must be interpreted to refer to the time allowed by the law merchant and the custom of banks for presentation, in the absence of any other statement as to the time intended. Citizens' Hat. Bank v. Third Vat. Bank, 19 Ind. App. 69, 49 N. E. 171. Maguiar v. Henry, 84 Ky. 1, 12. Presumption that officer did his duty; and statute shifting burden to prove omission, upon defendant, does not supply omission of one pleading a tax title, to allege assessment and preliminary steps to be valid sales. The reason assigned is that the statute as to pleading requires the facts constituting the cause of action to be stated. A pleading which avers facts from which the law presumes anotljer fact sufficiently pleads that other fatt. Bishop v. Middleton, 43 Neb. 10, 2ft L. R. A. 445, 61 N. W. 129. For conflicting cases, see ilcCormick v. Pickering, 4 N. Y. 276 (presump- tion of regularity of proceedings, and that paper alleged to have been filed and proceeded on was presented to the court). Allegation of seisin in common, in partition, implies possession. Jenkins V. Van Schaack, 3 Paige, 242. At common law the facts which vrill, after verdict, be presumed to have been proved, are those which, though entirely omitted to be stated in the complaint, are so connected with the facts alleged that the facts alleged cannot be proved without proving the facts not alleged. Ad- dington v. Allen, 11 Wend. 374, Reversing 7 Wend. 9. In an action against a maker and indorser of a promissory note, an aver- ment that the note, for value received, lawfully came to the possession of these plaintiffs, is a sufficient averment of title in plaintiff. Lee ▼. Ainslie, 4 Abb. Pr. 463. V. lUTERPEETATION OF ALLEGATIONS. 105 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 that the latter knew of the existence of a custom on which the action is founded. TVhitehouse v. Moore, 13 Abb. Pr. 142. In an action on individual liability, an allegation that the corporation is duly organized and existing does not thereby sufficiently imply the ex- istence of any number of trustees, although the statute requires three or more. Botsford v. Dodge, 65 How. Pr. 145. Contra, Lorillard v. Clyde,. 86 ]Sr. Y. 384. In an action for a, legacy, an allegation that the will was proved three years before suit implies, as against demuri-er, that letters were issued at the time. Foulks v. Foulks, 2 Silv. Sup. Ct. 516, 6 N. Y. Supp. 112. Performance on the plaintiff's part of delivery by him, made a condition in the contract on which he sues, is sufficiently alleged if plainly inferable from other allegations, — as, that the thing was in defendant's posses- sion. 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 more definite and certain. And whatever may be inferred logically and directly from the complaint is,. in judgment of law, contained in it." Coiiyper v. Theall, 4 N. Y. S. R. 674, 26 N. Y. Week. Dig. 73. The fraud of an agent may be treated, for the purposes of pleading, as the fraud of the principal in an action of deceit. Trankla v. McLean, IS Misc. 221, 41 N. Y. Supp. 385. In an action by a sheriff to recover upon a bond given to admit an execution defendant to the liberties of the jail, an averment that "a verdict was rendered against the plaintiff" by reason of the execution defendant's es- cape, is not an allegation that a judgment has been rendered against, him for the escape of the prisoner, as specified in N. Y. Code Civ. Proc. § 162. Buttling v. Hatton, 30 App. Div. 191, 51 N. Y. Supp. 305 (Cit- ing Smith V. McCool, 16 Wall. 560, 21 L. ed. 324; McLaughlin v. Doh- erty, 54 Cal. 519; Blatchford v. Newierry, 100 111. 484; Lockwood v. DUls, 74 Ind. 56 ) . Where, in contemplation 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, an averment in a declaration on such agreement that a dam was built below the old mill sufficiently shows that the old mill had been stopped, since it was a necessary infei-ence that the water was prevented from passing above it. Demurrer overruled. Tileston v. Newell, 13 Mass. 406. Allegations that defendants maliciously obtained a warrant of attachment upon an agricultural lien, and caused all of plaintiff's crops remaining in his possession to be sold thereimder, do not allege or imply a termina- tion of the proceeding under the warrant. Tisdale v. Kinsman, 34 S. C. 326, 13 S. E. 547. Answer of trustee in deed of trust for the benefit of certain creditors in an action, the purpose of which is to divert a part of the trust fund from 106 BRIEF ON PLEADINGS ^.DEMUEKEE. accepting beneficiaries, will be construed to be that of the latter. Al- Kamce Milling Co. v. Eaton, 33 S. W. 588. "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. Therefore, 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 words 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." 1 Chitty, PI. 16th Am. ed. 411 (Citing- Hutchinson v. Granger, 13 Vt. 386). "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, evi- dentiary facts, and even inferences from averments amounting to mere conclusions of law, will be considered in his [the pleader's] favor." Chambers v. Hoover, 3 Wash. Terr. 107, 13 Pac. 466. 13. Presumption of continuance of fact. The rule tliat a fact shown to have one© existed is presumed to con- tinue 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 alle- gation that it existed at a previous time is not made sufficient by that presumption.' ' "Facts must be specifically stated, and conclusions upon inference or ar- gument are not tolerated." Wilkinson v. Dobbie, 12 Blatchf. 298, 301, Fed. Cas. No. 17,670. A special plea interposed to an indictment for usury, that a witness before the grand jury was married and became the wife of the accused on «. day named (which was a day previous to the finding of the indictment), and that after such marriage the accused lived and cohabited with her as his wife, is bad on demurrer. People v. Fadner, 10 Abb. N. C. 462. Contra, Van Rensselaer v. Bonesteel, 24 Barb. 365, which holds that 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 commenced. In the absence of any allegation to the contrary, this is the legal pre- sumption, and need not be alleged or proved. 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. Strwbe v. FeM, 22 Wis. 337. In an action on a judgment, the defendant's plea, alleging execution by the commitment of the debtor, is sufficient against an objection that it does not show discharge or satisfaction of the debt, since the legal presump- tion is that the defendant still remained in prison. Dunning v. Owen, 14 Mass. 157. This ruling may rest on the principle that satisfaction at any time is, in V. INTERPEETATIOIS- OF ALLEGATIOITS. 107 itself, a bar; and therefore the principle stated in the text is not im- pugned, it being for defendant to show a renewal of the obligation. 14. Legal fiction. Under a statute declaring that a speciSed faxjt shall be deemed an- otlier fact, or that the latter shall be presumed from the former, — as, that a written and unconditional promise to accept a bill befoi"e it is drawn shall be deemed an actual acceptance in favor of one purchas- ing on its faith,^ or that payment of a judgment shall be presumed from the lapse of twenty years,^ — it is not necessary in equity, nor under the new procedure, to allege the fact presumed, but the pleader may all^e the actual fact, which by force of the statute is equivalent to it. ' The objection taken was that the complaint was insufficient to uphold the judgment Barney v. Worthington, 37 N. Y. 112, 4 Abb. Pr. N. S. 205; 1 Rev. Stat 768, § 10. -Malloy V. Yanderiilt, 4 Abb. N. C. 127, 133 (holding to the rule stated in the text as the rule in equity, but citing Henderson v. Henderson, 3 Denio, 314, as to the contrary at common law) ; Waldert v. Craig, 14 Pet. 147, 10 L. ed. 393. 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 v. 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. Proc. § 378, expressly making the presumption available under an allegation of a lapse of time. 15. Matters judicially noticed. It is not necessary that matters of which the court should take ju- dicial notice should be alleged in pleading ; and, on demurrer, a plead- ing is to be read as if such matters were stated therein.^ "A complaint for libel states a good cause of action, although no extrinsic facts are set forth explanatory of the language used, w^here the publica- tion complained of is capable of a libelous meaning upon its face, in the light of a matter of common knowledge of which the court can take ju- dicial notice. McDonald v. Press Pub. Co. 55 Fed. 264. An allegation of residence at a certain city need not specify the county or state, when the court judicially knows that it is an incorporated city in the state of the forum. Re Chope, 112 Cal. 630, 44 Pac. 1066. The court will take judicial notice that a town is incorporated; and the fact of incorporation is within Burns's (Ind.) Rev. Stat. 1894, § 377, 108 3EIEF ON PLEADINGS DEMUREEE. providing that neither presumptions of law nor matters of which ju- dicial notice is taken need be stated in the pleading. Thorntovm v. Fugate, 21 Ind. App. 537, 52 N. E. 763. An allegation in the answer in an action on a policy, that the insured changed his business from that of a druggist to that of selling intoxicat- ing liquors, without a license, "and caused the risk to he changed from hazard to extra hazard," is not an allegation that the risk was increased by such change. The averment is, at best, but a conclusion of the pleader. The court is unable to know judicially that the risk was thereby increased, and the paragraph is bad on demurrer, ^tna Ins. Co. V. Norman, 12 Ind. App. 652, 40 N. E. 1116. Judicial cognizance will not be taken of the existence of an ordinance con- cerning which the pleadings are silent. Friestedt v. Dietrich, 84 111. App. 604. To raise a constitutional question, a pleading need not set out the sections of the Constitution, nor refer to them by numbers. State ex rel. Camp- lell V. St. Louis Ct. of Appeals, 97 Mo. 276, 10 S. W. 874. Public statutes may be read as if embodied in the complaint. Walsh v. New York & B. Bridge, 96 N. Y. 427. The allegation in an answer, that the time of payment of a note was ex- tended beyond the time at which, by its terms, it was payable, will not be disregardad in passing upon the sufl&cieney of the pleading, by rea- son of any custom that may exist among banks to extend the time of payment of notes only by renewal. The court would not be justified in taking judicial notice of the manner in which banks conduct their pri- vate business with their customers. Commercial Bank v. Hart, 1& Wash. 303, 38 Pac. 1114. See also chapter l., § 11, ante, and chapter iv., § 6, ante. As to What the Court May Judicially Notice, see particular subjects in Index to Brief on the Facts (second edition), p. 633. See also note Uy Olive V. State (Ala.) 4 L. R. A. 34. VI.— GENERAL EULES, APPLICABLE ON DEMUERER, AS TO THE EEAME AND SUFFICIENCY OF ALLEGA- TIONS. [Tnesei rules, though most frequeatly invoked on demurrecp for in- sufficiency, are stated here because occasionally applicable under de- murrers assigning other gi'ounds.] 1. Directness of allegation. 8. General, limited by specific, allega- 2. — technical words not necessary. tiona. 3. — information and belief. 9. General averment of negative. 4. — recital; "whereas." 10. Indefiniteness and uncertainty. 5. — videlicet. 11. — sometimes fatal. 6. Objection to mode of statement, not 12. Omission of formal allegation re- available, quired by rule of court. 7. Generality. 13. Mixed question of law and fact. 1. Directness 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 respon- sibility of a direct allegation ; such as stating a fact vsrith the qualifi- cation "as it was alleged;"^ or, plaintiffs "have heard and so charged ;"^ or that "defendant ^vill prove tlie following facts," etc.* But a direct allegation, otherwise sufficient, is not rendered bad on demurrer by adding a reference to public records or competent docu- mentaiy evidence, — as, by alleging that the fact is so and so', as "is shown by" such documents.'' ' A hypothetical statement of matters in an affidavit of defense is insuffi- cient; a positive statement is required. Wanner v. Emanuel's Church of Evangelical Asso. 174 Pa. 466, 34 Atl. 188. A complaint must state the ultimate facts constituting the cause of action, by direct allegation, and not by recitals or probative facts. C. Aultman d Co. v. Siglinger, 2 S. D. 442, gO N. W. 911. An affidavit of defense in a suit to foreclose a mechanics' lien, that one de- 110 BEIEF ON PI.EADINGS ^DEMUKEEE. fendant, acting as his own contractor for the erection of the houses de- scribed in the lien, agreed with the other defendant, called the con- tractor in the lien, to do the plastering work upon the houses, including the famishing of the materials; that such other defendant entered upon the performance of the contract, purchasing his material from the plain- tiflf, but failed to complete the contract, the work being completed by a third person, who was paid therefor, such other defendant being in- debted to such owner for advances upon the work ; and alleging that he was not at any time the contractor for the erection or construction of the houses, but merely a subcontractor for the plastering work, and that the materials were sold upon his individual credit, and not fur- nished toward the erection and construction of the houses in such man- ner as to entitle the plaintiff to a lien, — is insufficient, as being argu- mentative and inferential, rather than distinctly and positively avening that such other defendant was not in fact contractor, or that the ma- terials were sold him on his individual credit, and not on the credit of the buildings. Gatanach v. Cassidy, 159 Pa. 474, 28 Atl. 297. Want of probable cause for a prosecution, though a mixed question of fact and law, is a fact for the purpose of pleading, and may be stated di- rectly. O'Neill V. Johnson, 53 Minn. 439, 55 N. W. 601. A statement in an action against the indorser of a promissory note, which contains no averment of due presentation to the maker, demand of pay- ment at the proper time and place, and notice of dishonor, although it speaks of the cost of protest, is insufficient under Pa. act May 25, 1887, requiring the declaration to contain "a concise statement of plaintiff's demand." Chestnut Street Nat. Bank v. Ellis, 161 Pa. 241, 28 Atl. 1082. So, the practice of adding a "common count" in a pleading is not commend- able in view of the requirements of the Nebraska Code that a pleader state the facts constituting his cause of action or defense in ordinary and concise language. Penn Mut. L. Ins. Go. y. Oonoughy, 54 Neb. 123, 74 N. W. 422. And a complaint upon a policy of insurance making the application a part of the contract need not set forth such application under the provision of the California Code that the complaint shall contain a statement of the facts constituting a cause of action in ordinary and concise lan- guage. Gonneeticut Mut. L. Ins. Go. v. McWhirter, 19 0. 0. A. 519, 44 U. S. App. 492, 73 Fed. 444. A complaint which alleges specifically such facts as malce the existence of another fact necessary to be shown, clearly and necessarily appear therefrom, is sufficient as against a general demurrer baaed upon its failure to specifically allege such fact. Duryee v. Friars, 18 Wash. 55, 50 Pac. 583. Thus, a complaint to recover possession of real property is not insufficient because it fails to allege in specific terms that plaintiff is entitled to the possession of the premises, as required by Okla. Code 1890, chap. 70, art. 32, § 5, where such fact fully appears by the facts set forth therein. Carson v. Butt, 4 Okla. 133, 4C Pac. 596. VI. FEAME AND SUFFICIENCY OF AI,LEGATIONS. Ill A petition to recover the penalty imposed for importation of contract la- borers is insufficient where it fails to allege a contract to perform labor or service in the United States, and merely suggests the same by vague allegations and inferences. Holler v. United States, 6 C. C. A. 459, 13. U. S. App. 472, 57 Fed. 490. And a complaint for damages, under the act of Congress of July 2, 1890, from an illegal combination in restraint of trade, must show directly, and not by way of inference, that the acts of defendant resulted in a re- straint or monopoly of interstate commerce. Dueber Watch-Case Mfg^ Co. V. E. Howard Watch d Clock Go. 14 C. C. A. 14, 35 U. S. App. 16, 66 Fed. 637. So, a petition, to piit defendants upon their denial of a partnership between them, ought to be reasonably sufficient by its averments, when inter- preted according to their plain and natural import, to apprise the de- fendants that a partnership and a partnership liability are charged; and such facts should not be left to inference from separate averments. Kessler v. First Nat. Bank, 21 Tex. Civ. App. 98, 51 S. W. 62. But a complaint against a railroad company for damages by reason of an assault upon the plaintiff by a fellow passenger, negligently permitted by defendant, sufficiently shows that the train boarded by plaintiff was a passenger train and that he was a passenger, although such facts are n0t directly alleged, where they are plainly apparent and necessarily implied when all the allegations are considered. Evansville & I. B. Co. V. Darting, 6 Ind. App. 375, 33 N. E. 636. A complaint on a county treasurer's bond, alleging that the treasurer did not, upon being re-elected for a second term, have on hand a stated sum of money collected by him on account of taxes during his preceding term, and "did not account for or pay over to himself as his own suc- cessor said sum of money or any part thereof, but had theretofore con- verted the same to his own use," — is not defective in not directly aver- ring that he had not paid out the funds received by him as required by law. Graves v. State ex rel. Cole, 136 Ind. 406, 36 N. E. 275. In an action under Id. Rev. Stat. § 3364, to compel the discharge of a mort- gage, and to recover damages and penalty, the complaint must directly and unequivocally allege payment of the amount secured by the mort- gage; and an allegation that plaintiff has fully paid and satisfied the notes and mortgage "in so far as the holder of said notes and mortgage is concerned" is insufficient. Oamble v. Canadian & A. Mortg. & T. Co. (Idaho) 55 Pac. 241. Tlie averment in a petition in an action for the recovery of property, that the plaintiff is a married woman, and that her husband "has refused to join her in this suit for the recovery of her separate property and the value of the same," is not a direct allegation that the property for which she sues is her separate property, and is obnoxious to a special exception. Schwulst v. Neely (Tex. Civ. App.) 50 S. W. 608. The petitions of insurance companies intervening in an action by the in- sured for the destruction of property by fire may refer to plaintiff's pe- tition and adopt its allegations as to material facts, instead of directly 112 BEIEF ON PLEADI]S^GS DEMUEEEB. alleging them. Texarkana £ Ft. 8. R. Co. v. Hartford Ins. Co. 17 Tex. Civ. App. 498, 44 S. W. 533. ' An allegation that "said money, as it was alleged, not then being in the treasury of the county, but having been, by the acts and order of the board of county commissioners and county treasurer, appropriated and paid out and expended by and for said county of Saline," is bad on de- murrer. The court said: "It devolved on the plaintiff to state facts, and not a matter of hearsay which someone else may have regarded as a fact." Byington v. Saline County, 37 Kan. 654, 16 Pae. 105. ' Suit in chancery. Williams v. First Preshy. 8oc. 1 Ohio St. 478, 504. Bill to redeem, stating as an excuse for not joining representatives of deceased joint lender, "that the defendant G. alleged, and plaintiff be- lieved the fact to be, that" the money was lent by the two as trustees, and plaintiff was advised that the right to the money survived to G. Egremoni v. Cowell, 5 Beav. 620. In an action for trespass, in which it is alleged that defendant, in violation of a statute, failed to use reasonable means to prevent the spread of hog cholera from his herd, a count in the declaration is demurrable which fails to allege directly that the defendant's swine were infected with such disease, but only charges that defendant had reason to suspect they were so infected. Conard v. Crowdson, 75 111. App. 614. "* Statement that "defendant will prove on said trial, in justification, the following facts and circumstances, that ia," etc., held, not an issuable allegation. Lewis v. Kendall, 6 How. Pr. 59, 64, 1 Code Rep. N. S. 402. An averment by the pleader that, in the same matter, between the same parties, but in a former suit and in another court, he had pleaded pre- scription, is not sufficient as a plea in the present case. AsKbey v. Ash- ley, 41 La. Ann. 102, 5 So. 539. • In an action to enjoin tax commissioners from levying an unequal tax, material allegations, — as, "that for the year 1881, as is shown by the public report and the books of the auditor-general of Pennsylvania, 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 valuation," etc. ; "that for the same year, as is shown by the books and published reports of the auditor-general, a tax was paid into the state treasury," etc., — are not demurrable. The demurrer, of course, admits these allegations of fact to be true. Their materiality is not af- fected by the circumstance that they are stated to appear, also, upon the books and published reports of the auditor-general and the secretary of internal affairs of Pennsylvania. Bayer v. Boyer, 113 U. S. 689, 701, 28 L. ed. 1089, 1092, 5 Sup. Ct. Eep. 706. 2. — technical words not necessary. The word "alleges" or "avers" is not essential.^ But language which imports opinion rather than assertion of fact is wholly in- suiEcient.^ Substantial accuracy of stateuieoit is required under the Cod© system, but not technical exactness.^ ' A pleading is sufficient on general demurrer, although the word "charge" VI. 17RAME AND SUFFICIES-GY OF ALLEGATIONS. 113 is used, if it is evident that the pleader intended to "allege" or "aver" the fact. Johnson v. Helmstaedter, 30 N. J. Eq. 124. " Carter v. Lyman, 33 Miss. 171. 'Norton v. McDevit, 122 N. C. 755, 30 S. E. 24. A demurrer to a petition is properly overruled where the allegations of the petition, although crudely framed, state a cause of action in favor of plaintiff and against defendant. Pleasant Grove Twp. v. Ware, 7 Kan. App. 648, 53 Pac. 885. Verbal precision is not necessary in a pleading in Louisiana, but when a cause of action is presented by the general force and meaning of the al- legations, considered all together, the pleadings should be sustained. Kellar v. Victoria Lumber Go. 45 La. Ann. 476, 12 So. 511. A declaration which contains the necessary allegations, so that judgment according to law and the right of the cause may be given therein, is sufiicient, although it is not artistically and critically drawn. David- son V. Pittslurg, C. C. & St. L. B. Go. 41 W. Va. 407, 23 S. E. 593. In a suit in a Federal court for general administration of a trust by fore- closure of a mortgage, the usual strictness of pleading is not required by those who come in to assert their claims to the property or for pay- ment out of it, where the classification of liens and preferences takes place, particularly in the cases of those commercial mortgages of cor- porate property which are essential instrumentalities of corporate en- terprises. Blake v. Pine Mountain Iron d Coal Co. 22 C. C. A. 430, 43 U. S. App. 490, 76 Fed. 624. Nor is a statement defective because it sets out a cause of action more for- mally and elaborately than is absolutely necessary under the Pennsyl- vania statute, and uses some of the language of the old forms of decla- rations. Smith, K. & F. Co. v. Smith, 166 Pa. 563, 31 Atl. 343. 3. — information and belief. A direct allegation of a fact may be eixpressed to be made "upon information and belief;"^ and is not on that account bad on demur- rer, even wben 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 in- formed,* or that he is advised and believes,' or is informed and be- lieves,® 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 statementsi, instead of a direct 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 statement of information and belief with the words "and he therefore alleges."^ 'Lucas V. Oliver, 34 Ala. 626; Leavenworth v. Pepper, 32 Fed. 718. Abb. Pl. Voi-. I.— 8. 114 BETEF ON PLEADINGS DEMUEBEE. An averment is not objectionable because made on information and belief. Drennen v. Mercantile Trust & Deposit Co. 115 Ala. 592, 39 L. R. A. 623, 23 So. 164. The averment of a complaint in an action against a corporation with ref- erence to facts which are recorded in the books of the corporation may be upon information and belief, notwithstanding that the records of the corporation are open to the plaintiff's inspection. McDermont v. Ana- heim Union Water Co. 124 Cal. 112, 56 Pac. 779. A complaint alleging mistake of fact is not fatally defective in alleging such mistake upon information and belief, where the facts are pecu- liarly within the knowledge of the other party, and the papers from which they can be ascertained are in his control. Delta County v. Oun- nison County, 17 Colo. 41, 28 Pac. 476. The objection that the averments of a complaint are made on information and belief is not a ground of demurrer, either general or special, as such form of averment may be necessary where the verification is made by an attorney. Carpenter v. Smith, 20 Colo. 39, 36 Pac. 789. The defense of payment may be alleged upon information and belief. First Nat. Bank v. Roberts, 2 N. D. 195, 49 N. W. 722. An affidavit of defense by a special partner may allege on information and belief, that upon a renewal of the limited partnership the special capi- tal was wholly unimpaired, as stated in the certificate of renewal, un- der Pa. act 1836 (P. L. p. 144) requiring the affidavit as to the amount of capital belonging to the special partners to be made by a general partner. Blumenthal v. Whitaker, 170 Pa. 309, 33 AU. 103. Affirmative matter in an answer may be alleged upon information and be- lief, with the same effect as in a complaint. Risdon v. Davenport, 4 S. D. 555, 57 N. W. 482. The words "on information and belief," used by a surety sued on a note in alleging "on information and belief" that plaintiff had extended the time of payment without his consent, do not render the answer demur- rable, as the words may be regarded as surplusage. Warburton v. Ralph, 9 Wash. 537, 38 Pac. 140. ' New 1 ork Marbled Iron Works v. Smith, 4 Duer, 362, in which it was held that a motion to dismiss was properly denied. •Bill to discover an assignment of a, lease, which stated that the plaintiff" had been informed that defendants were assignees of a lease wherein there was a covenant that the lessees should gi-ind all their com at plaintiff's mill, is bad on demun-er on the ground that plaintiff had not charged that defendants were assignees. It was not sufficient to allege that plaintiff had been informed that defendants were assignees, but that fact must be positively averred, as in a declaration at law. Oxbridge v. Staveland, 1 Ves. 56. Story, Eq. PI. 251. * Cameron v. Abbott, 30 Ala. 416. An affidavit of defense in Pennsylvania, made upon information, must state that the affiant believes the matters set forth therein to be true. An VI. FRAME AND SUFFICIENCY OF ALLEGATIONS. 115 averment that he is informed and expects to be able to prove certain facts is insufficient. Woods v. Vanhirk, 17 Pa. Co. Ct. 158. But an aiiidavit of defense need not aver that "'affiant is informed, believes, and expects to be able to prove" the facts averred by him, unless he is unable to state the facts as of his own knowledge. Wolf v. Jacobs, 187 Pa. 260, 41 Atl. 27. •Allegation that complainant is advised and believes that defendant did, etc., is not enough. Bill dismissed. Jones v. Coicles, 26 Ala. 612. * An allegation that complainant "is informed and believes" that a certain material facb exists, is not equivalent to an averment of the existence of that fact; but an averment of the existence of the fact, "as complain- ant 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 i.s insufficient. Lucas v. Oliver, 34 Ala. 626. An answer alleging that as "defendant is informed and believes, he denies" all allegations of the complaint, is bad. Shain v. Du Jardin (Cal.) 38 Pac. 529. An allegation that plaintiff "is informed and believes" certain facts is not a, good allegation, as a denial of such allegation would create an imma- terial issue. Smith v. Ferries £ C. H. R. Co. (Cal.) 51 Pac. 710. One who has taken possession of land imder a bond for titles, and asks to be relieved from stipulated payments on the ground of a defect in title, must unequivocally allege the insolvency of the vendor, and an aver- ment on information and belief is not sufficient. Mallard v. Allred, 106 Ga. 503, 32 S. E. 588. In a bill to set aside a deed, allegations of fraud, made on information and belief, cannot be sustained where the facts upon which the belief is founded are not set forth. Murphy v. Murphy, 189 111. 360, 59 N. E. 796. An allegation in a creditor's bill that plaintiff "believes, and has reason to believe," that defendants have committed a specified fraud, does not suf- ficiently charge the fraud, as the fraud must be directly charged. Wil- kinson V. Goodin, 71 Mo. App. 394. Aa affidavit of defense, alleging that affiant has abundant reason to believe facts sought to be set up, is insufficient. It must state the facts of the knowledge of the affiant, or that he is informed, believes, and expects to be able to prove them. Newhold v. Pennoch, 154 Pa. 591, 26 Atl. 606. An allegation in a bill concerning a fundamental fact on which the validity of a, municipal ordinance depends is insufficient, where it is made on "information and beMef" only. Kirchman v. West & South Toiims Street B. Co. 58 111. App. 515. A stockholder in » corporation seeking to intervene in a suit to foreclose its bonds, on the ground of fraud and collusion between the bondhold- ers and the directors, must specifically and fully set forth the facts upon which the charge of fraud is based, and such facts must be sworn to by a person having actual knowledge thereof. Averments upon in- 116 BEIBF Olf PLEADINGS DEM0EEEB. formation and belief are insufficient. Stradley v. Pailthorp, 96 Mich. 287, 35 N. W. 807. An allegation that plaintiff is informed and believes that defendant is, and •was at the times mentioned, the owner of certain stock, is not a suffi- cient allegation of defendant's ownership, either upon information and belief, or otherwise. Bank of Itlorth America v. Rindge, 57 Fed. 279. But an affidavit verifying a bill in an action to recover usury is not insuffi- cient because it is to the effect that the statements in the bill are true to the best knowledge and belief of the affiant. Buquo v. Bank of Erin, (Tenn. Gh. App.) 52 S. W. 775. ■•Egremont r. Cowell, 5 Beav. 620; Story, Eq. PI. 243. 'Under §§ 85, 92, 114, of Ohio Code, providing that allegations of a plead- ing are to be expressed in ordinary language and to be liberally con- strued, 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. Stoutenburg v. Lybrand, 13 Ohio St. 228. The objection that allegations in a complaint are improperly made upon information and belief must be taken by motion, and not by demurrer. Jones Y. Pearl Min. Co. 20 Colo. 417, 38 Pae. 700. Howell T. Fraser, 6 How. Pr. 221; Bement v. Wisner, 1 Code Rep. N. S. 143; Radway r. Mather, 5 Sandf. 654. In the three foregoing cases the allegations were that the party believes, etc. Fry T. Bennett, 5 Sandf. 54, 9 N. Y. Leg. Obs. 330; less fully, 1 Code Rep. N. S. 238 (allegation of fact, adding "as the defendant has been in- formed and believes"). ' Borrowe v. Milhank, 5 Abb. Pr. 28; Da/vis v. Potter, 4 How. Pr. 155, 2 Code Rep. 99. Wells T. Bridgeport Hydraulic Co. 30 Conn. 316, 79 Am. Dec. 250, where an allegation that the petitioner "is informed and verily believes, and thereupon avers," etc., was held a direct and positive averment. So, an allegation that certain representations set forth were "false, as de- ponent has since learned," may be regarded as a positive allegation of falsity, and not on information and belief. Cummings v. Woolley, 16 Abb. Pr. 297, note. Slander. Allegation that, as plaintiffs are informed and believe, defend- ant spoke, etc. Error to sustain demurrer. McKimney v. Roberts, 68 Cal. 192, 8 Pac. 857. Contra, Eos parte Reid, 50 Ala. 439 (application for prohibition, alleging that complainant is informed and believes, and therefore states, not sufficient). 4. — recital; "whereas." In general, a statenient of necessary facts, constituting a part of the cause of action, as distinguished from a matter of inducement, if not made directly, but by way of recital, is bad on demurrer.^ Bat VI. FRAME AND SUFFICIENCY OP ALLEGATION'S. 117 this rule does not apply, either to the promise or the consideration, in a common count in assumpsit* Matter of inducement may be stated parenthetically, or introduced by "whereas."* ■Allegations by way of recital are insufficient at common law, as well as under the Code procedure, and objection thereto may be taken by a gen- eral demurrer. Leadville Water Co. v. Leadville, 22 Colo. 297, 45 Pac. 362. Material facts must be alleged directly, and not by way of recital. Webb V. Wwrd, 122 Ala. 355, 25 So. 48 ; Eriirin v. Central V. Teleph. Co. 148 Ind. 365, 46 N. E. 067, 47 N. E. 663; Sutton v. Todd, 24 Ind. App. 619, 55 N. E. 980; Clyde v. Johnson, 4 N. D. 92, 58 N. W 512; Spiker v. Bohrer, 37 W. Va. 258, 16 S. E. 575. 'In Sheppard v. Peabody Ins. Co. 21 W. Va. 368, Green, 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 declaration, and not by way of recital ; but, though this rule be apparently violated, it has been expressly decided by the court that if in assumpsit, in this common indebitatus 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 v. HoMsford, 10 W. Va. 470, 27 Am. Eep. 571. This con- clusion 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 prescribed 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 declarations positively, but by way of a recital, as after a whereas, yet they had never held that a demurrer to a count in a dec- laration in indebitatus assumpsit would be defective because the prom- ise 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; especially when the forms of common counts, as prescribed by the Eng- lish judges, not only stated the promise after a whereas, but also the consideration." (Citing Robinson, Forms, 550, 551, 554.) At common law, it is sufficient in a declaration to allege a deed or other in- strument, by way of recital, though in a plea it is not. Wells v. Query, Litt. Sel. Cas. (Ky.) 210; 1 Chitty, PI. 16th Am. ed. 309, 310. » 1 Chitty, PI. 16th Am. ed. 296. A defect in the declaration in an action against stockholders to recover upon their personal liability, consisting of the allegation of the material fact of the recovery of judgment against the corporation only as an in- ducement under a "whereas," is merely one of form, and can be taken 118 BEIEF ON PLEADINGS DEMUEEEE. advantage of by a special demurrer only, and not by a general dem-.irrer. fhird »ot. Bank v. Angell, 18 E. I. 1, 29 Atl. 500. 5. — videlicet. A videlicet ctinnot increase or diminish the intrinsic significance of the preceding matter, hut may limit the application thereof, by showing the meaning of words used there. If it is repugnant in substance to the preceding matter it must be rejected as surplusage. If it merely particularizes what was general, in the words preced- ing, they may be construed together.-*^ ' Allegation of sale of "spirituous liquor, to wit, . . . beer," is good, as an allegation of a sale of intoxicating beer. State v. Broion, 51 Conn. 1. Tlie 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. Concerning the use of a videlicet, see Gould, PI. pp. 73, 75. 6. 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 de- ficiency in the mode of stating some fact.^ 'Bethel v. Woodworth, 11 Ohio St. 393, 396. It is error to sustain a demurrer where the essential facts are all alleged, although defectively or improperly. Harnish v. Bramer, 71 Cal. 155, 11 Pac. 888. As to INDEFINITENES.S AND UNCERTAINTY, see §§ 10, 11, infra. 7. Generality. The general rule that wherever a subject comprehends a multipli- city of matters, generality of pleading is allowed,^ is to be talten with the qualification that where there is anything specific in the subject, though consisting in a number of particulars, they must all be enu- merated.^ The failure of a petition to set out the language and date of a written insti'ument is excusable where it is in the possession of the defendant.' An objection to a complaint that it is not sufficiently explicit in its statement of tlie facts must be taken on motion, and not by demurrer.* ' 1 Chitty PI. 16th Am. ed. 346. As to general averments, see Gould, PI. pp. 170, 350. VI. FKAME AND SUFFICIENCY OF ALLEGATIONS. 119 A general charge or statement of a matter of fact is sufficient, and it is. un- necessary to charge minutely all the circtunstances which may conduce to prove the general charge. Dunn v. Johnson, 115 N. C. 249, 20 S. B. 390. A bill for the specific performance of a contract for the sale of land, which alleges that the vendee, through a person who was the agent of the owners, purchased the premises by a contract in writing signed by such agent, is not demurrable for failure to specify the extent and character of the agency. Riley v. Hodgkins, 57 N. J. Eq. 278, 41 Atl. 1099. In a declaration by a purchaser of land against his brokers for false rep- resentations in the sale, a count in the ordinary form for money had and received, with a bill of particulars claiming for cash paid by a mis- take and under misapprehension of fact at the time of the conveyance, is sufficient on demurrer in the absence of any motion for further partic- ulars. Hoist V. Stewart, 161 Mass. 516, 37 N. E. 765. In an action to recover wages, it is not necessary, in response to a special demurrer, to set out in full a correspondence between the plaintiff and the defendant prior to the hiring, where the petition shows that the con- tract of employment was not made in the correspondence, but at a sub- sequent personal interview. Moore v. Kelly <£ J. Co. Ill 6a. 371, 36 S. E. 802. A total want of consideration for a promissory note may be pleaded in gen- eral terms in an action thereon. Ohio Thresher & Engine Go. v. Hensel, 9 Ind. App. 328, 38 N. E. 716. A complaint upon a written contract need not set out fully all its details, but it is sufficient to allege generally the contract terms and prove its full performance upon the trial. Logan v. Berlcshire Apartment Asso. 46 N. Y. S. R. 14, 18 N. Y. Supp. 164. So, plaintiff in an action upon a contract for the manufacture and setting up of a specific article, with details and items of work required to put it in place of a former one, to remove the latter, and to do the work in a specified time, need not allege the details, but only the substantial matters of the contract. Logan v. Berkshire Apartment Bouse, 3 Misc. 296, 22 N. Y. Supp. 776, Affirming 1 Misc. 18, 20 N. Y. Supp. 369. The complaint, in an action by policy holders in a, mutual life insurance company to enjoin the company from making an assessment to pay specified policies claimed to be invalid, alleging that plaintiffs are and have been since a specified date members of defendant company, is suffi- cient without setting forth all the steps taken by them to become mem- bers, or stating the amount of the membership fees or assessments paid by them. Carmien v. Cornell, 148 Ind. 83, 47 N. E. 216 (Citing Elsey V. Odd Fellows' Mut. Relief Asso. 142 Mass. 224, 7 N. E. 844). In an action by a stockholder of a corporation for an accounting of moneys alleged to have been illegally voted by the directors, to the detriment of his rights, in payment of back salary to an officer who, it is further charged, has concealed the financial affairs and books of the corporation from the plaintiff, such allegations are sufficient on general demurrer 120 BEIEF ON PLEADINGS DEMUEEEK. to compel an answer in respect to the payment of salary complained of. Blair v. Telegram Newspaper Co. 172 Mass. 201, 51 N. E. 1080. A bill to enforce the plaintiff's right to stock under an agreement that, ia consideration of the surrender of a license under a patent, and services to be rendered in helping to effect the sale of the patent, he shall be en- titled to a certain portion of any stock received for the patent, need not so particularly aver readiness to convey the license as a bill for specific performance of the contract. Lee v. Electric Typographic Co. 68 Fed. 519. A complaint in an action under Ind. Rev. Stat. 1894, §§ 5632 et seq., to re- cover the amount expended by a township trustee in cleaning out a property owner's allotment of a public ditch, and to foreclose a lien upon the real estate, need not allege in detail all the facts necessary tO' the legal establishment of the alleged public ditch; but an averment that a public drain, which is described, has been duly established and opened as such, is sufficient. Beatty v. Priulen, 13 Ind. App. 507, 41 N. E. 961. A description of the land in the declaration in an action for trespass, as being all that part of a designated quarter of a specified fractional quar- ter lying north of a designated county drain, is sufficiently specific, as such a drain is a known boundary or monument. Husted v. Wil- loughly, 117 Mich. 66, 75 N. W. 279. An allegation in a complaint in an action by an employee of a lessee of a building with the use of an elevator, that at the time of the fall of the elevator he was rightfully and lawfully thereon for the purpose of rais- ing and lowering goods of the lessee, is sufficiently specific as to his right to be on the elevator, without setting out what particular goods he was actually raising or lowering. Ellis v. Waldron, 19 R. I. 369, 33- Atl. 869. It is sufficient in an action for the breach of a covenant of warranty, by the covenantee after eviction under a paramount title, to allege in gen- eral terms an eviction under a title paramount to that of the cove- nantor. Cheney v. Strauhe, 35 Neb. 521, 53 N. W. 479. A complaint in an action against a husband to obtain support for tie wife and her minor children, under Ind. Rev. Stat. 1881, § 5132, on the ground that defendant deserted her and her children without cause, is not bad as being too general because it uses the word "abandoned," in- stead of the word "deserted," in referring to defendant's act of desertion, since the two words convey the same idea. Garr v. Garr, 6 Ind. App. 377, 33 N. E. 805. A complaint by a yard master against a railway company for personal in- juries is sufficiently specific as to the alleged defective condition of an engine, when it alleges that the throttle of the engine lealced, and that there were other defects known to the company which plaintiff is un- able to specify, and which had been long known to the company. Wa- iash & W. R. Co. v. Morgan, 132 Ind. 430, 31 N. E. 661. A complaint for injuries to a railway engineer, caused by a misplaced switch due to a defective switchlock, is sufficiently specific where it sets- VI. IfEAME AND SUFMCIENOY OF ALLEGATIONS. 121 forth the particulars and cause of the accident, and states that the lock was old, worn out, defective, out of repair, broken, and unsafe. Ohio- & M. B. Co. V. Beaton, 137 Ind. 1, 35 N. E. 687. A petition by a railway switchman for injuries from the giving way of a defective brake upon a train upon which he was not employed, but which he was directed to mount, need not allege the particular defect in the brake, but only that the brake was defective. Galveston, H. & 8. A. R. Co. V. Templeton, 87 Tex. 42, 26 S. W. 1066, Affirming (Tex. Civ. App.) 25 S. W. 135. A declaration in an action for personal injuries, alleging that plaintiff was, on a specified day, on a certain train then being used by the receivers of a specified railroad company on a track owned by defendant company,, and that defendant, not regarding its duty, so carelessly and negli- gently conducted itself, that one of its trains was, by defendant, care- lessly and negligently driven against the train on which plaintiff was,. by means of which plaintiff was wounded, injured, and crippled, — set.s out plaintiff's cause of action, with sufficient particularity. Birckhead V. Chesapeake & 0. R. Co. 95 Va. 648, 29 S. E. 678. A complaint in a libel action need not contain an innuendo, where the pub- lication, considered in connection with the inducement, is defamatory on its face. Sharpe v. Larson, 70 Minn. 209, 72 N. W. 961. It is not necessary under Minn. Gen. Stat. 1894, § 5257, to plead in an ac- tion for libel any extrinsic facts for the purpose of showing the appli- cation of the defamatory matter to the plaintiff; but it is sufficient to allege generally that it was published concerning plaintiff. Martin County Bank, v. Day, 73 Minn. 196, 75 N. W. 1115. An averment in a, complaint by subcontractors to enforce their claim against the building, that they were employed by the contractor to- plaster the house and furnish the material, which they did, and that it was worth a stated sum, is sufficient to withstand a demurrer in the absence of a motion to make more specific or for a bill of particulars. Adamson v. Shaner, 3 Ind. App. 448, 29 N. E. 944. A general averment in a petition in an action for relief on the ground of fraud shown to have been committed more than four years before, that the fraud was not discovered by plaintiff until a time within four years before the case was brought, is sufficient to bring the case within the saving clause of the statute of limitations, without specifically setting out when or how the discovery was made, or why it was not made sooner. Zievermk v. Kemper, 50 Ohio St. 208, 34 N. E. 250. A complaint in an action for malicious prosecution may allege that the arrest and imprisonment of plaintiff were procured without reasonable or probable cause, without more specifically stating the facts upon which that ultimate fact rests. Struby-Estabrooh Mercantile Co. v. Eyes, 9 Colo. App. 190, 48 Pac. 663. A complaint for breach of a covenant against encumbrances sufficiently al- leges the existence of a valid encumbrance, in the absence of a motion to make it more specific, by charging that there was a valid and subsisting mortgage on the land for a specified amount, that such mortgage was 122 BEIEF ON PLEADINGS DEMUKEEK. subsequently foreclosed in the proper court of another state, and that the land was sold under decree of such court. Worley v. Hineman, 6 Ind. App. 240, 33 N. E. 260. An allegation in a declaration for injuries to the employee of a telephone company by a current of electricity from the feed wire of an electric street railway, while upon a pole of the fire alarm system of a city, that permission to climb the pole was granted plaintiff by the "city council . . . through its duly authorized officers and agents," is sufficient without stating the name of any particular official or agent. Augusta B. Go. v. A.ndrews, 92 Ga. 706, 19 S. E. 713. A complaint against a railroad company for injuries from fire negligently allowed by it to spread to plaintiff's lands, through the burning of the soil, need not specially aver prudence and care on the part of plaintiff in guarding against fire, although his land is of a combustible nature, but the general allegation that he was without fault is sufficient, unless the facts stated show him guilty of negligence. Chicago & E. R. Co. v. Bmith, 6 Ind. App. 262, 33 N. B. 241. A. complaint in an action by an employee for injuries sustained while min- ing coal, which alleges that "the defendant carelessly, negligently, and wilfully suffered and pei-mitted the roofing in said entrance to be and become unsafe and dangerous, and carelessly, negligently, and wilfully failed to secure said roof by properly propping the same with timbers," — is sufficiently specific to apprise the defendant of the act of negligence relied on. Coal Bluff Min. Co. v. Watts, 6 Ind. App. 347, 33 N. E. 662. A complaint for personal injuries from negligence must set out the facts constituting the negligence with sufficient particularity to apprise de- fendant of the nature of the charge. Conley v. Richmond & D. R. Co. 109 N. C. 692, 14 S. E. 303. But this may be done in general terms. Wills v. Cape Girardeau 8. W. R. Co. 44 Mo. App. 51 (Citing Palmer v. Missouri P. R. Co. 76 Mo". 217; Condon v. Missouri P. R. Co. 78 Mo. 567). An averment that a steamboat company had out its gang plank for the pur- pose of receiving passengers, and that the boat was carelessly moored, and the gang plank carelessly fastened on the boat, is sufficiently par- ticular in its allegation of negligence by the company in so maintaining its gang plank. Croft v. Northwestern 8. 8. Go. 20 Wash. 175, 55 Pac. 42. -A declaration which alleges that a city possessed and controlled certain sidewalks on a street and avenue named, in said city, and suffered them to remain in bad and unsafe repair, and that diverse planks wherewith it was laid were suffered to remain broken and unfastened, by means whereof the plaintiff was injured, — sufficiently sets forth the place where the injury occurred; and if greater particularity is desired, the proper remedy is by motion to make more definite, not by demurrer. Orlando v. Heard, 29 Fla. 581, 11 So. 182. A complaint against a railway company for the killing of a horse, alleg- ing that it went upon the railroad where it was not fenced, at a point immediately north of a certain-named city, is sufficiently specific as to VI. FRAME AND SUFFICIENCY OF ALX-EGATIONS. 123 the place where it entered upon the railroad right of way. Louisville, 2f. A. £ C. R. Co. V. Consolidated Tank Line Co. 4 Ind. App. 40, 30 N. K 159. In a complaint for injuries to an employee in a sawmill, caused by the breaking of a defective rigging causing the saw to swing forward and injure plaintiff, an allegation that his duty required him to be almost directly in front of the saw is sufficiently specific as to whei-e he was required to stand when managing it. Rellonville Mfg. Co. v. Fields, 138 Ind. 58, 36 N. E. 529. A plea of usury, interposed to avoid a deed given to secure a loan, need not be set forth with the particularity required in actions for money; but the bare fact of usury is sufficient. Hollis v. Covenant Bldg. & L. Asso. 104 Ga. 318, 31 S. E. 215. The validity of a tax deed is sufficiently attacked by general averments that it is void, although no attack is made upon the specific ground that the delinquent taxes for a preceding year were not carried forward and en- tered on the tax list of the year for the taxes of which the sale was made, as required by statute, — especially in the absence of any motion for a more specific statement. Snell v. Dubuque d S. C. B. Co. 88 Iowa, 442, 55 N. W. 310. ^ general allegation that a statute or ordinance is invalid because it is, in its substance, violative of the fundamental law, is sufficient where the inference of invalidity is one following from the fundamental law compared with such statute or ordinance. York v. Chicago, B. & Q. R. Go. 56 Neb. 572, 76 N. W. 1065. ''Van Ness v. Hamilton, 19 Johns. 349; Cooper v. Greeley, 1 Denio, 347 (justification of defamation) ; People v. Manhattan Co. 9 Wend. 351 (grounds on which a forfeiture of a charter was sought). A plaintiff suing for an accounting as to matters found to have been in- cluded in a previous accounting should, on opening the latter to allow him to show error and mistake, be required to make clear allegations of the particular errors and mistakes relied upon. Boyt v. Glarkson, 23 Or. 51, 31 Pac. 198. A petition for the replevin of cattle is bad for insufficiency of a description thereof giving only the number, age, and sex. Smith v. McGoole, 5 Kan. App. 713, 46 Pac. 988. A. demurrer to a bill by a corporation to enjoin the collection of taxes on its franchise and stock, on the ground that the statement required by law had been prepared and delivered to the assessor, who did not de- liver it to the state board of equalization, and that such board wrong- fully and unjustly increased the amount of the tax, is properly sus- tained where the bill does not state the particulars of the statement. firemen's Ins. Go. v. Ilogan, 68 111. App. 514. JL declaration by a stockholder in an action for conspiracy to wreck a cor- poration, which charges a sale of the property of the corporation by certain judicial proceedings, should set out sufficient of such proceed- ings to enable the court to detei-mine whether they were binding upon the stockholders. Gottrell v. Tenney, 48 Fed. 716. 124 BRIE]? ON PLEADINGS DEMUEREE. A general allegation in a pleading or a finding of fact in an action to en- join the sale of lands under an execution, that the property is exempt, is insuificient because of omission to allege that the judgment was upon contract, as, by Ind. Rev. Stat. 1888, § 703, the right of exemption exists only on judgments upon contract, express or implied. Qoldthait V. Walker, 134 Ind. 527, 34 N. E. 378. A complaint in an action against a husband, to obtain support for plain- tiff and her minor children, under Ind. Rev. Stat. § 5132, alleging that defendant has renounced the maiTiage covenant, without alleging that he has joined himself to a sect or denomination whose rules and doc- trines forbid a man and woman to dwell together in the conjugal rela- tion, — is insufficient as being too general. Garr v. Garr, 6 Ind. App. 377, 33 N. E. 806. A petition alleging that the cause of the injury to plaintiff while in de- fendant's employ was a pole which was "too near the track" is subject to a special demurrer that it does not allege how near the pole was to- the track. Blackstone v. Gentral B. Go. 105 Ga. 380, 31 S. E. 90. Nor is an averment that a telegraph wire broke and gave way at the point where it was fastened to the pole, with such force that plaintiff was thrown from the top of the pole to the ground, specific enough for good pleading. Ferguson v. Western U. Teleg. Go. 64 N. J. L. 222, 44 AtU 849 (Citing Race v. Easton & A. R. Go. 62 N. J. L. 536, 41 Atl. 710; Central R. Go. v. Vcm Horn, 38 N. J. L. 133 ) . The averment in a, petition in an action for personal injuries that plaintiff has been compelled to incur liability for large sums of money to pro- cure the services of ph3'sicians and medicines for treatment of her in- juries, and will in futuie have to incur such expense, to her damage in an amount stated, is too general to furnish proper notice to defendants of the facts intended to be established thereunder, and is obnoxious to- a special exception on that ground. The Oriental v. Barclay, 16 Tex. Civ. App. 193, 41 S. W. 117. A mere allegation of irreparable injury in a petition for an injunction is insufficient, but the facts must be alleged. Burrus v. Columhus, 105 Ga. 42, 31 S. E. 124. A general allegation in a plea, that "insurance policies are void because not properly framed," is insufficient as against a special demurrer, as it does not point out any defect in the policies. Smith v. Ghampion, 102 Ga. 92, 29 S. E. 160. In a petition for criminally conspiring together to injure plaintifi''s busi- ness, a. count alleging that defendants falsely and libelously wrote and published certain letters and statements must state the particular lil)cl- ous words or statements published. SchuUen v. Bavarian Brewing Co. 96 Ky. 224, 28 S. W. 504. A complaint in an action for libel, or for a conspiracy to circulate a libel, must set forth the specific words of the alleged libel ; and it is not suffi- cient to state merely the effect of the language or that the publication was of a certain defamatory tenor and import. American Book Go. V. Kingdom Book Co. 71 Minn. 363, 73 N. W. 1089. VI. FKAME AND SUFFICIENCY OF ALLEGATIOITS. 125 The provision of Minn. Gen. Stat. 1894, § 5257, dispensing with the in- ducement in pleadings in actions for defamation to show the applica- tion of the language used to the plaintiff, does not dispense with the necessity of averments of extraneous facts to show the meaning of am- biguous language and what it was understood to mean; and if the words, in themselves, are not capable of the offensive meaning attrib- uted to them, reference must be made to the circumstances which give them such meaning. Richmond v. Post, 69 Minn. 457, 72 N. W. 704 (Citing Carter v. Andrews, 16 Pick. 6). Averments in an affidavit of defense to a lien for doors, sash, shutters, and ornamental woodwork, together with flooring, shingles', joists, and other rough lumber, furnished under a contract providing that the con- struction, workmanship, and materials are to be similar to those in a house specified, that the material furnished was not such as the con- tract required, and in consequence of its defective character the house was worth a specified sum less than it othei-wise would have been, — are too general to constitute a defense. Taylor v. Murphy, 148 Pa. 337, 23 Atl. 1134. In an action to recover a surplus arising from the foreclosure of a, mort- gage, an allegation that the plaintiff is entitled to the surplus as mort- gagor is of no avail, unless the conclusion is based on specific facts set out in the pleading. Clyde v. Johnson, 4 N. D. 92, 58 N. W. 512. An allegation of encumbrances upon insured property exceeding those stated in the application, the amounts of which are known to the in- sured and his creditors, but unknown to defendant, — is too general, and subject to special exception. PhoBnioo Assur. Co. v. Hunger Improved Cotton Mach. Mfg. Co. (Tex. Civ. App.) 49 S. W. 271. A petition in an action for malicious prosecution against a justice for hold- ing plaintiff for the grand jury on a proper affidavit charging him with forgery, alleging that the justice's opinion was without probable cause and corrupt, must set forth the facts and circumstances indicating cor- ruption. Hagerman v. Sutherland, 16 Ky. L. Eep. 301, 27 S. W. 982. A complaint for the killing of animals on a railroad track by reason of the neglect of the company to fence the track in accordance with an agree- ment with the owner should allege that fact, and not merely that they were killed through defendant's negligence. Qulf, C. & S. F. R. Co. v. -Washington, 1 O. C. A. 286, 4 U. S. App. 121, 49 Fed. 347. A declaration upon the bond of a constable for using more than necessary force in the execution of a. writ must state facts and circumstances showing that the injury complained of was done by color or by virtue of his office; a general allegation to that effect is insufficient. People use of Rutledge v. Wilmoth, 45 111. App. 73. A petition for a partnership accounting, alleging that defendant is in- debted to a party "in the sum of $ ," without giving the amount of the indebtedness, and that there are many other transactions of the sajne nature, without stating what such transactions are, is subject to exceptions on account of generality. Hill v. Dons (Tex. Civ. App.) 37 S. W. 638. 126 BEIEF O^ PLEADHiTGS DEMUEREE. A bill to establish title to an undivided interest in Washington lands granted by the United States to the heirs of a person named, and claimed by defendants under a decree against heirs of such person, not including plaintiff, and by which plaintiff claims as widow of a grand- son of such person, is demurrable when it fails to state under what law the patent issued, when the ancestor died or where, whether plaintiff and her husband ever lived in Washington, or where they did live, the date of the proceeding and such decree or sale, or that plaintiff asserted any claim prior thereto, or any excuse for her delay in bringing suit. Hershherger v. Blewett, 46 Fed. 704. Upon special demurrer, a broad averment in a bill for infringement of a patent, denying knowledge or use of the invention anywhere, does not sufficiently allege that it has not been patented or described in a printed publication in this or a foreign country. Coop v. Dr. Savage Physical Development Inst. 47 Fed. 899. A bill for infringement of a patent, which gives only an indefinite and gen- eral description of the invention, without exhibiting the patent, but states that it is fully described in a patent of a certain date, without giving even the number or reference to any record in the patent office by which the patent can be identified, — is demurrable, but such defect may be cured by amendment. Eleotrolihration Co. v. Jackson, 52: Fed. 773. An allegation that a machine would not do good work, and that it wa& wholly unfit for the work that it was designed to do, is insufficient as an averment of a, breach of warranty that the machine would do good work, by reason of its indefiniteness and generality. Walter A. Wood Mowing & R. Mach. Co. v. Irons, 10 Ind. App. 454, 36 N. E. 862, Rehearing Denied in 10 Ind. App. 458, 37 N. E. 1046. It is not sufficient to allege generally, in an action by a teacher against a school district to recover damages for breach of the contract to teach, that plaintiff is legally qualified, but the facts constituting a compli- ance with art. 7, § 5, of the Illinois act in force July 1, 1889, which provides that a teacher shall not be employed who, at the time of his employment, has not a certificate of qualification entitling him to teach during the entire term of his employment, must be distinctly and affirm- atively alleged. Stanhope v. Jersey County School Directors, 42 III. App. 570. Tlic averments of an affidavit of defense, by way of reduction or set-off against the amoimt claimed by plaintifl', must be specific as to the amounts claimed in reduction, so that plaintiff may, if he choose, elect to admit them and take judgment for the balance. Cosgrave v. Ham- mill, 173 Pa. 207, 33 Atl. 1045. Allegations of set-off in general terms are not to be regarded. They must be as specific as those used in a statement of claim. Loeser v. Erie City Rag Warehouse, 10 Pa. Super. Ct. 540. A recital that a, petitioner in forcible entry and detainer "is the tenant of the premises, pursuant to an agreement with the landlord," is not a compliance with N. Y. Code Civ. Proc. § 2235, requiring him to de- VI. FEAME AND SUFriCIENCT OF ALLEGATIONS. 127 scribe his interest in the premises. Puehs v. Cohen, 46 N. Y. S. R. 770, 19 N. Y. Supp. 236. An allegation that the provision of a bond and mortgage making the prin- cipal sum payable at the office of the mortgagee in a. state other than that of the residence of the mortgagor was a mere guise to avoid the usury laws of the latter state is a mere conclusion, which must be disregarded unless the facts from which it is deducible are averred. Hieronymus v. New York Nat. Bldg. & L. Asso. 101 Fed. 12. A general allegation that a statute or ordinance was not legally adopted is insufficient where the claim is that it is invalid, not because of its substance, but because it was not regularly passed or adopted. The defect in the proceedings must be specially pleaded. York v. Chicago, B. & Q. E. Co. 56 Neb. 572, 76 N. W. 1065. » Marietta Paper Mfg. Co. v. Bussey, 104 Ga. 477, 31 S. E. 415. 'Sluyter v. Union Cent. L. Ins. Co. 3 Ind. App. 312, 29 N. E. 608; Crocker V. Collins, 37 S. C. 327, 15 S. E. 951. But a paragrapli in a, pleading, averring a parol agreement for a right of way generally, cannot be more specific than the agreement upon which it rests; and the question of the sufficiency of such agi-eement can only be tested upon demurrer, and not by a motion to make the averments more specific. Corns v. Clouser, 137 Ind. 201, 36 N. E. 848. In Illinois the remedy, where a material iict is alleged to generally, ii by demurrer, instead of by pleading and submitting the issiies to the jury. Illinois G. li. Co. v. Creighton, 63 111. App. 165. A defendant desiring a more specific allegation of a fact averred in the complaint should call for it by special exception, and cannot raise a question by objections to the testimony ofi'ered in support of the alle gation. Paris & G. N. R. Co. v. Greiner, 84 Tex. 443, 19 S. W. 564. A special demurrer that the declaration states no item of damage is not good where the declaration does state such an item, but needs further certainty and particularity. Casey & H. Mfg. Co. v. Dalton Ice Co. 94 Ga. 407, 20 S. E. 333. An averment that the train of the defendant railway company was so neg- ligently and improperly operated that a horse being driven on the high- way was frightened by the sound of the whistle, and overturned the carriage to the plaintiff's injury, although too general to constitute good pleading, cannot be challenged by general demurrer. Race v. Boston & A. R. Co. 62 N. J. L. 536, 41 Atl. 710. See also chapter I., § 6, ante, and chapter vn., post. 8. General, limited by specific, allegations. If general and specific allegations as to the same matter are eoiu- bined, the general will be referred to, construed, and controlled by the specific;^ and will be insufficient if tlie specific allegations are infiuffieient,^ even though it be such tliat it would have been sufficient had it stood alone. 128 JJEIEl' OJSr PLEADIl^GS DEMUBKEK. A general avea-ment of freedom from contributory negligence is ■sufficient in Indiana as against a demurrer, unless the facts specific- ally set forth show negligence.* ^Frain v. Burgett, 152 Ind. 56, 50 N. E. 873, 52 N. E. 395; GarUon v. Preslyterian Bd. of Relief for D. M. 67 Minn. 436, 70 N. W. 3. A specific statement of facts in a, pleading controls a general statement in introduction or conclusion. Wild v. Oregon Short Line & XJ. N. R. Co. 21 Or. 159, 27 Pac. 954. A general averment, in a complaint on a fire policy, of performance of all the conditions thereof by the assured, although it precedes the allega- tions of loss, will be construed in accordance with his evident intention, as applying to and qualifying his conduct up to the commencement of the action, including the giving of notice of the loss. Germania F. Ins. Co. v. Dechard, 3 Ind. App. 361, 28 N. E. 868. But specific allegations in the pleading, in order to control the general allegation, must be clearly repugnant thereto and must show that the general allegations are untrue. Warhrition v. Demorett, 129 Ind. 349, 28 N. E. 613, 27 N. E. 730. Specific averments in a pleading, of facts essential to a. recovery, should not be enlarged by construction so as to control and render nugatory general averments which would otherwise be sufficient. Germania F. Ins. Co. V. Decka/rd, 3 Ind. App. 361, 28 N. E. 868. The general allegation in a complaint in ejectment, that defendant wrong- fully detained the possession, is overcome by allegations of specific facts showing that he is not in possession. Gowan v. Bensel, 53 Minn. 46, 54 N. W. 934. A specific averment in replevin, that defendant is in possession claiming under a will, overcomes general allegations of unlawful possession and wrongful detention. Thieme v. Zumpe, 152 Ind. 359, 52 N. E. 449, Aflirraing on Rehearing 51 N. E. 86. A plaintiff in ejectment who makes specific allegations of title must fail if such allegations do not show title, although his complaint contains a general allegation of title. Morgan v. Lake Shore & M. 8. R. Co. 130 Ind. 101, 28 N. E. 548. A statement in ejectment of the number of feet frontage, being one of quantity merely, will be controlled by a statement therein of boundary or of courses and distances. Goodbub v. Seheller, 3 Ind. App. 318, 29 N. E. 610. Special averments of negligence in a. petition control a general averment of negligence, and limit the issues to the acts of negligence specially set up. Missouri, E. & T. R. Co. v. Vance (Tex. Civ. App.) 41 S. W. 167. ^ A defendant who undertakes to set forth in detail the facts upon which he relies for his defense cannot, when these taken together fail to show a legal defense, save himself by the general declaration at the close of the affidavit of defense that he has a just and true defense to the whole of plaintiff's claim. KeUij v. ShiUingsburg, 2 Pa. Super. Ct. 576. ^■i- PKAMJi AND Sl'I^'FICIENOY OF ALLEGATIONS. 129 An averment in a complaint in an action upon the official bond of a county dispenser of liquor, that the obligor "has not well and truly performed his duty and obeyed the laws in force at the time of the execution of the bond, or since enacted," while of itself too general an assignment of a breach, is sufficient in view of preceding allegations that he refuses to account for and pay over the price of liquors sold by him as dispenser. Guy V. McDar.iel, 51 S. C. 436, 29 S. E. 196. The general avei-ments of the identity of two corporations, and of the agency of one for the other, in a petition which seeks to hold one of them personally liable upon a note given by the other, are overcome by averments showing that, though the corporations were organized to con- duet the same kind of business, and have the same stockholders, they nevertheless have separate existences. White v. Pecos Land & Water Co. 18 Tex. Civ. App. 034, 45 S. W. 207 (Citing Exchange Bank v. J/ neon Constr. Co. 97 Ga. 1, sub nom. McTighe v. Macon Constr. Co. 33 L. R. A. 800, 25 S. E. 326 ; Button v. Hoffman, 61 Wis. 20, 50 Am. Rep. 131, 20 N. W. 667; Pullman's Palace Car Co. v. Missouri P. R. Co. 115 U. S. 596, 29 L. ed. 502, 6 Sup. Ct. Rep. 194; Atchison, T. & S. F. R. Co. V. Cochran, 43 Kan. 225, 7 L. R. A. 414, 23 Pac. 151; Rich- mond £ I. Constr. Co. v. Richmond N. I. & B. R. Co. 34 L. R. A. 625, 15 C. C. A. 289, 31 U. S. App. 704, 68 Fed. 105; Parker v. Bethel Hotel Co. 96 Tenn. 252, 31 L. R. A. 706, 34 S. W. 209). An answer in a suit upon a promissory note, attempting to allege want of consideration and to state specifically the facts, but not alleging suffi- cient facts, is not aided by a general averaient of want of consideration or benefit. Parker v. Jewett, 52 Minn. 514, 55 N. W. 56. Story, Eq. PL 32 (Citing Ellis v. Golman, 25 Beav. 662). See also Incon- sistent Allegations, chapter rv., § 3, ante. *Cilizens' Street R. Co. v. Abright, 14 Ind. App. 433, 42 N. E. 238, 1028: Spencer v. Ohio £ M. R. Co. 130 Ind. 181, 29 N. E. 915; Stewart v. Pennsylvania Co. 130 Ind. 242, 29 N. E. 916; Pennsylvania Co. v. McCormack, 131 Ind. 250, 30 N. E. 27; Louisville, E. £ St. L. Consol. R. Co. V. Summers, 131 Ind. 241, 30 N. E. 873; Louisville, E. £ St. L. Consol. R. Co. V. Banning, 131 Ind. 528, 31 N. E. 187; Allen County v. Creviston, 133 Ind. 39, 32 N. E. 735; Evansville & T. H. R. Co. v. Athon, 6 Ind. App. 296, 33 N. E. 469; Pennsylvania Co. v. Witte, 15 Ind. App. 583, 43 N. E. 319, 44 N. E. 377; Summit Coal Co. v. Shaw, 16 Ind. App. 9, 44 N. E. 676; Clark County Cement Co. v. Wright, 16 Ind. App. 630, 45 N. E. 817 ; Peiree v. Oliver, 18 Ind. App. 87, 47 N. E. 485; Decatur v. Sloops, 21 Ind. App. 397, 52 N. E. 623; Bedford v. Woody, 23 Ind. App. 231, 53 N. E. 838. Specific facts are insoifficient to overcome a general averment of freedom from negligence unless an inference of contributory negligence arises from them as a necessary legal conclusion. Pittsburgh, C. £ St. L. R. Co. V. Bennett, 9 Ind. App. 92, 35 N. E. 1033. To overthrow a general averment of freedom from fault, the specific facts must affirmatively show negligence. It is insufficient that they fail to show absence of negligence. 'Neto York, C. £ St. L. R. Co. v. Mushrush, 111 Ind. App. 192, 37 N. E. 954, 38 N. E. 871. ABn. Pl. Vol. I.— 9. 130 BEIEF ON PLEADINGS ^DEMUEEBB, The specific allegation must include all the occurrences, and stand in con- flict with the general allegation of freedom from contributory negli- gence. Pittshurgh, 0. G. & St. L. B. Co. v. Burton, 139 Ind. 357, 37 N. E. 150, 38 N. B. 594. A general allegation of absence of knowledge of defects, in the complaint in an action by an employee for personal injuries, is overcome by alle- gations from which it is evident that plaintiff must have known of the defects, or had the same means and opportunities for such knowledge as the master possessed. Louisville & N. R. Co. v. Kemper, 147 Ind. 561, 47 N. E. 214. Or by facts showing that he could, by the most casual observation, have seen the defects. Stiiart v. New Albany Mfg. Go. 15 Ind. App. 184, 43 N. E. 961. An allegation in a, complaint for injuries sustained through negligence, "that the danger was not apparent, and that the plaintiff was injured without any fault on hia part," is a, sufficient allegation of freedom from contributory negligence, unless special facts alleged show that plaintiff did contribute to the injury. Eureka Block Goal Go. v. Bridge- water, 13 Ind. App. 333, 40 N. E. 1101. To attempt to cross a county bridge with an engine, boiler, and wagon is not per se negligence so gross that an averment thereof in a complaint will overcome the general averment that the party doing so was free from negligence or fault. Allen County v. Greviston, 133 Ind. 39, 32 N. E. 735. Or with a traction steam engine, water tank, and threshing machine. Wahash v. Carver, 129 Ind. 552, 13 L. R. A. 851, 29 N. E. 25; Clark County V. Brod, 3 Ind. App. 585, 29 N. E. 430. Or with a traction engine, unless it clearly appears therefrom that such person was guilty of negligence proximately contributing to the injury. Reinhart v. Martin County, 9 Ind. App. 572, 37 N. E. 38. Averments in a complaint for personal injuries received in a collision, that plaintiff, a laborer employed on defendant's track, was riding on the tender of an engine for the purpose of reaching his place of work, and was riding with his back to the engine, are not, on demurrer, sufficient to show contributory negligence to overcome the general averment of freedom from fault. Cincinnati, I. St. L. & C. R. Go. v. Darling, 13ft Ind. 376, 30 N. E. 416. A general averment that a workman on a railway track, who was killed by a train on another track while getting off the train by which he was carried to his work, was free from contributory negligence, is overcome by specific allegations in the complaint that before he got off he looked and listened for a train which he knew was due about that time, but did not see or hear it, owing to steam escaping from the engine of hia train, and that there was an embankment on the other side of the train which made it inconvenient to alight on that side, where it is not averred that it was impossible to get off there. Steioart v. Pennsyl- vania Co. 130 Ind. 242, 29 N. E. 916. The general averment in a complaint against a street-car company for in- VI. FEA.ME AND SUFHTCIENCY OF ALLEGATIONS. 131 juries to a passenger while getting on a car, of want of contributory- negligence, is not overcome by allegations that the company so con- ducted its business as to require those using its cars to get on and off while the cars were in motion; that while plaintiff was waiting to take a car at the usual and proper place, a motor car and trailer approached the crossing, and plaintiff notified those in charge that he desired to get on; that as the cars neared the crossing they slowed up in a man- ner to invite him to get on, and that he started to get on the trailer, and would have gotten on very easily had not the defendant suddenly and with a violent jerk greatly increased the speed of the ears without notice or warning to plaintiff. Citizens' Street B. Go. v. Spahr, 7 Ind- App. 23, 33 N. E. 446. In an action for maintaining an unsafe passage in a mine, causing injury to an employee, the fact that the complaint shows that the employee attempted to pass through it knowing it to be dark, and does not show that he attempted to provide a light for himself, does not show such contributory negligence as to overcome a general averment of freedom from fault. Parke Govaity Coal Go. v. Barth, 5 Ind. App. 159, 31 N. E. 585. The general averment of due care, freedom from fault, or negligence and want of knowledge of the defective condition of the walk, in a com- plaint in an action for personal injuries, is not nullified by averments to the effect that the string-ers under the walk had become rotten and decayed, and, at places, had entirely rotted away; that there were holes in the ground under the walk, leaving nothing to hold them; that the nails which fastened the boards' to the stringers were gone; and that the boards were loose and warped up at the ends so that a person step- ping on the same would jostle them from their places, so that they would fly up and trip a companion. Huntington v. McGlurg, 22 Ind. App. 261, 53 N. E. 658. 9. General averment of negative. Where a negative kas to be alleged, a general averment is ordi- narily sufficient.^ ' Negligence. Allegation that plaintiff was not guilty of negligence on his part, sufficient. The court siays: "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." Ohio £ M. B. Go. v. Walker, 113 Ind. 196, 15 N. E. 234. A complaint in an action for personal injuries sustained by a girl sixteen years old, as the result of the team which she was driving becoming frightened and running into an obstacle in the highway, sufficiently negatives such an act of imprudence as would characterize an attempt on her part to drive a team of wild and fractious horses on the publio street, where it avers that she was without fault, and was exercising care and skill. Mt. Vernon v. Hoehn, 22 Ind. App. 282, 53 N. E. 664. 132 BEIEF ON PLEADINGS DEMUEREK. But a petition in an action to restrain a tax collector from collecting taxes upon an alleged fraudulent and excessive assessment and valuation of iinrendered property does not sufficiently negative the fact that the assessors submitted to the board of equalization the list of unrendered property as required by law, and that the court did not approve the rolls of unrendered property made up from such list, where it merely avers that the "assessment" was never "presented or referred to the board of equalization," and that the board never passed "directly" upon the "assessment." Glawson Lumber Co. v. Jones, 20 Tex. Civ. App. 208, 49 S. W. 909. 10. Indefiniteness and uncertainty. Under the new procedure, indefiniteness and uncertainty are not reached by a demurrer if tli.e language fairly admits of a co'nstriio- tion that will sustain the pleading.^ The remedy for these defects is by motion to make more definite and certain,^ But in some states an objection that a pleading is ambiguous or uncertain may be taken by a special demurrer.^ A demurrer may also be resorted tO' under the equity practice;* but a necessity for discovery, disclosed by the bill, excuses the de- fect^ ^Roberts v. Samson, 50 Neb. 745, 70 N. W. 384; Stieglitz v. Belding, 20 Misc. 297, 45 N. Y. Supp. 670. 'McFadden v. Stark, 58 Ark. 7, 22 S. W. 884; Dillahunty v. Little Rock & Ft. 8. R. Co. 59 Ark. 629, 27 S. W. 1002, 28 S. W. 657; Murrell v. Henry, 70 Ark. 161, 66 S. W. 647; Sheeks v. Ericm, 130 Ind. 31, 29 N. E. 11; Evansville £ R. R. Go. v. Maddux, 134 Ind. 571, 33 N. E. 345, 34 N. E. 511; Louisville, W. A. <& C. R. Co. v. Bates, 146 Ind. 564, 45 N. E. 108; Louisville, N. A. & C. R. Co. v. Lynch, 147 Ind. 165, 34 L. K. A. 293, 44 N. E. 997, 46 N. E. 471 ; Clow v. Brotmi, 150 Ind. 185, 48 N. E. 1034, 49 N. E. 1057 ; Rodgers v. Baltimore & 0. 8. W. R. Go. 150 Ind. 397, 49 N. E. 453; State ex rel. Morgan v. WorUngmen's Bldg. £ Loom Fund & Sav. Asso. 152 Ind. 278, 53 N. E. 168; McFarlati Carriage Go. v. Potter, 153 Ind. 107, 53 N. E. 465; American Wire Nail Go. V. Cormelly, 8 Ind. App. 398, 35 N. E. 721; Fletcher v. Dulaney. 1 Ind. Terr. 674, 43 S. W. 955; Minter v. Green (Ind. Terr.) 49 S. W. 48; Koboliska v. Swehla, 107 Iowa, 124, 77 N. W. 576; Blake v. Ever- ett, 83 Mass. 248 ; Hirsch v. United States Grand Lodge 0. of B. A. 56 Mo. App. 101 ; Mills v. Rice, 3 Neb. 87 ; Fremont, E. & M. Talley R. Co. V. Harlin, 50 Neb. 698, 36 L. R. A. 417, 70 N. W. 263; Lorillard v. Clyde, 86 N. Y. 384; Stewart v. Bole, 61 Neb. 193, 85 N. W. 33; Daniels V. Baxter, 120 N. C. 14, 26 S. E. 635; Valley R. Go. v. Lake Erie Iron Co. 46 Ohio St. 44, 1 L. R. A. 412, 18 N. E. 486; Quthrie v. Shafer, T Okla. 459, 54 Pac. 698; Cave v. Gill, 59 S. C. 256, 37 S. E. 817; Jackins V. Dickinson, 39 S. C. 436, 17 S. E. 996 ; Garrett v. Weinberg, 50 S. 0. 310, 27 S. E. 770; McQuesten v. Morrill, 12 Wash. 335, 41 Pac. 56; VI. FRAME AND SUl'FICIENCT OF AT^LEGATIONS. 133 Fares v. Oleason, 14 Wash. 657, 45 Pao. 314; Johnston v. Northwestern Live Stock Ins. Go. 94 Wis. 117, 68 N. W. 868. It is not the office of a motion to make the complaint more definite and certain, to determine whether a pleading is demurrable. Van Tassell V. Beeoher, 8 Misc. 26, 28 N. Y. Supp. 73. Nor to cure fatal defects in pleadings, but to secure definite statements in pleadings which are sufiieient in substance, but not in form. Chicago, R. I. d P. R. Co. V. Shepherd, 39 Neb. 523, 58 N. W. 189. The filing of a general demurrer to a petition, and the action of the court thereon, will preclude a defendant from taking advantage of a, motion subsequently filed to make the petition more definite and certain. Cald- well V. Brown, 9 Ohio C. C. 691. A petition alleging that defendant having a subsequent chattel mortgage on a flock of sheep upon which plaintiff had a prior mortgage, for the purpose of defrauding creditors of the mortgagors, and especially plain- tiflT, induced the mortgagors to sell and dispose of all the sheep, and fraudulently collected and retained the proceeds, — sets forth an action- able wrong, and, if indefinite and uncertain, may be amended, and is not subject to demurrer. Cone v. Ivinson, 4 Wyo. 230, 35 Pac. 933. 'Rycm V. Jacques, 103 Cal. 280, 37 Pac. 186; Santa Barbara v. Eldred, 108 Cal. 294, 41 Pac. 410; Barber v. Mulford, 117 Cal. 356, 49 Pac. 206; Jossey V. Stapleton, 57 Ga. 144; Priniup v. Rome Land Co. 90 G-a. 180, IS S. E. 764; King v. Oregon Short-Line R. Go. (Idaho) 55 Pac. 665 (Citing Woodward v. Oregon R. & Nav. Co. 18 Or. 289, 22 Pac. 1076; McPherson v. Pacific Bridge Go. 20 Or. 486, 26 Pac. 560; Batterson v. Chicago & 0. T. R. Co. 49 Mich. 184, 13 N. W. 508; Pullman's Palace Car Co. V. Martin, 92 Ga. 161, 18 S. E. 364; Steffe v. Old Colony R. Co. 156 Mass. 262, 30 N. E. 1137; Gonley v. Richmond & D. R. Co. 109 N. C. 692, 14 S. E. 303; Price v. Atchison Water Co. 58 Kan. 551, 50 Pac. 450) ; Burgess v. Helin, 24 Nev. 242, 51 Pac. 1025; Bonner v. Moora, 3 Tex. Civ. App. 416, 22 S. W. 272. Failure of a complaint to recover land as community property of plaintiff's mother and her husband, to negative the statutory exceptions to the definition of community property, can be questioned only by special demurrer for uncertainty. Jacobson v. Bwnher Hill & 8. Min. & Con- centrating Co. 2 Idaho, 863, 28 Pac. 396. A demurrer to a complaint as ambiguous, uncertain, and unintelligible is insufficient, under Mont. Code Civ. Proc. div. 1, § 87, where it does not specify the defects rendering the complaint amenable to the objection made. Jacobs Sultan Co. v. Union Mercantile Co. 17 Mont. 61, 42 Pac. 109. A defect in a complaint cannot be reached by a demurrer on the ground of ambiguity, unintelligibility, and uncertainty, which purports to specify the defects complained of, and does not include the one in question. Jones V. Rich, 20 Mont. 289, 50 Pac. 936. *Einsteim v. Schnebly, 89 Fed. 540. Bill for discovery and delivery of title deeds, possession of estates and account. The bill stated generally that, under some deeds in the cua- 134 BEIEF OX PLEADINGS DEMUERBB. tody of defendants, plaintiff was entitled to some interest in some es- tates in their possession. Defendants demurred, objecting that the bill was one of those 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. Byves v. Byves, 3 Ves. Jr. 343. • In Towle v. Pierce, 12 Met. 329, 46 Am. Dec. 679, where 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 $1,000; that all books and papers were in defendant's hands, or within his reach; and praying for discovery and a decree for payment, — it was held that, as all the books and accounts were in de- fendant's hands, his demurrer, on the ground of uncertainty, in that neither times, sums, nor transactions were stated with deJiniteness or particularity, must be overruled. In Wormald v. De Lisle, 3 Beav. 18, where plaintiffs, assignees of a bank- rupt, 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 transac- tions, "certain loans" were made by defendant 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., — it •was held a demurrer to the bill for uncei-tainty must be sustained. 11. — sometimes fatal. A ccmiplaint is bad on demurrer which does not state the facts with giafficient 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 nile in equity; and is the same under the new proced- ure for the obvious reason that if the demurrer be overruled, and defendant does not answer, the court can give no other relief than is demanded : and if it could not give that, it ought not to overrule the demurrer. » A bill praying defendant might be decreed to satisfy a quit-rent and have it canceled, but not describing it with any certainty, nor stating its amount, and how ajid when payable, nor whether the owner of tha VI. li-RAME AND SUFFICIENCY OF ALLEGATIONS. 135 charge would consent to release it, is bad on demurrer. Tallman v. Green, 3 Sandf. 437. But in. equity a demurrer on the ground of uncertainty, irrelevancy, etc., must point out what parts are objected to and why. Brady v. Stand- ard Loan Anso. (Pa. 1884) 14 W. N. C. 419; Moyer v. Ldvingood, 2 Woodw. Dec. 317. 12. Omission of formal allegation required by rule of court. The omission of a formal allegation required by rule of court, such as that required in partition, to the effect that the parties do not o-wn O'their lands in common;* or that required in divorce, to the effect that the act was committed without connivance, etc. f or that formerly required in diaiicery as to the amount in controversy,^ — is not ground of demurrer.* But a bill for infringement of a trademark will he dismissed on the court's own motion, where it contains no proper prayer for sub- poena, as required by the rules.^ The requirement of equity rule 94 that a minority shareholder in a corporation, who brings suit to redress wrongs of the corporation, shall set forth with particularity his efforts to secure such action as he may desire on the part of the managing directors, need not be com- plied with where it is shown that directors elected by and under the control of juajority stockholders have made a contract with him which is oppressive and prejudicial to the interests of the corporation, and the suit is brought to set it aside.® " Pritchard v. Dratt, 32 Hun, 417. The forms of a petition for partition prescribed by the Massachusetts stat- utes in regard to the estate of a deceased person are standard and bind- ing by the rules of court. Marsh v. French, 159 Mass. 469, 34 N. E. 693. ' Van Benthuysen v. Van Benthvysen, 15 N. Y. Civ. Proo. Rep. 234, 2 N. Y. Supp. 238. ^ Batterson v. Ferguson, 1 Barb. 490; and see Mitford, PI. chap. 2, § 2; 1 Dan. Ch. PL & Pr. 412, 625. But compare cases in volume n., chapter i. So the amount claimed need not be specifically stated in the affidavit when stated in the statement of claim, under a rule requiring such statement to be supported by an affidavit of the truth of the matter alleged as a basis of the claim, and in all cases to contain an explicit averment of the amount claimed. Prince Go. v. Linderman, 2 Pa. Dist. R. 4. * Failure of the complaint in an action to set aside a deed as fraudulent as to creditors, to contain the allegation required by Wisconsin circuit court rule 28, that the action is not commenced or prosecuted by eollu- 136 BEIEF ON PLEADINGS DEMUEEER. sion with the judgment debtor for the purpose of protecting his prop- erty or effects against the claims of other creditors, but for the sole purpose of compelling payment and satisfaction of plaintiff's own debt, — is not ground of demurrer. Faler v. Matz, 86 Wis. 370, 57 N. W. 39. Tlic statement in the complaint in a suit by a judgment creditor to set aside as fraudulent a deed by the debtor, of facts from which it is apparent that there is no collusion between him and the debtor, and that the plaintiff is prosecuting the action for the sole purpose of com- pelling payment and satisfaction of his judgment, sufficiently complies with Wisconsin circuit court rule 28, requiring the complaint to allege that the action is not commenced or prosecuted by colhision with the debtor for the purpose of protecting his property or effects against the claims of otlier creditors, but for the sole purpose of compelling pay- ment and satisfaction of plaintiff's own debt, although there is no for- mal allegation to that effect. Ihid. An affidavit of defense by one defendant sued on a note signed in a firm name, denying that he made the note or authorized or ratified the mak- ing of it, and that he was or had been a member of the firm, is suffi- cient under a court rule relieving plaintiff of proving the execution of a note sued on, unless defendant, by affidavit filed with his plea, shall have denied that the note was executed. Reiier v. Fruh, 150 Pa. 623, 24 Atl. 347. 'Carlslad v. Tibietts, 51 Fed. 852. A bill for an injunction will not be dismissed because it contains an aver- ment that plaintiff is without adeijuate remedy at law, contrary to a rule of court. Barnes v. Barnes, 16 Pa. Co. Ct. 534. •Rogers v. Naslwille, 0. & St. L. R. Co. 33 C. C. A. 517, 62 U. S. App. 49, 697, 91 Fed. 299 (Citing Menier v. Hooper's Telegraph Works, L. R. 9 Ch. 350; Mason v. Harris, L. R. 11 Ch. Div. 97; Chicago Hansom Cah Co. V. Yerkes, 141 111. 320, 30 N. E. 667 ; Brinckerhoff- v. Bostmck, 8S N. Y. 52; Rogers v. Lafayette Agri. Works, 52 Ind. 296; Parrott v. Byers, 40 Cal. 614; Hodges v. A'eio England Screw Co. 1 R. I. 312, 53 Am. Dec. 624; Atwool v. Merry weather, L. E. 5 Eq. 464, note; Brewer V. Proprietors of Boston Theatre, 104 Mass. 378; Deaderick v. Wilson, 8 Baxt. 108; Slaitery v. St. Louis & N. 0. Transp. Co. 91 Mo. 217, 60 Am. Rep. 245, 4 S. W. 79; Distinguishing North-West Transp. Co. v. Beatty, L. R. 12 App. Cas. 589). Rule 94 does not aply to a suit by stockholders to cancel their subscrip- tions for fraud in procuring them, and to compel a, refunding by pro- moters, of money illegally appropriated by them to their own use- Barcus v. Gates, 32 C. C. A. 337, 61 U. S. App. 596, 89 Fed. 783. Nor is rule 94 applicable where the suit was commenced in a, state court and removed to tiie United States circuit court by defendants, since- such rule referred to suits commenced originally in the Federal courts, and is not entitled to bar a suit in equity from a state court. Earl& V. Seattle, L. S. & E. R. Co. 56 Fed. 909. The ends of the rule are met by showing that there is no collusion to con- fer jurisdiction, in a suit by a stockholder showing a conspiracy by a VI. FEAME AND SUFriClENCi: OF AI.LEGATIONS. 13T majority of the directors with others, through an unauthorized note ot the company and processes of the court thereon, to fraudulently trans fer the ownership of the corporate stock to themselves, and that the scheme will he successful unless the stockholder is permitted to sustain his action without first making foi-mal demand upon the directors; and such bill is not within equity rule 94. Young v. Alhamhra Min. Co. 71 Fed. 810. A stockholder of a corporation cannot maintain an action in a Federal court, where the jurisdiction depends on citizenship, to avoid an illegal attachment of corporate property, or to compel the repayment of amounts which have been illegally paid by the corporation to other stockholders, without complying with equity rule 94, requiring such bills to allege that they are not collusive to confer jurisdiction on the court, and to set forth the efforts which have been made to secure action by the managing directors. Clarice v. Eastern Bldg. & L. Asso. 89 Fed. 779. A bill by stockholders to recover corporate assets must, under United States equity rule 94, show formal application to the board of directors for suit, and, in the event of their refusal, effort to induce action by the body of the stockholders, with the character and extent of the efforts made and the reasons why the complainant failed to obtain remedial action within the body of the corporation, and that complainant owned the stock at or before the commission of the fraudulent acts, or has acquired it by operation of law. Church v. Citizens' Street B. Go. 78 Fed. 526. 13. Mixed question of law and fact. An allegation of a matter which is a mixed question of law and fact^ so that it is not a question for the juiy a^clusively, is insufficient on demurrer.^ ' An allegation that a change took place in the title to the property insured, by voluntary transfer and without consent of the defendant, and thereby the policy became void, is insufficient on demurrer. Clay F. & M. Ins. Co. V. Wusterhausen, 75 111. 285. Such allegations are, however, sanctioned in other jurisdictions. The above rule seems too broad. A mixed question of law and fact is ». question of fact which requires instruction, as to its limits, by the court. It is not a conclusion of law witliin the rule that an allegation of a conclusion of law is bad on demurrer. Compare Teese v. Phelps, McAU. 17. Fed. Cas. No. 13,818, 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.— DEMTJEREE FOE IFSUEFICIENCT. I. FoEM OP Assigning GBOtWD. 1. Sufficiency of the pleading must be tested by de- murrer. 2. Right to raise any objection to cause of action. 3. Equivalent to want of equity. 4. Specification of defect. II. Objections Relating to Parties. 5. Who may demur. 6. Want of capacity to sue. 7. Not the proper plaintiff. 8. — state practice in United States court, 9. Defect of parties plaintiff. 10. Improper joinder — of plain- tiffs. 11. application of the rule to husband and wife. 12. — — form of assigning ground. 13. — of defendants; insuffi- ciency, as against one de- murring. 14. insufficiency, as against codefendant not demur- ring. 15. Defect of parties defendant. III. Objections Involving the Foem OF the Pleading Demueeed TO. 16. Form of pleading. 17. Fact common to several causes of action or de- fenses. 18. Duplicity. 19. Demurrer, without discrimi- nation, to commingled statement. 20. — with discrimination. 21. Separate statement and num- bering of causes of action or defenses. 1.^8 22. Improper division of single cause of action or defense. 23. Separate counts for same re- covery. 24. Separate counts presumed to refer to separate trans- actions. 25. Verification lacking. 26. Verification — necessity. 27. Who may verify pleading. 28. Verification — sufficiency. IV. Objections Touching the Na- tuee oe sttbstance of the Cause of Action oe Relief. a. Nature of Claim. 29. Theory of ease need not be stated. 30. General rule for sustain- ing complaint against demurrer. 31. Informal pleading. 32. Statutory change of burden of proof. 33. Penal actions. 34. Actions without prece- dent. 35. Allegations stating in- sufficient grounds with other and sufficient grounds. 36. Allegations involving mistake as to the law. 37. Immaterial allegations not regarded. 38. Various grounds for same recovery. 39. Alternative grounds. 40. Alternative version and relief, not demurrable. 41. — by trustee of a special trust. b. Legal or Equitable Cause. 42. Jurisdiction. VII. -FOB INSUPFICIENCT ; ASSIGNING GEOUND. 139 43. Equitable title. 44. Action for money or chattel. ■c. Accounting. 45. Mutual accounts. 46. Existence of fiduciary relation, or necessity for discovery. 47. — remedy at law. 48. Royalty contracts. 49. Facts showing grounds for equitable cogni- zance to be specifically alleged. -d. No Adequate Remedy at Law. 50. F o r m of demurrer ; how objection may be raised. 51. Showing want of ade- quate remedy. 52. — in ease of several grounds of relief. 53. Assignee. 54. What is a "'remedy at law." 55. Statutory remedy in equity. 56. What is a, "plain, ade- quate, and complete" remedy. 57. "Jurisdiction clause" di- rectly alleging want of remedy. 58. Estoppel against this objection. «. Contract or Tort. 59. Uncertainty as ground of demurrer, f. Demurrer to Belief. 60. General rule. 61. Relief against demur- rant. 62. — against codefendant. 63. Alternative relief. V. Objection that the Action is PKEMATURE, OB THAT A Defense is Dis- closed ; Anticipation OF Defense. 64. Prematurity not pre- sumed. 65. Violation of positive prohibition. 66. Enough that any relief is due at time of avu,u- ment. 67. Disclosure of defense. 68. — with avoidance. 69. Anticipation of defense. VI. Paeticulab Subjects of Allega- tion (Alphabetically Ae- eanged) . Abbreviations, § 70. Ability, § 71. Acceptance, § 72. Accident, § 73. AccoKD AND Satisfaction, § 74. Account, §§ 75-78. Account Stated, § 79. Adverse Claim:, §§ 80-82. AD\-EnsE Possession, § 83. Agency, §§ 84, 85. Alteration of Instkumekts, § 86. alteenatms charges, § 87. Amount, § 88. Appearance, § 89. Approval, § 90. Arbitration, § 91. Assault, § 92. Assessments, § 93. assign-ment, §§ 94—100. Attachment, §§, 101-103. Attoeneys, § 104. Attorneys' Fees, § 105. Audit, §§ 106, 107. Authority, §§ 108-112. Benefit, § 113. Bill of Particulars, § 114. Bill of Review, § 115. Bona Fide Purchaser, §§ 116, 117. Bonds, §§ 118-130. Boundaries, § 131. Bribery, § 132. Bbidges, § 133. Brokers, § 134. By-laws, § 135. Carriers, §§ 136-138. Cause and Effect, § 139. Checks, § 140. 140 BEIEB' ON PLEADINGS ^DEMUEEEB. Cloud on Titie, § 141. Collusion, § 142. Compulsion, § 143. Concealment, § 144. Confederacy, § 145. Consent, §§ 146, 147. CONSPIKACT, §§ 148-151. CONTEACTS, §§ 152-196. Copyright, § 197. COBPOHATIONS, §§ 198-206. Cotenancy, § 207. Creditors' Bill, §§ 208, 209. Damages, §§ 210-216. Date, §§ 217-221. Dedication, § 222. Delay, § 223. Delivery, § 224. Demand, §§ 225-230. Descent, § 231. Description, §§ 232-235. Detention, § 236. Diligence, § 237. Disclaimer, § 238. Divorce, §§ 239-245. Documents, §§ 246-274. Dower, § 275. Dub Process, § 276. Duly, § 277. Duress, § 278. Duty, § 279. Easement, § 280. Ejectment, § 281. Election, § 282. Employment, § 283. Estoppel, §§ 284, 285. Eviction, § 286. Executors and Administra- tors, §§ 287-290. Ealse Imprisonment, § 291. Fences, §§ 292-294. Foreign Law, §§ 295, 296. Former Recovery, § 297. Fraud, §§ 298-301. Gambling, § 302. Goods Sold and Delivered, §§ 303, 304. Heir, § 305. Highways, §§ 306-308. Homestead, § 309. Husband and Wife, § 310. Illegality, §§ 311-315. Inability, § 316. Indebtedness, § 317. Indorsement, § 318. Infants, § 319. Injunction, §§ 320-322. Insanity, § 323. Insolvency, §§ 324-328. Insurance, §§ 329-335. Intent, § 336. Judgments, §§ 337-348. Laches, § 349. Landlord and Tenant, §§ 350- 352. Leave to Sue, §§ 353, 354. Legality, § 355. Levy and Seizure, § 356. Liability, § 357. Libel and Slander, §§ 358-363. Lien, § 364. Limitations, § 365. Lost Instruments, § 366. Maintaining, § 367. Malicious Prosecution, § 368. Marriage, § 369. Married Women, §§370, 371. Master and Servant, §§ 372- 374. Misnomer, § 375. Mistake, §§ 376, 377. Money Had and Received, § 378. Money Lent, § 379. Mortgage, §§ 380-382. Municipal Corporations,.! 383. Name, §§ 384-392. Necessity, § 393. Negligence, §§ 394-393. Nonpayment, § 399. Notice, §§ 400-406. Nuisance, § 407. Offer, §§ 408, 409. Officers, § 410. Ordinances, § 411. Ownership, §§ 412-423. Partnership, § 424. Patents, § 425. Payment, §§ 426, 427. Permission, § 428. Possession, § 429. Public Use, § 430. VII. FOE INStrFFICIENCT J ASSIGNING GEOUIirD. 141 RATnriCATiON, § 431. Tender, §§ 458-462. Reasonable Time, §§ 432-434. Thereupon, § 463. Receivers, § 435. Time, § 464. Eeguiarity, § 436. Title, §§ 465-469. Replevin, § 437. Torts, §§ 470-473. Repugnant Allegations, § 438. Trover, § 474. Reward, § 439. Trusts, §§ 475, 476. Rules of Court, § 440. Undue Influence, § 477. Schools, § 441. Usage, §§ 478, 479. Seisin, § 442. Usury, § 480. Service, § 443. Waters, §§ 481, 482. Specific Performance, § 444. Wills, § 483. Statutes, §§ 445-456. Work, Labor, and Services, Succession, § 457. §§ 484, 485. ^s to How Far the Statute is Necessary Under the Code, see chapter i, § 2, ante. I. FoEM OF Assigning Ground. 1. Sufficiency of the pleading must be tested by demurrer. A demurrer is the proper proceeding to test the sufficiency of a pleading.^ ^OsKn V. Telford, 108 Ga. 803, 34 S. E. 188; Van Sickle v. Keith, 88 Iowa, 9, 55 N. W. 42; Johnson v. Burnside, 3 S. D. 230, 52 N. W. 1057 (Citing Norton v. Colgrove, 41 Mich. 544, 3 N. W. 159; Barton v. Gray, 48 Mich. 164, 12 N. W. 30; Bauman v. Bean, 57 Mich. 1, 23 N. W. 451; The Victorian, 24 Or. 121, 32 Pac. 1040). But there can be no demurrer to a pleading before a justice of the peace. The proper practice is a motion to dismiss or strike out. Langford v. Doniphan, 53 Mo. App. 62. Nor can a demurrer be filed in a justice's court to the matter contained in an answer constituting a defense, under N. Y. Code Civ. Proc. § 2935, providing that the only pleadings in a justice's court are plaintiff's complaint, defendant's answer, defendant's demurrer to the complaint, and plaintiff's demurrer to one or more counterclaims stated in the answer. Boyce v. Perry, 26 Misc. 355, 57 N. Y. Supp. 214. A bill in equity not alleging ground for relief will be dismissed at the hearing, although there is no demurrer. Willis v. Willis, 42 W. Va. 522, 26 S. E. 515. The sufficiency of a petition is a question of law, as to which no valid agreement can be made by the parties. Wells v. Covenant Mut. Ben. Asso. 126 Mo. 630, 29 S. W. 607. An objection that a statement does not show any cause of action cannot be taken by a rule absolute for a more specific statement, but must be taken by demurrer. Bradley v. Potts, 155 Pa. 418, 26 Atl. 734. 142 BEIEF OK PLEADINGS DEMUEEBE, 2. Eight to raise any objection to cause of action. Under a demurrer assigning insufficiency in the words of the stat- ute, wihtout specifications, counsel may, on the argument, raise any objection which shows that a complete cause of action is not sho^vn or that a complete defense is shown.^ A demurrer to the complaint for want of facts raises the question of the right of the plaintiff to maintain the action," but not the effect of the statute of limitations under the state practice in a case brought in a Federal court f nor does it reach the objection that there is a de- fect of parties* either of nonjoinder or misjoinder,® or that there is an improper joinder of two or more causes of action.* That a com- plaint shows a separate action against each of several defendants is not ground for demurrer for want of facts.^ A general demurrer does not raise the question of want of jurisdic- tion over the person of the defendant or the subject-matter of the action.* iN'or will it raise an objection as to the inconsistency of al- legations in the complaint,® or the question of duplicity in a replica- tion,^" or reach the plaintiff's failure to properly indorse the peti- tion.^ ^ Nor can a defective statement of a cause of action be taken advantage of by general demurrer.^" A demurrer does not raise the question whether an allegation in a pleading could have been made more specific,** nor whether an amendment to a pleading, allowed by the court, could properly be made imder the statute of amendments.^- ^NelUs V. De Forest, 16 Barb. 61. Compare, as t© Michigan, where a demurrer must specify every defect relied on, Adrian Waterworks v. Adria/n, 64 Mich. 584, 838, 31 N. W. 529. * Kinsley v. Kinsley, 150 Ind. 67, 49 N. E. 819 (Citing WiUon v. Galey, 103 Ind. 257, 2 N. E. 736; Farris v. Jones, 112 Ind. 498, 14 N. E. 484) ; Smith V. Chicago, M. & St. P. It. Co. 80 Iowa, 202, 53 N. W. 128. Contra, Westervelt v. Jones, 5 Kan. App. 35, 47 Pac. 322, holding that a general demurrer to a petition only raises the question of the sufficiency of the petition to state a cause of action, and not the right of plaintiff to maintain an action for such cau.se of action if one exists. * Barnes v. VnAon P. R. Co. 4 C. C. A. 199, 12 U. S. App. 1, 54 Fed. 87. The defense of the statute of limitations cannot be raised by general de- murrer in an action by an administrator against the administratrix of a trustee, where the petition does not show that eleven years have elapsed since plaintiff or his intestate had the right to sue under the Georgia statutes allowing an administrator exemption from suit for one year, and requirinc; an action to be brought against a trustee within ten years after the right of action accrues. Coney v. Home, 93 Ga. 723, 20 S. E. 213. VII. ^FOE INSUFFICIENCY ; ASSIGNING GROUND. 143 In this case the court refused to determine, upon demurrer, whether state statutes of limitation apply to an action at law for the infringement of a patent. Brickill v. Buffalo, 49 Fed. 371. But in equity a general demurrer raises the question of the effect of the statute of limitations, where the bill discloses facts which show that the analogous cause of action at law is barred by the terms of the statute. Uayden v. Thompson, 17 C. C. A. 592, 36 U. S. App. 361, 71 Fed. GO. *Bell V. Mendenhall, 71 Minn. 331, 73 N. W. 1086. See chapter xi., poat, Demuekeb fob Defect of Pajrties. ' Svcmhurg v. Fosseen, 75 Minn. 350, 43 L. R. A. 427, 78 N. W. 4. An objection to the misjoinder of parties defendant cannot be raised on a general demurrer. McFadden v. Schill, 84 Tex. 77, 19 S. W. 368. Nor does a demurrer to the petition on the ground that plaintiff asked a recovery against defendant for property owned by another person pre- sent the contention that plaintiff could not recover without joining such other person. Houghton v. Puryear (Tex. Civ. App.) 41 S. W. 371. As to Demtjereb fob Misjoindeb of Pabties, see chapter x., subd. m., post. 'Leak v. Thorn-, 13 Ind. App. 335, 41 N. E. 602. As to Misjoindeb of Causes of Action, see chapter x., subd. n., post. ■< Leah V. Thorn, 13 Ind. App. 335, 41 N. E. 602. The fact that part of the obligors named in an appeal bond executed it, and part did not, is not ground for demurrer for want of facts by those who executed it, but must be pleaded as a defense. Davis v. O'Bryant, 23 Ind. App. 376, 55 N. E. 261. •Hull V. Standard Coal & I. Go. 7 Ohio N. P. 157. Want of jurisdiction is a special ground of demurrer which should be specially assigned, and is not raised by a demurrer to the sufficiency of the petition. Sawton v. Seiberling, 48 Ohio St. 554, 29 N. E. 179. An objection to the jurisdiction on the ground that the action has been commenced in the wrong county cannot be raised under a demurrer for want of facts. Chicago & S. E. R. Go. v. Wheeler, 14 Ind. App. 62, 42 N. E. 489 (Citing Lake Erie & W. B. Co. v. Fishback, 5 Ind. App. 403, 32 N. E. 346; Whitewater B. Co. v. Bridgett, 94 Ind. 216). See chapter viii., post. Demurrer foe Want op Jurisdiction. • Heeser v. Miller, 77 Cal. 192, 19 Pac. 375. As to Inconsistent Allegations, see chapter v., § 5, amte. " G'j een v. Seymour, 59 Vt. 459, 12 Atl. 206. Duplicity is not ground for demurrer in Virginia, since special demurrers have been abolished. Kimball v. Borden, 95 Va. 203, 28 S. E. 207 (Cit- ing Norfolk & W. B. Go. v. Ampey, 93 Va. 108, 25 S. E. 226). " Perkins v. Davidson, 23 Tex. Civ. App. 31, 56 S. W. 121. " Aurora Water Co. v. Aurora, 129 Mo. 540, 31 S. W. 946. " Bodgers v. Baltimore & 0. 8. W. B. Co. 150 Ind. 397, 49 N. B. 453. 144 BEIEF ON PLEADINGS DKMUEKER. As to General and Specific Allegations, see chapter vi., §§ 7, 8, ante. " Tecumseh State Bank v. Maddox, 4 Okla. 583, 46 Pac. 563. The question of the permistsibility of an amendment to a complaint can be raised by objection to its allowance or by motion to strike out, but caji- not be raised by a demurrer to the complaint as amended. Nashville, C. & at. L. R. Co. V. Parker, 123 Ala. 683, 27 So. 323. 3. 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 equiv- alent of a demurrer for want of equity.* ■ Nicholas v. Murray, 5 Sawy. 320, Fed. Gas. No. 10,223, holding that it can only so avail. For Other Cases on Form of Assigning this Ground, see chapter I., § 2, ante. 4. Specification of defect. If a demurrer, assigning as its ground that the complaint does not state facts sufficient to constitute a cause of action, qualifies that as- signment by specifying the defect relied on, the demurrant has not the right, on the argument, to raise any other objection.-' A demurrer to a pleading for failure to state facts sufficient to con- stitute a cause of action need not further specify the particular de- fects^ if it state the ground in the language of the statute.* The demurrer must be upon an authorized ground, * and a demur- rer specifying one statutory ground is insufficient to raise another.'' Although a demurrer is a single pleading, yet, where it is expressed to be to each count of a declaration, it is the same in effect as if a separate demurrer had been filed to each count.® A demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action, taken and lost on cer- tain specifications, showing wherein the complaint is defective, can- not be renewed at any subsequent trial on the same or other specifica- tions. '^ ' Nellis V. De Forest, 16 Barb. 61. Upon a demurrer to a complaint on the ground that the cause of action is barred by the statute of limitations, specifj'ing the particular sectioas upon which the defendant relies to defeat the action, no other sectioits can be considered on the subject of limitation, although the demurrer specifies as another ground that the complaint does not state facts suflS- cient to constitute a cause of action. Bank of San Luis Obispo v. Wick- ershwm, 99 Cal. 655, 34 Pac. 444. VII.— FOR INSUFFICIENCY J ASSIGNING GROUND. 145 A dorauner containing a general and conjunctive assignment of ambiguity, unintelligibility, and uncertainty will be regarded as a demurrer only on the latter ground, where the only specifications are on that ground. Field V. Andrada, 106 Cal. 107, 39 Pac. 323. But in Missouri a demurrer on the ground that the petition does not state facts constituting a cause of action cannot be confined in its eft'ect to the specific objections assigned. Wilson v. Polk County, 112 Mo. 126, 30 S. W. 469. ^O'Rourke v. Sioux FalU, 4 S. D. 47, 19 L. R. A. 789, 54 N. W. 1014; Power V. Sla, 24 Mont. 243, 61 Pac. 468. But in Alabama a general demurrer which does not assign speci ' 3ally the causes therefor will be overruled. Alabama State Land Co. v. Slaton, 120 Ala. 259, 24 So. 720. Objections which go to the sufficiency of the statements of facts in a com- plaint, and not to the facts themselves, must be made by special de- murrer, pointing out the particular defects complained of. Mu.lally v. Towmseiul, 119 Cal. 47, 50 Pac. 1066. A demurrer to a counterclaim in the language of N. Y. Code Civ. Proc. § 495, subd. 4, which states "that said counterclaim is not of the charac- ter specified in § 501 of the Code of Civil Procedure," sufficiently points out the particular defect relied upon, under the requirements of §§ 490, 496. Eckert v. Gallien, 40 App. Div. 525, 58 N. Y. Supp. 85. The objection that a complaint, the allegations of which render it good un- der only one of two independent statutes, is based upon the other, must be specifically taken to render a demurrer thereto available on that ground. Carr v. Carr, 6 Ind. App. 377, 33 N. E. 805. 'Leach v. Adams, 21 Ind. App. 547, 52 N. E. 813, holding that the use of the word "contains,'' instead of the statutory word "states,'' does not render insufficient a demurrer to a complaint for failure to state facts sufficient to constitute a cause of action. A demurrer denying the sufficiency of an answer "in law'' will not be held as not challenging the sufficiency of the answer as an "equitable de- fense," as, under the Indiana Code, there are no distinct forms of action, and the rules of pleading are defined without reference to any distinc- tion between actions at law and in equity. Funk v. Eentchler, 134 Ind. 68, 33 N. E. 364, 898. See also chapter I., §§ 1, 2, ante. * Wunderlich v. Chicago & N. W. R. Go. 93 Wis. 132, 66 N. W. 1144. See also chapter I., | 4, ante. '■ Lake Erie & W. R. Co. v. Fishback, 5 Ind. App. 403, 32 N. E. 346. See also chapter i., § 5, ante. *Lake Street Elev. R. Co. v. Brooks, 90 111. App. 173. The defendant sufficiently designates the cause of action to which he in- tends to demur, where he refers to the second and third paragraphs of a complaint, which set up different causes of action; and paragraphs one and four are of such a nature that they must be read with the para- Abb. Pl. Vol. I.— 10 146 BEIEF ON PLEADINGS DEMUEEBE. graphs referred to, to make the latter intelligible. Woolsey v. Swnder- land, 47 App. Div. 86, 62 N. Y. Supp. 104. See also chapter n., §§ 7, 8, ante. ' Turner v. Interstate Bldg. & h. Xsso. 51 S. C. 33, 27 S. E. 947. II, Objections Kelatino to Paeties. 5. Who may demur. One of two defendants has the right to demur alone, on the ground that the complaint does not state facts sufficient to constitute a cause of action.^ ' Cummings v. Town of Lake Realty Co. 86 Wis. 382, 57 N. W. 43. But an equitable petition is erroneously dismissed on demurrer, where it was filed by heirs for the purpose of reforming a deed so that it would define the alleged interests of the plaintiffs in the land, and the de- murrer was raised by the administrator of the deceased grantor, whose estate had no interest in the litigation, his codefendants, the adminis- trator of the grantee and a. judgment creditor of the latter not joining therein. Griffin v. Stewart, 101 Ga. 720, 29 S. E. 29. Nor will the court sustain a peremptory exception filed by a defendant to the plaintiff's petition, unless such defendant's legal interest to take the particular exception is shown. Beland v. Qehelin, 46 La. Ann. 326, 14 So. 843. One sued with others as a member of a firm, and also separately as an in- dividual, has the right to raise by demurrer the question as to his in- dividual liability under the allegations of the complaint. Polack v. Ramkel, 56 App. Div. 365, 67 N. Y. Supp. 753. G. Want of capacity to sue. A demurrer on the mere ground of insufficiency does not enable the demurrant to raise the objection that plaintiff has not legal capac- ity to sue.^ The failure of a complaint in a suit by a parent, widow, or de- pendent to recover damages for death by wrongful act or negligence, to allege the requisite particulars conferring upon the plaintiff a right of action for such death, renders the complaint insufficient.^ The right of an administrator, instead of the beneficiaries named by statute, to maintain an action for the death of the intestate by rea- son of the defendant's negligence, is properly raised by a demurrer to the complaint for want of f acts.^ A petition by a partnership doing business under a fictitious name is not subject to general demurrer for failure to aver that such part- nership has complied, before bringing suit, -with a statute requiring VII. FOE INSUFFICIENCY AS TO PARTIES. 147 the filing of a certificate stating the names of all the members; but the defect must be taken advantage of by special demurrer for inca- pacity to sue, ■where it appears on the face of the petition.* A general demurrer does not reach the defect in a petition by a cor- poration, which fails to allege that the plaintiff is a corporation.® ^Radabaugh v. Silvers, 135 Ind. 605, 35 N. E. 694 (Citing Story r. O'Dea, 23 Ind. 326; Musselman v. Kent, 33 Ind. 452; dough v. Thomas, 53 Ind. 24; Leedy v. Nash, 67 Ind. 311) ; Tucker v. White, 28 Ind. App. 328, 62 N. E. 758; Van Zandt v. Van Zandt, 17 N. Y. Civ. Proc. Eep. 448, 7 N. Y. Supp. 706 (interpleader). V?ant of capacity to sue is a special ground of demurrer which should be specially assigned, and is not raised by a demurrer to the sufficiency of the petition. Saxton v. Seiberling, 48 Ohio St. 554, 29 N. E. 179; Bir- mingham V. Cheetham, 19 Wash. 657, 54 Pac. 37. The incompetency of plaintiflf to sue can only be raised, under N. Y. Code, § 499, by demurrer or answer. People v. Lamb, 85 Hun, 171, 32 N. Y. Supp. 584. Failure to allege capacity to sue does not render a complaint demurrable as not stating a cause of action. Cone Export d Commission Co. T. Poole, 41 S. C. 70, 24 L. R. A. 289, 19 S. E. 203. A demurrer on the ground specified in Mont. Code Civ. Proc. 1895, S 680, that the complaint does not state facts sufficient to constitute a cause of action, is properly overruled, where the only objection to the complaint is the defective manner in which it sets forth the capacity or right of plaintiff to sue, as distinguished from the failure to show any capacity to sue. Knight v. Le Beau, 19 Mont. 223, 47 Pae. 952. A demurrer which only questions the right of the plaintiff to sue and the sufficiency of the statement of a cause of action is properly overruled where the objection to plaintiff's capacity is not well taken, and the pe- tition shows any cause of action in its favor. Springfield v. Robberson Ave. R. Go. 69 Mo. App. 514. That the plaintiff sues in a dual capacity does not render the complaint de- murrable, if he is entitled to maintain the action in either capacity. Williams v. Meloy, 97 Wis. 561, 73 N. W. 40 (Citing Oeilfuss T. Gates, 87 Wis. 395, 58 N. W. 742). Action by a tax collector; demurrer only for insufficiency admits plaintiff's legal capacity to sue. Litchfield v. McComber, 42 Barb. 288. Action by receiver; objection that the appointment of plaintiff appears by the complaint to be invalid not thus available. Eobart v. Frost, 5 Duer, 672. See also chapter ix., post, Demuebee fob Want op Capacity to Sub. " Louisville, E. & St. L. Gonsol. R. Go. v. Lohges, 6 Ind. App. 288, 33 N. E. 449, holding that the failure of a complaint by a mother to allege the death, desertion, or imprisonment of the father, necessary under a stat- ute to give her a right of action for the death of their child, may be 148 BRIEF ON PI-EADINGS DEMURKEK. raised by a demurrer for want of sufficient facts to constitute a cause of action. A complaint by a mother for the death of her minor son need not allege that she is a widow, or living apart from her husband, or in what way she was dependent upon the son, or that he ever worked or earned money. An allegation that she was dependent upon him for support is sufficient. Augusta It. Go. v. Glover, 92 Ga. 132, 18 S. E. 406. A petition by a mother for loss of services of her minor son need not state in words the death of his father, where it states that she is a widow and dependent on her son's services. Goins v. Chicago, B. I. d P. R. Co. 47 Mo. App. 173. A complaint for injuries to a boy, described as the adopted son of the plaintiff, without showing anything further as to the facts of the adop- tion, or his emancipation by his parents, is not sufficient to show any right of the plaintiff to recover for the loss of his services. Citizens' Street R. Co. v. Willoehy, 15 Ind. App. 312, 43 N. E. 1058. A declaration in an action by a dependent, under Fla. act February 28, 1883, chap. 3439, conferring a right of action for death by wrongful act or negligence exclusively and successively upon the widow or husband, the minor child or children, and dependents, must affirmatively show the nonexistence of any other person having a precedent right of action. Duval V. Hunt, 34 Fla. 85, 15 So. 876. The petition in an action by a widow for negligently causing her husband's death is fatally defective, under Kan. Code Civ. Proc. § 419, in the ab- sence of an allegation of the nonappointment of an administrator of her husband's estate. Walker v. O'Connell, 59 Kan. 306, 52 Pac. 894. A petition in an action against a benevolent society, whose particular ob- ject is to afford material aid to its members and their dependents by establishing a fund for the relief of sick and distressed members, and a benefit fund from which, on the death of a member, a specified sum shall be paid to his family or dependents, to recover upon a benefit certificate in which the plaintiff is described simply as a. brother of the deceased member, is bad, on demurrer, for failure to allege that such brother was in any way dependent upon the deceased member. McGinness v. 8ti- preme Coumcil, C. B. L. 59 Ohio St. 531, 53 N. E. 54 (Citing Ballou v. Gile, 50 Wis. 614, 7 N. W. 561). *Boyd v. Brazil Block Coal Co. (Ind. App.) 50 N. E. 368. A declaration based on a statute of Pennsylvania for damages for the death of plaintiff's intestate in that state, by defendant's negligence, is demur- rable where it discloses that plaintiff, who sues as administratrix, is the widow of the deceased, and that by the law of Pennsylvania the action must, in such case, be maintained by the widow instead of a personal representative. Lower v. Segal, 60 N. J. L. 99, 36 Atl. 777. ■* Kinsey v. Ohio Southern R. Co. 3 Ohio S. & C. P. Dec. 249. Copartners doing business under a fictitious name need not allege in their petition upon a contract that they had complied with Ohio act May 19, 1894, requiring the filing and publishing of a certificate stating the VII. i-OE INSUFFICIENCY AS TO PAETIES. 149 names of all the members before bringing suit. Hartzell v. Warren, 11 Ohio C. C. 2G9. 'Hunter v. Wm. J. Lemp Brewing Co. (Tex. Civ. App.) 46 S. W. 371. The omission to state whether the plaintiff is a domestic or foreign corpo- ration, as required by § 775 of the Code, does not go to the cause of ac- tion, and does not render the complaint demurrable for not stating suf- ficient facts. Eafner & 8. Furniture Go. v. Grumme, 10 N. Y. Civ. Proc. Rep. 176. Contra, First Nat. Bank v. Doying, 11 N. Y. Civ. Proc. Rep. 61. For other cases, see chapter ix., post, on Demuiireb foe Want op Capacitt TO Sue. Incapacity to sue, for want of due incorporation, cannot be considered ott demurrer for insufficiency. Phcenix Bank v. Donnell, 40 N. Y. 410;. Fulton F. Ins. Co. v. Baldwin, 37 N. Y. 648 ; Bank of Lowville v. Ed- wards, 11 How. Pr. 216. In American Baptist Home Mission 8oc. v. Foote, 52 Hun, 307, 5 N. Y. Supp. 236, an action brought by several plaintiffs, it was doubted whether the demurrer for insufficiency as to all the plaintiffs would lie, where it was objected that the incorporation of one of them was not sufficiently alleged. 7. ITot the proper plaintiff. A complaint which 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 v. Floyd, 104 Ind. 291, 4 N. E. 10. Objection available on general demurrer at common law. Rutland Pro- late Court V. Hull, 58 Vt. 306, 3 Atl. 472. A bill in equity is demurrable if it fails to show in the complainant an in- terest in the subject-matter, and a proper title to institute a suit con- cerning it. Carter v. Carter, 82 Va. 624 ; Barr v. Clayton, 29 W. Va. 256, 11 S. E. 899. A declaration by the agent of a county in his own name for its use, to re- cover for the support of a pauper, is fatally defective upon general de- murrer, where it alleges that the defendant is indebted to the county, and that the promise to pay the indebtedness was made to the county, since the party having the legal right of action is alone entitled to maintain a suit at law. Mudge v. Binkle, 45 111. App. 604. An allegation that plaintiff is duly incorporated, and is the successor of a corporation somewhat differently designated, and which was named as payee in the note in suit, and that plaintiff is the owner and holder of the note, sufficiently shows that plaintiff is the real party in interest and entitled to maintain an action. Robinson Female Seminary v. CampUll, 60 Kan. 60, 55 Pac. 276. In an action brought on behalf of a minor daughter of plaintiff to recover 150 BEIEP ON PLEADINGS DEMUEEEE. for the death, by negligence, of plaintiff's wife, the petition is inauffi- eient on demurrer for failure to show the interest of the daughter, where it avers that she is a child of plaintiff, but does not allege that she is a child of his deceased wife, or state facts from which such an in- ference shall be drawn. Gulf, C. & S. F. R. Co. v. Younger, 10 Tex. Civ. App. 141, 29 S. W. 948. A complaint by an owner of corporate stock to compel a retransfer by per- sons to whom it has been transferred by a trustee, with whom it was pledged to secure a loan, need not allege that the loan was paid in full to show that the complainant has such an ownership of or interest im the stock as will enable him to maintain the suit. Smith v. Lee, 77 Fed. 779. Upon demurrer that plaintiff who sues in a representative capacity is not the real party in interest, where the complaint shows a cause of action in favor of the plaintiff in his individual character, the descriptive words may be rejected, leaving the action to stand as one in his individual ca- pacity. Gross V. Gross, 25 Misc. 297, 54 N. Y. Supp. 572. A petition in an action on a fire policy, alleging that plaintiff is the duly qualified and acting executrix of the last will of the person who pro- cured the policy, but who died before the loss occurred, sufficiently shows the plaintiff's right to maintain an action. German Ins. Go. r. Wright, 6 Kan. App. 611, 49 Pac. 704. A complaint alleging the appointment of plaintiff as executrix of the tes- tator, who, before his death, was a merchant, and that on a specified date plaintiff, "as executrix aforesaid," and defendant came to an accounting, at which the defendant was found to be indebted to the plaintiff, as executrix, in a specified amount, which he promised to pay, and that there is now due and owing to plaintiff, "as executrix," such amount, — states a cause of action in favor of the estate which may be recovered by plaintiff as executrix. Spies v. Michelsen, 2 App. Dir. 226, 37 N. Y. Supp. 720. A bill by heirs and next of kin to recover from an administrator, and others conspiring with him, unadministered personal estate, fraudu- lently appropriated by the defendant, sufficiently shows complainants' right to bring the suit by averring that they are all of the heirs and next of kin of the deceased, and by setting out in full the decree of dis- tribution of the estate, which states and adjudicates the pedigree and relationship of each of the complainants, as against a general demurrer. Hulbard v. C'rton, C7 Fed. 419. If a foreign assignee in bankruptcy has no right to sue here, a complaint setting up his title as such is insufficient and will be dismissed oh motion. Tlie court says, in MosseVman v. Caen, 1 Hun, 647 ; "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 litigation; otherwise it fails to state facts sufficient to constitute a cause of action in favor of plaintiffs against defendant." The right of plaintiff to bring an action in his own name upon a promis- sory note payable to another is sufficiently pleaded by the allegatioa VII. FOK INSUFFICIENCY AS TO PAETIES. 151 that the note was, for valuable consideration, transferred, signed, and delivered to him by the payee, although there is no allegation of an indorsement by the latter, under Fla. Stat. 1881, chap. 324, giving the real parties in interest in all actions at common law arising out of con- tract, the right to sue in their ovm names. Jordan v. John Ryan Go. 35 Fla. 259, 17 So. 73. A demuner to a bill in equity to foreclose a vendor's lien upon the ground that it is by the assignor of the claim secured, for the benefit of the assignee, instead of by the assignee, is properly overruled where the assignee was made a party to the suit by a cross bill filed by the defend- ants, and filed his answer thereto. Hurt v. Miller, 95 Va. 32, 27 S. E. 831. A complaint will be dismissed as not stating a cause of action, where the president of ar association brings an action in behalf of the society to recover a legacy that had been lent to its treasurer, since the right of action is in the treasurer. De Witt v. Chandler, 11 Abb. Pr. 459. A complaint in an action by a creditor against the officers of the debtor corporation for fraudulent diversion of the assets, alleging that the defendants were the trustees of such corporation until the "appoint- ment of a receiver thereof," does not show that plaintiff had no right to maintain the action on the ground that the receiver, and not plaintiff, should have brought it, as only a "permanent" receiver may maintain such an action. Dilllee v. Metcalf, 13 Misc. 136, 34 N. Y. Supp. 122. A wife may, individually, or as next friend of her insane husband, main- tain an action for the seduction of her daughter. Abhott v. Hancock, 120 N. C. 99, 31 S. E. 269. A complaint in an action by a father in his own name for injury to his child need not, under the Minnesota statute, allege that it is brought for the benefit of the child. Buechner v. Columbia Shoe Co. 60 Minn. 477, 62 N. W. 817. 8. — state practice in United States court. State practice allowing actions to be brought 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 admi- ralty) in the United States circuit and district courts sitting in the same state. •Weed Sewing-Mach. Co. v. Wicks, 3 Dill. 261, Fed. Cas. No. 17,348; Arkansas Valley Smelting Co. v. Beiden Min. Co. 127 U. S. 379, 387, 32 L. ed. 246, 248, 8 Sup. Ct. Eep. 1308; May v. Logan County, 30 Fed. 250. 'Albany cE B. Iron £ 8. Co. v. Lundberg, 121 U. S. 451, 30 L. ed. 982, 7 Sup. Ct. Kep. 958. As to the Limits of State Practice in United States Courts, see chapter ni., ante. 152 BEIEF ON PLEADINGS DEMUEREE. 9. Defect of parties plaintiff. In equity/ and in the United States courts,^ and under the new procedurej^* the omission to join with a proper plaintiff a necessary eoplaintiff is not available under a general demurrer for insufficiency. ^Dius V. Bouchaud, 10 Paige, 455. 'U. S. Rev. Stat. § 954 (U. S. Comp. Stat. 1901, p. 696). •N. Y. Code Civ. Proc. § 488, subd. 6; Loomis v. Tip, 16 Barb. 541. But the court may, at the trial, entertain the objection of the absence of an indispensable party, though not pleaded. A demurrer for want of facts does not raise any question as to defect of parties. Loufer v. Stottlemyer, 16 Ind. App. 221, 44 N. E. 1008; Bell V. Mendenhall, 71 Minn. 331, 73 N. W. 1086; Van Borne v. Watrous, 10 Wash. 525, 39 Pac. 136. Objection to a complaint on the ground of defect of parties is vpaived under Wis. Rev. Stat. § 2654, by a demui-rer which does not raise such objec- tion. Monson v. Lathrop, 96 Wis. 386, 71 N. W. 596. An objection to a creditors' bill against a corporation, vfhich alleges the existence of the debt, that it is wholly unsatisfied, and that the sub- scribers owe a certain sum of unpaid subscriptions, but is silent as to- other creditors, should be taken, not by general demurrer, but by plead- ing in answer the nonjoinder of parties plaintiflF, if it is desired to make other creditors parties. Tatum v. Rosenthal, 95 Cal. 129, 30 Pac. 136. The simple naming of minor children as "the children of" a designated person, as plaintifi's in an action, does not have the effect of making them parties. James v. Withers, 114 N. C. 474, 19 S. E. 367. An averment by defendant sued to recover a fund in his hands, that there- are other persons besides plaintiff claiming an interest in the fund, as to whom he should be protected, is insufficient where such defendant does not set out, either by demurrer or answer, the names of such alleged necessary parties, or show their interest in the fund. Johnson V. Gooch, 114 N. C. 62, 19 S. E. 62. An averment in an answer to an action by persons designating themselves as the heirs at law of an intestate, that they are not all of his heirs, without naming the heir or heirs omitted, is defective. Bakes v. Reese, 150 Pa. 44, 24 Atl. 634. An answer in an action to charge the assets of an insolvent corporation with a, preference in favor of notes held by plaintiff, because of certain entries on its books, that such notes were part of a large number, con- ceraing all of which the entries were to the same effect, and the holders of which had equal rights with plaintiff, states a good defense, but does not require the holders of the other notes to be brought in as parties. Drake v. New York Iron Mine, 50 N. Y. S. R. 678, 21 N. Y. Supp. 491. A complaint in ejectment by the owner of an undivided interest in property need not allege other owners, the nature of their interest, or facts which •would entitle them to unite with the plaintiff in maintaining the action, under N. Y. Code Civ. Proc. § 1500, providing that one of two or more VIX. FOR INSUFFICIENCY AS TO PAETIES. 15S persons entitled to the possession of real property as joint tenants or tenants in common may maintain an action to recover his undivided share in the property, where such an action might be maintained by all. Deering v. Riley, 38 App. Diy. 164, 56 N. Y. Supp. 704. In a proceeding against a railroad company for the assessment of damages caused by taking the petitioner's land for a right of way, a petition stating that the petitioner oviTis a one-fourth interest in the land, and that, as he is informed and believes, the company has acquired by the lease the right to use and occupy the remaining three fourths, states a cause of action, as, under N. C. Code, §§ 1947, 1949, the rights of all the parties can be ascertained and adjusted in such proceedings, and the company will not be required to pay any damages to those persons whose rights it has acquired. Rill v. Glendon cf G. Min. £ Mfg. Co^ 113 N. C. 259, 18 S. E. 171. 10. Improper joinder — of plaintiffs. 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 plain- tiff 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.^ ^ A bill to restrain a patent infringement is demurrable for want of equity, where an heir of the deceased patentee and an owner is joined with the administrator, since the heir has no interest, and his joinder is im- proper. Hodge v. North Mo. R. Co. 1 Dill. 104, Fed. Gas. No. 6,561 (Citing Story, Eq. PI. § 5(yQ;King of Spain v. De Machado, 4 Kuss. Ch. 225; Cuff V. Plaiell, 4 Russ. Ch. 242; Makepeace v. Haythorne, 4 E.USS. Ch. 244; Clarhson v. De Peyster, 3 Paige, 336). If there is a, misjoinder of parties plaintiff in a bill in equity, then all the defendants may demur; but if there is a misjoinder of parties defend- ant, those only can demur who are improperly joined. Ghristiwn, v. Crocker, 25 Ark. 327, 99 Am. Dec. 223. 'This was the rule under the New York Code of Procedure in force up to 1876. See Case v. Carroll, 35 N. Y. 385, holding that the defect of joining too many as plaintiffs cannot be reached by demurrer. The misjoinder of parties plaintiff is not a cause of demurrer. Lancaster Comity V. Rush, 35 Neb. 119, 52 N. W. 837 (Citing Damey v. Dakota County, 19 Neb. 721, 28 N. W. 276). A demurrer by defendant in an action by two or more plaintiffs, on the ground that the complaint does not state facts sufficient to constitute a cause of action in favor of one of the plaintiffs as against the defend- ant, is, in effect, one of misjoinder or excess of parties plaintiff, for which demurrer is not permitted by the Wisconsin statute. Kucera v. Kucera, 86 Wis. 416, 57 N. W. 47. 154 BEIEF ON PLEADINGS DEMUEEEE. For superfluous parties plaintiff, a demurrer does not lie. Ahlott r. Han- cock, 123 N. C. 99, 31 S. E. 268 (Citing Sullivan v. Field, 118 N. 0. 358, 24 S. E. 735; United States ex rel. State v. Douglas, 113 N. C. 190, 18 S. E. 202; M'ool v. Edenton, 113 N. C. 33, 18 S. E. 76). * Masters v. Freeman, 17 Ohio St. 323. A complaint in an action by several persons is demurrable for want of facts, unless it shows a cause of action in favor of all. Brunson v. Henry, 140 Ind. 455, 39 N. E. 256; Indianapolis 'Natural Gas Co. v. Spaugh, 17 Ind. App. 683, 46 N. E. 691; New Allany v. Lines, 21 Ind. App. 380, 51 N. E. 346. Even though it does state a good cause of action as to some. Mcintosh v. Zaring (Ind.) 38 N. E. 321. A complaint may state one cause of action in favor of one plaintiff, and another in favor of another, but is insufficient on demurrer for want of facts, if the same cause of action is not stated in favor of all the plain- tiffs joining therein. Smith v. Boseboom, 10 Ind. App. 126, 37 N. E. 559. A complaint in which two or more are joined as plaintiffs, which states a cause of action in which all the plaintiffs may join, is not obnoxious to a demurrer for want of sufficient facts, although it alleges other facts constituting a cause of action in favor of one of the plaintiffs alone. New Albany v. Lines, 21 Ind. App. 380, 51 N. E. 346. In an action authorized by statute to be prosecuted in the name of the state for the benefit of one designated, the naming of such person does not make her a party plaintiff, but is mere surplusage, which will not render the complaint demurrable for failure to state a cause of action in favor of both plaintiffs. Ervin v. State ex rel. Walley, 150 Ind. 332, 48 N. E. 249. 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 says: "It is proper, we should add, that the demurrer in such a case will be sufficient if stated in the language of the statute, and need not be directed against the particular plaintiff in whose favor no cause of action is shown.'' Berkshire v. SchuUz, 25 Ind. 523 ; Rush t. Thomp- son, 112 Ind. 158, 13 N. E. 605, and cases cited. One reason is that the joint cause of action which precludes an individtial set-off or counterclaim, is a different cause of action from an individual claim. If the facts stated show no cause of action against the defend- ant in favor of one of the plaintiffs, the defendants may demur as to such plaintiff upon the ground that the complaint does not state suffi- cient facts. In such a case the defendant must specify the plaintiff to whom he objects as a party. Bidhtmyer v. Richtmyer, 50 Barb. 55; Simar v. Canaday, 53 N. Y. 298, 13 Am. Rep. 523; Bumsey v. Lake, 55 How. Pr. 340. 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 Vn. FOB HTS0FFIOIENCT AS TO PAETIES. 155 the Code, judgment may be given for or against one or more of several plaintiffs. Peabody v. Washington County Mut. Ins. Co. 20 Barb. 339. 11. application of the rule to husband and wife. It is the better opinion that, under the new procedure, which al- lows 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 ap^ plies to husband and wife suing on a cause of action belonging exclu- sively 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.^ ' In an action by husband and wife for damages for defendant's fraud in inducing plaintiffs to convey to him, misjoinder of plaintiffs is not a ground of dismissal against both, if either has a cause of action. In such a case the motion must be specific for the disomissal of the com- plaint as to the plaintiff in whom no right of action appears. Simar v. Canaday, 53 N. Y. 298, 13 Am. Eep. 523 ; Palmer v. Davis, 28 N. Y. 242. Contra, Mann v. Marsh, 35 Barb. 68, which holds, in an action brought by the husband and wife for an assault on the wife, where it appears from the complaint that the wife alone should have brought it, that a demurrer will lie upon the ground that the complaint does not state facts sufficient to constitute a cause of action. Followed in Walrath v. Eandy, 24 How. Pr. 353 (an action to obtain the construction of a will, where the wife was improperly joined ) . It seems that if husband and wife join in an action concerning the separate property of the wife, a demurrer to the complaint will lie on the ground that it does not state a 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. Fa/rnham v. Campbell, 34 N. Y. 480. In Rumsey v. Lahe, 55 IIow. Pr. 339, where the complaint in an action by husband and wife shows a cause of action in the wife only, defend- ant's demurrer, assigning both the grounds that it did not state a cause of action in favor of the plaintiffs, and that it did not state a 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. Here the demurrer was sustained as to both, amendments being required by the wife in order to get rid of the husband. In an action by a husband and wife for defendant's deceit in inducing the husband to purchase lands which were conveyed to the wife, the defect that no cause of action was shown in the plaintiffs jointly may be taken advantage of by a demurrer, upon the ground that the petition does not state sufficient facts. Bartges v. O'Neil, 13 Ohio St. 72 j Michigan 0. R. Co. V. Coleman, 28 Mich. 440. A complaint by a hiisband and wife to rescind a contract to exchange a stock of goods for certain real estate, on the ground that it was induced 156 BEIEF ON PLEADINGS DEMUEEEE. by the fraud or false representations of the owner of the real estate made to the agent of the husband, with whom the negotiations were had, is insufficient in not stating a cause of action in favor of both plaintiffs, where it does not allege that such agent was also the agent of the wife, or that the owner of the real estate had any contract rela- tions with her. Smith v. Boseboom, 10 Ind. App. 126, 37 N. E. 559. A complaint by two persons against two other persons fails to state a cause of action when it simply alleges a slander by one of the defendants against one of the plaintiffs, and does not allege that either plaintiffs or defendants are husband and wife. Paddock v. Speidel, 42 N. Y. S. E. 27, 16 N. Y. Supp. 750. A complaint for seduction is not demurrable because the action was brought by the mother individually, and as next friend of her nonresi- dent insane husband, although she might, under such circumstances, maintain the action alone. Abbott v. Hancock, 123 N. C. 99, 81 S. E. 268. An objection that a suit relating to the separate estate of a married woman should have been brought by the wife's next friend may be taken by demurrer where the suit is brought by the wife and her husband. Alward v. Killani, N. B. Eq. Cas. 360. ' Ohio c6 M. B. Co. V. Cosby, 107 Ind. 32, 7 N. E. 373. 12. form of assigning ground. Where the statute^ makes misjoinder of parties plaintiff a spe- cial ground for demurrer, the objection cannot be raised on demurrer assigning only the ground that facts sufficient to constitute a cause of action are not stated.^ *As in case of the present provision of the New York Code of Civil Pro- cedure, § 488. ' In California, misjoinder of parties plaintiff is a special ground of demur- rer, and the objection cannot be raised under a general demurrer that the complaint does not state sufficient facts. Tennant v. Pfister, 51 Cal. 511. In an action for conversion, wliere it appears that the widow has improp- erly united with devisees in bringing an action, the objection that the complaint shows affirmatively that no cause of action is vested in all the parties plaiaitiff cannot be raised by demurrer on such ground, as misjoinder of parties plaintiff is a special ground of demurrer under the Code. Berney v. Drexel, 33 Hun, 419. [The demurrer in the last case was general against all the plaintiffs; the dicia state that it should have been for misjoinder of plaintiffs, and the specific defect relied on pointed out.] Contra, Hy/ies v. Farmers' Loan £ T. Co. 31 N. Y. S. R. 136, 9 N. Y. Supp. 260. The decision in this case is in conflict with the preceding cases, but tlie point that tl\e demurrer should liave been special is not consid- ered in the opinion. Whether it could be raised if the demurrer is VII. FOE INSUFFICIENCY AS TO PAETIES. 157 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 sufBcient, because, in effect, full notice of the real objection, and in substance exactly equivalent to specifying a misjoin- der of that plaintiff. 13. — of defendants; insufliciency, as against one demurring. 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.^ ' In an action on a firm note against the surviving partners and the repre- sentatives of a deceased partner, a demurrer for insufficiency by the latter will be sutained where no circumstances are alleged to raise an equity against them. Voorhis v. Baxter, 18 Barb. 592. In Voorhis v. Childs, 17 N. Y. 354, the court says: "As, therefore, the present action must be regarded as one of a purely legal nature, brought against the surviving partners upon their legal liability, it follows that the executors of the deceased partner, who is liable only in equity, were improperly made parties.'' Mdson v. Girvan, 29 Hun, 422; Berford v. Hew York Iron Mine, 24 Jones & S. 236, 4 N. Y. Supp. 836. 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 sus- tained. Belknap v. Caldwell, 83 Ind. 14. A complaint in ejectment seeking to recover the possession, as against one defendant, is bad on demurrer of another defendant, made such on the alleged ground that she has some pretended claim to the land, where it does not state any cause of action, or pray any relief as against her. Liggett v. Lozier, 133 Ind. 461, 32 N. E. 712. A demurrer may properly be held good in chancery as to one respondent, and bad as to another. Miichener v. Rohins, 73 Miss. 383, 19 So. 103. 14. insufliciency, as against codefendant not demurring. A demurrer for insufficiency by one or more of several defendants properly joined cannot be sustained on the ground that the com- plaint is not sufficient as against another defendant.-' '^ Jones V. Foster, 67 Wis. 296, 30 N. W. 697. The mere joinder of too many persons as defendants, when there is no mis- joinder of subjects, is not a ground of demurrer by any one of them against whom the complaint sets forth a good cause of action. New York & W. H. R. Go. v. Schuyler, 17 N. Y. 592 ; Wood v. Decoster, 66 Me. 542; Slevin v. Reynolds, 1 Handy (Ohio) 37. Lewis V. Williams, 3 Minn. 151, Gil. 95 (action of indebtedness upon contract). To a bill to set aside a conveyance as fraudulent, the defendant grantee 168 BEIBF Olf PLEADINGS DEMtTBBKB. demurred on the ground, inter alia, of multifariousneas, in that a mort- gagee of such grantee, and certain other persons, were made parties defendant. The chancellor, after holding them to be proper parties, remarked that defendant grantee could not raise proper objection, even had it been valid. The objection could only be taken by the parties themselves. Miller v. Jamison, 24 N. J. Eq. 41. But the same objection may sustain a demurrer for misjoinder. Wicholt V. Drew, 94 N. Y. 22; Edson v. Girvam, 29 Hun, 422. Insufficiency of complaint as to a certain defendant does not give a right of demurrer to codefendants against whom the complaint states a good cause of action, and who are not affected by its insufficiency as against the other defendant, although the latter interposes a demurrer. Lev^ v. Marx (Miss.) 18 So. 575, 15. Defect of parties defendant. In equity,* and in the United States courts,'' and under the new procedure,^ an objection for defect of parties defendant cannot he raised under a general demurrer. At common law the omission to join as defendant a joint obligor (except in the case of judgments, recognizances, etc) was available under a general demurrer.* ' Robinson v. Smith, 3 Paige, 222, 230, 24 Am. Dec. 212. A general demurrer to the entire bill for want of parties defendant will be overruled if any one of the several claims on which the bill is based appears in the bill to be a claim against the defendant alone. Trenton Pass. R. Co. V. Wilson, 53 N. J. Eq. 577, 32 Atl. 1. It is not a ground of demurrer for want of facts that certain defendants in an action for an accounting for money alleged to have been obtained by fraud in the sale of real estate, and who were named as trustees in a mortgage, are not joined as defendants as trustees, where the allega- tions are sufficiently broad to indicate that their liability exists by rea- son of their fraudulent practices, and seems to be sufficient to sustain the complaint against them in that aspect, not only for moneys had and obtained by means of fraud, but to render them liable to account as trustees under the mortgage for anything they have received. Bird v. Lanphear, 11 App. Div. 613, 42 N. Y. Supp. 623. In a suit where it is alleged that a deed was executed under a mutual mis- take, and its reformation is sought, the bill is not demurrable although it fails to give notice to the defendant in possession, who claims as a good-faith purchaser, for value. Such defense must be made by plea oi answer. Snyder v. Grandstaff, 96 Va. 473, 31 S. E. 647. 'U. S. Rev. Stat. § 954 (U. S. Comp. Stat. 1901, p. 696). • N. Y. Code av. Proc. § 488, subd. 6. * Gilman v. Rives, 10 Pet. 298, 9 L. ed. 432 (but the court may entertain an objection to the absence of an indispensable party). A demurrer on the gi-ound that a separate action cannot be maintained VII. FOB INSUFFICIENCY AS TO FOKM. 159 against one of several persons jointly bound to pay money will be stricken out as frivolous, since D. C. Eev. Stat. § 827, distinctly pro- vides to the contraj-y, and has been so construed by the Supreme Court of the United States. Chesley v. Biley, 9 Mackey, 166. III. Objections Involving the Foem of the Pleading De- MUEKED TO. 16. Form of pleading. A petition, in Texas, need not necessarily be addressed to the court or judge, although it is preferable to so address it.-' The defect of wrongly entitling a count in a pleading is not reached by demurrer f nor can the objection that a substituted complaint, filed after removal of the cause to a Federal court, is entitled in the state court, be raised by general demurrer for want of facts.* A typewritten bill in equity is not a compliance with a require- ment iJiat every bill shall be printed.* The preparation of a peti- tion in its mechanical arrangement may be according to the taste of the attorney.® A bill in chancery not signed by any one is demurrable.* An attorney may properly sign the name of the party he represents to a petition, where it is not required that the petition be sworn to by the party.^ It should appear that the party purporting to sign the plea is the defendant.* •^Hall v. Johnson (Tex. Civ. App.) 40 S. W. 46. But, in Louisiana, the caption or address to the court is an essential part of a petition. Lukis v. Allen, 45 La. Ann. 1447, 14 So. 186. ' Parker v. Burgess, 64 Vt. 442, 24 Atl. 743. • State ex rel. Munoie v. Lalce Erie & W. E. Go. 83 Fed. 284. 'Sunday v. Hagembuch, 8 Pa. Co. Ct. 540 (Citing Johnson County v. Bry- son, 26 Mo. App. 484). 'Lukis V. Allen, 45 La. Ann. 1447, 14 So. 186 (it may be fancy, on green paper, or on white and green, so arranged as to alternate in colors, if desired). A petition in which a green blank form is used, on which is printed the address to the court, with typewriting on white sheets fastened or pasted together so that the green blank form is the last sheet, a printed ad- dress appearing above the typewriting so as to be read before it, is a logical statement of a cause of action, and sufBciently complies with La. Code Prac. arts. 171, 172, prescribing the form of a petition. Hid. 'Dever v. Willis, 42 W. Va. 365, 26 S. E. 176. But an omitted signature to an answer may be affixed by leave of aouit after exceptions filed. Holton v. Guinn, 65 Fed. 450. 160 BEIEF ON PLEADIN&S DEMUBKEE. And the signature may be made by impressing the names of plaintiff's attorneys thereon with a rubber stamp. Streff v. Golteaux, 64 111. App. 179. ' Bragunier v. Perm, 79 Md. 244, 29 Atl. 12. But the word "attorney," as used in the Pennsylvania act of May 25, 1887 (P. L. 271), requiring the statement of claim filed in an action to be signed by plaintiffs or their attorney, does not include an attorney in fact, as well as an attorney at law. Kelly v. Herb, 147 Pa. 563, 23 Atl. 889; Com. ex rel. Stamiaugh v. Hooliaugh, 5 Pa. Dist. R. 502. A plea in abatement, however, signed by an attorney, and not by the defend- ant in person, is bad. Kenney v. Howard, 07 Vt. 375, 31 Atl. 850. It has been held that the signature of a plaintiff to the verification of his complaint is a, sufficient description of the complaint itself to comply with the statute requiring the complaint to be subscribed by the plain- tiff or his attorney. Bwrrett v. -Joslynn, 9 Misc. 407, 29 N. Y. Supp. 1070. A bill in equity in the name of an incorporated city, signed by counsel, need not have the city seal annexed. Moundsville v. Ohio River R. Co. 37 W. Va. 92, 20 L. E. A. 161, 16 S. E. 514. " Grand Lodge, B. of L. F. v. Cramer, 164 111. 9, 45 N. E. 165, holding that a plea in abatement in an action against the "Grand Lodge of the Brotherhood of Locomotive Firemen," attacking the return of service of summons purporting to show service upon a subordinate lodge and agent in the mode prescribed by the Illinois statute for service upon a corporation, is insufficient where it is not signed either by defendant or Goimsel, but purports in the body to be by the "Brotherhood of Locomo- tive Firemen," without showing, except argumentatively in the intro- ductory part, that they are the same organization; and avers that the "Brotherhood of Firemen" is a voluntary or mutual benefit association, and is not and never was a coi-poration ; and makes no allegation either as to incorporation or agency, referable to defendant by its correct name. 17. Fact common to several causes of action or defenses. Where several causes of action or defenses are separately stated in the same pleading, an omission of an essential allegation in one cannot be supplied, as against demurrer, by reading the missing link from another count or defense.^ But it is the better opinion that if a fact, common to several causes of action or defenses, is separately alleged, as if introductory to all,^ or if it is alleged in one and expressly adopted by reference in an- ■other,^ it is sufRciently alleged in each. ' See cases in chapter n., ante, under § § 5, 6. ' In an action against husband and wife for slander by the wife, where one numbered paragi-aph alleges that the defendants, at the time of the VII. FOE INSUFFICIENCY AS TO FOEM. 161 grievances mentioned, were husband and wife, but each of three follow- ing numbered paragraphs states slander as a separate cause of action, the complaint is sufficient, or, if not, yet amendable; and it is not error to refuse to dismiss the complaint at the trial. Ronnie v. Ryder, 28 N. Y. S. K. 141, 8 N. Y. Supp. 5. A complaint against several defendants in their official capacity, which in six preliminary paragraphs describes the status of the several defend- ants and the time of such status, and in others alleges several causes of ^ action against one or the other defendant for acts done by him at times therein named, each of the subsequent sections being connected with the iirst by an introductory allegation that the first were made a part thereof, is insufficient, since each paragraph setting out a separate cause of action should set out the official position of the defendant against whom judgment is asked, the capacity in which he acted, and all facts necessary to make that particular cause of action complete on its own face. Wallace v. Jones, 68 App. Div. 191, 74 N. Y. Supp. 116. It is sufficient, in the absence of demurrer thereto, to allege in apt language at the end of a declaration against a railroad company for the killing of plaintiff's intestate at a highway crossing, that deceased left a widow and next of kin. It need not be alleged in each count. Lake Shore rf M. S. R. Co. V. Sessions, 150 111. 546, 37 N. E. 905. • Oreon v. Clifford, 94 Cal. 49, 29 Pac. 331 ; Yost v. Commercial Bamk, 94 Cal. 494, 29 Pac. 858; Florida C. & P. R. Co. v. Foxicorth, 41 Fla. 1, 2,5 So. 338 (Citing Dent v. Scott, 3 Harr. & J. 28; Crookshank v. Gray, 20 Johns. 344); Aulbach v. Dahler (Idaho) 43 Pac. 322; Columbian Acoi. Co. V. Sanford, 50 111. App. 424; Realty Reveivue Guaranty Co. v. Farm, Stock & Home Pub. Co. 79 Minn. 465, 82 N. W. 857; Ramsey v. Johnson, 7 Wyo. 392, 52 Pac. 1084. The reasons for the existence of the main rule are that the time of the court ought not to be spent in searching other parts of the pleading; and that if one count or defense be struck out, there is nothing to point to. The objection is almost wholly obviated by an introductory allega- tion, or by express reference, and whatever inconvenience remains is not good ground of demurrer, but is matter for prompt motion. Demurrer in such case is frivolous. 1 Chitty, PI. 16th Am. ed. 673. The adoption of specified averments of a preceding count by reference is not fatal to the validity of the complaint, although the practice is not commended. Birmingham, R. & Electric Co. v. Allen, 99 Ala. 359, 20 L. R. A. 459, 13 So. 8. A contract set out in hcBC verba under one count of a declaration may be averred in other counts by reference thereto, although the practice is not approved. Consolidated Coal Co. v. Schneider, 163 111. 393, 45 N. E. 126. The second count of a declaration may properly, by clear references, incor- porate the avei-ments of the first count as to time and place in its own averment of other occurrences, notwithstanding a withdrawal of the first count. Cleveland, C. C. & St. L. R. Co. v. Rice, 48 111. App. 51. A reference in a declaration to a decision of the court in a prior action Abb. Pl. Vol. I.— 11. 162 BEIEF ON PLEADINGS DEMUEEEE. between the plaintiff and another person does not operate as an aver- ment of th^ facts proved in that case, or make the opinion therein a part of the declaration, so as to render it subject to a demurrer for fail- ure to state a cause of action, based on the ground that it is shown by the former suit that the plaintiff must ultimately be defeated. Younff V. Gower, 88 111. App. 70. A statement in a later count in a declaration, of "the same respective amounts, and for the same respective considerations, as in the last pre- ceding count of this declaration set forth," is proper and sufficient. Freeland v. McGullough, 1 Denio, 414, 43 Am. Dec. 685. An allegation in a count setting up one of three causes of action included in the complaint, which can be construed as referring also to the other two causes of action, cures the defect of the omission of such allega- tion from the counts stating such causes of action. Smith v. Eage, 5 Misc. 258, 25 N. Y. Supp. 103. Facts set forth in a petition in an action under Ohio Rev. Stat. § 6343, showing that a conveyance made by a, debtor in contemplation of in- solvency, to secure certain preferred creditors, should be declared a gen- eral assignment for all the creditors, may be adopted without repeating them by a defendant in his answer and cross petition, and when so adopted should be deemed a part of the answer and cross petition, enti- tling him to the same relief as if he had restated them. Brinkerhoff- v. 87nith, 57 Ohio St. 610, 49 N. E. 1025. Subsequent counts intelligibly referring to a time correctly averred in a previous count sufiBciently show the time. Goodman v. Gay, 15 Pa. 188, 53 Am. Dec. 589. Contra, facts averred in one paragraph of a pleading cannot be adopted and made a part of another paragraph by reference. Corbey v. Rogers, 152 Ind. 109, 52 N. E. 748. 18. Duplicity. A pleading is demurrable for duplicity, but the defect is a formal one, whicli must be pointed out by special demurrer.^ 'A pleading is demurrable for duplicity. Forsyth v. Tehmeyer, 176 111. 359, 52 N. E. 55. In an action at law, a complaint for libel, which also attempts to set up matter in avoidance of the statute of limitations, tenders a double is- sue, so as to be demurrable. Gunton v. Hughes, 181 111. 132, 54 N. E. 895. A count in an action for personal injuries, which charges disconnected acts of negligence, is bad for duplicity on special demurrer. EdberUiu V. Lake Shore & M. S. B. Co. 73 III. App. 201. A complaint which presents a double ground of liability for a single de- mand is duplicilous, but such fault can be reached only by special de- murrer. Consolidated Coal Co. v. Peers, 97 111. App. 188. But in an action to recover for personal injuries sustained by one run over by an ambulance, the complaint, which charges that the acts con>- plained of were "wrongfully, carelessly, and negligently" done, is not VII. POR INSUFFICUDNCY AS TO FOKM. 163 bad for duplicity on the gi-ound that wrongfully means wilfully, thereby making a single paragraph of the complaint eovmt on a careless and neg- ligent act and a, wanton and wilful act. Oreen v. Eden, 24 Ind. App. 583, 56 N. E. 240. A declaration is bad for duplicity when it states in one count a good cause of action for interference with real property, and one for injury to repu- tation, as to which it is demurrable. Gore v. Condon, 87 Md. 368, 40 L. R. A.. 382, 39 Atl. 1042. The common-law rule that a declaration on a bond could not properly as- sign two breaches of the condition, because the bond was forfeited by one breach, which was sufficient to support the action, is abrogated by the Rhode Island statute, so that it is proper to assign as many distinct breaches of the bond as desired in the same count. West Greemoich Prolate Court v. Carr, 20 R. I. 592, 40 Atl. 844 (demurrer for duplicity). But in West Virginia, by statute, no demurrer will lie in any case because of duplicity in a declaration. Martin v. Monongahela R. Go. 48 W. Va. 542, 37 S. E. 563. 19. Demurrer, without discrimination, to commingled statement. A demurrer to a cause of action or defense as a -whole, for not stat- ing facts sufficient, etc., cannot be sustained if the statement de- murred to contains facts sufficient, although there be commingled therewith matter separable in its nature, and intended, but not suf- ficing, to constitute a separate cause of action or defense.^ ^ Hendriokson v. Pennsylvania B. Co. 43 N. J. L. 464; Wright v. Smith, 81 Va. 777; Rolrecht v. Marling, 29 W. Va. 765, 2 S. E. 827 (with dictum that the demurrer should point to such parts as are bad ) . In Eachley v. Draper, 2 Hun, 523, it was held that new matter introduced into a complaint by amendment could not be demurred to alone, but the demurrer must be to the whole complaint, or some one of the causes of action thereon. The commingling of several causes of action in one count of the complaint, although prohibited by the Code, is not ground for demurrer, the remedy in such case being by a motion to elect and strike out. Foai v. Rogers (Idaho) 59 Pac. 538. A demuiTcr to a complaint attacking the validity of a deed will be over- ruled where the alleged invalidity is based upon two grounds set forth in a single paragi-aph, treated as such by the parties, if one of the grounds set forth sufficiently states a cause of action. Raymond v. Wathen, 142 Ind. 367, 41 N. E. 815. A demurrer on the ground "that the complaint states two causes of action jumbled together" is not authorized by the South Carolina Code, unless the two causes of action are such as cannot be properly united in the same complaint; and then the objection cannot be taken by oral de- murrer. JacUm V. Dickinson, 39 S. C. 436, 17 S. E. 996. 164 BEIEF ON PLEADINGS DEMUEEEE. 20. — with discrimination. The commingling in one statement of several causes of actions or defenses cannot prevent demurring to either with the same effect as if separately stated. The pleader cannot defeat the demurrer by re- liance on the defect in his own pleading.^ ' Burhans v. Squires, 75 Iowa, 59, 39 N. W. 181; Wiles v. Buydam, 64 N. T. 173. A demurrer may be interposed to each cause of action in a complaint set- ting forth different causes of action, although all are stated in one count. Market & F. Nat. Bank v. Jones, 7 Misc. 207, 27 N. Y. Supp. 677 (Citing Goldberg v. Uiley, 60 X. Y. 427). A demurrer to a part of a cause of action or defense will not lie; but a plaintiff desiring to demur to certain defenses set up in an answer which are not separately stated, should move to have the pleading made more definite, and to strike out the irrelevant portions. Buist v. Salvo, 44 S. C. 143, 21 S. E. 615. 21, Separate statement and numbering of causes of action or defenses. When two or more causes of action or defenses are alleged, they must be separately stated and numbered.* The remedy for a non- compliance with this requirement is by motion, and not by demurrer.* 'N. Y. Code Civ. Proc. §§ 483, 507. But these provisions apply only to cases where the court can see from the pleading itself that there is more than one cause of action or defense alleged, so that a separation should be made. Hatch v. Matthews. !l Misc. 307, 30 N. Y. Supp. 309. Numbering the separate paragraphs of an answer is not a compliance with N. Y. Code Civ. Proc. § 507, requiring a defendant to separately state and number his defenses. Fay v. Hauerwas, 2fi Misc. 421, 57 N. Y. Supp. 155. A pltading which sets up but a, single cause of action or defense is not yi- tiated because its allegations are divided into separately numbered par- agraphs, or because its averments are mistaJcenly set out as separate causes of action or defenses. Waite v. Sahel, 44 App. Div. 634, 62 N. Y. Supp. 419. Plaintiff in an action against a corporation and its directors will be re- quired to separately state and number a cause of action which he is en- forcing in the right of the company for the wrongful acts of the direct- ors, and a cause of action which he is enforcing in his own right for damages for the sale to him of spurious stock of the corporation. Soharf v. Warren-Scharf Asphalt Faming Co. 5 App. Div. 439, 39 N. Y. Supp. 197. A complaint in ejectment for nonpayment of rent, under three separate leases, states three separate causes of action which should, under N. Y. VII. POK IITSUFFICIENCY AS TO FORM. 165 Code Civ. Proc. § 483, be separately stated and numbered. Overlagh v. Oathout, 90 Hun, 506, 35 N. Y. Supp. 962. The provision of N. Y. Code Civ. Pioo. § 483, requiring a complaint to sep- arately state each cause of action, is applicable to a complaitit in an ac- tion brought to recover possession of personal property alleged to have been wrongfully obtained in part from the plaintiff, and in part from other persons who have assigned their claims to him. Westheimer v. Musliner, 46 App. Div. 96, 61 N. Y. Supp. 348. Each year's failure of a taxpayer to list his taxable property constitutes a separate cause of action, each of which should be stated in separate par- agraphs of the complaint in an action to recover penalties therefor. La Plante v. State ex rel. Goodman, 152 Ind. 80, 52 N. E. 452. In an action to recover a penalty for a continuous offense, fixed at a certain sum for each day of its continuance, it is not necessary to declare in a separate count for each day's penalty, but all may be grouped in one count. Toledo, St. L. S K. 0. R. Go. v. Stephenson, 131 Ind. 203, 30 N. E. 1082. Trespasses by conducting waters through different channels or ditches into a public ditch, all constituting a part of one plant or system designed to drain defendant's several tracts through plaintiff's land by means of the public ditch, overtaxing its capacity and submerging plaintiff's land in different parts, are properly charged in a single paragraph of the complaint, and do not constitute separate and distinct trespasses ren- dering it necessary to state them separately. Young v. Gentis, 7 Ind. App. 199, 32 N. E. 796. An averment in a complaint that proofs of loss were waived by an insur- ance company is not inconsistent with another averment that the proofs were afterwards furnished, so as to constitute two separate and distinct causes of action, and require the complaint to be paragraphed. Amer- ican F. Ins. Go. V. Sisk, 9 Ind. App. 305, 36 N. E. 659. A petition in an action to recover pei'sonal property seized under executions and attachments issued in different actions need not set out in separate counts the portion of the property seized under each process. Glover v. 'Karey, 92 Iowa, 286, 60 N. W. 531. A complaint in an action to foreclose a mortgage, alleging a conveyance by the mortgagor of a part of the premises mortgaged, and the retention by the purchaser of a sufficient amount of the purchase money to discharge the mortgage, and the assignment to plaintiff of the claim therefor, does not state two independent causes of action, which must be separately stated and numbered, although such allegations may have been unnec- essary to support the cause of action for the foreclosure. Wood v. Har- per, 85 Hun, 457, 32 N. Y. Supp. 880. A plaintiff in an action for damages for different breaches of a contract will not be required to separately state and number the different causes of action based upon each separate breach. Bowman v. Fuher, 11 Ohio C. C. 231. It is not proper, in an action to restrain the collection of an assessment on the ground of the irregularity of tlie proceedings of a cilv council, to 166 BEIBF ON PLEADINGS DEMUKBEE. Bet forth each allegation of illegality or irregularity in a separate par- agraph as a different cause of action. Tyler v. Columlus, 6 Ohio C. C. 224. A mortgage given to secure a series of notes is properly set forth as a single cause of action, and it is not necessary to state a separate cause for each of the notes. Seattle Trust Co. v. Kerry, 19 Wash. 389, 53 Pac. 665. ^Griffith V. Friendly, 30 Misc. 393, 62 N. Y. Supp. 391; Kearney Stone Works Y. MoPherson, 5 Wyo. 178, 38 Pac. 920. Failure to separately state and number causes of action does not render them demurrable. Zrslcowski v. Mach, 15 Misc. 234, 36 N. Y. Supp. 421 (Citing Tou/iisend v. Coon, 27 N. Y. Civ. Code, 56 ; Bendersonv.Jacksov, 4 How. Pr. 168; Nichols v. Drew, 94 N. Y. 22). A defect in failing to separately state causes of action cannot be reached by demurrer. Morgan v. State, 9 S. D. 230, 68 N. W. 538. The remedy, under the Maryland practice, for the numbering of the para- graphs of a bill in an improper manner, is by a motion in the nature of a ne recipiatur, and not by demurxer. Chew v. Glenn, 82 Md. 370. 33 Atl. 722. 22. Improper division of single cause of action or defense. The mistake of a pleader in stating, as separate causes of action or defenses, facts which are only sufficient when combined as a single cause of action, or a single defense, does not render the pleading de- murrable ; but the separation may be disregarded-* *Eillman v. Billman, 14 How. Pr. 456; Weeks v. Cornwall, 39 Hun, 843; Shook V. Fulton, 4 Cow. 424 (holding that after verdict in favor of de- fendant on a defense made out thus, by combining two pleas, each in- sufficient alone, the objection is cured, even at common law. It is error to sustain demurrer in such case) ; Norman v. Rogers, 29 Ark. 365; Everett v. Waymire, 30 Ohio St. 308. Contra, Bliss, PI. 121 (Citing other cases). In Victory Webb Printing d Folding Mach. Mfg. Co. v. Beecher, 26 Hun, 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 deci- sion was wrong because the several counts all taken together contained matter constituting a cause of action. The court said: "It seems im- possible to treat the complaint as containing a single caxise 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 por- tions, it certainly was, and the plaintiff ought not to be heard now to urge his own inaccuracy in making the separations as a ground for de- feating a demurrer which adopts and follows his own division and clas- sifications.'' Compare Andrews v. Alcorn, 13 Kan. 351, holding that, al- though a demurrer might or should have been sustained where the pleader wrongly inserted the words, "first cause of action," "second cause of action," when there was in. fact but one cau.?*; of action, yet, if VII. ii-OE INSUFFICIENCY AS TO FOEM. 167 no substantial injustice has been sustained in overruling the demurrer, judgment will not be reversed on appeal. A demurrer that the complaint sets up two counts for one cause of action is not authorized by the Code and cannot be considered. Kyle v. Craig, 125 Cal. 107, 57 Pac. 791. A complaint on a cause of action arising out of a single transaction, which sets out in one count the whole transaction, including a written prom- ise to pay, should not divide the statement of the cause of action and set up in another count the written promise to pay as a promissory note, making it an exhibit. Baxter v. Camp, 71 Conn. 245, 42 L. R. A. 514, 41 Atl. 803. It is the province of a complaint to narrate the facts which constitute the case according to the truth, and leave it to the court to draw the proper legal inferences; and the narration should be confined to a single count unless the transaction be one from which two separate and distinct causes of action arise. Goodrich v. Stanton, 71 Conn. 418, 42 Atl. 74 (Citing Craft Refrigerating Mach, Co. v. Quinnipiac Brewing Go. 63 Conn. 551, 25 L. R. A. 856, 29 Atl. 76). A complaint in a suit by a trustee upon two promissory notes is not de- murrable on the ground that it is divided into four paragraphs, al- though but one cause of action is set out, where the first paragraph sets out plaintiflf's appointment as trustee, the second and third two notes, and the fourth grounds of attachment, since the petition is properly treated as an entirety, and as stating but one cause of action. Mitchell V. New Farmers Bank, 22 Ky. L. Rep. 1291, 60 S. W. 375. 23. Separate counts for same recovery. A complaint is not demurrable for stating, in separate counts or causes of action, separate grounds for substantially tbe same recoveiy, not containing any absolutely inconsistent allegations, if the causes of action are such as might be joined were they not for the same re- covery.^ ' In assumpsit for the alleged breach of a contract for the sale of land for a fixed price, where plaintiflf afterward added a count on a quantum meruit, it was held, on demurrer, that such a count may be joined with one in contract for the same services, etc.; so that, in the event of fail- ure to prove the contract, recovery may be had upon the quantum mer- uit. Ware v. Reese, 59 Ga. 588. For other authorities, see volume II., chapter n., Motion to Compel Election. Most of the treatises on pleading contain a statement that this is not al- lowable under the Codes of Procedure, but the contrary is now generally held. See note to Munn v. Cooh, 24 Abb. N. C. 326. The practice of compelling plaintiff to elect, at the trial, even where there is no incon- sistency or embarrassment to the defendant, still continues much as at common law; but it might be restricted within narrow limits if the fol- lowing propositions are sound, as I belieye them to be: First, if there 168 EEIEF ON PLEADINGS DEIIUEEEK. is no absolute inconsistency of fact, such that perjury would be assign- able if the pleading be sworn to, the objection, if any there be, must rest on the ground either of "unnecessary repetition,'' "indefiniteness and uncertainty," or "misjoinder;'' second, all right to object for mis- joinder is waived by not demurring on that ground; third, neither un- necessary repetition, nor any indefiniteness and uncertainty which repe- tition alone can cause, are ground for demurrer or dismissal; fourth, in all, or nearly all, cases, the meritorious ground of objection, if any, is the embarrassment to the defendant in being required to meet unneces- sary or incongr'uous issues; and his proper remedy to avoid that is by special motion before trial to strike out or make more definite and cer- tain; and if, instead of doing so, he takes issue on each cause of action and goes to trial, he invites plaintiff to try the issue. After having done this, the only advantage 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 es- sentially difl"erent in such sense as to require concurrence of the jury on any one separately, in order to sustain a general verdict. But, al- though 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 practi- cally sever them. The joinder, in the same complaint, of different counts for the same caujse of action, is not forbidden either expressly or by fair implication by the Connecticut practice act and rules, although the necessity therefor no longer exists. Bassett v. Shares, 63 Conn. 39, 27 Atl. 421. One who sues to recover for damages to his oyster bed, due to the deposit thereon of a quantity of mud when a scow overturned, has but one cause of action, which should be stated in a single count. Palmer v. Hartford Dredging Co. 73 Conn. 182, 47 Atl. 125. 24. Separate counts presumed to refer to separate transactions. If it is possible, and consistent with the allegations of the com- plaint, that there may have been two separate transactions, to which the otherwise inconsistent allegations of separate causes of action may have been intended to refer, the court will not, on demurrer, presume the contrary. -"^ '■ Castro V. De Uriarte, 12 Fed. 250, 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. 25. Verification lacking. In chancery the omission to verify a bill which by the rules or prac- tice of the court requires verification — such as a bill on a lost instru- ment — is ground of demurrer.' VII. FOE INSUFnciENCY AS TO FOEM. 169 Under the new procedure, objection to lack of verification must be taken by returning or disregarding the pleading as a nullity.^ ' Findlay v. Hinde, 1 Pet. 241, 244, 7 L. ed. 128, 130, holding that, if not so taken, or otherwise, at or before the hearing, it may be deemed waived. A demurrer to a creditor's bill in its entirety for want of a verification is properly overruled where the bill not only seeks a discovery of the legal assets of the judgment debtor, but avers that property which he con- veyed is held in trust for him; since, while the bill should be verified in its former aspect, it need not in the latter. Burke v. Morris, 121 Ala. 126, 25 So. 759. A bill filed by a judgment creditor to have certain conveyances of his debtor declared fi'audulent, and to subject the property held by the grantees to the payment of the judgment, is not demurrable on the ground that it should have been verified, although it also seeks a dis- covery as merely incidental to the other relief. Henderson, v. Farley Nat. Bank, 123 Ala. 547, 26 So. 226. In Illinois, exceptions may be filed to an unsworn answer in chancery. James T. Hair Co. v. Daily, 161 111. 379, 43 N. E. 1096. In an action for services, an exception to a plea of failure of consideration, on the ground that it is not supported by affidavit, should be sustained. Boyd V. Boyce (Tex. Civ. App.) 53 S. W. 720. But an information in the nature of quo warranto is not subject to excep- tion because it was not sworn to by some of the persons signing it as relators. Mathews v. State ex rel. Wilson, 82 Tex. 577, 18 S. W. 711. Nor is an answer subject to e.\:ception because not properly entitled or veri- fied, as the proper remedy is to take it from the files. Osgood v. A. 8. Aloe Instrument Co. 09 Fed. 291. Want of verification must be taken advantage of by a motion to reject for want of verification, not by demurrer. Champ v. Kendrick, 130 Ind. 549, 30 N. E. 787 (Citing Fudney v. Burkhart, 62 Ind. 179; Indianapo- lis, P. & C. R. Go. V. Summers, 28 Ind. 521; Harrison v. Lockhart, 25 Ind. 112; Bradley v. Bank of the State, 20 Ind. 528). Failure to verify a bill, as a basis for a temporarj^ injunction, is obviated by the filing of a demurrer by defendant, as a demurrer admits a state- ment in the bill to be correct. Cohb v. Clough, 83 Fed. 604. As to scope, nature, and effect of verification, see note to Equitable Acci. Ins. Co. v. Osborn (Ala.) 13 L. R. A. 267. 'Abbott, New Practice and Forms, 439. Otherwise, under some statutes requiring sworn denials. N. Y. Code Civ. Proc. § 528. An affidavit of verification of a complaint which contains no venue is a nullity, and the answer need not be verified. Ameriean Book Go. v. Watson, 24 Misc. 524, 53 N. Y. Supp. 974 (Citing Lane v. Morse, 6 How. Pr. 394; Cook v. Staats, 18 Barb. 407; Thompson v. Burhans, 61 N. Y. 52). Plaintiff may, by informing defendant of his intention so to do, treat as a 170 BEIEF ON PLEADINGS DEMUEBEE. nullity, under N. Y. Code Civ. Proe. § 528, an unverified answer to a verified complaint. Welsbacli Commercial Co. v. Popper, 59 N. Y. Supp. 1016. Under a Code provision requiring the verification of pleas in abatement, an unverified plea in abatement is a nullity, and plaintiflf may proceed to judgment without noticing it. I'yler v. E. 0. Bernard Co. (Tena. Ch. App.) 57 S. W. 179. 26. Verification — necessity. A plea in abatement not verified by affidavit is properly stricken from the files.^ And a plea of failure of consideration is bad unless verified by affidavit.^ But a plea in an equitable action, setting up a public record of the court in which the action is pending, need not be verified.^ A petition seeking an injunction as the final relief need not be verified,* nor one setting up a cause of action for breach of warranty and for equitable relief on the ground of mutual mistake.® Proper amendments to a com.plaint do not render it necessary that it should be resworn to.® A verifi.cation may be omitted where the party pleading would bo privileged from testifying as a witness concerning an allegation or denial contained in the complaint.'' [Many of the cases cited in this and the two following sections were not decided on demurrer, but are treated here for the sake of convenience.] ' Grand Lodge B. of R. T. v. Randolph, 186 111. 89, 57 N. E. 882. 'Ostrom V. Tarver (Tex. Civ. App.) 29 S. W. 69. 'Detroit, L. d N. R. Go. v. McCammon, 108 Mich. 368, 66 N. W. 471. ' Fisher v. Ration, 134 Mo. 32, 33 S. W. 451, 34 S. W. 1096. An injunction may be decreed on the hearing of the case, where that is the proper relief, whether or not the bill is verified by afiidavit. Shohe v. Luff, 66 111. App. 414. *Gas8 v. Sanger (Tex. Civ. App.) 30 S. W. 502. 'State ex rel. Dearborn v. Merrick, 101 Wis. 162, 77 N. W. 719. That a supplemental petition in an injunction suit, setting forth the owner- ship by plaintiff' of the property in suit with gi-eater particularity than the original petition, is not sworn to, does not prevent a recovery by plaintiff where the original petition was sufficient. Hart v. Connolly, 49 La. Ann. 1587, 22 So. 809. An amendment to a petition may be filed without verification, under Iowa Code 1873, § 2680, although both the petition and answer are sworn to. Thompson v. Brown, 106 Iowa, 367, 76 N. W. 819. An amended complaint may be verified in the discretion of the court, al- VII. FOB INSUFFICIENCY AS TO FOEM. 17l though the original complaint was not verified. Ruffatti v. SociiU Anonyme Des Mines De Lexington, 10 Utah, 386, 37 Pac. 591. An amended libel for seamen's wages need not be sworn to under rules of court providing that libels praying an attachment shall be verified, but those praying a monition or citation only, without attachment, need not be sworn to, where the libel, as amended, does not pray for attachment, and the cargo has been released under a stipulation therefor under the original libel, which is sworn to, and all the libelants are absent from the jurisdiction. The Marion, 79 Fed. 104. But a statement amending an original statement by setting out in full dates and places, must be sworn to. Pennsylvania B. Co. v. Walsh, 1 Pa. Dist R. 121. ' N. y. Code Civ. Proe. § 523. But omission of the verification to an answer, in an action to recover the consideration paid for stock, which plaintiff was induced to buy by false and fraudulent representations of defendant, is not authorized by N. Y. Code Civ. Proc. § 523, providing for such omission where the party pleading would be privileged from testifying as a, witness, since § 529 provides that a defendant is not excused in actions relating to confessed judgments, fraudulent conveyances, or actions relating to specific prop- erty, or charging him with any fraud whatever affecting a. right or property of another. Bechley v. Chamierlin, 65 Hun, 37, 19 N. Y. Supp. 745. In an action against a director of a manufacturing corporation to recover a debt due from the corporation because of failure to file an annual re- port, the defendant need not verify his answer, since the action is only for a penalty or forfeiture; and in such an action a witness is not re- quired to give an answer, under N. Y. Code Civ. Proc. § 837, thus brings ing the case under § 523, authorizing the omission of a verification where the party pleading would be privileged from testifying as a wit- ness. Gadsden v. Woodward, 103 N. Y. 242, 8 N. E. 653. 27. Who may verify pleading. An attorney or agent may verify a pleading^ for a nonresident and absent party,^ or where the action or defense is founded upon a writ- ten instrument for the payment of money only which is in his posi- session/ or where all the material allegations of the pleading are within his personal knowledge,* or where the party is a foreign cor- poration.^ But where the party is a domestic corporation the verifi- cation must be made by an officer thereof.® A complaint or answer may be verified by one of several plaintiffs or defendants where their interest is joint.'' A verification made by a third person not a party to the suit is in- sufficient where it does not purport to be made on behalf of the party, or disclose any reason why it is not made by the party in person.* 172 BRIEF ON PLEADINGS DEMUEEEE. 'The authorized agent of the plaintiff in an action for forcible detainer may verify the complaint. Mercer v. Ringer, 40 Kan. 189, 19 Pac. 670. An interplea may be verified by the attorney for the interpleader. Knapp V. Standley, 45 Mo. App. 264. But the affidavit of an agent to a plea of the general issue is insufficient to put the adverse party upon proof of the execution of the instrument sued on. Warman v. First Nat. Bank, 185 111. 60, 49 L. R. A. 412, 57 N. E. 6. »N. Y. Code Civ. Proc. § 525. The complaint of a domestic corporation may be verified by its attorney, where none of its officers reside or are within the county within which the action is brought, and its principal place of business is within an- otlLer county, under N. Y. Code Civ. Proc. § 525, subd. 3, allowing a. ver- ification by an attorney "where the party is not within the county where the attorney resides;" notwithstanding the provisions that when the party is a domestic corporation the verification must be made by an officer thereof, and that when the party is a foreign corporation the verification must be made by the agent or the attorney. High Bock Knitting Co. v. Bronner, 18 Misc. 627, 43 N. Y. Supp. 725. A statement that the plaintiffs are absent from the county in which the attorney resides authorizes a verification by him, and he need not add that it is for that reason that he makes the verification. Stephens v. Parrish, 83 Cal. 561, 23 Pac. 797. An affidavit stating that the affiant is attorney for the defendant, who is a nonresident, and that affiant is informed and believes that the allega- tions of the answer are true, is a sufficient verification within Kan. Code Civ. Proc. § 108, providing that certain allegations of the com- plaint shall be taken as true unless the denial is verified by the affida- vit of the party, his agent or attorney; § 111, providing that if the af- fidavit states that such party, his agent or attorney, believes the facts stated in the pleading to be true, it shall be sufficient; and § 114, pro- viding four different grounds on which the affidavit may be made by an attorney, including the nonresidence of the party. (Hhson v. Shorb, 7 Kan. App. 732, 52 Pac. 579. Whenever a party is a nonresident of the county, the pleading may be veri- fied by an attorney or agent where the action is upon a written instru- ment for the payment of money only, and the instrument is in the pos- session of the agent or attorney; or when all the material allegations of the pleading are within his knowledge. Griffin v. Asheville Light Co. Ill N. C. 434, 16 S. E. 423; Hammerslamgh v. Farrior, 95 N. C. 135. ■ N. Y. Code Civ. Proc. § 525. In an action upon a promissory note, where the complaint is wholly upon information and belief, a verification by the plaintiff's attorney, who states, in addition to what is required in an affidavit of verification by a party, that he has in his possession the note on which the action ia brought, is sufficient although it does not expressly state that such pos- session is the ground of his belief, or the reason why the affidavit is not made by the party. Smith v. Rosenthall, 11 How. Pr. 442. VII. FOE INSUFFICIENCY AS TO FOEM. 173 In an action upon a written instrument for the payment of money only, possession of the instrument alone is enough to authorize an agent or attorney to verify the complaint. Myers v. Gerrits, 13 Abb. Pr. 106. An attorney having possession of a written instrument for the payment of money only may verify the complaint thereon whether he and the plain- tiff are within the same county or not. The fact that the action is brought on such an instrument, which is in the attorney's possession, is a sufficient excuse or reason for the verifieation of the pleading by the attorney. Wheeler v. Chesley, 14 Abb. Pr. 441. An account verified by the plaintiff or one of its officers is not a written instrument for the payment of money only, within S. C. Code, § 178, providing that the verifieation of a pleading may be made by the agent or attorney, if the action or defense be founded upon a written instru- ment for the payment of money only, and such instrument be in the possession of the agent or attorney. Bray Clothing Co. v. Shealy, 53 S. C. 12, 30 S. E. 620. ■* N. Y. Code Civ. Proc. § 525. Verification of an answer in garnishment by an agent of the garnishee, to the effect that it is true "to the best of his knowledge and belief," with- out pointing out what facts he knew and what facts he believed, to- gether with the ground of his belief, is insufficient. Plant v. Mutual L. Ins. Co. 92 Ga. 636, 19 S. E. 719. An amendment to a verified bill, which contains matters solely within the appellant's knowledge, cannot be verified by the solicitor. Lane v. Grossman, 58 111. App. 386. A verification of a pleading by an attorney in the absence of the party is insufficient unless the affidavit of the attorney shows that he has some personal knowledge of the facts stated in the pleading, under Kan. Code Civ. Proc. § 114, authorizing an attorney to verify the pleading when the facts are within his personal knowledge and the party is absent from the county. Aiken v. Franss, 2 Kan. App. 75, 43 Pac. 306. The statement in an affidavit by an attorney or agent verifying an answer, "that he is familiar with all the facts set up in the above and foregoing answer," is equivalent to a statement that he had a personal knowledge of such facts, for the purpose of Kan. Code Civ. I'roc. § 114, providing in effect that an affidavit of verification may be made by an agent or attorney when the facts are within his personal knowledge. Johnson V. Woodhury Trust Go. 8 Kan. App. S60, 57 Pac. 134. The mere statement, as a conclusion, in an affidavit by plaintiff's attorney verifying the complaint, that the defendant admitted that the amount sued for was due upon the account, without stating how the admission was made, is insufficient to show the authority of the attorney to ver- ify the complaint, under S. C. Code, § 178, providing that an attorney may verify a pleading if all the material allegations thereof are within his personal knowledge. Bray Clothing Co. v. Shealy, 53 S. C. 12, 30 S. E. 620. Mere inferences drawn from inconclusive facts by the attorney for plain- tiff in an attachment, as to the insolvency of the defendant, and that 174 BRIEF ON PLEADINGS DEMUEKEE. mortgages executed by him were taken for the purpose of defrauding- other creditors, are not sufSeient to justify auch attorney in verifying the compla-int as to auch matters, under S. C. Code, § 178. Ibid. The verification of a complaint by an agent, who avers that the complaint is true to his own knowledge, is insufficient where it does not state what knowledge he had of the facts; and the complaint may be treated as unverified, and an unverified answer may be served. Reichert v. Lotisberg, 87 Wis. 54.3, 58 N. W. 1030. An attorney who attempts to verify a. pleading on the ground that the facts are within his knowledge must deny or affirm from actual knowl- edge of the facts, and not upon information and belief. Silcox v. Lang, 78 Cal. 118, 20 Pac. 297. » N. Y. Code Civ. Proc. § 525. The verification of a complaint by the plaintiff's attorney is sufficient in an action brought by a foreign corporation, where the verification .states that the reason why the same was not made by the plaintiff is because it does not reside in the county in which the affiant resides, and is a corporation. Clark's Cove Fertilizer Co. v. Stever, 29 Misc. 571, 62 N. Y. Supp. 249. The verification of pleadings for a corporation may be made by its attor- ney at law, under Neb. Code Civ. Proc. § 120, irrespective of the ques- tion whether or not he may bo served with summons for it. Beatrice Rapid Transit & Power Co. v. German Nat. Bank, 45 Neb. 147, 63 N. W. 374. Verification of a plea on the part of a firm and a. foreign corporation by one shown to be, as member of such firm and agent or representative of the corporation, the principal and active defendant, is sufficient under a statute or rule requiring that all pleas shall be sworn to either by the defendant or his agent or attorney. Marion Phosphate Go. v. Cummer, 9 C. C. A. 279, 13 U. S. App. 604, 60 Fed. 873. The answer of a foreign corporation cannot be verified by an attorney at law who does not profess to be its agent otherwise than in that cp.pacity. Plant V. Mutual L. Ins. Co. 92 Ga. 636, 19 S. E. 719. • N. Y. Code Civ. Proc. § 525. Tile statement of a vice president of a corporation, in an affidavit to a pleading, that he is such officer, is sufficient to give validity thereto, under Cal. Code Civ. Proc. § 446, providing that the verification of a pleading by a corporation may be made by "an officer thereof." Re Close, 106 Cal. 574, 39 Pac. 1067. A duly authorized attorney and agent, appointed by a railway company to verify petitions and pleadings in its behalf for the institution of con- demnation proceedings and otherwise, and who is its agent for the pur- pose of acquiring the lands in controversy, is an "officer" of the com- pany, within N. Y. Code Civ. Proc. § 525, requiring the verification of a pleading in behalf of a domestic corporation to be made by "an officer thereof." Re St. Lawrence & A. R. Co. 133 N. Y. 270, 31 N. E. 218. A managing agent of a corporation, upon whom, by statute, service may be made for it, is an officer, within a provision authorizing corporate of- VII. FOE INSUFFICIENCY AS TO FOEM. 175 fleers to verify pleadings, — especially, where there is no other officer within the jurisdiction of the court. Glauhenahlee v. Hamburgh & American Packet Co. 9 Abb. Pr. 104. A director of a domestic corporation is an "officer" within N. Y. Ck)de Civ. Proc. § 525 requiring, where a party is a domestic corporation, that its pleading be verified by an officer thereof. Bigelow v. Whitehall Mfg. Co. 1 N. Y. City Ct. 138. But under a statute authorizing a pleading filed by a corporation to be ver- ified by an officer thereof, a. pleading verified by an agent merely is in- sufficient. Banks v. Gay Mfg. Co. 108 N. C. 282, 12 S. E. 741. And an affidavit of defense made by the agent of a corporation is insuffi- cient where it fails to disclose any specific or exclusive knowledge of facts by such agent, and any reason why it was not made by an officer. Kelly V. Singer Mfg. Co. 4 Pa. Dist. R. 440. The answer of a corporation should be signed by the president with the corporate seal affixed, but it need not be sworn to. 2'eter v. West Vir- ginia C. & P. B. Co. 35 W. Va. 433, 14 S. E. 146. ' A verification of a pleading by one of two or more plaintiffs or defendants is sufficient in California, under Cal. Code Civ. Proc. § 446. Claiborne v. Castle, 98 Cal. 30, 32 Pac. 807. If there are two or more parties united in interest and pleading together, the verification should be made by at least one of them, who is ac- quainted with the facts. N. Y. Code Civ. Proc. § 525. But where the interests of defendants are not joint or united, as in an ac- tion against the maker and indorsers of a promissory note, each must verify his answer, whether it be a joint or separate one. Hull v. Ball, 14 How. Pr. 305. And in an action commenced by several persons who are not united in inter- est, each should unite in the verification. GroAj v. Kendall, 10 Abb. Pr. 66. If the interest of defendants is several, and a verified complaint is served upon part of them and an unverified complaint upon one of them, they cannot unite in serving an unverified answer. Wendt v. Peyser, 14 Hun, 114. The verification of a plea in abatement by a firm is sufficient if subscribed and sworn to by one member of the firm. Cheatham, v. Pearce, 89 Tenn. 668, 15 S. W. 1080. A plea in abatement on behalf of a partnership is available to both the members of the firm, although verified by only one of them. Jones v. Austin, 6 Tex. Civ. App. 505, 26 S. W. 144. ' Nichlouiski v. Kempenski, 10 Kulp, 105. A complaint in an action upon a promissory note may be good as an unver- ified complaint, although it fails as a verified complaint because the person who verified it was not authorized to do so. Williamis v. Empire Woolen Co. 7 App. Div. 345, 39 N. Y. Supp. 941. An affidavit denying the correctness of an account verified as required by statute, which verification is made by an agent or attorney, must set forth the reasons why it is not made by the party himself, or it is in- 176 BRIEF ON PLEADINGS DEMUEBEK. sufficient to question the correctness of the account. Garfield County v. Isenherg, 10 Okla. 378, Gl Pac. 1067. If a verification to a complaint fails to show why it was made by the at- torney, and not by one of the parties to the action, the defect is waived where the defendant makes no objection and files a verified answer. Nichols V. Jones, 14 Colo. 61, 23 Pac. 89. 28. VeriflcatioD — sufficiency. A bill that attempts to remove into equity, matters cognizable in a court of law, and bills in cases requiring tbe preliminary aid of the court upon facts stated in the bill, which are not otherwise substan- tiated, should be verified.^ A verification of a bill "true to the best of deponent's knowledge, information, and belief" is bad.^ An answer to a bill in chancery should be regularly signed and sworn to, but the signature and oath may be waived.^ Where an affidavit of verification is made by a person other than the party, he must set forth the grounds of his belief as to all matters not stated upon his knowledge.* A statement in an answer sworn to on the belief of the defendant is equivalent to one sworn to in absolute terms. ^ A verification of a plea in abatement that the statements in the same are true is sufficient.* ' Moore v. Cheese-man, 23 Mich. 332. A bill filed by a judgment creditor to vacate fraudulent conveyances and subject the realty to the lien of his judgment need not be sworn to. If a verification were necessary, it could be made by the complainant's at- torney. TFa/Zer v. Shannon, 53 Miss. 500. 'Burgess v. Martin, 111 Ala. 656, 20 So. 506 (Citing Piclde v. Ezzell, 27 Ala. 623; Dennis v. Goker, 34 Ala. 611; Olohe Iron Roofing & Corrugat- ing Co. v. Thacher, 87 Ala. 458, 6 So. 366). The decision is based on the ground that it does not affirmatively appear that the verification means more than that affiant believes the allegations of the bill to be true, tbough he has neither knowledge nor information of their truth. A verification which sets- forth that the party knows the contents of a bill, and that "the same are true, except as to those matters therein stated upon information and belief; and as to those matters he believes it to be true,'' amounts to no more than a statement that affiant believes the bill to be true, and is insufficient. Brabrook Tailoring Co. v. Belding Bros. 40 111. App. 326. A bill is not properly verified where the verification is merely to the best of complainant's knowledge and belief. Packer v. Roberts, 44 111. App. 232. The verification must show what matters are stated upon information and belief. See Stirlen v. Neustadt, 50 111. App. 378, holding that a verifi- cation of a bill that the complainant has "read the same and knows the contents thereof, and that the same is true of his own knowledge, except as to matters stated therein on information and belief, and as to those, VII. FOB INSUFFICIENCY AS TO FOEM. 177 he believes it to be true," is insufficient as failing to show what matters are stated upon information and belief. It should be to the matters that are stated "to be on information and belief." A verification of a bill to the effect that it is true to the deponent's own knowledge, except as to the matters and things therein "stated upon in- formation and belief," instead of "stated to be alleged on information and belief," is insufficient. Werner Co. v. First Nat. Bank, 55 111. App. 321. A verification of a bill for divorce, that the complainant has read or heard read the bill of complaint, and knows its contents, and that the same is true as of her own knowledge, except as to matters therein stated on in- formation, and as to those matters she believes them to be true, is in- sufficient. Earle v. Earle, 60 111. App. 360. A bill is not sufficiently verified to warrant a preliminary injunction, where the affiant states that he has read the bill and knows the con- tents thereof, and that the matters and things therein stated are true of his own knowledge, except those allegations made upon information and belief, which matters he believes to be true, as the same are al- leged in the bill. Chicago Exhibition Co. v. Illinois State Bd. of Agri. 77 111. App. 339 (Citing Bralrook Tailoring Co. v. Belding Bros. 40 111. App. 326 ; Deimel v. Broun, 35 111. App. 303 ) . An affidavit to a bill that affiant knows the bill to be true, except as to those matters and things therein stated on information and belief, and as to such matters he believes the same to be true, is bad, since it does not disclose but that all the allegations of the bill are on information and belief, and what matters there may be in the bill that are stated on information and belief can only be known by probing the mind of the pleader; but matters that are stated to be on information and belief can be ascertained by reference to the bill. Commerce Vault Co. r. Hurd, 73 111. App. 107. An affidavit verifying a creditor's bill, stating that complainant has read and knows the contents thereof, and that it is true of his own knowl- edge, except as to the matters stated on information and belief, as to which he believes it to be true, is insufficient in that it makes the whole bill on information and belief, there being no way of distinguish- ing between such matters and those of which the complainant has knowledge. Siegmund v. Ascher, 37 111. App. 122. A verification of a bill for injunction, alleging that the matters and things in said bill are true to affiant's own knowledge, except as to those mat- ters and things therein stated on information and belief, and as to such matters affiant says they are stated in said bill on infonnation received by affiant, and that he believes the matters and things so stated on in- formation to be true, is insufficient. Sherusood r. Prussing (111. App.) 1 Chicago L. J. Weekly, 179. 'Fulton Bank v. Beach, 2 Paige, 307. If a plea to a bill in chancery is not verified by the oath of the defendant, Abb. Pl. Vol. I.— 12. 178 BEIEF ON PLEADINGS DEMUEEEE. the complainant may apply for an order to set it aside, or to have it taken ofT the files of the court. Eeartt v. Corning, 3 Paige, 566. ♦N. Y. Code Civ. Proc. § 526. The requirement of N. Y. Code Civ. Proc. § 526, that where a complaint is verified by one not a party, the affiant shall state the ground of his be- lief as to all matters not stated upon his knowledge, is sufficiently com- plied with by an affidavit stating that affiant's "knowledge" is derived from information received from letters, and admissions therein referred to, — at least, where all the allegations of the complaint are made upon information and belief; as the word "knowledge" cannot be limited to allegations upon personal knowledge. Bigh Rock Knitting Co. v. Bron- ner, 18 Misc. 627, 43 N. Y. Supp. 725. So, an averment that the sources of plaintiff's information, and the grounds of his belief as to the statements of the causes of action al- leged on information and belief, are the statements made to him by de- fendant and the general manager and agent of the company which as- signed the causes of action to him, is a sufficient statement of the sources of his information and the grounds of his belief. Mimck v. Levey, 17 Misc. 315, 40 N. Y. Supp. 348. But the verification of a complaint by the president of plaintiff corpora- tion in the usual form required where the verification is made by a party is sufficient without a statement of the sources of his knowledge regarding the matters in suit. Duryta, W. & Go. v. Rayner, 11 Misc. 294, 32 N. Y. Supp. 247. In all cases of verification by an attorney, he must state his knowledge or grounds of belief. Souttcr v. Mather, 14 Abb. Pr. 440 (Citing Stan- nard v. Mattice, 7 How. Pr. 4; Tread-well v. Fassett, 10 How. Pr. 184; Meads v. Gleason, 13 How. Pr. 309; Boston Locomotive Works v. Wright, 15 How. Pr. 253). A statement in an affidavit of verification by an attorney, that his informa- tion as to all matters stated upon information and belief is derived from the admissions of the defendant to the deponent, and from letters received from the plaintiffs, sufficiently shows the grounds of his belief ■without giving a copy of the letters or a full narration of the conversa- tions. Duparquei v. Fairchild, 49 Hun, 471, 2 N. Y. Supp. 264. A verification of a complaint by the plaintifl''s attorney is defective, and the defendant may treat it as an unverified pleading, where the aver- ments of the complaint are positive, nothing being alleged upon infor- mation and belief, and the verification discloses that the sources of the deponent's information as to the facts alleged are conversations with the plaintiff, thus showing that the attorney had no personal knowl- edge of the facts alleged, and was disqualified to make the verification, under N. Y. Code Civ. Proc. § 526, requiring the affidavit of verifica- tion to be to the effect that the pleading is true to the knowledge of deponent, except as to the matters therein stated to be alleged on infor- mation and belief, and that as to those matters he believes it to be true. Moran v. Helf, 52 App. Div. 481, 65 N. Y. Supp. 113. A verification of a pleading by an agent complies with the Code and is VII. FOE lA^SUFFICIENCY AS TO CAUSE OF ACTIOlSr. 179 sufficient, where every allegation is sworn to as true of the agent's own knowledge, although it is probable that he has sworn that to be true of his own knowledge which he could not know to be true. Beyer v. Wil- son, 4G Hun, 397. 'Deering Harvester Co. v. Peugh, 17 Ind. App. 400, 45 N. E. 808 (Citing Simpkins v. Malatt, 9 Ind. 543; Bonsell v. Bonsell, 41 Ind. 47G). 'Armstrong v. State, 101 Tenn. 389, 47 S. W. 492, holding that it is not necessary to add the clause "in substance and in fact." And a veriiieation of a plea of want of consideration in an action on prom- issory notes, stating that the defendant comes "in the above styled and numbered cause, and says that the fact, as alleged in his first amended oiiginal answer, that his indorsement of guaranty of the notes sued upon is without consideration, is true," is suflicient. Baker v. Wahr- miivd, 5 Tex. Civ. App. 268, 23 S. W. 1023. But a verification of an answer merely to the eft'ect that the affiant, being sworn, says he is the defendant and knows the foregoing answer to be true, is insufficient in failing to show that it is made of his knowledge. Cherry v. l<'oley, 42 N. Y. S. K. 188, 16 N. Y. Supp. 853. IV. OujECTioiirs Touching the Natuke or Substance of tuts Cause of Action or Kelief. a. Nature of Claim. 29. Theory of case need not be stated. A compiaint should be drawn upon a single defirite tlieory,* and such theory will control to the end.^ A demurrer is properly sus- tained to a paragraph of a complaint which proceeds upon no definite theory.'' But the want of a theory does not make a complaint de- murrable, if it states sufficient facts to constitute a cause of action.* A complaint must be good on the theory on which it proceeds or it will be held insufficient, even though it states facts enough to be good on some other theory.^ The name by which a pleading is called will not be controlling if the allegations are sufficient.® ■ Callaway v. Mellett, 15 Ind. App. 366, 44 N. E. 198. A complaint that defendants conspired together to defraud plaintiflT out of his farm, and that they induced him to exchange it for lands owned by one of them in another state by falsely representing the value thereof, and that they were unencumbered, and afterwards, upon his discover- ing the fraud, fraudulently induced him to accept a sum of money anJ other land to which defendant had no title, — is not insufficient in not proceeding on a definite theory, and in setting up a tort in a portion thereof by fraudulent misrepresentations, and alleging conspiracy be- tween the parties. Balue v. Taylor, 136 Ind. 368, 36 N. E. 209. 180 BEIBF ON PLEADINGS DEMTIEEEE. The rule that a. complaint must proceed upon some definite theory, and that a recovery may be had only according to the averments forming the gist of the pleading, is not so violated by setting up several consid- erations for the contract sued on as to prevent a, recovery upon that which he establishes, although he does not establish the others. Bar- nett V. Franklin College, 10 Ind. App. 103, 37 N. E. 427. A complaint mast proceed on some definite theory, and on that theory it must state facts sufficient to constitute a, cause of action in favor of all the parties who joined as plaintiiTs. Indianapolis Natural Gas Co. v. Spaugh, 17 Ind. App. 683, 46 N. E. 691. A complaint in an action upon a policy of life insurance cannot, at the same time, be declared upon a policy issued to the plaintiff and a policy issued to the person whose life was insured, as a. complaint must pro- ceed upon some definite theory. Prudential Ins. Go. v. Eunn, 21 Ind. App. 525, 52 N. E. 772. The rule that a complaint must proceed upon some definite theory and must be good upon the theory upon which it proceeds does not require that the plaintiff must be entitled to all the relief asked for in the complaint; but the complaint is sufficient to withstand a, demurrer or assignment of error that it does not state facts sufficient to constitute a cause of action if the plaintiff is entitled to any of the relief asked for upon the theory of his case as set forth. Yarn v. Bracken, 153 Ind. 492, 55 N. E. 257. » Tibhet v. Zurbuch, 22 Ind. App. 354, 52 N. E. 815. It is of the highest importance to the administration of the law that courts should adhere most tenaciously and strictly to this rule of plead- ing, which requires the pleader to be bound by his cause of action as stated by him. Otherwise his adversary would have no assurance of the facts he would have to controvert to meet his attacks and would be taken unaware in the forensic encounter at the bar. Sanders v. Bartge, ' 17 Ind. App. 243, 46 N. E. 604. A complaint cannot be made elastic, so as to bend to the changing views of counsel as the cause proceeds. It must proceed to the end upon the theory upon which it is constmcted. Toledo, St. L. & K. G. R. Co. v. Levy, 127 Ind. 168, 26 N. E. 773. » Markover v. Krauss, 132 Ind. 294, 17 L. R. A. 806, 31 N. E. 1047. 'Scott V. Cleveland, C. C. & St. L. R. Co. 144 Ind. 125, 32 L. R. A. 154. 43 N. E. 133. That a complaint is so inartificially drawn as not to disclose on which of two theories plaintiff intends to proceed will not subject it to oral de- murrer by an objection to the introduction of evidence, when it clearly states facts sufficient to justify a recovery on one of themu Batten t- Randall, 48 Mo. App. 203. In a suit to set aside assignments, where the complaint states a good cause of action on the ground of the unsoundness of mind of the assignor, it is not demurrable for failure to state a cause of action on a definite and certain theory although it contains averments of weakness of mind and Vn. FOE INStrrFIClENCT AS TO CAUSE OF ACTION, 181 fraud suflScient to state a cause of action on that ground. Uarh v. morth, 155 Ind. 575, 57 N. E. 902. *Carmel Natural Gas & Jmprov. Co. v. Small, 150 Ind. 427, 47 N. E. 11, 50 N. E. 476; Copeland v. Summers, 138 Ind. 219, 35 N. E. 514, 37 N. E. 971. But if the demurrer is general, it will be overruled if the bill can be sus- tained upon any theory of the case. Darrah v. Boyce, 62 Mich. 480, 29 N. W. 102. So, an answer stating facts sufficient on one theory is not bad though stated in a form to suggest an untenable theory. Hemmingway v. Poucher, 98 N. Y. 281 (Citing Oneida Bank v. Ontario Bank, 21 N. Y. 490; Chat field v. Simonson, 92 N. Y. 209). 'Dreyer v. Eart, 147 Ind. 604, 47 N. E. 174. A declaration which calls the action "case'' in the caption, alleging that defendant had plaintiff taken by force and against his will to a police Sitatiou, and caused him to be arrested and kept in prison, is sufficient on general demurrer. Kimiell v. Miller, 54 111. App. 665. It is not material by what name, or whether by any, an action under the Nebraska Code is designated. The pleader should state the facts, and if they will constitute a cause of action, the law affords the remedy without reference to the form of action. Skinner v. Skinner, 38 NeK 756, 57 N. W. 534. Plaintiff's right to recover is not lost by giving the wi'ong name and class- ification to the action if, on the facts exhibited, he is entitled to legal redress. Johnson v. Girdwood, 7 Misc. 651, 28 N. Y. Supp. 151. 30. General rule for sustaining complaint against demurrer. A demurrer on the ground that the complaint does not state facts sufScient to constitute a cause of action is not sustainable except when, admitting all the facts (as distinguished from conclusions of law)^ which are alleged (even though argumentatively or indefi- nitely), no cause of action whatever is presented^ for any part of the relief demanded j** or when, with facts showing a cause of action, a eomplete defense thereto is also sufficiently stated. ' Mere allegations of the pleader's conclusions are insufficient to withstand a demurrer. Funk v. Bcntchler, 134 Ind. 68, 33 N. E. 364, 898. A pleading should state facts, and not mere conclusions. Wabaska El«e- trie Co. V. Wymore, 60 Neb. 199, 82 N. W. 626; State ex rel. Young r. Oshorn, 60 Neb. 415, 83 N. W. 357. An allegation in an answer that plaintiffs are not the real parties in inter- est, but that the true plaintiff is a third person for whose benefit and interest, as defendant is informed and believes, the action is brought,. is a conclusion of law and insufficient. Esch v. White, 82 Minn. 462, 85 N. W. 238, 718. A biU should state the right plaintiff claims, the injuries complained of. 182 BEIEF ON PLEADINGS DEMUKEEE. and the relief he seeks, with the facts to justify it, with such accuracy and clearness and such detail of the essential circumstances of time, place, manner, etc., as will so make his ease as to inform defendant of what he is called upon to meet; stating, not conclusions of law, but the facts out of which arise his right to some specific relief. Zell Guano Go. V. Heatherly, 38 W. Va. 409, 18 S. E. 611. ' A complaint which states facts which entitle the plaintiff to relief, either legal or equitable, is not demurrable. Whitehead v. Sweet, 126 Cal. 67, 58 Pac. 376; Bamlerger v. OsUnsky, 21 Misc. 716, 48 N. Y. Supp. 139; Wisner v. Consolidated Fruit Jar Co. 25 App. Div. 362, 49 N. Y. Supp. 509; Simon v. Sali, 56 S. C. 38, 33 S. E. 799. But a, petition which fails to do so is properly dismissed on demurrer. McClung v. Amos, 97 Ga. 270, 22 S. E. 980. A general demurrer to a bill in equity must be overruled unless it appears that on no possible state of the evidence could a decree be made. Failey V. Talbee, 55 Fed. 892; Pleasants v. Fay, 13 App. D. C. 237. Or when the bill cannot be sustained on any ground set out therein. Sanehe v. ElectroUbration Co. 22 Wash. L. Rep. 769. But the defect must be clear. Bennett v. Finnegan (N. J. Eq.) 33 Atl. 401. An allegation in a petition in equity, that plaintiff is informed and believes specified facts, is insufficient under Mo. Rev. Stat. 1889, § 2039, requir- ing a plain and concise statement of the facts constituting the cause of action. Nichols d S. Co. v. Hubert, 150 Mo. 620, 51 S. W. 1031. A general demurrer to a complaint which sets forth a cause of action is properly overruled. Central B. Co. v. Plunkett, 102 6a. 577, 27 S. K. 682; York Draper Merccmtile Co. v. Hutchinson, 2 Kan. App. 47, 43 Pac. 315; Kemper v. Lord, 6 Kan. App. 64, 49 Pac. 638. This is true where any cause of action is set forth, even though the facts may not be sufficient to sustain the particular cause of action upon which the complaint may seem to be based. Ladson v. Mostowitg, 4S S. C. 388, 23 S. E. 49 (Citing New Home Sewing Mach. Co. v. Wray, 28 S. C. 86, 5 S. E. 603; Burr v. Brantley, 40 S. C. 540, 19 S. E. 199). And for the purpose of a demurrer, it is immaterial whether a complaint is founded upon the abduction or seduction of plaintiff's daughter, when it states a, good cause of action upon both. Kreag v. Anthus, 2 Ind. App. 482, 28 N. E. 773. A complaint will be held insuflicient where the words used therein wholly fail to state a material fact essential to a recovery. Morris v. Ellis, 16 Ind. App. 679, 46 N. E. 41. Every fact the proof of which is essential to plaintiff's recovery must be stated in the petition ; otherwise, it will be fatally defective. Story v. American Cent. Ins. Co. 61 Mo. App. 534. A complaint, in order to state a cause of action, must show some primary right possessed by the plaintiff, and some corresponding duty re.sting upon the defendant, and the invasion of such right and the violation of such duty by some wrongful act or omission of the defendant Bir- mingham V. Cheetham, 19 Wash. 657, 54 Pac. 37. A defective statement of a cause of action is good as against a general VII. FOE INSUFl'ICIJSNCY AS TO CAUSE OF ACTION. 183 demurrer, if it is amendable. Erie Teleg. & Teleph. Co, v. Orvmes, 82 Tex. 89, 17 S. W. 831. Errors in a complaint which states, but defectively, all the facts essential to a recovery, cannot be reached by a general demurrer to its suffi- ciency. Bituminous Lime Rock Paving & Improv. Co. v. Fulton (Cal.) 33 Pac. 1117. Where several amendments were allowed during the pendancy of the suit, if the declaration, as ultimately framed, sets forth a cause of action, a demurrer thereto should not be sustained, although the cause of action may not have been complete until all the amendments were made and allowed. Verdery v. Barrett, 89 6a. 349, 15 S. E. 476. A demurrer on the ground that the petition does not state facts sufficient to constitute a cause of action will be overruled where, in any part, facts showing a cause of action are stated. Weed v. United States, 65 Fed. 399. A special demurrer on the ground of misjoinder of parties defendant, of the improper union of several causes of action, and of the uncertainty and ambiguity of the complaint, directed in terms to the whole complaint, is properly overruled where a part of the pleading sets forth a, cause of action good as against the special demurrer. Jones v. Iverson, 131 Cal. 101, 63 Pac. 135. A demurrer to an entire petition, alleging several grounds of illegality in an alleged assessment of real estate, is properly overruled if any one ground is sufficient in itself to annul the assessment. Tampa v. Mugge, 40 Ma. 326, 24 So. 489. Where a. declaration contains a good statement of a valid cause of action, although it may contain other matters open to special demurrer, it will not be obnoxious to general demurrer. Chicago v. Wolf, 86 111. App. 286. A general demurrer to a petition is bad if the entire petition, taken as a whole, states a cause of action, although a particular count thereof would be obnoxious to a special demurrer. Weber v. Dillon, 7 Okla. 568, 54 Pac. 894. ' A complaint which shows that plaintiff is entitled to some relief is not demurrable, llulman v. Todd, 96 Cal. 228, 31 Pac. 39; Korrady v. Lake Shore d M. S. R. Co. 131 Ind. 261, 29 N. E. 1069; Taylor v. Beam, 131 Ind. 537, 31 N. E. 201; Aldrich v. Boioe, 56 Kan. 170, 42 Pac. 695; Hazelden v. Thompson, 21 Ky. L. Rep. 303, 51 S. W. 1129; Magee v. Frazer, 20 Ky. L. Eep. 1467, 49 S. W. 452; Oeorge v. Edney, 36 Neb. 604, 54 N. W. 986; Strong v. Weir, 47 N. C. 307, 25 S. E. 157; Moore v. Spurrier, 55 S. C. 292, 33 S. E. 352; Miller v. Bare, 43 W. Va. 647, 39 L. R. A. 491, 28 S. E. 722; Drefahl v. Gonnell, 85 Wis. 109, 55 N. W. 160. Although it does not show that he is entitled to the relief demanded. Kor- rady V. Lake Shore & M. S. R. Co. 131 Ind. 261, 29 N. E. 1069; Earper V. Kemble, 65 Mo. App. 514; Cormer v. Ashley, 49 S. C. 478, 27 S. E. 473; United States Sav. Fund & Itwest. Co. v. Harris, 142 Ind. 226, 40 N. E. 1072, 41 N. E. 451. 184: BEIEF ON PLEADINGS ^DEMUEEEE. No matter what the form of the action or the prayer of the complaint may be, if the facts alleged show that the plaintiff is entitled to any sub- stantial relief, the complaint is good as against a general demurrer. Kenaston v. Lorig, 81 Minn. 454, 84 N. W. 323 (Citing LeuthoU v. Young, 32 Minn. 122, 19 N. W. 652; Alworth v. Seymour, 42 Minn. 526, 44 N. W. 1030; Bay View Land Co. v. Myers, 62 Minn. 269, 64 N. W. 816). If any of the counterclaims stated in a complaint of intervention are suffi- cient, a demurrer for insufficiency to the whole complaint should b« overruled. A. E. Johnson Co. v. White, 78 Minn. 48, 80 N. W. 838. Demurrers to a petition of intervention in a suit in which a receiver has been appointed should not be sustained where the petitioner is entitled to a partial recovery on the case made by the petition. Savannah, F. & W. R. Co. V. Jacksonville, T. & K. W. R. Co. 24 C.' C. A. 437, 52 U. S. App. 51, 79 Fed. 35. But a demurrer to a complaint upon the ground that it does not state facts sufficient to constitute a cause of action will be sustained if the facts stated do not entitle the plaintiff to the relief specifically demanded, even though they would have entitled him to some other or different relief had he demanded it. Vogt Mfg. £ Coach Lace Co. v. Oettinger, 88 Hun, 83, 34 N. Y. Supp. 729. See also cases under §§ 31-37, 59-61, infra. 31. Informal pleading:. Ilnder the new procedure, a demurrer to a complaint for insuffi- ciency can only be 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 imperfectly or in- formally averred,^ or that the pleading lacks definiteness and pre- cision," or that the material facts are only argumentatively averred.* The complaint, on demurrer, is deemed to allege what can be implied from the allegations therein, by reasonable and fair intendment;* and facts impliedly averred are traversable in the same manner as though directly averred. A general demurrer to a petition which impliedly states a cause of action should be overruled.^ An objection to the sufficiency of the complaint on the ground that the essential facts appear only as conclusions of law cannot be reached on general demurrer. '^ ' See cases under preceding section. • National Bank of Commerce v. Bank of Veto York, 17 Misc. 691, 41 N. Y. Supp. 471; Cray v. Fuller, 17 App. Div. 29, 44 N. Y. Supp. 883; Turner v. Clark, 18 Tex. Civ. App. 600, 46 S. W. 381; Trump v. Tid»- water Coal d Coke Co. 46 W. Va. 238, 32 S. E. 1035. VII. FOE INSUFFICIEIfCY AS TO CAUSE OF ACTION. 185 Mere informalities in a complaint are not obnoxious to a general demur- rer. Carpenter v. Sviilh, 20 Colo. 39, 36 Pac. 789. A complaint is not demurrable for insuflRcieney if it actually contains ele- ments of a cause of action, however inartifioially 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. People v. New York, 28 Barb. 240; Simpson v. Prather, 5 Or. 86. A complaint alleging that, in compromise of an unliquidated claim for services rendered by plaintiff, the defendant promised to pay a speci- fied sum, is sufficient in substance although drawn in violation of estab- lished rules of pleading. United States Nat. Bank v. Homestead Bank, 46 N. Y. S. R. 173, 18 N. Y. Supp. 758. And an answer alleging facts sutEcient to defeat the plaintiff's right of recovery is not demurrable, however unskilfully the material facts may be arranged with reference to each other or to the immaterial facts. Sterling Wrench Co. v. Amstutz, 50 Ohio St. 484, 34 N. E. 794. A general demurrer to a bill in equity will be overruled if a case for equi- table relief is set out, however impeifectly. Rohiiison v. Kunkleman, 117 Mich. 193, 75 N. W. 451. A suitor will not be turned out of a court of equity because the facts are defectively stated in his bill, if they present a case for equitable relief. Condon v. Knoxville, C. G. & L. B. Co. (Tenn. Ch. App.) 35 S. W. 781. An equity pleading need not use a set form of words when it states the facts necessary for the relief sought, with such proper prayer as may be required. State use of Morristoion Co-Op, Stove Go. v. McFarland (Tenn. Oh. App.) 35 S. W. 1007. •A complaint is not subject to a general demurrer, although it lacks defi- niteness or precision. Union Street li. Co. v. Stone, 54 Kan. 83, 37 Pac. 1012; Milliken v. Western U. Teleg. Go. 110 N. Y. 403, 1 L. R. A. 281, 18 N. E. 251; National Bank of Commerce v. Bank of New York, 17 Misc. 691, 41 N. Y. Supp. 471; Cray v. Fuller, 17 App. Div. 29, 44 N. Y. Supp. 883; King v. Biersehenk, 32 App. Div. 626, 62 N. Y. Supp. 498. 'A pleading, not as precise and accurate as it might be, but which suffi- ciently charges a failure of defendant to exercise proper care to prevent en injury to plaintiff, is sufficient as against a general demurrer, al- though it might not be against a special exception. Yielma v. Inter- national d a. N. R. Co. (Tex. Civ. App.) 31 S. W. 212. In actions before justices of the peace, a statement is sufficient if it advise the defendant of what he is sued for, and is so definite as to bar another action for the same matter. Lemon v. Lloyd, 46 Mo. App. 452; Bauer V. Barneit, 46 Mo. App. 654. Under Va. Code, § 3272, providing that, on demurrer, the court shall not regard any defect in the declaration, unless there be omitted sbmetliing so essential to the action that judgment according to law and tlie very right of the cause cannot be given, a declaration against a railway com- paijy for injuries to a licensee on a depot platform is not demurrable 186 BEIEF ON PLEADINGS DEMUKEEE. on the ground that it is obscure, uncertain, and prolix. "Norfolk d W. R. Co. V. Wood, 9 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 meantime, her evidence to establish the first ground of defense 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 sets out an additional objection to the validity of the lien sought to be annulled, which, if well founded, would appear in the proceedings to enforce the lien. It may not prove well founded in fact, and the party should not be compelled to repose wholly upon it. The allegation may 1)6 treated as surplusage." Compare Requa v. Guggenheim, 3 Lans. 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 defendant. * Carter V. Warm (Idaho) 57 Pac. 314. Where one of two distinct counts in a petition does not disclose a cause of action it may be disregarded on exception, and the cause permitted to go to judgment on the remaining good count. Wisner v. Rohnert, 46 La. Ann. 1234, 15 So. 637. A demurrer to an entire complaint must be overruled, although one of the causes of action is demurrable, and the different causes of action are not separately stated and numbered, where other causes of action stated therein are not demurrable. Cunimings v. American Gear & Spring Co. 87 Hun, 598, 34 N. Y. Supp. 541. A complaint is good as against a demurrer on the ground that it does not .state facts sufficient to constitute a. cause of action, where it contains sufficient facts for that purpose in one count, although it includes in the same count other allegations which furnish no basis for relief. Sican V. Mutual Reserve Fund Life Asso. 17 Misc. 722, 41 N. Y. Supp. 444. A general demurrer to a petition containing a good and a defective count should be overruled. Staples v. Llano County, 9 Tex. Civ. App. 201, 28 S. W. 5G9. As against a. general demurrer or mere motion, a plea containing a good defense to the action is not vitiated because it sets up otlier matters, and prays for relief which cannot be granted. King T. Johnson, 94 Ga. 665, 21 S. E. 895. 36. Allegations involving mistake as to the law. If a good caiise of action appears, allegations added apparently for the purpose of making out a case under a mistaken theory of law as VII. FOE INSUFFICIENCY AS TO CAUSE OF ACTION. 193 to the plaintiff's rights may be disregarded as surplusage.^ A de- fendant who denies such allegations is not thereby estopped from in- sisting on the application of the proper legal rule.^ Nor is the plain- tiff who made them estopped, unless they have so affected the frame and theory of the action as to mislead the defendant, or resulted in a failure to prove the alleged cause of action in its entire scope and meaning. ' The designation in a declaration of a written promise to pay, as a prom- issory note, which is technically not a, promissory note, does not render the declaration demurrable. Judgment reversed on above grounds. Hoops V. Atlcins, 41 Ga. 109. In a complaint which alleges an express contract to keep in repair a water ditch, neglect to do so, and that plaintiff had paid for repairs a certain sum, which was paid "to the defendant's use," and that "the defendant promised to pay the same,'' — the latter allegations may be regarded as surplusage, and the plaintiff can recover damages for the breach of the contract. A good cause of action is not destroyed by adding immate- rial matter, and a party is not estopped or concluded by a mistaken averment of law in his pleading. On- 'Water Ditch Co. v. Reno Water Co. 19 Nev. 60, 6 Pac. 72. The averment of an order to return, not accepted, in an action for breach of warranty, if the right to return did not exist at law, is surplusage which does not vitiate the complaint. Murphy v. MoOraw, 74 Mich. 318, 41 N. W. 917. Mibtake in alleging maximum legal rate of charge allowable under a pub- lic act was disregarded. Reynolds v. Chicago & A. R. Co. 85 Mo. 90. *A defendant, held to be a, trastee for the plaintiff for certain lands, was charged on accounting with the rental value, as distingfuished from the actual receipts. On appeal, it was held, although the answer stated that use and occupation was worth a less sum than that stated by plaintiff, it did not estop defendant 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 immaterial. Judgment re- versed. Wilooa> V. Bates, 45 Wis. 138. 37. Immaterial allegations not regarded. If the pleading state facts constituting a cause of action or defense, unnecessary allegations, even though of insufficient evidence, cannot make the pleading bad on demurrer.^ Defective allegations of matter, which may be rejected as surplus- age, do not render a declaration demurrable.^ ^ King v. Enterprise Ins. Co. 45 Ind. 43; Hoyden v. Anderson, 17 Iowa, 158; Ward v. Ward, 5 Abb. Pr. N. S. 145; First Wat. Bamk v. Acmo White Lead & Color Co. 123 Ala. 344, 26 So. 354; Wickersham v. Crit- Abb. Pl. Vol. I.— 13. 194 BRIEF ON PLEADINGS DEMTTEEEE. tenden, 93 Cal. 17, 28 Pac. 788; Lincoln Unwersity v. Richardson, 11 Colo. App. 151, 52 Pac. 082; Samples v. Carnahan, 21 Ind. App. 55, 51 N. E. 425. Irrelevant and immaterial allegations of a complaint in an action for an acoouniting and winding-up of a copartnership, which do not constitute proper subject-matter for an accounting between the parties, should be made the subject of a motion to strike out, and cannot be reached by- demurrer. Bremmer v. Leavitt, 109 Cal. 130, 41 Pac. 859. Irrelevant and immaterial matter cannot be expurgated from the petition by a demurrer, under Iowa Code, § 3618. Re McMurray's Estate, 107 Iowa, 648, 78 N. W. 691. Tlie inclusion of irrelevant matter in a bill is not cause of demurrer in Pennsylvania,. The proper remedy is by motion to strike out. Jen- nings Bros. V. Beale, 158 Pa. 283, 27 Atl. 948. Wholly immaterial allegations in a complaint may be ordered stricken out, but are not demurrable. Parker v. Burcjess, 64 Vt. 442, 24 Atl. 743. In New York the court does not favor motions to strike out redundant or irrelevant allegations in a pleading, but the proper remedy is by de- murrer or motion on the trial. Emmons v. McMillan Co. 20 Misc. 400, 45 N. Y. Supp. 1026. A complaint on town bonds, which, after alleging compliance with the con- ditions precedent to their issue, sets forth the town clerk's certificate of the facts, is not demurrable because the clerk's certificate insufficiently states the facts, where the other allegations are sufficient, since the certificate is mere surplusage. Pierce v. Bt. Anne, 30 Fed. 36. 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 demurrer. De Martin v. Albert, 68 Cal. 277, 9 Pac. 157. In Marix v. Stevens, 10 Colo. 261, 15 Pac. 350, the complaint stated the terms of a lease, and then alleged "that defendant so leased and rented said premises, and had the right to the possession thereof and to the use and enjoyment of the same at all times during said month." Demurrer because it failed to show whether the defendant used and enjoyed the premises, or merely had the right thereto, overruled. Rising, C, said: "The facts admitted by the demurrer are that 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 of action rests. An allegation in a petition to recover possession of land by heirs of a named owner, in addition to the allegations that he has been gone from the state and has not returned thereto for more than seven successive years, raising a presumption of death, that since he left the state, plain- tiffs have never heard from him, does not render the petition defective, as the additional allegation may be disregarded as surplusage. Fuson v. Bowlin, 17 Ky. L. Kep. 128, 30 S. W. 622. A complaint to remove an assessment as a cloud on title for facts not appearing on the record is good, although it also discloses facta which VII. FOE INSUFFICIENCY AS TO CAUSE OF ACTION. 195 do appear on the record and make the assessment void. Boyle v. Brooklyn, 71 N. Y. 1, Reversing 8 Hun, 32. A complaint which states in ordinary and concise language the facts con- stituting a cause of action under Dak. Comp. Laws, § 5569, providing that owners or persons charged with the keeping of trespassing animals shall be liable to pay compensatory damages to parties injured thereby, M'hich may be recovered in a civil action before » court having jurisdic- tion thereof by proceeding in all respects the same as in any other civil action, is not invalidated by the further statement that plaintiff elects to waive the tort, and the setting forth of a, cause of action upon a, fictitious contract for the sale and delivery of the property destroyed, with an allegation of a promise on the part of the defendant to pay such damages; but such additional allegations may be regarded as mere surplusage. Tanderup v. Hansen, 5 S. D. 164, 58 N. W. 578. 'Curtis v. Watson, 64 Vt. 536, 25 Atl. 478; Preston v. St. Johnsbury £ L. G. R. Co. 64 Vt. 280, 25 Atl. 486. 38. Various grounds for same recovery. If the facts stated entitle plaintiff to any of the relief demanded, the complaint is not demurrable for not indicating whether he relies upon those facts in the aspect of a tort, or a contract, or an equitable right. ^ A complaint is bad where the essential elements ai-e alleged merely as conclusions of law, and it cannot be ascertained upon which of sev- eral different phases of his rights the plaintiff relies.^ A complaint stating facts which might sustain a legal claim for conver- sion or for money had and received, or an equitable claim to reach a specific sum in defendant's hands, is not demurrable because only a money judgment is demanded by way of damages. Allen, J., says: "The fact that, after the allegation of the facts relied upon, the plain- tiff has demanded judgment for a, sum of money by way of damages, does not preclude the recovery of the same amount upon the same state of facts by way of equitable relief. The relief in the two cases wovild be precisely the same; the difference would be fonnal and technical. If every fact necessary to the action is stated, the plaintiff may, even when no answer is put in, have any relief to which the facts entitle him, qpnsistent with that demanded in the complaint." Bradley v. Aldrich, 40 N. Y. 504, 100 Am. Dec. 528; Hale v. Omaha Nat. Bank, 49 N. Y. 626. This is in accord with the practice which allows a plaintiff, within reason- able limits, to develop several lines of proof, and go to the jury upon instructions respectively adapted to recovery upon either ground. But when incidental equitable relief is essential in order to justify granting; legal relief asked for, — as, for instance, reformation of a contract in order to recover on it, — the demand of relief is material. A petition alleging in one paragraph a sale of logs to defendant at a speci- 196 BEIBF ON PI.EADINGS DEMUEEEB. fied price and failure to pay therefor, and in another paragraph a eon- Tersion by defendant of such logs, with an allegation that the state- ments contained in one of the paragraphs is true, but that plaintiff does not know which is true, is not authorized by Ky. Code Prac. § 113, subd. 4, providing that a party may allege alternatively the existence of one or another fact if he state that one of them is true, but he does not know which of them is true. A party must be presumed to know whether he is entitled to recover on a contract or upon tort, and he is required to set up his cause of action in definite form, and cannot be allowed to prosecute an action based upon a declaration showing the party either indebted on contract or in tort, accompanied with the state- ment that he does not know which. Southern Lumber Go. v. Wireman, 19 Ky. L. Rep. 585, 41 S. W. 297. See also next section and note. ^ Downing v. Agricultural Diioh Go. 20 Colo. 546, 39 Pae. 336. But a declaration in an action against a town for personal injuj-ies due to a defective highway is not demurrable as basing the claim for damages upon two distinct and different grounds, because it alleges that the town "caused" and "suffered" the highway to be and remain out of repair. Garroll v. Allen, 20 E. I. 144, 37 Atl. 704. 39. Alternative grounds. A complaint is not necessarily bad on demurrer because it is not clear which of two states of facts will be substantiated as the ground of liability for the same recovery, if sufficient facts are stated to show that one or the other is true.-' ' In an action for money received, plaintiff may state the facts equitably entitling him to recover back the money, although they involve incon- sistent alternatives, if, on either vieiw, his claim is good; as, for in- stance: Because I made and paid a note for his accommodation; and, even if it should be found, as he is likely to claim, that the note was applied on a land contract, still I insist that ray cause of action re- mains, and the money is mine, and not his, because I rescinded that con- tract, as I lawfully might, and so am still entitled to recover for money had and received. Finch, J., said: "We can see no impropriety in such a mode of pleading. It states all the facts, and states them con- sistently with one cause of action, and one right of recovery, whether the facts out of which it arose are found to be in accord with either the plaintiff's or the defendant's version of them." Everitt v. Conklin, 91 N. y. 045. In Milliken v. Western V. Teleg. Go. 110 N. Y. 403, 1 L. R. A. 281, 18 N. B. 251, Reversing 21 Jones & S. Ill, a complaint is sustained against demurrer, on the ground that the complaint stated a good cause of action, either upon the contract made by defendant with plaintiff's agent in France, or upon the agreement with plaintiff in New York. An answer is not demurrable for not stating whether facts are to be osei VII. ^FOE INSUFFICIENCY AS TO CAUSE OF ACTION. 197 as showing want of consideration or as a recoupment of damages, nor for misstating tlie theory. Chatfield v. Simonson, 92 N. Y. 209. A pleading is not demurrable because of the insufficiency of one of the two alternative grounds upon which relief is claimed, where the other is good. Peyman v. Bowery Bank, 14 App. Div. 432, 43 N. Y. Supp. 826. Where it is difficult to determine whether the liability of one of two de- fendants is to be considered as resting on his relation with the other as agent or as partner, it is not demurrable to allege that he is either the one or the other, when the liability would be the same either way. Floyd V. Patterson, 72 Tex. 202, 10 S. W. 526. A bill for infringement of a trademark is not demurrable because it is uncertain whether it complains of tl'.e use of certain words by them- selves, or in combination with other devices, where it prays for an in- junction against their use in either manner, and shows a right thereto in respect to the latter. California Fig Syrup Co. v. Improved Fig Syrup Go. 51 Fed. 290. But a bill to set aside a conveyance as in fraud of creditors, alleging in the alternative different agreeiuenls as constituting the fraud, is bad as a whole, if either alternative is bad. Mountain v. Whitman, 103 Ala. 630, 16 So. 15. And a complaint setting forth in the alternative charges of negligence on the part of the defendant, resulting in damages to plaintiff, is bad if either alternative is insufficient. Bunisville v. Ewing, 116 Ala. 576, 22 So. 984. Each alternative statement of a transaction as a separate ground of relief must be sufficient to give relief, or the whole bill will be bad. Allen v. Caylor, 120 Ala. 251, 24 So. 512. A demurrer to a pleading consisting of paragraphs alleging facts in the alternative must be sustained if either paragraph alleged in the al- ternative is insufficient. Linck v. Louisville & N. li. Co. 107 Ky. 370, 54 S. W. 184. In admiralty, a charge in the alternative, each branch of which constitutes a defense which is a complete ground of forfeiture, is good. The Emily, 9 Wheat. 381, 6 L. ed. 616 (libel charging in the alternative prepara- tion for slave trade, and causing to sail). The court says: "It is said that this mode of alleging two separate and distinct offenses leaves it wholly uncertain to which of the accusations the defense is to be di- rected. This objection, if entitled to consideration, would apply equally to an information laying each offense in a separate count. This might, undoubtedly, be done; and yet no one interested in the proceedings could know to which accusation to direct his defense. This kind of uncer- tainty ia no objection, even to an indictment at common law. Distinct offenses may be laid in separate counts, and the accused may not know upon which he is to be tried." The English pleading rules and the Massachusetts practice act have each expressly sanctioned, to some extent, alternative allegations. 1 Chitty, PI. 16th Am. ed. 260. In a note to Munn v. Cooh, 24 Abb. N. C. 326, the cases have been collected 198 BEIEF OliT PLEADINGS DEMUEKEE. and discussed at length, and the following conclusions drawn: First. A plaintiff who has several grounds for the same recovery upon the same transaction or subject-matter may state each as a separate cause of action, demanding only one recovery therefor, unless one requires an allegation absolutely inconsistent, as matter of fact, with an allegation in another. Second. If such inconsistency be involved, then if the in- consistency is in respect to a matter not presumably in his knowledge, nor in his means of knowledge in advance of the trial, and is such that disagreement of the jury upon a special question respecting the point would not impair a general verdict in his favor, he may state the several grounds in the alternative in a single cause of action, provided he does not necessarily embarrass the defense, nor leave the defendant unreason- ably in the dark as to what questions of fact he must be prepared to try. Contra in California. See Hagely v. Hagely, 68 Cal. 348, 9 Pac. 305. But a petition in an action against two railroad companies for injury to stock in shipment, alleging that the loss and damage occurred by the negligence of one or the other or both of such companies, and that as tu ■which plaintiff is unable to say, but that one of the alternatives is true, is not authorized by Ky. Code Prac. § 113, subd. 4, providing that a party may allege alternatively the existence of one or another "fact," if he states that one of them is true, and that he does not know which is true. Brovm v. Illinois G. R. Co. 100 Ky. 525, 38 S. W. 862. And averments in one paragraph that a railroad company had either deliv- ered the goods to the consignees from whom a recovery is sought, or, as averred in another paragraph, that the company, in violation of its contract, delivered the property to some person not authorized to receive it, on which grounds a recovery is sought against the company, followed by a statement that the plaintiff does not know which one of the allegations is true, are not authorized by a Code provision permit- ting the party to allege alternatively the existence of one or another fact if he state that one of them is true and that he does not know which is true, since the plaintiff does not allege alternatively the exist- ence of one or another fact, but alleges alternatively the liability of one or another defendant. Louisville & N. B. Co. v. Ft. Wayne Electric Co. 21 Ky. L. Rep. 1544, 55 S. W. 918. A declaration stating that deceased was struck "at, near, or upon the crossing" is not bad as violating the nile against pleading in the al- ternative. Tyler v. Kelley, 89 Va. 282, 15 S. E. 509. A complaint in an action by a brakeman against a railroad company, al- leging that he was knocked, shaken, or jolted off a car by a violent jerk or shock of the engine and car, and that his injuries were caused by defects in the appliances for controlling the motion of the engine, aris- ing from the company's negligence, does not state two causes of action, or separate and distinct acts of negligence. Highlcmd Ave. & Belt R. Co. V. Miller, 120 Ala. 535, 24 So. 955. The objection that the complaint in an action for the death of a person at a, railroad crossing avers the alternative that defendant's servants knew, or by tlie exercise of ordinary care might have known, of his position or Vn. FOK INSUFMCIENCY AS TO CAUSE OF ACTION. 199 danger, insufficiently under the Missouri statute, providing that any party may allege any fact in the alternative, declaring his belief of one alternative or the other, and his ignorance whether it is one or the other, cannot be raised by general demurrer. Matz v. Chicago & A. R. Co. 85 Fed. 180. The objection that an allegation in the alternative is not in the form re- quired by Mo. Key. Stat. 1889, § 2071, must be made by special de- murrer or by motion to make the pleading more definite before trial, and otherwise is waived. State ex rel. Bristol v. Walbridge, 69 Mo. App. 657. On demurrer the court should not tolerate a pleading made to subserve the purpose of two or more dissimilar causes of action at the option of the party presenting it. Kewaunee County v. Decker, 30 Wis. 624. 40. Alternative version and relief, not demurrable. A bill in equity/ or a complaint under the new procedure in a cause of an equitable nature,^ is not insufficient because, while stating facts upon which relief is claimed, it also indicates the version of the defendant, and asks for other relief appropriate to the case if such version be sustained by the court, even though the alternative relief be inconsistent with that first asked. ' In an action by heirs and administrators of a vendor of land by title bond, where it is alleged that the bond had been obtained by fi-aud and that the land had not been fully paid for, and praying that the bond be can- celed, that an account be taken of rents and profits, that complainant's title be quieted, and for general relief, it is proper to allow plaintiffs to amend the prayer so as to ask in the alternative for a decree for the balance of the purchase money and a lien to secure its payment. This docs not make a new case, but only enables the court to adapt its relief to that made by the bill and sustained by the proof. Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141, 5 Sup. Ct. Rep. 771, Limiting and in part Overruling Shields v. Barrow, 17 How. 130, 15 L. ed. 158. A bill by mortgagees against prior mortgagees to have premises sold sub- ject to prior mortgages, etc., or that complainants might redeem, ov that the whole interest might be sold and complainants paid after pay- ing the prior mortgages, is not demurrable where the complainants are entitled to at least one of the three kinds of relief. Western Ins. Go. v. Eagle F. Ins. Co. 1 Paige, 284. A bill in equity is not multifarious because it prays an alternative relief inconsistent with the specific relief asked for. Whether a, bill is mul tifarious must be determined from the frame and structure, not from the prayer. If the specific or alternative relief asked is inconsistenl with the averments, the same will be disregarded and relief given under the prayer for general relief, if there is such a prayer. Eorne v. Korne, 30 W. Va. 1, 3 S. E. 17. In an action where the bill prayed an account of what was due to plaintiff 200 BEIEF ON PLEADINGS ^DEMUEEEE. and other creditors, and for the administration of the estate of the tes- tator, or, if it should be determined that plaintiff, aa between himself and testator's widow, was a partner, then for an account of the part- nership dealings, it was held, on demurrer for multifariousness, that one has no ritfht to allege two inconsistent states of facts and ask re- lief in the alternative, for the two cannot be true. But it is allowable to state the facts and ask the conclusion of the court on those facts, and say the court may come to one conclusion of law or to another. The court may be asked to come to a conclusion on the facts disclosed, plaintiff having stated everything that will enable the court to form a proper judgment. For any bill may ask the judgment of the court on two alternatives. Rawlings v. Lambert, 1 Johns. & H. 458. It is the alternative statement of fact in a bill in equity, when repugnant and inconsistent, and not the prayer for alternative relief, that renders the bill multifarious. Faulh v. Calloway, 123 Ala. 325, 26 So. 504. A bill of double aspect, seeking alternative relief, is not improper, and com- plainants are not necessarily chargeable with costs on failing. Robin- son V. Gropsey, 2 Edw. Ch. 138. "Where each branch of the alternative relief prayed is complete in itself, the defendant cannot protect himself from answering, on the ground that one branch of the relief is demurrable, for that would amount to a demurrer to the whole bill." Story, Eq. PI. p. 39, note (Citing Marsh V. Keith, 1 Drew. & S. 342). If the complainant "has doubts as to the relief he ought to have, he should frame his bill in a double aspect, so that if the court should decide against him in one view of the case it may yet afford him assistance in another . . . which may be inconsistent with the former." Puter- baugh, Ch. PI. (Mich.) 2d ed. 32; Id. 21 (Citing VaricTc v. Smith, 5 Paige, 137, 28 Am. Dee. 417; Murphy v. Clark, 1 Smedes & M. 221; Baines v. M'Gee, 1 Smedes & M. 208; Bart v. MoKeen, Walk. Ch. [Mich.] 417). A bill is not multifarious because it prays for different kinds of specific relief, but in relation to the same subject-matter, against the same par- ties, and in favor of the same persons. Cleland v. Casgrain, 92 Mich. 139, 52 N. W. 460. A creditors' bill may pray in the alternative that an instiiiment executed by the debtor be deemed a common-law assignment for all creditors, and that the attempted preferences be declared void; or, if it be deemed a chattel mortgage, that foreclosure proceedings instituted by the trustee be adjudged collusive, and the appointment of a, receiver therein be va- cated, where by the express terms of the insti-ument the complainants are interested and entitled to call upon the trustee to account. Albion Malleable Iron Go. v. First Nat. Bank, 116 Mich. 218, 74 N. W. 515. Contra, St. Louis, V. & T. E. R. Go. v. Terre Haute £ I. R. Go. 33 Fed. 440, where, in a suit to cancel a lease as ultra vires, or, if valid, to have an accounting, the bill is held bad for multifariousness because it con- tains two distinct grounds, — one for rescission, as void; the other to enforce, as valid. A bill in the alternative is bad unless plaintiff's ignorance or need of dis- VII. FOE INSUFFICIENCY AS TO CAUSE OF ACTION. 201 coveiy appears. Mioou v. Ashurst, 55 Ala. 007. Compare also Bagot V. Easto7i, 37 L. T. N. S. 266, where an allegation of deceit in inducing formation of copartnership, asking cancelation of articles and repay- ment, or, in the alternative, accounting and dissolution, is held on mo- tion inconsistent, and that plaintiff must elect. ' A complaint praying that a widow he barred from claiming dower in land which her silence permitted plaintiff to purchase, or that she be ad- judged to contribute an equitable portion of the money he had paid, is not demurrable. Wood v. Seely, 32 N. Y. 105. Henderson v. New York 0. R. Co. 78 N. Y. 423, sustains the right of one suing for redress against the unauthorized use of a highway by a rail- road company, to demand not only damages and an abatement and re- moval of the track, but also an injunction against the running of ti'ains ; or, if defendants are permitted to use the track, to do so only on condition that plaintiff be flist paid his damages. A complaint against two joint assignees of a lease in fee for the whole rent,^ alleging' that plaintiff did not know what their interests were, and ask- ing a joint or several judgment, as should prove just, is such that a separate judgment can be rendered against each, where it is proved at the trial that defendants' interests are several. The court says: "Be- for-e an action for a discovery was abolished by the Code (Code, § 389), a bill would have been properly filed on the facts of this case for a dis- covery. But according to the present practice, the plaintiff could only allege the facts as far as they were within his knowledge, and then ob- tain a discovery by examining the defendants as witnesses on the trial." J' an Rensselaer v. Layman, 10 How. Pr. 505. See also § 63, infra. 41, — by trustee of a special trust. A party who is before the court as a trustee, or officer of the court^ aud is seeking protection for the fund, or instructions in the perform- ance of his duties as such, may, so far as necessary for the purpose, allege alternative claims of fact or of law, or both, and ask alternative relief.' ' Common practice. Birdseye v. Smith, 32 Barb. 217. b. Legal or Eqidtable Cause. 42. Jurisdiction. The rule that a demurrer on the mere ground of insufficiency doea not enable the demurrant to raise the objection that the court has not jurisdiction^ does not apply to the objection that a cause of action pleaded as a ground for equitable relief is not within the peculiar ju- risdiction of a court of equity, as distinguished from a court of law.^ ' A demurrer on the ground of insufficiency cannot be sustained on the 302 BEIEF ON PLEADINGS DEMUEEBB. ground of want of jurisdiction, notwithstanding the general principle that the jurisdiction of the court may always be questioned, since noth- ing can be considered on demurrer except the ground specified. Drale V. Drake, 41 Hun, 366. To same efTect, see Wilson v. New York, 15 How. Pr. 500; Whitewater R. Co. v. Bridgeit, 94 Ind. 216. For a qualification of this rule see note on page 1, ante. The question whether an action is an equitable one cannot affect the suf- ficiency of the complaint, for such fact only affects the question as to whether the case is triable by the court or a jury. Gise v. Cook, 152 Ind. 75, 52 N. B. 454. The objection that the facts stated in a petition disclose that the action is cognizable at law, and not in equity, cannot be raised by demurrer. MeC'ormick Harvesting Mack. Co. v. Markert, 107 Iowa, 340, 78 N. W. 33. The question whether an action at law should not have been prosecuted in equity cannot be presented by demurrer, but, under Iowa Code, § 3432, it should be raised by motion to transfer the cause to the proper docket. McClure v. Dee, 115 Iowa, 546, 88 N. W. 1093. A prayer in a complaint for relief against directoi-s of a bank for wrongful and negligent acts, that the damages be ascertained and that the plain- tiff have judgment therefor, does not ask for equitable relief where there is no demand for a discovery or an accounting. Eiggitis v. Tcft, i App. Div. 62, 38 N. Y. Supp. 716. -A bill which attempts to enforce a legal demand in a court of equity, and alleges the need of a discovery as the ground of equity, is demurrable where it fails to aver that discovery is material or necessary. Collins V. Sutton, 94 Va. 127, 26 S. E. 415 (Citing Childress v. .Uonw. 23 Graft. 802; March v. Davison, 9 Paige, 580). A complaint alleging that defendant bank agreed that a third person should draw checks thereon for cattle purchased by him, and that it should appropriate from the proceeds of the resale sufficient to pay the checks, and apply the balance on a debt from him; that he purchased stock of plaintiff, giving a check on defendant for the purchase price, wliich the bank verbally promised such third person it woidd pay, in reliance on which check, plaintiff delivered the stock; and that defend- ant, although it had received the proceeds of a resale of the stock, ex- ceeding the amount of the check, refused to pay it, — states a, cause of action at law on the verbal promise, instead of one in equity to follow the proceeds as a trust fund. Haivtey v. Exchange Slalc Bank, 97 Iowa, 187, 66 N. W. 152. And it is error to transfer sucli a cause to the equity docket. Por other cases, see §§ 50-58, infra, No Adequate Remedy at Law. ' The failure to allege facts sufficient to present a proper case for the exor- cise of the equitable power of the court to remove a cloud from title does not properly raise a question of jurisdiction, but may Ix! consid- ered on a demurrer for not stating facts. Hotchkiss v. Eltiiig, 36 Barb. 38. A demurrer for want of equity cannot be sustained, unless the coint is sat- VII. FOE INSUFFICIENCY AS TO CAUSE OF ACTION. 203 isfied that no proof properly admissible under the complaint can make the subject-matter of the suit a proper case for equitable cognizance. Ernst V. Elmira Municipal Improv. Co. 24 Misc. 583, 54 N. Y. Supp. 116 (Citing Bleeker v. Bingham, 3 Paige, 246; LeRoy v. Teeder, 1 Johns. Cas. 427). 43. Equitable title. To give a court of equity jurisdiction, the nature of the relief asked must be equitable, even when the suit is based on an equitable title. ^ An equitable title is still equitable within, the rule that equity may take jurisdiction, even after it has been established as a title by a de- cree in a suit brought for that purpose.^ ' Equitable title does not enable one to sue in equity to eject mere trespass- ers. Fussell V. Gregg, 113 U. S. 550, 554, 28 L. ed. 993, 994, 5 Sup. Ct. Eep. 631. But see next section. One whose right is that of an assignee cannot maintain a suit in equity merely because he cannot sue at law, for an action by the assignor would necessarily be an action for legal relief. Smith v. Bourbon County, 127 U. S. 105, 32 L. ed. 73, 8 Sup. Ct. Rep. 1043, and cases cited. But if a remedy of an equitable nature is necessary, even though only as incidental, equity may take jurisdiction, — as of an interpleader, or of an action on contract, where reformation is necessary as a prelim- inajy to recovering a money judgment on the instrument as reformed. 'Phelps V. Elliott, 29 Fed. 53. 44. Action for money or chattel. The fact that an action is for money,^ or for possession of a chat- tel,^ is not conclusive against equitable cognizance of it ; it is equitable if it rests on an equitable title only,^ or if sustainable in equity on grounds on which it could not be sustained at law. * A complaint stating a diversion of tmst securities, such as would sustain a judgment for a conversion, or a decree for redelivery, with demand for damages, is not demurrable for insufficiency. UV/niore v. Porter, 92 N. Y. 76. In an action to compel a payment due under a party \\ all agreement, Dwight, C, instances also the vendor's action for price on an oi-al con- tract partly performed. Rindge v. Bal;er, 57 N. Y. 209, 15 Am. Rep. 475. A bill for specific perfoimance of a. contract for the sale of land, by the terms of which the payment was to be made half in cash and the bal- ance to be secured by mortgage payable in two years, praying not only that defendant may be compelled to make the cash payment, but that he also may be required to execute the mortgage, is not subject to the objection that its sole purpose is the recovery of the consideration. Jfewlerry v. Slafter, 98 Mich. 468, 57 N. W. 574. 204 BEIEF ON PLEADINGS DBMITREEE. A petition for foreclosure of a mortgage, asking for a personal judgment against the mortgagor, will nevertheless be considered an equitable bill for foreclosure, where the matters pleaded are sufficient to overcome the inference arising from the prayer for personal judgment, ajid to show that it was intended to be an equitable proceeding. Weary v. Wittmer, 77 Mo. App. 546. 'Eerrich v. Throop, 24 Fed. 532 (bill to cancel illusoiy receipts for money as the price of a valuable trotting horse, taken as if on a sale, and re- cover back the horse as a pledge, upon payment of the loan) ; Western R. Co. V. Bayne, 75 N. Y. 1 (action to recover back negotiable securi- ties ) . To recover possession of a deed, an action in equity may be brought, since replevin, in which it might be retaken by defendant, is not a complete remedy at law. Browne v. Cochran, 46 How. Pr. 427. • Phelps V. Elliott, 29 Fed. 53. c. Accounting. 45. Mutual accounts. If a complaint for an accounting shows the existence of an unset- tled rautxial account between the parties/ as distinguished from an account on each side,^ or an account on one side and payments there- on,* a court of equity can take jurisdiction in its discretion. In an action for an accounting as to the affairs of a partnership, the complaint need not set forth the amount of profits to which the plaintiff may be entitled, as a partner is entitled to an accounting whether there are assets to be divided or not.* The fact that the account is complicated is not alone enough to make an accounting in equity a matter of right.* * Where the several demands between the plaintiff and defendant have no independent existence, but are so connected by the original contract or course of dealing, as distinguished from the mere right of set-off, that the only thing which either party can claim is the ultimate balance, the account is mutual, and an accounting may be had in equity. Demurrer overruled. Wilson v. Mallett, 4 Sandf. 112. Courts of equity have undoubted jurisdiction in cases of mutual account upon the ground of the inadequacy of the legal remedy, as also for the purpose of avoiding multiplicity of suits. White v. Hampton, 10 Iowa, 238. Chancery has concurrent jurisdiction with courts of law in matters of ac- count, and its jurisdiction extends to all matters of account between in- dividuals in whatever relation they may stand to each other. It does not depend upon the necessity for discovery, or to prevent the multi- plicity of suits, or that difficulty would attend the remedy at law. Lui- low V. Simond, 2 Cai. Cas. 1. VII. FOE m-BUFPICIENCT AS TO CAUSE OF ACTION. 205 In ;in action for an accounting, where the complaint substantially alleges that the defendant was employed as agent, for a commission agreed to be paid him, in the purchase for the plaintiff of a specified kind of goods ; that through a series of years he acted in that capacity, receiving and paying out on account of the plaintiff large sums of money ; that he had rendered at stated intervals accounts upon which settlements were made, and that the accounts so rendered were false, by means whereof defendant defrauded the plaintiff of upwards of $11,000, although the remedy at law is complete, it is equally true that there is concurrent jurisdiction of this cause of action in equity. Whatever may have been its origin, whether founded upon the necessity for discovery, or also upon the idea that complicated accounts could be with difficulty unrav- eled in a, court of law, the jurisdiction of equity over actions of account is well settled. The action is within the provision of N. Y. Code Civ. Proc. § 382, subd. 5, limiting the time for the commencement of "an ac- tion to procure a judgment other than for a sum of money." Carr v. Thompson, 87 N. Y. 100. To sustain a bill for an accounting there must be mutual demands and not merely payments by way of set-off. A single matter cannot be the sub- ject of an account; there must be a series of transactions on one side and of payments on the otlier. Porter v. Spencer, 2 Jolms. Ch. 1G9; Walker v. Cheever, 35 N. H. 339. ' Where plaintiff, as a, physician, rendered professional services to the tes- tator of the defendant, while the testator at various times furnished agricultural products to the plaintiff, the cross-demands, in the absence of an agreement between the parties, constitute items of one account, which demands can only be considered matters of set-off; and there is no mutual account between the parties entitling the plaintiff to proceed in equity. Judgment sustained. Haywood v. Hutchins, 65 N. C. 574. 'Where the accounts are all on one side, and no discovery is asked or re- quired by the frame of the bill, the jurisdiction will not be maintained. Bill sustained on other grounds. Walker v. Cheever, 35 N. H. 339. *Petrahion v. Arheely, 23 N. Y. Civ. Proc. Rep. 183, 2G N. Y. Supp. 731. A debtor partner may maintain a bill for an accounting. Champion v. WUlia/nis, 2 Ohio N. P. 329 (Citing Gray v. Kerr, 46 Ohio St. 652, 23 N. E. 136). Contra, Hunt v. Oorden, 52 Miss. 194. • The mere fact that the account is complicated does not, in all cases, oblige the court to take equitable jurisdiction. It is a matter largely within the discretion of the court; and considering the fact that a plaintiff has now all the facilities for examining a complicated account in an ac- tion at law that he would have in equity, if it appears from all the cir- cumstances that it would be a very great inconvenience and possible op- pression to the defendant to take the accounting in equity, the plaintiff will be remitted to his action at law. Vhlman v. New York L. Ins. Co. 109 N. Y. 421. In Fowle v. Lawrason, 5 Pet. 495, 8 L. ed. 204, Marshall, Ch. J., says : "In all cases in which an action of account would be the proper remedy at law, and in all cases where a trustee is a party, the jurisdiction of a 206 BBIBF ON PLEADISTGS DEMUEEEE. court of equity is undoubted. It is the appropriate tribunal. But in transactions not of this peculiar character, great complexity ought to exist in the accounts, or some difficulty at law should interpose, some discovery should be required, in order to induce a court of chancery to exercise jurisdiction. Howard v. Papera, 1 Madd. Ch. 86; Dimmddiev. Bailey, 6 Ves. Jr. 136; King v. Hake, 9 Ves. Jr. 437. In the case at bar these difficulties do not occur. The plaintiff sues on a contract by which real estate is leased to the defendant, and admits himself to be in full possession of all testimony he requires to support his action. The defendant opposes to his claim, as an offset, a sum of money due to him for goods sold and delivered, and for money advanced, no item of which is alleged to be contested. We cannot think such a case proper for a court of chancery." Compare Crossley v. JSfew Orleans, 20 Fed. 352, holding that if an aeeoiuit is complicated, so as to be incapable of being had at law, it is, of itsell, a ground for equitable jurisdiction, — especially when it must be fol- lowed by apportionment and distribution of the fund. An accounting was maintained in equity between two railroads because ot complexity, where the plaintiff's road had been leased to the defendant under an engagement to pay interest and dividends of the plaintiff out of the receipts from the leased road. Pacific R. Oo. v. Atlantic & P. iS. (jo. 20 Fed. 277. 46. Existence of fiduciary relation, or necessity for discovery. If tke complaint for an accounting shows a trust^ or other fiduciary relation,^ or a right and necessity to have a discovery where it can be had in equity and cannot be effectually had at law, the complainant has a right to have an accounting in equity.^ Otherwise, if the trust has ceased, or is only an implied trust, so that an action for money received would be an adequate remedy.* An accounting vsdll not be granted between persons interested in an agreement contrary to public policy." 'In Marvin v. Brooks, 94 N. Y. 71, where a judgment refusing to compel an agent intmsted with money for a specific purpose to account in equity as to the purchase of stocks and bonds for account of both was reversed. Finch, J., says: "Such a decree proceeds upon the ground that the defendant stands in the attitude of an agent dealing to some extent with the money or property of the other party, intrusted in a confidential relation with an interest which makes him a quasi trustee, and by reason of that relation knowing what the other party cannot know, and bound to reveal to him the entire truth. The equitable ju- risdiction has always rested largely upon such relation of confidence, in- volving the need of discovery and the duty of explanation; and hence the burden of such explanation and the proof of its truth fell in such cases upon the defendant whose conduct was questioned, whenever an accounting was decreed, and reqviired of him the extreme of good faith." VII. FOE IIs'^STJFFICIENCY AS TO CAUSE OF ACTION. 20T A petition makes out a ease for equitable relief, which alleges that the- plaintiflFs therein are the only heirs at law of their father, who died in- testate; that his estate owes no debts; that there has been no adminis- tration thereon; that one of the defendants, by fraud and undue influ- ence, in the lifetime of the deceased, obtained a conveyance of the whole or greater part of his property, at a time when he was mentally inca- pable of transacting business, promising to maintain the deceased, which promise was not kept, but that plaintiffs were compelled to sup- port their father; that said defendant conveyed the real estate to the other defendant, who had notice of the fraud; and which prays for the cancelation of said conveyances, and for an accounting by the first- named defendant for the personalty received by him. Kent v. Davis, 89 Ga. 151, 15 S. E. 457. ' An accounting may be maintained in equity under an agreement to share the proceeds from the sale of certain lumber under circumstances creat- ing a trust, but not amounting to a partnership. The right of account- ing in equity is incident to most trust relations, and is not cut off by waiver of an answer under oath. Unless it is clear from the complaint that the plaintiff is already fully informed of his rights, he has a right to an accounting, although the averments are somewhat full as to the particular items of money due. Demurrer overruled. Cochrane v. Adams, 50 Mich. 16, 14 N. W. 681. A complaint in an action for an accounting by an agent, alleging that the true amount cannot be ascertained and determined without such ac- counting, is not bad for uncertainty in failing to state the amount of defendant's liability. It presents a fiduciary relation which brings it es- pecially within equitable remedies. San Pedro Lurnber Co. v. Reynolds, 111 Cal. 588, 44 Pac. 309. In an action for an accounting between a school district and a purchaser of warrants issued by it, the complaint is insufficient where it does not al- lege the fiduciary relation between the school district and plaintiff, or facts showing that the accounting was necessary, or that one had been demanded before bringing action. Seattle Nat. Bank v. School Dist. No. JiO, 20 Wash. 368, 55 Pac. 317. A bill for a partnership accounting against the personal representative of a surviving partner, commenced thirty years after the death of the part- ner under whom plaintiffs claim, is insufficient where it merely alleges that plaintiffs only discovered the existence of the partnership after the death of the defendant's intestate, and that such discovery was due to statements made by such surviving partner a short time before his death to one of the heirs, which led her to make inquiry, but does not allege what the statements were, how long before his death they were made, whether due diligence would not have resulted in the discovery during his lifetime, what inquiries were made by the heir resulting in the discovery, of whom they were made, or why they were not made long before. Robertson v. Burrell, 110 Cal. 568, 42 Pac. 1086. A complaint alleging a partnership in real estate between the parties, that defendant fraudulently induced plaintiff to part with his interest for- lands of no value, situated in another state, to which the title was not. 208 BEIEB' OIT PLEADINGS DEMUEEEE. good, and that defendant sold the partnership lands in exchange for cash and lands in another state, which he mortgaged for moneys re- ceived, states a cause of action for an accounting. Shrackleton v. Eneis- ley, 48 Minn. 451, 51 N. W. 470. A complaint alleging that defendant, holding a land option, agreed with plaintiffs that each was to give his efforts to the sale of the property covered thereby, and divide the profits, and setting forth a sale of the land, and the amount of the profits realized by defendant, and demand- ing that he account therefor, states a cause of action. Miehel v. Cole- grove, 29 Jones & S. 275, 19 N. Y. Supp. 715. But a complaint alleging the copartnership in business of plaintiff and defendant, that the busi- ness had been discontinued and all the firm debts paid, and that the principal assets consist of specified real estate, the title to which was taken in defendant's name for the benefit of the partnership and paid for with partnership funds, and that plaintiff is the owner of an undi- vided fifth interest thereof, — is fatally defective if intended to set forth an action for a partnership accounting, where it fails to set forth the terms of the partnership, the rights and interests of the respective par- ties, and the state of the account between them. Eisner v. Eisner, 5 App. Div. 117, 38 N. Y. Supp. 671. A petition for an accounting and settlement of the affairs of a dissolved partnership, alleging a partnership between the parties, the transaction of partnership business, the dissolution of the firm, and the unsettled accounts growing out of it, is sufficient on demurrer. A debtor partner may ma,intain such a bill. Champion v. Williams, 2 Ohio N. P. 329. A declaration filed by one partner in a county couit, for an accounting against a surviving partner and the administrator of a deceased part- ner, need not allege that the administrator had received property be- longing to the deceased's estate or to the firm. Parh v. MoGowen, 64 Vt. 173, 23 Atl. 855. *A contract by defendant to manufacture lumber supplied by plaintiffs, and to sell for the best interests of both parties, and, after deducting advances, expenses, and commissions, to pay over the residue, though not a partnership, establishes a fiduciary relation. Sherwood, J., said: "He [defendant] was in possession of all the books and accounts relat- ing to the business, and refused to give any account of sales, or of the place where made, or the amounts received on sales. Some sort of dis- covery is certainly necessary, and while, to some extent, it may be ob- tained in a court of law, perfect and complete disclosujes as to aJl these matters may be obtained in a court of equity. In this class of cases the form of the action should not be made to depend entirely upon the fact that the complainant has a remedy at law, but whether or not such remedy is adequate, and will do full justice between the parties. Technicalities should never be allowed to control in such cases, where the effect will be to impair or destroy substantial rights; but that form of action should be allowed and adopted which will best accom- plish the ends of justice. These views are carefully maintained by this court in Cochrane v. Adams, 50 Mich. 16, 14 N. W. 681; Merritt T- Dickey, 38 Mich. 44; Millard v. Ramsdell, Harr. Ch. (Mich.) 373; VII. IfOH INSUFFICIENCY AS TO CAUSE OF ACTION. 209 Heath v. Waters, 40 Mich. 457; Flanders v. Ohamlerlain, 24 Mich. 314; also in Pom. Eq. Jur. § 1412, note 1, and cases cited; Foley v. Hill, 2 H. L. Cas. 28; Moxon v. Bright, L. E. 4 Ch. 292; Marvin v. Brooks, 94 N. Y. 71." Darrah v. Boyce, 62 Mich. 480, 29 N. W. 102. Subscribers to an agreement lor the purchase of property for their mutual benefit and advantage stand in the relation of confidence and trust with each other, implying mutuality and equality in burdens and benefits; and where some of the subscribers have taken to themselves secret and separate advantages to the prejudice of their associates, those asso- ciates may compel them to account in equity for what they have thus fraudulently appropriated. Getty v. Devlin, 54 N. Y. 403. In all cases where it is necessary that an accounting should be had to as- certain the rights of part owners of a ship, equity has jurisdiction in like manner as between partners. Dyckman v. Valien,te, 42 N. Y. 549. Where a copartnerehip is dissolved and the accounts are unsettled, an ac- counting in equity is proper. Although, under the present practice, an accounting cannot be had in equity merely on the ground that a discovery is needed, the right of a, party to come into equity for the settlement ot copartnership accounts has never been questioned. Watts V. Adler, 13 N. Y. S. R. 553. But in Haskins v. Burr,' 106 Mass. 48, an accounting for the profits of a partnership was denied because the agreement set forth in the bill to enter into a partnership was executory, and the remedy for its viola- tion was an action for damages at law. And where a partnership does not exist, but the relation is merely that of debtor and creditor, an accounting cannot be had in equity. Salter v. Ham, 31 jST. Y. 321. And on demurrer to a bill alleging that the defendant had received on the plaintiff's account, numerous sums of m.oney, of which the amounts and particulars were unknown to the plaintiff, and that it was the duty of the defendant to account for and pay such sums received by him aforesaid, it was held that the bill contained a mere averment of the receipt of money by an agent; but that has never been held enough to sustain a bill. There must be allegations showing the fiduciary re- lations between the parties. Hemings v. Pugh, 4 Giff. 456. The relation of banker and customer is not of a fiduciary character, but simply that of debtor and creditor, and between them an action for an accounting cannot be maintained. Foley v. Hill, 2 H. L. Cas. 28. 'Bill charged that the defendant, as trustee, appropriated to his own use certain shares of stock held in trust. The stock was alleged to have been held by the defendant until paid for by the plaintiff, and that the plaintiff had overpaid the amount due. The prayer was for an ac- counting for the balance of the overpayment and the value of the stock. No discovery was prayed for. The demurrer was sustained. The claim was only for money damages for conversion. Colt, J., says: "The jurisdiction of equity extends, it is said, equally to express and implied trusts; . . . and yet it has never been contended that it embraced all such cases of implied trust as arise out of the relation* Abb. Pl. Vol. I. — 14. 210 BEIEF ON PLEADINGS DEMUEEEE. created by a pledge or mortgage of personal property, or a transfer of ehoses in action, or shares in a, corporation to be held as collateral se- curity for the payment of money, or which might arise between princi- pal and agent or between bailor and bailee, unless there were facts al- lei'ed showing either the need of a discovery in support of the bill, or relief in some form peculiar to courts of equity." Frue v. Loring, 120 Mass. 507. Action for an accounting. The bill alleged that the defendants withheld five distinct sums of money deposited vrith them as commission mer- chants by the complainants, to be held subject to their order, and that defendants had used the money for their own purposes, and had prof- ited thereby. There was no prayer for discovery. The court held that if the moneys were misappropriated in violation of some active trust between the parties, involving confidence on the one side and discretion on the other, or if there were mutual accounts between the parties, or even an account on one side of a nature to justify a bill of discovery, there might be a case of equitable cognizance; but upon the facts al- leged, the complainanits have an adequate remedy at law, and the de- murrer should be sustained. Miller v. Kent, 16 Fed. 13. An action for an accounting cannot be maintained in equity simply be- cause it is alleged that the defendant holds money in trust for the plaintiff, which in good faith and conscience ought to be paid to the plaintiff. It is not every case of trust that is cognizable in a court of equity. Trusts embrace a wide field, and in most cases a remedy may be sought in a suit at law. An action for money had and received is a simple, complete, and expeditioxis remedy. Crooker v. Rogers, 58 Me. 339. The complaint alleged that the defendants, while directors of the plaintiff, a corporation, fraudulently voted to themselves moneys for services performed as officers thereof, llie defendant demurred; demurrer was sustained upon appeal. Cooley, Ch. J., in affirming the judgment of the court below, says: "Officers of a corporation undoubtedly act in a fiduciary capacity, and may be called to account in equity as trustees. . . . But when they have ceased to be officers, and the only complaint made against them is of an appropriation of the corporate funds to their own use, and no discovery is sought, the reasons for seeking aid of equity, which commonly exist in cases of breach of trust, are wholly wanting. The courts of law are perfectly adequate to give effectual relief, and they are the most suitable tribunals for the purpose. Ba\i City Bridge Co. v. Van Ettcn, 36 Mich. 210. Compare note to Pierson V. Morgan, 20 Abb. N. C. 441. An action for an accounting cannot be maintained against a guardian for moneys retained by him after his wards have reached majority, where the amount is fixed and determined. Boardman, J., says : "It was his duty to provide for its payment, and pay the same to them at their majority. ... It becan)6 due at their majority and payable as effectually as a note so payable. His retaining the money after that time was a breach of his implied promise or undertaking. He received it to be paid at a certain fixed time. After that time the defendant VII. FOE INSUIiTICIENCT AS TO CAUSE 03? ACTIOIT. 211 was the debtor of the plaintififa. He had no right to retain the money from plaintiffs. He had no active duty to perform except to pay over. There was, therefore, no trust, and no relation of trustee and cestui que trust. There was no subject for an accounting. It was a debt due. Weston v. Barker, 12 Johns. 276; Shapley v. Abbott, 42 N. Y. 456. That the right of action at law exists in such a case, see Oeneral Mut. Ins. Co. T. Benson, 5 Duer, 168. We conclude, then, that no ques- tion of trust requiring an accounting existed, giving jurisdiction to equity, and that, as a consequence, the six years' statute of limitations applied and barred this action." Witter v. Brewster, 12 N. Y. Week. Dig. 358. The action was brought for axL accounting against the defendant, as county assessor and treasurer, for fees and emoluments received by him, over and above his salary, which by law he was bound to pay over to the county (the plaintiff). Complaint was dismissed on demurrer be- cause the complainant had a complete and adequate remedy at law. There was no reason for discovery, as the fees and emoluments were a matter of record. Clinton County v. Schuster, 82 111. 137. If money paid by a county to the clerk be recoverable back by the county, the action at law for money had and received is a full and adequate remedy; and where no fraud is shown, a resort cannot be had to a court of equity. Ramsay v. Clinton County, 92 111. 225. 'Vnckles V. Colgate, 72 Hun, 119, 25 N. Y. Supp. 672 (Citing Woodworth V. Bennett, 43 N. Y. 273, 3 Am. Rep. 706; Knowlton v. Congress £ Empire Sprimg Co. 57 N. Y. 518; Arnot v. Pittston d E. Goal Co. 68 N. Y. 558; Leonard v. Poole, 114 N. Y. 378, 4 L. R. A. 728, 21 N. E. 707; Gray v. Oxnard Bros. Co. 59 Hun, 387, 13 JST. Y. Supp. 86). 47. — remedy at law. Where there is no trust or fiduciary relation, and no right to have an equitable apportionment, coupled with a necessity for the inter- vention of the court to make such apportionment, neither the mere fact that the accounts are complicated, nor the fact that discovery is necessary, makes resort to an action of an equitable nature matter of right under the Codes; because mere complication of accounts, at most, makes it discretionary with a court of equity whether to take jurisdiction ; and, under the Codes, discovery can be had equally well in an action of a legal nature.-' ' Uhlman v. New York L. Ins. Co. 109 N. Y. 421, 17 N. E. 363 (action by tontine policy-holder to compel company to account, dismissed on this ground after trial and judgment for plaintiff. English decisions re- viewed). In Marvin v. Brooks, 94 N. Y. 71, Finch, J., said: "The best-considered review of the authorities puts the equitable jurisdiction upon three grounds, — viz., the complicated character of the accounts; the need of a discovery; and the existence of a fiduciary or trust relation 212 BEIEF ON PLEADINGS ^DEMUEEEE. (1 Story, Eq. Jur. § 459, and note 5). The necessity for a resort to equity for the first two reasons is now very slight, if it can be said to exist at all, since a court of law can send to a referee a long account, too complicated for the handling of a jury; and furnishes, by an exami- nation of the adverse party before trial, and the production and deposit of books and papers, almost as complete a means of discovery as could be furnished by a court of equity. But the jurisdiction of the latter court over trusts and those fiduciary relations which partake of that character remains, and in such cases the right to an accounting seems well established. But the existence of a bare agency is not sufficient. If it was, it would draw into equity every case of bailment in which an account existed." An employee whose compensation depends upon a share of the profits can- not maintain a suit for an accounting against the employer, where it does not appear that the accounts are complicated, nor that they can- not be as well settled at law. Olds v. Regan (N. J. Eq.) 32 Atl. 827. A complaint for an accounting, which alleges that defendants have refused to allow plaintiff to examine their account books, and have dealt un- fairly by him, but does not specifically allege any wrongdoing, or that plaintiif ever asked defendants to account, or that they have refused or denied their liability to do so, is insufficient, since it lacks allega- tions showing a right to resort to equity for an accounting, or that an action at law would not afford plaintiff an adequate remedy. Stein v. Benedict, 83 Wis. 603, 53 N. W. 891. In Beggs v. Edison Electric Illuminating Go. 96 Ala. 295, 11 So. 381, the court says: "Where the accounts to be examined and stated are on one side only, the allegations of the bill must show the existence of cer- tain conditions which are prerequisite to the exercise of equitable jurisdiction. There must either be so great a complication in the mat- ters of account that a common-law court is unable to ferret them out, or there must be the allegations of such facts as show the necessity for a discovery, and this discovery must be prayed for. The reason for this rule is evident, for in going into courts of equity one is met at the threshold with the inquiry. Can complete and adequate remedy be obtained in a court of law?" 48. Royalty contracts. The mere existence of a stipulation to pay a royalty on one's own transactions, without anything to indicate a trust or confidence in the fidelity of the party so contracting, is not ground for maintaining an action for an accounting in equity.-' Otherwise, where the contract was such that one party was intrust- ed with the duty of keeping an account of the transactions, according to which complainant's right was to be measured.^ ^ Smith V. Ogihne, 5 N. Y. Supp. 382. Moxon V. Bright, L. R. 4 Ch. 292, holding that, although the relation of VII. FOK INSUFFICIENCY AS TO CAUSE OF ACTION. 213 principal and agent has imposed a trust upon the agent, the court will entertain a bill for an account. Yet the difficulty is in determining what constitutes this species of trust. It is not every agent that holds a iiduciary position as between himself and his principal. Thus, where a patentee agreed with a machine-maker that the machine-maker should make machines according to the patent, and sell them, taking a certain sum upon each machine for himself, and paying to the pat- entee, as a royalty, the amount charged for the machines above that sum, the patentee cannot maintain a suit in equity for an account against the machine-maker as his agent. , Compare Somerby v. BuntiAi, 118 Mass. 279, 19 Am. Rep. 459 (specific performance; holding that an agreement as to invention and letters patent is capable of being enforced in equity by compelling an assign- ment, an account, and such other relief as the circumstances of the case require ) . ^Bovaird's Appeal (Pa.) 5 Atl. 26; Bentley y. Harris, 10 K. I. 434, 14 Am. Rep. 696; Harrington v. Churchward, 29 L. J. Ch. N. S. 521, 8 W. E. 302 (sustaining bill by one employed on a share of profits to have an accounting) ; Adams's Appeal, 113 Pa. 449, 6 Atl. 100 (pat- entee against licensee ) . A complaint in an action by one to whom a license for the use of a patent is gianted, under a contract providing for the payment by plaintiff of fixed royalties weekly, and a designated percentage of profits, and that in default of payment within a specified time after notice the license shall be forfeited, states no cause of action where it alleges that there have been no profits, that no payment is due defendant except the fixed royalties, and that defendant threatens to enforce the forfeiture, and asking merely for an accounting. Safety Electric Constr. Co. v. Creamer, 84 Hun, 570, 33 N. Y. Supp. 411. 49. Facts showing grounds for equitable cognizance to be specifically alleged. Facts sliowiiig that the transactions or the relations of the parties are of such a nature as to make a case of equitable jurisdiction, to maintain the action for an accounting, should be specifically alleged. A general allegation of their character is not sufficient.-' ^Badger v. McNamara, 123 Mass. 117 (demurrer sustained for want of such facts). An allegation in an action by a stockholder of a corporation for an ac- counting of moneys alleged to have been illegally voted by the direct- ors, that an officer of the corporation has appropriated funds to his private use, the details of which the plaintiff is unable to state because such officer conceals from him the financial affairs and books of the corporation, is too general and vague, and is consistent vidth entire lack of knowledge or information by plaintiff on the subject. Blair v. Telegram Newspaper Co. 172 Mass. 201, 51 N. B. 1080. 214 BEIEF ON PLEADINGS ^DEMUEEEE. d. No Adequate Remedy at Law. 50. Form of demurrer; how objection may be raised. Under a demurrer assigning as ground that the complaint does not state facts sufficient to constitute a cause of action, the objection that there is a plain, adequate, and complete remedy at law is available,^ unless legal relief is demanded besides the equitable relief, and the action ought to be sustained as for legal relief.^ In equity, a demurrer assigning as a ground that the bill does not show that there is no adequate remedy at law is sufficient without suggesting what particular allegations are needed in order to show the want of such remedy.* The objection that plaintiff in an equity suit has an adequate rem- edy at law must be taken by demurrer or answer, or it is waived.* ^ Hotchkiss V. Elting, 36 Barb. 38 (action to remove cloud from title); Gullickson v. Madsen, 87 Wis. 19, 57 X. W. 965. A demurrer ore iemis in an action in which the subject-matter is of equi- table cognizance does not go to the point that the plaintiff has an adequate remedy at law, but only raises the question whether the com- plaint states a, cause of action in equity. Pierstoff v. Jorges, 86 Wis. 128, 56 N. W. 735; Bigelow v. Washburn, 98 Wis. 553, 74 N. W. 362, The objection that plaintiffs had an adequate remedy at law is admissible on a general demurrer to a petition in equity for the removal of a cloud from title to land, and for other relief. Kruczinski v. 'Neuen- dorf, 99 Wis. 264, 74 N. W. 974 (Citing as Overruled, Stein v. Bene- dict, 83 Wis. 604, 53 JST. W. 891). ' If this be the ease, to sustain the demurrer would be to sanction a de- murrer to relief. '■ Wetherell v. Eherle, 123 111. 666, 14 N. E. 675. '■Bigelow v. Washburn, 98 Wis. 553, 74 N. W. 362; Meyer v. Garthmaite, 92 Wis. 571, 66 N. W. 704. An objection to the jurisdiction of a court of equity on the ground that there is an adequate remedy at law may always be taken by the answer. Black V. Miller, 173 111. 489, 50 N. E. 1009. In case it appears on the face of the bill that the plaintiff has an ade(iuate remedy at law, the objection may be raised by demurrer; but defend- ant cannot, as a matter of right, avail himself of that defense after answering, unless it is pleaded in the answer. Metropolitan Elev. R. Go. V. Johnston, 84 Hun, S3, 32 N. Y. Supp. 49 (Citing Tucker v. Man- hatlaii R. Go. 78 Hun, 439, 29 N. Y. Supp. 202; BroMcn, B. & Co. >•. Lake Superior Iron Co. 134 U. S. 530, 33 L. ed. 1021, 10 Sup. Ct. Rep. 604). Tlie objection must be raised by answer. Witherbee v. Meyer, 84 Hun, 146, 32 N. Y. Supp. 537. VII. FOE IJSrSUFFICIENCY AS TO CAUSE OF ACTIO-\. 215 "The fact that a complainant has an adeqviate remedy at law is defensive in its nature and need not be negatived in the bill. If, on the facts averred in the bill, it contains equity, unless the complainant has an adequate legal remedy, and the bill is silent as to the existence of such legal remedy, the defense based upon its existence is matter for answer or plea; it can be made by demurrer only when the bill affirmatively discloses the fact." Bunn v. Timberlahe, 104 Ala. 263, 10 So. 97. Tlie objection to the jujisdiction of a court of equity on the ground that there is an adequate remedy at law may be enforced by the court sua sponte, though not raised by the pleadings or suggested by counsel. Killian v. Ebbinghaus, 110 U. S. 568, 28 L. ed. 246, 4 Sup. Ct. Rep. 232 (Citing Parker v. Winnipiseogee Lake Cotton & Woollen Co. 2 Black, 545, 17 L. ed. 333; Lewis v. Cocks, 23 Wall. 466, 23 L. ed. 70). Under the Codes, it has sometimes been held that the remedy is by motion as to mode of trial, not demurrer. De Bussierre v. Holladay, 55 How. Pr. 210; Independent School Dist. v. Independent School Dist. 41 Iowa, 321. 51. Showing want of adequate remedy. A complaint asking only-' equitable relief is demurrable if the facte stated are such that there is a plain, adequate, and complete rem- edy at law.^ If the jurisdiction is concurrent, the facts stated must show that there is not such a legal remedy.* ' If the complaint asks legal relief, it is not Dad on demurrer because of also asking equitable relief. ° Demurrer lies if plaintiff, by his own showing, has an effectual and com- plete remedy at law, and sets up no particular title to the aid of a court of eqtiity. Bill by attorneys and solicitors for an account of payments and services for the defendants and others on request made, on behalf of all the creditors of an insolvent debtor, therefore dis- missed on demurrer. Lynch v. Willard, 6 Johns. Ch. 342, 21 Am. Dec. 84. A bill asking for an accounting in equity discloses an adequate remedy at law and is not maintainable where it shows no more than that the defendant has received money legally belonging to the plaintiff, which he has failed to pay over, and for which an action at law for money had and received would be proper; but fails to aver any confusion or complication of accounts justifying a resort to equity. Dargin v. Hew- litt, 115 Ala. 510, 22 So. 128. A complaint in equity alleging that the defendant corporation, in consider- ation of the plaintiff's relinquishment to it of his interest as a stock- holder, and the conveyance of personal property, agreed to pay speci- fied debts of the plaintiff, which it has failed to do, except in part, dis- closes an adequate remedy at law for breach of the contract, and is demurrable on that ground, where the insolvency of the defendant is 216 BEIEF ON PLEADINGS DEMUEKEK. not alleged, or facts shown entitling the plaintiff to rescind the agree- ment. ElUs V. Southwestern Land Co. 102 Wis. 409, 78 N. W. 583. Where the complaint shows on its face that the complainant had an ade- quate remedy at law, the fact that under a misapprehension of his rights he failed to take advantage of this remedy until too late, affords no ground for equitable relief. Seller v. DyervUle Mfg. Co. 116 CaJ. 127, 47 Pac. 1016. A petition for an injunction is bad on demurrer where, admitting all the allegations therein to be true, it shows that plaintiff has a complete and adequate remedy at law for the injury sustained. Planet Prop- erty & Financial Co. v. St. Louis, 0. H. & G. R. Go. 115 Mo. 613, 22 S. W. 616. A demurrer to a bill in equity should be sustained and the plaintiff re- mitted to his legal remedy, where the specifie facts stated in the bill show that there is a plain, adequate, legal remedy as to the matters in dispute, notwithstanding vague and general allegations as to equita- ble jurisdiction. Van Dorn v. Lewis County, 38 W. Va. 267, 18 S. E. 579. A bill to enjoin a judgment upon the ground of the breach of an agreement for the continuance of the case, and failure of the complainants to learn of the judgment until too late to appear before the justice and have the verdict set aside and a new trial awarded, is demurrable as showing an adequate remedy at law on its face, where it is apparent therefrom that the complainants might, after learning of the judg- ment, have taken an appeal and obtained a writ of certiorari. Shay V. Nolan, 46 W. Va. 299, 33 S. E. 225. Suits in equity cannot be sustained in either of the courts of the United States in any case where a plain, complete, and adequate remedy may be had at law. Smyth v. New Orleans Canal & Bhg. Co. 141 U. S. 656, 35 L. ed. 891, 12 Sup. Ct. Eep. 113. • A complaint in a proceeding in equity by a judgment creditor in a joint judgment to set aside a. conveyance by one of the judgment debtors as in fraud of creditors is demurrable for failure to show that the other joint judgment debtors did not have sufficient property subject to exe- cution to satisfy the debt at law. Euclid Ave. Nat. Bank v. Judkins, 66 Ark. 486, 51 S. W. 632. But an equitable petition by an execution creditor, alleging that the exe- cution debtor and other persons made defendants had entered into a conspiracy to defeat the collection of plaintiff's debt; that the common object of all the conspirators was to hide and cover up in the names of the defendants other than the execution debtor property belonging to the latter; and that, in pursuance of such object, various deeds had been executed, purporting to convey specified parcels of realty belonging in fact to the execution debtor; and asking for the cancelation of such conveyances as fraudulent, and for a judgment subjecting the property to plaintiff's execution, — is not demurrable on the ground that plain- tiff has a complete remedy at law. Gonley v. Buck, 100 Ga. 187, 28 S. E. 97. VII. FOE INSUFFICIENCY AS TO CAUSE OF ACTION. 217 And an allegation in an action to set aside a fraudulent conveyance by a surety on a recognizance, that, with the exception of the lands so con- veyed, all the defendants in the judgment made the basis of the action are insolvent, and that executions have been issued and returned unsat- isfied against all of them, sufficiently shows that the judgment creditor has exhausted his legal remedy. Quinn v. People use of Salina County, 146 m. 275, 34 N. E. 148. In a creditor's smt to reach an equitable interest which the debtor has fraudulently transferred, the plaintiff must allege and prove that he has no legal remedy, that the debtor is insolvent and has no other property from which his debt may be satisfied, — the best proof of which facts is, as a rule, the return of an execution nulla bona. Spooner v. Travelers Ins. Co. 76 Minn. 311, 79 N. W. 305. A bill to subject partnership assets to the payment of a judgment need not negative the defense of an adequate remedy at law, if, on the facts averred in the bill, it contains equity, and is silent as to the existence of a legal remedy. Bunn v. Timberlake, 104 Ala. 263, 16 So. 97. A bill to set aside, as in fraud of creditors, a conveyance of land in the District of Columbia by a resident of New York, filed by a resident of Maryland, is demurrable as failing to Sitate a cause cognizable in equity, where it does not show that the defendant has no property sub- ject to execution in the state of his residence, or that the debt was con- tracted in the District of Columbia, or that the defendant ever resided there; or state any reason why appellant could not have commenced his action at law and sued out attachment against the nonresident de- fendant. Bess V. Horton, 2 App. D. 0. 81. A creditor's bill alleging the date of entry of judgment, and that execu- tion was issued and returned unsatisfied, and that the judgment was revived by scire facias on a certain date, without showing that an exe- cution was issued within seven years after rendition of the judgment, or givii^ the date of its issuance, or that an execution was issued after its revival, is insuffieient as failing' to show that the complainant has exhausted his legal remedies. Crawford v. Cook, 55 111. App. 351. A bill asking for an accounting, for the restraining of an action at law, and for a decree establishing the rights of parties to real property now held by the complainant as trustee, and that the necessary conveyances in accordance with such determination be made, is not demurrable as failing to state a case for equitable relief, or because an adequate rem- edy exists at law. Lieberman v. Sloman, 118 Mich. 355, 76 N. W. 757. An averment by a principal in an action against him in equity for an accounting by an agent to recover commissions for Ms services, that the plaintiff has an adequate remedy at law, is not essential to render available the objection that s^ich an action will not lie. Skilton v. Payne, 18 Misc. 332, 42 N. Y. Supp. 111. A bill for infringement of a patent, filed only twenty-two days before the expiration of the patent, must allege the special equities which will con- fer jurisdiction upon a court of equity, and clearly show both the right to a present injunction, upon which jurisdiction hinges, and the neces- 218 BRIEF ON PLEADINGS DEMUEEEB. sity for enforcement, as otherwise there may be an adequate legal rem- edy. McDonald v. Miller, 84 Fed. 344. A complaint for an injunction to restrain an alleged trespass, simply alleging that the complainant has no adequate remedy at law and that his damages will be irreparable, is insufficient as being a statement of complainant's mere opinion or fears, where he does not state facts to enable the court to determine whether or not his alleged injury will be irreparable. Indian River 8. B. Co. v. East Coast Transp. Go. 28 Fla. 387, 10 So. 480. The averment in a complaint in a. .'iiiit to restrain the collection of a per- sonal tax, tha,t the threatened levy and sale of the complainant's logs would be a great and irreparable injury, for which he would have no adequate remedy by proceedings at law, is merely a conclusion of law, and is insufficient to negative the existence of an adequate remedy at law. Laird, N. & Co. v. Pine County, 72 Minn. 409, 75 N. W. 723. A complaint in an action to restrain the construction of a sewer by a municipal corporation, on the ground of the alleged invalidity of the ordinance authorizing its constniction, is demurrable for failure to allege facts showing that the plaintiffs have no adequate remedy at law. Schulz V. Albany, 27 Misc. 51, 57 N. Y. Supp. 963. An answer by a sheriff in a suit in equity by the grantee of land to re^ strain the sale thereof under execution against his grantor need not, when setting up that the conveyanee was fraudulent and void as to creditors, allege that the grantor had no other property from which the judgment might be satisfied, although such an allegation might be necessary were he first invoking the equity pow^ers of the court. Pro- bert V. McDonald, 2 S. D. 495, 51 N. W. 212. Whitehead v. Entwhistle, 27 Fed. 778 (bill to quiet title to real estate, where the allegations showed that the defendant was in possession, and ejectment might be maintained. Dictum, that the allegations must show that there is no adequate remedy at law ) . A bill to remove a cloud on title should affirmatively show that plaintiff actually has not a plain, adequate, and complete remedy at la.w. It is not enough to show that he may not ha,ve such remedy. Southern P. R. Co. V. Goodrich, 57 l''ed. 879. An allegation that plaintiff cannot be compensated in damages is not necessary in an action to quiet title, based on an oral contract for lands, where equity and law jurisdiction reside in the same court. Puterbaugh v. Puterbaugh, 131 Ind. 288, 15 L. R. A. 341, 30 N. E. 519. A bill in equity to quiet title to land claimed under a statute requiring the bill to describe the land, name the person reputed to have title, interest, or encumbrance, and call upon him to set forth and specify his title, claim, or encumbrance, and how the same is derived or cre- ated, — ^need not allege that the complainant cannot attack defendant's claim by a suit at law. Bishop v. Waldron, 56 N. J. Eq. 484, 40 Atl. 447. A bill in equity which does not aver that complainant is in possession of lands, and which does not allege that some obstacle or impediment VII. FOE IKSUFIflGIENGY AS TO CAUSE OF ACllON. 219 exists which embarrasses the assertion of his rights at law, may not be maintained as a bill to remove a cloud from the title. Brown v. Hun- ter, 121 Ala. 210, 25 So. 924. A petition which avere the purchase of standing trees by plaintiff under an execution against a puriihaser thereof from the equitable owners of the land, the trees having been identified by marks, the record of the conveyance to the purchaser, a subsequent sale of the trees by thi- original vendor, a sale of the land by him without reserving the treoK. the record of the latter conveyance, that defendants and each of them is claiming to be the owner of the trees, and is injuring if not totally destroying their market value, and that such subsequent conveyances cast a cloud upon plaintiff's title, — does not state a case for equitable relief in the absence of any averment that plaintiff is prevented from removing the trees, or that the defendants have ever attempted to pre- vent him, or to remove the trees themselves, or that defendants are insolvent. Wood v. AsJier Lumber Co. 19 Ky. L. Rep. 235, 39 S. W. 702. Kip V. New York & H. li. Go. 6 Him, 24 (suit asking that proceedings in eminent domain be enjoined because the statute claimed to sanction them was unconstitutional. Demurrer sustained ) . Damages being an adequate remedy for breach of contract as to personal property, a complaint for specific performance of such a contract, or, in the alternative, compensation for the value of the stock, is bad on demurrer. Avery v. Ryan, 74 Wis. 591, 43 N. W. 317. Under the Massachusetts statutes, limiting the court in the exercise of the chancery powers conferred upon it, to cases where the party has not a plaim, a/dequate, and complete remedy at law, a bill is demurrable not only if it shows that the plaintiff has a remedy at law equally sufficient and available, but also if it fail to show that he is without such remedy. Jones v. Newhall, 115 Mass. 244, 15 Am. Kep. 97; Maguire's Appeal, 102 Pa. 120 (reversing for error in not sustaining a demurrer). In Mentz v. Cook, 108 N. Y. 504, 15 N. E. 541, where it is said (p. 509) that the complaint would not have been denrarrable, it must be noticed that the court had previously said (p. 508) that the complaint suffi- ciently alleged facts showing a want of adequate remedy at law. See other authorities under Account, § 75, infra. As to What is Deemed Adequate within the Rule, see § 56, infra. If the language of the bill is equivocal, the presumption, under Tennessee law, will be in favor of, rather than against, the bill. Kerr v. Kerr, 3 Lea, 224 (bill to reach property of a judgment debtor; an allegation that the defendant "has title" to certain real property will not be deemed to imply that he has legal title). If the plaintiff makes out a prima facie case for the intervention of equity, by showing either that the tort will cause an injury which is specific, and which the person injured cannot specifically repair, and which cannot be paid for in money, or an injury the extent of which it is impossible to ascertain or estimate with any accuracy, he will be en- 220 BEIEF ON PLEADINGS DEMUBEEB. titled to the interference of equity to prevent the commission of tlifr tort; otherwise, the remedy at law is adequate so far as regards thfr nature of the tort, unless the defendant can show that the damage which will be caused to him by the prevention of the act will so much exceed the damage which will be caused to the plaintiff by the doing of the act that the interference of equity will not be promotive of jus- tice. Prof. Langdell, in 1 Harvard L. Rev. 121, adding: "If the de- fendant can show that, the plaintiff should, it seems, be left to his remedy at law. One objection to the interference of equity under such circumstances is that it is not likely to have any other effect than that of compelling the defendant to purchase the plaintiff's acquiescence at an exorbitant price." Under Ga. Civ. Code, | 4843, requiring a plaintiff to set forth his cause of action plainly and in an orderly way, a petition stating a legal cause of action, though using terms appropriate to an equitable proceeding, in so far as it does not seek any extraordinary relief, is not demurra- ble on the ground that plaintiff had an adequate remedy by action at law. Teasley v. Bradley, 110 Ga. 497, 35 S. E. 782. 52. — in case of several grounds of relief. If the complaint states more than one ground for the same relief as a single cause of actio(n, — as, for instance, facts showing that an instrument is voidable, and other facts showing that it is void, — the existence of a plain, adequate, and complete remedy at law upon one ground does not render it demurrable if there is no such remedy upon the other ground.^ ' In a bill by heirs to vacate an order of sale confirmation, it was held that if either ground were sufficient, joining the other could not impair the bill. Tillman v. Thomas, 87 Ala. 321, 6 So. 151. Boyle V. Brooklyn, 71 N. Y. I, Reversing 8 Hun, 32 (complaint to can- cel assessment as a cloud on title, stating two defects, one pf which did, and the other of which did not, appear on the face of the pro- ceedings) . 53. Assignee. The common-law inability of an assignee of a cause of action to sue as such at law is not a sufficient ground to enable him to sue in equity.-' ' Hayward v. Andrews, 106 U. S. 672, 27 L. ed. 271, 1 9up. Ct. Rep. 544; New York Guaranty d Indemnity Co. v. Memphis Water Go. 107 U. S. 205, 27 L. ed. 484, 2 Sup. a. Rep. 279. 54. What is a "remedy at law." Whether a statutory action or special proceeding, or an ability to VII. FOB INSUFPICIBlSrCY AS TO CAUSE OF ACTION. 221 bring a legal action in another state, is a remedy "at law," witMn the rule, has not been fully settled. The better opinion is that a court of equity is not deprived of any inherent jurisdiction as such by the existence of a remedy conferred on a court of law by statute,^ unless the statute secures a right of trial by jury ; nor by the fact that a citi- zen complainant might resort to a foreign tribunal ; for so far as the objection that there is an adequate remedy at law is a matter of right on the part of the defendant, it is founded on the right to trial by jury.^ But the existence of such a statutory or foreign remedy is ground, in the discretion of the court, for refusing to exercise equita- ble jurisdiction." ' The adeqviate remedy at law which is the test of equitable jurisdiction in the courts of the United States is that which existed when the judi- ciary act of 1789 was adopted, unless subsequently changed by act of Congress, and is not the existing remedy in a state or territory by vir- tue of local legislation. McConihay v. Wright, 121 U. S. 201, 30 L. ed. 932, 7 Sup. Ct. Rep. 940. A statutory remedy at law does not take away equity jurisdiction. Bree- den V. Lee, 2 Hughes, 484, Fed. Cas. No. 1,828. A statute providing for foreclosure of chattel mortgages by an action of a legal nature should not be construed by implication as taking away the general jurisdiction of a court of equity to entertain an equitable action for that purpose. Ogden Commercial Nat. Bank v. Davidson, 18 Or. 57, 22 Pac. 517. Chancery is not deprived of its original jurisdiction in any case, either by the operation of a statute conferring similar jurisdiction upon the coramon-law courts, or by the adoption in those courts of the principles or practices of a court of equity. Frey v. Demarest, 16 N. J. Eq. 236 (Citing Atkinson v. Leonard, 3 Bro. Ch. 218; King v. Baldioin, 17 Johns. 384, 8 Am. Dec. 415; Sailly v. Elmore, 2 Paige, 497; Varet T. New York Ins. Go. 7 Paige, 560; White v. Meday, 2 Edw. Ch. 486). 'Killian v. Ebbinghaus, 110 U. S. 568, 573, 28 L. ed. 246, 248, 4 Sup. Ct. Rep. 232 (Citing Hipp v. Babin, 19 How. 271, 15 L. ed. 633). "Even a court of law may refuse in its discretion to entertain an action between transient persons on a foreign tort. 55. Statutory remedy in equity. A state statute giving a remedy in equity does not, in the United States courts, take a case out of the rule that equity cannot be resorted to if there is a speedy, plain, adequate, and complete remedy at law.* ' Whitehead v. Entwhistle, 27 Eed. 778. Compare Van Norden v. Morton, 99 U. S. 378, 25 L. ed. 453. 222 BRIEF ON PLEADINGS DEMUEHEE. 56, What is a "plain, adequate, and complete" remedy. The tests as to whether the remedy at law is plain, adequate, and complete are the same in the courts of the United States^ and other courts^ acting under statutes which forbid the exercise of equity ju- risdiction when such remedy exists, as it is in courts acting under the general principles of equity jurisdiction. The remedy at law is not "plain," within the meaning of the rule,, if there is serious doubt as to the existence of a legal remedy ,-'* or as to the construction of an instrument in one view of which there is no remedy at law,'* or as to the propriety of joining the parties at law,' or as to the possibility of ascertaining the facts necessary to determine- the strict legal rights of the parties.® The remedy at law is not "adeqiiate," within the meaning of the rule, if it is not adapted to ascertaining the facts, — as, where discov- eiw is necessary and the court of law has not the power to compel it ;'' or where an account to be taken is so complicated, or the parties with conllicting interests are so numerous,* that justice could not well be done by jury trial. The remedy at law is not "complete," within the meaning of the rule,* if it could not redress all the wrongs, establish all the rights, and administer full relief in view of the transaction in question.^** The equity jurisdiction attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy which equity would confer under the same circumstan- ces.-' ^ But it is not enough to show that a remedy at law, theoretically clear, adequate, and complete, has been resorted to without success.'^ ' Section 10 of the judiciary act of 1789 is nierely declaratory of the pre- existing rule, and does not apply where the remedy is not "plain, ade- quate, and complete," or, in other words, where it is not as practical and eflScient to the ends of justice and to its prompt administration a* the remedy in equity. Oclrichs v. Spain, 15 Wall. 211, sub nom. Oel- richs V. Williams, 21 L. ed. 43. ' See, for instance, Massachusetts cases cited imfra.. ' Wlicre bail was discharged by reason of an agreement between the debtor and creditor in violation of its terms, it was held that equity miglit iifford relief and grant a perpetual injunction against its enforcemrnt, the remedy at law being doubtful. Railibone v. Warren, 10 Joliiis. 588. 'Ludlow V. Simond, 2 Cai. Cas. 1 (contract susceptible of two eonslruc- tions, upon one of which there was clearly no remedy at law, and spe- cific performance might be necessary). VII. lOE INSUFFICIENCY AS TO CAUSE OF ACTION. 223 • Fraud on sevei-al associates in a mining enterprise by another associate, who stood in a fiduciary relation. Bill for accounting sustained. The court says: "If an action at law could be maintained, it is not plain whether the plaintiffs should join in the action or whether each should bring an action to recover the damages he sustained by the fraud. We have no doubt that, since the passag-e of the statute of 1877, chap. 178, §§ 1, 2, this court has jurisdiction in equity of this case; and, without determining absolutely that the plaintifl's have no remedy at law, we are of opinion that their i-eraedy at law is not so plain that we ought to deny them relief in equity." Dole v. Wooldredge, 135 Mass. 140. ' Carpenter v. Carpenter, 40 Hun, 263. In a suit arising out of the sale of a cargo of a wrecked vessel under the award of a "wrecker's court" of another state, it was contended that the plaintiff's remedy was an action of trover in a court of law. But it was held that the accidental obliteration of the mark upon the goods, which rendered it impossible to ascertain to which of the various own- ers of the cargo the part saved belonged, together with the complicated rights of the parties in interest, made the plaintiff's remedy at law doubtful and difficult, and this alone would be sufficient to confer equi- table jurisdiction. American Ins. Co. v. Fisk, 1 Paige, 90. Wood V. Seely, 32 N. Y. 105, and cases cited (holding that where title to real property is involved, if the removal of a cloud thereon, depends on oral evidence, the party is not bound to take the hazard of its loss by awaiting an action at law, but may maintain a suit in equity ) . Compare Weil v. Raymond, 142 Mass. 206, 7 N. E. 860 (holding that un- certainty as to who is the debtor, or whether attachable property belongs to the debtor, is not enough to svistain a resort to equity). ■< Sullivan v. Portland & K. R. Co. 94 U. S. 806, 24 L. ed. 324. And see § 34, supra; Accountistg, §§ 45-49, supra. 'Plummer v. Connecticut Mat. L. Ins. Co. Holmes, 267, Fed. Cas. No. 11,232 (demurrer overruled). 'Brush Electric Co.'s Appeal, 114 Pa. 574, 7 Atl. 794 (with dictum that a bill may be sustained solely upon the ground that it is the most con- venient remedy. Citing Kirkpatrick v. M'Donald, 11 Pa. 387). -"JDe Bussierre v. Holladay, 55 How. Pr. 210; FolPs Appeal, 91 Pa. 434. Specific perfonnance lies against an insolvent though the contract relate to personalty. Clark v. Flint, 22 Pi(3k. 231, 33 Am. Dee. 733. Action for injunction sustained where a clear legal right was violated, but, because no damage appeared, an action at law would not lie. Smith V. Rochester, 38 Hun, 612. 1 Story, Eq. Jut. § 33, says: "The remedy must be plain; for if it be doubtful and obscure at law, equity will assert a jurisdiction. It must be adequate; for if, at law, it falls short of what the party is entitled to, that founds a jurisdiction in equity. And it must be complete; that is, it must attain the full end and justice of the case. It must reach the whole mischief, and secure the whole right of the party in a perfect manner, at the present time and in future; otherwise, equity 324: BEIEF ON PLEADINGS ^DEMURRER. will interfere and give such relief and aid as tlie exigency of the par- ticular case ma,j require." "Fuller, Ch. J., in Kiliourn v. SunderUmd, 139 U. S. 505, 32 L. ed. 1005, 9 Sup. Ct. Eep. 594. See a note on the existence of a remedy at law, in Eigelow's ed. of Story, Eq. Jur. 13th ed. 25. "By inadequacy of remedy at law is meant not that it fails to produce money, — that is a very usual result in the use of all remedies, — ^but that, in its nature or character, it is not fitted or adapted to the end in view. The fact that the remedy at law by mandamus for levying and collecting taxes has proved ineffectual, and that no officer can be found to perform the duty of levying and collecting them, is not sufficient ground for jurisdiction in equity to enforce that collection. Thompson v. Allen County, 115 U. S. 550, 29 L. ed. 472, 6 Sup. Ct. Rep. 140. For other cases on inadequacy of remedy at law as a ground for resort to equity, see Hammond v. Morgan, 101 N. Y. 179, 4 N. E. 328; McLwne V. Johnson, 59 Vt. 237, 9 Atl. 837; Hammond v. Morgan, 19 Jones & S. 472; Barber v. Barber, 21 How. 582, 16 L. ed. 226; Vihing v. Balti- more & 0. It. Co. 79 Va. 449; Drexel v. Berney, 122 U. S. 241, 30 L. ed. 1219, 7 Sup. Ct. Rep. 1200; Brooks v. Howison, 63 N. H. 382; Williams V. Kiernan, 25 Hun, 355; Som,erville v. Johnson, 36 N. J. Eq. 211; Galveston, H. & S. A. R. Co. v. Hume, 59 Tex. 47; Spring v. Domestic Sewing Uach. Co. 5 N. J. L. J. 330; Watson v. Sutherland, 5 Wall. 74, 18 L. ed. 580; Leopold v. Silverman, 7 Mont. 266, 16 Pac. 580; Zell's Appeal, 126 Pa. 329, 17 Atl. 647. 57. "Jurisdiction clause" directly alleging want of remedy. A complaint whiab makes a case for which there is no plain, ade- quate, and complete remedy at law is not demurrable because it con- tains no direct allegation that the plaintiff has no such remedy. If the complaint does not make such a case, such an allegation will not save it.'' ^ Common practice. The allegation would be a mere conclusion. In Mentg v. Cook, 108 N. Y. 504, 15 N. E. 541, the facts showing want of remedy at law were specifically alleged in the complaint, coupled with that conclusion, and the court lays the stress on them. The allegation in a petition for a writ of prohibition, that petitioner has no remedy in the premises otherwise than through the special relief asked, is a mere conclusion of law, and of no effect in the absence of a statement of facts tending to support the correctness of the statement. State ex rel. Shaw v. Ellis, 47 La. Ann. 1602, 18 So. 636. By the rules of United States practice in equity, No. 21, the plaintiff in a bill in equity may omit the allegation that the plaintiff is without any remedy at law, "and the bill shall not be demurrable therefor." This is in accord with practice under the Codes. 2 Story, Eq. PI. 28, § 34. A mere allegation that complainant has no adequate remedy at law, unao- VII. FOE INSUFlflGIENCY AS TO CAUSE OF ACTION. 225 comijanied by allegations supporting the same, will not confer juris- diction upon a, court of equity. Overweight Counterbalance Elevator Go. V. Standard Elevator & Mfg. Co. 96 Fed. 231 (Citing Clark v. Wooster, 119 U. S. 322, 30 L. ed. 392, 7 Sup. Ct. Rep. 217). A bill for the specific performance of a land contract need not allege that the plaintiff has not a plain, adequate, and complete remedy at law, as the necessity for such allegation, if it ever existed, has been abrogated by the Maine supreme judicial court rule 4. Goodwin v. Smith, 89 Me. n06, 36 Atl. 997. Van Wert v. Wehster, 31 Ohio St. 420 (bill for injunction to prevent apprehended injury to real property. Judgment therefor reversed) ; Blaine v. Brady, 64 Md. 373, 1 Atl. 609, 22 Cent. L. J. 36, with note (action to enjoin over/lowing of lands). The absence of a specilie averment that plaintiff has no adequate remedy at law will not prevent a court of equity from granting relief when all of the grounds on which it is asked are of equitable cognizance. Borie V. Saiterthwaite, 180 Pa. 542, 37 Atl. 102. A complaint to set aside a sale of land by a trustee need not allege that plaintiff has no adequate remedy at law, where the complaint shows the need of an equitable remedy. Storm v. Bennett, 91 Hun, 302, 36 N. Y. Supp. 290. A bill in equity was demurred to because it was not accompanied by coun- sel's certificate, as required by the Pennsylvania act of October 13, 1840, that there was no adequate legal remedy, or that it would be attended with additional trouble, etc. It was held that the demurrer was well taken, but it was overruled, the court allowing the certificate to be added nunc pro tunc. Thomas v. Sail, 2 Pearson (Pa.) 64. A bill in equity by a widow refusing to take under the will of her hus- band, for an account of rents and profits, must be accompanied, under Pa. act October 13, 1840, by the certificate of counsel that in his opinion there is no adequate remedy at law, or that the remedy at law will be attended with great additional trouble, inconvenience, or delay. Engle v. Conrad, 12 Montg. Co. L. Rep. 36. 58. Estoppel against this objection. A defendant who has successfully obstructed the complainant's remedy at law by a technical defense/ or by withholding evidence,^ cannot defeat a suit in equity merply on the ground that .the remedy was at law. 'liadcliff v. High, 2 Rob. (Va.) 271, holding that after voluntary dis- missal of a suit at law on a plea of estoppel being filed, which com- plainant erroneously supposed would be good at law, he might sue in equity on the ground that defendant, having prevailed at law on the pretense that there was no remedy there, could not now say that there was. Complainant sued at law for purchase money; but defendant pleaded estoppel, consisting of the recital of payment in the deed, whereupon complainants discontinued and filed their bill in equity, but Abb. Pi,. Vol. I.— 15. 226 BEIEF OK PLEADINGS DEMUEEEE. the court dismissed it (on grounds not stated), which was held error. The answer in this suit admitted that defendant had not paid the debt, and (without deciding whether the defense at law should not have availed), yet defendant, by having interposed the plea successfully, is estopped from urging that it should not have availed. Decree reversed, and decree for complainant for the debt. 'Voluntary dismissal at law by reason of being embarrassed by defend- ant's refusal to deliver to plaintiff the contract sued on precludes de- fendant from claiming, when sued in equity, that there was a remedy at law. Upon plaintiff's being defeated in the effort to obtain from defendant one of the duplicate copies of the contract sued on, he dis- continued and filed a bill in equity, setting up that -ground. It was held error to sustain a demurrer to his bill on the ground that it was no case for equitable relief. Defendant cannot be permitted to drive his adversary from a court of law by withholding papers, and then drive him from chancery because he did not hazard a trial at law with- out the necessary papers. Sturtevant v. Goode, 5 Leigh, 83, 27 Am. Dec. 586. Complainant alleged a building contract, which was left in defendant's possession to have duplicates made; and that, by reason of defendant's refusal to deliver it to him till all work was done, a provision that no work sliould be regarded as extra unless a, separate estimate was made by him, was forgotten; and that in a suit by him on the contract, evi- dence of extra work, necessitated by alterations in the plans made by defendant, had been exclvided because of lack of such estimates, and he thereupon discontinued the suit and brought this bill; and that such extra work had been done in reliance on defendant's good faith a-nd integrity; and the bill prayed for an accounting and for general relief. The bill was dismissed on demurrer, which was held erroneous. To keep plaintiff out of equity would permit defendant to take advantage of its own wrong. Decree reversed. Johnson v. Roanoke Land iC- Jmprov. Co. 82 Va. 284. e. Contract or Tort. 59. Uncertainty as ground of demurrer. In those jurisdictions where uncertainty is ground for demurrer, a complaint is demurrable which alleges both a contract and a tort, and does not indicate upon which plaintiff founds his claim to re- cover. Statutes allowing demurrer if the complaint is "ambiguous, unin- telligible, or uncertain" have been adopted in California, Colorado, Montana, and Nevada.^ ' For the Contrary Rule, Prevailing in Most of the States, see chapter vi., § 10, ante. If the complaint states facts which show a good cause of action for debt. VII. FOE INSUFFICIENCY AS TO CAUSE OF ACTION. 227 to which is added avexmcnts on which an action on the case for deceit might have been maintained, it is error to disregard one of these state- ments as surplusage, and to sustain the pleading on the other, if the averments do not show which is vmnecessary. Such uncertainty is a, defect not warranted by the Code. Munter v. Rogers, 50 Ala. 283. A single count of a complaint, in which plaintiff shifts his right of action from one ground to another, and states several breaches of duty alter- natively or disjunctively, so that it cannot be determined upon which of several substantive averments he relies, is demurrable. Highland Ave. & Belt B. Go. v. Dusenlerry, 94 Ala. 413, 10 So. 274. A complaint alleging that defendant wrongfully and fraudulently took plaintiff's goods; that he then agreed to buy them at what they were reasonably worth and afterwards refused to negotiate, and by force and threats prevented the plaintiff from removing them, — is deanurrable on the ground that it does not state facts sufficient to constitute a cause of action, and that it is ambiguous, unintelligible, and uncertain, since it is impossible to define the character of the intended action. Buell v. Cory, 50 Cal. 639. But a declaration setting forth in substance a, tort may be upheld as com- plaining thereof, although its form is in part appropriate to an action on contract, as against a demuiTer that it does not set forth a cause of action because so ambiguous that it is impossible to determine whether it states an action eoc delicto or em contractu. Chattanooga, B. & ('. B. Co. V. Palmer, 89 Ga. 1 61, 15 S. E. 34. And a declaration by a wife stating the manner in which she was injured by a street railway company's negligence, and alleging that by reason of a fall sustained by her, she was badly injured, so that she suffered and will continue to suffer gi-eat pain, and will remain permanently injured, and that the fall also caused great mental shame and distress, is sufficient to withstand a motion to dismiss it for vagueness, uncer- tainty, or indefiniteness at the trial term. James v. Atlanta Street B. Co. 90 Ga. 695, 16 S. E. 642. Although a petition in an action against a railway company by a. passen- ger, for being wrongfully carried past her station, is ambiguous in not showing whether the action is for tort or breach of the contract, it should not be dismissed on a. special demurrer which characterizes it as an action ex contractu, containing paragraphs seeking a recovery for damages arising ex delicto. Seals v. Augusta Southern B. Co. 102 Ga. 817, 29 S. E. 116. The court says: "liJven if the petition were, to some extent, ambiguous in not showing whether the suit was for a tort or a breach of the contract, it would have been error for the court to have dismissed it upon this demurrer. According to the opinion of this court in the case of Central B. Co. v. Pickett, 87 Ga, 736, 13 S. E. 750, if the petition had been subject to the charge of duplicity in the respect above indicated, and the defendant had demurred to it upon that ground, and had sought for that reason to dismiss it, the court below should either have dismissed the case or required the plaintiff to so shape her allegations as to leave no doubt of the manner in which she sought to hold the defendant liable." 228 BEIEF ON PLEADINGS DEMUKEEE. Wiint of certainty and definiteness in an answer must be objected to by a special demurrer, and not by motion. Printup v. Borne Land Co. 90 Ga. 180, 15 S. E. 764. The objection that the allegations of a complaint are indefinite and un- certain cannot be raised by demurrer. If, notwithstanding the uncer- tainty of some important allegations, it can still be seen that a, sub- stantial cause of action is stated, a. demurrer will not lie; but the remedy, if any, is by motion to make the pleading definite and certain. Johnston v. ISiorthwesiern Live Stock Injs. Co. 94 Wis. 117, 68 N. W. 868. See also cases in § 31, supra. f. Demur?-er to Belief. 60. General rule. Under the new procedure a demurrer does not lie to the demand of relief. Where the facts alleged entitle the plaintiff, as against the demur- rant, to judgment for any part of the relief demanded by the com- plaint, a demurrer for insufficiency must be overruled,-' although the relief so asked be more^ or less* than the plaintiff is entitled to, or be inappropriate,* or when based on the ground that the relief sought is not single.^ It is the better opinion that if the facts alleged entitle plaintiff to no part of the relief demanded, a demurrer for insufficiency should be sustained, even though, upon the facts stated, plaintiff would be entitled to some different relief.® A petition is not subject to demurrer as failing to state a cause of action, because of the language of its prayer, or because of the entire omission of any prayer.'' A demurrer to a bill in equity, seeking to make available, as against the whole bill, supposed defects relating to a part only of the relief prayed, will be overruled.^ A description of the relief claimed by a married woman in a suit to compel her husband, who has deserted her, to provide her and their minor child with suitable support, as equitable, if a defect, can be taken advantage of only by demurrer.* ^Pell V. Folger, 68 Hun, 443, 23 N. Y. Supp. 42; Morgan v. Morgan, 20 R. 1. 000, 40 Atl. 736. A demurrer to an entire bill presenting two alternative grounds for relief is properly overruled where one of such grounds is good. Beall v. Leh- man Durr Co. 110 Ala. 446, 18 So. 230. A pleading is not demurrable because, on the facts alleged, the party i? VII. FOR INSUFFICIENCY AS TO CAUSE OF ACTION. 229 not entitled to the relief sought, where such allegations are sufficient, if established, to entitle him to some relief. Morey v. Duluth, 69 Minn. 5, 71 N. W. 694. The court is not confined to the prayer in granting relief, but may look to the whole petition; and if the facts alleged authorize the granting of any relief, a demurrer will not lie. Crosby v. Farmers' Bank, 107 Mo. 436, 17 S. W. 1004. See also § 30, supra. ' Bitcheooh v. Chicago, St. P. d K. C. R. Co. 88 Iowa, 242, 55 N. W. 337 ; Heath v. Eeath, 18 Misc. 521, 42 N. Y. Supp. 1987; Wathins v. WaiUns & T. Lurriber Co. 11 App. Div. 517, 43 N. Y. Supp. 41; Beale v. Hayes, 5 Sandf. C40 (complaint on contract naming penalty, with demand of judgment on it as if liquidated damages, not demurrable) ; Pevey v. Sleight, 1 Wend. 518 (declaration at common law on bond in penalty of $10 demanding judgment against surety for $90 damages, not de- murrable, but the question is for the assessment of damages) ; Ham- mond V. Cookie, 2 Hun, 495 (complaint asking cancelation of deed, partnership, and dower). See also Scheibe v. Kennedy, 64 Wis. 564, 25 N. W. 046. Under a statute imposing a single penalty for any number of violations, a complaint alleging several distinct violations and claiming a penalty for each is not demurrable for not stating a cause of action nor for misjoinder. Loveland v. Garner, 71 Cal. 541, 12 Pac. 616. A complaint stating facts sufficient to entitle complainant to an injunc- tion is not bad because it characterizes a culvert as a nuisance, when it is not; nor because the prayer for relief asks for more than complain- ant is entitled to. Patoha Twp. v. Hopkins, 131 Ind. 142, 30 N. E. 896. A complaint is not obnoxious to a demurrer because, in addition to legal relief, which the facts alleged warrant, it also prays for equitable re- lief, which is not warranted. Parker v. John Pullman & Co. 24 Misc. 505, 53 N. Y. Supp. 839. A demurrer to a bill for lack of equity cannot be sustained where com- plainants may be entitled to a part of the relief prayed for, though not to the whole. Mercantile Trust & D. Co. v. Rhode Island Hospital Trust Co. 36 Fed. 863. A complaint setting out a contract, and alleging full performance by the plaintiff of its conditions and a breach thereof by the defendants, is not demurrable because of an erroneous claim for damages, or an im- proper demand for relief. Hudson v. Archer, 4 S. D. 128, 55 N. W. 1099. A petition for the foreclosure of liens created by deeds of trust, stating that the defendants are the only heirs of the one who executed the deeds, that they are in possession of the land upon which foreclosure is sought, that no administration has been had upon the estate and that none is necessary, that there is no other debt against the estate, and that the land sought to be foreclosed is all the property of the estate subject to debts, — is not subject to general demurrer because it asks for a personal judgment against the heirs, although the plaintiff is not entitled thereto. Frost v. Smith (Tex. Oiv. App.) 24 S. W. 40. 230 BEIEF ON PLEADINGS DEMUEEEK. A complaint is not demurrable because the prayer for judgment is for a larger amount than is warranted by the facts. Howard v. Seattle Nat. Bank, 10 Wash. 280, 38 Pac. 1040, 39 Pac. 100. 'Buess V. Koch, 10 Hun, 299, Affirming 52 How. Pr. 478. • Middleton v. Ames, 37 App. Div. 510, 57 N. Y. Supp. 443. A complaint alleging facts which entitle plaintiff to a common-law judg- ment will not be dismissed because equitable relief only is asked. Thomas v. Schumacher, 17 App. Div. 441, 45 N. Y. Supp. 166. A petition which states grounds for legal relief is not demurrable becauae it prays for equitable relief. Lederer v. Union Sav. Banlc, 52 Neb. 133, 71 N. W. 954. A bill which presents a right to a part of the equitable relief prayed is not obnoxious to a general demurrer because relief may not be given in one or more special modes which are suggested in the prayer of the bill. Garrison v. Technic Electrical Works, 55 N. J. Eq. 708, 37 Atl. 741. A complaint stating facts with sufficient fulness to sustain a judgment for damages for breach of an express covenant in a contract of hire is not bad on general demurrer because it improperly asks to have the dam- ages assessed upon a quantum valeiat. Newcomi v. Imperial L. Ins. Co. 51 Fed. 725. A bill containing proper averments for foreclosure of a purchase-money mortgage is not rendered bad as a bill for that purpose by a special prayer which may be construed to seek the establishment and satisfac- tion of a vendor's lien, where there is a general prayer under which the appropriate relief may be granted. Fields v. Drennen, 115 Ala. 558, 22 So. 114. • Wickersham v. Crittenden, 93 Cal. 17, 28 Pac. 788. • Hale V. Omaha Nat. Bank, 49 N. Y. 026, cited under next section. The reason is that overruling a demurrer merely amounts to directing judgment as on failure to answer; and if no relief such as plaintiff is entitled to is specifically demanded in the complaint, another provision of the Code forbids the court from granting judgment on failure to an- swer; so that overruling the demurrer would be an empty fofm, for it would be error to enter judgment thereon. The rule rests upon the fundamental principle that the demand of relief partakes of the nature both of a notice to defendant and of an allegation of a conclusion of law. If defendant does not appear, plaintiff is concluded by his de- mand of relief, and cannot take any relief by default which he has not asked for. But if defendant answers, the demand of relief is to be treated only as a conclusion of law. A complaint stating facts entitling plaintiff to an accounting is bad on demurrer if it only demands judgment for a specific sum which the facts show plaintiff is not entitled to. Edson v. Girvan, 29 Hun, 422. Followed in Fisher v. Charter Oak L. Ins. Co. 20 Jones & S. 179, Af- firming 07 How. Pr. 191. Action to cancel deeds on equitable grounds not sustainable on demurrer merely because it stated facts which would entitle plaintiff to recover Til. FOE INSUFFICIENCY AS TO CAUSE OF ACTION. 231 in ejectment, such recovery not being demanded. After reviewing the cases, the court, Haight, J., says: "It thus appears to us that v^ere all of the allegations of the complaint are made for the pui-pose of pro- curing equitable relief, and where equitable relief alone is asked for, the complaint cannot be sustained for legal redress where no answer has been interposed." Swart v. Boughton, 35 Hun, 281. ■Complaint by receiver to adjudge defendants' transactions with the cor- poration void, and to require the defendants to produce their notes which they had procured to be suiTendered, together with the collat- erals which had been held therewith, and asking judgment against the defendants on the notes, — held, the right to equitable relief failing, plaintiff could not sustain the action against demurrer, on the ground that the facts showed he was entitled to judgment on the notes. I>aly, J., says: "The complaint is an application for equitable relief, and as the defendant does not answer, but demurs, the judgment granted could not be more favorable than that demanded in the complaint, even though averments that would be proper in setting forth a legal cause of action are embodied in the pleading." Alexander v. Katte, 63 How. Pr. 262 (Citing Kelly v. Downing, 42 N. Y. 71). ■Complaint to adjudge foreclosure void and give plaintiff leave to redeem was held demurrable because it did not make a case for the only relief to which plaintiff was entitled on the facts alleged, — namely, setting aside the sale specifically. Willis v. FairchUd, 19 Jones & S. 405; Douglass v. Winsloic, 20 Jones & S. 439. Oulbertson v. Mimson, 104 Ind. 451, 4 N. E. 57 (a cross complaint to quiet title, with alternative prayer for a judgment establishing a lien if title were not made out). ■Compare Maclcey v. Auer, 8 Hun, 180. Complaint alleging partnership, dis- solution, accounting, and a sum found due, for which judgment was demanded, but promise to pay which was not alleged, was held not de- murrable, for the facts stated entitled plaintiff to ask judgment that the accounting be adjudicated final, and defendant decreed to pay that sum. This case, it will be seen, is consistent with the principle stated in the text. But the opinion lays down the rule that the defendant "must demur to the facts alleged; and, to sustain his demurrer, he must show that upon those facts the plaintiff cannot have any relief at the hands of the court; and it is not sufficient for him to show that the relief upon such facts could not be that asked for by the complaint." In Kingsla.nd v. Stokes, 25 Hun, 107, on foreclosure of a mortgage executed by defendant as executor, joining a third person, the usual allegation that he had or claimed some interest, etc., with prayer for judgment for deficiency against the latter, was held not demurrable, the court saying: "The demurrer to the prayer for relief cannot be maintained (Mackey v. Auer, 8 Hun, 189). If the facts alleged are sufficient to afford any relief, the relief must be in harmony with the facts alleged." In Pierson v. MoCurdy, 61 How. Pr. 134, Lawrence, J., at special term, says that a demurrer for insufficiency is not sustainable unless "no cause of action whatever is stated. And the fact that the plaintiff 232 BEIEF ON PLEADINGS DEMUEEEB. may, in his complaint, have demanded relief to which he is not entitled, or may have misconceived the nature of the judgment vifhich the court should pronounce upon the facts set forth in his complaint, does not make the complaint bad upon demurrer, if those facts entitle him to any judgment or any relief." The facts are not stated sufficiently to- make this case an authority on the question. Thomas v. Farley Mfg. Co. 76 Iowa, 735, 39 jST. W. 874 (action to enjoin attachment, on facts showing right to possession. Demurrer overruled, lieed, J., says: "Under a general prayer the party may be awarded any remedy afforded by the law for the particular injury or wrong complained of"). ^Fox V. Graves, 40 Neb. 812, 65 N. W. 887. An objectionable form of prayer for relief in an answer constitutes no- ground for demurrer; and the court, upon a trial, will grant such re- lief as the facts pleaded will warrant, without regard to the prayer for relief. McOillivray v. McGilUvray, 9 S. D. 187, 68 N. W. 316. A complaint in an action to recover commissions for the sale of land, which sets forth a prayer for judgment before the allegation of the- value of the services, is not necessarily defective for that reason. Can- non V. Castleman, 24 Ind. App. 188, 55 N. E. 111. But the addition of a separate claim for damages to each count of a com- plaint is improper; the place, and the only place, for the claim for re- lief, is at the foot of the complaint, and the claim there stated, if there are several counts, covers all. Goodrich v. Stanton, 71 Conn. 418, 42 Atl. 74 (Citing Baxter v. Camp, 71 Conn. 245, 42 L. li. A. 514, 41 Atl. 803). And an action will be dismissed on the plea of no cause of action where the prayer does not ask for relief by a proper judgment under proper procedure, regardless of the seriousness of the complaints in the peti- tion. 'New Orleans d N. E. R. Co. v. Louisiana Constr. Co. 49 La. Ann. 49, 21 So. 171. 'Durham v. Stephenson, 41 Fla. 112, 25 So. 284. 'Cunningham v. Cunningham, 72 Conn. 157, 44 Atl. 41 (Citing Norwalk ex rel. Fawcett v. Ireland, 68 Conn. 1, 35 Atl. 804). 61. Relief against demurrant. If the facts show that plaintiff is entitled to judgment against the demurrant for any part of the relief demanded, the complaint is suf- ficient on demurrer.^ 'All authorities agree on this; see cases under last section. 62. — against codefendant. If the plaintiff is entitled to relief demanded as against some de- fendant, and the demurring defendant is a proper party to the action for the purpose of determining it against such other defendant, the VII. FOR INSUFFICIENCY AS TO CAUSE OF ACTION. 233 fact that plaintiff is not entitled to the only specific relief he has de- manded against the demurrant personally will not sustain the demur- ^Lord V. Vreeland, 13 Abb. Pr. 195, Affirmed in 24 How. Pr. 316, holding an action against defendant, as executor, not demurrable because it also demanded damages against him in his individual capacity. Action against assignee for benefit of creditors of an insolvent firm, join- ing the representatives of a deceased partner, and the surviving part- ners; demurrer by the surviving partners on the ground that the only specific relief asked against them was an unfounded claim for a balance remaining unpaid, not sustainable, because they were proper parties anyway. Haines v. Mollister, 64 N. Y. 1. 63. Alternative relief. To sustain a bill in equity for alternative relief the prayer must be in the alternative. If, after the first prayer for specific relief, the other prayer, whether general^ or specific,^ is stated conjunctively as for additional relief, instead of disjunctively as for alternative relief, a demurrer lies. A bill may be framed with a double aspect, and ask relief in the alternative, but the state of facts upon the relief as prayed must not be inconsistent.* One who is in doubt as to which of two kinds of relief he is entitled to may frame a prayer in the alternative, so that if he is not entitled to one he may obtain the other.* ' Colton V. Boss, 2 Paige, 396, 22 Am. Dec. 648. ' Lloyd V. Brewster, 4 Paige, 537, 27 Am. Dec. 88. Alternative relief is now expressly provided for in Cotmecticut. Trow- hridge v. True, 52 Conn. 190, 52 Am. Eep. 579. 'Zell Guano Co. v. Heaiherly, 38 W. Va. 409, 18 S. E. 611; United States Blowpipe Co. V. Spencer, 40 W. Va. 698, 21 S. E. 769. One cannot, in bringing an action on a mortgage, insist that it is valid, and at the same time ask that, if it is void, he may have a lien on the mortgaged goods because he has an equitable lien thereon, based on an unfulfilled promise to give the mortgage. Heathman v. Rogers, 153 111. 143, 38 N. E. 577, Affinning 54 HI. App. 592. A bill seeking to foreclose a mortgage executed by a married woman, and, as alternative relief, praying that, if foreclosure is denied, the mort- gage be set aside as fraudulent against her husband's creditors, and that the lands be sold as the husband's property, is bad for repugnancy, since plaintiff cannot claim under the wife's title, and at the same time repudiate it and claim a right to subject it to the title of another. By- num V. Ewart, 90 Tenn. 655, 18 S. W. 394. * Florida Southern B. Co. v. tlill, 40 Fla. 1, 23 So. 566. 234 BRIEF ON PLEADlNaS DEMUEUEB. In an action to recover the agreed price of merchandise damaged, while en route, by a heavy storm, and as to ownership of which by plaintiff or defendant while it was in the possession of the railroad company there is a controversy, averments in the answer, made for the pui-pose of an alternative prayer, that if the plaintiff recovers judgment against the defendant, defendant have judgment over against the railroad com- Ijany, show that the defendant asks relief against the company in the alternative that it is held to be the owner of the goods when in transit, and therefore liable to the plaintiff for the purchase price. Gulf, W. T. d P. R. Co. V. Browne (Tex. Civ. App.) 66 S. W. 341. See also §§ 39, 40, supra, and § 87, infra. V. OE,iEC'rio]sr that the Action I8 Pbematuee^ oe that a De- fense IS Disclosed; ANTicirATioN of Defense. 64. Prematurity not presumed. Under tKe now procedure, a complaint/ or amended complaint,^ which shows that the cause of action had not accrued at tlie time when the action was first commenced, is demurrable on tlie ground that it does not state facts sufficient to constitute a cause of action. But this rule does not apply to the complaint which shows a cause of action, ajid merely fails to show the relative time of its complete ac- crual, and that of the commencement of the action,^ unless it aifirma- tively appears on the face of the complaint that the action was brought before the time when it should have been brought,* or unless a provision of statute or of the contract in suit forbids the action un- til after the time or event in question.* But it is not always essential that the amount of recovery should be ascertainable upon facts which occurred before suit brought.'^ ' In an action to establish and foreclose a vendor's lien arising on ex- change of property, where the breach of covenant against encumbrances in regard to the property taken in exchange is alleged, the action is premature and the complaint demurrable, where no sale for such en- cumbrances is averred. Hare v. Van Deusen, 32 Barb. 92; Millett v. Hayford, 1 Wis. 401. On a motion to vacate an attachment a, complaint does not show a cause of action for services which are alleged to have been performed during a period extending "down to the commencement of this action." Smadbeek v. Sisson, 31 Hun, 582. In an action for money lent and advanced at sundry times, "up to and in- cluding this date" (the day of applying for attachment), it was held, on motion to vacate the attachment, that the complaint did not show a cause of action. Reilly v. Sisson, 31 Hun, 572. A petition in an action on a, policy of. insurance which is made a part of VII. — FOR issufficieitcy; peematuee action. 235 the petition and contains a condition that an action should not be maintained thereon unless brought within a stated time after the loss is bad on demurrer for insufiBciency, where it appears from the state- ments of the petition and from the date of its filing that the action was not begun within such time. Moore v. State Ins. Co. 72 Iowa, 414, 34 N. W. 183. A- complaint upon an insurance policy sufficiently shows that the thirty days' limit for payment had expired at the time of the commencement of the action, by avening that proofs of loss were delivered to and re- ceived by defendant before December 1, and the defendant has not paid the sum, where the complaint was filed January 7; as under the Cali- fornia Code the action is commenced by filing the complaint and issu- ing a summons thereon. Connecticut Mut. L. Ins. Go. v. McWhirter, 19 C. C. A. 519, 44 U. S. App. 492, 73 Fed. 444. A complaint seeking to have a deed absolute in form declared a mortgage is bad on demurrer, where it fails to show that the money which plain- tiff avers he borrowed of defendant was due and payable, so that the action is not prematurely brought. Cfanceart v. Henry, 98 Cal. 281, 33 Pac. 92. But a complaint in an action to enforce the individual liability of stock- holders of a corporation for a debt of the corporation under the Cali- fornia statutes, which alleges the incurring of an indebtedness by the corporation as of a specified date, is not objectionable because it also avers the execution of a note of the corporation to secure such indebt- edness. Knoiclcs V. Sandercock, 107 Cal. 629, 40 Pac. 1047. A complaint in an action for rent, brought before the end of a year from defendant's entry, which does not allege any contract for the duration of his holding, nor any custom or contract for the maturity of tlie rents, is bad, as, in the absence of such custom or contract, the ten- ancy is from year to year, under Ind. Rev. Stat. 1881, § 5208, and the rent would not be due till the end of the year where there is no agree- ment to the contrary. Indianapolis, D. & W. R. Co. v. First Nat. Bank, 134 Ind. 127, 33 N. E. 079. The abbreviation "Dr.," as used in the heading of a bill of particulars, does not indicate an indebtedness matured, or due and unpaid, so as to cure a defect in a complaint in failing to allege that the claim on which suit is brought is a matured one. Jaqua v. Shetvalter, 10 Ind. App. 236, 37 N. E. 1072. Denying Rehearing in 10 Ind. App. 234, 36 N. E. 173. But a declaration in an action on a time note need not allege that the note was due and payable at the time of the commencement of the action. Friend v. Pitman, 92 Me. 121, 42 Atl. 317 (Citing Shepherd v. Shep- herd, 1 C. B. 847 ; Lester v. Jenkins, S Bam. & C. 339 ; Maynard v. Tal- cott, 11 Barb. 569; Pugh v. Robinson, 1 T. K. 116. Distinguishing Curtis V. Hullard, 6 Met. 186. Disapproving Spears v. Bond, 79 Mo. 467). A demurrer is appropriate where the action has been prematurely brought. Dickerman v. New York, N. H. & H. B. Co. 72 Conn. 271, 44 Atl. 228; Goodrich v. Atlanta Nat. Bldg. d L. Asso. 96 Ga. 803, 22 S. E. 585. 236 BRIEF ON PLEADINGS DEMUEEEE. A petition in an action on a note which has not matuied unless there has been a default in the payment of interest and an election on the part of the holder to consider the entire amount due is subject to a general demurrer, where it appears therefrom that the note was entitled to a credit before the commencement of the suit which extinguished the interest due, and it does not affirmatively allege an election by the holder while the maker was in default. Seastrunk v. Pioneer 8av. & Lomi Co. (Tex. Civ. App.) 34 S. W. 466. ' Richards v. Brice, 13 N. Y. S. R. 728. But the defect of filing a petition before plaintiff's cause of action accnies is cured by the filing of an amendment thereof more than a year after- ward and after such cause of action accrues. Burns v. True, 5 Tex. Civ. App. 74, 24 S. W. 338. •Otherwise at common law, where the date of the commencement of the ac- tion appears by the date of the writ. Hotchkiss v. Judd, 12 Allen, 447. In equity, the tiling of the bill being the commencement of the action, the allegations sufficiently show the existence of the facts alleged before the commencement. Under the new procedure the service of the summons is the time of the commencement for this purpose in personal actions, unless, perhaps, where it appears that a provisional remedy had been previously granted. N. Y. Code Civ. Troc. § 416. Delivering the summons to the sheriff for the purpose of service does not make the action premature if no other step is taken in the suit. A complaint in an action on a note is not insufficient because it fails to al- lege that the note was payable at a specified time, as in such case it is presumed that no time was specified, and that it was accordingly pay- able at once. Niles v. Bradley, 20 Misc. 172, 45 N. Y. Supp. 818. 'Maynard v. Talcott, 11 Barb. 569 (overruling demurrer, and holding that the court must presume that the action is not premature unless the con- trary appears) ; Grimes v. Hagood, 19 Tex. 246 (the fact that the action was premature cannot be shown in support of a demun-er, by the' proof of service of summons, for that is no proper part of the record on de- murrer) ; Smith v. Holmes, 19 N. Y. 271. In Dalrymple v. Milwaukee, 53 Wis. 178, 10 N. W. 141, Lyon, J., says: "While, on demurrer, the court will not look beyond the complaint to ascertain when the action was commenced {Smith v. Janesville, 52 Wis. 680, 9 N. W. 789; Zaegel v. Kuster, 51 Wis. 31, 7 N. W. 81), be- cause the demurrer is aimed at the complaint alone, no good reason is perceived why, on a, motion to grant or dissolve an injunction, which goes to the equity of the case, the court should not consider the whole record for the purpose of ascertaining the real equities of the parties." And in Beard v. Porter, 124 U. S. 437, 31 L. ed. 492, 8 Sup. Ct. Rep. 556, it was held that as the statute requiring actions against a collector for excess of duties exacted, to be brought within the time limited, pro- vides for a bill of particulars, and as the date might appear in a bill of particulars not in the record on demuiTer, if the fact was alleged in VII. I'OE INSUFKICIEBrCY; PKEMATUKE ACTION. 237 the declaration it must be assumed on demurrer that it occurred within the statutory time. A coDjplaint which shows on its face that the action is prematurely brought is demurrable. Smith v. Jewell, 71 Conn. 473, 42 Atl. 627. A complaint by one having a contract for the sale of a hot-air heater, al- leging that plaintiff put into a building the necessary pipes and ap- purtenances to carry the heat from the furnace to the rooms, and that defendant refused to allow plaintiff to complete the work by putting the furnace in position, by reason of which plaintiff has been damaged in a specified amount, which is the full contract price, shows on its face that the action is prematurely brought, as it is a suit on the contract, where by the terms of the contract the price was not payable until a. date subsequent to the date the action was commenced. Litchfield Mfg. Co. V. Gallagher, 98 Iowa, 390, 67 N. W. 371. In an action to foreclose a vendor's lien, where it is claimed that the pe- tition shows on its face that the action was prematurely brought, an averment in the petition that the plaintiff on a certain day received u, specified sum on account of the principal note, leaving a specified bal- ance due thereon, as shown by indorsement on the back of the principal note, will be construed to mean that the payment was upon the principal note, and not upon the interest coupon notes, where the principal note is not due unless it has become so by a default in the payment of the interest coupon notes, and there is no such default unless the payment is applied to the principal. Green v. Scottish-American Mortg. Co. 18 Tex. Civ. App. 286, 44 S. W. 319. ' See cases in note 1, supra, and next section. 'Peck V. Vandemarlc, 99 N. Y. 29, 35, 1 N. E. 41, and note to Warner v. Warner, 18 Abb. N. C. 158, Affirming 33 Hun, 214, holding that on a marriage contract to give the widow a. share of her husband's estate, an action was not premature because brought to trial before debts and expenses of administration had been ascertained. 65. Violation of positive prohibition. If a public statute,^ or a provision of the contract sued on, which provision appears in the complaint,^ forbids an action to be com- menced until a specified period has elapsed or after a speciiied period has elapsed, the objection that the complaint does not show the nec- essary time is available under a demurrer on the ground that it does not state facts necessary to constitute a cause of action. ' Selover v. Coe, 63 N. Y. 438 (action against heir vinder statute requiring three years to elapse before suit can be brought) . For other cases, see Audit, § 106, infra, and Leave to Sub, §§ 353, 354, infra. The statute of limitations is an exception in many jurisdictions to this rule, because expressly required to be pleaded by answer. A complaint against a town for damages to a team from a defective high- way is not defective because it fails to allege that the action was not 238 BJSIJiF ON PLEADINGS DEMUEKBE. commenced until ten days after the next annual town meeting held after the filing of the statement of claims by plaintiff, as required by Wis. Kev. Stat. § 824, where it appears of record that the suit was in fact commenced more than a, month after the holding of the next an- nual town meeting. Welsh v. Argyle, 85 Wis. 307, 55 N. W. 412. A complaint in an action against a town for injuries caused by a defective bridge is insufficient under N. Y. Laws 1890, chap. 568, § 16, where there is no allegation that the claim was served upon the supervisor within six mouths after the cause of action accrued, or that fifteen days had elapsed after such presentation before the commencement of the action, as required by that statute. Olmstead v. Pound Ridge, 71 Hun, 25, 24 N. Y. Supp. 615 (nonsuit). This defect may be taken advantage at at any stage of the action. '' Carlerry v. German Ins. Go. 51 Wis. 605, 8 N. W. 406. The petition in an action on a fire insurance policy fails to state a. cause of action where it shows on its face that the action %vas not commenced within the time limited by the policy. Oakland Home Ins. Co. v. Al- len, 1 Kan. App. 108, 40 Pac. 928. A petition on an insurance policy payable in sixty days after the loss has been "ascertained" in accordance with its conditions must show that such time has elapsed after such ascertainment, at the commencement of the action. German Ins. Go. v. Ball, 1 Kan. App. 43, 41 Pac. 69. A complaint upon an insurance policy payable thirty days after proof of loss, alleging only the exhibition of due proof of loss and that no part has been paid, without alleging that the proof was exhibited more than thirty days before the commencement of the action, is fatally de- fective. Heiiner v. China Mut. Ins. Co. 45 N. Y. S. R. 578, 18 N. Y. Supp. 177. In an action on an insurance policy providing that a loss shall not be pay- able until sixty days after notice and proofs of loss are received, a complaint alleging that such notice and proofs of loss were made im- mediately after the fire fails to state a cause of action, where there is no allegation and it does not appear on its face that sixty days had elapsed before the commencement of the action. First Nat. Batik v. Dakota F. & M. Ins. Co. 6 S. D. 424, 61 N. W. 439. But a petition on an insurance policy providing that suit cannot be brought until the expiration of sixty days from the giving of proofs ol loss is not insufficient in failing to show that the cause of action has accrued at the time of filing the suit, where it alleges that the prop- erty was destroyed on a given date which was more than three months before suit was commenced. Pennsylvania F. Ins. Go. v. Faires, 13 Tex. Civ. App. Ill, 35 S. W. 55. 66. Enough that any relief is due at time of argument. Where the complaint does not stale the time when the action wag commenced, it is not demurrable for insufficiency as being premature. VII. FOi: INSUFFICIENCY J PREMATCBE ACTION. 239 if it shows a right to anj- relief at and before the time of the trial of the demurrer.^ ' An action on a bond was sustained because the first instalment of inter- est was due before the demurrer was tried, and perhaps was due be- fore suit commenced. Sviiih v. Holmes, 19 N. Y. 271. Leicis V. Buffalo, 29 How. Pr. 335, holding that even where the law ap- plicable to a case has been altered by the legislature pending the action, the court will dispose of issues of law arising on demuri-er according to the law at the time of trial of the issues, if it does not appear on the face of the complaint when the action was commenced. 67. Disclosure of defense. A demurrer to a cause of action containing allegations constituting a defense will be sustained, although such allegations were unneces- sary, and without them the alleged cause of action would be made out^ ^ Compton V. Hughes, 38 Hun, 377 (former adjudication disclosed, — fatal). Declaration on carrier's special contract held bad on demurrer because it showed a breach of conditions on plaintiff's own part. Norfolk d W. Ji. Co. V. Wysor, 82 Va. 250. A complaint to foreclose a mortgage, in addition to the stating of facts constituting a cause of action, also alleged the making of an agieement between the mortgagee and subsequent purchaser, which had the legal effect of discharging the mortgagor. On demurrer by the latter, it was held that the averment of the agreement should not be i-ejected, leaving it for the defendant to brii^ it to the notice of the court by answer, but the whole complaint should be considered in determining whether it states a cause of action, both the allegations that discharge, as well as those that tend to charge, the defendant. Galvo v. Davies, 73 N. Y. 211, 29 Am. Rep. 130. For other illustrations, see Illegality, §§ 311-315, infra; Laches, § 349, infra; Limitations, § 365, itifra, etc. In some jurisdictions the statute of limitations is an exception to the above rule. A complaint for recovery on warrants issued by a school district is in- sufficient where it discloses the fact that the warrants have been ad- judged invalid in a suit to which plaintiff was a party. Seattle Nat. Bank v. School Dist. No. 1,0, 20 Wash. 368, 55 Pac. 317. But a complaint in an action on a life insurance policy by the heirs and creditors of the insured, which alleges the refusal of the administrator to bring such action, is not demurrable because it sets up the unau- thorized execution by such administrator of a release of defendant company from all liability on the policy. Trotter v. Mutual Reserve Fund Life Asso. 9 S. D. 596, 70 N. W. 843. 68. — with avoidance. In equity, and under the new procedure, a complaint is not demur- 240 BRIEF ON PLEADINGS DEMUEEEE. rable because it discloses a defense, if it alleges, even kypothetically or contingently, upon such defense being interposed, facts which amount to a sufficient avoidance of that defense.^ ' By the United States rules in equity, No. 21, "the plaintiff may, in the narrative or stating part of his bill, state, and avoid by counter-aver- ments, at his option, any matter or thing which he supposes will be in- sisted upon by the defendant by way of defense or excuse to the case made by the plaintiff for relief." In equity, an anticipated defense may be stated "as a pretense," in the charging part of the bill, and avoided, without admitting it. Puter- baugh, Ch. PI. (Mich.) 2d ed. 28. After special replications in equity were disused, it was necessary to plead avoidance of a defence, by amending the bill; and the same practice was adopted vinder the Code, by giving leave to amend the complaint. Hence arose the practice in equity of inserting such allegations by antici- pation, — a practice sanctioned by the rule above stated; and the cor- responding practice under the Code, sanctioned by such cases as Chap- man V. Webb, 6 How. Pr. 390; Uollister v. Livingston, 9 How. Pr. 140; Thompson v. Minford, 11 How. Pz". 273; Everitt v. Conhlin, 90 N. Y. 645; Wins ted Bank v. Webb, 39 N. Y. 325, 100 Am. Dec. 435, AflSrming 46 Barb. 177. A plaintiff who, though unnecessarily, anticipates defendant's defen.se, must effectually show by his complaint that such defense is insufficient. Morgan v. Lake Shore & H. 8. R. Co. 130 Ind. 101, 28 N. E. 548. A complaint which states a defense, but fails to avoid it, is demurrable. Sutton V. Todd, 24 Ind. App. 519, 55 N. E. 980. A complaint .setting out a contract which was invalid under the statute of frauds, and adding that defendant, after receiving money under the contract as trustee, agreed to pay, is sufficient to state a cause of ac- tion. Harris v. Clark, 94 Iowa, 327, 62 N. W. 854. 69. Anticipation of defense. In equity, matters anticipatory of the defendant's defense may be set up; but it is not proper practice at law,^ and a complaint is not demurrable for failure to do so.^ ' Smith v. Stevenson, 30 Pittsb. L. J. N. S. 231. ' A plaintiff is not bound to anticipate the defense. American Nat. Bank V. National Wall-Paper Co. 23 C. C. A. 33, 40 U. S. App. 646, 77 Fed. 85 (Citing Fergus Falls v. Fergus Falls Water Co. 19 C. C. A. 212, 36 U. S. App. 480, 72 Fed. 873). The rule is recognized in Sherff v. Jaeobi, 71 Hun, 391, 25 N. Y. Supp. 37 (Citing Wheeler v. Millar, 90 N. Y. 354). It is no proper objection that an affidavit of clsCim does not anticipate a defense and explain matters only to be set up in defense. Meyers v. Davis, 13 App. D. C. 301. VII. I'OE INSUFiaCIENCY; PEEMATUEE ACTION. 241 A complainant cannot, under the Pennsylvania procedure act of May 25, 1887, insert in his statement matters to rebut an anticipated defense, and compel defendant to reply thereto in his affidavit of defense. HfM^ry V. Lynde, 12 Pa. Co. Ct. 189. The complaint in an action by a stockholder against a director of a mining corporation for failure to make and file weekly reports, as required by statute, need not allege that the failure was wilful and intentional, as that is a matter of defense. Miles v. Woodward, 115 Cal. 308, 46 Pae. 1076, 47 Pae. 360. Nor need the complaint in an action by the assignee of a foreign corpora- tion allege that the corporation had filed a certificate, as required by Iv. Y. !Lawrs 1892, chap. 087, § 15, as the failure to file such certificate is matter of defense. MicoU v. Clark, 13 Misc. 128, 34 N. Y. Supp. 159 (nonsuit). A complaint by a corporation on a subscription to stock, averring that the requisite amount has been subscribed, need not aver that none of the subscribers are infants, married women, or insolvents, since the fact that any subscriptions were by such persons would be matter of de- fense. Shick V. Citizens' Enterprise Co. 15 lud. App. 329, 44 N. E. 48. And a complaint alleging that plaintiff paid and advanced defendant a cer- tain sum for certain stock, and that as part of the transaction defend- ant gave plaintiff a written agreement to make good that amount to the plaintiff at any time after one year from the transfer and the re- ceipt of the money, states a good cause of action for the money, since, if there was any agreement for the return of the stock or the estima- tion of its value, it is matter of defense. Rowley v. Stcift, 67 Hun, 95, 22 N. Y. Supp. 35. One suing on a. guaranty of the payment of the purchase price of goods sold to another is not bound to affirmatively aver or prove either notice of default by the purchaser or demand on the grantor, those facts and the fact of loss therefiom being matters of defense. Shearer v. B. S. Peale & Co. 9 Ind. App. 282, 36 N. E. 455. That a school township trustee gave an acknowledgment of indebtedness for school furniture in violation of a statute forbidding him to incur any debt in excess of a fund on hand without first procuring an order from, the county commissioner, and requiring him to file a petition and give certain notice of its pendency before the commissioners grant the order, is a matter of defense which it is unnecessary to anticipate in a complaint based on the acknowledgment. A'o6?e School Furniture Go. V. Washington School Twp. 4 Ind. App. 270, 29 N. E. 935. A complaint against a carrier for failure to deliver a passenger's baggage need not aver a presentation of the clieck, since the excuse of nondeliv- eiy because of the nonpresentation of the check is matter of defense. Cleveland, C. C. & St. h. B. Co. v. Tyler, 9 Ind. App. 689, 35 N. E. 523. Failure to use proper care to procure a suitable seat in the common car is matter of defense in an action against a sleeping-car company for breach of a contract to furnish a berth. Pullman Palace-Car Co. ^. Booth (Tex. Civ. App.) 28 S. W. 719. Abb. Pl. A^ol. I.— 16. 242 BEIEF ON PLEADINGS DEMUBREE. Where one, by acceptance of a mortgage, though merely pro forma, is bound by the recitals therein affecting his interests, a. plaintiff, suing for the enforcement of such mortgage, need not set up the estoppel in his petition, since one is not bound to allege matters the materiality of which depends upon the possible plea of his opponents. Lafourche 'frwnsp. Co. v. Pugh, 52 La. Ann. 1517, 27 So. 958 (so held on error). A petition to enforce a special tax bill under the Missouri statute for street improvements, which does not state facts disclosing the invalid- ity of the bill, need not anticipate and avoid any defenses that the an- swer might set up. Seaboard Nat. Bank v. Wright, 68 Mo. App. 144. The complaint in an action on a bail bond need not allege that the default was without excuse, since excuse is matter of defense to be set up on motion to set aside the forfeiture. State v. Wrote, 19 Mont. 209, 47 Pac. 898. Want of knowledge or means of knowledge by a switchman of defects in a switch need not be averred by his administrator in an action for his death caused thereby, since contributory negligence is a matter of de- fense. Johnston v. Oregon Short Line & U. N. B. Co. 23 Or. 94, 31 Pac. 283. The declaration in an action to recover for injuries sustained by plaintiff's intestate in the course of his employment need not allege that he was not fully informed as to his surroundings and the condition of the belting where he was required to work, and that he did not continue to work there without objection, and that he did not assume the risk of injury, since these are matters of defense. Lee v. Reliance Mills Go. 21 R. I. 322, 43 Atl. 530. A petition by an employee for personal injuries alleged to have been sus- tained because of the incompetency of another employee need not af- firmatively aver that plaintiff, while working with such other em- ployee, did not know of her unfitness, such knowledge being matter of defense. Galveston Rope & Twvne Co. v. Burkett, 2 Tex. Civ. App. 308, 21 S. W. 958. A petition against a city for personal injuries sustained at a street cross- ing alleged to have been defective need not affirmatively aver that plain- tiff' had no notice of the defective condition of the crossing prior to her injury, that being matter of defense. Denison v. Sanford, 2 Tex. Civ. App. 661, 21 S. W. 784. An allegation that the insured did not come to his death by any means which by the terms of his policy would relieve the insurer is not nec- essary in an action on a policy, as the exceptions are matters of de- fense. Employers' Liability Assur. Corp. v. Rochelle, 13 Tex. Civ. App. 232, 35 S. W. 869. Failure of the insured under a live-stock policy, to comply with a provision thereof requiring him in case of sickness of, or accident to, the subject of the insurance to promptly summon the best veterinarian to be had in the vicinity, is, in an action on the policy, matter of defense which the complaint need not negative. Johnston v. N orthv;estern, Live Stock Ins. Go. 94 Wis. 117, 68 N. W. 868. VII- FOE INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 243 A complaint in an action against a telegraph company for damages to cat- tle caused by failure of defendant to deliver a message announcing that the water supply on plaintiff's cattle ranch was getting low need not set up facts excusing plaintiff from not having sufficient water for the cattle. Mitchell v. Western U. Teleg. Co. 6 Tex. Oiy. App. 527, 24 S. W. 550. A petition in an action by a married woman to recover money belonginsj to her separate estate, deposited by her in the defendant bank, need not negative the withdrawal of the money by her husband, as that is a matter of defense. Coleman v. First Nat. Bank, 17 Tex. Civ. App. 132, 43 S. W. 938. A petition in an action for conversion in selling mortgaged chattels and appropriating the proceeds in violation of the mortgagee's right, which shows that the debt originally secured by the mortgage had matured before the suit was brought, is not defective in failing to allege or show that the time for payment was not extended, since such extension is a. matter of defense. Cone v. Ivinson, 4 Wyo. 230, 35 Pac. 933. A declaration upon a contract to cut and saw into lumber the timber on certain land, providing that the defendants might retain part of the contract price and pay the contractor's employees and for supplies, need not show that defendant has not so applied the moneys earned, but it is matter of defense which must be pleaded. Warlc v. Curtis, 10 Manitoba Rep. 201. VI. Paeticulae Subjects of Allegation (Alphabetically Ae- eanged). [Further illustration of these rules, and other rules which may often be invoked on demurrer, will be found in volume II., Issues of Fact. Eules as to what is a conclusion of law are to be taken with the qualification that this question often depends on whether the matter is directly or collaterally involved.*] *Text writers have sought to define what is a conclusion of law, by analy- sis of the conception itself; but in practice it is necessary to notice also that a proposition may be for one purpose a conclusion of fact good on demurrer, and for another a conclusion of law bad on demur- rer. Thus, if I sue for goods sold, a mere allegation of indebtedness is a conclusion of law; if, after getting judgment, I sue to set aside a fraudulent conveyance, an allegation of the indebtedness as the founda- tion of the judgment is a matter of fact. To take a still more striking illustration : If I merely allege that A and B were partners, tSia is good as an allegation of fact; but if I set forth a contract between them and allege that they were partners under it, this is a conclusion of law. The best discussion of the philosophic distinction between "law'' and "fact" is in Professor Thayer's article in 4 Harvard Law Rev. 147. 244: beief 0]s* pleadings demubeee. Abbeeviations. See also Documents, §§ 246-274, infra. 70. General rule. Under the general rule that pleadings must he in the English lan- guage, in fair, legible character, and in words at length, and not ab- breviated, except by such abbreviations and numerals as are in com- mon use,^ a pleading is not made demurrable by using an abbrevia- tion, if it be such as is in common use in the English language, even though the phrase for which the abbre^'iation originally stood be Latin.2 'The general rale is thus edified iti X. Y. C«dp Oiv. Proc. § 22: "Each . . . pleading or other proceeding in a court, or before an officer, must be in the English language, and, unless it is oral, made out on paper or parchment, in a, fair, legible character, in words at length, and not abbreviated. But the proper and known names of process, and technical words, may be expressed in appropriate language, as now is, and heretofore has been, customary; such abbreviations as are now commonly employed in the English language may be used; and num- bers may be expressed by Arabic figures or Roman numerals in the cus- tomary manner." It is not error to abbreviate thus in a declaration, "damages one thous. dollars," though the practice is not to be com- mended. Rice V. Buohwncm, 1 Ohio Dec. Reprint, 56. In Odd FellowB Bldg. Asso. v. Eogan, 28 Ark. 261 (mechanic's lien: sher- iff's return of sei-vice made of within writ on "Peter Brugman, Pres- ident O. F. B. A." He was described in the writ as president of the Odd Fellows Building Association), Bennett, J., said: "While we are willing to admit that abbreviations should be very sparingly employed, if at all, in formal and important legal docviments, yet they are of fre- quent use; and if, by using the initial letters of words, instead of the words at length, the same meaning is conveyed, it would not be con- sidered as so informal as to make the abbreviation of no significance. If the abbreviation, taken in connection with the remainder of the writing and subject-matter, can be clearly understood, and not be am- biguous, it must have the same effect as if the words were written in full." - The abbreviation "&c." is English, and will not render a plea demurrable on the ground that it is expressive of Latin words. Berry v. Osiorn, 28 N. H. 279. Action for assault and battery and imprisoning. Objection was taken to the pleas that they did not answer the whole declaration, for that ;i battery was alleged and not answered. The introductory all^ation was "as to the assaulting, &c., the said plaintiff, and imprisoning." Held, that this was broad enough. "The beating is included in the '&c.' well enough without setting it out at length." Bryan v. Bates, 15 111. 87. VII. FOE INSUFFICIENCY ; PAKTICULAE AI.LEGATIONS. 245 Under the Code practice such an answer miglit be open to the objection of being evasive. Demurrer to plea in abatement. The abbreviation "vs." stands for "versus." And "vs." and "versus," from long use, have been grafted on the English language, and are as appropriate as the word "against" in legal proceed- ings. I^mith V. Butler, 25 N. H. 521. Whether the letters "L. S." suffice as a copy of a seal in the copying or en- rolling of a legal precept, see § 156, infra. A complaint which alleges that the plaintiff paid the defendant a sum of money for the privilege of delivering a certain quantity of wheat at a. fixed price within a given time, setting forth the receipt for the money, in which it is agreed that the plaintiff shall have the privilege of de- livering the alleged quantity of "S 87 wheat;'' and alleging that the- defendant refused to receive it, — states facts sufficient to constitute a, cause of action, and is not demurrable because it does not aver the meaning of "S 87 wheat." Berry v. Kowalsky, 95 Cal. 134, 30 Pac. 202, Affirming 27 Pac. 286. Ability. 71. Ability to perform an act. An allegation that defendant has fa.iled and refused to pay, al- though "able to do so," is not suf&cient to show a right of action on a promise to pay when defendant "might feel able to pay."^ A complaint against a carrier for violation of its duty to transport freight offered need not aver its ability to do so.^ ^Pistel V. Imperial Mut. L. Ins. Co. 88 Md. 552, 43 L. R. A. 219, 42 Atl. 210. « Chicago, St. L. & P. R. Co. v. Wolcott, 141 Ind. 267, 39 N. E. 451 ; Pitts- burgh, C. C. d St. L. M. Co. V. Racer, 5 Ind. App. 209, 31 N. E. 853. Acceptance. For Acceptance of DeliveiT, see Contracts, §§ 152-196, infra; Delivebt, § 24, infra. 72. Acceptance of bill or contract. An allegation that a person accepted a bill of exchange is sufficient, on demurrer, as implying that he accepted it in writing; for under the statute there can be no valid acceptance except in writing.^ One who seeks to avail himself of the benefit of and enforce a con- tract to which he is not in terms a party, although made for his bene- fit, must state clearly the doing of some specific act by which he has adopted it and made himself a party to it.^ 24() BEIEF ON PLEADINGS DEMUEEEE. Allegations of the performance of acts only consistent with the adoption of a contract sufficiently aver that one has assumed and ac- cepted it.^ ' Bank of Lowville v. Edwards, 11 How. Pr. 216. In an action by the indorsees of a bill of exchange against the drawer, an allegation of acceptance implies that the drawee accepted, that the bill was before him. for that purpose, and that he had sight thereof. De- murrer sustained on other grounds. Qraham v. Maohado, 6 Duer, 514. So, a declaration alleging that defendant proposed in writing to pay a specified sum for a, deed by plaintiff to certain lands, which proposal plaintiflf accepted, is sufficient without alleging that the acceptance was in writing. Kroll v. Diamond Match Go. 106 Mich. 127, 63 N. W. 983. ' Dexter v. Sayward, 51 Fed. 729. A petition by a trustee in a deed of trust for creditors, to recover prop- erty attached by a creditor of his grantor, must allege that some of the creditors had accepted before the levy of the attachment, to show that the deed had become effective before the levy. Tittle v. VanUer, 89 Tex. 174, 37 L. R. A. 337, 29 S. W. 1065, 34 S. W. 715, Beversing (Tex. Civ. App.) 27 S. W. 736. 'Eorshy v. Eelena Consol. Water Co. 13 Mont. 229, 33 Pac. 689, holding that a complaint which alleges that the plaintiff had entered into a contract with a water company, by which it agreed to furnish him with water; and that the defendant had "assumed" the contract, sub- stituted itself for the old company, and performed acts only consistent with the adoption of the contract, — sufficiently states defendant's as- sumption and acceptance of such contract (Citing Wiggins Ferry Go. V. Ohio & M. B. Co. 142 U. S. 408, 35 L. ed. 1059, 12 Sup. Ot. Eep. 188) . A complaint in an action against a drawee to recover upon a draft is not insufficient for failure to allege that the drawee agreed to accept the draft, or did accept it, where it did allege that he agreed to pay it. Gambrill v. Brown Hotel Go. 11 Colo. App. 529, 54 Pac. 1025. Accident. 73. Sufficiency of averments. A complaint in an action on a policy of insurance against deatli from "external, violent, and accidental means," is insufficient where there are no facts alleged showing that the injuries resulting in death were inflicted or were received accidentally.* ' 'Newman v. Raihoay Officials £ Employees' Acci. Asso. 15 Ind. App. 29, 42 N. E. 650. But in an action brought against an accident association by a bcneficiaiv, the complaint STifficiently avers the accidental death of the insured, VII. FOE INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 2-17 ■where it is alleged that on a specified date the insured was killed, and that his death resulted solely from physical bodily injuries proceeding from and inflicted by external, violent, and accidental means, which produced immediate death. Railway Officials Acci. Asso. v. Armstrong, 22 Ind. App. 406, 53 N. E. 1037. Accord and Satisfaction. 74. SuiScienoy of averments. An allegation that a specified amount remaining due was duly paid, with the information that it was in full of all claims, and was received with the knowledge that it was so paid, sufficiently states an accord and satisfaction, although there is no averment that there was any dispute between the parties, or that the money was received as an accord and satisfaction.^ ^Lindsay v. Gager, 11 App. Div. 93, 42 N. Y. Supp. 851 (Citing Fuller v. Kemp, 138 N. Y. 231, 20 L. R. A. 785, 33 N. E. 1034; Nassoiy v. Tom- linson, 148 N. Y. 326, 42 N. E. 715; Lestienne v. Ernst, 5 App. Div. 373, 39 N. Y. Supp. 199). But a plea of accord and satisfaction of a judgment sued on is insufficient where it shows that plaintiff agreed to accept the perfonnance of de- fendant's promise to pay less than the full amount of the judgment in satisfaction thereof, and not that he agreed to accept defendant's prom- ise itself in satisfaction, and the full amount agreed upon has not been paid. Thurmond v. Bank of the State (Tex. Civ. App.) 27 S. W. 317. Account. 75. General foi-m of pleading indebt- 77. Account or particulars coupled edness on account. with pleading. 76. "Justly d\ie." 78. Sufficiency of defenses. Tor Allegations Sufficient to Claim Accounting in Equity, see §§ i5-i9, supra. 75. General form of pleading indebtedness on account. A complaint which alleges in effect that defendant is indebted to plaintiff in a specified sum upon an aocotmt, — as, for instance, for goods sold and delivered by plaintiff to defendant, at a time and place specified •,'^ or upon an account for services of a specified nature ren- dered by plaintiff to defendant, up to a date named f or for use and occupation of specified premises, etc., etc.,' and that there is now due* a specified sum, for which judgment is demanded, — though very gen- eral in form, is sufficient on demurrer. ' Allen V. Patterson, 7 N. Y. 476, 57 Am. Dec. 542. 248 BEIEF OTT PLEADINGS DEMUKEEE. TFise V. Eogan, 77 Cal. 184, 19 Pao. 278, so lioldlng even though defendant was sued as an administrator. His remedy is to demand a copy of the account. A complaint for the recovery of money, alleging that plaintiff sold and de- livered certain goods to defendant at prices named, which were reason- ably worth the amount charged therefor, and th&,t defendant promised to pay that amount a certain number of days after the sale and deliv- ery, but that such time has elapsed, and no payment has been made, and the amount is still due, — states a cause of action. Cone Eacport & Commission Co. v. Poole, 41 S. C. 70, 24 L. R. A. 289, 19 S. E. 203. A declaration in an action against a guarantor in writing of the payment of an account for goods, which sots forth the account and a cojjy of tlie contract of guarantj', and alleges refusal to pay the account, and that the creditor stated to the guarantor "that his guaranty would he ac- cepted, and that it was accepted," — is sufficient to entitle the plaintiff to a recovery. Sims v. Clarh, 91 Ga. 302, 18 S. E. 158. But a complaint alleging that defendant is indebted to plaintiff in a sum named upon an account for goods sold and delivered at his request, not stating by whom the goods were sold, does not state facts sufficient to constitute a cause of action. Pioneer Fuel Co. v. Eager, 57 Minn. 70, .58 N. W. 828. A complaint to set aside a judgment sufficiently shows the character of the original action by stating that it is on an account, with the fur- ther allegation that defendant never bought any goods of plaintiff. Durre v. Broum, 7 Ind. App. 127, 34 N. E. 577. For the Rule where no Account is Mentioned, see Indebtkdness, § 317, infra. ' Beekman v. Plainer, 15 Barb. 550. •A complaint upon an itemized account, wherein it is alleged that the de- fendant "is indebted" to the plaintiff in a specified sum of money "for the rent, use, and occupation of" certain lands belonging to his decedent, shows a present mature indebtedness, and is sufficient to withstand a demurrer for the want of facts. Ketcham v. Barbour, 102 Ind. 576, 20 N. E. 127 (Citing Mayes v. GoldsmAth, 58 Ind. 94; Heshion v. Julian, 82 Ind. 576). In all the above cases the complaint referred to an account. The decisions liave not been regarded as holding that a bare allegation of indebted- ness for specified considerations, in a. complaint which is not thus founded on an account, is sufficient against a motion to make more def- inite and certain. In Wills v. Churchill, 78 Me. 285, 4 Atl. 693, it was held that such a com- plaint referring to an account annexed was good even against special demurrer, at common law. Foster, J., said: "Admitting that every item to which objection has been raised may be the subject of a distinct contract, yet each one is alleged with sufficient particularity to admit proof in support of the same. Every item is a bill of particulars. The office of a declaration is to make known to the opposite party and the court the claim set up by the plaintiff. To such claims the defendant VII. FOE mSUFFICIENGY ; PAETIGUT.AK ALLEGATIONS. 249 is called to answer, anil to no others. But M'liat more specific claim need be alleged than that wherein the plaintiff sets out that on a cer- tain day he performed labor for the defendant, and in the same charge carries out a price which he seeks to recover for that labor ; or that he paid, on a particular day, a specified sum for freight, for which he also seeks a recovery? For the legal meaning of the charge may be read along with it. (Gape Elizabeth v. Lomhard, 70 Me. 399.) The objec- tion that the particular kind of labor perfoi iiied each day is not speci- fied in addition to the general term 'labor' is not tenable." A complaint which alleg-es that the defendant is indebted to the plaintifi^ in a sum named, upon an account for money expended and commissions for the purchase and sale of merchandise as his agent, as more fully appears by certain accounts annexed and made a part of the complaint, and that the same is due and payable, and no part has been paid, — is sufficient on demurrer. Eentz v. Miner, 46 N. Y. S. R. 630, 18 N. Y. Supp. 880. But a complaint on an account which does not state the natvire of the dealings between plaintiff and defendant is insufficient under a statute requiring a statement in plain and concise language, so that a person of common understanding may know what is intended. Oise v. Cook, 152 Ind. 75, 52 N. E. 454. *An allegation that there is due plaintiff on an open account a balance of $200 is a mere conclusion of the pleader, and not the statement of a fact. Gise v. Cook, 152 Ind. 75, 52 N. E. 454. , But a complaint for a money demand upon a contract, express or implied, must show in some manner that the debt, or some part thereof, is due and unpaid. Jaqua v. Sheicalter, 10 Ind. App. 234, 36 N. E. 173, 37 N. E. 1072. And a petition which fails to aver that the debt sued for is due is fatally defective where the omission cannot be supplied by any inference de- ducible from any or all of the allegations in the petition. L. Bauman Jewelry Go. v. Bertig, 81 Mo. App. 393. 76. "Justly due." Under a statute or rule of court allowiug a short form of pleading on an account, by alleging that the sum thereon is justly due, an al- legation of the sum claimed, without saying it is justly due, is bad on demurrer.^ ^Schafcr v. Brotherhood of Carpenters, 22 W. N. C. 312. 77. Account or particulars coupled with pleading. Where an account or statement of particulars filed or served is- effectually made a part of the pleading,— as, where it is expressly re- quired by statute as a part of the pleading,—^ the pleading is to be treated, on demurrer, as if the particulars appearing in the account,. 250 BEIEF ON PLEADINGS DEMtJEEEK. etc., had been axjtually incorporated in the pleading.^ Otherwise, of a bill of particulars served as at common law.* A complaint which sets out or describes the account sued on is suf- ficient, and a more particular statement need not be filed as an ex- hibit unless called for by special motion.* But a complaint on an ac- count, which alleges that each party kept his account., is insufficient, where neither the account nor a copy of it is filed with the complaint or otherwise made a part of it, as required by statute.^ Under a statute providing that in an action founded upon an ac- count, it shall be sufficient for the party to give a copy of the account, with all credits and indorsements thereon, and to state that there is due him a specified sum which he claims, a petition is not demurrable for failure to state a cause of action, where the facts stated in the ac- count attached, in connection witVi those stated in the petition, show tlie liability of the defendant to the plaintiff.® 'As to Statutes in Several of the States, see Documents, §§ 246-274, infra. 'Wills V. Churchill, 78 Me. 285, 4 Atl. 693; Wright v. 8miih, 81 Va. 777 (Citing Starkweather v. Kittle, 17 Wend. 20). A petition may, where its sufficiency is challenged, be read in connection with an account attached and referred to therein. Connor v. Heman, 44 Mo. App. 346. But the account setting forth the items of the plaintiff's claim, which the statute requires to be filed in a suit in assumpsit, is not a part of the declaration, and cannot be considered upon a demurrer to the pleading. Booker v. Donohoe, 95 Va. 359, 28 S. E. 584 (Citing George Campiell Co. V. Angus, 91 Va. 438, 22 S. E. 167). Objections taken to an account, a, copy of which is annexed as an exhibit to the complaint to foreclose a materialnxan's lien, cannot be considered on demurrer to the complaint. Rust-Owen Lumber Co. v. Fiteh, 3 S. D. 213, 52 N. W. 879. "See BiLT. OF Particulars, § 114, infra. ' Adamson v. Shaner, 3 Ind. App. 448, 29 N. E. 944. 'Gise V. Cook, 152 Ind. 75, 52 N. E. 4.54 (Citing Peden v. Mail, 118 Ind. 556, 20 N. E. 493; Lassiter v. Jackman, 88 Ind. 118; Con/nersville v. Connersville HydrauUe Co. 86 Ind. 235; Wolf v. Schofield, 38 Ind. 175). So, a petition is insufBcient, under Mo. Code Prac. § 2075, where it sets out a bank account without stating the items, or attaching an itemized ac- count thereto, though it states that such itemized statement is at- tached. Chillicothe Sav. Asso. v. Morris, 52 Mo. App. 612. And a pleading in which the only cause of action is for "money due as per account bereto attached and marked 'exhibit B,' " fails to state a cause of action where no exhibit is attached. Home F. Ins. Co. v. Arthur, 48 Neb. 461, 67 N. W. 440. ■^H- ^OB INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 2 5 1 But the petition in an action against some of the members of a fiim to re- cover for part of a bill of goods sold to the firm need not set out an account, where it does not appear that any account was ever made. Wheeling Corrugating Co. v. Yeach, 7 Ohio S. & C. P. Dec. 521. And a complaint in an action on an account, alleging that plaintiff was a, broker and commission merchant and advanced a stated sum for de- fendants, at their instance and request, in the purchase of certain prod- ucts, and that defendants promised to pay such sum to plaintiff, but failed to do so, although often requested, — is not uncertain or ambigu- ous, but is sufficient under Cal. Code Civ. Proc. § 454, nialcing it un- necessary to set forth the items of account alleged in a complaint, but requiring a copy of the account to be delivered to the adverse party within five days after demand. Rogers v. Duff, 97 Cal. 66, 31 Pac. 830. * McArthur v. H. T. Clarke Drug Go. 48 Neb. 899, 67 N. W. 861. The statement of account is not defective because the facts are stated in a different fonn from that prescribed by the statute. Fletcher v. Co-op- erative Pub. Co. 58 Neb. 511, 78 N. W. 1070. A statement averring that defendant is indebted to plaintiffs in a sum named for goods sold and delivered upon an account which is attached, and which is a, true and correct copy of plaintiffs' book of original en- try, in connection; with such copy showing the various items of goods furnished and the date of sales, sufficiently states a cause of action. Terriherry v. Broude, 173 Pa. 48, 33 Atl. 699. An account annexed in assumpsit, showing a sale of two articles for a specified amount in gross, without giving the separate price of each, is sufficient, as both may have been sold for a gross sum. Milliken v. Waldron, 89 Me. 394, 36 Atl. 630. But a declaration on an account for labor performed and material fur- nished is demurrable where the account annexed merely shows the bal- ance due on a certain date, and the payments made thereon, and the price of the work contracted for; or the items constituting the balance do not appear. Turgeon v. Cote, 88 Me. 108, 33 Atl. 787. And a statement of claim alleging that it is for merchandise sold, fur- nished, and delivered on a certain date, to which is annexed a copy of book account containing only a charge for merchandise on a date fif- teen days before that mentioned in the statement, without any state- ment of items, — is insufficient. Loei v. Heere, 19 Pa. Ct. Ct. 641. And a petition on an account for merchandise sold and delivered, refer- ring, as an exhibit, to an account annexed thereto, which sets out many items merely by date and amoimt, as cash paid and cash received from collateral, and gives the total amount of the items, is insufficient; and the defendant has a right to a more specific statement of the items composing the account. Ralston v. Aultman (Tex. Civ. App.) 26 S. W. 746 (Citing Love v. Doak, 5 Tex. 343; May v. Pollard, 28 Tex. 678: Weatheiiord, M. W. & N. W. R. Co. v. Granger, 85 Tex. 574, 22 S. W. 959; Leverett v. Wherry, 4 Tex. App. Civ. Caa. (Willson) § 186, p. 284). 252 BRIEF ON PI/BADIJIGS DEMUKKEK. 78. Sufficiency of defenses. An allegation in an affidavit of defense, that items of account which ■were originally charged to others were afterward charged to defend- ant, is instdfieient where it fails to deny the indebtedness sued for.^ An affidavit of defense aven-ing that the copy of book entries at- tached to plaintiff's statement is defective is insufficient where it fails to deny averments that the sum sued for is justly due, and that the work charged for was done at tlie defendant's request.^ It is not sufficient for defendant to file an affidavit that he owes nothing to plaintiff "because of goods damaged and returned," where plaintiff has filed an itemized statement of claim ; but defendant must state with all possible accuracy which of the articles named in the claim were damaged and returned, giving circumstances and dates.* 'Ashman v. Weigley, 148 Pa. 61, 23 Atl. 897. An affidavit of defense in a suit against a married woman upon a book ac- count, that the goods were charged to defendant's husband, is insuffi- cient where the copy filed shows a charge ug-ainst her, and no pule to produce the original book is taken by defendant, since the court must assume that the copy filed is a true copy. JJarrnr v. Croney, 2 Pa. Dist. R. 375. 'Ashman v. Weigley, 148 Pa. fil, 23 Atl. 897. But an afiidavit of defense in assumpsit upon a book account of goods sold and delivered, that the copy of book account attached to the plaintiff's statement is not a true and correct one, as it consist? of figures only, and that defendant will require the books of plaintiff in court for ex- amination, and that the copy of the book account is not signed by plain- tiff or any person for him, is sufficient. Freeman Bros. v. Refowich, 20 Pa. Co. Ot. 17. 'Kress Stationery Co. v. Hallock, 7 Kulp, 313. Account Stated. 79. Sufficiency of averments. The pleading is sufficient if it sets forth the fact that the account was stated between the parties, that a certain sum was found due from one to the other, and that such sum is not yet paid.^ It is unneces- sai-y for the complaint to set forth the subject-matter of the original debt;^ or, in the absence of a demurrer on that ground, to allege a promise to pay.* That an account stated, upon which action is brought, was signed bv another person on Ijehalf of the defendant is not material on demurrer to the complaint for want of facts sufficient to constitute a cause of action.* ' Moss V. Lindllom, 39 App. Div. 586, 57 X. Y. Supp. 703. VII. FOE INSUFFJCIEJrOY ; PAETICULAE ALLEGATIONS. 253 But in Dot: is v. Boswell, 77 Mo. App. 294, a petition alleging that defend- ants were indebted to plaintiffs for a balance due for goods, wares, and merchandise, after making a eextain credit upon account stated in a certain siun, "as appears by s,tated account hereto attached and made part of this petition," was, on error, held insufficient as a declaration upon account stated. 2for does an allegation in a complaint for professional sei-vices, that the fact set forth by plaintiff as constituting his cause of action "stands as account stated by bills rendered and agreed to," make the cause of action one upon an account stated, as it is a, mere conclusion. NicoU T. Haas, 5 App. Div. 206, 39 N. Y. Supp. 205. 'Moss V. Lindllom, 39 App. Div. 580, 57 N. Y. Supp. 703 (Citing Schutz v. Morette, 146 N. Y. 137, 40 N. E. 780). An account stated is a mere acknowledgment of the amount of the existing liability between the parties. From it the law implies a promise to pay the admitted amount. Thereby arises a new and independent cause of action so far that a recovery may be had without setting forth or proving the original contract or accounts, or the separate items of liability from which the balance results. Partridge v. Butler, 113 Cal. 320, 45 Pac. 678 (Citing Coffee v. Williams, 103 Cal. 550, 37 Pac. 504; Throop V. Sherwood, 9 111. 92; Chace v. Trafford, 116 Mass. 529, 17 Am. Kep. 171; Foster v. Allanson, 2 T. R. 479; Bonslog v. Garrett, 39 Ind. 338 ; Heinrich v. Englund, 34 Minn. 395, 26 JSf. W. 122 ; 2 Greenl. Ev. § 127). ' Ward V. Stewart, 103 Ga. 260, 29 S. E. 872. "if OSS V. LindUom, 39 App. Div. 587, 57 N. Y. Svipp. 703 (Citing Gharman V. Henshaw, 15 Gray, 293). Adverse Claim. 80. Formal allegation not essential. 82. Sufficiency of averments. 81. Insufficient if facts alleged show validity. 80. Formal allegation not essential. Allegations setting forth the respective claims of parties sufficiently to show that the claims are in hostility to each other are sufficient, without adding a formal allegation that defendant's claim is adverse to the plaintiff's.^ In an action to quiet title, the complaint need not define the adverse claim of the defendant.^ ^Kitts V. Willson, 106 Ind. 147, 5 N. E. 400 (cross-complaint; Citing Sec- ond Vat. Bank v. Corey, 94 Ind. 457 ) . In an action by aji heir to ha,ve a widow's conceded dower set off, an alle- gation that she claims the dower is not necessary. Linden v. Doetsch, 40 Hun, 239. 254 BRIEF ON PI.EADINGS DEMURKEE. A petition in the nature of a bill quia timet need not affirmatively aver the nature of the adverse claim and point out its effect. Whipple v. Eariclc, 93 Ky. 121, 19 S. W. 237. In an action under Wis. Rev. Stat. § 3180, to remove a cloud on the plain- tiff's title, it is sufScient if the facts constituting the adverse claim are alleged; and that the defendant makes a hostile claim to the property need not be pleaded. Broderick v. Gary, 98 Wis. 419, 74 N. W. 95. But a complaint in an action by a trustee, instituted solely for the pui'pose of asking the advice of the court as to the execution of his trust, is bad on demurrer where there is no allegation of conflicting claims. Craw- ford V. Winston, 34 App. Div. 457, 54 N. Y. Supp. 246. An averment in a, petition to set aside a deed, that certain parties "claim some right, title, or interest in said premises, the exact nature of which is unknown to the plaintiff, and which is a cloud upon the title to said premises," — is a sufficient statement of a cause of action upon a demur- rer. Quibell V. Morris, 71 Hun, 38, 24 N. Y. Supp. 498. The allegation in a. petition that certain parties named are "setting up some pretended claim to the land" attached by plaintiff, although very general, presents a cause of action against them and does not subject the petition to general demurrer. Moody v. First Nat. Bank (Te.Y. Civ. App.) 51 S. W. 523. ' Upon an allegation that the plaintiff is the owner in fee simple and in pos.^ession, without defining the adverse claim, the one who asserts it must either disclaim or allege and prove the estate or interest which he claims. Amter v. Gonlon, 22 Colo. 150, 43 Pac. 1002 (Citing Ely V. New Mexico & A. R. Co. 129 U. S. 291, 32 L. ed. 688, 9 Sup. Ct. Rep. 293; Starh v. Starr, 6 Wall. 402, 18 L. ed. 925; Curtis v. Sutter, 15 Cal. 259; Rough v. Simmons, 65 Cal. 227, 3 Pac. 804; Wall v. Magnes, 17 Colo. 476, 30 Pac. 56). One who seeks to have his title quieted need not specifically set forth the claim of the defendant. It is enough to aver that the defendant claims some title adverse to that asserted by the plaintiff. This rul» is de- rived from the common-law doctrine that it is not necessary to particu- laily plead matters which are peculiarly within the knowledge of the defendant. McPheeters v. Wright, 110 Ind. 519, 10 N. E. 634 (Citing Marot V. Germania Bldg. & Sav. Asso. No. 2, 54 Ind. 37 ; Jeffersonville, M. & I. R. Co. V. Oyler, 60 Ind. 383; Woodworth v. Zimmerman, 92 Ind. 349; Rausch v. United Brethren in Christ Church, 107 Ind. 1, 8 N. E. 25). The complaint in an action to quiet title need not contain a description of the title asserted by defendant, but it should allege facts showing that defendant is setting up a claim of title or right hostile to plaintiff's title. Campbell v. Dimey, 93 Ky. 41, 18 S. W. 1027. 81. Insufficient if facts alleged show validity. In those classes of cases where a general allegation of an adverse claim in the complaint is snfticient to pnt upon the defendant the bur- VII. FOE INSUFFICIENCY J PAETICULAE ALLEGATIONS. 255 den of pleading and proving a sufficient claim, if beside or instead of such general allegation the plaintiff sets forth the facts on which it is based, and they are in law sniHoient to substantiate the claim, the complaint is demurrable.^ '^ People ex rel. Caton v. Ottawa HydrauUo Co. 115 111. 281, 3 N. E. 413, 416 (quo warranto) ; McPheeters v. Wright, 110 Ind. 519, 10 N. E. 634 (action to quiet title). 82. Sufficiency of averments. A complaint in an action to determine the right to real property and to quiet the plaintiff's title is sufficient where it shows that plain- tiff has a valid, subsisting interest in the property described, and that the defendants either claim title to the property adversely to him or wrongfully hold possession thereof.^ ^Boyd V. Schott, 152 Ind. 161, 52 N. E. 752. A paragraph of a complaint alleging that plaintiff is the owner and enti- tled to the possession of certain land; that one of the defendants holds possession of it without right, and for six years has unlawfully kept plaintiff out of possession, to his damage; that the remaining defend- ants claim some interest in the land adverse to plaintiff, which claim is without right, and a cloud on plaintiff's title; and demanding judgment for possession, and to have his title quieted, — states a cause of action. Cargar v. Fee, 140 Ind. 572, 39 N. E. 93. A complaint to determine adverse claims to realty, under Cal. Code Civ. Proc. § 738, providing that an action may be brought for the purpose by any person against another who claims an adverse interest, and 5 380, providing that in an action by a person out of possession the per- son making the adverse claim and the one in possession may be joined, and plaintiff may, upon recovery, have a writ of possession, need not al- lege that plaintiff is out of possession, to entitle him to such writ. Landregan v. Peppin, 94 Cal. 465, 29 Pae. 771. A complaint alleging that plaintiff is the owner in fee of specified land, which is vacant and unoccupied, and to which defendants claim some title adverse to plaintiff, which claim of defendants is void in fact, concluding with a prayer for relief appropriate in an action to deter- mine adverse claims to real estate, under Minn. Gen. Stat. 1894, chap. 75, § 5817, states a cause of action under such statute, notwithstand- ing an unnecessary allegation that u. specified defendant "claimed" to have an interest in the land and executed a, deed thereof to a speci- fied person, whose claim was adverse to plaintiff's existing title, and who, for a valuable consideration, conveyed to plaintiff all his interest therein ; and that before the prior deed was recorded the grantor there- in fraudulently executed a quitclaim deed to one who conveyed to the gi-antor's wife. Bovey-De Laittre Lumher Co. v. Dow, 68 Minn. 273, 71 N. W. 2. 256 BBIEF ON PLEADINGS DEMaEEEE. A complaint framed as one to remove a, specified cloud from the title, which eaimot be sustained as a bill in equity for that purpose, will be sustained as a complaint in a statutory action to determine adverse claims, if sufBeient for that purpose, under Minn. Gen. Stat. 1894, § 5817, authorizing the bringing of sucli an action against any person who claims an adverse estate, lien, or interest, for the purpose of de- termining such adverse claim. Palmer v. Yorks, 77 Minn. 20, 79 N. W. 587. Overruling Walton \. Perkins, 28 Minn. 413, 10 N. E. 424; Kundson v. Curley, 30 Minn. 433, 15 X. W. 87-5. An allegation in the complaint in an action to determine the claims of parties to real estate, that defendant "unjustly claims an estate or in- terest therein adverse to that of plaintiff, — to wit, the adverse claim that he is seised of such premises in fee," — sufficiently shows the claim of defendant, under X. Y. Code Civ. Proc. § 1639, subd. 3, requiring the complaint to set forth facts sliowing that defendant claims an estate or interest or easement therein, or lien or encumbrance thereon. Kitifj V. Townshend, 78 Hun, 380, 29 N. Y. Supp. 181. A complaint in an action to quiet title to land, under Dak. Comp. Laws, § 5449, providing that any person may maintain an action against an- other who claims an estate or interest in land adverse to him, to de- termine the adverse claim, which alleges that plaintiff "is the absolute and unqualified owner of land in fee simple,'' and that defendant wrongfully, and mthout right, claims an interest in the land by virtue of an alleged purchase at tax sale, which claim is "unjust and wrong- ful and without any foundation in law or fact," and is made adversely to plaintiff's ownership and title, — states a cause of action. Clark \. Darlington, 7 S. D- 148, 63 X. W. 771. A petition alleging that plaintiff was lawful!}' >eised and possessed of de-^- ignated land, held the title in fee simple thereto, and that defendaiu was setting up a pretended claim to the land which cast a, cloud on plaintiff's title, and praying for judgment quieting his title, is gooil against a. general demurrer. Werner v. Kasten (Tex. Civ. App.) 26 S. W. 322. Adveese Po.ssf.ssion. 83. Sufficiency of averments. The averment in an answer that defendant has been for a lonj; term of years in adverse, continuous, and peaceable possession of land is an averment of fact, and not a conclusion of law.^ Allegation of title by adverse possession for more than t\vent%' years of part of a so-called street by plaintiff and those under whom she claims is insufficient where it fails to negative the dedication of the street to public vises, or to show any privity between plaintiff and those whom she succeeded in occupancy."- ' Gilreath v. Furman, 53 S. C. 463, 31 S. E. 291. VII. FOE INSUiai-lCIENCY ; PAETICULAE ALLEGATIONS. 257 A demui-rer to a bill in a suit for partition on the ground that it shows sole and exclusive possession by the defendant of the property in ques- tion for a period of twenty years will not be sustained where the bill avers that defendant acquired possession upon the abandonment of the premises by a former tenant after her marriage, the date of which is given, but which further alleges that "the exact date" of her removal is unknown to the complainants. Whitson v. Grosvenor, 170 111. 271, 48 N. E. 1018. But a complaint stating a conspiracy between certain persons to defraud plaintiff's ancestor by means of a forged power of attorney which they eavised to be recorded, and under which they took a deed and kept pos- session of the premises for twenty-six years, shows that the possession was adverse to the claims of the title of plaintiff and those through whom he derives his ownership. Beattie v. Whijjple, 154 111. 273, 40 N. E. 340. An allegation that plaintiffs and their grantors for fifty years continu- ously used a, private road under a claim of right, as a means of access to their laud, with defendant's knowledge and acquiescence and with- out objection on his part, sufficiently alleges that such use was adverse. Mitchell V. Bain, 142 Ind. 604, 42 N. E. 230. A complaint which alleges that plaintiff, for more than five years, has been and now is the owner and seised in fee of the premises, does not show adverse possession for five years by defendant, although it alleges that, more than five years before, plaintiff was wrongfully ousted, and de- fendant has ever since withheld the possession. Peter v. Stephens, 11 Mont. 115, 27 Pac. 403. ^Baltimore v.' Coates, 85 Md. 531, 37 Atl. 18. A demurrer to a complaint enjoining the tearing down of buildings on land claimed to be an alley vrill not raise the question whether title to an alley can be acquired by adverse possession, where there is no ex- press or implied admission in the complaint that the land ever was a street or alley. Crocker v. Collins, 37 S. C. 327, 15 S. E. 951. Agency. 84. Agency an allegation of fact. 85. Act by agent alleged as that of principal. See also AxjTfiOEiTY, §§ 108-112, infra; Confederacy, § 145, infra; Conspiracy, §§ 148-151, infra; Contkacts, §§ 152-196, infra; Documents, §§ 246-274, infra; Katui'ICATION, § 431, infra. 84. Agency an allegation of fact. A direct allegation that one person was the agent of another, if it Abb. Pl. Vol. I.— 17. 258 EEIEr ON PLEADINGS DEMUEEEE. states that he acted as such in the transaction in question, is not a mere conclusion of law, but a sufficient allegation of fact.^ The word "agent" is not essential. An allegation of the existence of a relation or other circumstances legally constituting an agency sufficient to include the transaction in question is enough;^ but an allegation of circumstances merely tending to show agency or em- ployment is not enough.^ But where a contract is not alleged to have been made by the de- fendant but by a third person, a mere allegation that the latter acted for the defendant is not enough, for it may mean an assumed as well as a real agency.* 'Allegations that a person named was the managing agent and superin- tendent of the company employing plaintiff, and that the powder, the bad quality of which caused the injury, was furnished to the plaintiff by the company through such person, who assured the plaintiff that it could be employed with safety, are equivalent to a, direct and simple averment that the defendant furnished the powder to the plaintiff. Bpelman v. Fisher Iron Co. 56 Barb. 151. * Allegation that an agreement was made by a bank "through the president and cashier" sufficiently implies their authority. Bank of the Metrop- olis V. GuttsohUck, 14 Pet. 19, 10 L. ed. 335. An averment that, while defendants were running their railroad, plain- tiff's intestate was in the employ of defendant as an engineer upon their locomotive while it vras in their use and service, is sufficient to show the relation of master and servant; but no special contract be- tween them as principal and agent can be inferred from such allega- tion. McMillan v. Saratoga & W. R. Co. 20 Barb. 449. In an action for negligence sustained on defendant's boat, an allegation that a person named "was employed on said boat" sufficiently imports that he was employed by defendant. Anderson v. New Jersey 8. B. Co. 7 Robt. 611. A complaint in an action to enforce a mechanic's lien, which states facts from which the law implies the agency for the owner of the person mak- ing the contract, is sufficient without alleging in express words that such person was the owner's agent or that he constructed the building at the instance of the owner. Kremer v. Walton, 16 Wash. 139, 47 Pae. 238. A complaint in an action to foreclose a materialman's lien is not demur- lable for failure to show that the person to whom the materials were furnished was the agent of the owner of the building, where it states that such person was a contractor, and the statute declares that "every contractor . . . shall be held to be the agent of the owner [of the premises] for the purposes of the establishment of the lien created by this act." [Laws 1893, p. 32 (Ballinger's Anno. Codes & Statutes [Wash.] § 5900) .] QrifjUh v. Macowell, 20 Wash. 403, 55 Pac. 571. ' Diotum, in an action against a defendant alleged to be running a sldff- VII. FOE INSUBTICIENCY ; PARTICULAR ALLEGATIONS. 259 ferry, by his lessee, that an allegation that the injury occurred by the negligence "of the man rowing and having charge of the skiflf" run at defendant's ferry, would not have been a suflEicient allegation that the man was in defendant's employ had it not been conceded by counsel on the argumeiLt. Blaokwell v. Wiswall, 24 Barb. 355. Contra. A mere allegation of agency is held not enough to charge one per- son with a contract alleged to have been made by another, if there is nothing to show that the contract was within the scope of the agency. May V. Kelly, 27 Ala. 497. So, an allegation that one acting for himself, and as joint owner of a boat, contracted, is not enough to charge the other joint owner, where joint ownei-ship does not imply authority. Brooks v. Harris, 12 Ala. 556. 'Childress v. Miller, 4 Ala. 447, 450; Broion v. Commercial F. Ins. Co. 8S Ala. 189, 5 So. 500 (allegation, in action on policy, that traaisactions. were had through one K., an insurance agent). An allegation that the selectmen offered the reward sued for, without even stating that they did so in behalf of the town, is not enough to charge the town. Codding v. Mansfield, 7 Gray, 272. 85. Act by agent alleged as that of principal. An allegation that a party did an act, without alleging anything concerning agency, is sufficient, although the circumstances show that the act could not have been done except through an agent,* — as, for instance, where the pa^ty was a corporation. Eut an allegation that an act was done through an agent is not im- proper.^ ' Weide v. Porter, 22 Minn. 429 ; St. Andren/s Bay Land Co. v. Mitchell, 4 Fla. 192, 54 Am. Dec. 340; Burnham v. Milwaukee, 69 Wis. 379, 34 N. W. 389. A contract or other act on the part of a corporation is properly alleged in pleading as having been made or done by the corporation itself, without alluding to the agency of oiEcers or employees. Buffalo Lubricating Oil Co. V. Standard Oil Co. 42 Hun, 153. Barker, J., well states the rule as follows: "The plaintiff, in stating his cause of action against a corporation, may and should state the acts complained of as being the acts of the corporation itself; and it is not necessary nor proper to aver in the complaint that they were done by and through the author- ized agent of the corporation. It is a matter of proof upon the trial to establish that the person who did the act was the authorized agent of the defendant, for it can only act through its officers and agents. When a charge is made in a. pleading against a corporation by its cor- porate name, the legal inference is that some person or persons in its employ did the act imputed" (Citing 1 Chitty, PL 286; 2 Wait, Pr. 370; Stoddard v. Onondaga Annual Conference, 12 Barb. 575). This decision was affirmed in 106 N. Y. 669, 12 jST, E. 825, without noticing this point. 260 BKIKF ON PLEAD! WGS DEMUBEER. An allegation in an action for personal injuries against a corporation, that the defendant threw or caused to be thrown, a box, in such manner that plaintiff was injured, is equivalent to an allegation that the corporation did the act by its servants or agents, since a corporation can act only through its agents or servants. Di Marcho v. Builders Iron Foundry, 18 K. I. 514, 27 Atl. 328, 28 Atl. 661. The rule that an act performed by a. principal through an agent is suffi- ciently pleaded as the act of the principal is not changed in an action by a railroad employee against tlie company by the fact that the act may have been done by a coservant, where the fair import of the com- plaint is that the act was that of a vice-principal whose negligence is that of the principal. Lessard v. Northern P. R. Co. 81 Wis. 189, 51 K. W. 321. Plea of foreign patent sufficient, because application might have been made by someone for the inventor. It is not necessary to allege that an in- Btnunent was executed by an agent, and that the agent was duly au- thorized thereto. It is sufficient to allege its execution by the principal . Edison Electric Light Co. v. United States Electric Lighting Go, 35 Fed. 134; Bank of the Metropolis v. Guttschlich, 14 Pet. 19, 10 L. ed. 335; Hoosac Min. & Mill. Co. v. Donat, 10 Colo. 529, 16 Pac. 157. IlUnuis G. R. Co. v. Latimer, 128 111. 163, 21 N. E. 7, holding that a count charging trespass by a corporation may be joined, with one alleging that the corporation, by an agent, committed it. Eiit he who pleads the act of a corporation without stating through whom it was done may, if fairness requires, be ordered to make the complaint more specific by designating the officer or agent. Webster v. Conti- nental Ins. Co. 67 Iowa, 393, 25 N. W. 675 (reversing for refusal to re- quire such correction). Especially if he unnecessarily alleges that it was done by an agent. Schel- lens v. Equitable Life Assur. Asso. 32 Hun, 235. Contra, Todd v. Miv- neapolis & St. L. R. Co. 37 Minn. 358, 35 N. W. 5. In Connecticut a rule of court requires that an act, other than tljat of a corporation, if done by an agent, must be so alleged if known to the pleader. Santo v. Maynard, 57 Conn. 157, 17 Atl. 701. The execution of a note is properly alleged to have been the act of a prin- cipal, although, as set out in the declaration, it purports to have been executed by an agent on behalf of the principal. Goetz v. Qoldbaum (Cal.) 37 Pac. 646. A complaint upon a promissory note signed in the name of the maker, with the abbreviation "Agt." added, is insufficient to show a cause of action against the principal, where it does not allege that the latter made, ex- ecuted, or delivered the note through her agent, but only that the note was made by soich maker as such agent for the principal, under and by the authority and direction of the latter and in d\ie management and control of her business and for the benefit of such business. First Nat. Bank v. Turner, 24 N. Y. Supp. 793. 'St. John V. Griffith, 1 Abb. Pr. 39 (denying motion to strike out allega- tion of agency). VII. FOR IHSUKMCIEWCY ; PAETICULAE AI-I.EGATIONS. 261 The case of Dollner v. Gibson, 3 N. Y. Code Rep. 153, holding that an al- legation of agency might be struck out as irrelevant, was reversed on appeal. But an allegation that a libelous protest by a notary is the action of the bank under whose authority he is acting does not sufficiently allege that the bank directed him to violate the law, or participated in the libelous protest. Maxj v. Jones, 88 Ga. 308, 15 L. R. A. 637, 14 S. E. 552. AliTEEATION OP InSTBUMENTS. 86. Sufficiency of averments. A plea alleging the alteration of an instrument without the knowl- edge or consent of the party interposing the plea, but not specifying the alteration, is insufficient.* » Eart V. Sharpton, 124 Ala. 638, 27 So. 450. An affidavit of defense in a suit on an interpleader bond, which alleges that the bond is void because it is palpably interlined and altered, is insuffi- cient where it does not state that the bond was not executed in its pres- ent form, or that there was any deception or misconception in connec- tion with its execution, or that any alteration was made to the advan- tage of the plaintiff. Com. ex rel. Elliott v. Bewry, 9 Pa. Super. Ct. 246. But a replication that if there was a material alteration in a note, the holder acquired it before maturity, for value, without notice of such al- teration; that nothing appeared upon its face to arouse his suspicions; and that its maker left room for the alteration to be made without defacing it,— is not demurrable for failure to sufficiently show the char- acter of the alteration. Holmes v. Bank of Ft. Qmnes, 120 Ala. 493, 24 So. 059. ALTBEISrATIVE ChAEGES. 87. Emharrasslng ambiguity. An allegation in the alternative, which is so ambigTious that the complaint fails to indicate what is the ground or cause of action, ren- ders the complaint insufficient on demurrer.* "Compare §§ 29, 39, 59, supra. Allegation that A. represented that B. had a perpetual lease, or a deed, or a contract or writing for a deed or lease, from C. or D. or the owner of the fee (being understood to mean, not that he made an alternative representation, but to allege in the alternative that he made one repre- sentation or the other), is "alternative pleading which never was good under any system of practice." So held on motion to make more defi- nite. GorUn v. George, 2 Abb. Pr. 465. A bill to set aside a decree, which alleges that the decree was obtained 262 BEIEE ON PLEADINGS DEMUBEBE. either by mistake, or by deception, or by collusion, etc., is demurrable as being too indefinite. Brooks v. O'Hara Bros. 2 McCrary, 644, 8 Fed. 529. A single count of a complaint, in which plaintiff shifts his right of action from one ground to another and states se^'eral breaches of duty alterna- tively or disjunctively, so that it cannot be determined upon which of several equally substantive averments he relies, is demurrable. High- land Ave. & Belt li. Co. v. Dusenlerry, 94 Ala. 413, 10 So. 274. Amount. See also Damages, §§ 210-216, infra. 88. Evasive or argumentative allegation. Where a specific amount is material, but is not directly alleged, as against demurrer, the court will not spell it out from an evasive or arg-umentative allegation.'' 'Allegation that property exceeds the amount of exemption, a mere conclu- sion. McKinney v. Snider, 116 Ind. 160, 18 N. E. 526. Jackson v. Rowell, 87 Ala. 685, 4 L. R. A. 637, 6 So. 95 (allegation of value and necessity for sale in partition) . A complaint in an action to recover from decedent's estate for services ren- dered to the decedent in providing nursing, care, board, and lodging, is not demurrable for uncertainty or ambiguity because it fails to state the amount claimed for each kind of service. McFarland v. Bolcomb, 123 Cal. 84, 55 Pac. 761 (Citing Wise v. Eogan, 77 Cal. 184, 19 Pac. 278; FleasoMt v. Samuels, 114 Cal. 34, 45 Pac. 998). An allegation in a complaint for foreclosure of a mortgage, that the prom- issory note secured by the mortgage yfas executed by defendant in n. specified sum as evidence of a debt for a, loan, but that the actual amount of the principal sum of such debt and loan is a smaller sum, which is specified, — sets forth with sufficient clearness and certainty the amount of the debt for which the mortgage was executed. Savings Bank v. Asbury, 117 Cal. 96, 48 Pac. 1081. But a declaration in an action to recover a premium paid by one member of a firm of physicians for the privilege of entering the partnership, al- leging that the representations made by the other partner as to the value of his practice and the income derived therefrom were untrue, and that plaintiff was deceived thereby, and that such other partner's practice was "worth not half" the sum represented, is too vague and uncertain to form the basis of any proper apportionment of the pre- mium paid. Eerringion v. Walthal, 98 Ga. 776, 25 S. E. 836. In an action in which it is sought to subject the estate of a lunatic to an amount due for the patient's board at an asylum, under Ky. Stat. § 257, a pleading that the incompetent person "has an estate which can be subjected to said debt," and that his committee "has ample and suffi- cient means and assets in his hands to pay off the debt sued on," al- VII. FOE INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 263 though indefinite, is not demurrable. Central Kentucky Asylum v. Pcnick, 102 Ky. 533, 44 S. W. 92. ^ declaration in an action upon a covenant of a benefit association to pay to a deceased member's widow the amount of one assessment, not to ex- ceed a specified sum, upon the surviving members of the association, which calls for the full indemnity, must show that the assessment amounts to that sum. Brann v. Maine Ben. Life Asso. 92 Me. 341, 42 Atl. 500. Js. complaint alleging that by the representations of the defendant mutual benefit society that plaintiflF was entitled to nothing under a policy upon her husband's life, she was induced to accept $1,000 when she was in fact entitled to $2,000, is fatally defective when it fails to allege that the defendant realized or could have realized more than $1,000 from the assessment provided for by the policy. Meyers v. United L. Ins. Asso. 42 N. Y. S. R. 121, 17 N. Y. Supp. 727. A petition in an action on a policy of insurance on personal property must allege the value of the property; and an allegation of the amount by which the insured was damaged by the fire is not sufficient. Coleman V. Phoenix Ins. Co. 69 Mo. App. 566. An allegation in a, complaint in an action by a debtor to recover collateral pledged as securitjr for a. loan, that there is due on account of the loan no more than a certain amount, is insufficient to show the amount due at the date of a tender. Sussman v. Ma^on, 10 Misc. 20, 30 N. Y. Supp. 542. A complaint upon a note, a copy of which is set out therein, in compliance with N. Y. Code Civ. Proc. § 534, is not demurrable because it omits to specifically allege the amount due thereon, where it alleges that the note is due and no part has been paid, and that it has been protested, by reason of all of which plaintiff is damaged in the sum named therein, for which, with interest, judgment is demanded. Oishei v. Craven, 11 Misc. 139, 31 N. Y. Supp. 1021. A petition by a taxpayer to restrain the collection of taxes made excessive by an illegal exemption must show the amount in which such taxes have so been made excessive, or allege other facts or amounts from which such excess may be arrived at by mathematical computation. AUgelt V. San Antonio, 81 Tex. 436, 13 L. E,. A. 383, 17 S. W. 75. A petition alleging that the balance due on a note in suit which defendant had bound himself to pay "was about $800" is bad on general demurrer. Shropshire v. Smith, (Tex. Civ. App.) 37 S. W. 470, Reversing on Re- hearing 37 S. W. 174. A petition alleging deposits by a married woman of money belonging to her separate estate in the defendant banlc; that she has only given some small checks and that there is between $4,000 and $5,000 of the money still in the bank; that the cashier claims to have paid out certain sums in checks not signed by her and for which she is not responsible, nega- tiving the authority of anyone to sign checks in her name; that she cannot give the exact dates or sums of the deposits or of the checks draAvn by her; and that all the. facts are known to the defendant, — is 264 BEIEF ON PLEADINGS DEMUBEEE. good as against a special demurrer or a special exception that it fails to state with certainty how much money she deposited. Coleman v. First Nat. Bank, 17 Tex. Civ. App. 132, 43 S. W. 938. Pleadings by subcontractors in an action to foreclose a mechanic's lien un- der act March 12, 1890, need not allege, where the original contract is not of record, the exact amount of such contract nor the amount of payment made thereon. Morrison v. Inter- Mountain Salt Go. 14 Utah, 201, 46 Pac. 1104. Failure of a complaint on a tax deed to bar former owners, to state spe- cifically what parts of the amounts alleged to have been paid for subse- quent taxes were paid upon the respective parcels of land, if material, at most only renders the complaint obnoxious to a motion to make more specific, and is not a ground for general demurrer. Hunt v. Mil- ler, 101 Wis. 583, 77 N. W. 874. In a suit by a clerk for his salary, which depends on the population of the county, it is sufficient to allege the amount without further alleging what the population of his eoimty is. Lycett v. Wolff, 45 Mo. App. 489. An objection on this ground must be taken by demurrer or motion. A plea to the merits waives such an objection. A complaint in an action under Wis. Eev. Stat. § 1691, to recover treble the amount of usurious interest paid, which alleges that defendant loaned $2,500 to plaintiff on time, and that a, usurious sum of $1,000 was paid as a condition of making the loan, and that two notes, one for $2,000 and the other for $1,500, payable three and four months after date, without interest until due, were given as evidence thereof, — suffi- ciently shows, in the absence of a motion to make the complaint more definite and certain, the amount of usurious interest paid, although there is no allegation that the $1,000 was paid for the use of the $2,- SOO for any specified time. Matthieson v. Schomherg, 94 Wis. 1, 68 N. W. 416. The remedy is by motion, and not by demurrer ore terms. See dictum in Seeley v. Engell, 13 N. Y. 542, to the effect that motion is the remedy. For other authorities, see Demureer fob Want of Jueisdiction, chapter VIII., post. Appeaeance. See also Duly, § 277, infra. 89. An issuable allegation. An allegation that a party appeared in a legal proceeding, or did not appear, is sufficient on demurrer, without stating facts showing that the appearance was practically regular, or that the party was put into default by being duly called.* 'In Thomas v. Cameron, 17 Wend. 59, Cowen, J., said: "The calling and default are mere matter of practice; and the practice of the court is ■^"- B'OE INSUFFICIENCY ; PAUTICUI,AE ALLEGATIONS. 265 not, in general, the subject of pleading. 1 Chitty, PI. 407. The issue in an action on a bail bond is simply 'did not appear at the day,' by the plaintiff, and 'did appear at the day,' by the defendant. The mode or evidence of appearance or nonappearance, which is known under the practice to be quite artificial, is never mentioned; but only the legal effect, according to a cardinal rule which runs through all pleading. Whether the appearance be practically correct is matter of evidence." Ayres v. 'Western R. Corp. 45 N. Y. 260 (allegation of filing petition and bond for removal of cause). An averment in an affidavit of defense in an action upon a judgment recit- ing that defendant appeared by attorney, that if an appearance was en- tered by such attorney for defendant, defendant had no knowledge of it whatsoever, is insuflicient and evasive in failing to state that defend- ant did 'not authorize an appearance. Moore v. Phillips, 154 Pa. 204, 25 Atl. 829. So, an affidavit of defense in a suit upon a, foreign judgment which recites defendant's appearance by a certain attorney, that if such attorney did appear it was without authority from the defendant and without his knowledge or consent, is insufficient in the absence of an averment that such attorney did not have a general retainer from defendant. Homo Friendly Soc. v. Tyler, 12 Pa. Co. Ct. 623. Appkoval. 90. When implied. The allegation of a complaint on a bond that the defendants did make, execute, .and deliver to plaintiff, their joint and several bond, implies its approval when that is necessaiy, as there could be no de- livery without an acceptance, and the acceptance is approval.* And an allegation in an action on a guardian's bond, of his ap- pointment as guardian, sufficiently states that such bond was ap- proved, where by statute such approval is a condition precedent to ap- pointment.^ ' United States v. Belknap, 73 Fed. 19. ' Schoenleler v. BurhJiardt, 94 Wis. 575, 69 N. W. 343. Akbiteation. 91. Sufficiency of averments. A petition on an awajd of arbitrators is not demurrable in failing to show tliat the arbitrators wei-e sworn, where it does not affirma- tively appear that they were not sworn.* 'Eov, in an action to com- pel the execution of a renewal lease in accordance with the decision of arbitrators chosen to determine the rent for the new term, need the 266 BRIEF ON PLEADINGS DEMUEEEB, complaint set fortJi a compliance by the arbitrators with the rule re- quiring- them to estimate the full and fair value of the lot.^ But a bill attacking the award of arbitrators for refusal to hear material evidence must set forth such evidence with sufEcient fullness to en- able the court to determine whether or not it was material.^ An avei-ment that plaintiff is ready and willing or able to pay the price to be fixed by arbitrators is not necessary in a bill framed upon the theory- that the time for arbitration has passed.* A complaint alleging that defendants entered into an agreement with plaintiffs' debtor for an arbitration, and that the aAvard found the latter indebt- ed in a certain sum to plaintiffs, without averring that defendants were liable thereon, does not state a cause of action.' An allegation that arbitrators were not impartial, competent, and disinterested is not bad as being a mere conclusion.* ' Older V. Quimi, 89 Iowa, 445, 56 N. W. 660. ^ Terry v. Moore, 3 Misc. 285, 22 N. Y. Supp. 785. 'Leslie V. Leslie, 50 N. J. Eq. 103, 24 Atl. 319. ^Bristol V. Bristol & W. Wateruorhs, 19 R. I. 413, 32 L. E. A. 740, 34 Atl. 359. "Weftft V. Hicks, 116 jST. C. 598, 21 S. B. 672. 'Royal Ins. Go. v. Parlin & 0. Oo. 12 Tex. Civ. App. 572, 34 S. W. 401. Assault. 92. Sufficiency of allegations. A complaint alleging that, at a time and place stated, the defend- ant maliciously and unlawfully assaulted plaintiff by his servants acting within the scope of their employment, and specifying the na- ture of the assault, is sufficient as against a general demurrer.^ A complaint for assault and battery need not aver that plaintiff \\-as without fault, as the doctrine of contributory fault or negligence does not apply tO' civil actions of that character.^ It is a sufficient defense in an action for assault and battery that the aets complained of were committed in self defense.' But a plea based on plaintiff's conduct is bad if it does not allege that such con- duct was for the purpose of procuring defendant to commit the wrona;.* ^Foran v. Levin, 76 Minn. 178, 78 N. w. 1047. A bare allegation tliat an assault committed by a physician and surgeon employed by a railroad company to attend to sick and injured persons, VII. — FOE insufficiency; paeticula:r allegations. 267 upon an assistant, was done in the course of liis employment, is insuffi- cient to show liability on the part of the company, since such assault is presumptively an independent tort; and the facts making it otherwise must be stated. Camplell v. Northern P. It. Co. 51 Minn. 488, 53 N. • W. 768. Pailure to allege the names of agents who committed an assault is not a ground of demurrer to a complaint against the principal for the as- sault. Southern Exp. Co. v. Flatten, 36 C. C. A. 46, 93 Fed. 936. A complaint alleging that the defendant and his agents entered plaintiffs apartments, and that one of such agents assaulted her, is insufficient to show the liability of defendant, in the absence of any allegation that defendant instigated, abetted, or sanctioned the assault, or that it was committed by the agent while engaged in defendant's business. Ander- son V. Schlesinger, 16 Mise. 535, 38 N. Y. Supp. 2U6. * Myers v. Moore, 3 Ind. App. 226, 28 N. E. 724 (Citing Steinmets v. Kelly, 72 Ind. 442, 37 Am. Rep. 170; Whitehead v. Mathaway, 85 Ind. 85; Norris v. Casel, 90 Ind. 143 ) . 'Eughey v. Kellar, 34 S. C. 268, 13 S. E. 475. ' Willey V. Carpenter, 64 Vt. 212, 15 L. R. A. S53, 23 Atl. 630. Assessments. "93. Sufficiency of averments. A complaint to enforce a street assessment need not set out in detail .all the statutory steps to sustain a lien.^ .But if it shows a failure to comply therewith^ it is demurrable.^ In an action to enforce payment of a sidewalk assessment in front of lots belonging to a school district, the complaint is demurrable when it fails to allege that such lots are not used for school purposes, where they would not. otherwise be liable to assessment.^ And in an action to enforce the lien of a drainage assessment, a complaint which shows that the petition for the construction of the drain was referred to the drainage commissioners, that they made re- port finding that defendant owned certain lands which would be af- fected by the proposed work, and that such lands would be benefited thereby in specified sums, and that the report so made was approved and confirmed by jiidgment of the court, substantially complies with the statute requiring the complaint in such proceedings to set out the assessment.* A complaint to set aside a special assessment for a public improve- ment on the ground of inequality and injustice must allege the facts, and not merely aver in direct terms that the assessment is unequal 'and unjust.^ ' Ehna v. Carney, 4 Wash. 418, 30 Pac. 732. 268 BRIEF ON PLEADINGS DEMUREEE. The court cites and quotes from Lockhart v. Houston, 45 Tex. 317, as fol- lows: "To require in the petition a detail of the facts necessary to make it appear that the levy and the assessment of the tax were regu- lar and legal would be both burdensome and useless. They are them- selves facts sufficientlj' removed in their nature from mere conclusions of law to admit of being averred, like the protest of a bill of exchange, without specifying what acts were done, or by what officer." The court adds : "We think this is the general rule in suits for the recovery of taxes, and to enforce liens for taxes, which is alike applicable to street assessments." The averment in a, complaint in an action upon a street improvement as- sessment, that the plaintiff entered into a contract with the superin- tendent of streets for doing the work according to the specifications therein, sufficiently alleges that step in the proceeding to show the plaintiff's right to receive an assessment upon the due performance of the contract, under the California street improvement act; and it is not necessary to set out the specification. California Improv. Go. v. Reynolds, 123 Cal. 88, 55 Pac. 802. While a complaint to enforce a street-assessment lien must state all the acts of the municipal officers, and such facts as are essential to show authority for such acts, it need not incorporate, by reference or other- wise, any written instrument, except the estimate or assessment. Van SicJcle V. Belknap, 129 Ind. 558, 28 N. E. 305 (so held on error). A complaint to enforce a special assessment is not insufficient because it fails to allege that all lots benefited are assessed, since there is a pre- sumption that the appraisers discharged their duty. Kizcr v. Winches- ter, 141 Ind. 694, 40 N. E. 265. A complaint to enforce assessments for the improvement of a street in a town, by the contractor who made the improvement, need not set out a copy of the contract, or allege the specific terms thereof, or aver in mi- nute detail what work was done under the contract, or state the price that was to be paid for the entire work. Dugger v. Hides, 11 Ind. App. 374, 36 N. E. 1085, 37 N. E. 284. A complaint to enforce assessments for the improvement of a street in a town, by the contractor who made such improvement, is not bad in fail- ing to aver the width of the road or the depth of the grade, although those facts should be specified in the resolution or ordinance for the im- provement. IMd. In ii complaint by a contractor to foreclose an assessment lien for a street improvement, it is unnecessary to set out the contract or the plans and specifications, which are alleged to be on file in the engineer's office, where award of the contract, due performance of it, acceptance of the work, and approval of the final estimate of the cost, are set out by apt averments. Leiois v. Alhertson, 23 Ind. App. 147, 53 N. E. 1071 (mo- tion to make more definite and certain ) . A petition in proceedings for a special assessment for a municipal improve- ment, which complies with the .statutory requirements in reciting the ordinance authorizing the improvement and the report of the eommis- VII. POE INSUFTflCIEisrCY ; PAETICULAE ALLEGATIOISTS. 269 sioners appointed to estimate its cost, and prays that the cost be as- sessed as required by law, is sufficient without directly averring that the eommissioners were appointed and that they were "competent per- sons," as those facts will be presumed, in the absence of any allegation or proof to the contrary. Walker v. Aurora, 140 111. 402, 29 N. E. 741 ( so held on error ) . A complaint to enforce the lien of a street assessment for improvements need not specifically allege the proper appointment or the qualification of the board of public works provided for by Ind. Rev. Stat. 1894, § 3828, or the adoption of rules for the conduct of their business and the notice thereof as required by the statute. Spades v. Phillips, 9 Ind. App. 487, 37 N. E. 297 (so held on error). ' A complaint in an action to foreclose a street-assessment lien, which shows that bids for the improvement were opened, examined, and declined on the day before which they were allowed to be received, is demurrable. N. P. Perine Contracting & Paving Co. v. QuacJcenbush, 104 Cal. 684, 38 Pac. 533. A complaint in an action to foreclose the lien of a second street assessment in the city and county of San Francisco is demurrable where it fails to show that a warrant was issued upon the first assessment, since such a warrant is essential to the jurisdiction of the board of supervisors to entertain an appeal from the first assessment, and to order a, reassess- ment, in view of the California street law, § 11, providing that the party aggrieved by an assessment shall appeal "within thirty days after the day of the warrant." Williams v. Bergin (Cal.) 57 Pac. 1072. • Witter V. Mission School Dist. 121 Cal. 350, 53 Pac. 905. *A complaint in an action to enforce a drainage assessment need not al- lege that the work has been completed according to plans and specifica- tions. Hoefgen v. State ex rel. Brovyn, 17 Ind. App. 537, 47 N. E. 28. No allegations that the amount of benefits assessed against defendant's land is needed to pay the expenses and costs of the construction are nec- essary in the complaint in an action to enforce the lien of a drainage assessment. IMd. • Meggett v. Eau Claire, 81 Wis. 326, 51 N. W. 566. The averment in a complaint in a suit to foreclose a lien after a reassess- ment for a street improvement, that a prior assessment, diagram, war- rant, and purported engineer's certificate were never duly, properly, or legally recorded in the office of the superintendent of streets, is the averment of a legal conclusion. Ede v. Cuneo (Cal.) 55 Pac. 388, Af- firmed in Banc in 126 Cal. 167, 58 Pac. 538. In a complaint filed by a county treasurer to recover taxes due on prop- erty not listed, an allegation that, acting under a specified statute, he assessed the defendants respectively in a certain sum on account of omitted property, if objectionable as a conclusion, is not open to at- tack by demurrer. Lambe v. McOormick (Iowa) 89 N. W. 241. An allegation that an assessment was duly made is not sufficient in an action to recover upon a subscription signed by the defendant to meet a possible shortage; but the complaint must show the amount of the 270 BKIEF ON PLEADINGS DEMUKEEE. loss and the total amount subscribed. Laramee v. Tanner, 69 Minn^ 156, 71 N. W. 1028. An allegation in an action against a railroad company for delinquent- taxes, that the general assembly "levied a, tax" of certain specified rates "on every doHar's worth of taxable property" in the county where the property in question is situated, and that the same became a lien on defendant's property situated in such county; that a specified sum was thus levied on defendant's property and was due and payable not later than a specified time, and if not paid then, u, specified penalty was lev- ied by the statute of such state, — states a legal conclusion only, and is. not a, sufficient averment of an assessment of defendant's property for taxation. State v. Cheraw & D. B. Co. 54 S. 0. 564, 32 S. E. 691. Assignment. 94. Mode. 98. Time. 95. Necessity of averment. 99. Leave. 96. Sufliciency of averment. 100. Principal and accessory obliga- 97. Consideration. tion. See also Conteacts, §§ 152-196, infra; Documents, §§ 246-274, infra; Duly, §^ 277, infra; Ownekship, §§ 412-423, infra; Title, §§ 465-469, infra. 94. Mode. Where an oral or an unsealed assignment is valid at common law, an allegation that the thing was assigned, without stating that it waa assigned by writing or by a sealed instrument, is sufficient on demur- ' River Falls Banlc v. German American Ins. Go. 72 Wis. 535, 40 N. W. 506. A complaint in an action by an assignee of a claim need not allege the as- signment to have been in writing. Rice v. Yakima & P. 0. R. Go. 4 Wash. 724, 31 Pac. 23. A stricter rule applies to the assignee of a lease, suing for rent. Willard V. Tillman, 2 Hill, 274; 1 CShitty, PI. 16th Am. ed. 383. But one suing the assignee of a lease for rent may allege the assignment generally, without pleading the particulars, for they are matters within the defendant's knowledge. An averment in a, pleading, that an assignment required to be in writing was made, is sufficient, as, on deonurrer, this will be held to imply a valid assignment, under Wis. Rev. Stat. § 2308. Gunderson v. Thomas, 87 Wis. 406, 58 N. W. 750. The general averment that the assignment of a policy in a, mutual fire-as- surance association was made as required by the by-laws sufficiently shows, when assailed by demurrer, a compliance with the condition* VII- FOE INSUFFICIENCY ; PAKTICUI.AR ALT.EGATIONS. 27 i imposed by the by-laws upon assignments of policies. Cannon t. Farm- ers' Mut. Fire Asso. 58 N. J. Eq. 102, 43 Atl. 281. 95. Necessity of averment. In a suit broug'ht by an assignee in his own name, the complaint is insufficient where it does not allege the assignment of the chose in action to him.^ But an assignee of a cause of action suing in trover or replevin need not allege the assignment to him, nor otherwise state the nature of his title or its evidences.* An indorsee of a negotiable pi-omissory note may ignore all inter- mediate transfers not necessary to show his title, and allege a trans- fer by the payee directly to himself.^ ^ Seattle Nat. Bank v. School Dist. No. 40, 20 Wash. 368, 55 Pac. 317. A complaint in an action against the maker of a promissory note by the assignee thereof must aver the assignment; but he is not required to file with the complaint a copy of the indorsement. Clark v. Truehlood, 16 Ind. App. 98, 44 N. E. 679 (so held on error; Citing Bozarth v. Mal- lett, 11 Ind. App. 417, 39 N. E. 176; Bascom v. Toner, 5 Ind. App. 229, 31 N. E. 856; Short v. Kerns, 95 Ind. 431). And a complaint alleging the assignment of an order for the contract price of a street improvement to a designated firm is demurrable for want of sufficient facts, under Ind. Rev. Stat. 1894, § 342, where there is no al- legation of an assignment thereof to plaintiff. Bozarth v. Mallelt, 11 Ind. App. 417, 39 N. E. 176. A declaration in trespass by one not in possession of the premises, or the owner of the fee therein at the time the trespass was committed, which fails to allege the assignment by virtue of which he acquired the right to bring the action, is fatally defective. Gates v. Comstock, 107 Mich. 546, 65 N. W. 544 (so held on error; Citing Blackwood v. Brown, 32 Mich. 104; Rose v. Jackson, 40 Mich. 29; Cilley v. Ymi Patten, 58 Mich. 404, 25 N. W. 326; Altman v. Eittershofer, 68 Mich. 287, 36 N. W. 74; Altman v. Fowler, 70 Mich. 57, 37 N. W. 708; Peirce v. Closterhouse, 96 Mich. 124, 55 N. W. 663). An action upon a bond brought in the name of a, person other than the obligee cannot be maintained in the absence of an averment of the as- signment of the bond, although the declaration recites that the plain- tiff is an assignee. Lindsay v. Molnerney, 62 N. J. L. 524, 41 Atl. 701 (Citing Gaskill v. Barbour, 62 N. J. L. 530, 41' Atl. 700). *Warren v. Dwyer, 91 Mich. 414, 51 N. W. 1062 (so held on error; Citing Harvey v. MeAdams, 32 Mich. 472; Myres v. Yaple, 60 Mich. 339, 27 N. W. 536; Williams v. Baper, 67 Mich. 427, 34 N. W. 890; Hutchimsoii V. Whitmore, 90 Mich. 255, 51 N. W. 451). And an assignment of a mortgage to the use of plaintiff need not be alleged in a scire facias sur mortgage. Western Pennsylvania Hospital ex rel. 272 BIUEF ON X'LEADINGS DEMUBEEK, Bank of Pitlshiirgh r. Zweidinger, 29 Pittsb. L. J. N. S. 393 (so held on rule for judgment). 'Croshy v. Wright, 70 Minn. 251, 73 N. W. 162 (so held on error). The fact that a payee of a note has transferred the same, and the same has been retransferred to him, need not be pleaded as a part of his cause of action. Pearl v. Raduziner, 10 Misc. 45, 30 N. Y. Supp. 810 (so held on error ) . 96. Sufficiency of averment. An allegation that, prior to the commencement of an action brought upon a note, such note was duly assigned in writing and transferred to plaintiff, and that he has ever since been the holder thereof, suffi- ciently shows an assignment and transfer by the payee of the note.-" An assignment of a claim for a loss is sufficiently averred by an allegation of the complaint in an action on an insurance policy that after the loss the insured duly transferred and assigned all his inter- est in the policy to the plaintiff.^ A complaint by an assignee in insolvency, averring his appoint- ment, the filing of his bond, entry upon the discharge of his duty, and the filing and settlement of his final account, sufficiently shows an assignment to him of the insolvent's property, as against a general demurrer, where the statute makes it the duty of the clerk to convey to the assignee all the estate of the debtor as soon as the assignee has given bond and qualified.* ' Topping v. Clay, 65 Minn. 346, 68 N. W. 34. A complaint in an action on a draft drawn in favor of plaintiil's cashier, alleging that defendant was indebted to the maker of such order, that the payee was plaintiff's cashier, and that the maker sold and delivered the draft to plaintiff and thereby assigned his claim against defendant, — sufficiently sets forth the assignment to plaintiff, as against a gen- eral demurrer. Lawrence 'Nat. Bank v. Kowalsky, 105 Cal. 41, 38 Pac. 517. A complaint averring the assignment of an account or the transfer of a note or bill from a firm to the plaintiff need not specify the individual members composing such firm. Wyclcoff, S. & B. v. Bishop, 98 Mich. 352, 57 N. W. 170. • Morley v. Liverpool & L. d Q. Ins. Go. 76 Minn. 285, 79 N. W. 103. An equitable assignment of a policy of insurance from the insured to a grantee of the property is sufliciently averred in a complaint in an ac- tion on the policy, alleging that the insurer was notified of the sale and conveyance of the insured property; that it consented that the policy should become payable to the grantee in case of loss and agreed to in- dorse the transfer upon the policy, but neglected to do so; that it waived the indorsement in writing; that the failure to have the transfer VII. — I'OB insufficieXvY; particulae allegations. 273 indorsed on the policy was not the fault of the grantor or grantee, but wholly that of the insurer; and that it informed them that it ^7ould waive the indorsement, and that the policy should be valid and payable to the grantee. Oerman-Americcm Ins. Co. v. Sanders, 17 Ind. App. 134, 46 N. E. 535. " liuad V. Cooper, 109 Cal. 682, 34 Pac. 98. 97. Consideration. In an allegation of an assignment of the cause of action sued on, a consideration need not be stated.^ ^Cottle V. Cole, 20 Iowa, 481 (assignment of judgment) ; Lappin v. Mitm- ford, 14 Kan. 9 (administrator's sale of claim at private sale by order of court) ; Martin v. Kanouse, 2 Abb. Pr. 330 (assignment of judg- ment) ; Sheridan v. New York, 68 N. Y. 30 (assignment of claim for price of services, etc.). 98. Time. In an allegation of an assignment of the cause of action the time need not be specifically stated ; but it is sufficient if it appear that the assignment was made before the commencement of the action, and not before the cause of action assigned accrued.^ ' Allegation that a note was assigned on the day, or at the time, of its exe- cution is sufficient. Silver v. Henderson, 3 McLean, 165, Fed. Cas. No. 12,854. Allegation that one was "after" the other, sufficient. Martin v. Kanouse, 2 Abb. Pr. 330. A complaint on a note, alleging that plaintiif indorsed it to another, who afterwards brought suit against plaintiff on the indorsement, but that, before judgment, plaintiff paid the indorsee the face and interest there- of and costs, including attorneys' fees, sufficiently shows that the note was assigned to plaintiff before he brought suit thereon. Taylor v. Hearn, 131 Ind. 537, 31 N. E. 201. Amendment of a defect in this respect is allowable. See Bamberger v. Terry, 103 U. S. 40, 26 L. ed. 317. 99. Leave. An allegation of an assignment of the cause of action made by an assignee in bankruptcy, or receiver, is suiScient on demurrer, with- out alleging a leave of court, — at least, unless facts showing the neces- sity of leave appear in the pleadings.-' ' To a plea that the promises sued on had been transferred in bankruptcy to an assignee, a replication that they had been purchased from him is Abb. Pl. Vol. I.— 18. 274 BRIEF ON PLEADINGS ^DEMUEKEE. sufficient, without averring an order of court. Barnes v. Matteson, 5 Barb. 375. But a complaint alleging that a designated person was "duly appointed as- signee" of a specified contractor, and thereafter duly qualified as such and entered into the discharge of his trust, and as such assignee duly sold, assigned, and transfen-ed to plaintiff a claim, to foreclose which he brings suit, — is demuirable as failing to show any proper assign- ment to plaintiff. Sellers v. First Preshy. Church, 91 Wis. 328, 64 N. W. 1031. 100. Principal and accessory obligation. An allegation of an assignment of the principal obligation suffi- ciently imports, on demurrer, the assignment of the collateral secu- rity therefor.^ An allegation of an assignm.ent of a security which shows an in- debtedness, there being no other principal obligation, imports an as- sig-nment of the indebtedness secured thereby.^ ^Thomson v. Madison Bldg. & Aid Asso. 103 Ind. 279, 2 N. E. 735; Kurtz V. Sponable, 6 Kan. 395. See also Abbott, Trial Ev. In Morris v. Peek, 73 Wis. 482, 41 N. W. 623 {foreclosure of a mortgage securing a non-negotiable promissory note) an allegation of an assign- ment of "said contract and mortgage and the amount due thereon" was held a sufficient allegation of assignment of the note and mortgage. 'Severance v. Griffith, 2 Xians. 38 (allegation of an assignment of the mort- gage which recited debt, there being no bond) ; Caryl v. Williams, 7 Lans. 416, Assumpsit. See Account Stated, § 79, supra; Goods Sold and Delivered, §§ 303, 304, infra; Monet Had and Received, § 378, infra; Money Lent, § 379, infra; Work, Labob and Seevioes, §§ 484, 485, infra. Attachment. 101. Variance. 103. Wrongful or malicious attach- 102. Sufficiency of averments. ment. See also Bonds, §§ 118-130, infra. 101. Variance. A declaration in attachment is not demurrable on the ground of a variance between it and the affidavit for attachment.^ VII. FOK INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 2'75 *The proper remedy in such case is by a summary application to set it aside for irregularity. Longyear v. Minnesota Lumber Co. 108 Mieh. 645, 66 N. W. 567. 102. Sufficiency of averments. In a declaration based upon attachment proceedings, it is suffi- cient to allege the issuance of, and levy under, a writ of attachment, and the subsequent order in the judgment directing the sale of the property.^ A plea in attachment that defendant had not, at the time the at- tachment was made, and has not since had, ajiy right, title, or inter- est in or to any of the property attached, is insufficient to show that the property was not subject to attachment, since it fails to exclude the possibility that the chattels were in the possession of the defend- ant under circumstances that made them attachable as his property.^ A complaint alleging that a writ of attachment was issued against the property of designated persons, and delivered to and received by a deputy sheriff, who, in the "pretended exercise of his duty," seized plaintiff's property, sufficiently alleges that such officer seized the proijerty in his official capacity.^ ^ Bank of California v. Covxin, 61 Fed. 871. A complaint alleging that defendant was a deputy sheriff, that a writ of attachment issued out of the district court for his county was delivered to him, and that he levied upon certain personal property by virtue of the writ, is not insufficient in failing to allege the jurisdiction of the court, the regularity of the writ, and that the levy was made in the county. Urm v. Jackson, 5 N. D. 46, 63 N. W. 208. 'American Oak Leather Co. v. Evans, B. & C. Co. 70 Vt. 119, 39 Atl. 633. 'Dishneau v. Newton, 91 Wis. 199, 64 N. W. 879. 103. Wrongful or malicious attachment. In malicious attachment, want of probable cause and malice must both concur ; and a petition that does not allege want of probable cause is fatally insufficient.^ A complaint in an action for the vowngful suing out of an attach- ment, not based on the undertaking, must allege that the attachment was malicious.^ But the names of- the persons who refused the plain- tiff credit because of a wrongful attachment need not be alleged.* Nor need dispossession be averred in an action for damages for the wrongful attachment of real estate.* An averment in a complaint declaring upon a wrongful attach- 276 BRIEF ON PLEADINGS DEMUEEEE. ment, that the writ was wrongfully, vexatiously, and maliciously sued out, is the negation of all probable cause.' '■Witascheck v. Glass, 46 Mo. App. 209 (so held on error; Citing Moody V. Deutsch, 85 Mo. 237; Walser v. Thies, 56 Mo. 89; Scovill v. Glasner, 79 Mo. 449; Stewart v. Sonneborn, 98 U. S. 192, 25 L. ed. 118). ^Mitchell V. Silver Lake Lodge, 29 Or. 294, 45 Pac. 798 (nonsuit). But an allegation of malice and want of probable cause is unnecessary in an action on a statutory attachment bond to recover damages for such attachment and garnishment proceedings instituted thereon. Fou/rth Jiat. Bank v. Mayer, 96 Ga. 728, 24 S. E. 453 (so held on error). Un- der the bond required by Ga. Code, § 3266, the recovery oof the defend- ant in attachment is confined to compensatory damages only. The court says: "If, therefore, in addition to the actual damages sustained in consequence of the suing out of an attachment, the defendant seeks to recover exemplary damages against the plaintiff for his wrongful act, he cannot, upon the attachment bond, maintain an action therefor; but for such damages he is remitted to his common-law action on the case against the plaintiff alone for the wrongful suing out of the attach- ment, and must prove, in order to recover such damages, both malice and the want of probable cause on the part of the plaintiff." ' Kyd V. Cook, 56 Neb. 71, 76 N. W. 524 (Citing Lawrence v. Hagerman, 56 111. 68, 8 Am. Rep. 674) . * Wetsel V. Tillman, 3 Tex. Civ. App, 559, 22 S. W. 980. ' Brovm v. Master, 104 Ala. 451, 16 So. 443. Attoeneys. 104. Disbarment. A complaint for the disbarment of an attorney is bad on demurrer whei-e the specifications of his alleged misconduct are not germane to the general charge that he "is guilty of malconduct in his ppof&s- sion as an attorney," in that such specifications relate to his private and individual conduct, not pertaining to his profession as an attor- ney. * '^ State ex rel. Bwrtman v. Cadwell (Mont.) 36 Pac. 85. Attoeneys' Fees. 105. Demand for, not demurrable. A motion to strike, and not a demurrer, is the proper remedy for the inclusion, in a complaint upon a promissory note, of a demand for an attorney's fee to which, on the face of the complaint, the plain- tiff is not entitled.-' • Cole v. Tmk, 108 Ala. 227, 19 So. 377. vii. rok insufficiency ; paeticulae allegations. 277 Audit. 106. Audit, demand, presentation, or 107. Time of presentation, notice, etc., required by stat- ute must be alleged. ^ee also Leave to Sue, §§ 353, 354, infra; Statutes, §§ 445-456, infra. 106. Audit, demand, presentation, or notice, etc., required by statute must be alleged. Wliere a statute forbids actions of a specified class or nature to be brought until after the performance of a condition precedent, — such as audit, demand, or presentation, — ^the complaint is bad on demur- rer if it does not show performance of the condition.^ It is the better opinion that under the new procedure this rule ap- plies whetlier the action would lie at common law, or is given by the statute.^ ' Ellinaen v. Halleck, 6 Cal. 386, holding demurrer the proper remedy when the statute forbids the action except after presentation. (As to what claim ia within the statute, this case is questionable.) McCann v. Sierra County, 7 Cal. 121 ; Alden v. Alameda County, 43 Cal. 270 (sustaining demurrer for want of allegation that the claim was presented to board of supervisors ) . Complaint against a county may be dismissed on motion for insufficiency in not alleging presentation for audit, which was required by statute. Maddox v. Randolph County, 65 Ga. 216. Complaint by a witness suing a county for fees in a criminal case is bad on demurrer for not alleging judge's certificate, itemized bill, and pres- entation under oath. First, Nat. Bank v. Custer County, 7 Mont. 464, 17 Pac. 551. Fisher v. New York, 67 N. Y. 73 ( application to the mayor for payment be- fore suing on an award of damages for a, local improvement ) . In Reining v. Buffalo, 102 N. Y. 308, 311, 6 N. E. 792, the general prin- ciple is fully discussed, and authorities reviewed, where the statute re- quired presentation of claim on municipal corporation. Bammerle v. Kramer, 12 Ohio' St. 252 (action against executors or admin- istrators under statute to the effect that no executor or administrator shall be liable to the suit of a. creditor until after the expiration of eighteen months from the date of the administration bond, or unless the claim has been exhibited to the executor or administrator, and by him rejected). Thompson v. Milwaukee, 69 Wis. 492, 34 N. W. 402 (action against city for work and materials in building school-house j statute requiring notice to be filed within twenty days). 278 EEIEF ON PLEADINGS DEMTJEEEE. An allegation in a complaint to foreclose a mortgage against an estate, that plaintiff presented to the executrix its claim for the amount due and to become due on the note and mortgage, and that such claim was duly verified and duly allowed by the executrix and the judge of the court, and duly filed, sufficiently shows the presentation of the claim, as against a general demurrer, without an allegation that such claim described the mortgage or was accompanied with a copy thereof. Bum- loldt Sav. & h. Soc. V. Burnham, 111 Cal. 343, 43 Pac. 971. A complaint charging the administratrix of a deceased debtor with embez- zlement and conversion of the funds of the estate, for which an account- ing in equity from her is sought, need not show that the claim had been presented to the administratrix under a rule of probate practice, as no relief is sought against her as administratrix. Bycm v. Spieth, 18 Mont. 45, 44 Pac. 403. The averment in a complaint in a foreclosure action, that the plaintiff pre- sented to the administrator of the mortgagor his claim for the amount of the principal sum and interest due as shown by the promissory note and mortgage as set forth in the complaint, as required by law, to- gether with the necessary vouchers to entitle the said claim to be al- lowed and to rank among the acknowledged debts of the estate, is not an averment of a mere conclusion of law, and is good as against a de- murrer on the ground that the complaint does not state facts sufficient to constitute a cause of action. Jones v. Rich, 20 Mont. 289, 50 Pac. 036. Plaintiff in an action upon a note commenced in the lifetime of a surety is not required to allege presentment to or rejection of the note as a claim against the estate of the surety after his death, pending the ac- tion. Beissner v. Weelces, 21 Tex. Civ. App. 14, 50 S. W. 138. That a claim of a county treasurer for money paid by mistake to the county board, which is required by statute to order it to be repaid upon clear proof of the mistaken payment, was presented to the board before suit brought therefor, need not be alleged in the complaint. If it was not so presented, that is a matter of defense. Gibson Comity v. Tich- enor. 129 Ind. 562, 29 N. B. 32 (so held on eiTor). The allegation in a petition in an action by one county against another upon a claim for keeping prisoners, under Kan. Gen. Stat. 1889, § 3549, as to the presentation of the claim, "that said claim and amount is due and wholly unpaid ; that the same has been demanded and payment thereof refused," — is sufficient as against a demurrer. Finney Cmonly V. Cray County, 8 Kan. App. 745, 54 Pac. 1100. The complaint in an action against a town for the purchase price of prop- erty sold it must allege the presentation of such verified account to the supervisors, imder Minn. Gen. Stat. 1894, § 687. Old Second Nat. Bank V. MiddletovM, 67 Minn. 1, 69 N. W. 471. To maintain an action against a village for services as village clerk, it i" not necessary to aver that the authorities have refused to audit the ac- count, or that there is money in the village treasury which is subject to its payment. Langford v. Doniphan, 53 Mo. App. 62. VII. — FOE insufficiency; particular allegations. 279 Tailuie of a complaint for the recovexy of an alleged illegal tax paid to de- fendant city under protest, to state whether any claim was presented to the common council before the suit was commenced, renders it de- mmi-able where the city charter provides that no action on "any claim or demand" or "in tort" shall lie against the city unless such claim has been presented to the council. Flieth v. Wausau, 93 Wis. 446, 67 N. W. 731. A petition by a United States district attorney to recover for services ren- dered as such need not state how or when the account claimed was pre- sented to proper accounting officers. Weed v. United States, 65 Fed. 399. * Seining v. Buffalo, 102 N. Y. 308, 6 N. E. 792, and other cases above cited. As to what claims are within the laugviage of such a statute, and what is a suflScient presentation, see note to Gavin v. Brooklyn, 24 Abb. N. C. 292, where the cases are collected. 107. Time of presentation. If such a statute raakes the time of presentation a part of the con- dition, the complaint must show compliance in respect to time.^ ^Reining v. Buffalo, 102 N. Y. 308, 6 N. E. 792 (reviewing the cases). But plaintiff need not allege performance of the conditions specified in a city charter as to presentation of claims for negligence of the city and the time for bringing action thereon, although it is provided that the omission to present such claim within such time "shall be a bar to an action," and that no such action shall be commenced except within the time stated, as performance is not a condition precedent to the com- mencement of an action, but nonperformance is a matter of defense. Hawley v. Johnstown, 40 App. Div. 568, 58 N. Y. Supp. 49 (Distin- guishing Reining v. Buffalo, 102 N. Y. 308, 6 N. E. 792). Compare Wise v. Hogan, 77 Cal. 184, 19 Pac. 278, holding that, in » suit against an administrator, an allegation that the claim was presented within ten months after first publication of notice to creditors, without alleging the value of the estate, — the California Code of Civil Procedure providing that four or ten months' notice shall be given, according to the value of the estate,- — does not make the complaint bad on general demur- rer, though defective. A complaint against an administrator for his breach of a contract between plaintiff and his intestate is not bad on general demurrer, on the ground that it does not allege that plaintiff presented his claims within the time limited in a notice to creditore, where it contains no allegations as to the publication of notice to creditors, and it alleges that the claim was presented in due form. McCann v. Pennie, 100 Cal. 647, 35 Pac. 158. 280 BRIEF ON PLEADINGS DEMUEEEK. AUTHOEITY. 108. Statutory authority. 111. Sufficiency of averment. 109. Eelation of husband and wife. 112. Revocation. 110. Necessity of averring authority. See also Agency, §§ 84, 85, supra; Duly, § 277, infra. 108. Statutory authority. In pleading a contract made by authority of a public general stat- ute, it is not necessary to state or refer to the statute.^ ' Shaw V. Tobias, 3 N. Y. 188. Municipal authority to issue bonds, if conferred by special statute, must be alleged, either by direct allegation or by the terms, of the bond annexed to the pleading. Jefferson County v. Lewis, 20 Fla. 980; Hopper v. Covington, 118 U. S. 148, 30 L. ed. 190, 6 Sup. Ct. Rep. 1025. A complaint in an action based upon a contract entered into in pursuance of a statute must show that the contract is in accordance with and au- thorized by the terms of the statute. Lihley v. Elsworth, 97 Cal. 316, 32 Pac. 228; Ferine v. Forbush, 97 Cal. 305, 32 Pac. 226. MTiere one seeks to enforce an executory contract against a, city, he must show that the contract is one which the city is authorized by statute to enter into. A general allegation of authority is insufficient. Texas Water & Gas Co. use of Bonner v. Cleburne, 1 Tex. dv. App. 580, 21 S. W. 393. 109. Relation of husband and wife. Alleging that an act was done by the wife for her husband, or by the husband for his wife, is not a sufficient allegation of her author- ity as agent for him.'' ^ Sohullhofer v. Metmger, 7 Robt. 576 (money borrowed. Denying leave so to plead, because it would be insufficient). The rule is recognized in Krumm v. Beach, 96 N. Y. 398. To same effect, see Brief on the Facts, "Agency." 110. Necessity of averring authority. The authority of attorneys to bring an action or make agreements therein,^ or of members of an association who sue to compel its treas- urer and his sureties to make good a fund^ need not be alleged. A complaint alleging wrongful action by a city need not allege that such action was authorized by its coinmon coimcil.* The authority of a municipal corporation to do certain acts need not be averred VII. FOE INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 281 where it is alleged that the city was chartered under general laws, where authority to perform such a.cts is conferred by such laws.* In an action against a corporation charged with having conspired to defraud in a transaction without the scope of its charter, the com- plaint is not defective for want of an averment that the corporate officers and agents were specially authorized to act as they did in its behaJf.^ Nor, in an action against a railroad company to recover for personal injuries due to the negligence of a brakeman, need the petition allege that the company authorized the misconduct of the brakeman." In a suit upon an instrument which, as set forth, appears to have been executed through an agent, the latter's authority need not be averred.'^ In a suit to set aside tax sales an alleg'ation that a publication of notice in the tax suit was unauthorized must be disregarded as a mere conclusion of law.^ ' Hickory County v. Fugate, 143 Mo. 71, 44 S. W. 789. A petition to enjoin a sale of land levied upon under execution, on the ground that the judgment was entered in violation of an agreement between counsel that judgment should be entered for a less amount, is fatally defective where it does not allege that counsel were authorized to make the agreement, or that it was ratified by either of the clients. Anderson v. Oldham, 82 Tex. 228, 18 S. W. 557 (Citing Williams v. molan, 58 Tex. 713; Roller v, Wooldridge, 46 Tex. 495; Carter v. Roland, 53 Tex. 545). ' Stemmermann v. L-ilienthal, 54 S. C. 440, 32 S. E. 535. ' Jeffersonville v. Myers, 2 Ind. App. 532, 28 N. E. 999. But a bill to restrain the collection of special assessments for public im- provements, alleging that some unknown persons styling themselves council of a designated village endeavored to pass a certain pretended ordinance for a public improvement, is demurrable in failing to show that the ordinance was passed by an authorized body. Hewes v. Win- netka, 60 111. App. 654. 'Honey Grove v. Lamas ter (Tex. Civ. App.) 50 S. W. 1053. The petition in an action to recover taxes for the erection of a city hall need not set out the authority under which the city hall was erected, where such authority exists under a provision in the city charter. Wright v. San Antonio (Tex. Civ. App.) 50 S. W. 406. '■ Zinc Carbonate Co. v. First Nat. Bank, 103 Wis. 125, 79 N. W. 229. If a defect, it should be reached by motion for indefiniteness, and not by demurrer. ' Gulf, C. & S. F. B. Co. V. Pierce, 7 Tex. Civ. App. 597, 2.3 S. W. 1052. 'Goete V. Goldbaum (Cal.) 37 Pac. 646 (Citing Sherman v. Comstock, 2 282 BEIEF ON PLEADINGS DEMUEEEE. McLean, 19, Fed. Cas. No. 12,764; Slack v. Fvr8t 'Nat. Bank, 19 Ky. L. Rep. 1684, 44 S. W. 354). But a petition in an action upon a promissory note signed in the name of a corporation by a person as its business manager fails to state a cau^e of action where it does not allege any authority in the person so sign- iog the note to execute promissory notes in the corporation's name. Topelca Capital Co. v. Bemington Paper Co. 61 Kan. 1, 57 Pac. 504, Modified on Rehearing in 61 Kan. 6, 59 Pac. 1062 (so held on error). So, in an action against an insurance company to recover upon a dishon- ored check drawn by its general agent, the petition is fatally defective when it fails to allege that the drawer of the check was the general agent of the defendant, or that he intended thereby to bind his princi- pal or had authority to do so, or that it was drawn in connection with defendant's business. Penn Mut. L. Ins. Co. v. Conoughij, 54 Xeb. 123, 74 X. W. 422 (so held on error). ' Schiffman v. Hchmidt, lo4 Mo. 204, 55 S. W. 451 (so held on error). 111. Sufficiency of averment. A complaint alleging' the execution of a note by one described as a partner in a specified firm sufficiently alleges his authority to exe- cute the uote in behalf of the firm.* The authority of an agent to execute a contract is sufficiently ■shown where it is alleged that the principal entered into the contract, and acted and made payments thereunder.^ But the existence of authority in a bank to transfer a note is not shown by a statement that it acted as the agent of the holders, where it is previously alleged that it received the note simply for collection.'' ^ Redemeyr v. Henley, 107 Cal. 175, 40 Pac. 230 (so held on error). ' McPherson v. Sa/n Joaquin County (Cal.) 56 Pac. 802. • Marine Nat. Bank v. Humphreys, 62 Minn. 141, 64 N. W. 148. 112. Eevocation. An allegation that one revoked an authority he had given suffi- ciently imports, on demurrer, notice to other parties, if notice be nec- essary to constitute revocation.* '^ Frets V. Frets, 1 Cow. 335; Allen v. Watson, 16 Johns. 205; 1 Chitty, PI. 16th Am. ed. 244 (Citing Marsh v. Bulteel, 5 Bam. & Aid. 507; Tyni- or's Case, 8 Coke, 816). Bknefit. See also Name, §§ 384-392, infra. 113. Telegram sent for plaintiff's benefit. In an action for delay in delivering a telegram which shows on its VXI. FOE INSUFFICIENCY ; PARTICULAR ALLEGATIONS. 283 face that it was sent for the benefit of plaintiff, he need not aver that fact in so many words, or otherwise than by the message itself.^ ^ Western U. Teleg. Co. v. Jeanes, 88 Tex. 230, 31 S. W. 186, Efiversiiig 29 S. W. 1130 (so held on error). That a message was sent for the plaintiff's benefit need not be expressly alleged, where the petition states facts which do not admit of any other conclusion. Western XJ. Teleg. Co. v. Thompson (Tex. Civ. App.) 41 S. W. 1103 (so held on error). Bill of Particulars.* See also Account, §§ 75-78, supra; Documents, §§ 246-274, i/nfra. 114. Not considered on demurrer. At common law neither a bill of particulars,^ nor a notice of spe- point wherein the party filing it is aggrieved. Dunn v. Beniok, 40 W. Va. 349, 22 S. E. 66. Bills and !N^otes. See Contracts, subd. g, §§ 192-195, infra. Bona Fide Pueghasee. 116. Conclusion of law. 117. Sufficiency of averments. 116. Conclusion of law. A general allegation that the party is a bona fide purchaser or an innocent purchaser is a mere conclusion of law and insufficient.^ •^ Borer Iron Co. v. Trout, 83 Va. 397, 2 S. E. 713, and cases cited; Wing v. Hayden, 10 Bush, 276; Boone v. Chiles, 10 Pet. 177, 211, 9 L. ed. 388, 400. 117. Sufficiency of averments. Averment of a belief that plaintiff in a suit upon a promissory note 286 BEIEF ON PLEADINGS ^DEMUEEEE. is not a holder for value, but took it under circumstances and with knowledge of facts putting him upon notice and inquiry, without al- leging facts or circumstances upon which defendant founds such be- lief, is insufficient.^ An indorsee of a promissory' note need not allege, in an action thereon, that the note was indorsed over to him before maturity, in order to entitle him to protection as a bona fide holder.^ The petition in an action on coupons, payable to bearer, need not allege that plaintiff is the owner for value of such coupons.* An assignee of a second mortgage, which was recorded before the prior moi-tgage, of which the second mortgagee had notice, must, in order to entitle him to precedence over the jjrior mortgagee, allege and prove that he paid & valuable consideration for the assignment, and took the same without actual or constructive notice of the prior mortgage.'* The complaint in an action by the assignee of a mortgage to set aside a deed alleged to have been executed in fraud of the mortgage,, and to foreclose the mortgage, need not allege that he is an innocent assignee for value, without notice.^ A plea by a defendant alleged not to have been a good faith pur- chaser of lands, that he acqnired the title thereto for full value and without notice of the supposed fraud and breach of trust of his grant- or, is defective where it does not also aver that the purchase was made in good faith.® ' Second Nat. Bank v. Morgam, 165 Pa. 199, 30 Atl. 957 (so held on error). A plea in an action on a note, denying the right of plaintiff to recover, be- cause he was not the bona fide holder of the note in suit, is demmrable where no legal defense to the note is set up, under Gra. Code 1882, § 2789, providing that the title of a holder of a note cannot be inquired into unless it is for the protection of defendant, or to let in the defense which he seeks to make. Johnson, v. Gobi), 100 Ga. 139, 28 S. E. 72. ' McGrath v. Pitkin, 26 Misc. 862, 56 N. Y. Supp. 398. ' Xeir South Brewing & Ice Co. v. Price, 21 Ky. L. Rep. 11, 50 S. W. 963. ' Cotiiily Bank v. Fox, 119 Cal. 61, 51 Pac. 11 (so held on error). » Simon V. BahJ), 56 S. C. 38, 33 S. E. 799. 'Connecticut Mut. L. Ins. Co. v. amith, 117 Mo. 261, 22 S. W. 623 (so held on error ) . vii. foe insufficiency ; paeticdlae allegations. 287 Bonds. a. Appeal honds. g. Municipal bonds. 118. What need be alleged. 125. Sufficiency of allegations. 119. Sufficiency of allegations. h. Official hands. b. Attachment lands. 126. Sheriff's bond. 120. Sufficiency of averments. 127. Treasurer's or collector's c. Bail hands. bond. 121. Sufficiency of averments. i. Bonds in actions. d. Executor's hands. 128. Corporate officers. 122. Sufficiency on demurrer. 129. Replevin bonds. e. Injunction hands. 130. Supersedeas bond. 123. What need be alleged. f. Liquor dealer's hands. 124. What need be alleged. a. Appeal bonds. 118. What need be alleged. A complaint upon an appeal bond need not contain averments of approval ;^ nor need it he alleged that the judgment of the appellate court, affirming the judgment appealed from, remained in full force, and that no appeal had been prosecuted therefrom.^ In an action on an undertaking on appeal conditioned that if judg- ment is rendered against the appellant and execution issued thereon is returned unsatisfied, the sureties will pay the amount of the judg- ment remaining unsatisfied, the complaint need not allege the issue of an execution by the county clerk on the judgment of the appellate court.^ A petition on an undertaking on appeal in replevin from a jus- lice's court need only alleg'e that the property hasi not been returned, and not that a return cannot be had, or that the plaintiff in error has not returned or offered to return the propei'ty.* Failure of a petition in an action on an appeal bond given on ap- peal from a justice of the peace, to state that the transcript w^as duly filed in the common pleas, and other steps taken to perfect the ap- peal, should be taken advantage of by demurrer.^ ^Supreme Council, 0. B. L. v. Boyle (Ind. App.) 42 N. E. 827. 'Harding v. Kuessner, 172 111. 125, 49 N. E. 1001 (so held on error). A complaint on an appeal bond, alleging the dismissal of an appeal, need not aflSrmatively allege that a second appeal had not been taken within thirty days thereafter, as might be done under the statute. Long v. Sullivan, 21 Colo. 109, 40 Pac. 359 (motion for judgment on pleadings). 'Morris v. Hunhen, 40 App. Div. 129, 57 N. Y. Supp. 712 (motion to dis- miss complaint ) . *Shoning v. Cohurn, 36 Neb. 76, 54 N. W. 84 (so held on error). 288 J3EIEF ON PLEADINGS DEilUEEEE. ia Pieper v. Peers, 98 Cal. 42, 32 Pac. 700, which was an. action against the sureties upon an undertaking given to stay execution of judgment pending an appeal from a judgment for the delivery of personal prop- erty, the court says: "It was not necessary to the sufficiency of the complaint to allege the issuance and return of the execution unsatisfied {Niclcerson v. Chatterton, 7 Cal. 573; Tissot v. Darling, 9 Cal. 28.5); or that notice of the dismissal of the appeal by the superior court was given (Murdockf v. Brooks, 38 Cal. 604) ; or that demand was made prior to the commencement of the action ICohurn v. Brooks, 78 Cal. 443, 21 Pac. 2; Murdoch v. Brooks, 38 Cal. 004)." ' Rudershaver v. Pagels, 14 Ohio C. C. 327. 119. Sufficiency of allegations. The execution of an appeal bond by the sureties is not sufficiently alleged by a complaint averring the execution of the bond by the prin- cipal defendant, and that the appeal was perfected.^ In an action upon an undertaking on appeal, an allegation that de- fendant in the action in which it was given appealed from the judg- ment to a specified court is sufficient without alleging the steps taien.^ An averment in an action upon an appeal bond, that the appeal was prosecuted to effect, as conditioned in the bond, is a mere inference on a matter of law, and insufficient.^ And an allegation in an action on an appeal bond conditioned to prosecute the appeal to effect, that the suit was finally terminated by order of the appellate court, vsdth- out stating in whose favor it was terminated, is bad on demurrer.* ^Svpreme Council, C. B. L. v. Boyle, \'i Inrl. App. 342. 44 X. E. .56. 'The "appeal" is the ultimate fact to be alleged. The several acts per- formed in taking it are but probative facts, and their allegation in the complaint would be obnoxious to the charge of alleging evidence in- f^tead of facts. Moffat v. Grcmiralt. 00 Cal. 368, 27 Pac. 296. A complaint in an action on an appeal bond, alleging that an appeal has been taken from the judgment, that an appeal bond was given, and that the judgment Avas affirmed, is sufficient without specifically alleging in detail that the principal obligor has complied with all the legal provi- sions in perfecting the appeal, since the sureties are estopped to que-;- tion the validity of the bond on that ground. Pierce v. Banta, 9 Ind. App. 376, 31 N. E. 812. 'TJaggitt v. Mensch, 141 111. 39.5, 31 N. E. 153 (Citing 1 Chitty, PI. 9th ed. 214; Kilgore v. Ferguson, 77 111. 213; Prople v. Grotty, 93 111. ISO; JJateh V. Peet, 23 Barb. 583). The question was raised in Fulton v. Fletcher, 12 App. D. C. 1, whether an averment that the appellants did not prosecute their appeal to effect was sufficient. The court determined that if it were admitted that there was a defect which would have been fatal on demurrer, it was one that would be clearly cured by verdict. The court refers to Gor- VII. FOB INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 289 man v. Lennoai, 15 Pet. 115, 10 L. ed. 680, holding that in a declaration on a bond given to prosecute with effect a, wiit of replevin a breach assigned "that the suit was not prosecuted with effect" is sufficient. The court further says: "In assigning breaches the general rule is that they may be assigned by negativing the words of the covenant (Karthaus v. Otcings, 2 Gill. & J. 430). The same doctrine has been announced in the case of 'goal-delivery' bonds (Smith v. Jansen, 8 Johns. Ill; Hughes v. Smith, 5 Johns. 168), and also in actions on bonds for injimetion {Burgess v. Lloyd, 7 Md. 178; Le Strange v. State use of Roche, 58 Md. 26)." *Daggitt v. Mensch, 141 III. 395, 31 N. E. 153. b. Attachment hands. 120. Sufficiency of averments. An allegation in a complaint in an action on an attachment bond that the principals made, executed, and iiled the bond, a copy of which is set forth, showing tlie signature of the sureties attached, is not a sufficient allegation that it was executed by the sureties.^ ^Seattle Groekeiy Go. v. Haley, 6 Wash. 302, 33 Pae. ©50. An allegation that defendants gave an attachment bond, with sureties, for the protection of plaintiff, as required by law, amounts merely to a statement that they procured a bond, and is not sufficient as an allega- tion that the sureties executed it. Church v. Campbell, 7 Wash. 547, 35 Pac. 381 (nonsuit). So, a, plea alleging that the attachment and levy thereunder are utterly void because the attachment had been issued and levy made without the necessary attachment bond having been first given is demurrable where the attachment plaintiff had given a bond on the day the attach- ment was issued, as the plea, if designed to attack the attachment bond actually given, is bad in failing to point out any defect therein. Eng- lish V. Reed, 97 Ga. 477, 25 S. E. 325. But a complaint in an action on a forthcoming bond in attachment suffi- ciently shows, as against a demurrer, that the depreciation of the prop- erty was due to the usage and neglect of defendants in attachment, where it alleges that the property when it was delivered to them was new and in good condition, and when redelivered about a year after- wards, it was worn, injured, and damaged by wear and tear, usage, and neglect. Creswell v. Woodside, 8 Colo. App. 514, 46 Pac. 842. And an avei-ment in a complaint in an action on a redelivery bond in attach- ment, conditioned that if plaintiff recovers judgment, in default of re- delivery the defendant and sureties will, on demand, pay tlie full value of the property released, that plaintiff demanded of the sureties that they pay him the judgment, and fulfil the obligation as expressed in the undertaking, is sufficient as against a general demurrer, where the judgment recovered is less than the value of the property as fixed in Abb. Pl. Vol. I.— 19. 290 BRIEF ON PLEADINGS DEMUEKEE. the bond and as alleged in the complaint. MuUally v. Toivnsend, 119 Cal. 47, 50 Pac. 1066. A complaint on an attachment bond, alleging that plaintiff engaged an attorney to represent him in the attachment suit, and incurred attor- ney's foes in a certain sum, is demurrable for failure to show that such fees have been paid. Elder v. Eutner, 97 Cal. 490, 32 Pac. 563. c. Bail bonds. 121. Sufficiency of averments. A complaint upon a bond given to secure the appearance of the principal to answer any indictment that may be found against him upon a certain charge must show that the bond was given in a pend- ing legal proceeding against the prisoner, before an officer having ju- risdiction and qualified to hold examinations and admit to bail, and under circumstances where it was proper to require bail to be given, or, in default thereof, to commit to jail.^ That the default of the principal obligor in a recognizance was en- tered of record is sufficiently alleged in a complaint against the sure- ties, which, after reciting that the principal was repeatedly called, and the calling of the sureties, sta^tes that the obligors thereby made default in the conditions of their recognizance, which was then and there by order entered of record declared forfeited.^ An averment that a recognizance was filed is sufficient in Nevada, and it need not be expressly averred that it became a record of the cause or suit* ' United States v. Keiver, 56 Fed. 422 ( Citing People v. Koeher, 7 Hill, 39 j People V. Young, 7 Hill, 44; Vose v. Deane, 7 Mass. 280; People v. Broum., 23 Wend. 49 ; Andress v. State, 3 Blackf. 108 ; Htate v. Lamoine, 53 Vt. 568; The Treasurer v. Merrill, 14 Vt. 64; Dickenson v. State, 20 Neb. 72, 29 N. W. 184). 'Biggins v. People, 2 Colo. App. 567, 31 Pac. 951. An allegation in a complaint in an action on a bail bond, that the principal was called and failed to appear, is equivalent to an allegation that his default for not appearing was entered of record, and is sufficient under Mont. Crim. Practice Act, § 258. State v. Wrote, 19 Mont. 209, 47 Pac. 898. That the principal "was duly called at the proper time and place, and failed to appear in person," is a sufficient allegation to authorize a. forfeiture under Mont. Crim. Practice Act, § 236, although it does not allege that the default was "without excuse." Ibid. •Slate V. Murphy, 23 Nev. 390, 48 Pac. 628. VII. FOK INSUFFICIENCY ; PARTICULAR ALLEGATIONS. 291 d. Executor's hands. 122. Sufficiency on demurrer. An allegation in an action on an executor's bond, that the executor was appointed, letters testamentary were directed to be issued to him upon his executing a bond according to law, and that defendants duly made and executed the bond required by such order, suiEciently al- leges the requirement of the statute as against a general demurrer.* ^ Evans v. Gerken, 105 Cal. 311, 38 Pac. 725. e. Injunction hands. 123. What need be alleged. A relator in an action on an injunction bond in the name of the state must show in the declaration how he acquired title to a judg- ment the collection of wliich was restrained by the injunction, and which, on its face, does not appear to have been in his favor. '^ A petition in an action upon an injunction bond must show a final determination of the entire proceeding wherein tlie injunction order is granted." An avennent that a judgment has been in all things affirmed, and that a claim on aii injunction bond is due, is not insufficient because it fails to state that the time allowed for a petition for i-ehearing has expired.'"' A declaration on an injunction bond must allege that tlie plaintiff in the injunction, by reason rel. Kendall, 10 Ind. App. 530, 38 N. E. 190, holding VII. FOE INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 293 avei-ments sufficient which set forth the sale of beer to the deceased, and that by reason of drinking such beer he became drunk and incapa- ble of driving a team, to the knowledge of defendant, who allowed him, at night, to attempt to drive home; and that by reason of his intoxica- tion he drove violently into a rut and was thrown from his wagon and killed (Citing Beem v. Chestnut, 120 Ind. 390, 22 N. E. 303; Mulcahey v. Givens, 115 Ind. 286, 17 N. E. 598; Dunlap v. Wagner, 85 Ind. 529). A complaint in an action on a liquor dealer's bond for causing the death of plaintiff's husband, which alleges unlawful sale to the husband and other specified persons, and that by reason of the intoxicated condition of such persons, including the husband, in defendant's saloon, the hus- band was thrown and fell upon the floor, whereby he was mortally wounded, sufficiently shows that his death was caused by liquor sold by defendant. Smiser v. State ex rel. King, 17 Ind. App. 519, 47 N. E. 229 (so held on error). • The question cannot be raised for the first time on appeal. GuilUokson V. Gjorud, 89 Mich. 8, 50 N. W. 751 (Citing Jenmison v. Haire, 29 Mich. 210; Wright v. Treat, 83 Mich. 113, 47 N. W. 243). g. Municipal hands. 125. Sufficiency of allegations. A declaration in an action on town bonds, alleging that they were "lawfully made, executed, sold, and delivered," with an exhibit of the bond itself, sufficiently alleges the lawful execution of the bond without an allegation of compliance with particular constitutional or statutory provisions.^ A complaint upon negotiable county bonds need not allege the de- tails of the making of the contract under which they were issued, nor of its fulfilment.^ ISTor need it allege the fact that there has been no overissue.^ A petition in an action to enjoin the issuance of bonds to take the place of bonds originally issued and alleged to be void should show by positive averment, and not merely by inference, failure to comply with the requisites for the issuance of such bonds, by reason of which plaintiff asserts their invalidity.* ' Brown Bros. v. Point Pleasant, 36 W. Va. 290, 15 S. E. 209. A petition in an action upon municipal bonds given in aid of a railroad need not aver the preliminaiy facts requisite to the exercise of the power gi'anted by the legislature to subscribe for the stock and issue the bonds, but any irregularity in the preliminary steps must be pleaded and shown by defendant. Breckinridge County v. MoCracken, 9 C. C. A. 442, 22 U. S. App. 115, 61 Fed. 191. But a complaint for a mandamus to compel the issue of bonds of a munici- pal corporation, alleging that a majority of the votes cast were in 294 BRIEF ON PLEADINGS DEMUEEEE. favor thereof, is not sufficient to show a compliance with a, constitu- tional provision requiring a vote of the majority of the qualified voters of the corporation. Lynchburg & D. R. Co. v. Person County, 109 N. 0. 159, 13 S. E. 783 (complaint dismissed). The declaration in an action upon the corporate bonds of a municipality, issued by special agents having special powers, must aver facts show- ing the authority of such agents; but, if the bonds are issued by the corporation itself, or its general agents, no such averments are neces- sary. Ridgefield Twp. Bd. of Edu. v. Gliffside Park Bd. of Edu. 63 N. J. L. 371, 43 Atl. 722. An allegation in a bill to restrain the i3s.uance of county bonds, that they were not sold to the highest bidder, is insufBcient under a statute requiring them to be sold at the highest price that can be obtained therefor, not less than their face value. Williams v. Butler County Bd. of Revenue, 123 Ala. 432, 20 So. 346. ' Catron v. LaFayeUe County, 106 Mo. 659, 17 S. W. 577. Nor need the petition in an action upon bonds issued in aid of a railroad contain any averment as to a provision constituting part of the con- tract between the company and the districts subscribing, that such dis- trict shall have the right to pay off the bonds after a certain time from the date. Breckinridye County v. MoOraclcen, 9 C. C. A. 442, 22 U. S. App. 115, 61 Fed. 191. • Catron v. LaFayette County, 106 Mo. 659, 17 S. VV. 577. But an allegation in a complaint upon county bonds that they were duly issued sufficiently negatives an overissue, were it necessary so to do. Ihid. *Buie v. Cunningham (Tex. Civ. App.) 29 S. W. 801. The failure of a complaint in an action to restrain the collector of an irri- gation district from selling lands for the satisfaction of a delinquent assessment for interest on outstanding bonds, on the ground that the assessment is excessive in that all or a portion of the bonds are invalid, to show definitely that there are no valid bonds outstanding, or what bonds are invalid, does not render it insufficient where it does disclose the invalidity of a sufficient number of bonds to make the assessment clearly excessive, and the failure is due to the noncompliance by the board of directors with the requirements of the statute as to keeping records of the bonds sold, llughson v. Crane, 115 Cal. 404, 47 Pac. 120. h. Official bonds. 126. Sheriff's bond. The petition in an action upon a sheriff's official bond should show that the bond was filed and approved, or disclose facts estopping the sureties from asserting its nonapproval.-' In aji action by a county upon a sheriff's bond for failure to pay over money collected for taxes, the petition is demurrable where it VII. FOR INSUFFICIETiTCY ; PAETICULAE ALLEGATIONS. 295 fails to show a settlement of tlie slierifp's accounts as provided by statute, or the sheriffs failure or refusal to make such settlement^ A complaint on a sheriff's bond need not state the various items of defalcation separately.* ^Fire Asso. of PUladelpUa v. Ruhy, 58 Neb. 730, 79 N. W. 723 (so held on error). ' Com. ex rel. Bourbon County v. McClure, 20 Ky. L. Rep. 1508, 49 S. W. 789. 'State V. MeDonald (Idaho) 40 Pac. 312. 127. Treasurer's or collector's bond. A petition in an action on a treasurer's bond need not allege his authority to perform duties imposed upon him by statute;^ nor, where the law requires him to turn over funds to the state, need their payment to the county be negatived.^ But in a suit on the bond of a delinquent treasurer, the bill is bad on demurrer for want of an averment that the notice required by statute had been given to the treasurer.** That other bonds were or were not given under a statute requiring county officers to give bonds in penal sums of one and one fourth times the amount of revenues coming into their hands is not a ground of demurrer.* An avennent in a declaration on the bond of a collector, that he was lawfully appointed and entered upon the duties of his office, is sufficient. ■'* A petition in an action on the bond of the treasurer of a society, which alleges that he had a specified siun on hand when he gave the bond, and afterwards received, as treasurer, a designated amount, and had only accounted for a certain part, is sufficient without alleg- ing from what source the money came.® ^OT is a complaint in an action to compel the treasui-er of an as- sociation and his sureties to make good a fund of the association demurrable for failure to allege a breach of his bond prior to the acceptance of his resignation, where such acceptance, the election of a successor, and demands made upon the former treasurer and his sureties are alleged.^ Delivery of checks on an insolvent bank does not show such pay- ment to the treasurer as vidll establish his liability or that of his sure- ties for the loss of the funds.* A complaint in an action against a treasurer, alleging the execu- 296 BEIEF ON PLEADINGS DEMUEEEE. tion by him of an official bond, setting out the conditions thereof and the f ax!ts constituting a breach, states a cause of action on the bond.* 'Hickory County v. Fugate, 143 Mo. 71, 44 S. W. 789. = State ex rel. Seilert v. Seibert, 148 Mo. 408, 50 S. W. 109. " Adams v. Arnold, 76 Miss. 655, 24 So. 868. ' Sweetwater County v. Young, S Wyo. 684, 29 Pac. 1002. ' People ex rel. Mt. Yernon v. Pace, 57 111. App. 674 (his commission need not be set out). 'KoMierg v. Fett (Tex. Civ. App.) 29 S. W. 944. ' Stemmermann v. Ulienthal, 54 S. C. 440, 32 S. E. 535. 'Bingham County v. Woodin (Idaho) 55 Pac. 662. ' Cody V. Bailey, 95 Wis. 370, 70 N. W. 285. So, a notice to the principal and sureties on the official bond of a county treasurer that, on a specified day, a designated court will be asked to render judgment against them for a specified sum due the common- wealth for taxes, with interest, sufficiently states the grounds of the commonwealth's complaint. Blanton v. Com. 91 Va. 1, 20 S. E. 884. 128. Corporate officers. In an action upon the official bond of a defaulting bank teller, a declajation which sets forth the bond of the defendant, avers its breach, the loss sustained, the plaintiff's right of payment, and al- leges nonpayment, sufficiently apprises the defendant of the grounds of the plaintiff's claim, and is not demurrable.-^ An allegation that an attorney of a corporation by virtue of his office was given a check payable to his order, to be used for a specific purpose, and that he converted the same, states a cause of action on a bond to secure the proper application of money which should come into his hands as such attorney.* ' Guarantee Go. v. First Nat. Bank, 95 Va. 480, 28 S. E. 909. ' Germania Spar d Bau Verevn, v. Flyrm, 92 Wis. 201, 66 N. W. 109. i. Bonds in actions. 129. Replevin bonds. A complaint in an action on a replevin bond should allege that the undertaking was delivered,^ and should state the value of the goods and the damage claimed.* A description of the property in general terms is sufficient^ It should be alleged in an action against the sureties on an under- taking given for the return of replevied property that the property VII- FOK INSUFFICIENCY ; PAKTICULAE ALLEGATIONS. 29T waa delivered to the defendant in tlae replevin suit upon taking the statutory proceedings tlierein.* ' Parrott v. Scott, 6 Mont. 340, 12 Pac. 763. 'Lowry v. National Safe & Lock Co. 31 Pittab. L. J. N. S. 240. ^ Keenan v. Washington Liquor Co. (Idaho) 69 Pac. 112. * Barton v. Donnelly, 6 Misc. 473, 27 N. Y. Supp. 625. 130. Supersedeas bond. A cause of action is stated on a supersedeas bond when the petition recites the pendency of the action, the rendition of judgment, the giving of the bond copied in the petition and its approval, the affirm- ance of the judgment, the issuance of a mandate and its entry on the records of the court, followed by an averment of the amount due upon the judgment.^ ' Cortelyou v. McCarthy, 53 Neb. 479, 73 K. W. 921. But in an action upon a supersedeas bond, it is unnecessary to aver the issuance and return nulla honai of an execution after the affirmance of the judgment. Ihid. (Citing Flannagan v. Cleveland, 44 Neb. 68, 62 N. W. 297 J Johnson v. Reed, 47 Neb. 322, 66 N. W. 405). BOUNDAKIES. See also Fences, §§ 292-294, infra. 131. Sufficiency of averment. A complaint is not good as one to establish boundaries, when it fails to aver that defendant was ever requested to establish the lines.^ ' Morgan v. Lahe Shore & M. S. B. Co. 130 Ind. 101, 28 N. E. 548. Beibeky. 132. Sufficiency of averments. A complaint contesting an election under a constitutional provision declaring a person convicted of having given or offered a bribe to pro- cure his election disqualified from holding office must allege that the contestee has been convicted of the crime of bribery.-' An allegation that a large number of voters was bribed does not show that any number sufficient to affect the result was bribed ; nor is an averment "that the majority of those voting in favor were not 298 BRIEF ON PLEADINGS DEMUKEEE. iinbribed," equivalent to an allegation that a majority of those voting in favor were bribed.^ ^Egan v. Jones, 21 Nev. 433, 32 Pac. 929. ' Woolley V. Louisville Southern R. Co. 93 Ky. 223, 19 S. W. 595. Beidges. 133. SuflSciency of averments. An allegation that the injury complained of was received upon a highway by reason of its want of rejDair sufficiently states a cause of action for an injury received upon a bridge, where, by statute, the word "highway" includes bridges tliereon.^ Where a county is required by statute to build and repair bridges crossing watercourses within its limits a complaint in an action for injuries due to a defective bridge sufficiently shoAvs that the bridge is one which the county is bound to maintain, where it shows that it was over a stream.^ A complaint by one county against another to rexjover its proportion of the expense of constracting a bridge upon the boundary line must aver compliance with tlie statutory ]Drovisions respecting bridges over boimdary streams.' • Cook V. Barton, 63 Vt. 566, 22 Atl. 663. 'Jackson County v. Nichols, 139 Ind. 611, 38 X. E. 526. A complaint against a county board for personal injuries sustained by being precipitated down an embanknient at the approach to a bridge' having no railing or barriers sufficiently shows that the bridge and its approaches is one which the county was required to keep in repair, where it alleges that such bridge was constructed over a natural water course consisting of a running stream known as a certain-named river, on the line of a public highway within the county. Shelby County v. Casielter, 7 Ind. App. 309, 33 N. E. 986, Rehearing Denied in 7 Ind. App. 318, 34 N. E. 687. But a complaint against a, county board for an injury resulting from the defective condition of a bridge, desig-natii^ the structure as a. certain culvert bridge upon a public highway, without stating its dimensions or the manner of its construction, is insufficient in failing to show that the bridge was one which the board was bound to keep in repair, and is not helped by an averment that the board in its corporate capacity had supervision over and control of the structure. Clarlc County v. Brod, 3 Ind. App. 585, 29 N. E. 430. And » complaint for damages for loss sustained by reason of an alleged defective county bridge is insufficient in not showing that it was in fact a county bridge which the county was bound to maintain, where VII. FOK INSUFFICIENCY ; PAKTICULAE ALLEGATIONS. 299 it only alleges that it was a bridge over a ditch which made a deep break in a highway, and was a natural outlet for surface water and waters flowing from under a railway near by, being dry during por- tions of the year only, without showing how frequently or to what extent the water flowed through it. Eeinhart v. Martin County, 9 Ind. App. 572, 37 N. E. 38. * Jackson County v. Washington County, 146 Ind. 138, 45 N. E. 60. Brokers. 134. Sufficiency of allegations. In an action by a broker to recover commissions an averment tbat he found a purchaser is sufficient where the agreement alleged is that he was to secure a purchaser generally. N^or is it necessary to describe the land for services in the sale of which recovery is sought, where a special contract to sell land for a specified sum is averred, and thait the iDiaintiff found a purchaser to whom the defendant sold the land.*^ A declaration by a real-estate broker for commissions must aver that the purchaser obtained was able, ready, and willing to pay the purchase price.^ ' Mullen V. Bower, 22 Ind. App. 294, 53 N. E. 790. A complaint based upon a verbal contract whereby defendant agreed to pay plaintiff a certain sum whenever he found a purchaser to whom the defendant should sell his land, in pursuance of which plaintiff found a purchaser with whom the sale was consummated, upon the com- pletion of which defendant agreed to pay the amount, but failed to do so, sufficiently states a cause of action. Bertha v. Sparks, 19 Ind. App. 431, 49 N. E. 831 (so held on error). ^Reardon v. Washburn, 59 111. App. 161 (Citing Pratt v. Hotchkiss, 10 111. App. 603). By-Laws. 135. Must be pleaded. A by-law of a corporation, whether municipal or otherwise, can- not be noticed by the court without pleading, but must be alleged, whether sought to be enforced by action or set up as a protection.* ' In Barker v. New York, 17 Wend. 201, on demurrer to a. plea, it was held that the rule was the same, although the statute provided that the by- law might be read in evidence from the ollicial publication. 300 beief on pleadings demubeek. Oareiees. 136. Common carrier. 138. Transportation of property. 137. Passengers, — injury or damage to. See also Negligekce, §§ 394-398, infra. 136. Common carrier. The fact that a railroad company given the power of eminent do- main by its charter is a common carrier need not be specially alleged j nor need such fact be averred concerning a lessee of its road.-* A complaint which alleges that a railroad company contracted to ''sliip, transport, and carry" goods to a certain place, and that it en- tirely failed to perform the contract, is sufficient without alleging that it is a "common carrier," since the action is based on a special con- tract which any person, natural or artificial, may make.* A complaint against a railroad company for injury to a passenger need not allege that the defendant is a common carrier, since all rail- road corporations operating passenger trains are subject to the lia- bilities and duties imposed by law upon common carriers.^ ^Caldiuell V. Richmond d D. It. Co. 89 Ga. 550, !o S. E. 678 (so held on error ) . 'Dunbar v. Port Royal & A. R. Co. 36 S. C. 110, 15 S. E. 357. 'Atlantic & P. R. Co. v. Laird, 7 C. C. A. 489, 15 U. S. App. 248, 58 Fed. 760 (so held on error). But a complaint alleging that plaintiff was on defendant's horse car, ready to pay his fare, when he was pushed off by the driver, fails to state a cause of action in the absence of an allegation that defendant was a common carrier. Barger v. North Chicago Street R. Co. 54 III. App. 284 (so held on error). 137. Passengers, — injury or damage to. A petition in an action for damages for refusing to receive and transport plaintiff as a passenger must allege that he was ready and willing to pay the legal fare.^ Averments that defendant was a common carrier and that plaintiff on a certain day took passage and was admitted as a passenger on one of its cars are not insufficient as alleging merely a conclusion that he was a passenger.* Allegations that a carrier's servants negligently caused a passenger to enter a train for which she had a ticket given her by mistake do not constitute a cause of action without an averment of their knowl- edge that she did not desire to take passage on the train indicated by the ticket she held.^ A petition averring that the plaintiff's destination was not called, VII. FOE INSUFFICIENCY ; PABTICULAE ALLEGATIONS. 301 and that, as the train passed the station, he asked the conductor to stop it, who refused his request, but told him to get off, which he at- tempted while the train was moving slowly, and was injured, is not subject to a general demurrer.* An averment that a train stopped at a place where the company was accustomed to take on and let off its passengers sufficiently desig- nates the place as a station at which passengers have the right to alight, although there is no averment that the train was stopped for the purpose of letting off passengers, or that the passengers were noti- fied to alight there.^ One induced by the statements of an employee of a carrier to so act as to meet with injury must allege facts showing that the statements were authorized by the company or made by the servant within the scope of his employment ; and a general averment that they were made while the employee was acting within the line of his duty is insuffi- cient.® The employee's identity need not be averred, but it is suffi- cient to show that the injury was due to the acts of one authorized to represent the carrier in the matter of management and control.'^ A petition against a railroad company for failure to rescue a pas- senger who fell or Avas thrown from a train is not sufficient when it does not allege that the train could have been stopped to rescue him without risk of collision with other trains, or that there were any means by which the trainmen could have procured othersi to have res- cued him.* A declaration in an action by a passenger for damages sustained from quarantine reg'ulations, which allies that the company's agent informed him he could go throug'h on the ticket without hindrance from quarantine regulations, that he relied on such statements, that the agent knew that quarantine regulations were then in force, and that he never signed or assented to the stipulations in his ticket, and did not know of tlieir existence, is not demurrable.® •/S*. Louis S. W. R. Go. v. Thomas (Tex. Civ. App.) 27 S. W. 419 (so held on error; Citing Tarhell v. Central P. R. Co. 34 Cal. 616; Day v. Owen, 5 Mich. 520, 72 Am. Dec. 62). A complaint for the wrongful ejection of a passenger from a railroad train is insufficient where it fails to allege that plaintiff surrendered or offered to surrender his ticket to the conductor, or that he tendered the usual fare, although it alleges the purchase of a ticket. White v. Evansville & T. B. R. Go. 133 Ind. 480, 33 N. E. 273. Averments that a conductor negligently and carelessly mis.treated a pas- senger in canying her beyond her destination, and in stopping at a distance from the depot and roughly ordering and forcing her to get 302 BEIEF ON PLEADINGS ^DEMUEEEE. off, are not sufficient to constitute a cause of action where it is not alleged that she had conformed to the rules of the company, and had paid her fare or offered to do so. Scott v. Cleveland, C. G. & St. L. Ji. Co. 144 Ind. 125, 32 L. R. A. 154, 43 N. E. 133. 'Ohio & M. R. Co. V. Craucher, 132 Ind. 275, 31 N. E. 941 (motion to make more definite ) . • iicott V. Cleveland, C. C. & St. L. B. Co. 144 Ind. 125, 32 L. R. A. 154, 43 X. E. 133. * Central Texas , 38 Neb. 339, 56 N. W. 1019. The court must, upon demurrer, determine whether or not the facts stated in the bill as taking an oral contract out of the statute of frauds con- stitute a sufiicient part performance. Dicken v. McKimley, 163 111. 318, 45 N. E. 134. A claim that the contract sued on need not be in writing is available on demuirer to an answer setting up the statute of frauds and alleging that the contract was not in writing. Brookline Nat. Bank v. Moera, 19 App. Div. 155, 45 N. Y. Supp. 997. VII. FOB INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 327 158. where contract does not appear to be oral. A pleading seeking to enforce a contract which is within the stat- ute of frauds is not demurrable because it does not affirmatively show that it was made in conformity to the statute, or within some excep- tion. It is enough that it does not show it was oral or otherwise with- out conformity to the statute.^ Under statutes requiring written instruments sued on to be filed or furnished as exhibits, the failure to allege or file a writing suffi- ciently shows that tlie contract was not in writing.^ '^ Sunborn v. Rodgers, 33 Fed. 851; Dargin v. Heiclitt, 115 Ala. 510, 22 So. 128; Broder v. Conklin, 77 Cal. 330, 19 Pac. 513; Hunt v. Hayt, 10 Colo. 278, 15 Pae. 410; Draper v. Macon Dry-Goods Co. 103 Ga. 661, 30 S. E. 566; Bluthenthal v. Moore, 108 Ga. 424, 32 S. B. 344; Horner V. Frazier, 65 Md. 1, 4 Atl. 133; Price v. Weaver, 13 Gray, 272; Elliott V. Jenness, 111 Mass. 29; Stearns v. Lake Shore & M. S. R. Co. 112 Mich. 651, 71 N. W. 148 (Citing Harris Photographing Supply Co. v. Fisher, 81 Mich. 136, 45 N. W. 661) ; Krohn v. Bantz, 68 Ind. 277; Sherwood v. Saxton, 63 Mo. 78; Whitehead v. Burgess, 61 N. J. L. 75, 38 Atl. 802 (Citing Duppa v. Mayo, 1 Wms. Saumd. 276; Biting v. Vanderlyn, 4 Johns. 237 ; Marston v. Sivett, 66 N. Y. 206, 23 Am. Rep. 43; Cosine v. Graham, 2 Paige, 177; Harris v. Knickerbaclcer, 5 Wend. 638; Livingston v. Smith, 14 How. Pr. 490; McCoy Lime Go. v. McCoy, 16 Montg. Co. L. Rep. 32; Whiting v. Dyer, 21 R. I. 85, 41 Atl. 895; Day V. Dalziel [Tex. Civ. App.] 32 S. W. 377; Green v. Seymour, 59 Vt. 459, 12 Atl. 206) ; Stephens v. Spolcane, 11 Wash. 41, 39 Pae. 260 (Citing Pettit v. Hamlyn, 43 Wis. 314; Hamilton v. Lau, 24 Neb. 59, 37 N. W. 688; Higgins v. McDonnell, 16 Gray, 386; River Falls Bank V. German American Ins. Co. 72 Wis. 535, 40 N. W. 506 ) . I"or other cases on the subject, see Rigiy v. Norwood, 34 Ala. 129; Robin- son V. Tipton, 31 Ala. 595; Brown v. Adams, 1 Stew. (Ala.) 51, 18 Am. Dec. 36; Nunez v. Morgan, TJ Cal. 427, 19 Pac. 753; McDonald y. Mission View Homestead Asso. 51 Cal. 210; Wakefield v. Greenhood, 29 Cal. 597 ; Miller v. Upton, 6 Ind. 53 ; Walker v. Richards, 39 N. H. 259; Stearns v. ;Sf*. Louis & 8. F. B. Co. 4 N. Y. S. R. 715. Contra, Duncan v. Clements, 17 Ark. 279; Babcock v. Meek, 45 Iowa, 137 (under Iowa Code, § 2648) ; Hooker v. Gentry, 3 Met. (Ky.) 463; Smith V. Fah, 15 B. Mon. 443. A declaration upon a, contract within the statute of frauds need not allege that the contract is in writing, since such fact will be presumed. Wil- kimson-Gaddis Co. v. Van Riper, 63 N. J. L. 394, 43 Atl. 675; Cahill Iron Works v. Pemberton, 30 Abb. N. C. 455, 27 N. Y. Supp. 931; Donaldson v. Donaldson, 31 Ohio L. J. 102; Smith v. Stevenson, 190 Pa. 48, 42 Atl. 380. But where the contract is a matter of defense the writing should be averred. Headington v. Neff, 7 Ohio, pt. 1, p. 229; Reinheimer v. Carter, 31 Ohio St. 579. 328 BRIEF ON PLEADINGS DEMUEREE. A complaint alleging an agreement and prmnise to convey real estate is not demurrable because it does not expressly allege that the contract was in writing. Van Epps v. Redfleld, 68 Conn. 39, 34 L. E,. A. 360, 35 Atl. 809. The petition in a suit by a vendor of real property to recover the purchase price from the vendee need not allege that the contract of sale was in ■ivriting. Sowards v. Moss, 58 Neb. 119, 78 N. W. 373, Reversed on Rehearing in 59 Neb. 71, 80 N. W. 268 (so held on error; Citing Sohmid v. Sehmid, 37 Neb. 629, 56 N. W. 207). It is not necessary in a bill for specific performance of a contract for the sale of lands, to allege that the contract is in writing or has been so far executed as to take it out of the statute. Be Breitenstein, 23 Pittsb. L. J. N. S. 255. A demurrer to a bill to enforce a vendor's lien, on the ground that the con- tract of purchase violated the statute of frauds, is bad where the aver- ment of the contract in the bill is general, and does not state whether it was written or verbal. Harper v. Gamphell, 102 Ala. 342, 14 So. 650. A declaration alleging that plaintiff was induced by defendants to put in operation a sawmill, upon a contract with them which is set out therein, and that plaintiff performed his part and defendant refused to per- form, states a cause of action, although there is no allegation that the contract was in writing, as it is made binding, even if in parol, by plaintiff's performance. Hancock v. Council, 96 Ga. 778, 22 S. E. 335. An answer alleging that, in pursuance of an antenuptial agreement en- tered into between plaintiff and defendant, who is plaintiflf's husband, certain deeds were executed, is not demurrable on the ground that such agreement was verbal, as there is no allegation to that effect. Lamb V. Lamii, 18 App. Div. 250, 46 N. Y. Supp. 219. A petition in an action for rent, alleging that defendant occupied the premises by permission of plaintiff as her tenant for a number of years, does not disclose on its face a verbal lease obnoxious to the statute of frauds because for moie than a year, but is consistent either with a tenancy at will or upon a written agreement, and is therefore good on demurrer. RoVb v. Sel, 26 Misc. 714, 57 N. Y. Supp. 156, Reversing 25 Misc. 299, 54 N. Y. Supp. 562 (motion to dismiss). A petition in an action for failure of a telegraph company to deliver a telegram must aver compliance with a condition requiring a written claim for damages to be presented within sixty days. Albers v. West- ern U. Teleg. Co. 98 Iowa, 51, 66 N. W. 1040. A complaint against a telegraph company for total failure to deliver a tel- egram is not demurrable for failure to allege compliance with a, condi- tion requiring claims to be presented in writing within sixty day», since in case of nondelivery the sixty days will not begin to run until after knowledge of the nondelivery, and failure to present it within sixty days thereafter is matter of defense. Sherrill v. Western U. Teleg. Co. 109 N. C. 527, 14 S. E. 94. A complaint alleging that defendant is indebted to plaintiff in a given sum as wages between specified dates is insufficient in the absence of any allegation that the services had been performed. Louisville, N. A. dc C. R. Co. V. Barnes, 16 Ind. App. 312, 44 N. E. 1113 (so held on error) . An averment in an action for wages under a special contract, that plain- tiff has performed all the conditions thereof so far as defendant per- mitted, sufficiently alleges performance unless attacked by motion. Gulhertson Jrrig. & W. P. Co. v. Wildman, 45 Neb. 663, 63 N. W. 947. i'ry V. Lexington d B. ti. R. Go. 2 Met. (Ky.) 314 (action on stock sub- scription; objection fatal on appeal, even when not taken below). A petition to recover upon a subscription contract which provides that unless a specified sum is subscribed by a certain date the subscription shall be null and void is demurrable unless it alleges that such condi- tion has been peirforined. Knottsville Roller Mill Co. v. Mattingly, 18 Ky. L. Rep. 246, 35 S. W. 1114. Complaint on notes, alleging a collateral agreement imposing a condition, is bad for not alleging performance of the condition. Rogers v. Cody, S Cal. 324. Performance by plaintiff in an action on a contract, of a condition requir ing a certain payment on his part, is not sufficiently averred by declar- ing that the money had been deposited with a certain trust company, and that certain shares of stock received by plaintiff from defendant VII. FOR INSOFJflCIENCY J PAKTICULAE ALLKGATIOAS. 343 represent the money "so as aforesaid paid over by plaintiff" to defend- ant. Jones V. Perot, 19 Colo. 141, 34 Pac. 728. Ripley County v. Hill, 115 Ind. 316, 16 N. E. 156 (bond for perfonnance of construction contract). A cross-complaint in an action upon a note, alleging that the payee of the note agTced to cancel it if defendant would become reconciled to and live with and support his wife, and that defendant agreed so to do, is demurrable when it fails to allege that defendant complied with his agreement. 'Norris v. Norris, 3 Ind. App. 500, 28 N. E. 1014. Where a, breach of contract can be compensated in damages, an action for nonperformance may be supported against defendant who has received a partial benefit from the contract, without averring performance by plaintiff. Romel v. Alexander, 17 Ind. App. 257, 46 N. E. 595 (Citing Pordage v. Cole, 1 Wms. Saund. 320; Pickens v. Bozell, 11 Ind. 275; Boyle V. Cuysinger, 12 Ind. 273; Cummings v. Pence, I Ind. App. 317, 27 N. E. 631). The complaint in an action to enjoin the defendant from obstructing a pri- vate way, which alleges that it was granted the plaintiff under an oral agreement for specified considerations paid and value parted with, suf- ficiently shows that the plaintiff has paid the consideration or has oth- erwise performed her part of the contract. Noble v. Sherman, 151 Ind. 573, 52 N. E. 150. A complaint based on a contract of purchase, demanding damages for de- fects in the article bought, but failing to show a compliance by plain- tiff with the conditions of the contract, which had been waived by a subsequent oral agreement, is subject to demurrer if such oral agree- ment is not pleaded. /''. C. Austin Mfg. Co. v. Clenderming, 21 Ind. App. 459, 52 N. E. 708 (Citing OUo Thresher & Engine Co. v. Hensel, 9 Ind. App. 328, 36 N. E. 716; Springfield Engine & Thresher Co. v. Kennedy, 7 Ind. App. 502, 34 N. E. 856; Davis v. Gosser, 41 Kan. 414, 21 Pac. 240). An averment in the complaint in an action to recover damages for breach of a live-stock contract, that the shipper made claim in writing for the live stock killed, as provided for, and within the time limited by the contract, is not a conclusion, but the averment of a fact. Cleveland, C. C. & St. L. R. Co. V. Heath, 22 Ind. App. 47, 53 N. E. 198 (so held on error) . A bill in equity which sets forth an agreement whereby the plaintiff sold to the defendant an undivided half interest in a partnership, and a de- livery to and acceptance by defendant of a bill of sale of a half interest in the tools and machinery of such partnership, which tools and ma- chinery constituted all of the partnership assets, — shows perfoi-manee by the plaintiff on his part of such contract. Draper v. Hollings, 163 Mass. 127, 39 N. E. 793. A complaint in an action for the price of railroad ties purchased under a contract fixing the time of payment at thirty days after they have been inspected must allege such inspection thirty days before suit was brought, or facts which would entitle plaintiff to judgment without an 344 BEIEF ON PLEADINGS DEMUKEEK. inspection. Potter v. Holmes, 65 Minn. 377, 68 N. W. 63 (so held on error ) . A count upon an agreement to pay money for a dyeing recipe on a certain day subject to certain conditions precedent, undertaking to show lia- bility by special averments of performance, is faulty where it fails to aver that the event mentioned happened by the day named, or that defendants, by some wilful or fraudulent act or neglect, prevented it» happening. Sechi v. Taulel, 55 N. J. L. 419, 26 Atl. 902. Under a contract not specifying the time for delivery, an allegation of de- livery within a reasonable time is essential. Pope v. Terre Hcmte Car & Mfg. Go. 107 N. Y. 61, 13 N. E. 592. The amount of compensation sued for being dependent on earnings, the facts on which it depended must be alleged. Relyea v. Drew, 1 Denio^ 561. Oakley v. Morton, 11 N. Y. 25, 62 Am. Dec. 49 (judgment on verdict di- rected by trial judge reversed for error in disregarding failure to show performance of condition precedent). Allegations that plaintiff did duly assign to defendant, or for its use, cer- tain letters patent, are insuiEcient averments of performance on his part of an agreement to assign to defendant all his patents and inven- tions. Dalzell V. Fahy's Watch Case Go. 43 N. Y. S. E. 57, 17 N. Y. Supp. 365. Where condition involves compliance with another instrument the latter must be pleaded. Portage Ganal & Mfg. Go. v. Crittenden, 17 Ohio, 436. An averment of substantial performance, or of readiness and an offer to perform, is necessary. Wilson v. Lyle, 1 Monaghan, 199, 16 Atl. 861. A complaint in an action on a promissory note providing on its face for a payment of 10 per cent attoraeys' fees "should judicial proceedings be used in collecting," which sets out the note in full, need not state that judicial proceedings were used in collecting. McKelligon v. State Nat. Bank (Tex. CSv. App.) 24 S. W. 688. A general averment of performance of the conditions necessary to entitle plaintiff to recover includes all conditions precedent to recovery. Dun- ham V. Saint Croix Soap Mfg. Go. 34 N. B. 243. ' Allegations showing performance, satisfactory to defendant, up to the time when defendant defaulted in payments under the contract, as shown by the facts alleged, held enough. Phillips & G. Gonstr. Co. v. Seymour, 91 U. S. 646, 23 L. ed. 341. A petition in an action on a fire insurance, policy, alleging that certain con- ditions of the policy were not performed because defendant company and its agents directed and requested plaintiff not to perform the same, states with sufBcient certainty a waiver of such conditions. Phenim Ins. Co. V. Arnoldy, 5 Kan. App. 174, 47 Pae. 178. A condition precedent should be set out as a part of the contract, and per- formance of it averred, or the want of performance excused; and a mere allegation that defendant has done and performed all things on its part VII. FOE INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 345 in the agreement to be done and performed, and has done and kept all the conditions of the agreement, is not sufficient. Neioton Riibher Works V. Graham, 171 Mass. 352, 50 N. E. 547 (Citing Newcomb v. Braokett, 16 Mass. 161; Whitaker v. Smith, 4 Pick. 83; Stan-wood v. Scovel, 4 Pick. 422; Godding v. Mansfield, 7 Gray, 272; Murdoch v. Caldwell, 8 Allen, 309; Riley v. Farnsworth, 111 Mass. 152; Palmer v. Sawyer, 114 Mass. 1). A petition in an action for breach of a bond for title to land is bad, where it fails to allege the payment of a specified amount provided for in the contract, or anything in excuse of such nonperformance. Ricketts v. Bart, 73 Mo. App. 647 (motion for new trial; Citing Basye v. Am- brose, 32 Mo. 484; Beckmann v. Phceniw Ins. Co. 49 Mo. App. 604). A complaint alleging that defendants promised to pay plaintiff a specified sum for information to be supplied after such promise is insufficient, where performance or an excuse for nonperformance of such condition is not averred. Winch v. Farmers' Loan & T. Go. 11 Misc. 390, 32 N. Y. Supp. 244 (nonsuit; Citing Oakley v. Morton, 11 N. Y. 26, 62 Am. Dec. 49; Levy v. Burgess, 64 N. Y. 390; Tooker v. Arnoux, 76 N. Y. 397; Bogardus v. New York L. Ins. Go. 101 N. Y. 328, 4 ST. E. 522). Butterworth v. Kvnsey, 14 Tex. 495 (allegation of a waiver, being equiva- lent to performance, supplies the place of an averment of performance ) . See also § 183, infra. It is better, as a matter of caution, to allege waiver of a condition of a pol- icy of insurance than to rely on an averment of performance of all con- ditions. American F. Ins. Co. v. Stuart (Tex. Civ. App.) 38 S. W. 395. Where an action is brought for the violation of a covenant in a lease pro- viding for its renewal, which was conditioned on the performance of the terms of the lease, the lessee must allege a performance of such condi- tions, or a valid excuse for nonperformance. Qrubh v. Burford, 98 Va. 553, 37 S. E. 4. 173. — exception or proviso. In. pleading tke performance or happening of a condition prece- dent, it is not necessary to show compliance with an exception or pro- viso to such condition contained in a separate clause. Otherwise, if contained in the general clause.^ ^Freeman v. Travelers' Ins. Co. 144 Mass. 572, 12 N. E. 372 (Citing Com, V. Hart, 11 Cush. 130). Compare Hammer v. Saufman, 2 Bond, 1, Fed. Cas. 5,997, where in a suit on a bond given by the buyer of a secret process to pay a cer- tain sum, conditioned with the proviso that he could discontinue the use of the process at a specified time, it is held not necessary for the obligee to allege that the obligor had used it after that time. Where there is an exception in the general granting clause of a deed, the party relying upon such general clause must, in pleading, state the gen- eral clause, together with the exception, and must also show by the tes- 346 BEIEF ON PLEADINGS DEMUEEEE. timony that he is not within the exception. Maxwell Land Grant Co. V. Dwwson, 151 U. S. 586, 38 L. ed. 279, 14 Sup. Ct. Rep. 458, Reversing 7 N. M. 133, 34 Pac. 191 (so held on error). In declaring on a contract which contains a condition or proviso, one need only allege the general clause under which his cause of action has arisen, and need not set out and negative a clause which operates as an exception to the general clause, but which is not incorporated in it. Railway Officials & E. Acci. Asso. v. Drummond, 56 Neb. 235, 76 N. W. 562 (Citing Meadows r. Pacific Mut. L. Ins. Co. 129 Mo. 76, 31 S. W. 578; Com. v. Hart, 11 Oush. 130). A petition in an action on an insurance policy, providing that the com- pany shall not be liable for loss caused by invasion, insurrection, riot, civil commotion, military or usurped power, need not allege that the fire was not due to any such causes. Burlington Ins. Co. v. Rivers, !) Tex. Civ. App. 177, 28 S. W. 453. An allegation in a petition on a fire insurance policy, that a fire occurred without any fault on plaintiff's part and under circumstances not di- rectly or indirectly made an exception by the terms of the policy which would render it void, sufficiently negatives that the fire resulted from invasions, insurrections, riots, and like causes excepted in the policy. Alamo F. Ins. Go. v. Shaehlett (Tex. Civ. App.) 26 S. W. 630. 174. Conditions not alleged. Conditions not appearing in the instrument pleaded, or in the al- legations of its legal effect, as the case may be, even though usual in all instruments of that class, will not be considered on demurrer.^ '■ But in an action by a county to recover for the hire of a convict, a, count in the complaint alleging the defendant's refusal to pay the hire, and that such refusal constituted a breach of the bond given by the defend- ant, is demurrable where the conditions of the bond are not averred. Pike County v. Eanchey, 119 Ala. 36, 24 So. 751. In an action for breach of a contract to renew a fire policy, it will not be presumed that the original policy contained any conditions the breach of which would defeat plaintiff's cause of action. Oold v. Sun Ins. Co. 73 Cal. 216, 14 Pac. 786. In Ellis V. Sharp, 42 Hun, 179, a common-school teacher's complaint for wages, with a general allegation of having entered upon the employ- ment and taught the school for the period, was held sufficient without alleging performance of other statutory duties, such as keeping rec- ords, etc. Plaintiff must, where defendant's liability is conditional and depends on facts outside the instruments sued on, allege such facts in his com- plaint. Hand v. Shaw, 20 Misc. 698, 46 N. Y. Supp. 528, Affirmed in 21 Misc. 313, 47 N. Y. Supp. 166 (motion to dismiss). Action on bond, wliich, when produced on oyer, showed conditions not in- VII. FOE INSUFFICIENCY ; PARTICULAR ALLEGATIONS. 347 telligible without extraneoTis facts. Smith v. Lloyd, 16 Gratt. 295; Smith V. Wiswall, 2 Hall, 469. Bank of River Falls v. German American Ins. Co. 72 Wis. 535, 40 N. W. 506 (fire policy), 175. Form of allegation at common law. In the absence of statute, if the contract is pleaded, and specifies explicitly the acts to be performed, then an allegation of perform- ance of the specified acts, following the language of the contract, is sufiicient;^ or even a general allegation that he performed all the acts and conditions specified in the instrument.^ If the language of the contract is not pleaded, or does not specify the acts to be done, a general allegation of performance of all tliat plaintiff was bound to do, or in any equivalent terms, is a mere con- clusion, and bad on general demurrer.* * Sm,ith V. Lloyd, 16 Gratt. 295, 313, so holding since special demurrers were abolished in Virginia. Eaile v. Smith, 113 Gal. 656, 45 Pac. 872, so holding of an averment in the precise language of the agreement to sell land, that the plaintiff tendered ''a good and sufficient deed of grant, bargain, and sale of the property." *Kern v. Zeigler, 13 W. Va. 707, 714. Contra, Washington v. Ogden, 1 Black, 450, suh nam. Turner v. Ogden, 17 L. ed. 203 (contract by which vendor stipulated "to make a deed," held insufficient to allege readiness to deliver a deed without alleging good title. Grier, J., says it is not sufficient to pursue the words, if the in- tent be not performed. But this was after trial, on which it appeared that plaintiff was unable to perform). * Averieck v. Hall, 14 Bush, 505 (agreement to dismiss certain actions, and to "use every legal and proper endeavor to have dismissed" certain criminal prosecutions. General allegation that "he did these things" bad on general demurrer ) . Read v. Cisney, 4 Litt. (Ky.) 137 (allegation that he had done all he was bound to do, except when prevented by defendant). Gouverneur v. Tillotson, 3 Edw. Oh. 348, 352 (in chancery. Bill not show- ing particularly the acts performed, so that the court might judge of their sufficiency, bad). Contra, Smith v. Wisicall, 2 Hall, 469. Contra also now in England. See Bentley v. Dawes, 9 Exch. 666; Rust v. Noitidge, 1 El. & Bl. 99. For other cases, see Commercial Union Assur. Co. v. State ex rel. Smith, 113 Ind. 331, 15 N. E. 518; Ellsworth v. Buell, 4 Ind. 555; Eome Ins. Co. V. Duke, 43 Ind. 418; Glover v. Tuck, 24 Wend. 153. 348 BRIEF OIT PLEADINGS DEMUEEBE. 176. Statutes sanctioning general allegation that he duly performed. Statutes exist in a number of the states to the effect that in plead- ing the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part, thus modifying the common-law rule.-' ' See also Duly, § 277, imfra. Arizona — Rev. Stat. (1887), H 662. "In pleading the performance of con- dition precedent in a contract, it shall not he necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part; and if such alle- gation be controverted, the party pleading shall establish on the trial the facts showing such performance." Arkcmsas — ^Mansfield's Digest, § 5068. "In pleading the performance of a condition precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part; and if such an allegation is not controverted as stated in the last section in regard to judgments," — i. e., controverted in the answer to a complaint, or in reply to a counterclaim or set-off, — "it shall not be necessary to prove it on trial." California — Code Civ. Proc. § 457. Same as Arizona, supra, except "must establish" instead of "shall establish," and "conditions" instead of "condition," and different punctuation. Colorado — Code Civ. Proc. § 66. Same as Arizona, supra, except "condi- tions" instead of "condition," and different punctuation. i?'iorida— McClellan's Digest (1881), § 59, p. 826. "It shall be lawful for the plaintiff or defendant in any action to aver performance of condi- tions precedent generally, and the opposite party shall not deny such averment generally, but shall specify in his pleading the condition or conditions precedent the performance of which he intends to contest." Idaho — Rev. Stat. (1887), § 4212. Same as Arizona, supra, except "must establish" instead of "shall establish," "conditions" instead of "condi- tion," and different punctuation. Indiana — Rev. Stat. (1888), § 370. "In pleading the performance of a condition precedent in a contract, it shall be sufficient to allege gener- ally, that the party performed all the conditions on his part. If the allegation be denied, the facts showing a performance must be proved on the trial." ZoM>a— Code (1888), § 2715; McClain's Anno. Code, S 3922. "In pleading the performance of conditions precedent in a contract, it is not neces- sary to state the facts constituting such performance, but the party may state generally that he duly perfoi-med all the conditions on his part." Code, § 2717; McClain's Anno. Code, § 3924. "If either of the allegations contemplated in the three preceding sections is controverted, it shall VII. FOK INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 349 not be sufficient to do so in terms contradictory of the allegation, but the facts relied on shall be specifically stated." Kansas— Com^. Laws (1885), § 3921; Gen. Stat. (1889), § 4205. "In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegations be controverted, the party plead- ing must establish, on the trial, the facts sjiowing such performance." Massachusetts— Pub. Stat. (1882), chap. 167, § 2, cl. 10, p. 965. "When a bond, or other conditional obligation, contract, or grant, is declared on, the condition shall be deemed part of the obligation, contract, or grant, and shall be set forth; breaches relied on shall be assigned; and con- ditions precedent to the right of the party relying thereon shall be averred to have been performed, or his excuse for the nonperformance thereof stated." Chap 167, § 23, p. 967. "When a conditional obliga- tion, contract, or grant is relied on in an answer or subsequent allega- tion, the condition shall be deemed a part of the instrument, and sim- ilar averments shall be required in pleading on the same as are required by the tenth clause of section two." Minnesota — 1 Glen. Stat, chap 66, § 109, p. 722. Same as Arizona, supra, except instead of "shall establish on the trial" the Jtinnesota statute reads "is bound to establish," etc., "conditions" instead of "condition," and different punctuation. Mississippi — Rev. Code (1880), § 1574. "In pleading the performance of conditions precedent, the plaintiff or defendant may aver generally that he duly performed all the conditions on his part, and the opposite party shall not deny such averment generally, but shall specify in his pleading the condition precedent the performance of which he intends to contest." Missouri — Rev. Stat. 1899, § 634. In pleading the performance of a con- dition precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part. And in pleading a judgment or other determination of a court or officer of spe- cial jurisdiction, it shall not be necessary to state facts conferring ju- risdiction, but such judgment or determination may be stated to have been duly given to him. If such allegations be controverted the party pleading shall be bound to establish on the trial the facts showing such performance or conferring such jurisdiction, as the case may require. Montana — Comp. Stat. (1887), § 104, p. 86. Same as Arizona, supra, except "conditions" for "condition." Nebraska— Code Civ. Proc. § 128; Comp. Stat. (1887), p. 757. Same as Kansas, supra, except "allegation" for "allegations." Nevada — Gen. Stat. (1885), § 3082. Same as Arizona, supra, except "con- ditions" instead of "condition," and different punctuation. New Jersey— ^v. (1877), § 126, p. 868. "The plaintiff or defendant in any action may aver performance of conditions precedent generally; and the opposite party shall not deny such averment generally, but 350 BEIEF ON PLEADINGS DEMUEEEB. shall specify in his pleading the condition precedent the performance of which he intends to contest." New York — Code Civ. Proc. § 533. "In pleading the performance of a con- dition precedent in a contract, it is not necessary to state the facts con- stituting performance; but the party may state generally that he, or the person whom he represents, duly performed all the conditions on his part. If that allegation is controverted, he must, on the trial, estab- lish performance." The corresponding provision in the original Code Proc. § 162, was substan- tially the same as Arizona, supra. North Garolma — Code, § 263; Code Civ. Proc. § 122. Same as Arizona, supra, except "conditions" for "condition," and "shall be bound to es- tablish" instead of "shall establish." North Dakota — Comp. Laws (1887), § 4927. Same as Arizona, supra, except "conditions" instead of "condition," "allegations" instead of "allegation," "shall be bound to establish" instead of "shall establish." Ohio — Rev. Stat. (1890), § 5091. Same as Kansas, supra, except "allega- tion" instead of "allegations." Oregon — Code Civ. Proc. § 87. Same as Arizona, supra, except "shall be bound to establish" instead of "shall establish," "conditions" instead of "condition," and different punctuation. Bouth Carolina — Code Civ. Proc. § 183, Gen. Stat. (1882). Same as Ari- zona, supra, except "conditions" instead of "condition," and "shall be bound to establish" instead of "shall establish." South Dakota — Comp. Laws (1887), § 4927. Same as Arizona, supra, ex- cept "conditions" instead of "condition," "allegations" instead of "alle- gation," "shall be bound to establish" instead of "shall establish." Utah — Comp. Laws (1888), § 3243. Same as Arizona, supra, except "con- ditions" for "condition," and "must establish" instead of "shall establish." Washington — Code (1881), § 97. Same as Arizona, supra, except "con- ditions" instead of "condition," and "shall be bound to establish" in- stead of "shall establish." Wisconsin — Anno. Stat. (1889), § 2674. Same as Arizona, supra, except "shall be bound to establish" instead of "shall establish," and "condi- tions" instead of "condition." Wyoming — Rev. Stat. (1887), § 2478. Same as Kansas, supra. 177. What are "conditions" within the statute. The statutory geoieral allegation of performance of conditions precedent in a contract covers the making of a necessary demand or notice by the party before suit^ (including, in insurance cases, the furnishing of proofs of loss,^ and the procuring of a notary's or mag- istrate's certilicat,e^), and the nonoccurrence of any breach on the part of the party claimant.* VII. FOE INSUFFICIENCY ; PAETICULAK ALLEGATIONS. 351 This sliort form of pleading is applicable to statutory conditions which have been engrafted on a contract of public officers/ but not to other statutory conditions, whatever the cause of action. ' Case V. Phcenix Bridge Co. 23 Jones &, S. 25 (notice that the state of the work required performance). Scheiderer v. Tra/velers" Ins. Co. 58 Wis. 13, 46 Am. Rep. 618, 16 N. W. 47 ( notice of accident against which plaintiff was insured ) . 'Commercial Union Assur. Co. v. State ex rel. Smith, 113 Ind. 331, 15 N. E. 518; Boardman v. Westchester F. Ins. Go. 54 Wis. 364, 11 N. W. 417; Schohacher v Germantown Farmers' Mut. Ins. Co. 59 Wis. 86, 17 N. W. 969. But a complaint upon an employer's insurance bond providing for the re- imbursement of all loss within three months after notice, accompanied by satisfactory proof of loss, must allege that the proof of loss was fur- nished the defendant at least three months before the commencement of the action; and the general allegation that the plaintiff duly kept and performed all the conditions of said bond on its part is insufficient under a statute providing that it is not necessary in pleading the per- formance of conditions precedent to state the facts showing perform- ance, but it may be stated generally that the party duly performed all the conditions on its part. California Sav. Bank v. American Surety Co. 82 Fed. 866. • Ferrer v. Home Mut. Ins. Co. 47 Cal. 416. 'National Ben. Asso. v. Bowman, 110 Ind. 355, 11 N. E. 316, holding that the allegation effectually negatives any violation of conditions prece- dent contained therein, or that the injury had occurred outside the lim- its of the risk. Vermillion County v. Hammond, 83 Ind. 453 (nonacceptance of a commis- sion, the acceptance of which was forbidden by the contract). Whether the stipulation against the bringing of an action before the re- quired period has elapsed after presentation or demand is a condition precedent within the meaning of the contract seems unsettled. There are three views : ( 1 ) It is a condition precedent ; ( 2 ) it is a condition subsequent; (3) it goes to the time of performance, and the real objec- tion is only that the action is premature. C!ompare Doyle v. Phoenix Ins. Co. 44 Cal. 204; Cray v. Hartford F. Ins. Co. 1 Blatchf. 280, Fed. Cas. No. 3,375; Wilson v. ^tna Ins. Co. 27 Vt. 99, 41 N. W. 406; Ger- man-American Ins. Co. V. Etherton, 25 Neb. 505; Home Ins. Go. v. Lindsey, 26 Ohio St. 348. In Garierry v. German Ins. Co. 51 Wis. 605, 8 N. W. 406, the court says that waiting the period required by the policy is not a condition precedent. A general averment of perforrnance of the conditions of a policy of insur- ance is sufiScient under the Indiana statute. Voluntary Relief Depart- ment v. Spencer, 17 Ind. App. 123, 46 N. E. 477 (so held on error; 552 BRIEF ON PLEADINGS DEMUEEEE. Citing Louisville Underwriters v. Durland, 123 Ind. 544, 7 L. R. A. 399, 24 N. E. 221). '■ White Pine County v. Herrieh, 19 Nev. 34, 5 Pac. 276. An uncertainty in the contract will sustain, a motion to make the com- plaint thereon more definite in its allegation of performance, notwith- standing this statute. Toy William v. Hallett, 2 Sawy. 261, Fed. Cas. No. 14,123. 178. Form of allegation under the statute. A general allegation in the words of the statute/ or substantially equivalent^ suffices. An allegation which is not substantially equivalent is bad on de- murrer unless sufficient at common laAV.^ ' Griffiths v. Henderson, 49 Cal. 566 ; Louyry v. Megee, 52 Ind. 107 ; Vree- land V. Beekman, 7 N. J. L. 13; Crawford v. Salterfield, 27 Ohio St. 421. ' Berlelson v. Bower, 81 Ind. 512. All allegation that plaintiff has performed all and singular his agreements and covenants with defendant is sufficient. Morilz v. Lavelle, 77 Cal. 10, 18 Pac. 803. Tile averment in a complaint in an action upon a street assessment under the California street improvement act, that the plaintiff did all the work in the contract mentioned, and duly performed in every respect the said work according to the specifications and terms of the contract, sufficiently pleads its performance. California Improvement Co. v. Reynolds, 123 Cal. 88, 55 Pac. 802. This is not a statutory averment of the performance of conditions precedent, referred to in Code Civ. Proc. § 457. A declaration on a written contract, setting it out in exlenso and alleginn; generally that plaintiff performed the contract on his part, is not de- murrable under Fla. Kev. Stat. § 1045, because it does not specifically allege the performance of some particular condition precedent arising out of the contract. Wilcox v. Stephenson, 30 Fla. 377, 11 So. 659. Mason v. Seitz, 30 Ind. 510 (suit for rent under a lease. Allegation of the execution of the contract, etc., and that defendant was placed in pos- session, and still retains it, sufficient as to plaintiff's performance of conditions precedent). Under the Indiana Code a complaint in an action on a contract sufficiently pleads the performance of a condition precedent by alleging that the plaintiff "has fulfilled each and every part of his agreement," or by al- leging facts which constitute such perfonnance. Watson v. Deeds, 3 Ind. App. 75, 29 N. E. 151. But an allegation by plaintiff in an action to recover premiums on life in- surance policies, that he paid the premiums as provided for in the pol- icy, is not a sufficient allegation that he performed all the conditions of his contract. Metropolitan L. Ins. Co. v. McCormiok, 19 Ind. App. 49, 49 N. E. 44. VII. FOE INSUFl'ICIENCY ; PAETICU.LAB ALLEGATIONS. 353 A complaint alleging that "plaintiff has fully complied with his contract . . . to be performed by said plaintiff" is a sufficient compliance with Ind. Rev. Stat. 1894, § 373, providing that in pleading a condition precedent in a contract, it shall be sufficient to allege generally that the party "performed" all the conditions on his part. Pacific Mut. L. Ins. Co. V. Turner, 17 Ind. App. 644, 47 N. E. 231. The averments of the complaint as to performance of the conditions of a contract to purchase peas to be raised by the plaintiff are sufficient under Horner's (Ind.) Rev. Stat. 1897, § 370, where it is alleged that the plaintiff raised the peas, packed and delivered them to the defend- ants in good condition and in accordance with the contract, but that they refused to receive them, and that such refusal was not by reason of strikes, failure to obtain the necessary labor, or any other "unavoid- able incidents or accidents" happening to defendants or their machin- ery. Vice V. Brown, 22 Ind. App. 345, 53 N. E. 776. It is not essential to a general allegation of performance of a contract without specification of each separate condition, that the pleading shall use the words of Horner's (Ind.) Rev. Stat. 1896, § 370, providing it shall be sufficient to allege generally that the plaintiff "performed all the conditions on his part," but is sufficient if equivalent language is employed. Darnell v. Keller, 18 Ind. App. 103, 45 N. E. 676. Performance of a street improvement contract as a, condition precedent to an action for the foreclosure of an assessment is sufficiently alleged by ii complaint averring that the plaintiffs completed the work in accord- ance with the terms and stipulations of the agreement, to the entire sat- isfaction of the department of public works of the city, and that the same was duly accepted by said department, in view of Horner's ( Ind. ) Rev. Stat. 1896, § 370, providing that it shall be sufficient to allege gen- erally that the plaintiff "performed all the conditions on his part." Ihid. A petition in an action for breach of a written contract, which alleges that plaintiffs have "duly fulfilled all of the conditions of the said con- tract on their part, and that defendant has violated the terms and con- ditions of such contract," i.s sufficient as against a general demurrer, although it does not refer to a provision in the contract for arbitration of differences, under Kan. Code Civ. Proc. § 122, providing that in pleading the performance of conditions precedent in a contract it shall be sufficient to state that the party duly performed all the conditions on his part. Cupples v. Alamo Irrig. & Mfg. Co. 7 Kan. App. 692, 5\ Pac. 920. An allegation in a suit for specific performance of a contract to convey land, that plaintiff has duly performed all the conditions ox the con- tract on his part, sufficiently alleges, under Mo. Rev. Stat. 1889, § 2079. the performance of conditions precedent requiring a cash payment and the tender of a mortgage. Pomeroy v. Fullerton, 113 Mo. 440, 21 S. W. 19. Alleging that plaintiff "performed," without the word "auly" or any equiv- Abb. Pl. Vol! I.— 23. 354 BRIEF ON PLEADINGS DEMUREEE. alent tenn, is suflicient. Wood v. Lilley (Hoffman, J.) 1 Bliss's N. Y. Code, 400, 3d ed. 600. A complaint upon an insurance policy upon the life of one who committed suicide need not allege that he died by suicide, but was insane when he committed the act; a. general a.verment that the conditions of the policy, under X. Y. Code Civ. Proc. § 533, were duly performed, is all that is reqlli^ite. Mutual L. Ins. Co. v. Leuhrie, 18 C. C. A. 332, 38 U. S. App. 37, "1 Fed. 843. The general allegation of performance of conditiofls precedent to the en- forcement of a contract, permitted by N. Y. Code Civ. Proc. § 533, doe» not extend to matters which plaintiff has specifically pleaded. Dalzell V. fahxj's Wiitch Case Co. 43 N. Y. S. R. 57, 17 N. Y. Supp. 365. Tlie a\ern)ent in a complaint in an action on a policy of life insurance, that "satisfactoi-y" proofs of death were delivered, is sufficient without pleading the facts with reference thereto, since an allegation of per- formance in the very terms of the contract is equivalent to pleading that the conditions were "duly performed," as allowed by the New York Code of Civil Procedure. Ohlsen v. Equitable Life Assur. 8oc. 25 Misc. 230, 55 N. Y. Supp. 73. An averment in the complaint in an action on a contract of life insurance, that all the obligations and conditions forming the consideration for which the defendant issued the policy and made the contract and agree- ment were fully performed "on the part of the plaintiff herein," suffi- ciently alleges the performance of all conditions prccodent on the part of the insured and of the plaintiff; and the use of the word "considera- tion" does not limit the effect of the allegation. Ibid. Under a, contract to dig a well, and insure water therein, an allegation that "the work was performed according to contract" was held suffi cient. Griffin v. Pitman, 8 Or. 342. A plaintiff in an action on an insurance policy need not expressly aver per- formance or waiver of a condition requiring him to sulimit to an exam- ination, and, in case of disagreement as to the amount of loss, that the same shall be ascertained by appraisers, under Utah Comp. Laws 1888, § 3243. providing that in pleading the performance of conditions prec- edent in a. contract, it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly per- formed all the conditions on his part, where there is such a general averment, and it is further alleged that the defendant disclaims all lia- bility and refuses to pay the loss, without assigning any reason for its action, and it does not affirmatively appear that any dispute had arisen which called for an appraisal or an award. Stephens v. Union Assur. Soc. 16 Utah, 22, .10 Pac. 026. An allegation that the insured "fully complied with all the conditions of said contract, and rendered the said defendant a particular account and proof of said loss, as required by said contract," is suflicient. Bank of River Falls v. German American Ins. Co. 72 Wis. .J3o, 40 X. VV. 50i>. An allegation that plaintiff kept and performed all conditions neees.iary VII. — FOR insufficiency; paeticulae allegations. 355 to entitle him to the stock in the corporation, is sufficient. Smith v. Chicago & N. W. R. Co. 19 Wis. 326. Hatch V. feet, 23 Barb. 575 (action on bond with condition for perform- ance of various acts by third persons) ; McCreery v. Duncan, 21 Jones & S. 448 (reasonable interpretation) ; Cowper v. Theall, 26 N. Y. Week. Dig. 73, 4 N. Y. S. R. 674 (necessary implication). * Hume Ins. Co. v. Duke, 43 Ind. 418 (mere allegation that "though proof of said loss has been duly made and notice given, yet the said defend- ant has not made the plaintiff good in said loss," insufficient ) . Les Successeurs D'Arles v. Freedman, 21 Jones & S. 518 (allegation that he "in all respects carried out his agreement on his part," not good. It is necessary to plead substantially in the words of the statute). Loice V. Phillips, 14 Ohio St. 308 (allegation that the contract — an ante- nuptial contract — "has been a valid and subsisting contract ever since the date of its execution, and is still a valid and subsisting contract, and binding on the said" widow, bad). 179. Performance by acts of third persons. It is the better opinion that the usual words of the statute, "the party duly performed," are not confined to a party to the action or the contract, but sanction an allegation in effect that the person upon whom performance of the conditions devolved duly performed.^ But an allegation that the plaintiff duly performed does not im- port performance by a third person,^ unless by express terms of the contract the plaintiff undertakes to procure the performance of such third person." ' California Steam Nav. Go. v. Wright, 6 Cal. 258, 65 Am. Dec. 511 (per- foraiance by plaintiff's assignor) ; Rowland v. Phalen, 1 Bosw. 43; and see Graham v. Machado, 6 Duer, 514. = Carroll v. Girard F. Ins. Co. 72 Cal. 297, 13 Pac. 863 (award to be made before suit) ; Johnson v. Howard, 20 Minn. 370, Gil. 322 (measurement to be made by government officer). A complaint in an action for breach of a contract in failing to make requi- sition and pay for books to be obtained by plaintiff for defendant from a. third party, which alleges that plaintiff has fully complied with and performed all the stipulations and conditions of the contract, does not sufficiently show plaintiff's ability to deliver the books, nor cover the acts of such third party through whose fault he might not be able to procure them. Bergmeier v. Eisenmenger, 59 Minn. 175, 60 N. W. 1097. See § 186, note 2, infra. ' lioioland v. Phalen, 1 Bosw. 43 (stipulation by plaintiff to procure a third jjerson to do a, specified act). 356 BRIEF ON PLEADINGS DEMUKEEK. 180. Acceptance of work. An allegation "that the defendant duly ar^cepted the work per- formed by plaintiff under and by virtue of said agreement" is not sufficient on demurrer as an allegation that the entire work as per- formed was accepted as a full compliance with the requirements of the contract.^ ^ Schencke v. Rowell, 3 Abb. N. C. 42 (so held under a building contract) ; fimith V. Brown, 17 Barb. 431; Myrick v. Merritt, 22 Fla. 33.5. But a complaint in an action to enforce the lien of a drainage assessment, alleging that the work of the construction of said diains and levees has long since been completed and accepted by the county hurveyor and com- missioner, and that the contractors fully completed tlie work of the construction of such drains and levees, sufficiently shows that tlie work was completed according to plans and specification-!. Uoefyen v. Stale ex rel. Broun, 17 Ind. App. 537, 47 N. E. 28. And an allegation in an action for the purchase price of a thing sold, of the receipt and retention of such thing by the defendant after delivery and after alteration as required by him, is equivalent to an allegation of acceptance, and dispenses with the usual averment of performance of the conditions of the contract of sale. Logan v. Berkshire Apart- ment House, 3 Misc. 296, 22 N. Y. Supp. 770, Affirming 1 Misc. 18, 20 N. y. Supp. 3()9 (motion to dismiss). 181. Mutual and dependent conditions. If, upon a proper construction of the contract, conditions are mu- tual and dependent,^ so that the- obligation of each party is condi- tioned on concurrent performance by the other, it not l>eing certain that either is obliged to do the first act, the part)- seeking to recover for nonperformance must allege that he was ready and willing, and (naming time and place") offered to perform,'^ or facts exc\ising lack of offer. In ordinary contracts, such offer is sufficient without alleging a forma] tender, if refusal be alleged.* An allegation that he always has been ready and willing to, etc., but defendant, though often requested to, etc., hitherto has refused, iind still does refuse, is insufficient.'^ Jn ordinary contracts, an allegation that at the time and place for performance he was ready and willing to perforin is sufficient, if coupled with an allegation that defendant then and there refused to perform and has never performed,* or that plaintiff was prevented from perforaiing by specified conduct of defendant.^ An allegation that plaintiff was ready and willing to perform, and VII. FOB INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 357 then and there requested defendant to, etc., but defendant refused, is sufficient ; for a demand implies the correlative offer.^ Under an ordinary execu.tory contract of sale of personal prop- erty, the seller to deliver at a specified place (especially if it is the buyer's address) for payment "on deliver)^," the buyer need only al- lege that he was ready and willing (specifying time and place), and that the seller neglected and refused, etc.** But the seller must alleg'e delivery or tender.^" Under a contract requiring execution of a deed or similar instru- ment, and making delivery and payment of price concurrent acts, to be simultaneously performed, neither party can recover without alleging a tender. Alleging the purchaser's readiness and vsrilling- ness and offer to accept and pay is not enough.^^ ' Much of the apparent conflict in the cases results jfrom the peculiar lan- guage of different contracts. This explains such exceptional eases as Pomroy v. Gold, 2 Met. 500. The cases make some modifications or peculiar applications of these prin- ciples in actions on covenants to convey real property. A covenant which goes to only part of the consideration is not regarded as mutual and dependent. Bennet v. Fixley, 7 Johns. 249 ; Grant v. Johnson, 5 N. Y. 247, Reversing 5 Barb. 161. If the covenants on one side are for performance on a specified day or days, whicli may happen before those on the other side are to be performed (Couch V. TngersoU, 2 Pick. 297; Grant v. Johnson, 5 N. Y. 247), or if those on the other side are of a continuous nature, not being a condi- tion precedent, — ^they are not regarded as mutual and dependent within the rule. See Hard v. Seelcy, 47 Barb. 428, where the seller's covenant was not to disclose the secret of the thing bought, and the buyer's was for payments on specified days. Contra, see Gray v. Hinton, 2 Mc- Crary, 167, 7 Fed. 81. ^ Failure of the seller to state that his tender was within a reasonable time, where the contract alleged was silent as to time, is fatal. Error to re- fuse to dismiss at the trial. Pope v. Terre Haute Car & Mfg. Co. 107 N. Y. 61, 13 N. E. 592. Where goods were to be delivered on demand, the buyer's allegation that he was ready and willing to receive, and had offered to receive and pay, and had demanded, etc., and defendant, though often requested, refused, etc., without stating time, was sufficient under the Code, although it would have been bad on special demurrer at common law. Deady, J., adds: "Doubtless there are cases in which the time wherein an act was done or occurred is material, and the statement of the fact without the time would not constitute a cause of action, nor an element of one." Isleis V. Yocum, 9 Sawy. 24, 16 Fed. 168 (Cited in Ex parte Koehler, 24 Fed. 107). Rohison V. Tyson, 46 Pa. 286 (contract to deliver on request). 358 BEIEF ON PLEADINGS DEMURRER. According to Patterson v. Jones, 13 Ark. 69, 56 Am. Dec. 296, if no place is specified the law fixes the place; and the party at whose residence or in whose presence the law thus fixes it need not allege demand or notice. Compare the case of a marriage promise, whei-e, the place not being fixed, notice of readiness may be required. Seymour v. Gartdde, 2 Dowl. & R. .55. An allegation that he was "at all times'' ready at the place specified is equivalent to an allegation that he was ready there on the day speci- fied. Porter v. Rose, 12 .Johns. 209. In a suit by heirs to recover damages for the defendant's failure to per- form a contract for the purchase of their land, an averment of perform- ance on their part as fully as they could, and of willingness to convey the title in accordance with the terms of purchase, is not demurrable as a mere conclusion, or for failure to allege performance of the obliga- tion assumed by them or to show the facts constituting such perform- ance. Howison V. Oakley, 118 Ala. 215, 23 So. 810. A declaration counting upon the breach of a contract which contemplates the performance of concurrent acts must aver performance or readine.ss to perform on the part of the plaintiff. Leslie v. Casey, 59 N. J. L. 6, 35 Atl. 6. So, an averment in an action for breach of covenant, that plaintiffs have kept and-performed all covenants on their part, is insufficient without a special averment that they were ready and willing to do what the covenant implies they were to do to make performance by defendant possible. Chicago, M. & St. P. R. Go. v. Hoyt, 37 111. App. 64 (so held on error). 'Lester v. ,/ewett, 11 N. Y. 453, Reversing 12 Barb. 502 (leading New York case, reviewing conflicting cases ) . An allegation by a purchaser that he has been ready and willing is not suf- ficient without an allegation of tender. Heine v. Treadwell, 72 Cal. 217, 13 Pac. 503 ( Citing Ba/cemam v. Pooler, 15 Wend. 637; Dunham v. Jackson, 6 Wend. 27; and Strong v. Blake, 46 Barb. 227). Under an executory sale the seller must not only allege that he was ready and willing, but also that he offered to deliver within the time fixed. Dunham v. Pettee, 8 N. Y. 513. In an action on a written instrument by which defendant promised to pay the plaintiff' $5,000, adding, "for which 1 am to receive" specified stock, it is necessary to allege that the stock was delivered, or that there was an offer to deliver, on the day fixed for pa^onent. Gonsiderant v. Brin- hane, 14 How. Pr. 487. In an action on a contract consisting of reciprocal promises to be con- currently performed, the plaintiff must allege performance or tender of performance on his part before suit brought. Burwell & 0. Irrig. & Power Go. v. Wilson, 57 Neb. 390, 77 >f. W. 762 (so held on error). The averment in o. petition in an action for breach of a logging contract, that a tender of the logs was made in accordance with the terms of the contract, which is copied into and made a part of the petition, is suf- ficient, — and the failure of plaintiff to comply with the requirement of Vll. I'OR INSUFFICIENCY J PAKTICULAE ALLEGaTIOAS. 359 the contract in regard to scaling or measurement cannot be taken b_y exception, but must be set up by plea. Saiine Tram Co. v. Jones (Tex. Civ. App.) 43 S. ^Y. 905. ■* In Lesier v. Jewett, 11 N. Y. 453, the allegation in the count sustained was, in effect, that plaintiff at the specified time and place ''was ready and willing and offered to defendant to," etc., for, etc., "yet said de- fendant did not at [that time] nor at any time, although often re- quested to do so, purchase." ^Lester v. Jewett, 11 N. Y. 453; Kern v. Zicgler, 13 W. Va. 707, 716. On an executory sale, payment and delivery being concurrent acts, a gen- eral allegation by the buyer that he was ready and willing to accept and pa}', and that defendant neglected and refused, is not enougli. {Dictum that it is not enough for either party.) Smith v. Wright. 4 Abb. App. Dec. 274. To same effect, see Ficlett v. Brice, 22 How. Pr. 194. ^Smitk V. Leiiis, 26 Conn. 110, 118. 'An allegation by a vendor of real property that he was ready and will- ing, but was prevented by failure of the defendant to be there on that day, and that defendant was on that day absent from the state and was. etc., in the state of, etc., is suiiicient. Kern v. Zcirilcr. 13 W. Ya. 707, 716. And see Smith v. Smith, 25 Wend. 404: Woollier v. Hill, 93 N. Y. 576, 580 (seller of goods had made an assignment for benefit of credit- ors, before time for performance arrived). ^Timiei/ v. Asldey, 15 Pick. 546, 552. 26 Am. Dec. 620 (■■certainly suffi- cient in an action in a court of equity to enforce specific perform- ance") ; St. Paul Div. Yo. 1 S. of T. v. Broicii, 9 Jlinn. 157. 164, Gil. 141. * Allegation by buyer, under contract to give his notes for the price, that a reasonable time called for by the contract had elapsed; that plain- tiff had always been ready and willing to accept, receive, and pay for said goods in manner aforesaid; and that defendant had refused to de- liver the same, — is sufficient on general demurrer. White v. Demilt. 2 Hall, 405, per Oakley, J. In an action on a contract to sell goods, to be delivered to plaintiff at a certain place, by a day named, to be paid for by him "on deliv- ei-y," where it is alleged that he had always been ready and will- ing to accept and pay, but defendant did not deliver, it is error to non- suit for -want of a tender or offer, in defendant's absence (plaintiff being a merchant having a store at the place). Coonley v. Anderson, 1 Hill, 519. But a declaration in an action for breach of contract to deliver hay, which alleges merely that defendants failed to deliver at the time specified, is insufficient where no time is specified, and there is no allegation of any demand for delivery, or any refusal to deliver, or any payment or tender of the purchase money, or of willingness or readiness by plain- tiffs to perform. Pusey v. McElveen Commission Co. 93 6a. 773, 21 S. E. 150 (so held on error). 360 BRIEF ON PLEADINGS DEMUEEER. '■'Davenport v. Wheeler, 7 Cow. 231. '' Englander v. Rogers, 41 Cal. 420. But a petition in an action by a purcliaser for damages for the failure of the vendor to perform the contract need not allege performance or offer of performance on plaintiff's part, where it alleges readiness and will- ingness to perform upon the defendant's performance of the condition precedent of exhibiting a sufficient title. Thompson v. Dickerson, 68 Mo. App. 535 (so held on error). A complaint in an action to recover money which defendant agreed to pay plaintiff at a certain time, on condition that plaintiff should first fur- nish to defendant a general release specified in the contract, which al- leges that after the time for payment of the money had arrived plain- tiff tendered such release to defendant and demanded the sum provided in the instrument to be paid, but that defendant refused to pay and has not paid the same, or any part thereof, and that plaintiff is, and always has been, ready and willing to deliver the release to defendant on receiving payment, sufficiently shows that jilaintiff has done all re- quired of him to entitle liim to payment. Kelly v. Baker, 26 App. Div. 217, 49 N. Y. Supp. 973 (motion to vacate attachment). 182. Conditions subsequent. Performance of conditions subsequent need not be alleged,^ even though expressed in the contract in the form of an exception or pro- viso.^ ^Redman v. ^tvAi Ins. Co. 40 Wis. 431, 438, 4 N. W. 591. There has been much difference of opinion as to the application of this rule to representations and warranties in insurance. A petition upon an insurance policy need not aver the performance of war- ranties for violation of which the policy may be avoided by the com- pany. Queen Ins. Co. v. Leonard, 9 Ohio C. C. 46. Collateral stipulations and agreements annexed to a policy of insurance, not constituting conditions precedent to an action, need not be set forth or noticed in any way in a declaration upon the policy. Pouers v. New England F. Ins. Co. 68 Vt. 390, 35 Atl. 331 (so held on error). A complaint need not negative the occurrence of a contingency which tmder the contract would operate to relieve the defendant from his obligation thereunder; but if the obligation is dependent upon the occurrence of a contingency the happening of the same must be alleged. Root v. Childs, 68 Minn. 142, 70 N. W. 1087. '1 Chitty, PI. 16th Am. ed. 246; Griswold v. Scott, 13 Ga. 210; Cnx v. Plough, 69 Ind. 311. In Wheeler v. Bavidge, 9 Exch. 668, it was held that the usual exception in the body of a charter-party, as to act of God, etc., need not be nega- tived by plaintiff', but was to be set up by defendant. A'll- FOE INSUFFICIENCY ; I'AKTICULAK ALLEGATIONS. 361 183. Excuses for nonperformance of conditions. An allegation that defendant, before the time for plaintiff to per- form a condition precedent arrived, communicated to plaintiff his re- fusal to perform the contract on his part, dispenses with an allegation of offer or tender of performance of the condition precedent.^ But it does not dispense with an allegation that plaintiff was read_y and willing to perform such condition,^ or, at least, that he would have been had he not been prevented from making ready by such no- tice." A general allegation that defendant had disabled himself from performing, and had prevented plaintiff from performing, without stating the acts done, is not enough to dispense with alleging such offer or tender as would otherwise be required.* But an allegation that he had conveyed to a stranger the propert}- he had agreed to convey to plaintiff is enough.® Alleging defendant's failure to perform an independent stipula- tion is not an excuse for plaintiff's failure to perform." * Buyer's anticipatory refusal to accept excuses omission to tender. Mc- pherson V. Walker, 40 111. 371. An allegation that the plaintiff is willing to perform his part of the con- tract sued upon is unnecessary in a complaint alleging that the defend- ant has, without any just cause or sufficient reason, announced that he will no longer perform his part of it. Biley v. Walker, 6 Ind. App. 622, 34 N. E. 100 (Citing Floyd v. Maddusc, 68 Ind. 124; MatUs v. Thomas, 101 Ind. 119; Skehan v. Bummel, 124 Ind. 347, 24 N. E. 1089, Phoenix Mui. L. Ins. Co. v. Hinesley, 75 Ind. 1). A complaint in an action upon an insurance policy, alleging that the in- surance company notified the plaintiff that it would not pay the insur- ance for the reason that the property was vacant when the fire oc- curred, in violation of the conditions of the policy, is not demurrable for failure to show a waiver of proof of loss, as such proof would have been unavailing after refusal to pay. Phenix Ins. Co. v. Rogers, 11 Ind. App. 72, 38 N. E. 865. The averment in a complaint in an action on a policy of insurance, that the policy is in the possession of the company and its agent refuses to de- liver it up on demand, saying that he has sent it to the company and that the company is not liable and will never pay insured any part of it, shows a sufficient excuse for not setting out a copy of the policy. Walter A. Wood Mowing & Reaping Mach. Go. v. Irons, 10 Ind. App. 454, 36 N. E. 862, 37 N. E. 1046. And also for not averring the making of proofs of loss, as required by the terms of the policy. National P. Ins. Co. v. Strebe, 16 Ind. App. 110, 44 N. E. 768 (Citing Continental Ins. Co. v. Chew, 11 Ind. App. 330, 38 N. E. 417). •j62 luajil- ON P_LEAD1NG.S DEMOItEEE. A complaint in an action upon an insurance policy is not defective for fail- ure to aver that proofs of death were furnished within the time limited by the polic}', when it is alleged that, after notice of the death of the insured was given, the company denied its liability. linilii-af/ Officials it- E. Acci. Asso. V. Aniistrovg, 22 Ind. App. 40(1, 53 X. E. 1037. Coinraunieated intent not to perform, not withdrawn before time for per- formance of condition by plaintiff, exonerates plaintiff and dispenses with his offering to perform condition precedent. The rule is the same in case of many successive conditions, — such as payment of premiums in life insurance. Shaw v. Republic L. Inn. Co. 69 N. Y. 286, Modifying 67 Barb. 580. But mere refu.sal by an insurance company to furnish blanks for proofs of loss, without any reason assigned therefor, does not waive proofs of loss. Coldham v. American Casualty & Security Go. 8 Ohio C. C. (i20. Wlieic an insurance company disclaims liability under the policy and re- fuses to pay, proof of loss is waived. Stephens v. .American F. Ins. Co. 14 Utah, 265, 47 Pac. 83 (Citing Wc.v/ v. Noyirich Union F. Ins. Co. 10 I'tah, 442, 37 Pac. 085; Daiiilier v. (irand Lodge, A. 0. U. W. 10 Utah, 110, 37 Pac. 245). "■loiiifi V. Powell, 15 Ala. 824; Porter v. Rose, 12 Johns. 200, 7 Am. Dec. 200, It is not sufiicient for plaintiff in assumpsit upon an entire contract under seal, containing dependent covenants set forth in a special county tu aver readiness and willingness to perform the condition precedent con- tained in the contract, but he must show a sufficient legal excuse for his nonperformance of such condition. Jones v. Singer Mfg. Co. 38 V\'. Va. 147, 18 S. E. 478. ' C'liirke V. Crandall, 27 Barb. 73. 'Driniy v. Dermy, 8 Allen, 311. Xor is an allegation of performance by the plaintiff "except wherein the same were afterwards waived and altered from said written agreements by the direction, consent, or negligence anil fault of the .said dgfend- ants" sufficient. Smith v. Brown, 17 Barb. 431; see § 180, note, siijiru; WiUon v. rncker. 9 R, I. 137. Compare Lil/lr v. Mercer, 9 Mo. 218. An allegation in an action for specific performance of a contract, that de- fendant refuses to permit performance of conditions precedent, is not equivalent to an allegation of performance by plaintiff, — especially •where he does not allege his willinLtness and ability to perform at the time of such refusal, or at any time before the expiration of the period fixed for performance. Thomson v. Kyle, 39 Ma. 582, 23 So. 12 (so held on error; Citing Myrick v. Merrill, 22 Fla. 33.i). An allegation in a complaint, that plaintiff failed to lay a pipe-line for gas within 50 feet of defendant's residence as required by a subscription contract, because defendant refused to let him lay the same within that distance, and ordered him and his workmen off his premises, shows a sufficient excuse for noncompliance without an allegation that plaintiff VII. FOK insufficiency; PAETICULAl? ALLT.Xi.VTlOXS. 363 was on hand with men and material and ofl'ered to lay the pipe-line as required by the contract. Current v. Fulton, 10 Ind. App. 617, 38 N. E. 419. The complaint in an action by a lessee to recover damages for the failure of the lessor to perform the conditions of a written lease need not aver that plaintiff has complied with his portion of the contract if it shows that he was unable to perform his part of the agreement because of defendant's wrong in keeping him from such performance. Loiifer v. Stottlemyer, 16 Ind. App. 221, 44 N. E. 1008. In an action upon a contract the rule that the plaintiff must aver per- formance OIL his part, or plead facts which will constitute a valid excuse for nonperformance, is adhered to, as we understand it, by the courts of last resort, in most, if not all, of the states: and this rule is sound in principle. In a contract where there are reciprocal covenants or mu- tual conditions to be performed, where one of the parties puts it out of or beyond the power of the other to perform the covenants or condi- tions to be performed by him, he is thus relieved from such perform- ance; and in a complaint upon the contract for a breach, if the com- plaint avers svich facts, it will not be demurrable for failure to allege performance on the part of the plaintiff. People's Bldg. Loan Cal. 71, 51 Pac. 20. A complaint in an action to recover an alleged debt, which fails to allege the nonpayment thereof, is dem.urrable. T^eicion v. Broicne, 56 N. Y. S. R. 605, 26 N. Y. Supp. 83. A complaint upon a promissory note by an indorser against the maker is essentially defective in omitting an averment of nonpayment or present indebtedness. Wright v. Dccring, 2 Misc. 296, 21 jST. Y. Supp. 929. An allegation that the obligors in an injunction bond conditioned for the payment of damages sustained by the injunction have not paid such damages is essential to a complaint on the bond. Gurtiss v. Bachman (Cal.) 40 Pa*. 801. Such a, complaint is fatally defective where there is no allegation that the plaintiff in the injunction proceedings has not paid, or has failed, re- fused, or neglected to pay, the damages. Geary v. San Diego County, 107 Cal. 530, 40 Pac. 800. A complaint in an action upon a contract whereby defendant bound himself "in the penal huiu of $2,000 as liquidated damages," to be paid by him "should he fail to keep his covenants and agreements" not to engage in business within a certain locality, must negative the payment of such amount. Fran::; ^. Bicler, 126 Cal. 176, 5li Pac. 249, Reversed in Bant- in 126 Cal. 179, 58 Pac. 466. A declaration alleging that the note sued on is overdue, and that "the defendant did not pay the same,'' sufiiciently shows that the note re- ma.ined unpaid at the time of the institution of the suit. Wilkvns v. McGuire, 2 App. D. C. 448. Allegations in a complaint on a contract, that a plaintiff demanded pay- ment of a specific sum, that defendant refused payment thereof, and that the same is now due and unpaid, sufficiently allege the nonpayment of the sum alleged to be due from defendant to plaintiff. Fergiison v. McBcan (Cal.) 3'5 Pac. 559. An allegation in a complaint in an action to foreclose chattel mortgages securing notes, that such notes are wholly owing and unpaid, suffi- ciently alleges their nonpayment. Tomlinson v. Ayres, 117 Cal. 568, 49 Pac. 717. A complaint in an action to recover money upon a contract must allege nonpayment. An allegation that there is due and owing a, certain amount from the defendant to the plaintiff is not sufficient. Richards V. Lake View Lamd Go. 115 Cal. 642, 47 Pac. 683. A complaint setting up an agieement for the sale of land for $1,500, $170 of which was to be paid in cash, and the balance in monthly payments of $20, with the privilege of paying more than $20 at any time during the continuation of the contract, which alleges that no money has been paid under the contract or in accordance with its terms since a specified date between three and four years after its execution, — is insufficient in failing to allege the amount paid, as under the terms of the contract VII. FOR INSUFFICIEKCY ; PAETIGULAE ALLEGATIONS. 367 the entire amount might have been paid. Tozer v. George, 123 CaL 650, 56 Pao. 465. A complaint in an action to foreclose a chattel mortgage sufficiently avers the nonpayment of the mortgage debt, where it alleges that the plain- tiff holds a claim of lien on the mortgaged chattels by virtue of her mortgage, and that the interest in the property held by a purchaser thereof is inferior and junior to such lien. Baldwin v. Boyce, 1.52 Ind. 46, 51 N. E. 334. A complaint against a broker for loss from his negligence in loaniiif; to an insolvent person without security sufficiently shows that the note given for such loan is unpaid, when it alleges that the loan was made to an insolvent party and that it is utterly worthless. Broimenhni g v. Rinker, 2 Ind. App. 391, 28 N. E. 568. 185. — in other actions. In actions other than those on contracts for the payment of money only, — such as a bond conditioned for any other matter than the pay- ment of money by the obligor alone/ or an assumption clause con- tained in a conveyance subject to the payment of a mortgage/ — the oomf)laint is insufficient unless it alleges a breach.* " Eamping v. Horan, 21 K. Y. S. R. 418, 4 N. Y. Supp. 51. The complaint in an action against the sureties upon a bond given by an insurance agent states a cause of action, although it is not averred that the agency has ended, when the bond required him to promptly pay over money received, and it is alleged that he collected a specified amount which he, as well as his sureties, have failed to pay over on demand. Bates v. Watson, 76 Minn. 332, 79 N. W. 309 (motion for new trial ) . A declaration in an action for breach of an insolvent bond conditioned that- defendant would appear before the "next court" of common pleas, and petition the court for the benefit of the insolvent laws, which alleges that defendant did not appear before the next court of common pleas after the making of said bond, and petition the court for the benefit of the insolvent laws, and did not comply with the requirements of the insolvent laws, — sufficiently sets out the breach of the condition of the bond. Hart v. Boyle, 60 N. J. L. 320, 38 Atl. 801. Failure of a statement in an action upon a penal bond of a guardian to- allege that the gTiardian broke any condition of the alleged bond, or what condition, if any, of the bond was broken, cons-titutes essential defects. Com. use of Stamlaugh v. Hoobaugh, 5 Pa. Dist. R. 502. Allegations that the principal in a bond mined and shipped during October the amount of rock shown by his return, and did not pay the royalty thereon, sufficiently aver the breach of a condition providing for the return of the amount mined and shipped at the end of each month, and the payment of royalties thereon at the end of each quarter. State v, Seabrook, 42 S. C. 74, 20 S. E. 58. 368 BEIEF OX PLEADINGS DEilUEKER. A petition in an action for breach of a retail liquor-dealer's bond in selling liquor to a minor sufficiently shows the breach, where it alleges that the bond was executed to procure a license in such city and county, and that the license was issued, and the sale made in violation of the bond. llaier v. Staie, 2 Tex. Civ. App. 296, 21 S. W. n74. 'Krou-er v. Reynolds, 99 N. Y. 245, 1 N. E. 775, Reversing 19 X. Y Week. Dig. 383. * A declaration which avers an agreement as a cause of action, but fails to set out any breach thereof, is demurrable. liich v. (talhomi (No. 1) (Miss.) 12 So. 707. No recovery can be had upon a written contract by a married woman, in which she agrees to "substantiate" the claim of the other party against the estate of the former's husband for rent, improperly paid to the hus- band, of property belonging to herself, where the bill contains no alle- gation that there has been a breach of such agreement. George v. (S'oZo- mon, 71 Miss. 168, 14 So. 531 {bill dismissed). A complaint for breach of a contract by defendant, in consideration of hi^ election as director of a corporation through plaintiff's efforts, to use his best endeavors to accomplish certain results, is demurrable where it fails to show that he did not keep his promise. Kountze v. Flan- nagan, 46 N. Y. S. R. 471, 19 N. Y. Supp. 33. A petition in an action upon a bond conditioned for the payment of money as interest and of damages by way of waste, where the breach com- plained of is for the nonpayment of money, need not assign the specific breaches for which the action is brought, nor ask judgment for the pen- alty of the bond as required by Mo. Rev. Stat. § 866, in an action upon a bond for the breach of a condition other than the payment of money. Mutual Benefit Ins. Co. v. Brown, 80 Mo. App. 459. And a complaint alleging a clear breach of a contract i.s not bad on demur- rer because it does not allege a failure to perform other obligations. Keller v. Reynolds, 12 Ind. App. 383, 40 N. E. 70, Rehearing Denied in 12 Ind. App. 390, 40 N. E. 280. 186. General allegation. A general allegation tlia.t the defendant has not performed his con- tract sued on is insufficient on demurrer.^ So, also, as against a surety, an allegation that his principal has not performed is insufficient,^ 'ff«!-i V. Bludicorth, 49 Ala. 218 ("defendants have failed and refused to comply with their" contract). A complaint admitting that a party to a contract has furnished the articles required by it, but "charged" for them a sum in excess of that allowed by the contract, is insufficient to show a breach, since it cannot be in- ferred from the use of the word "charge" that such excess was paid, w that any damage resulted therefrom. Lambie v. Sloss Iron & Steel Co. 118 Ala. 427, 24 So. 108. VII. FOE INSUFFICIENCY ; PAKTICULAE ALLEGATIONS. 369 An averment that a railroad company has paramount and legal title to a portion of the property conveyed under a covenant that it was free from encumbrances does not set forth a breach of the covenant. Haran V. StraHon, 120 Ala. 145, 23 So. 81, 27 So. G4S. A plea is bad which alleges generally that a party has not carried out a contract ''as he agreed to do," under Fla. Laws, chap. 1096, § 19, re- quiring that the plea shall specify particulars wherein the work was not carried out according to agreement. Livingston v. Anderson, 30 Ma. 117, 11 So. 270. In an action against an indorser of a note the words "wherefore a cause of action hath accrued" do not import nonpayment by the maker. Smytiie v. Scott, 106 Ind. 245, 6 N. E. 145, 147. An allegation that defendant neglected to do the specified acts ''according to the terms of said agreement" is bad, as a mere conclusion of law. Wilson V. Clarke, 20 Minn. 367, Gil. 318. An allegation that he "totally disregarded all, and did not fulfil any, of the covenants and stipulations to be kept and performed, and made by him in the written instrument," is bad. Whitehill v. Shickle, 43 Mo. 537. Under a covenant not to let or allow to be underlet, etc., for specified pur- poses, an allegation that the premises were occupied for such purposes "in violation of defendant's agreement" is bad. Schenclc v. THaylor, 2 Duer, 675. Allegations in an affidavit of defense to an action for the purchase price of machinery, that plaintiff did not and has not complied with its con- tract, but not specifying particulars, and that defendant has been put to great delay and expense and damages to an amount specified, are insufficient as stating conclusions, and not facta. American Electric Gonstr. Go. v. Consumers' Gas Co. 47 Fed. 43, Affirmed in 1 C. C. A. 063, 3 U. S. App. Ill, 50 Fed. 778 (motion for judgment). But a demurrer for want of sufficient facts is properly overruled in an action brought for the breach of a written contract, where the pleading alleges the breach, and the performance of all the conditions of the contract upon the part of the plaintiff is averred generally. Vice v. Brown, 22 Ind. App. 345, 53 N. E. 776. A declaration alleging a refusal by defendant to purchase from plaintiff coloring matter, though a reasonable time for its consumption had elapsed, sufficiently states a breach of contract to purchase coloring matter sufficient to finish dyeing a specified amount of goods. Lynd v. Apponang Bleaching, Dyeing & Printing Co. 20 R. I. 344, 39 Atl. 188. But a complaint in an action to foreclose a mortgage, which alleges that the mortgagor had died leaving defendant as his "sole heir and dis- tributee at law," and that the conditions of the mortgage have been broken and that there remains due a specified amount, is not demurra- ble on the ground that it does not sufficiently state the breach of the conditions. Rutherford v. Johnson, 49 S. C. 465, 27 S. E. 470. And a complaint which states a contract and alleges a breach and damages directly resulting therefrom states a cause of action without showing Abb. Pl. Vol. I.— 24. 370 BEIBF ON PLEADINGS ^DEMUEEEE. the particular manner in which the damages occurred. Johnson v. Qil- more, 6 S. D. 276, 60 N. W. 1070. And in an action to recover money due upon a lease, a breach of contract is sufficiently alleged by an averment "that defendant has not paid said sum, nor any part thereof, although requested so to do.'' Ramsey v. Johnson, 7 Wyo. 392, 52 Pac. 1084. 'Van Schaick v. Winne, 16 Barb. 95. Action on official bond. Allegation that officer is a defaulter not equivalent to averring failure to pay over on demand. Washington County v. Semler, 41 Wis. 374. But a complaint upon a bond binding the sureties to pay iipon failure of the principals to comply with the obligation sufficiently alleges breach by the sureties by alleging that the principals did not comply in a certain respect. Parley v. Moian (Cal.) 31 Pac. 158. 187. Allegation in terms of contract. An allegation of a breach is sulReient if expressed by negativing the terms of the contract^ as pleaded, or in language which is equally specific and substantially the same in meaning.^ If the contract was to pay upon a condition which imports the ob- ligation of the contracting party to use diligence, — as in the case of a contract to pay money when collected, — it is sufficient to allege that he did not use such diligence, without stating in what respect he had failed to do so.* ^ Marston v. Holbs, 2 Mass. 433, 3 Am. Dec. 61; Bacon v. Lincoln, 4 Cush. 210, 50 Am. Dec. 765 (covenant) ; Craghill v. Page, 2 Hen. & M. 446 (bond with collateral condition) ; Smith v. J onsen, 8 Johns. Ill (bond for liberties) ; Hughes v. Smith, 5 .Johns. 168 (deputy's bond to sheriflf). Undertaking on the issue of attachment. Allegation that the attachment proceeding was disposed of against the appellee at the September term, 1883, of the Benton circuit court, and that there was a breach in the undertaking, in that the plaintiff did not duly prosecute his proceed- ings in attachment, and that they were wrongful and oppressive, — held sufficient as at common law. Sannes v. Ross, 105 Ind. 558, 5 N. E. 699. Bond of bank cashier. Omission to comply with statute as to assigning breaches held not ground for dismissal. Motion to make more definite is the remedy. Bostwich v. Van Voorhis, 91 N. Y. 353. On a bond with two conditions an allegation that neither was performed was held good. Dictum that if only one of two disjunctive conditions had been broken, a declaration assigning breach conjunctively would be bad. Johnstons v. Meriwether, 3 Call (Va. ) 524. All that is necessary in declaring for a breach of the covenant of seisin is to negative the words of the covenant generally. No description of, or reference to, the outstanding or permanent title is necessary; nor is it necessary to aver an eviction or ouster. The covenant is broken, if at VII. FOE INSUFFICIENCY ; PABTICULAE ALLEGATIONS. SI 1 all, as soon as it is made, and not by the occurrence of any future event. The grantor is presumed to know the estate of which he was seised. The fact is peculiarly within his knowledge and he must plead and prove it. Oopeland v. McAdory, 100 Ala. 583, 13 So] 545 (Citing Rickert v. Snyder, 9 Wend. 421; Anderson v. Knox, 20 Ala. 156). But in actions on covenants of warranty and quiet enjoyment, the breach must be set forth particularly; and it is not sufficient that the words of the undertaking be negatived, or that the covenantor's failure to comply with the terms of the undertaking be averred. Chestnut v. Tyson, 105 Ala. 149, 16 So. 723 (Citing Blanchard v. Hoxie, 34 Me. 378; Mills v. Rice, 3 Neb. 76; Morgan v. Henderson, 2 Wash. Terr. 367, 8 Pac. 491; Banks v. Whitehead, 7 Ala. 83 ) . A count in an action by a county to recover the agreed hire of a convict, which sets out as an exhibit the contract of hire and avers that defend- ant failed and refused to pay the hire according to the contract, shows a breach thereof. Pike County v. Hanchey, 119 Ala. 36, 24 So. 751. A petition containing an agreement in which are specifically set forth the conditions and covenants to be kept and performed by the defendants, and alleging that they have not observed its requirements, and have failed, neglected, and refused to perform any of the conditions which it imposed on them, sufficiently sets forth a breach of the contract. West- hrooU V. Schmaus, 51 Kan. 558, 33 Pac. 306. If the words of a covenant taken in connection with the residue of the deed do not mean the same as when they are separated from their context, a breach assigned in the words of the covenant is bad. Chicago, M. d St. P. R. Co. V. Boyt, 44 111. App. 48 (Citing Sicklemore v. Thistleton, 6 Maule & S. 9). * Fletcher v. Peck, 6 Cranch, 87, 127, 3 L. ed. 162, 175 (covenant "that the legislature had a right to convey;" breach assigned "that the legisla- ture had no authority to convey," — ^good). Wilcox V. Cohn, 5 Blatchf. 346, Fed. Gas. No. 17,640 (breach of covenant in patent license ) . Potter V. Bacon, 2 Wend. 583, holding that on an obscure covenant, an alle- gation of breach, according to the substance and the legal effect, though not according to the letter, was enough. Breach of a condition in a contract that a certain amount of grain "shall be received at" certain elevators during each year is not properly as- signed by charging that such amount "was not received," where the agreement, taken as a whole, plainly means that such amount should be delivered at the elevator. Chicago, M. i£ St. P. R. Co. v. Hoyt, 44 111. App. 48. A declaration upon a bond given in certiorari proceedings is bad where the bond is conditioned against the recovery of a judgment by plaintiff, and the breach stated is a judgment in favor of defendants. Palestine Bldy. Asso. V. Spengeman (N. J. L.) 43 Atl. 053. • aiiddon v. McEinstry, 25 Ala. 246; White v. Snell, 9 Pick. 16. An allegation that a school trustee "has neglected and refused to pay" is 372 BEIEF Oli PLEADINGS DEMUEEER. equivalent to an averment that he has refused to give a warrant upon the supervisor, and of a refusal to collect by tax of the district. Ellis V. Sharp, 42 Hun, 179. An allegation in the complaint in an action for breach of contract, that defendant, who was an attorney, neglected to collect certain notes, or any of them, given to him for collection, fails to show a breach where by the terms of the contract defendant agreed simply to use reasonable diligence to collect. Stevens v. Rogers, 16 Utah, 10.5, 51 Pac. 261 (so held on error). 188. Breacli of warranty. A breach of warranty pleaded as a cause of action or defense must, to be good upon demurrer, aver the character and extent of the war- ranty, and the nature and particulars of the breach.^ In an action for the breach of a warranty, it is essential for the purchaser to allege that he relied upon the warranty and was thereby deceived.^ In pleading the breach of a general warranty that the ajrticles sold are of good and substantial material, an allegation that they were not of good material is sufficient* ^ Shirk V. Mitchell, 137 Ind. 185, 36 N. E. 850 (Citing Booher v. Golds- borough, 44 Ind. 490; Robimson Mach. M'orks v. Chandler, 56 Ind. 575; Johnston Harvester Co. v. Bartley, 81 Ind. 406; McOlamrook v. Flint, 101 Ind. 278; Flint v. Cook, 102 Ind. 391, 1 N. E. 633; Conant v. National State Bmilc, 121 Ind. 323, 22 N. E. 250; Aultman, M. & Co. v. SeicMing, 126 Ind. 137, 25 N. E. 894; Lincoln v. Ragsdale, 7 Ind. App. 354, 31 N. E. 581). A breach of warranty that a machine will work well is sufficiently pleaded by an averment that it would not do the work which it was warranted to do, in connection viith averments describing the manner in which it did the work, showing that the work so done was not well done. Seiber- Ung J. F. & Co. v. Tailock, 13 Ind. App. 345, 41 N. E. 841. 'Abilene Nat. Bank v. Nodvne, 26 Or. 53, 37 Pac. 47 (Citing Hohnan v. Dord, 12 Barb. 336; Torkelson v. Jorgenson, 28 Minn. 383, 10 N. W. 416; Zimmerman v. Morrow, 28 Minn. 367, 10 N. W. 139; Watson v. Roode, 30 Neb. 264, 46 N. W. 491; Reed v. Hastings, 61 111. 266). A petition alleging a breach of waiTanty of a horse purchased by plaintiff from defendant should allege, besides the warranty and its breach, that the purchaser bought relying upon the warranty. Richardson v. Coff- man, 87 Iowa, 121, 54 N. W. 356. 'Brower v. Nellis, 6 Ind. App. 323, 33 N. E. 672 (Citing Leeper v. Shau:- man, 12 Ind. 463; McCormiok Harvesting Mach. Co. v. Gray, 100 Ind. 285; Johnston Harvester Co. v. Bartley, 81 Ind. 406). 189. Exception or proviso. In alleging the breach, it is not necessary to negative an exception VII. FOE INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 375 or proviso, contained in a separate clause from the stipulation broken, by which pei-formanoe might have been waived or the obligation avoided.-^ ' Brown v. Commercial F. Ins. Co. 80 Ala. 189, 5 So. 500 (insurance policy). In an action for the breach of an agreement by a licensee not to do certain things outside of his district, it is not necessary to allege that he had not taken advantage of another clause under which he might have secured the right. Stearns v. Barrett, 1 Pick. 443, 11 Am. Dec. 223. 190. Several parties indebted. Where an allegation of nonpayment is necessary, if all those that are liable on the cause of action stated are made defendants an alle- gation that the defendants have not paid is sufficient without negativ- ing payment by any other persons.^ If tliey are not all made defendants an allegation that the defend- ants have not paid^ is not sufficient; but a general allegation that the sum has not been paid is sufficient.^ So, if all those legally entitled to demand payment are joined as plaintiffs, an. allegation of refusal to pay plaintiffs is sufficient; and should payment to a principal, to a cestui que trusty or to a third per- son for whose benefit the contract was made, be a performance, it is for the defendant to allege ajid prove it.* If the contract is for performance by a person and his assigns, etc., or to a person and his assigns, eto., and the action is by or against assignee, executor, heir, administrator, etc., an allegation of nonper- formance by such defendant, or to such plaintiff, as the case may be, is not enough without negativing performance by or to the representa- tive.' ' "Said defendants have not paid" is sufficient ; for a performance by one is a performance by all. Hibbard v. McKmdley, 28 111. 240. In an action on a benefit certificate an answer that the decedent did not pay his assessments sufficiently avers that they were not paid. &ray v. Supreme Lodge K. of H. 118 Ind. 293, 20 N. E. 833. Even though the covenant be by defendant for himself and his assigns, — since assignment will not be presumed. 1 Chitty, PI. 16th Am. ed. 344 (Citing Gyse v. Ellis, 1 Strange, 228). An allegation in an action for contribution, that no part had been paid to the plaintiff by the defendant, is not an admission that any part had been paid by a cosurety. So held, denying motion to make more defi- nite and certain. Yan Demark v. Van Deniark, 13 How. Pr. 372. ^Robins v. Pope, Hempst. 219 (reversing for error in this respect). ' In a covenant for rent against the assignee of a lease an allegation that 374 BEIEF ON PI.EADINGS DEMUEEEB. a speeiTied amount for a specified time "had accrued and become dna and was in arrear" is sufficient without alleging that the lessee had not paid it. Vaii Rensselaer v. Bradley, 3 Denio, 135, 45 Am. Dec. 451. To same effect, see Dubois v. Yan Orden, 6 Johns. 105. * Rowland v. Phalen, 1 Bo&w. 43. • 1 Chitty, PI. 16th Am. ed. 344*. 191. Disabling one's self; anticipatory refusal. An action commenced before the time for defendant's perform - anoe had arrived may be maintained on allegations showing acts on his part which have rendered performance impossible.^ To sustain an action commenced before the time for breach has ar- rived, on the ground of an anticipatory refusal to perform.^ it must appear from the allegations that defendant communicated his refusal to plaintiiJ,^ and that plaintiif acted thereon.* '■ An action on a, trustee's bond to pay interest during the life of a third person and then distribute is sustainable after his embezzlement of the fund, insolvency, and death, without awaiting the termination of the life referred to. Lee r. Pennington, 7 111. App. 247. And see Shaw v. Republic L. Ins. Go. 69 N. Y. 286, 293. 'Hochster v. De La Tour, 2 El. & BI. 678 (leading English case) ; Burtis t. Thompson, 42 N. Y. 246, 1 Am. Rep. 516 (marriage promised). Replevin sustained by mortgagee of vessel, upon the mortgagor announcing' that he would not employ the vessel in the manner he had agreed, the announcement being acted on by plaintiff. Fox v. Kitton, 19 111. 519, 533. Refusal to let plaintiff make up for lost time by work gives right to abandon contract and sue for quantum meruit. Schoonover v. Christy, 20 HI. 426. Action for refusal to receive into employment said to lie before time for commencing service. Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285. An averment that a life association had notified the insured that it would declare the policy or certificate forfeited or lapsed if a certain assess- ment, which was illegal, was not paid by a certain date, does not show such an absolute repudiation of the association's contract as will sup- port a petition in an action for an anticipatory breach or renunciation of the contract, — especially where the action is not brought until after the time designated by the association for declaring the policy forfeited. Lee V. Mutual Reserve Fund Life Asso. 97 Va. 160, 33 S. E. 556. The form of declaration in actions upon policies of life insurance, provided for by Va. Code, § 3251, as amended and re-enacted by Va. act March 3, 1896, is not applicable to an action based upon an anticipatory breack or renunciation befoi-e the policy or certificate has matured according VII. FOE IJS^BUJ?FICIENCY J PAETICULAE ALLEGATIONS. 375 to its terms, as the section requires the complaint to set forth the loss or death relied upon as the ground of plaintiff's recovery. Ibid. ' Traver v. Balsted, 23 Wend. 66. * Gray v. Green, 9 Hun, 334, Followed in Putnam v. Griffin, 19 N. Y. Week. Dig. 46. Although this is the general rule, it is the better opinion that it is not necessary in all cases to show that plaintiff acted thereon otherwise than by bringing an action. Plaintiff is held to elect whether to treat the communication as a breach or not. It is a question of election. g. Instruments for the payment of money only. 192. What are within the statute. The statutes existing in several of the states,^ allowing instruments for the payment of money only to be pleaded by giving a copy and alleging what is due, etc., are construed as applying to instruments which raise an implied promise to pay,^ as well as to those which con- tain an express promise.* But they do not apply to conditional obligations,* nor to a mortgage pleaded in foreclosure,^ nor to judgments or transcripts of judg- ments.* " The statutes are as follows : Florida — ^McClellan's Digest, 1881, chap. 162, § 33, subds. 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. Laws ( 1885 ) , p. 620, § 123. "In an action, counterclaim, or set-off, 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 specified 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 — How. Anno. Stat. (1882), chap. 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 a copy upon the defendant or defendants shall be prima facie evidence of such 376 BEIEF ON PLEADINGS DEMUEKER. Minnesota — Gen. Stat. 1894, § 4984, provides that, when a cause of action upon an instrument is for the payment of money only, it is sufficient for the party to deliver the instrument to the court, and to state that there is due him a. specified sum thereon. Continental Ins. Go. v. Bichard- son, 69 Minn. 433, 72 N. W. 458. Nebraska — Code (1881), § 129. Same as Kansas, supra. New York — Code Civ. Proc. § 534. "Where a cau.se of action, defense, 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 Carolina — Code Civ. Proc. (1883), § 263. Same as North Dakota, infra. North DalcotOr—ComT^. Laws (1887), § 4927; Code Civ. Proc. § 131. "In an action or defense founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the in- strument, and to state that there is due to him thereon, from the ad- verse party, a specified sum, which he claims." Ohio — Rev. Stat. (1890), § 5086. "In an action, counterclaim, 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 in- strument, from the adverse party, a specified sum, which he claims, vrith interest ; and when others than the makers of a promissory note, or the acceptors of a bill of exchange, are parties, it shall be necessary to state the facts which fix their liability." Eouth Carolina — Code of Civ. Proc. § 1S3. Same as North Dakota, supra. South Dakotar-Gv. Proc. § 131; Comp. Laws (1887), § 4927. Same as North Dakota, supra. Wisconsin — ^Anno. Stat. (1889), § 2675. "In an action, defense, or counter- claim 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." Wyom.ing — Picv. Stat. (1887), § 2473. Same as Ohio, supra. 'Burke v. Ashley, 12 Hun, 637 (acknowledgment of indebtedness in a speci- fied amount is enough, though not expressing a promise to pay) ; and see Stansell v. Gorley, 81 Ga. 453, 8 S. E. 868 (action for the debt evidenced by a sealed instrument giving a factor's lien for supplies) ; Noonan v. Ilsley, 21 Wis. 138 (due-bill) ; Ooodunn v. Goodwin, 65 111. 498 (\VTiting reciting a sum due at death, with interest, etc., if assets be sufficient ) . 'Yeeder v. Lima, 11 Wis. 419 (money bond with coupons attached); Spaulding v. Equitable Life Assur. Soc. 22 N. Y. Week. Dig. 18 (ton- tine policy). VII. i?OE INSLnJEICIENCY ; PARTICULAR ALLEGATIONS. 377 A note is suela an instrument, although it recites an executory considera- tion. Chase v. Behrman, 10 Daly, 344, Affii-ming 1 N. Y. City Ct. Ifep. 352. * Tooker v. Arnouw, 76 N. Y. 397 (order for payment only out of an uncer- tain fund) ; Beniley v. Dorcas, 11 Ohio St. 398, 408 (an appeal bond) ; Carrington v. Bayley, 43 Wis. 507 (guardian's bond). A complaint in an action on a note which recites that it is given to secure an overdraft of some of the makers must aver the existence of an over- draft at the time the action is brought. County Bank v. Oreenberg, 116 Cal. 467, 48 Pae. 386. '^Peyser v. McCormack, 7 Hun, 300; Rose v. Meyer, 7 N. Y. Civ. Proc. Rep. 219. • Transcript of judgment sued on not "an insti-ument of ^vriting for the un- conditional payment of money only," within the statute. Memphis Med- ical College v. THewton, 2 Handy (Ohio) 163. There is a difference of opinion as to whether they apply to instruments which bind one party to the payment of money incidentally, or as a con- sideration for executory stipulations. Compare Hard v. Seeley, 47 Barb. 428; Dupre v. Rein, 7 Abb. N. 0. 256. 193. Validity, execution, ownership, and conditions. It is settled in 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 dispense with alleging whatever extrinsic facts may be nocessaxy, if any, to show its consideration,^ its valid- ity,^ the identity of defendant and the signer,* and the title of plain- tiff,® if these facts do not sufficiently appear, presumptively, at least, by the terms of the copy ; and that to charge an indorser of a negotia- ble instiTiment, the extrinsic facts of dishonor and notice must be al- leged.* Allegations of execution and delivery are not essential in a com- plaint by a payee against the maker, upon a promissory note, where the note is set out under a statute providing that in an action found- ed upon an. instrument for the payment of money only, it shall be sufficient to give a copy of the instrument, and state that there is due thereon a speciiied sum.'' 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 ease of mere money instruments, all that was, convenient in the old common-law practice of common coimts with a copy of the note annexed.^ ^ New York Code Civ. Proe. § 534, which provides "where a cause of action, defense, or counterclaim is founded upon an instrument for the payment. 378 BEIEF ON PLEADINGS ^DEMUEEEE. of money only, the party may set forth a copy of the instrument, and state 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." It is held in Illinois that pleading the legal effect of a note, rather than set- ting it out in haec verba, is the proper and scientific mode of declaring thereon. Fitzgerald v. Lorenz, 79 111. App. 651. 'Spear v. Downing, 34 Barb. 522. . * If the maker's coverture appears the facts necessary to give validity to the contract must be alleged. Broome v. Taylor, 76 N. Y. 564. ♦ Vogle V. Kirhy, 15 N. Y. Kv. Proc. Rep. 332, 4 N. Y. Supp. 99 ; Nickels v. American Railway Signal Co. N. Y. Daily Reg. Feb. 26, 1884. Contra in Indiana, Jackson v. Burgert, 28 Ind. 3G. • Gurnee v. Beach, 40 Hun, 108; Rose v. Meyer, 7 N. Y. Civ. Proc. Rep. 219. Contra in Ohio under the peculiar form of the statute there. Sargent v. Steubenville & I. B. Co. 32 Ohio St. 449. But there the indorsement un- der which plaintiff claims must appear in the copy. Tisen v. Eanford, 31 Ohio St. 193. It is unnecessary to allege in a petition seeking recovery on an indorsed bill of exchange, that the indorsement was to plaintiff, when it is averred that the payees indorsed the bill by writing their names across the back thereof, and that plaintiff was the owner and holder. Lyddane v. Owensloro Bkg. Co. 106 Ky. 706, 51 S. W. 453 (Citing D. M. Osborne & Co. V. Stevens, 15 Wash. 478, 46 Pac. 1027). The averment in a petition on a promissory note, that the owner and holder indorsed and delivered the note to plaintiff, is equivalent to an express averment that the plaintiff' i,s the owner of the note. Myers v. Farmer.?' State Bank, 53 Neb. 824, 74 N. W. 252. But a petition in an action on county warrants, whether the suit is brought by the original owner or some other person, need not contain any state- ment of extrinsic facts in regard to the claim of title or ownership, where the petition is framed to meet the requirements of Neb. Code Civ. Proc. § 129, providing that in an action on instruments for uncondi- V tional payment of money only, it shall be sufficient to give a copy of the account or instrument, with all credits and indorsements thereon, and to state that there is due to plaintiff a specified amount which he claims, with interest. Pollock v. Stanton County, 57 Neb. 399, 77 N. W. 1081 (Citing Sargent v. Steubenville & I. R. Co. 32 Ohio St. 449; Myers v. Miller, 2 West. Law Month. 420; Ohio Life Ins. & T. Co. v. Goodin, 1 Handy [Ohio] 31; Prindle v. Caruthers, 15 N. Y. 425; Butchers & D. Bank v. Jacobson, 15 Abb. Pr. 218). A declaration upon a bill of exchange by the drawer against the drawee, alleging the drawing of the bill, its acceptance, presentment at maturity, and dishonor, and that the bill "is still held by the plaintiff," sufficiently shows title in the plaintiff to the bill, since from the omission of any al- legation that the bill was deliveved to the payee, and the statement that it is still held by plaintiff, it may be assumed that he was always the holder of the bill. Richard v. Bowes, 31 N. B. 144. VII. FOE INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 370 The lawful delivery of a note, and title in the indorsee, are sufficiently averred by an allegation that the note was assigned, transferred, deliv- ered, and indorsed to him, without specifying that such transfer, deliv- ery, and indorsement were made by the owner of the note. Oishei v. Craven, 11 Misc. 139, 31 N. Y. Supp. 1021. ' Conkling v. Gandall, 1 Abb. App. Dec. 423. A complaint against an indorser of a promissory note, averring that at the time of the execution and of the indorsement thereof the indorsee, at the request of the indorser and for his sole accommodation, paid to the maker the amount thereof, does not show that, as between the maker and the indorser, the latter was the party accommodated, so as to ren- der notice of nonpayment unnecessary. People's Nat. Bank v. Winton, 13 lud. App. 110, 41 N. E. 75. A complaint in an action against the indorsers of a note, which does not al- lege demand of payment, or notice of nonpayment and protest, or any reason for failing to make the Siajne, is insufficient. Malott v. Jewett, 1 Kan. App. 14, 41 Pac. 674. A complaint in an action against an indorser to entitle plaintiff to take judgment thereon for want of a sufficient affidavit of defense must al- lege presentation of the note to the maker at maturity, demand of pay- ment, and notice to such indorser of the maker's default or refusal to pay. Feale v. Addicks, 174 Pa. 543, 34 Atl. 201. A declaration upon a bill of exchange against the drawer, alleging that the bill was duly presented for payment, and was dishonored and dulv pvn- tested for nonpayment, is bad for want of an averment of presentment for acceptance. Merchants Bank v. Bead, 31 N. B. 91. Contra, Strunk v. Smith, 36 Wis. 631, holding a complaint against indorsers good without any allegation as to the makers, or any as to dishonor, other than that plaintiff duly performed all conditions on his part. A petition in an action against an indorser of a bill of exchange which is annexed thereto need not aver protest of the bill or waiver of protest, where the bill has indorsed on its face the words "no protest." Citizens' Bank v. Millett, 103 Ky. 1, 44 L. R. A. 664, 44 S. W. 366. Allegations that the indorser of a note had due and legal notice of its dis- honor and nonpayment sufficiently show the giving of the notice holding him to his promise to pay, required by Utah Comp. Laws 1888, § 2864, to fix his liability. Smith v. McEvoy, 8 Utah, 58, 29 Pac. 1030. ' Scott v. Esierirooks, 6 S. D. 253, 60 N. W. 850. So, the setting out of a note in connection with an allegation by defendant that he promised to pay according to the terms as set out sufficiently avers the execution of the note by the defendant. And an averment that the note is the property of the payee of the note mentioned therein im- plies a delivery of the note to such payee by the maker. Lord v. Russell. 64 Conn. 86, 29 Atl. 242. A petition alleging that defendant is indebted to the plaintiff in a given amount, according to the terms of a certain promissory note of which a substantial copy is set out, signed by the defendant, sufficiently avers 380 BEIEF O^' PLEADINGS DEMURllKi;. the execution of the note, in the absence of an exception. Behrens v, Dignomtty, 4 Tex. Civ. App. 201, 23 S. W. 288. ' See Purdy v. Vermilya, 8 N. Y. 346. 194. Form of allegation. Substantial compliance with the statutory form as to the allega- tion of what is due^ or as to the averment of a consideration^ is- enough. ' A statement in an oral complaint as entered in the docket in a justice's court, that a specified sum appears to be due the plaintiff upon the note filed with the court, is a substantial compliance -with Minn. Gen. Stat. 1894, § 4984, providing that, when a cause of action upon an instrument is for the payment of money only, it is sufficient for the party to deliver the instrument to the court, and to state that there is due him a speci- fied sura thereon. Continental Ins. Co. v. Richardson, 69 Minn. 433, 72 N. W. 458. The omission of the word "thereon" or its equivalent, after "due to the plaintiff," is not ground of demurrer. Smith v. Fellows, 26 Hun, 384. The omission of "from the defendants" is not a ground of demurrer, where it appears that they were the makers. Hendricks v. Wolff, 14 N. Y. Civ. Proc. Rep. 428. 'A petition in an action on a note, in which the note sued on is copied in haeo verla, from which it appears that it was executed for "value re- ceived," is sufficient, without an allegation that the note was "expressed to be for value received." Harkness v. Jones, 71 Mo. App. 289. 195. Language. A contract in a foreign language may be pleaded by a copy in that language.^ " If a correct 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. Xourny v. Dubosty, 12 Abb. Pr. 128. See Documents, §§ 246-274, infra. h. Cancelation or rescission. 196. Sufficiency of averments. A complaint to cancel a contract is demurrable where there is no all^ation of want of consideration, fraud, accident, or mistake.* In an action to rescind a contract the complaint need not allege a disaffirmance or previous offer to return what plaintiff received upon the contract, or offer to do what the court may require as a con- dition of relief.^ VII. FOB INSUFFICIENOT ; PAKTICULAE ALLEGATIONS. 381 The effectiveness of the disaifirmaiice of a parol sale in a bill to recover possession of the property is not conditional upon the trutJi of the reasons assigned therefor.^ ^ Boyd V. American Carbon Black Go. 6 Pa. Dist. E. 209 (Citing Murray v. Ncu- York, L. & W. U. Go. 103 Pa» 37; Sylvius v. Kosek, 117 Pa. 67, 11 At). 392; Bowers v. Bennethum, 133 Pa. 306, 19 Atl. 624; Geddes's Ap- peal, 80 Pa. 442; Edmonds's Appeal, 59 Pa. 220). But the allegations are sufficient to make a case of fraud authorizing the rescission of a contract and the cancelation of a deed and a mortgage, where they state that the grantors were old, infirm, and illiterate, hav- ing a homestead which they had obtained an, order to sell for reinvest- ment of the proceeds, but were deceived by defendants, who had notice of the facts, and gave them a second mortgage, which they understood w&s a first mortgage, and that the papers were falsely dated to cover up the fraudulent transaction. Casey v. Howard, 105 Ga. 198, 31 S. E. 427. ICor is a bill to rescind a contract for the sale of land, on the ground of fraud, demurrable on the ground of the inability of the complainant to restore land obtained imder the contract, where it is alleged that such land was sold and conveyed by virtue of a prior existing lien. Hen- nimger v. Heald, 51 N. J. Eq. 74, 26 Atl. 449. ' In Knappen v. Freeman, 47 Minn. 491, 50 N. W. 533, the court says : ■"When a party seeks to rescind a contract by his own act, he must give the other party notice of his rescission, and restore or offer to restore to him whatever he received from him under or by reason of the contract. In other words, he cannot repiidiate its obligations and retain its benefits. When, however, he seeks the aid of a court to rescind the contract, it is not necessary that he should have previously attempted a rescission, nor that he should have made any tender to the other party, except where such tender might be necessary to put the party in default. What he ought to do, and must do, to reinstate the other party in sialii quo, as a condition of the rescission, is, then, for the court to determine. All that is required to justify a rescission by the court is that the con- tract is one that a court of equity will cancel or rescind on the ground alleged, that such ground of rescission exists, and that the plaintiff has not lost his right to a rescission by affirmance, laches, or othervrise. It was one of the rules of pleading in courts of equity, in suits where the court might impose conditions on the plaintiff, or give the defendant affirmative relief, as in suits for specific performance, cancelation of in- struments, rescission of contracts, or for accounting, that the plaintiff in his bill should offer to do whatever the court might deem equitable. This was upon the maxim that he who seeks equity must do equity. But, although, at one time, a bill was demurrable if it omitted this offer, the requirement was, in its nature, formal. The oflFer was not one of the facts constituting the cause of action, any more than was the prayer for process. It may be doubted that the rule referred to still ex ists in courts where equity forms of pleading are retained. Oolomhiau Government v. Rothschild, 1 Sim. 94; Wells v. Strange, 5 Ga. 22. These were suits for accounting. Jervis v. Berridge, L. R. 8 Ch. 351, was a 382 BEIEF ON PLEADINGS ^DEMUEEEE. suit for cancelation or rescission, and the offer in the bill was held not necessary. However it niay be where equity forms of pleading are re- tained, it cannot be so under the Code system, which requires a com- plaint to contain only a statement of the facts constituting the cause of action and the prayer for relief. See Coolbaugh v. Koemer, 32 Minn. 445, 21 N. W. 472. The willingness of the party to perform those terms which the court may think it right to impose as the price of any relief is sufficiently shown by his submitting his cause to the court, which has the power to impose the proper terms." A complaint alleging a tender of the amount paid for land, a demand for a deed reconveying such land, and knowledge on the part of the original grantee that the grantor was non compos mentis, and demanding a re- scission of the sale, is suifieient without an express allegation of a dis- affirmance of the contract. Thrash, v. Starhuch, 145 Ind. 673, 44 N. E. 543. The allegation in a complaint for the rescission of a sale of stock, that the buyer disposed of the "few shares" not tendered back before he became aware of the fraud complained of, is not sufficient to avoid the general rule requiring a return in specie ; but all the material facts with respect to such disposition, — such as the price received, the time and place of the sale, name of the purchaser, and what particular shares they were, — must be disclosed. Hill v. Earriman, 95 Tenn. 300, 32 S. W. 202 (Cit- ing Farmers Bank v. Groves, 12 How. 51, 13 L. ed. 889; Qay v. Alter, 102 U. S. 79, 26 L. ed. 48; Gof[ee v. Ruifin, 4 Coldw. 510, in support of the general rule that rescission requires, as a condition precedent, that the complaining party shall return the same and all the property that he received, and that he shall place the other party in statu quo). * Davis V. Ross (Tenn. Ch. App.) 50 S. W. 650. CoPYBlGIIT. 197. Sufficiency of averments. Originality, intellectual production, thought, and conception on the part of the author should be averred in a petition for inf rin^enaent of a copyright.^ In case of the infringement of a photograph a detailed description of the method adopted in taking the photograph need not be given, nor need a copy thereof be attached to the petition.* A bill for infringement of the copyright of a song described as a portion of a dramatic composition should show whether, by the word "song," is intended the words only, or whether it includes the music accompanying the words, and whether the use by defendant included the music or only the words.' The deposit of copies of a copyi-ighted book in the office of the Li- brarian of Congrpss should be averred in a bill to enjoin infringe- Vn. FOK INSUFFICIENCY ; PABTICTJLAE ALLEGATIONS. 383 ment, in order to show affirmatively that the plainitiff has complied with the statutory requirements.* A complaint against a corporation to recover penalties for insert- ing notices of copyright in uncopyrighted books does not sufficiently aver that the defendant had not obtained a copyright, by alleging that the book was not copyrighted by the defendant corporation un- der either of its names, as it might have obtained a copyright by as- signment.® ' The court will presiun© that the words "written or composed" in a bill for infringement of a copyright import originality, although it fails other- wise to allege authorship. Henderson v. Tompkins, 60 Fed. 758. The question of the essential characteristics of matter patented or copy- righted, aside from mere originality or utility, is one of law which can be considered on demurrer. Ihid. An averment in a suit for infringement of a copyright, that complainants were, at the time of securing the copyright, the proprietors of the book or periodical in which the print and article claimed to have been in- fringed were included, is a suiEcient allegation that the complainants are the proprietors of the engraving and article. Lillard v. Sun Print- ing £ Pub. Asso. 87 Fed. 213. ' Folk v. Schumacher, 48 Fed. 222. * Henderson v. Tompkins, 60 Fed. 758. 'Burnell v. Chovm, 69 Fed. 993. A bill for infringement of a copyright, which alleges that two copies of the book were deposited in the Librarian's ofiBce at Washington within ten days after the publication, need not also aver that the book was pub- lished within a reasonable time after deposit of the copy of the title. Scrihner v. Henry G. Allen Co. 49 Fed. 854. • Rigney v. Raphael Tuck & Sons Co. 77 Fed. 173. 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 capacity 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 384: BEIEF OX PLEADIXGS DEMtJEEEE. tke times hereinafter mentioned was and ever since has been" has rendered it usually unnecessary to notice this distinction.] 198. Necessity of alleging incorpora- 203. Subscriptions. tion. 204. Failure to file report, — director's 199. General allegation of organization. liability. 200. Power to act. 205. Stockholder's action. 201. Private or foreign corporation. 206. Stockholder's liability. 202. Mode of act. 198. Necessity of alleging incorporation. In the absence of a statute requiring an allegation,* a pleadinjr in- volving the existence or transactions of a corporation is not necessa- rily demurrable for insufficiency by reason of not alleging incorpora- tion ; for that fact m.ay be assumed from the use of a name appropri- ate to a corporation, or from the fact that the party contracted with 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 mtist affirmatively appear.^ ' Such statutes exist in several of the states. See X. Y. Code Civ. Proc. J 177.5. 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, Code PI. I 24fi. 'Abbott, Trial Ev. 18, § 1; Union Cement Co. v. Snhhi, 1.5 Fed. 502; Wheat- ley V. Chicago Trust & Sav. Bank, 167 111. 480, 47 N. E. 711, Affirming 04 111. App. 612; Parker v. Carolina Sav. B'nih, .53 S. C. .583, 31 S. E. 673. Coii.pare Bliss, Code PI. §§ 2.59, 260, 408a. A complaint upon a claim against an estate need not aver that the claim- ant i= a corporation. Bauer v. Jung BrevAtig Co. (Ind. App.) 42 X. E. 827. A complaint on a contract, describing plaintiff as a certain named per.~on "& Co.," is not bad in not showing whether plaintiffs are a partnership, corporation, or an individual, since in the absence of anything on the face of the complaint showing the contrary, they are to be regarded a.s a corporation. Shearer v. R. .V. Peale & Co. 9 Ind. App. 282. 36 N. E. 45.5. A complaint in an action again.st a corporation need not allege defendant's corporate existence unless the fact of such existence enters into and constitutes part of the cause of action itself. Holden v. Great Western Elevator Co. 69 Minn. 527, 72 X. W. 805 (Citing Kraft v. Kraft, 70 Minn. 144, 72 X. W. 805 ) . A school district need not, in bringing an action, allege that it is a corpo- ration, where the general school law of the state makes all school dis- tricts corporations, of which fact the court- will take judicial notice. School Dist. No. 4 V. Holmes, .53 Mo. App. 487. VII. FOR INSUFFICIENCY ; PAKTICULAK ALLEGATIONS. 385 Contra: A complaint in an action against a private corporation, wihich does not contain an unequivocal averment that it is a corporation, is fatally defective. Miller v. Pme Min. Co. 2 Idaho, 1206, 31 Pac. 803. A complaint by the assignee of a claim for goods sold and delivered by a "company"' must aver the fact and nature of its legal existence. 8. C. Herbst Importing Go. v. Hogan, 16 Mont. 384, 41 Pac. 135. The necessity of alleging that the defendant is a corporation, when such is the fact, is not removed by Dak. Comp. Laws, § 2908, providing that in all civil actions brought by or against a corporation it shall not be nec- essary to prove on the trial the existence of such corporation, unless the defendant shall expressly aver that it is not a corporation. State v. Chicago, M. £ St. P. R. Co. 4 S. D. 261, 56 N. W. 894. The petition in an action by a corporation must allege that it is "duly in- corporated," under Tex. Rev. Stat. art. 1190, providing that in pleading the act of incorporation of any corporation it shall be sufficient to al- lege that it "was duly incorporated." Way v. Bank of Sumner (Tex. Civ. App.) 30 S. W. 497. An action brought by one describing himself as the agent of a certain-named company, without stating whether it is a partnership or a corporation, should be dismissed or the summons and complaint amended to indicate that it is a corporation. Krell Piano Go. v. Kent, 39 W. Va. 294, 19 S. E. 409. And it cannot be presumed that a mortgagee designated as the "Western Trust & Security Company,'' by which the mortgage was sold and as- signed to the plaintiff, is a corporation. Barher v. Crovxll, 56 Neb. 571, 75 N. W. 1109. ' See Demueeek foe Wakt of Capacity, chapter ix., post. A special demurrer to a petition by a bank in an action on a promissory note, on the ground of its failure to allege that it was a corporation, and that as such it was entitled to sue and be sued, will be sustained upon the trial of the demurrer to the answer, whether or not the court had acted upon the special demurrer prior to that time, since the demurrer to the answer would also reach back to the petition. Pryse v. Three Forks Deposit Bank, 20 Ky. L. Rep. 1057, 48 S. W. 415. An averment in a petition that plaintiff is a branch of the Grand Lodge of the Independent Order of Odd Fellows of Kentucky, and that by virtue of the charter granted to that lodge it is a corporation authorized to sue and to be sued, is not a sufficient allegation of corporate existence to enable it to maintain an action, where it is not alleged that the Grand Lodge is a corporation empowered by law to hold property, sue and be sued, and it is not alleged that the plaintiff has been incorporated by any act of the legislature, or by any proceeding in court. Nichols r. Bardwell Lodge No. 119, I. 0. 0. F. (Ky.) 48 S. W. 1091. Failure to allege that the defendant is a corporation may be taken advan- tage of on demurrer on the ground that "the complaint does not state facts sufficient to constitute a cause of action." State v. Chicago, M. & St. P. R. Go. 4 S. D. 261, 56 N. W. 894. :Abb. Pi.. Vol. I.— 25. 386 BRIEF ON PLEADINGS DEMUEREE. 199. General allegation of organization. A general allegation of the organization or creation of a corpora- tion, or its acceptance of a charter, is sufficient on demurrer (when the statute, if private or foreign, is duly pleaded), without allying the proceedings by which it became formed.^ It may be otherwise where the allegations of the pleading draw in qTiestion the validity or effect of those proceedings.^ 'Stanley v. Northwestern Life Asso. 36 Fed. 75 (successor corporation); Nellis v. New York G. R. Co. 30 N. Y. 505 (consolidation of several cor- porations) ; Roberts v. Wabash, St. L. & P. R. Co. (Mo.) 3 West. Rep. 783 (Citing Werth v. Springfield, 78 Mo. 107; Stewart v. Clinton, 79 Mo. 609 ) , and holding that in an allegation that "by various transfers defendant has succeeded to all the rights, privileges, and immunities of, and become subject to, the same penalties" as a corporation named, un- der a charter and statute providing for succession upon condition of ac- ceptance, it is not necessary that acceptance be also pleaded, for the gen- eral allegation necessarily implies an acceptance and whatever else is necessary to make the charter binding. A complaint against u, consolidated railroad company for a tort of one of its predecessors is not demurrable because it does not set forth the ar- ticles of consolidation, where it alleges that such predecessor has been consolidated and united with the defendant company, and is now being operated and run and controlled as a part of the railroad of the latter company under such consolidation. Cleveland, C. C. & St. L. R. Co. v. Prewitt, 134 Ind. 557, 33 N. E. 367. Id pleading the consolidation of two railroad companies under the laws of a foreign state, it is sufficient to plead the statutes, that the provisions of the statute have been complied with, and that the consolidation has been accomplished, without alleging the steps taken in the consolidation, as they are not facts, but evidence. Rothschild v. Rio Grande Western R. Co. 45 N. Y. S. R. 809, 18 N. Y. Supp. 548. A complaint alleging that plaintiff is a corporation duly organized under the laws of the state sufficiently alleges its incorporation, without al- leging the act creating it or the proceedings by which it was created. Northern Trust Co. v. Jackson, 160 Minn. 116, 61 N. W. 908. A petition in an action commenced in the corporate name of the company, which alleges that it is a corporation organized and incorporated under and by virtue of the laws of a designated state, and doing business in the state of Nebraska, is a sufficient plea of its corporate capacity. Fletcher v. Co-Operative Pub. Co. 58 Neb. 511, 78 N. W. 1070. A complaint in an action by a corporation, alleging that it is a corporation organized under the laws of the state of New York, sufficiently alleges its corporate existence, where it is organized under the provisions of a general statute. Sun & E. 8. Bldg. Mut. Loan & A. Fund Aaso. v. Buck, 36 App. TUv. 637, 55 N. Y. Supp. 262. An allegation that a plaintiff is a national banking corporation incorpo- VII. FOE INSUFFICIENCY } PAETICTJLAE ALLEGATIONS. 387 rated under and by virtue of the national banking laws is a substantial compliance with the statute requiring an allegation that it is "duly in- corporated." Oill V. First Nat. Bank (Tex. Civ. App.) 47 S. W. 751. An allegation in a complaint by a national bank that it is a national bank and doing business under the act of Congress is a sufficient allegation that it is a corporation under the national bank act, U. S. Rev. Stat. § 5136 (U. S. Comp. Stat. 1901, p. 3455), providing that a, company or- ganized pursuant to its terms shall be a body corporate. Joseph Holmes Fuel <& F. Co. V. Commercial Nat. Bank, 23 Colo. 210, 47 Pac. 289. A declaration in an action on a beneficiary's certificate which is set forth therein, and from which it appears that the certificate was issued by the grand master and grand secretary, under the seal of the association, and was countersigned by the master of the subordinate lodge with its seal aflBxed thereto, sufficiently shows that the defendant is a corporation. Orand Lodge B. of L. F. v. Cramer, 60 111. App. 212. A bill of particulars alleging that a certain bank was, at a specified date, and ever since until the institution of the suit has been, a, private cor- poration under the state laws, is a sufficient allegation that the bank was a corporation at the institution of the action. Bank of Sun City v. Neff, 50 Kan. 506, 31 Pac. 1054. But an averment in a petition, that the plaintiff is a corporation, is only a conclusion of the pleader, and is insufficient where the statute requires certain things to be done in order to establish a corporation. Brooks- ville R. Co. V. Byron, 20 Ky. L. Rep. 1941, 50 S. W. 530. And an allegation that a certain person acted as agent of a designated in- surance company of a designated place, "not organized or incorporated under the laws of the state," does not sufficiently show that the company was organized at all. People v. Fesler, 145 111. 150, 34 N. E. 146. And an averment that a corporation chartered in several states is "a unit as a corporation" is a mere conclusion of the pleader. Kahl v. Mem- phis & C. R. Co. 95 Ala. 337, 10 So. 661. ' In a motion to make a petition more specific, the court says : "The aver- ment of the petition is to the effect that it was a village ; and it has beea 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 railroad company sets forth its organization — corporation under what state, etc.,. etc. In no instance the proceedings by which it became organized ar& set out in the pleadings. When the corporation is denied, the manner in which it became organized is evidence and should not be pleaded." Deatrick v. Defiance, 1 Ohio C. C. 342. 200. Power to act. Facts showing tlie power of a private domestic corporation to do an act alleged need not be stated, if the act may, for all that appears, be within the usual powers of such corporations.^ 888 BEIEF ON PLEADINGS DEMUEKEK. ' Lindsley v. Svmonds, 2 Abb. Pr. N. S. 69 (note of business corporation, ex- pressed to be for value received) ; Dubois v. New York d B. R. Go. 1 N. Y. Legal Obs. 362; Meohan.ics' Bhg. Asso. v. Spring Valley Shot £ Lead Co. 25 Barb. 419, Reversing 13 How. Pr. 227 (indorsement hj a business corporation ) . A religious corporation suing for rent need not aver its capacity to take real property. Reformed Dutch Church v. Veeder, 4 Wend. 494. A bill for specific performance of a contract by a land company to build a side track upon land donated for a factory need not allege the interest which complainant will have therein, how it is to be completed, nor the power, right, or authority of defendant to build it. Southern Pine Fibre Co. V. Horth Augusta Land Co. 50 Fed. 26. A bill by a corporation to quiet title to land need not aver that complain- ant has the power under its charter to acquire and hold land. Torrent Fire-Engine Co. No. 5 v. Mobile, 101 Ala. 559, 14 So. 557. A complaint in an action by an architect against a corporation to recover for services which are alleged to be reasonably worth a designated sum is not demurrable on the ground that the contract was ultra vires, but such defense, if relied upon, must be alleged and proved. Brown v. Po- mona Bd. of Edu. 103 Cal. 531, 37 Pac. 503. 201. Private or foreign corporation. Where the provisions of a j^rivate or foreign charter are material to the cause of action, they must be pleaded.^ A complaint against a corporation which fails to state whether it is a domestic or foreign corporation, and, if foreign, under what laws incorporated, is not demurrable for failure to state facts sufficient to constitute a cause of action.^ The lack of a certilicate authorizing a foreign corporation to do business in the state is a matter of defense to be pleaded by defend- ant in an action by such corporation.* ■ Eah/nemarmian, L. Ins. Co. v. Beehe, 48 111. 87, 95 Am. Dec. 519. Compare Rogers v. Coates, 38 Kan. 232, 16 Pac. 463; Bard v. Chamberlain, 3 Sandf. 31; Camden & A. R. & Transp. Co. v. Remer, 4 Barb. 127, and cases cited. An averment in a pleading that a corporation had power to execute a con- tract means that it had such power by the law of its being. Western U. Teleg. Co. v. Union P. R. Co. 1 McCrary, 418, 3 Fed. 1. A statute of the state in which a foreign corporation is incorporated, mak- ing invalid a contract executed by such corporation which is not invalid by the common law, and not prohibited by any statute of New York, must be pleaded as an alErmative defense in an action against such cor- poration on such contract in the latter state. Dougan v. Evansville d T. H. R. Co. 15 App. Div. 483, 44 N. Y. Supp. 503. Harmon v. VanderUlt Botel Co. 79 Hun, 392, 29 N. Y. Supp. 783. VH. FOE INSUrFICIENCY J PAETICULAK ALLEGATIONS. 389 Nor is the fact that the defendant is a foreign corporation, and that it is not shown that a decree could be enforced against it, relevant upon con- sideration of a demui-rer that the complaint does not state a. cause of action, where the question of jurisdiction is not presented. Ernst v. Elrnira Municipal Improv. Go. 24 Misc. 583, 54 N. Y. Supp. IIC. A complaint in an action against a foreign corporation, which fails to state "the state, county, or government by or under whose law it was cre- ated," as required by N. Y. Code Civ. Proe. § 1775, is not demurrable because of such omission, but the defendant's right must be obtained by motion. Fraser v. Granite State Provident Asso. 8 Misc. 7, 28 N. Y. Supp. 65. N. Y. Code Civ. Proc. § 3215, does not require the complaint in an action in a district court of the city of New York against a foreign corporation to state that the defendant has an office in the city of New York; it is sufficient if the fact be established on the trial. Billeary v. Slcookum Root Hair Grower Go. 4 Misc. 127, 23 N. Y. Supp. 1016. • O'Reilly, S. & F. Go. v. Greene, 18 Misc. 423, 41 N. Y. Supp. 1056. In an action by the assignee of a foreign corporation upon a contract be- tween himself and a third person, plaintiff need not allege or prove that its assignor had filed a. certificate in compliance with N. Y. Laws 1892, chap. 687, § 15. 'NicoU v. Clarh, 13 Misc. 128, 34 N. Y. Supp. 159. The provision of N. Y. Laws 1892, chap. 687, § 15, requiring foreign corpo- rations to obtain from the secretary of state a certificate of authority to do business in the state, does not affect the cause of action, but only the remedy; and it is not necessary to allege and prove compliance therewith, but that is a matter of defense. W. U. Sau-yer Lumier Go. V. Bussell, 84 Hun, 114, 31 N. Y. Supp. 1107. The objection that a complaint does not allege that the plaintiff corporation has a license to do insurance business in the state, as required by Minn. Gren. Stat. 1894, § 3331, cannot be taken by demurrer in an action where the question is involved collaterally. Fidelity & G. Go. v. Eickhoff, 63 Minn. 170, 30 L. R. A. 586, 65 N. W. 351. A complaint by a foreign corporation is not demurrable for failure to al- lege affirmatively a compliance with Olda. Laws 1890, chap. 18, art. 20, requiring such corporations to file with the secretary of the territory a duly authenticated copy of their charter and appoint an agent. Keokuk Falls Improv. Go. v. Kingsland & D. Mfg. Go. 5 Okla. 32, 47 Pac. 484. A complaint in an action by a foreign corporation need not affirmatively aver compliance with the provisions of S. D. Laws 1895, chap. 47, pre- scribing the conditions upon which a foreign corporation may maintain an action within the state, but the objection must be taken by answer, unless the failure to comply with the statute appears on the face of the complaint. Acme Mercantile Agency v. Rochford, 10 S. D. 203, 72 N. W. 466. A complaint alleging that plaintiffs are foreign corporations doing business within the state, but not alleging that the contract sued on was entered into within the state, need not aver that plaintiffs have complied with the statutory provisions entitling them to do business in the state, a vio- 390 BKIEF ON PLEADINGS— DEMUKEEE. lation thereof by them being matter of defense. St. Louis, A. (t T. B. Co. V. Fire Asso. of Philadelphia, 55 Ark. 163, 18 S. W. 43. Contra: A foreign corporation must affirmatively show compliance with the conditions on which alone it is authorized to do business in the state, in a bill filed by it, in order to obtain any relief. Cumberland Land Co. v. Ca/nter Lumber Go. (Temi. Ch. App.) 35 S. W. 886. A petition in an action by a foreign corporation doing business within the state must allege that it has the permit to do business required by Tex. Acts 1889, p. 88, as a prerequisite to the right to sue. Huffman v. West- ern Mortg. & Invest. Co. 13 Tex. Civ. App. 169, 36 S. W. 306. But such averment is not necessary where it does not appear that the plain- tiff belongs to any one of the classes of corporations named in the stat- ute. Allen v. Tyson-Jones Buggy Co. (Tex. Civ. App.) 40 S. W. 740. 202. 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.^ > Chitty, PL 16th Am. ed. 244. ' Over V. Greenfield, 107 Ind. 231, 5 N. E. 872 (resolution requiring yea and nay vote ) . See also § 161, supra. 203. Subscriptions. A complaint in an action for the recovery of the unpaid balance upon a subscription to the capital stock of a corporation need not al- lege that all of the stock has been subscribed, where it avers that the corporation is, and during all the time mentioned has been, a duly or- ganized and existing corporation.* The readiness and "ndllingness to deliver stock certificates must be alleged in the complaint in an action for the whole amount subscribed for, or for the final instaliaent thereof.^ It is not necessary to allege the issue and tender of a certificate of stock in an action for an impaid stock subscription, unless it is ex- pressly stipulated in the contract that the stock is to be paid for upon issuance of the certificate therefor.^ An averment that the defendant waived the nonpayment of the entire stock is good aa against a general demurrer, since it is an aver- ment of an ultimate fact.* A complaint by a receiver of a corporation to recover from stock- holders unpaid subscriptions to its capital stock is fatally defective where it does not allege that defendant had notice of the call requir- ing stockholders to pay for their stock, made by the court which ap- VII. FOE INSUFFICIENCY ; PAETlCtlLAE ALLEGATIONS. 891 pointed the receiver, or that demand was made upon him for payment of his subscription in accordance with the court's order.' An over-issue of stock as an aggregate of stock in the plaintiff and another company sets up no defense in an action upon a note given for the amount of a subscription to the plaintiff's capital stock, where there is no allegation that the over-issue applies to plaintiff's stock separately.* Nor do allegations that the corporation is a foreign one, and is at- tempting to transact business without filing the statement required by law, state a defense to an action by the corporation for the enforce- ment of payment of subscriptions to the stock.'' ' McKay v. Elicood, 12 Wash. 579, 41 Pae. 919. The petition in a, suit on a note given in fulfilment of a subscription to stock of a corporation need not allege that the full amount of the stock has been subscribed. Ellis v. White (Tex. Civ. App.) 31 S. W. 1071. But in an action by an existing corporation on a subscription to stock, an averment of the subscription to the plaintiff is not defective for failure to aver that the plaintiif is a corporation and the one to which the sub- scription was made, or to allege facts to show a legal organization. Shick V. Citizens' Enterprise Go. 15 Ind. App. 329, 44 N. E. 48. And an allegation that the amount of stock required was never subscribed by solvent persons in good faith is not sufficient as a defense to a com- plaint alleging that it was subscribed, but is a mere conclusion, where defendant does not allege that a single subscription was made by an in- solvent person or by one who did not subscribe in good faith. Ibid. An allegation in a petition that the entire amount of capital stock required by the articles of association of a corporation was subscribed is a suffi- cient averment that the entire capital stock has been subscribed, at least in the absence of objection to its sufficiency. York Park Bldg. Asso. V. Barnes, 39 Neb. 834, 58 N. W. 440. ^ The defect in not stating a readiness and willingness to deliver stock cer- tificates is not cured by the fact that the complaint sets forth a com- plete cause of action as to each instalment, separate action upon each instalment not being allowable after the last call is made. Walter A. Wood Harvester Co. v. Jefferson, 57 Minn. 456, 59 N. W. 532. * Marson v. Deither, 49 Minn. 423, 52 N. W. 38. - Macfarland v. West Side Improv. Asso. 56 Neb. 277, 76 N. W. 584. " ElderUn v. Peterson, 8 Wash. 674, 36 Pac. 1089. But a complaint by a receiver of a corporation to recover from stockholders unpaid subscriptions to the capital stock need not allege that notice was given defendant of the application for the appointment of a receiver, or of the petition upon which it was adjudged that he should collect the unpaid subscriptions from stockholders, as they cannot, in such action, question the court's authority to appoint the receiver, or its judgment declaring the necessity of a call. Hid. 392 BRIEF ON PLEADINGS DEMUKEEE. And a complaint by a receiver of an insolvent company to recover unpaid stock subscriptions is not vulnerable to the objection that it fails to allege that the part of the unpaid subscription necessary to pay the in- debtedness of the company has been judicially ascertained, or that the appellant demanded payment before bringing the action, where it alleges) that it will require the entire amount of the unpaid su'bscriptions to pay debts, and that defendant refuses to pay the claim, sued on. Worth v> Wharton, 122 N. C. 376, 29 S. E. 370. • Russell V. Alabama MidloMd B. Go. 94 Ga. 510, 20 S. B. 350. ' Sigua Iron Co. v. Vandervort, 164 Pa. 572, 30 Atl. 491. 204. Pailure to file report, — director's liability. A complaint based upon a statute making the trustees of a corpo- ration liable for its debts unless tbey annually file a specified report in the office of the clerk of the coTinty where such business is carried on is defective where it fails to state such county, or that the corpo- ration was engaged in any business in any county in the state.^ A complaint in an action against the directors of a corporation to eaiforce the statutory liability imposed upon them by the ITew York stock corporation law, for failure to file annual reports, must allege, either directly or by facts from which it may be fairly inferred, that the corporation was a stock corporation other than a moneyed or a railroad corporation.* ^Wethey v. Kemper, 17 Mont. 491, 43 Pac. 716. ' A complaint in an action to enforce the individual liability of directors, un- der a statute making them liable for the corporate debts unless there is filed annua,lly in the "county where the business is carried on," a state- ment of the capital stock, etc., must aver the county in which the cor- poration does business. Fairbanks, M. 338). 205. Stockholder's action. A bill by a stockholder to enforce rights of a corporation must show effort to secure redress through it, eitber by application to the managing body^ to the stockholders as a body, or through the receiver of the corporajtion,^ or facts showing that such a demand would be futile.2 ^ Holton V. Wallace, 66 Fed. 409. A complaint in an action by a nonassenting stockholder in behalf of him- self and all other stockholders similarly situated, to set aside a fraudu- lent transaction consummated by the directors and other stockholders, must allege a demand upon the corporation to bring the action, and its refusal or neglect to do so; and a mere averment that the plaintiff has demanded from the corporation that it make certain payments to him which could not be made unless the transaction was set aside is not suf- ficient. Flynn v. Brooklyn City R. Co. 158 N. Y. 493, 53 N. E. 520, Af- firming 9 App. Div. 269, 41 N. Y. Supp. 566. A complaint in an action by a stockholder to set aside a lease executed by the corporation must allege that the corporation, on being applied to, refused to prosecute an action for such relief. Flynin v. Brooklyn City R. Co. 9 App. Div. 269, 41 N. Y. Supp. 566. A stockholder who, in a suit for an accounting by the corporation of moneys alleged to have been illegally voted by the directors in payment of back salary to the president, charges that such officer has refused to return the money on demand, that he has a controlling interest in the corpo- ration, and that another officer has refused to take action, — thereby shows that he has taken all practicable steps to induce the corporation to bring a suit. Blair v. Telegram Wewspaper Co. 172 Mass. 201, 51 N. E. 1080. See also cases in chapter vi. ante, under § 11. 'Perry County v. Stehhins, 66 111. App. 427. An allegation that the directors, or a majority of them, are acting in the interest or under the control of others who are charged with the fraud,^ is insufficient in a suit by a stockholder for a wrong to the corporation. 394 BBIEF ON PLEADINGS ^DEMUEEEE. Walsoti V. Vn/ited iStates Sugar Ref. Co. 15 0. C. A. 602, 34 U. S. App. 81, 68 Fed. 769. A failure to seek action on the part of a corporation cannot be excused in a bill by a stockholder to enjoin a corporate wrong, by vague and gen- eral averments of complicity on the part of directors in the wrong against which relief is sought. Ziegler v. Lake Street Elev. R. Oo. 22 C. C. A. 465, 46 U. S. App. 242, 76 Fed. 662. Allegations in a bill by minority stockholders to hold certain directors and other persons dealing with them liable for misappropriation of the cor- porate funds, that the communication addressed to the board of direct- ors, calling their attention to the wrongs complained of and asking that proceedings be taken to right them, was without result, and that one of the wrongdoers at one time owned and controlled » majority of the stock, either at the time of the demand or the filing of the bill, — are too vague and indefinite to confer upon the individual stockholders the right to bring the suit in their own names. Montgomery Light Co. v. Lahey, 121 Ala. 131, 25 So. 1006. A bill by a stockholder to enforce a cause of action in favor of the corpo- ration, alleging merely that plaintiff has requested the directors to sue, and that they have neglected and refused to do so; with the allegation of the conclusion that it was impossible for complainant to obtain any action by the board of directors hostile to the personal interests of the defendants; without any allegation as to when or how the request to sue was made or upon what showing of facts, or as to whether the persons then composing the board of directors continue in office, or any effort to bring about action of the stockholders, although ample time has elapsed, — ^is insufficient to show that the complainant has exhausted all the means within his reach to obtain in the corporation itself the redress of his grievances, or action in accordance with his wishes, so as to give him a right to sue. Swope v. Yillard, 61 Fed. 417. But a complaint in an action by a stockholder against the corporation and its officers, seeking redress for alleged mismanagement and misappropri- ation of the corporate property, need not state that its oflicers have been requested, and have neglected or refused, to institute the action, where it alleges that such officers, who control a majority of the stock, have given unwarranted and fraudulent extensions of credit to an insolvent corporation in which they are largely interested, by reason of which the former corporation has paid no dividends, and its stock has largely de- preciated in value, and that the stockholders are powerless to obtain re- dress so long as the officers own or control by proxy the majority of the stock. Stahn v. Catawba Mills, 53 S. C. 519, 31 S. E. 498. And a petition by stockholders of a corporation to compel a former treas- urer and manager to account for money of the corporation alleged to be in his hands is not insufficient because it fails to allege that an applica- tion to the dircetora to bring the action would have been refused, where it alleges that such former treasurer and directors xmder his domination and control constitute a. majority of the directors. Cowlea v. Qlasi (Tex. Oiv. App.) 30 S. W. 293. VU. FOE INSUFFICIENCY ; PAHTICULAE ALLEGATIONS. 395 A complaint setting forth a purely personal cause of action in eqtuty against specified persons as promoters of a corporation and the corpora- tion itself, as parties jointly liable for fraudulent representations and conduct by which plaintiff was induced to subscribe for the corporate stock, and seeking a rescission of the contract of subscription and a re- turn of the money paid thereon, is not insufficient because of the failure to allege that the corporation or its officers were requested to prosecute for the wrong done by such promoters, and that they refused to comply therewith, or that such a request would have been useless. Franey v. Warner, 96 Wis. 222, 71 N. W. 81. A bill by a minority stockholder for relief from improper conduct of a ma- jority stockholder by which the corporation has been stripped of ita property is not defective in failing to set forth the efforts of plaintiff to secure action by the directors or stockholders, where it avers that de- fendant obtained control of a majority of the stock and bonds on pur- pose to wreck the corporation, procured a board of directors in harmony with that purpose, and that such board did in fact, by refusing profit- able business and diverting traffic, accomplish such purpose. De Neuf- ville V. New York tC- N. R. Co. 26 C. C. A. 306, 51 U. S. App. 374, 81 Fed. 10. 206. Stockholder's liability. In an action to enforce a stockholder's liability for debts of the corporation, it must be alleged that the defendant is a stockholder therein ^ or was at the time the debt was incurred ^ or within the statutxiry period before the commencement of the action.* But a complaint by a creditor of a corporation against a stock- holder on the ground that no certificate had been filed that the capital stock had been paid in, and which alleges that defendant is a stock- holder, is not demurrable for failure to aver the amount of stock held by him.* The insolvency of the corporation must be shown where the stock holder's liability depends upon that fact." > Wheeler v. Thayer, 121 Ind. 64, 22 N". E. 972. A declaration in a suit to enforce a stockholder's liability does not suffi- ciently all^e that defendant is or was a stockholder by averring that the stock was duly issued and a certificate duly executed, and that the stock so issued stands upon the books in the name of the defendant McYickar v. Jones, 70 Fed. 754. An averment that the corporation executed a note while the defendant was a stockholder does not sufficiently show that the indebtedness was in- curred while the defendant was a stockholder, in the absence of further allegations on the subject. J. J. Case Plow Works v. Montgomery, 115 Cal. 380, 47 Pac. 108. But a complaint against a former stockholder of an insolvent corporation, 396 BRIEF ON PLEADINGS DEMUEKEE. who had transferred his stock before the time at which it appears that any indebtedness had been incurred by it or it had become insolvent, which alleges that such transfer was made for the purpose of avoiding the stockholder's liability, and was not bona fide, and that no considera- tion was paid therefor, and that he is still the beneficial owner and holder of the stock, — states a cause of action against such stockholder. Pioneer Fuel Go. v. Bt. Peter Street Improv. Co. 64 Minn. 386, 67 N. W. 217. And a petition by creditors of an insolvent corporation to enforce its stock- holders' statutory liability, averring that each stockholder is the holder of a specified number of shares, sufficiently alleges that they are stock- holders, without an express averment that they own the stock held by them. Railroad Co. v. Smith, 48 Ohio St. 219, 31 N. E. 743. An answer by a stockholder sued for the debts of the corporation, that he disposed of his stock before the return of the execution nulla bona against the corporation, need not show how or to whom the diS'position was made. Dexter v. Edmonds, 89 Fed. 467. ' Weber v. Fickey, 47 Md. 198. A complaint in an action to enforce the individual liability of a stockholder of a corporation upon a note of the corporation must allege when the original debt or liability was incurred; and it is not sufficient to allege the date of the execution of the note and the number of shares of stock owned at that time, as, under Cal. Civil Code, § 322, the stockholder's liability is limited by the number of shares of stock owned at the time the original debt was incurred. Winona Wagon Co. v. Bull, 108 Cal. 1, 40 Pac. 1077. And an allegation that "defendants now are or heretofore have been owners or holders of the shares of the stock of said company, and constitute and comprise all the stockholders of said company," is bad on demurrer, where it does not appear therefrom that any particular stockholder was such at the time the indebtedness was incurred, or at any subsequent time. International Trust Co. v. American Loan & T. Co. 62 Minn. 501 65 K. W. 78, 032. But a, complaint in an action to enforce the statutory liability of a stock- holder of a stock corporation, which alleges that at the time the debt was created the defendant was a stockholder, need not allege that he ceased to be a stockholder and that the action was brought within two years thereafter, since this is a matter to be pleaded in defense. Citi- zens' Bamk v. Weinberg, 26 Misc. 518, 57 N. Y. Supp. 495. * An allegation of a complaint by a permanent receiver of a domestic bank- ing corporation in a suit to enforce the statutory liability of its stock holders, that the defendants were stockholders within two years before the cootnmencement of the action, is sufficient as against a demurrer for failure to state facts sufficient to constitute a cause of action. Persons V. Gardiner, 20 Misc. 663, 50 N. Y. Supp. 822. But the complaint in an action to charge defendant, as stockholder in a cor- poration, with a statutory liability for a, debt of the corporation, need not allege that defendant was a stockholder ^vithin two years before th* VII. FOE INSUFFICIENCY ; PABTICULAK ALl^EGATIONS. 397 commencement of the suit, as required by N. Y. Laws 1848, chap. 40, § 24, as the failure to commence suit within two yeai's is a matter of de- fense. Castner v. Duryea, 16 App. Div. 249, 44 N. Y. Supp. 708. *liowell V. Janvrin, 151 N. Y. 60, 45 N. E. 398 (but the complaint would be subject to a motion to make more definite and certain ) . Nor need it allege that the stock was not issued for property purchased by the corporation, in which case, by statute, no certificate need be filed, as such matter is available as a defense and must be set up in the an- swer. Ibid. Nor need the complaint show how many directors were in the company, where the statute provides that the directors ordering or assenting to such violation shall jointly and severally be liable. Glow v. Brown, 134 Ind. 287, 33 N. E. 1126. A complaint in an action by a judgment creditor to obtain payment of its debt from certain of the stockholders on the ground that the stock sub- scribed by them had not been fully paid need not aver that all of the shares into which the stock was divided have been subscribed for. Ada- mant Mfg. Go. V. Wallace, 16 Wash. 614, 48 Pae. 415. • Perkins v. Ghurch, 31 Barb. 84. A complaint in an action to enforce the liability of stockholders of a bank- ing corporation under N. Y. Laws 1892, chap. 689, for the debts of the corporation to the amount of their stock in addition to the amount in- vested in their shares, sufficiently avers the insufficiency of its assets to pay its debts, where it alleges that, after the application of the net pro- ceeds of all of such assets toward the payment of the indebtedness, there will remain a. deficiency upon the aggregate claims of the creditors of the corporation exceeding the total amount of the capital stock of the bank. Hagmayer v. Farley, 23 App. Div. 426, 48 N. Y. Supp. 336. A petition against the stockholders of a corporation, alleging that at the commencement of the action the corporation was insolvent and had no property of any kind or character, sufficiently shows the liability of the stockholders, notwithstanding a further allegation that certain securi- ties for the debt in suit were placed by the corporation in the hands of trustees. Dawson v. Shelley, 4 Kan. App. 367, 45 Pac. 949. Bvit a petition against a stockholder of a dissolved corporation need not, in Kansas, allege the recovery of judgment against the corporation, or the return of execution thereon that the corporation has no property. Krider v. Goley, 7 Kan. App. 349, 51 Pac. 919. Nor need a complaint in an action by creditors of an insolvent corporation, suing on behalf of themselves and all other creditors, against its as- signee and its stockholders for an accounting of its assets, and to en- force the statutory liability of the stockholders for the corporate debts, show a return of nulla bona against the corporation. Parker v. Garo- lina Sav. Bank, 53 S. C. 583, 31 S. E. 673. And a complaint in an action under the New York banking law of 1892 to enforce the liability of stockholders of a bank after its dissolution is demurrable where it does not show that judgment has been recovered against the corporation and an execution thereon returned unsatisfied. 398 BEIBF ON PLEADINGS ^DEMUEEEB. as required by the stock corporation law of 1892, § 65, or show that the requirements of the statute are impossible of performance. Hirshfeld v. Kursheedt, 81 Hun, 558, 30 N. Y. Supp. 1023. Cotenancy. 207. Sufficiency of averments. A complaint in an action by one tenant in common against another to recover for use and occupation, which does not show that the de- fendant received rents and profits from a third person, or kept the complainant out of possession, is demurrable.-' One tenant in common will not be enjoined at the suit of the other from cutting wood and timber, where nothing is stated in the com- plaint for which the plaintiff has not a plain, adequate, and complete remedy at law; and a ]>rayer that the defendant may be restrained from committing waste is not sufficient to give the court equitable ju- risdiction of the case.^ ' Angela v. Angela, 146 111. 629, 35 N. E. 229. In an action of account between tenants in common, allegations that defendants have taken, as bailiffs of the plaintiffs, a certain quantity of ore, are sufficient after verdict. In such case it is not necessary that the declaration state that the defendants have taken, as tenants in common, more than the amount of their interest. Barnum v. Lan- don, 25 Conn. 137. One tenant in common cannot maintain an action of account against his cotenant, who is alleged to have received more than his share of the profits, where it is not charged that the defendant received rents and profits otherwise than by his occupancy. Sargent v. Parsons, 12 Mass. 149. A complaint in an action for the possession of land by one cotenant against the others, alleging that the defendants in possession refused to allow plaintiff to take possession, and have unlawfully kept plain- tiff out of possession, sufficiently avers a denial of plaintiff's right by the other cotenants. Myers v. Jaoksan, 135 Ind. 136, 34 N. E. 810. 'Adams v. Palmer, 6 Gray, 330. An injunction will not be granted where insolvency is not averred, nor that the defendants had cut timber to an amount in excess of their Bhare in the estate, nor any other facts which entitle plaintiffs to an injunction. Hihn v. Peck, 18 Cal. 641. vii. i-oe insufficiency ; pabtictjlae allegations. 899' Creditoks' -Bill. 208. Exhaustion of legal remedy. 209. Sufficiency of averments. 208. Exhaustion of legal remedy. A creditoi-s' bill is insufficient which does not aver that the legal remedy for enforcing the judgment has been exhausted.^ But a bill by a judgment creditor to remove out of the way of his execution a fraudulent conveyance by the debtor is not strictly a creditors' bill, and does not require an averment that the remedy at law is exhausted.^ A creditors' bill is insufficient where it fails to show the return of an unsatisfied execution,^ or to allege the insolvency of the defend- ant,* or that at the date of the suit or execution he had no property,, or that the land conveyed was all the land owned by the debtor.^ " United States v. Eisenbeis, 88 Fed. 4. 'Quinn v. People, 45 111. App. 547. An allegation that the creditors are remediless because the debtors have disposed of all their property is not essential to a complaint in an action by the creditors to set aside fraudulent transfers by the debtors. Citizens' Nat. Bank v. Hodges, 80 Hun, 471, 30 N. Y. Supp. 445. • United States v. Eisenbeis, 88 Fed. 4; Kittel v. Augusta, T. £ G. B. Go. 65 Fed. 859. A bill to subject the equitable interest of defendant in a designated fund to the payment of his judgment debt is demurrable, where it does not allege that execution on the judgment has been issued and returned unsatisfied, notwithstanding an allegation that defendant has no prop- erty or estate upon which the execution can be levied. Stone v. West- oott, 18 R. I. 517, 28 Atl. 662. But it is not a necessary averment in a bill to remove fraudulent convey- ances out of the way of an execution, that an execution has been re- turned unsatisfied. It is sufiicient to allege the recovery of judg- ment and that the conveyances were fraudulent. First Nat. Bank v. Chapman, 77 111. App. 105. Nor need such allegation be made where it is shown that the debtor is insolvent and that the issuance of an execution would be absolutely useless. Byan v. Spieth, 18 Mont. 45, 44 Pac. 403. A bill which alleges the making of a levy upon the property of the defend- ant corporation so far as the situation of the plant permitted, and seeks a determination as to the interest of such corporation therein, and the sale of such interest to satisfy the execution, sufficiently alleges a return of the execution unsatisfied because of insufficient property on which to levy. Gamphell v. Western Eleotrio Co. 113 Mich. 333, 71 N. W. 644. 400 BEIEF ON PLEADINGS DEMUEEEE. An allegation in a complaint in an action to set aside certain conveyances as fraudulent, that "an execution ^yas in due form of law issued against the defendant upon said judgment, to the sheriff, and that said execution was duly returned by the sheriff wholly unsatisfied," — suffi- ciently shows that a legal execution has been issued and returned unsatisfied. Pierstoff v. Jorges, 86 Wis. 128, 56 N. W. 735. ^Kitiel V. Augusta, T. dc G. R. Co. 65 Fed. 859; Line v. State ex rel. Louder, 131 Ind. 468, 30 N. E. 703; York v. RocTtwood, 132 Ind. 358, 31 N. E. 1110; Pierce v. Bower, 142 Ind. 626, 42 N. E. 223; Dunslmck V. Collar, 95 Mich. 611, 55 N. W. 435; Gibbons v. Pemberton, 101 Mich. 397, 59 N. W. 663. A bill by a judgment creditor to set aside a conveyance of land as fraudu- lent, and for the appointment of a receiver of the rents, which alleges the insolvency of the judgment debtor and his grantee, is sufficient without alleging particularly the nature and amount of alleged prior encumbrances on the land. Freeman v. Stewart, 119 Ala. 158, 24 So. 31. A complaint to set aside conveyances as in fraud of creditors is insuffi- cient where it does not show that at the execution of the conveyance the grantor did not have sufficient property to pay his indebtedness, although it states that he did not have property subject to execution at the commencement of the action or at the time execution was issued and returned. Petree v. Brotherton, 133 Ind. 692, 32 N. E. 300. One assailing a conveyance as fraudulent against creditors must aver that the grantor had no property subject to execution at the time it was issued, as well as at the time the conveyance was executed. Win- standley v. Stipp, 132 Ind. 548, 32 N. E. 302. A complaint in an action to set aside a conveyance of land as fraudulent, which alleges that, three months prior to the filing of the complaint, execution was issued on the plaintiff's judgment against the property of the allied fraudulent grantors, and returned unsatisfied, though the sheriff made diligent search to find any property of the defendant on which to levy, sufficiently shows that the alleged fraudulent grantor had no property at the commencement of the suit from which to sat- isfy the judgment. Whiteside v. Hoskins, 20 Mont. 361, 51 Pac. 739. A judgment creditor in a suit to set aside a conveyance on the ground of fraud need not aver that the defendant had no property out of which the judgment could have been satisfied, when he alleges the issuance of an execution and its return nulla bona. Wyatt v. Wyatt, 31 Or. 531, 49 Pac. 855 (Citing Jones v. Green, 1 Wall. 330, 17 L. ed. 553; McElvxUn V. Willis, 9 Wend. 559. Distinguishing Brumbaugh v. Riohcreek, 127 Ind. 240, 26 N. E. 664). 'Kittel V. Augusta, T. & O. R. Co. 65 Fed. 859; Wagner v. Lwu>, 3 Wash. 500, 15 L. R. A. 784, 28 Pac. 1109, 29 Pac. 927. A complaint to set aside an alleged fraudulent conveyance of land need not particularly allege that the property conveyed is Itself subject to execution, but it is sufficient to allege that at the time of the convey- ance and of bringing the suit the debtor had no other projjerty than VII. FOE INSUFFICIENCY ; PAETIOULAE ALLEGATIONS. 401 that conveyed, subject to execution, with which to pay plaintiff's debt. SUgle V. Eoover, 137 Ind. 314, 36 N. E. 1099. But a bill by a judgment creditor to have the lien of his judgment de- clared superior to that of a subsequent vendee of specific lands to the debtor, which fails to allege that the debtor has no other property out of which the judgment can be satisfied, is fatally defective. Stanton V. Catron, 8 N. M. 355, 45 Pac. 884. A complaint alleging that a, conveyance of property was made by defend- ant to her son "without consideration, for the purpose and with the intent to hinder, delay, and defraud her creditors and particularly the plaintiff," and that defendant "claims to own and is possessed of no property outside of that so transferred, out of which the plaintiff's demand can be satisfied," — is sufficient to support plaintiff's attack upon the conveyance as fraudulent as to creditors, although there is no express allegation that defendant had no other or sufficient property to pay her debts after and at the time of the conveyance. Fuller v. Brown, 76 Hun, 557, 28 N. Y. Supp. 189. The fact that a judgment debtor had no property other than that which he fraudulently transferred, out of which execution could be satisfied, is sufficiently alleged in a, complaint in an action to subject such prop- erty to the satisfaction of the judgment, by averments that the prop- erty so attempted to be transferred was all the property owned by him and that there was a return nulla bona of the execution issued. O'Leary v. Duvall, 10 Wash. 666, 39 Pac. 163. A creditors' bill to set aside a fraudulent conveyance need not allege that the debtor has no other property but the lands fraudulently conveyed. It is sufficient to allege that an execution in the jurisdiction in which the debtor resides has been returned nulla bona. Bank of Montreal v. Black, 9 Manitoba Rep. 439. 209. Sufficiency of averments. A creditors' bill must affirmatively show that it is for the benefit of aU the creditors^ and should contain a definite description and identification of the real estate sought to be reached.^ A bill by a creditor in the nature of a creditors' bill, to sell the real estate of a deceased person, should set forth and comply with the essential requirements of the statute for the sale of realty by admin- istrators for the payment of debts of the estate.* The allegations of a bill to set aside a fraudulent conveyance out of the way of the complainant's execution are sufficient, where it is averred that the conveyance was made after the complainant's debt was incurred, but before the judgment; that the conveyance was with- out consideration and made with the iment to defraud the complain- ant and other creditors ; and that the premises were held by the gran- tee in trust for the use and benefit of the grantor for the purpose of Abb. Pl. Vol. I.— 26. 402 BRIEF ON PLEADINGS ^DEMUEREE. preventing a levy and sale of them under complainant's execution.* Plaintiff in an action to set aside a voluntary conveyance of land as fraudulent as against creditors must not only allege that the con- veyance was made vrith the intent to hinder, delay, and defraud cred- itors, but that plaintifE was hindered and defrauded by the fact that the debtor was left insolvent amd vsrithout sufficient property to pay his debts in full.® ^Pullman v. Stehhins, 51 Fed. 10. 'Brown v. John V. Farwell Co. 74 Fed. 764. • Bunelce v. Dold, 7 N. M. 5, 32 Pac. 45. 'Andrews v. Donneratag, 171 111. 329, 49 N. E. 558. A complaint by a judgment creditor seeking to subject to payment of the judgment land conveyed by the debtor before rendition of the judg- ment, alleging that the debtor is still the owner of the property, and that it is simply held "in trust for him" by the grantee, is insufficient under Minn. Gen. Stat. 1894, § 4218, in the absence of an allegation that the conveyance was made in trust for such judgment debtor. Anderson v. Lmdherg, 64 Minn. 476, 67 N. W. 538. • Kain v. Larkin, 66 Hun, 209, 20 N. Y. Supp. 938. A petition alleging that the petitioner's debtor, with intent to hinder, delay, and defraud his creditors, made on a specified date a transfer of his stock of goods, a description of which is given, to a designated per- son, and that such debtor was at all times mentioned and now is insol- vent, and has not sufficient property to satisfy the petitioner's de- mands, is sufficient under the California insolvent act 1880, § 8. Re Pation, 110 Cal. 33, 42 Pac. 459. The complaint in an action by a judgment creditor against a railroad company states a cause of action where it is alleged that inunediately after the plaintiff's judgment was obtained a receiver was appointed for the property of the defendant corporation, although it was not insolvent, and that such appointment was obtained fraudulently and in bad faith, for the purpose of hindering, delaying, and defrauding the unsecured creditors of the defendant, including the plaintiff. BUgh V. Shelton 8. W. R. Co. 20 ^Va.sh. 16, 54 Pac. 763. Damages. 210. Allegation showing damages, — 213. Ad damnum; demand of judg- by breach of contract. ment. 211. — by tort. 214. Demanding too much. 212. Distinction between general and 215. Exemplary damages. special damages. 216. Itemization of damages. See also Deitdbbeb to Relief, § 60 ; supra; Cause and Effect, § 139, supra. VII. FOE INSUFFICIENCY ; PARTICULAR ALLEGATIONS. 403 210. Allegation showing damages, — by breach of contract. In an action on a contract to recover a sum of money agreed to be paid, an allegation of damag-e 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 damag'es 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 en- titled to recover at least nominal damages,^ and in such case the in- sertion of a claim for damages not recoverable on the facts alleged may be disregarded on demuirrer.* It is the better opinion that the same rule applies even in oases M'here the consideration is wholly executory and damages are not liquidated, and that, in such cases also, a breach, without showing how plaintiff was pecuniarily damaged, is enough against demurrer. But the authorities are in conflict." In an action to recover damages for breach of an executory con- tract for employment, allegations in the complaint which show a loss of the compensation agreed upon for the imexpired teiTa are a suffi- cient averment of damag-es.^ ' In an action for liquidated damages stipulated for in a. special contract, and for other relief, it is unnecessaiy, on motion for an injunction, to show how and to what extent plaintiff was damaged. Spicer v. Eoop, 51 Ind. 365. An action on a contract to manufacture, seeking to recover the contract price on defendant's refusal to receive, is not on breach of an executory sale, and an allegation of damages, is not necessary. Mahoney v. Thompson, 24 N. Y. Week. Dig. 204. Compare Laraway v. Perkins, 10 isf. Y. 371, holding that under a contract by defendant to build a house for plaintiff and receive payment in land, the difference in value between the house and the land is the natural and necessary measure of damages; and that no statement of special damages is necessary to entitle the plaintiff to give evidence thereof. But a complaint against bail for not justifying must allege damage. Olapp V. Schutt, 44 N. Y. 104. ' A contract to save from a leg.'al liability, from a suit, claim, demand, or the like, gives a right of action without any averment of actual dam- age. The legal liability is, in such case, the measure of damages. UcQee v. Roen, 4 Abb. Pr. 8 (Citing Gilbert v. ^^Hman, 1 N. Y. 550, 49 Am. Dec. 359; Churchill v. Eunt, 3 Den. 321). 'Jacobs SuUan Go. v. Union Mercantile Go. 17 Mont. 61, 42 Pac. 109; McCarty v. Beach, 10 Cal. 402; Wilson v. Clarke, 20 Minn. 367, Gil. 318; Fulton P. Ins. Co. v. Baldwin, 37 N. Y. 648; BrasscU v. ^Yilliams, 51 Ala. 349 (compromise which the complaint showed had been at 404 BKIEF ON PLEADINGS DEMUEREE. least partly performed by plaintiff) ; Stafford v. Western U. Teleg. Go. 73 Fed. 273; Western XJ. Teleg. Co. v. Bryant, 17 Ind. App. 70, 46 N. E. 358. A complaint in an action for breach of contract, which sets forth aver- ments entitling the plaintiff to nominal damages, is good as agaiBst a, demurrer for want of sufficient facts. Dunkirk v. Wallace, 19 Ind. App. 298, 49 N. E. 463. In an action against a telegraph company for delay in delivering a mes- sage, it is error to sustain a demurrer, since in any view of the case the plaintiff is entitled to recover nominal damages, — ^the amount paid for the transmission of the message, if no more. Alexander v. Western XJ. Teleg. Go. 66 Miss. 161, 3 L. K. A. 71, 5 So. 397. A complaint upon a, contract, alleging a breach thereof, is not bad on demurrer because it fails to allege wherein and how damage resulted to plaintiff from such breach, since an unwarranted breach entitles plaintiff to nominal damages. Trammell v. Chambers County, 93 Ala. 388, 9 So. 815. -* Bwrler v. Gazalis, 30 Cal. 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 complaint when only nominal damages are recov- erable, unless the parties are i» a court where nominal damages carry a right to substantial costs, or unless some continuing right is in- volved.] Affirmative : Paterson v. DaUn, 31 Fed. 682. A complaint upon a bond to release a mortgage, alleging that by neglect to perform, foreclosure resulted and other premises were lost to plain- tiff, is sufficient. A dictum states "for the breach of a contract an action lies, though no actual damages be sustained." UcGwrty v. Beach, 10 Cal. 462 (Citing Sedgw. Damages, 53; Mareetti v. WiUianm, 1 Barn. & Ad. 415). Kenny v. GolUer, 79 Ga. 743, 8 S. E. 58, holds under G-a. Code, § 2496, that "in every ease of breach of contract the other party has a right to damages." In an action against a carrier for wholly failing to transport grain, as contemplated by an executory contract, an allegation of the market prices at the two termini and a general allegation that "by reason thereof and of the premises, plaintiff has been damaged" in a specified sum, with interest, is sufficient vrithout allegation of sale at a loss. The court says that a breach of contract entitles to nominal damages, at any rate, and insufficiency in the allegation of special damages could not, therefore, avail. Cowley v. Davidson, 10 Minn. 392, Gil. 314. In Devendorf v. Wei-t, 42 Barb. 227, an action by a buyer against the seller for refusal to perform an executory contract for sale, the referee gave judgment for defendant because the goods, having latent defects, .,;^. plaintiff had lost nothing. This was held erroneous, but as plaintiff VII. FOB INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 405 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 v. Boi- ceau, 3 N. Y. 78, 51 Am. Dec. 345, and in Mills v. Gould, 10 Jones &. S. 119. A complaint in an action demanding damages on the ground that unskil- ful dental work on the teeth of plaintiff's daughter had resulted i» their discolorment and injury is not demurrable on the ground that, damage to plaintiff is not alleged. Fitch v. Fitoh, 3 Jones & S. 302. A complaint which sets out facts showing breach of a contract made by defendant with plaintiffs, and that plaintiffs have been damaged there- by, is sufficient in an action for damages for the breach when, not attacked by motion or demurrer. Blumenthal v. Pacific Meat Go. 12 Wash. 331, 41 Pac. 47. In ii complaint by a, buyer against a, seller under an executory contract wholly unperformed, the words "to the damage of plaintiff $79" are enough. It is wholly unnecessary to allege price or value, and ability to resell at a, profit, — these are matters of evidence. Gonover v. Manke, 71 Wis. 108, 36 N. W. 616. Negative : fiiebuhr v. Sonn, 29 App. Div. 360, 51 N. Y. Supp. 592. A general allegation in a complaint that the plaintiff has been damaged in a certain sum by reason of the defendant's failure to make a bond and lease is insufficient as not showing how the damage occurred. Winter v. Goehner, 2 Colo. App. 259, 30 Pac. 51. The averments of a complaint that plaintiff and defendant entered into a contract whereby plaintiff was to deliver a certain number of "stulls'' to the defendant at a specified price each, and that plaintiff delivered a. portion of the "atulls" and was then notified by defendant that he did not want any more, and that plaintiff expended labor of a specified value on the balance of the stulls, do not show that plaintiff has sus- tained any damage by defendant's refusal, and the complaint is there- fore insufficient. Morrison v. American Developing & Min. Co. (Idaho^ 47 Pac. 94 (so held on error). A complaint in an action for damages, alleging that defendant, upon receiving from plaintiffs conveyances of their interest in certain land, agreed to pay two outstanding mortgages upon other land in whicb they were interested, and to carry the indebtedness represented thereby at a reduced rate of interest, and alleging a breach of such agreement, but failing to allege any damages suffered thereby, — is bad on demur- rer. Smith V. Humphreys, 88 Me. 345, 34 Atl. 166. In an action on a covenant to purchase land, facts rendering loss probable are not enough, as against a special demurrer. Oould v. Allen, 1 Wend. 182. Thompson v. Gould, 16 Abb. Pr. N. S. 424, holding that in an action against a 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. 4r06 BRIEF ON PLEADINas DBMUEEEE. A complaint charging a breach of contract fails to allege the facts neces- sary to constitute a caiuse of action for such breach when it does not aver that plaintiff sustained any damages thereby. McLellan v. Good- win, 43 App. Div. 148, 59 N. Y. Supp. 290. But a complaint is sufficient if it alleges facts from which damage may be inferred. Ketchum v. Van Dusen, 11 App. Div. 332, 42 N. Y. Supp. 1112. A petition in an action for breach of contract to purchase sheep does not state a cause of action where it alleges the disposal of the sheep after the refusal of the vendee to accept them, without alleging the sum realized or that they were sold at a loss. Halbert v. Newell (Tex. Civ. App.) 27 S. W. 767. *EamiUon v. Love, 152 Ind. 641, 53 N. E. 181. The petition in an action for breach of contract of employment, which sets out the contract and alleges the breach thereof, and that plaintiff has sustained damages in the full amount of the balance due for the term of employment, need not contain allegations that plaintiff had sought other employment. Missouri, K. & T. R. Co. v. Faulkner (Tex. Civ. App.) 31 S. W. 543. The complaint in an action by an employee for a wrongful discharge need not allege affirmatively that plaintiff used reasonable diligence to ob- tain other employment. Merrill v. Blanchard, 7 App. Div. 167, 40 2^. Y. Supp. 48. 211. —hy tort. in an action to recover damages for a tort an allegation, of dam- ageu is not necessary as against demurrer, for plaintiff is entitled at least to nominal damages.-' At common law the usual ad damnum clause — "to the damage of the plaintiff," specifying a sum — is essential,* and enough. Under the new procedure a demand of judgment in a specified sum is essential, and enough.* In an action of defense based on fraud or deceit, it must be averred tljat damag-e has resulted therefrom.* The petition in an action sounding in tort for damages is not re- (]uired to show the items of damages with that particularity as to dates, persons, amounts, and items as is demanded in a suit on a con- tract.® A complaint for damages to land, which alleges neither the value of the land nor the extent of the injury, is fatally defective.' In an action to recover for injury to real estate by reason of the defeiid ant's n^ligence, allegations relating to the measure of dam- ages do not render the declaration demurrable.'^ An allegation of facts entitling the party to permanent damages for VII. FOE INSUFFICIENCY ; PAIITICULAE ALLEGATIONS. 407 the flooding of lands is equivalent to a formal demand for such dam- ages.^ • TFe66 V. Portland Mfg. Co. 3 Sumn. 189, Fed. Cas. No. 17,322 (a leading American ease. Action for overflowing, in which Story, J., held that actual damage is never necessary where there is a tort ) . Reiterated in Whipple v. Gumherland Mfg. Co. 2 Story, 661, Fed. Cas. No. 17,516; Olezen v. Rood, 2 Met. 490 (action against officer for not returning bail bond) ; Harrington v. St. Paul & 8. C. R. Co. 17 Minn. 215, Gil. 188 (trespass by building railroad on plaintiff's land). A declaration in tort, although it states personal injuries, is bad on de- murrer if it does not lay damage in a specified sum. This was essen- tial at common law. So, especially, in any local court only having jurisdiction where the damages exceed a, specified sum. Treusch v. Kamhe, 63 Md. 274, 277. ' See notes to next section. Kenney v. 'New York C. & H. R. B. 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 dam- ages was not needed. ■* A complaint in an action by the heirs of a grantor of real property to set aside a deed executed by him, as procured from him by fraud, is de- murrable for failure to allege. that the grantor sustained any damagea or injury by reason of the conveyance, or to offer to place the grantees in statu quo. Srader v. Srader, 151 Ind. 339, 51 N. E. 479. An answer setting up fraud or deceit as a defense to a. promissory note should show damage, and the extent thereof. Parker v. Jewett, 52 Minn. 514, 55 N. W. 56. A. petition for false representations in respect to a horse is fatally defect- ive in failing to aver any damages. Gilorest v. Nantker, 42 Neb. 564, 60 N. W. 90G. .Aa allegation that it was not true, as asserted by defendant, that a cer- tain lease wliich had been assigned to plaintiff as security for less than $10,000 was well worth $25,000, and that defendant's statement that such lease was a good and valid security to the plaintiff for all moneys which he might advance thereon was not true, is insufficient to show any loss to plaintiff resulting from such representations, necessary to sustain an action for deceit. Seaman v. Becar, 15 Misc. 616, 38 N. Y. Supp. 69. ■"Missouri, K. d T. R. Co. v. Simmons, 12 Tex. Civ. App. 501, 33 S. W. 1096. * Morgan v. Lake Shore d M. S. R. Co. 130 Ind. 101, 28 N. E. 548. A petition alleging that plaintiff owned certain lands particularly de- scribed, on which there were standing and growing certain fruit, shade, and ornamental trees, shrubs, and vines, also particularly described, and that defendant negligently permitted fire to escape from its loco- motive, by which such trees, shrubs, and vines were destroyed, suiii- 408 BEIEF ON PLEADINGS DEMTFEEEE. eiently alleges an injury to the freehold. Missouri, K. & T. R. Co. v. Lycan, 57 Kan. 635, 47 Fac. 526. A petition which alleges that the noise and dirt incident to the operation of a railroad in the street in front of plaintiff's lot are a great annoy- ance to the plaintiff and his family, and render his residence unfit for habitation, and virtually destroy its value, and that by reason of the premises he has been damaged in the sum of $1,000, sufficiently alleges damage to the lot. Texarkana & Ft. 8. R. Co. v. Bulgier (Tex. Oiv. App.) 47 S. W. 1047. An allegation in an action against a railroad company for damages from its pulling down a pasture fence and permitting stock to enter a pas- ture, that large numbers of animals went into the inclosure and, be- tween certain dates, ate up and tramped down and destroyed the grass, and that plaintiff's pasture was grazed and tramped down to such an extent that the grass thereon was destroyed and killed, — sufficiently alleges permanent injury to the sod, in the absence of special excep- tions. Gulf, C. & H. F. R. Co. V. Jones, 1 Tex. Civ. App. 372, 21 S. W. 145. An allegation that growing grass was worth a certain sum per acre affords a sufficient basis for estimating the damage resulting from its destruc- tion, as the measure of damages is the market value of the grass de- stroyed. QaVveston, H. d S. A. B. Go. v. RheVner (Tex. Civ. App.l 25 S. W. 971. But a complaint in trespass, alleging the tearing down of the ceiling and wall in plaintiff's building, causing great damage to her goods, and breaking up and destroying her business, is subject to demurrer for uncertainty in not alleging the value of the property destroyed and the amount of damage to the premises and her business. Mallory v. Thomas, 98 Cal. 644, 33 Pae. 757. ' The reason is that the loss sustained must be determined by the jury from the facts and circumstances shown in evidence. See -Johnson v. Chapmim, 43 W. Va. 639, 28 S. E. 744. ' A complaint alleging that the fertility of plaintiff's land was destroyed and that it was rendered wholly unfit for agricultural purposes by an overflow of water caused by the negligence of defendant railroad com- pany in constructing its right of way is sufficient to entitle him to recover for permanent damages if sustained by proof, although there is no prayer for such damages. Parker v. Norfolk <£ 0. B. Co. 119 N. 0. 677, 25 S. E. 722. An averment in a complaint in an action against a railroad company to recover damages for the overflowing of plaintiff's land, that the fer- tility of the land has been almost wholly destroyed and rendered unfit for agricultural purposes, is notice to the defendant that the action is for permanent damages. Nichols v. Norfolk & C. R. Co. 120 N. C. 495, 26 S. E. 643. The allegation in terms, of a permanent injury, is not necessary to the maintenance of a judgment for permanent damages, in an action of VII. FOE INSUFFICIENCY ; PAETICULAK ALLEGATIONS. 4:0& trespass quare clausum fregit. Chicago <6 A. B. Co. v. Rolbins, 54 111. App. 611. 212. Distinction between general and special damages. The rule tliat general damages are only such as are the natural and necessary result of the act or omission does not mean the inevita- ble result, but includes all damages which there is a legal presump- tion, 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 faots showing their amount.* •Thus, where the wrong is an injury to the highway, the law presumes that the public suffer damages thereby; hence, if the town sues, it» pleading is sufficient without alleging special damages. Troy v. Che- shire R. Co. 23 N. H. 83, 55 Am. Dec. 177. But the law does not presume that any particular individual suffers dam- ages thereby; hence, if a, private person sues, his pleading is insuffi- cient on demurrer, if he does not allege special damages. Holmes v. Gorthcll, 80 Me. 31, 12 Atl. 730; Shero v. Carey, 35 Minn. 423, 29 N. W. 58; United States ex rel. Search v. Choctaw, 0. & G. B. Co. 3 Okla. 404, 41 Pac. 729. That a complaint for the abatement of a nuisance does not allege any darmige dififsrent from that resulting to the common public is not ao independent ground for demurrer under Cal. Code Civ. Proc. § 430, but is available on a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action. Silva v. Spangler (Cal.) 43 Pac. 617. A complaint in an action to remove an obstruction from a public highway, which does not show that other and adjacent property holders in the town will not suffer like detriment and injury to the plaintiff, is fatally defective. Siskiyou Lumber & Mercantile Co. v. Rostel, 121 Cal. 511, 53 Pac. 1118. The rule that u complaint by an individual to enjoin a public nuisance must positively aver facts showing that he has sustained special injury different in kind from that sustained by the general public is not changed by Idaho Rev. Stat. § 4529, providing that an action to abate a nuisance may be brought by anyone injuriously affected. Redway V. iloore, 2 Idaho, 1036, 29 Pac. 104. An allegation that a standpipe obstructs the light to a building is a suffi- cient allegation of special injury to the owner. But the mere conclu- sion of the pleader that a standpipe or water-tower is liable to blow over or burst is not sufficient averment of special damages. Bar- rows v. Sycamore, 150 111. 588, 25 L. E. A. 535, 37 N. E. 1096. An allegation of an easement in an alley which is vacated is not sufficient to show a special damage or injury different from tliat sustained by 410 BRIEF ON PLEADINGS DEMUEEEE. the general public. Parker v. OatlioUc Bishop, 146 111. 158, 34 N. B. 473. But a complaint in an action against a city for damages from the main- tenance of a nuisance by depositing garbage and rubbish near the plaintiff's dwelling sufficiently alleges a special injury to the plaintiff where it avers that, by reason of the noxious odors emitted, the health of plaintiff and his family has been affected, and the value of his dwell- ing greatly depreciated. New Albany v. Slider, 21 Ind. App. 392, 52 N. E. 626. A general allegation that the construction and maintenance of an electria street railway at grade in the street on which plaintiff's premises abut injures him in a manner different from the inconvenience suffered by the public and other property owners on the street is a mere conclu- sion. Placke V. Union Depot R. Go. 140 Mo. 634, 41 S. W. 915. And in an action to enjoin the erection of a dam across an alleged naviga- ble stream, the plaintiff is not entitled to relief on the ground that it creates a nuisance, in the absence of an allegation that the obstruction of navigation will cause him any special or personal injury. Esson v. Wattier, 25 Or. 7, 34 Pac. 756. So, where the wrong ia 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 Buffered damages, and therefore if the husband or parent sues, his com- plaint is insufficient unless it alleges special damages. Vertz v. Singer Mfg. Go. 35 Hun, 116. A complaint for personal injuries, specifying humiliation, injuries to health, etc., as elements of damage, need not designate the particular amount of damage sustained in each particular. Sloane v. Southern California R. Go. Ill Cal. 668, 32 L. R. A. 193, 44 Pac. 320. To entitle a plaintiff in an action for personal injuries to recover compen- sation for inability to work at his ordinary and usual employment or business, the declaration need contain only a general avennent of such inability caused by the injury, and consequent loss and damage; but when it is sought to recover for loss of profits or earnings depending upon the performance of some special contract or engagement, these special engagements and the facts on which they are based must be set out in the declaration. Chicago & E. R. Go. v. Meech, 103 111. 305, 45 N. E. 290. And where particular damages are claimed by reason of the plaintifTs inability to perform a special contract or engagement, the facts on which such special damages are based must be set out in the declara- tion. North Chicago Street R. Co. v. Barler, 77 111. App. 257. But injuries resulting to one's arm and leg as the result of an accident in ajti elevator, and the effect of such injury on the hearing and mental condition of the person injured, need not be specially alleged. Frank- Un Printing d Pub. Go. v. Behrens, 80 111. App. 313. Loss of future earnings is not in the nature of special damages which must "VII. FOE INSUFFICIENCY ; PARTICULAR ALLEGATIONS. 411 be specially averred to warrant their recovery in an action to recover for personal injuries. Bartley v. Trorlicht, 49 Mo. App. 214. -A general allegation of damages in an action for personal injuries is insufficient to authorize a recovery for loss of time, or to admit proof of the value of such time. Slaughter v. Metropolitan Street R. Go. 116 Mo. 269, 23 S. W. 700. A petition in an action for personal injuries sufficiently alleges their per- manent character to permit recovery of damages therefor, although it does not specifically allege them, -where a fair construction of its alle- gations shows that they cover such injuries. Lewis v. Independence, 54 Mo. App. 183. A petition in an action against a street railway company for personal injuries need not aver the loss of a certain amount of earnings, or that a certain amount was expended for medicine, where such allegations are generally made. Cooney v. Southern Blectrio B. Co. 80 Mo. App. 226. In an action for negligence, plaintiif ia entitled under a general allegation of damage to recover compensation for the pain and suffering endured up to the time of trial and to be thereafter endured. Tuomey v. O'Reilly, S. & F. Co. 3 Misc. 302, 22 N. Y. Supp. 930. But plaintiff in an action for personal injuries must especially aver deaf- ness resulting from the injury, if he wishes to recover therefor. Her- gerl v. Vnion R. Co. 25 App. Div. 218, 49 N. Y. Supp. 307. Allegations in a petition that prior to and at the time of the injury sued for tlie plaintiff was strong and capable of earning and did earn $75 per month, and that by reason of his injuries he is a helpless cripple and his earning capacity wholly destroyed, which are established by the evidence, justify the consideration of loss of time as an element of damage, although there is no express averment thereof. Houston if T. C. R. Co. V. Ray (Tex. Civ. App.) 28 S. W. 256. And a petition in an action to recover damages for personal injuries to plaintiff and wife need not specially allege the amount and value of the time and services of the wife which were lost as the result of her injuries, but the general averment of damages is sufficient to cover them. Missouri, K. & T. B. Co. v. Vance (Tex. Civ. App.) 41 S. W. 167 (Citing Hopkins v. Atlantic & St. L. R. Co. 36 N. H. 12, 72 Am. Dec. 287; Delaware, L. & W. R. Co. v. Jones, 128 Pa. 308, 18 Atl. 330). Nor need a petition in an action for personal injuries aver all the physical injuries which the plaintiff sustained, or which may have resulted from, or have been aggravated by, the wrongful act of defendant; but, if they can be traced to the act complained of, or are such as would naturally follow from it, a general averment of damages is sufficient, even upon a special demurrer. Williams v. Oregon, Short-Line R. Co. 18 Utah, 210, 54 Pae. 991. And plaintiff in an action for personal injuries need not specially plead damages which are the natural and proximate consequences of, or are traceable to, and necessarily result from, the injury, but such dam- ages may be recovered under the general allegations of the complaint; 412 BRIEF ON PLEADINGS ^DEMUKEEE. and ODly the damages which are not the probable and necessary result of the injury are required to be specially pleaded. Oroco y. Oregon Short-Line B. Go. 18 Utah, 311, 44 L. R. A. 285, 54 Pae. 985. The court cannot, upon demurrer to a petition by a passenger upon a sleep- ing car, for damages from failure to keep the car sufficiently warm, alleging that plaintiff became very cold and contracted a violent cold which permanently settled in his face and eyes, say, as matter of law, that all the damages claimed are so remote, unnatural, and improbable- as not to be recoverable. Hughes v. Pullman's Palace Car Co. 74 Fed. 499. A demurrer is not the proper remedy for a claim for special damages that are too remote and speculative, in the complaint in an action for breach of a contract, but the objection should be saved either by a motion to strike, objections to evidence, or by requests for instructions. Treadwell v. Tillis, 108 Ala. 262, 18 So. 886. Contrast, on the point that if suit is by the husband or parent of the per- son injured, special damages must be alleged, the cases of Stone v. Evans, 32 Minn. 243, 20 N. W. 149 ; Kermey v. 7/eto York C. & H. iS. R. Co. 49 Hun, 535, 2 N. Y. Supp. 512 (action by personal representa- tive for benefit of next of kin of deceased). A complaint in an action for the death of a person need not specially aver the loss of his services, as that is a natural and necessary consequence of the death. Morgan v. Southern P. Go. 95 Cal. 510, 17 L. K A. 71,. 30 Pac. 603. A complaint charging a railway company with wrongfully killing a, per- son, and showing that he was free from contributory fault, and that he left a. widow and infant children, states a cause of action although it does not directly allege that the widow and children sustained actual damages. Korrady v. Lake Shore & M. 8. K. Go. 131 Ind. 261, 29 N. E. 1069. A complaint in an action for the wrongful death of plaintiff's intestate,, which alleges that the latter left a widow surviving him, is sufficient without an allegation that she was dependent upon him for support, imder Ind. Eev. Stat. 1894, § 285, providing that the damages shall inure to the exclusive benefit of the widow and children. Salem Bedr- ford Stone Co. v. Hobbs, 11 Ind. App. 27, 38 N. E. 538. But a complaint in an action for negligently causing the death of plain- tifi's intestate is insufficient where there is no allegation that the decedent left a wife and children or next of kin, under Ind. Kev. Stat. 1894, § 285, providing that the damages in such case shall inure t» the exclusive benefit of the widow and children, if any, or the next of kin. State em rel. Meriwether v. Walford, 11 Ind. App. 392, 39 N. E. 162. A petition in an action under Kan. Civ. Code, § 422, to recover damages for the negligent killing of a person, need not state how the plaintiffs were injured pecuniarily, or allege special damages to them. Erb v. Morasch, 8 Kan. App. 61, 54 Pac. 323, Writ of Error Dismissed in 60' Kan. 251, 56 Pac. 133. VII. FOE INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 4:13 The petition in an action for the death of plaintiff's intestate, caused hy defendant's negligence, need not allege that the intestate left a wife or child, under Ky. Const. § 241, providing that whenever death results from negligence or wrongful act damages may be recovered therefor, and that until otherwise provided by law the action shall be prose- cuted by the pei-sonal representative, and the recovery shall form part of the personal estate of the deceased. East Tennessee Teleph. Co. v. Simm, 99 Ky. 404, 36 S. W. 171, Rehearing Denied in 18 Ky. L. Rep. 764, 38 S. W. 131. But a declaration by an administrator, under the Michigan statute, for the negligent killing of his intestate, must allege facts showing that some person has suffered pecuniary injury by the death. Charlebois v. GogeUo & M. B. Co. 91 Mich. 59, 51 N. W. 812. And a, complaint for causing the death of a man should set out the facts as to the existence of a wife and children who would be entitled to damages. Walker v. Lake Shore £ M. 8. R. Co. 104 Mich. 606, 62 N. W. 1032. To recover on account of claims for support and funeral expenses of a per- son killed by wrongful act, under the Minnesota statute, the extent and amount of such claims must be alleged in the complaint for such damages. Sykora v. J. I. Case Threshimg-Mach. Co. 59 Minn. 130, 60 N. W. 1008. A petition under Lord Campbell's act, in an action for negligently causing the death of plaintiff's intestate while a passenger on defendant's train, which alleges that such intestate left a widow^ and next of kin, who are described, on whom the law confers the right to be supported by such intestate, — sufficiently alleges pecuniary loss. Omaha & R. Valley R. Co. V. Crow, 54 Neb. 747, 74 N. W. 1066. But a petition in an action brought under Neb. Comp. Stat. 1897, chap. 21, by the legal representative of one who has died in consequence of an injury sustained by the derailment of a railroad train on which he was a passenger, is defective where the facts alleged do not show that the person for whose benefit the suit is brought had a pecuniary interest in the life of deceased. Chicago, R. I. £ P. R. Co. v. Young, 58 Neb. 678, 79 N. W. 556 (Citing Regan v. Chicago, M. & St. P. R. Co. 51 Wis. 599, 8 N. W. 292). So, a petition in an action imder Neb. Comp. Stat. chap. 21, for wrong- fully causing the death of plaintiff's intestate, is fatally defective where it discloses no survivor entitled by law to support by the person deceased, and in which, with reference to such survivor as is described, there is no all^ation of pecuniary injury. Chicago, B. & Q. R. Co. v. Botid, 58 Neb. 385, 78 N. W. 710. And the petition in an action brought under Neb. Comp. Stat. chap. 21, to recover damages for the death of an intestate, is insufficient where it discloses no person entitled by law to receive support from the deceased, and fails to aver pecuniary injury with reference to the sur- vivor described. Chicago, B. £ Q. B. Co. v. Tan Buskirk, 58 Neb. 252, 78 N. W. 514. 414 BEIEF ON PLEADINaS DEMUEKER. But a petition in an action for the wrongful death of a person, brought by his personal representative under Neb. Comp. Stat, cha-p. 21, is not bad on demurrer for failure to allege whether or not the decedent left a widow, where the names of his surviving minor children who were dependent upon him for support are averred, under § 2 of such act, providing that the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person. Chicago, B. & Q. B. Go. v. Oyster, 58 Neb. 1, 78 N. W. .359. And a petition against a corporation for negligently causing the death of plaintiff's intestate, which alleges that such intestate left seven minor children between the ages of five months and thirteen years, "wholly, dependent" on the deceased for their support and maintenance, suffi- ciently shows that the persona for whose benefit the suit is brought have sustained "pecuniary injuries" within the meaning of Neb. Comp. Stat. 1893, chap. 21, § 2. Kearney Eleetrio Co. v. Iiaughlin, 45 Neb. 390, 63 N. W. 941. In an action by a widow to recover damages for the death of her hus- band, which resulted from the wrongful ax!t of the defendant railroad company, a general allegation of damages, coupled with the disclosed fact that the deceased left a widow and children of tender years, is sufficient, and particular facts showing damages need not be pleaded. Baug V. Great Northern R. Co. 8 N. D. 23, 42 L. R. A. 664, 77 N. W. 97 (Citing Chapman v. Rothicell, El. Bl. & El. 168; Chicago' & A. R. Go. V. Shannon, 43 111. 338; Chicago d N. W. R. Co. v. Swett, 45 111. 197, 92 Am. Dec. 206; Chicago v. acholten, 75 III. 468; Gorham v. New York 0. & E. R. R. Go. 23 Hun, 449; Lehman v. Brooklyn, 29 Barb. 234; Ihl y. Forty-Second Street & Q. Street Ferry R. Go. 47 N. Y. 317, 7 Am. Rep. 450; Oldfield v. New York & U. R. Co. 14 N. Y. 310; Atchison, T. & 8. F. B. Go. v. Weher, 33 Kan. 543, 52 Am. Rep. 543, 6 Pac. 877; Johnston v. Cleveland & T. R. Co. 7 Ohio St. 337, 70 Am. Dec. 75; Nagel v. Missouri F. R. Co. 75 Mo. 653, 42 Am. Rep. 418; Serensen v. Northern P. R. Go. 45 Fed. 407; Kenney v. New York C. & E. R. R. Go. 49 Hun, 535, 2 N. Y. Supp. 512; Atrops v. Gostello, 8 Wash. 149, 35 Pac. 620; Barnum v. Chicago, M. & St. P. R. Co. 30 Minn. 461, 16 N. W. 364; Korrady v. Lake Shore & M. S. R. Go. 131 Ind. 261, 29 N. E. 1069). Criticising Regan v. Chicago, M. & St. P. R. Co. 51 Wis. 599, 8 N. W. 292; Uurst V. Detroit City R. Co. 84 Mich. 539, 48 N. W. 44 ; Cha/rleboia v. Gogebic & M. River R. Co. 91 Mich. 59, 51 N. W. 812; MoOown v. Inter- national & G. N. R. Co. 85 Tex. 289, 20 S. W. 80; Kea/rney Electric Co. V. Loughlin, 45 Neb. 390, 63 N. W. 941; Orgall v. Chicago, B. & Q. R. Co. 46 Neb. 4, 64 N. W. 450. S complaint in an action by an administrator against a railroad company, to recover for the death of his intestate, caused by its negligence, must state whether the person for whose benefit alone the action is brought is the only party benefleially entitled under 21 S. C. Stat, at L. p. 523, providing that every such action shall be for the benefit of the wife, husband, parent, and children of the deceased. Nohrden v. Northeast- ern R. Co. 54 S. C. 492, 32 S. E. 524. VII. FOR INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 415 Special exceptions to the allegations in a petition in an action by a widow for herself and her children to recover for the negligent killing of her husband, that she had been deprived of the solace, comfort, protection, and affection of her husband, and that the three minor children hail been robbed of the moral and intellectual nurture that would have been bestowed upon them, together with his constant aflfeetion, — should be sustained, as the matters alleged are not elements of the damages re- coverable. Oulf, G. d S. F. B. Go. v. Finley, 11 Tex. CSv. App. 64, 32 S. W. 51. But a petition by a wife and child, in an action for the negligent killing o( the husband and father, is not bad on general demurrer because it does not expressly allege that they were damaged by the killing of deceased, where it alleges their relation to him, his contribution to their support, his age, his habits of sobriety and industry, his earnings, the facts showing defendant's responsibility for his death, and prays judgment for a specified amount of damages. International <£ G. N. R. Go. v. Gal- pepper, 19 Tex. Civ. App. 182, 46 S. W. 922. A complaint by an administrator against a town for damages for the death of his intestate, caused by the want of repair of a highway, alleging expenses of sickness and funeral expenses paid by the children and heirs at law of the intestate, is fatally defective, where it fails to show that any of the children are minora, since the damages under Wis. Rev. Stat. §§ 4254-4256, are for the benefit of the children sustaining some pecuniary loss or damage by the death, and the infant children are the only proper beneficiaries. Topping v. St. Lawrence, 86 Wis. 526, 57 N. W. 365. In slander or Idbel by words actionable per se, special damages need not be alleged. Dun v. Maicr, 27 C. C. A. 100, 52 U. S. App. 381, 82 Fed. 169. But in case of words not actionable per se ( Walker v. Tribune Co. 29 Fed. 827 ) , and in case of slander of title ( Wilson v. Dubois, 35 Minn. 471, 59 Am. Rep. 335, 29 N. W. 68), a complaint is insuflncient on gen- eral demurrer if special damages are not alleged. So a complaint for libel which alleges special damages as a consequence of words apparently harmless in themselves, but fails to explain by facts how the words produced the damage, is bad. althougth it avers as a con- clusion that the damages complained of resulted from the words. Bush V. MeMann, 12 Colo. App. 504, 55 Pac. 956. Plaintiff in an action for slander in stating in regard to him that he is a "drummer for a whore house" may show by special allegations of the petition that special damage resulted to him from the utterance and publication of such statement, as it imputes improper conduct or a disreputable vocation to him, even though it is not actionable per se. Mudd V. Rogers, 102 Ky. 280, 43 S. W. 255. But a petition in an action by a woman for slander, charging the use of words imputing fornication to her, need not aver special damages, as Ky. Stat. § 1, expressly makes a charge of fornication against a femal» actionable. Morris v. Curtis, 20 Ky. L. Rep. 56, 45 S. W. 86. And an averment of special damage is unnecessary in an action based 416 BRIEF ON PLEADINGS DBMUEEEE. upon the slander of plaintiff's character and credit, since false words, injurious to a person in his business, spoken maliciously, are actionable per se. HenJcel v. Schmb, 94 Mich. 542, 54 N. W. 293. The averments of a complaint for slander that the charge that plainfciif was a whore was made with intent to injure her business of school teaching, and has damaged her in a. specified sura, are insufiBcient to support an action based upon special damages. Ledlie v. Wallen, 17 Mont. 150, 42 Pac. 2b9. Nor is special damage sufficiently shown in an action for slander, in which the words spoken do not relate to plaintiff's business and were not spoken in regard thereto, by allegations that plaintiff has been in- jured in credit and reputation, that actions at law have been brought to enforce payment of debts, which would not otherwise have been brought, and that speculators and other dealers in live stock and farm produce have in consequence thereof refused to deal with him and purchase his live stock and produce. Erwin v. Dezell, ft4 Hun, 391, 19 N. Y. Supp. 784. In alleging special damages by the publication of libelous matter, in that many persons, firms, and corporations were intimidated and canceled contracts made with the plaintiff, or declined and refused to enter into contracts with him, he should state the names and addresses of sucli persons, firms, and corporations. Jacobs v. Water Overflow Preventive Co. 55 N. y. S. E. 435, 25 N. y. Supp. 346. Allegation and proof of special damage are not necessary in an action for libel by words written or spoken, tending to injure a man in his trade or occupation, which are actionable p^r se although no fraud or dis- honesty is charged, unless the defendant lawfully excuses them. Ln- bouisse v. Evening Post Pub. Co. 10 App. Div. 30, 41 N. Y. Supp. 688. A complaint for libel in the use of words actionable per se need not set out the character and nature of the injury to plaintiff's reputation and in what manner it has been injured in its business, where no special dam- ages are claimed. Cincinnati Street R. Co. v. Cincinnati Daily Tribvmt Co. 31 Ohio L. J. HI. Special damages are not pleaded by the averments in a declaration in an action for libel in publishing that there was an unsettled account against plaintiff, to the effect that plaintiff was damaged in a speci- fied sum; and that the purpose of the publication was to cause him to be suspected and believed to be without integrity and unworthy of credit or public confidence and social intercourse; and that he was greatly injured in his good name and credit, and brought into piAIic scandal, infasny, and disgrace, and was prevented from procuring any of the necessaries of life, and has suffered great anxiety and pain of mind and become incapacitated for business. Fry v. McCord Bros. 95 Tenn. 678, 33 S. W. 568. An allegation of special injury or damage is necessary in a complaint for libel, where the publication is not actionable per se. Birshfield v. Ft. Worth Nat. Bank, 83 Tex. 452, 15 L. R. A. 639, 18 S. W. 743. Neither the aggregate amount of purchases by each individual who is re- VII. FOli liN SUFFICIENCY ; PAETICULAE xiLLEGATIOJSS. 417 strained from trading with complainant by the publication of a libel, nor how much plaintiff would profit in the aggregate had the libel not been published, need be stated in a, complaint for the publication of a libel. Chiatovich v. Hanchett, 88 Fed. 873. Plaintiff in an action against a telephone company for wrongfully taking away his telephone number, continuing his subscription against his will, and telling callers that he does not answer, so as to create the impres- sion that he was neglectful of his business, and to injure his trade, must allege not only that the words were maliciously spoken, but must also aver the particular facts tending to show that he has sustained some substantial damages as the natural and proximate consequence of the utterance of such words. Gain v. Chesapeake & P. Teleph. Co. 3 App. D. C. 546. A complaint against a railway company seeking to recover special damages for deprivation of commTinication between plaintiff's land and the center of a city because of the company's failure to comply with its contract to complete its railway, after it has made excavations and embankments upon plaintiff's lands, must contain a full and specific statement of the facts authorizing a recovery of such damages. Smith v. Los Angeles d P. R. Co. 98 Cal. 210, 33 Pac. 53. A complaint alleging that defendant wrongfully entered upon plaintiff's premises and unlawfully removed and carried away fixtures therefrom to plaintiff's damage and inconvenience, sets xip a cause of action for trespass, with special damages for injuries to fixtures. Cans v. Hughes, 41 N. Y. S. R. 106, 16 N. Y. Supp. 615. The mere danger that a trespass to real property, or a nuisance, by setting water back on plaintiff's mill privilege, might, if sufficiently long continued, ripen into an easement, entitles plaintiff to nominal damages. Willey v. Hunter, 57 Vt. 479. But where a reversioner sues, he must allege facts showing that the wrong is of such permanent nature as to injure the reversion. 1 Chitty, PI. 10th Am. ed. 593. A complaint stating facts which constitute a cause of action is not invali- dated by an error in laying special damages where legal damages are recoverable. Hoosier Stone Co. v. Louisville, N. A. & C. R. Co. 131 Ind. 575, 31 N. E. 365. A demurrer to a complaint setting forth a cause of action founded upon a breach of contract, for which only nominal damages are recoverable in the absence of any allegation of special damages, should be sustained, with liberty to the plaintiff to amend his complaint by pleading special damages. Curtis v. Ritzman, 7 Misc. 254, 27 N. Y. Supp. 259. But a petition which sets out a covenant of seisin and its breach is not demurrable because it does not allege special damages, as it will at least entitle plaintiff to nominal damages. Shell v. Evans, 7 Ohio S. & C. P. Dec. 501. An averment in a complaint that, by reason of the gross negligence of a telegraph company in failing to deliver within a reasonable time a message summoning the sendee to the deathbed of his mother, the Abb. Pl. Vol. I.— 27. 418 BEIEF 02T PLEADINGS DEMUEEEE. plaintiflf has suffered great damage both in body and mind, stating a certain amount, is broad enough to embrace any damage to which the plaintiff is in law entitled. Havener v. Western U. Teleg. Co. 117 N. C. 540, 23 S. B. 457. But in an action against a telegraph company to recover damages for delay in delivering a message, the plaintiff's statement, which avers that he was thereby "hindered and prevented from seeing his father alive and ministering to his wants and comfort," is insufficient when it fails to allege that physical suffering, mental anguish, or grief resulted to the plaintiff from such delay. Kightlinger v. Western V. Teleg. Co. 20 Pa. Co. Ct. 630. An allegation in a complaint in an action against a telegraph company for failing to deliver a message announcing that the addressee's child ii> dying, and requesting an answer, that he would have replied so as to de- lay the funeral until his arrival, and would have immediately started for home, and reached it in time for the funeral, and that the funeral would have been delayed until his arrival, is not subject to demurrer as stating unreasonable or speculative contingencies. Western U. Teleg. Co. V. Lyman (Tex. Civ. App.) 22 S. W. 656. A complaint in an action for injuries to the feelings of plaintiff and his wife from the failure to deliver a telegram informing them of the sick- ness of the wife's father need not state by distinctive averments the specific damages sustained by the wife, in order to support a judgment for injuries sustained by her. Western U. Teleg. Co. v. Russell (Tex. Civ. App.) 31 S. W. 698. A petition in an action against a telegraph company for failure to deliver a message by plaintiff to his brother announcing the serious illness of their mother and requesting the brother to come and go with him to her home, alleging that by the failure to deliver the telegram plaintilif was deprived of the "aid" of his brother, is sufficient without alleging the character of such aid. Western V. Teleg. Co. v. Birchfield, 14 Tex. Civ. App. 604, 38 S. W. 635. A petition in an action against a telegraph company for failure to transmit a message stating that sendee's father was very sick, alleging that, if the telegram had been delivered with reasonable promptness, plaintiff might have been present With his father in his last hours and attended his funeral, but that by the gross negligence of defendant the death and burial took place without the sendee's knowledge, and that plaintiff had suffered great pain and mental anguish and distress from sucb negligence, — is sufficient, on general demurrer, to authorize the recovery of damages for depriving plaintiff of the privilege of being present at his father's death and burial. Western U. Teleg. Co. v. Gahan, 17 Ttx, Civ. App. 657, 44 S. W. 933. Plaintiff in an action for the debauching of his wife must specially allege damages from the contraction of a, veneral disease because of the inter- course of defendant with the wife, in order to recover therefor. Doic- d-all V. King, 97 Ala. 035, 12 So. 405. An allegation that plaintiff was put to the expense of court costs and VII. FOE INSUFFICIENCY J FAETICULAE ALLEGATIONS. 419 attorney's fees in defending against a writ of supersedeas sued out by defendants in execution, and that she was specially damaged in a certain sum because thereof, is a sufficient claim for special damages. B^rns V. George, 119 Ala. 504, 24 So. 718. A consignor of goods cannot bring an action against a carrier for failure to deliver them, without alleging that he is the owner of the goods, or that he was liable for their loss, or that he had sustained special dam- age thereby. Union P. R. Go. v. Metcalf, 50 Neb. 452, 69 N. W. 961. Damages claimed in a complaint as the direct and necessary result of the breach of contract counted on need not be specifically alleged. Riohter V. Meyers, 5 Ind. App. 33, 31 N. E. 582. In an action for breach of an executory contract for the purchase of cattle, loss from depreciation and the expense of keeping the cattle until j, resale is made is a natural result of the breach and need not be specially pleaded. Peters v. Cooper, 95 Mich. 191, 54 N. W 694. But in replevin for horses, to enable plaintiff to recover the sum paid to> the liveryman where defendant kept them, the claim should be specially pleaded. Cook v. Clary, 48 Mo. App. 166. A petition alleging a conspiracy is insufficient in its averments as to dam- ages, in the statement that by means of interference with plaintiff's business and property by such conspiracy he has been subjected to great loss and damage, to wit, a specified sum, without any averment of the facts constituting damage. Toledo Blectrio Street R. Go. v. Toledo Gonsol. Street R. Co. 10 Ohio C. C. 597. 213. Ad damniim; demand of judgment. At conunon law the words "to the damage of plaintiff" in a speci- fied sum, or their equivalent, are essential.-' Under the new procedure the omission of such a clause is not ground of objection if the facts alleged show a right to some dam- ages, and the demand of relief specifies an amount sought.^ ' In an action on a money contract the omission of an ad damnum clause was held fatal on general demurrer, and not helped by substituting a demand of judgment as in a complaint under the Code. Brownson v. Wallace, 4 Blatchf. 465, Fed. Cas. No. 2,042. Case was erased from the docket where the writ contained no ad damnum clause, notwithstanding plaintiff's damage could be inferred from the declaration. Deveau v. SJcidmore, 47 Conn. 19. Where there are several counts, each must contain an ad damnum clause. Dalliy V. Campbell, 20 III. App. 502. Contra on this point. White v. Demilt, 2 Hall, 405, 414. An averment in the body of the complaint that the plaintiff was damaged by the acts charged against the defendant is not necessary where the prayer of the pleading demands judgment for damages which he has sustained by reason of the matters set forth. Jones v. Hirshhurg, IS Ind. App. 581, 48 N. E. 656. 420 BEIEF ON PLEADINGS DEMUEBEE. The petition in an action under Ky. Stat. § 2312, to recover double damsigeK for wrongfully suing out a distress warrant, must recite the statute or conclude "to the damage of the plaintiff contrary to the form of the ' statute." Garnett v. Jennings, 19 Ky. L. Kep. 1712, 44 S. W. 382. 'Riser V. Walton, 78 Cal. 490, 21 Pao. 362; Christal v. Uraig, 80 Mo. ?67; Burkeholder v. Rudrow, 19 Mo. App. 60. If the counts respectively show damage, a, single prayer at the end of the complaint is enough without specifying the amount claimed under eacti count, respectively. Spears v. Ward, 48 Ind. 541. A complaint showing money paid, and demanding judgment, was held not bad for omitting to insert "to plaintiff's damage." Orr Water Ditch Co. V. He 110 Water Co. 19 Nev. 60, 6 Pac. 72. 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 N. A. d C. R. Co. V. Smith, 58 Ind. 57.o. But the better opinion is that judgment on failure to answer after de- murrer overruled should not be entered unless there is an express prayer for judgment. 214. Demanding too much. The objection that the complaint demands a larger amount of dam- ages than its allegations entitle plaintiff to recover is not available ii support of a demurrer. Wodge v. Johnson, 9 N. Y. Civ. Proc. Rep. 339: }fp.ek v. McGhire, 49 Cal. 023. A complaint by a landlord for Die wrongful ]evy of an execution on goods of the tenant upon which the landlord has a lien is not demurrable be- cause it claims special damages which are not recoverable. The proper practice is by motion to strike the claim from the complaint, or by ob- jections to testimony or instructions to jury. Couch v. Davidion, 10!) Ala. 313, 19 So. 507. A demurrer to a declaration on a c-ase for damages will not lie where the declaration makes a case entitling the plaintiff to any recovery whatever, because it demands other or greater damages than the case may legally entitle the plaintiff to recover. Borden v. Western P. Tele;/. Co. 32 Fla. 394, 13 So. 870. A claim in a declaration, of damages to which the plaintiff is not entitled, is not ground for sustaining a general demurrer where the declaration shows a right to some damages. Nixon v. Ludlam, 50 111. App. 273. A complaint in an action to recover damages for the appropriation of lands taken by a railroad company for its right of way is not demur- rable, although the plaintiffs, in connection with a recovery for their individual interests, attempted to recover damages which accrued to an ancestor. Indianapolis dc V. R. Go. v. Price, 153 Ind. 31, 53 N. E. 1018. A declaration upon an attachment bond is not demurrable because, in VII. — FOE insufficiency; paeticular allegations. 421 addition to damages for injuries covered by the bond, it demands dam- ages for other injuries not covered thereby. Offterdinger v. Ford, 92 Va. 636, 24 S. E. 246. Claiming more than the defendant is willing to admit is due, or more iii- ti.rest than the defendant admits, is no sufficient cause for demurrer. Airaham v. Levy, 18 C. C. A. 469, 30 U. S. App. 713, 72 Fed. 124. Contra in Georgia, ^^■here demurrer serves also like a, motion to compel amendment. K<;nny v. Collier, 79 Ga. 743, 8 S. E. 58 (demurrer as to part of damages sustained ) . 215. Exemplary damages. It is necessary to set out in the declaration the facts constituting fraud, malice, oppression, etc., upon which a claim for exemplary damages is based, but it is not necessary that it be claimed in so many Avords that some or all of the damages are exemplary or punitive.^ A complaint for assault and battery need not state the grounds for actual and exemplary damages separately.^ ^Louisville & N. B. Co. v. Bay, 101 Tenn. 1, 46 S. W. 544 (so held on error; Citing Savannah, F. d W. B. Co. v. Holland, 82 Ga. 257, 10 S. K. 200; Southern Exp. So. v. Brown, 67 Miss. 260, 7 So. 318, 8 So. 425; Alalama G. S. B. Go. v. Arnold, 84 Ala. 159, 4 So. 359). A sufficient basis for both actual and exemplary damages is stated in a plea in reconvention that plaintiff, with knowledge of defendant's in- terest in a lot sued for by plaintiff, maliciously and to harass defend- ant, fradulently sued out a sequestration writ and levied it on defend- ant's property, and caused her and her furniture to be put into the street, to defendant's damage in a stated sum, and forced her to rent and pay board and storage, costing her another sum stated. Moore v. Smith (Tex.) 19 S. W. 781. An allegation in a pleading that a conversion of property was unlawful, wanton, and malicious, and done with a fraudulent intent to deprive plaintiff of its value, is sufficient to authorize an award of exemplary damages, without alleging the circumstances showing it to have been so done. San Antonio & A. P. B. Co. v. Kniffen, 4 Tex. Civ. App. 484, 23 S. W. 5457. But a petition alleging that plaintiff contracted with defendant to carry on a newspaper, and that defendant "forcibly and unlawfully" entered upon and took possession of the office and e.xcluded plaintiff from possession, does not state facts sufficient to authorize a recovery of exemplary dam- ages. Connor v. Sewell, 90 Tex. 275, 38 S. W. 35. To authorize the recovery of exemplary damages in an action for tort the petition must show that the injury was wanton, wilful, or ma- licious; and it is not sufficient to allege simply such matters as warrant the recovery of actual damages, without characterizing them as wan- ton, wilful, or malicious. Potter v. Stamfli, 2 Kan. App. 788, 44 Pac. 46. 422 BEIEF ON PLEADINGS DEMUREEE. A petition in an action by a married woman under the Missouri statutes to recover damages for the loss of her husband's support, comfort, and society, against one whose conduct is alleged to have driven him in- sane, need not claim punitive damages, as the plaintiff may waive such damages. Clarh v. Hill, 69 Mo. App. 541. Jackson v. Wells, 13 Tex. App. 275, 35 S. W. 528. A special exception to a petition upon the ground that the actual and ex- emplary damages are not specially pleaded is properly overruled where the petition states the grounds for actual damages separately from those of exemplary damages, such statement being followed by a proper pray- er; and it is immaterial whether such allegations appear in one or in different paragraphs of the petition. Land v. Klein, 21 Tex. Civ. App. 3, 50 S. W. 638. 216. Itemization of damages. A claim for damages stated in the aggregate, and not itemized, is subject to special demiu-rer where the damages result in more than one way.-' 'Sedherry v. Verplanok (Tex. Civ. App.) 31 S. W. 242. The damages claimed in a reconventional demand may be stated in a gross sum instead of being itemized, although it is the better practice to itemize the damages. Bickham v. Hutchinson, 50 La. Ann. 765, 23 So. 902. A petition alleging that if plaintiff's mules had been transported by de- fendant with diligence he would have been able to sell them at the point of destination, but that in consequence of defendant's negligent uclay he lost such opportunity and was put to great inconvenience, expense, and loss of time, and was compelled to drive the mules from place to place seeking a market therefor, by which they were much reduced in value; and giving the amount of such extra expense, the value of the loss of time, and the depreciation in value, — sufficiently sets up the items of damages. Missouri, K. & T. Go. v. Cocreham, 10 Tex. Civ. App. 166, 30 S. W. 1118. A petition properly alleging a sufficient amount of actual damages should not be dismissed on a general demurrer, or special exceptions which amount to general demurrers, to items of damage. Doan v. D. M. Os- borne & Go. (Tex. Civ. App.) 33 S. W. 156. A petition alleging damage for money paid out and for the value of plain- tiff's time and that of his servants employed in the treatment of diseases of hogs purchased from the defendant, who represented the animals to be sound, is vague and indefinite and subject to a, special exception on that ground, where it fails to itemize the amounts expended or to state tlie approximate time occupied by the plaintiff and his servants. Cole V. Carter, 22 Tex. Civ. App. 457, 54 S. W. 914. VII. — FOK insufficiency; paeticulab allegations. 423 Date. 217. Dates, if essantial to the cause of 220. Continuance of fact or right. action. 221. "On or about," "thereupon," "at 218. Form of allegation. and before," "until subse- 219. Several events. quent," etc. See also Premattfre Action, §§ 64-66, supra; Delay, § 223, infra. 217. Dates, if essential to the cause of action. If it appears by the facts alleged that the sufficiency of the plead- er's case depends on the precise date of the fact, the date must be al- leged; and an omission to allege it,^ or the allegation of an insuffi- cient date,^ is fatal on demurrer on the ground of not stating facts sufficient to constitute a cause of action. This rule does not apply to a date merely required to show that the action was not prematurely brought, unless the facts showing that it was so brought affirmatively appear.* 'Where dates are essential to the validity of the cause of action, a demurrer will be sustained if they are left blank. First Nat. Bank v. Deitch, 83 Ind 131 (Citing Shappendocia v. Spencer, 73 Ind. 128; Hyatt v. Mattingly, 68 Ind. 271). Cox v. Farmers' Mut. Fire Assur. Asso. 48 N. J. L. 53, 3 Atl. 122, holding in an action on a 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. Plaintiff in an action on a bond to secure the payment, by a consignee of goods for sale on commission, of the amounts received for such goods, must allege that the amounts which such consignee failed to pay over were for goods consigned after the date of the bond, or for goods pay- ment for which fell due subsequent to such date. Cabot v. McMasters, 55 Fed. 722. A complaint against the director of a corporation, under N. Y. Lavfs 1875, chap. 267, making the directors liable for its debts payable one year from the time they are contracted if suit is brougiht within v, year after they are payable, upon a note given by the corporation, need not spe- cifically state the time when the debt was contracted, as it will be pre- sumed to have been at the date of the note. Straus v. Sage, 10 Misc. 118, 30 N. Y. Supp. 905. A petition in an action based upon the alleged invalidity of county bonds issued before the Texas validating act of 1885, by reason of noncom- pliance with the requisites of a valid issue, should aver the date of issue and delivery thereof, to enable the court to decide as to the effect of such act upon the grounds of invalidity relied upon. Buie v. Cun- ningham (Tex. Civ. App.) 29 S. W. 801. But a petition in an action to recover the statutory penalty for violating the Sabbath day is not bad for omitting the day of the month. And 424 BRIJSF ON PLEADINGS DEMUEEER. the allegation that the act complained of occurred on the Sabbath day is the averment of a fact, and not a mere conclusion. Louisville <£• N. R. Co. V. Com. 92 Ky. 114, 17 S. W. 274. The date of an advancement is immaterial, and need not be alleged in a pe- tition for partition of land. Courier v. Courier, 7 Ohio Dec. 527. A complaint alleging that in March, 1890, defendant had assistants en- gaged in the practice of dentistry, and that one of them, whose name is not given, extracted plaintiff's tooth so negli- gently as to inflict serious injury, is not demurrable for failure to give the exact day when or the name of the assistant by whom plaintilf was injured. Wilkins v. Ferrell, 10 Tex. Civ. App. 231, 30 S. W. 450. 'Driggs v. Fleming, 112 Ind. 313, 14 N. E. 86, holding that, under a statute requiring mortgages to be recorded within ten days, an exhibit filed with the pleading shovping record after the ten days overrode an allegation in the pleading that it was within ten days, and made the pleading bad. An answer in an action for assault and battery alleged by plaintiff to have been committed December "22," alleging that on December "23" plaintiff entered defendant's buisness room in a drunken condition, and that defendant, believing himself to be in great danger, struck plaintiff with a beer glass, and that plaintiff ought not to recover because the assault and battery was committed in self-defense, is demurrable on account of the difference in the dates, under Ind. Rev. Stat. 1894, § 350, requiring the answer to "clearly refer" to the cause of action intended to be answered. Pyle v. Peyion, 146 Ind. 90, 44 N. E. 925. ' See § 64 of subd. v., supra. 218. 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 oc- curred within a period specified is enough on demurrer if each date AAuthin that period would sustain the action or defense.^ 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 w-as after or before the other.' If the specific date is desired, the remedy is by motion to make more definite, or for particulars.* ' It is a, general rule of pleading in personal action.s that every traversable fact must be alleged to have taken place on some particular day. Hare V. Dean, 90 Me. 308, 38 Atl. 227 (Citing Cole v. Babcook, 78 Me. 41, 2 Atl. 545. As against special emurrer, "heretofore" is not enough, for it simply de- notes time past, in distinction from time present or time future. Hence, an allegation that defendants "heretofore" committed the tres- pass alleged is not enough. Park, J., .said : "It is an elementary prin- VII. FOE INSUFFICIENCY ; PAETICTJLAE ALLEGATIONS. 425 cdple of the law of pleading that there must be an allegation in the declaration of the time when any material or traversable fact took place." Andrews v. Thayer, 40 Conn. 156 (Citing 1 Swift Dig. 601, 603, 640, 651, 652, 702; Story v. Barrell, 2 Conn. 665). In a suit for goods seized by defendant under a claim for rent, filed after avowry, a special plea of pai-tial eviction, which does not specify the time thereof, nor the portion from which he was evicted, is bad for uncertainty. Scheible v. Johnson, 19 N. C. 108. In a, civil damage case an allegation that the sales complained of were on divers days between two specified dates is bad even on general de- murrer. Shorey v. Chandler, 80 Me. 409, 15 Atl. 223. But a complaint in forcible entry and detainer, verified and filed in Sep- tember, alleging demand and refusal of surrender of possessiou in the preceding March, and that defendants "have ever since said demand re- fused, and they still refuse, to surrender the same to the plaintiff," sufficiently avers that they refused to surrender within five days after demand. Rimmer v. Blasingame, 94 Cal. 139, 29 Pac. 857. 'In an action for excise penalties, for sales on each day within specified periods, it was held that, as no motion to make definite or for particu- lars had been made, evidence was receivable as to such day. Auhurn Ex- cise Comrs. v. Burtis, 20 N. Y. Week. Dig. 272. In an action against a town for injury caused by a defective way, it is sufficient to allege in the declaration that notice of the injury as re- quired by statute was given within fourteen days after the accident, without specifying the particular day on which the notice was given. Wlien the statute requires a thing to be done within a specified time it is usually enough to allege performance within that period. Smiley v. Merrill Plantation, 84 Me. 322, 24 Atl. 872. A statement in a, complaint to enforce a mechanics' lien, that the account was filed June 23, 1890, sufficiently shows that the account was filed within ninety days, as required by statute, where it appears from the complaint that the last of the material was furnished May 29. Rust- Owen Lumher Co. v. Fitch, 3 S. D. 213, 52 N. W. 879. 'Kellogg v. Baker, 15 Abb. Pr. 286, and eases cited (pleading a release). A complaint in an action on a contract for fire insurance, which alleges that the contract was made on some day in September prior to Sep- tember 21, the day of the fire, for a period of one year, is suffioient, although the dates are left blank in the complaint, wihere they appear from papers in defendant's possession. Hartford F. Ins. Co. v. King, 106 Ala. 519, 17 So. 707. A declaration in an action against one who, by an indorsement on a note, undertook to pay a part of the principal sum due thereon, which shows that defendant, before the institution of the suit, had paid on the note a sum in excess of the amount stated in such writing, vpithout alleging that such sum was paid before the agreement, fails to state a cause of action, as it will be presumed that such payment was made after the agreement. Fidelity £ C. Co. v. Van Dyke, 99 Ga. 542, 27 S. E. 709. 426 BEIEF ON PI,EADINGS DBMUEEEE. An allegation that material for building was furnished "on and between" two dates named shows that the material was furnished subsequent to a mortgage which was filed on the first of such dates. Weir v. Thomas, 44 Neb. 507, 6-2 N. W. 871. A petition in a civil actdon for a breach of a retail-dealer's bond in selling liquors to a minor sufficiently shows — at least on general demurrer — that the sale was made after the execution of the bond, where it sets out the bond in full and the date of the sale, subsequent to that of the bond. Maier v. State, 2 Tex. Civ. App. 296, 21 S. W. 974. * A complaint on a contract made with an intestate is not bad for failing Stewart v. Long, 16 Ind. App. 164, 44 N. E. 63. An averment of a demand and refusal is not essential in a complaint for conversion, where there are proper allegations of ownership and value of the property and that defendant converted it. Baltimore & 0. R. Co. v. O'Donnell, 49 Ohio St. 489, 21 L. K. A. 117, 32 N. E. 476. An allegation in a complaint that the defendant has collected money be- longing to the plaintiff and converted it to his own use, and has wholly failed and refused to pay it over to the plaintiff, shows a sufficient de- mand to sustain an action for conversion. Sloan v. Lick Creek & N. B. Gravel Road Co. 6 Ind. App. 584, 33 N. E. 997. In a complaint for the conversion of certain bank checks, no demand need be alleged where there is an allegation that the defendant wrongfully disposed of and converted them. Schmidt v. Garfield Nat. Bank, 64 Hun, 298, 19 N. Y. Supp. 252. But a complaint for the conversion of a bank book, which does not allege that defendant wrongfully secured possession thereof, is insufficient without an allegation of defendant's refusal to return it after due de- mand therefor. Soff v. Goumeight, 14 Misc. 314, 35 N. Y. Supp. 1052. And a complaint in an action to recover the value of a wagon rented by defendant of plaintiff for a certain purpose, which fails to show any demand for the return thereof, or that the wagon was used for any other purpose than that consented to by plaintiff, or that defendant had done anything to it except what he might lawfully do to render it suitable for the use for which it was intended, — does not state a cause of action, notwithstanding an allegation therein of conversion. Kendall V. Duluth, 64 Minn. 295, 66 N. W. 1150. 230. Necessity of alleging demand in particular instances. Where a demand is a condition precedent to the maintenance of a suit the complaint must allege a previous demand.* But a complaint alleging the receipt of money by the defendant for the use and benefit of plaintiff is sufficient without an allega- tion of a demand.* ^Castle V. Smith (Cal.) 36 Pac. 859. A petition in an action by a county to surcharge a, settlement between a sheriff and o, commissioner appointed by the county, and to recover money allowed to the sheriff by the settlement, must allege a demand by or order to pay to the treasurer before action was brought. Com. ex rel. Bourlon County v. McClure, 20 Ky. L. Eep. 1568, 49 S. W. 789. A complaint against a carrier for unjust discrimination in refusing to lease his land to plaintiff for a grain warehouse, or to make or permit plain- tiff to make connections with his buildings, or to furnish cars for ship- ping the grain of plaintiff's lessees of such buildings, is bad where it fails to s.how that the connection or track demanded could be made on the carrier's land, or that the demand therefor or for the cars was made by plaintiff's lessee. Myers v. Chicago M. & St. P. R. Co. 5ft Minn. 371, 52 N. W. 962. 438 BEIEF ON PLEADINGS ^DEMUEEEE. A statement of claim against a county to recover witness fees in criminal cases must aver demand of payment, that payment has been refused, and that plaintiff has been injured to an amount which covers his claim, with interest, liice v. Schuylkill County, 14 Pa. Co. Ct. 541. ' Field V. Brown, 146 Ind. 293, 45 N. E. 464. A complaint for money had and received or paid for the benefit of the de- fendant at his request need not allege that a demand was made. Wcw- den V. Nolan, 10 Ind. App. 334, 37 N. B. 821. Particular instances: — So, a complaint under the Illinois pauper act, § 3, to compel relatives to support a, pauper, need not aver a formal demand upon them for his support. People ex rel. Peoria County v. Hill, 163 111. 186, 36 L. R. A. 634, 46 N. E. 796. Heirs, distributees, or creditors of a decedent, seeking a settlement and dia- tribution of his estate under Ky. Oivil Code, §§ 428, 429, need not al- lege a demand by them and proof of their claims. Holland v. Lowe, 101 Ky. 98, 39 S. W. 834. A complaint in an action against the sureties on a recognizance need not aver a demand. State v. Biesman, 12 Mont. 11, 29 Pac. 534. A complaint in an action of forcible detainer need not aver a demand, under Mont. Code Civ. Proc. § 2081, subd. 1, providing that one who, by force or threats, imlawfully holds and keeps the possession of real property, whether acquired peaceably or otherwise, is guilty of a forcible detainer. McCleary v. Crowley, 22 Mont. 245, 56 Pac. 227. A petition against a railway company for its refusal to furnish cars for the transportation of cotton seed delivered to it, alleging that plaintiff sustained a loss of $2 per ton thereby, and praying damages therefor, is not insufficient in not alleging a written demand for the cars and the tendering of freight charges as required by Sayles's (Tex.) Rev. Civ. Stat. art. 4227a, imposing a penalty for a railway company's re- fusal to transport and deliver freight, as the action is not based on that article, but upon arts. 4226, 4227, making railway compadies liable for damages caused by their refusal to transport property. Galveston, H. d 8. A. R. Co. V. Schmidt (Tex. Civ. App.) 25 S. W. 452. A complaint alleging in terms an amount of money due plaintiff from de fendants for work performed at their special instance and request does not s'how a mutual current account for which it is necessary to allegi! that demand of payment was made. Roiertson v. Woolley, 12 Wash. 326, 41 Pac. 48 (so held on error). An allegation of default in payment of part of the bonds secured by a rail- road mortgage is sufficient in a suit to foreclose the mortgage, without setting out the owners, and particular demand by, and failure to pay, each. Grand Trunk R. Go. v. Central Vermont R. Co. 88 Fed. 622. Descent. See also Heib, § 305, infra; Title, §§ 465-469, infra, 231. Effect of allegation. An allegation that the premises descended to a person named, as VII. rOE INSUl-'FICIENCY ; PAETICULAJB ALLEGATION S. 439 the heir of another, sufb'cieutly imports that he was such heir * and came into possession.* 'St. John V. Northrup, 23 Barb. 25. Contra, Montgomery v. White, 10 Ky. L. Eep. 905, 11 S. W. 10. Compare Heir, § 305, infra. ' So held of plaintiff's title and possession, in partition. Wainman y. Hampton, 20 N. Y. Week. Dig. 68. DeSCKIPTIOjST. a Of real property. 234. Certainty of description. 232. By reference to deed, map, b. Of personal propeviy. or patent. 235. Sufficiency of description. 233. By reference to surveys. a. Of real property/. 232. By reference to deed, map, or patent. A bill fails to sufficiently describe land where it refers to a deed which is void on its face for vagueness,-' or to a recorded deed a copy of which is not filed as a part of the bill.* A description of premises as a specified lot in a certain block and section as laid down upon a designated recorded map is sufficient.* A complaint for trespass upon mining property sufficiently de- scribes the premises by reference to the location certificate and the patent, which contain a full and correct description by metes and bounds of the plaintiff's claim.* ^Adlcins v. AdJcins (Tenn. Oh. App.) 52 S. W. 728 (bill dismissed). 'Stacker v. Wilson (Tenn. Ch. App.) 52 S. W. 709 ('bill dismissed). But the description of premises in a declaration in an action of trespass quare clausum, simply by reference to the town, the number of the range of lots, and the number of the lot in which it is situated, and to a deed of record in a specified boolc and page, is sufficient. Swerdferger V. Hopkins, 67 Vt. 136, 31 Atl. 153. A bill to enforce a mechanic's lien, with which is filed as an exhibit a copy of a mortgage describing the land on which the lien is claimed, sufficiently describes the land. Richlands Flint Glass Co. v. Hiltebeitel, 92 Va. 91, 22 S. E. 806. 'Byan v. Middlesiorough Town Lands Co. 106 Ky. 181, 50 S. W. 13. A description of land in a complaint in an action in ejectment as "tracts A &; B as designated on tlie map accompanying the referee's report in the partition suit of said ranch" in the superior court of California cannot be said, on its face, to be incapable of ascertainment. Pierce v. Hilton, 102 Cal. 276, 36 Pac. 595 (so held on error). * Rico-Aspen Consol. Min. Co. v. Enterprise Min. Co. 56 Fed. 131. 440 BKIEF ON PLEADINGS DEMUBKEE. 233. By reference to surveys. A description of land by the section, toAvnship, and range number, without indicating the state or county, or referring to any object from which a location in the state can be inferred, is fatally deficient.^ Nor is the description sufficiently particular where the property is de- scribed only as a specified munber of acres in the southwest portion of a qtiarter section.^ A description which is evidently false in a certain particular will not be held too indefinite and uncertain, when, by rejecting the false part of the description, such a perfect description remains as will en- able a competent surveyor to locate tlie boundary.* A complaint in ejectment containing no description, except of a straight line, is demurrable as not stating facts sufiicient to constitute a cause of action.* But a description of a highway, by giving a singleline and its width, is sufficient in a complaint to abate an obstruction, since such line will be deemed to refer to the center, in the absence of anything in other parts of the description indicating a contrary intention.^ And a petition in an action of ejectment, which describes land as part of a certain survey, and alleges that plaintiff cannot give the boundary of the particular land, because he does not know it and can- not ascertain it, but that defendant does know it, is sufficient.* But a complaint describing land in an action of ejectment need not specify the character in which a surveyor a^cted in establishing cer- tain boundary lines referred to in such description.' ^Sheffer v. Bines, 149 Ind. 413, 49 N. E. 348 (Citing Swatts v. Bowen, 141 lud. 322, 40 N. E. 1057 ; Weed v. Edmonds, 4 Ind. 468 ; BooolOy v. Col litis, 4 Blackf. 320; Eel River Drain Asso. v. Topp, 16 Ind. 242; Leary v. Langsdale, 35 Ind. 74; Lenninger v. Wenrick, 98 Ind. 596; Liggett v. Lozier, 133 Ind. 451, 32 N. E. 712). A description of a tract of land in a complaint in forcible entry and de- tainer, as the "N. W. %, section 20, township 29, range 14 west," is not void for uncertainty, although neither the meridian, county, nor state is given; there being but one tract of land in the state to which such description is applicable. Devine v. Burleson, 35 Neb; 238, 52 N. W. 1112 (so held on error). ' Schuster v. Gray, 8 Kan. App. 222, 55 Pae. 489. But a description of the land in a complaint in ejectment as being 29 acres off the south end of 60 acres oS the north end of the west half of the northwfst quarter of section 15 in a certain township and range is suf- ficient, as it furnishes the means of identification. Collins v. Dresslar, 133 Ind. 290, 32 N. E. 883. VII. FOE INSUFFICIENCY ; PAKTICULAE ALLEGATIONS. 441 And a description of land in the complaint in an action to recover posses- sion thereof, as 10 acres off of the south end of a specified quarter sec- tion, except 4 acres off of the west side of such 10-acre tract, sufSciently describes the land. Barton v. Cridge, 145 Ind. 698, 44 N. E. 541. 'Hayden v. Brouin, 33 Or. 221, 53 Pac. 490 (Citing Anderson v. Baughman, 7 Mich. 69, 74 Am. Dec. 699; Seaman v. Hogeloom, 21 Barb. 398). But a complaint in an action for forcible entry and detainer of a part of the unsurveyed public domain will be dismissed where the actual descrip- tion of the land claimed, required to be given, contains a greater area than that allowed by law to any person or association of persons under any circumstances, since in such case no conclusion or presumption of lawful possession exists. Holladay Coal Co. v. Kirlcer, 20 Utah, 192, 57 Pao. 882. * Rowland v. MilUr, 22 N. Y. Civ. Proe. Rep. 25, 18 N. Y. Supp. 205. 'Freshour v. Hihn, 99 Cal. 443, 34 Pac. 87 (so held on error). "Ghaffin v. Fulkerson, 95 Ky. 277, 24 S. W. 1066. ' Pierce v. Hilton, 102 Cal. 276, 36 Pac. 595. 334. Certainty of description. The land, should be identified with certainty^ and beyond a possi- bility of future controversy.' But a description is sufficient if, by the aid of a competent surveyor and persons knowing the monuments or objects mentioned as boundaries, the lines can be found.* It is insufficient to describe premises merely as a certain number of acres embraced in a larger tract which is accurately described.* But in an action to recover a particular portion of a tract of land the particular part need not be described with precision, where the tract is described and it is alleged that the plaintiff is the owner thereof.' That evidence is necessary for the application to the property of the description in a bill to foreclose a mortgage is not a good cause of demurrer to the bill.® 'A complaint to foreclose a meohanie's lien sufficiently describes the prop- erty as a certain lot or parcel of land situate In a city named, at a specified comer of streets named. Willamette Steam Mills Co. v. Kre~ mer, 94 Cal. 205, 29 Pac. 633. A complaint in trespass against a railroad company for wrongfully appro- priating a portion of plaintiff's lands for its right of way, and for dam- ages to the remainder of plaintiff's land, is not bad because it does not describe the particular strip taken with sufficient certainty, where it shows some injury to the remainder of the land. Pittsiurgh, 0. 0. if St. L. B. Co. V. Harper, 11 Ind. App. 481, 37 N. B. 41. A petition in ejectment describing the lands by metes and bounds, com- mencing at the "S. E. corner of the N. W. 14 of the N. 14" of a specified 442 BRIEF ON PLEADINGS DBMUEEEE. section; town, and range, is sufficiently definite and certain, without setting forth, by some definite landmark or survey, Where such corner is situated. Mills v. Trcmer, 35 Neb. 292, 53 N. W. 67 (motion to make more definite and certain) . The lands are sufficiently described in a petition to quiet title, under Mo. Rev. Stat. 1889, § 2092, by describing them a^ "the accretion made by the Missouri river to section 24, which would be, upon an extension of the lines of the congressional survey, the southeast quarter of section 24, and the northeast quarter of section 25." Bees v. McDaniel, 115 Mo. 145, 21 S. W. 913 (so held on error). But a petition in summary proceedings for the recovery of real estate is insufficient where the description of the property is so vague that il does not adequately describe the premises sought to be recovered. Rr Gary, 37 App. Div. 631, 56 N. Y. Supp. 6. And a complaint to reform a deed, alleging a mistake, and that by reason thereof property not specifically described was omitted from the deed, is insufficient. A correct description of the property alleged to have been omitted should be given. Parker v. Thomson, 21 Or. 523. 28 Pac. 502 (so held on error). A complaint to foreclose a mortgage, and asking reformation of the de- scription, sufficiently sets out the laud mortgaged and the mistake, by alleging that it is described as part of the southwest quarter of n certain section, town, and range, beginning at a certain distance west of the northeast corner of said quarter section, and that by mutual mistake of the parties the description was erroneously written so as to commence such diistance west of the northeast corner of said section, in- stead of said quarter section. Walls v. State ex rel. Mallott, 140 Ind. 16, 38 N. E. 177. A description of premises in a complaint for forcible detainer, as "two cer- tain rooms situated in the brick building on Utah street, said rooms being No. 311%, El Paso county, Texas, and city of El Paso, Pre. No. 1," is sufficient for identification although the premises at the number mentioned contain three rooms instead of two, and the designation of the precinct in which the property is situated is abbreviated. Murat t. Micand (Tex. Civ. App.) 25 S. W. 312 (so held on error). A petition for damages for negligently setting fire to premises, alleging the county in which the land is situated, that it was in the possession of one plaintiff under lease from the other as owner, that the railroad was operated over it, and stating the number of acres burned, sufficiently identifies the land. Oulf, 0. d S. F. R. Go. v. Jagoe (Tex. Civ. App.) 32 S. W. 1061. Plaintiff in ejectment must claim the land in his declaration by its exte- rior boundary, and identify it to that extent. Exceptions or reservations to which the defendant may be entitled are matters of defense. Flem- ing Oil & Gas Co. V. South Penn Oil Co. 37 W. Va. 645, 17 S. E. 203 (so held on error). The declaration in an action of trespass on land, or an action on the case Vn. FOE INSUFFICIENCY ; PAETICULAB ALLEGATIONS. 443 in lieu thereof, under the West Virginia statute, is demurrable in the absence of an allegation designating or describing in some manner the loous in quo with a reasonable degree of definiteness. McDodrill v. Par- dee & G. Lumber Co. 40 W. Va. 564, 21 S. E. 878. 'Eecke v. Meyer, 68 III. App. 65 (bill for specific performance). *Ayers v. Reidel, 84 Wis. 276, 54 N. W. 588 (so held on error. Citing Orton V. Noonan, 18 Wis. 447 ) . But a description of the mortgaged premises in a complaint for the foiT- elosure of a mortgage, as bounded by the lands of others, of which lands no description is given, furnishes no data from which the sheriff could locate the lands, and is therefore insufficient to warrant a decree. Swatts V. Bowen, 140 Ind. 322, 40 N. E. 1057. And a complaint to enforce a statutory lien on a portion of a railway right of way for a street improvement assessment, describing the property as "the right of way of defendant's railroad, and being a strip of ground 134 feet long abutting on North Main street between Broadway and North streets," is fatally defective where there is no further description from whioh the strip could be located or surveyed, and it gives no data by which the court could judicially determine the beginning and termi- nation thereof. Lake Erie & W. R. Go. v. Walters, 9 Ind. App. 684, 37 N. E. 295. 'Harwell v. Foster, 97 Ga. 264, 22 S. E. 994. A petition in trespass to try title, describing land as a certain number of acres in a given county and state, being part of a larger tract which is specifically described, does not sufficiently describe the land. Halley v. Fontaine (Tex. Civ. App.) 33 S. W. 260. •Combs V. Combs, 19 Ky. L. Rep. 1449, 43 S. W. 697 (so held on error). • Grand Trunk R. Co. v. Central Vermont R. Go. 88 Fed. 622. Nor can the question whether or not a mortgage of an "acre" of land con- veys a full acre, without taking into consideration a road passing through the mortgaged land, be raised by demurrer to a, bill to fore- close the mortgage. Richey v. Sinclair, 67 111. App. 580. And a general demurrer for insufficiency of description, to a bill to compel the determination of claims to three separate lots, and to quiet title, is properly overruled, although the description of one of the lots is in- sufficient, if that of the other two lots is sufficient. Inge v. Demouii, 122 Ala. 169, 25 So. 228. b. Of personal property. 235. Sufficiency of description. Where the property sued for is described as well as its nature admits of, that is all that is required.^ A description is sufficient if it is not ambiguous or unintelligible, and is definite enough to put the adverse party upon notice as to what he will be called upon to meet at the trial.^ 444 BEIEF OS^ PLEADINGS— DEMUEEEE. ^Burr V. Brantley, 40 S. C. 538, 19 S. E. 199, holding a complaint against a sheriff and others for wrongfully seizing property under execution, which distinctly alleges that two of the defendants forcibly entered upon plaintiff's premises and gatlit.ed from his fields certain corn and fodder sued for, and took it from his possession, and retained and re- fused to deliver it upon demand, is sufficient as to the description of the property. But a petition to set aside as wrongful a levy upon and sale of a stock of goods in one mass, at a great sacrifice, which gives a mere general de- scription of the articles, is insufficient where it does not appear from the pleadings that a particular description camiot be given, and no ex- cuse is stated why it is not given. Beok v. Avondino, 82 Tex. 314, 18. S. W. 690. •Declaration in bail trover, describing property as lawful money of the United States, consisting of a specified number of silver certificates of a specified value each, and of another specified number of bank notes of a specified value each, and of a spe or unintelligible, nid. A declaration in an action of trover, which describes the property converted as certain timber and logs cut from land of the petitioner by a person named, and by him deposited in the waters of a certain river not far from a certain bridge, and as the same timber and logs referred to in a contract between the petitioner and such person, of a given date, and recorded in the clerk's office of the superior court of a named county, in a given volume and page, is sufficient. Leitner v. Strickland, 89 Ga. 363, 15 S. E. 469. A declaration in trover by an insolvent trustee for the conversion of prop- erty of the insolvent by one claiming under a chattel mortgage suffi- ciently describes the property, under Md. Code, p. 1103, art. 75, subd. 31, as "three horses, three carriages, and one set of double harness ot great value." Crocker v. Hopps, 78 Md. 260, 28 Atl. 99. A description of property in a petition in an action upon an official bond for the conversion of property seized and sold under execution is suffi- cient where it is definite enough to put the defendants upon notice af what they are called upon to meet upon the trial. Hunt y. Hardin, 14 Tex. Civ. App. 285, 36 S. W. 1028. A petition in replevin for about 200 or 250 cubic yards of stone, consisting VII. FOR INSUFFICIENCY J PAETIGULAR ALLEGATIONS. 445 of oblong blodss, lying in its natural conditiov as it came from the quarry, suffieieutly describes the property. Sawyer v. Middlesborough Town Co. 13 Ky. L. Rep. 550, 17 S. W. 444 (so held on error). Defendants in an action for the wrongful seizure of property under execu- tion, who admit by their demurrer all the allegations of the complaint, inlcluding the admission that they took by force the identical property sued for from plaintiff's possession, and still retain it in their posses- sion, thereby waive any objection to want of definiteness in the com plaint in describing the property sued for. Burr v. Brantley, 40 S. C. 538, 19 S. E. 199. A description of property in a complaint to foreclose a mortgage, as one share of water in a specified ditch and ten shares of the capital stock of a specified corporation, is sufficient, where this is the description in the mortgage. Boob v. Hall, 107 Cal. 160, 40 Pac. 117. A complaint in unlawful detainer, which is sufficient for a recovery of the realty, will withstand a demurrer, whether the personalty is sufficiently described therein or not. Hughes v. Windpfennig, 10 Ind. App. 122, 37 N. E. 432. Detention. 236. Wrongfulness. If facts are alleged showing title and apparent right of possession in plaintiff, an allegation that defendant became possessed of and refused to deliver on demand, and wrongfully detains, the property, is sufKcient 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 demurrer.^ ^Ch-iffin V. Long Island R. Co. 101 N. Y. 348, 4 N. E. 739 (replevin) ; Shel- don V. Hoy, 11 How. Pr. 11 (conversion). In Louismlle, E. & St. L. Co. v. Payne, 103 Ind. 183, 2 N. E. 582, where the petition added that the wrongful detention was under execution against plaintiff on a judgment which was "absolutely void," it was held that the latter was a conclusion of law; and rejecting this, the petition showed detention under execution, whicli could not be deemed wrongful. 'Seifret v. Kraft, 13 N. Y. Civ. Proc. Rep. 321 (replevin). Contra, Simser T. Coioan, 56 Barb. 395. Diligence. 237. Conclusion of law. An averment in an action a^-ainst the indorser of a note, that the plaintiff prosecuted the claim against the makers with diligence, is a conclusion of law, and the facts showing diligence should be alleged.' 446 BEIEF ON PLEADINGS ^DEMUEEEE. ' Wakefield v. First Nat. Bank, 19 Ky. L. Rep. 426, 40 S. W. 921. So, the averment in a bill to restrain the eolleetion of a judgment, that the complainant "used all the diligence in his power to procure the evidence necessary to defeat said cause," referring to the sudt in w'hieh the judg- ment was obtained, is insufficient, as the facts in regard to diligence must be set out. Brady v. Borvath, 79 111. App. 17. DiSClAIMEE. 238. 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 v. Lotion, 118 Ind. 1, 20 N. E. 523 (ejectment). DiVOECE. 239. Jurisdiction, — residence. 243. — of cruelty. 240. Allegation of marriage. 244. — of intemperance. 241. — of adultery. 245. Averments concerning alimony. 242. — of abandonment or desertion. 239. Jurisdiction, — residence. It should appear plainly on the face of the petition that the facts giving jurisdiction tx) the court exist.-' Residence in the state and county for the statutory period before the commencement of a divorce suit must be shown. ^ " Pate V. Pate, 6 Mo. App. 49. 'Gredler v. Gredler, 36 Fla. 373, 18 So. 762 (Citing Phelan v. Phelan, 12 Fla. 449; Miller v. Miller, 33 Fla. 453, 24 L. R. A. 137, 15 So. 222). An averment of residence for the statutory period is equally essential in a cross-complaint. Coulthurst v. Coulthurst, 58 Cal. 239. It must be alleged that the parties, or one of them, has an actual bona fide doniicil within the state, and has had for the period required by stat- ute before the commencement of the action. Bennett v. Bermett, 28 Cal. 600. Allegations that the plaintiff is now and has been for the requisite stat- utory period last past a bona fide resident of the state and county are sufflcient. Poison v. Poison, 140 Ind. 310, 39 N. E. 498. The very words of the statutory requirement as to residence need not be stated in the petition, but the allegations must cover the intent and meaning of the statute. Collins v. Collins, 53 Mo. App. 470. In this aase an allegation that plaintiff is now, and has been for more than one year prior to the filing of the petition, a resident of a certain county in the state, was held insuiKcient to show the residence required by statute, of one whole year next before filing the petition, since it fails to nega- VII. FOE INSUFFICIENCY ; PAKTICULAE AI.I,EGATIONS. 447 tive that the residence was not made up of a year or parts of years long past, or of an aggregation of different periods. 240. Allegation of marriage. An averaient that the parties lived together as husband and wife is not eqiiivaJent to an allegation of marriage. If it does not appear tliat the cohabitation -n-as in pursuance of a contract of marriage the petition is demurrable.-' ^Andrews v. Andrews, 75 Tex. 609, 12 S. W. 1124. The time and place of the marriage should be alleged. Lattier y. Lattier, 5 Ohio, 538. A libel for divorce on the ground of desertion is fatally defective when it avers only that a marriage is alleged to have taken place between the parties, and does not aver a lawful marriage. Connor v. Connor, 1 Pa. Dist. R. 358. An averment in a bill for divorce, that the oratrix, giving her maiden name, was lawfully and legally married to defendant, naming him, is a sufficient averment of the marriage. Farley v. Farley, 94 Ala. 501, 10 So. 646. A bill for divorce alleging that plaintiff and defendant lived together as husband and wife until defendant deserted and abandoned the plaintiff, and that some years before such desertion defendant informed plaintiff that he had a former wife living, but had obtained a decree of divorce from her, of which he showed a copy, and that after consultation they deemed it unnecessary to have another marriage ceremony performed and continued to live together as husband and wife until the husiband's desertion, sufficiently shows the existence of the marital relation be- tween the parties. Flanagan v. Flanagan, 116 Mich. 185, 74 N. W. 460. But the consummation of a, marriage contract or cohalbitation after mar- riage is not sufficiently pleaded by an allegation in a complaint in an action to recover alimony, that the wife has done her duty as wife and mother faithfully, and after her marriage accompanied the defendant at his request and upon his express promise that he would support and protect her. Miller v. Miller, 43 S. C. 306, 21 S. E. 254. S41. — of adultery, A bill for divorce on the ground of adultery, which makes a specific charge of act' person,^ place, and time,^ followed by a general alle- gation of similar acts with the same person at the same place and at times before and after the specific date before alleged, is not demur- rable for vagueness, indefiniteness,* or uncertainty.® The plaintiff need not set up negative averments to the effect that he has not himself been goiilty of adultery.* 448 BEIEF ON PLEADINGS DEMUEEER. 'An allegation that defendant was living "in open and notorious adultery" is sufficient. Marble v. MarUe, 3(1 Mich. 386. But a bill for divorce alleging that plaintiff is now informed, believes, and charges that since her marriage her husband has been guilty of "adul- tery, on many occasions," and that she has not lived or cohabited with him since learning of such fact, is bad for indeflniteness. Miller v. Miller, 92 Va. 196, 23 S. E. 232. • It is necessary to state the name of the person with whom the adultery is committed if the .person is known; but if unknown the fact should be stated, and there must be reasonable certainty as to time and place. Morrell v. Morrell, 1 Barb. 318. Avei'ments in the answer charging the plaintiff in a suit for divorce with having committed adultery with unknown persons in a. certain fity, are sufficient to resist a motion to make the pleading more definite. An application for a, bill of particulars is the appropriate remedy. Kelly V. Kelly, 12 Misc. 457, 34 N. Y. Supp. 255. An allegation in a complaint, stating that the defendant committed adultery within certain dates specified, in a designated city, with a person whose name is unknown, without specifically designating the person or the time and place, is sufficient to admit proof of the fact alleged. Mitchell V. Mitchell, 61 N. Y. 398. * The allegations in a suit for divorce on the ground of adultery should be sufficiently specific as to the time, place, and person with w'hom the of- fense was committed, to give the defendant reasonable notice of what he is called upon to meet, and a reasonable opportunity to prepare his defense. Truhee v. Trubee, 41 Conn. 36. An averment charging the commission of adultery in a certain year, within a specified county, with a designated person, is sufficiently definite so far as the venue is concerned. The time might be more specific, but it is enough that it is alleged that it was before the commencement of the suit. Hawes v. Bawes, 33 111. 286. Allegations of adultery characterized by a reference to the month, year, place, and person, are sufficient. Black v. Black, 27 N. J. Eq. 664. The time when, and the place wihere, and the person, if known, with whom, the offense was committed, must be stated; but in laying the time it will be sufficient if the month and year are given, without specifying tlio particular day. Scheffiing v. Scheffling, 44 N. J. Eq. 438, 15 Atl. 577 (Citing Marsh v. Marsh, 16 N. J. Eq. 391, 84 Am. Dec. 164). Counts charging the commission of adultery in a specified place, with per- sons whose names were unknown, and in a designated county, in May or July of a certain year, in a specified city, between April first and August first of a given year, are sufficiently definite as to time and place. Oermond v. Germond, 6 Johns. Oh. 347, 10 Am. Dec. 335. It is not necessary that the particular locality or time of the commission of the offense should be stated in the complaint, when there is an averment that they are unknown, and that a statement of the specific time aiifl place cannot be made, to permit proof of the commission of nduUery to be given under it. Mitchell v. Mitrhfll. 61 N. Y. 398. VII. — ^FOE insufficiency; particulak alt.egations. 449 "The only safe and prudent course is to require the charge, whether of crimination or recrimination, to be stated in the pleadings and in the issues, in such a manner that the adverse party may be prepared to meet it on the trial. If the persons with whom the adultery was committed are known, they must be named in the defendant's answer, and the adultery must 'be charged with reasonable certainty as to time and place. If they are unkno^vn, that fact should be stated in the answer and in the issue, and the time, place, and circumstances under which the adultery was committed should be set forth. Neither party has a right to make such a, charge against the other on mere suspicion, rely- ing upon being able to fish up testimony before the trial to support the allegation." Wood v. Wood, 2 Paige, 113. Under a statute requiring the causes of complaint in a suit for divorce to be set forth particularly and specially, a, special statement of the cause is all that is required. If a specification of time, place, or eireuni- stance is desired, it is to be obtained by rule or order of the court. Hancock's Appeal, 64 Pa. 470. *In the conduct of actions there is no right more clear than that of a party to have the allegations in his adversary's pleading made with such rea- sonable and practicable definiteness and certainty as to enable him to meet them with counter-allegations, and to prepare, so far as the truth of the case will permit, to meet them with proofs. In no class of eases has the sufficiency of pleadings, in this particular, come in question more frequently than in actions for divorce on the ground of adultery. As the result of the decisions, it may be stated that, in general, in alleging the adultery, the circumstances of time, place, and person must be stated with definiteness. That degree of certainty is required, be- cause, generally, where there is enough to justify ailing the fact of adultery, the party is able to state those circumstances. There may, however, be such a condition of things as will justify the party in alleging, and the jury in finding, the fact of adultery, although the party may be unable to state some of the particulars. Gilfillan, Ch. J., in Freeman v. Freeman, 39 Minn. 370, 40 N. W. 167. 'Fitghugh v. Fitzhugh, 15 App. D. C. 121 (Citing Goodicin v. Goodwin, 23 N. J. Eq. 210; Blade v. Black, 26 N. J. Eq. 431; Thayer v. Thayer, 101 Mass. Ill, 100 Am. Dee. 110). A libel for divorce is not demurrable if it sets up with sufficient precision that defendant has violated his marriage vows in such a way as to en- title plaintiff to a divorce on that account, although the crime of adul- tery is not alleged with the legal certainty required in an indictment for that offense. Richardson v. Richardson, 8 Pa. Dist. R. 242. • Steel V. Steel, 104 N. C. 631, 10 S. E. 707. 242. — of abandonment or desertion. In charging the statutory offense of abandonment or desertion, regard should be had to the language of the statute ;^ and aJl the facta relied on should be set forth specifically and definitely.'' Abd. Pl. Vol. I. — ^29. 450 BRIEF ON PLEADINGS ^DBMUEBEE. 'A complaint in an action by a wife for separate maintenance, which alleges extreme cruelty by the defendant, and avers that by reason thereof the plaintiff was compelled to depart from the family dwelling place, need not characterize suoh acts as a wilful desertion, as they are so characterized by Cal. Civil Code, § 98, providing that departure of one party from the family dwelling place, caused by cruelty from which danger would be reasonably apprehended from the other, is not deser- tion by the absent party, but is desertion by the .other party. Benton V. Benton, 122 Cal. 395, 55 Pac. 152. Averments that the defendant, for a period of less than two years, co- habited with another person, and that complainant has not since volun- tarily cohabited with the defendant, are insufficient to allege desertion. PoiixU V. Ftmell, 58 Mich. 299, 25 N. W. 199. But an allegation that defendant abandoned the plaintiff is sufficiently speciiic to charge desertion, which, by statute, is made a cause of di- vorce. Garr v. Carr, 6 Ind. App. 377, 33 N. E. 805. Failure to aver that the alleged desertion was without cause is cured by verdict. Harris v. Harris, 101 Ind. 498. A libel for divorce, Oharging that the respondent deserted and refused to live with the libellant, and refused to conduct herself as a kind and lov- ing wife ought, is insufficient in the absence of allegations that such desertion was wilful, malicious, and continuous, or without reasonable cause. Crone v. Crone, 14 Pa. Co. Ct. 456. •Abandonment is alleged with sufficient certainty to withstand a demurrer, where it is averred that the defendant, without any provocation or cause whatever, voluntarily left and abandoned the bed and board of the petitioner, with the intention of finally separating and living apart from him, and has continued so to do up to the filing of the petition, though often requested by the petitioner to return to his bed and board, and live with him as his wife. Morey v. Morey, 82 Tex. 308, 17 S. W. 838. But it is not sufficient in an action for divorce, to allege, following the words of N. C. Laws, 1895, chap. 277, merely the abandonment of plain- tiff by his wife, tliat she lives separate and apart from him, and that she still refuses to live with him. All the facts relied on must be set forth and be charged, as far as possible, specifically and definitely. LaM V. Ladd, 121 N. C. 118, 28 S. E. 190. 243. — of cruelty. General allegutions that the defendant was guilty of extreme cruel- ty or inhuman treatment are insufficient; the facts which are relied on must be stated.^ A bill for divorce is sufficient, as against a general demurrer, where it contains averments of facts which constitute extreme and repeated cruelty, within the statutory meaning of those words.^ 'A general allegation that defendant was guilty of extreme cruelty is in- sufficient. Winterhury v. Winterlury, 52 Kan. 40G, 34 Pac. 971. VII. FOE INSUFFICIENCY ; PAETICULAB ALLEGATIONS. 451 The facts constituting the extreme cruelty, and the dates at which the acta were committed, should be pointed out. Callen v. Gallen, 44 Kan. 370, 24 Pac. 360. In a suit for divorce on the ground of inhuman treatment, the specific facta which are relied on must be stated. It is not sufficient to allege gen- erally that defendant is guilty of inhuman treatment. Freerking v. Freerlcing, 19 Iowa, 34. A bill for divorce on the ground of cruelty must set forth specific acts of cruelty. DasJiiack v. Dashback, 62 Mich. 322, 28 N. W. 812. It is not a compliance with the law, in an action for divorce on the ground of cruelty, to charge ill treatment generally in the complaint, nor to state simply that the condition of the complainant was intolerable and her life burdensome by reason of the conduct of her husband towards her. It must appear to the court, from specific allegations as to the treatment of the husband on particular occasions, that he, without suf- ficient provocation on her part to justify his conduct, either abandoned his family, maliciously turned complainant out of doors, endangered her life by cruel and barbarous treatment, or off'ered such indignities to her person as to render her condition intolerable and her life burdensome. Jaokson v. Jackson, 105 N. C. 433, 11 S. E. 173. A complaint for divorce on the ground of cruelty is sufficiently definite as to the times, nature, and extent of the cruelty, and places where perpe- trated, where it alleges that about three years before defendant struck plaintiflF, and since that time has continually used vile and offensive language to her whenever they have been together. Johnson v. John- son (Cal.) 35 Pac. 637. But averments that defendant, for a period of more than five years prior to plajintiff's separation from her, was guilty of numberless acts of extreme cruelty which rendered life a burden to him and endangered his personal safety, are very general and subject to objection for in- definiteness and uncertainty. Sylvis v. Sylvis, 11 Colo. 319, 17 Pac. 912. I 'i A complaint in an action for divorce, alleging that defendant on divers oc- casions was guilty of cruel and inhuman treatment, in that he "slapped" plaintiff, and for a long time has cursed and abused her by calling her vile names, is sufficient in the absence of a motion to make more definite and certain. Irwin v. IruAn, 2 Okla. 180, 37 Pac. 548. A petition charging a continued course of wrongs, excesses, and cruelties, extending over a period of five months, which finally culminated with acts of outrage which were specified with all possible particularity, is sufficient on demurrer. It is not improper to include, in a petition for divorce, general charges of cruelty, and follow them by allegations of one or more specific acts which may or may not be included in the general charge. Jones v. Jones, 60 Tex. 451 (Citing Whispell v. WMspell, 4 Barb. 218). A pleading alleging acts of cruelty as a ground for a divorce must allege the speoiflc acts of cruelty relied upon, and must state the time and 452 BRIEF ON PLEADINGS DBMUEEEE. place where they occurred. Bubhard v. Hubhard (Tex. Oiv. App.) 38 S. W. 388. • Martell v. Uartell, 74 111. App. 380. But a complaint in an action by a wife for divorce, alleging extreme cruelty, in that, in actions for divorce pending between the parties and which do not appear to have been terminated, the husband filed affidavits charging the defendant vAth want of chastity prior to the marriage, is demurrable. Ealey v. Haley, 74 Cal. 489, 16 Pac. 248. A bill for divorce on the ground of extreme cruelty is suflficient on de- murrer where it alleges continuous inhuman and ill treatment, com- mencing shortly after marriage, which culminated in a blow; that de- fendant threatened to whip plaintiff's child by a former marriage, only a year and a half old, when it was sick; that he locked the house and refused her permission to enter, and turned her away without making any provision for her support; and that during the latter part of their married life his temper was habitually violent and ungovernable. Donald v. Donald, 21 Fla. 571. A complaint alleging that defendant has for twelve years treated plaintiff in a cruel and inhuman manner ; that he has struck, kicked, and choked lier; that he has neglected to secure for her medical attention during her illness or to give her any attention 'himself, — sufficiently charges ■cruel and inhuman treatment. Mercer v. Mercer, 114 Ind. 558, 17 N. sE. 182 (so held on error). ■So, a complaint in an action by a wife for a divorce on the ground of ex- treme cruelty sufficiently states a cause of action where it alleges that on or about certain dates the defendant charged her with improper con- duct in keeping company with other men without his consent, and that his frequent drunkenness and habit of gambling caused her great bodily pain and mental anguish, seriously impairing her health, destroying her happiness, and rendering her life so miserable and unendurable that she was forced to cease cohabiting with him. Gardner v. Gardner, 23 Nev. 207, 45 Pac. 139. But in an action by a husband for a separation, general allegations of im- proper conduct by defendant, the use of coarse and opprobrious epithets, fits of violent rage, the ordering of his friends to leave the house, and that he is in danger from the defendant and his son, who are striving to deprive him of his property and to do him some bodily harm, — are in- sufficient to show that it is unsafe for the plaintiff to continue to cohabit with his wife, where no facts or circumstances are alleged showing that he had reasonable grounds to apprehend bodily harm; and the com- plaint is iiKuffieient to authorize a separation. Walton v. Walton, 32 Barb. 203. A wife's complaint for separation, which alleges that the defendant brutally beat her, that he has absented himself from home, that he has failed to furnish her with the necessaries of life, and that his entire course of conduct towards her prior to the abandonment was so brutal as to imdermine her health, states a cause of action. Itzkowitz v. Itzho- witz, 33 App. Div. 244, 53 N. Y. Sunp. 356. VII. rOE INSUFFICIENCY ; PAETICULAK ALLEGATIONS. 453 And extreme cruelty is sufficiently charged in a complaint for divorce by allegations of facts showing that the defendant slapped and violently cursed and abused plaintiff, and failed and refused to provide for her and her children. VM v. IniHn, 3 Okla. 388, 41 Pac. 376. But a libel for divorce on the ground of indignities to the person of a wife, which fails to allege that she was thereiby forced to withdraw from de- fendant's house and family, is insufficient. Dunkel v. Dunkel, 11 Pa. Co. Ct. 297. And a complaint by a wife for separation on the ground of her husband's cruelty must negative, by explicitly setting forth her own conduct, the idea that any act or word on her part was calculated to arouse sudden passion on his part or put him on the defensive. O'Connor v. O'Connor, 109 N. C. 139, 13 S. E. 887. 244. — of intemperance. An allegation in conformity with the statute, of habitual intemper- ance on the part of the defendant to an extent which caused the plain- tiff great mental anguish, is sufficient without alleging how often and to what extent the defendant was intoxicated on each occasion, and what he did and said when in that condition, tending to cause menta) anguish.-* ^Forney v. Forney, 80 Cal. 528, 22 Pac. 294 (so held on error). It is not necessary to set out the particular acts of intemperance. Beading V. Beading, 96 Cal. 4, 30 Pac. 803. 245. Averments concerning alimony. The fact of marriage must be alleged.* Eut it need not be directly averred that the wife and children are in actual need of support.^ The wife must deny, under oath, the charges made against her, or allege a valid defense, to entitle her to alimony.* Temporary alimony will not be allowed when it appears that the wife has sufficient separ- ate property for her support and to enable her to prosecute the suit.* A petition to compel the payment of alimony of a fixed amount, payable semi-annually, theretofore awarded, alleging that no portion has been paid, need not set forth the amount due at the time, as this is a matter of simple computation." *Collws V. Collins, 71 N. Y. 269. Alimony cannot be awarded under a complaint which sets up a void mar- riage, entered into with knowledge of the facts. Lapp v. Lapp, 43 Mich. 287, 5 N. W. 317. Where the existence of the marriage relation is generally denied, the court, on application for temporary alimony, is not bound down to the allega- tion of the complaint and the denial of the answer, but may consider 464 BEIEF ON PLEADINGS ^DEMUEEEE. affidavits and other proofs; and if a fair presumption of the fact of marriage is made out, it has power to grant alimony pending the suit, and expenses of the action. Brinkley v. Brinldey, 50 N. Y. 184, 10 Am. Eep. 460. ' It is sufficient if it appear that there are minor children living with the mother, and that she is obliged to work for a livelihood. Cochrwn v. Cochran, 42 Neb. 612, 60 N. W. 942. • Wood V. Wood, 2 Paige, 108. Where the husband files a bill against his reputed wife, admitting that he was in fact married to the defendant, but alleging the marriage to have been illegal and void, if the facts stated in the bill, upon which the supposed illegality or invalidity of the marriage depends, are denied by the defendant upon oath, she is entitled to ad interim alimony for sup- port, and for a reasonable amount for the expenses of the suit. North v. North, 1 Barb. Ch. 241. * Eaioson v. Rawson, 37 111. App. 491 (Citing Kenemer v. Kenemer, 26 Ind. 330. To entitle the wife to temporary alimony, it must appear that she has no ' separate property for her own support and to enable her to carry on the suit, and that her husband has property. Ross v. Rosa, 47 Mich. 185, ■ 10 N. W. 193. ' Elmer v. Elmer, 150 Pa. 205, 24 Atl. 670. Nor need a complaint in an action by a husband for a divorce allege that "plaintiff does not ask or seek alimony in excess of" $2,000, as re- quired by Colo. Gen. Stat. 1883, § 485, since, in the absence of any statutory provision for the allowance of alimony to the husband, that section applies exclusively to cases by the wife against her husband. Boagland v. Eoagland, 19 Utah, 103, 57 Pao. 20. Documents. For rules applicable to pleading contracts rather than other documents, see CoNTEACTS, §§ 152-196, supra, which treat of signature, statute of frauds, performance of conditions, breach, etc. a. Documents pleaded in the aisence 250. Language. of statutory regulation. 251. Ambiguities. 246. Necessity of copy or sub- 252. Copy accompanied by allega- stance. tion of legal effect; incon- 247. Pleading legal effect. sistency between pleading 248. Copy embodied in the plead- and exhibit. ing. 253. Demurrer not aided by origi- 249. Copy annexed and referred nal. to. VII.- 455 b. Documents furnished under statutes or rules of court requir- ing exhibits to be annexed or filed. 254. What deemed a written "in- strument." 255. — subscription paper. 256. What is "foundation" of the action. 257. — in action to construe, re- form, or cancel. 258. — documents collaterally in- volved, — actions on eon- tract. 259. action of tort. 260. — ^ muniments of title. 261. Exhibit not called for by the statute. 262. False reference to filing. 263. Indorsements, — ownership of chose in action. 264. Demurrer for failure to fur- nish exhibit. 265. Copy in body of pleading enough. 266. Exhibit which is mere evi- dence not noticed on de- murrer need not be filed. 267. Coontract not shown to be in writing. 268. Reference to exhibit; identi- fying. 269. Appropriate words of refer- ence. 270. —several counts. 271. What omissions in pleading supplied by exhibit. 272. Excuses for not furnishing exhibit. 273. Amended pleading. 274. State practice in United States court. See also Account ok Paktictolabs CotrPLED with Pleading, § 77, supra. a. Documents pleaded in the absence of statutory regulation. 246. Necessity of copy or substance. 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 sub- stance, or at least so much thereof a.g is essential to the pleader's case, is insufficient on demurrer.^ In pleading judicial proceedings, for all ordinary purposes, copies are unnecessary.^ ^Marshall v. Turnbull, 34 Fed. 827; King v. Trice, 38 N. C. (3 Ired. Eq.) 568; Martin v. McBryde, 38 N. C. (3 Ired. Eq.) 531. In a creditor's suit in aid of attachment a demurrer was sustained be- cause the proceedings in attachment were not so set out, notwithstand- ing a statute allowing the production of the record as evidence, instead of a transcript. Dictum that the defect was amendable. Morton v. Oraffiin, 68 Md. 545, 13 Atl. 341, 15 Atl. 298 ; People ex rel. Oarrillo v. De la Guerra, 24 Cal. 78. Eussey v. Smith, 1 Utah, 241 (foreclosure. Allegation that defendant ''gave a mortgage'' held a mere conclusion of law). Contra, Miller, PI. &, Pr. (Iowa) 129. 456 BRIEF ON PLEADINGS ^DEMUEKEE. 'Shamer v. Philhps, 7 Ind. App. 12, 32 N. E. 1131, 34 N. E. 450 (CSting Lytle V. Lytle, 37 Ind. 281; Becknell v. Becknell, 110 Ind. 42, 10 N. E. 414). But an affidavit of defense in a suit upon a note given for a patent right, that the rights for which it was given were declared infringements upon another patent, and a perpetual injunction against their use was awarded by a certain Federal court, is insufficient where it does not contain or have attached to it a copy of the alleged decree and injunc- tion. Kraft V. Gingrich, 12 Pa. Co. Ct. 604, 2 Pa. Dist. R. 398. 247. Pleading legal effect. Tinder the new procedure, 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 ou,^ — ^without purporting to give its words, or a copy,^ except where there is a statute requiring a copy to be furnished.* ' In an action against a railway company for not performing an implied ob- ligation to give plaintiff sufficient time after loading his stock for ship- ment to enable him to board the train, the declaration need not set out, according to its legal effect, a written contract which, by the rules of the company, a shipper must execute before he can take passage on the train. Ohio & M. R. Co. v. Brown, 49 lU. App. 40. A document relied on to support a mechanic's lien must be set out by its tenor or its legal efl'eet. Merely stating that it complies with the law is not sufficient. Dressel v. Thompson, 62 111. App. 656. A covenant of warranty embraced in the habendum clause of a deed, "with covenant of general warranty," may be averred either in the terms of the deed or as a covenant to warrant the title against the claims and demands of all persons whatsoever, of which, under Ky. Stat. § 493, the covenant of the deed is an equivalent. Brady v. Peck, 99 Ky. 42, 34 S. W. 906 ; Rehearing denied in 99 Ky. 47, 35 S. W. 623. In a suit to set aside a deed, it is a violation of the rules of good pleading to set out the deed in hcec verla, instead of stating its legal effect. Anderson v. Gaines, 156 Mo. 664, 57 S. W. 726. A declaration upon a writing is sufficient if it declares upon it according to its legal effect. State use of United States School-Furniture Co. v. McGuire, 46 W. Va. 328, 33 S. E. 313. But a petition for specific performance of a contract by a county, alleging that the commissioner's court made a certain order a copy of which is attached and marked as an exhibit, but not alleging the tenor, contents, or effect of such order, is insufficient, since it fails to set forth the legal obligations created by the order. Guadalupe County v. Johnston, 1 Tex. Civ. App. 713, 20 S. W. 833. It is not enough to state that a con- tract was made, as shown in the exhibit, but the legal obligations creat- ed by the contract should be set forth by appropriate averments. ' A copy of an administrator's bond sued upon need not be attached to the VII. FOB INSUFFICIENCY ; PAETICULAE AL,LEGATIONS. 457 declaration, where its contents and a breach thereof are substantially set forth. Gibson v. ItoUnson, 90 Ga. 756, 16 S. E. 969. An answer to a bill in equity for mining coal under plaintiff's lots, admit- ting the mining of coal in the vicinity, but alleging that it was under a lease anterior to any rights which plaintiff had acquired, is insufficient where the particular lease, its place and date of record, and the extent of defendant's estate, is not included, although the whole lease need not be set out. Hurley v. Delaware cC- U. Canal, 5 Pa. Dist. R. 257. 'Kehlenlech v. Logeman, 10 Daly, 447 (by-law of association); Wallace V. Eldredgc, 27 Cal. 499 (allegation that a contract was payable in a specified medium ) . * See § 254, infra. 248. Copy embodied in the pleading. At eoininon law/ and in equity/ a pleading may set forth at length any document material to the case of the pleader (not being mere evi- dence) ; and if, from the allegations of the pleading, the instrument appears to be binding on the adverse pai-ty, — whether because made by him, or because conclusive on him as a public, official act,^ — the material facts stated in the document are thereby sufficiently alleged as against him, without a separate allegation of their truth in the pleading.* It is the better opinion that the rule is the same under the new pro- cedure, except where there is a statute requiring express allegation of some fact so appearing.^ A declaration is not rendered insufficient because an exhibit, by improper folding of the original, is brought into the body of the dec- laration.* ^Ward V. Sackrider, 3 Cal. 203 (statement of consideration in instrument set forth and alleged to have been executed by the adverse party); Dickerson v. Derrickson, 39 111. 574 (the same) ; United States v. Mor- ris, 10 Wheat. 246, 6 L. ed. 314, Affirming 1 Paine, 209, Fed. Cas. No. 15,810 (plea setting forth a, secretary of the treasury's warrant of re- mission, in which the jurisdictional facts supporting his issue of the warrant were recited ) . ' See authorities to next section. •See, for instance. United States v. Morris, 10 Wheat. 246, 6 L. ed. 314, AfGrming 1 Paine, 209, Fed. Cas. No. 15,816. *Briggs v. Fleming, 112 Ind. 313, 14 N. E. 86; Blacklurn v. Crowder, 108 Ind. 238, 9 N. E. 108. In Los Angeles v. Signoret, 50 Cal. 298, it was held that facts so stated are not thereby sufficiently alleged, if preliminary or collateral, — such as the recital of the steps — preliminary to an assessment. Followed in Lam- hert V. Haskell, 80 Cal. 611, 22 Pac. 327. 458 BBIEF ON PLEADINGS DEMUEEEK. 'Elmquist v. Markoe, 39 Minn. 494, 40 N. W. 825 (words "value received" in the instrument sued on) ; Prindle v. Garuthers, 15 N. Y. 425 (the same) ; Slack v. Heath, 4 E. D. Smith, 95, 109, 1 Abb. Pr. 331 (com- plaint on undertaking in replevin ; recitals contained in the undertaking held a sufficient allegation of the facts recited) ; Murdock v. Brooks, 38 Cal. 596 (action on undertaking). Contra, — practice disapproved as to instruments other than for uncondi- tional payment of money, — see Crawford v. 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. An allegation tliat defendant executed an instrument, which is set out in full, is a good allegation that he promised, etc., as therein appearing. Budd V. Kramer, 14 Kan. 101. A document which is merely a statement by the party pleading, not con- nected vvdth the adverse party, by allegation, cannot be thus used. Murphy v. Estes, 6 Buish, 532 (plaintiff's statement of money paid. The court says the petition itself must state a cause of action). "Bannon v. Pfleger, 53 111. App. 309. 249. 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 plead- ing, — 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 imder the new procedure, in all actions, whether legal or equitable." An acknowledgment or other authentication included as a part of the copy is a sufficient allegation that the original was certified in like form.* To make a copy thus annexed a part 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 cannot be regarded on demurrer.* ^Georges v. Kessler, 131 Cal. 183, 63 Pac. 466 (foreclosure of lien) ; John- son V. Anderson, 76 Va. 766 (foreign attachment in chancery; supple- mental bill alleging and annexing as an exhibit a copy of a foreign decree. Held, 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 v. Cla/rk, 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 incorporated therein. VII. FOE INSaFFICIENCY J PARTICULAE ALLEGATIONS. 459 A document attached to a bill or other chancery pleading as an exhibit is a part thereof, as fully as if incorporated therein. Kester v. Lyon, 40 W. Va. 161, 20 S. E. 933. Whether proper at common law, compare Fitch v. Cornell, 1 Sawy. 156; Fed. Cas. No. 4,834; Oh Chow v. Hallett, 2 Sawy. 259, Fed. Cas. No. 10,469, against it; and Secombe v. Steele, 20 How. 94, 15 L. ed. 833, where suoh an exhibit was treated as part of the pleading. 'Lambert v. Haskell, 80 Cal. 611, 22 Pac. 327, conceding, however, that the recitals in the copy cannot supply the lack of matters of substance preliminary or collateral to the instrument. An allegation that an instrument, a copy of which is annexed, contains the terms and conditions of the agreement between the parties, is an alle- gation of fact that the parties agreed on the terms and conditions con- tained in the annexed paper. Bishop v. Empire Transp. Go. 1 Jones &, S. 99. A complaint making a copy of a telegraphic message attached thereto a part thereof includes the conditions printed upon the blank upon which it was written, as well as the words of the written message. Sherrill v. Western V. Teleg. Co. 109 N. C. 527, 14 S. E. 94. Alfaro V. Davidson, 8 Jones & S. 87 (sufficient without alleging that the original was in writing) ; English common law procedure act 1852, § 56. Contra, compare the following cases, in some of which, however, the de- cision 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 v. McBenry, 38 Ark. 127; Brooks v. Paddock, 6 Colo. 36; Watkins v. Brunt, 53 Ind. 208; Piatt v. Brickley, 119 Ind. 333. 21 N. E. 906; Oeb- hard v. Gardrder, 12 Bush, 321, 23 Am. Rep. 721; Deitg v. Corwin, 35 Mo. 376; Bowling v. McFarland, 38 Mo. 465; Larimore v. Wells, 29 Ohio St. 13; Olney v. Watts, 43 Ohio St. 499, 3 N. E. 354; Burks v. Watson, 48 Tex. 107 ; Johnson v. Home Ins. Co. 3 Wyo. 140, 6 Pac. 729. In Teiser v. Todd, 6 Ky. L. Rep. 597 (mechanic's lien), an allegation that plaintiff "performed his contract with defendant, as set out in the said itemized accoimt," with exhibit containing items, but no statement that the items were correct, was held not an allegation that the plaintiff did the work and furnished the material mentioned in the exhibit. 'New V. Bame, 3 Sandf. Ch. 191 (acknowledgment and record of instrument in schedule annexed). And see § 155, supra. 'Annexing is not enough. Scott v. Union County, 63 Iowa, 583, 19 N. W. 667; Harrison v. Vreeland, 38 N. J. L. 366; Broum v. Warden, 44 N. J. L. 177. The fact that by a copy of an instrument on which an action in covenant is founded, and which is annexed to the declaration, it appears that the instrument is not under seal, does not render the declaration demur- rable unless it refera to suoh instrument in suoh manner as to render it a part thereof. Metzger v. Canadian & E. Credit System Co. 59 N. J. L. 340, 36 Atl. 661. A written contract marked "A" and annexed to the complaint cannot be 460 BRIEF ON PLEADIJS^GS DEMUEREE. considered in determining the sufficiency of a cause of action where it is not referred to therein. Booz v. Cleveland School Furniture Co. 45 App. Div. 593, 61 N. Y. Supp. 407. An exhibit attached to a complaint forms a part of it and must be so treated, notwithstanding no express words declaring it to be so are used. Savings Bank v. Burns, 104 Cal. 473, 38 Pac. 102 (Citing Ward v. Clay, 82 Cal. 635, 23 Pac. 50, 227 ; Whitby v. Bowell, 82 Cal. 635, 23 Pae. 40, 382). Filing is not enoug'h. Caton v. Willis, 40 N. C. (5 Ired. Eq.) 335. Filing does not make an exhibit upon which the action is not founded a part of the pleading, and the sufficiency of the pleading must be de- termined without reference to it. Marley v. 'National Bldg. Loan i Bav. Asso. No. 2, 28 Ind. App. 369, 62 N. E. 1023. A copy of a summons issued by a justice of the peace and filed as an exhibit to the complaint is not thereby made a part of the pleading, and cannot be considered in determining the sufficiency of the complaint. Fitch v. Byall, 149 Ind. 554, 49 N. E. 455. Exhibits filed with a petition, but forming no part thereof, cannot be con- sidered in determining its sufficiency on demurrer. Pomeroy v. Fuller- ton, 113 Mo. 440, 21 S. W. 19. The exhibits filed along with a petition constitute no part thereof, and can neither aid nor destroy it. Merrill v. Central Trust Co. 46 Mo. App. 236. Referring to, as part of the pleading, without aimexing, is not enough. People ex rel. Carrillo v. De la Guerra, 24 Cal. 73, 78. Pacific R. Co. V. Missouri P. R. Co. Ill U. S. 505, 28 L. ed. 498, 4 Sup. a. Kep. 583, so holding even of a record referred to, with a prayer of leave to refer to it as evidence on the trial. The contents of a paper not produced cannot be incorporated in a pleading by mere reference. Hanover F. Ins. Co. v. Brown, 77 Md. 64, 25 Atl. 989, 27 Atl. 314; Saxe v. Burlington, 70 Vt. 449, 41 Atl. 438 (Citing Fsies V. Whipple, 12 Vt. 373; Cooledge v. Continental Ins. Co. 07- Vt. 14, 30 Atl. 798 ; Dickerman v. Vermont Mut. F. Ins. Co. 67 Vt. 99, 30 Atl. 808). Annexing and referring to, without expressly adopting as a part of the pleading, is not enough. Mercantile Trust Co. v. Kanawha & 0. R. Co. 39 Fed. 337. So held in foreclosure of a railroad mortgage on a line running through diflferent states. Petition founded on such a bill denied on such ground, and order bringing in new parties vacated, and dis- missal of the bill ordered unless plaintiffs should amend. Filing and referring to, without expressly adopting as a part of the plead- ing, is not enough. Terry v. Jones, 44 Miss. 540. Contra, Cray v. Com- mercial Bank, 1 Rob. (La.) 533. 250. Language. An instrument in a foreign language may be pleaded by using, instead of a copy of the original, a correct translation, alleging it to be such.^ VII. FOE INSUFFICIENCY ; PAETICULAK ALLEGATIONS. 461 ' Christenson v. Gorsch, 5 Iowa, 374 ( because the statute requiring plead- ings to be in English justifies it) ; Lambert v. Black-man, 1 Blaekf. 59 (because, if it does not satisfy the practice requiring a literal copy, it is yet equivalent to pleading the legal effect) ; Oeneres v. Simon, 21 La Ann. 653. See also chapter vil., § 195, supra. 251. Ambiguities. If a document pleaded by a copy whieli contains ambiguities re- quires evidence of extrinsic facts to render it sufficient, the pleading must contain the necessary allegations of such facts.-' " Worthington v. McDonald, 4 Ind. 483 ; Riley v. Vanhouten, 4 How. (Miss.) 428. When an agreement is ambiguous a complaint may set forth the agreement in full and state the construction placed on it by complainant, without rendering the pleading demurrable as stating a conclusion of law. Ein- stein V. Schnelly, 89 Ted. 540. 252. Copy accompanied by allegation of legal effect; inconsistency between pleading and exhibit. 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.^ l^or is a com- plaint demun-able because of a variance bet^wen its allegations and the facts stated in an exhibit attached thereto, where the variance is unimportant or immaterial.^ But if the allegation is of the substance, purport, or legal effect of the contents of an instrument which is alleged as binding the ad- verse party, and the contents of the copy are affirmatively variant in a manner not to be accounted for by clerical error, the copy, if effec- tually 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 re- quiring a copy of the instrument sued on to be annexed or filed. In an action on a fire policy issued to a third person, but alleged to have contained the words 'loss, if any, payable to plaintiff," the omission of that clause from the copy annexed, ajid referred to aa containing it. 462 BEIBF ON PLEADINGS DBMUEKEE. does not render the complaint demurrable. Blasingame v. Borne Ins. Oo. 75 Cal. 633, 17 Pac. 925. An allegation that defendants signed is sufficient, though the copy of the instrument annexed does not contain the signatures of all. Mendocmo County V. Morris, 32 Cal. 145. Compare Bonnell v. Griswold, 68 N. Y. 294, where the contrary was held, the instrument annexed purporting in its introduction to be only made by those defendants whose signa- tures were appended. 'A variance between a bill in foreclosure and the mortgage which the de- cree follows, as to whether the debt was that of a married woman or her husband, is unimportant where the mortgage is made an exhibit to the original bill. Field v. Brokaw, 40 111. App. 371. An allegation of a complaint, that defendant was indebted to plaintiff for stenographic and transcribing services, is not a, material variance from an account filed as an exhibit to the complaint, for a designated number of pages, of a given niuuber of words, "of transcript of record and testimony," at a given price per hundred words. Arcana Gas Co. v. Moore, 8 Ind. App. 482, 36 N. E. 46. An allegation in a complaint in an action to foreclose a mechanic's Men, that the materials were furnished to the contractor for the owner and his wife, to be used in the building, and were so used, is not a material variance from a notice filed with the complaint, directed to the owner and his wife, in which it is stated that the materials were furnished to them at their instance and request, in the improvement of the house. Clark v. Huey {Ind. App.) 36 N. E. 52. There is no variance between a complaint averring that the defendant Supreme Lodge of the Knights of Pythias issued its certificate of mem- bership in the endowment rank of the order, and a certificate purport- ing to be executed by officers of the endowment rank, which will make the latter controlling and render the complaint demurrable, where the complaint expressly avers that the defendant executed the certificate. Supreme Lodge K. of P. v. Edwards, 15 Ind. App. 524, 41 N. E. 850. A complaint in an action on a lost promissory note is not demurrable be- cause the exhibit filed therewith as a substantial copy of the note varies from the note described in the body of the complaint as to the time of maturity, rate of interest, and attorney's fee clause, as, if the exhibit is a proper one, it controls the statement of the complaint, and if not a proper one, it is to be disregarded. Clark v. Trueblood, 16 Ind. App. 98, 44 N. E. 679. A complaint based upon the oral award of an arbitrator is not affected by a written statement of the arbitrator subsequently made and filed tuere- with. Mand v. Patterson, 19 Ind. App. 619, 49 N. E. 974. A petition for partition may be good although it describes the land differ- ently frcm the rlescription given in the exhibit filed with the peui-ion, providing the descriptions do not indicate that the land described is not the same. Buffmgton v. Mosly, 21 Ky. L. Rep. 297, 51 S. W. 192. The difference between a complaint and a receipt attached as an exhibit, in respect to the date of a payment, does not make the complaint de- VII. FOE INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 463 murrable. Erickson v. Brookings County, 3 S. D. 434, 18 L. E. A. 347, 53 N. W. 857. •Allegations pleading an instrument according to its legal effect, though otherwise sufficient, fail if the pleader adds "as will fully appear by reference to a true copy hereto annexed," and the copy annexed is of a substantially different effect. Here the allegations were of the object and relief in a former suit, and the bill annexed showed that the allega- tions misconceived it. Wheeler v. McCormiek, 8 Blatchf. 267, Fed. Cas. No.- 17, 498. An allegation that a signature was for the firm was not admitted by de- murrer when the copy annexed showed an individual, but not a firm, signature. United States v. Ames, 99 U. S. 35, 45, 25 L. ed. 295, 300. And an allegation that defendant individually S'igned will not be admitted when the copy annexed bears the firm signature. Mose v. Peldman, 67 Cal. 100, 7 Pac. 185. An averment in one paragraph of a complaint that the note sued on was signed as stated in an earlier paragraph is immaterial and will be treat- ed as surplusage, where a copy of the note is filed with the complaint, since the copy filed must be looked to in determining the character of the signatures. Jaqua v. Woodiury, 3 Ind. App. 289, 29 N. E. 573. A written contract which is set forth in hwc veria in the complaint in an action thereon controls any allegation purporting to state its effect as a legal conclusion. Patrick v. Colorado Smelting Co. 20 Colo. 268, 38 Pac. 236. An allegation that an order "is a secret, oath-bound, and voluntary fra- ternal society, organized only and solely for social, benevolent, and fra- ternal purposes," is a mere conclusion of law, and cannot control the force of provisions of the constitution of the order, set out in the pleading, which show that the main object of the association is to pro- vide insurance for its members. State ex rel. Graham v. Nichols, 73 Iowa, 747, 41 N. W. 4. A statement in a petition setting forth a deed in full, that such deed conveys part of a given street, is only a conclusion of the pleader and will be given no weight where the deed itself shows that no part of such street was conveyed. Boffman v. Bhepherdsville, 18 Ky. L. Hep. 302, 36 S. W. 522. The court in passing on a demurrer to a bill with which written documents are exhibited may look to and go by the documents themselves, instead of the allegations in the bill as to what such documents prove, or their effect in law. Lockhead v. Berkeley Springs Waterworks £ Improv. Co. 40 W. Va. 553, 21 S. E. 1031. In Loeb v. Barris, 50 N. J. L. 382, 13 Atl. 602, a demurrer was sustained because the copy of the lease annexed showed that plaintiff did not sign nor covenant, but that the instrument was the contract of her agent. An allegation that defendant signed a report "a copy of which is hereto annexed," is bad on demurrer where the copy purports to be the report 464 BEIEF ON PLEADINGS DEMUEEEE. of and signed by only a part of the defendants. Bonnell v. OriswoU, 68 ]Sr. Y. 294. For other cases to the point that an allegation of the effect of the docu- ment cannot countervail the document itself, when pleaded, see the fol- lowing: Dillon V. Bwrna/rd, 21 Wall. 430, 22 L. ed. 673, Holmes, 386, Fed. Cas. No. 3,915; Stoddard v. Treadwell, 26 Cal. 294; Vorth v, Kizer, 72 111. 172; Smith v. Wehh, 16 111. 105; Littell v. Hoaglmd, 106 ,Ind. 320, 6 N. E. 645; Bead v. Yeager, 104 Ind. 195, 3 N. E. 856; Stroup V. Haycock, 56 Iowa, 729, 10 N. W. 257; Thornton v. Mai- quinne, 12 Iowa, 549, 79 Am. Dee. 548; Paola Bd. of jBdu. v. Slum, 15 Kan. 33; Lea v. Robeson, 12 Gray, 280; Whitney v. Rhoades, 3 Allen, 471; Buffalo Catholic Inst. v. Bitter, 87 N. Y. 251; Bogardus '. New York L. Ins. Co. 101 N. Y. 328, 4 N. E. 522; Morrison v. Insurance Co. of N. A. 69 Tex. 353, 6 S. W. 605. Exhibits control in case of a discrepancy between the body of a bill and the exhibits. Murphy v. Harris, 57 111. App. 351; Wagner v. Maynard. 64 111. App. 239. Where an exhibit, made a part of the bill by statute, is contradicted by some averment in the bill, the fact will be taken to be in conformity ■with the exhibit. The exhibit, especially when it is a copy of the rec- ord, is to be taken as true, rather than a contradictory averment iu the pleading relating to the same fact. House v. Gumhle, 78 Miss. 259, 29 So. 71 (Citing Williamson v. White, 101 Ga. 276, 28 S. E. 846; Harrison Bldg. & Deposit Co. v. Lackey, 149 Ind. 10, 48 N. E. 254; Freiberg v. Magale, 70 Tex. 116, 7 S. W. 684). General averments contained in an answer in which exhibits are referred to must yield when contradicted by the particular facts of the cxiibita. Williamson v. White, 101 Ga. 276, 28 S. E. 846. An averment that a trust deed is barred by the statute of limitations is controlled by the stipulations and recitals in the trust deed itself, made an exhibit to the complaint. American Freehold Land Mortg. Go. v. McManus, 68 Ark. 263, 58 S. W. 250 (Citing Bearers v. Bauoum, 33 Ark. 722; Buckner v. Davis, 29 Ark. 444). If there is a discrepancy between a contract attached as an exhibit to a petition to foreclose a mechanic's lien and a description thereof in the petition, the exhibit governs. Benner v. Schmidt, 44 111. App. 304. Where there is a conflict between a description of land in a complaint and that contained in an exhibit properly filed therewith, the latter con- trols. Ooodbub V. Scheller, 3 Ind. App. 318, 29 N. E. 610. The account iu an action upon an account stated is controlling, where there is a discrepancy between it and the petition. Torian v. Weeks, 46 La. Ann. 1502, 16 So. 405. A bill cannot be upheld as one for the speeifio performance of a contract to deliver bonds, where the bill and exhibits filed therewith show that the bonds have been canceled and destroyed, rendering it impossible to specifically execute the alleged contract. Roanoke Street R. Co. v. Hicks, 96 Va. 510, 32 S. E. 295. But the certificate of acknowledgment is no part of a conveyance by a VII. FOE INSUFFICIENCY J PABTICULAE ALLEGATIONS. 465 married woman, and its absence from the copy of her contract to con- vey, attached to a complaint by her for its enforcement, docs not affirm- atively show that the contract was not legally executed and acknow- ledged; and her allegation that a contract was entered into sufficiently shows that fact. Banbury v. Arnold, 91 Cal. 606, 27 Pae. 934. In determining the sufficiency of a complaint under the Indiana statutes, the provisions of an instrument filed therewith as an exhibit will con- trol if the instrument is the foundation of the action; but if not, its provisions are not to be considered. Indiana Mut. Bldg. & L. Asso. v. Plank, 152 Ind. 197, 52 N. E. 991; Dunlap v. Eden, 15 Ind. App. 575, 44 ISr. E. 560; Gloie Acci. Ins. Co. v. lieid, 19 Ind. App. 203, 47 N. E. 947, 49 N. E. 291; Harrison Bldg. & Deposit Go. v. Lackey, 149 Ind. 10, 48 N. E. 254. A written instrument which is the foundation of a civil action, or a copy thereof, should be filed as an exhibit; and in case of a variance be- tween it and the pleading, the exhibit will control. First If at. Bank v. Jones, 2 Okla. 353, 37 Pac. 824. *As a general principle, a plan annexed to a petition should be used to explain anything that is ambiguous or unexplained 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. Bemy v. Munioi- pality lio. Two, 12 La. Ann. 500. 253. Denmrrer not aided by original.| The production of an original document, even though, it he a rec- ord, if not so pleaded as to he made a part of the pleading, cannot make the pleading demurrahle ; nor can it he used on demurrer to con- tradict the pleading.^ 'But according to the better opinion a document produced on oyer, whether in equity^ or at common law,* forms a part of the pleading of tlio party producing it; and if insufficient, demurrer lies. A profert of documents on which suit is brought does not malje them part of the declaration, so that they may be considered on de- murrer, where oyer is not asked and granted.* ^Noonan v. Bradley, 9 Wall. 394, 401, 19 L. ed. 757, 759; Story, Eq. PI. 414, § 4526. 'Bogart v. Hinds, 25 Fed. 484. Where oral profert of a written contract which is the foundation of the sviit is made on demurrer, and the contract is produced and read, the document becomes a part of the petition and may be looked to by the court in determining the demurrer. Chicago Bldg. & Mfg. Go. v. Tal- lotton Creamery . Franklin, 7 Ohio Dec. 519 (Citing Oallimore v. Ammerman, 39 Ind. 323; Carey v. Bheets, 60 Ind. 17). * Bolton V. Vellines, 94 Va. 393, 26 S. E. 847. • Landrum v. Wells, 7 Tex. Civ. App. 625, 26 S. W. 1001 (so held on error). ^^^- 1'0« INSUFJflGIENOY ; PAETICULAK ALLEGATIONS. 507 EENO.flS. 292. Conclusion of law. 294. Fence along railroad. 293. Sufficiency of averments. 282. Conclusion of law. An allegation that certain land was inclosed with a la-^vful fence is a mere conchision of law.^ And an averment that a fence is so constructed as to be liable to be blown upon adjoining buildings by a heavy wind is bad on general demurrer, as stating a conclusion,^ ' Nichols V. Dolbins, 2 Mont. 540. 'Bordeaux v. Greene, 22 Mont. 254, 56 Pac. 218. 293. Sufficiency of averments. In an action to recover the value of repairs made to a line fence, it should be averred that the defendant is under obligation to make the repairs.^ Under a statute requiring a property owner to build one half the division fence, after notice, the plaintiff, in a petition for refusal to do so, must aver that he has constructed or offered to construct his half of the fence.^ ' This averment should be made, although the statute requires each of the adjoining owners to maintain one half the fence, since this otiligatioii may be changed by special agreement, or in some other manner. Sharp V. Curtiss, 15 Conn. 526. An averment that one of two adjoining owners was bound to maintain and keep in repair a division fence is sufficient, especially after verdict, al- though it does not state why he was so bound. Ibid. ' Hall V. Cincinnati Southern R. Co. 13 Ky. L. Rep. 436, 17 S. W. 207. 294. Fence along railroad. In an action against a railroad company for damages caused by ■defendant's engine killing plaintiff's stock, where the complaint al- leges that the railroad was not fenced^ at the place where the animals entered upon it,^ it is not necessary to state that the animals were rightfully at large, or that such, place was not a public highway,^ or that the company could have fenced its road at such place,* or that it Avas bound to do so.^ JSTor need it be expressly alleged that the injury occurred by reason of the failure to fence.* ^Terre Haute t€ /. R. Co. v. Schaefer, 5 Ind. App. 86, 31 N. E. 557 (suffi- cient after verdict). 508 BEIEF ON PLEADINGS DEMURKBK. An allegation that a railroad was not fenced when a statute requiring rail- roads to fence their tracks was passed, and that after its passage the company had failed to fence it, sufficiently shows that it was not fenced at the time of giving notice to fence. Midland R. Go. v. Gasoho, 7 Ind. App. 407, 34 N. E. 643. ' Terre Haute & I. R. Go. v. Schaefer, 5 Ind. App. 86, 31 N. E. 557. A complaint alleging that at a certain highway crossing, the defendant railway company "neglected and failed to maintain a fence and cattle- guard sufficient to turn and keep off horses and stock,'' and that plain- tiff's "horses, then and there, by reason of the failure of said defendant to fence and maintain cattle-guards sufficient to turn and keep them ott' said railroad," strayed upon it and were killed, — sufficiently allege* that they went upon the track at a point not securely fenced, since it would be so interpreted by a person of ordinary understanding, within Ind. Rev. Stat. 1881, § 338, fixing that test for the construction of pleadings. Wabash R. Go. v. Ferris, 6 Ind. App. 30, 32 N. E. 112. ' Terre Haute & I. R. Go. v. Schaefer, 5 Ind. App. 86, 31 N. E. 557. A petition in an action against a, railroad company for the killing of a cow on its track, alleging that the cow came on the track where it was not fenced and the law required it to be fenced, that the place of her entry was not a public crossing nor within an incorporated oity, town, or vil- lage, and that defendant's failure to fence "caused" the cow to get on. the track, where she was killed by the locomotive, states a good cause of action. Fraysher v. Mississippi River £ B. T. R. Go. 66 Mo. App. 573 (Sufficiency to support verdict). * A complaint in an action for the killing of stock upon a railroad need not allege that the railroad could have been properly fenced at the place where the animal strayed upon the track, where it alleges that the rail- road was not fenced at such place. Lake Erie d W. R. Go. v. Fishiaek, 5 Ind. App. 403, 32 N. E. 346 (Citing Louisville, N. A. & G. R. Go. v. Hughes, 2 Ind. App. 68, 28 N. E. 158). A complaint under Mont, act March 2, 1891, providing that a railroad company which fails to fence its tracks shall be liable to the owner of stock injured or killed by reason of the want of such fence, and that it shall only be necessary for the owner to prove the injury or destruction of the property and the value thereof, — must allege that the animals were killed by reason of the want of a fence at points where the right to fence existed. Menard v. Montana G. R. Go. 22 Mont. 340, 56 Pac. 592 ( Citing Schmitt v. Ghicago, St. P. & K. 0. R. Go. 99 Iowa, 425, 68 N. W. 715; Wall v. Des Moines & N. W. R. Go. 89 Iowa, 193, 56 N. W. 430 ; Mawwell v. Burlington,, G. R. & V. R. Go. 80 Iowa, 662, 45 N. W. 56S iComstock v. Des Moines Valley R. Go. 32 Iowa, 376; Rowland V. St. Louis, I. M. & a. R. Go. 73 Mo. 619). * Chicago & E. R. Go. v. Brannegan, 5 Ind. App. 540, 32 N. E. 790 (Citing Ft. Wayne, M. & G. R. Co. v. Mussetter, 48 Ind. 286; Jeffersonville, M. & I. R. Co. v. Lyon, 55 Ind. 477, 72 Ind. 107; Detroit, E. River & I. It. Go. V. Dlodgett, 61 Ind. 315; Terre Haute & [. R. Go. v. Penn, 90 Ind. 284). VII. JbOK INSITFFICIENCY ; PAETICULAE ALLEGATIONS. 509 'All allegation that at a certain point a railway was improperly unienced, and that plaintiff's stock entered upon the track at said point and were killed, sufficiently sets forth a cause of action, without expressly stating that injury occurred by reason of the failure to fence. Ohio, I. & W. K. Co. V. lieady, 5 Ind. App. 328, 32 N. E. 213. ^OEEIG^' Law. 295. General allegation. 296. Laws of sister state. See also Statdtes, § 456, infra. 295. General allegation. It is the better opinion that an allegation of foreign law by its legal effect is sniEcient on demurrer. '^ ' An aJlegation 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 Donoghue, and void as against John Donoghue," was held sufficient on demurrer. Hanley v. Donoghue, 116 U. S. 1, 7, 29 L. ed. 535, 538, 6 Sup. Ct. Rep. 242. An allegation that, under and pursuant to the laws of a certain foreign country, and under and pursuant to the practice and rules of a court of such country, a judgment sued on has the force and effect of a personal judgment, is a sufficient allegation of the law and practice of such coun- try. Wright v. Ghapin, 74 Hun, 521, 26 N. Y. Supp. 825. So, an averment with respect to an instrument executed in a state other than that in which it is sought to be enforced, that such instrument was, on the day of its execution, duly acknowledged and delivered, in accordance with the laws of the state in which it was executed, is u, sufficient averment of the sufficiency of the acknowledgment under the laws of that state. Consolidated Tank Line Co. v. Collier, 148 111. 259, 35 N. E. 756. An allegation "that under and by virtue of the laws of France" the title to the property in question vested, immediately upon testator's decease, in the plaintiffs, is an allegation of fact, not of law, and is sufficient. Berney v. Drexel, 33 Hun, 34, Reaffirmed on Reargument in 33 Hun, 419, and Affirming 63 How. Pr. 471. But an averment that under the laws of specified states, all the debts, liabilities, and duties of consolidating companies attached to the de- fendant corporation and became enforceable against it, is a legal con- clusion from undisclosed facts, and demurrable. Rothschild v. Rio Grande Western R. Co. 59 Hun, 454, 13 N. Y. Supp. 361. In this case it is said: "The fact that a given proposition is the law must be stated, if such fact is essential to a recovery. The case of Berney v. Drexel, 33 Hun, 34, does not conflict with this conclusion. There a fact was stated, — namely, that upon the testator's death, his personal property, •under the laws of France,' vested immediately in certain of the plain- 510 BKIEF ON PX.EADINGS DEMUEKEE. tiffs. That was, in substance, an allegation that these persons were the owners of the property which the defendants were charged with having converted ; in other words, an allegation of the fact of plaintiff's title. It is true that this allegation was coupled with a disclosure of its legal source. But such disclosure was superfluous. It was simply a suggestion of the nature of the proof w'hieh would be adduced upon the trial to support the fact of title, as alleged. It will be observed, too, that the defendants in that case were sought to be charged with a common-law liability, while the defendant here can only be held under the statutes of Colorado and Utah. The plaintiff here has neither pleaded such statutes, nor any fact from which the conclusion that a liability . . . attached to the defendant and became enforceable against it can be deduced." In a complaint setting forth a statute of a si.ster 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., it was held that this allegation as to the meaning of the statute was admitted by the demurrer. 8a/v- ings Asso. v. O'Brien, 51 Hun, 45, .3 N. Y. Supp. 764. But a petition in an action for death caused by a railroad company in another state need not set out the statutes or decisions of the courts of sucli other state; it is sufficient to aver that a right of action exists in that state, either by statute or under the deciaions of its courts upon facts such as defendants set out in the petition, and that a right is given in the courts of such other stute to enforce the statute of Ohio in actions of like character. Luke Hhore & M. 8. R. Co. v. Andrews, 14 Ohio C. C. 564. An allegation that a surrogate "had jurisdiction, and was duly authorized by the laws of said state," etc., was held sufficient at trial. Schluter v. Houery (lav. Bank, 117 N. Y. 125, 5 L. E. A. 541, 22 N. E. 572. In pleading tlie statute of limitations of a foreign state, it is unnecessary to set out an exact copy thereof, or to give its title and date of ap- proval; it is sufficient, as against a general demurrer, to allege the substance of the statute relied on. Minneapolis Harvester Works v. Smilli, 36 Neib. 616, 54 N. W. 973. Contra, Throop v. Hatch, 3 Abb. Pr. 23. If defendant in an action on a bill of exchange seeks the benefit of pro- visions of the law of a foreign state where the bill was drawn and is payable, which limit the amount of attorney's fees to be allowed, he must substantially set out such law in his answer. Alleging his con- clusions as to its provisions is insufficient. Bank of Commerce v. Puqua, 11 Mont. 285, 14 L. R. A. 588, 28 Pac. 291. The court said: In order to have the law of one state applied in another, it must be brought to the attention of the court by setting out so much thereof as is applicable, and proving the same. This is the rule at common law (1 Chitty, PI. 239) ; and it does not appear to have been changed by the Codes. Bliss, Code PL 183, 184, 304. In thp case of Throop v. Hatch, S Abb. Pr. 23, the court, by Allen, J., says: "ff thf plaintiff is driven to the statute law^ of tlio states of Ohio and Michiaan to maintain this "VII. FOE INSUFFICIENCY ; PAKTICULAE ALLEGATIONS. 511 action, and bound to show that by the statutes of those states the trusts which he seeks to enforce are valid, he should have set out, at least substantially, the statutes upon which he relies. The laws them- selves are to be averred and proved in the same manner as other facts, and their esdstence is to be proved by copies of the statutes, propei'ly exemplified as other documents are. The averment that the trusts are, by the laws of the states in which the lands are situated, valid and subsisting trusts, is therefore nothing more than an averment of the conclusion of the pleader, based ( 1 ) upon his knowledge of the existence of certain statutes, and (2) upon his construction of those statutes." The following cases hold to the same effect: Pkinney v. Phinney, 17 How. Pr. 197; Carey v. Cincviinati & G. R. Co. 5 Iowa, 357; Devoss v. Cfray, 22 Ohio St. 159; Swank v. Eufnagle, 111 Ind. 453, 12 N. E. 303; Central Trust Co. v. Burton, 74 Wis. 329, 43 N". W. 141 ; Sells v. Hag- gard, 21 Neb. 357, 32 N. W. 66; McLeod v. Connecticut £ P. Rivers R. Co. 58 Vt. 727, 6 Atl. 648. An allegation that the contract in suit was governed by a specified law of a foreign country, as to its validity, execution, and interpretation, and the rights of the parties thereunder, and that under said law the plain- tiff is entitled to a. certain sum and to the relief prayed for, is insuffi- cient as stating a mere conclusion as to plaintiff's rights under such law, and not the law itself. Riendeau v. Vieu, 50 N. Y. S. E. 309, 21 N. Y. Supp. 501. 296. laws of sister state. A state court will not take judicial notice of the law of a foreign counti^^,^ or of the law of a sister state, but such law must be al- leged and proved.^ In the absence of proofs the laws of other states will be presumed to be the same as the law of the forum.® The petition in an action in one state to recover for injuries caused by the negligence of the defendant in another state need not show that the action can be maintained in the state where the injury oc- curred, where the recovery is sought in a common-law action, instead of in a statutory one.* But 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 take such notice on error or appeal.® The United States courts are bound to take judicial notice of the laws, not only of the state in which they are sitting, but also of all the otliers.'^ But the Supreme Court will not take judicial notice of the decisions of the courts of one state in a case coming to it from the courts of another state.* '^ Thomas v. Chand Trunk R. Co. 1 Penn. (Del.) 593, 42 Atl. 987. 512 BKIEF OS PLEADINGS DEMUEEER. 'Camp V. Randle, 81 Ala. 240, 2 So. 287; Poik v. BuUerfield, 9 Colo. .325, 12 Pac. 216; Summer v. Mitchell, 29 Fla. 179, 14 L. K. A. 815, 10 So. 562 ; Simms v. Southern Exp. Co. 38 Ga. 129 ; Rohinson v. Holmes, 75 111. App. 203; Chumasero v. GUhert, 24 III. 293; Morris v. Wt6(M», 159 111. 651, 43 N. E. 837; Dearlove v. Edwards, 166 111. 621, 46 N. E. 1081; Rolards v. Marley, 80 Ind. 185; Ifeese v. Farmers' Ins. Co. 55 Iowa, 604, 8 N. W. 450; Thomas v. Brnce, 20 Ky. L. Rep. 1818, 50 S. W. 63 ; Yalz v. First Nat. Bank, 16 Ky. L. Rep. 624, 29 S. W. 329 ; Hoyt V. McNeil, 13 Minn. 390, Gil. 362 ; Conrad v. Fisher, 37 Mo. App. 352, 8 L. R. A. 147; Sells v. Haggard, 21 Neb. 357, 32 N. W. 66; Hosford V. Nichols, 1 Paige 220; Meuer v. Chicago M. & St. P. R. Co. 5 S. D. 568, 25 L. R. A. 81, 59 N. W. 945; Anderson v. Anderson, 23 Tex. 639; Territi v. Woodruff, 19 Vt. 182 ; /eope v. Beaton, 9 Wis. 328, 76 Am. Dec. 269. 'Hakes v. National State Bank, 164 111. 273, 45 N. E. 444; Scroggin v. McClelland, 37 Neb. 644, 22 L. R, A. 110, 56 N. W. 208; Dunham v. Holloway, 3 Okla. 244, 41 Pac. 140. In Cahill Iron Works v. Pemlerton, 30 Abb. N. C. 450, 27 N. Y. Siipp. 927, it is said : "In the absence of proof of the statute law of another state, it will be presumed that the common law prevails therein {Whitford v. Panama Co. 23 N. Y. 465 ; Waldron \. Ritchings, 3 Daly, ZSS) . . The presumption, however, ... is circumscribed by still another presumption, — namely, that the common law of the particular state corresponds to our own. Holmes v. Broughton, 10 Wend. 75, 25 Am. Dec. 536." The law of another state must be pleaded, and unless it is alleged to be different from the law of the forum, the legal eflfect of an obligation executed in the foreign state must be determined by the law of the forum. Turner v. Johnson, 106 Ky. 460, 50 S. W. 675. A petition in an action for wrongful death in another state, brought in Ohio, need not aver who, under the law of such other state, would be the beneficiary or autliorized to bring the action, as, in the absence of such provisions, the law of Ohio will govern. Lake Shore & M. S. R. Ga. v. Andrews, 14 Ohio C. C. 564. But a debtor cannot avail himself of the benefits of a territorial statute, providing that when a cause of action has been fully barred by the laws of any state or country where defendant has previously resided, .such bar shall be the same defense as though it had arisen within the territory, without alleging the statute of the other state and proving that the cause of action was barred thereby. The court cannot, in suoh a case, presume that the laws of such other state are the same as those within the state in which the court is held. Richardson v. Maclcay, 4 Okla. 328, 46 Pac. 546. *Aichinson, T. & S. F. R. Co. v. Dickey. 1 Kan. App. 770, 41 Pac. 1070. * Paine v. Schenectady Ins. Co. 12 R. I. 440 (rule that appeal pending does not nullify effect of adjudication) ; Hohis v. Memphis d>c Tt. Co. 9 Heisk. 873 (judicial notice taken of law of sister state, giving action for personal injuries). VII. — lOE i^sufficxejScy ; pakticulae allegations. 513 But in a suit upon a judgment of a court of anotber state, allegations of a plea, to tile effect that the judgment was procured upon proof by affi- davit of the service of the summons, and upon a complaint verified by a stated affidavit, are insufficient in the absence of any averments as to the law of such state. Sammis v. Wightman, 31 Fla. 10, 12 So. 526. The court said : The laws of our sister states are facts to be pleaded and proved like other facts. Summer v. Mitchell, 29 Fla. 179, 14 L. R. A. 815, 10 So. 562; Tuten v. Oagan, 18 Fla. 751; Banley v. Donoghue, 116 U. S. 1, 5, 29 L. ed. 535, 537, 6 Sup. Ct. Rep. 242. We do not take judicial notice of them; nor is the view which has been adopted in some states (Paine v. Schenectady Ins. Co. 11 R. I. 411; Ohio v. Hinch- man, 27 Pa. 479; Rae v. Hulbert, 17 111. 572; Black, Judgm. § 860) as ground for taking such notice in cases of the character now before us — that the Supreme Court of the United States takes the same notice on writs of error to a state court in these cases — correct. It does not take such notice. On the contrary, its doctrine and practice is not to take judicial notice of the law of another state, not proved in the court of the state in which the suit or the judgment was brought, and made a part of the appeal record, unless the latter court takes such notice by the local law of that state. Hanley v. Donoghue, 116 U. S. 1, 5, 29 L. ed. 535, 537, 6 Sup. Ct. Rep. 242. ^ Ohio V. Hinchman, 27 Pa. 479 (jurisdiction of probate court to entertain habeas corpus ) . ■^ Mutual L.In^.Oo.Y. Bill, 49 L. R. A. 127, 38 C. C. A. 159, 97 Fed. 263; Mutual L. Ins. Co. v. Dingley, 49 L. R. A. 132, 40 C. C. A. 459, 100 Fed. 408; Fourth Nat. Bank v. Francklyn, 120 U. S. 747, 30 L. ed. 825, 7 Sup. Ct. Rep. 757; Owings v. Bull, 9 Pet. 607, 9 L. ed. 246; Xcwlerry V. Robinson, 36 Fed. 841. The rule is the same as though the action were commenced in a, state court where the complaint was demurrable for not pleading the statute. Breed v. Northern P. R. Co. 35 Fed. 642. "Banley v. Donoghue, 116 U. S. 1, 6, 29 L. ed. 535, 537, 6 Sup. Ct. Rep. 242; Chicago not allege in terms that plaintiff i-elied on the false representations made to him, where it alleges that he was ignorant of their falsity, and that he was defrauded thereby, but sufficiently implies his reliance to allow of amendment in that respect. Cheney v. Poioell, 88 Ga. 629, 15 S. E. 750. That plaintiff relied upon defendant's fraudulent representations concerning another's credit is sufficiently averred by an allegation in the petition that, by reason of such representations, plaintiff sold goods to said per- son, giving him credit therefor, and that the latter has failed and re- fused to pay for the goods. Robbins v. Barton Bros. oO Kan. 120, 31 Pac. 686. VII. FOE INSUFFICIENCY ; PAETICULAK ALLEGATIONS. 521 A complaint to rescind a deed on the ground of fraud sufficiently showa that plaintiff relied upon the representations of the defendant, by the averments, "relying upon the said representations of the defendant, . . . the plaintiffs on said day entered into a written agreement with defendant for the exchange of said properties,'' and on a certain day "pursuant to said written agreement the plaintiffs relying upon said representations of the defendant, . . . conveyed their said land to him." Grisu-old v. Hazels, 52 Neb. 64, 71 N. W. 972. A petition in an action to cancel a deed, alleging that plaintiff stated to defendants that he knew nothing of the premises, and must rely wholly on the statements of defendants, and that, in reliance thereon, he would trade the property; and that plaintiff, in reliance upon such representa- tions, and with no knowledge as to the land, except from the representa- tions of defendants, made the deed sought to be canceled, — sufficiently alleges that plaintiff was induced to make the trade by the representa- tions of defendants. Smith v. Myers, 56 Neb. 503, 76 N. W. 1084. ' An answer in an action for rent, alleging that plaintiff made certain false representations known to him to be false, with the intent to induce de- fendants to take the lease, and that they, relying thereon, were induced to take it, which they otherwise would not have done, sufficiently sets forth the defense of deceit. Hurlimarm v. Seokendorf, 46 N. Y. S. R. 301, 18 N. Y. Supp. 756. ^Guy V. Blue, 146 Ind. 629, 45 N. E. 1052; Stetson v. Riggs, 37 Neb. 797, 56 N. W. 628. A declaration showing false representations with knowledge by the de- fendant that they were false, their falsity, in fact, their materiality, reliance upon them by plaintiff, and consequent damage, — states a cause of action. Brown v. Lohdell, F. & Co. 50 111. App. 559. A declaration alleging that, to induce plaintiffs to discount for him cer- tain paper, defendant made certain specified false statements as to his pecuniary condition, which were known by Mm at the time to be false, and were made for the purpose of deceiving and defrauding plaintiffs; and that, in reliance upon such false representations, they discounted certain notes for defendant, which notes are past due, unpaid, and still in their possession, states an action for deceit. Brown v. Lohdell, F. <£ Co. 51 111. App. 574. A petition setting out false representations by the defendant, believed by the petitioner to be true, and acted upon by Mm to his detriment, is sufficient on demurrer. Sweet v. Owens, 9 Kan. App. 48, 57 Pac. 254. 301. Intent. Actual fraud is not sufficiently alleged unless it appears from the allegations that there was an intent to deceive.* ^Bartholomew v. Bentley, 15 OWo, 659, 45 Am. Dec. 596; Zabrishie v. Smith, 13 N. Y^. 322, 64 Am. Dec. 551; Morrison v. Lewis, 17 Jones & S. 178; CoyU v. i}ies, 6 N. Y. S. R. 194; Barher v. Morgan, 51 Barb. 116; 522 BRIEF ON PLEAU1A'«S DEMUEEEE. Morse v. iSwits, 19 How. Pr. 275; Addington v. Allen, 11 Wend. 374; Giiy V. Blue, 146 Ind. 629, 45 N. E. 1052. See also Intent, § 336, infra. Intent or a reckless misstatement iiiu.st be alleged. Furnas v. Friday, 102 Ind. 129, 1 N. E. 296. Compare Durri/ v. PeeJc, L. R. 14 App. Cas. 337. An allegation of injury suffered "by reason of the frauds" of defendant i.s w-holly insufficient. Kiuipp v. Brooldyn, 97 N. Y. 520, Aff'g 28 Hun, 500. An allegation of an intent to defraud is essential to a complaint setting up a cause of action for false and fraudulent representations. Shields v. Clement, 12 Misc. 506, 33 N. Y. Supp. 676 (ating Star H. «. Co. v. Mitchell, 1 Abb. Pr. N. S. 396; Cullen v. Hernz, 13 N. Y. S. R. 333; Marsh v. Fallcer, 40 N. Y. 565). Till; complaint in an action to avoid a conveyance as being fraudulently ex- ecuted must expressly charge that the instrument was executed with a fraudulent intent. ■National titate Bank v. Yigo County Sal. BanI,-, 141 Ind. 352, 40 N. E. 799. But the omission to charge a fraudulent intent is not fatal to a complaint to set aside an assignment alleged to contain fraudulent preferences, if it contains an allegation showing, if true, that the assignment was fraudulent in law. Stafford v. MmiU, 62 Hun, 144, 16 N. Y. Supp. 467. Gambling, 302. Conclusion of law. An averment that a transaction was a gambling transaction is in- sufficient, unless facts are alleged from which such a conclusion fol- lows.* • Oerriiy v. Brady, 44 111. App. 20:;. Goods Sold and Delivered. 303. Sufficiency of complaint. 304. Sufficiency of defen-sca. 303. Sufficiency of complaint. A count for goods sold and delivered should contain an averment of delivery, or of a ]>romise to pay.* It should state by whom the gf.iods were sold,^ but need not aliege where they were sold.* An account for goods sold and delivered to defendant's agent must, to be good on demurrer, allege either that the goods were sold at the instance and request of the defendant, or upon his order, or upon his credit* It is not necessary, in an action to recover the price of an article VII. FOR INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 523 ■warranted to give satisfaction, to allege in the complaint that it worked to defendant's satisfaction.' ' Kilpatrick-Koch Dry-Goods Go. v. Box, 13 Utah, 494, 45 Pac. 629. But the complaint in an action of assumpsit by an assignee, for goods sold and delivered, need not aver a promise by defendant to pay the assignee, where there is an allegation of a promise to pay the assignor. Robinson V. Watson, 101 Mich. 466, 59 N. W. 811. And a party who has fully performed a special contract for the sale of goods may count upon the implied assumpsit of the other party to pay the stipulated price, and need not declare specially on the agreement. 8wa/n Lamp Mfg. Co. v. Brush-Swan Electric Light Co. 46 N. Y. S. E. 535, 18 N. Y. Supp. 869 (Citing Farron v. Sherwood, 17 N. Y. 227; Hosley v. Blade, 28 N. Y. 443; Higgins v. Newton £ F. R. Co. 66 N. Y. 604). ' 8. C. Herlst Improvvng Co. v. Hogan, 16 Mont. 384, 41 Pac. 135. » Behloic V. Shori, 91 Cal. 141, 27 Pac. 546. ' Fry V. Colborn, 17 Ind. App. 96, 46 N. E. 351. = Buckstaff V. Russell <6 Co. 151 U. S. 620, 38 L. ed. 292, 14 Sup. Ct. Rep. 448 (this is matter of defense). 304. Sufficiency of defenses. An averment that the plaintiff did not sell and deliver to defend- ants on the day named merchandise mentioned, and that defendant did not reioeive it, or any portion of it, at any price on such day, or at any subsequent time, is sufficient, although it does not negative the purchase of the merchandise at another time.^ A defense in an action for goods sold and delivered, alleging tliat a portion of the goods was received in a damaged condition and par- tially xmfit for use, is insufficient where it does not state exactly what portion of the goods was so received, and gives no information con- cerning their actual condition, or in what respect they were damaged, or why they were unfit for use, and alleges no representation, war- ranty, or deception on the part of the plaintiffs.^ So, a defense that the goods charged to the defendant were excessive in amount, without specifying the excess, is insufficient.* The mere averment of a warranty, -without more, is bad.'* ' Barker v. Fairchild, 168 Pa. 246, 31 Atl. 1102. So, an affidavit of defense by one sued as a member of a coal-dealers' asso- ciation for coal furnished, that no coal was sold to and delivered to him, as averred in the statement that he is not now, and has not been, connected in any way with such association since a specified date be- fore the alleged date of sale, and is not indebted to plaintiffs in any 524 BRIEF ON PLEADINGS- — DEMUBEEE. Bum whatever for coal sold and delivered, or for any other account, — is sufficient. Rhoads y. Fitzpatriok, 166 Pa. 294, 31 Atl. 79. But in an action for goods sold and delivered upon a v?ritten order there- for, an affidavit of defense that defendant never bought them from the plaintiff, never received the same, or promised to pay for the same, or authorized anyone to buy or receive the same for him, — is insufficient. National Gash Register Go. v. Flaherty, 12 Pa. Co. Ct. 475 (the plea does not deny the execution of a contract of sale, and delivery or at- tempted delivery thereunder ) . And in an action by a gas company for the price of gaa sold by meter, aji affidavit of defense that defendant, during nearly all the time, had no gas, and used coal or wood, and notified plaintiff to take out the fixtures and turn off the gas, is insufficient. People's Natural Gas Go. v. Bro- warsky, 12 Pa. Co. Ct. 215. 'Bonneville v. Hamilton, 18 Pa. Co. Ct. 31. •JenJcinson v. Hilands, 146 Pa. 380, 23 Atl. 394. * Wile & B. Go. V. Onset, 10 Pa. Co. Ct. 059, holding that an affidavit of defense in an action on notes given for goods bougiht by sample, alleging a warranty by the agent who sold them, must show whether it was ex- press or implied, its terms, and when, by whom, and by what authority, it w;is made. Heik, 305. General allegation. An allegation that one person was the sole heir of another is a con- clusion of law, and, if the facts of exclusive near relationship are not stated, is insutricient.^ ^Montgomery v. White, 10 Ky. L. Rep. 905, 11 S. W. 10 (the court says 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 Chitty PI. 16th Am. ed. title. Heirs, § 305, infra. Compare St. John v. Northrup, 23 Barb. 25 (holding such an allegation sufficient on the trial); Wainman v. Hampton, 20 N. Y. Week. Dig. 68. The averment in a complaint that the plaintiffs are the heirs at law of a deceased sister are mere conclusions of law, and may be disregarded upon demurrer, where the complaint shows that the deceased left a son surviving her. Henriques v. Yale University, 28 App. Div. 354, 51 N. Y. Supp. 284. An avermrait that the plaintiffs are heirs at law of one deceased is suffi- cient, on demurrer, to show that they are the only heirs of such de- cedent. Howison v. Oakley, 118 Ala. 215, 2:i So. 810. vii. foe insufficiency ; i'aetigulae allegations. 525 Highways. 306. Restraining opening of road. 308. Injuries upon defective side- 307. Obstructions. walks. 306. Restraining opening of road. A petition for an injunction to restrain the ojyening of a piiblic road through plaintiff's land, alleging that the jury of view appointed to lay it out have never viewed it or made any report, is sufficient on demurrer.^ A complaint to enjoin the opening of a road, which avers that it is not sufficiently described in the proceedings for its opening, must specify any defect or error in the description.^ ' Cummings v. Keiidall County, 7 Tex. Civ. App. 164, 26 S. W. 439. But an allegation that the viewers did not cause a survey and plat to be made, "as required by law," is a mere conclusion of law, and insufficient in the absence of any specification wherein a survey and plat mentioned in the exhibits to the complaint failed to conform to the law. Crowley v. Gallatin County, 14 Mont. 292, 36 Pac. 313. 'Crowley v. Oallatm County, 14 Mont. 292, 36 Pac. 313. 307. Obstructions. An averment that a specified obstruction was "negligently left up- on, and partly across, a public highway," sufficiently alleges an ob- struction of the highway.^ It is not necessary to show that the sidewalk obstructed had been accepted by the town authorities, or to give its name.^ But in an action for placing- an obstruction upon a public street without the city's authority, want of authority must be specially alleged.^ And a complaint in an action for obstructing a public al- ley must show that plaintiff's use of the alley was obstructed in some manner by defendant's unlawful acts.* A bill for the removal of obstructions alleged to have been erected in a public highway is not insufficient on demurrer, in failing to show that tlie notice and warning averred to hare been given to defendants were timely and sufficient." ■ Baltimore & 0. 8. W. B. Go. v. Faith, 71 111. App. 59. A complaint in an action by a city against the county in which it is situated, alleging that a square in the city was dedicated by the county to the public for public use, and for the purpose of erecting thereon a courthouse; that a jail and cesspool thereon are no part of the court- house, and are not lised in connection therewith; and that they are 626 BEIEF ON PLEADINGS ^DBMUREER. nuisances per se because they constitute an ent-roachnient and obstruc- tion upon the square, — sufSoiently shows that they are obstructions of the public square, and are abatable as nuisances. Llano v. Llano County, 5 Tex. Civ. App. 132, 23 S. W. 1008. 'Bosedale v. Ferguson, 3 Ind. App. 596, 30 N. E. 156. • Ware v. Sliafer, 88 Tex. 44, 29 S. W. 756. • Bans V. Jeffersotwille, M. d I. R. Co. 138 Ind. 307, 37 N. E. 805. ^Pennsylvania 8. V. R. Go. v. Reading Paper Mills, 149 Pa. 18, 24 Atl. 205. 308. Injuries upon defective sidewalks. In an action for personal injuries upon a defective sidewalk, it should appear that the plaintiff was injured^ upon a public street,* at a place-^ which it was the duty of tlie municipality to keep in re- pair,* and of the defective condition of which it had notice.® The petition should definitely allege that the sidewalk was in an unsafe condition for ordinary travel," and show that the defective condition of the highway caused the accident.'' The objection that the complaint in an action against a city for damages for personal injuries received upon a defective highway fails to allege presentation of the claim to a municipal officer, as pro- vided by statute, is properly taken by general demurrer for iasuffi- cicney of facts.* ' But an allegation that plaintiff, by falling on a, street crossing, was "great- ly injured, bruised, wounded, and crippled," is not bad because it does not state the particular injury sustained. Teager v. Bluefleld, 40 W. Va. 484, 21 S. E. 752. • A declaration under Mich. Puib. Laws 1887, act 264, § 4, for personal injuries from a, defective sidewalk, must allege that the street in which the accident happened had been a public street or highway for ten years and upwards. Clark v. Tv'orth Mii.ikei/on, 88 Mich. 308, 50 N. W. 254. A declaration under Mich. Pub. Laws 1887, act 204, § 3, for personal in- juries from a defective sidewalk, must allege that the street in which the accident occurred was open to public travel. Ihid. An allegation in a petition to recover damages for personal injuries, that a certain street constitutes a public highway of a city, sufficiently es- tablishes its character as such; and it is not necessary to allege that the street has been formally laid out in pursuance of ordinances. Gold- en V. Clinton, 54 Mo. App. 100. A petition in an action for personal injuries against a municipal corpo- ration sufficiently shows that the thoroughfare in which the plaintiff received her injuries is a street, where it alleges that it is a highway and thoroughfare of travel, which has been constantly used, day and night, by the public, as such, for more than twenty years, and that it has been recognized and worked as such by defendant during all that VII. FOE INSUFFICIENCY ; PAKTIGDLAB ALLEGATIONS. 527 time, and has become, in fact and law, a street of the city. Thompson V. Corpus Christi (Tex. Civ. App.) 38 S. W. 373. That the sidewalk upon which an injury occurred was controled and treat- ed by the town authorities as a public sidewalk, and opened as such, is sufficiently alleged in a declaration 4n an action against the town, averring that the "defendant" kept it open and treated it as a public sidewalk, and that it was its duty to put and keep it in good repair. Waggener v. Point Pleasant, 42 W. Va. 798, 26 S. E. 352. • An allegation that a, traveler was injured while walking "along the side- walk" is sufficient to show that he was "on the sidewalk." Nappanee V. Kuokman, 7 Ind. App. 361, 34 N. E. 609. An allegation of injury on a sidewalk in front of a certain lot, on the north side of a certain street, sufficiently locates the place. Ibid. A declaration for personal injuries from a defective sidewalk sufficiently describes the place of the accident as being upon the south side of » street named, in front of the premises owned by a person named. Clark V. North Muskegon, 88 Mich. 308, 50 N. W. 254. An allegation in the complaint in an action against a town for injuries caused by the defective condition of one of its highways, stating the defect to have been on a designated highway therein, and between cer- tain highway sectdons therein and certain other highway sections of an adjoining town, is a, sufficient designation of the place of the defect, as against a plea of the general issue. Whoram v. Argentine Tiop. 112 Mich. 20, 70 N. W. 341. ' The complaint must contain such aUegations of facts as to show upon its face the legal duty of the city to keep in repair the place where an in- jury occurred. Oliver v. Dermer, 13 Colo. App. 345, 57 Pac. 729. A plea averring lack of power and means to repair the sidewalks of de- fendant city, in an action for personal injuries caused by a defective sidewalk, is a mere conclusion of the pleader. Lord v. Mobile, 113 Ala. 300, 21 So. 366. 'Frankfort v. Coleman, 19 Ind. App. 368, 49 N. E. 474. An averment that a town knew, and had notice, of the identical hole and defective place in a sidewalk where a person was injured, a sufficient length of time before to have repaired it, sufficiently alleges notice of the defect. Nappa/nee v. Ruclcman, 7 Ind. App. 361, 34 N. E. 609. The petition in an action for personal injuries caused by a defective side- walk, commenced more than six months after the injury, must allege that written notice was served on the municipal corporation within ninety days after the injury, under a Code provision that no suit shall be brought against the corporation after six months from the time of the injury, unless such notice is given within ninety days. Pardey v. Mechanicsville, 101 Iowa, 266, 70 N. W. 189. Notice to a township of a defect in a highway, reasonable time to repair after notice and before the accident, and failure to repair, a«e suffi- ciently pleaded by a declaration alleging that the township carelessly and negligently allowed the highway to become and remain out of re- 528 BBIEF on PLEADINGS DEMUEEEE. pa-ir, in that the roadbed was improperly constructed, and that it knew, or by the exercise of due care, ought to have known, of the unsafe and dangerous condition, and thereafter had sufficient time to repair the same and render it reasonably safe, without an express allegation if failure to repair after notice, — at least where defendant pleads the general issue. Moody v. Shelby Twp. 110 Mich. 396, 68 N. W. 2.5!!. A petition in an action for injuries caused by a defective sidewalk need not allege defendant's knowledge of the particular defect or opening which caused the injury, but it is sufficient to allege the defective condition of the sidewalk at or near the place of the injury, that the city author- ities knew of its condition, or that it had existed for such a length of time as to raise a presumption of knowledge on their part, and that the existence of the particular defect was the result of the failure of the city to repair the walk. Rusher v. Aurora, 71 Mo. App. 418. A declaration in an action against a town for personal injuries due to a defective highway need not expressly aver the fact essential to the lia- bility of the town, under R. I. Gen. Laws, chap. 36, § 15, — that it had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence, — ^where it alleges that the town negligently suffered the highway to be out of repair. Oa/rroll v. Allen, 20 R. I. 144, 37 Atl. 704. A complaint in an action against a city for personal injuries caused by a defect in the street is demurrable, where it shows that notice of plain- tiff's claim was not given to the city until long after the expiration of the time allowed for that purpose by Wis. Rev. Stat. 1898, § 1339. Ziegler v. West Bend, 102 Wis. 17, 78 N. W. 164. ' Plunvmer v. Milmi, 70 Mo. App. 598 (so held on error; Citing Youmg v. Kansas City, 45 Mo. App. 602). An allegation that a traveler stepped in a hole or cavity in a sidewalk beneath a tipping board or boards, where they were loose and not fa.sl- ened, so that, when two pereons were walking thereon, one's foot might be caught and the person be thereby thrown to the groimd, sufficiently shows the defect, as against a demurrer. Nappanee v. Ruclctnan, 7 Ind. App. 361, 34 N. E. 609. But a complaint in an action against a. city, which alleges that defendant was injured by stepping into a "hole and broken place" in a, sidewalk. and that the sidewalk had been out of repair for six months before the accident, is insufficient, w^re there is no allegation as to the size, character, or extent of the hole or broken place, or as to the length of time it had existed in the sidewalk. Huntington v. Burke, V2 Ind. App. 133, 39 N. E. 170. And a petition alleging that a city carelessly allowed snow and ice to ac- cumulate upon a sidewalk Which sloped toward adjoining lots, until it presented an inclined surface towards the lots, which was uneven, slippery, and dangerous to pedestrians, and that plaintiff slipped and fell upon it, — is insufficient for failure to Show that the sidewalk was out of repair or defective. Bretsh v. Toledo, 1 Ohio, N. P. 210. An allegation that a sidewalk was dangerous is a mere conclusion. Ibid. VII. 1<0E INSUFFICIENCY J PARTICULAR ALLEGATIONS. 529 A petition which simply shows that the plaintiff slipped and fell upon an icy sidewalk is demurrable. Ihid. '' Bodah V. Deer Creek, 99 Wis. 509, 75 N. W. 75. (Complaint dismissed). A complaint in an action against a municipal corporation for personal injuries sustained from a defective sidewalk, which alleges that a dangerous hole was negligently allowed by the mimicipality to remain for a period of between two and four months, and that it negligently failed to repair the same, and that the injured person stepped into the hole and received the injuries complained of, caused by the negligence of the municipality, and without favilt or negligence on her part, — sufficiently charges that the injury was occasioned by the negligent fail- ure of the city to close up the defect in the walk. Huntington v. Biurke, 21 Ind. App. 655, 52 N. E. 415. • Koch V. Ashland, 83 Wis. 361, 53 N. W. 674. Homestead. 309, Conclusion. An avemient of a homestead right is insufficient, as being a mere conclusion, in the absence of any allegation as to the title of the land or the facts on ^vhieh it is based. -^ ^Buffington v. Mosby, 21 Ky. L. Rep. 297, 51 S. W. 192, No question of homestead is raised by pleadihgs which merely aver that the pleader was entitled to the homestead, without averring any of the facts necessary to create such estate. Oaither v. Wilson, 164 111. 544, 46 N. E. 58. UiiSBAwn AND Wife. ' 310. Alienation of affections. A complaint charging that the defendant maliciously and wrong- fully induced the plaintiff's wife to leave him is not demurrable for want of an allegation that they were living together, or that their rela- tions were peaceable and happy.-' An averment that the defendant acted maliciously is necessary,^ but it ne«d not be alleged that plain- tiff was without fault.' The complaint is not bad for want of an averment that the defend- ant knew of the marital relations between die plaintiff and his wife, when such relation is alleged, and that the defendant knowingly, pur- posely, and maliciously alienated the affections of the Avife, and broke up the plaintiff's family.* The complaint need not state in detail the means employed, the devices resorted to,' and the language used,® to induce the plaintiff's Abb. Pl. Vol- I. — 34. 530 BE.IEF ON PLEADINGS ^DEMUBEEE. wife to leave him, and which resulted in alienating her affections from him. VoMfls V. Hirshburg, 18 Ind. App. 581, 48 N. E. 656. And a declaration in an action for alienating the affections of plaintiff's hiJisband, which alleges that, by reason of defendant's acts, plaintiff has been deprived of the "society, comfort, assistance, and support" of hei husband, which she should have had, and otherwise "might and would have had," is sufficient without an express allegation that plaintiff pos- sessed the affections of her husband. Bowersox v. Bowersox, 115 Mich 24, 72 N. W. 986. 'Reed v. Reed, 6 Ind. App. 317, 33 N. E. 638. 'Jonas V. Hirshburg, 18 Ind. App. 581, 48 N. E. 656. ' Bockman v. Ritter, 21 Ind. App. 250, 52 N. E. 100. 'Jonas V. Hirshburg, 18 Ind. App. 581, 48 N. E. 656. A complaint which states the ultimate facts, without a statement of the arts made use of to accomplish the illegal purpose, is sufficient to stau- a, cause of action for enticing away plaintiff's wife. French v. Deavn. 19 Colo. 504, 24 L. E,. A. 387, 36 Pac. 609. In an action for the alienation of a husband's affections, it is sufficient to allege in the complaint the ultimate facts, without a, statement of the artifices used in the accomplishment of the illegal purpose. Williams V. Williams, 20 Colo. 51, 37 Pac. 614. An allegation in an action for alienation of affections, that defendant'- wrongfully enticed, influenced, and induced plaintiff's husband to aban- don her, is an allegation of fact sufficient to sustain an action, without alleging the particular acts by which such result was consummated. Nichols V. Nichols, 134 Mo. 187, 35 S. W. 577. 'Jonas V. Hirshburg, 18 Ind. App. 581, 48 N. E. 656. In an action by a husband to recover for loss of his wife's society and . assistance, agaiast one who enticed her away by false and malicious statements concerning the plaintiff', it is unnecessary to aver the cuar acter of the statements whereby the wife's affections were alienated. Boclman v. Ritler, 21 Ind. App. 250, 52 N. E. 100. Illegality. 311. Disclosure of illegality on plead- 313. Reference to statute. er's part. 314. Foreign law. 312. Form of allegation of illegality. 315. Question left in doubt. 311. Disclosure of illegality on pleader's part. A complaint is bad on demurrer for insufficiency, if it shows on its face that plaintilf 's claim is illegal.^ But if the allegation relied on as showing the illegality is not ma- terial, i. e., not essentiMl, — as, where a contract sued on is stated as VII. FOB INSUFFICIENCY ; PAETICTILAB ALLEGATIONS. 531 halting been made on a day which fell on a Sunday, — the demurrer should not be sustained; for the pleader could establish his case by proving another day, and the variance would be immaterial.^ ^Dancy v. Phelan, 82 Ga. 243, 10 S. E. 205; Western V. Teleg. Co. y. Topst, 118 Ind. 248, 3 L. R. A. 224, 20 N. E. 222; Galland v. Rosenfeld. N. y. Daily Reg. June 28, 1876. A defense that a contract sued on is void as in restraint of trade is avail- able on demurrer, where it so appears from the face of the complaint. Merchants' Ad-Sign Go. v. Sterling, 124 Cal. 429, 46 L. R. A. 142, 57 Pac. 468. * Amory v. il'Gregor, 12 Jolms. 287, 6 Am. Dec. 316. Contra, see Western U. Teleg. Co. v. Yopst, 118 Ind. 248, 3 L. R. A. 224, 20 N. E. 222. 312. Form of allegation of illegality. A general allegation that an act or transaction was illegal, or was il- legal, unauthorized, and void, or was contrary to statute, or not ac- cording to law, or the like, — ^without stating facts necessary to show illegality, — ^is a mere conclusion of law, and not sufficient on de- murrer.^ If sufficient facts are alleged the omission to add a formal charac- terization of the result as illegal,^ or even inappropriately character- izing it as a fraud,*"" will not vitiate. 'Dickson v. Burk, 6 Ark. 412, 44 Am. Dec. 521 {dictum). An averment in a complaint to restrain an auditor of a city from auditing the salary demands of the commissioners, that they permitted moneys to be ill^ially drawn from a fund in their control, is merely a legal conclusion. Callahan v. Broderick, 124 Cal. 80, 56 Pac. 782. And an averment that an assessment and levy were iUegal and void in law, and wholly unauthorized, is a mere conclusion. Insurance Co. of N. A. v. Boiiner, 7 Colo. App. 97, 42 Pac. 681. So an averment in a petition by a wife for damages against a liquor dealer for the sale of liquor to her husband after notice not to do so, that the sale was unlawful, is insufficient as a statement of a mere conclusion of law. Russell v. Tippin, 12 Ohio C. C. 52. An allegation that a designated person is not now, and never has been, "legally appointed assignee" for a, second person, is demurrable as a conclusion. Smith v. Kaufman, 3 Okla. 568, 41 Pac. 722. 'Hedges v. Dam, 72 Cal. 520, 14 Pac. 133; Pearce v. Watkins, 68 Md. 534, 13 Atl. 376; Griggs v. St. Paul, 9 Minn. 246, Gil. 231; Swurt v. Boughton, 35 Hun, 281; Sprague v. Parsons, 14 Abb. N. C. 320, Af- firmed as to this point in UN. Y. Oiv. Proc. Rep. 17; Clark v. Bowe, 60 How. Pr. 99; Smith v. Lockwood, 13 Barb. 209, 216; Rutter v. Henry, 46 Ohio St. 272, 20 N. E. 334; Pelton v. Semis, 44 Ohio St. 51; Roberts v. Mathews, 77 Ga. 458 (conceding that greater strictness is required in suing to set off usuiy or recover back usurious payments) ; 532 BEIEF ON PLEADINGS ^DEMUEEEK. Eamdy v. St. Pml Globe Puh. Co. 41 Minn. 188, 4 L. R. A. 406, 42 N. W. 872; Peck v. Dorom tC W. Co. 46 Hun, 454 (illegality of wagering contract held sufficiently shown by describing the course of dealing) ; yichols V. Lumpkin, 19 Jones & S. 88. In 2 Chitty PI. 16th Am. ed. 402, it was said; "In a plea of illegality the plaintiff's participation in the illegality must be clearly shown [Pelle- cat V. Angell, 2 Crom. M. & R. 311); but it is not necessary, after showing the illegality, to aver that there was no other consideration for the contract (Da/vis v. Holding, 1 Mees. & W. 1.50)". A plea by defendant in an action upon a note, which alleges in istatutory language that a part of the consideration for the note was items ol charges for goods, wares, and merchandise sold the defendant by plain- tiffs on Sunday, and that the sale was not made for the advancement of religion, or in the execution or for the performance of some work of charity, or in case of necessity, is sufficient, although it does not e\ pressiy allege that the sales were in violation of law. Wadsvjorth v-. Dunnam, 117 Ala. 661, 23 So. 699. But a declaration alleging that a city unlawfully revoked a retailer's license and forced him to sell his stock of liquors at great loss and dam- age is insufficient without showing wherein the revocation was illegal, and how it was done. Whaley v. Columbus, 89 Ga. 781, 15 S. E. 694. A petition declaring on a private nuisance need not expressly eharacteri/r the acts complained of as unlawful or wrongful, but it is sufficient to al- lege substantive facts which the law holds unlawful or wrongful. Thomas v. Concordia Cannery Co. 68 Mo. App. 350. An allegation that a foreign building and loan association was doing busi- ness in the state without compliance with the law, and that mortgages in question were executed to it or to a trustee for its benefit, sufficiently charges that the business was illegal, although it does not state that the corporation had a domicil or an office or agency for business in the state. Myers Mfg. Go. v. Wetzel (Tenn. Oh. App.) 35 S. W. 896. An allegation that plaintiff has not fully paid for stock which he holds does not show that such stock is illegal, as it may have been diily issued without being fully paid, and no assessment or call for further payment been made thereon. Holt v. Holt Electric Storage Co. 79 Fed. 597. An answer alleging simply that the bond sued on "was given in payment of usurious interest by a contract for the payment of the same," with- out alleging facts sufficient to enable the court to see that such contract was illegal, is insufficient. Anglo-American Land, Mortg. & Agency Co. V. Brahman, 33 Neb. 409, 50 N. W. 271. Defendant in an action to recover a gross amount as taxes, interest, penal- ties, and assessments on a city lot, in averring that a portion of such taxes and assessments are illegal, must set forth what part and how much of the amount sued for is illegal, and the ground of illegality. Hunter v. Austin, 9 Ohio C. 0. 583. An allegation in a. suit in Oklahoma to restrain the collection of taxes, that no levy of the territorial taxes was made by the county commisaiion- ers, is insufficient to show the illegality of the tax, in the absence of VII. FOE INSUFFICIENCY ; PARTIOULAE ALLEGATIONS. 533- any averment of failure of the territorial board of equalization and auditor to perform their duties, as the commissioners are required to act only in case of such failure. Sharpe v. Engle, 2 Okla. 624, 39 Pao. 384. Rehearing Denied in 3 Okla. 10, 41 Pac. 346. 'Fadrcloth v. De Leon, 81 Ga. 158, 7 S. E. 640. 313. 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 v. Hinman, 1 Bosw. 207, Affirming 14 How. Pr. 84 ; 1 Ohitty, PI. 16th Am. ed. 509 (Sunday law; Citing Peate v. Dioken, 1 Cromp. M. & E. 422, 427). 314. Foreign law. A pleading stating a transaction which, according to our law, is illegal, is demurrable, notrnthstanding an allegation that it was au- thorized by the law of another state where the transaction in part oc- curred, unless the facts showing that the transaction was such as to be governed by the law of such other state are also alleged.* 'In Thatcher v. Morris, 11 N. Y. 437 (action for lottery prize drawn in Maryland, by the law of which the lottery was authorized), the court, per Allen, J., says: "The courts cannot, in the absence of an averment to that effect, for the purpose of upholding a contract conceded to be immoral and declared to be illegal, presume that it was made in some other state or covintry in which such contracts are still tolerated. Nei- ther is it a matter of defense, to be alleged by the defendant, that ,ifc 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 §§ 295, 296, supra. 315. Question left in doubt. If, discarding mere conclusions of the pleader, all the facts alleged as eonstitutiiig illegality are consistent with laAvfulness, a demurrer should not be sustained on the ground of illegality.* ■ This appears to be the principle which controls. See the following eases, where, however, the principle is not directly discussed: Donovan v. Oompagnie Generate Transatlantique, 7 Jones & S. 519. The defendant should be held to dear and positive averments. In an action against a carrier for nondelivery of a certain case of goods, where the answer alleged that plaintiff delivered baggage and merchandise to the carrier at the time alleged, with the intention of its being smuggled. 634: BEIKF ON PiEAUINGS DEMUBREK. and that on arrival she did smuggle it, the averment was held defective in that it did not allege that the particular case in question wa« shipped \vith such intent. Motion to striki' out. Van Vorst, J., said: "In pleading defenses of this character, to avoid liability, the defendant should be held to clear and positive averments, and should leave no room for doubt that he means to charge distinctly that," etc. Donovan V. Compagnie Generale 7'ransatlantique, 7 Jones & S. 519. Standonl Oil Co. v. HcojUtd, 16 Abb. N. C. 372, holding that a contract sued on will not, upon demurrer, be deemed void as in unlawful re- straint of trade, and therefore contrary to public policy, if capable of ;i construction coiLsistent 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. Inability. 316. Mere conclusion. A mere general allegation of inability, without anything to indicate the kind or nature thereof, is insufficient.-'^ 'Chitty, PI. 16th Am. ed. 335 (Citing Goppin v. nurnard, 2 Saund. 129. 132, to the efiCect that a declaration stating that arbitrators could not make their award, without slioAving the special cause which prevented them, was insufficient ) . An allegation that owing to sickness defendant was in no condition to execute a legal note is bad. Templclon v. Sharp, 10 Ky. L. Rep. 499, S. W. 507, 696. Indbp,tej)]n'kss. 317. "Indel)ted," or "due," as a conclusion. .i\n alleg-ation that a person is or was "indebted," even though add- ing, "for moneys received," etc., or "for services," etc., describing the ground of indebtedness, is a mere conclusion, and insufficient on de- murrer,* unless details of time, place, request, etc., are given sufficient to amount to a substantial allegation of facts showing liability.^ 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 appears t subject the note to rules of accommodation paper." A statutory requirement that the consideration for the indorsement and delivery of negotiable paper be averred need not be com- plied with, where the action is not upon an assignment of a promis- sory note.® ' Bowley v. National Bank of Deposit, 63 Hun, 550, 18 N. Y. Supp. 545. ' Eichner v. Bowery Bank, 20 Misc. 90, 45 N. Y. Supp. 68. " Youngs v. Perry, 42 App. Div. 247, 59 N. Y. Supp. 19. A complaint which alleges that, in pursuance of an agreement by the de- fendant corporation that it would execute its note with a specified in- dorser, it executed and delivered its promissory note, which is set forth in full, with the words "indorsed, Charles E. Monell," — sufficiently avers such indorsement. Moore v. Charles E. Monell Co. 27 Misc. 235, 58 N. Y. Supp. 430. ^Bartlett v. Leathers, 84 Me. 241, 24 Atl. 842. '' Litllctoum Sav. Inst. v. Werkheiser, 5 Northampton Co. Rep. 218. 'M. Y. Monarch Go. v. First Nat. Bank, 105 Ky. 336, 49 S. W. 32. Infaiits. 319. Support, — necessaries. A statement in an action against a father for the support and main- tenance of his infant child is insuiiicient where it fails to aver any express contract, and contains no allegation of the reasonable value of the services furnished.' VII. FOB INSnFFICIENCY ; PARTICULAK ALLEGATIONS. 537 An averment tliat goods furnished a minor were necessaries is not a conclusion, but a statement of fact.* An infant suing to recover the penalty prescribed for the denial of the full and equal enjoyment of the accommodations of an inn need not aver that the meals and lodgings applied for were necessaries.* ' McLaughlin v. McLaughlin, 159 Pa. 489, 28 Atl. 302. melton V. Katzemtein (Tex. Civ. App.) 49 S. W. 173. » Fruchey v. Eagleson, 15 Ind. App. 88, 43 N. E. 146. Ikjunctiojs. 320. Intent or threats. 322. Suflficiency of averments. 321. Irreparable injury. 320. Intent or threats. A bill for an injunction to restrain the doing of a certain act is bad on demurrer, in the absence of any allegation that defendants are pre- paring, intending, or threatening to do the act sought to be enjoined.^ ^ Wilson V. Bondurant, 142 111. 645, 32 N. E. 498. An action by a taxpayer to restrain public officers from issuing a permit to ix, company to excavate, erect poles, or string wires in a public park, cannot be maintained, in the absence of an allegation, or any state- ment from which it can be inferred, that the defendants have granted, threatened, or intended to grant any permission, license, or franchise to do the acts complained of. Sheehy v. McMillan, 26 App. Div. 140, 49 N. Y. Supp. 1088. A bill to restrain the collection of a portion of an assessment for the bene- fits arising from the opening of a street, on the ground that such assess- ment has been superseded by a subequent assessment, is insufficient where it does not allege that the defendant threatens to collect, or is proceeding to collect, the same. Clarh v. Worcester, 167 Mass. 81, 44 N. E. 1082. 321. Irreparable injury. An allegation of irreparable injury, without stating the facts on v.'hich it is based, is not sufficient for an injunction.^ 1 Mead v. Stirling, 62 Conn. 586, 23 L. R. A. 227, 27 Atl. 591 ; Birmingham Traction Co. v. Southern Bell Teleph. <6' Teleg. Go. 119 Ala. 144, 24 So. 731; Burrus v. Columbus, 105 Ga. 42^ 31 S. E. 124; Brass v. Bathhone, 153 N. Y. 435, 47 N. E. 905, Affirming 8 App. Div. 78, 40 N. Y. Supp. 466; Wood v. Pleasant Ridge, 12 Ohio C. C. 177; Colhy v. Spokane, 12 Wash. 690, 42 Pac. 112; Farland v. Wood, 35 W. Va. 458, 14 S. E. 140. A complaint in an action for an injunction, wliioh avers that the defendant. 638 BKIEF ON PLEADINGS DEMUKJtEK. by its acts, "has caused and does cause to this plaintiff continuous and daily damage," is insufficient for failure to show irreparable damage or injury. California Snv. Co. v. Union Transp. Co. 122 Cal. 641, 55 Pac. 591. The averment in a complaint to enjoin the enforcement of a void tax, that if the treasurer is permitted to collect the tax, "it vcill work a great and irreparable injury to the plaintiff," is a mere conclusion of tlie pleader, and not an allegation of fact. Insurance Co. of N. A. v. Bonner. 24 Colo. 220, 49 Pac. .366. An allegation of irreparable injury to financial credit, without stating tliat plaintiff has any credit, or needs any credit, or is engaged in any occu- pation in connection with which credit would be convenient, is insulK- cient. Mea,d v. Stirling, 62 Conn. 586, 23 L. R. A. 227, 27 Atl. 591. A general averment of irreparable injury in a petition in an action to en- join threatened injury upon real property is insufficient in the absence of an averment of facts from which the court can see that such an injury will result if an injunction is not granted. Schuster v. Myers. 148 Mo. 422, 50 S. W. 103. A bill by an abutting owner to restrain the construction of an electric rail- road over a public highway, alleging that the building or conducting of such railroad, the necessary grading and excavations, and the setting of poles in the sidewalks on the side of the road, owned by him, will work "irreparable injury'' to him, — does not sihow with sufficient defi- niteness that plaintiff will suffer such special injury as will entitle him to an injunction. Borden v. Atlantic EigJilands, R. B. & L. B. Electric B. Co. (N. J. Eq.) 33 Atl. 276. A complaint in an action to restrain the prosecution of an action on .n promissory note, on the ground that plaintiff will suffer irreparable in- jury, because of the inability of the original holder to respond to a judgment for damages alleged to have been sustained by his failure to comply mth the contract out of which the note arose, — is insufficient, unless it alleges the insolvency of the original holder. Old Staten Island Dying Estahlishincnt v. Skinner Engi/ne Co. 75 Hud, 116, 2fl N. Y. Supp. 1100. A bill for an injunction by a party alleging a good legal title, to restrain a trespass in removing timber from his land, must charge that irreparable damage will result if the injunction is denied, setting forth the facts constituting such injury, or allege that defendant is insolvent. Gollin-f V. Sutton, 94 Va. 127, 26 S. E. 415. The averment of a bill to enjoin the collection of a tax of $93 upon a boat valued at $2,500, that irreparable damage will ensue to the complainant, cannot be treated as the averment of an actual fact. Linehan R. Transfer Co. v. Pendergrass, 16 C. C. A. 585, 36 U. S. App. 48, 70 Fed. 1. A bill to enjoin the destruction of tea found not to equal the statutory standard does not show that there will be an irreparable injury, by allegations that the defendant threatens to destroy the tea and will de- stroy it unless restrained, and that such injury will be irreparable, and VII. FOE INSUI'l'IClEXCY ; PAETICULAK ALLEGATIONS. 539 not susceptible to peeuniiiry compensation, and will destroy the import- ing business in which complainants are engaged. Sang Lung v. Jack- son, 85 Fed. 502. A sufficient averment of irremediable injury to warrant an injunction against infringement of a patent is made by stating that, unless en- joined, the defendant will continue to infringe the patent, causing great and irremediable loss to the plaintiflf. Wyckoff v. Wagner Type- writer Co. 88 Fed. 515, A complaint in an action for an injunction need not allege that plaintiff will suffer irreparable injury if the relief by injunction is not granted, but it is sufficient, under Ind. Rev. Stat. 1894, § 1162, to allege that plaintiff will suffer great injury. Xenia Real Estate Co. v. Macy, 147 Ind. 568, 47 N. E. 147. 322. SufBciency of averments. A petition for an injunction is bad on demurrer where, admitting all the allegations therein to be true, it shows that plaintiff had a com- plete and adequate remedy at law for the injury sustained.^ A general demurrer to a bill to enjoin the expenditure of public funds will be overruled where the bill states a case for an injunction in any particular.^ Complainant in an action to enjoin the enforcement of a tax, so fai as it is illegal, must state the facts showing what is legal and what is void; and the mere allegation that he has paid all taxes legally as- sessed is not sufiicdent.^ A complaint in an action to enjoin the enforcement of a judgment rendered by a court of general jurisdiction is demurrable, unless the facts stated therein are sufllcient to overcome the presumption of ilie validity of the judgment."* A bill to enjoin a levy on property in wliich the execution debtor has an equity should state the nature of the equity, so that the court can determine v.rhether or not he would be injured by a sale thereof.^ ^Planet Property d Financial Co. v. 8t. Louis, 0. H. & C. R. Co. 115 Mo. 613, 22 S. W. 616. 'Ecroyd v. Goggeshall, 21 R. I. 1, 41 Atl. 260. ' Insurance Go. of N. A. v. Bonner, 24 Colo. 220, 49 Pac. 366. A petition by a taxpayer to restrain the collection of taxes made excessive by an illegal exemption must show the amount in which such taxes have so been made excessive, or allege other facts or amounts from which such excess may be arrived at by mathematical computation. Altgelt V. San Antonio, 81 Tex. 436, 13 L. R. A. 383, 17 S. W. 75. * Davis V. Clements, 148 Ind. 605, 47 N. E. 1056. A petition for an injunction against the enforcement of an execution upon 540 BKIEF ON PLEADINGS BEMUKBEE. a judgment, which wholly omits to charge fraud in the procurement of the judgment sought to be enjoined, is insufEcient, although it shows an irregularity in such procurement. Davis v. Wade, 58 Mo. App. 641. Allegations that a judgment was rendered without jurisdiction of the sub- ject-matter or person of defendant, that no sufficient ground for publi- cation was shown, and that the affidavit stated no ground for attach- mieut, — are mere legal conclusions, and not sufficient to require the en- joining of the judgment. Gum-Elastic Roofing Go. v. Mexico Pub. Co. 140 Ind. 158, 30 L. R. A. 700, 39 N. E. 443. ' Duris V. Beall, 21 Tex. Oiv. App. 183, 50 S. W. 1086. So, a complaint states no cause for enjoining a sale of a valuable painting, under an execution, where it merely alleges that there is no market for such property at the place where it was seized, and that to sell it there, under execution, would be a great and unnecessary sacrifice, and that the only market in the country for such property, known to the com- plainant, is New York city. Nashville Trust Go. v. Weaver, 102 Tenn. 66, 50 S. W. 763. Insanity. See also lNABii,iTy, § 310, supra. 323. General allegation. An allegation that a person "was of unsound mind, and for that cause legally incapable of making" the transaction which the pleader seeks to impeach, is, on demurrer, a sullicient allegation of the fact of mental incapacity.^ ^Itiggs V. American Tract Soc. 84 N. Y. 330, Reversing on another point 7 Abb. N. C. 433. For other cases, see Moore v. Francis, 20 N. Y. S. R. 641, 3 N. Y. Supp. 162; Valeniine v. hunt, 115 N. Y. 496, 22 N. E. 209, Rinnrsing 51 Hun, 544 ! Re Kohler, 79 Cal. 313, 21 Pac. 7.38; Byrd v. Nunn, 25 Week. Rep. 749; Re Oharky, 57 Cal. 274. Insolvency. 324. Insolvency a fact, but not al- 326. Sufficiency of averments. ways enough. 327. Fraudulent conveyances. 325. Necessity of averment. 328. Appointment of receiver. 324. Insolvency a fact, but not always enough. That a person or corporation ^\as "insolvent" is an allegation of fact' AVhere it is necessary to show that it was useless to endeavor VII. FOK INSDPFICIENCY ; PARTICUI.AE AU.EGATIONS. 541 to collect from him, it must also be showai that he had no property out ■of which the demand, or part thereof, could be collected.^ ^ Broion v. Carhonaie Bank, 34 Fed. 776 (creditor's suit. Held that evi- dence of insolvency need not be alleged ) . ' Smythe v. Scott, 106 Ind. 245, 6 N. E. 145 (action against indorser). In Thorp v. Munro, 47 Hun, 246, an allegation of the insolvency of the executor, and that he had expended the personal assets of the estate, was held admitted by demurrer; so that no accounting was necessary to charge a legacy on the real estate. 325. Necessity of averment. Plaintiff in an action in equity to compel contribution by solvent cosureties must allege the insolvency of the principal debtor.^ And a complaint in an action based on defendant's fraudulently inducing a purchaser of goods from the plaintiff not to pay for them must allege the insolvency of the purchaser, or in some way negative plain- tiff's ability to collect the purchase price from him by legal process.^ But the complaint in an action to enforce a vendor's lien need not aver the insolvency of the vendee.'^ jSior, in a suit by one who had rendered services to a county clerk as a copyist, to restrain the county treasurer from paying the amount due to the county clerk, is it neces- sary to allege the latter's insolvency.* An allegation of insolvency is not necessary in an action to have a mortgage giving a preference to one creditor, executed simultaneous- ly with an assignment for the benefit of creditors, declared void, and a sale of the mortgaged property enjoined.^ ^Fischer v. GaitJier, 32 Or. 161, 51 Pac. 736 (Citing Gross v. Da/iyis, 87 Tenn. 226, 11 S. W. 92; Morrison v. Poyntz, 7 Dana, 307, 32 Am. Dee. 92). ' Boos V. Brown, 15 Ind. App. 459, 44 N. E. 325. = Stevens v. Flannagcm, 131 Ind. 122, 30 N. E. 898. * Crosly V. Bastedo, 57 Neb. 15, 77 N. W. 364. "Peed V. Elliott, 134 Ind. 536, 34 N. E. 319. So, in a bill by creditors to subject property alleged to have been pur- chased in the name of a third person with the money of the debtor, it is not necessary to aver that the debtor is insolvent, under Ala. Code, § 818. Rice v. Eiseman Bros. & Co. 122 Ala. 343, 25 So. 214. 326. Sufficiency of averments. An allegation that, at a speoiiied time, a certain person was, and ever since has been, indebted in large sums, unable to pay his debts, and insolvent, is a sufficient averment of insolvency at such time.' 542 BEIEF OJf PLEADINGS- — JDEMbRBEK. An averment that the drawer of a sight draft remained in repu- table credit, and continued to do business up to and including a speci- fied date, is sufficient to -warrant the conclusion that he was solvent and able to pay the draft up to such date.^ An averment that the defendant corporation's only property is ita leasehold interest in a certain building, and that such interest is mort- gaged for an amoujit greatly in excess of its value, is a sufficient alle- gation of insolvency.* A plea which simply sets up an adjudication of insolvency is insuffi- cient under a statute by which the discharge, and not the adjudication, in insolvency, effects the discharge of a debtor from provable debts.* ^Fitzgerald v. Neustadt, 91 Cal. 600, 27 Pac. 936. ' Citizens Nat. Bank v. Third Nat. Bank, 19 Ind. App. 69, 49 N. E. 171. " Chicago Exhibition Co. v. Illinois State Bd. of Agri. 77 111. App. 339. But an averment in a complaint in an action to enforce a debt due by a. corporation againist stockholder,s who have not paid their subscriptions, of the recovery of a judgment and the return of an execution nulla bona by the slieriil of a county other than that in which the defendant ha* his residence and his property is located, — does not sufficiently allege the insolvency of the corporation. Salt Lake Eardxca/re Co. v. Tintio Mill. Co. 13 Utah, 423, 45 Pac. 200. * White V. McGaugheij, 20 R. I. 1, 36 Atl. 840. 327. Fraudulent conveyances. The averment in a complaint in an action to set aside a conveyance as fraudulent, that at the time of the conveyance the grantor did not have property subject to execution sufficient to pay the sheriff's judg- ment, is equivalent to an averment that he was insolvent at that time.' But a bill to set aside a fraudulent conveyance as a cloud on title in favor of an execution creditor need not allege that by reason of the fraudulent conveyance the debtor rendered himself insolvent" ' Vansickle v. Shenk, 150 Ind. 413, 50 N. E. 381. ' I'HUips V. Kesterson, 154 111. 572, 39 N. E. 599. And a. bill by a judgment creditor to set aside as fraudulent a conveyance of land made by one of the debtors, and subject the same to the lien of the judgment, need not aver the insolvency of the other debtor, who had no interest in the land. Quimn v. People, 45 111. App. 547. 328. Appointment of receiver. A bill for the appointment of a receiver for an insolvent corpora- tion, which simply alleges that the corporation has become insolvent VII. FOB INStTJfFICIENCY; PABTICUtAE ALI.EGATIONS. 543 and suspended its business for want of suflicient fimds, without alleg- ing tlie facts and circumstances showing its insolvency, is fatally de- fective.^ A complaint for the dissolution of an insolvent partnership and the appointment of a receiver sufficiently alleges insolvency for the pur- pose of giving a temporary receiver appointed therein an equitable lien upon the assets for the benefit of creditors, where it shows an in- ability to pay debts as they mature, and prays for a dissolution, and the appointment of a receiver to settle the affairs of the firm, includ- ing the payment of just debts.^ An allegation in lie complaint in an action for the appointment of a receiver, that executions obtained on firm debts against a part- ner who assumed their payment have been returned nulla bona, is a sufficient averment of his insolvency.^ But it need not be alleged in an action between partners, where the appointment of a receiver is prayed for, that the defendant partner, or one to whom he has transferred assets left with him for the pay- ment of partnership debts, is insolvent.* ^Atlantic Trust Co. v. Consolidated Electric Storage Co. 49 N. J. Eq. 402, 23 Atl. 934. ' Myers v. Myers, 18 Misc. 663, 43 N. Y. Supp. 737. 'Allen V. Cooley, 53 S. C. 414, 31 S. E. 634. 'Ibid. Insukanoe. 329. Accident insurance. 333. Occupancy. 330. Insurable interest. 334. Ownership; value. 331. Performance of acts or conditions. 335. Proof of loss, — waiver. 332. Duration of policy. 329. Accident insurance. A complaint which states the existence of the disability, in the lan- guage of the policy, is sufficient.^ A declaration upon a policy insuring against all direct loss or dam- age, except the losses caused directly or indirectly by fire or lightning, by any accident to or by the engines, boilers, elevators, etc., on the premises, is demuiTable when it fails to state that the loss was not caused directly or indirectly by fire.^ A petition in an actioit upon a policy of accident insurance, restrict- ing the liability of the company to death or injury from external, vio- 544 BKIEF ON PLEADINGS— DEMUKREE. lent, and accidental means, should allege that the injuries from which the death resulted were ineuired through such means.* The plaintiff need not negative prohibited acts or exceptions which constitute matter of defense.* A petition in an action on a policy of life and accident insurance is sufEcient where it avers the issuance of a policy for a valuable consid- eration, the relation of the plaintiff to the assured, the death of the assured bj- accident not excepted in the policy, that proofs of death were duly furnished in accordance with the requirements of the pol- icy, and that plaintiff has duly and legally performed all the condi- tions of the policy on her part.^ ■ McElfresh v. Odd Fellous Acci. Co. 21 Irad. App. 557, .52 X. E. 819. ' Western Refrigerator Co. v. American Casualty Ins. & Security Co. 51 Fed. 155. " Tfester v. Fidelity & C. Co. 69 Mo. App. 186. 'Fidelity & C. Go. v. Weise, 80 111. App. 499, holding that the declaration in an action on an accident insurance policy providing that in case of injuries inflicted upon the deceased, or received by him while insane, the company s.hall be liable only for the amount of premium paid, need not allege that the insured was sane when he received the injury which caused his death, or that he did not commit suicide. A petition in an action on an accident insurance policy, alleging that the insured, at a specified time and place, received, while eating his sup- per at a, restaurant, injuries caused by a cyclone, from which he died on the same day, suificiently states the circumstances of his death, and is not defective in failing to state the occupation in which the insured was engaged at the time of his death. Standard Life & Acci. Ins. Co. V. Koen, 11 Tex. Civ. App. 273, 33 S. W. 133. But the petition in an action on an accident policy, providing that if the insured is killed in any occupation classed as more hazardous than that recited in the application the beneficiary should be entitled only to the amounts named in the division so classed as more hazardous, must, where plaintiff sues for the full amount, allege that the insured was not killed in a, more hazardous occupation tlian that in whicli he \va> classed. American Acci. Co. v. Carson, 99 Ky. 441, 34 L. R. A. 301, 30 S. W. 169. 'Howe V. Pacific Mui. L. Ins. Co.' 7b Iviu. App. 63. 330. Insmable interest. It is essential to a declaration upon an insui-ance policy that it allege an insurable interest in the plaintiff at the time the policy was issued, and also at the time of loss.^ Where an insurance company contracts with the person whose life is insured to pay the sum insured to another pereon it is not necessary VII. FOR INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 545 for the latter in an action brought by him upon tlie policy to show that he had an insurable interest in the life insured.^ » Dickerman v. Vermont Mut. F. Ins. Co. 07 Vt. 99, 30 Atl. 808 ; Harness v. National F. Ins. Go. 62 Mo. App. 245 (Citing Fowler v. New York In- demnity Ins. Co. 26 N. Y. 422; Ilardwick v. State Ins. Co. 20 Or. 547, 26 Pae. 840; Lane v. Maine Mut. F. Ins. Co. 12 Me. 44, 28 Am. Dec. 150; Commercial Union Assur. Co. v. Dunbar, 7 Tex. Civ. App. 418, 20 S. W. 628). But a declaration in an action on an insurance policy, ■which sets out a good and sufficient cause of action, is not demurrable, even though it fails to allege that plaintiff has an insurable interest in the property, since the defect could only be reached by special demurrer, which has been abolished. Mutual F. Ins. Co. v. Ward, 95 Va. 231, 28 S. E. 209. A petition in an action on a fire insurance policy, alleging that defendant insured plaintiff against loss by fire, "on h'is stock of goods and fix- tures kept in his store," does not sufficiently allege that plaintiff had an insura;ble interest in the property covered by the policy when the policy was issued, or at the time the policy was issued and delivered. Clevinger v. Northwestern Nat. Ins. Co. 71 Mo. App. 73. A petition in an action on a fire insurance policy, alleging that after the insurance was obtained the insured executed a, mortgage on the premises to a specified association to secure the sum of dollars, and, with the consent of the insurance company, assigned and transferred the policy to such association, is insufficient to show that suoh association had any definite interest in the insured property. Alamo F. Ins. Co. y. Davis (Tex. Civ. App.) 45 S. W. 604. A petition by "O. M. Moore" on an insurance policy payable to "M. O. Moore, mortgagee" is insufficient to show plaintiff's interest in the pol- icy, in the absence of any allegation that her name was incorrectly stated in the policy, or that plaintiff' and "M. O. Moore" are one and the same person, or that it has been assigned to plaintiff. Farmers' <& M. Ins. Co. V. Moore, 48 Neb. 713, 67 N. W. 764. A complaint in an action on an insurance policy by the owner of the in- sured property and one to Whom the assignee of a, mortgage thereon, to whom the loss is made payable "as interest may appear," has assigned his interest, alleging that the loss was payable to such assignee, and the assignment of the latter's interest, is not insufficient because it does not specially allege that there is any mortgage on the property, or the extent and character of the assignee's interest, as, if the latter has none, the entire amount is payable to the owner. Ermentrout v. Amer- ican F. I7is. Co. 60 Minn. 418, 62 N. W. 543. An insurable interest is shown, in a complaint upon a fire insurance policy, where the policy speaks of plaintiffs' interest in the building as that of contractors, and alleges that the amount of their insurable interest and the damage to the building was greater than the sum for which judg- ment is demanded, and that they were obliged to restore the damaged building. Sullivan v. Spring Garden Ins. Co. 34 App. Div. 128, 54 N. Abb. Pi. Vol. I.— 35. 546 BRIEF ON PLEADINGS DEMUEEEE. Y. Supp. 629 {Distinguishing Freeman v. Fulton F. Ins. Co. 38 Barb. 247). An insurable interest in plaintiff in an action upon a policy of insurance U averred by a petition alleging that the policy was made payable to him as his interest might appear, and that he had a lien on the property to secure an indebtedness due him by the persons to whom the policy was issued, which existed at the time of the fire. Sun Mut. Ins. Co. t. Tufts, 20 Tex. ttv. App. 147, 50 S. W. 180. 'Prudential Ins. Co. v. Hunn, 21 Ind. App. 525, 52 N. E. 772. 331. Performance of acts or conditions. Plaintiff in an action upon an insurance policy is required to plead performance only of such aflirmative acts as are necessary to perfect his right of action, and need not aver compliance with conditions pro- viding that the policy shall become void or inoperative, or the insurer be relieved from liability, upon the happening of some event, in the doing or omission of some act.^ The complaint need not set forth conditions and agreements collat- eral to defendant's undertaking and plaintiff's right to recover.^ An averment in a declaration on a policy of insurance, that the plaintiff hasi performed all the conditions and things necessary to be perfonned on his part to entitle him to recover on the contract, in- cludes assent to an agreement to pay assessments in addition to the cash premium which is made a part of the consideration for the policy and a condition of it,^ but does not sufficiently allege that he has had an appraisal or n.n award, where this is required by the policy.* ' Moodp V. Amazon Ins. Co. 52 Ohio St. 12, 26 L. R. A. 313, 38 N. E. 1011 ( directed a verdict ) . A declaration on an endowment certificate need not allege payment of all assessments, and compliance with all the laws governing the order, al- though such payment and compliance are required by the certificate as a condition to its remaining in force. Supreme Lodge, K. of P. v. Uo- Letman, 69 111. App. 599. A complaint in an action upon a Minnesota standard policy of fire insur- ance need not negative loss from excepted causes. Schrepfer v. Bock- ford Ins. Co. 77 Minn. 291, 79 N. W. 1005. A declaration on a Lloyds policy need not aver that the liability of the de- fendants has not been discharged or exhausted, under a condition limit- ing the amount of their liability, as that is a condition subsequent for their protection, to be set up by way of defense. Enterprise Lumber Co. V. Mundy, 62 N. J. L. 16, 55 L. R. A. 193, 42 Atl. 1063 (CSting Whipple v. United F. Ins. Co. 20 R. I. 260, 38 Atl. 498 ; Lounshury v. Protection Ins. Co. 8 Conn. 459, 21 Am. Dec 686; Den ex dem. Green v. Steelman, 10 N. J. L. 193). VII. FOE INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 547 A declaration on an insurance policy, providing that if the building or any part thereof fall, except as the result of fire, the insurance shall imme- diately cease, need not aver that neither the building insured, nor any part thereof, fell, except as the result of fire. London & L. F. Ins. Go. V. Crunk, 91 Tenn. 376, 23 S. W. 140. 'Farrell v. American Employers' Liability Ins. Co. 68 Vt. 136, 34 Atl. 478. » Whipple V. United F. Ins. Co. 20 K. I. 260, 38 Atl. 498. * Mosness v. German- American In^. Co. 50 Minn. 341, 52 N. W. 932. 332. Duration of policy. An allegation that an inanrance policy was in full force and effect at tlie time of the loss is indispensable in an action thereon.-' ^Johnson v. Home Ins. Co. 3 Wyo. 140, 6 Pac. 729. A petition w'hich fails to state, in an action upon a fire insurance policy, that the defendant undertook to insure for a definite period, whereby it fails to appear vphether the insurance covered the date of the loss, is fatally defective. Shaver v. Mercantile Town Mut. Ins. Co. 79 Mo. App. 420. But a complaint in an action on a, policy of fire insurance alleging that, in consideration of a payment by plaintiiT to defendant of a designated premium, defendant, by his authorized agent, made its written policy of insurance, whereby it insured plaintiff against loss or damage by fire in a designated amount; that the plaintiff had an insurable interest in the property; and that on a designated day two and a half months after the issuance of the policy the insured property was totally destroyed by fire, — states a cause of action, although it does not allege the duration of the policy, or that the loss occurred during its life, as the fair mean- ing of the complaint is that its duration was for an indeterminate and unfixed period of time. Hartford F. Ins. Co. v. Kahn, 4 Wyo. 364, 34 Pac. 895. 333. Occupancy. An allegation in a complaint in an action upon a fire insurance- policy, that the plaintiff, in all respects, complied with its conditions and stipulations, sufficiently avers that the property, at the time of the loss, Avas occupied as provided for in the policy, without a special allegation to that effect.* ^Insurance Co. of N. A. v. Coomis, 19 Ind. App. 331, 49 N. E. 471. So, a declaration upon a contract of insurance, which provides that the property was insured "while occupied as a private dwelling-house by n, tenant," is sufiicient if it argumentatively appears therefrom that the house was occupied at the time of the loss as it was at the time the policy was issued. Davis v. New England F. Ins. Co. 70 Vt. 217, 39 Atl. 1095. An answer in an action upon an insurance policy issued since the passage 548 BRIEF ON PLEADINGS ^DEMUEEEE. of Ohio act March 5, 1879, alleging the breach of a condition that the insurer shall not be liable where the building is vacant without consent of the company, indorsed on the policy, is insiiffieient unless it is also averred that the risk was thereby increased. Moody v. Amazon Ins. Co. 52 Ohio St. 12, 26 L. E. A. 313, 38 N. E. 1011. 334. Ownership; value. An action on a iire insurance policy is fatally defective, where it fails to allege plaintiff's ownership^ either at the date of the policy or at the time of the fire, and which also fails to allege the value^ of the property insured and lost. ' Davis V. Phwnix Ins. Co. 1 Mo. App. Repr. 248. A petition in an action on an insurance policy, which fails to allege owner- ship of the goods in plaintiff at the time the policy was issued or at the time of the fire, is insufficient. Scott v. Phcenix Ins. Co. 65 Mo. App. 75. A petition in an action on an insurance policy, which fails to allege plain- tiff's ownership of the insured property at the time of the fire, is de- murrable. German Ins. Co. v. Bverett (Tex. Civ. App.) 36 S. W. 125. * Davis V. Phcenix Ins. Co. 1 Mo. App. Repr. 248 ; Green v. Lancashire Ins. Co. 69 Mo. App. 429; Wright v. Bankers' & M. Town Mut. F. Ins. Co. 73 Mo. App. 365; Trash v. Gernuin Ins. Co. 53 Mo. App. 625; Ramsey v. Philadelphia Underwriters Asso. 71 Mo. App. 380. The complaint in an action on an insurance policy by which the company agrees to pay the actual cash value of the property at the time any loss or damage occurs should allege the actual cash value of the property destroyed, instead of alleging that plaintiff sustained loss in a sum much greater than the amount stated in the policy. Lancashire Ins. Co. V. Monroe, 101 Ky. 12, 39 S. W. 434. A petition in an action on a policy of insurance must allege the value of the property destroyed; and an averment that the plaintiff had an in- terest in the property insured to an amount exceeding the amount of insurance is not sufficient. Sappington v. St. Joseph Mut. F. Ins. Go. 72 Mo. App. 74. A petition xipon a policy of insurance, averring that the insurance was to the amount of $750 upon plaintiff's dwelling-house and $250 upon the contents therein, and alleging the loss to have been upon the dwelling- house and furniture, but not stating what the contents of such dwelling- house were, and showing that $750 have been paid, — is wholly insuffi- cient where it fails to state the value of the property destroyed, in ex- press terms or by necessary inferences, although it avers the loss was total, since the personal property destroyed is not identified with that insured, and the insurance upon the dwelling-house is shown to have been paid. Summers v. Home Ins. Co. 53 Mo. App. 521. VII. FOE INSUFFICIENCY ; PAETICULAE ALI-EGATIONS. 549 335. Proof of loss, — waiver. A complaint on a fire policy, whioh merely states that notice of the fire was given to the insurer, without showing proof of loss, is bad on demurrer. -"^ An averment that plaintiff did not furnish defendant proper and sufficient proofs of loss, as required by the policy of insurance, is bad, as stating a conclusion of law.^ The allegation of facts in a complaint in an action on an insurance policy, sufficient to establish, if proved, a waiver by the company of the conditions of the policy as to the furnishing of proofs of loss, is sufficient to give the plaintift' the benefit of such waiver, when sucli facts are established, even though the facts of the waiver be not specifi- cally pleaded.^ » Emigh v. State Ins. Go. 3 Wash. 122, 27 Pae. 106.3. -Moore v. Susquehanna Mut. F. Ins. Co. 196 Pa. .30, 46 Atl. 266 (the facta should be set out) . ' Stephenson v. Bankers Life Asso. 108 Iowa, 637, 79 N. W. 459. Waiver of the filing of proofs of loss within the time stipulated in an in- surance policy is sufficiently pleaded by averments that defendant waived the filing within the time pleaded, and prevented the plaintiff from complying with the stipulation. United Firemen's Ins. Go. v. Kukral 7 Ohio C. C. 356. Intent. See also Fbatjd, §§ 298-301, supra; Malicious Prosecution, § 368, infra. 336. General allegation. An allegation of intent in an act past is an allegation of fact, ad- mitted by demurrer.^ 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 de- murrer.* An allegation in a petition, that defendants intended to do certain unlawful acts, is insuflicient where the facts in regard thereto are not alleged.^ ^ Piatt V. Mead, 9 Fed. 91 (intent to defraud creditors by a conveyance). In a replevin suit to recover goods boug'ht by fraud, an allegation of false representations to a mercantile agency, with the intent to obtain credit and induce merchants and others to sell, is a sufficient allegation of in- tent to deceive plaintiff. Morrison v. Lewis, 17 Jones & S. 178. 550 BRIEF ON PLEADINGS DEMUBEEE. An allegation that specific acts of directors of a corporation were done with the intent to defraud is not bad as a statement of a conclusion. Kittel V. Augusta, T. & G. R. Co. 65 Fed. 859. * Dillon V. Barnard, 21 Wall. 430, 22 L. ed. 673; Taylor v. Holmes, U Fed. 498, 509. An allegation that defendant concealed facts from the plaintiff with intent to deceive and defraud is insufficient unless there was some legal duty resting upon the defendant to make the disclosure. Wood v. Amory, 105 N. Y. 278, 11 N. E. 636. A statement of facts tending to show a fraudulent intent is not equivalent to an allegation of such intent. McKibhin v. Ellingson, 58 Minn. 205, 59 N. W. 1003. 'Hall V. Bartleti, 9 Barb. 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 Hew York, 0. & W. B. Co. v. Davenport, 65 How. Pr. 484, hold- ing sufficient an allegation in a complaint to remove a cloud by an as- sessment sale, that the comptroller did not intend to cancel the sale, but intended to give a deed. An allegation that a city proposed to use city property "precisely as if the city were a private corporation" is not admitted by demurrer. Stonn V. Oconomowoc, 71 Wis. 155, 36 N. W. 829. And. see Pekdiction, chapter IV., § 7, ante; Intent, § 301, supra. ' Alter V. Cincinnati, 7 Ohio Dec. 368. Judgments. 337. -General allegation enough. 344. Statutory short allegation, — "duly 338. — as to court of sister state. given or made." 339. Special jurisdiction in sister state. 345. — judgment, etc., of court of 340. United States court practice, — in United States or of sister state. court of first instance. 346. Action on judgment. 341. — on error or appeal. 347. Suit to set aside or modify judg- 342. Allegation of remaining in force. meut. 343. Jurisdiction of original cause of 348. Res judicata, action. 337. General allegation enough. In pleading a judgment of a court of general Jurisdiction,* or of a court of local jurisdiction created by a pubUc statute of which the court entertaining the present action is bound to take judicial noticej^* 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.* But general averments that a judgment was an irregular and void Vll. ^FOE INSUFFICIENCY ; PAETIGULAE ALLEGATIONS. 551 judgment," or was irregular and without any jurisdiction or author- ity," or that it was procured by fraud, misrepresentation, and contrary to law,'^ or that no proper, legal, or sufficient judgment was entered,* — are averments of legal conclusions merely. ^Mastersonv. Matthews, 60 Ala. 260; Eansford v. Van Auken, 79 Ind. 157; Burnes v. Simpson, 9 Kan. 658 ; Holmes v. Campbell, 12 Minn. 221, G-il. 141. This was not necessary at common law. See Butcher v. Bank of Browns- ville, 2 Kan. 70, 83 Am. Dec. 446 (Citing 2 Chitty, PI. p. 414, N. C. ; Comyns' Digest title Pleader, 2 W., 12, and E., 18). The Code has not changed this as to judgments of courts of general jurisdiction. ' Spaulding v. Baldwin, 31 Ind. 376. " Biddle v. Wilkins, 1 Pet. 686, 692, 7 L. ed. 315, 318. It is sufficient, in declaring on a judgment of a court of general jurisdic- tion, to allege generally its rendition, instead of setting out the whole proceeding. Bank of California v. Cowan, 61 Fed. 871. But a plaintiff who intends to rely on a judgment, as evidence of the fact that he has lost his title to the land in controversy, should allege that the suit was brought in a court of competent jurisdiction, and that a judgment has been rendered against him. Puckett v. Waco Abstract £ Invest. Co. 16 Tex. Civ. App. 329, 40 S. W. 812. 'Rheinhart v. State, 14 Kan. 318. 'Ritchie v. McMullen, 159 U. S. 235, 40 L. ed. 133, 16 Sup. Ct. Eep. 171. A general allegation that a judgment was informal, irregular, and void, without specification of any fact to show its invalidity, on the part of a person attacking a title resting in part upon such judgment, is a mere conclusion of law, and not a statement of fact. Naddo v. Bardon, 2 C. C. A. 335, 4 U. S. App. 642, 51 Fed. 493. 'Ritchie v. McMullen, 159 U. S. 235, 40 L. ed. 133, 16 Sup. Ct. Rep. 171. ' Thomas v. Markmann, 43 Neb. 823, 62 N. W. 206. ' Doherty v. Galveston, 19 Tex. Civ. App. 708, 48 S. W. 804. 338. — 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.-' An allegation in a plea, that the court did not have jurisdiction of a defendant sued in one state on a judgment of a court of another state, is a mere conclusion of law.^ In pleading a foreign judgment a full copy of the record must be given.^ But a note on which a foreign judgment has been taken need not be incorporated in a statement of claim upon such judgment.* ISTor need 552 BBIEF ON PI>EADINGS DEMUKBEE. a declaration to enforce the liability of a stockholder upon a foreign judgment against the corporation set out the cause of action upon which the judgment was recovered." Nor need there he an express averment that the court rendered the judgment at term time or when it was in session.® ^Brackman v. Taussig, 7 Colo. 561, 5 Pac. 152; Butcher v. Bank of Browns- ville, 2 Kan. 70, 83 Am. Dee. 446; Rogers v. Odell, 39 N. H. 4.52; Reid V. Boyd, 13 Tex. 241, 65 Am. Dec. 61; Jarvis v. Robinson, 21 Wis. 523, 94 Am. Deo. 560; Tenney v. Townsend, 9 Blatchf. 274, Fed. Cas. No. 13,832; Paine v. Schenectady Ins. Go. 12 R. I. 440. The court will take judicial notice that the circuit court of a sister state is a court of general jurisdiction. Specklemeyer v. Dailey, 23 Neb. 101, 36 N. W. 356. And see Mink v. Shaffer, 124 Pa. 280, 16 Atl. 805 (state- ment in assumpsit, under the Pennsylvania act of 1887, based on an Iowa judgment). Contra, Ashley v. Laird, 14 Ind. 222, 77 Am. Dec. 67; Gehhard v. Ga/i'nier, 12 Bush, 321, 23 Am. Rep. 721; Earns v. Eunkle, 2 Minn. 313, Gil. 268; Smith v. MulUken, 2 Minn. 319, Gil. 273. A demurrer to a statement of claim upon a Canadian judgment, on the ground that the judgment was obtained without service on the de- fendants and without appearance by them, cannot be sustained where the statement expressly asserts that the court which rendered the judg- ment was one of record, duly constituted and of general jurisdiction, and had jurisdiction not only of the subject-matter, but also of tue par- ties to the action; and that the defendant, whose executor is defend- ant in the suit upon such judgment, was then a, resident and subject of the Dominion of Canada and. the Empire of Great Britain. Ouseley v. Lehigh Valley Trust d S. D. Co. 84 Fed. 602. A complaint in an action on a foreign judgment, alleging the recovery of a judgment in a court of another state, that the state court was a court of general jurisdiction, and the personal service of process, is sufficient under N. Y. Code Civ. Proc. § 481, requiring a complaint to set forth a plain and concise statement of facts without unnecessary repetition. Crane v. Crane, 46 N. Y. S. R. 569, 19 N. Y. Supp. 691. See also cases under Foreign Law, § 296, supra. ' This is true, although there is a further allegation that there was no ser- vice of summons in the action in which the judgment sued on was ren- dered. Sammis v. Wightman, 31 Fla. 10, 12 So. 526. ' Sevison v. Blumenlhal, 9 Kulp, 392; Dimmick v. Wyoming Mfg. Co. 2 Lack. Legal News, 171. * First Nat. Bank v. Croshy, 179 Pa. 63, 36 Atl. 155. ' McVickar v. Jones, 70 Fed. 754; Orund v. Tucker, 5 Kan. 70; Bawkins v. Glenn, 131 U. S. 319, 33 L. ed. 184, 9 Sup. Ct. Rep. 739; Glenn v. Liggett, 135 U. S. 533, 34 L. ed. 264, 10 Sup. Ot. Rep. 867 ; Re Warren, 52 Mich. 557, 561, 18 N. W. 356; Henderson v. Tunigren, 9 Utah, 432, 35 Pac. 495 ; Milliken v. Whitehouse, 49 Me. 527 ; Powell v. Oregonian U. Go. 3 L. R. A. 201, 13 Sawy. 543, 38 Fed. 187; Frost v. St. Paul Bkg. VII. — FOB insufficiency; paeticulab allegations. 553 £ Invest. Co. 57 Minn. 325, 59 N. W. 308 ; Slee v. Bloom, 20 Johns. 669 ; Donworih v. Coolhaugh, 5 Iowa, 300; Wilson v. Pittsburgh & Y. Goal Co. 43 Pa. 424. 'Thurmond v. Bank of State of Georgia (Tex. Civ. App.) 27 S. W. 317 (these facts will be presumed). 339. Special jurisdiction in sister state. In pleading the judgment of a court of special and limited juris- Vtisconsin v. Pelican Ins. Co. 127 U. S. 265, 32 L. ed. 239, 8 Sup. Ct. Rep. 1370, holding that the nature of a cause of action is not changed by re- covering judgment upon it; and a court to which a judgment is pre- sented for enforcement may ascertain whether the claim is really one that the court is authorized to enforce. And see Beits v. Bagley, 12 Pick. 572, 579 (Shaw, Ch. J.) ; Clark v. Row- ling, 3 N. Y. 216, 53 Am. Dec. 290. VII. ^FOE INSUFFICIENCY ; PAKTICULAR ALLEGATIONS. 555 344. Statutory short allegation, — "duly given or made." The provision of statutes in many of the states to the effect that "in pleading a judgment, or other determination of a conrt or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction,^ but the judgment or determination may be stated to have been duly given or made," — applies to the order of a board of public ofiicers,^ as well as to judicial decisions. The use of the exact words "duly given or made" is not essential. It is enough if the allegation is substantially equivalent.* But the word "duly" or its equivalent is essential.* But if the pleader, without availing himself of that provision, un- dertakes to state the facts giving jurisdiction, etc., he must allege them fully.' In the absence of such a statute, it is necessary to allege the com- mencement or pendency of the action in the court named, specifying the amount or character of the claim upon which it was brought, and that judgment was duly given thereon.** [See the statutes noted at end of the notes to this section.] ■A complaint by an assignee in insolvency, alleging appointment duly made, need not allege notice to creditors, nor that plaintiff was compe- tent. Bull V. Houghton, 65 Cal. 422, 4 Pac. 329. In Collins v. Trotter, 81 Mo. 275 (appointment of guardian for deaf-mute), an allegation of notice to a ward was held not necessary. Allegations of facts showing the jurisdiction of the justice of the peace over the person of the defendant are not essential to pleadings setting up the recovery of a judgment before him, authorizing the taking possession of land. Musick v. Kaiiaas City, 8. & M. R. Go. 124 Mo. 544, 28 S. W. 72. But a complaint in an action on a justice's judgment is insufficient where it does not contain any allegation s.howing that the justice had any jurisdiction over defendant, or that the judgment was "duly given or made,'' as authorized by Burns's Rev. Stat. (Ind.) 1894, § 372. Chicago & 8. E. R. Co. V. Higgins, 150 Ind. 329, 50 N. E. 32 ; Shochney v. Smiley, 13 Ind. App. 181, 41 N. E. 348. And a complaint to recover on a justice's judgment is fatally defective where it does not all^e that the judgment was "duly given,'' as pro- vided by N. Y. Code Civ. Proc. § 532, or state facts showing that the justice acquired jurisdiction of the person and subject-matter. Tuttlc V. RoUnson, 91 Hun, 187, 36 N. Y. Supp. 346. In an action brought upon a judgment rendered by a justice of the peace, an allegation in the complaint "that judgment was duly rendered" does not state a cause of action, but the facts conferring jurisdiction must be set out. Origg v. Reed, 26 Misc. 298, 56 N. Y. Supp. 1093. The necessity, in pleading a judgment of the justice's court, of alleging the 556 BRIEF ON PLEADINGS DBMUEKEE. facts conferring jurisdiction of the subject-matter upon the court, is not obviated by the provision of Hill's Anno. Laws (Or.) § 86, that in pleading a judgment of a court of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment may be stated to have been duly given or made. Williis v. Walter, 32 Or. 411, 52 I'ac. 24. The provisions of Cal. Code Civ. Proc. § 456, relating to the manner of pleading judgments, do not apply to causes litigated and decided in courts of general jurisdiction. Clark v. Nordholt, 121 Cal. 26, 53 Pac. 400. A complaint upon a delivery bond given to retain possession of property levied on must show a valid judgment in favor of each plaintiff. An allegation simply that plaintiil' recovered judgment, without stating the court, or when, is in-infiicient, although Ind. Rev. Stat, 1881, § 369, provides that in pleading judgments in courts of inferior jurisdiction, it shall be sufficient to allege that the judgment was duly given or made. Midland B. Co. v. Mler, 7 Ind. App. 216, 33 N. B. 265. Jurisdictional facts need not be stated in pleading a judgment of a court of special jurisdiction, it being sufficient to state that the judgment was duly rendered. Fisher v. Kelly, 30 Or. 1, 46 Pac. 146. An allegation in the complaint in an action to set aside certain fraudulent conveyances, that the plaintiff, on a, specified day, recovered a judgment in proceedings against the defendant, in which it was adjudged that de- fendant pay the plaintiff a specified amount; and that on the day named "said judgment was duly docketed by the clerk of said municipal court," ■which is not denied by the answer, — sufficiently states that such judg- ment had been given or made. Pierstoff v. Jorges, 86 Wis. 128, 56 N. W. 735. 'Robinson, v. Jones, 71 Mo. 582 {order of a, township board opening a road ) . In some states the statute expressly mentions boards. •An allegation of an appointment of commissioners by a judgment "duly made by and entered in" a specified court is sufficient. Lee v. Terbell, 33 Fed. 850. In an action to quiet title an allegation that "divers proceedings and de- crees in the matter of the said estate were duly given and made in the probate court of said county, through and under which said proceedings and decrees this plaintiff became the purchaser," is sufficient. Beans V. Emcmuelli, 36 Cal. 117. It is error to sustain a demurrer to an allegation that " the will has been duly probated." Tlie statute makes "duly" enough. Riddell v. Uarrell, 71 Cal. 254, 12 Pac. 67. So, an allegation that judgment was had "in due course of procedure" is admitted, if not denied. Lazariis v. Freidheim, 51 Ark. 371, 11 S. W. 518. In Young v. Wright, 52 Cal. 407, an allegation that "a judgment had been duly rendered," was held, doubtingly, not sufficient, because not a strict compliance. But a, decision the other way would be more satisfactory. VII. FOK INSUFFICIENCY J PAKTICULAE ALLEGATIONS. 557 A judgment of a court of general jurisdiction is sufficiently pleaded by an allegation that plaintiff "recovered" it against defendant, without alleg- ing jurisdictional facts, Cal. Code Oiv. Proc. § 456, providing that a judgment may be pleaded by alleging that it was duly given or made, having reference only to judgments of courts of limited jurisdiction. Weller v. Dickinson, 93 Cal. 108, 28 Pac. 854. A complaint in supplementary proceedings, alleging that, on a specified date, judgment was recovered in the principal action and was duly en- tered, is sufficient without alleg'ing that it was duly given. High v. Bank of Commerce, 95 Cal. 386, 30 Pac. 556. 15ut an averment in a complaint in an action on a judgment, that the "court adjudged that the defendant should pay to plaintiff" a given sum, is an insufficient averment of the judgment. Edwards v. Hellinys, 99 Cal. 214, 33 Pac. 799. An allegation that a foreign judgment was "duly adjudged" is sufficient to show jurisdiction and notice to the defendant, and the fact that a hear- ing or trial was had. Fisher v. Fielding, 67 Conn. 91, 32 L. R. A. 236, 34 At]. 714. An allegation that the bond sued on was duly filed and approved of by, etc., is sufficient. Slate v. Hufford, 23 Iowa, 579. An averment in a petition, that a judgment for the sale of land was "obtained," to show how the claimant derived title, is a substantial compliance with Ky. Oiv. Code, § 122, providing that it shall be suffi- cient to state that the judgment or determination was duly "given or made." Arnold v. Stephens, 13 Ky. L. Rep. 622, 17 S. W. 859. In an action by a mortgagor to recover an alleged surplus arising on a mortgage by advertisement, it was held by analogy to Minn. Comp. Stat. 542, § 81, that allegations that the premises were sold at public auction to the highest bidder, agreeably to the provisions of the statute in such cases made and provided, and pursuant to the power of sale in said mortgage deed contained, were sufficient. Judgment therefore re- versed. Bailey v. Merriit, 7 Minn. 159, Oil. 102. In pleading a judgment the statutory form that it was "duly given or made" need not be used, if equivalent words are used. The word "duly" when used does not refer to the regularity of the judgment, or its free- dom from error, for that cannot be collaterally called in question, but it is equivalent to an allegation of facts showing jurisdiction. An alle- gation that the judgment was rendered in an action pending is to the same effect, and is sufficient. Scanlan v. Murphy, 51 Minn. 536, 53 N. W. 799. A petition sufficiently avers that a judgment was duly rendered as required by Mo. Rev. Stat. 1889, § 2079, where that fact may be fairly inferred from the statements made. State ex rel. Dillard v. Johnson, 78 Mo. App. 569. * An allegation that an order was "made in pursuance of the statute" is suf- ficient. Kennagh v. McGolgan, 21 N. Y. S. R. 326, 4 N. Y. Supp. 230. See also Willis v. Havemeyer, 5 Duer, 447. 558. BEIEF ON PLEADINGS DEMUKKEE. An allegation that proceedings were had before a justice of the peace, which were "terminated by a judgment being duly rendered," and that a horse was seized by an execution issued thereupon, is equivalent to an allegation that the judgment was "duly made or given." Roysi v. Liull, 9 Wis. 324. An allegation that "an order was made" is not sufficient. Los Angeles V. Melius, 59 Cal. 444; Hunt v. Butcher, 13 How. Pr. 538 (judgment "was entered," not enough ) . Contra, Warfield v. Gardner, 79 Ky. 583 (allegation that plaintiffs "were, by an order of the Hardin county court, appointed administrators," held sufficient, because the law presumes that it was duly made). An averment that a judgment was rendered by a court of general jurisdic- tion is sufficient, and it is unnecessary to further allege that the judg- ment was duly rendered, as provided by Ky. Oiv. Code Prac. § 122, since it is presumed that the judgments of such courts are duly rendered. Terry v. Johnson, 22 Ky. L. Rep. 1210, 60 S. W. 300. ' In a suit for conversion an answer alleging that under and by virtue of a certain writ of attachment issued by a justice of the peace and di- rected to the defendant as constable, he attached the property, is insuffi- cient to admit evidence, for the statute should be strictly construed. Keys V. Grannis, 3 Nev. 548. An allegation in a complaint, that plaintiff "is the duly qualified and acting executrix," etc., is not sufficient, under the ijtatute, and a demurrer thereto should not be overruled. Judah v. Fredericks, 57 Cal. 389. Sae Hopper v. Lucas, 86 Ind. 43, holding that the pleader must either allege all the necessary facts, or that the judgment was duly given or made. Judgment therefore reversed. 'Page v. Smith, 13 Or. 410, 10 Pac. 833; Beach v. King, 17 Wend. 197. Such statutes exist in the following states. In all except Arkansas, Iowa, Kansas, Kentucky, and Mississippi the statute provides that if the allegation be controverted, the party pleading must establish at the trial the facts conferring jurisdiction. Arizona — Rev. Stat. (1901), § 1282. In pleading a judgment or other de- termination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted the party pleading shall be bound to establish in the trial the facts conferring jurisdiction. The following states have statutes the same, or substantially the same, as the provision of the Arizona statute: Colorado— MUls's Anno. Code (1896), § 65. Indiana — Horner's Anno. Stat. (1901), § 309. Minnesota— Sia.t. (1894), § 5249. Missouri — Rev. Stat. (1899), § 634. Nebraska — Anno. Comp. Stat. (1897), § 5718. Nevada — Anno. Comp. Laws (1861 — 1900), § 3154. Vn. FOK INSUFlflCIENCY ; PAETICaLAE ALLEGATIONS. 559 yetc York — Stover's Anno. Code Civ. Proc. (1902), § 532. North Carolina — Code Civ. Proc. (1900), § 262. North Dakota— Rev. Codes (1899), § 2585. Ohio— Bates's Anno. Stat. (1787—1902), § 5090. Oregon — Hill's Anno. Laws (1892), § 86. South Carolina — Code Civ. Proc. § 182; Gen. Stat. (1882). South Dakota — ^Arnio. Stat. (1901), § 6132. Utah— Rev. Stat. (1898), § 2990. Wisconsin — Sanborn & Berryman Anno. Stat. (1898), § 2673. Wyoming — Rev. Stat. (1899), § 3564. Arkansas — Sandels & Hill's Stat. (1894), § 5756. (Same as Arizona ex- cept that the last sentence reads as follovys: "If such allegation is made in a complaint and is not controverted in the answer, or made in the answer in relation to a counterclaim or set-off and is not contro- verted in the reply, it need not be proved on the trial.") California — Code Civ. Proc. (1901), § 456. In pleading a judgment or other determination of a court, officer, or board, it is not necessary to state the facts conferring jurisdiction, but such judgment or determi- nation may be stated to have been duly given or made. If such allega- tion be controverted, the party pleading must establish on the trial the facts conferring jurisdiction. Idaho — ^Anno. Code Civ. Proc. (1901), § 3227. Same as California. Iowa — ^Anno. Code (1897), § 3625. (Same as first sentence of the Arizona statute. ) Kansas — Gen. Stat. (1901), § 4555. (Same as Arizona except that the last sentence reads: "and the juris'diction of any such court or officer shall be presumed until the contrary appears.") Kentucky — Codes (1899), § 122 (148). (Same as first sentence of Arizona statute. ) Mississippi — Anno. Code (1892), § 712. (Same as Arizona except that the last sentence reads: "and the facts conferring jurisdiction shall be shown at the trial.") Montana — Anno. Code Civ. Proc. (1895), § 745. Same as California. 345. — judgment, etc., of court of United States or of sister state. The short foiin allowed by the Codes, of alleging judgments and determinations of courts and ofHcers of special and limited jurisdic- tion to be alleged as "duly given or made," is applicable to alleging a judgment or other determination of a court or officer of the United States, when pleaded in a state court.^ It is the better opinion that it is also applicable to judgments and other determinations of courts or oiiicers of sister states.^ ^Laidley v. Cummings, 83 Ky. 606 (judgment reversed for error in holding 560 BEIEF ON PLEADINGS DEMURllEK. contrary) ; Gutting v. Massa, 15 N. Y. S. R. 316, holding that the rule applies to judgment, etc., of the United States bankruptcy court. See also § 279, supra. As to What Law Governs in the United States Courts, see chapter m., ante. ' Eronberg v. Elder, 18 Kan. 150, and cases cited. See conflicting cases under § 339, note 2, supra: Gebhard v. Oarnier, 12 Bush, 321, 23 Am. Rep. 721; Cutting v. Massa, 15 N. Y. S. R. 316 {dictum) . The same mode of pleading might be sustained independently of the stat- ute, under the doctrine that foreign law may be pleaded according to legal eilect. 346. Action on judgment. A complaint upon a judgment need not state that no appeal has been taken therefrom, nor that plaintiff was authorized by order of court to institute the action ;^ nor need it allege that the judgment was founded upon a valid and subsisting debt.^ But it should state that plaintiff is the owner of the judgment and that it is unsatisfied.* The answer in an action on a personal judgment attacked by de- fendant on the ground that he was not served and did not appear need not state a defense of the cause of action on which the judgment is founded.* ' Bronzan v. Drolaz, 93 Cal. 647, 29 Pac. 254, ' Tatum V. Rosenthal, 95 Cal. 129, 30 Pac. 136 (a creditor's bill against an insolvent corporation to compel certain stockholders to account and pay in the unpaid portion of their subscription, and based on a valid and subsisting judgment wholly unsatisfied ) . 'Ryan v. Spieth, 18 Mont. 45, 44 Pac. 403 (complaint seeking to have ap- plied on a judgment, assets of the debtor's estate which the adminis- tratrix is alleged to have embezzled). * Kingslorough v. Tousley, 56 Ohio St. 450, 47 N. E. 541 (Citing Ridgeway V. Bank of Tennessee, 11 Humph. 523; McNeill v. Edie, 24 Kan. 108; Borden v. Fitch, 15 Johns. 140, 8 Am. Dee. 225; Bigelow v. Stearns, 19 Johns. 40, 10 Am. Dec. 189; Buchanan v. Rucloer, 9 East, 192). 347. Suit to set aside or modify judgment. Fraud must be distinctly alleged and charged, to warrant the im- peaching of a foreign judgment because procured by fraud.' A petition setting out in detail the facts alleged as constituting a fraud^ by which a judgment was procured, and sliowing that the fraud was in fact successfully practised, with a prayer that the judg- VII. FOE INSUFFICIENCY ; PAKTICULAE ALLEGATIONS. 561 ment be vacated and set aside, is good as against a general demurrer.* A Wank in the day of the month on -which a judgment was ren- dered will not make a complaint to set aside the judgment demurra- ble.* ^Ritchie V. McMvllen, 159 U. S. 235, 40 L. ed. 133, 16 Sup. Ct. Rep. 171. ' Fraud in procuring a, decree is not sufficiently averred by a complaint in a suit to modify it, alleging that it was procured "for the purpose of cheating and defrauding these plaintiffs," that the defendants rep- resented to the judge that it was drawn in accordance with the stipu- lation, that it was prepared and iiled without the Imowledge of plain- tiffs, and never submitted to them, and that it was not entered for some months and no step was taken to enforce it until more than six months, in the absence of any allegation that the representation was made with intent to deceive, or that it was in fact false, or that the knowledge of its rendition was intentionally withheld from plaintiff, or that there was any guilty purpose in withholding its enforcement. Reller v. Dyerville Mfg. Co. 116 Cal. 127, 47 Pae. 1016. A petition in an action to set aside a decree, alleging that it was taken for the payment a second time of the judgment for which the decree was obtained, after it had been once satisfied of record, sufficiently charges "fraud" to authorize its vacation, under Iowa Code, § 3154. Oliver v. Riley, 92 Iowa, 23, 60 N. W. 180. A complaint to set aside a ju<3gment of foreclosure of a mortgage as re- formed, alleging only that the plaintiff therein was not the owner, and thereby practised a fraud, and that the statement by him as to a mis- take in the mortgage was false, but not showing any improper practice, false testimony, or other improper thing resorted to, to induce the judgment of the court, — ^is insufficient. Brovm, v. 8t. John, 1 Toledo Legal News, 470. 'Howensiine v. Sioeet, 13 Ohio C. C. 239. *Durre v. Brown, 7 Ind. App. 127, 34 N. E. 577. 348. Res judicata. See also Fobmek Recoveky, § 297, supra. One retying upon a former adjudication must aver in Avhat court the judgment was rendered, but need not allege when it was ren- dered;^ and must also aver tlie facts showing that the recovery was upon the same subject-matter," and between the same parties or their privies,* and that the judgment is in full force.* A plea of res judicata must show that the judgment pleaded was on the merits.^ ^Thomas v. Thomas, 33 Neb. 373, 50 N. W. 170 (sufficiency to support judgment) . Abb. Pl. Vol. I.— 36. 562 BEIEF OSr PLEADINGS DEMUEREE. But a plea is not invalidated by a failure to allege when a judgment set up as a former adjudication was rendered. The remedy is by motion to make more definite and certain. liid. A plea of a former adjudication "long before the beginning of the suit" is sufficient. Kenney v. Howard, 67 Vt. 375, 31 Atl. 850. A pleading which sets up the fact that a judgment was rendered is sufS- cient without setting up any legal conclusions from that fact. Bracken V. Atlantic Trust Co. 36 App. Div. 67, 55 N. Y. Supp. 506. 'Tliomas v. Thomas, 33 Neb. 373, 50 N. W. 170 (sufficiency to support judgment). A plea of res judicata need not set forth in detail that the facts alleged in the complaint in the former action are the same as those set forth in the complaint in the pending action, but a general averment to the effect that the facts in the two actions are identical is sufficient. WUtcoml V. Hardy, 68 Minn. 265, 71 N. W. 263. But the averment in a plea of res judicata, that the former case was an action of ejectment between the same parties "to recover the same land claimed in the declaration in this case," is not the equivalent of the averment contained in the form of the plea of res judicata, as pro- vided by Md. Code, art. 75, § 23, subsec. 54, "that said judgment was rendered on the same cause of action mentioned in the plaintiff's dec- laration." Brooke v. Gregg, 89 Md. 234, 43 Atl. 38. Nor is a plea that certain of the issues raised in a pending action were raised in a former one sufficient as a plea of res judicata, if it does not state what the issues were which determined u, right or contention put in issue in the pending action. Bain v. Wells, 107 Ala. 562, 19 So. 774. 'Thomas v. Thomas, 33 Neb. 373, 50 N. W. 170. An answer setting up a judgment in another court upon identical ques- tions, on identical fa«ts, and between identical parties, is good as a plea of former ajudication. Eckert v. Binhlcy, 134 Ind. 614, 33 N. E. 619, 34 N. E. 441. But a plea of res judicata will be rejected as uncertain which does not allege, except inferentially, identity of parties or suibject-matter, and Which fails to aver a. final judgment, give its purport, or vouch for its record. Altizer v. Buskirk, 44 W. Va. 256, 28 S. E. 789. And an allegation by a ditch company seeking to enjoin another company from appropriating the waters of " natural stream, that plaintiff com- pany acquired the right to use the water under a certain decree, is bad as being a, mere conclusion of law, where it does not allege that de- fendant company was a party to the prior proceeding, and does not show by what means defendant is precluded from using the water, by virtue of such decree. Farmers Independent Ditch Go. v. Agricultural Ditch Go. 3 Colo. App. 255, 32 Pac. 722. • Thomas v. Thomas, 33 Neb. 373, 50 N. W. 170. But an allegation in a plea of former judgment, that it still remains in force, and not reversed, satisfied, or made void, is unnecessary. Kenney VII. FOE INSUFFICIENCY ; PAKTICULAK ALLEGATIONS. 563 V. Howard, 67 Vt. 375, 31 Atl. 850. (If the judgment is not in full force the other party may show it by replication.) In an action in trespass a plea filed by the defendant that the plaintiflF had theretofore recovered a judgment against a cotrespasser for the same cause of action is sufficient, without averring that the judgment has been satisfied. Petticolaa v. Richmond, 95 Va. 456, 28 S. E. 560 {Citing Wilkes V. Jackson, 2 Hen. & M. 355; Ammonett v. Harris, 1 Hen. & M. 488; Brinsmead v. Harrison, L. R. 7 C. P. 552; King v. Hoare, 13 Mees. & W. 494). " The reason is that if the action was dismissed on nonsuit, or for any other of many causes not precluding a second suit, it would be no bar. See Riley v. Jarvis, 43 W. Va. 43, 26 S. E. 366. A plea alleging that defendant was therefore impleaded before a certain justice for not performing the very same identical promises and under- takings, each and every one of them in said declaration mentioned, and that he recovered judgment in said action upon several causes of action, and for his legal costs, — sufficiently alleges that the judgment was upon the merits, and is good as a plea of former recovery for the same cause of action. Dunklee v. Qoodenough, 65 Vt. 257, 26 Atl. 988. But the defense of res judicata is not made out in an action to have the boundary line between plaintifiF and defendant established, by an an- swer alleging that the same matters were in issue in a prior suit for trespass, where it does not appear on what grounds defendant was per- mitted to recover. Cherry v. York (Tenn. Ch. App.) 47 S. W. 184. And an affidavit of defense, that the controversy has already been adjudi- cated in an equity suit, and that the bill in such suit was so proceeded in that it was by the court dismissed, is insufficient. Blood v. Grew Levick Co. 177 Pa. 606, 35 Atl. 871. A plea of res judicata in an action for divorce will not be deemed bad on the ground that the first action may have gone off on a demurrer which was filed, where the decree disposing of the main issue does not mention it, as in such case it will be deemed to have been overruled. Miller v. Miller, 92 Va. 196, 23 S. E. 232. Laches. See also Delay, § 223, supra. 349. Ground of Demurrer. Laches appearing on the face of plaintiff's pleading is available, In equity, on a demurrer for want of equity ;^ and under the new proce- dure, on a demurrer for not stating facts sufficient to constitute a cause of action.^ ^Maxwell v. Kennedy, 8 How. 221, 12 L. ed. 1055; Landsdale v. Smith, 106 U. S. 392, 27 L. ed. 219, 1 Sup. Ct. Rep. 350; TfoUe v. Turner, 69 Md. 519, 16 Atl. 124; Furlong v. Riley, 103 111. 628 (especially where the bill attempts to state an excuse, and the excuse is insufficient). 664 BRIEF ON PLEADINGS DEMUBEEE. But a bill is not subject to demurrer on the ground of ladies, where the facts claimed to make it inequitable to entertain the suit do not appear on the face of the bill. Warren v. Providence Tool Co. 19 R. I. 360, 33 Atl. 876. Tlie laches of the complainant in an action to enjoin the construction of a building, in failing to seek relief until large expense had been incurred, is available by way of demurrer to the complaint. Lemienworth v. Douglass, 59 Kan. 416, 53 Pac. 123. The objection that an equitable claim is stale is seldom, if ever, available by demurrer. Zehley v. Farmers' Loan & T. Co. 139 N. Y. 461, 34 N. E.' 1067. A defendant in a mortgage foreclosure, as to whom it is alleged only that he has some interest in or claim upon the mortgaged premises subse- quent to the lien of the mortgage, cannot demur to the complaint on the ground of laches, if he could raise the defense of limitation by answer, as the right to plead the statute is a personal privilege of which the debtor may or may not avail himself. Blair v. Silver Peak Mines, 84 Fed. 737 (Citing Waterman v. Sprague Mfg. Co. 14 R. I. 43; Stoutz V. Huger, 107 Ala. 248, 18 So. 126 ; Kennedy v. Powell, 34 Kan. 22, 7 Pac. G08; Brookville Nat. Bank v. Kimble, 76 Ind. nS). *Bell V. Hudson, 73 Cal. 285, 14 Pac. 701; Mott v. New York Security & T. Co. 29 Misc. 39, 60 N. Y. Supp. 357. Whether ignorance or impediments may be presumed on demurrer, com- pare, — affirmative: Jones v. Slauson, 33 Fed. 632; negative: Bell v. Hudson, 73 Cal. 285, 14 Pac. 791. The defense of laches may be made by demurrer. Thompson v. Whitaker Iron Co. 41 W. Va. 574, 23 S. E. 795. The question of laches may be raised by demurrer, where the pleadings de- murred to show the facts on which such defense rests. Paxton v. Pax- ton, 38 W. Va. 616, 18 S. E. 765. Lajj^dloud and Tenant. .,oO. Averment of the relation. 352. Unlawful detainer. 351. Action for rent, — use and occupa- tion. 350. Averment of the relation. The relation of landlord and tenant is sufficiently averred by an al- legation in a complaint that the plaintiff is the lessee, and entitled to the possession, of specified premises.^ ' Harris v. Halverson, 23 Wash. 779, 63 Pac. 549. The relation of tenancy is sufficiently averred by allegations of the rental of the premises, and that by virtue of the lease, one of the parties entered into possession of the premises and is still in possession of the same. Cadicallader v. Lovece, 10 Tex. Civ. App. 1, 29 S. W. 666, 917. The conventional relation of landlord and tenant between the parties to VII. FOE INSUFFICIENCY ; PAIITICUI,AE ALLEGATIONS. 565 summary proceedings under the New York Code of Civil Procedure to recover the possession of premises is sufficiently averred by allegations that the petitioner, at a certain date prior to the commencement of the proceedings, became the ov?ner of the premises by deed from certain persons; that defendant was in possession as tenant for a term ending at a date prior to the commencement of the proceedings, under an al- leged agreement of hiring with one of the grantors, and still occupies the premises; that a notice to quit was served upon him on a dabe specified, requiring hita to give up possession at the expiration of the lease; and that he held over and continued in possession without per- mission of petitioner, "said owner and landlord." Earle v. McOoldriok^ 15 Misc. 135, 36 N. Y. Supp. 803. Bo, an allegation in a petition in summary proceedings under the New York Code of Civil Procedure for the removal of a tenant, that petitioner became owner of the premises by deed from a named person, and that defendant is in possession as a tenant, under an alleged agreement with the grantor, sufficiently avers the relation of landlord and tenant be- tween plaintiff and the defendant. Gi'iffin v. Barton, 22 Misc. 228, 49 N. Y. Supp. 1021. Eut an allegation in a petition in summary proceedings by a, stranger to. the lease, that he was the landlord at the time of praying for the issu- ance of the precept, is insufficient to show the relation of landlord and tenant, in the absence of allegations of fact showing devolution of title prior to the maturity of rent. Dreyfus v. Carroll, 28 Misc. 222, 58 N.. Y. Supp. 1116. 351. Action for rent, — use and occupation. A landlord suing for rent need not allege that he was in possession' at the date of tlie lease/ nor that the lessee named in the lease per- sonally entered upon, or used and occupied, the premises.^ An averment in an answer in an action for rent, that the premises- became untenantable without any fault of the tenant, is a conclusion of law, and does not avail him.* But eviction by a third person by virtue of a title paramount is a good defense.* The relation of tenancy must be shown in an action for the use and occupation of real property.' It is sufficient to allege a lease of the premises entered upon, and possession by the lessee of portions of the premises not included in the lease, and their use by him, with a further averment as to the rea- sonable value of such use and occupation.® Eut an allegation of attornment is not necessary to enable an as- signee of rent to maintain an action against the tenant therefor.^ » Collins V. Hall, 5 Wash. 366, 31 Pac. 972. * Mayer v. Lawrence, 58 111. App. 194. • Lansing v. Thompson, 8 App. Div. 54, 40 N. Y. Supp. 425. 56G BRIEF ON PLEADINGS DEMUBEEE. 'Friend v. Oil Well Supply Co. 165 Pa. 652, 30 Atl. 1134. 'Young v. Downey, 145 Mo. 261, 46 S. W. 962 (Citing Aull Sav. Bmh v. Aull, 80 Mo. 199; Hood v. Mathis, 21 Mo. 308; Cohen v. Kyler, 27 Mo. 122; Bunion v. Powers, 38 Mo. 353; Edmonson v. Kite, 43 Mo. 176). "Thompson v. Cox, 20 Misc. 421, 45 N. Y. Supp. 1046. ^Wineman v. Hughson, 44 111. App. 22; Barnes v. Northern Trust Co. 169 111. 112, 48 N. E. 31. 352. Unlawful detainer. A complaint in unlawful detainer against a tenant holding over need not aver the evidentiarj facts showing termination of the ten- ancy.^ An allegation of unlawful and forcible detainer in the language of the statute is sufficient.^ ' Minard v. Burtis, 83 Wis. 267, 53 N. W. 509. 'Blachford v. Freneer, 44 Neb. 829. 62 N. W. 1101. Leave to Sue. S53. When must be alleged. 354. Form of allegation. See also Audit, § 106, supra. 353. When must be alleged. A complaint not alleging leave to sue is demurrable, if leave is re- quired because a statute forbids the action to be brought without leave ;■' or because the power to sue does not exist without leave, — as in the case of a receiver not authorized by statute to sue without leave f or because the cause of action is in anotlier, and leave is nec- essary to enable plaintiff to enforce it, — as in the case of a bond to the people, sued on in the name of an individual.® If leave is required merely because of the settled practice of the court, — as in the case of an injunction bond in chancery,* or in case of actions against a receiver,^ — the remedy is by motion. *8cofield V. Doscher, 72 N. Y. 491 (deficiency judgment in foreclosure); Hauselt v. Fine, 18 Abb. N. C. 142 (the same against heir). Followed in United States L. Ins. Co. v. Cage, 17 N. Y. S. R. 762, 3 N. Y. Supp. 398. Complaint in an action by a receiver of a corporation upon an obligation due the corporation must allege leave of the court or judge to bring the action, under Horner's Ind. Rev. Stat. 1896, § 1228, providing that the receiver shall have power, under control of the court or of the judge VII. FOE INSUFi-ICIENGY ; PARTICULAR ALLEGATIONS. 567 thereof in vacation, to bring and defend actions. Rhodes v. Hilligoss, 16 Ind. App. 478, 45 N. E. 666. But a complaint in an action under Mont. Code Civ. Proc. 1887, § 356, providing that the court or judge may authorize, by an order, a judg- ment creditor to institute an action against one alleged to have prop- erty, or to be indebted to the judgment debtor who claims an interest in the property adverse to such judgment debtor or who denies the debt, — need- not aver the making of such an order, as the order is not a part of the cause of action, and the want of such an order is a matter of defense. Sweeney v. Sehlessinger, 18 Mont. 326, 45 Pac. 213. •Abbott's New Practice &. Forms, 459, note 4; Freeman v. Dutcher, 15 Abb. N. C. 431; Crook County v. Bushnell, 15 Or. 169, 13 Pac. 880 (statute forbidding action on official undertaking or bond, by an indi- vidual plaintiff, unless by leave). Arnold v. Gaylord, 16 R. I. 573, 18 Atl. 177; Manlove v. Burger, 38 Ind. 211; Carver v. Kent, 70 Ind. 428; Goope v. Bowles, 42 Barb. 87, holding that .under a statute providing that no action for injuries crim- inally inflicted and causing death lies until after a complaint to a prop- er magistrate for the crime, the omission to malce complaint need not be set up by plea, but plaintiff must allege complaint made. In Farish v. Austin, 25 Hun, 430, the objection that a judgment by default was taken in an action upon a judgment, without alleging in the com- plaint leave to sue obtained, as required by N. Y. Code Proc. § 71, is not a mere irregularity which is waived by the defendant's failure to object, but the judgment so obtained fs invalid, and will be vacated on motion. Tor a similar statute now in force, see Code Civ. Proc. § 913. And see, on demurrer, Graham v. Scripture, 26 How. Pr. 501, and to the contrary. Finch v. Carpenter, 5 Abb. Pr. 225; Dean v. Eldridge, 29 How. Pr. 218; Prince v. Cujas, 7 Robt. 76. Compare People v. Blanlcman, 17 Wend. 252 (recognizance, sued under 2 Rev. Stat. 486, § 31, directing that an order of court be entered, but not forbidding action without. Allegation not necessary ) . See the distinction between a, statutory and a common-law receiver ex- plained, with the cases, in note to Weeks v. Cornwall, 19 Abb. N. C. 359. A statutory receiver, under a statute authorizing him to sue irrespective of leave of court, while he may apply for leave to protect himself from liability for costs (Re Youngs, 5 Abb. N. C. 346), and in an equity action allege it for that purpose, need not allege it in order to make out a cause of action. 4 Abbott's N. Y. Dig. 423. In Walsh, v. Byrnes, 39 Minn. 527, 40 N. W. 831, lack of allegation of authority to sue seems to have been regarded like lack of allegation of appointment, — as rendering the complaint demurrable, not for insuffi- ciency, but only for want of legal capacity to sue. A complaint filed by a receiver in his own name must directly and posi- tively aver that leave of the court to institute and prosecute the action has been obtained. Hatfield v. Cummings, 142 Ind. 350, 39 N. E. 859. 568 BRIEF ON PI^BADINGS DEMUEEEE. And in an action brouglit by a receiver to recover assessments from delin- quent stockholders, the complaint is fatally defective in the absence of an averment that the receiver had leave, or was authorized by the coTirt to institute the action. Gainey v. Gilson, 149 Ind. 58, 48 N. E. 633. But a suit by a receiver of a national bank to recover back dividends paid to the shareholders out of the capital is not one to enforce the individ- ual liability of the stockholders, in which the bill must allege that the comptroller of the currency directed the bringing of the suit. Hay- den V. Thompson, 17 C. C. A. 592, 3G U. S. App. 361, 71 Fed. 60. 'Waterman v. Dockray, 78 Me. 139, 3 Atl. 49; Bayner v. Clark, 7 Barb. 581 (nonsuit at the trial). Otherwise, where the suit is in the name of the obligee, although for the benefit of an individual. See New York v. Brett, 2 Hilt. 560. For other cases, see C'uddehack v. Kent, 5 Paige, 92; Harris v. Hardy, X Hill, 393. *Higgins v. Allen, 6 How. Pr. 30. 'Leuthold v. Young, 32 Minn. 122, 19 N. W. 652; Roxlury v. Central Vermont R. Co. 60 Vt. 121, 14 Atl. 92. Contra, Keen v. Breckmridge, 96 Ind. 69. Compare Fisher v. Andreir.s, 37 Hun. 170, holding that omission to allege a receiver's refusal to sue, and omission to allege leave to sue a re- ceiver by joining him with the one he ought to have sued, is fatal at the trial. According to some authorities, where leave is required to sue ■- receiver or other officer of a court of another jurisdiction, the want of leave is ii jurisdictional objection. Barton v. Barbour, 104 U. S. 126, 26 L. ed. 672; Disapproved in Lyman v. Central Vermont R. Co. 59 Vt. 167, 10 Atl. 346. The decision in Barton v. Barbour is an extreme one, but perhaps sound in view of the rule that a judicially appointed trustee, — such as an ex- ecutor, administrator, receiver, etc., — having his sole authority from a foreign jurisdiction, is not subject to suit here, except on a personal liability, or in respect to assets here. Contra, Smith v. Bauer, 9 Colo. 380, 12 Pac. 397, holding in an action in a state court against a United States marshal, where the allegation that the Federal court had consented to the suit was defective, that the point was not jurisdictional; and after answer, trial, and verdict, the objec- tion was too late. A bill in equity in which a receiver is made a party defendant is de- murrable, where there is no allegation that leave of court to bring the action was obtained. Steel Brick Siding Co. v. Muskegon Mach. li Foundry Co. 98 Mich. 616, 57 N. W. 817. But failure of a complaint against sureties on a bond of a receiver, to allege that leave to sue has been granted by the court, does not render the complaint subject to a general demurrer. Black v. Gentery, 119 N. C. 502, 26 S. E. 43. A bill in a Federal court against the receiver of an insolvent corporation, VII. FOE INSUFFICIENCY ; PAKTICULAE ALLEGATIONS. 56& asking for an accounting of the assets, is insufficient where there is no allegation that leave to sue the receiver has been obtained, as, if the suit is against the receiver in his individual capacity, no accounting can be had. Werner v. Murphy, 60 Fed. 769. And a bill by a stockholder to enforce a right of a corporation of which a receiver has been appointed by another court, who is vested with the management of the company's property and rights, must show leave of such court to sue the receiver, as he is an indispensable party to the bill. Swope V. Villard, 61 Fed. 4rt. So, a declaration seeking to obtain possession of land held by a receiver must aver that plaintiff obtained leave of the court in which the re- ceiver was appointed to bring the action. St. Louis, A. & 8. R. Co. v. Hamilton, 158 111. 366, 41 N. E. 777. 354. Form of allegation. An allegation showing in substance that leave has heen obtained by the plaintiff, from the proper court, to bring the action in question, i» enough if suiBcient to infonn the defendant as to the essential facts, although it be brief and informal.^ ' Dunham v. Byrnes, 36 Minn. 106, 30 N. W. 402 ; Swords v. Northern Light Oil Co. 17 Abb. >(. C. llj. Bank of Buffalo v. Boughion, 21 Wend. 57, holding that in an action upon a recognizance, which by statute can only be brought by an aggrieved party who shall be authorized by court to prosecute, a declaration alleg- ing that the bond was ordered to be delivered up to be prosecuted, with- out naming the plaintiffs or authorizing them to prosecute, is not suffi- cient on demurrer. Smith V. Bauer, 9 Colo. 380, 12 Fac. 3il7, holding that an allegation not showing that the consent covered the present suit was defective, and would have been obnoxious to motion to compel amendment; but was sufficient after verdi3t. The averment in a complaint in an action against a corporation and its receiver to foreclose a mechanic's lien, that the court granted leave to bring the action, must, in the absence of a showing in the complaint to- the contrary, be held to allege the granting of leave, which includes, the right to prosecute the suit to judgment in any form which the law warrants; and the complaint is not subject to demurrer if it shows u. right to the recovery of a judgment, although it does not state facts sufficient to show a right to a lien. Colorado Fuel & Iron Co. v. Rio Grande 8. R. Co. i! Colo. App. 493, 40 Pac. 845. But the necessary averment in a complaint in an action by a receiver of a corporation on an obligation due the corporation, that he has been given leave by the court or judge to bring the action, is not supplied by the averments of the complaint that he has been appointed as re- ceiver, and has qualified and entered upon his duties as such, "and ao- 570 BBIEF ON PLEADINGS DEMUEREE. cordingly he brings this suit." Rhodes v. nUligoss, 16' Ind. App. 478, 45 N. E. 66C. A complaint by the receiver of a building and loan association in an ac- tion to foreclose a mortgage, alleging that plaintiff was duly appointed and qualified as receiver of such association, and among other things was, by the court, duly empowered, ordered, and directed to collect, by suit, if necessary, all the claims due such association, — sufficiently alleges the receiver's authority to sue. Hatfield v. Oummings, 152 Ind. 280, f'O N. E. 817, 53 N. i^. 231. And a complaint in an action on a bond given to secure the discharge of a mechanic's lien, alleging that before the commencement of such ac- tion an order was "duly made, permitting" plaintiflfs to commence an action in thcii' own name to enforce the bond, sufficiently shows that leave of court to bring such action was obtained, as required by N. Y. Code Civ. Proc. § 814. Jtiugle v. WalHs Iron Works, 16 Misc. 167, 38 N. Y. Supp. 875. Legai.itt. 355. Necessity of averment. In an action to recover damages for the obstruction of, or injury to, jjlaintiff's business, it need not be alleged that the business is lawful.^ 'A complaint on a contract to pay damages for obstructing water used by a mill need not allege that the use of the mill is lawful, where it shows nothing to indicate that it was unlawful. Mcintosh v. Rankin, 134 Mo. 340, 35 S. W. 995. A petition against a railway company for damages to plaintiff's business as a boarding-house and bar keeper, caused by a boycott instituted by the company to prevent its employees from patronizing plaintiff, need not allege tliat plaintiff's business is lawful. International & Q. N. R. Co. V. Oreenwovd, 2 Tex. Civ. App. 70, 21 S. W. 559. Levy and Seizuee. 356. Sufficiency of averment. An allegation that a mill was wrongfully seized by a sheriff and closed sufficiently alleges a seizure by taking it into his possession.' In an action against an officer on his official bond, for unlawfully selling plaintiff's property under execution against a third person, an averment of title in plaintiff sufficiently shows that the property was nol subject to be sold on execution f and it must appear that the proper steps were taken by the owner of exempt property, so that the duty of releasing such property from the levy arose.^ An allegation in a declaration against a sheriff for a levy upon ex- empt property, that he converted and disposed of the property by his VII. — FOE insufficiency; paeticulae allegations. 571 deputy or ag«nt, sufficiently shows that the deputy holding and levy- ing the execution acted under the defendant* '^Keen v. Hunger, 52 Mo. App. 600. ^KecTc V. mate ex rel. Natinaal Cash-Reyrster Co. 12 Ind. App. 119, 39 N. E. 899. ' People V. Zingraf, 43 III. App. 337. '■Hutchinson v. Whitmore, yO Mich. 255, 51 N. W. 451. Liability. See also Indebtedness, § 317, supra. 357. A conclusion of law. An allegation that a party "became liable," or was "therefore lia- ble," if stated as the ground for the recovery sought, is a mere con- clusion of law, and cannot avail by itself ; nor even in connection with specific allegations of the facts daimed to raise the liability, unless such specific facts are in themselves sufficient to show the liability.* That an action is based on the primary liability of defendant, whereas his liability, if any, is- secondary, does not render the com- plaint demurrable, but may be interposed as a ground of defense.^ ^Jones V. Doic, 137 Mass. 119. Compare to the contrary. Clay v. Edger- ton, 19 Ohio St. 549, 2 Am. Rep. 422. A petition alleging that defendant corporation is the successor of another corporation specified, and assumed all liabilities and obligations of such corporation, and is liable for the payment of the obligation in suit, states a mere legal conclusion, and is insufficient to show the liability of defendant. Rhorer v. MiddUsboro Town S Lands Co. 103 Ky. 14C, 44 S. W. 448. And an allegation that defeudaut's intestate agreed and promised to pay plaintiff "a pre-existing debt that never was discharged" is insufficient. In such ease lite petition should allege every fact essential to a recov- ery on the original liability. Meyei- v. Zotcl, 96 Ky. 362, 29 S. W. 28. ' Buist V. MHchcrs, 44 S. C. 46, 21 S. E. 449. But an tnswer in an action for rent and taxes, admitting liability, but claiming that it is secondary to that of a codefendant, is bad on de- murrer. Thorns V. Meader, 6 Ohio N. P. 242. I.IBEL AND SlAjMDEE. 358. Words complained of must be 361. Falsity, — malice. set out. 362. Words charging a crime. 359. Meaning of words. 363. Injury to business, — special 360. Publication. damage. 358. Words complained of must be set out. A declaration in an action for slander is demurrable where it fails 572 BKIEF ON PLEADINGS DEMUKEEE. to set oiit the very words complained of.* It is not sufficient to al- lege their tenor or effect.^ This is likewise true in a complaint for libel.* A complaint f ot libel, alleging that words in a foreign language, in Avhich the libelous article was printed and therein set forth, "being translated into the English language reads as follows," followed by an alleged translation in words and figures at length, sufficiently alleges that the translation is a correct one.* ^Webster v. Bohnes, 02 N. J. L. ^ti, 40 Atl. 778 (Citing Burns v. Williams, 88 N. C. 159; Gutsole v. Mathers, 1 Mees. & W. 495; Bagley v. John- ston, 4 Rich. 1.,. 22; Harris v. Warre, L. R. 4 C. P. Div. 128; Kenyan V. Cameron, 17 R. I. 122, 20 Atl. 233; Ward v. Glarh, 2 Johns. 10, 3 Am. Dec. 383; Netoiou v. HtuUs, 3 Mod. 72; Rex v. Bear, 2 Salk, 417; Cooh V. Gox, 3 Maule & S. 110; Wood v. Brown, 6 Taunt. 169; Wright V. Clements, 3 Bam. & Aid. 503) ; McDonald v. Edwards, 20 Misc. 523, 46 N. Y. Supp. 672; O'Donnell v. Nee, 86 Fed. 96; Wiitmaier v. Krieg, 13 Pa. Co. Ct. 64. So, a, complaint in an action for slander of title, which does not allege the particular words spoken, is fatally defective. Germ Proof Filter Co. v. Pasteur Ghamberland Filter Co. 81 Hun, 49, 30 N. Y. Supp. 584. The slanderous words causing an injury need not be set out in a declara- tion alleijing a conspiracy to destroy plaintiff's business by false and malicious statements concerning his character, since it cannot be treated as an action for slander. Va« Iforn v. Van Horn, 56 N. J. L. 318, 28 Atl. 609. But a declaration in all action for making false and malicious statements to p1aintifl".s employer, thereby inducing her to discharge plaintiff, should set out the false and malicious statements according to their tenor, or according to tlieir substance and effect. May v. Wood, 172 Mass. 11, 51 N. E. 191 (Citing Payn.e v. Beuwmorris, 1 Lev. 248; Rum- sey y. Webb, Car. & M. 104; Hartley v. Herring, 8 T. R. 130; Derry v. Hundley, l(i L. T. N". S. 263; Corcoran v. Corcoran, 7 Ir. C. L. Rep. 272 Lynch v. Knight, H. L. Cas. ,577; Hutchins v. Hutchins, 7 Hill, 104 Pollard V. Lyon, 91 U. S. 225, 23 L. ed. 308 ; Rice v. Albee, 164 Mass. 88, 41 N. E. 122; Morasse v. Brochu, 151 Mass. 567, 8 L. R. A. 524, 25 N. E. 74; Beats v. Thompson, 149 Mass. 405, 21 N. E. 959; Elmer v. Fessenden, 151 MatiS. 359, 5 L. R. A. 724, 22 N. E. 635, 24 N. E. 208; Lee V. Kane, 6 Uray, 495). 'Schubert V. Richter, 92 Wis. 199, 66 N. W. 107 ; Smail v. Fisher, 2 Ind. App. 420, 28 N. E. 714. 'Baitersby v. Collier, 34 App. Div. 347, 54 N. Y. Supp. 363. A complaint in an action for libel, which does not set out any part of the alleged libelous article, but only plaintiff's construction of such article and application of the same to himself, is bad. Battersby v. Collier, 24 App. Div. 89, 48 N. Y. Supp. 970. Pl.iintiff in an action for libel is not bound to set out the whole publica- ^^^- ^OK INSUFriCIENCT ; PAETICtTLAK ALLEGATIONS. 573 tion, but only such pai-t oi it as he relies on. Hopkins v. Tanner, 27 Chicago 'Legal Kewb, 181. ♦Dr. Shoop Family Medicine Co. v. ^Vemich, 95 Wis. 164, 70 X. \V. 160. 359. Meaning of words. An innuendo is necessary to point to an injurious intent or mean- ing in the use of equivocal or apparently innocent words, in making a charge of slander or libel. ^ But an innuendo cannot serve to give the words uttered a totally different meaning from their ordinary sig- nification,^ unless corrected with proper introductory averments.* Where words are not actionable in themselves, to warrant a recov- ery for slander plaintiff must allege that they were meant to convey a sense in which they were actionable, and were so understood by the hearers or bystandei-s.* A declaration in hwc verba in libel is sufficient where the article is libelous on its face ; but the effort to explain or enlarge the mean- ing by innuendo does not render the pleading defective. It may be treated as surplusage.^ A demurrer to an entire count of a complaint in an action for libel, on the gTound that the words are not actionable, must be overniled if any of the words are actionable." ^Hemmens v. Nekon, 13S N. Y. 517, 20 L. R. A. 440, 34 X. E. 342 (directed verdict). An innuendo in a complaint in an action for slander should show that ■words not actionable per se, and capable of conveying an innocent mean- ing, were uudeistood in the same slanderous sense as that in which they are alleged to have been spoken. Cosand v. Lee, 11 Ind. App. 511, 38 "n. E. 1099. Defining alleged libelous terms in a paraphrastic way, and pointing out that they were intended to apply to the plaintiff, is strictly within the office of an innuendo. Lcids v. Daily A'eits Co. 81 Md. 466, 29 L. E. A. 59, 32 Atl. 240. The office of an innuendo in a declaration in an action for slander is more properly confined to a reference to previous matter, as bearing upon the meaning of the words; or when the words spoken are apparently innocent and inoffensive, but where nevertheless, by virtue of their con- nection with the collateral circumstances as averred, they convey a, latent and injurious imputation. Curley v. Feetiey, 62 N. J. L. 70, 40 Atl. 678. A petition in an action for libel may properly supply the libel by innuendo, where the matter is not per se libelous. Young v. Shephard (Tex. Civ. App.) 40 S. \V. 02. *Cole V. Neustadter, 22 Or. 191, 29 Pac. 550; Collins v. Despatch Pui. Co. 1 Pa. Dist. R. 773. 574 BKIEK ON PLEADINGS DEMUEBEE. Plaintiff in an action for libel may, by innuendo, deiine the defamatory meaning he seeks to put upon words, where such meaning is consistent with the natural and commonly accepted meaning of the words; and may allege that they relate to him, although his name is not men- tioned. McLaughlin v. SchncUbacher, 65 111. App. 50. Plaintiff in an action for slander may, under 2 N. J. Gen. Stat. § 124. p. 2554, aver that the words set forth were used in any defamatory sense he maj see fit to attribute to them. Curley v. Feeney, 62 N. J. L. 70, 40 Atl. 678. A general demurrer to a complaint for libel is properly overruled where the publication complained of was naturally susceptible of the con- struction given by the innuendoes, and tlie complaint expressly denies its truth. Democrat Puh. Co. v. Jones, 83 Tex. 302, 18 S. W. 052. But an innuendo in connection with u, statement in an alleged libelous article that piaintifr had been closeted with a, given person, which states the purpose to have been to give the latter protection in return for his poliUcal support and influence in an election at which plaintiff was a candidate for re-election, is bad, as going beyond the meaning of the language complained of or any legitimate inference to be drawn therefrom. Tiepke v. Times Pub. Co. 20 R. I. 200, 37 Atl. 1031. • Peters v. Ga,rth, 20 Ky. L. Rep. 1934, 50 S. W. 682 ; Simons v. Burnham, 102 Mich. 189, 60 N. W. 476; Blake v. Smiih, 19 R. I. 476, 34 Atl. 995; Benz V. Wiedenhoeft, 83 Wis. 397, 53 N. W. 686. A mere allegation in the complaint in an action for slander, that defendant intended a slanderous charge, is insufficient where no extrinsic facts are alleged, unless the words themselves import such a charge. Divens y. Meredith, 147 Ind. 693, 47 N. E. 143. The rule requiring inducement in a complaint in an action for libel or slander where the words are not acUonable in themselves is not changed by Ind. Rev. Stat. 1894, § 3/5, providing that in such an action it shall be sufficient to state generally that the defamatory matter was pub- lished or spoken of the plaintili'; and if the words spoken derive their slanderous import from extrinsic facts, such facts must be alleged. Alcorn v. Bass, 17 Ind. App. 500, 46 N. E. 1024 (Citing Ward v. Coly- han, 30 Ind. 395; Hart v. Coy, 40 Ind. 553; Emig v. Daum, 1 Ind. App. 146, 27 N. E. 322). A petition in an action against an employer for slandering his dry-goods salesman, alleging that by usage the letters "of" placed on a ticket at- tached to a parcel of goods sold upon partial payment indicated 73 cents, and the letters "pni" indicated the salesman's premium; that all goods not fully paid lor were returned to the stock and the salesman received no premium; thai upon the return of a package "marked as aforesaid," sold by plaintiff, defendant told him in the presence of others to "Put ef on that goods or leave the house. You know you got that pm. You sold the goods just to get that pm;'' and that by said words defendant intended to charge plaintiff with the larceny of 75 ceiits, — does not state facts sufficient to constitute a cause of action. The words are not slanderous per se, and the colloquium, failing to show VII. FOE INSUFFICIENCY ; PARTICULAR ALLEGATIONS. 575 how the goods were marked, how much they were or ought to have been sold for, or how much premium was or ought to have been received, does not show that they were used in a connection and sense to make them slanderous. Potcell v. Crawford, 107 Mo. 595, 17 S. W. 1007. General allegations in a petition for libel, that plaintiff was published as a dishonest man who would not pay his debts, with reference to exhib- its, all of the statements and intimations in wihich are characterized as false and malicious, is good on general demuner, although the peti- tion should specify by direct allegations in what particulars the lan- guage of the exhibits was libelous. Brown v. Durham, 3 Tex. Civ. App. 244, 22 S. W. 8CS. No prefatory averment is essential to innuendo in a petition in a slander action, where the actionable quality inheres in the words themselves and does not arise from extrinsic circumstances. Darling v. Clement, 69 Vt. 292, 37 Atl. 779. Plaintiff in an action for libel cannot, by innuendo, extend the meaning of a publiciation beyond what the words justify in connection with the extrinsic facts. Vrhan v. Helmick, 15 Wash. 155, 45 Pac. 747. Failure of a complaint for slander in uttering words not actionable per se, to state facts or circumstances to enlarge the meaning of the words, by way of colloquium or otherwise, is not supplied by a mere general allegation of special injury in the loss of sale of merchandise. Canton Surgical & Dental Chair Co. v. McLain, 82 Wis. 93, 51 N. W. 1098. * t'nterherger v. Scharff, 51 Mo. App. 102. But a complaint alleging the uttering of words slanderous per se, spoken in the vernacular of those to whom they were addressed, of and con- cerning the plaintiff, need not allege that they were understood by the hearers to refer to plaintiff, under Cal. Code Civ. Proc. § 460, providing that it shall not be necessary to state extrinsic facts to show the appli- cation to plaintiff of the defamatory matter. Harris v. Zanone, 93 Cal. 59, 28 Pae. 845. ^ Jachsonvillc Journal Co. v. Beymer, 42 111. App. 443. An innuendo is not necessary where the language of an alleged libel is sus- ceptible o.C but one interpretation, and, if it is put in, it will be treated as surplusage. Sanford v. Rowley, 93 Mich. 119, 52 N. W. 1119. An innuendo in reference to the words "robber" and "thief" in the com- plaint in an action for slander is surplusage, as the meaning is appar- ent on its face. Frederickson v. Johnson, 60 Minn. 337, 62 N. W. 388. Words in a, declaration for slander, charging the plaintiff with having killed one person and trying to kill another, impute a criminal offense or offenses, and render an innuendo unnecessary. Curley v. Feeney, 62 N. J. L. 70, 40 Atl. 678. An innuendo in a declaration for slander is unnecessary if the defamatory words can be understood as imputing crime to the plaintiff, and if an innuendo is incorporated, it can be treated as surplusage, and mil not render the pleading dmurrable because it attributes a, meaning to the words which they will not bear. IMd. ' Porter v. Post Pub. Co. 20 E. 1. 88, 37 Atl. 535. ■57b BEIEF ON PLEADINGS DEMUKKEE. 360. Publication. An allegation that defendant "published" a designated libelous let- ter in regard to plaintiff is sufficient without alleging that the letter was mailed or sent to and received by the addressee.-^ A complaint for libel, charging the sale of papers containing a li- belous article, need not affirmatively allege that defendant knew that such articles were contained in the papers sold.^ A statement in an action for slander need not specify the names of the persons before whom the slander v/as uttered.* A complaint in an action for libel must show that the libel was pub- lished concerning the plaintiff, and not leave such fact to mere infer- ence.* An allegation that the words were spoken of and concerning the plaintiff is generally sufficient, without the averment of extrinsic facts. ^ ' McLaughlin v. SchncUbachcr, 65 111. App. .50. 'Street v. Johnson, SO Wis. 45,5, 14 L. R. A. 203, 50 N. W. 395. • Wright v. Percclls, 5 Pa, Dist. E,. 158. 'Carlson v. Minnesota Tribune Co. 47 Minn. 337, 50 N. W. 229. A eompl.aint alleging that an alleged libelous publication stating that nearly all a designated business of a specified place was owned and con- trolled by one company, "its members being Dagos," referred to plain- tifls, and that at the time of the publication they were doing all, or almost all, of such bvisiiiess in the place, — sufliciently states that the publication was made concerning plaintiffs, although they were not in fact Dagos. Craig v. Pueblo Press Pxih. Co. 5 Colo. App. 208, 37 Pac. 945. A complaint in an action for libel, setting out the alleged libelous matter, which upon its face was well calculated to prejudice and injure the per- son described therein, and to expose him to public hatred, contempt, or ridicule, even though no name is mentioned therein, if it identifies the plaintiff as the object of the article, staies facts suflieient to constitute a cause of action. Knox v. Meehan, 04 Minn. 280, 60 N. W. 1149. A complaint in an action for libel need not aver in the express language of N. Y. Code Oiv. Proe. § 535, that the defamatory matter was pub- lished or spoken concerning plaintiff, if the identification of the plain- tiff with the person referred to appears from the complaint and answer considered together. Jaequelin v. Morning Journal Asso. 39 App. Div. 515, 57 N. Y. iSupp. 299. ' Bidwell V. Badcmacher, 11 .Ind. App. 218, 38 N. E. 879. Extrinsic facts need not be stated under Ky. Civ. Code Prac. § 123, in an action for libel for the purpose of showing the application to the plain- tiff of the alleged defamatory matter. Louisville Press Co. v. Ten- nelly, 105 Ky. 365, 49 S. W. 15. VII. FOE INSUi'Ii'ICIENCY; PAETICULAE ALLEGATIONS. 577 An alU»gation in a complaint in an action for libel, that the words were published with the malicious intent and purpose to injure the business of the plaintiff, is not the equivalent of an averment that the words were spoken of and concerning the plaintiff, which, under N. Y. Code Civ. Proc. § 53o, renders unnecessary the statement of any extrinsic facts to show the application to plaintiff of the defamatory matter. Neio York & ^¥. Water Go. v. Morning Journal Asso. 7 App. Div. 609, 40 N. Y. Supp. 27 i:. A complaint alleging that plaintiff is the head of a family concerning which a libelous newspaper article was published, residing at the place named in the article, and that the publication was made of and concerning him, setting forth the article itself and alleging its falsity, states a cause of action, under Utah Comp. Laws 1888, § 3246, providing that in such an action the complaint need not state any extrinsic facts to show the application to plaintiff of the defamatory matter, but that it is sufficient if it state generally that the same was published concern- ing plaintiff. Penstermaker v. Tribune Pub. Co. 13 Utah, 532, 35 L. R. A. 611, 45 Pac. 1097. A complaint for libel states a cause of action in alleging the malicious publication of a name intended for that of plaintiff, though misspelled, with the addition, of "semn Belle Plaine Mdse. $4" in a list of un- settled claims due members of a merchants' protective association, in connection with extrinsic facts showing the application of such publi- cation to plaintiff, its meaning, and defendant's intention to impute to plaintiff insolvency and dishonesty in business, and that the list was so understood by its readers. Traynor v. Sielaff, G2 Minn. 420, 64 JSf. W. 915. 361. Falsity, — malice. In an action for dander or libel tlie declaration should contain an averment that the defamatory words were falsely and maliciously spoken or published. But from an averment of the falsity of the charge, malice may be infeiTed ; and from an averment of malice, the falsity of the charg-e may be inferred.^ In an action for libel arising out of a publication made on a privi- leged occasion, actual malice must be averred, it being insufficient merely to allege that tlie language -was false and maliciou.s, without further alleging in express terms that defendant acted maliciously, or averring facts which would be the equivalent of such allegation.^ 'Webster v. Eolmies, 62 N. .J. L. 55, 40 Atl. 778 (Citing Bendish v. Lind- sey, 11 Mod. 194; Sutton v. Johnstone, 1 T. R. 493; White v. yio7ioHs, 3 How. 266, 11 L. ed. 591) ; Bottomhj v. Bottomly, 80 Md. 159, 30 Atl. 706. But the omission of the word "malicious" in a complaint in an action for slander in speaking words actionable per se is not a fatal defect. Stewart V. Major, 17 Wash. 238, 49 Pac. 503. Abb. Pl. Vol. I.— 37. 678 BRIEF ON PLEADINGS DEMUEEEK. An averment in a complaint for slander, that the defendant spoke "the false and scandalous words following," is a sufBeient allegation of their falsity as against a general demurrei-. Haskins v. Jordan, 123 Cal. 157, 55 Pae. TSli. And an allegation in a, complaint for slander, containing several alleged slanderous excerpts from a conversation, that all of such statements^ were false and untrue, and were wilfully and maliciously made, suffi- ciently states that each ol such statements w"as so made. Bellstern v. Kaiser, 103 Wis. 391, 79 N. VV. 429. 'Henry v. Moberly, 6 Ind. App. 490, 33 IS". E. 981. 362. Words charging a crime. A petition for a libel charging a criminal offense need not set forth the elements of the crime with the precision and certainty required in an indictment.^ Nor need it ejcpressly allege that by the language used, defendant intended to impute a crime to plaintiff, or that the bystanders so understood.^ The slanderous nature of words not actionable per se should be set forth by innuendo.* ^ Wagiwr v. Saline County Progress Priiiiing Co. 45 Mo. App. 6. 'Dudley v. Nowill, 11 App. Div. 203, 42 N. Y. Supp. 681. • A statement imputed to defendant by a complaint in an action for slander, that the plaintiff, who was a tenant on defendant's farm, took wheat that did not belong to him, is, in connection with an innuendo charging that the defendant meant and was understood to mean that the plain- tiff liad feloniously stolen wheat belonging to defendant, actionable. Hinesley v. Sheets, 18 Ind. App. 612, 48 N. E. 802. A petition in an action to recover for slander, charging that the slander- ous words spoken were: "In place of trying to track around here, you had better been to home tracking the man that burned your house, and you would track him in your own door. You know you burned it. You took the money and built a barn with it," meaning thereby that plain- tiff had burned the house to get the insurance money, and had built a barn Avith the money, — is a sutlicient statement of a cause of action, as the words are slanderous per se. llUbrant v. Simmons, 18 Ohio C. C. 123. A declaration alleging that plaintiff had been engaged by defendant to sell goods on coraniission and to turn over the proceeds, and that defendants used the expressions, "The lying dog never paid me a cent," and, "He is a swindler and his wife is implicated with him," and applying the words by innuendoes to plaintiff and bis wife, and alleging that defend- ant intended the words to mean that plaintiff' had embezzled the money received by him from the sale, and that his wife assisted him therein and was therefore guilty of embezzlement, — states a cause of action for slander. Bichmond v. hoeh, 19 R. I. 120, 32 Atl. 107. VII. FOE INSUFIflCIENCY ; PAETICULAE ALLEGATIONS. 579 A complaint for libel is sufficient on demurrer where it alleges the publica- tion in a newspaper, under the title "The McGinnis Cohoits," and the further heading ."They Kally Round the Brewer's Flag in the Senate," of a false and malicious article sent by defendant's special correspondent at the state capitol at which plaintilf was in attendance as a senator, charging plaintiff with bribery, or with knowledge thereof, to defeat a bill to regulate the sale of intoxicants; and which sets forth the language of the publication and the meaning of the charges and their connection with the plaintiff by appropriate averments and innuendoes. McGinnis v. Knapp, 109 Mo. 131, 18 S. W. 1134. So a complaint in an action for libel, alleging that defendant published an article stating that plaintifl' was tlie owner of a building used as a "blind tiger," or place in which intoxicating liquors were unlawfully sold, and that the intention was to charge him with running a blind tiger, is sufficient without alleging that he •'occupied" the building used as such. Schulae v. Jalomck (Tex. Civ. App.) 29 S. W. 193. 363. Injury to business, — special damage. Words spoken or written, injurious to a person in his business, and false and malicious, are actionable per se, and special damages need neither be alleged nor proved.^ ^Oliver v. Perkins, 92 Mich. 301, 52 N. W. 609 (Citing Itaney Mfg. Go. v. Perkins, 78 Mioh. 1, 43 N. W. 1073; Weiss v. Whittemore, 28 Mich. 366). Words derogatoiy to the professional character of » minister are action- able, without proof of special damage. Ritchie v. Widdemer, 59 N. J. L. 290, 35 Atl. 825. No recovery for an injury to plaintiff in his business or profession by a libelous publication can be had unless the business or profession i3 pleaded. Houk v. Hicks, 11 Ind. App. 190, 38 N. E. 864 (Citing Pollock V. Bastings, 88 Ind. 248.) But words imputing some quality the natural tendency of which is to im- pair one's professional or business character, — as, insolvency to a mer- chant, or drunkenness or immorality to a clergyman, — are actionable, since there need be no colloquium of the profession or business. Dar- ling V. Clement, 69 Vt. 292, 37 Atl. 779 (Citing Chaddock v. Briggs, 13 Mass. 248, 7 Am. Dec. 137 ; Stanton v. Smith, 2 Ld. Raym. 1480 ; Jones V. Littler, 7 Mecs. & W. 423) . A count in a petition for slander, based upon words which are not action- able unless spoken of the plaintiff in. relation to his trade and business, need not expressly aver that they were so spoken, if their natural tend- ency is to injure the plaintiff in his trade and business. Ibid. (Citing Lumby v. Allday, 1 Cromp. & J. 301; Miller v. David, L. R. 9 C. P. 125; Burtch v. Nickerson, 17 Johns. 217, 8 Am. Dec. 390.) A petition in an action for libel, averring the making and publishing of the libelous statement by the defendant that goods shipped to the plaintiffa 580 BBIEF ON PLEADINGS DBMUBEEE. remained undelivered because they were unable to pay the charges there- on, that it was made maliciously and with intent to injure and defame the plaintifl's, that it was false, and that the plaintiffs suffered special damages set out therein, — is sufficient. Campbell v. Bostick (Tex. Civ. App.) 22 S. W. 828. A complaint for libel, alleging that defendants falsely and maliciously pub- lished of and concerning the plaintiffs' goods, "We do not keep Acme or common plate,'' and alleging special damage, is sufficient on demurrer. Acme Silver Co. v. Stacey Hardware & Mfg. Co. 21 Ont. Eep. 261. But an allegation in a complaint for libel in publishing false and unfounded communications concerning the business standing of plaintiff, that in consequence of the wrongful act, plaintilf suffered damage in a specified gross amount, without alleging wherein the damage consisted, is bad as against a special demurrer, in the absence of an allegation of malice. Bradstreet Co. v. Oswald, 90 Ga. 396, 23 S. E. 423. The distinction does not exist in the jurisprudence of Louisiana between words which are actionable in themselves, without proof of special dam- age, and words actionable only with reference to some actual consequen- tial damage. Fellman v. Dreyfous, 47 La. Ann. 907, 17 So. 422. As to libel imputing insolvency, see note to Hayes v. Press Co. (Pa.) 5 L. R. A. 643. See also Damages, § 212, supra. Libit, 364. A conclusion of law. An all^ation that a lien was created, retained, or had expired, or that property was subject to a mortgage, is a mere conclusion.^ But an allegation that a judgment pleaded as having been recov- ered was a lien sufficiently imports that it was docketed so as to be- come a lien.^ " Price V. Doyle, 34 Minn. 400, 26 N. W. 14; Origgs v. St. Paul, 9 Minn. 246, Gil. 231 (allegation that certificates were worthless, and no lien). An answer denying that liy the terms of the deed in suit a lien was retained to secure the payment of notes retaining a vendor's lien is a mere conclu- sion of law. McClurc v. Bigataff, 18 Ky. L. Eep. 601, 37 S W 294 38 S. W. 431. An answer alleging merely that an action to foreclose a mechanic's lien was not brought within the time required by law, or until after the lien had expired by lapse of time, is insufficient, as it states conclusions only. Scroggin v. National Lumber Co. 41 Neb. 195, 59 N. W. 548. An allegation by a mortgagee of land that its lien is prior and superior to the lien of another person is bad as being simply a conclusion of the pleader. Farmers' £ M. Sat. Bank v. Taylor, 91 Tex. 78, 40 S W. 876, 966. * Cody V. Allen, 22 Barb. 388. VII. BOB, INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 581 LlMITATIOxYS. See also Delay, § 223, sujyra; Laches, § 349, supra. And for other Statutory Bars, see Contracts, § 15S, supra; Leave to Sue, §§ 353, 354, supra; Statutes, §§ 445-4S6, infra. 365. limitation by statute, when available on demurrer. In some states the statute of limitations cannot be availed of by de- murrer, but must be set up by plea or answer.^ In others, it may be pleaded as a defense, or taken advantage of by demurrer.^ One who relies on the statute of limitations in a demurrer to a com- plaint must point out the objections specifically by reference to the statute.^ A pleading showing upon its face that the cause of action is barred by the lapse of time is demurrable.* The defense of the statute of limitations cannot be raised by de- murrer when the pleading demurred to does not show when the cause of action acciiied.^ In the absence of any statute providing otherwise, the objection that the complaint shows on its face that the cause of action is barred is available on demurrer for not stating facts sufficient to constitute a cause of action.® And the objection is fatal, unless the pleading also alleges facts bringing the case within an exception.' A complaint in an action based on the ground of fraud, which shows that the full period of limitation has expired since the consum- mation of the fraud, is insufficient unless it is alleged that the fraud was not discovered until within the period of limitation, where the cause of action does not accrue until the discovery of the fraud.® ^Norton v. Kumpe, 121 Ala. 446, 25 So. 841; Commonwealth Mut. F. Ins. Go. V. Edwards, 124 N. C. 116, 32 S. E. 404. The defense of the statute of limitations cannot be made by demurrer in an action at law, but must be made by a special plea. Huntsville v. Eunng, 116 Ala. 576, 22 So. 984. In New York the objection that the action was not commenced within the time limited can be taken only by answer. N. Y. Code Civ. Proe. § 413. The lapse of time, or a presumption arising therefrom, aside from the absolute bar of the statute of limitations, must be taken advantage of by plea or answer setting up the facts, and cannot be availed of by demurrer. Drake v. Wild, 65 Vt. 611, 27 Atl. 427. A statute of limitations pure and simple, which bars the remedy only, must be set up by way of plea, and cannot be taken advantage of by demurrer. Lambert v. Ensign Mfg. Co. 42 W. Va. 813, 26 S. B. 431. 582 BEIEF ON PLEADINGS DEMUEKEE. The proviso to W. Va. Code, chap. 103, creating a cause of action where none existed at coiunion law, for wrongfully causing the death of a per- son, that the action should be brought within two years after the death of deceased, is an essential element of the right to sue, and is not a statute of limitation within the rule that such statures cannot be taken advantage of by demurrer. Ibid. 'Be McMurray, 107 Iowa, 648, 78 N. W. 691. The question of limitation of the action may be raised, in a bill in chancery to foreclose a mortgage, either in the answer or by demurrer. Bigh- stone V. Frwnks, 93 Mich. 52, 52 N. W. 1015. An objection based on the statute of limitations may be taken by demurrer, as well as by plea or answer, under the Xew Jersey practice. Bennett V. Finnegwn (N. J. Eq.) 33 Atl. 401. Limitation of the time for bringing an action upon a policy of Insurance, contained In the policy, is a condition of the contract, and, when set out in the declaration, is reached by a demurrer thereto, and need not be specially pleaded. MoMhone v. Massachusetts Ben. Asso. 2 App. D. C. 3y7. In Colorado the statute of limitations can only be made available by a spe- cial plea, in the absence of a demurrer. Adams v. Tucker, 6 Colo. App. 393, 40 I'ac. 783. • Thomas v. Olendinning, 13 Utah, 47, 44 Pac. 652. The ground of demurrer that the action was not commenced within the time limited by law will not be considered in Wisconsin if it fails to refer to the statute claimed to limit the right to sue. Crowley v. Bioks, 98 Wis. 566, 74 N'. W. 348. And a plaintiff, on demurring to a counterclaim, must, if he wishes to rely on the statute of limitations, specify it as a ground of the demur- rer, under Cal. Code Civ. Proc. §§ 443, 444, authorizing a plaintiff to demur to a counterclaim set up in the answer, on the ground that the answer does not state facts sufficient to constitute a cause of action. Bliss V. Snealh, 119 Cal. 526, 51 Pac. 848. 'Appleby v. Jaiisen (Cal.) 33 Pac. 438; M'ilUams v. Bergin, 116 Cal. 56, 47 Pac. 877; Christian v. /S'fate ea: rcl. lleaston, 7 Ind. App. 417, 34 N. E. 825 ; Crawford v. Schaeffer, 22 Pa. Co. Ct. 79 ; FuUerton v. Bailey, 17 Utah, 85, 53 Pac. 1020. An interplea in a replevin action, alleging the interpleder's ownership of the property in controversy, and praying for its return, is bad on a general demurrer, as barred by the two years' statute of limitations, where it discloses on its face that the property had been seized under execution nearly three years prior to the filing of the interplea. Gard- ner v. Qiiick. 8 Kan. App. 559, 54 Pac. 1034. *McCreary v. Jones, 06 Ala. 592, 11 So. 600. A declaration upon a cause of action as to which a four years' statute of limitations does not run until demand made, filed June 10, 1892, and alleging demand in the year 1888, does not affirmatively show that the VII. FOE INSUKI.'ICIENCY ; rAliTlCULAR AT.T.KGATIONS. 583 cause of action is barred, i^o as to bo snsfi'iiUble to ilcimirrer. Stringer V. Stringer, 03 Ga. 320, 20 S. ]''.. 242. A petition declaring npon an indebtedness for a. balance for goods sold and delivered does not disclose upon its face that the cause of action is barred by the Nebraska four years' statute of limitations, so as to obviate the necessity of a plea setting up the statute, .vhere it does not state the specific dates when the goods were delivered, or when they were to have been paid for. Hanna v. Emerson, 45 Neb. 708, 64 N. W 229. A complaint alleging that at a designated time, about a year before the commencement of the action, defendant city negligently erected embank- ments on the street adjoining plaintill's land, by which the contents of a sewer were diverted upon such land, and that filth and nauseous matters have been discharged on the land through such sewer, "during rains,' — does not show that the cause of action is barred under a statute requiring suit for damages against the city to be instituted witliin three months after the cause of action accrues. Dallas v. Young (Tex. Civ. App.) 28 S. W. 1036. * ilei-eaniile Nai. Bank. v. Carpenter, 101 U. S. 567, 25 L. ed. 815 (bill in equity) ; Ileti v. Collins, 103 111. 74 (bill in equity; demurrer for want of equity; Citiug Story, Eq. PI. § 484; Foster v. Hodgson, 19 Ves. Jr. 180; Hoiire v. Peck, C Sim. 51; Biays v. Roberts, 68 Md. 510, 13 Atl. 366) ; Mcrriam v. Miller, 22 Neb. 218, 34 N. W. 625 (action on bond). Chemung Canal Bank v. Lov:ery, 93 U. S. 72, 23 L. ed. 806, and cases cited, holding the rule settled in Wisconsin, notwithstanding the statute that it can only be taken by answer; for a demurrer is there regarded as a sufficient answer for the purpose. A demurrer to a petition on the ground that it does not state facts suffi- cient to constitute a cause of action should be sustained, under Can. Gen. Stat. 1889, K 4095, where the petition shows upon its face that the plaintiff's cause of action is barred by the statute of limitations. Phillipsiurg v. Kincaid, 6 Kan. App. 377, 50 Pac. 1093. The defense of the statute of limitations must be raised by answer, unless it is apparent from the face of the petition, in which case the defendant may interpose the objection, at any stage of the trial, that the com- plaint does not state facts sufficient to constitute a cause of action. Eayrs v. Nason, 54 Neb. 143, 74 N. W. 408. In some states the demurrer is required to be special. The defeaise of the statute of limitations is not available under a demurrer on the ground that the complaint does not state facts sufticient to con- stitute a. cause of action, but must be specially stated as a ground of demurrer. Bliss v. Sneath, 119 C'al. 526, 51 Pac. 848. ITie statute of limitations cannot be raised by demurrer, unless it affirma- tively appears on the face of the complaint that such defense exists; and even, in that case, it must be specifically stated in the demurrer as the ground relied upon to show that no cause of action exists against the defendant from the averments in the complaint. McFarland v. Hoi- comb, 123 Cal. 84, 55 Pac. 761. 584 BEIEF ON PLEADINGS DEMUEEEE. Limitation cannot be interposed by general demurrer, although the plain- tifif's petition shows on its face that one cause of action is barred; but it may )>o interposed by a special exception. Taylor Water Go. v. Dil- lard, 9 Tex. Civ. App. 667, 29 S. W. 602. ' Bloodgood v. Bruen, 8 N. Y. 362 ; Van Patten v. Bedow, 75 Iowa, 589, 39 N. W. 907; Koontz v. Hammond, 21 Ind. App. 76, 51 N. E. 506; Pence V. Young, 22 Ind. App. 427,. 53 N. E. 1060. A complaint which shows on its face that the cause of action is barred by the statute of limitations is not demurrable on that ground, unless it affirmatively appears that the case is not within any of the exceptions contained in the statute. Suatts v. Bowen, 141 Ind. 322, 40 N. E. 1037. A deniurrer to a petition on the ground that the cause of action is barred by the statute of limitations is properly overruled, when the petition does not show that such plea might not be avoided. Brandenhurg v. ilcGuire, 105 Ky. 11, 44 S. W. dO. But the petition in an action upon unpaid warrants issued by a school district, the collection of which is prima facie barred by the statute of limitations, is demurrable when it conrains no allegations to show tliat the action is not barred. School Disi. No. 1 v. Herr, 6 Kan. App. 861, 50 Pac. 101. Plaintiff in ejectment need not make any averments to bring himself within exceptions to the statute of limitations, where his petition does not show that it is apparently barred by tlie statute. Forest v. Jelke, 7 Ohio C. C. 23. A petition against a, foreign corporation, sliowing that defendant had no agent within the state upon whom personal service could be had be- tween the inception of the riglit and the coniinencement of the action, is not demurrable on the ground that the cause of action is barred. Winncy v. Bandwich Mfg. Co. 86 Iowa, 608, 18 L. R. A. 524, 53 N. W. 421. See same case in (Iowa) 50 N". W. 505. Whether a general provision of the statute of limitations, requiring that the objection that the action was not commenced in time be taken by answer, applies to special limitations not contained in the general stat- ute of limitations, is a question of construction depending on the form of the particular statute. See note to Allen v. Allen, 8 Abb. N. C. 196; Bihin V. Bihin, 17 Abb. Pr. 19 ; Kaiser v. Kaiser, 16 Hun, 602. 'Castro V. Geil, 110 Cal. 292, 42 Pac. 804; Broion v. John Farwell Co. 74 Fed. 704; MoGalla v. Daugherty, 4 Kan. App. 410, 46 Pac. 30; Manley V. Robertson, 6 Kan. App. 921, appx., 51 Pac. 795. An allegation that the plaintiff did not know defendant's whereabouts is insufficient. A/i/e/f v. Center, 47 Kan. 324. 27 Pac. 978. And the mere allegation that a party did not discover alleged fraudulent acts until after the expiration of three years from their commission is insufficient to avoid the effect of Cal. Code Civ. Proc. § 338, subd. 4, limiting actions for fraud to that period, since whether there was such a discovery is a question for the court upon all the facts, and they must be specifically pleaded. Lndj Wushinglon Cnnsol. Co. v. Wood, 113 Cal. 482, 45 Pac. 803. VII. FOE IKSUFFIOIENCI' ; PAETICULAE ALLEGATIONS. 585 A bill seeking to avoid the elTeet of the statute of liiuitations on the ground of fraud, mistake, concealment, or misrepresentation, must contain defi- nite averments as to the time when the fraud, mistake, concealment, or misrepresentation was discovered, and wliat the discovery really was, so that the court may clearly see whether, by ordinary diligence, the dis- covery might have been made before, or why it was not made sooner. Bangs v. Lovciidge, GO Fed. 9Go. A petition in an action for fraud practised on plaintiff by defendant is de- murrable as showing that the cause of action is barred by limitation, where it is apparently barred as alleged in the petition, and there is a mere declaration that plaintiff "xised all diligence he could to discover the fraud," without alleging that he was in fact diligent, or the extent of the efforts made by him to discover the fraud. Edtcards v. Smith, 102 Ga. 19, 29 S. E. 129. An averment in a petition, that plaintiff could not have sooner discovered that alleged representations were false and fraudulent, by the use of reasonable prudence, is insuflicient to avoid the effect of the Texas two years' statute of limitation as a bar to an action upon an account; but the petition must show clearly and definitely that, by the use of rea- sonable diligence, he could not have discovered it. Cohen v. Shwarts (Tex. Civ. App.) 32 S. W. 820. A bill filed July 16, 1898, which alleges a discovery of fraud "about Au- gust, 1888,'" sufficiently alleges that the discovery was within ten years next before liling the bill, to take the case out of the statute of limita- tions. Irvine V. Burlon (Miss.) 24 So. 902. The complaint in an action by a judgment creditor to set aside a convey- ance by his debtor as fraudulent, commenced more than six years after the conveyance, nrust allege, not only that plaintiff did not discover the facts constituting the fraud until within six years before the com- mencement of the action, but also tliat his failure to discover them sooner was consistent ^\ith reasonable diligence on his pai-t, and not the result of negligence, under Minn. Gen. Stat. 1894, § 5136, subd. G, requiring actions for "relief on the ground of fraud" to be brought within six years -after the discovery by the aggrieved party of the facts constituting the fraud." Duxhury v. BoicK, 70 Minn. 113, 72 N. W. 838 (Citing Frilschlcr v. Koehler, 83 K.y. 78; Norris v. Haggin, 28 Fed. 275; Wood v. Carpenter, 101 U. S. 139, 25 L. ed. 808; Parker v. Kuhn, 21 Neb. 413, 59 Am. Rep. 838, 32 N. W. 74). Lost Instkuments. 366. Sufficiency of averments. A petition to establish a lost deed is sufficient ^\■llere it alleges that tJie petitioner is the owner in fee of laud described ; that such land was conveyed to him by a warranty deed bearing a certain date, regu- lar in form, containing the usual covenants of warranty, made and duly acknowledged by a person named before a certain justice of the 586 BEIEi' ON I'l/EADINGS DEMUBUEK. peace of a specified county ; and that such deed has been destroyed or lost.i If the instrument has been lost, its actual execution and the facts constituting a proper search therefor must be alleged.^ ^Lane v. Lane, 113 Mo. 504, 21 S. W. 99. 'LaubaoU v. Mayers, 147 Pa. 447, 23 At!. 765. JVIaintaimnu. 367. Meaning of allegation. Strictly construed, an allegatim] sljowing duty to "maintain," or failure to maintain, refers onl}- to .'supporting or continuing what be- fore existed.' ' In Louisville, N. A. £ G. B. Co. v. Godman, 104 Ind. 490, 4 N. E. 163, a, complaint against carriers for loss of cattle by means of "failure to keep in repair, and maintain, means and ways to put the cattle on the cars," was held bad 'on demurrer ; for "the extent to which the ways and means for loading the cattle were out of repair is not stated in the complaint, nor is there any averment that they were so out of repair that the cattle might not have been loaded." In the ease of Moon v. Burden, 2 Exoh. 21, it was said : "The verb 'to main- tain' in pleading, has a distinct technical signification. It signifies 'to support what has already been brought into existence.' " ilALicious Pkosecutioit. 368. Sufficiency of averments, A complaint in an action for malicious prosecution, alleging the institution of a criminal prosecution against the plaintiff by the de- fendant, that it was malicious,-* without probable cause,* and was finally determined in plaintiff's favor,'' — is sufficient.* A count for malicious prosecution need not expressly aver that the plaintiff was innocent of the charge brought against him.^ But an answer averring advice of counsel as rebutting malice and absence of probable cause must aver that such advice was based on the full pre- sentation of the facts to counsel.® In suits for the malicious prosecution of civil actions, it should ap- pear Aat the litigation terminated in favor of the plaintiff,^ and that it was without probable cause." ' In an action for malicious prosecution, malice is a fact, to be pleaded as such ; and it is bad pleading to set forth the evidence establishing it. O'lfleiU V. Johnson, S'? Minn. 439, -5.5 N. W. 601. "^"- J'''-'K INSUFFI0U5NCY ; PAETICULAE ALLEGATIONS. 587 A declaration for malicious prosecution must set forth the alleged mali- cious conduct of defendant on which it is based; and an averment of the conclusion that the defendant falsely and maliciously caused and procured to be sued out and prosecuted an order and attachment, under which plaintiff was arrested, is insufficient in the absence of an aver- ment of what false aiid malicious thing the defendant did. Tavenner v. Morehead, 41 W. Va. 116, 23 S. E. 673. ^Thompson v. Barrow (111.) 14 Nat. Corp. Rep. 347; Helimg v. Beckner, 149 Ind. 131, 46 N. E. 644, 48 N. E. 788; Palmer v. Palmer, 8 App. Div. 331, 40 N. Y. Supp. 829; Ely v. Davis, 111 N. C. 24, 15 S. E. 878. A petition in an action for malicious prosecution, which does not allege that the charge on which plaintiff' was arrested was false and un- founded, or that the arrest was without probable cause, is defective. Robinson v. Morgan, 100 Ky. 529, 38 S. W. 868. The declaration in an action for malicious prosecution is insufficient where it simply alleges that defendants conspired to injure plaintiff and de- stroy it.s credit by applyinjf for a receiver and making affidavit that plaintiff was insolvent, without any reasonable or probable cause, as it merely states a conclusion. Liquid Garlonic Acid Mfg. Co. v. Convert, 82 111. App. 39. A complaint for malicious prosecution need not allege that the writ upon which the arrest was made was procured maliciously and without prob- able cause, it it alleges malice and want of probable cause in the com- mencement of the action and the affidavit for a capias. Sicindell v. Houclc, 2 Ind. App. 519, 28 N. E. 730. A complaint for malicious prosecution is not bad because it shows that the plaintiff was boimd over by the examining magistrate upon the charge brought by defendant, since such binding over is not conclusive of the existence of probable cause for the prosecution. Darnell v. bailee, 7 Ind. App. 581, 34 N. E. 1020. While reasonable or probable cause is a conclusion of law, it is also an ultimate fact which may be pleaded. Blucher v. Zonker, 19 Ind. App. 615, 49 N. E. 911. A petition in an action for malicious prosecution, ^ihich sets forth the conviction of the plaintiff in the lower court under a misapprehension of the law applicable to the facts of the case, which were known to the complainant and established the innocence of the plaintiff of the offense charged, and that such conviction was reversed on appeal, — sufficiently sets forth the want of probable cause. A'eftr v. Dobbs, 47 Neb. 863, 06 N. W. 864. A complaint in an action for malicious prosecution must allege that there was no probable cause for the prosecution and that it was through malice; and the averment that the defendant maliciously charged the plaintiff with a crime is not sufficient. Cousins v. Sv^ords, 14 App. Div 338, 43 N. Y. Supp. 907. The omission of a direct averment of want of probable cause in a complaint for malicious prosecution is not supplied by averments that the charge made against plaintiff was falsely, wilfully, or maliciously made, or 588 BKIEF ON PLEADINGS DEMUKEEE. that plaintiff was acquitted on the merits. Orane v. Buchmann, 30 Ohio L. J. 120. The prima facie^jShowing of probable cause for an arrest, by the averment that the plaintill was bound over to await the action of the grand jury, and was indicted, is not overcome by the mere averment in a declara- tion for malicious prosecution, of the legal conclusion that defendant prosecuted plaintiff maliciously and without probable cause; and the declaration does not set forth a cause of action, in the absence of alle- gations that the binding over and indictment were procured by fraud, perjury, or other undue means. Giusti v. Del Papa, 19 R. I. 338, 33 Atl. 52,5. • McDaniel v. Nelms, 96 Ga. 366, 23 S. E. 407 ; Bartholomew v. Metropolitam, L. Ins. Go. i Oliio Dec. 267 ; Lucy v. Meiropolitan L. Ins. Co. 31 Ohio L. J. 22; Collins v. Campbell, 18 R I. 738, 31 Atl. 832. The averment in a, complaint in an action for malicious prosecution, that the plaintiff was discharged upon a writ of habeas corpus which was duly issued and returned, and that the prosecution was wholly ended, is sufficient to show the termination of the prosecution, without aver- ring that the petition for the writ was presented to a court or judge having jurisdiction, or that an order was made by any court or judge directing the plaintiff's discharge. Bolliday v. Holliday, 123 Cal. 26, 55 Pac. 703. A declaration for malicious prosecution, stating that the grand jury had made a return of "No bill" upon a bill of indictment, and expressed in their finding that the prosecution was malicious, sufficiently alleges the termination of the pro-secution. Horn v. Sims, 92 Ga. 4-21, 17 S. E. 670. ' Struly-EstabrooJc Meroaniile Go. v. Kyes, 9 Colo. App. 190, 48 Pac. 663 (so held on error) ; liagUton v. Kabrich, 66 Mo. App. 231. A petition m an action for malicious prosecution states a cause of action where it alleges that the prosecution was malicious, without probable cause, and that it resulted in favor of the plaintiff. Hilbrant v. Donal- son, 69 Mo. App. 92. But a complaint in an action for malicious prosecution, alleging that de- fendant caused plaintiff's arrest on a warrant issued by a justice of the peace ; that on a trial before a jury, defendant was found guilty, but was acquitted on appeal; that the sole purpose of the prosecution was to compel plaintiff' to settle a, civil controversy; and that the jury were induced to render the judgment against plaintiff' because they were un- learned in the \a.s\, and placed confidence in the statements of defend- ant's attorney, — is insufficient. Blucher v. Zonlcer, 19 Ind. App. 615, 49 N. E. 911 (Citing Griffis v. Sellars, 20 N. C. 315 [4 Dev. & B. L.] 76; M'hUney v. Peokham, 15 Mass. 243; Payson v. Caswell, 22 Me. 212; Witham v. Gowen, 14 Me. 363; Welch v. Boston & P. Corp. 14 R. I. 609 ; PhilHp.i v. Kalamazoo, 53 Mich. 33, 18 N. W. 547 ; Womack v. Cir- cle, 32 Clratt. 334; Adarn^ v. Blcknell, 126 Ind. 210, 25 N. E. 804). 'Tliompson v. Darrow (111.) 14 Nat. Corp. Rep. 347. An allegation in the complaint in an action for malicious prosecution, that VII. FOE IISrSTJPFICIENCY ; PAETIGULAE ALLEGATIONS. 589 plaintiff was not guilty of any crime, does not strengthen the com- plaint, as the existence of probable cause for a criminal prosecution does not depend on the guilt of the accused. Blucher v. Zonker, 19 Ind. App. 015, 49 N. E. 911. 'Crane v. Buchmann, 30 Ohio L. J. 120. ' Uyfield V. Bass Furnace Co. 89 Ga. 827, 15 S. E. 752. ° A petition for malicious prosecution of a civil action, by reason of which a cloud is alleged to have been cast on plaintiff's title, is fatally de- fective ^vhere it contains no averment in terms or substance, of want of probable cause. Duncan v. Grimoold, 92 Ky. 546, 18 S. W. 354. Thp petition in an action for wrongfully issuing a distress warrant must f.how, not only that the writ was illegally and unjustly sued out, but a,lso that it was without probable cause. Burger v. Rhiney (Tex. Oiv. App.) 42 S. W. 590. A complaint in an action for malicious prosecution, alleging that in insti- tuting an action, and securing a writ of attachment therein and having it levied, plaintiff therein acted maliciously and without probable cause, and that the defendants therein were indebted to him to the amount of only $15 instead of $2,030, as claimed, and that such $15 had been tendered, — shows a want of probable cause. Clark v. Nordholt, 121 Cal. 20, 53 Pac. 400. Markiage. 369. Sufficiency of allegations. An allegation that a certain person is married is the same as one setting forth that he is lawfully married. ■* An averment in a bill for divorce, that complainant, giving her maiden name, viras lawfully and legally married unto defendant, nam- ing him, is a sufficient avennent of the marriage.^ A petition which alleges that the deceased was an infant son of the plaintiff, under the age of two years, sufficiently alleges that the de- ceased was unmarried.* ' Vetten v. Wallace, 39 III. App. 390. 'Farley v. Farley, 94 Ala. 501, 10 So. G4G. 'Czezewzha v. Benton-BeUefontaine R. Co. 121 Mo. 201, 25 S. W. 911. So, of an averment that deceased was only six years old at the time of his death. Baird v. Citizens' R. Co. 146 Alo. 265. 48 S. W. 78. Maekied Wo.mkn. 370. Sued as sole. 371. Sufficiency of allegations. 370. Sued as sole. A. declaration in an action against a married woman must allege the statutory facts showng her liability to be sued.* 590 BEIEF ON PLEADIA'aS DE-\rUUREE. In an action at law upon a contract made by a uiarried woman dur- ing coverture, the declaration must aver a state of facts showing that under the statute she was competent to make such contract at the rime.^ Under a statute rendering married women "liable to be sued in the same jnanner as if sole," a declaration or complaint is sufficient which would be sufficient if she wei'e not under coverture.^ But a plea of coverture, without further averments, by a married Vi'oman, is insufficient where the complaint states a cause of action against her for goods sold, which is prima facie sufficient under a statute requiring the wife to sue and be sued alone, on all contracts made by or with her.* • Crawford v. Feder. 34 J?la. 397, 1(3 So. 287; Crawford v. Tiedeman, 35 Fla. 27, 16 So. 900. 'Duval V. CheU. 92 Va. 490, 23 S. E. 893; Stern Bros. v. Frenkel, 4 Va. Law Reg. 460. ' Van Buren v. Swan, 4 Allen, 380. * Strauss v. Glass, 108 Ala. ii46, 18 So. 520. 371. Sufficiency of allegations. An averment that a maiTied woman was, with another, seised of an estate in fee simple in certain land at a specified time, sufficiently shows tbat such land was her separate estate.^ ^Baniash v. Scheuer, 81 Wis. 269, 51 N. W. 330. An allegation in a complaint by a man-ied vvoman, that she is the owner, and that the property involved in the action is her sole and separate property, is not obnoxious to the objection that it is a coaiclusion of law; as it is not necessarj' to plead evidentiary matters, — such as the deraignment of the title, ifemp v. Folsum, 14 Wash. 16, 43 Pac. 1100. A bill to subject the separate property of a, married woman to the pay- ment of a note, alleging that under the will of her father she is the owner of a certain separate estate, describing a designated lot, as well as other property afterwards settled upon her by a deed conveying it to a trustee, — is insuEicient to show that such lot is her separate estate. Bank of Shelby v. James, 9.5 Tenn. 8, 30 S. W. 1038. Master and Servant. 372. Employment, — ^necessity and suffi- 373. Knowledge of defect. ciency of allegations. 374. Fellow servants, — incompetency. 372. Employment,— necessity and sufficiency of allegations. In an action for personal injuries the relation between the parties VII. FOB INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 591 should be averred, so that it may be detennined whether the defend- ant was under a legal duty to protect the plaintifE from the defect or surroundings which caused the injury.^ But the declaration in an action for personal injuries need not al- lege employment, where such allegation would not increase the meas- ure of diligence required of either party. ^ 'A complaint alleging that plaintiff went to defendant's warehouse at the request of his employer, to see that cars were properly loaded, and was injured by falling through an unprotected opening for an elevator, fails to state a cause of action in the absence of an allegation as to who his employer was. South Bend Iron Works v. Larger, 11 Ind. App. 367, 38 N. E. 209. An allegation in a declaration by an employee against a corporation fot personal injuries, that plaintiff at the time of receiving the injuria" was, and for a long time had been, employed by the defendant in anfJ about its grounds, buildings, and machinery, to assist in the work oi carrying on its foundry business, and at the time of receiving such in- juries was engaged in said employment on its grounds, near a certain pile of iron posts or columns, — sufficiently sets forth his relation to the corporation as its servant or employee engaged in the duties of his em- ployment, to show that it was bound to exercise due care not to expose hiim unnecessarily to injury. Di Marcho v. Builders Iron Foundry, 18 R. I. 514, 27 Atl. 328, 28 Atl. 661. " Chicago Economic Fuel Gas Go. v. Myers, 64 111. App. 270. A petition against a railway company for personal injuries, alleging that they were caused by the negligence of the company's servants, who saw plaintiff in a perilous position on the track in time to have stopped the train, is not bad in not stating the relation of plaintiff to the com- pany, since it would be liable whether he was a, trespasser or its em- ployee. Reardon v. Missouri P. It. Co. 114 Mo. 384, 21 S. W. 731. 373. Knowledge of defect. A servant injured by reason of defective or dangerous appliances must allege that the danger was unknown to him, but was known to the master, or might have been ascertained by the exercise of ordinary care.-* ^ Dixon V. Western U. Teleg. Co. 68 Fed. 630; Spelman v. Fisher Iron Co. 56 Barb. 151 (Citing Wright v. New York C. R. Co. 25 N. Y. 562; Thompson v. Chicago, It. I. & P. R. Co. 2 Mo. App. Rep. 633). An employee suing for personal injuries from defective machinery furnished by his employer need not allege, in addition to the averment that he did not know of the defect, that he could not have known of it by the use of ordinary care and prudence. Evansville & T. H. R. Co. v. Duel, 134 Ind. 15G, 33 N. E. 355. 592 BEIEF ON PLEADINGS DEMUKEER. A complaint in an action for personal injuries by an employee against the employer stutcs a cause of action where it avers that the defendant n^- ligently and carelessly fastened a cable to an elevator furnished by him for the use of his employees, and knowingly allowed the same to re- main in such defective condition up to the time of the injury to plain- tiff; that the defect was unknown to plaintiff, and that he had no means of learning thereof prior to the injury; that it became his duty in the course of his employment to ride on the elevator, and that, while so doing, in the exercise of due and ordinary care, the elevator, by rea- son of such negligent clamping, became unfastened from the cable anrl fell and injured him. Anderson v. Hayes, 101 Wis. 519, 77 N. W. 903. But where injuries result from negligent construction and not from ill re- pair, a complaint in an action by an employee for personal injurie.s caused by the negligent construction of appliances need not show that his opportunities for discovering the defects were not equal to those of the employer. Salem Stone & Lime Co. v. Griffin, 139 Ind. 141, 38 N. E. 411. Nor need ignorance of the dangerous condition of the working place be alleged by one suing his master for injuries, where sucih allegation only relates to the defense of contributory negligence. Hall v. 8t. Joseph Water Co. 48 Mo. App. 356 (Citing Young v. Shickle, H. & H. Iron Co. 103 Mo. 328, 15 S. W. 771). An allegation that the employer knew of the defect and that the employee did not know of it includes actual and constructive knowledge. Hel- tonville Mfg. Co. v. Fields, 138 Ind. 58, 36 N. E. 529. As to the necessity for an averment of knowledge on the master's part, and of ignorance on the plaintiff's part, see note to Walkouski y. Penokee & G. Consol. Mines (Mich.) 41 L. R. A. 145, 148. 374. Fellow servants, — incompetency. A declaration of injury to a servant need not affirmatively allege that it was not caused by fellow servants.^ But if it appears that the inj ury was due to the negligence of de- fendant's servants it should be alleged that they were not the plain- tiff's fellow servants.* In an action for personal injuries, no averment is necessary that the plaintiff and an employee of the defendant, by whose negligence plain- tiff was injured, were not fellow sei'vants, where it is alleged that de- fendant retained such employee, knowing him to be incompetent.^ The avei'ments that the accident by which the plaintiff was injured was caused by the negligence of a fellow servant, who was inexperi- enced and incompetent, and that defendant employed him witli knowledge of his inexperience and unskilfiilness, but that plaintiff was igTiorant thereof, are sufficient to withstand a demurrer.* VII. — son iNSiTii-iaciEAXY ; paktioulae allegations. 593 An allegation that employees were negligent and careless is not equivalent to an allgation that they were incompetent.' A declaration for injuries alleged to have been occasioned by the incompetency of the defendant's sei-^'ant need not set out the particu- lars of his incompetenoy.* ^Crippen v. Gallaghan, 156 111. 549,, 41 N. E. 178; Libby McN. & L. v. Schermaii. 146 III. 540, 34 N. E. 801. An allogatiou denying the relationship of fellow servants is not necessary in an action for injuries to an employee, where the facts showing the relationship that did, in fact, exist are stated in the pleading. Chicago City 11. Co. v. Leach, 80 111. App. 354. The declaration in an action by a baggageman on a railroad train, for in- juries alleged to have been caused by the negligence of the engineer, need not aver that they were not fellow servants, where the facts show- ing their relations are set out therein. Chicago A A. K. Co. v. Swan, 176 111. 424, 52 N. E. 910. 'East St. Louis Comiecling R. Go. v. Dayer, 41 111. App. 522. A declaration by an employee against a corporation for personal injuries, which alleges that the corporation threw, or caused to be thrown, a box by reason of which plaintift' was injured, must set forth the. relation to the corporation of the person who threw the box or caused it to be thrown, so that it may appear that he was not a fellow servant with the plaintifr. Di Marcho v. Builders' Iron Foundry, IS R. I. 514, 27 Atl. 328, 28 Atl. 661. An allegation in a complaint in an action by a servant against his master for personal injuries, that the employee whose negligence caused the injury was defendant's agent, with full authority "to control the work of, and to employ and discharge, the plaintiff from his employment, as well as other servants of said defendant," — is insufficient to show him to be a. vice principal, and not a fellow servant, in the absence of any allegation showing that some duty of the master has been violated. New Pittsburgh Coal (C- Coke Co. v. Peterson, 136 Ind. 398, 35 N. E. 7. But a declaration in an action for personal injuries to an employee, alleg- ing negligence on the part of defendant corporation, is sufficient, al- though it fails to allege that the servant of defendant, through whose negligence the injury was caused, was not a fellow servant of plaintiff, and though the defendant could act only by its agents or servants. Braun v. Conrad Seipp Brewing Co. 72 111. App. 232. A complaint alleging that the fire causing the death of plaintiff's intestate originated in the dynamo room of defendant's building, from defects in the appliances and machinery operated therein and the defective insula- tion of the wires, and that the fire was "wholly due to the carelessness and negligence of defendant," states a cause of action, notwithstanding an allegation of negligence in fellow servants in failing to put out the fire. Pzepka v. American Glucose Co. 11 Misc. 131, 31 N. Y. Supp. 1019. A declaration against a railroad company for personal injuries to an em- Abb. Pl. Vol. I.— 38. 59'i BEIEF ON PI/EADINGS DEMUEKEB. ployee sufficiently shows that the negligence of the employee which caused the accident was not that of a fellow servant, in averring that plaintiff was a fence builder and the employee who carelessly injured him a, locomotive engineer, and that while plaintiff was attempting to get on a car for a proper purpose he was injured through the negligence of the engineer. Louisville, E. & St. L. Consol. R. Go. v. Hawthorn, 147 111. 226, 35 N. E. 534, Affirming 45 111. App. 635. A paragraph of a complaint against a corporation for the death by negli- gence of an employee is not bad as affirmatively showing the injury to have been caused by the negligence of a coemployee, in alleging that "defendant by its agents and employees acting under the orders of its superintendent and foreman" committed the wrongful act which caused such death. Boosier Stone Go. v. McCain, 133 Ind. 231, 31 N. E. 956. A complaint in an action to recover for personal injuries caused by the negligence of the defendant is not demurrable on the ground that the pleading shows that the plaintiff's injuries were caused either by his own negligence or that of a fellow servant, where, under its allegations, evidence might be introduced sufficient to establish a cause of action and the facts set forth present a question for the jury. Birmingham v. Duluth, M. & N. R. Co. 70 Minn. 474, 73 N. W. 409. * East St. Louis Connecting R. Co. v. Shannon, 52 111. App. 420. A petition for personal injuries to a railway brakeman alleged to have been caused by the negligence of the conductor, averring that such con- ductor was incompetent and that the company knew of his incompe- tency or might have known of it by due care and diligence, and that plaintiff had no knowledge thereof, is good on general demurrer not- withstanding the other allegations show the conductor to be the brake- man's fellow servant. Campiell v. Coolc, 86 Tex. 630, 26 S. W. 486, Reversing (Tex. Oiv. App.) 24 S. W. 977. • Conrad v. Cray, 109 Ala. 130, 19 So. 398. A petition in an action by an employee against his employer for personal injuries sustained by defective machinery is fatally defective for failure to aver that the latter had knowledge of the defect, or, in the exercise of ordinary care, should have known of it, or that he knew, or should have known, of the incompetency of the employee operating it, or that the plaintiff had no knowledge of such defect or incompetency. Eenkel V. Stahl, 18 Ohio C. C. 831. Allegations that an employee in charge of an engine was not a skilled or practical engineer, but was incompetent, and that the company was negligent in employing and retaining him, are insufficient to charge the company with liability to another employee who sustained injuries by the alleged negligence of the engineer, unless it is also averred that such other was himself ignorant of the engineer's incompetency. Spencer v. Ohio <6 M. R. Go. 130 Ind. 181, 29 N. E. 915. A direct allegation of the servant's want of knowledge of the incompetency of his fellow servants is sufficient, without averring that he did not have an opportunity equal to that of the master to know of such in- Vn. FOR INSDFJj-ICIElSrGY ; PAllTICULAE ALLEGATIONS. 595 competency. Louisville, N. A. d C. R. Go. v. Breedlove, 10 Ind. App. 657, 38 N. E. 357. A petition in an action for personal injuries to an employee, alleging that the employer's act in employing the servant by whose negligence plaintiff was injured was careless and negligent, and that in conse- quence thereof an incompetent servant was employed, eufiSciently avers that the employer knew or ought to have known of the servant's in- competency. Oalveston Rope & Twine Co. v. Burkett, 2 Tex. Civ. App. 308, 21 S. W. 958. 'Kelly V. Gaile Co. 13 Mont. 411, 34 Pac. 611. " Johnston v. Canadian P. R. Co. 50 Fed. 886. The incompetency of a, railroad employee as an engineer is sufficiently alleged in a complaint averring that such employee was not a locomo- tive engineer, and that he was incompetent to run and operate the locomotive, although it does not allege in speciiic terms wherein and why he was incompetent. Chicago & E. I. R. Co. v. Bcatty, 13 lad. App. 604, 40 N. E. 753, 42 N. E. 284. MiSNOMEK. See also Name, §§ 384-392, infra. 375. Demurrer for misnomer. The objection that the plaintiff sues, or the defendant Is sued, in a name which is not the correct one, is not available on demurrer.^ ' Paine v. Waterloo Gas Co. 69 Iowa, 211, 28 N. W. 560 ("Limited" omitted from associate name). In a, suit on a, note payable to pladntiflf as probate judge and ex officio trustee of the county school fund, and his successors in office, it was held that the objection that he sued for the use of the school fund trustees of section 16, etc., not naming them, instead of for the use of trustees of schools and school lands of township No. 21, etc., could not be raised by demurrer, but only by plea in abatement. Hudson v. Poindexter, 42 Miss. 304. Misnomer of a defendant municipal corporation cannot be taken advantage of by demurrer. Crocker v. Collins, 37 S. C. 327, 15 S. E. 951. An objection of misnomer of the plaintiff can only be pleaded in abate- ment. Springfield Consol. R. Co. v. Soeffner, 175 111. 634, 51 N. E. 884. A plea in abatement on the ground of misnomer must not only aver the true name of the person misnamed, but must also negative the fact that he is or was known and called by the name employed. Freeman v. Pullen, 119 Ala. 235, 24 So. 57. The fact that a corporation has misnamed itself in the pleadings and papers in an action is not a ground of demurrer, as the error is merely formal, and amendable. Empire State 8a^. Bank v. Beard, 81 Hun, 184, 30 N. y. Supp. 756. A "railroad" company sued as a, "railway" company c?innot obtain any 596 BEIEF ON PLEADINGS DEMUKEEE. relief by reason of the difference in the names, in the absence of a plea in abatement, although there are two corporations whose names differ only in that respect. Houston & T. V. B. Go. v. Weaver (Tex. Civ. App.) 41 S. W. 846. Mistake. 376. General allegation. 377. Mutuality. See also Fraud, §§ 298-301, supra; Misnomeb, § 375, supra. 376. General allegation. A general allegation that tlie instrumeBt was made by mistake is not enough. The true intent and the erroneous provision must both be stated.^ ^ Gains v. Park, 3 B. Mon. 223, 38 Am. Dee. 185 (Mistake in account). In an action to reform a, written instrument the complainant should allege the mistake, and set forth the agreement as made, and that which the parties intended to make. Kilgore v. Redmill, 121 Ala. 485, 25 So. 766 (Citing Campbell v. Hatohett, 55 Ala. 548). The complaint in an action to reform an instrument on the ground of mutual mistake, or mistake on the part of plaintiff, and fraud on de- fendant's part, must set up the mistake or fraud relied on. Gaffney Mercantile Co. v. Hopkins, 21 Mont. 13, 52 Pac. 561 (Citing Gamble V. Knott, 40 Ga. 199; McMinn v. Patton, 92 N. C. 371; Anderson v. Logan, 105 N. C. 266, 11 S. E. 361). An allegation that an award was obtained through inadvertence, misap- prehension, mistake, or undue bias or partiality of the referee, without any specification of matters of fact, is bad. on demurrer. Graft r. Thompson, 51 N. H. 536. An allegation in a complaint in an action to reform a deed, that it was the actual intention of both parties to purchase and convey the prop- erty by an amended description given in the complaint, is sufficient in the absence of a demurrer, although there is no express allegation set- ting forth the original agreement and understanding of the parties, pointing out with clearness and precision wherein the mistake con- sisted, and showing that it did not arise from the gross negligence of plaintiff. Osborn v. Ketchum, 25 Or. 352, 35 Pac. 972. A bill for the correction of the lines of a. deed, which points out what particular lines are wrong, and states how such lines should be drawn to be correct, and states that the right lines were marked at the date of an agreement as to such lines by the parties to the deed, sufficiently shows the mistake in the deed. Anderson v. Jarrett, 43 W. Va. 246, 27 S. E. 348. 377. Mutuality. Where the pleader relies on a mistake in reducing to writing the VII.— FOR INSUFFICIENCY ; PARTICULAK ALLEGATIONS. 597 coDtract sued on, as distinguished from a mutual mistake in the mak- ing of the contract, an allegation that the mistake was mutual is not necessary.^ A mutual mistake must be alleged where it is sought to reform a written instrument.^ ^Pitcher v. Hennessey, 48 N. Y. 415; Born v. Schrenkeisen, 110 N Y 55 17 N. E. 339. " An allegation that, by mistake, a description different from that intended by the parties to an agreement was inserted therein, sufficiently alleges that the mistake was mutual. Newion v. Hull, 90 Cal. 487 27 Pac 429. Mutual mistake is sufficiently averred by an allegation substantially to the effect that it was the mutual understanding and intention of the parties, that certain land should be described in and conveyed by a certain deed, which does not in fact describe such land. Seegelken v. Corey, 93 Cal. 92, 28 Pac. 849. An answer in an action for damages for breach of a covenant against encumbrances contained in a deed, which alleges that such deed does not contain a correct expression of the intention of the parties in re- gard to the transaction, sufficiently alleges the mutuality of the mis- take. Hotaling v. Tecumseh Nat. Bank, 55 Neb. 5, 75 N. W. 242. The averhient in an answer in an action to foreclose a mortgage, that the insertion of the assumption clause in the deed was by accident or mis- takej and that the same did not conform to the actual intention of the parties, is in effect an averment of a mutual mistake which will sup- port' a prayer for reformation. King v. Sullivan, 31 App. Div. 549, 52 N. Y. Supp. 130. A complaint in an action to reform and foreclose a mortgage, alleging that when the mortgage was executed both parties intended that it should include specified land, and that in dramng the mortgage the descrip- tion was erroneously given, sufficiently alleges a mutual mistake. Mur- doch V. Leonard, 15 Wash. 142, 45 Pac. 751. Money Had and Eeceived. 378. Sufficiency of allegations. A petition in assumpsit for money had and received, in the com- mon-law form, is peiinissible under the Missouri Code.* The common counts in assumpsit, without any averment of the fraud relied upon, are sufficient in California, in the absence of a special demurrer, for tJie recovery of money which a party to the contract Avas induced to pay the other party by the latter's fraudulent represen- tations as to the performance of certain conditions thereunder.^ A common count in assumpsit sufliciently complies with the re- 598 BEIEF ON PLEADINGS ^DEMUKEEE. quirements of the Codes of Civil Procedure, that the complaint must state the facts which constitute the cause of action.'' Allegations to the eilect that defendant has received money from plaintiff, without consideration, amount to a declaration for moneys had and received.* Where the defendant has received money from a third person, even though he received it under a claim of title to it in opposition to plaintiff's right, yet, if he had, by law, authority to receive it from such person, and in equity the plaintiff ought to have it, this count for money had and received can be sustained." In Connecticut, common counts for money had and received can only be used as an entire complaint in an action, and can never follow a special count setting up the facts relied upon.^ ' Pipkin V. National Loan & Invest. Asso. 80 Mo. App. 1. ' Minor v. Baldridge, 123 Cal. 187, 55 Pac. 783 (so held on error). 'Fulton V. Metropolitan L. Ins. Go. 4 Misc. 76, 23 N. Y. Supp. 598 (so held on error; Citing Allen v. Patterson, 7 N. Y. 476, 57 Am. Dec. 542; Far- ron T. Sherwood, 17 N. Y. 227, 229; Hosley v. Black, 28 N. Y. 438; Burst V. Litchfield, 39 N. Y. 377; American Nat. Bank v. Wheelock, 13 Jones & S. 205; Evans v. Harris, 19 Barb. 416; Oudlipp v. Whipple, 4 Duer, 610; Bates v. Cobb, 5 Bosw. 29; Adams v. Eolley, 12 How. Pr. 326; Belts v. Bache, 14 Abb. Pr. 279; Sloman v. Schmidt, 8 How. Pr. 5; Goelth v. White, 35 Barb. 76; Raymond v. Banford, 6 Thomp. & C. 312; Fells V. Vestvali, 2 Keyes, 152). * Guarantee Sav. Loan & Invest. Co. v. Moore, 35 App. Div. 421, 54 N. Y. Supp. 787. It is well settled in principle and authority that where there has been a- total failure of consideration, or where a contract has been abandoned, or has been rescinded, an action will lie for money had and received to recover back any money paid by either of the contracting parties to the other in furtherance of the contract. Fulton v. Metropolitan L. Ins. Go. 4 Misc. 76, 23 N. Y. Supp. 598 (Citing Raymond v. Bearnard, 12 Johns. 274, 7 Am. Dec. 317; Ghesapeake d 0. Canal Go. v. Knapp, 9 Pet. 541, 566, 9 L. ed. 222, 231; Undsley v. Ferguson, 49 N. Y. 625). But a petition alleging that defendant insurance company had received a specified amount, clandestinely paid to defendant by plaintiff's wife without his Icnowledge or consent, is not sufificient as a declaration for money had and received, where it appears that the payments were made for insurance on the life of the wife, and it is not alleged that the defendant's officers knew that the money belonged to plaintiff, or that the consideration was bad. Taylor v. Metropolitan L. Ins. Co. 20 Ky. L. Rep. 299, 45 S. W. 1051. 'Bpengemam v. Palestine Bldg. Asso. 60 N. J. L. 357, 37 Atl. 723 (Citing Moses V. Macferlan, 2 Burr. 1005 ; Sergeant v. Stryker, 16 N. J. L. 464, 32 Am. Dec. 404). VII.- — FOE INSCFMCIENOY ; PAETICULAE ALLEGATIONS. 599 A count for money had and received is applicable to almost every case where money has been received by one, which in equity and good con- science ought to be refunded or paid to another. Jackson v. Hough, 38 W. Va. 236, 18 S. E. 575 (Citing Thompson v. Thompson, 5 W. Va. 190). • MoNamara v. McDonald, 69 Conn, 484, 38 Atl. 54. But in Virginia, a declaration containing the common count in assumpsit fcr money had and received, and a special count averring the purchase of land under a, contract, the breach of a condition precedent, which was the main inducement to the purchase, for the erection of a hotel according to certain plans and specifications, and the giving of written and oral notices of the failure of the building erected to correspond to the plans and specifications, — is not demurrable. Buena Vista Go. v. McCandlish, 92 Va. 297, 23 S. E. 781. In this case the court quotes from Johnson v. Jennings, 10 Gratt. 1, 60 Am. Dec. 323, where Judge Moncure says : "There can be no doubt but that, if money be paid on a, contract of sale, which is wholly rescinded, either by the mutual con- sent of the parties, or by virtue of a clause contained therein, or the consideration of which wholly fails, the party making such payment, if he has been guilty of no fraud or illegal conduct in the transaction, may recover back the money under the common count for money had and received. And, though that is the usual and better mode of count- ing in such cases, there can be no legal objection to a special count, properly setting out the facts from which the cause of action arises. But it must appear with sufiScient certainty, from the facts so set out, or from apt averments made in the count, that the consideration has wholly failed, and that such failure did not proceed from any fraud or illegal conduct on the part of the plaintiff." One who has done everything to be executed on his part may, where noth- ing remains to be done but the performance of a duty on the part of the other party to a contract to pay money due the former under the contract, recover upon the common counts in assumpsit, without declar- ing specially. Jackson v. Bough, 38 W. Va. 236, 18 S. E. 575 (so held on error ) . Money Lent. 379. Sufficiency of averments. A complaint alleging that defendant is indebted to plaintiif in a specified amount for money loaned and advanced at the special in- stance and request of the former, and that he agreed to repay the same which, with the interest, is due and wholly unpaid, and that plaintiff demanded payment before suit, which was refused, is sufficient in the absence of a motion to make more specific* The common counts may be used to state a cause of action for money loaned, notwithstanding a statutory provision that the com- 600 BEIEF ON PI^EADIA'OS DEMUBEEE. plaint must state the facts ('onstitnting a eaiise of action in ordinary and concise language." ^ Lemmon v. Reed, 14 Ind. App. 055, 43 N. E. 454. In pleading a loan of money as a defense to an action, it is not necessary to aver that it is due, as the presumption of law is that it is due at once. PetraMnn v. Arleety, 23 N. Y. Civ. Proe. Rep. 183, 26 N. Y. Supp. 731. 'Pleasant v. fianiaels, 114 Cal. 34, 45 Pac. 998 (Citing Freeborn v. Olazei\ 10 Cal. 337; Abadie v. Garrillo, 32 Cal. 172; Fanoell v. Murray, 104 Cal. 464, 38 Pac. 199). And this rule has been recognized and acted upon in most of the states where the code procedure has been adopted. Allen v. Patterson, 7 N. Y. 476, 57 Am. Dec. 542; Cudlipp v. Whipple, 4 Duer, 610; Orannis v. Booker, 29 Wis. 65; Ball v. Fulton County, 31 Ark. 379. See also cases cited under § 378, supra. Mortgage. 380. Necessity of averments. 382. Conclusion, — presumption. 381. Sufficiency of averm.ents. 380. Necessity of averments. A petition for tlie foreclosure of a real estate mortgage must state whether any proceeding at law has been had for the recovery of the mortgage debt, or any part thereof.' But a complaint for the foreclo- sure of a purchase naonoy mortgage need not allege that it was exe- cuted by the mortgagor's wife.^ l^or need a bill by a single bondholder for the foreclosure of a mortgage made to secure a series of bonds allege that the suit is brought for the benefit of himself and the other bondholders, where default has been made only on the bonds held by him.* In an action by a mortgagee who had no knowledge of prior encum- brances to foreclose a mortgage executed by one holding the record title, the plaintiff need not allege that he is a purchaser for value.* j^or is it necessary in an action to recover land from a purchaser from a grantee under a deed absolute on its face, but intended as a mort- gage, to negative the matter of defense that such purchaser was an innocent one.^ A complaint in foreclosure need not define the respective interests of the defendants in the mortgaged property, where the nature of such interests is unimportant to the relief sought.^ A petition in an action to foreclose a chattel mortgage, by its terms subject to a prior one on the same property, need not contain any al- vn. — FOE insufficiency; pakticulak at.lewations. 601 legation in regard to sudi prior mortgage, where the holders thereof are not parties to the suit.'^ Eut a complaint by a grantor against the grantee to enforce in equity the hitter's assumption of a mortgage debt upon the premises conveyed must aver tliat the debt, or some part of it, is due and unpaid.*" ' Bing v. Morse, 51 Neb. 842, 71 N. W. 712. An averment in a complaint to foreclose a mortgage, that no other fore- closure proceedings have been instituted than proceedings to foreclose by advertisement, which have been enjoined, is not a, compliance with Dak. Comp. Laws, § 5434, requiring such a complaint to show upon its face whether any proceedings have been had at law or otherwise for the recovery of the debt secured by the mortgage; and such suf- ficiency renders the complaint vulnerable to demurrer. FUher v. Bouts- son, 3 N. D. 493, 57 N. \Y. 505. The averment in a complaint in a foreclosure action, that no proceedings have been had, at law or otherwise, to the knowledge and belief of plaintiff, for the recovery of the sum secured by the bond and mort- gage or any part thereof, is a sufficient compliance with N. Y. Code Civ. Proe. § 1629, requiring the complaint to state whether any other action has been brought to recover any part of the mortgage debt, and if so, whether any part thereof has been collected, to withstand a de- murrer on the ground that the complaint does not state facts sufficient to constitute a cause of action. Bottom v. Chamberlain, 21 Misc. 556, 47 X. Y. Supp. 733. * Butler V. Thombnrgh, 141 Ind. 152, 40 N. E. 514. • UcFadden v. Mays Landing d E. H. City R. Co. 49 N. J. Eq. 176, 22 Atl. 932. 'OUphant v. Bunts, 140 X. Y. 218, 40 N. E. 980. 'Overall v. Ava7it (Tenn. Ch. App.) 46 S. W. 1031. 'Dunham v. Dorcmus, 55 N. J. Eq. 511, 37 Atl. 62. ' Wynne v. Admire, 4 Tex. Civ. .\pp. 45, 23 S. \V. 418. ^ Stanton v. Kenricl:, 135 Ind. 382, 35 N. E. 19. 381. Sufficiency of averments. An averment in a complaint on foreclosure, that a defendant named "has or claims to have some interest or claim upon said premises," is sufficient to show him to he a proper party defendant The character of his interest need not be set forth.* And defendants, who are alleged in the complaint in an action to foreclose a mortgage to claim some interest in or lien upon the prem- ises subsequent to the lien of plaintiff's mortgage, cannot, by demurrer to the complaint on the ground that it does not state a cause of action, raise the point that such mortgage is void on its face as to creditors 602 BEIEF ON PLEADINGS DBMUEEER. and subsequent encumbrancers, but only tliat the complaint does not sbow a valid mortgage as between the i^arties.^ A complaint in an action to enforce a mortgage on a widow's dower interest, which does not show facts from which the portion of the mortgage debt properly chargeable to such dower interest can be as- certained, is bad on demurrer.^ An allegation in a complaint in an action for foreclosure, that the liolder of the property purchased it subsequent to the execution of the mortgage, and assumed its payment, is sufficient to support a personal decree against him.* An allegation that there is due complainants "the taxes of the last year, which they have paid," in a complaint to foreclose a mortgage providing that all sums advanced for taxes may be allowed in an ac- tion to foreclose the mortgage, is sufficient to authorize the allowance of the money thus paid.^ ' Sichler v. Look, 93 Cal. 600, 29 Pac. 220, 223. A complaint to foreclose a mortgage need not state the nature of, or the facts constituting, the claim of another lien-holder, but it is sufficient, if anything is required, to state that he claims some interest in the mortgaged premises, and that his claim or lien will be barred if he fails to appear and disclose it. Winemiller v. Laughlin, 51 Ohio St. 421, 38 N. E. 111. 'Hoicard v. Iron & Lcmd Go. 62 Minn. 298, 64 N. W. 896. 'Fowle V. House, 29 Or. 114, 44 Pae. 692. ' Petteys v. Comer, 34 Or. 36, 54 Pac. 813 (Citing Braman v. Dotese, 12 Cush. 227). The averment in a complaint, that the defendants, as part of the considera- tion and purchase price of a portion of mortgaged premises, in the deed conveying the premises to them, expressly assumed and agreed to pay one half of the mortgage debt, is sufficient, and it is not neces- sary to aver that the defendants knew of, and assented to, the assump- tion agreement. Stites v. Thompson, 98 Wis. 329, 73 N. W. 774. A deed of lands covered by a mortgage securing a purchase money note given by the grantors, containing a covenant "excepting note to" the grantors' grantor "and with said mortgage . . . the said . . . assumes and agrees to pay,"^ — is not so uncertain as to who assumed the note and mortgage as to require anything more in the complaint in foreclosure than an allegation of the alleged assumption, since it could not apply to the grantors, who were already obliged to pay the note and mortgage. Holcomb v. Thompson, 50 Kan. 598, 31 Pac. 1081, 32 Pac. 1091. But an allegation in a complaint by the assignee of notes and a mort- gage made to "John L. Merriam," in an action against a purchaser of the mortgaged premises, who assumed and agreed in his deed to pay VII. FOE INSUFFICIENCT ; PAETICULAE ALLEGATIONS. 603 a mortgage given by the same mortgagor to "John L. Merriam and wife," that the words "and wife" are surplusage, and were inserted in the deed by mistake, is a mere conclusion of law, and does not show that defendant assumed plaintiff's mortgage. Clifford v. Minor, 67 Minn. 512, 70 N. W. 798. • McGasland v. Allen, 60 111. App. 285. 382. Conclusion, — presumption. An allegation that the holder of a coupon cut from a bond secured by a mortgage cannot compel the trustee in the mortgage to foreclose i? bad as a mere allegation of a legal conclusion, where the facts upon which it is based are not disclosed.^ So, the averment in a petition in an action to redeem from a sale under a deed of trust, that the sale was advertised only in an obscure newspaper, is only a conclusion of law.^ And the averment in a complaint that a chattel mortgage was ex- tended to a certain date is a mere conclusion of law, and does not sufficiently allege compliaiice with a statute prescribing the manner in which a lien of a chattel mortgage may be extended after the ma- turity of the debt.* The presumption of the satisfaction of a mortgage, arising from a lapse of twenty years after maturity without payment or demand of any part of the principal or interest, or entry by the mortgagee into possession, may be taken advantage of by demurrer to a bill for the enforcement of the moi-tgage, where it does not aver circumstances rebutting' such presumption.* ^Holmes v. Seashore Elecirio B. Go. 57 N. J. L. 16, 29 Atl. 419. 'Jopling V. Walton, 138 Mo. 485, 40 S. W. 99. ' Cope V. Minnesota Type Foundry Go. 20 Mont. 67, 49 Pac. 387. ♦ Stimis V. Stimis, 54 N. J. Eq. 17, 33 Atl. 468. MUNKHPAL COEPOEATIONS. 383. Allegation of incorporation. A complaint describing defendant, a specified village, of a given state, as a municipal coi-poration, suiEciently alleges its existence and character as a village coi-poration.^ ' Clark V. North Muskegon, 88 Mich. 308, 50 N. W. 254. In an action against a city for personal injuries from a defective street, an allegation of the existence of the street since the date of "the or- ganization of the said city," which was prior to the injury, sufficiently sets forth the corporate existence of the defendant. Eskridge v. Lewis, 51 Kan. 376, 32 Pac. 1104. 604 liHLKii' ON PJLI-;A0IXUS DHMUliBEE. A complaint in an action by Tex. Civ. App. 445, 29 S. W. 392; Perkins v. McDowell, 3 Wyo. 328, 23 Pac. 71; Sarony v. Burrow-Giles Lithographic Co. 17 Fed. 591. A complaint alleging that "Joel S. J." and "Georgia C. J." executed and delivered to plaintiff a certain promissory note, which is set out in full and purports to have been signed by "J. S. J." and "G. C. J.," suffi- ciently identifies the makers of the note as "Joel S. J." and "Georgia C. J." Humholdt 8av. & L. Soo. v. Burnham, 111 Cal. 343, 43 Pac. 971. Where defendant's answer set out the full names of all the parties, it was held that the complaint was defective, but the defect was cured by the answer. Sherrod v. Shirley, 57 Ind. 13. A complaint giving only the initials of the Christian names of the parties is demurrable under Ind. Rev. Stat. § 338, requiring it to state the "names" of the parties, where the defect is not cured. Bascom v. Toner, 5 Ind. App. 229, 31 N. E. 856. A plea in abatement to a writ describing the parties by the initial letters of their first and middle names, objecting that the initial letter of de- fendant's middle name is different from that given in the writ, is de- murrable where it does not state the first nan)e of the defendant, unless the letter is in fact his real name, and it is so stated in the plea. Davis V. PhilhrioJc, 87 Me. lUG, 32 Atl. 874. Compare Fisher v. Northrup, 79 Jlich. 287, 7 L. R. A. 629, 44 N. W. 610, holding that where it was conceded that the letter was only an initial, and the attorney could not amend because he did not know the name, nor ask time to ascertain it, motion to dismiss must be granted. Judg- ment reversed for error in holding the contrary. A complaint to foreclose a mortgage in an action brought in the full name of the plaintiff, in which it is alleged that defendant made and delivered his promissory note to a person designated by the same surname as plaintiff, but by the initial only of his Christian name, and made and executed a, mortgage to such person, must allege that plaintiff and the person so designated are one and the same, or that such person has transferred the note and mortgage to the plaintiff, or that plaintiff is 606 BEIEF ON PLEADINGS DEMTTEEEB. the owner and liolder thereof. Andrcocs v. Wynn, 4 S. D. 40, 54 N. W. 1047. The recital in a scire facias on an appeal bond, that one described by hie surname and the initial letter of his lirst name executed the bond as principal, sufficiently identifies the person named with the person re- cited as principal in the bond, and described therein by the same sur- name and by a given name the initial letter of which corresponds to that recited in the scire facias. Robinson v. State, 34 Tex. Crim. Rep. 131, 29 S. W. 788. As to omission of first names of partners, see Rogers v. Verlander, 30 W. Va. 019, 5 S. E. 848. 387. Introductory description of plaintiffs. The fact that the action is brought not only on behalf of the indi- vidual plaintiffs named, but as well for the benefit of others similarly interested, sufficiently appears from an introduction in the complaint describing the plaintiffs as "suing in behalf of themselves and of all fttlier ' creditors, without a direct allegation that they are suing for the benefit of the whole.-' A bill by one stockholder of a corporation purporting to sue for the benefit of himself and other stockholders in like situation will be re- garded as brought in his own interest alone, where it fails to show or raise a fair inference that other stockholders desire or will be bene- fited by the relief sought.^ Eut in an action brought by a person for himself as well as for others, it need not be alleged that plaintiff has a common interest with such others for whose benefit he sues, where the facts are pleaded, from which the court can draw the conclusion of common interest* An action brought by a property owner on behalf of himself and all other abutting property owners, to enjoin a city from granting a fran- chise to a street railway, will be considered as brought solely for the benefit of the plaintifl', if the other property owners do not unite in the action brought.^ ' Cochran v. A-merican Opera Co. 20 Abb. N. C. 114. Dennis v. Kennedy, 19 Barb. 517, holding that a complaint by one or more of a numerous class may state that the plaintiffs sue for the benefit of those interested who may "come in and contribute to the expenses;" for, under the established practice, the words of the Code (§ 119), "for the benefit of the whole," mean no more. A complaint by a creditor at large of a deceased insolvent debtor to set aside fraudulent transfers of property by the deceased must distinctly avor in its body, as distinguished from the title, that the action is VII. FOlt INSUFlflCIENCY ; PABTICULAR ALLEGATIONS. 607 brought for the benefit of plaintiff and other creditors interested. Louis V. Belgard, 43 N. Y. S. R. 766, 17 N. Y. Supp. 882. But a creditor who brings an action to restrain the sheriff from turning over assets of the assignor for creditors to the assignee, declared elected at a, meeting of the creditors, under Cal. Civil Code, § 3449, upon the groimd that such election was invalid, need not aver that the action is for the benefit of all the creditors, although, if he succeeds, the result inures to the advantage of all. Menlce v. Lyndon, 124 Cal. 160, 50 Pac. 883. • Watson V. Umted States Sugar Ref. Co. 15 C. C. A. 662, 34 U. S. App. 81, 68 Fed. 769 (averment too general and indefinite). ■ Hilton Bridge Consir. Co. v. Foster, 26 Misc. 338, 57 N. Y. Supp. 140. 'Linden Land Go. v. Milwaukee lUeotric li. & Light Co. 107 Wis. 493, 83 N. W. 851. 388. Bepeating names of parties. When the parties have once been named in the title of the pleading it is unnecessary' to repeat their name in the body of the pleading,^ but they may be referred to there in any manner that will sufficiently designate them, — as, for instance, by surname,^ or by the words "the plaintiff," "the defendant," where they are so described in the title.^ * A petition suiBciently designates the parties plaintiff and defendant by describing them in the style or title of the case at the head of the pe- tition. Hall v. Johnson (Tex. Civ. App.) 40 S. W. 46. If the form of a bill in equity prescribed by W. Va. Code, chap. 125, § 37, be used, persons named in the caption as plaintiff and defendant be- come such merely from being there so named ; but if such statutory form be not used, the bill must formally, or in some plain and distinct way, make parties plaintiff, and defendant, and is otherwise fatally defective. Ooo7f v. Dorsey, 3S W. Va. 196, 18 S. E. 468. 'Adams Bxp. Co. v. if arris, 120 Ind. 73, 7 L. R. A. 214, 21 N. E. 340; KiMg V. Bell, 13 Neb. 409, 14 N. W. 141; Hildreth v. Becker, 2 Johns. Cas. 339. The requirement of the Kentucky Code, tliat names of the parties plaintiff and defendant shall be stated in the caption of the petition, is substan- tially complied with by a caption which gives firm names of the plain- tiffs and defendants respectively, where the first names of the members composing the respective firms are immediately stated in the body of the petition. Bryant v. Mack, 19 Ky. L. Eep. 744, 41 S. W. 774 (Cit- ing Bryant v. Cheek, 19 Ky. L. Rep. 749, 41 S. W. 776). •1 Chitty, PI. 16th Am. ed. 206; Lomry v. DuLton, 28 Ind. 473; McLerran V. Morgan, 27 Ark. 148; First Nat. Bank v. Battenlach, 13 S. D. 365, 83 N. W. 421. In an action against surviving partners as such, though naming the de- ceased, it is only the survivors who are to be deemed intended by the 608 BRIEF ON PLEAIJINGS — -DEMURRER. words "said defendants.'' ScMmmelpennick v. Turner, 6 Pet. 1, 8 L. ed. 297. The names of the parlies, if correctly stated in the title of the ease, need not again be referred to in the several paragraphs of the complaint, except generally as plaintiffs or defendants, unless it is necessary to particularize some plaintiff or defendant. Chicago d E. R. Go. v. Thom- as, 147 Ind. 35, 46 >i. E. 73. Reference to a defendant railroad coiiipauy in the body of a complaint, by another than its full name, does not render the complaint bad, where the defendant is properly named in the caption, and the first use of the shorter name is in connection with the words the "'said defendant." Pittsburgh, 0. 0. iG Si. L. If. Co. v. Berryman, 11 Ind. App. 640, SB N. E. 72S. A plaintiff who, in his petition, has been sufficiently described in the title of the ease need only be referred to as plaintiff in the statement of the facts constituting his cause of action or in his prayer for relief. FAsf,- ley V. Taggart, 52 Neb. 058, 72 X. W. 10.39. Under the practice in Oldo ever since the adoption of the Code, it is suffi- cient if the names of all the parties to the suit, with the proper quali- fications, if any there are, are stated in the caption of the petition; and subsequently, in the body of the petition, the parties can be elasseil simply as plaintiffs and defendants, without naming them. Supreme Covimandery 0. K. of G. R. v. I-Jverding, 20 Ohio C. C. 689. But a complaint describing defendants in the caption as two specified per- sons, "Partners, doing business'' under a specified finn name, and using throughout the body of the complaint the .lingular number and neutoi- gender in referring to the defendants, without any reference to the cap- tion, is bad for ambiguity. fJauhiy Bros. Hardiroic Co. v. Brownstnnr, 123 Gal. 643, 56 I'ac. 408. 389. Title and body of pleading. If the allegations are iippropriate to an action by or against a party in an official or representative character, and it sufficiently appears, by designating him as suing or sued in that capacity in the title of tho cause, that he appears or is joined in that capacity, a demurrer dws not lie for not repeating such designation in the body of the coni- plaint.' Conversely, if it sufficiently ajjpears by such designation in tlip body of the pleading, the complaint is not demurrable for not con- taining the same statement in the title. ^ ' Stanley v. Chappell, 8 Cow. 235. A complaint which in its caption contains the names of all the defendants, and describes theui as doing business under a certain firm name as partners, need not repeat such names and the allegation of partnership in its body. Pierson v. Fuhrniiinii. 1 Colo. App. 187, 27 Pac. 1015. 'Plout V. Plaul, 44 N. J. Eq. 18, 239, 13 Atl. 849. VII. FOE INSUFFICIENCY ; PAKTICULAE ALLEGATIONS. 609 The word "as" inserted between the name of the party and his official description is sufficient, but not conclusive. Stilwell v. Carpenter, 2 Abb. N. C. 238. The omission, in the title to a. petition by commissioners of highways to compel ii railroad company to erect gates or maintain flagmen at a. crossing, of the individual names of the petitioners, is of no importance, where they are individually named both in the body of the petition and in the verificatiou. Re 'Niagara Eigliivay Gomrs. 72 Hun, 575, 25 N. Y. Supp. 2.31. The caption of a petition by a ta.-ipayer, under Ohio Rev. Stat. § 1778, to enjoin illegal actions by municipal officers, need not state that the plain- tiff is a taxpayer. It is sufficient if the fact of his being a taxpayer, together with all other facts necessary to enable him to maintain the action, be alleged in the body of the petition. Ampt ex rel. Cincinnati V. Cincinnati, 5 Ohio N. P. 98. The title of a complaint in an action by or against partners need not de- scribe them iis such and give the firm name, if the facts appear in its body. Van Brunt & D. Go. v. Harrlgan, 8 S. D. 96, 65 N. W. 421. 390. Description of party. The word "agent," "executor," or "trustee," added to the name of plaintiff in a petition, will be treated as descripiio personw, where the petition states a cause of action in favor of the plaintiff individ- ually.-' But a petition describing defendants as a designated part- nership, "consisting of" specified individuals, does not biake the part- ners defendants individually, as the reference to them is merely de- scripfdo personce.^ And a petition which states a cause of action against the defendant individually is not obnoxious to a general demurrer, because it ap- pears from the caption that the action was brought against him in a representative capacity.^ The use, in a petition, of the term "highway commissioners," in- stead of the statutory designation "commissioners of highways," is a sufficient description of the ofKcial character of the persons named.* Misdescription in a complaint, of a copartnership defendant as a ■corporation, will not defeat recovery on its contract, when it fails in its answer to set forth its legal status clearly and without equivoca- tion or evasion.^ But the individual names of plaintiffs must be set out in an action brought by several parties as partners.® ^Thomas v. Carson, 46 Neb. 765, 65 N. W. 899 (verdict directed; Citing Henshall v. Roberts, 5 East, 150; Mcrritt v. Seaman, 6 N. Y. 168; Stilvell V. Carpenter, 02 N. Y. 039; Bennett v. Whitney, 94 N. Y. 302; Litchfield V. Flint, 104 N. Y. 543, 11 N. E. 58; Eolton v. Parker, 13 Abb. Pl. Vol. I.— 39. 610 BRIEF ON PLEADINGS DFJMUEKEB. Minn. 383, Gil. .353; Mayeev. Waupaca County, 38 Wis. 24:7; Bragdon V. Harmon, 69 Me. 29; Sutton v. Mansfield, 47 Conn. 388). A declaration attaching to plaintill'a name the descriptive term "agent for" a specified house is amendable by striking out such term. Me- Duffie V. Irvine, 91 Ga. 748, 17 S. E. 1028. ^Winters v. Means, 50 Neb. 209, 69 N. W. 753. • CUft V. Newell, 104 Ky. 390, 47 S. W. 270. So, a complaint alleging a cause of action against a defendant in his rep- resentative capacity is not demurrable because the word "individual," instead of "trustee,'' follows his name in the summons and caption of the complaint. Soldiers' Home v. Sage, 11 Misc. 159, 33 N. Y. Supp. 549. * lie Niagara Highway Comrs. 72 Hun, 575, 25 N. Y. Supp. 231. 'Wright v. Fire Ins. Co. 12 Mont. 474, 19 L. R. A. 211, 31 Pao. 87 (non- suit). 'Hitch V. Gray, 1 Marv. (Del.) 400, 41 Atl. 91 (judgment reversed). It is not error to overrule an exception to the petition of a partnership, taken on the ground that the petition is defective in that it begins with the partnership nanxe, and not with the names of the individual part- ners, when those names are sufficiently set forth immediately thereafter as the i)eUtion of 13. and D., a, partnership consisting of A. B. & C. D. Teasas £ P. R. Co. v. Truesdell, 21 Tex. Civ. App. 125, 51 S. W. 272. But two or more persons associated in business under a common name may be sued ujider such name without stating their individual names in the complaint, under Minn. Gen. Laws 1894, § 5177, providing that when two or more persons associated in a business transact the same under a common name, they may be sued by such common name, the process in such case being served on one or more of the associates, and the judgment in the action shall bind the joint property of all in the same manner as if all had been named defendants. Dimond v. Minne- sota Sav. Bank, 70 Minn. 298, 73 N. W. 182. A petition is not subject to a general demurrer because the action is insti- tuted in a firm name without specifying the individual names of the members of the firm. Andrews v. School Dist. 49 Neb. 420, 68 N. W. 631. 391. Singular and plural. The use of the word "plaintiff" or "defendant" in the singular in- stead of in the plural will not sustain a demurrer under the new pro- cedure if it can be cured by justly regarding it as clerical error.* » Chamherlin v. Kaylor, 2 E. D. Smith, 134. At common law it might sustain a, special demurrer. 1 Chitty, PL 16th Am. ed. 206. 392. Variance, — mistake. A variance not appearing on the face of a declaration on an mswe- Vn. FOE INSUFFICIENCY ; PABTICULAE ALLEGATIONS. 611 ance policy in assiunpsit, between the correct name of the assured and his name as written in the policy, cannot be reached by demurrer to the declaration.^ Xor is a libel for divorce by the next friend of the plaintiff demur- rable because the plaintiff's name is spelled therein in a way different from that in which she herself spelled it in signing the jurat.* A petition is not demurrable because it makes an erroneous refer- ence to a party or person, where the mistake is obvious and the intent is dear.* ' Harvey v. Parherslurg Ins. Co. 37 W. Va. 272, 16 S. E. 580. 'Richardson v. Richardson, 8 Pa. Dist. R. 242. ' Avent-Beattyville Coal Co. v. King Powder Co. 19 Ky. L. Rep. 920, 41 S^ W. 433. That an answer refers to "tKe plaintiff" in some instances where the obvi- ous intention was to refer to his assignor of the claim in suit does not render the pleading demurrable, since the defect is of an unsubstantial character. Church v. Standard R. Signal Co. 30 Misc. 261, 63 N. Y. Supp. 323. Necessity. 393. Allegation of fact. An allegation that a thing was necessary, the purpose being shown, is an alleg'ation of fact sufficient on demurrer,* unless particulars are stated which show the allegation to be unfounded. But an averment of necessity is insufficient unless accompanied by facts showing the necessity.* ' Spear v. Bieknell, 5 Mass. 125, 131. An allegation that plaintiff necessarily incurred expenses is equivalent to- averring that he incurred necessary expenses. Glover v. Tuck, 1 Hill,, 66. An allegation that plaintiff was compelled to pay medical expenses i» equivalent to alleging that they were necessary. Roeder v. Ormsby, 13- Abb. Pr. 334. An allegation that goods supplied were "necessaries" is sufficient without stating what they were. 1 Cliitty, PI. 16th Am. ed. 259. • In an action to recover damages for failure to deliver a dispatch, aji aver- ment that it was necessary that the dispatch should be transmitted on the d.ay on which it was delivered to the company in order to relieve suffering, avert harm, and prevent serious loss of health and life, and that the company's agent had knowledge of such necessity, is sufficient for want of a statement of the facts upon wliich the conclusion is based. Western U. Teleg. Co. v. Benley, 23 Ind. App. 14, 54 N. E. 775. 612 BEIEF ON PLEADINGS DEMUEBEE. In an action to recover for .■ittomey's services an allegation that the serv- ices rendered were necessary, and that but for them the benefit arising to the defendant from a certain transaction would have been lost, are conclusions of the pleader, where no facts are stated showing the neces- sity of the services, and that otherwise the benefit to the defendant would have been lost. Cleveland, C. C. & Ht. L. U. Co. v. Shrum, 24 Ind. App. 9li, 53 N". E. 515. A replication which attempts to avoid the efl'ect of the violation of a rule prohibiting employees from getting between moving cars to uncouple them, on the ground of necessity, and a custom among employees, ac- quiesced in by the company, of violating such rule when necessary, must state the facts and circumstances creating the necessity. Alabama G. S. B. Co. V. Richie, 111 Ala. 297, 20 So. 49. NEGLIGEiSCl-;. 394. General allegation. 397. Indirect allegation. 395. Form of allegation. 398. Contribiitory negligence. 390. Agency. See also Nuisance, § 407, infra; Torts, §§ 470-473, infra, 394. General allegation. ]S[egligence is a traversable fact ; and a general allegation, withont stating the particulars showing negligence, is enough as against a de- mnrrer for insufficiency.-' And a general allegation of negligence is equivalent to whatever de- gree of negligence is necessary to sustain the pleading.^ Eut a duty of care must be shoAvn,^ and the connection of cause and effect between tlie negligence and the injury.* * Harper v. Norfolk & W. B. Co. 36 Fed. 102; Gulf, C. & 8. F, R. Co. v. Washington, 1 C. C. A. 286, 4 U. S. App. 121, 49 Fed. 347; Mobile & M. R. Co. V. Crenshaw, C5 Ala. 566; Fordyce v. Merrill, 49 Ark. 277, 5 S. W. 329; Cunningham v. Los Angeles B. Co. 115 Cal. 561, 47 Pac. 452; Central B. ,(, Bkg. Co. v. Kitchens, 83 Ga. 83, 9 S. E. 827 (Citing Harris v. Central B. & Bkg. Go. 78 Ga. 525, 3 S. E. 355) ; Central R. 6 Bkg. Go. V. Benson, 83 Ga. 266, 9 S. E. 788; Illinois C. B. Co. v. Larson, 42 111. App. 264; George H. Hammond & Co. v. Schweitzer, 112 Ind. 246, 13 N. E. 869; Ohio & M. B. Co. v. Walker, 113 Ind. 190, 15 N. E. 234; Aiiderson v. East, 117 Ind. 126, 2 L. R. A. 712, 19 N. E. 726 ; Chicago, St. L. & P. B. Co. v. Spilker, 134 Ind. 380, 33 N. E. 280. 34 N. E. 218 ; Badgers v. Baltimore & 0. S. W. B. Co. 150 Ind. 397, 49 N. E. 453 ; Ohio & M. R. Go. v. Craycraft, 5 Ind. App. 335, 32 N. E. 297; Lake Erie & W. B. Co. v. Griffin, 8 Ind. App. 47, 35 N. E. 396; Citizens' Street B. Co. v. Lowe, 12 Ind. App. 47, 39 N. E. 165; Pitts- lurgh, G. C. & St. L. B. Go. v. Welch, 12 Ind. App. 433, 40 N. E. 650; Chicago li E. B. Go. v. Kreig, 22 Ind. App. 393, 53 N. E. 1033 ; Chicago VII. FOE INSUFFICIENCY ; PAETIOULAE ALLEGATIONS. 613 & E. R. Co. V. Cummings, 24 Ind. App. 192, 53 N. E. 1026; Scott y. Hogan, 72 Iowa, 614, 34 N. W. 444; Louisville & N. R. Co. v. Wolfe, 80 Ky. 84; Louisville cG N. R. Co. v. Mitchell, 87 Ky. 327, 8 S. W. 706; Rolseih v. Smith, 38 Minn. 14, 35 N. W. 565; McFadden v. Missouri P. R. Co. 92 Mo. 343, 4 S. W. 689; Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350; Washhurne v. Chicago £ N. W. R. Go. 68 Wis. 474, 32 N. W. 234; Eobson v. New Mexico & A. R. Co. (Ariz.) 11 Pac. 545. (allegation that the casualty was caused by the negligence of defendants and its servants, sufficient on general demuri-er; but would not be on special demurrer ) . But compare Jones v. Old Dominion Cotton Mills, 82 Va. 140; Hazard Powder Co. v. Volger, 3 Wyo. 189, 18 Pac. 636. In adopting what is known as the "Code system of pleading,'' courts in most of the states have excepted from the general rule, requiring a com- plaint to state the facts constituting the cause of action in ordinary and concise language, cases founded upon negligence; or, rather, they have so far modified the rule as to permit the plaintiff to state the negligence in general terms, without stating the facts constituting such negligence. This modification of a rule of Code pleading is founded in wisdom, and grows out of a fundamental rule in common-law pleading, to the effect that "no greater particularity is required than the nature of the thing pleaded will conveniently admit" (Stephen PI. 367), sup- ported by that other rule that "less particularity is required when the facts lie more in the knowledge of the opposite party" (Id. *370). In cases of negligence the sufferer may only know the general, the imme- diate, cause of the injury, and may be entirely ignorant as to the specific acts or omissions which lead up to it. The term "negligence," for the purpose of pleading, is a fact to be pleaded, — an ultimate fact, which qualifies an act otherwise not wrongful. Negligence is not the act itself, but tlie fact which defines the character of the act, and makes it a legal wrong. The absence of care in doing an act which produces in- jury to another is actionable. The term "negligence" signifies and stands for the absence of care. "Negligence is the ultimate fact to be pleaded, and it forms part of the act from which an injury arises. . . . It is the absence of care in the performance of an act, and is not merely the result of such absence, but the absence itself, and it is not, therefore, a mere conclusion of law, and may be pleaded generally." Louisville & N. R. Co. v. Wolfe, 80 Ky. 84. As a result of the application of these principles to Code pleading in cases of negligence, and to others of kindred character, it is held in this state, and in nearly all of the United States, that it is sufficient to allege the negligence in general terms, specifying, however, the particular act alleged to have been negligently done. Thomp. Neg. 1246 ; Stephenson V. Southern P. Co. 102 Cal. 143, 34 Pac. 618, 36 Pac. 407 (nonsuit denied). Negligence and care are ultimate facts, and should be so averred. It is not necessary to plead the evidence necessary to prove them. Andrew v. Chicago £ N. W. R. Co. 45 111. App. 269. 614 BBIEP ON PLEADINGS ^DBMUREEE. An allegation in a pleading that an act was negligently done is an allega- tion of fact, and not a mere conclusion of law, unless there is a fur- ther statement of the acts or omissions claimed to constitute the negli- gence, from which it affirmatively appears that the court is put in po- session of all the exact details which go to make up the negligence. Rogers v. Truesdale, 57 Minn. 126, 58 N. W. 688. So, in an action against a street ear company an allegation in a complaint, that, when the car in which plaintiff's daughter was riding, approached' the curve where it was derailed, defendant's servant negligently applied the full power to the car, is an allegation of a specific fact, and not a conclusion of the pleader. San Antonio Street R. Co. v. Muth, 7 Tex. Civ. App. 443, 27 S. W. 752. But an allegation of negligence in a pleading is a mere conclusion. It is necessary to plead the facts from which an inference of negligence arises. Omaha & R. Valley R. Co. v. Wright, 47 Neb. 886, 66 N. W. 842. Very general averments of negligence in a complaint for personal injuries to a railway employee, even though little short of mere conclusions, are eufficdent under the Alabama system of pleading. Mary Lee Coal £ R. Co. V. ChamUiss, 97 Ala. 171, 11 So. 897. Failure of a declaration against a sleeping-car company for property stolen, to set forth any particular act or omission constituting negligence, does not render it open to a general demurrer, where it is good in s.ub- etance and contains general allegations of negligence. Pullman Palaoe Car Co. V. Martin, 92 Ga. 161, 18 S. E. 364. When a petition states the act or omission complained of, and avers that it was negligence or that it was negligently done or omitted, it is sum- cient, unless such act or omission can be declared, as matter of law, not to constitute negligence. International & G. N. R. Co. v. Downing, 16 Tex. Civ. App. 643, 41 S. W. 190. But it is sufficient to set out the acts of negligence generally, without par- ticularizing the special act of carelessness which caused the accident. Chicago & A. R. Co. v. Redmond,, 70 111. App. 119. Yet a complaint alleging that plaintiff's infant child, who was non aui juris, was on or near defendant's street railway track, in plain view of the persons in charge of the oar, and that they failed to exercise ordinary care, and by their negligence and carelessness ran the car over the ohild and killed it, — states a cause of action without setting forth the evi- dence supporting the facts alleged. Atistin Rapid Transit R. Co, v. Cullen (Tex. Civ. App.) 29 S. W. 256. And a general averment that the defendant was negligent, without setting out the negligent acts or omissions, is sufficient, unless the pleading ii attacked by motion. Union P. R. Co. v. Vincent, 58 Neb. 171, 78 N. W. 457. 8o, a. general allegation of n^ligence is sufficient In an action for negli- gently causing the death of plaintiff's intestate, unless it is attaciced by motion. Omaha 1 Chitty, PI. 16th Am. ed. 337; Wangler v. Swift, 90 N. Y. 38 (where various forms of the rule are stated) ; Clough v. Hoffman, 5 Wend. 499 ; Alahama £ F. R. Co. v. Rowley, 9 Fla. 508 ; Harrison v. Vreeland, 38 N. J. L. 30(5. P'or other cases, see Hobart v. Hilliard, 11 Pick. 143; Cole v. Jessup, 2 Barb. 309. But a pleading need not allege facts peculiarly within the knowledge of the party against whom they should be pleaded, and which are not ac- cessible to the pleader, bat should state that such is the case. Brashear V. Madison, 142 Ind. 092, 33 L. R. A. 474, 36 N. E. 252, 42 N. E. 349. A statement of claim in an action by a creditor upon an agreement by the 628 BEIEF ON PLEADINGS ^DEMUEBEE. purchaser of the goodwill and assets of the debtor's business to pay the latter's debts is not defective in failing to set forth the agreement, where it avers that it is not witliin the knowledge of the plaintiff and is known to the defendant. Quinn v. Bliafto, 31 W. N. C. 502. 401. General allegation. Where formal notice is required, a mere allegation of "due notice" has been held insufficient.^ ^Kechler v. Stumme, 4 Jones & S. 337 (notice to appear under mechanic's lien). For the better opinion, see DtJLY, § 277. 402. statutory requirement. Under a statute forbidding an action until after notice and the lapse of a certain time, omission to allege the giving of such notice (or an excuse for omitting it), and the lapse of the required time, is fatal on demurrer.^ And a complaint is insufficient which fails to show that notice of an intention to commence an action against a cor- poration for personal injuries was filed within the time specified by statute.^ Under a statute forbidding an action to be brought until after no- tice in writing, omission to allege that notice given was in writing is fatal.8 ^Porter v. Kingsbury, 5 Hun, 597, Affirmed in 71 N. Y. 588 (action on undertaking). Compare § 177, as to Statutory Allegation of Perform- ance of Condition. ' Lamliurth v. Winolioster Ave. R. Co. 76 Fed. 348 (Citing Fields v. Eart- ford <£■ W. Horse It. Go. 54 Conn. 9, 4 Atl. 105; Bhalley v. Danbury d B. Horse B. Co. 04 Conn. 381, 30 Atl. 135). A complaint in an action against the city of New York, for personal in- juries alleged to liave been caused by the latter's negligence, will be dismissed where it fails to allege the filing with the corporation counsel, of a notice of intention to bring the action, specifying the time when and place where the injuries were received, as required by N. Y. Laws 1886, chap. 572, although, after the plaintiff's right to bring an action was foreclosed, a stipulation was entered into between his attor- neys and the corporation counsel, that the summons and complaint might be served before his examination on behalf of the comptroller, and that the city would not object to the bringing of the suit prior to such examination. Kennedy v. New York, 34 App. Div. 311, 64 N. Y. Supp. 201 (complaint dismissed). A complaint in an action for personal injuries caused by a defective street, which alleges that notice of an intention to commence the action was not given to the corporation counsel until ten months after the acci- dent happened, fails to state a cause of action, where the city charter requires notice to be given within six months. Norton v. New York, VII. FOE INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 629 16 Misc. 303, 38 N. Y. Supp. 90 (complaint dismissed; Citing Mertz v. Brooklyn, 33 N. Y. S. R. 577, 11 N. Y. Supp. 778, Affirmed in 128 N. Y. 617, 28 N. E. 253; Curry v. Buffalo, 135 N. Y. 366, 32 N. E. 80). • Com. V. Wilsoit, 7 W. N. C. 02. A statute requiring that notice of an, intention to commence an action against a city for personal injuries be filed with the corporation counsel within six months after the cause of action accrued, contemplates a written notice. Foley v. 2few York, 1 App. Div. 586, 37 N. Y. Supp. 465. The court says: "An oral notice is not a compliance with the statute. When the law requires a notice to be filed, it implies that the notice shall be in writing {I'earson v. Lovejoy, 53 Barb. 407, and cases cited). A notice by word of mouth cannot be filed. The filing of the notice is a condition precedent to the existence of the cause of action {Curry v. Buffalo, 135 N. Y. 360, 32 N. E. 80). The fact of filing must be set ujj in the complaint, or a cause of action is not alleged. (Mertz V. Brooklyn, 33 N. Y. S. R. 577, 11 N. Y. Supp. 778, Affirmed in 128 N. Y. 617, 28 N. E. 253)." Compare Atidit, §§ 106, 107, supra; Contracts, § 158, supra, as to Stat- utes of Fraud; Leave to Sue, §§ 353, 354, supra; Statutes, §§ 445- 456, infra. 403. Posting- notices. A general allegation that notices were posted as the law requires, is suiSoient without designating the places, if the fact is one collatei> ally involved.^ An averment that notice was not posted in three of the most public places of the town, as required by statute, is an allegation of fact, and not of a mere conclusion.^ ^Bewail V. Valentine, 6 Pick. 276; Burditt v. Grew, 8 Pick. 108. See also Appeaeakce, § 89, supra; Uttly, § 277, supra; Regulaeitt, § 436, infra. 'ISoVichie \. Knight, 82 Wis. 137, 61 N. W. 1094. 404. Beasonable notice. Where reasonable notice was required, a general allegation of rea- sonable notice, with no particulars, is not enough.^ 'Criijrerv. Hudson River B. Go. 12 N. Y. 190; McCormick v. Tate, 20 111. 334 (general allegation of reasonable notice to remove a fence, insuf- ficient on demurrer). 405. Denial of notice. An allegation that an act was done without notice, or that no notice was given, is good.* 630 BKIEF ON PLEADINGS DEMUEEEE. An allegation tliat no legal or sufficdeut notice was given is a mere conclusion of law, and insufficient.^ * Wells County v. Gruver, llo Ind. 224, 17 N. E. 290. 'Kedzie v. West Chicago Park, 114 111. 280, 2 N. E. 182 (Per Curiam: "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 v. Ross, 112 Ind. 314, 13 N. E. 873. 406. Knowledge, — 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.^ An averment of want of knowledge of matters of record is not per- missible.* ' Fairchild v. Bentley, 30 Barb. 147 ; MoQinity v. mew Yorlc, 5 Duer, 674. ''New York v. Dimick, 49 Hun, 241, 2 N. Y. Supp. 46; Cleveland v. King, 132 U. S. 295, 33 L. ed. 334, 10 Sup. Ct. Hep. 90; Lambert v. Haskell, 80 Cal. 611, 22 Pac. 327 (Citing Pierce v. Whiting, 63 Cal. 540). A complaint in an action against a railroad company for damages to land caused by the construction of a watercourse, which alleges that from time immemorial floods similar to that wliich caused the injury were liable to occur in the springtime and rainy seasons, is sufficient without any allegation that defendant knew or could have known that such floods were likely to occur. New York, C. & St. L. R. Co. v. Hamlet Hay Go. 149 Ind. 344, 47 N. E. 1060, 49 N. E. 269. A petition alleging that defendant city on the date of an injury com- plained of, and long prior thereto, negligently and carelessly permitted a street railway company to construct its track on a street, so care- lessly and negligently as dangerously to obstruct travel, and that the track on the day of the injury, and for a long time before, was a dan- gerous obstruction, — sufliciently charges the city with notice or knowl- edge of the defect, in the absence of any attack. Union Street R. Co. V. Stone, 54 Kan. 83, 37 Pao. 1012. A complaint in an action for personal injuries, which avers that at the time of the injury, and for a long time prior thereto, the street had been obstructed by a large mowing machine which stood in the street 10 feet from the curbing, so as to interfere with travel and the passing of teams and "vvagons; and that, as the horses "arrived near said ob- struction which defendant, at that time and for a long time prior thereto, had negligently permitted to be and remain (in the street)," VII. FOE insufficiency; PAliTICULAIi ALLEGATIONS. 631 etc., — sufficiently avers notice to the city of the obstruction, to with- stand a demurrer. Mi. Vernon y. Hoehn, 22 Ind. App. 282, 53 N. E. 654. A plea alleging that a telegram was written on a blank, and that on the back of the blank were certain stipulations, need not aver that the sender of the message was aware of the stipulations, for the averment of the writing of the message on the blank, on the back of which the stipulations were printed, sufficiently charges notice of the stipulations. Harris y.Western U. Teleg. Co. 121 Ala. 519, 25 So. 910. The recital of a telegram in a petition for failure to deliver the same re- lieves the plaintiff from averring that the company had notice, when it contracted to send the message, of the relationship between the plain- tiff and the person described in the message as "very low." Western U. Teleg. Co. v. Porter (Tex. Civ. App.) 26 S. W. 866. An answer sufficiently avers notice in alleging that by reason of recitals in a note, plaintifT had notice of a lien for the sum for which the note . was given. Interstate Bldg. d L. A.SSO. v. Tabor, 21 Tex. Civ. A.pp. 112, 51 S. W. 300. Plaintiff in an action for conversion, who seeks special damages growing out of the deprivation of the use of the property, must show, either by direct allegations or by facts implying notice, that the defendant knew of the use to which the property had been put. Smith v. Connor (Tex. Civ. App.) 46 S. VV. 267. But constructive notice to a town of the existence of a defect in a bridge is not sufficiently averred in the allegations in a complaint that the town negligently suffered the bridge to be out of repair "for a long space of time," or "a long length of time," and that it was dangerous by rea.son of a plank being in a rotten condition, or not thick enough to support a horse. Cullman v. McMinn, 109 Ala. 614, 19 So. 981. A complaint alleging that a brakeman saw plaintiff in a perilous position in front of a moving train, and immediately "signaled the engineer to stop the train, and took off his hat and swung it and hallooed at him," is insufficient to show that the engineer knew that anyone was in dan- ger. Evans v. Pitisbtirgh, C. G. d St. L. H. Co. 142 Ind. 264, 41 N. E. 537. *Detton V. Williams, 4 I'la. 11: 1 Cliitty, PI. 16th Am. ed. 403, but con- ceding it cured by vei'dict. *Wentzel v. Zinn, 7 Ohio N. P. 612. Is'uiSANCE. See also Negltqeuce, %% 394-398, supra; Torts, || 470-473, infra. 407. General rule. In a private action for nuisance, facts showing plaintiff's riglit must be alleged;^ and, as against the mere continuer of a nuisance created by others, notice or demand must be alleged.^ C32 BEIEF ON PLEADINGS DEMUEKEE. If the facts stated show a wrong, it is not necessary to use the word "nuisance,"^ nor to allege wrongful intent,* nor negligence.^ A complaint alleging that defendant "had caused to be made and maintained" an opening in the public sidewalk does not charge a wrongful or unlawful act, or state a cause of action for a nuisance.* The mere allegation of a pleader that a private nuisance will ensue from specified acts is not sufficient; but the averments of the com- plaint must clearly show that the thing complained of will constitute a nuisance.'^ •2 Chitty, PI. 16th Am. ed. 513; Barry v. McAvoy, 10 Phila. 99. ' Qroff V. Ankenhrandt, 124 ill. 51, 15 N. E. 40 (presumption against the pleader that defendant was a mere continuer, if contrary be not in- dicated). •Laflin & R. Powder Co. v. Tearney, 131 111. 322, 7 L. R. A. 262, 23 N. E. 389. An allegation that acts constitute u, nuisance is not necessary where the acts, as stated, amount to a nuisance in fact and in law. Sullivan T. Waterman, 20 R. I. 372, 39 L. ii. A. 773, 39 Atl. 243. Nor, in an action for damages caused by the maintenance of a nuisance, in it necessary to allege in the complaint that the acts complained of con- stitute a nuisance, but it is sufficient to allege that the defendant bo negligently did those acts as to cause the damage. Campbell v. United States Foundry Co. 73 Hun, 576, 26 N. \.. Supp. 165. ♦ 1 Chitty, PI. 16th Am. ed. 404; 'Wilkinson v. Applegate, 64 Ind. 98. ° See note to MsUer v. Rankin, 25 Abb. N. C. 195, on the distinction be- tween negligence and nuisance. 'Emiis V, Myers, 29 App. Div. 382, 51 N. Y. Supp. 550. ' Haskell v. Denver Tramway Co. 23 Colo. 00, 40 Pac. 121. Opi'EE. 408. To whom and where. 409. Offer to do equity. See also Conieacts, § 181, supra, 408. 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 material, the allegation must be specific in that respect. 'But see Contkaots, §§ 175, 181, 192, supra, as to allegation of perform- ance of condition. Mills V. Gould, 1 Abb. N. C. 03. ' Vance v. Blair, 18 Ohio, 532, 51 Am. Dec. 407. VII. FOE INSUFFICIENCY ; PAETICULAE ALLEGATIONS. 633 ' Mills V. Gould, 1 Abb. N. C. 93 ; Clark v. Dales, 20 Barb. 42 ; Femer v. Williams, 14 Abb. Pr. 215, less fully, 37 Barb. 9, holding that the word "duly" was enough as to place. Compare § 277, Duly. But a plea alleging the defense of readiness to pay at the time and place designated in a note must not only allege such fact, but also that the defendant has ever since beeai ready with the money then and there to pay the note, with profert in curia of the money. Oi-eeley v. White- head, 35 Fla. 523, 28 L. R. A. 286, 17 So. 643. 409. 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 enfoi-ce the decree or not;^ but it is not essential if the relief sought is an accounting be- tween the parties, for this itself involves the obligation to pay the bal- ance, if any.^ ISTor is it essential where the decree ought to be optional, — as, in case of a suit to redeem ;* nor where the complaint shows that the of- fer would be an empty ceremony;* nor where the obligation to pe]> form such an act is not admitted.^ Where an offer to pay an unliquidated sum is necessary, it is not essential to specify the sum offered, but it may be expressed as an of- fer to pay whatever may be found due." '^ Davis V. Qaines, 104 U. S. 386, 26 L. ed. 757 (bill to set aside judicial sale) ; United States v. Pratt Coal