The practice of demanding oyer of bonds is supposed to be merged in the provision contained in section 388 of this code. Common Carrier.-Where a complaint against a common carrier to recover the value of goods delivered to him to carry, and by him lost, contained six different counts or causes of action, stated substantially according to the forms of counts in a declaration at common law in an action against common carriers, the defendants moved for an order either to set aside the complaint, or to strike out all but one of the counts, the court, Harris, J., said, that to sustain such a pleading would be to hold, that any party is at liberty to choose between common law pleadings and the pleadings prescribed by the code, and all the counts, except one, were ordered to be stricken out. Stockbridge Iron Co. v. Mellen, 5 Pr. R., 439. The complaint in an action against a railroad company, to recover damages for the non-delivery of goods entrusted to them, should allege that the defendants are common carriers, and that the defendants received, or were to receive, a compensation for carrying and delivering the goods; and if these allegations are not in the complaint, the plaintiff cannot, on the trial, give proof either that the defendants are common carriers, or that they received, or were to receive, a compensation for carrying the goods. Bristol v. Rens. and Saratoga R. R. Co., 9 Barb. S. C. R., 158. Creditor's bill.-The form of a creditor's bill is abolished by the code. Rogers v. Hern, 2 Code Rep., 79. In cases where a creditor's bill was the proper remedy prior to the code taking effect, that remedy must now be obtained by summons and complaint under the code. Ib. A demurrer to a creditor's bill, that the bill does not show that a transcript of the judgment was docketed in the county where one of the several defendants resides, will not lie, where it does not appear upon the face of the bill, that the judg ment debtor had real estate subject to the lien of the judgment in that county. This allegation may be set up in an answer, and if established by proof, will authorize a dismissal of the bill. Millard v. Shaw, 4 Pr. R., 137. Where execution has been issued by the consent of the defendant, on the day of docketing the judgment, and made returnable in six days, it is no ground of demurrer to a creditor's bill, that it does not set out the legal effect, force, or form of the consent, by which such execution was issued and returned. It is enough if the bill alleges that the form of the execution, as to its return, and the time at which it was taken out, were in pursuance of the defendant's agreement. Ib. An action in the nature of a creditor's suit, may be maintained where an execution was issued and returned unsatisfied. before July 1, 1848. Such suit is not an action on the judgment. Dunham v. Nicholson 2 Sand. S. C. R., 636. The rules of the late court of chancery, and the supreme court in equity, which required that the plaintiff in a suit in the nature of a creditor's bill, should allege the defendant to have equitable interests or property to the value of $100 and more, are superseded by the code. It is sufficient if the plaintiff comply with the code and set forth all that, by the revised statutes, is made requisite to the filing a creditor's bill. Quick v. Keeler, 2 Sand. S. C. R., 231. Where a complaint had two aspects, one the ordinary creditor's suit under the statute, and the other a suit by the creditor to set aside an assignment. It was held that in the first aspect it would be necessary under the statute and the rulings of the court of chancery, to allege that the plaintiff had issued execution to the county where the judgment debtor resided, and it had been returned nulla bona. But in the other aspect no such allegation is necessary. Cooper v. Clason, 1 Code Rep., N. S, 347. Dower-A complaint under the code asking to have dower set off and admeasured, it was held might be regarded as a substitute for the former petition for admeasurement, or the former bill in equity; and thus it was no objection that the defendant, who was seized, was not in the actual possession of the lands, or that six months had not elasped since the death of the husband, and the court in delivering judgment said: The defendant, on the argument, insisted on two technical grounds of defense, both of them based upon the supposition that this is an action of ejectment. These grounds are, first, that six months had not elasped after the death of the husband, before the suit was brought; (2 R. S., 303, 2, subd, 2) and secondly, that the defendant is not the actual occupant, nor exercising acts of ownership upon any parts of the premises, nor claiming title thereto. It would be a sufficient answer to both these objections, to say that they are not set up as grounds of defense by the answer. With respect to the first, there is not the slightest indication in the answer, that such a defense was thought of; on the contrary, the language of the answer, echoing the complaint, states the time of the husband's death so vaguely, that it is impossible to decide upon this demurrer, that, six months may not have expired Nor does it any where appear upon the pleadings, when the suit was commenced. This is hardly a compliance with the existing law as to a statement of the defense. As to the second objection, the answer merely says, that a portion of the premises are occupied by tenants who pay the defendant rent; that the greater portion is unoccupied; and that the defendant is not personally in the occupation of any part of the premises. But the answer does not say, that as regards any part of the premises, the defendant is not a proper party; that any other person should have been made a party; or that either of these grounds will be insisted upon as a defense. This, also, it seems to me, is not precisely according to the existing law. But suppose these defenses to be well set up, have they any validity? The code abolishes the forms of existing actions, and the distinction between suits at law and in equity, and provides that there shall hereafter be but one form of action (s. 69); and that all rights of action given or secured by existing laws, may be prosecuted in this single form of action. (s. 468). Now, before the code, there was, besides the action of ejectment for dower, a petition for admeasuring the same; and they both sought and obtained the same relief, viz., admeasurement of dower by commissioners. That is precisely the relief which the complaint in this case prays for; and therefore it may quite as well be in the place of the petition as the ejectment; and if so, it is free from both these objections. Dower must be demanded before the commencement of an action for dower: in certain cases the plaintiff cannot recover costs; see last clause of section 307 of this code. Executors and Administrators-may sue on a note given to them as such, without making profert in the complaint of the letters testamentary or of administration. Bright v. Currie, 10 Leg. Obs., 104. False Imprisonment.-Where a complaint in an action for false imprisonment, stated at great length, all the circumstances, and the particular instrumentality by which the plaintiff was restrained of his liberty, held that it should be all stricken Shaw v. Jayne, 2 Code Rep., 69. 4 Pr. R., 119. out. The mode of stating a cause of action heretofore in use in such a case, is all that is necessary. Ib. Goods sold.-Where a complaint alleges "the sale and delivery of goods," as a cause of action, it is not necessary to allege a promise on the part of the defendant to pay, &c. A statement of the facts constituting the cause of action, in ordinary language, &c., is now sufficient; that is, all the facts which upon a general denial, the plaintiff would be bound to prove to entitle him to a judgment. Glenny v. Hitchins, 2 Code Rep., 56; 4 Pr. R., 98; 3 Code Rep., 153; and see Dolner v. Gibson and Dows v. Hotchkiss, in note to section 140. Marriage, breach of promise of—In an action for a breach of promise to marry, the complaint followed very closely the form in use before the code took effect, and after stating the promise, set out the breach in these words; "yet the defendant, in disregard of his said promise and undertaking, but contriving and fraudulently intending craftily and subtlely to deceive and injure the plaintiff in this respect, did not nor would perform his said promise." On motion to set aside the complaint, the court (Ulshoeffer, judge) said the object of the code is at once to render pleadings intelligible and concise. If that object can be effected by adopting any part of the former system, there is nothing in the code to prevent it. The complaint is sufficiently plain to apprise the defendant of the charge against him. The words in in italic are perhaps obscure and unnecessary, and must be stricken out. Leopold v. Poppenheimer, 1 Code Rep., 40. Personal Property.-Where a suit was commenced by summons and complaint, for an unjust detention of personal property, and the plaintiffs demanded judgment for the value thereof only, and at the time of the service papers were also served for the immediate delivery of personal property; held, that the class to which the action belonged must be determined by the relief demanded in the complaint, and, consequently, it would fall under the second instead of the sixth class of section 167. Dows v. Green, 2 How., 337. Spalding v. Spalding, 1 Code Rep., 64; 3 Pr. R., 297. Claims for injuries to personal property and claims for its possession are substantially different causes of action. Ib. Receiver. When a plaintiff sues as receiver, he should at least state the place of his appointment, and distinctly aver that he was appointed by an order of the court. White v. Low, 7 Barb. S. C. R., 204. The defendant in such a suit has a right to insist that the facts constituting the appointment of the plaintiff, as set out, shall be sufficient to show one has been made, and that these facts be so set out as to be triable. Ib. Slander. The complaint, in an action for slander, must allege the words to have been spoken in the presence and hearing of some person. If the complaint omit such an allegation, and the defendant has not been misled or injured, the plaintiff will be allowed to amend, without costs. Wood v. Gilchrist, 1 Code Rep., 117; Anon., 3 Pr. R., 406. But the word "published" in the complaint imports, ex vi termini, the uttering of words in the presence and hearing of somebody. Duel v. Agan, 1 Code Rep, 134. The common pleas held that the rule which requires a statement of the cause of action renders it necessary, in a suit for slander, to set forth the precise words used. Finnerty v. Barker, 7 Leg. Obs., 316. Where, therefore, a complaint alleged that the defendant charged the plaintiff that she had been guilty of stealing, or some other misdemeanor; held, that it was demurrable for want of a sufficient statement of facts to constitute a cause of action. The plaintiff should have stated distinctly what the charge was, so that the defend. ant might have known what he was sued for. Ib. The omission to state the time or place of the slander is not a ground of demurrer; the court can order the pleading to be made definite by amendment. Ib. See further, notes to sections 164, 167 of this code. Miscellaneous-A complaint need not be positive; it may be on information. Finnerty v. Barker, 7 Leg. Obs., 316. A complaint for goods, &c., received in violation of the statutes against usury, must comply with the requisitions of the revised statutes. 2 R. S., 352, s. 3. Schroeder v. Corning, 2 Coms., 132. It is said that where the plaintiff desires, in case he obtain a judgment, to issue a ca, sa against the defendant, it is necessary to allege in the complaint the matters collateral to the cause of action, which justify the arrest of the person. Barker v. Russell, 1 Code Rep., N. S., 5. That decision was reversed on appeal to the general term. 1 Code Rep., N. S., 57. In Lee v. Elias, in the superior court, 1 Code Rep., N. S., 116; 3 Sand. S. C. R., 736, the complaint, which was on a promissory note, also contained allegations that the goods for the price of which the note was given, were fraudulently procured from the plaintiffs; a motion was made to strike out the allegations as to the fraud, and Campbell, J., with the concurrence of all the other justices, granted the mot on, and said, "Great oppression might result from allowing this course of pleading to be followed. A summons may contain a demand for a specific sum of money, which a defendant owes, and against which he can make no defense. A complaint may be filed, demanding the judgment for the money specified in the summons, and also setting up gross frauds on the part of the defendant; and the defendant may thus be defaulted, and made to admit charges of fraud which have never come to his notice, and thus, also, subject himself to arrest and imprisonment. In Secor v. Roome, 2 Code Rep., 1, Joues, J., says, the question of fraud must be tried on affidavits by the judge who granted the order of arrest; and he held that no allegation of fraud should be set out in the complaint. See, also, 3 Code Rep., 211, 169,156, and Cheney v. Garbutt, 1 Code Rep., N. S., 166. But notwithstanding these decisions, the supreme court, at a general term composed of Mason, Monson, and Shankland, JJ., in the case of Corwin v. Freeland, 6 Pr. R., 241, held, that where the cause of arrest exists at the time of the commencement of the action, the grounds of arrest should be stated in the complaint. The question as to the insertion of the grounds for arrest in the complaint was not the precise question involved in the case of Corwin v. Freeland. But Mr. Justice Shankland, who delivered the opinion of the court, examined the question as to the form of the complaint at considerable length, and states his reasons for the conclusion, "that the grounds of arrest should be inserted in the complaint," in an opinion covering twelve printed pages. His reasouing throughout seems to us altogether fallacious, and his conclusion at variance with the principles of pleading and the practice of the profession. We believe it is not customary to insert in the complaint any allegations of fraud, or other ground for requiring an order of arrest. In a suit by a foreign corporation, the complaint need not state the act of incorporation or charter at large, or even the title of the act or grant, or the date of its passage. 2 R. S., 459, ss. 1-13. Holyoke Bank v. Haskins, 4 Sand. S. C. R., 675. In actions given by statute, or upon any special statutory provision, the complaint should follow the wording of the statute and refer to the statute by its title. Schroeppel v. Corning, 2 Coms., 132. SECTION 143. CHAPTER II. The Demurrer. Defendant to demur or answer. 144. When the defendant may demur. 145. Demurrer, what to specify. 146. How to proceed if complaint be amended. 147. Objection not appearing on complaint. § 143. [121.] Defendant to demur or answer.-The only pleading on the part of the defendant is either a demurrer or an answer. It must be served within twenty days after the service of the copy of the complaint. The answer and demurrer are different pleadings, and by the fact that they are on one paper and in form connected they do not lose their distinct character; per Sill, J., in Howard v. Michigan Southern R. R. Co., 5 Pr. R., 206, 207. This section, which is identical with section 121 of the code of 1848, has been held not to apply to pleadings in justices' courts. Cornell v. Smith, 2 Sand. S. C. R., 290. Where a defendant omits to answer within the time prescribed by this section, the court has power, after the expiration of the time to answer, to let the defendants in to make a defense. Lynde v. Verity, 1 Code Rep., 97. Salutat v. Downes, 1 Code Rep., 120. Allen v. Ackley, 4 Pr. R., 5. 2 Code Rep., 21. Foster v. Udell, 2 Code Rep, 30. But where, in such a case, the plaintiff has regularly entered judgment before the application to be let in to answer, and suggests that be will be in danger of losing his demand if the judgment is set aside, as the defendants are in doubtful circumstances, and he asks, further, that the defendants may be restrained from setting up the statute of limitation as a defense, the court will, where the default is not satisfactorily excused and the affidavit of merits is merely general, only admit the defendant to come in and answer upon the terms of paying costs, not setting up the statute of limitations, and let the judgment stand as security to the plaintiff. Allen v. Ackley, 4 Pr. R., 5. 2 Code Rep., 21. In a motion to be admitted to defend after a judgment by default regularly taken, the defendant ought to disclose the nature of his defeuse, or serve with his motion papers a copy of his proposed answer, so that the court may judge of the merits of the proposed defense. Ib. On a motion to set aside a judgment taken for want of an answer, where the defendant showed a good defense on the merits, and that the default was occasioned by a misapprehension as to the effect of a stipulation extending the time to auswer, it was asked by the plaintiff that the defendant should not be relieved except upon the terms that he should not set up the defense of usury; but the court (Parker, J.) opened the default without such a condition as that asked by the plaintiff, and said, "So long as the statute makes the taking of usury a defense, it was entitled to be treated like every other legal defense, and he would make no discrimination in imposing terms." Grant v. McCaughin, 4 Pr. R., 216. See 6 Hill, 223-227. An order enlarging the time to answer is an extension of the time to demur. Broadhead v. Broadhead, 4 Pr. R., 308. 3 Code Rep., 219. An answer put in after the time to answer expires, and before judgment is entered, but without any order permitting it to be put in, is irregular. Dudley v. Hubbard, 2 Code Rep., 70. Foster v. Udell, ib., 30. Mandeville v. Winne, 1 Code Rep., N. S., 161; ib., 45 O'Brien v. Catlin, ib., 273. Where an order extending the time to answer was revoked, the defendant was compelled to answer within the time which he originally had, or his default might be entered Brown v. St. John, 19 Wend., 617. Where an order is made for service of a summons by publication, the defendant has until twenty days after the expiration of the time prescribed for publication, in which to put in his answer. Tomlinson v. Van Vecthen, 1 Code Rep, N. S., 317. And where the summons is personally served out of the State, the defendant has until twenty days after the expiration of the time prescribed for publication, in which to put in an answer. Ib. § 144. [122.] When defendant may demur.—The defendant may demur to the complaint when it shall appear upon the face thereof, either 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties, for the same cause; or, or, 4. That there is a defect of parties, plaintiff or defendant; 5. That several causes of action have been improperly united; or, 6. That the complaint does not state facts sufficient to constitute a cause of action. Note to Subd. 3. "It has never been held that the mere pendency of a suit in a foreign tribunal can be available to stay a suit for the same cause of action pending here; and unless the legislature have expressly made it so, I see no good reason why the rule should be changed. It is evidently the intention of the sections of the code to which I am referred (sections 144, 147), not to enlarge a defense or create a remedy, but merely to direct the mode in which defenses or objections already available by law may be taken advantage of, the nature of those defenses or objections being left unaltered. And the language here used must be taken to mean, that a defense of another action pending, when available, may be set up by demurrer when it shall appear on the face of the complaint, and by answer when it does not." Per Edmonds, J., in Burrows v. Miller; 5, Pr. R., 51, 52. See also 9 Johns. R. 221., 12 ib. 99. A foreign attachment pending in another State was formerly pleadable in abatement. 5 Johns. R., 101; 20 Johns. R., 229; 8 Cowen. 311; 4 Johns. R., 508; 4 Johns R., 521. It is conceived that the pending of such an attachment would not now be any defense. To an action on a judgment a writ of error pending at the commencement of the action was pleadable in abatement, 2 Johns. C. 312. It is no defense to an action, that after its commencement another action has been commenced for the same cause. 1 Wheat., 215; 21 Wend., 341;3 ib., 258; 9 Johns., R., 221; 8 Cow., 311; but where a party is suing in two courts for the same cause of action, he may be compelled to elect in which court he will proceed. Hammond. v. Baker, 1 Code Rep., N. S., 105. Where B., after setting up new matter in answer to an action by A., brought a cross action against A. founded on the same matter as his answer, and A. moved in the first action that B. should elect either to abandon his answer or hs cross action, held that the motion should have been in the cross action for a reference to inquire |