(2.) DEMURRERS. (No. 7.) That the court has no jurisdiction of the subject matter. SUPREME COURT. A. B. C. D. The defendant demurs to the plaintiff's complaint, and specifies, for grounds of demurrer : That it appears, by the complaint, that the lands to which the injury mentioned in the complaint is alleged to have committed, are situated in the State of New Jersey, and that this court has no jurisdiction of the subject matter of the action.1 (No. 8.) That the plaintiff has not legal capacity to sue. SUPREME COURT. A. B. agt. C. D. The defendant demurs to the plaintiff's complaint, and specifies, for cause of demurrer: 1 See Pleadings, 662. As to form of demurrer in such case, see Pleadings, 712. That it appears, by the complaint, that the plaintiff is a married woman, having a husband living, and the action does not concern her separate property [or whatever else the legal incapacity may be],' and that plaintiff has not legalcapacity to sue. (No. 9.) That there is another action pending for the same cause, between the same parties; demurrer to one of several causes of action. SUPREME COURT. A. B. agt. C. D. The defendant demurs to the second cause of action set forth in the plaintiff's complaint, and specifies, for grounds of demurrer : That it appears, from said second cause of action set forth in the complaint, that there is another action for the same cause pending between the parties to this action.2 1 That plaintiff has not legal capacity to sue, is made a special cause of demurrer, and such defect cannot be reached under a demurrer that the complaint does not state facts sufficient to constitute a cause of action. (Bank of Lowville v. Edwards, 11 How., 214, and see Pleadings, 668, 669.) 2 See Pleadings, 669, 670. The defendant may demur to one or more of several causes of action stated in the complaint, and answer the residue. (Code, § 15.) (No. 10.) For non-joinder of parties plaintiff. SUPREME COURT. A. B. & Co. agt. C. D. The defendant demurs to the plaintiff's complaint, and specifies the following grounds of demurrer: That it appears, from said complaint, that there is another person or other persons who should be joined with the plaintiff, A. B., as parties plaintiff.1 (No. 11.) For misjoinder of defendants, by executors, united with surviving contractor in an action on a joint contract. SUPREME COURT. A. B. C. D. and E. F., executors, &c., of J. P., deceased, impleaded with D. L. The defendants, C. D. and E. F., executors, &c., demur to the plaintiff's complaint, and specify for grounds of de murrer: If it appears on the face of the complaint who the other persons are, they should be pointed out in the demurrer. But if it simply appear, as in the above, that they are a company, it is unnecessary, and, indeed, might be impracticable to do so. (See Pleadings, 672, et seq.) 2 See Complaint No. 28, Part III., ante, p. 417, and note. It is to be observed that a demurrer for misjoinder of parties must be made by the party improperly joined, and such objection cannot be That they are improperly joined as parties defendants with the defendant D. L., it appearing from the complaint that the covenant therein mentioned, made by said D. L. and J. P., deceased, was joint, and not several. (No. 12.) That several causes of action have been improperly united. SUPREME COURT. A. B. agt. C. D. The defendant demurs to the plaintiff's complaint, and for causes of demurrer specifies the following: That said complaint contains a cause of action in contract, united with a cause of action for a fraudulent representation,' [or whatever else the several causes may be,] and that these causes of action are improperly united in the complaint. taken by the person who is properly made a party. (Pleadings, 155, 671, et seq.) And it has even been held, under the Code, that a joinder of too many parties defendants is no ground of demurrer at all. (See note, ante, p. 422; see also a special demurrer in such cases, post, No. 15, p. 675.) If a misjoinder of defendants is not objected to in the court below, the objection cannot be raised on appeal. (Tibbetts v. Percy, 24 Barb. 39.) The objection must be taken by demurrer or answer, or it is waived. (Leavitt v. Frisbee and others, 4 Duer., 1.) And if the facts appear on the face of the complaint, it can be taken only by demurrer. (Baggot v. Boulger, 2 Duer, 160.) 1 Such a joinder of causes of action, it has been held, is improper under the Code. (Sweet v. Ingerson, 12 How., 331; Waller v. Raskan, 12 How., 28; see also a special demurrer in case of an alleged improper joinder of causes of action, post, No. 15, p. 675. As to the proper form of such a demurrer, see Pleadings, 716.) (No. 13.) That the complaint does not state facts sufficient to constitute a cause of action. SUPREME COURT. A. B. agi. C. D. The defendant demurs to the plaintiff's complaint, and for ground of demurrer specifies: That the said complaint does not state facts sufficient to constitute a cause of action against this defendant.1 1 It is now well settled that this general form of demurrer is sufficient, and that the defendant is not bound to specify the particular defects or reasons why the complaint is insufficient (see Pleadings, 712), although it is customary, and, no doubt, proper, briefly to specify, in addition, the defect in the pleading objected to. (Pleadings, 715, 716; see also, White v. Brown, 14 How., 282; Paine v. Smith, 2 Duer, 298; see special demurrers on such cases, post, Nos. 14, 16, 17.) There are cases, however, in which a complaint is insufficient, where the defect cannot be reached by this general demurrer; such, for example, as an insufficient statement in the form of the old common counts for goods sold, work, &c., &c. (See note, ante, p. 423.) So in an answer justifying a general charge of slander or libel, if the charge be general, the answer must specify the particular facts on which the justification is based. But it has been held that though such an answer is defective, yet it will be held good on a general demurrer. (Van Wyck v. Guthrie, 4 Duer, 208.) It is held, in Bank of Lowville v. Edwards (11 How., 216), at Special Term, that this general form of demurrer applies only to cases where a fact or facts essential to the cause of action are wholly omitted in the complaint, and not where they are imperfectly stated; and that if the pleader undertakes to aver a fact, but does it defectively, the defect should be pointed out as a special cause of demurrer. Precisely the same doctrine is recognized in a recent case in the Court of |