ing," the requirements of the code were satisfied. Hill v. Thacter, 2 Code Rep. 3, 3 Pr. R. 407.

It has been said that where the action is in a court of local jurisdiction as in the New-York common pleas, where the trial can only be had in one county, (namely New-York) that the complaint would be sufficient without stating the name of the county in which the plaintiff desires the county to be. His bringing his action in such court sufficiently indicates his desire to have the trial in the county in which the court has jurisdiction. Leopold v. Poppenheimer, 1 Code Rep., 39.

Note to subd. 2.—(Amended.)-Before amendment it read thus: "A statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended." We have anticipated what we might add to this subdivision in the note to section 140.

We may refer, however, to the decisions which have been made with reference to the forms of the complaint in different actions, thus:

Bills and Notes.-A number of decisions have been made on the subject of the form of complaint, in an action on a bill or note. It is presumed, however, that practitioners will now avail themselves of the provisions in section 162 of this code, as amended, and that the law on the form of complaints in actions or instruments for the payment of money, (which includes, it is presumed, bills of exchange, promissory notes and money bonds,) will become obsolete. We give, therefore, only the names of the cases and references where they may be found. Turner v. Comstock, 1 Code Rep., 102. Benson v. Couchman, Ib., 119. Beech v. Gallup, 2 Ib., 68. Appleby v. Elkins, 2 Ib., 80. Vanderpool v. Tarbox, 7 Leg. Obs., 150. Hoxie v. Cushman, Ib., 149. Spellman v. Weider, 5 Pr. R., 5. Gay v. Paine, Ib., 107. Van Namee v. B'k of Troy, lb., 162. Peets v. Bratt, 6 Barb. S. C. R., 662.

Bonds. As to bonds for the payment of money only, see section 162 of this code.

In actions on bonds for the breach of any condition, other than for the payment of money, or for any penal sum, for the non-performance of any covenant or written agreement, the plaintiff is required to state in his complaint the specific breaches for which the action is brought. 2 R. S., 300, s. 6. [378, s. 5.] 7 Wend. 345. 6 Ib., 454. 4 Ib., 570. This rule has been held to apply to actions on bonds given by non-resident plaintiffs to secure defendants' costs. 5 Hill, 37. But that it did not apply to actions on bonds for payment of money by instalments. 17 Wend., 331. Nor to actions on bonds for the payment of an annuity. 3 Wend., 454. 5 Hill, 37. The practice of demanding oyer of bonds is 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.

Creditor's suit.-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 judgment 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.

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 elapsed since the death of the husband, and the court in delivering judgment said:

The defendant, on the argument, insisted on two technical grounds of defence, both of them based upon the supposition that this is an action of ejectment. These grounds are, first, that six months had not elapsed after the death of the husband, before the suit was brought; (2 R. S. 303, 2, subd. 2) and secondly, that the defeudant 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 defence by the answer. With respect to the first, there is not the slightest indication in the answer, that such a defence 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 defence.

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 defence. This, also, it seems to me, is not precisely according to the existing law.

But supposing these defences 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; ( § 69) and that all rights of action given or secured by existing laws, may be prosecuted in this single form of action. (§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.

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 out. Shaw. v. Jayne, 2 Code Rep., 69. 4 Pr. R., 119.

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, Code Rep., 56. 4 Pr. R., 98. 3 Code Rep., 153.

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 subtilely to deceive and injure the plaintiff in this respect, did not or 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 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 2nd instead of the 6th class of $167. Dows v. Green, 3 How., 337. Spalding v. Spalding, 1 Code Rep. 64. 3 Pr. K., 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 vow 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 L. O., 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 defendant 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.

A complaint need not be positive, it may be on information. Ib. See, §§ 164, 167. 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. Schroephell 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, since reversed on appeal. See, also, 3 Code Rep., 211, 156, 169, and 2 ib., 1.

8

CHAPTER II.

The demurrer.

SECTION 143. 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.

148. Objection, when waived.

§ 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 defence. 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 signed judgment before the application to be let in to answer, and suggests that he 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 defence, 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 defence, or serve with his motion papers a copy of his proposed answer, so that the court may judge of the merits of the proposed defence. Ib. On a motion to set aside a judgment taken for want of an answer, where the defendant showed a good defence on the merits, and that the default was occasioned by a misapprehension as to the effect of a stipulation extending the time to answer, it was asked by the plaintiff that the defendant should not be relieved except upon the terms that he should not set up the defence 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 defence, it was entitled to be treated like every other legal defence, 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, will be irregular. Dudley v. Hubbard, 2 Code Rep., 70. Williams v. Wilkinson, 1 Code Rep. N. S., 20. 3 Code Rep., 151.

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.

§ 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,

4. That there is a defect of parties, plaintiff or defend

ant; or,

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.

A party can demur only in the cases prescribed by the code. He cannot except for insufficiency or impertinence. The doctrine of exceptions belonged to the practice of the court of chancery and has been swept away. Per Willard, J., in Royce v. Brown, 3 Pr. R., 391, 395.

This section corresponds to section 122 of the code of 1848, and has been held not to apply to pleading in justices' courts. Cornell v. Smith, 2 Sand. S. C. R., 290. We must forget all old rules respecting demurrers, and regard a demurrer now as a pleading created, with its character and office defined by the code. Per Gridley J., in Manchester v. Storrs, 3 Pr. R., 410.

The demurrer is not a substitute for the exception for insufficiency in chancery, but it is a mode of objecting to an entire defence on legal grounds, and in that respect analogous to a demurrer to a plea under the old common law practice. Cobb. v. Frazee, 3 Code Rep., 43, 4 Pr. R., 413.

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 defence or create a remedy, but merely to direct the mode in which defences or objections already available by law may be taken advantage of, the nature of those defences or objections being left unaltered. And the language here used must be taken to mean, that a defence 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.

A demurrer for nonjoinder of parties is well taken, where it appears that the court cannot determine the controversy before it, without prejudice to the rights of others; nor by saving their rights. (Code, § 122.)

It seems, that section 122 of the code is the controlling section in determining whether a demurrer for defect of parties is well taken.

If the court can determine the controversy before it, without prejudice to the rights of others, or by saving their rights, then a demurrer for nonjoinder of such parties is not well taken. If on the contrary a complete determination of the controversy cannot be had without the presence of other parties, then the demurrer is well taken, and the court should order them to be brought in by amendments of the pleadings; and which will generally be done by allowing the amendment on payment of costs.

Where a complaint set up the recovery of a judgment against W. R. K., and that an execution had been returned nulla bona, and that the defendants and the