FACTS INDEPENDENT OF THE CAUSE OF ACTION.

63. Facts independent of the cause of action and proper to the affidavit, accompanying a pleading, as in cases of arrest, should not be alleged: Sellar v. Sage, 12 How. Pr. 531; 13 Id. 230; Frost v. McCarger, 14 Id. 131; Secor v. Roome, 2 N. Y. Code R. 1; contra, Barber v. Hubbard, 3 Id. 156. So, of facts in relation to a contemporaneous agreement in writing varying the terms of a promissory note: Smalley v. Bristol, 1 Mann. (Mich. R.) 153.

IMPLICATIONS AND PRESUMPTIONS OF LAW.

64. Where the law presumes a fact, it need not be stated in a pleading: 1 Chitt. 220; 4 M. & S. 120; 2 Wils. 147; Steph. on Pl. 352; 1 Whitt. 591; Partridge v. Badger, 25 Barb. 146; Tileston v. Newell, 13 Mass. 406; Dunning v. Owen, 14 Id. 157; McGee v. Barber, 14 Pick. 212; Marsh v. Bulteel, 5 Barn. & Ald. 507; Frets v. Frets, 1 Cow. 335; Allen v. Watson, 16 Johns. 205; Vymor's Case, 8 Rep. 81; Bac. Ab. Pleas, i. 7; 2 Sand. 305; Sheers v. Brooks, 2 H. Bl. 120; Handford v. Palmer, 2 Brod. & Bing. 361; Wilson v. Hobday, 4 M. & S. 125; Chapman v. Pickersgill, 2 Wils. 147. Or, matters of which the court takes judicial notice need not be alleged: Goulett v. Cowdry, 1 Duer, 139. Or notice ex officio: 1 Sandf. 262; Steph. Pl. 345. As of a public statute: Goulett v. Cowdry, 1 Duer, 139. But not of ordinances of a municipal corporation: Harker v. Mayor of N. Y., 17 Wend.

199.

65. Agency. That presentation of note by a bank was "as agents" for plaintiff and not as owners, is presumed: Farmers and Mechanics' Bank of Genesee v. Wadsworth, 24 N. Y. 547.

66. Death of Ancestor.-The allegation that one is heir of A. implies the death of A., for nemo est hæres viventis: Broom's Leg. Max. 393. Though the term "heir" may denote heir apparent: Lockwood v. Jessup, 9 Conn. R. 372; Cox v. Beltzhoover, 11 Mo. 142.

67. Delivery of a Specialty. The delivery of a specialty, though essential to its validity, need not be stated in a pleading: 1 Chitt. Pl. 364; 1 Saund. 291; 10 How. Pr. 274; 12 Id. 452; 15 N. Y. 425; Lafayette Ins. Co. v. Rogers, 30 Barb. 491.

68. Incorporation.-In New York, that a business corporation made and delivered its promissory note, sufficiently states a valid contract. A legal consideration may be presumed: Lindsey v. Simonds, 2 Abb. Pr. (N. S.) 79; Wood v. Wellington, 30 N. Y. 218; Phoenix Bk. of N. Y. v. Donnell, 41 Barb. 571.

69. In Writing.—Averment of acceptance implies "in writing:" Bank of Lowville v. Edwards, 11 How. Pr. 216.

70. Jurisdiction.-The jurisdiction of a court of record of a sister State will be presumed. It is sufficient to allege that judgment was duly recovered: Halstead v. Black, 17 Abb. Pr. 227. So, also, of all courts, officers, and boards: Cal. Code, C. P. sec. 456.

71. Non-Payment. That defendant has not paid, is implied in the allegation that there is due and owing, etc: Keteltas v. Meyers, 19 N. Y. 233; Holeman v. De Gray, 6 Abb. Pr. 79. In the case of Ketellas v. Meyers, supra, a copy of the note sued on was set out in the complaint, and the fact that the note was due appeared therefrom; and the complaint, instead of alleging that so much was unpaid thereon, alleged that a certain sum, (the amount of the note) was "due and owing thereon:" Held, that it was equivalent to an averment that that amount remained unpaid. If, however, the complaint had simply averred the making and delivery of the note, without stating when the same matured, the allegation that it was "due " would be a mere conclusion of law: Roberts v. Treadwell, 50 Cal. 520.

72. Official Capacity of executor is implied: Scranton v. Farmers and Mechanics' Bank, 24 N. Y. 424.

73. Ownership.-Possession of negotiable paper indorsed in blank by the payee thereof, is prima facie evidence of ownership: Bedell v. Carll, 33 N. Y. 591; Brainerd v. N. Y. & Harlem R. R. Co., 10 Bosw. 332.

74. Promise.—In a great many cases where a legal obligation exists, the law will imply a promise. This has been stated to be an inference or conclusion of law from the legal liability (Gould's Pl. 330); but the report in Kinder v. Paris, 2 H. Bl. 562, says, that from the antecedent debt or duty, the law presumes the defendant did in fact promise to pay, and Lord Holt is reported to have said that there was no such thing as promise in law: Parkins v. Wollaston, 6 Mod. 131. So, a sale of goods or loan of money necessarily imply a promise, and a consideration, and a mutual contract: see notes to Osborne v. Rogers, 1 Saund. 264; Victor v. Davies, 1 M. & W. 758; Emery v. Fell, 2 T. R. 28; Glenny v. Hitchins, 4 How. Pr. 98. And the law makes no distinction between an implied promise and an express promise: Kinder v. Paris, 2 H. Bl. 563; Chitty on Cont. 19. See discussion on this subject of promise in Hall v. Southmayd, 15 Barb. 34-6; see, also, Cropsey v. Sweeney, 27 Barb. 310; Farron v. Sherwood, 17 N. Y. 230; Berry v. Fernandez, 1 Bing. 338; Durnford v. Messiter, 5 Man. & S. 446.

75. Proportion of Liability of Surety.-The proportion that a surety has to pay is implied: Van Demark v. Van Demark, 13 How. Pr. 372.

76. Public Officer.-In a suit by a public officer in his name of office, his due appointment thereto is implied. Fowler v. Westervelt, 40 Barb. 374. 77. Statute.-As to implications arising in actions brought under a statute, see Freeman v. Fulton Fire Ins. Co., 38 Barb. 247; Washburn v. Franklin, 18 Barb. 27; 7 Abb. Pr. 8; Merwin v. Hamilton, 6 Duer, 248; Peel v. Yellis, 4 Johns. 304.

MATERIAL AVERMENTS.

78. A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken

from the pleading without leaving it insufficient: Cal. Code, sec. 463; Oregon Code, sec. 93. There is no question of more importance to the pleader than what is and what is not a material allegation; or, in other words, what is necessary to be stated in a pleading, and what ought to be omitted. In the case of Green v. Palmer, 15 Cal. 414, this question is elaborately discussed, and the true rule is there laid down in the clearest and most logical manner.

79. The following questions will decide in most cases whether an allegation be material: Can it be made the subject of a material issue? Green v. Palmer, 15 Cal. 414; Martin v. Kanouse, 2 Abb. Pr. 330; Massina v. Clark, 17 Abb. Pr. 188; Cahill v. Palmer, Id. 196. Or, if it be denied, will the failure to prove it decide the case in whole. or in part? Green v. Palmer, 15 Cal. 414. Such material averment cannot be presumed from the existence of other facts: 1 Van Santv. 773-4; 15 Barb. 34, 35; Van de Sande v. Hall, 13 How. Pr. 458.

ESSENTIAL FACTS ONLY ARE MATERIAL.

80. What facts are essential in a pleading is sometimes a question which puzzles the pleader, yet it should not. The following tests will determine whether certain allegations are unnecessary (1 Van Santv. 319, 320): 1. Can the allegation be stricken from the pleading without leaving it insufficient? Whitwell v. Thomas, 9 Cal. 499; 2. Can it be stricken from the pleading without impairing any portion of plaintiff's cause of action? Green v. Palmer, 15 Cal. 414; 3. Can it be stricken from the pleading without an injury to plaintiff or a benefit to defendant, however remote this injury or benefit may be?

81. The essential facts only should be averred; for, should the pleadings be so framed that even the least important essential fact is left out, the cause of action is impaired. What plaintiff ought to aver and what he must prove are, we repeat, entirely distinct propositions. If the pleader were required to aver every fact necessary to prove his case, most pleadings would be of great length. The pleadings should be concise and to the point. "There never was a greater slander upon the Code than that it permits long pleadings:" Green v. Palmer, 15 Cal. 417. It is

only ultimate facts that are to be alleged, and not the facts which tend to prove or establish the existence of the ultimate facts. For example: Plaintiff sues for goods sold and delivered; defendant denies the sale and delivery. The plaintiff must then prove the facts which show the sale and delivery.

IMMATERIAL, IRRELEVANT AND REDUNDANT MATTER. 82. Irrelevant, immaterial, unessential, redundant, and surplus allegations should be omitted from a pleading: Green v. Palmer, 15 Cal. 414. Such allegations or denials present no issue: 1 Van Santv. 76; Maretzek v. Caldwell, 19 Abb. Pr. 35. And if such matter be inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby: Cal. Code, sec. 453; Nevada, sec. 57; Idaho, sec. 57; Arizona, 57; N. Y. Code, sec. 160; Oregon, sec. 84; Larco v. Casaneuava, 30 Cal. 560; Boles v. Cohen, 15 Id. 150; Hampshire Manuf. Bank v. Billings, 17 Pick. 87; Lord v. Tyler, 14 Id. 156; Cahill v. Palmer, 17 Abb. Pr. 196; Moffatt v. Pratt, 12 How. Pr. 48.

83. Irrelevant matter in a pleading is that which has no bearing on the subject-matter of the controversy: Fabricotti v. Launitz, 1 Code R. (N. S.) 121; Stafford v. Mayor of Albany, 6 Johns. 25; Van Rensselaer v. Brice, 4 Paige, 177; Perrine v. Farr, 2 Zab. 356; Lee Bank v. Kitching, 11 Abb. Pr. 435; Cahill v. Palmer, 17 Id. 196. Surplusage is matter altogether superfluous and useless, and which may be rejected by the court, and the pleadings stand as if it were stricken out or had never been inserted: Gould's Pl. 143.

84. So, a false construction in law upon the terms of a contract, will be regarded as surplusage, and, on motion, will be stricken out: Stoddard v. Treadwell, 26 Cal. 294. Or superfluous matter, when inserted by itself: 1 Van Sant. 311; Boles v. Cohen, 15 Cal. 150. So, when the name of the wife is improperly or unnecessarily joined with that of her. husband, it may be regarded as surplusage: Warner v. Steamer "Uncle Sam," 9 Cal. 697. So of inconsistent allegations: 1 Van Sautv. 353, 519; Uridias v. Morrill, 25 Cal. 31; Klink v. Cohen, 13 Id. 623. Or allegations which are absurd, or the truth of which is impossible: Sacramento Co. v. Bird, 31 Cal. 66.

85. So of allegations which are redundant, although the facts averred are relevant, as by a needless repetition even of material averments: 1 Chitt. Pl. 227; Cowp. 665; Doug. 668; Bowman v. Sheldon, 5 Sand. 660; Rost v. Harris, 12 Abb. Pr. 446; Benedict v. Seymour, 6 How. Pr. 303; Clough v. Murray, 19 Abb. Pr. 97.

86. Any matter which may tend to limit or qualify the degree of certainty, is redundant matter or surplusage; for example, matter of mere evidence, legal conclusions, things within judicial notice, matter coming more properly from the other side, or matter necessarily implied: Steph. Pl. 423. Though in its more strict and confined meaning, redundancy imports matter wholly foreign and irrelevant: Id. 422; Barstow v. Wright, Doug. 667; 1 Saund. 233; Yates v. Carlisle, 1 Black. Rep. 270; Plowd. Comm. 232; Lord v. Houston, 11 East. 62; Cobbett v. Cochrane, 8 Bing. 17; Bacon v. Ashton, 5 Dowl. 94; Palmer v. Gooden, 8 M. & W. 890; Stevens v. Bigelow, 12 Mass. 438; Hampshire Manf. Bank v. Billings, 17 Pick. 87; Simpson v. McArthur, 16 Abb. Pr. 302.

87. Conclusions of law inserted in a pleading may be considered as mere surplusage: Halleck v. Mixer, 16 Cal. 574. So of evidence when inserted in a pleading: Green v. Palmer, 15 Cal. 414; Bowen v. Aubrey, 22 Id. 566. Or probative facts, such as averments of deraignment of title: Larco v. Casaneuava, 30 Cal. 560; Wilson v. Cleaveland, Id. 192. Or hypothetical statements: see ante, note 17; 1 Van Santv. 358; Green v. Palmer, 15 Cal. 414; Wise v. Fanning, 9 How. Pr. 543; Brown v. Ruckman, 12 Id. 313.

88. Matter inserted in a pleading obnoxious from uncertainty, as where the fact which constitutes the cause of action is not stated clearly, will be considered as surplusage: Arrietta v. Morrissey, 1 Abb. Pr. (N. S.) 439. So of matter contained in a pleading, which is frivolous: Smith v. Countryman, 30 N. Y. 655; Lockwood v. Salhenger, 18 Abb. Pr. 136; Van Valen v. Lapham, 13 How. Pr. 240. Or allegations ambiguous or repugnant to each other: 1 Chitt. Pl. 377; 1 Van Santv. 354; Com. Dig. (C. 23); Bac. Abr. Pleas, i. 4; Vin. Ab. Abatement; Sibley v. Brown, 4 Pick. 137; Wyatt v. Ayland, 1 Salk. 324; Nevill v. Soper, Id. 213; Butt's Case, 7 Rep. 25; Hutchinson v. Jackson, 2 Lut. 1,324; Hart v. Longfield, 7 Mod. 148; Byass v. Wylie, 1 C. M. & R. 686.