89. A commingled statement of two causes of action that may properly be united in one complaint: 1 Van Santv. 344; Harsen v. Bayaud, 5 Duer, 656. But such pleading may be demurred to for ambiguity or uncertainty: Cal. Code, sec. 430. Or the names of parties improperly joined, may be stricken out: Yeates v. Walker, 1 Duvall (Ky.) 84.

90. But a material allegation cannot be stricken out, because the pleader also claims relief which cannot be granted: Woodgate v. Fleet, 9 Abb. Pr. 222. Nor where the information required was obtainable by demand of particulars: Crockroft v. Atlantic Mut. Ins. Co., 9 Bosw. 681. Nor to obtain details as to contents of a lost instrument, of which the nature and effect have been stated: Kellogg v. Baker, 15 Abb. Pr. 286.

91. If the immaterial matter constitute part of a material averment, so that the whole cannot be stricken out without destroying the right of action or defense of the party, it cannot be rejected as surplusage, but may be traversed in the pleading, and must be proved as laid, though the averment be more particular than need be. The true rule is that whenever the whole allegation can be stricken out without affecting the legal right set up by the party, it is impertinent, and may be rejected as surplusage: United States v. Burnham, 1 Mass. 57; Wyman v. Fowler, 3 McLean, 467.

92. An entire pleading cannot be stricken out as irrelevant or redundant: Benedict v. Dake, 6 How. Pr. 352; Nichols v. Jones, Id. 355; Hull v. Smith, 8 Id. 150; Howell v. Knickerbocker Life Ins. Co., 24 How. Pr. 475; Blake v. Eldred, 18 How. Pr. 240. For practice on remedy by striking out, see Amendments, vol. 2, c. 4.

SUCH FACTS ONLY AS CONSTITUTE A CAUSE OF ACTION, THE DEFENSE, OR THE REPLY, MUST BE STATED.

93. Only such essential facts as constitute the cause of action, the defense, or the reply, must be stated in the pleadings. Each party must allege: 1. What he is required to prove, as he will be precluded from proving any fact not alleged: 1 Van Santv. 774; 1 Chitt. Pl. 214; Green v. Palmer, 15 Cal. 414; Wilson v. Cleveland, 30 Id. 192; Hicks v. Murray, 43 Id. 522; Freeman v. Fulton Fire Ins. Co., 38 Barb. 247; Dolcher v. Fry, 37 Id. 152; Barnes v. Quigley,

59 N. Y. 165; Peck v. Root, 5 Hun. 547; Decker v. Saltsman, 1 Id. 421; Hicks v. Murray, 43 Cal. 515.

94. Every fact which, if controverted, must be proved, should be stated: See cases cited in last paragraph and Gates v. Lane, 44 Cal. 392. It is a cardinal rule in equity, as in all other pleading, that the allegata and probata must agree, and averments material to the case, omitted from the pleading, cannot be supplied by the evidence: 1 Greenleaf, 18; 1 Whitt. Pr. 575; Hicks v. Murray, 43 Cal. 515. In cases where complaint was deficient, see Cowenhoven v. City of Brooklyn, 38 Barb. 9; Van Zandt v. Mayor of N. Y., 8 Bosw. 375; Solms v. Lias, 16 Abb. Pr. 311; Bailey v. Johnson, 1 Daly, 61; Curtiss v. Marshall, 8 Bosw. 22. In cases where answer was deficient, see Raynor v. Timerson, 46 Barb. 518; Allen v. Mercantile Mar. Ins. Co., 46 Barb. 642; Bruce v. Kelley, 39 N. Y. (7 J. & Sp.) 27; Smith v. Smith, 60 N. Y. 161.

95. The proofs must substantially conform to and sustain the pleadings: McKinlay v. Morrish, 21 How. U. S. 343; Campbell v. The "Uncle Sam," 1 McAll. 77; Kramme v. The "New England," Newb. 481. But an allegation in a pleading does not estop the party pleading it from proving that the allegation is not correct-unless the allegation is made an issuable fact: Patterson v. The Keystone Mining Co., 30 Cal. 360. As to what is a variance, when material, etc., see, also, Knapp v. Roche, 37 N. Y. Superior Ct. (5 J. & Sp.) 395; Hauck v. Craighead, 4 Hun. 561; Sussdorf v. Schmidt, 55 N. Y. 319; Boynton v. Boynton, 43 Howard, 380; Beard v. Yates, 2 Hun. 466; Degraw v. Elmore, 50 N. Y. 1; Dudley v. Scranton, 57 N. Y. 424; Barnes v. Quigley, 59 N. Y. 265; Cal. Code C. P., secs. 469-471.

96. In pleading, it is the ultimate and not the probative facts which should be averred, and it is error in the court to exclude evidence offered to establish the probative facts, although they are not averred in the pleading: Grewell v. Walden, 23 Cal. 165; Moore v. Murdock, 26 Cal. 514; Miles v. McDermot, 31 Id. 271; Depuy v. Williams, Id. 313; Marshall v. Shafter, 32 Id. 176; See v. Cox, 16 Mo. 166; Sanders v. Anderson, 21 Id. 402. For example: title of plaintiff is an ultimate fact in ejectment, while the fagts established by

plaintiff going to support such title are probative facts: Marshall v. Shafter, 32 Cal. 176.

97. The expression "facts constituting a cause of action,' means those facts which the evidence upon the trial will prove, and not the evidence required to prove their existence: Wooden v. Strew, 10 How. Pr. 50; Dows v. Hotchkiss, 10 N. Y. Leg. Obs. 281; Carter v. Koezley, 14 Abb. Pr. 150; Cahill v. Palmer, 17 Abb. Pr. 196. They are physical facts: Lawrence v. Wright, 2 Duer, 674; see Drake v. Cockroft, 1 Abb. Pr. 203. Issuable facts: Green v. Palmer, 15 Cal. 416. Real, traversable facts: Mann v. Morewood, 5 Sandf. 557. As before stated, facts and not evidence should be alleged. In other words, it is not necessary in alleging a fact to state such circumstances as merely tend to prove the truth of the fact: Steph. Pl. 342.

WHAT SHOULD BE OMITTED.

98. Nothing should be alleged affirmatively which is not required to be proved: Green v. Palmer, 15 Cal. 414; Decker v. Matthews, 2 Kern. 320; Bank of U. S. v. Smith, 11 Wheat. 171; Haskell v. Village of Penn Yan, 5 Lans. 43. For it is the intention of the Code to require the pleadings to be so framed as not only to apprise the parties of the facts to be proved, but to narrow the proofs on the trial: Piercy v. Sabin, 10 Cal. 22; the rule being that the allegations and the proofs must correspond: Maynard v. F. F. Ins. Co., 34 Cal. 48. And allegations merely formal, i. e., such as require no proof at the trial, are unnecessary: Ensign v. Sherman, 14 How. P. 439.

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99. And this is the reason why it is not necessary to aver that a note was given for a "valuable consideration," or, in an action for damages for assault and battery, that A. wrongfully and unlawfully" beat B., or, in an action for libel, for a publication which is libelous per se, that it was published "falsely and maliciously;" for it was of course false, or it would not be libelous, and malice will be presumed when the falsehood is shown. But where a consideration is not implied, or a request is essential to the defendant's liability, it must be specially averred in the pleading: Spear v. Downing, 12 Abb. Pr. 437.

100. The only exception to this rule is to negative a possible performance of the obligation which is the basis of the action, or to negative an inference from an act which is, in itself, indifferent: Green v. Palmer, 15 Cal. 411; Payne v. Treadwell, 16 Id. 244. What is inserted in a pleading must be decisive of some part of the cause, one way or the other.

MODE OF STATING FACTS.

101. The facts in a pleading should be stated: 1. In their logical order; 2. By direct averment; 3. In ordinary and concise language; 4. With reasonable certainty.

LOGICAL ORDER OF STATING FACTS.

102. By "logical order" is meant, "natural order:" Green v. Palmer, 15 Cal. 414. It is laid down as an essential prerequisite that logical order should be observed in the statement of facts in a pleading: 1 Chitt. Pl. 231; Gould's Pl. 4; 2 Till. & Shear. 8. The California Code, section 426, provides that the complaint shall contain "a statement. of the facts constituting the cause of action in ordinary and concise language.'

103. It may be observed that, in erecting a building, the architect does not commence at the top, but at the base, placing each part of his foundation in its proper position, in such a manner that it may not have to be removed or reconstructed. So, in framing a pleading it must be remembered that we are making a statement of certain facts which we relate in the order of their occurrence, and the complete narration must be made in concise language and with sufficient certainty, thus constituting the superstructure of the entire transaction. Should we commence at the wrong end of the story, we would be building without a foundation, and the pleading would be unintelligible; or should we relate only the latter part of the transaction, however just or plausible might be our statements, still we would not have stated a cause of action, for there would not be a complete and connected statement of the transaction.

104. It has been held that facts should be stated according to their legal effect: Gould's Pl. 145; Bac. Abr. i. 7; Co. Litt. 193; Com. Dig. Pl. 37; 2 Saund. 96; Cowp. 600;

Cro. Eliz. 352; Doug. 667; 2 Salk. 574; 1 Ld. Ray. 400; Lawe's Pl. 62; 1 T. R. 446; Steph. Pl. 389; Boyce v. Brown, 7 Barb. 85; Patterson v. Taylor, 1 N. Y. Code R. 175; 8 Barb. 250; Dolner v. Gibson, 3 N. Y. Code R. 153; Coggill v. Amer. Ex. Bank, 1 Comst. 117; Stewart v. Travis, 10 How. Pr. 153; Bennett v. Judson, 21 N. Y. 240; Barker v. Lade, 4 Mod. 150; Howell v. Richards, 11 East. 633; and other English authorities.

But authorities, in States having a Code, are quite as numerous the other way. In the following New York cases it has been held that facts should be stated as they actually occurred or exist: Ives v. Humphreys, 1 E. D. Smith, 196; Lee v. Ainslee, 4 Abb. Pr. 463; Smith v. Leland, 2 Duer, 509; Farron v. Sherwood, 17 N. Y. 227; and many other cases.

In other cases it is held that facts may be alleged either way. Thus, it seems, that an act done by an agent may be alleged as the act of the principal, which is the legal effect of the fact, or it may be alleged as the act of the agent, done as agent of the principal: See Bennett v. Judson, 21 N. Y. 240; Dolner v. Gibson, 3 Code R. 153; Barney v. Worthington, 4 Abb. N. S. 205.

105. It is evident, however, that pleading facts according to their legal effect is, in most cases, necessary to conciseness, which is one of the requirements of Code pleading, and is not, we think, in conflict with any of the requirements of the Code. The rule, it is true, has more special application to deeds and other writings, but is not restricted to them; but, under some circumstances, may extend to all matters and transactions which a party may be required to allege in pleading; as where a fact necessarily embraced or implied certain other facts, which were but the evidences of the material fact, it is sufficient to allege the legal or material fact: See Shaw v. Jayne, 4 How. Pr. 119. This rule, indeed, in many cases, can scarcely be distinguished from that which requires ultimate facts to be stated and not the evidence of them. Take, for example, an action for personal injury resulting from negligence; it was, and still is, sufficient for the plaintiff to allege, in general terms, that the injury complained of was occasioned by the carelessness and negligence of the defendant, without stating the