SECTION 143. 144. CHAPTER II. The demurrer. Defendant to demur or answer. When the defendant may demur. 145. Demurrer, what to specify. 146. How to proceed if complaint be amended. 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 judg ment 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, 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 defeuce, 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 way demur.-Toe 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 paries plaisr for defend ant ; or, 5. That several causes of action cave been propery united; or, 6. That the complaint does not state fast rädetto constitute a cause of action. A party can demur ony in the cases prescribed by thE DUDE for insufficiency or impertence The DUELCue of each FLE tice of the court of chancery and has been away awer. v. Brown, 3 Pr. R. 391, 395. This section corresponde se section 155 of the oude of aut at SHORE DEVE not to apply to pleading a justices opera Curvely Small 2 Saut & 3.2.2 We must forget al did rules respecting delle aut segest a demursor uue se a pleading created, with its cerere end sfice selue HE SUGE J., in Manchester v. Sturrs. & F. R... 4.1. The demurrer is not a subettine for the exceptios for nærfficeur u Staudery, but it is a mode of objecting as an endre deinust un æg ground but i analogous to a demurrer to a pea under the same z pracion Frazee, 3 Code Rep. 43, 4 Fr. R. 4.1 Where a complaint set up the recover of a judgment against Wrx ove that an execution had been seturned sand bone but we can kus ig debtor, [W. R. K., who was not made a defendant] had colluded to defraud the plaintiff and other creditors by a sale of goods, &c.; and also that the debtor had made a general assignment to one D. L. for the benefit of creditors; that D. L. had neglected and refused to execute the trust created by such assignment, and praying that the sale by W. R. K., to defendants, might be declared fraudulent, and that they pay over to the creditors of W. R. K., and that D. L. [who was made a defendant] might be discharged from proceeding any further under the assignment, and that a receiver be appointed, &c., HELD, that W. R. K., was a necessary party to the action. The demurrer for defect of parties sustained. Wallace v. Eaton, 3 Code Rep., 161, 5 Pr. R., 99. A defendant not prejudiced by a party being made a plaintiff, cannot demur because the latter is joined as plaintiff. Crosby v. Berger, 4 Edwards Ch. R., 210. It is supposed that a defendant may assign as many causes of demurrer as he thinks fit, and if one be sustained, the demurrer will be allowed, (Harrison v. Hogg, 2 Ves., Jun., 323; Jones v. Frost, 3 Mad, 1,) and that he may put in separate demurrers to separate and distinct parts of a complaint for separate and distinct causes, and in such a case one demurrer may be allowed, and another or others overruled; (1 Barb., Ch. Pr., 107;) but a demurrer cannot be good in part and bad in part, and if it be to the whole complaint, and any part of the complaint is good, the demurrer must be overruled. Ib., and see 1 Denio, 414. But a demurrer may be good as to one defendant, and bad as to another. Ib., 108. A married woman cannot demur separately from her husband, without an order of the court. Ib. A demurrer to such parts of the complaint as are not answered would be too general and bad. 1 Barb. Ch. P., 115; Mitf., Eq Pl., 294, 300, upon demurrer at law the court gave judgment against the party committing the first fault, if the defect was one of substance. Lipe v. Becker, 1 Denio, 568. But in equity, on the argument of a plea, the defendant could not object to the sufficiency of the bill. Boggs v. Forsyth, 2 Sand., S. C. R., 533. § 145. [123.] Demurrer must specify grounds of objection.The demurrer shall distinctly specify the grounds of objection to the complaint. Unless it do so, it may be disregarded. It may be taken to the whole complaint, or to any of the alleged causes of action stated therein. This section is substituted for section 123 in the code of 1848, under which it was decided, that where a demurrer to a complaint stated, as the ground of demurrer, "that the complaint does not state facts sufficient to constitute a cause of action," The plaintiff treated it as a nullity, and signed judgment under the next section, (s. 146;) and, on motion to set aside such judgment, the court granted the motion, and said:It is argued that the plaintiff should have gone further, and stated wherein the complaint was defective, or what other facts it should contain to make it good. There are cases where this might be done, and there are cases where it could not be done. A statement in this general form is all that can be done, in a majority of cases. I do not say it is enough, in any case, to indicate by the demurrer on which of the six grounds of objection mentioned in this section the party will rely. That may depend on the nature of the objection. It may not be enough to say generally that the complaint shows a defect of parties. But I have no doubt it would be sufficient to say, that the complaint shows on its face that another action is pending between the same parties for the same cause. So, I think it sufficient to say, that the complaint shows no cause of action. Swift v. De Witt, 3 Pr. R., 280-284; 1 Code Rep., 25. It was afterwards decided otherwise; Glenny v. Hitchins, 2 Code Rep, 56; 4 Pr. R., 98; Grant v. Lasher, 2 Code Rep. 2; Hunter v. Frisbee, Ib. 59. In a subsequent case, Willard, J., said :—There is nothing in the code which requires the party demurring to specify the ground of his demurrer, more distinctly than to indicate to which of the six classes it belongs. That is all that can be necessary for the informa. tion of the adverse party, with respect to the first and sixth grounds of demurrer, neither of which are waived by answering without objection. It would lead to great prolixity in many cases, if the reasons for saying that the complaint does not state facts sufficient to constitute a cause of action were required to be set forth; a demurrer would assume the form of a brief for counsel, rather than a pleading, under such a construction of this section. I am satisfied that the objection, that the complaint does not state facts sufficient to constitute a cause of action, may be raised by a demurrer which merely specifies that ground of objection in the language of the statute. Durkee v. Saratoga & Washington R. R. Co., 2 Code Rep. 145. 4 Pr. R., 226, and see to the same effect Hyde v. Conrad, 5 Pr. R., 112. A demurrer to a complaint stating "that it does not appear that the plaintiff had any title to the note when the suit was commenced," held, not to sufficiently assign the cause of demurrer. White v. Low, 7 Barb. S. C. R., 204, 206. Upon the second division of this section it was decided, that a defendant might demur and answer to the whole complaint. Gilbert v. Davies, 2 Code Rep., 49; or to any cause of action in the complaint. People ex. rel. Falconer v. Meyer, 2 Code Rep., 49.; but it has been subsequently held, that a defendant cannot both demur to and answer at the same time a single cause of action alleged in the complaint. Slocum v. Wheeler, 3 Code Rep., 59. 4 Pr. R., 373. Spellman v. Weider, 5 Pr. R., 5. These latter decisions appear most to accord with the spirit of the code, and may safely be considered to have overruled the previous cases. Where the complaint after setting forth certain matters of inducement, averred in succession several distinct acts done and committed by the defendants, whereby and by each of which acts the defendants became liable to pay to plaintiff, &c.; held, that such complaint must be regarded as analogous to a declaration containing several distinct counts, and separate demurrers might be interposed to the several causes of action contained in the complaint. Ogdensburg Bank v. Paige, 2 Code Rep., 75. § 146. [125.] How to proceed if complaint be amended.—If the complaint be amended, a copy thereof must be served on the defendant, who must answer it within twenty days, or the plaintiff upon filing with the clerk on [due] proof of the service, and of the defendant's omission, may proceed to obtain judgment, as provided by section 246, but where an application to the court for judgment is necessary, eight days notice thereof must be given to the defendant. This section which corresponds to section 125 of the code of 1848, has been held not to apply to pleadings in justices' courts. Cornell v. Smith, Sand. S. C. R., 290. In an action against three defendants, two of the defendants demurred to the complaint, and the other defendant suffered a judgment for want of an answer. The plaintiff afterwards amended the complaint in a substantial matter and not in mere form. The plaintiff neither served a copy of the amended complaint on the defendant, against whom judgment had been taken, nor gave him notice of the amendment; and on motion by such defendant to set the judgment aside, it was held that the judgment was irregular, that it did not follow because he omitted to answer the original complaint, that he might not desire to answer the amended complaint, and that he should have been served with notice of the amendment. People v. Woods, 2 Sand. S. C. R., 652, 2 Code Rep., 18. And see Thomas v. Allen, 2 Wend., 618. § 147. [126.] Objection not appearing on complaint.-When any of the matters enumerated in section 144 do not appear upon the face of the complaint, the objection may be taken by answer. This section in connection with section 144, does not make an answer of another action pending in a court of another State, a defence to an action in this State, except in the case allowed under the former law-namely, the case of a foreign attachment. And the court on demurrer to an answer which set up a suit pending for the same cause between the same parties in a court in another State, gave judg ment for the plaintiff, and denied leave to amend as the answer was merely dilatory. Burrows v. Miller, 5 Pr. R., 51. See note to section 144. The objection that a summons, as the commencement of a suit, was not properly served, is not available in an answer or demurrer; but only on motion, to set the proceedings aside. The meaning of the language of the code, allowing it be set up as a defence that "the court has no jurisdiction of the person," is, that the person is not subject to the jurisdiction of the court, not that original process has been improperly served. Nones v. Hope Mut. Ins. Co., 5 Pr. R., 96. 3 Code Rep., 161. On an answer of another suit pending, the court will look to see, whether the bills are substantially for the same cause and for the like object, and will permit the second suit to go on if the first be dismissed. American Bible Society v. Hayne, 4. Edwards, Ch. R., 117, and see 3 Atk., 557. $148. [127.] Objection, when deemed waived.-If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. "The code is silent as to the time and manner in which the defendant after failing to demur to the complaint, can be permitted to insist that it contains no cause of action. In determining this question we must be governed by the analogy of the former practice. The defendant might have objected to the plaintiff's proving any material fact not contained in the pleading. This would have enabled the court or referee to dispose of the question at once, or if need be, have permitted the plaintiff to apply for leave to amend. But the defendant raised no objection to the proof when it was offered; and thus, a good cause of action was proved under a complaint containing none. The defendant could not have moved for a nonsuit on the ground of the insufficiency of the complaint. (Kelly v. Kelly, 3 Barb. S. C. R., 419.) Under the former practice a motion in arrest of judgment might have been made, within the first four days of the term next after the trial. If this practice exists under the code, it is presumed, the motion must be made within the first four days after the verdict is received, (§ 265) or within ten days after notice of the decision of the referee. (§ 268.) The motion must be made before judgment is entered. But in the present case, the defendant has suffered judgment to be entered, and he is thus precluded from moving in arrest, if that practice has not been abrogated by the code. The only remaining way of making the objection to the insufficiency of the complaint available, is by appeal. This, by section 348, can be taken from a judgment entered upon the direction of a single judge of the same court, and it is presumed from a judgment rendered on the report of a referee. It can only be taken after judgment, and it must be made by the service of a notice in writing specifying from what part of the judgment the appeal is taken (§ 327).) The clerk must, by section 328, forthwith transmit to the appellate court a certified copy of the notice of appeal, and of the judgment roll; which roll it is provided shall contain the summons, pleadings, and a copy of the judgment, with any verdict or report, the offer of the defendant, case, exceptions, and all orders relating to a change of parties, or in any way involving the merits, and necessarily affecting the judgment. On such appeal promoted by the defendant, the sufficiency of the complaint is put in issue if it be made the ground of appeal (§ § 327, 328.) It is conceived that the objection to the sufficiency of the complaint is waived, even on appeal, if the judgment appealed from sought, in the notice of appeal, to be reversed or modified for reasons other than the defects in the complaint." Per Willard, J., in Carley v. Wilkins, 6 Barb. S. C. R., 555, 564. It has been decided that the privilege of a foreign consul to be exempt from the jurisdiction of a State tribunal, must be asserted in due time, and is waived by an answer to the merits. Flynn v. Stroughton, 5 Barb. S. C. R., 115. We doubt the soundness of this decision, because this privilege of a consul is not a personal privilege, it is the privilege of the sovereign he represents, and the consul |