whether the cross action was for the same cause as the new matter set up in the answer, and if so, then for an order dismissing the cross suit. Farmers' Loan and Trust Co., v. Hunt, 1 Code Rep. N. S., 1.

Where it appears on the face of the complaint that there is another action pending between the same parties for the same cause, the remedy is by demurrer. Where it does not appear on the face of the complaint that another action is pending, &c., then if in fact another action be pending, the proper mode for the defendant to avail himself of that fact is by answer setting forth the pendency of such action. This rule applies as well to an action for a partition as to any other action. Hornfager v. Hornfager, 1 Code Rep. N. S., 412.

As to the practice on an answer of another suit pending, see Groshens v. Lyons. 1 Code Rep.. N. S., 348.

Note to Subd. 4.

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, s. 122.) Wallace v. Eaton, 3 Code Rep., 161; 5 Pr. R., 99.

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

Ib.

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 amendment of the pleadings; and which will generally be done by allowing the amendment on pay. ment of costs. Ib.

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 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. Ib.

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.

Note to Subd. 5.

As to what causes may be joined, see section 167 of this code; and section 172 as to the power of the court after allowance of a demurrer for the cause specified in this sub-division, to order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action contained in the complaint demurred to.

Note to section generally.

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 defense 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 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., Cooper v. Clason, 1 Code Rep., N. S., 347; 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. Baggs v. Forsyth, 2 Sand., S. C. R. 533.

And it has since been decided that on a demurrer to an answer, the sufficiency of the complaint may be considered and adjudged upon, Fry v. Bennett, 1 Code Rep., N. S., 238; and in Schwat v. Furniss, 1 Code Rep., 342, the court laid down a broader rule, namely, that on demurrer to any pleading subsequent to the complaint, either party may attack any previous pleading for defects in substance, and such as could be reached by general demurrer.

If a pleading is correct in substance but not in form, the remedy is not by demurrer, but by motion to have it made more certain and definite, or by some other way than by demurrer. Howell v. Fraser, 1 Code Rep. N S., 270.

An answer which is so framed that it does not set up a valid defense, but which states facts which may by being properly averred constitute a defense, should be demurred to, and not made the subject of a motion to strike out as sham, irrelevant, or frivolous. Alfred v. Watkins, 1 Code Rep. N. S., 343.

See further, note to section 160 of this code.

§ 145. [123.] (Amended 1849.) 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 nulity, and signed judgment under the next section (8. 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 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 information 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 facis 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. Annabal v. Hunter, 6 Pr. R., 255. 1 Code Rep., N. S. 403; but in a subsequent case Purdy v. Carpenter, 6 Pr. R., 361, Barculo, J., said he felt at liberty to consider the point as an open question, and said that having looked carefully through the provisions of the code and all the reported cases, touching the question that a demurrer which states merely that the complaint does not state facts sufficient to constitute a cause of action, ought not, and cannot consistently with the provisions of the code be permitted. 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," was 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.] (Amended 1849.) 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, 2 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 defense 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 judgment for the plaintiff, and denied leave to amend, as the answer was merely dilatory. Burrows v. Miller, 5 Pr. R., 51.

Where the cause of action alleged in the complaint, is a contract made in a foreign state, and such contract is void by the laws of the state in which it was made, and it does not appear on the face of the complaint what is the law of the foreign state, the proper mode of taking advantage of the law of such foreign state, is by answer stating what is the law of the foreign state. A demurrer cannot be sustained. Humphrey v. Chamberlain, 1 Code Rep., N. S., 387.

Where there are in fact two actions pending between the same parties for the same cause, but that fact does not appear on the face of the complaint, the defendant cannot demur, he must put in an answer of the other action pending. Hornfager v. Hornfager, 1 Code Rep. N. S., 412.

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 defense 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.

See further, in note to section 144 of this code.

§ 148. [127.] (Amended 1849.) 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 defendent 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 (s. 265), or within ten days after notice of the decision of the referee. (s. 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 (s. 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 (s. 327, 328.) It is conceived that the objection to the sufficiency of the complaint is waived, even on appeal, if the judgment appealed from is sought, in the notice of appeal, to be reversed or modified for reasous other than the defects in the complaint." Per Willard, J., in Carley v. Wilkins, 6 Barb. S. C. R., 555, 564. See Schwat v. Furness, 1 Code Rep. N. S, 342; Fry v. Bennett, Ib. 256.

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. Stoughton, 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 has no power to waive it in express terms, still less has he the power to do so by implication. See Davis v. Packard. 7 Peters, 276. Thompson v. Valarino, 3 Code Rep., 143, Re Acinena. 1 Sand. S. C. R. 690.

The latter provision in this section is analogous to the practice in chancery of permitting the benefit of a plea to be saved to the defendant at the hearing. Mitford Eq. Pl., 303.

The distinction between pleas in abatement and pleas in bar is not abolished. Gardiner v. Clark, 6 Pr. R., 449.

An objection in the nature of a plea in abatement (other action pending) cannot be taken in a general answer, and is waived by an answer upon the merits. Ib.

This decision is wholly untenable, even supposing an answer of another action pending is in the nature of a plea in abatement. But an answer of another action pending could never be pleaded in abatement. A plea in abatement must give the plaintiff a better writ. The answer of another action pending does not do that, it is in bar.

§ 149. [128.] (Amended 1849, 1851, 1852.) Answer, what to contain. The answer of the defendant must contain:

1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief;

2. A statement of any new matter constituting a defense or