any purpose of pleading, but merely to aid a collateral proceeding. Ib. But see Howard v. Tiffany, 1 Code Rep., N. S. 99.

The true test of the materiality of averments sought to be struck out, is to inquire whether such averments tend to constitute a cause of action or defence, and if they do, they will not be struck out. Ingersoll v. Ingersoll, 1 Code Rep., 102. Averill v. Taylor, 5 Pr. R., 476. 1 Code Rep., N. S., 404.

An order of a single judge refusing to strike out matter at a special term is not an appealable order to the general term. Bedell v. Stickles, 3 Code Rep., 105.

§ 161. [138.] Judgments, how to be pleaded.--In pleading a judgment, or other determination of a court, or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial, the facts conferring jurisdiction.

See the last reported case on the former law on this subject, Barnes v. Harris, 3 Barb. S. C. R., 603.

Bement v. Wisner, 1 Code Rep. N. S., 143, seems to concede that this section does not apply to foreign judgments.

§ 162. [139.] (Amended 1851.) Conditions precedent, how to be pleaded.-In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish on the trial the facts showing such performance. In an action or defence founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified sum which he claims.

The amendment consists of the addition of the words in italic.

Where a complaint on a promissory note intended to be framed under this section stated that the "defendants made and indorsed a promissory note, of which the following is a copy (here followed a copy of a note, payable to Chesebrough, Stearns & Co., and indorsed in blank), and the complaint then alleged that there was due to the plaintiffs (who were third parties) from the defendants a certain sum, for which the plaintiffs demand judgment,- -on objection to this complaint, the court said:

"We think, on a full consideration of the subject, that the complaint is defective. It should show, in some way, the connection between the plaintiffs and the note; i. e., that it was indorsed or transferred to them, or that they are the holders or owners of the note. As it now stands, there is no such allegation. The indorsement as copied, if that be deemed a part of the instrument, is in blank, and there is no averment that the note was delivered to the plaintiffs. The inference is, rather, that the defendants, when they made and indorsed the note, delivered it to Hammerling, Mayet & Co., from whom the consideration proceeded.

"The plaintiffs have proceeded on the supposition that section 162 of the code of procedure, as amended in July last, authorizes this mode of pleading. It provided

that when the action or defence is founded on an instrument for the payment of money only, it shall be sufficient for a party to give a copy, and to state that there is due to him thereon a specified sum, &c. We cannot imagine that it was intended by this to dispense with the necessity of the claimant's connecting himself in some mode with the instrument, when his name does not appear upon it in any manner. When such is the fact, the action is founded on something more than the instrument, and that something must be averred.

"In this case the plaintiffs' names do not appear in the note or the indorsement. The action is founded not only on what does appear by a copy of the instrument, but upon the fact that the code was delivered to them on its transfer by the blank indorsement, or that they became the holders or owners of the note. The 162d section of the code does not relieve the plaintiffs from making one or the other of these averments. Without anticipating other questions that are suggested by this new provision of the code, we are clear that this complaint is insufficient.

"It was said that this amendment of section 162 was a virtual re-enactment of the statute which allowed a copy of a bill or note to be served, with a declaration on the money counts against all or any of the parties. But that statute made no change in the form or rule of pleading. The defendant, in a suit under it, never pleaded to the bill or note indorsed on the declaration; his plea was to the declaration itself, the common counts. Hence, there is no analogy between the two enactments so far as the question of pleading is concerned."

In another case, Ranney v. Smith, 6 Pr. R., 423, where a set-off of promissory notes was set up as a defence, the defendant gave copies of the notes, preceded by averments of their making and delivery; and, on the answer being objected to, Marvin, J., said, "If it is intended by this (s. 162) to dispense with a statement of facts constituting the cause of action, or of new matter constituting a defence, it is a wide departure from the system of pleading as previously established by the code. How are issues to be formed? May a complaint contain simply a copy of the note, followed by the allegation that there is due to the plaintiff a certain sum, and that he claims such sum? If so, upon what is the defendant to take issue? I design not to intimate how these questions may be decided, or whether the courts may not still require some allegation of the making of the note, &c., still giving effect to the second subdivision of section 142, and combining it with the amendment to section 162. In the present case, the defendant has given copies of the notes which he proposes to set off, preceded by averments of the making and delivery of the notes; and I am inclined to think, under the code as now amended, he has substantially complied with its provisions."

§ 163. [140.] Private statutes, how to be pleaded.—In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute, by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.

§ 164. [141.] Libel and slander, how stated in complaint.— In an action for libel or slander, it shall not be necessary to state in the complaint, any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it shall be suffi cient to state generally, that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff shall be bound to establish, on trial, that it was so published or spoken.

This section merely dispenses with the allegation of extrinsic facts showing the application of the words to the plaintiff, in order to obviate the difficulty which was

supposed to have been occasioned by the decision of the supreme court in Miller v. Maxwell, 16 Wend., 9. It does not dispense with the necessity of an averment or inuendo when it becomes essential to show the meaning of the words themselves. And the fact that the code dispenses with the averment of extrinsic facts before necessary to point the application of the words to the plaintiff, justifies the inference that in other respects the rule formerly prevailing remains unchanged. Pike v. Van Wormer, 5 Pr. Ř., 171.

"It seems expedient to notice an important change in the rules of pleading in actions for libel or slander, which has been introduced by the code. Formerly, in all cases in which the application of the words published or spoken was uncertain, or their meaning ambiguous, and their application to the plaintiff, or their meaning as libellous or slanderous, could only be determined by a reference to extrinsic facts, an averment in the declaration of the existence of these facts was indispensable; and it was in these cases only that, strictly speaking, an inuendo was necessary.

"We have reason to know that section 164 is construed by many as superseding the necessity of stating extrinsic facts in all cases whatever, but in reality it is carefully and very properly limited to the cases in which proof of extrinsic facts is necessary to fix the application of the words, not to determine their meaning. Hence, where the meaning of the words is so ambiguous that extrinsic facts are necessary to be proved, to show them to be actionable at all, the necessity of stating these facts by an explicit averment is precisely the same as it has always been. As these facts must be proved to enable the plaintiff to maintain his suit, they are inaterial and issuable in their nature; and a change in the rules of pleading that would have released the plaintiff from the obligation of stating them in the complaint, and thus have taken from the defendant the opportunity of controverting them in his answer, would have been highly inexpedient. Whether the change that has been made, limited as it is, was entirely judicious, may be seriously doubted." Per Duer J., in Fry v. Bennett, 1 Code Rep. N. S., 247.

In Pike v. Wormer (6 Pr. R. 99; 1 Code Rep. N. S. 403), Harris J., says, Where the words used convey a clear and direct imputation of a slanderous character, they are actionable in themselves. They need no colloquium or other averment to aid them in support of the action. But where the words themselves are ambiguous, or where the subject matter to which they are intended to relate, or the person to whom they are intended to apply, is uncertain, then at common law they need the aid of a colloquium or other averment to help them in sustaining the action. In one of these particulars, and only in one, the code has changed the common law rule of pleading. Now, even though it may be uncertain to whom the words were intended to apply, it is no longer necessary to insert in the complaint any averments showing that they were intended to apply to the plaintiff. But in other respects, the same averments are requisite in pleading under the code as at common law.

§ 165. [142.] (Amended 1849.) Answer in such cases.—In the actions mentioned in the last section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances.

In slander for charging the plaintiff with being a thief, an answer which merely stated that what the defendant said of the plaintiff was true, was overruled as bad, the court holding that under section 128 (now 149), an answer setting up a justification must contain a statement of the facts which constitute the defence in ordinary and concise language. Anon. 3 Pr. R., 406.

Where there is no justification on the ground of truth, the rule as to mitigating circumstances is the same as under the old system. Meyer v. Shultz, 4 Sand. S. C. R., 664.

And per Duer, J., in Fry v. Bennett (1 Code Rep. N, S., 255)," It is true that section 165 permits matter in mitigation of damages, to be set forth in the answer, but this is only allowed when the truth of the defamatory matter is properly averred." See also Graham v. Stone, 1 Code Rep., N. S., 181.

Nor is this all, we are clearly of opinion that when circumstances which can

only be given in evidence in mitigation of damages, are set forth in the answer, it must be distinctly stated, that it is with that view and for that purpose only that they are introduced, since otherwise the plaintiff will have a right to infer that they are relied on as a bar to the action, and upon that ground may properly demur to them." Fry v. Bennett, supra, but otherwise matter pleaded only in mitigation, is not a subject of demurrer. Newman v. Otto, 4 Sand. S. C. R., 669.

Mitigating circumstances are not a defence in the proper sense of the term, and if pleaded alone would be struck out as frivolous. Ib.

A denial of circumstances in mitigation would be an improper and immaterial issue. 1b.

The code permits a defendant who justifies, to allege mitigating circumstances to reduce the amount of damages; but the permission thus given, has not altered the nature and effect of the circumstances which the defendant thus offers to prove ; whether, if proved, they will operate upon the minds of a jury, so as to reduce at all the amount of damages, is still uncertain; and this uncertainty necessarily takes from them the character of a legal bar, in whole or in part, to the plaintiff's recovery. The true and sole design of this new provision in the code, is to enable a defendant, by giving notice of his intention, in his answer, to prove upon the trial circumstances in mitigation of damages, even when he has pleaded and failed to prove the truth of a defamatory charge; thus relieving him from the operation of the rule which was established as law by the memorable decision of the court of errors in Root v. King, (7 Cow., 613).

The general rule in pleading a defence in an action of slander or libel before the code, was that the matter alleged in the plea, must be such as constituted a complete defence to so much of the declaration as it professed to answer. The code has made only one exception to this rule, that is in case justification is pleaded and not otherwise, mitigating circumstances may be alleged. So that in case of failure in making out the justification, the mitigating circumstances may nevertheless be proved. Brown v. Õrvis, 6 Pr. R., 376. Meyer v. Schultz, 4 Sand. S. C. R., 664.

Mitigating circumstances are such circumstances as the well established rules of law allow to be given in evidence in mitigation of damages. Graham v. Stone, 1 Code Rep., N. S., 181.

The question whether the facts set up in mitigation are, or are not, such as should be admitted to be given in evidence in mitigation, must be determined by the presiding judge upon the trial of the issues of fact. Newman v. Harrison, 1 Code Rep. N. S., 184 n.; Fry v. Bennett and Newman v. Otto, supra.

An answer justifying the speaking the words, must confess the speaking. Annibal v. Hunter, 6 Pr. R., 255; 1 Code Rep., N. S., 403. Sayles v. Wooden, 6 Pr. R., 84; 1 Code Rep., N. S., 409. Porter v. McCreedy, 1 Code Rep. N. S., 88. Lewis v. Kendall, 6 Pr. R., 59.

An answer merely stating that the words spoken are true, is insufficient as a justification, it should state the facts which go to constitute the crime or offence imputed, so that an issue either of law or fact may be framed. Ib. Or as it is better expressed (Fry v. Bennett, supra), where au alleged libel consists of a charge general in its character, a justification on the ground of the truth of the charge must state the facts which show the charge to be true; and see Sayles v. Wooden, 6 Pr. R. 84; 1 Code Rep. N. S., 409. Buddington v. Davis, 6 Pr. R., 401.

Where an alleged libel is privileged only on the ground that certain events happened, the happening of those events must be sufficiently alleged by the answer to be true to enable the defendant to set up the defence of privilege. Fry v. Bennett, 1 Code Rep. N. S., 239; Buddington v. Davis, 6 Pr. R., 401.

Actions for slander, it is said, are in the nature of penal actions. 3 Johns., 180. 9 ib., 36. 2 Burr., 66. 4 Cow., 37. Salk., 644. And it is said that in such an action, a party may decline to answer on the ground that he would criminate himself. Bailey v. Dean, 5 Barb. S. C. R., 297; and see Hill v. Muller, 2 Sand. S. C. R., 684. Clapper v. Fitzpatrick, 1 Code Rep., 69.

§ 166. In actions to recover property distrained for damage, answer need not set forth title.--In an action to recover the possession of property distrained doing damage, an answer that the defendant or person by whose command he acted, was law

fully possessed of the real property upon which the distress was made, and that the property distrained was at the time doing damage thereon, shall be good, without setting forth the title to such real property.

§ 167. [143.] (Amended 1849-1852.) What causes of action may be joined in the same action.-The plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of,

1. The same transaction, or transactions connected with the same subject of action;

2. Contract, express or implied; or

3. Injuries with or without force, to person and property, or either; or

4. Injuries to character; or

5. Claims to recover real property, with or without damages for the withholding thereof and the rents and profits of the

same; or

6. Claims to recover personal property, with or without damages, for the withholding thereof; or

7. Claims against a trustee, by virtue of a contract, or by operation of law.

But the causes of action, so united, must all belong to one of these classes, and must affect all the parties to the action. and not require different places of trial, and must be separately stated.

Before the amendment of 1852 this section read:

The plaintiff may unite several causes of action in the same complaint, where they all arise out of,

1. Contract, express or implied; or,

2. Injuries with or without force, to the person; or,

3. Injuries with or without force, to property; or,

4. Injuries to character; or,

5. Claims to recover real property, with or without damages, for withholding thereof, and the rents and profits of the same; or,

6. Claims to recover personal property, with or without damages for withholding thereof; or,

7. Claims against a trustee by virtue of a contract or by operation of law. But the causes of action, so united, must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated.

In Alger v. Scoville, 1 Code Rep. N. S., 303; 6 Pr. R, 131, it was held, that a complaint which demanded relief against two-against one in his capacity of trustee, and against the other in his individual capacity-contained causes of action which could not be united in one complaint; and further, that a cause of action triable by the court could not be united with a cause of action triable by a jury; and in Cahoon v. President of Bank of Utica, Code Rep., 110, it was held that a claim on a demand for money had and received, could not be