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a reasonable time, the defect will then be waived, and the answer may be sufficient. See introductory chapter on formal requisites of pleading, and various cases, including Laimbeer v. Allen, 2 Sandf. S. C. R. 648, there cited. The same, too, is implied in McGown v. Leavenworth, above mentioned; and a return within the same day in which the pleading was served, was held to be a reasonable time.

The plaintiff, too, cannot take advantage of a default occasioned by the laches or bad faith of his own attorney, where the defendant's pleading has been ready, and attempted to be served, within due time. Thus, in Falconer v. Ucoppel, 2 C. R. 71, on the last day of service, the defendant endeavored, in office hours, to serve his answer at the plaintiff's office, and also at his dwelling, but both were closed, and no one was there to receive it; but, on the following day, such defendant succeeded in serving the answer on the plaintiff personally, with notice of the attempted service on the day before: under which circumstances it was held that the service was regular, and costs were given.

Lastly, in relation to the time allowed to plead, the effect of an amendment by the adverse party must not be forgotten.The consequence of such an amendment is, to establish a new period altogether, in lieu of that current before the service of the amended pleading. The time will then run in the usual manner, as from the date of such service, without any reference whatever to the proceedings prior thereto. See this subject previously considered, and the cases thereon cited, in the introductory chapter of this part of the work, in reference to the correction of pleadings.

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CHAPTER III.

DEMURRER.

THE office of this species of pleading, is the formal impeachment of defects in the plaintiff's case, apparent upon his own showing. It is, therefore, a measure of comparative infrequency, as, in a well-drawn pleading, it rarely happens that any such salient points of attack are left uncovered. If the defects objected to require any statement or proof of facts to make them apparent, demurrer will not lie. The objection in that case can only be taken by answer, and the defendant's rights, in that respect, are specially saved by section 147. In practice, therefore, this will be the most usual course.

In Humphreys v. Chamberlain, 1 C. R. (N. S.) 387, it was accordingly held that a demurrer to an action on a contract, on the ground that such contract was void by the laws of the State in which it was made, was bad, and that the objection could only be taken by answer; inasmuch as the contents of foreign statutes are a matter of evidence, which must be set up in the pleadings as a fact, and proved at the trial accordingly.

The demurrer and answer are essentially separate pleadings,. and do not lose their distinctive character by being made out in one paper, and connected in form. See Howard v. The Michigan Southern Railroad Company, 5 How. 206, below cited.

Where the complaint in an action showed a title to sue, but contained insufficient averments on the subject of that title, answer, not demurrer, was held to be the proper form of raising the question.-Millard v. Shaw, 4 How. 137.

The points on which demurrer will lie, and the nature of that pleading in general, are strictly defined by sections 144 and 145 of the Code, which run as follows:

§ 144. The 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,

or,

4. That there is a defect of parties, plaintiff or defendant; or,

5. That several causes of action have been improperly united;

6. That the complaint does not state facts sufficient to constitute a cause of action.

§ 145. 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.

It follows, as a matter of course, that no description of objection which does not fall within one or other of the foregoing classes, will now form ground of demurrer.

Demurrer is admissible with respect to other pleadings besides the complaint, as hereafter noticed.

Demurrer will only lie to an entire pleading, or to an entire

Page 246, line 12.

It is now provided by Rule 87, inserted on the last revision, that, in all cases of more than one distinct cause of defence, the same shall not only be separately stated, but plainly numbered. This provision should be attended to in the statement of grounds of demurrer.

sufficient statements, however, demurrer is the proper course : see Hoxie v. Cushman, 7 L. O. 149; and a motion of the above nature will be inadmissible.

That demurrer is not an admissible form of objecting to irrelevant or redundant matter, is likewise laid down in the recent cases of Gray v. Nellis, 6 How. 290; and The Bank of North America v. Suydam, 1 C. R. (N. S.) 325; Benedict v. Dake, 6 How. 352; and Nichols v. Jones, 6 How. 355.

Where a portion of a pleading was sufficient, a demurrer to the whole was held too broad, and overruled in Cooper v. Clason, 1 C. R. (N. S.) 347.

On similar principles, matter in mitigation, alleged in an answer in slander, was held not to be a subject of demurrer.Newman v. Otto, 10 L. O. 14.

Where the pleading objected to was correct in substance, but not in form, it was held that a motion, in order to the cor

rection of the defect, was the proper mode of proceeding, and that demurrer was not admissible. "The Code neyer intended that judgment should be given against a party who has merits, for a matter of mere form."-Howell v. Fraser, 6 How. 221; 1 C. R. (N. S.) 270.

The demurrer under the Code, coupled with the provisions for striking out irrelevant matter, have swept away entirely the old chancery practice of exceptions.-Royce v. Brown, 3 How. 391; Cobb v. Frazee, 4 How. 413; 3 C. R. 43. It is a new species of pleading created, and its character and office defined by the Code, and the old rules on the subject exist no longer. Many objections under the old practice are now no longer cognizable, whilst many others, which formerly were waived, unless pleaded in abatement, can now be taken by means of this pleading.-Swift v. De Witt, 3 How. 280; 1 C. R. 25; 6 L. O. 314; Manchester v. Storrs, 3 How. 410.

A demurrer to the Code itself, as unconstitutional, inasmuch as it abolished the distinction between law and equity, has been, as might have been expected, overruled as frivolous.--Anon. 1 C. R. 49.

Where the claim of the plaintiff against trustees was out of date by his own showing, except as regarded an allegation that the defendants had, within ten years, brought a suit in their representative capacity, but without any averment that they had received money by that means; it was held the case was within the statute of limitations, and that demurrer would lie.-Genet v. Tallmadge, 1 C. R. (N. S.) 346.

In Seward v. Miller, 6 How. 312, where a pleading was sought to be stricken out as irrelevant, on the ground that the allegations were general, and not specific, as required by the Code of 1851, the motion was denied, on the ground that demurrer was the proper form of proceeding; and leave to demur was accordingly given, although the time for that purpose was past. Demurrer is, in fact, the proper form for taking any objection to the pleading, when taken to it as a whole, and not to portions. See Nichols v. Jones, above mentioned, and the other cases cited in connection therewith.

Distinctness in stating the grounds of demurrer, is, as will be seen, made a positive requisite by sec. 145. The observations in a foregoing chapter, in reference to making use of the exact words of any statutory provision, are peculiarly appli

cable to demurrer: in framing which, the precise phraseology of the subdivision of sec. 144, under which the objection is taken, should, on no account, be omitted in any instance, either as preliminary to the statement of the different special grounds, or as part of that statement. See form in Appendix.

In Fry v. Bennett, 9 L. O. 330, 1 C. R. (N. S.) 238, although, strictly speaking, a demurrer to answer, several important principles are laid down, in reference to the law of demurrer in general. They are as follows: Mere irrelevancy or surplusage are not, as above stated, legitimate grounds of demurrer. Malice, in libel, on a publication libellous on its face, is a conclusion in law; unless where the publication would be privileged, if not in fact malicious. So, likewise, with respect to inuendos, the sole office of which is explanation. On neither of the above can material issues be raised; but the latter, when improperly framed, may, in some cases, justify a demurrer. The principle is laid down, that "an answer is insufficient, in the sense of the Code, and, therefore, bad upon demurrer; not only when it sets up a defence groundless in law, but when, in the mode of stating a defence, otherwise valid, it violates the essential rules of pleading, which the Code has retained;" and, doubtless, the same principles would be held, in relation to averments of a cause of action. Whether a publication, libellous on its face, may be excused as privileged, is a question of law that may properly be raised by demurrer. Where, however, privilege is claimed, on the ground that the animadversions complained of were fair and legitimate criticism, the defences of truth and privilege are inseparable; and, if justification be not duly pleaded, privilege cannot be so. Justification, and matter in mitigation, are likewise inseparable as defences, and if the latter be pleaded without the former, demurrer will lie. See citation of this case hereafter, under the head of answer. Although, as a general rule, a demurrer must cover the whole of the pleading demurred to, it need not do so with respect to matter raising immaterial issues, such as on malice, or inuendo, as above stated; and only those allegations in a complaint are to be deemed material in the sense of the Code, which the plaintiff must prove upon the trial, in order to maintain his action. demurrer, omitting to notice allegations of the above nature, was accordingly there sustained.

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