We now proceed to take up the different causes of demurrer, as prescribed by sec. 144, seriatim, and in their order.

The objection to the jurisdiction of the court must be substantial, not formal, and must arise upon the pleading itself demurred to, and not under facts extrinsic to that pleading. Where, therefore, the summons had been improperly served, a demurrer that the court had no jurisdiction of the person of the defendant, was overruled. The proper course for him to have pursued on such occasion, was to have moved to set the service aside for irregularity. Nones v. The Hope Mutual Insurance Company, 8 Barb. S. C. R. 541; 5 How. 96; 3 C. R.

161.

A demurrer on the above ground, is, doubtless, the proper course to be adopted, in taking objections on the ground of personal privilege, as in the case of ambassadors, consuls, &c., exempted from suit in the state courts.

On subdivision 2, no question appears, as yet, to have arisen. Its intent is, however, evident, and numerous instances might be given, under which it will afford the proper remedy; such as, for instance, suits by a wife, without joinder of her husband, -by an infant, without the previous appointment of a guardian, and many others of an analogous nature.

Subdivision 3, is equivalent to the former plea of autre action pendant. It will rarely happen, however, that demurrer pure will be the proper remedy in this case. Unless the fact of such other action appear by the complaint, a specific averment will be requisite, and demurrer by answer will then be the proper form. —V. Hornfager v. Hornfager, 6 How. 279, 1 C. R. (N. S.) 412. To be pleadable in bar, in either of these modes, the action forming the subject of that pleading, must be pending in some other court of the same state. Another action, for the same cause, in the courts of another state, constitutes no bar.-Burrowes v. Miller, 2 C. R. 101; 5 How. 51. "The intention of subdivision 3, of sec. 144, was merely to affect the form of asserting a defence, already available by law, and not to alter the nature of such defence."

The defendant is not, however, remediless in this last matter. The court will, in a clear case, prevent oppression, by forcing the plaintiff to elect in which action he will proceed, and will suspend proceedings until he has done so.--Hammond v. Baker, 3 Sandf. S. C. R. 704; 1 C. R. (N. S.) 105. Jurisdiction being

intended of the judgments of the United States' courts, see Bement v. Wisner, 1 C. R. (N. S.) 143; it might probably be held that the plea of another action, pending in those courts, in whatever district of the United States, would be sufficient.

Some questions which have arisen as to defect of parties in particular cases, have been already considered, and the cases cited in the previous chapter of the work, devoted to the consideration of that subject. In cases of demurrer on this ground, the first clause of section 122, or, rather, the whole of that section as it stood in the Code of 1849, will be held to be the controlling provision. Where the court cannot determine the controversy before it, without prejudice to the rights of others, or by saving those rights, demurrer will lie, and the court must cause those parties to be brought in. If the contrary be the case, and the controversy can be decided as above, the demurrer will not be well taken.- Wallace. v Eaton, 5 How. 99; 3 C. R. 161.

The improper joinder of causes of action, is a defect which must be carefully avoided. In respect to matters of this nature, sec. 167 is the controlling provision, and the questions as to the union of causes of action, coming uuder different subdivisions of that section, have been already partially considered, and several of the cases thereon cited in the last chapter.

In Alger v. Scoville, 6 How. 131, 1 C. R. (N. S) 303, the question of demurrer on the ground of misjoinder of causes of action, is treated at great length. The view sought to be enforced by the plaintiff's counsel was, that any number of causes of action, primarily arising out of contract, however diverse and inconsistent the nature of the contracts sought to be enforced might be, were capable of being joined in one complaint, as all falling within the terms of subdivision 1, of 1851; and this, although some of such causes of action did not affect the whole of the defendants, but only some of them individually, in separate capacities; and although some of them were moreover classifiable under other subdivisions of the section, and in particular as claims against a trustee, under subd. 7; although all might be said, in some manner or other, to arise out of "contract express or implied." This view was most emphatically overruled by the court, the following principles being laid down in the course of the decision. "A legitimate construction of this section, will not permit the joining of causes of action, which belong to more than one class.—Al

though many actions for the recovery of real or personal property arise out of contract, still, they are not to be united with. a simple contract for the payment of money. Each subdivision must be interpreted with reference to the others, and the provision made in the 5th and 6th, for the recovery of real and personal property, to which title is given by contract, shows that the legislature did not intend to include those contracts in the first class; otherwise, many actions would fall under more than one head, and the different classes run into each other; and thus the object of classification would be defeated."

The last clause of the section is then referred to, as fixing the meaning of the legislature in terms which cannot be misunderstood, and as "equivalent to saying that every cause of action belongs but to one class, and expressly forbidding the union of causes belonging to different classes;" and the practical inconvenience of different issues being joined in the same. action, some triable by a jury, and others by the court, is strongly enforced.

Separate demurrers of the different defendants, on the ground of the joinder of causes of action, some arising out of ordinary money contracts, and others against trustees as such; and likewise on the ground that such causes did not jointly affect all the parties to the action: were therefore allowed, and judgment given accordingly.

Whether the recent alterations in sec. 167 may be held as shaking the authority of this decision, and of the principles there laid down, remains to be tested. Subdivision 1, as before noticed, seems large enough, taken by itself, to authorize the joinder of almost any number of causes of action, however inconsistent, arising "out of the same transaction, or transactions connected with the same subject of action." It seems, however, a matter of the gravest doubt, whether this subdivision must not be considered as, at least, partially, if not wholly, controlled by those that follow; and whether the principles of classification, as to the impossibility of uniting practically incompatible causes of action, as laid down in Alger v. Scoville, will not be, to some extent at least, if not fully maintained. It will be observed, that the word "only," in the last sentence of the section, on which great stress was laid in that decision, has been struck out on the recent amendment; but this alteration seems to be little, if at all, more than a change in expression, as the

words, as they at present stand, seem certainly capable of bearing the same construction, if no more; and it would, indeed, be a matter of difficulty to contend that such is not still their sound interpretation. Independent of the above considerations, and even assuming that the views on which the recent amendments appear to be grounded, are sustainable to their full extent, the decision in Alger v. Scoville seems unassailable, under the particular circumstances of that case, on the ground that all the causes of action there joined did not affect all the parties to the action,--some of them, on the contrary, affecting some, and others, others of the defendants only, in separate capacities. Under the Code of 1851 in

Page 252, line 11.

Refer to the recent Rule in relation to causes of action being not merely separately stated, but plainly numbered, as cited in Notes at pages 193 and 246.

subdivision 3 of sec. 167 of the present measure.

The objection of improper joinder of causes of action is, however, of wider scope, and will include the mixing up of different causes of action of the same class, in one general statement. These causes must, under the section alluded to, be "separately stated;" and, accordingly, where the plaintiff had mixed up in one single averment, a number of distinct and separate causes of action, arising out of the same transaction, a demurrer, on the above ground, was allowed.-Durkee v. The Saratoga and Washington Railroad Company, 4 How. 226. In accordance with this principle, it was held, too, in The Ogdensburgh Bank v. Paige, 2 C. R. 75, that where, by the complaint, several distinct acts were separately averred, in support of the same cause of action, separate demurrers might be interposed to each of such

averments.

The questions which arise under subdivision 6, have also been, for the most part, anticipated, and the cases cited, in the chapter devoted to the consideration of Complaint. See that chapter, passim.

The point as to whether a demurrer, simply following the words of the statute, is, or is not, a sufficient pleading, has given rise to considerable and somewhat doubtful discussion. The court of common pleas has held, that a mere general demurrer,

objecting only, in the words of the statute, "That the complaint does not state facts sufficient to constitute a cause of action," is not sufficient; but that, to render a demurrer on that ground valid, it must, under sec. 145, distinctly specify the grounds of objection, so as to enable the opposing party to ascertain what is the alleged omission or defect complained of, in order that, if thought fit, he may amend.-Grant v. Lasher, 2 C. R. 2; Hunter v. Frisbee, 2 C. R. 59; 7 L. O. 319. A mere general demurrer, that the plaintiff had no title to the note on which he sued as receiver, has also been held to be insufficient to raise the question as to his right to sue in such character.— White v. Low, 7 Barb. S. C. R. 204.

A similar doctrine was laid down in the supreme court, in the cases of Glenny v. Hitchins, 4 How. 98; 2 C. R. 56; and Swift v. Dewitt, 3 How. 280; 1 C. R. 25; 6 L. O. 314. In the last case, however, the learned judge doubted whether this could or ought to be required in all cases, and stated, he was inclined to think it was enough to state that the complaint did not show a sufficient cause of action.

In Durkee v. The Saratoga and Washington Railroad Company, 4 How. 226, the above doubt was adopted, and fully confirmed, and it was distinctly and positively held, that the objection in question was well raised, by a demurrer which merely specified that ground of objection in the words of the statute. By Hyde v. Conrud, 5 How. 112, 3 C. R. 162, this doctrine is confirmed by Mason, J. The last case was that of a demurrer to answer, as to which, the language requiring the grounds of demurrer to be stated, is less imperative. The authority of these cases is confirmed by Anibal v. Hunter, 6 How. 255; 1 C. R. (N. S). 403.

The question as to what is, or is not, the proper form to be adopted in a demurrer on the above ground, is thus left in some uncertainty. The safer course, in practice, would perhaps be to state shortly, upon the face of the demurrer, the points on which it is contended that the complaint does not show a sufficient cause of action, taking care to raise every objection which can be properly taken. See Kneiss v. Seligman, below cited. No inconvenience whatever can result from this practice, which will, moreover, be more consonant with the principles laid down by the framers of the statute, in their report, p. 141, viz., "that the defendant shall, by his answer, point out his defence distinctly."