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Digest.

of some, who ought not to have been made defendants with others

who are properly sued. If a party is properly sued he may insist that another ought to be sued

with him. But he has no right to object that another, who is sued

with him, is improperly made a defendant. A party who ought not to have been sued may demur, on the ground that

no sufficient cause of action is stated as against him, but not for defect

of parties. Brownson and Wife agt: Gifford, 359.
SEE Partition, Ripple agt, Gilborn, 456.
SEE PARTNERSHIP, Hogg agt. Ellis, 473.
In all cases in which a wife sues, or is sued by, a stranger, in respect

to her separate property, her husband should be a party, plaintiff or de

fendant, unless he is civilly dead, &c. When the husband may, and when he must, join the wife; and when she

must sue by her next friend; and her rights under the statutes of 1848 and 1849, for the effectual protection of the property of married women,

considered. Howland agt. Fort Edward Paper Mill Co., 505 SEE ASSIGNMENT, Cook agt. Genesee Ins. Co., 514.

66

PLEADINGS. Where a plaintiff in the summons describes himself as ad

ministrator,” &c., and in the complaint declares generally, without any description, it is a fatal variance, and the proceedings will be set

aside as irregular. A plaintiff has no right to change the form and character of the action

after it is commenced. The facts constituting a cause of action, or ground of defence, should

now be set forth in a plain, direct, and certain manner. And where several causes of action are set out in a complaint, they should be

separately stated and numbered. (See Rule 87; 4 Comstock, 249.) It seems, that the old form of common counts in a declaration are not

sufficient under the Code. Blanchard agt. Strait, 83. A reply can not be pleaded to an answer, where the answer does not sct

counter claim." A“ counter claim" defined and discussed. And where a reply is interposed to an answer, which is entirely unneces

sary and uncalled for, a motion to set it aside for alleged irregularity in the verification will be denied, because the irregularity complained

of is of no consequence. On a question of the proper verification of a reply, the plaintiff is not

concluded (having elected to reply) from denying that he was bound to reply. (This is adverse to the views expressed in Roscoe agt.

Maison, 7 How. Pr. R., 121.) 122. The history of this case given, as illustrative that, notwithstanding the

injunction of the Code requiring all pleadings to be drawn “in such a manner as to enable a person of common understanding to know what is intended,” in a simple action claiming the immediate delivery of personal property, after nearly a four years' litigation, one of the parties

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was, on oath, compelled to admit that under the pleadings and pro

ceedings, he was unable to understand “ his true position." Whether the several “ counselengaged in the

case,

from time to time, were able to understand it, quere. Mulligan agt. Brophy, 135. Section 153 of the Code, as amended in 1552, is the only one which

authorizes a plaintiff to reply; and that only authorizes a reply, when the defendant's answer contains new matter, constituting a

claim.” Where a reply denies the allegations in the answer and sets up new mat

ter in avoidance of new matter in the answer not containing a counter claim, these allegations in the reply will be stricken out as redundant.

Putnam agt. De Forest, 146. The 167th section of the Code imposes upon the party who would unite

several causes of action in the same complaint that they be separately stated. Where this requirement is disregarded, the plaintiff can not defend his complaint against a demurrer founded upon the improper union of several causes of action, by showing they were such as, by the provisions of the 67th section, he was authorized to unite in the

same complaint. Where the complaint contained allegations, mingled and connected togo.

ther, constituting three distinct grounds upon which the plaintitf' relied to sustain a recovery, each involving a legal question distinct from the others, held, that the defendants had a right to have these distinct and independent grounds of action separately stated, so that by answer or demurrer they could present the appropriate defence to each, they being such causes of action as might be lawfully united. Getty agt. The

Hudson River R. R. Co., 177. SEE Answer, Otis agt. Ross, 193, and Loveland agt. Hosmer, 215. A reply is not proper unless the answer sets up as a defence a counter

claim” as defined by $ 150 of the Code. It seems, that 154 must have been overlooked in the amendment of the

Code in 1852, for the reason that that section is inconsistent with the other sections upon the same subject, in containing the word “defence"

instead of “counter claim.” Williams agt. Upton, 205. A reply or demurrer can be interposed to an answer, only when the

answer contains new matter constituting a “counter claim.” (Code $ 153.) (This agrees with Thomas agt. Plumb, 7 How. P. R. 57, and Loomis agt. Dorshimer, ante page 9; and is adverse to Selin

ger agt. Lusk, 7 How Pr. R. 430.) If a defendant sets up new matter, which does not amount to a counter

claim, he must prove it, though not put in issue by a reply, and if he prove it, the plaintiff may also prove new matter in avoidance, though

not alleged in his pleading. Simpson agt. Loft, 234. There is but one safe rule in stating actions or defences, and that is, to

indicate distinctly, by fit and appropriate words, where the cause of action or statement of defence commences and where it concludes. Digest.

(See Benedict agt. Seymour, 6 How. Pr. R. 295,) Lippencott agt.

Goodwin, 242. See Answer, Edson agt. Dillaye, 273. In an action upon a promissory note for money lent, held, on demurrer

to the answer, that the defendant might allege and set up as a “ counter claim," under section 149 of the Code, as amended in 1532, a balance due him upon an unliquidated and unsettled partnership account between himself and the plaintiff—the partnership alleged to have been dissolved

prior to the commencement of the action.- Why? 1st. Because the action is founded upon contract, and therefore liable to

be met and defeated by a counter claim. 2d. The counter claim set up by the answer arose upon contract, because

the partnership relation can exist only by contract, or agreement of the

partners. 3d. The counter claim existed at the commencement of the action

Gage agt. Angell, 335. See Answer, Roe agt. Rogers, 356. Can the principle requiring the application of the same rules to pleadings

in equitable as in legal actions, be carried out in practice under the Code? Or, can law and equity be administered in precisely the same forms? Held, not. They are essentially different from each other in their origin, nature, and object. There is substance in the distinction between these actions. The principles laid down in the case of the Rochester City Bank agt. Suydam, 5 How. Pr. R. 216, and also in the case of Wooden agt. Waffle, 9 id. 145, approved. And those expressed in Williams agt. Hayes, 5 id. 470, and Milliken agt.

Cary, id. 272, disapproved.) Le Roy agt. Marshall, 373. In an action by the endorsee against the maker, the complaint alleged

that the note was duly endorsed by the payee, and transferred to the plaintiff for a good and valuable consideration, and that the defendant had not paid the same, but was justly indebted to the plaintiff therefor.” Held, that this was a sufficient allegation that the plaintiff was the owner of the note at the time of commencing the suit. (The case of Beach agt. Gallup, 2 Code R. 66, disapproved.) Taylor agt. Cor.

biere, 385. SEE Action, Hunt agt. Farmers' Loan and T. Co., 416. Where the complaint against a committee, omitted to allege or show

by what court or authority the debtor was declared an habitual drunkard, and the custody of his person and estate awarded to the de

fendant, held, bad on demurrer. Hall agt. Taylor, 429. SEE COMPLAINT, Morehouse agt. Overseers, &c., 431. The word defence” in the Code, section 149, sub. 2, is not there used

in its legal technical sense. It has no application to that part of the answer which contains denial only, of the facts stated in the complaint; but it is used in reference to the statement of new matter; and it must be such new matter as constitutes a defence.

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PLEADINGS.

Now the question arises whether this new matter must constitute a com

plete bar to the action, in order to make a good defence? In other words, in an action on a money demand, can the defendant plead partial payment? there being now no general issue where part payment or set off can be shown when the answer contains simply a denial of

the complaint. Held, that there is no way by which a defendant can now avail himself

of the defence of partial payment, without pleading it And it seems, that the defendant should not plead full payment in bar,

in order to avail himself of partial payment as a defence; but state the facts constituting the new matter. (See 6 How. Pr. R. 433, Willis

agt. Taggard, to the same point.) Houghton agt. Townsend, 441. SEE PRACTICE, Griffin agt. Cohen, 451. SEE ANSWER, Mallory agt. Lamphear, 491.

PRACTICE. It seems, that the correct practice at the circuit should be, to lay

out of the case all the irrelevant allegations, as well as the immaterial issues contained in the pleadings, and hold the parties to trial upon the

material issues or points in the case (if any are left.) The novel pleadings in this case (assault and battery) compared with

those in Mr. Chitty's day. Fox agt. Hunt, 12. See Referees, Bantes agt. Brady, 216. Where an amended answer is served for delay, and ai so late a period as

to throw the cause over the circuit, it may he treated as a nullity.

Allen agt. Compton, 251.
In an appeal founded on errors in fact, from a Justices' Court to the

County Court, at some time before the argument of the appeal, the
respondent should be served with the affidavits which are relied upon
to support the affirmative of the allegation; the respondent would then
be enabled to contest the error by counter affidavits. (The Code of
1852 differs from that of 1851, by allowing an appeal to be taken
merely by the SERVICE OF A NOTICE, unaccompanied by the AFFIDAVITS

which were previously required.) It seems, that the rule regarding special motions would be a safe one to

follow as to the time of the service of the affidavits. Hurd agt. Bee

man, 254.

In an action brought to recover damages for the loss of goods delivered

to defendants as common carriers, it is irregular on application for judgment, to order a reference to ascertain the damages, where it is not pretended that the case involves the examination of a long account.

The damages should be assessed by a jury. Hewitt agt. Howell, 347. An application for a re-settlement of a bill of exceptions must be made to

a Justice of the Supreme Court, at special term, notwithstanding an appeal is pending in the Court of Appeals; and it is not necessary to apply first to the Court of Appeals to have the cause remirted to the

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out.

Supreme Court, before making such application.

Witbeck agt.
Waine, 433.
The plaintiff can not treat an amended answer as a nullity, and take an

inquest at the circuit against the defendant.
The right to amend is absolute, subject only to the power of the court to

strike out for cause shown. The court must pass upon the question
of intent as well as of the effect of an amendment, and be satisfied
that it was made for the purpose of delay, &c., before it can be stricken

Griffin agt. Cohen, 451.
Notice of appearance or retainer may be served after default, if before

judgment entered, in all cases where an assessment of damages is

necessary. (See 12 Wenit. 225, and 5 How. Pr. R. 353, ailverse.) Therefore an order that plaintiff file security for costs, and for a stay,

&c., obtained by defendant after his default entered, and before judg

ment perfected, held good. Abbott agt. Smith, 463. Where it is supposed that an amendment has been made in bad faith, and

for the purpose of delay, the proper practice is to apply lo the court for

relief. (See Griffin agt. Cohen, ante page 451.) It seems, that a case might arise where the amended pleading would be

so palpably frivolous, and so obviously a fraud upon the law authorizing amendments of course, that it might be treated as a pullity and disregarded. Rogers agt. Rathbun, 466.

PARTITION. In partition cases, where two or more of the parties interested

desire to have their shares set off to them to be enjoyed in common, (Laws 1847, p. 557, § 4,) an order of reference will be granted for that purpose.

And this should be done before a final decree in partition is entered. Northrop and Wife agt. Anderson, 351. A judgment may properly be rendered, declaring the rights of the parties,

and directing that partition should be made; and also providing for an account between the parties in respect to the rents and profits already

received. Brownson and Wife agt. Gifford, 359. In an action for the partition or sale of real estate held in common, the

wife of the plaintiff' is a proper and necessary party; and she must be
joined with her husband as plaintiff in the action. (This agrees with
the reasoning of Justice Harris upon this point, in Brownson and

Wife agt. Gifford, ante page 359.)
If she is not made a party, the objection may be taken by answer, where

the defect does not appear upon the face of the complaint.
It seems that in actions for partition, where the defendant omits to

answer the complaint, the plaintiff' must exhibit proof of his title, &c., as required by the Revised Statutes. Ripple agt. Gilborn, 456.

PROPERTY EXEMPT. A one horse wagon, belonging to a practicing phy

sician is exempt from execution. (See Morse agt. Keyes, 6 How. Pr. R. 18; and Wheeler agt. Cropsey, 5 id. 298.)

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