3 Board of Trustees v. Shulze, 61 Ind. 511. And see Axtel v. Chase, 83 Ind. 546; Blanchard v. Jamison, 14 Neb. 244.

4 Dime Sav. Bank v. Crook, 29 Hun, 671.

5 Fougera v. Moissen, 16 Hun, 237.

6 Morris v. Tuthill, 72 N. Y. 575.

7 Curtiss v. Bush, 39 Barb. 661. Compare Conwell v. Clifford, 45 Ind. 392; Booth v. Ryan, 31 Wis. 45; Robards v. Cooper, 16 Ark. 288; Dunning v. Leavitt, 85 N. Y. 30.

8 Alden v. Pryal, 60 Cal. 215.

9 Andrews v. Gillespie, 47 N. Y. 487.

10 Hall v. Erwin, 57 N. Y. 643. See further as to setting up the defense of fraud: McGuskin v. Kline, 31 N. J. Eq. 454; Dayton v. Melick, 27 N. J. Eq. 362; Lyke v. Post, 65 How. Pr. 298; Reagan v. Hadley, 57 Ind. 509.

11 Bolling v. Munchus, 65 Ala. 558.

12 Ingraham v. Disborough, 47 N. Y. 421. And see Colehour v. State Sav. Inst. 90 Ill. 152. An answer to a complaint to foreclose a mortgage, showing a contemporaneous written contract of the parties to the effect that the debt should be payable only upon the occurrence of an event which never happened, is good on demurrer: Lucas v. Hendrix, 92 Ind. 54. Where the proof in an action to foreclose a mortgage clearly shows that the mortgage was usurious, a plea of tender of a certain amount in the answer cannot be held to constitute a conclusive admission that such an amount is due, the auswer also setting up the usury as a defense: Breunich v. Weselmann, 17 Jones & S. 31.

? 146. Forcible entry and detainer.-Forcible entry and detainer being a statutory proceeding, and the authority to proceed being derived from the statute, a strict compliance therewith is required;1 though this objection may be waived by omitting to make it in proper time.2 In a complaint for forcible entry and detainer, the property should be particularly described, for the possession of which the action is brought,3 and the mode in which the defendant unlawfully got possession should be specified. A description of the land sufficiently definite to enable the administration of substantial justice is all that is required in actions before justices of the peace; and if the complaint avers that the lands are in the county where the suit is brought, a failure to mention the State will not be a fatal defect. It is an essential averment in the complaint, that at the time of the alleged forcible entry, the plaintiff was in

the actual possession of the premises, and he must prove this averment on the trial. So a complaint which merely charged that the defendant entered upon the premises in controversy "with force and violence," and that he had "with force detained the same," was held to be fatally defective in omitting to charge that such entry and detention were unlawful. If the complaint charges a forcible entry with a multitude of people, and a forcible and unlawful detainer, the forcible entry is the gist of the action.9 Where the complaint avers that the defendant unlawfully entered upon the demanded premises, and the answer denies that he entered unlawfully, it admits the entry and raises an issue only upon the question of its lawfulness. 10 In an action of forcible entry and detainer before a justice of the peace, if the petition does not set up title in the plaintiff, an answer denying the plaintiff's title and averring title in the defendant is not responsive to the petition, and does not raise an issue involving the title to the property which requires the removal of the action to the Circuit Court."

1 People v. Field, 58 Barb. 270. And see Wood ". Phillips. 43 N. Y. 152. But see Silvey v. Sumner, 61 Mo 253; Canavan v Gray, 64 Cal. 5.

2 People v Field, 58 Barb. 270. And see Grant v. Marshall, 12 Neb. 488, Jarvis v Hamilton, 16 Wis. 574.

3 Grant v. Marshall, 12 Neb. 488; Sanchez v. Luna, 1 New Mexico, 238.

4 Sanchez v. Luna, 1 New Mexico, 238.

5 Hernandez Simon, 4 Cal. 182. 5 More v Del Valle, 28 Cal. 170. Blackf, 320.

And see Boxley v. Collins, 4

7 Cummins Scott, 23 Cal 526. Compare Baker v. Dixon, 62 Cal. 19; Minturn v Burr, 16 Cal, 107; More v. Del Valle, 28 Cal. 170. A complaint in an action under the Minnesota statute (Gen. Stats. 1878, ch. 84, 11) need not state that the plaintiff is the owner, or that he is entitled to the possession of the demised premises, if it shows a leasing by him to the defendant, and an entry and possession by the latter under such leasing: Engels v. Mitchell, 30 Minn. 122. 8 Blaco v Haller, 9 Neb. 149.

9 McMinn v. Bliss, 31 Cal. 122. See Thompson v Smith, 28 Cal. 532; Preston v. Kehoe, 15 Cal. 318.

10 Leroux v. Murdock, 51 Cal. 541. In an action by a landlord against a tenant for unlawful detainer, the defendant set up a counterclaim for damages resulting from the dilapidated condition of the leased premises, and it was held that a demurrer to the counterclaim was properly sustained: Van Every v. Ogg, 59 Cal. 563. And see Kelly v. Teague, 63 Cal. 63.

11 Jordon v. Walker, 56 Iowa, 686. No question of title is in general admissible in an action of forcible entry and detainer. It merely devolves upon the plaintiff to show that he was lawfully possessed of the premises, and that the defendant unlawfully entered into and detained the same: See Mitchell v. Davis, 23 Cal. 381; Georges v. Hufschmidt, 44 Mo. 179; Pinney v. Fridley, 9 Minn. 34; Hunt v. Wilson, 14 Mon. B. 36. The denial in such action, that the plaintiff owned the buildings on the premises in controversy, does not raise an issue which can be tried in that action: Warburton v. Doble, 38 Cal. 619. In California, where the owner of real property having the right to possession makes a forcible entry, the person in the wrongful possession cannot maintain an action of trespass, the remedy provided by statute for a forcible entry being exclusive: Canavan v. Gray, 64 Cal. 5.

2147. Fraud-Complaint. It is a well-established general rule, that in pleading fraud the facts constituting the fraud must be specifically set forth.' Epithet will not answer the place of fact,2 and a mere allegation that the acts complained of were fraudulently done is not sufficient." Fraud is found only when the facts make it apparent. The plaintiff is not, however, required to allege in detail all the minute facts constituting the alleged fraud; the ultimate fact and not the evidence should be pleaded." So the rule that fraud must be directly alleged in the pleading is held not to apply to a case agreed where all the facts are stated, and the matters of law or legal inference are left to the court. And it is held, that a fraud claimed to have been committed in one of two different ways may be alleged in the alternative as having been committed in one or the other of the ways named, where it is unknown to the party pleading in which of the ways the fraud was committed, and where, in either event, the facts pleaded would constitute a fraud. In pleading fraud, the complaint must show not only what the fraud was by which the plaintiff has been injured, but also its connection with the alleged damage, so that it may appear judicially

to the court that the fraud and the damage sustain to each other the relation of cause and effect, or, at least, that the one might have resulted directly from the other.9

1 Hardy v. Brier, 91 Ind. 91; Clark v. Dayton, 6 Neb. 192; Clodfelter v. Hulett, 72 Ind. 137; Fry v. Day, 97 Ind. 348; Williams v. First Presbyterian Soc. 1 Ohio St. 478.

2 Hardy v. Brier, 91 Ind. 91.

3 McGindley ". Newton, 75 Mo. 115; Smith v. Sims, 77 Mo. 269; Capuro . Builders' Ins. Co. 39 Cal. 123; Lawrence v. Foxwell, 17 Jones & S. 273.

4 Rasmussen v. McKnight, 3 Utah, 315.

5 Rasmussen v. McKnight, 3 Utah, 315; Cowen v. Toole, 31 Iowa, 513; Cummings v. Thompson, 18 Minn. 246; Fox v. Webster, 46 Mo. 181.

6 Cowen v. Toole, 31 Iowa, 513; Singleton v. Scott, 11 Iowa, 589. 7 McRae v. Battle, 69 N. C. 98.

8 Rasmussen v. McKnight, 3 Utah, 315.

9 Byard v. Holmes, 34 N. J. L. 296. And see Bish v. Van Cannon, 94 Ind. 263; Bremond v. McLean, 45 Tex. 10. In a suit by husband and wife for fraud upon the wife, affecting her separate property, it is not necessary to aver that the husband was deceived: Roller v. Blair, 96 Ind. 203.

2148. Fraud-Answer. - Fraud must be specially pleaded in an answer as well as in a complaint. The circumstances constituting fraud must be set up.2 Thus, an answer seeking to avoid a contract, by reason of fraudulent representations of the plaintiff in procuring it, must state in what the representations consisted, and they must be of matter of fact of which the defendant was ignorant, and not of law. So it must be alleged that the defendant was misled, or that his belief in the truth of the false representations, or other fraud, induced him to enter into the contract, and that the false representations were made with intent to defraud.3 In an action on a note, an answer that it was obtained by fraud, not stating facts, is held to be frivolous." Where the petition, in an action against the principal for a fraud committed by his agent, properly states the cause of action, and avers that the fraud was not discov

ered until within four years before the suit was begun, an answer charging that the cause of action did not accrue within four years before suit, because the fraud was not committed within said time, is held to be insufficient. So if an answer contains only a general allegation of fraud, and the trial of the issue of fraud thus presented proceeds to its conclusion without objection by the plaintiff as to its sufficiency, or objection to evidence, on that ground, offered by the defendant in support of the issue of fraud, under these circumstances an objection to the answer, that it does not contain a statement of the particular facts and circumstances constituting the alleged fraud, comes too late, and will not be considered on appeal.8

1 Tucker v. Parks, 7 Colo. $2.

2 Gifford v. Carvill, 29 Cal. 589; People v. San Francisco, 27 Cal. 656; First Nat. Bank v. How, 1 Mont. 604; Wilder v. De Cou, 18 Minn. 470.

3 People v. San Francisco, 27 Cal. 656.

4 Saxton . Dodge, 57 Barb. 84; Van De Sande v. Hall, 13 How. Pr. 458; Simmons v Kayser, 11 Jones & S. 131.

5 Stafford Pavement Co. v. Monheimer, 9 Jones & S. 184; Dubois v. Hermance, 56 N. Y. 673; Lefler v Field, 52 N. Y. 621; Hilsen v. Libby, 12 Jones & S. 12.

6 McMurray v. Gifford, 5 How. Pr. 14. See Shook v. Singer Manuf. Co. 61 Ind. 520.

7 Maple v. Railroad Co. 40 Ohio St. 313.

8 King v Davis, 34 Cal. 100.

? 149. Fraudulent conveyances.-In an action to set aside a conveyance of land upon the ground of fraud, the complaint must aver the delivery of the deed claimed to be fraudulent. In stating a cause of action for relief against conveyances in fraud of creditors, it is necessary to allege that the conveyance was made with the intent either to hinder, delay, or to defraud the plaintiff. So a conveyance cannot be impeached for fraud as against creditors, if the debtor retains ample property in his own name, subject to execution, to