without license; 10 the fact that the act was rightful and lawful, or one which he had license to do, is matter of defense, to be shown by the defendant in his answer, or by the evidence on the trial." And in an action to recover damages for the maintenance of a nuisance, and to abate the nuisance, the fact that the defendant has a right by grant or prescription to maintain the alleged nuisance, and any facts which show that in equity the plaintiff should not be allowed to obtain the judgment demanded, may be set up as a defense.12 All damages which are the necessary and natural result of a nuisance may be recovered under a general allegation of damage, and a special averment thereof in the complaint is not necessary in order to authorize a recovery.13 But damages which are the natural but not the necessary result of the act complained of must be specially pleaded.1 An allegation that the use of the plaintiff's cellars, and the letting thereof, were prevented by the unlawful act of the defendant, in failing to keep the privies and drains upon his premises in repair, is sufficient to authorize the admission of evidence of the rental value to show the damage done, without alleging special damages. 15 A legal cause of action for damages caused by a nuisance, and an equitable cause of action to restrain the further continuance of the nuisance, may be united in the same complaint, since both arise out of the same transaction connected with the same subject of action.16

1 Bushnell v. Robeson, 62 Iowa, 540; Greene v. Nunnemacher, 36 Wis. 50; Francis v. Schoellkopf, 53 N. Y. 152; Barnes v. Racine, Wis. 454: Venard v. Cross, 8 Kan. 248; Houck v. Wachter, 34 Md. 265; 6 Am. Rep. 392. See City of Denver v. Mullen, 7 Colo. 345.

2 O'Brien v. St. Paul, 18 Minn. 176; Lewiston Turnp. Co. v. Shasta etc. Co. 41 Cal. 562; Cosby v. Railroad Co. 10 Bush, 291; Smith v. Mc. Conathy, 11 Mo. 517; Grigsby v. Clear Lake Co. 40 Cal. 396,

3 O'Brien v. St. Paul, 18 Minn. 176.

4 Pinney v. Berry, 61 Mo. 359.

5 Pinney v. Berry, 61 Mo. 359.

6 Conhocton Stone Road v. Railroad Co. 51 N. Y. 573; Pinney v. Berry, 61 Mo. 359; Pillsburg v. Moore, 44 Me. 154; Hubbard v. Russell, 24 Barb. 404; Thornton v. Smith, 11 Minn. 15; Bartlett v. Siman, 24 Minn. 448.

7 Brown v. Railroad Co. 12 N. Y. 486; Conhocton Stone Road v. Railroad Co. 51 N. Y. 573; Pinney v. Berry, 61 Mo. 359. But see Ray v. Sellers, 1 Duval, 256.

8 Cahill v. Eastman, 18 Minn. 324; 10 Am. Rep. 184; Hay v. Cohoes Co. 2 N. Y. 159; Walsh v. Mead, 8 Hun, 387. See instances of exception to general rule: Eagle v. Swayze, 2 Daly, 140; Losee v. Buchanan, 51 N. Y. 476; Waterman v. Railroad Co. 30 Vt. 610; Ackert v. Lansing, 59 N. Y. 646; Beck v. Carter, 68 N. Y. 283.

9 Bradt v. City of Albany, 5 Hun, 591; Barnes v. Cohoes, 5 Hun, 604; Akin v. Davis, 11 Kan. 580.

10 Wilkinson v. Applegate, 64 Ind. 98.

11 Wilkinson v. Applegate, 64 Ind. 98; St. Peter v. Dennison, 58 N. Y. 416; Kobs v. Minneapolis, 22 Minn. 159; Adams v. Walker, 34 Conn. 466.

12 Pennoyer v. Allen, 51 Wis. 360.

13 Jutte v. Hughes, 67 N. Y. 267.

14 Griggs v. Fleckenstein, 14 Minn. 92; Spencer v. Railroad Co. 21 Minn. 362; Vanderslice v. Newton, 4 N. Y. 130. Special damages to a private person from a public nuisance must be particularly stated in the complaint: Lewiston Turnp. Co v. Shasta etc. Road Co. 41 Cal. 562.

15 Jutte v. Hughes, 67 N. Y. 267. See Givens v. Studdiford, 72 Mo. 129; 4 Mo. App. 498.

16 Akin v. Davis, 11 Kan. 580. In an action for damages for a nuisance, the plaintiff may also pray for an injunction and abatement: Finch v. Green, 16 Minn. 355. And see Hutchins v. Smith, 63 Barb. 251; Tuebner v. Cal. St. Railw. Co. Sup. Ct. Cal. 4 Pacif. L. Rep. 1162. But an action for abatement of the nuisance, and damages for the whole period of its maintenance, brought against the owner of premises, and also against persons who severally held as tenants under distinct and successive leases, is a misjoinder of causes of action: Greene v. Nunnemacher, 36 Wis. 50.

2177. Officers.-An action against persons named, adding "trustees of school district," is an action against the defendants as individuals, and there can be no recovery against the trustees as such. So an action against city officers, sued in their individual names, with the title of their respective offices added, but without the word "as" preceding their official designations, is an action against the defendants as individuals, and not as officers of the city.2 In an action to restrain commissioners from issuing town bonds in aid of a railroad, the complaint must show that the alleged com

BOONE PLEA D.-29.

missioners are officers of the town, having authority to act as commissioners for the purpose of bonding the town; and it is not enough to state that they are or claim to be commissioners, with an allegation of ignorance as to the truth of the claim.3 In an action against an officer to recover back money illegally exacted by him, the plaintiff need not aver in his complaint the precise amount of money which was illegally exacted, but may recover an amount less than that stated in the complaint. In an action against an officer for a trespass committed through his deputy, it is not necessary to state in the complaint the official character of the defendant, or to charge the trespass as having been committed through a deputy.5 Where a deputy appointed by a public officer gives a bond for the faithful performance of his duties under the appointment, the bond so given is an official bond within the meaning of the Political Code, although payable to the principal offi. cer, and not to the State; and the State, or any person interested, may sue upon it in the same manner as if the bond were in proper form, the defect being suggested in the complaint.' The sureties in such bond are only liable for the acts of the deputy during the term of the principal officer for which the appointment was made, and the fact that the breach occurred during such term must be alleged in the complaint. A complaint against a town treasurer and his sureties, which alleges that he had not "accounted for and paid over" all the moneys he had received, "as acquired by law, though often requested," is not sufficient, without stating by whom and under what circumstances the request was made, so as to show that it was his duty to so account and pay. In filing claims för allowance before a county board, the formalities of a complaint in courts of general jurisdiction are unnecessary, it being sufficient to state

the claim in the form of an account.10 A complaint in a proceeding to have an officer adjudged disqualified or inelegible to hold an office, on account of having promised to reward a voter, is insufficient, unless it appears affirmatively that such promise, if performed, would inure to the benefit of such voter." A defendant setting up in justification that he did the act charged, as an officer, may introduce testimony to show that, at the time of committing the act, he was an officer de facto, such proof being prima facie evidence that he was an officer de jure.12

1 Shuler v. Meyers, 5 Lans. 170.

2 Bennett v. Whitney, 94 N. Y. 302. Compare Beers v. Shannon, 73 N. Y. 292. An application at the trial to amend a complaint against Individuals, as such, to one seeking a recovery against them as officers in a corporate capacity, is properly refused: Shulen v. Meyers, 5 Lans. 170.

3 Pierce v. Wright, 45 How. Pr. 1; 6 Lans. 306,

4 Meek v. McClure, 49 Cal. 623.

5 Hirsch v. Rand, 39 Cal. 315. And see Whitney v. Butterfield, 13 Cal. 342; Poinsett v. Taylor, 6 Cal. 78.

6 Hubert v. Mendheim, 64 Cal. 213.

7 Hubert v. Mendheim, 64 Cal. 213.

8 Hubert v. Mendheim, 64 Cal. 213. And see Tyler v. Nelson, 14 Gratt. 214; Thomas v. Summey, 1 Jones L. 554. But see Hughes v. Miller, 5 Johns. 167. In an action on a constable's bond for failure to pay over money collected on execution, it is unnecessary to aver or prove a demand: Nutzenholster v. State, 37 Ind. 457.

9 Supervisors v. Kirby, 25 Wis. 498. A complaint on the bond of a commissioner appointed to sell lands in partition, alleging for breach a failure to pay the money realized to the parties entitled, which avers that the money is due and unpaid, though bad on demurrer for failure to allege that the court had made an order for its payment, the defect is cured by verdict: Ferguson v. State, 90 Ind. 38. 10 Newsom v. Board of Commissioners, 92 Ind. 229; Board of Commissioners v. Gillum, 92 Ind. 511; Board etc. v. Armstrong, 91 Ind. 528; Board etc. v. Emmerson, 95 Ind. 579.

11 State of Oregon v. Church, 5 Oreg. 375. 12 Willis v. Sproule, 13 Kan. 257.

2178. Partition.-The complaint in partition must set forth specifically, so far as known to the plaintiff, the interests of all persons in the premises sought to be partitioned. It must aver that the co-tenants hold and

are in possession of real property as joint tenants or as tenants in common, in which property one or more of them have an estate of inheritance, or for life or lives, or for years; and if these averments are not made, the complaint does not state facts sufficient to constitute a cause of action. The title of defendants as well as of the plaintiff should be set out, or a reason given for not so doing. But an averment that there are certain unknown owners, although their exact interests are not specified, was held to be sufficient. So the complaint should properly allege that there are no other parties in interest, or encumbrancers, than those joined or mentioned therein, though an omission in this respect does not affect the regularity of the decree. So the property must be described with common certainty ; and if an account of rents is required, it should be asked for in the complaint.8 A complaint which discloses upon its face that persons not made parties have like interests with those set up by the plaintiff is demurrable for want of parties. The title or interest of the plaintiff in the property, as stated in the complaint, may be controverted by the answer. 10 And the title or interest of any defendant in the property, as stated in the complaint, may also be controverted by his answer, or the answer of any other defendant; and the title or interest of any defendant, as stated in his answer, may be controverted by the answer of any other defendant." But an answer which sets up nothing more than facts tending to show that the complaint does not truly state the shares and interest of the parties raises no issue, and is a nullity.12 The want of an allegation of possession by the plaintiff should be taken by demurrer or answer, and cannot be raised for the first time on appeal.13 The objection that the same parties are not joint owners or tenants in common of all the property sought to be