1 See 2 Ohio Rev. Stats. 5779; Douglass v. Scott, 5 Ohio, 194; Thomas v. White, 2 Ohio St. 540; Oreg. Gen. Laws, 500; Colo. Code, 287; Kan. Code, 594; 1 Comp. Laws. Nev. 72; Utah Code, ¿ 254; Wis. Rev. Stats. (1878) 3188.

2 See Iowa Code, ? 3273, 3274; Lewis v. Soule, 52 Iowa, 11; Lees . Wetmore, 58 Iowa, 170; Miller v. Davison, 31 Iowa, 435; Gen. Stats. Neb. (1881) p. 394, 57; Rev. Stats. Ind. (1881) 1070.

3 Cal. Code Civ. Proc. 738; Stoddard v. Burge, 53 Cal. 394.

4 N. Y. Code Civ. Proc. 1638. And see Austin v. Goodrich, 49 N. Y. 266; Ford v. Belmont, 63 N. Y. 567; Boylston v. Wheeler, 61 N. Y. 521; Schroeder v. Guernsey, 10 Hun, 413; 73 N. Y. 430. Possession must be such as would enable the adverse party to maintain ejectment founded on that fact alone: Cleveland v. Crawford, 7 Hun, 616.

5 N. Y. Code Civ. Proc. 1639. See Churchill v. Onderdonk, 53 N. Y. 134. The plaintiff may amend his complaint in this action as in other actions: Brown v. Leigh, 12 Abb. Pr. N. S. 193; 49 N. Y. 78. A complaint containing all the allegations necessary to constitute a cause of action for the removal of a cloud upon title, is sufficient to sustain a trial conducted in a form appropriate to such cause of action, though the prayer is in ejectment: Zimmerman v. Schoenfeldt, 3 Hun, 632. And see Laverty v. Sexton, 41 Iowa, 435; Paton v. Lancaster, 38 Iowa, 494.

5 Bogert v. City of Elizabeth, 27 N. J. Ea. 568.

7 Rhea v. Dick, 34 Ohio St. 420.

8 Joyce v. McAvoy, 31 Cal. 274. And see Donahue v. O'Connor, 13 Jones & S. 273; Burnham v. Onderdonk, 41 N. Y. 425, 455; Stoddard v. Burge, 53 Cal. 394.

9 Weed Sewing Machine Co. v. Oberreich, 38 Wis. 320; Gray v. Tyler, 40 Wis. 579; Greenwalt v. Duncan, Cir. Ct. Mo. 16 Fed. Rep. 35. And see Culver v. Rogers, 33 Ohio St. 507; Ellithorpe v. Buck, 17 Ohio St. 72; Boorman v. Sunnúchs, 42 Wis. 233; Scott v. Means, 80 Ky. 460. 10 Pier v. Fond du Lac, 38 Wis. 470; Douglass v. Nuzum, 16 Kan. 515; Thomas v. White, 2 Ohio St. 540; Scott v. Kramer, 31 Ohio St. 205 Eastman v. Lamprey, 12 Minn. 153; N. Y. Code Civ. Proc. 1639, subd. 2. And see Boylston v. Whecler, 61 N. Y. 51; Bailey v. Briggs, 56 N. Y. 407; Cleveland v. Crawford, 7 Hun, 616; Ford v. Belmont, 63 N. Y. 567; Cartwright v. McFadden, 24 Kan. 602. That it must also appear that he is in possession under some claim of right or title: See Holland v. Challen, 110 U. S. 25; Goldsmith v. Gilliland, Cir. Ct. Oreg. 5 West. C. Rep. 529. Under the Indiana statute, it is not necessary to allege in the complaint either that the plaintiff is entitled to the possession, or has demanded possession, before the commencement of the suit: McCaslin v. State, 99 Ind. 428.

11 Marot v. Germania etc. Assoc. 54 Ind. 37; Schori v. Stephens, 62 Ind. 441; Jeffersonville etc. R. R. Co. v. Oyler, 60 Ind. 383; Second Nat. Bank v. Corey, 94 Ind. 457; Scorpion Silver Min. Co. v. Marsano, 10 Nev. 370; Eastman v. Lamprey, 12 Minn. 153; Goldsmith v. Gilliland, Cir. Ct. Oreg. 5 West C. Rep. 529; Bailey v. Hughes, 35 Ohio St. 597; Cartwright v. McFadden, 24 Kan. 662.

12 McDonald v. Early, 15 Neb. 63; Page v. Kennan, 38 Wis. 320; King v. Higgins, 3 Oreg. 406; Teal v. Collins, 9 Oreg. 83; Hibernia Sav. & Loan Soc. v. Ordway, 38 Cal. 681; Wals v. Grosvenor, 31 Wis. 684; Jenks v. Hathaway, 48 Mich. 536. Compare Douglass v. Nuzum, 13 Kan. 515; Goldsmith v. Gilliland, Cir. Ct. Oreg. 5 West C. Rep. 529. 13 Page v. Kennan, 38 Wis. 320. And see Hibernia Sav. etc. Soc. v. Ordway, 38 Cal. 679.

BOONE PLEAD. -81.

14 Gillett v. Carshaw, 50 Ind. 381.

15 Indiana etc. R. R. Co. v. Brittingham, 98 Ind. 294.

16 Keepfer v. Force, 86 Ind. 81.

17 Ragsdale v. Mitchell, 97 Ind. 458.

18 Platter v. City of Seymour, 86 Ind. 323; Mescall v. Tully, 91 Ind. 96. And see Richardson v. Snider, 72 Ind. 425; 37 Am. Rep. 168; McMahan v. Newcomer, 82 Ind. 565; Petty v. Trustees etc. 95 Ind. 278.

19 Stribling v. Brougher, 79 Ind. 328. See, as to sufficiency of description of land in the complaint, Pitcher v. Dove, 99 Ind. 175. 20 Starr v. Stark, Cir. Ct. Oreg. 1 Sawy. 270.

21 Cookerly v. Duncan, 87 Ind. 332.

22 Cookerly v. Duncan, 87 Ind. 332.

23 Hardin v. Jones, 86 Ill. 313; Gage v. Abbott, 99 Ill. 366; Gage v. Griffin, 103 Ill. 41.

? 187. Quieting title-Answer.—In an action to quiet title to real property, a denial of the plaintiff's possession forms an issue that must be tried. The direct averment of the complaint that the plaintiff is in possession is susceptible of a plain denial, and if not so denied is admitted; 2 and the averment of possession is admitted by an answer which simply argues against such possession, nor does the general statement that "all allegations, except as before admitted, are denied,” render such an ambiguous denial any the less an admission. Where the defendant by his answer disclaims all right and title adverse to the plaintiff, but also denies the latter's title, it is error in the court to enter upon a trial of the cause; that portion of the defendant's answer denying the plaintiff's title being a mere nullity and surplusage. Where the answer, without any denial of the allegations of the complaint, only sets up a specific title, it is error to admit evidence of any other than the title pleaded; but where the answer also contains a general denial, any legal testimony tending to show that the plaintiff is not the owner as alleged is admissible. If in such action it be shown that the plaintiff is in the actual possession of the property in controversy, the defendant cannot defeat the

action by showing a paramount right in a third person, even though he be a co-defendant; he can only defeat the action by showing a paramount right in himself." An answer setting up facts essential to a complaint in ejectment against the plaintiff, and asking that the possession of the premises be awarded to the defendant, does not contain a counter-claim which will prevent the plaintiff from dismissing the action.10 Pleading the Statute of Limitations in an action to quiet title does not admit the validity of the title of the opposite party,11 and the owner in possession may maintain the action against the adverse claim of the owner of a tax title barred by the statute.12

1 Meighen v. Strong, 6 Minn. 177. And see Babe v. Phelps, 65 Mo. 27; Garvey v. Willis, 50 Cal. 619. That where the allegations of the complaint, except that of adverse claim, are denied, mere proof of possession or title with possession does not make out a prima facie case, or throw the burden of proof upon the defendant to produce his claim: See Blasdel v. Williams, 9 Nev. 161.

2 Bredell v. Alexander, 8 Mo. App. 110, 113.

3 Bredell v. Alexander, 8 Mo. App. 1:0

4 Jordon v. Stevens, 55 Mo. 301.

5 Jordon v. Stevens, 55 Mo. 301.

6 Morrill v. Douglass, 14 Kan. 233.

7 Morrill v. Douglass, 14 Kan. 233. See Brenner v. Bigelow, 8 Kan. 496; Giltenan v. Lemert, 13 Kan. 476.

8 Brenner v. Bigelow, 8 Kan. 496.

9 Brenner v. Bigelow, 8 Kan. 456.

10 Moyle v. Porter, 51 Cal. 639. Compare Cooper v. Jackson, 71 Ind. 244.

11 Tabler v. Callanan, 49 Iowa, 362. See Winslow v. Winslow, 52 Ind. 8.

12 Tabler . Callanan, 49 Iowa, 362. And see Peck v. Sexton, 41 Iowa, 566; Wallace v. Sexton, 44 Iowa, 257.

188. Quo warranto.- Proceedings in the nature of a quo warranto aro a civil action under the Code system of pleading. But it is only the form of the proceeding that has been done away with, and the remedies formerly to be obtained by writ of quo warranto, and proceedings by information in the nature thereof, are now to be had by a civil action.2 The position of the

defendant, the rules of evidence, and the presumptions of law and fact are the same as in the proceeding by writ or information, for which the remedy by action was substituted. The action furnishes the only remedy for determining the title to office, and will lie only where the party proceeded against is either a de facto or de jure officer in possession of the office.5 In such action it is not necessary to allege or prove that any of the relators are entitled to the office claimed.6 And a complaint which alleges that the defendant has unlawfully usurped the duties of an office, and that no such office exists, and that his acts are without authority, is held to be sufficient."

1 People v. Cook, 8 N. Y. 67; People v. Clute, 52 N. Y. 576; 10 A Rep. 508; 12 Abb. Pr. N. S. 339; State v. Thompson, 34 Ohio St. 305; N. Y. Code Civ. Proc. 1983.

2C3.

2 People v. Hall, 80 N. Y. 117.

3 People v. Thacher, 55 N. Y. 425; 14 Am. Rep. 312.

Palmer v. Foley, 45 How. Pr. 1:0; 4 Jones & S. 14; 44 How. Pr.

5 People v. Common Council of Brooklyn, 77 N. Y. 503; 33 Am. Rep. 6. See Hudson River R. R. Co. v. Kay, 14 Abb. Pr. Ñ. S. 191. As a general rule, quo warranto will not lie to remove an incumbent from office where the law affords another plain and adequate remedy for the acts or omissions complained of: State v. Wilson, 30 Kan. 661.

6 People v. Murray, 8 Hun, 577. In Indiana, a quo warranto, prosecuted on the relation of one who claims the office, is bad if it does not show that the relator is eligible thereto: State v. Bieler, 87 Ind. 320; State v. Long, 91 Ind. 351.

7 People v. Carpenter, 24 N. Y. 86. See McVeany v. Mayor etc. 50 How. Pr. 106; 80 N. Y. 185.

? 189. Railroads - Injury to animals.-In an action against a railroad company for killing stock, a complaint which alleges that the place where the stock entered upon the track "was not fenced" is sufficient upon that point.1 And a complaint otherwise sufficient is not bad for failing to aver that the road could have been fenced at the point where the stock entered upon it. If the road could not properly be fenced at the place in question, that fact is matter of defense, con

cerning which the complaint need not make any averment. An allegation that the road was "unfenced" is sustained by proof that the fence once erected had been destroyed, and that no fence had since been erected.* In an action under the Missouri statute against a railroad company for killing stock, the complaint need not specifically allege that the injury was occasioned by the failure to fence or to maintain cattle-guards, or that the injury was not within the limits of an incorporated city or town; 5 it is sufficient if these facts may be inferred from the allegations of the complaint. A complaint which alleged that the animal, without any fault on the part of the plaintiff, strayed upon the defendant's track, and that it was struck and killed at a point where the railroad passed along through and adjoining enclosed and cultivated fields, and that at that point the defendant had failed to build and maintain lawful fences to prevent said animal from straying on its track, was held to be sufficient."

1 Louisville etc. R. R. Co. v. Shanklin, 94 Ind. 297. Compare Louisville etc. R. R. Co. v. Harrigan, 94 Ind. 245; Louisville etc. R. R. Co. v. Skelton, 94 Ind. 222; Jeffersonville etc. R. R. Co. v. Lyon, 72 Ind. 107; Louisville etc. R. R. Co. v. Quade, 91 Ind. 295.

2 Louisville etc. R. R. Co. v. Hall, 93 Ind. 245.

3 Terre Haute etc. R. R. Co. r. Penn, 90 Ind. 284; Jeffersonville etc. R. R. Co. v. Lyon, 55 Ind. 477; 72 Ind. 107; Fort Wayne etc. R. R. Co. v. Mussetter, 48 Ind. 286.

4 Fritz v. Railroad Co. 61 Iowa, 323,

5 Campbell v. Railroad Co. 78 Mo. 639; Perriquez v. Railroad Co. 78 Mo. 91. Compare Nauce v. Railroad Co. 79 Mo. 196; Hudgens v. Railroad Co. 79 Mo. 418; Dryden v. Smith, 79 Mo. 525.

6 Campbell v. Railroad Co. 78 Mo. 639. And see Terry v. Railroad Co. 77 Mo. 254; Bowen v. Railroad Co. 75 Mo. 426; Edwards v. Railroad Co. 74 Mo. 117; Scott v. Railroad Co. 75 Mo. 136; Blakely v. Railroad Co. 79 Mo. 388; Morris v. Railroad Co. 79 Mo. 367.

7 Terry v. Railroad Co. 77 Mo. 254. And see Kronski v. Railroad Co. 77 Mo. 362; Chubbuck v. Railroad Co. 77 Mo. 591. In a complaint against a railroad company for killing animals while operating the road of another company, it is not necessary to allege in what name the road was being operated: Cin, etc. R. R. Co. v. Leviston, 97 Ind. 488.

190. Receivers.-The grounds for the appointment of a receiver need not be incorporated into the plead