ment that there is due to him a specific amount on the note, which he claims. An action to foreclose a mortgage given to secure the amount due upon a bond, and for a sale of the mortgaged premises, is not an action upon an instrument for the payment of money only, and pleading by copy is not therefore allowable in such case.10 So, an agreement of separation between husband and wife, which contains a stipulation for the payment to a trustee of a sum for the wife's support, is not an instrument for the payment of money only, and to set forth an agreement of this character in extenso, and declare a breach of it for failure to pay, is not good pleading. All facts by way of inducement should be pleaded, to enable the court to decide whether or not a prima facie case is presented.12 And it is held, that the transcript of a judgment is not an instrument for the unconditional payment of money only, which may be made part of the complaint or petition by reference.13

11

1 N. Y. Code Civ. Proc. 534; Ohio Rev. Stats. 5036; Tooker v. Arnoux, 76 N. Y. 397; Keteltas v. Myers, 19 N. Y. 251; Prindle v. Caruthers, 15 N. Y. 425; N. C. Code, 122; Neb. Code, 120; Kan. Code, 123; Wis. Rev. Stats. ch. 125, 26. An instrument in a foreign language may be so set forth in that language: Nourny v. Dubosty, 12 Abb. Pr. 128.

2 N. Y. Code Civ. Proc. 534. And see Bank of Geneva v. Gulick, 8 How. Pr. 51.

3 Broome ". Taylor, 76 N. Y. 564. And see Spear v. Downing, 22 How. Pr. 30; 12 Abb. Pr. 437; 34 Barb. 522.

4 Broome v. Taylor, 76 N. Y. 564; Spear v. Downing, 34 Barb. 522; 22 How. Pr. 30; 12 Abb. Pr. 437.

5 Tooker v. Arnoux, 76 N. Y. 397.

6 Burke v. Oakley, 12 Hun, 637. 7 Burke v. Oakley, 12 Hun, 637.

8 Sargent v. Railroad Co. 32 Ohio St. 449; Prindle v. Caruthers, 15 N. Y. 425. But compare Conkling v. Gandall, 1 Keyes, 223; 4 Abb. Ct. App. 422; Woodruff v. Leonard, 1 Hun, 632; Marshall v. Rockwood, 12 How. Pr. 452; Alder v. Bloomingdale, 1 Duer, C01; Cottrell v. Conklin, 4 Duer, 45.

9 Sargent v. Railroad Co. 32 Ohio St. 449. Compare Spears v. Bond, 79 Mo. 467.

10 Peyser v. McCormack, 7 Hun, 300.

11 Dupre v. Rein, 7 Abb. N. C. 256.

12 Dupre v. Rein, 7 Abb. N. C. 256.

13 Memphis Medical College . Newton, 2 Handy, 163; Wyant v. Wyant, 33 Ind. 48; Mull v. McKnight, 67 Ind. 525; Hopper v. Lucas, 86 Ind. 43.

29. Pleading private statutes.-Courts are bound to take judicial notice of a general or public statute, and the public laws of a State need not therefore be pleaded. But a private or special statute will not be judicially noticed by the court, unless it be specially pleaded. Though it is said, that a private statute which is recognized in a public act need not be specially pleaded, but will be judicially noticed.3 In pleading a private statute, or a right derived therefrom, it is in general sufficient to refer to the statute by its title and the day of its passage, or to designate it in some other manner with convenient certainty, without setting forth any of its contents.5 A city ordinance will not be judicially noticed, and it has been held, that where it becomes necessary to plead a city ordinance, a mere reference to it by number, title, and date of enactment is not sufficient; and that it must be set forth in the pleading as any other fact of which the courts take no judicial notice. But a city court may properly take judicial notice of the ordinances of the city.9 Where the right of action depends upon the statute of another State, the statute must be averred in the same manner as other facts.10 And as a general rule, when any statute is pleaded which sanctions a defense or gives a right, it is sufficient, and is said to be the safest course, to follow the words of the statute.11

1 12, ante; McHarg v. Eastman, 35 IIow. Pr. 205; 7 Robt. 137. 212, ante; Railway Co. v. Moore, 23 Ohio St. 384; Bretz v. Mayor etc. 35 How. Pr. 130; 4 Abb. Pr. N. S. 245; 6 Robt. 325.

3_ Webb v. Bidwell, 15 Minn. 479. And see Flanigen v. Washington Ins. Co. 7 Pa. St. 306.

4 Railway Co. v. Moore, 33 Ohio St. 384; Atchison etc. R. R. Co. v. Blackshire, 10 Kan. 477; Territory v. Virginia Road Co. 2 Mont. 96.

6

440.

Porter v. Waring, 69 N. Y. 250; Lucker v. Commonw. 4 Bush,
And see 12, ante.

7 Pomeroy v. Lappens, 9 Oreg. 363.

8 Pomeroy v. Lappens, 9 Oreg. 363. And see People v. Mayor etc. 7 How. Pr. 81; Harker v. Mayor etc. 17 Wend. 199. Compare Beman v. Tagnot, 5 Sand. 153.

9 State v. Leiber, 11 Iowa, 407.

10 Seymour v. Sturgess, 26 N. Y. 134; Evans v. Reynolds, 32 Ohio St. 163; Devoss v. Gray, 22 Ohio St. 159; Throop v. Hatch, 3 Abb. Pr. 23; Roots v. Merriwether, 8 Bush, 397; Hoyt v. McNeil, 13 Minn. 390.

11 Cole v. Jessup, 10 N. Y. 96; 10 How. Pr. 515; Ford v. Babcock, 2 Sand. 518. And see Mann v. Corrigan, 28 Kan. 194. Compare Fuqua v. Ferrell, 80 Ky. 69; Austin v. Goodrich, 49 N. Y. 266.

30. Pleading a judgment. — In pleading a judgment, or other determination of a court, or officer of special jurisdiction, it is not necessary under the Code system to state the facts conferring jurisdiction, but the judgment or determination may be stated to have been duly given or made.1 If that allegation is controverted, the party pleading must establish on the trial the facts conferring jurisdiction.2 An averment that the judgment was duly rendered is not an averment that it was duly "given or made," nor its equivalent, and is not sufficient under the above provision. Nor is it sufficient simply to allege that judgment was entered; the word "duly," in this relation, has an essential and important meaning, and can hardly be dispensed with.5 So the above provisions are confined to judgments of inferior tribunals, and it is doubtful whether they have any application to foreign judgments, or judgments of the courts of sister States." And it is held, that a complaint on a foreign judgment must either aver the fact of the existence of a general jurisdiction in the court where the judgment was rendered, or of a limited jurisdiction which extended to the cause of action for which the judgment was recovered, and also that the court had or obtained jurisdiction of the person of the defendant.8

1 N. Y. Code Civ. Proc. 502; Chemung Canal Bank v. Judson, 8 N. Y. 254; Cal. Code Civ. Proc. 456; Culligan v. Studebaker, 67 Mo. 372. Compare Dick v. Wilson, 10 Oreg. 490; Jolley v. Foltz, 34 Cal. 321; Territory v. Cox, 3 Mont. 197; Jones v. Terry, 43 Ark. 230.

2 N. Y. Code Civ. Proc. 532; Cal. Code Civ. Proc.

3 Young v. Wright, 52 Cal. 407.

4 Hunt v. Dutcher, 13 How. Pr. 538.

456.

5 Hunt v. Dutcher, 13 How. Pr. 538. And see Livingston v. Oaksmith, 13 Abb. Pr. 183; Manley v. Passiga, 13 Hun, 288.

6 Cruyt v. Phillips, 7 Abb. Pr. 205; 16 Iow. Pr. 120. The jurisdiction of other courts is presumed and need not be alleged: Chemung Canal Bank v. Judson, 8 N. Y. 254.

7 De Nobele v. Lee, 61 How. Pr. 272; 15 Jones & S. 372; Hollister v. Hollister, 10 How. Pr. 532; Karns v. Kunkle, 2 Minn. 313; Kronberg v. Elder, 18 Kan. 150. But compare Halstead v. Black, 17 Abb. Pr. 227.

8 McLaughlin v. Nichols, 13 Abb. Pr. 244. Compare Bruckman v. Taussig, 7 Colo. 561.

31. Averment of corporate existenco. — The bringing of an action in a name, purporting to be that of a corporation, is held to be a sufficient averment of the plantiff's corporate existence, and an allegation in the complaint or petition that the plaintiff is a corporation is not necessary.1 The pleader is not required to allego every fact necessary to the existence of the corporation, either generally or specifically. And even in an action by a foreign corporation, the complaint need not state the act of incorporation, or the title of the act, or date of its passage, though it is necessary to aver that it is a corporation, and to show the State or country to which it belongs; 3 and so in an action against a foreign corporation. But in an action against a domestic corporation, it is not necessary to allege in the complaint that the defendant is a legally organized corporation." So, in an action against a municipal corporation, described by its corporate name, it is not necessary to aver in the complaint that the defendant is a body corporate, since the court will take judicial notice of that fact, and of the identity of the defendant as such corporation.6

1 Phoenix Bank v. Donnell, 41 Barb. 571; 40 N. Y. 410; La Fayette Ins. Co. v. Rogers, 30 Barb. 491; Stanly v. Railroad, 89 N. C. 331; Harris v. Muskingum Manuf. Co. 4 Blackf. 267; Canandarqua Academy . McKechnie, 19 Hun, 62; 50 N. Y. 618; Union Cement Co. v. Noble, 15 Fed. Rep. 502; Ryan v. Farmers' Bank, 5 Kan. 658. But see Devoss v. Gray, 22 Ohio St. 159; Smith v. Sewing Machine Co. 26 Ohio St. 562; Byington v. Railroad Co. 11 Iową, 502. In New York, in an action by or against a corporation, the complaint must aver that the plaintiff or the defendant, as the case may be, is a corporation: N. Y. Code Civ. Proc, 1775. See Irving Nat. Bank v. Corbett, 10 Abb. N. C. 85; Concordia Sav. Assoc. v. Read, $3 N. Y. 474; Plimpton v. Bigelow, 3 Civ. Proc. R. 182; Bengston v. Thingvalla Steamship Co. 3 Civ. Proc. R. 263; 31 Hun, 96. In the absence of averment of corporate existence, and objection made by answer or otherwise, until after judgment, the defect is waived: Spence v. Ins. Co. 40 Ohio St. 517; State v. Torinus, 22 Minn. 272.

2 State v. Stout, 61 Ind. 143; Washer v. Allensville etc. Turnp. Co. 81 Ind. 78; Powers v. Ames, 9 Minn. 178; State of Wisconsin v. Torinus, 22 Minn. 272; Strunk v. Smith, 36 Wis. 631; Wilson v. Sprague Machine Co. 55 Ga. 672; Gillett. American Stove Co. 29 Gratt. 565; Cal. Steam Nav. Co. v. Wright, 6 Cal. 253; IIenderson etc. R. R. Co. v. Leavell, 16 Mon. B. 358; Chillicothe Sav. Assoc. v. Ruegger, 60 Mo. 218.

3 Conn. Bank v. Smith, 17 How. Pr. 487; 9 Abb. Pr. 163; N. Y. Code Civ. Proc. 1775; Gorton Steamer Co. v. Spofford, 5 Civ. Proc. R. 116. See Plimpton v. Bigelow, 3 Civ. Proc. R. 132; American etc. Machine Co. v. Moore, 2 Dakota, 280.

4 Conn. Bank ». Smith, 17 How. Pr. 487; 9 Abb. Pr. 168; N. Y. Code Civ. Proc. 1775.

5 Stoddard v. Onondaga Annual Conference, 12 Barb. 573; Phonix Bank v. Donnell, 40 N. Y. 410; Salem Grayel Road r. Pennington, 62 Ind. 175; Odd Fellows' Build. Assoc. v. Hogan, 28 Ark. 261. In an action against a corporation in New York, the complaint must now aver that the defendant is a corporation, and must state whether it is a domestic or a foreign corporation, and if the latter, the State, country, or government by or under whose laws it was created. But it need not set forth or specially refer to any act or proceeding by or under which the corporation was created: N. Y. Code Civ. Proc. 1775. Sce Plimpton v. Bigelow, 3 Civ. Proc. R. 182.

6 City of Selma v. Perkins, 68 Ala. 145; City Council v. Wright, 72 Ala. 411; Lebanon v. Griffin, 45 N. H. 563. See Bolton v. Cleveland, 35 Ohio St. 319.

When the

232. Averment of representative character. plaintiff sues in a representative capacity, as executor, administrator, guardian, and the like, and his right to sue arises only from such representative character, the mere statement in the caption that he occupies such a position will not dispense with an allegation of that fact in the body of the complaint or petition.1 The right to the character in which the party sues in such case becomes one of the facts upon which his action de