3 Rosenbach v. Dreyfuss, Dist. Ct. N. Y. 1 Fed. Rep. 391; Merchants' etc. Nat. Bank v. Wheeler, 13 Blatchf. 218; Bills v. Railroad Co. 13 Blatchf. 227.

4 See 41, ante.

5 Rosenbach v. Dreyfuss, Dist. Ct. N. Y. 1 Fed. Rep. 391. And see Chemung Canal Bank v. Lowrey, 93 U. S. 72; United States v. Nat. Bank, Dist. Ct. N. Y. 10 Fed. Rep. 612; United States v. Leverich, Dist. Ct. N. Y. 9 Fed. Rep. 481.

6 Rosenbach v. Dreyfuss, Dist. Ct. N. Y. 1 Fed. Rep. 391. And see West v. Smith, 101 U. S. 263; Whitaker v. Pope, 2 Woods, 463.

7 See Perkins v. City of Watertown, 5 Biss. 320; Indianapolis etc. R. R. Co. v. Horst, 93 U. S. 291; Merchants' etc. Nat. Bank v. Wheeler, 13 Blatchf. 218; Knowlton v. Congress etc. Spring Co. 13 Blatchf. 170; Gause . Knapp, 1 McCrary, 75; I Fed. Rep. 232; Republic Ins. Co. v. Williams, 3 Biss. 370; Nudd v. Burrows, 91 U. S. 441.

8 Taylor . Brigham, 3 Woods, 377. And see United States v. Tilton, 7 Ben. 306.

9 Lewis v. Gould, 13 Elatchf. 216.

10 Blease v. Garlington, 92 U. S. 1.

11 Jones v. McMasters, 20 How. 9; Greer v. Mezes, 24 How. 268; 1 McAr. 401; Green v. Custard, 23 How. 454; Whittenton Manuf. Co. v. Packet Co. Cir. Ct. Tenn. 19 Fed. Rep. 273, 275; Van Norden v. Morton, 99 U. S. 378; Ex parte Boyd, 105 U. S. 647; Butler v. Young, 1 Flippin, 276; Benjamin v. Cavaroc, 2 Woods, 163; Montejo v. Owen, 14 Blatchf. 324; Steam Stone Cutter Co. v. Jones, Cir. Ct. Vt. 13 Fed. Rep. 567.

12 Neves v. Scott, 13 How. 268; Bennett v. Butterworth, 11 How. 675; Thompson v. Railroad Companies, 6 Wall. 134; Payne v. IIook, 7 Wall. 425; Van Norden v. Morton, 99 Ú. S. 378.

13 Thompson v. Railroad Companies, 6 Wall. 134; Montejo v. Owen, 14 Blatchf. 324.

14 La Mothe Manuf. Co. v. Nat. Tube Works Co. 15 Blatchf. 432. And see Fisk v. Union Pacif. R. R. Co. 8 Blatchf. 299; Sands v. Smith, 1 Dill. 290.

15 Whittenton Manuf. Co. v. Memphis etc. Packet Co. Cir. Ct. Tenn. 13 Fed. Rep. 273.

16 Merchants' etc. Nat. Bank v. Wheeler, 13 Blatchf. 218; Bills v. Railroad Co. 13 Blatchf. 227. And see West v. Smith, 101 U. S. 263;

Duncan v. Gegan, 101 U. S. 810.

17 Whittenton Manuf. Co. v. Memphis etc. Packet Co. Cir. Ct. Tenn. 19 Fed. Rep. 273. And see Indianapolis etc. R. R. Co. v. Horst, 93 U. S. 291; Nudd v. Burrows, 91 U. S. 441.

2282. Complaint or petition.-In cases where the jurisdiction of the federal courts depends upon the citizenship of the parties, the facts essential to support that jurisdiction must appear somewhere in the record,1 but need not necessarily be averred in the pleadings.2 But in a case where the only record is the complaint or petition, the necessary allegations must be contained

3

somewhere in that, and must be distinctly and positively averred, though not necessarily in the caption ; 3 as where a corporation is a party to an action, the allegations conferring jurisdiction on the federal courts need not appear in the caption of the complaint, if they appear in the body thereof, the complaint being the only record in the case. Or if the facts conferring jurisdiction are in some form affirmatively shown by the record, other than the pleadings, it will be sufficient. Thus, if the record shows that a suit brought in a State court was, by reason of the character of the parties, duly removed to the proper Circuit Court of the United States, the jurisdiction of the latter court is not lost for want of an averment of citizenship in the complaint originally filed, or in the amendments thereto, which were made in the Circuit Court. The sufficiency of the complaint is to be determined by the Code of the particular State, and the principle that only the ultimate facts need be pleaded, and not the subsidiary facts, which, in connection with the principles of law applicable thereto, go to make up the ultimate facts, is fully recognized.8 In an action to recover alleged excess of duties exacted by the collector on importations of goods, an averment that a certain sum of money in excess of the legal duty was exacted of the plaintiff, and paid by him under compulsion in order to obtain the goods, was held to be a sufficient averment of fact, and not a statement of a conclusion of law merely. Under the rules of pleading which obtain in the courts of New York, if the complaint sets forth a cause of action, either in tort or assumpsit, it is sufficient, and the plaintiff will recover such a judgment as the facts warrant, irrespective of the form of his action.10 And a complaint which sets forth that the parol contract sued on was valid under the law of the State where

it was made and to be performed, and that it was for a good consideration, is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action. Under the Oregon Code, if a contract contains various substantive and independent stipulations, and there is a breach of more than one of such stipulations, there arise distinct causes of action, which should be pleaded separately; 12 different breaches of the same contract give rise to distinct causes of action.13 An averment in a complaint that the action involves "the construction and consideration of the laws of the United States," upon a specified subject, is insufficient to show a cause of action arising under the laws of the United States, and the complaint must state that there is a controversy between the parties as to the meaning and effect of those laws.14

1 Robertson v. Cease, 97 U. S. 646.

2 Railway Co. v. Ramsay, 22 Wall. 326.

3 Mexico Southern Bank v. Reed, Cir. Ct. Ohio, 8 Reporter, 7.

4 Mexico Southern Bank v. Reed, Cir. Ct. Ohio, 8 Reporter, 7.

5 Railway Co. v. Ramsay, 22 Wall. 326.

6 Briges v. Sperry, 95 U. S. 401.

7 See United States v. Tilton, 7 Ben. 306; Taylor v. Brigham, 3 Woods, 377; Muser v. Robertson, Cir. Ct. N. Y. 17 Fed. Rep. 500; 16 Reporter, 193; Castro v. De Uriarte, Dist. Ct. N. Y. 12 Fed. Rep.

250.

8 Muser v. Robertson, Cir. Ct. N. Y. 17 Fed. Rep. 500; 16 Reporter, 193. Compare ? 272, ante.

9 Muser v. Robertson, Cir. Ct. N. Y. 17 Fed. Rep. 500; 16 Reporter, 193.

10 Austin v. Seligman, Cir. Ct. N. Y. 18 Fed. Rep. 519; 16 Reporter, 674. See 186, ante.

11 Liegeois v. McCracken, Cir. Ct. N. Y. 10 Fed. Rep. 664; 13 Reporter, 298.

12 Oh Chow v. Hallett, 2 Sawy. 259.

13 William v. Hallett, 2 Sawy. 261.

14 Holland v. Ryan, Cir. Ct. Colo. 17 Fed. Rep. 1; 3 Colo. Law Rep. 524; Gold Washing etc. Co. v. Keyes, 96 U. S. 199.

2283. Form and sufficiency of answer.

The sufficiency

of the answer as well as of the complaint is to be de

Under the

termined by the State Code of procedure. New York Code, an answer which makes certain statements, and then denies every allegation of the complaint, “except as hereinafter stated or admitted,” amounts to a sufficient general denial of all allegations of the complaint not admitted, to authorize evidence to be given to show any of such allegations to be untrue.? In a suit in a federal court sitting in New York, the question of the citizenship of the plaintiff can be raised by a special denial in the answer, but not by a general denial, and unless the answer contains such a special denial, proof cannot be given on the trial disputing the plaintiff's citizenship. Under the Arkansas Code, there is no difference in the method of pleading matter in abatement and matter in bar, and such matter must be pleaded with exactness and ought to be certain to every intent. Following the Missouri practice, affirmative matter of defense must be stated in answer, and cannot be proved under a general denial. Under the Oregon Code, special pleas or defenses may be pleaded with the general issue, or a denial of the allegations of the complaint. And the pleadings in an action for the infringement of a patent brought in the Circuit Court, sitting in Oregon, must be verified as provided in the Code of that State. Under such Code, a partial failure of consideration is not a defense to an action upon a promissory note, but must be set up as a counter-claim, in which case it must be pleaded and proved in the same manner as in a separate action thereon. A plea stating that the defendant is in possession as assignee of an unsatisfied mortgage, but which does not allege that he entered with the assent of the mortgagor, is frivolous, but not sham or redundant. Under the California Code, supplemental answers are in the nature of pleas puis darrien continuance under the former practice, and

should be interposed at the first opportunity after coming to the knowledge of the parties.10

1 United States v. Tilton, 7 Ben. 306.

2 Burley v. German-American Bank, 111 U. S. 216. And see 60, ante.

3 Draper v. Springport, 15 Fed. Rep. 328; 15 Reporter, 677; 21 Blatchf. 240.

4 Ehrman v. Teutonia Ins. Co. Dist. Ct. Ark. 1 Fed. Rep. 471.

5 Walker v. Flint, 3 McCrary, 507; 11 Fed. Rep. 31; Mack v. Lancashire Ins. Co. 1 Fed. Rep. 193.

6 Cotller v. Stimson, Cir. Ct. Oreg. 13 Fed. Rep. 689.

7 Cotlier v. Stimson, Cir. Ct. Oreg. 18 Fed. Rep. 689.

8 Packwood v. Clark, 2 Sawy. 546.

9 Wetherell v. Wiberg, 4 Sawy. 232. 10 French v. Edwards, 4 Sawy. 125.

284. Defects and remedies. In tne United States Circuit Courts held in Missouri the following rules for pleadings have been agreed upon and prevail: (1) In pleading, the parties respectively must aver the issuable facts and nothing more. (2) If a pleading has not sufficient issuable facts to constitute a cause of action or defense, or is mixed with statements as to evidence to support the same, the opposite party may demur. (3) If a pleading is so vague and confused that the material and immaterial allegations are intermixed, or a mass of statements are contained therein, some issuable and others non-issuable, the opposite party may move to make the pleading more definite and certain. (4) But motions to strike out special clauses and sentences in a pleading will not be entertained.1 Generally, under the Code system, if the allegations of a pleading are open to the objection of indefiniteness or uncertainty, the remedy is by motion to make more definite and certain.2 Motion to make more definite and certain, and not demurrer, is the proper remedy for a too general statement of a fact in pleading.3 So objection to duplicity in pleading is to be made by a motion to strike out