the pleading rather than by special demurrer, as at common law.1 And irrelevant, impertinent, and scandalous matter in a pleading will, in a proper case, be stricken out on motion, but cannot be objected to by demurrer. And a demurrer does not lie to a part of a plea or defense, but must controvert its sufficiency as a whole. Under Codes which allow numerous and inconsistent defenses, if the answer contains any good defense, a demurrer to the whole answer must be overruled. A frivolous answer or defense may be stricken out on motion, but a motion to strike out for frivolousness is not well taken if the matter included in it is material, if true. When a demurrer to a complaint for failure to state a cause of action is overruled, the defendant, by answering, does not lose his right to have the judgment on the verdict reviewed for error in overruling the demurrer.10 The ancient rule in pleading, that upon demurrer the whole record is presented, and judgment goes against the party in whose pleading there is found the first substantial fault, is still applicable under the Code system,11 and is fully recognized in the federal courts.12 1 Gause v. Knapp, 1 McCrary, 75; 1 Fed. Rep. 292. 2 Neis v. Yocum, Cir. Ct. Oreg. 1 Fed. Rep. 168. And see 269, ante. 3 Muser v. Robertson, Civ. Ct. N. Y. 21 Blatchf. 368; 17 Feb. Rep. 500; 16 Reporter, 193. 4 McKay v. Campbell, Dist. Ct. Oreg. 1 Sawy. 374; 2 Abb. U. S. 120. 5 Wilkinson v. Pomeroy, 9 Blatchf. 513. 6 Lewis v. Oregon Cent. R. R. Co. Cir. Ct. Oreg. 8 Reporter, 358. 7 Lewis v. Oregon Cent. R. R. Co. Cir. Ct. Oreg. 8 Reporter, 358. See 113, ante. 8 Dallas County v. MacKenzie, 94 U. S. 660. 9 Oregonian Ry. Co. v. Oregon Ry. & Nav. Co. Cir. Ct. Oreg. 22 Fed. Rep. 245. 10 Teal v. Walker, 111 U. S. 242. 11 See 117, ante. 12 United States v. Central Nat. Bank, 10 Fed. Rep. 612, INDEX. [References are to sections.] Abandonment, when facts constituting, need not be of corporate franchises as defense to action, 119. of demurrer by answering over, 46. Abatement, pleading matter in, 59. distinction between pleas in, and pleas in bar abol- matter in, and matter in bar may be set up together, agreement to arbitrate as matter in, 113. misnomer taken advantage of by plea in, 255. initials of Christian name not recognized, 278. Account, what is, 120. to what transactions applied, 120. how pleaded, 120. delivery of copy of, to adverse party, 120. several may be united in complaint, 120. when complaint in action on, not sustained, 120. action to surcharge and falsify, 196. BOONE PLEAD. -45. Account stated, what is, ? 120. what necessary to sustain action on, 120. fraud or error as defense to action on, 170. who should be parties in action for, 121. what averments will sustain action for, 121. defenses to action for, how pleaded, 121. complaint in action for, between partners, 121, complaint in action for, against trustee, 121. by tenant for life for waste, 211. Accord and satisfaction, must be specially pleaded, 66, 67. Act of Congress, requiring pleadings in federal courts to Action. See SUIT. definitions of, 1. what included in idea of, 1. pleadings in, at common law, 3. nature of pleadings in, under Codes, 5. complaint or petition first pleading in, 7. name of, not material under Code system, 8. for use and occupation, when it lies, 162. on an account, complaint in, 120. for an accounting, parties, 121. on bill or note, pleadings in, 123, 124. on bonds and undertakings, pleadings in, 127, 128. on promise to marry, pleadings, 129, 130. for conspiracy, pleadings, 134. in tort not joinable with, on contract, 135. by or against corporation, pleadings, 138, 139. for divorce, pleadings, 141, 142. by or against executor or administrator, 143. for malicious prosecution, pleadings, 167, 168. |