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that the several counts do not state facts sufficient to constitute a cause of action, the demurrer must be overruled unless all the statements are insufficient. Martin v. Mattison, 8 Abbott, 3.
66. A complaint is not bad on demurrer as not stating facts sufficient to constitute a cause of action, however inartificially they may be stated. On such demurrer it is the duty of the court to analyze the facts disclosed, and if the whole, or any part of them, can be resolved into a cause of action, the demurrer should be overruled. People v. Mayor of New York, 8 Abbott, 7.
41. The demurrer shall distinctly specify the grounds upon which any of the objections to the complaint are taken. Unless it do so, it may be disregarded.
42. The defendant may demur to the whole complaint, or to one or more of several causes of action stated therein, and answer the residue; or may demur and answer at the same time.
1. The defendant cannot demur to part and answer another part of a complaint which contains but one cause of action stated in one count. In other words, a defendant cannot demur to part of a cause of action. Ingraham v. Baldwin, 12 Barb. 9.
2. After an extension of time to answer, the defendant may put in a demurrer instead of answering. Brodhead v. Brodhead, 3 Code R. 8.
43. [1854, 1855.*] If the complaint be amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments shall be served upon every defendant to be affected thereby, or upon his attorney, if he has appeared by attorney ; the defendant shall answer in such time as may be ordered by the court, and judgment by default may be entered upon failure to answer, as in other cases.
1. The plaintiff has no right to amend his complaint by striking out the name of one or more parties, without leave of the court. Russell. v Spear, 5 How. Pr. 142.
44. When any of the matters enumerated in section forty do not appear upon the face of the complaint, the objection may be taken by 45. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.
1. The objection to the misjoinder of parties, and of the cause of action, should have been taken by demurrer or answer. Jacks v. Cooke, 6 Cal. 164; Alvarez v. Brannan, 7 ib. 503 ; Andrews v. Mokelumne Hill Co., ib. 330; Whitney v. Stark, 8 ib. 514; Leavitt v. Fisher, 4 Duer, 2; Lewis v. Graham, 4 Abbott, 106.
Statutes of 1855, 196.
1. The failing to demur does not waive the right of defendant to object on the trial for the first time, that the complaint does not state facts sufficient to constitute a cause of action. Montgomery County Bank v. Albany City Bank, 3 Seld. 459; Higgins v. Freeman, 2 Duer, 650.
2. An incurable defect is not waived by any pleading, but may be taken advantage of whenever the parties are before the court, either by motion, or on the trial, by motion in arrest after verdict. St. John v. Northrup, 23 Barb. 30 ; Burnham v. DeBevorse, 8 How. Pr. 159.
46. [1854, 1860.* ] The answer of the defendant shall contain:
1st. If the complaint be verified, a specific denial to each allegation of the complaint controverted by the defendant, or a denial thereof, according to his information and belief; if the complaint be not verified, then a general denial to each of such allegations, but a general denial shall only put in issue the material and express allegations of the complaint.
2d. A statement of any new matter or counter claim constituting a defense, in ordinary and concise language. When the answer contains new matter constituting a defense, the plaintiff may, within the same length of time allowed for answering, and subject to the same rules, reply to such new matter; and if he fail to do so, such new matter shall be taken as true, and deemed proved at the trial. If new matter of set-off and counter claim be set up in the answer, the reply may contain matter of set-off and counter claim, not embraced in the complaint. All new matter set up in the replication, shall be deemed denied by the defendant.
1. To set up tender in answer as a defense to costs, see section 506.
2. Affirmative matter alleged by defendant in his answer, must be proven. Osborn v. Hendrickson, 8 Cal. 31.
3. After a motion to dismiss for the irregularity of the summons has been overruled, the defendant may answer without waiving any rights by this appearance. Deidesheimer v. Brown, 8 Cal. 339.
4. The promissory note sued on was attached to the complaint : the answer did not
* Statutes of 1860, 000.
deny the execution of the note, but denied the indebtedness : held, to be no denial at all. Kinney v. Osborne, Cal. Oct. T. 1859.
5. A verified answer should be consistent in itself, and should not deny in one sentence what it admits to be true in the next. The object of verification is to elicit the truth, and this object must be entirely defeated if the same fact may be denied and admitted in the same pleading. Hensley v. Tartar, Cal. Jan. T. 1860.
6. An answer which merely alleges, without denying any fact stated in the complaint, that the defendant denies that the plaintiff is entitled to the money demanded, will be stricken out on motion. Drake v. Cockcroft, 4 E. D. Smith, 34.
7. An answer is bad when it controverts no allegation of the complaint, and sets up no new matter in bar, bat merely denies a conclusion of law. McMurray v. Gifford, 5 How. Pr. 14.
8. The answer and demurrer are different pleadings, and by the fact that they are on one paper, and in form connected, they do not lose their distinct character. Howard v. Michigan Southern R. R. Co., 5 How. Pr. 206.
9. A supplemental answer may be allowed, on motion, whenever the facts forming the ground of this answer occurred since the answer was put in. Drought v. Curtis, 8 ib. 56.
10. An answer must either deny allegations in the complaint, or set up new matter by way of defense. Gould v. Williams, 9 ib. 51.
11. If the new matter occurs after answer, the defense must be made by a supplemental answer. Hornfager v. Hornfager, 1 Code R., N. S., 180.
12. Ist. When a complaint alleges that the plaintiff was in quiet and peaceable possession of the premises, and was dispossessed by defendants, by force, or under an illegal order made by an officer having no jurisdiction, the answer should take issue directly upon the allegations of the complaint, or confessing them, should state distinctly and positively, new matter sufficient to avoid them. Ladd v. Stevenson, 1 Cal. 18.
13. When a chancery suit is heard on bill and answer, all the allegations in the answer, whether upon knowledge or information and belief, are to be taken as true. If the complainant wishes to dispute any of the allegations in the answer, he must file a replication, and thus enable the defendant to establish them by proof, if he can.
Von Schmidt v. Huntington, 1 Cal. 55.
14. It is no defense to a suit on a negotiable bill of exchange, that the suit is brought in the name of a mere agent or stranger, or a fictitious person. Lineker v. Ayeshford, i Cal. 76.
15. The complaint alleged the making of a note and the indorsement thereof, and the answer was a general denial in the terms of the old general issue in assunipsit, that the defendant undertook and promised, in manner, form, etc. : held, that the plaintiff would have been entitled to judgment, on a motion in the court below to strike out the answer as a nullity; but held, further, that he should have raised his objection to the answer in the court below, and had it passed upon, and that having rested his cause at the trial on the ground of the want of an affidavit, he will not be permitted to say on appeal, for the first time, that the answer does not, in a proper form, controvert the allegations of the complaint. Grogan v. Ruckle, 1 Cal. 194.
16. Where defendant's answer is a general denial, it has the same influence as a plea
at common law of the general issue, and accord and satisfaction may be given in evidence. Gavin v. Annan, 2 Cal. 494; McLarren v. Spalding, 2 Cal. 510.
17. The effect of this general denial is, that any matter can be given in evidence which shows that plaintiff never had any cause of action, and most matters in discharge of the action. McLarren v. Spalding, 2 Cal. 510.
18. Matters in avoidance must be specially pleaded. Gaskill v. Trainer, 3 Cal. 334.
19. A specific denial of one or more allegations, is an admission of all others well pleaded. DeRo v. Cordes, 4 Cal. 117.
20. The admission, by an attorney of record, of the correctness of the amount due for which judgment is taken, when not done in fraud of the rights of his client, must destroy the effect of the denial in answer. Taylor v. Randall, 5 Cal. 79.
21. The answer to a complaint on a promissory nute, where the defense relied upon is that the note was obtained by fraud, should set out the circumstances under which the note was given, and point out the facts which constitute the fraud. Gushee y. Leavitt, 5 Cal. 160.
22. Where an answer contains an allegation of the alteration of an instrument, it should aver, first, that the alteration was made with the knowledge or consent of, or by the plaintiff's authority; and second, must show that the alteration was material. Humphreys v. Crane, 5 Cal. 173.
23. Where the answer in a suit against a corporation on its note, relies merely on the want of power of the corporation to issue notes, the defendant cannot afterwards object that the plaintiff has not shown that the officers executing the note were empowered by the corporation to do so. Smith v. Eureka Mills Co., 6 Cal. 1.
24. Where a bill alleges a parol trust, it seems that it must be denied, and a general demurrer will not lie. Peralta v. Castro, 6 Cal. 354.
25. Where the complaint asserts the fact that the estate is still indebted to persons mentioned in a certain sum, which is not denied, and that the deceased at the time he conveyed the property described in the conveyance, was insolvent without the property, and the answer recited that if deceased was insolvent at the date of the deed, they were ignorant of the fact : held, that the answer was not sufficient; there should have been a specific denial of each allegation controverted by the defendants, or a denial thereof according to their information or belief. Swartz v. Hazlett, 8 Cal. 118.
26. The answer must contain a specific denial to each allegation, if the complaint is sworn to, or every material allegation not specially controverted by the answer will be taken as true. Dewey v. Bowman, 8 Cal. 145; Curtis v. Richards, 9 Cal. 33; Humphreys v. McCall, 9 Cal. 59; Burke v. Table Mountain Water Co., 12 Cal. 403.
27. The failure of a defendant to deny the charges in a complaint, making out a prima facie case for the plaintiff, will throw the onus on defendant of proving his affirmative allegations. Thompson v. Lee, 8 Cal. 275.
28. An answer is fatally defective, if it does not deny any of the material allegations of a verified complaint, either positively or according to information and belief, the only form in which the allegations of a verified complaint can be controverted so as to raise an issue. A denial in any other form is unknown to our system of practice. San Francisco Gas Co. v. City of San Francisco, 9 Cal. 453.
29. The answer that the defendant, a municipal corporation,“ has no knowledge or information ” in respect to the allegations of a count in a verified complaint, "and the_.fore denies the same,” is insufficient. San Francisco Gas Co. v. City of San Franciscus 9 Cal. 453.
30. The true and just rule is, that the defendant must either deny the facts as alleged, or confess and avoid them. Piercy v. Sabin, 10 Cal. 22.
31. Under the system of practice in this state, a general denial is equivalent to the general issue at common law, and such a plea does not put in issue the plaintiff's title to sue. White v. Moses, 11 Cal. 69.
32. The effect of a denial of the allegations of a complaint is to cast the burthen of proof upon the plaintiff'; but when the proof is given, no evidence of a defense not set up in the answer can be received. Glazer v. Clift, 10 Cal. 303; Texier v. Gouin, 5 Duer, 389.
33. Where there are several answers, an admission made in one is not available agairst the others. Each answer must stand by itself, as a complete defense, and the plaintiff must recover upon the whole record. Swift v. Kingsley, 24 Barb. 541.
34. An answer which denies a material allegation of the complaint, cannot be stricken out as frivolous. Davis v. Potter, 4 How. Pr. 155.
35. Where the cause of action is divisible, or several causes are stated, the defendant may deny part and leave the residue unanswered. Snyder v. White, 6 How. Pr. 321 ; Smith v. Shufelt, 3 Code R. 175; Tracy v. Humphrey, ib. 190.
36. Where plaintiff sues in a representative capacity, an answer denying knowledge or information sufficient to form a belief whether defendant is indebted to plaintiff is not frivolous. Morrow v. Cougan, 3 Abbott, 328.
37. An answer served in time and verified if necessary, cannot be treated as a nullity simply because the defense which it sets up is defective. Bergman v. Howell, 3 Abbott, 329.
38. 2d. A defendant should set forth the true nature of his defense in his answer, and in case he does not, should not be permitted to insist upon it. Walton v. Minturn, 1 Cal. 362.
39. The special defense of “unworkmanlike manner" must be set up in the answer. The contract, and not whether the article is fit for use, must rule. Kendall v. Vallejo, i Cal. 371.
40. A vendee may avail himself of fraud, breach of warranty, or failure of consideration, by way of defense, in an action upon contract. Flint v. Lyon, 4 Cal. 17.
41. The defense that defendant acted upon advice of counsel, must show that such advice was given upon a full and fair statement of the facts. Bliss v. Wyman, 7 Cal. 257.
42. Where the defendant has fully and fairly laid his case before counsel, and acts by advice thereof, it is a good defense to the action, though the question whether the defendant acted bona fide under such advice, is a question of intention to be determined by the jury. Potter v. Seale, 8 Cal. 217.
43. The want of capacity to sue should be specifically set up in the answer. The general issue is not sufficient. California Steam Navigation Co. v. Wright, 8 Cal. 585.
44. To plead a former judgment in bar, it must appear not only that it was upon the same cause of action, but between the same parties. Chase v. Swain, 9 Cal. 130.
45. All new matter must be stated in the answer. It is that which the defendant