4. That there is a defect of parties, plaintiff or defendant; or,

5. That several causes of action have been improperly united; or,

6. That the complaint does not state facts sufficient to constitute a cause of action.

And the next section then further provides:

$145. (123.) The demurrer shall distinctly specify the grounds of objection to the complaint. Unless it do so, it may be disregarded. It may be taken to the whole complaint, or to any of the alleged causes of action stated therein.

To enable this form of defence the following are, therefore, essential prerequisites:

1. The defect complained of must appear upon the face of the complaint.

2. It must fall within one of the six classes prescribed by section 144. 3. The demurrer must distinctly specify the ground of objection. If it fails in any of these requisites it will be a nullity.

The demurrer, to be sustainable, must also be total, and must cover the whole of the complaint, or the whole of one of the causes of action stated therein. See Tillotson vs. Hudson River Railroad Company, 5 Seld., 575 (578). Mere partial defects, such as redundancy, irrelevancy, uncertainty, or deficiencies in the mere form, as contradistinguished from the substance of the statement of a cause of action, cannot be impeached in this manner, but only by way of motion. See this subject heretofore fully considered and numerous decisions cited in chapter IV. of book VI., section 133. Nor will demurrer lie to a supplemental complaint. Spier vs. Robinson, 9 How., 325.

The objection must, as before noticed, be absolutely patent upon the face of the pleading impeached. If it requires the slightest statement of facts, however trifling, to make it apparent, it cannot be raised in this form, and, if attempted, the demurrer will be bad. In such a case it must and can only be taken by answer, for which express provision is made by section 147. See, as to the above principle, Humphreys vs. Chamberlain, 1 C. R. (N. S.), 387; Getty vs. Hudson River Railroad Company, 8 How., 177; Union Mutual Insurance Company vs. Osgood, 1 Duer, 707; 12 L. O., 85; Millard vs. Shaw, 4 How., 137; Mayhew vs. Robinson, 10 How., 162; Ripple vs. Gilborn, 8 How., 456; Crooke vs. O'Higgins, 14 How., 154; Brainard vs. Jones, 11 How., 569; Hornfager vs. Hornfager, 6 How. 279; 1 C. R. (N. S.), 462 ; Wilson vs. The Mayor of New York, 15 How., 500; 6 Abb., 6; Metropolitan Bank vs. Lord, 4 Duer, 630; 1 Abb., 185; Coe vs. Beckwith, 31 Barb., 339; 19 How., 398; 10 Abb., 296. Nor will de murrer lie in either form for a mere misnomer, the remedy of which is VOL II-4

by motion. Bank of Havana vs. Magee, 20 N. Y., 355; Elliott vs. Hart, 7 How., 25; Dole vs. Manley, 11 How., 138; Scofield vs. Van Syckle, 23 How., 97.

And not merely so, but, to be impeachable by demurrer, instead of demurrer by answer, the objection to the complaint must be patent upon its face, and that affirmatively, and to its full extent. Recourse cannot be had to implication or presumption in any shape to sustain it. The presumption will lie, on the contrary, in favor of the pleading impeached. See Perkins vs. Mitchell, 31 Barb., 461; Herkimer County Bank vs. Furman, 17 Barb., 116; Brainard vs. Jones, 11 How., 569; Wesley vs. Bennett, 6 Duer, 688; 5 Abb., 498; Humphreys ve. Chamberlain, 1 C. R. (N. S.), 387; Wolfe vs. The Supervisors of Richmond County, 19 How., 370; 11 Abb., 270; Foster vs. Hazen, 12 Barb., 547.

Nor, as a general rule, will an omission in statement render a pleading demurrable, except it be of some fact essential to create or to sustain a cause of action. See Carroll vs. Carroll, 11 Barb., 293; Maynard vs. Talcott, 11 Barb., 569. Nor will a demurrer be sustained on a matter of mere form, if there are any merits in the case. Howell vs. Fraser, 6 How., 221; 1 C. R. (N. S.), 270.

The demurrer under the Code, coupled with the provisions for striking out irrelevant matter, have swept away entirely the old chancery practice of exceptions. Boyce vs. Brown, 7 Barb., 80; 3 How., 391; Cobb vs. Frazee, 4 How., 413; 3 C. R., 43. It is a new species of pleading, created, and its character and office defined by the Code, and the old rules on the subject exist no longer. Many objections under the old practice are no longer cognizable, whilst many others, which formerly were waived, unless pleaded in abatement, can now be taken in this manner. Swift vs. De Witt, 3 How., 280; 1 C. R., 25; 6 L. O., 314; Manchester vs. Storrs, 3 How., 410.

The old rule, as to a demurrer amounting to an admission of the plaintiff's case, holds good under the Code. A demurrer admits all facts stated upon the face of the complaint, which are relevant, and well pleaded, and all legal consequences flowing from those facts as stated; and, as above shown, all necessary implications and presumptions arising from those facts, will lie in the plaintiff's favor. It denies nothing, except the conclusions of law which the plaintiff seeks to draw from such statement. See Hall vs. Bartlett, 9 Barb., 297; Clark vs. Van Deusen, 3 C. R., 219; Spier vs. Robinson, 9 How., 325 (330); Richards vs. Edick, 17 Barb., 260; Graham vs. Camman, 5 Duer, 697; 13 How.. 360; Mills vs. Forbes, 12 How., 466; Robinson vs. McIntosh, 3 E. D. Smith, 221; Hecker vs. De Groot, 15 How., 314; Spies vs. Accessory Transit Company, 5 Duer, 662; Borrowe vs. Milbank, 6 Duer, 680;

5 Abb., 28; Wesley vs. Bennett, 6 Duer, 688; 5 Abb., 498; Cutter vs. Wright, 22 N. Y., 472.

In Freeman vs. Frank (10 Abb., 370), however (a case of demurrer to answer), it was laid down that, where the allegations of the pleading demurred to are contradictory, a demurrer only admits such facts as the law adjudges to be true.

Demurrer is equally admissible in a proceeding under the mechanic's lien law, as in an ordinary action. Doughty vs. Devlin, 1 E. D. Smith, 625.

When the objection is patent, it must be raised by demurrer. If not, and if it falls under any of the foregoing classes, except No. 1 or No. 6, it will be waived. It cannot, under these circumstances, be raised by answer, as under section 145; that course is only allowed when it is not apparent upon the face of the complaint. Zabriskie vs. Smith, 3 Kern., 322; Baggot vs. Boulger, 2 Duer, 160; Higgins vs. Rockwell, 2 Duer, 650: Horie vs. Cushman, 7 L. O., 149; Gassett vs. Crocker, 10 Abb., 133; Struver vs. Ocean Insurance Company, 16 How., 422; Dennison vs. Dennison, 9 How., 246.

Where parties are sued jointly, but the complaint is upon its face defective as to one of them, a separate demurrer by that party will be both admissible and proper. Arnold vs. Ringold, 16 How., 158.

A joint demurrer will, under these circumstances, be inadmissible. See cases cited in next section.

When demurrer is taken to a separate cause of action, other portions of the complaint, not connected with the statement of that cause, cannot be invoked to support it. Ehle vs. Haller, 10 Abb., 287; 6 Bosw., 661. See also, as to demurrer to answer, Ritchie vs. Garrison, 10 Abb., 246. A demurrer must be sustained or fail, to the whole extent to which it is applied. See Peabody vs. Washington County Mutual Insurance Company, 20 Barb., 339 (342).

If any portion of the demurrer be sustainable, the insertion of redundant or immaterial matter will not render it impeachable as a pleading; nor, it would seem, will such matter be even stricken out. Smith vs. Brown, 6 How., 383.

By demurring to the complaint the defendant waives all formal objections, and cannot afterwards maintain a motion on that ground. See Campbell vs. Wright, 21 How., 9.

§ 169. Grounds of Demurrer.

It is proposed to consider in the present section the essentials of the six different categories in which this course of pleading is admissible, reserving for the next the necessary consideration as to the mode of

statement of an objection, when taken, for the purpose of bringing it within one or more of the categories so prescribed.

(a.) 1. WANT OF JURISDICTION.

The objection to the jurisdiction of the court must be substantial, not formal, and must arise upon the pleading itself demurred to, and not under facts extrinsic to that pleading. The imperfect service of summons cannot be impeached in this manner. The defendant's remedy is by motion. Nones vs. The Hope Mutual Insurance Company, 8 Barb., 541; 5 How., 96; 3 C. R., 161.

Where the objection to the jurisdiction of a court of limited powers, is made on a purely personal ground, not impeaching the general powers of the court, it will be waived by a general appearance and answer, even though the protest be made on the face of the latter. See Mahaney vs. Penman, 4 Duer, 603; 1 Abb., 34. But, where the objection to the jurisdiction is essential and not personal, and is appar ent upon the face of the record itself, it will be fatal and incapable of waiver. See Burckle vs. Eckhart, 3 Comst., 132, there cited.

As a general rule the objection to the jurisdiction of the court, though incapable of waiver, cannot be raised upon the hearing of a mere general demurrer for insufficiency, under subdivision 6, merely assigning that specific ground. See Cook vs. Chase, 3 Duer, 643; Wilson vs. Mayor of New York, 4 E. D. Smith, 675 (685); 1 Abb., 4 (12). See also Hobart vs. Frost, 5 Duer, 672; 3 Abb., 119.

upon,

In the last case, however, the question was entertained and passed the point having been fully argued upon the hearing, and conceded to be properly raised, and it was decided that, sitting as a court of equity, the court had no jurisdiction of proceedings to impeach the validity of an assessment, the remedy of the plaintiff being by special proceeding at common law.

Every reasonable intendment will be made in favor of jurisdiction when impeached by this form of procedure; nor will any assumption of facts be made, or presumption be indulged in to oust such jurisdiction, where enough is shown to bring the case within the general powers of the court, or the language of the statute which confers it, when limited in. its nature. Foster vs. Hazen, 12 Barb., 547. Nor, where the powers of a court, when acquired, are general, and service within its limits is of itself sufficient to confer jurisdiction, is it ground of demurrer that such jurisdiction does not affirmatively appear upon the face of the complaint. Konig vs. Mott, 2 Hilt., 323; 8 Abb., 384.

Where, however, the jurisdiction is limited in its nature as to locality or residence of the parties, as in the case of the ordinary county courts, it is essential to the validity of the complaint that the facts conferring

it should be affirmatively alleged. Frees vs. Ford, 2 Seld., 176. See also Kundolf vs. Thalheimer, 2 Kern., 593; reversing same case, 17 Barb., 506.

A demurrer on the above ground is, doubtless, the better course to be adopted, in taking objections on the ground of personal privilege, as in the case of ambassadors, consuls, &c., exempted from suit in the state courts, in cases where that privilege is apparent on the plaintiff's own showing. If otherwise, demurrer by answer will be the proper course to pursue. See this subject heretofore considered, in book II., under the head of Parties.

A demurrer will not lie, for want of jurisdiction, in a suit against foreign executors, in respect of their misapplication of trust funds. Montalvan vs. Clover, 32 Barb., 190.

The question that the court has no jurisdiction over a foreign state cannot be collaterally raised by demurrer taken by another party joined as a co-defendant. Manning vs. The State of Nicaragua, 14 How., 517.

Where the jurisdiction of a court or judge, in a special proceeding, is general in its nature, an objection to its exercise, on the ground of mere irregularity, will be waived if not taken in its proper season, and cannot be made the subject of a demurrer in subsequent proceedings. Hobart vs. Frost, 3 Abb., 119; 5 Duer, 672.

(b.) 2. WANT OF LEGAL CAPACITY TO SUE.

The essential considerations arising out of this branch of the subject have been anticipated at an earlier stage of the work. See chapter I. of book II., under the head of Parties.

A demurrer on this ground was sustained in Fitzhugh vs. Wilcox, 12 Barb., 235, in relation to the contracts of a lunatic, and an attempt of his committee to sue thereon, without the special direction of the court; and likewise in Hall vs. Taylor, 8 How., 428, in relation to a legal action, brought, in like manner, by the creditor of an habitual drunkard against his committee.

So likewise where the complaint of an infant, by his guardian, omitted to allege any facts as to the appointment of the latter, it was held demurrable on this ground, and that the objection was sufficiently raised by simply stating it in the words of the subdivision. Hulbert vs. Young, 13 How., 413. See likewise, as to the objection of a suit being commenced by a married woman, without a guardian or next friend, in a case before the recent amendment of the Code in that respect. Hastings vs. McKinley, 1 E. D. Smith, 273.

In Stryker vs. Lynch, 11 L. O., 116, it was held that the plaintiff in partition must be in actual or constructive possession of his share of the