subject-matter of the suit; and that, where the complaint shows the legal title to be in a third person as trustee, the defect will be fatal.

A complaint which, showing on its face that the plaintiff held a promissory note sued upon as trustee, showed likewise that, under the express terms of his trust, he had no authority to collect it by suit, was held demurrable, in Nelson vs. Eaton, 7 Abb., 305; reversing same case, 15 How., 305.

As to the general nature and office of a demurrer on this ground, see Bank of Havana vs. Magee, 20 N. Y., 355 (359), deciding that a misdescription of an individual banker by using a corporate name was not a demurrable objection. By this decision, that in Bank of Havana vs. Wickham, 7 Abb., 134; 16 How., 97, also noticed p. 268, would seem to be reversed.

See also, as to a general allegation of the appointment of the plaintiff as receiver not being demurrable on this ground. If defective for want of certainty, the defect could only be reached by motion. Cheney vs. Fisk, 22 How., 236.

To be sustainable, the objection, on this ground, must be separately raised under the subdivision now in question, and the grounds specified. It cannot be taken under a general impeachment of insufficiency under subdivision 6. Bank of Lowville vs. Edwards, 11 How., 216; Viburt vs. Frost, 3 Abb., 119, reported as Hobart vs. Frost, 5 Duer, 672.

(c.) 3. PENDENCY OF ANOTHER ACTION.

To bring the case within this subdivision, the action in question must be pending between the same parties, and for the same cause. If both these conditions be not satisfied demurrer will not lie, and the defence, if a defence exist, can only be raised by answer. And the objection will not lie at all, where the parties are not the same in both proceedings. See Auburn City Bank vs. Leonard, 20 How., 193.

Demurrer on this ground, when admissible, is equivalent to the former plea of autre action pendant. It rarely happens, however, that demurrer pure is the proper remedy in this case. Unless the fact of such other action pending appear by the complaint, a specific averment will be requisite, and demurrer by answer will then be the proper form. See Hornfager vs. Hornfager, 6 How., 279; 1 C. R. (N. S.), 412; Ward vs. Dewey, 12 How., 193.

To be pleadable by way of defence, in either of these modes, the action set up must be brought in some other court of the same state. Its pendency in those of another will not be available by way of defence. Burrowes vs. Miller, 5 How., 51; 2 C. R., 101. The remedy of the defendant, in such a case, will be to apply to the court by

See

motion, to compel the plaintiff to elect in which case he will proceed, and to suspend his proceeding until he has effectually done so. Hammond vs. Baker, 3 Sandf., 704; 1 C. R. (N. S.), 105.

party before

The jurisdiction of the courts of the United States being general in its nature, it may probably be held, on the contrary, that the defence of the pendency of an action in those courts will be sufficient. The pendency of an arbitration, in respect of the same controversy, is no defence, the submission being revocable by either actual determination. Smith vs. Compton, 20 Barb., 262. To enable its pendency to constitute a defence, the bringing of a second action must appear to be vexatious; and the demands in both cases must be coincident. The mere fact that the plaintiff had, in another action, brought in a justice's court, by the assignee of one of the defendants, interposed his claim by way of set-off only, such action not appearing to have been determined, was held to constitute no defence, in Compton vs. Green, 9 How., 228. See likewise Welch vs. Hazleton, 14 How., 97.

The pendency of other proceedings by the plaintiff to enforce a mechanic's lien for the same debt as against the property of the same party, was held to constitute a defence in Ogden vs. Bodle, 2 Duer, 611. But such pendency, as against the owner, is no bar to the bringing of a separate action, as against the contractor, for the same debt. Gridley vs. Rowland, 1 E. D. Smith, 670. Nor is the mere fact that subcontractors have filed a bond in an action by the contractor against the owner to recover a balance due on the contract. The defendant should seek relief either by instituting a cross action or paying the money into court.

In Ward vs. Dewey, 12 How., 193, it was held sufficient for a defendant, in pleading this defence, to state it in general terms, according to the phraseology of the subdivision.

(d.) 4. DEFECT OF PARTIES.

So far as the joinder or misjoinder of parties to an action is a matter of right or of necessity, the questions which present themselves under this head have been anticipated in a former portion of this work (chapter I. of book II.), where the question of parties is generally considered. The present subdivision will only treat, therefore, of the mode in which an objection on this ground is presented, and the extent to which, when so presented, it may be tenable.

It is a matter of comparative rarity for this objection, especially when it lies on the ground of misjoinder, to be patent upon the face of the complaint, so as to enable it to be taken by special demurrer. If any statement of fact, however trivial or formal, be necessary, in order

to make that objection apparent, the question can only be raised by answer under the enabling power in section 147. Even the mere fact that it does not appear upon the complaint that the person, whose joinder is requisite, is living, may be sufficient to impose that necessity. Brainard vs. Jones, 11 How., 569; Scofield vs. Van Syckle, 23 How., 97. See cases cited on this point at the commencement of the previous section.

Another reason why this course will usually be the proper one, is the necessity imposed upon a defendant who raises this objection to give the plaintiff a better writ, by naming who the parties are whom he requires to be joined, and communicating the necessary information to enable their joinder. An omission to do this may suffice to render his objection untenable. See Fowler vs. Kennedy, 2 Abb., 347; Coe vs. Beckwith, 31 Barb., 339; 19 How., 398; 10 Abb., 296.

But where the defect is patent on the face of the complaint, and requires no extraneous statement of facts to make it apparent, or to establish the right of the defendant to impeach the pleading on this ground, the objection must be taken by special demurrer, and not by answer. Higgins vs. Rockwell, 2 Duer, 650.

The introduction of a superfluous party is no ground of demurrer by any other than the party improperly joined. The Code only gives the objection on the ground of deficiency, not on that of superfluity. Stryker vs. Lynch, 11 L. O., 116; Peabody vs. The Washington County Mutual Insurance Company, 20 Barb., 339 (342); Gregory vs. Oaksmith, 12 How., 134; Eldridge vs. Bell, 12 How., 547; Phillips vs. Hagaden, 12 How., 17; Pinckney vs. Wallace, 1 Abb., 82; Brownson vs. Gifford, 8 How., 389; Giraud vs. Beach, 3 E. D. Smith, 337 (343); Churchill vs. Trapp, 3 Abb., 306 (and Voorhies vs. Baxter, 18 Barb., 592; 1 Abb., 43; affirmed, 17 N. Y., 354; and Ricart vs. Tousend, 6 How., 460, there referred to); The People vs. The Mayor of New York, 28 Barb., 240; 17 How., 56; 8 Abb., 7 (15); New York and New Haven Railroad Company vs. Schuyler, 17 N. Y., 592; 7 Abb., 41; reversing same case, 1 Abb., 417. See however Leavitt vs. Fisher, 4 Duer, 1 (23).

But a defendant joined without necessity or improperly, may maintain a separate demurrer on that ground. Chapman vs. West, 17 N. Y., 125; affirming same case, 10 How., 367; Eldridge vs. Bell, 12 How., 547.

Where the demands of coplaintiffs are several, or of such a nature that, on the trial, several judgments can be entered as between such of them as are or are not entitled to sue, and the defendants, the Code does not permit a demurrer for the misjoinder. Dunderdale vs. Gorguas, 16 How., 195 (198). But where, owing to the relations of

those parties, a judgment of that nature cannot be rendered, as in the case of a husband and wife joined as coplaintiffs in an action relating to the separate estate of the latter, or for recovery of a debt or damages wholly due to the former, the rule will not apply, and a demurrer will be sustainable in respect of the misjoinder. Dunderdale vs. Gorguas, supra; Brownson vs. Gifford, 8 How., 389. See likewise, as to the objection generally considered, Barton vs. Draper, 5 Duer, 130; Avogadro vs. Bull, 4 E. D. Smith, 384; Mann vs. Marsh, 35 Barb., 68; 21 How., 372.

Where the demurrer is on the ground of non-joinder, the first clause of section 122 will be held to control. Where the court cannot determine the controversy before it, without prejudice to the rights of others, or by saving those rights, demurrer will lie, and the court must cause those parties to be brought in. If the contrary be the case, and the controversy can be decided as above, the demurrer will not be well taken. Wallace vs. Eaton, 5 How., 99; 3 C. R., 161.

To sustain a demurrer on this ground, it must appear that the party demurring has an interest in having such other party made a defendant. As a general rule, the plaintiff may choose for himself what parties he will make defendants. So far as it can, without prejudice to the rights of others, the court will determine the controversy between the parties before it, but, when this cannot be done, it will take measures to have the necessary parties brought in. Hillman vs. Hillman, 14 How., 456 (460). See also Newbould vs. Warren, 14 Abb., 80; Van Wart vs. Price, 14 Abb., 4, note. See, however, the demurrer of the party himself, allowed upon this ground, Spicer vs. Hunter, 14 Abb., 4.

A complaint brought by the head of an unincorporated association on behalf of its members, was held to be demurrable, it not appearing that it would have been impracticable to make those members plaintiffs by their individual and real names. Kirk vs. Young, 2 Abb., 453. As to the necessity of bringing in all parties jointly interested in the subject-matter of the suit, either as plaintiffs or defendants, see Bowers vs. Tallmadge, 16 How., 325.

See also, as to the necessity of joining all parties interested in the same recovery as co-plaintiffs, or showing a sufficient excuse for their non-joinder in that capacity, and their joinder as defendants, under section 119. Bishop vs. Edmiston, 13 Abb., 346.

See likewise, as to the necessity of joining all parties interested in the application of a common fund, but not a mere ministerial officer of the court, where the parties, whose interests he represents, appear in person, Skinner vs. Stuart, 13 Abb., 442.

As to the waiver of this ground of objection, if not taken by demurrer or answer, see Purchase vs. Mattison, 6 Duer, 587; Savage vs.

Corn Exchange Fire and Inland Navigation Insurance Company, 4 Bosw., 1 (15); Hawkins vs. Avery, 32 Barb., 551, and other cases cited below, section 171, under head of Omission to Demur.

(e.) 5. MISJOINDER.

The questions arising under this subdivision have also, in a great measure, been anticipated in a former chapter (chapter II., book VII., section 140, under the head of Joinder as connected with the subject of complaint). So far as the law of the case is concerned, the reader is referred to that section. The present will be confined to the mode of presentation of the objection on that ground when tenable.

See also, section 133, chapter IV. of Book VI., and decision there cited, establishing that a demurrer, on that ground, will not lie on account of neglect, on the part of the plaintiff, to separate distinct causes of action as prescribed by section 167, or for confusion in his mode of statement, but that the remedy of a defendant, in such cases, lies by motion. Demurrer is only appropriate when the misjoinder affects the character and substance of such causes of action, irrespective of the mode of their statement.

It is obvious that with reference to the considerations arising upon a demurrer of this nature, the section last referred to (167), by which the cases in which joinder is admissible, or the reverse, are defined, will be the controlling provision.

In Redmond vs. Dana, 3 Bosw., 615, it was considered that a demurrer under this subdivision is the proper mode of testing the question as to whether the demand of inconsistent relief, in respect of the facts alleged, may, or may not, constitute a misjoinder.

Where the objection was equally sustainable by both of two defendants, sued jointly for several causes of action, it was held that it might be raised by way of joint demurrer. Hess vs. Buffalo and Niagara Falls Railroad Company, 29 Barb., 391.

A demurrer, in this form, will not suffice to raise the question of want of jurisdiction as to one of two causes joined in the same complaint, but the objection must be specifically taken. Cook vs. Chase, 2 Duer, 643.

Where apparent on the face of the complaint, the objection of misjoinder will be waived by omission to demur, and cannot be subsequently taken. Colegrove vs. New York and New Haven Railroad Company, 6 Duer, 382 (402).

On the allowance of a demurrer on this ground, special authority is given to the court by section 172, to order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned, in its discretion, and upon such terms as may be just.