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a separate estate, that the contract is such as she is competent to make, and that it is for her advantage. Dougherty v. Sprinkle, 88-300.

The complaint, in an action to enforce an executory contract of a married woman, should allege that she has a separate estate subject to the charge sought to be enforced, and the execution can issue against that alone. Flaum v. Wallace, 103–296.

In an action for divorce.-In a divorce suit, where a wife alleges ill treatment by her husband, but fails to state the circumstances connected with the assaults charged and the causes which brought them on, the complaint is insufficient. White v. White, 84-340; Jackson v. Jackson, 105–433.

In an action against county commissioners.—A complaint in an action by a board of commissioners against a defaulting tax-collector is demurrable if it fail to state that the county treasurer fails and refuses to bring the action. Commissioners of Pender v. McPherson, 79-524.

In action to enforce a right-of-way.-In an action to enforce a right-ofway, the complaint must show how the plaintiff became entitled to such right. Boyden v. Achenbach, 79–539.

In an action to recover land.-A complaint, in an action to recover real estate, which alleges that the defendant withholds the possession of the premises described, but does not aver that it is wrongfully withheld, is defective. Garrett v. Trotter, 65-430.

When the complaint demands the possession of land, nothing more is put in issue than a right of entry or a right of present possession—at least, when no particular estate is alleged in the complaint. Whether a judgment in an action in which the complaint alleged a certain estate would be an estoppel between the parties is a question too nice to be decided until the case shall arise for consideration. Harkey v. Houston, 65-137. A complaint, in an action to recover land, which alleges that the plaintiff is the owner in fee, describes the same by metes and bounds, and alleges that the defendant wrongfully withholds possession, concluding with a demand for judgment for the possession, for damages for withholding the same, and for costs, is amply sufficient under The Code. Johnston v. Pate, 83-110.

An action to recover the possession of land, and to correct a mutual mistake in a deed for the same land executed by the plaintiff to the defendant, constitute but one cause of action. Ely v. Early, 94-1.

Where, in an action to recover several tracts of land in the separate possession of several defendants, the complaint does not allege of which tract each defendant is in possession, this constituted no ground for demurrer. Thames v. Jones, 97-121.

In an action to recover land, if the complaint allege, generally, title and right of possession, the plaintiff, on the trial, may offer evidence of any title which may entitle him to recover; but if he set out his title specifically, it seems he will be required to prove it as alleged. Richards v. Smith, 98-509.

In an action to recover land, it is sufficient if the complaint distinctly describes the land and alleges that the defendant is in the unlawful possession and refuses to surrender, without setting forth what particular portion he withholds. Speight v. Jenkins, 99–143..

In an action of ejectment, and the modern substitute for it-an action for the possession of land-the plaintiff must allege and show that defendant held adverse possession at the time of action brought, and that he is entitled to the immediate possession. Brown v. King, 107-313.

In an action for usury.-Where a complaint in an action for usury specified the principal sum constituting the original debt, and the dates and

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amounts of the usurious payments of interest, it is sufficiently definite, as it furnishes the defendant with all the information necessary to make his defence. Morgan v. Bank, 93-352.

In an action against a national bank for usury, the complaint need not negative that there are no state banks of issue which by law are allowed to charge more than eight per cent. Ibid.

In an action for malicious arrest.-In an action for having the defendant arrested maliciously and without probable cause, the complaint should allege that the action in which the arrest was made has been terminated. Johnson v. Finch, 93-205.

In an action for malicious prosecution. In an action for malicious prosecution, the complaint should allege that the process was void, or was issued without probable cause, or that it was prompted by malice, and that the proceedings thereunder have terminated. Barfield v. Turner, 101-357.

In an action for personal property by officer.-Where the cause of action alleged was that the plaintiff became entitled to the possession of personal property sued for by virtue of a levy of executions issued to him as an officer, it is not necessary to set forth in the complaint the process under which the seizure was made. Pendland v. Leatherwood, 101-509.

In an action for damages. The rules of pleading are not so stringent as to require special averment in the complaint of every immediate cause of injury, in an action for damages. Hammond v. Schiff, 100–161.

In an action to impeach a deed. If it is desired to attack a deed between husband and wife, upon the ground that it was executed in contemplation of a separation, that allegation must be duly made in the pleadings. Barnes v. Barnes, 104-613.

In an action for distributive share. In an action brought against administrator for an account within two years, it is not essential for the complaint to allege that there is "no necessity for retaining the funds," under 1512 of The Code. Allen v. Royster, 107–278.

In an action on note. -The payee or endorsee of a note is prima facie the owner and holder, and it is unnecessary that he should make such an allegation in his complaint. Deloatch v. Vinson, 108–147.

In an action for slander.-In an action for slander, the complaint must set out the actionable words spoken, and not simply a narrative of what occurred. Burns v. Williams, 88-159.

In action of debt.-The complaint in debt upon simple contract must set out the consideration among other facts. Moore v. Hobbs, 79-535. In actions upon parol contracts, it is necessary that the complaint should disclose a sufficient consideration. Burbage v. Windley, 108-357

In an action for account.-If a settlement is conditional, upon the performance of certain things thereafter to be done by one of the parties thereto, but which have never been performed, it is not necessary, in an action for account, to allege the specific errors therein. Quarles v. Jenkins, 98-258.

In an action for penalty. In an action to recover the penalty given against registers of deeds for issuing marriage license in violation of 1816, The Code, it is essential that the complaint should allege that the register issued the license knowingly or without reasonable inquiry. Brown v. Mitchell, 102-347, approved. Maggett v. Roberts, 108-174.

bivie Actions

In an action for an office. In an action to recover possession of an office to which the relator alleges he was duly chosen, but was excluded therefrom by the illegal action of the board of canvassers in rejecting certain returns, it is not necessary to set forth in the complaint, specifically, the errors which the board committed: an averment that the relator was duly elected, and is unlawfully prevented from the enjoyment of the office is sufficient. Kilburn v. Patterson, 98-593.

In an action against a corporation. In a suit against a railroad company, it may be designated by its corporate name without alleging its incorporation. Stanly v. Railroad, 89-331; Ramsay v. Railroad, 91-418.

In an action on a laborer's lien. -It is essential to the validity of a laborer's lien, that the "claim," or notice, which he is required to file, shall set forth, in detail, the times when the labor was performed, its character, the amount due therefor and upon what property it was employed; and if it is for materials furnished, the same particularity is required. Defects in these respects, will not be cured by alleging the necessary facts in the pleadings in an action brought to enforce the lien. Cook v. Cobb, 101-68; Wray v Harris, 77-77.

In an action for converting mortgaged crop.-A complaint for converting a mortgaged crop, which avers the title to such crop raised by the mortgagor, and by him conveyed to the plaintiff, its delivery to the defendant, its value, and its appropriation by the defendant to his own use after demand by the plaintiff, is in full compliance with the requirements of this section. Womble v. Leach, 83-84.

In an action on policy of insurance. In an action on a policy of insurance a copy of the application need not be set out in the complaint. Britt v. Insurance Co., 105-175, overruling (on this point) Bobbitt v. Insurance Co., 66-70.

New promise. Where an action is brought to enforce payment of a bond and a new promise is relied on to rebut an alleged compromise and satisfaction, the complaint should declare on the bond, and the new promise be relied on to rebut the compromise. King v. Phillips, 94-555.

Quantum meruit.-Where the complaint alleged that the plaintiff was employed as the engineer by the defendant, and rendered services as such, he can recover either on the special contract, or on the common count. Lewis v Railroad, 95-179; Fulps v. Mock, 108-601.

Bill of Review.-An action in the nature of a bill of review, can only be maintained upon three grounds: 1. For error apparent on the face of the decree; 2. For new matter discovered since the decree was rendered and 3, for fraud. In such an action it is not competent to look into the evidence to ascertain if any fact was misconceived, or that the decree was based on an erroneous statement of facts. Farrar v Staton, 101-78.

Two unconnected causes of action.-A complaint containing two unconnected causes of action against different persons is demurrable. Burns v. Williams, 88-159.

A plaintiff cannot join in the same complaint a cause of action against one of two defendants, with another, against both. N. C. Land Co. v. Beatty, 69-329.

See 267, post, and cases there cited.

Non-suit as to some of the causes of action.-Where the complaint set out three causes of action, and on the trial the plaintiff entered a nonsuit as

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to two of them, he is entitled to prosecute his action as to the remaining cause of action. Grant v. Burgwyn, 84-560.

Recovery must be solely on facts stated in the complaint.-A plaintiff cannot recover upon a state of facts other than those set out in his complaint except by amendment of his complaint. Shelton v. Davis, 69-324; Browning v. Berry, 107-231.

The plaintiff must allege his cause of action in the complaint, and he cannot recover on a cause of action set out in the pleadings of his adversary. Willis v. Branch, 94-142; Johnson v. Finch, 93-205.

Where the plaintiff declared for one undivided half, he can recover no more. Cox v. Ward, 107-507.

Aider. Where the cause of action is defectively stated in the complaint it may be aided by the facts alleged in the answer. Willis v. Branch, 94-142; Harris v. Sneeden, 104-369. See cases cited, 242, post.

When a judgment will cure the absence of a complaint.-Judgment cures the absence of a complaint especially where the specialty is filed as a substitute and the summons names the amount. Vick v. Pope, 81-22; Leach v. Railroad, 65-485; Peoples v. Norwood, 94-167; Little v. McCarter, 89-233; Robeson v. Hodges, 105-49.

A judgment rendered without any complaint having been filed is not necessarily void. Such judgment is valid if rendered by consent, or if ratified by subsequent assent to it. Stancill v. Gay, 92-455.

See, also, 179, 183, 184, 185, 186, 223 and 231, ante; also, 239, especially 239 (6), 260, 261, 269, 270, 271, 274, post, and cases cited under

them.

(3) A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be

demanded, the amount thereof must be stated.

Defect in the demand for judgment immaterial.-Any informality or defect of the demand for judgment is immaterial, and cannot be ground for demurrer or other objection so long as the sum demanded (in an action for money only) appears from the summons, and how it is due, from the complaint. Dunn v. Barnes, 73-273.

Under the C. C. P., the prayer for relief is most obviously a material part of the complaint. But semble that failure to insert such prayer is not fatal. Davis v. Ely, 100-283.

A formal prayer for relief is not now essential; the court will render such judgment as the facts, proved or admitted, demand, not inconsistent with the pleadings, notwithstanding the party may have misconceived his remedy. Jones v. Mial, 79-168; Harris v. Sneeden, 104-369. A party can recover judgment for any relief to which the facts alleged and proved entitle him, whether demanded in the prayer for relief or not. McNeill v. Hodges, 105-52.

A formal prayer for relief is not now necessary in a complaint; and in an action for slander separate demands for damages need not be appended to the various allegations setting up the causes of action. Gudger v. Perland, 108-593.

Plaintiff entitled to any relief not inconsistent with the pleadings. -No general prayer need be expressed in the pleadings, but is always implied. The party is not restricted to the specific relief demauded, but may have any relief justified by the facts proven, and not inconsistent with the pleadings. Knight v. Houghtaling, 85-17.

Civil Actions

The relief, if there be no answer, shall not exceed that demanded in the complaint, but in any other case any relief may be granted consistent with the case made by the complaint and embraced in the issue. Jones v. Mial, 82-252.

Under the present system of practice, there being but one form of action, it is the office of the complaint to set forth the facts upon which the plaintiff's right to relief is based, and if they are adjudged sufficient the court will direct the appropriate remedy. Moore v. Cameron, 9351; Lumber Co. v. Wallace, 93-38.

A plaintiff is entitled to such relief as the facts stated in his complaint will admit, although he misconceives the manner in which it may be afforded. Patrick v. Railroad, 93-422.

The prayer for judgment does not fix the plaintiff's right, but the court should grant such judgment as the allegations in the pleadings will warrant. Moore v. Nowell, 94-265.

In an action equitable in its nature, the court may give such relief as the facts and pleadings may render appropriate, though it be not prayed in the complaint, and it may, to that end, order the pleadings to be reformed to correspond with the facts established. Barnes v. Barnes, 104-613.

The existence of other remedies against the defendant, as in this case, does not impair the one chosen. McEachin v. Stewart, 106–336.

The law does not favor a multiplicity of motions, when one will put an end to the controversy, and sufficient ground appears of record to sustain it, though not relied on by the party seeking relief. Skinner v. Terry, 107-103.

Jurisdiction. While the sum demanded ordinarily determines the jurisdiction, the plaintiff's demand must be made in good faith, and not for the purpose of giving jurisdiction. The superior court has no jurisdiction of an action upon a running account for $312, which has been reduced by payments to less than $200. Wiseman v. Witherow, 90-140. It is the sum which is demanded in good faith, which confers jurisdiction, and where the plaintiff's demand consists of several distinct items, it is the aggregate which constitutes the sum demanded and confers jurisdiction. Moore v. Nowell, 94-265.

In actions arising out of contract, it is the sum demanded that fixes the jurisdiction. Brantley v. Finch, 97-91.

A mere demand of judgment for amount of damages greater than are alleged in the complaint, will not avail to give the superior court jurisdiction. Bowers v. Railroad, 107-721.

Before justice of the peace.-Where the sum demanded, both in the summons and on the trial, was two hundred dollars, but the plaintiff filed an account showing more than that sum to be due, the justice had jurisdiction without any remission of the excess of the account over the sum demanded. Brantley v. Finch, 97-91.

It is only when the principal sum demanded exceeds two hundred dollars that the plaintiff is required to remit the excess above that sum in order to give the justice jurisdiction. Ibid.

In an action before a justice of the peace in which two causes of action were alleged, the first sufficiently, but the second defectively, for want of proper averment of jurisdictional facts, the justice may proceed to judgment upon the first. Mgf. Co. v. Barrett, 95-36.

Prayer too late after judgment.—In an action to have the holder of the legal title declared a trustee, it is too late after final judgment to ask for an account of the rents and profits. Brendle v. Herren, 97-257.