The demurrer must not only distinctly specify the grounds of objection to the complaint, but, if any such ground be omitted, it cannot afterwards be taken on the argument. There can be no doubt but that the principle laid down in this respect in Kneiss v. Seligman, 5 How. 425, 7 Barb. S. C. R. 439, is sound, although that case more directly refers to demurrer to answer. This latter subject will be treated of hereafter, in the chapter devoted to the consideration of reply.

Provision is, in fact, expressly made by sec. 148, that any objections to the complaint, not expressly taken either by demurrer or answer, will be deemed to be waived, excepting only those to the jurisdiction of the court, or that the complaint does not state facts sufficient to constitute a cause of action. These two objections may be asserted for the first time, at any period during the progress of the cause, even on an appeal to the general term against a judgment entered under sec. 247; although, in this last case, a defendant cannot take a judgment in his favor, having failed to raise the objection in proper time and form for that purpose.-Raynor v. Clark, 7 Barb. S. C. R. 581.

Thus,

Objections as to insufficiency or defect in the complaint, must, however, be asserted in due form and in due time. where a defendant had failed to demur on the ground of an evident defect in the complaint, or to object to the evidence offered thereon before the referee to whom the cause was referred, or to except to that referee's decision; it was held that he could not raise the objection, on the hearing of a case for the review of the latter's. It was not properly before the court at that time.— Carley v. Wilkins, 6 Barb. S. C. R. 557.

In Flynn v. Stoughton, 5 Barb. S. C. R. 115, it was held that the privilege of a foreign consul to be exempt from suit in the state courts, might be waived by an answer to the merits. See, however, previous remarks on this decision, which seems to be clearly wrong, and to be overruled by the cases before cited under the head of parties.

The subject of demurrer by answer, so far as relates to any independent considerations in relation thereto, will be found treated of in the next chapter.

By section 151, it is provided that "the defendant may demur to one or more of several causes of action stated in the complaint, and answer the residue." This provision was not in the Code of 1848, and, accordingly the case of Manchester v. Storrs,

3 How. 410, which held that a demurrer could only be interposed to the entire complaint, is no longer applicable to the existing practice.

The question as to how far a defendant may both demur and answer to the same ground of complaint, has been the subject of contradictory decisions. The cases of The People ex rel. Falconer v. Meyer, 2 C. R. 49, and Gilbert v. Davies, 2 C. R. 50, are authority in favor of his right to do so; but, in Slocum v. Wheeler, 4 How. 373, it was held, on the other hand, that a defendant cannot both demur and answer at the same time, to a single cause of action, and the two last cases are both commented upon and formally overruled. In Spellman v. Wieder, 5 How. 5, the same doctrine was positively held, and the authority of Slocum v. Wheeler confirmed in terms, in a case where the defendants had both demurred and answered to the whole complaint. A like decision was come to in Cobb v. Frazee, 4 How. 413, (a demurrer to answer,) where it was held that demurrer will not lie to part of an entire defence. The plaintiff had, in that case, selected from the answer several sentences, forming a part of one entire ground of defence, and demurred thereto, replying to the residue, under which circumstances his demurrer was overruled. Similar views were laid down in Howard v. The Michigan Southern Railroad Company, 5 How. 206, 3 C. R. 213, where the defendant had both demurred and answered to the complaint; but it was held that the plaintiff could not treat such pleading as a nullity, or move for judgment; but should move to strike out the answer and demurrer, or that the defendant elect by which he will abide: and the like doctrine is implied in Clark v. Van Deusen, 3 C. R. 219. Where, however, the causes of action in a complaint, or the defences in an answer are separately stated, in compliance with the directions to that effect, in secs. 167 and 150, there can be no doubt that the opposing party may both demur, and also answer or reply by the same pleading: provided he does not do both to the same ground of action or defence, but separates, on the contrary, his objections or answers to his adversary's pleading, into distinct classes, in the same manner in which the grounds of action or defence in that pleading have been separated.

Demurrer, with all its advantages, is, however, a proceeding attended with some risk, as, if it be adjudged to be clearly fri

volous, and to have been put in for the purposes of delay, leave to answer may be, and has been in many cases refused.

A demurrer for misjoinder of both husband and wife as parties, in a case where it appeared that both had actual though different interests in the subject matter of the action, was accordingly stricken out as frivolous, and judgment given for the plaintiff in Conde v. Shepard, 4 How. 75 ; 2 C. R. 58, (as Conde v. Nelson.)

The husband may be joined, even when the suit concerns the wife's separate property, and she might sue alone.- Van Buren v. Cockburn, 2 C. R. 63.

A demurrer on the ground that profert of his letters of administration was not made, by an administrator suing as such, was stricken out as frivolous, in Bright v. Currie, 10 L. O. 104.

In an action brought by a Bank, on a note payable to the order of their cashier, a demurrer that such action was not brought by the proper party having been taken, it was held that the plaintiffs were entitled to judgment, on account of its frivolousness, though leave was given to the defendants to answer on terms.-The Camden Bank v. Rogers, 4 How. 63; 2. C. R. 45.

An omission to aver a default in the purchase of goods entrusted to a commission merchant for sale and collection, in an action on his guarantee, was held not to be a ground of demurrer, the complaint averring that the amount was due from the latter.-Milliken v. Byerly, 6 How. 214.

A demurrer that the complaint in an action for goods sold and delivered, did not state any legal liability, or any promise to pay, was in like manner held to be frivolous, and judgment given for the plaintiff in Glenny v. Hitchins, 4 How. 98; 2 C. R. 56.

In Appleby v. Elkins, 2 Sandf. S. C. R. 673, 2 C. R. 80, where the complaint stated the making, endorsement, and delivery of a promissory note to the plaintiff, the non-payment thereof when due, and the defendant's indebtedness-a demurrer that the complaint did not show the plaintiff to be owner, or that the note was due, was stricken out as frivolous, and leave to answer denied, there being no affidavit of merits. An omission to aver the fact of due protestation, in an action by endorsee against endorser, is, on the contrary, a demurrable defect. -Turner v. Comstock, 1 C. R. 102; 7 L. O. 23.

In Beach v. Gallup, however, 2 C. R. 66, where the complaint alleged the plaintiffs to be holders of the note sued on, but did not aver ownership, or facts amounting thereto, a demurrer on the latter ground was refused to be stricken out.

In Neefus v. Kloppenburgh, also, 2 C. R. 76, a demurrer to a complaint, alleging that "the defendant was indebted" to the plaintiff on an account for goods sold and delivered, on the ground that the conclusion of law, and not the facts, were pleaded, was likewise refused to be stricken out, and the general principle laid down, that it was only in cases where the demurrer was palpably groundless and untenable, and put in for the purposes of vexation and delay, that the court would exercise the power of expunging it from the record.

Similar principles are laid down in Rae v. The Washington Mutual Insurance Company, 6 How. 21, where it was held that, to warrant a judgment on a frivolous demurrer, "the case should be entirely clear, palpable on the statement of the facts, and requiring no argument to make it apparent ;" and a motion to strike out a demurrer to the reply was accordingly denied, the questions raised being real and important.

For forms of Demurrer, see Appendix.

This pleading requires no verification. It should, however, be signed by the attorney or counsel of the defendant, and a copy served upon the adverse party, in the usual manner.

NOTE.-In Hall v. Bartlett, 9 Barb. S. C. R. 297, it is held that "a demurrer admits the facts which are relevant and well pleaded, but not conclusions of law.-Ford v. Peering, 1 Ves. Jun. 78, Story's pl. 452, and the cases there cited." The purchase of a mortgage by an attorney, followed up by proceedings on his part to foreclose by advertisement, was held not to be a purchase with intent to sue, within the meaning of 2 R. S. 288, sec. 71, and judgment was given for him accordingly, on his demurrer on that ground.

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CHAPTER IV.

ANSWER.

THE office of this most important pleading is, to present the case of the defendant, in opposition to that attempted to be made out by the plaintiff, upon the facts of the case alone, or upon the law and the facts conjointly, according to the circumstances. It is, accordingly, the form of defence most usually adopted.

The requisites of Answer are thus prescribed by the Code, in secs. 149 and 150:

§ 149. The answer of the defendant must contain,

1. A general or specific denial of each material allegation of the complaint, controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.

2. A statement of any new matter constituting a defence or counter-claim, in ordinary and concise language, without repetition.

§ 150. The counter-claim mentioned in the last section, must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action:

1. A cause of action, arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action.

2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.

The defendant may set forth, by answer, as many defences and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished.

These sections have been altered in several most important particulars, upon the recent amendment. The power of making a general as well as a specific denial of the plaintiff's allega