cuted in the name of the party having the legal right or interest, the change contemplated could be no other than the conversion of what before were equitable into legal rights. But I have already shown the absurdity of supposing that this transmutation was to extend to all cases. What, then, were the specific cases which the legislature had in view? The answer to this question does not appear to me to be difficult. It was intended to authorize a suit at law in the name of an assignee of a chose in action, and thus to abrogate the rule of the common law which renders such things unassignable. That this was its principal, if not its whole design, I think is clear. It is shown by the very next section of the code, which, evidently following up the same train of thought, refers exclusively to actions by assignees of things in action. The amendment introduced, after the last revision, to section 111 itself, has the same tendency. In order to bring a case within section 111, there must be an assignment in fact. An obligation to assign, or a state of circumstances which would operate to transfer the equitable interest in the thing in action, will not be sufficient. There must be that done which, before the code, would have passed the legal title but for the rule which denied the assignability of such an interest. There are other reasons why the plaintiffs cannot sustain this action. Section 111 is, by its express language, inapplicable to the assignment of a thing in action, not arising out of contract. As there could, therefore, be no express assignment of this claim, which grows out of a tort by the act of the party, it would seem to follow that no assignment can be implied." Merchants' Mut. Ins. Co. v. Eaton, 11 Leg. Obs., 140.

A complaint stating that the "defendant is indebted to the plaintiff in the sum of $371, for goods sold and delivered by the plaintiff to the defendant, at his request, on the 1st day of May, 1849, and that such sum is now due to the plaintiff from the defendant, for which the plaintiff demands judgment," was demurred to; and the court of appeals held it sufficient, and that the word "due," used in such complaint, imported not merely indebtedness, but that the time when payment should have been made has elapsed. Allen v. Patterson, Court of Appeals, December, 1852. This decision is important, as affording a very concise and convenient precedent for a complaint for goods sold and delivered. It is material, however, to observe, that the question on the sufficiency of this complaint arose on demurrer; and it does not follow that the complaint might not, on motion, have been held to have been too indefinite and uncertain.

Where a fact is stated in a pleading, which of itself constitutes a cause of action, or a defence to the action, the intent to rely upon it is

a necessary inference. No allegation to that effect is requisite. Per Sanford, J., in Bridge v. Payson, 5 Sand. S. C. R., 216.

A complaint must state the facts on which the plaintiff relies as establishing his right to maintain the action, and not, instead of those facts, the inferences which the pleader may deem to be conclusions of law. Mann v. Morewood, 5 Sand. S. C. R., 557.

It belongs to the court to draw the legal conclusions from the facts which are alleged to constitute the cause of action; and to enable the court to perform that duty, all those facts must be stated in the complaint. Ib.

A pleading under the code must be so expressed as to be plain, that is, intelligible to those who understand the language; and hence, the words are to be understood in their ordinary and popular sense. Ib.

When a complaint alleges an overpayment, and claims judgment for the sum overpaid, the averment will be construed to mean an overpayment in money, and can only be sustained by proof of that fact. Ib.

The relief to which a plaintiff may be entitled, must depend on the facts of the case; hence, to enable the court to judge of the relief that ought to be given, the transaction in all its material circumstances, must be set forth in the complaint. Ib.

The "facts" which are required to be stated as "constituting the cause of action," can only mean real traversable facts, as distinguished from propositions or conclusions of law; since it is the former, not the latter, that can alone with any propriety be said to constitute the cause of action. It may be true, the code has not carried out its own principles to their legitimate result, by requiring the parties, in all cases, to conduct their pleadings to a definite issue. But this is certainly no reason for violating those principles in the construction of the pleadings that are required. We are not to repeal the code by judicial construction, because we may believe it to be imperfect. Ib. 566.

"To say one is in debt, is just as much a conclusion as to say that one is embarrassed with debts. From the course this notion of conclusions as distinguished from facts seems to be taking, it is as well to state that the decisions upon this point refer to conclusions of law, to be deduced from facts which may or may not exist. Such was the decision in Parker v. Hagerthy, 1 Ala. R., 730, where we held that whether one was or was not a tenant is a legal conclusion. So in Lawson v. Orear, 7 ib. 784, it is said the condition of insolvency is a legal conclusion." Mussey v. Walker, 10 Ala. R., N. S, 290.

The code does not require that facts not within the personal knowledge of the party should be averred in a pleading upon information as well as belief: an averment upon belief is sufficient. An averment that

material facts are true as the party believes, is equivalent to an averment of the facts upon belief. Radway v. Mather, 5 Sand. S. C. R. 654.

Thus, where in an action by an indorsee against the indorser of a promissory note, the complaint contained these averments, "And the plaintiff says he believes that when the said note became due and payable, the same was duly presented to the maker thereof for payment, and payment thereof was demanded of the said maker, who neglected to pay the same, and that due notice thereof was given to the defendant," the defendant demurred to the complaint, that it did not allege that when that note became payable it was duly presented to the maker for payment, and that it did not allege that due notice had been given to the defendant of the demand and refusal of payment. The demurrer was held to be frivolous; and Duer, J.-Oakley Ch. J., concurring—said, “The code does not in terms require that matters contained in a pleading which are not within the personal knowledge of the party, shall be stated upon his information and belief; and by the section which prescribes the form of the verification, it is only to his belief of such matters that he swears. (Code, § 157.) It is a reasonable, if not a necessary inference, that his belief only is requisite to be stated. The object of the code is that every suit shall be prosecuted and defended in good faith, and this is secured if the material allegations in the pleading are believed by the party to be true. As the averment of his belief is not traversable, a statement of its grounds is immaterial." Radway v. Mather, 5 Sand. S. C. R., 654. See, however, the case next below, which takes a different view of the matter.

Allegations in a pleading should be positively made, in order to prevent immaterial issues and confusion, and the words " as the plaintiff is informed and believes" following the allegations of the complaint, were stricken out as redundant. Truscott v. Dole, 7 Pr. R., 221.

The allegation of a fact positively in a pleading, never of itself indicated that the party was personally cognizant of it. There was the same reason for inferring that he stated it on information, that there was for supposing that it was stated upon personal knowledge. Ib.

The prescribed form of verification of pleadings does not necessarily imply that it appears in the pleading what matters are stated on personal knowledge, and what on information and belief. The effect and true construction of the verification, is, that so far as the matters in the pleading are within the knowledge of the party they are true, and as to the residue, he is either informed or believes them to be true. Ib. See supplemental note to section 157.

§ 143, p. 152.

Where there are several defendants defending separately, it is no more an objection now than it was formerly, that ants do not serve their answers on each other. 7 Pr. R., 307.

the different defendBogardus v. Parker,

An order enlarging the time to answer, should be regarded as an admission by the party obtaining it, that he means to answer the complaint as it stands, and should therefore operate as a bar to a future motion for its alteration, unless by the terms of the order, the right to make the motion is expressly given; and it is to be understood that these rules equally apply where an extension of time is granted by the adverse party. Per Duer, J. in Bowman v. Shelden, 5 Sand. S. C. R.,

662.

It is stated in the note, p. 153, that where after order for publication of the summons, personal service is made out of the State; the time to answer does not commence to run until the expiration of the time prescribed for publication; but in Dykers v. Woodward, 7 Pr. R., 313, it was held otherwise, and that under such circumstances, the t me to answer commenced to run from the time of service of the summons out of the State.

Where the pleading is regularly served, and within the proper time, so that the only question is upon its sufficiency, it cannot be disregarded and treated as a nullity; thus, in a case where the complaint was on a promissory note, and the defendant, (in Nov. 1851) within the time for answering, served an answer denying generally the allegations of the complaint, and the plaintiff's attorney returned the answer and entered judgment, such judgment was on motion of the defendant, set aside as irregular; and per Harris, J., "An attorney has no right to determine for himself, whether the answer served is sufficient as a pleading. When a pleading is served after the time allowed for such service, or when in any other respect there is a defect of service, the opposite party may at his peril disregard the pleading served. Thus, if it be required that an answer should be verified by the oath of the party, and an answer is served without such verification, it may be returned, and the plaintiff take judgment for the want of an answer. But this rule is not applicable to a defect in the pleading itself." Strout v. Curran, 7 Pr. R., 36.

§ 144, pp. 153-155.

A demurrer is only appropriate when the ground of demurrer is apparent on the face of the complaint. Getty v. Hudson River R. R. Co., 8 Pr. R., 177.

If several causes of action are improperly joined in a complaint, the remedy is by demurrer, and not by motion to set aside or amend the complaint. Stannard v. Matice, 7 Pr. R., 4.

If husband and wife are improperly joined as plaintiffs, the objection must be taken by demurrer or answer, an answer on the merits will be considered as a waiver of the objection. Ingraham v. Baldwin, 12 Barb. S. C. R., 9.

If the misjoinder of husband and wife as defendants is apparent on the face of the complaint, a demurrer is the proper mode of raising an objection to the misjoinder. Bailey v. Easterly, 7 Pr. R., 495.

A complaint is bad, and may be demurred to, which alleges the taking, detention, and conversion of personal property, and claims not only damages for the conversion, but also a redelivery to the plaintiff. Maxwell v. Farnam, 7 Pr. R., 236.

The pendency of a prior suit in the courts of the United States, or the courts of a sister State, never was a defence to an action in this State; and the code has not changed the rule in this respect. Cook v. Litchfield, 5 Sand. S. C. R., 330.

The case of Haire v. Baker, 1 Selden, 357 involved a question whether there was or was not another suit pending between the same parties for the same cause. The facts as admitted, and as stated in the complaint, were that in Feb. 1843, respondent purchased the appellant's farm, and agreed to pay therefor "$1000, or thereabouts," and in part payment assumed a mortgage of $680. That appellant gave respondent a deed for the farm covenanting that the premises were free of all incumbrances. That by mistake the said mortgage was not excepted in said deed; that the respondent permitted the mortgage to be foreclosed, and his title to the premises thereby extinguished, and afterwards commenced an action of covenant on said deed against the appellant, alleging as a breach the existence of said mortgage. The appellant asked to enjoin the respondent from prosecuting his action on the covenant, and to have the deed and covenant made to conform to the agreement of the parties. The respondent demurred and alleged as ground of his demurrer, that the facts stated in the complaint belonged to the suit on the covenant, and were not properly the