such allegation be controverted, the plaintiff shall establish on the trial that it was so published or spoken. 1. When the words are charged to have been spoken of and concerning the defendant, as a clerk or tradesman, which it is alleged was his subsistence, it is unnecessary to allege special damage. Butler v. Howes, 7 Cal. 87. 2. A variance between the date of the libel as set forth and as proven is immaterial unless the defense is misled by it. Thrall v. Smiley, 9 ib. 529. 3. The defendant may prove the reply by plaintiff immediately after defendant uttered the slanderous words. Bradley v. Gardner, 10 ib. 371. 4. Where the answer contained, 1st, a denial of the publication, and 2d, matter in justification and excuse, and the plaintiff demurred to the answer for insufficiency, specifying as grounds of demurrer objections only to the matter of justification and excuse, and judgment was given for the plaintiff on the demurrer; held, that the demurrer had reference only to the portion of the answer objected to, and that by the judgment the denial of the publication was not stricken out of the answer. Matthews v. Beach, 4 Seld. 173. 5. The time of uttering the slander, as alleged in the complaint, may be departed from in evidence. Such a variance is wholly immaterial. Potter v. Thompson, 22 Barb. 87. 6. If the slander be spoken of a married woman, and the words be actionable per se, the husband and wife must join in the action; if not actionable per se, the husband must sue alone. Klein v. Hentz, 2 Duer, 633. 7. The jury are at liberty to give exemplary damages, if the evidence satisfies them that the defendant published the libel with intent to injure the character or feelings of the plaintiff, or to break up his business. Bennett v. Fry, 4 ib. 247. 8. A statement of the tenor and effect of the words complained of, in an action for slander, is bad pleading. The words ́ spoken should be stated. Forsyth v. Edmiston, 5 ib. 653; 2 Abbott, 430. 9. Several causes of action in slander cannot be united in the same complaint, unless they are separately stated. Pike v. Van Wormer, 5 How. Pr. 171. 10. It is not irrelevant for the plaintiff to allege the facts which he would be allowed upon the trial to prove in support of his action. Deyo v. Brundage, 13 ib. 221. 11. The office of an innuendo is to connect the words, published or spoken, with the persons or facts, and extrinsic circumstances previously named, and set forth in the inducement, and to explain their application thereto; and being merely explanatory, cannot enlarge the sense of words, or supply or alter them when they are deficient. Blaisdell v. Raymond, 14 ib. 265. 12. The complaint, consisting in words not on their face libelous, must distinctly aver the extrinsic fact on which plaintiff relies to show the alleged libelous character of the words complained of, and it is not sufficient that this fact is alleged by way of innuendo. Caldwell v. Raymond, 2 Abbott, 193. 13. It is not necessary to set out the whole of the obnoxious publication, but the pleader may extract only particular passages complained of, provided their sense be clear and distinct. Culver v. Van Anden, 4 Abbott, 375. 14. Where the words alleged in a complaint for libel are fairly susceptible of a construction which would render them libelous, the complaint will be sustained upon demurrer, although the words may be interpreted in a way which would render them innocent. Wesley v. Bennett, 5 ib. 498. 63. In the actions mentioned in the last section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances. 1. The answer must aver the truth of defamatory matter charged to constitute a justification. It is not sufficient to set up facts which only tend to establish the truth of such matter. Without an averment of its truth, the facts detailed can only avail in mitigation of damages. Thrall v. Smiley, 9 Cal. 529. 2. The defendant may prove, in mitigation of damages, facts and circumstances which disprove malice, although they tend to establish the truth of the defamatory charge. It is not necessary that the answer should allege the truth of the charge complained of, to entitle the defendant to aver and prove such facts and circumstances to reduce the amount of damages. Bush v. Prosser, 1 Kern. 347. 3. Accordingly, where in an action for charging the plaintiff with keeping a house of ill-fame, the answer denied the complaint, and as a partial defense alleged lewd and lascivious conduct by the plaintiff's family, not amounting to a justification of the charge; held, that the evidence of such conduct was competent to reduce the amount of damages. Ib.; Anonymous, 6 How. Pr. 160; Heaton v. Wright, 10 ib. 79; Van Benschoton v. Yaple, 13 ib. 97. 4. The defendant may allege, in his answer, the truth of the charge, in justification, and also facts tending to prove its truth, in mitigation of damages. Bisbey v. Shaw, 2 Kern, 67. 5. Where the defendant denies the charges in the complaint, he cannot set out in his answer matters in mitigation of damages, which do not constitute a defense to the action, or which could not be proven on the trial. Graham v. Stone, 6 How. Pr. 15. 6. In pleading a defense, mitigating circumstances may be alleged in justification, but not otherwise. Ib.; Buddington v. Davis, ib. 401. 7. In slander, an answer justifying the speaking of the words, must confess the speaking thereof. Anibal v. Hunter, ib. 255; Ormsby v. Douglas, 2 Abbott, 407. 8. The defendant may prove the plaintiff's general bad character, in mitigation of damages, whether he justifies or not. Stiles v. Comstock, 9 How. Pr. 48. 64. [1855.*] The plaintiff may unite several causes of action in the same complaint, when they all arise out of: 1st. Contracts, express or implied; or, * Statutes of 1855, 196. 2d. Claims to recover specific real property, with or without damages, for the withholding thereof, or for waste committed thereon, and the rents and profits of the same; or, 3d. Claims to recover specific personal property, with or without damages, for the withholding thereof; or, 4th. Claims against a trustee by virtue of a contract, or by operation of law; or, 5th. Injuries to character; or, 6th. Injuries to person; or, 7th. Injuries to property. But the causes of action so united shall all belong to only one of these classes, and shall affect all the parties to the action, and not require different places of trial, and shall be separately stated. Provided, however, that an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character, or to the person. Consolidation of actions, see section 526. 1. If several causes of action are improperly joined, the objection must be taken either by demurrer or answer, or the objection will be deemed to have been waived. Macondray v. Simmons, 1 Cal. 393. 2. Indebitatus assumpsit for rent will not lie in favor of a stranger for the purpose of trying his title; or by one of two litigant parties claiming the land. This action depending not upon the validity of plaintiff's title, but upon a contract expressed or implied. Sampson v. Shaeffer, 3 Cal. 196. 3. The right to recover for use and occupation is founded on contract alone. O'Conner v. Corbitt, 3 Cal. 370. 4. Value of property destroyed, and damages for the same, may be joined. Tendesen v. Marshall, ib. 440. 5. A plaintiff has a right to waive a tort as against factors, and to bring his action to compel them to account, and for the net proceeds arising from the sales. Lubert v. Chauviteau, ib. 458. 6. Damages for a personal tort cannot be united with a demand properly cognizable in a court of equity. Mayo v. Madden, 4 Cal. 27. 7. Plaintiff may sue for real property, damages for withholding it, rents and profits in the same action. Sullivan v. Davis, ib. 291. 8. It is improper to join an action of trespass, quare clausum fregit, with ejectment and prayer for relief in chancery. Bigelow v. Gove, 7 ib. 133. 9. Damages in addition to the penalty may be recovered in one action against a sheriff for a failure to execute and return process. Pearkes v. Freer, 9 Cal. 642. 10. The provisions of the second subdivision sustained. Boles v. Cohen, Cal. Jan. T. 1860. 11. A complaint connecting several causes of action, all of which belong to one of the classes mentioned in this section, and affect all the parties to the action, and do not require separate places of trial, cannot be demurred to on the ground that such causes of action are improperly united, merely because they are not separately stated. The remedy is by motion that the complaint be made more definite and certain, so as to show on its face what is relied upon as constituting a separate cause of action. Harsen v. Bayaud, 5 Duer, 656. 12. Several causes of action can properly be united in one complaint only where they each affect all the parties to the action. Lexington and Big Sandy R. R. Co. v. Goodman, 15 How. Pr. 85. 13. Certain securities were deposited by the owner with a firm as agents to sell them or negotiate loans upon them, and the agents disposed of them to various persons, in violation of their trust: held, that one cause of action would not lie against all the defendants; there was no community of interest between them. Lexington and Big Sandy R. R. Co. v. Goodman, 5 Abbott, 493. 14. A creditor's bill was filed to set aside various fraudulent assignments alleged to hinder and delay the creditors of the insolvent: held, upon demurrer by the assignee, that the various transferees could not be joined in the action, and that the several causes of action had been improperly united. Reed v. Stryker, 6 ib. 109. 15. A cause of action for malicious prosecution may be joined with a cause of action for slander. Watson v. Hazzard, 3 Code R. 218. 16. Several causes of action arising on several judgments, may be joined in one action. Bank of N. America v. Suydam, 1 Code R., N. S., 325. 17. Distinct accounts between the same parties may be sued upon separately. Secor v. Sturgis, 2 Abbott, 69. 65. [1854, 1860.*] Every material allegation of the complaint, or answer, not specifically controverted by the answer or replication, shall, for the purposes of the action, be taken as true. The allegation of new matter in the replication shall, on trial, be deemed controverted by the adverse party. 1. A general and sweeping denial in a verified answer is not sufficient to controvert specifically each material allegation of the complaint. Dewey v. Bowman, 8 Cal. 145; Humphries v. McCall, 9 Cal. 59. 2. The complaint verified set forth that the plaintiffs are owners and entitled to the possession of certain mining claims therein described, and that the defendants wrongfully and unlawfully entered upon and dispossessed the plaintiffs, as alleged in the complaint. The answer denies specifically the allegations of ownership and right of possession, and denies that the defendants wrongfully and unlawfully entered and dispossessed the plaintiffs. The facts of entry and ouster are the only issuable facts presented in this allegation, and in the absence of a denial in positive and unequivocal terms, they 1861 494 Statutes of 1860, 000. are for the purposes of the action, to be taken as truc. Busenius v. Coffee, Cal. July T. 1859. 66. A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient. 1. An averment of copartnership is immaterial in a complaint, when the execution of the note sued on is not controverted, and becomes the material issue in the action. It is not essential to the claim. Whitwell v. Thomas, 9 Cal. 499. 2. Mayor of Albany v. Cunliff, 2 Coms. 165. 67. [1854, 1860.*] After demurrer, and before the trial of issue on demurrer, either party may, within ten days, amend any pleading demurred to, of course, and without costs, filing the same as amended, and serving a copy thereof upon the adverse party or his attorney, who shall have ten days to answer, reply or demur thereto; but a party shall not so amend more than once. When a demurrer to a complaint or answer is overruled, and there is no answer or replication filed, the court may, upon such terms as shall be just, and upon payment of costs, allow an answer or replication to be filed. If a demurrer to the replication be overruled, the facts alleged in the replication shall still be considered as denied. 1. Where the complaint is defective, the court should sustain the demurrer, with leave to the plaintiff to amend his complaint, and if the plaintiff then declines, final judgment should be given. Gallagher v. Delaney, 10 Cal. 410. 2. The party desiring the amendment after demurrer sustained, must make his motion to the court, and he cannot object on appeal that he was not permitted to amend when he made no offer. Smith v. Yreka Water Co., Cal. Oct. T. 1859. 3. A pleading which does not admit of an answer cannot be amended under this section. Plumb v. Whipples, 7 How. Pr. 411. 68. [1853.] The court may, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, and may, upon like terms, enlarge the time for an answer or demurrer, or demurrer to an answer filed. The court may likewise, upon affidavit * Statutes of 1860, 000. † Statutes of 1853, 276. |