Wend. 166; Lansing v. McKillip, 3 Caines, 286; Burnett v. Bisco, 4 Johns. 235; Bailey v. Freeman, 4 Id. 280; Moore v. Waddle, 34 Cal. 147.

Statute of frauds, how pleaded. In declaring upon a contract, where the contract must have been in writing, under the statute of frauds it is not necessary in the declaration to show that fact, though it is said to be otherwise in a plea. The authorities in support of this doctrine are very numerous, among which may be cited Miller v. Drake, 1 Caines, 45; Nelson v. Dubois, 13 Johns. 175; Elting v. Vanderlyn, 4 Id. 237; Gibbs v. Nash, 4 Barb. 449; Martin v. McFadin, 4 Litt. 240; McDowell v. Delap, 2 A. K. Marsh. 33. The rule in equity is the same as at law: See Spurrier v. Fitzgerald, 6 Ves. 548; Cozine v. Graham, 2 Paige, 177; Cowles v. Bowne, 10 I. 526; Champlin v. Parish, 11 Id. 405. If the contract stated in the declaration or bill in equity is denied, it is incumbent on the plaintiff or complainant to prove by legal evidence its existence, and this can be done only by the production or proof of the execution and contents of the written agreement, or some note or memorandum thereof, executed according to the provision of the statute of frauds. It has been held that it is not necessary in a complaint for the contract to be stated in any manner differing from that which was sufficient at common law: Wakefield v. Greenhood, 29 Cal. 599; Vassault v. Edwards, 43 Id. 463; McDonald v. Mission View Homestead Association, 51 Id. 210, recognizing the correct ness of the rule that in support of the complaint it will be presumed that the contract declared on complied with the statute of frauds.

Damages, averment of. - General damages need not be expressly detailed or described in the complaint to authorize a recovery thereof, and by general damages in this regard are meant damages which are the nccessary and natural result of the injury complained of: Laraway v. Perkins, 10 N. Y. 371; Jutte v. Ilughes, 67 Id. 267; Fitch v. Fitch, 3 Jones & S. 302; Squier v. Gould, 14 Wend. 159; Argotsinger v. Vines, 82 N. Y. 308; Phillips v. Hoyle, 4 Gray, 568; Camden etc. Oil Co. v. Schlens, 59 Md. 31; but a gross amount as a consequence of the injury is all that need be stated: See Harrington v. St. Paul etc. R. R.

Co., 17 Minn. 215; Eten v. Luyster, 5 Jones & S. 486; Louisville etc. R. R. Co. v. Smith, 58 Ind. 575. Where, however, the damages, though the natural consequence of the act, are not necessarily the result of it, they should be specifically averred: Low v. Archer, 12 N. Y. 277; Donnell v. Jones, 13 Ala. 490; Bogert v. Burkhalter, 2 Barb. 525; Neary v. Bostwick, 2 Hilt. 514; Baldwin v. New York etc. Nav. Co., 4 Daly, 314; Taylor v. Monroe, 43 Conn. 36; Nunan v. City of San Francisco, 38 Cal. 689; Rice v. Coolidge, 121 Mass. 393; Burrage v. Melson, 48 Miss. 237; Brackett v. Edgerton, 14 Minn. 174; the reason being to give the defendant an opportunity to procure proof to rebut such damages, or the extent or amount thereof: Shaw v. Hoffman, 21 Mich. 151; Solms v. Lias, 16 Abb. Pr. 311. Special damage need only be averred where the right of action depends upon the fact that damage has been sustained: Baggott v. Boulger, 2 Duer, 160; Mo lony v. Dours, 15 How. Pr. 261; McTavish v. Carroll, 13 Md. 429; Roberts v. Hyde, 15 La. Ann. 51; and such special damage must be fully and accurately stated: Havermeyer v. Fuller, 60 How. Pr. 316. The right to sue for slander where the words are not actionable depends upon the fact that special damage has been sustained, and it must, therefore, in such cases be alleged: Bassell v. Ellmore, 65 Barb. 627; 48 N. Y. 561; Anonymous, 60 N. Y. 262; S. C., 19 Am. Rep. 174; Like v. McKinstry, 41 Barb. 186; Kendall v. Stone, 5 N. Y. 14; Foulger v. Newcomb, L. R. 2 Ex. 327. But special damage need not be alleged or proved in an action for slander upon words actionable per se; Yeates v. Reed, 4 Blackf. 463; S. C., 32 Am. Dec, 43; Newbit v. Statuck, 35 Me. 315; S. C., 58 Am. Dec. 706. Other instances are where in trespass de bonis asportatis expenses of recovering possession are sought: Gray v. Bullard, 22 Minn. 278; or actions for recovery, in malicious prosecution, of costs and counsel fees for defending the prosecution: Thompson v. Lumley, 7 Daly, 74; recovery for loss of rents, in an action for injury to realty; Squier v. Gould, 14 Wend. 159; Potter v. Fremont, 47 Cal. 165; or for damages for detention after expiration of a tenant's term: Rothschild v. Williamson, 83 Ind. 387.

Private statutes, how pleaded. - See § 88 [87.], post, and note.

V.

Judgments, how pleaded. The pleader may merely state that a judgment has been duly made or given, without setting out the facts showing jurisdiction: Chemung C. Bk. v. Judson, 8 N. Y. 254; Culligan v. Studebaker, 67 Mo. 372. But compare Dick v. Wilson, 10 Or. 490. If the allegation is controverted, it is then the duty of the party pleading to establish the jurisdiction on the trial. An averment that the judgment was duly "rendered" has been held insufficient: Young v. Wright, 52 Cal. 407; nor is the allegation that it was "entered" sufficient: Hunt Dutcher, 13 How. Pr. 538. But this does not apply to foreign judgments; for it is held a complaint on such a judgment must either aver the fact of the existence of a general jurisdiction in the court where the judgment was rendered or of a limited jurisdiction extending to the cause of action for which the judgment was recovered, and that the court had obtained jurisdiction of the person of the defendant: McLaughlin v. Nichols, 13 Abb. Pr. 244; or the transcript of the judgment must show the jurisdiction of the court on its face, and be set forth in the complaint: Lowv. Burrows, 12 Cal. 181. As to pleading judgments of courts of limited jurisdiction, see § 87 [86], post.

Demand of relief or judgment. -Though the plaintiff must demand the relief which he claims, this demand constitutes no part of the issues to be tried: Hall v. Hall, 38 How. Pr. 97; Culver v. Rogers, 33 Ohio St. 546. He is not confined to one kind of relief, but may demand any relief which he supposes himself entitled to: Hall v. Hall, 38 How. Pr. 97. There is no rule of pleading which requires a party to aver the precise amount he claims; but he may recover an amount less than that which is stated in the complaint: Meck v. McClure, 49 Cal.

627.

And a plaintiff should not be thrown out of court when an answer has been filed because he prayed for too much or too little or wrong relief: Murthav. Curley, 90 N. Y. 372; S. C., 12 Abb. N. C. 12; S. C., 3 Civ. Proc. R. 1. Where the defendant answers, the court may give such relief as the parties are entitled to, whether demanded in the complaint or not: Armitage v. Pulver, 37 N. Y. 494; Jones v. Butler, 30 Barb. 641; 20 How. Pr. 189; Marquat v. Marquat, 12 N. Y.

336; Hopkins v. Lane, 2 Hun, 38; Oct. 11, 1862, Mackey v. Auer, 8 Id. 180. And $65. see Hamilton v. Miller, 31 Ohio St. 87. But the plaintiff cannot, in the absence of an answer, have any relief not demanded in the complaint: Simonson v. Blake, 20 How. Pr. 484; S. C., 12 Abb. Pr. 331; Peck v. N. Y. etc. R. R. Co., 59 How. Pr. 419; S. C., 22 Hun, 129; S. C., 85 N. Y. 246; Bartlett v. Holmes, 12 Hun, 308; S. C., 75 N. Y. 528. But the relief actually granted must be consistent with the case made by the complaint: Bradley v. Aldrich, 40 Id. 504; Graham v. Read, 57 Id. 681; Cowenhoven v. City of Brooklyn, 38 Barb. 9; Brown v. Balde, 2 Lans. 383; S. C., 57 N. Y. 286; Short v. Barry, 40 How. Pr. 210; 58 Barb. 177; Boardman v. Davidson, 7 Abb. Pr., N. S., 439; and no recovery can be had upon a cause of action which has not been pleaded, though issue was joined thereon and trial thereof had: Fisk Pavement and Flagging Co. v. Evans, 5 Jones & S. 482. And see Bailey v. Ryder, 10 N. Y. 363; Saltus v. Genin, 7 Abb. Pr. 193; S. C., 3 Bosw. 250; Atwood v. Lynch, 5 Jones & S. 5; Southwick v. First Nat. Bank, 84 N. Y. 420; Sterlingv. Hanson, 1 Cal. 479; Benedict v. Bray, 2 Id. 256. Where the judgment was for a larger sum than was claimed at the commencement of the action, but the complaint was amended by leave of the court before the commencement of the trial, and the amount claimed by the amended complaint was in excess of the sum for which judgment was given, it was held that the judgment was good: Tully v. Harloe, 35 Id. 306. The relief demanded does not necessarily limit the plaintiff's remedy or fix the character of the action: Corry v. Gaynor, 21 Ohio St. 280; Rindge v. Baker, 57 N. Y. 209; S. C., 15 Am. Rep. 475; Williams v. Slote, 70 N. Y. 601; Reed v. Reed, 25 Ohio St. 422. A complaint is not objectionable because it prays for alternative relief: Young v. Edwards, 11 How. Pr. 201; Linden v. Hepburn, 5 Id. 188; 3 Sand. 668. And see Rogers v. Brooks, 30 Ark. 612; Riddle v. Roll, 24 Ohio St. 572. But it has been held that a demand for relief in the alternative is improper: Durrant v. Gardner, 10 How. Pr. 94; S. C., 10 Abb. Pr. 445.

The general principles of compensatory and punitive damages are de fined by Judge Deady in the charge to the jury in Boyle v. Case, 1 West Coast Rep. 327 (U. S. Dist. Ct., Or.).

237; Frank v. Bush, 63 How. Pr. 282; S. C., 2 Civ. Proc. R. 250; Musgrave v. Webster, 53 How. Pr. 365; Adams v. West Shore etc. R. R. Co., 65 How. Pr. 329. Compare Robertson v. Bennett, 1 Abb. N. C. 476; People v. Whitwell, 62 How. Pr. 383; nor irrelevant facts: Hall v. Bartlett, 9 Barb. 297.

The demurrer does not operate as an absolute admission of facts, but merely operates to admit the facts alleged in the pleading, for the purpose of determining the questions of law raised: Rice v. Rice, 13 Or. 337.

A demurrer is confined to the facts which appear upon the face of the complaint or petition: Wilson v. Mayor etc., 15 How. Pr. 500; S. C., 6 Abb. Pr. 6; Simpson v. Loft, 8 How. Pr. 234; Mayberry v. Kelly, 1 Kan. 116; Coe v. Beckwith, 31 Barb. 339; S. C., 19 How. Pr. 398; Aurora v. Cobb, 21 Ind. 492; Davy v. Betts, 23 How. Pr. 396; Collins v. Davis, 57 Iowa, 256; and an objection to facts which do not so appear should be taken by answer. See § 70 [69], post; Powers v. Ames, 9 Minn. 178; Getty v. Hudson River R. R. Co., 8 How. Pr. 177; Irving Nat. Bank v. Corbett, 10 Abb. N. C. 85; Gillam v. Sigman, 28 Cal. 637; Moore v. Hobbs, 77 N. C. 65.

Special demurrers are not allowed, but if allegations are open to objection for uncertainty or indefiniteness, the remedy is by motion, under § 85 [84], to make the same more definite and certain: Neis v. Yocum, 9 Saw. 25. Thus, when time is not an essential element of a cause of action, a demurrer will not lie to a complaint for want of a date to a material fact alleged therein, but the remedy is a motion to make more definite and certain: Conroy v. Oregon Const. Co., 10 Saw. 630.

Parol demurrers are not recognized in this state: English v. Savage, 5 Or. 518.

A demurrer cannot be stricken out on motion: Cohen v. Ottenheimer, 13 Or. 220.

Pleading over after demurrer overruled amounts to an abandonment of the demurrer: Wells v. Applegate, 12 Or. 208; Richards v. Fanning, 5 Id. 356; Irvine v. Forbes, 11 Barb. 587; Greenwood v. Brink, 1 Hun, 227; Harper v. Leal, 10 How. Pr. 276; Hayes v. Kedzie, 11 Hun, 577; Pottinger v. Garrison, 3 Neb. 221; Union Ins. Co. v. McGookey, 33 Ohio St. 555; Carson v. Osborn, 10 B. Mon. 156; Jones v.

66.

Terry, 43 Ark. 230; and a waiver of Oct. 11, 1862, error in overruling it: Richards v. Fanning, 5 Or. 356; Winter v. Norton, 1 Id. 42; or in sustaining it, where one pleads over by filing an amended complaint or answer, as the case may be: Huffman v. McDaniel, 1 Id. 261; and it ceases to be part of the record: Wells v. Applegate, 12 Id. 208; Brown v. Saratoga R. R. Co., 18 N. Y. 495. And see Wheelock v. Lee, 74 Id. 495; S. C., 5 Abb. N. C. 72; Overland Dispatch Co. v. Wedeles, 1 N. Mex. 528.

Objections not taken by demurrer or answer are waived, excepting only the objection to the jurisdiction of the court and that the complaint does not state a cause of action: See post, § 71 [70].

Demurrer to answer: See § 77 [76], post.

Objections must be distinctly specified: See § 68 [67], post. A de

Want of jurisdiction.. murrer for want of jurisdiction by a court of general jurisdiction lies only where the want thereof affirmatively appears from the face of the pleading: Doll v. Feller, 16 Cal. 433; Johnson v. Adams Tobacco Co., 14 Hun, 89; Crowley v. Royal Exchange Shipping Co., 2 Civ. Proc. R. 174; Wilson v. Mayor etc., 15 How. Pr. 500; S. C., 6 Abb. Pr. 6. "That the court has no jurisdiction of the person" means that the defendant is not subject to the jurisdiction of the court, not that he has not been properly served with original process: Nones v. Hope Mutual Ins. Co., 5 How. Pr. 96; S. Č., 8 Barb. 541; Ogdensburgh etc. R. R. Co. v. Vermont etc. R. R. Co., 16 Abb. Pr., N. S., 249. If the suit has been irregularly commenced, the defendant's remedy is by motion against the irregularity: Nones v. Hope Mutual Ins. Co., 5 How. Pr. 96; S. C., 8 Barb. 541. A demurrer "that the court has no jurisdiction, either of the persons of the defendants or of the subject of the action," is sufficiently explicit: Kent v. Snyder, 30 Cal. 666; Elissen v. Halleck, 6 Id. 386; and so of a demurrer "that the complaint does not state facts sufficient to constitute a cause of action: Elissen v. Halleck, supra. The objection to the jurisdiction is not waived, even if not taken advantage of by demurrer or answer: See $71 [70], post; and the objection may be afterwards raised at any time, and even on appeal: Hotchkiss v. Elting, 36 Barb. 58.

Want of capacity to sue. When the defect of want of capacity to sue appears on the face of the complaint, the objection should be taken by demurrer, and not by answer: Matthews v. Stietz, 5 Civ. Proc. R. 235; Hobart v. Frost, 5 Duer, 672; Myers v. Machado, 6 Id. 678; S. C., 14 How. Pr. 149; Haskins v. Alcott, 13 Ohio St. 210. It is not a good ground of demurrer that it does not appear in the complaint that the plaintiff has the legal capacity to sue. The omission must be taken by answer: Phoenix Bank v. Donnell, 40 N. Y. 410; and see District No. 110 v. Feck, 60 Cal. 403, where the objection was raised on demurrer that the complaint did not show plaintiff to have been duly created a land district, the objection in this form being overruled. See also Phoenix Bankv. Donnell, 41 Barb. 571; S. C., 40 N. Y. 410; Doll v. Feller, 16 Cal. 432; Minneapolis Harvester Works v. Libby, 24 Minn. 327; State v. Torinns, 22 Id. 272; American Button Hole Co. v. Moore, 2 Dakota, 280, 290. If actual want of capacity does not appear, the objection must be taken by answer: Barclay v. Quicksilver Min. Co. 6 Lans. 25; Swamp Dist. v. Feck, 60 Cal. 403. A demurrer on this ground must relate exclusively to some legal disability of the plaintiff, such as infancy, idiocy, coverture, or the like, and not to the absence of facts sufficient to constitute a cause of action: De Bolt v. Carter, 31 Ind. 355; People v. Crooks, 53 N. Y. 648; Winfield Town Co. v. Maris, 11 Kan. 128; Dale v. Thomas, 67 Ind. 570; Farrell v. Cook, 16 Neb. 483. And see Bar tholomew v. Lyon, 67 Barb. 86; Grantman v. Thrall, 44 Id. 173; Robbins v. Wells, 26 How. Pr. 15; S. C., 18 Abb. Pr. 191; Jones v. Steele, 36 Mo. 324; McNair v. Toler, 21 Minn. 175. That it applies to all cases where the plaintiff, though having an interest in the subject of the suit and the relief demanded, does not show a right to appear in court and demand such relief in his own name, see Bulkley v. Big Muddy Iron Co., 77 Mo. 105. The infancy of the plaintiff is a want of capacity to sue: Jones v. Steele, 36 Mo. 324; Irvine v. Irvine, 5 Minn. 61. In pleading it, the demurrant ought not to say, for example, that plaintiff has no legally appointed guardian, but the demurrer ought to go to the sufficiency of the plaintiff's allegation of appointment: Morrell v. Morgan, 65

Cal. 575. If the fact appear on the face of the complaint that the plaintiff, suing as a corporation, is not such in fact, this is proper ground of demurrer: Phoenix Bank v. Donnell, 41 Barb. 571; S. C., 40 N. Y. 410. Compare Rauh v. Board of Commissioners, 66 How. Pr. 368; Tolmie v. Dean, i Wash. 46; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; but where the complaint on its face does not show such fact, the objection must be taken by answer: Phoenix Bank v. Donnell, 49 Id. 410. The objection is waived if not taken either by demurrer or answer: Hastings v. McKinley, 1 E. D. Smith, 273; Tapley v. Tapley, 10 Minn. 448; Palmer v. Davis, 28 N. Y. 242; Van Amringe v. Barnett, 8 Bosw. 357; Hoop v. Plummer, 14 Ohio St. 448; Jones v. Steele, 36 Mo. 324; Pettigrew v. Washington Co., 43 Ark. 33.

Another action pending. — lf the objection does not appear on the face of the complaint, it must be taken by answer: Hornfager v. Hornfager, 1 Code R., N. S., 412; Burrowns v. Miller, 5 How. Pr. 51; but unless taken by demurrer or answer, it is waived: Wright v. Masseras, 56 Barb. 321; Bishop v. Bishon, 7 Rob. (N. Y.) 198. It cannot be raised by a motion to stay the second suit until the determination of the first: Bishop v. Bishop, 7 Id. 198; nor by a motion to dismiss the later one: Morton v. Sweltser, 12 Allen, 134. The objection, however, can rarely be taken by demurrer, for it is not often that in commencing a second action for the same cause and between the same parties, the pleader will recite the fact of the former action, and the objection is therefore generally raised by answer, in pursuance of the provisions of $70 [69]. But for convenience, and for the reason that the practice and grounds are the same, whether the objection be taken by answer or demurrer, cases are here cited to show when the objection is good, some of which arose upon answer setting up the objection, and some where the objection was taken by demurrer.

The courts usually entertain the objection upon the ground that the subsequent action is unnecessary, and therefore vexatious: State v. Ďougherty, 45 Mo. 294. In Gransky v. Ray, 52 N. H. 513, it is held, however, that the pendency of a prior action will be cause for abatement, without in