was raised as to duplicity in the first case, it was in the last, and it was held to be single (not needing to be cured by the statute of William III.).

Here the duty was to use the money in behalf of the association; there, to account for it. Here, then, the breach is that he did not so use the money, and the other allegations which follow are merely connected with that averment, to make this single breach complete and full by adding, not new breaches and independent ones, but facts showing him liable for not so using the money, because he had not, instead of that, paid it over or in any way accounted for it. But these last allegations do not seem meant, nor are they fairly to be construed, as separate and independent breaches. They are rather component parts or elements tending to show the first breach existing unatoned for, and not in any way satisfied or commuted.

Strange as it may seem, also, it is not averred. that any duty to pay over the balance existed, and hence of necessity on that account, also, an averment of not paying them over cannot be considered as an averment of a second distinct breach of what there is not stated to have been any duty to be broken or fulfilled. For reasons like these the replication is adjudged good.

§ 980. Formal objections.- Where objections merely formal are stated as causes of demurrer the party taking them is entitled to the benefit of them if they are well founded. Lockington v. Smith, Pet. C. C., 466.

§ 981. Speaking demurrers.- When a demurrer states a fact which does not appear on the face of the pleading demurred to, it is a speaking demurrer and is bad. Lamb v. Starr, Deady, 350.

§ 982. A demurrer when overruled is waived by a replication subsequently filed and ceases to be a part of the record. Young v. Martin, 8 Wall., 354.

§ 983. Withdrawal of plea to admit demurrer.- The court will not permit a plea to the merits to be withdrawn to enable the defendant to demur specially. Alricks v. Slater, 1 Cr. C. C., 72.

§ 984. A defendant will be permitted to withdraw the general issue and file a general demurrer. Deakins v. Lee, 1 Cr. C. C., 442.

§ 985. Waiver of by pleading over.- Pleading over to a declaration adjudged good on demurrer, without any reservation, is a waiver of the demurrer. Watkins v. United States, 9 Wall., 759; Campbell v. Wilcox, 10 Wall., 421. $986. Leave to reply after demurrer overruled.

After a demurrer to a plea of set-off overruled, plaintiff should have leave to reply. Rochell v. Phillips, Hemp., 22.

§ 987. Withdrawal of demurrer to plead de novo.- After judgment for the plaintiff on the defendant's demurrer, and writ of inquiry awarded, the court will not permit the defendant to plead de novo unless he will withdraw his demurrer. Woodrow v. Coleman, 1 Cr. C. C., 192.

$988. Demurrer to issue overruled — Same issue cannot be again tendered.— The court, in the present case, would not permit the defendant to tender an issue which he had refused to join, and to which he had demurred when tendered by the plaintiff, there having been judgment rendered against him by the United States supreme court on the demurrer. Hodgson v. Marine Ins. Co., 1 Cr. C. C., 569.

$ 989. A demurrer in a case proceeded on under the civil law does not prevent the party who demurred controverting the facts confessed in the demurrer and compelling the opposite party to prove them. Crawford v. The William Penn, 3 Wash., 484.

§ 990. The legal effect of a demurrer to a scire facias is the same as that of a demurrer to a declaration. Vermont v. The Society for Propagating the Gospel, 1 Paine, 652.

§ 991. How far a demurrer cuts back.-On demurrer the court will give judgment upon the whole record. Hart v. Rose,* Hemp., 238.

§ 992. On a demurrer to any pleading the court may go back to the first fault. Greathouse v. Dunlap, 3 McL., 303; Sprigg v. Bank of Mount Pleasant, 10 Pet., 257; Blossberg, etc., R. Co. v. Tioga R. Co., 5 Blatch., 387; Wright v. Johnson, 8 Blatch., 150.

§ 993. Defects in a declaration may be waived by pleading to it. But if the plaintiff demurs to the plea the court will look to the first defect in pleading. Bank of Illinois v. Brady, 3 McL., 268.

§ 994. The rule that a demurrer goes back to the first substantial fault in the pleadings apVOL. XXIV-43

673

plies, although a former demurrer to the faulty pleading has been overruled and waived by pleading over. Aurora v. West,* 7 Wall., 82.

§ 995. On demurrer to any pleadings which are in bar of the action the judgment for either party is final, just as it would have been on an issue of fact joined on the same pleading, and found for such person, and such judgment may be pleaded in bar of another suit. Ibid.

§ 996. Demurrer reaches back to first defective pleading. Clearwater v. Meredith, 1 Wall.,

25.

§ 997. When a demurrer to a replication has been sustained, the filing of a replication de novo waives the plaintiff's right to question the correctness of the decision. Ibid.

§ 998. A demurrer to a special plea ordinarily cuts back to the declaration, but not when the general issue has been pleaded. McDonald v. Orvis, 5 Biss., 183.

§ 999. A demurrer ordinarily goes back to the first fault in pleading, but does not go beyond the general issue. Townsend v. Jemison, 7 How., 706.

§ 1000. The rule that a demurrer opens the record, and allows judgment to be given against the party who committed the first fault in pleading, does not apply when that fault is one of form merely and not of substance. Railroad Co. v. Harris, 12 Wall., 65.

§ 1001. It is an ancient rule in pleading that upon demurrer the whole record is presented, and judgment goes against the party who commits the first substantial fault. The same rule is applicable under the code of New York, United States v. Central Nat. Bank, 10 Fed. R., 612.

§ 1002. Upon demurrer to a plea in abatement the court will look back to the first fault in pleading, and if the declaration is bad the judgment will be against plaintiff. Bockee v. Crosby, 2 Paine, 432.

§ 1003. A demurrer in scire facias proceedings does not reach back to the original suit, nor to any proceedings before those pending. Dickson v. Wilkinson,* 3 How., 57.

§ 1004. Upon a general demurrer judgment must be against the party who commits the first substantial fault in pleading. McCue v. Corporation of Washington,* 3 Cr. C. C., 639. § 1005. General and special.- A special demurrer operates as a general demurrer as to all the pleadings of the party demurring. Ibid.

§ 1006. A general demurrer to a declaration will be overruled if the latter contain one good count. Ibid.

§ 1007. A special demurrer brings into question the substantial validity of the pleading of the demurring party. Vowell v. Lyles, 1 Cr. C. Cr., 428.

§ 1008. If a complaint is defective there should be a special demurrer to the defective part. Lafleur v. Douglass,* 1 Wash. T'y, 215.

§ 1009. A special demurrer will not be admitted to set aside an office judgment. Whetcroft v. Dunlop, 1 Cr. C. C., 5.

§ 1010. A special demurrer may be filed in all actions in the federal courts. Cage v. Jeffries, Hemp., 409.

§ 1011. What is admitted by a demurrer.- A demurrer only admits facts which are well pleaded. Commercial Bank of Manchester v. Buckner, 20 How., 108; Greathouse v. Dunlap, 3 McL., 303.

§ 1012. A demurrer admits no conclusions of law, but only facts well pleaded; therefore, upon demurrer, questions as to certain legal conclusions, or as to the admissibility of certain evidence, are open to the defendants. Dillon v. Barnard, 1 Holmes, 386.

§ 1013. A demurrer in one cause between the same parties, whereby a particular fact is considered in law as admitted, is not evidence of that fact in another cause between the same parties. Auld v. Hepburn, 1 Cr. C. C., 122.

§ 1014. Facts well pleaded are admitted by demurrer, but not matters of inference or argument, nor the alleged construction of an instrument when the instrument itself is set forth, and the construction assumed is repugnant to its language, nor any mere legal conclusions. A demurrer cannot be held to work an admission that parol evidence is admissible to enlarge or contradict a sealed instrument which has become a matter of record. United States v. Ames, 9 Otto, 35.

§ 1015. In an action by the United States to recover a penal sum under the revenue laws. the plaintiff alleged fraud upon the government by the omission of certain acts prescribed by law. The answer denied the allegation, and averred whatever fraud was committed was effected through other means. To this the plaintiff demurred, and it was held, as the demurrer admitted the truth of the answer, the plaintiff had admitted away its cause of action. United States v. Chouteau, 12 Otto, 603.

§ 1016. A defendant, being sued on certain bonds, made defense that plaintiff bought the bonds with notice of a certain defect that would render the instruments invalid. Plaintiff replied, denying the notice, and defendant demurred. Held, that this demurrer admitted the

facts of the plea to be untrue, and that plaintiff was a bona fide holder without notice. City of Lexington v. Butler, 14 Wall., 282.

§ 1017. A demurrer for want of jurisdiction does not admit the jurisdiction of the court. Donaldson v. Hazen, Hemp., 423.

§ 1018. Defendants made a bill of exchange as officers of the corporation, and were sued upon it as individuals. The bill was determined to be a corporation bill, and it was held that the allegation in the declaration that the defendants made “their” bill was inconsistent with the terms of the writing sued upon, and was not admitted by demurrer. Buchanan, 15 Otto, 416.

Hitchcock v.

§ 1019. Action by the postmaster-general against a deputy-postmaster and his sureties on a bond executed by them. The sureties pleaded that the plaintiff did not, as he was bound by law to do, call upon the deputy to settle his accounts, or cause suits to be commenced against him for not so settling them, and paying the balance due by him; nor did he notify the sureties of the defaults of the deputy, but fraudulently, and in violation of his duty to the United States and to the sureties, neglected to bring such suits and to give notice. The plaintiff demurred generally. The demurrer to the plea admitting the fraud stated in it, the plaintiff cannot recover. Postmaster-General v. Ustick, 4 Wash., 347.

§ 1020. Demurrer to several pleadings. If a demurrer be filed to a declaration which sets forth several breaches, and one breach is well averred, the demurrer must be overruled. Gill v. Stebbins,* 2 Paine, 417.

§ 1021. When a demurrer is taken "to the complaint," which consists of several counts, if either count is good the demurrer will be overruled. Parrott v. Barney, Deady, 405.

§ 1022. In the theory of pleading different counts are supposed to represent different claims or offenses; and upon demurrer it will not be taken for granted that each of two counts is for the same cause of action. So held when the counts were for false imprisonment and malicious prosecution respectively. Castro v. De Uriarte, 12 Fed. R., 250.

§ 1023. When an answer to a declaration sets up several inconsistent defenses, under a system allowing such pleading, a demurer will be overruled if any one of the defenses set up be good. Dallas County v. Mackenzie,* 4 Otto, 660.

§ 1024. When an answer in a suit on county bonds, among other defenses, denies that the bonds were issued by the county, plaintiff should not demur, as by admitting that the bonds were not issued he destroys his cause of action. Ibid.

§ 1025. In covenant where several breaches are assigned, some of which are sufficient and others not, the defendant should only demur to such as are bad; and if he demur to the whole declaration, judgment must be given against him. Gill v. Stebbins, 2 Paine, 417.

§ 1026. Want of proper averments in the declaration cannot be made the ground of a nonsuit. Bas v. Steel, Pet. C. C., 406.

§ 1027. Statute of limitations as subject of.

When it is apparent on the face of a petition the statute of limitations may be set up under a demurrer. Bonnifield v. Price,* 1 Wyom. T'y, 172.

§ 1028. Demurrer overruled on appeal, with permission to plead.- A case came before the United States supreme court on a judgment in a federal circuit court for the defendant, the avowant in replevin, he having demurred to the pleas of the plaintiff in an action of replevin. The court, having reversed the judgment in the circuit court, remanded the cause, with instructions to the circuit court to overrule the demurrer and permit the defendant, the avowant, to plead. Lloyd v. Scott, 4 Pet., 206.

§ 1029. Citizenship as ground of.— A defective allegation of citizenship is a good ground of demurrer. Ketchum v. Driggs, 6 McL., 13.

§ 1030. A defect of jurisdiction on account of citizenship apparent on the declaration may be relied upon by a demurrer, and a plea in abatement is not necessary. Coal Co. v. Blatchford, 11 Wall., 172.

§ 1031. Joinder of counts.-A count alleging the loan of a mare, and an injury of the mare through negligence, may be joined with a count alleging a loan and an agreement to return the mare safe; if such joinder is not strictly proper the remedy is by special demurrer. Dobbin v. Foyles,* 2 Cr. C. C., 65.

§ 1032. Limit to number of demurrers that may be taken.- After defendants had three times demurred to and answered the petition or complaint, the case went to the supreme court, which sustained the petition. Defendant then filed other demurrers, and plaintiff moved to strike them out. Held in the discretion of the court that they should be struck out, as there should be some limit to raising legal objection, and apparently every material defense could be presented on the points already raised. Hitchcock v. Galveston,* 3 Woods, 270.

§ 1033. General and special demurrer.- A general demurrer enables the party to assail every substantial imperfection in the pleadings of the opposite party without particularızıng

any of them in the demurrer; a special demurrer goes to the structure merely and not to the substance, and it must distinctly and particularly specify wherein the defect lies. Martin v. Bartow Iron Works,* 35 Ga., 320.

§ 1034. If a pleading is double it is bad on special demurrer, but the demurrer must point out wherein the duplicity consists. Ibid.

§1035. The ancient rule, that failure of consideration could not be pleaded to a specialty, has been much relaxed. Ibid.

§1036. Patents - Mixed questions of law and fact not subject to demurrer.—Whether a given improvement is a patentable invention is a mixed question of law and fact, and should not, in ordinary cases, be disposed of on demurrer and without the intervention of a jury. Teese v. Phelps, McAl., 19.

§ 1037. Duplicity - Defective allegation of time and place.-Objections to a replication for not alleging time and place, and for duplicity, can be taken by special demurrer only. Blossberg & Corning R. Co. v. Tioga R. Co., 5 Blatch., 387.

§ 1038. No questions not raised by the complaint can be considered on demurrer thereto. Pettit v. Town of Hope, 18 Blatch., 180.

§ 1039. Waste Demurrer, prayer of complaint not noticed on.— The prayer of the complaint in an action of waste, asking for treble damages, will not be noticed by the court in passing upon a demurrer. The relief in such an action depends upon the facts stated and not upon the prayer. Parrot v. Barney, Deady, 405.

§ 1040. Demurrer to "so much of answer as," etc., bad. When an answer sets up a special contract in addition to other matter, a demurrer “to so much of the answer as sets up the special contract" is bad, since the clerk would not know, nor would any one, what is meant by sustaining the demurrer "to so much of the answer as sets up the special contract.” Ormsby v. U. P. R'y Co., 4 Fed. R., 170.

§ 1041. Service of process.- A defendant cannot raise, by demurrer, the question whether he has been properly served with process. Robinson v. Nat. Stock Yard Co., 12 Fed. R., 361. § 1042. Want of jurisdiction, when ground of. The defendant can raise the question of jurisdiction by demurrer only when the want of jurisdiction appears on the face of the pleadings; and if such want does not so appear, and is not taken advantage of by plea to the jurisdiction, it is waived. Bliss v. Burnes, McCahon, 91.

§ 1043. Declaration charged "unlawful building," etc.- Legality of the building not to be decided on demurrer.- In an action to recover damages for injuries to real estate the declaration averred that the defendant, a city of another state, built a dike unlawfully on the Mississippi river, which caused the plaintiff's land to be washed away. Held, upon demurrer, the defendant could not raise the question as to its right to build the dike, but the court must be informed by answer, on trial, whether the dike interfered with the navigability of the river, and transcended the power of the state in the premises. Rutz v. City of St. Louis, 2 McC., 844.

§ 1044. Allegations of fraud - Objections to form must be taken by special demurrer.Under a general demurrer it cannot be objected that a plea which sets up fraud does not give the particular acts constituting the fraud; but such an objection being to the form and not to the substance of the plea, a special demurrer is necessary. Christmas v. Russell, 5 Wall., 290.

§ 1045. Want of stamp on note as required by law, not subject of. The want of a stamp, as required by act of congress, upon a promissory note cannot be taken advantage of upon demurrer, such a note being invalidated for want of a stamp only when the omission is with fraudulent intent, and it being necessary that such fraudulent intent be specially set up or urged at the trial. Moreover, if the declaration avers the making and delivery of a note it implies that the note was properly made, and the existence of a stamp is matter of evidence and not of pleading. Campbell v. Wilcox, 10 Wall., 421.

g1046. Action on judgment— Attachment, levy as ground of.— In an action on a judgment, in which the record shows that a levy upon an attachment has been made, and personal property of the defendant taken into the possession of the sheriff, a defense of payment through such levy cannot be made by demurrer, at any rate unless the record shows that the value of the property taken was equal to the amount of the judgment. Such defense should be pleaded; and it should be affirmatively shown that the property levied on was applied to and extinguished the judgment. Maxwell v. Stewart, 22 Wall., 77.

§ 1047. Marginal memorandum annexed to.- A demurrer, to which is annexed a marginal memorandum stating matters of proof as relied upon to sustain the demurrer, will be set aside. Such matters should be asserted by way of replication. Alexander v. Willet,* 1 MacArth., 564.

§ 1948. Demurrers raising questions of fact.- Claim for increase in salary as a "laborer" under a joint resolution of congress. Special demurrer that the claimant was employed in a

certain menial service, which placed his compensation under a certain act of congress. The menial service, specified is a fact, and cannot be considered under a demurrer. Demurrer overruled. Graham v. United States,* 1 N. & H., 183.

§ 1049. Written contracts set out in declaration, when validity of may be decided on demurrer. When a declaration brought up on demurrer sets out the written contracts on which the action rests the court may examine the contracts and decide as upon their validity and construction. This rule applies, however, only when the contracts are set out in hæc verba. If a partial statement only is made, and defendant wishes to bring up the question, he should crave oyer and then demur. Hobson v. McArthur,* 3 McL., 241.

§ 1050. Informal plea to merits Demurrer, not motion to strike out, proper. When a plea, though informal, goes to the substance of an action, as nil debet to debt on a bond, the proper practice is to demur, and a motion to strike out the plea will be overruled. United States v. Spencer,* 2 McL., 405.

§ 1051. When may be struck out by party demurring.— A defendant who had demurred to a declaration, and within due time pleaded the statute of limitations, moved to strike out his own demurrer and leave the plea. The motion was granted against the opposition of plaintiff, who contended that the whole pleading was inconsistent and should be treated as a nullity. Suckley v. Slade,* 5 Cr. C. C., 123.

§ 1052. Variance between writ and declaration cannot be called in question by demurrer. Wilder v. McCormick, 2 Blatch., 31.

§ 1053. On a demurrer to the evidence everything is admitted which the jury could reasonably infer from the evidence. United States Bank v. Smith,* 11 Wheat., 171.

§ 1054. Venue, special demurrer to.— A declaration containing a defective venue, or none at all, should be specially demurred to. The defect is cured by verdict or judgment. Crittenden v. Davis,* Hemp., 96.

§ 1055. No cause of action — Iowa code.— Under the Iowa code a demurrer is properly overruled when the declaration, by a fair and natural construction, shows a substantial cause of action. McFaul v. Ramsey, 20 How., 523.

§ 1056. Statute of limitations as subject of Wisconsin practice.- Under the Revised Statutes of Wisconsin, and the decisions of the state courts thereon, the statute of limitations may be brought up by demurrer if the bar appears upon the face of the declaration. Chemung Canal Bank v. Lowery, 3 Otto, 72.

The

§ 1057. Plea and demurrer in same case — Virginia act. 1792, authorizes a defendant to plead and demur in the same case. cil of Alexandria, 3 Pet., 398.

act of Virginia, passed in Fowle v. Common Coun

§ 1058. Under the law of Virginia the defendant may demur and plead to issue to the whole declaration. Fowle v. Alexandria, 3 Cr. C. C., 70.

§ 1059. Special demurrers abolished in Arkansas.- In the territory of Arkansas, defects in pleading, only reachable at common law by special demurrer, must be disregarded, special demurrers having been abolished by statute. Chandler v. Byrd, Hemp., 222.

4. Replication and Subsequent Pleadings.

Issue.

SUMMARY - Replication to plea of authority, § 1060.- Replication de injuria, § 1061. - Verdict on two issues, § 1062.- Replication insufficient in substance, § 1063.- Rejoinder, requirements of, § 1064.- Nil debet a bad rejoinder in action on a bond, § 1065.

§ 1060. When defendant in an action of trespass justifies on the ground that the act complained of was done by him in the course of his duty as collector of taxes, a replication that the assessment was not chargeable against plaintiff, and that his taxes had all been paid, is bad, as the collector is a ministerial officer, and cannot examine the justice of an assessment. Erskine v. Hohnbach, §§ 1066–70.

§ 1061. A replication de injuria puts in issue all the material averments of the plea, and may be used when defendant justifies under an authority not from a court of record. Ibid. § 1062. A verdict rendered on two issues, one material and the other immaterial, will stand unless the court exercises its discretion to award a repleader. Ibid.

§ 1063. Where a marshal, sued on his official bond for taking insufficient security, pleaded that he had levied on goods and lands of sufficient value, a replication showing that the lands levied upon had been previously attached and would not satisfy the debt was held insufficient, as not fully answering the plea, which mentioned goods as well as lands. Sedam v. Taylor, § 1071.

§ 1064. A rejoinder must fully answer the breach alleged in the replication, and must tender issue on a single point. United States v. Cumpton, §§ 1072, 1073.

§ 1065. Nil debet is a bad rejoinder in an action on a bond. Ibid.

[NOTES.-See §§ 1074-1101.]