Konig a, Nott.

The answer to this proposition is simple. The defendant may demur to the complaint, when it shall appear upon the face thereof that the court has no jurisdiction of the defendant or the subject of the action. (Code, § 144.) And when that does not appear upon the face of the complaint, the objection may be taken by answer. (Code, § 147.) It does not appear upon the face of the complaint, either that the court has no jurisdiction of the defendant or of the subject-matter of the action, and therefore the cause of demurrer does not exist. If the court in fact has no such jurisdiction, the defendant must set it up by answer, and his demurrer upon that ground fails.

I think the judgment of the special term should be reversed.

HILTON, J. (dissenting.)-The complaint alleges that on Sept. 1, 1857, at New York City, the plaintiff was employed as a servant in the defendant's family, and on that day the defend ant, "with force and arms, ill-treated, and an indecent assault made upon her, and then and there carnally knew her, whereby she became pregnant and sick with child, and so remained for nine months thereafter, at the expiration of which time she was delivered of the child.

"That in consequence of such indecent assault she has suffered greatly in her health, because sick and disordered, and so continued for six months, suffering great pain; was prevented from attending to her business, and has been greatly disturbed in her peace of mind, and otherwise greatly injured, to her damage $1000, for which judgment is demanded."

The defendant demurs upon two grounds.

1st. That this court has no jurisdiction of the person of the defendant or the subject of the action.

2d. That the complaint does not state facts sufficient to constitute a cause of action.

For the reasons stated by Judge Brady, I am of opinion that the first ground of demurrer is untenable; but I do not concur with him in his conclusion that the complaint states facts sufficient to constitute a cause of action.

It is a general rule in the construction of a pleading, that the court must assume that the party has stated his case in the best way in which it is capable of being stated; and this rule has not been altered by the Code (§ 159), which requires pleadings

Konig a. Nott.

to be liberally construed, with a view to substantial justice between the parties.

Liberally, as here used, means, that if, from the whole pleading, it can be seen that a party has a cause of action or defence, he shall not be deprived of it because he has stated it in an improper or informal manner; but it does not mean that substantial averments may be omitted, and the omission disregarded.

It is claimed by the plaintiff that the complaint shows, as a cause of action, an indecent assault and battery, committed by the defendant on her, whereby she was injured and sustained damage.

An action of this nature is so easily stated,-rests upon such simple facts, that there should be no difficulty in determining whether the allegations in the complaint are such as, liberally construed, show that such a cause of action really exists.

To my mind, the complaint does not show such a cause of action. It does not in terms allege that a rape was committed upon her, and a felony of such a nature should not be presumed in the absence of the material averment that the intercourse was a ravishment, to which she in nowise consented.

Nor can we infer from it that the defendant committed an assault and battery upon her, as the legal signification of the language used is, that he threatened her, without touching her person; but it is not stated that by this threatening she was in any degree put in bodily fear.

Upon the most liberal construction of the complaint, this must be considered as an action brought for debauching and seducing the plaintiff; and as it is conceded that an action of such a nature cannot be maintained by the party seduced (Bartley a. Richmeyer, 4 Comst., 48; Whitney a. Hitchcock, 4 Den., 461), I am of opinion that the order appealed from, sustaining the demurrer. should be affirmed.

Dillaye a. Hart.

DILLAYE a. HART.

Supreme Court, First District; Special Term, April, 1859.

ASSESSMENT OF DAMAGES.

Upon application to the court for relief upon failure to answer in an action for damages for a wrong, the court has power to direct the damages to be assessed at the circuit.

Where the cause of action in such case is one that has excited public attention, and it is probable that the question as to what extent provocation may be admitted in mitigation will arise, a motion that the assessment of damages should be had at the circuit should be granted, in order to give the parties the right of challenge, and other advantages of a regular trial of the question.

Application for judgment.

The action was for assault and battery. The defendant appeared, but did not plead to the complaint, and the plaintiff now applied to the court for the relief demanded. In so doing, he moved for an order that the damages be assessed at the circuit, instead of by a sheriff's jury.

D. C. Brown, for the motion, urged-I. That if the damages were to be assessed by a sheriff's jury, the plaintiff could not have the opportunity of challenging the jury.

II. That, as important questions of law as to the admissibility or rejection of evidence, in mitigation of damages, were likely to arise, the same should be heard by a judicial, rather than a ministerial officer, especially as there was reason to apprehend a political prejudice.

B. Galbraith, opposed.

CLERKE, J.-The writ of inquiry is superseded by the Code of Procedure, which directs, where the action does not arise upon contract for the recovery of money only, and the defendant fails to answer, that the court, upon application for judgment, if damages

Conklin a. Stamler.

for any tort are sought to be recovered, may order them to be assessed by a jury. Whether this includes a sheriff's jury, it is, perhaps, not necessary on this occasion to inquire. It is quite certain that the court retains the power to have the damages assessed at the circuit.

I am not at all afraid that the political predilections of the sheriff would, as has been hinted, consciously or unconsciously bias his conduct in assessing the damages before a jury of his own; but, for other reasons, I think it is expedient that the cause should be sent to the circuit. The occurrence upon which the action is founded has produced, I am informed, some excitement in political circles; and it is very probable the question, to what extent provocation may be admitted in mitigation of damages, may arise on the trial. Under such circumstances, both parties should have the benefit of all the advantages which a regular trial at the circuit can afford; and one of the most important in a case of this nature is, that they both should have the right of challenge. The persons comprising a sheriff's jury cannot be challenged. The reasons assigned in the books are, because an assessment by a sheriff's jury is only an inquest of office, and the sheriff does not act in a judicial capacity. (2 Johns., 91.)

Motion granted, with $10 costs, to abide event.

CONKLIN a. STAMLER.

New York Common Pleas; General Term, June, 1859.

EVIDENCE.-BOOKS OF ACCOUNT.-EXAMINATION OF PARTIES.

The plaintiff's books of account are not evidence in his favor sufficient to support his action, upon mere proof that he had no clerk or book-keeper, and that persons dealing with him had settled with him by his books. It must also be proved that the defendant dealt with the plaintiff, and that some of the articles sought to be recovered for, were delivered.

It seems, that since the statute authorizing parties to testify as witnesses in their own behalf, books of account of a party are no longer sufficient evidence on his

Conklin a. Stamler.

behalf; and that he can use them only to refresh his memory in testifying himself, or where, from failure of recollection, he is compelled to rely upon them alone.

The history of the rule allowing the use of a party's books of account as evidence in his own behalf.

Appeal from a judgment.

The facts appear in the opinions.

BY THE COURT.-BRADY, J.-The only proof made in the court below, was that the plaintiff had no clerk or book-keeper, and that persons dealing with him had settled with him by his books. There is no evidence either that the defendant dealt with him, or of the delivery of any one of the articles named in the bill of items. The courts have required, in similar cases, that a foundation should be laid for the introduction of this kind of evidence, which consists of proof that the plaintiff had no clerk; that some of the articles charged have been delivered; that the books produced are the account-books of the party; and that he keeps fair and honest accounts, and this by those who have dealt and settled with him. (Per curiam, Vos burgh a. Thayer, 12 Johns., 461; Lemuel a. Sutherland, 11 Wend., 568.)

The admissibility of the books, on such proofs, is put upon the ground of necessity, arising from the former incompetency of the claimant to be a witness in his own behalf. The reason of the rule seems to have been destroyed by the act of the Legislature, authorizing the examination of parties in their own. behalf; but, however that may be, the testimony on behalf of the plaintiff was not sufficient to make the book produced evidence, and the judgment must be reversed. There was neither evidence that the defendant dealt with the plaintiff, nor of the delivery of any of the articles.

DALY, F. J.-In Morrill a. Whitehead (4 E. D. Smith, 239), it was proved that the books produced were the account-books of the party; that he had no clerk, and that he kept fair and honest accounts; but as there was no proof that any one of the services entered in the book had been actually rendered, we reversed the judgment. This is the first case in this State that