dividuals. (94 N. Y., 302; 104 N. Y., 543.)

It is a general rule that the character in which the parties appear should be clearly and definitely stated in the complaint, so that the defendant may, if he sees fit, take issue on such allegation. (93 N. Y., 474, 113 N. Y., 662; 13 Hun, 288.) As to pleading that the defendant is a corporation, see § 1775.

(2) Facts alleged by plaintiff must be sufficient to constitute a cause of action. If any of the essential elements of a cause of action be omitted, the defendant may demur or move to dismiss the complaint. (76 N. Y., 397; 87 N. Y., 197.)

(3) Facts must be pleaded and not merely conclusions of law. If, however, the facts upon which the conclusions of law rest are properly stated, it will then do no harm to wind up the statement with the conclusions of law flowing from the facts. (76 N. Y,, 284; 105 N. Y., 278; 97 N. Y., 520.)

(4) State all the facts necessary to present the essential elements of the particular cause of action and then stop. Do not add matter of surplusage, for this may raise a question as to what is the precise cause of action intended by the plaintiff, whether contract or tort, etc., and an expensive controversy may be needed to determine this point. (43 Hun, 493; 83 N. Y., 245; 59 N. Y., 156.)

(5) State facts and not evidence of the facts. Facts to be alleged in pleading are to be the fundamental proposition of fact, and not the detailed facts which are to be given in evidence. (83 N. Y., 436; 87 NY., 479; 9 Abb. N. C., 48.)

Plaintiff need only state his own qause of action; he should not, in additign thiodeny in the complaint by way

anticipation, defenses which may be asserted by his adversary. (106 N. Y.,

230; 94 N. Y., 329; 90 N. Y., 353.) Conditions precedent, however, must be pleaded by plaintiff. (101 N. Y., 328; 98 N. Y., 377.)

(7) It is not necessary to allege in the pleading what is necessarily implied. Thus in New York, in an action for negligence, the complaint need not allege absence of contributory negligence of plaintiff, for this is involved in the allegation that the injury was caused by the defendant's negligence. It is sometimes, however, better to allege expressly matters which would be implied, so as to avoid all controversy on this point. Thus in a recent case the consideration of a contract was not stated, and the Court of Appeals held that it was necessarily implied, but it required two appeals to decide this point. (110 N. Y., 404.)

(8) If there be a choice of actions, select that one which the evidence will best sustain, and set forth in the complaint only such averments as are appropriate to this form of action. If, e. g., a plaintiff in case of a sale of goods might sue either for breach of warranty or for fraud, but his evidence would best sustain the former action, he should sue upon that, and omit all averments of fraud in his complaint. But if he sue for fraud, he must allege fraud, and if his evidence is not sufficient to prove fraud he will not be allowed to amend his complaint.

(9) Plead facts clearly and state them positively. (94 N. Y., 195; 87 N. Y., 179.) (10) Demand the relief appropriate to the case.

ILLUSTRATIONS.

COMPLAINT IN AN ACTION BY THE HOLDER OF A PROMISSORY NOTE AGAINST

PRIOR ENDORSER.

The plaintiff above named, complaining of the defendant, alleges:

I. That heretofore one John Smith made his promissory note in writing, dated on the day of, 188-, at Albany, N. Y., and thereby promised to pay to William Robinson or order, five hundred dollars with interest, six months after said date, for value received.

II. That the said payee thereafter endorsed the same for value to the defendant, and that thereafter and before this action, said defendant endorsed the same to the plaintiff for value.

III. That when said note became due, the same was duly presented for payment and payment duly demanded, which was refused; of all which due notice was given to the defendant. (See § 533 of Code.)

IV. That no part thereof has been paid. Wherefore the plaintiff demands judgment against the said defendant for the sum of five hundred dollars, together with interest thereon from the-day of, 188-, and the costs of this action.

(Verification.)

(Signature.)

See 88 N. Y., 38; 9 Abb. N. C., 307; 3 How. Pr. N. S., 194; 40 Hun, 108; Boone's Forms of Code Pleading, Form No. 76.

Another mode of pleading is to set forth a copy of the note under § 534 of the Code, with an averment of demand of payment, refusal, and notice of dishonor. (See 1 Keyes, 228.)

John Doe, Plaintiff,

The plaintiff above named, complaining of the defendant, alleges:

I. That on the-day of, 188, at, the defendant, in order to induce the plaintiff to purchase a certain horse of him, falsely and fraudulently represented to the plaintiff that said horse was sound.

II. That the plaintiff, relying on said representation, bought said horse of the defendant and paid him therefor the sum of three hundred dollars.

III. That said horse was not sound, having an incurable bone spavin, as the defendant then well knew.

IV. That, by reason of the premises, this plaintiff was misled, to his damage two hundred dollars.

Wherefore the plaintiff demands judgment against the defendant in the sum of two hundred dollars, with interest from the day of, 188-, and the costs of this action.

(See 25 N. Y., 244; 66 N. Y., 564; 63 N. Y., 633; Boone's Forms of Code Pleading, Form No. 226; Boone's Code Pleading, 147.)

§ 488. The true ground of demurrer, logically considered, is the legal insufficiency of a pleading, apparent on its face; the other seven grounds of demurrer to a complaint are derived from the common law pleas to the jurisdiction, or pleas in abatement. When these grounds of objection do not appear on the face of the complaint, they are set up by answers, and such an

swers are virtually like the old pleas in abatement and to its jurisdiction.

2. If any of these grounds of objection be not taken at all, either by demurrer or by answer, they are deemed waived, except in case of objection to the jurisdiction or to the legal sufficiency of the complaint; so there is a waiver if the objection is not taken in the proper way, as if it be taken by answer when its should be taken by demurrer. (13 N. Y., 322.)

3. Again the demurrer is deemed to involve an admission of the facts alleged in the previous pleading, which are well pleaded; hence judgment on the demurrer will end the case, unless permission be obtained to answer over under § 497.

4. When the ground of demurrer is not specifically stated, as required in § 490, the demurrer may be disregarded. N. Y., 445.)

(108

5. The defendant should always demur for the ground of demurrer that is specifically appropriate. Thus if the plaintiff should not have legal capacity to sue, the defendant should demur for this ground, and not upon the ground of legal insufficiency. 41 Hun, 366.

6. A demurrer bad in part is bad altogether. Thus if there be two or more causes of action in the same complaint, and the defendant put in a single demurrer, demurring to them both collectively, and one is held to be a good cause of action while the other is not, still the demurrer fails. The defendant should have demurred separately to each cause of action, and then if one demurrer failed, the other would have still have held good. 49 N. Y., 626.

(7) A defendant cannot demur and answer to the same cause of action at the same time. (29 Hun, 410.) He may demur, and, failing in this, obtain leave to

3. Reply.

6. Second counterclaim.

(contract.)

To (5) above.
General denial.

Infancy.

Duress, etc.
To (6) above.

General denial.

Statute of limitations, etc.

This shows that the reply is only intended as a response to the counterclaim in the answer. Matter of confession and avoidance in the answer is not to be replied to, unless the court so directs under § 516.

The answer or reply may contain any one or more defenses, whether they be consistent with each other or not.

TI. A denial of "each and every allegation of the complaint not hereinbefore admitted or controverted" is a good general denial, when what had been before denied or controverted was clearly specified and hence no doubt could arise. (101 N. Y., 348.)

A verified answer stating that " upon information and belief the defendant denies," is a good denial, when the defendant cannot deny upon knowledge. (110 N. Y., 150.)

The allegations denied should appear on the face of the answer; it is not proper simply to say that the matter contained in certain folios of the complaint is denied. (110 N. Y., 621.)

The general rule is that the defendant must, under a general denial, be permitted to controvert everything which the plaintiff is bound in the first instance to prove to make out his cause of action. (101 N. Y., 348.) Thus, in an action to recover a chattel, the defendant may prove under a general denial, that the chattel belonged to some third person, a stranger to the suit. (101 N. Y., 348.)

So in action on a note, the defendant may prove alteration since execution under a general denial, for this is virtually proving that the note alleged to be his is really not his. (74 N. Y., 307.)

So a defense of payment is usually inadmissible under a general denial, but this is not so when non-payment is alleged in the complaint as a material fact to make a cause of action. (34 N. Y., 329.)

Matter of defense must be pleaded, if it is to be used at all. Matter of counterclaim may, in general, be either pleaded or sued on independently. But all matters of special defense, as infancy, duress, release, Statute of Limitations, etc., must be pleaded specially and cannot be proved under the general denial.

501, 1. When claim and counterclaim arise out of the same contract or transaction, both may be contract, or both tort, or one contract and the other tort; as e. g., where the claim is for the price of goods sold, and the counterclaim is for fraud or breach of warranty in the same

sale. This kind of counterclaim is what is otherwise called "recoupment." (6 Abb. Pr. N. S., 319; 120 U. S., 630.) But cases of a counterclaim of tort against a claim of tort are rare. See 93 N. Y., 552, where counterclaim for waste was set up against a claim for conversion. But one assault and battery is not a counterclaim against another. (35 Barb., 320.)

§ 501, 2. When claim and counterclaim are independent causes of action, both must be upon contract. This corresponds with the "set off" of common law practice, but is broader in its scope.

§ 514. When new matter is set up by way of defense, plaintiff may give evidence at the trial to avoid such new matter. (102 N. Y., 30.)

§ 524. In an action by an infant by his guardian ad litem, the guardian is not the plaintiff in fact, but as the complaint is his pleading and not that of the infant, he may be deemed the party pleading and so may verify the complaint as a party. (41 Hun, 58.)

§ 525. See an extensive note as to verification of pleadings in 8 Civ. Pro. Rep., 438.

§ 531. The court may strike out a complaint for a refusal to give a bill of particulars when so ordered. The common law rule so provided and it has not been abolished. (87 N. Y., 272.) An order granting a bill of particulars is not reviewable by the court of appeals unless clearly beyond the power of the court granting. (93 N. Y.,467; 106 N. Y., 114.)

§ 532 and § 533. The word "duly" and that word only, should be used in pleading under the rules prescribed by these sections.

§ 534. This section is not applicable in its strict import when the liability of the party by the the terms of the instrument is conditional and depends on extrinsic facts.

In such a case those facts must be averred. (76 N. Y., 397 and 564.)

Thus in suing an indorser on a negotiable instrument, it is not sufficient simply to set forth a copy of the instrument and allege that a certain sum is due, but demand and notice must be pleaded. It seems also that the complaint must allege the making of the note by the person sought to be charged as the maker and show that the plaintiff is the owner and holder. (1 Abb. Dec. Ct. App., 423; 76 N. Y., 564.)

§ 537 and 538. A sham answer is one which is false in fact. Knowledge of the law will not, therefore, disclose this objection, but only knowledge of the facts, which the court of course is not presumed to have. Hence the plaintiff must show this defect by affidavits.

The defendant may meet these affidavits by counter-affidavits supporting the truthfulness of the answer or defense. If he puts in no counter-affidavits or only an evasive affidavit, the plaintiff's motion would ordinarily be granted. It is held, however, that in the case of a general denial which is verified, the answer will not be stricken out as sham. (45 N. Y., 281, 468; 18 N. Y., 315; 8 Abb. N. S., 315.)

A whole answer may be stricken out or any defense therein, but a counterclaim is not regarded as a defense and cannot, therefore, be striken out of the answer. (53 N. Y., 497; 48 Hun, 81.)

A frivolous pleading is assumed to be true, but is palpably insufficient in law, As knowledge of law discloses this defect, no affidavits are needed to show it, but the motion is based simply on the pleading. It amounts really to trifling with the court.

The ground of objection is the same as that for which demurrer is taken, viz: legal insufficiency; but we demur when the question will bear argument, we move for judgment when the insufficiency is plain and palpable. (See 53 N. Y., 497, 88 N. Y., 37.)

§ 542. Brown vs. Lee, 49 N. Y., 78; McQueen vs. Babcock, 2 Abb. Dec., 129. When a demurrer has been served it cannot be withdrawn and answer served in its place under this section. (44 Hun, 530; 47 Hun, 306.)

§ 545. Irrelevant matter must be such as regards the party making the motion, not some other party. (94 N. Y., 195.)

Monaco," "The Present Position of European Politics," and "The British Army." With maps. London and New York: Macmillan and Co., 1890.

We believe that this, the latest production an English statesman who is believed

be looked upon as heir apparent to the leadership of the Liberal party, will achieve as wide a fame as Mr. Bryce's already historic work. It has not only the name of its author to give it prestige, but is moreover the only extensive treatise upon the British colonies that is accessible to English and American readers.

While