have been, and perhaps, generally are, alleged in a more direct manner than in this case. Profert of the letters testamentary need not be made, nor can the right of the executor to sue be questioned, unless by a sworn answer. 2 G. & H. 527, § 152. The judgment is affirmed, with five per cent. damages and costs. Pishon, 31 Me. 503; Brown v. Nourse, 55 Me. 230; Stewart v. Smith, 98 Me. 104; Ellis v. Appleby, 4 R. I. 462. If the legal capacity of the plaintiff is sufficiently alleged to preclude a demurrer, the defendant must raise the question of incapacity by a special plea. If he pleads the general issue or a general denial he waives the objection. e. g.: Administrator or executor.- - Thynne v. Protheroe, 2 M. & Sel. 553; Yeaton v. Lynn, 5 Pet. 223; Wise v. Getty, 3 Cranch, C. C. 292; McAleer v. Clay Co., 38 Fed. 707, 710; Worsham v. Goar, 4 Port. 441 (admr.-general issue); Clarke v. Clarke, 51 Ala. 498; Louisville Co. v. Trammell, 93 Ala. 350; Kowanachi v. Askew, 17 Ark. 595; Denver Co. v. Woodward, 4 Colo. 1; Cooper v. People, 28 Colo. 87 (semble); Champlain v. Tilley, 3 Day, 303; Phoenix Bank v. Curtis, 14 Conn. 437, 440 (semble); Harris v. Harris, 2 Harringt. 354 (semble); Sullivan v. Honacker, 6 Fla. 372; Kenan v. Du Bignon, 46 Ga. 258; Merritt v. Cotton Co., 55 Ga. 103; Ballance v. Frisby, 3 Ill. 63; Collins v. Ayres, 13 Ill. 358; Breckenridge v. Ostrom, 79 Ill. 71; Chicago Co. v. Browne, 103 Ill. 317; Union Co. v. Shacklet, 119 III. 232; Fischer v. Stieffel, 179 Ill. 59; Dye v. Gritton, 29 Ill. Ap. 54; Harte v. Fraser, 104 Ill. Ap. 201; Lutcher Co. v. Eells, 108 Ill. Ap. 156; Pollard v. Buttery, 3 Blackf. 239; Lowe r. Bowman, 5 Blackf. 410; Mayes v. Turley, 60 Iowa, 407; Sparks v. Accident Ass'n, 100 Iowa, 458; Kesley v. West, 3 Litt. 362; Willis v. Willis, 6 Dana, 48; Clark v. Pishon, 31 Me. 503; Brown v. Nourse, 55 Me. 230; Langdon v. Potter, 11 Mass. 313; Vickery v. Beir, 16 Mich. 50 (semble); Fuggle v. Hobbs, 42 Mo. 537; Gregory v. McCormick, 120 Mo. 657 (but see Gilmore v. Morris, 13 Mo. Ap. 114); Varnum v. Taylor, 59 Hun, 554; Smith v. Ludlow, Anth. N. P. 174; Robbins v. Wells, 18 Abb. Pr. 191, 26 How. Pr. 15 s. c.; Nance v. Oakley, 122 N. Y. 631; Gibbs v. Cahoon, 3 Dev. 80; Hyman v. Gray, 4 Jones (N. Ca.) 155; McKimm v. Riddle, 2 Dall. 100; Ayers v. Musselman, 2 Browne, 115; Lewis v. Ewing, 3 S. & R. 44 (semble); Finney v. Huston, 7 W. N. (Pa.) 44; Ellis v. Appleby, 4 R. I. 462; Kelly v. Thomson, 2 Brev. 58; Reynolds v. Torrance, 2 Brev. 59; Brockington v. Vereen, 1 Bail. 447; Hutchinson v. Bobo, 1 Bail. 546; Hankinson v. Charlotte Co., 41 S. Ca. 1; Mickle v. Construction Co., 41 S. Ca. 394; Glass v. Stovall, 10 Humph. 453; Cheek v. Wheatley, 11 Humph. 556; Marble Co. v. Black, 89 Tenn. 118; Cheatham v. Riddle, 12 Tex. 112; Dignowitty v. Coleman, 77 Tex. 98; Callahan v. Hendrix, 79 Tex. 494; Clapp v. Beardsley, 1 Vt. 151; Perrin v. Granger, 33 Vt. 101, 106 (semble); Moir v. Dodson, 14 Wis. 279; Manseau v. Mueller, 45 Wis. 430; State v. Tuttle, 53 Wis. 45; Wood v. Union Ass'n, 63 Wis. 9; Webber v. Ward, 94 Wis. 605; Mayer v. Barth, 97 Wis. 352 (trustee). Receiver. Lunatic. Dawkins v. Mathis, 47 S. Ca. 64. Etna Co. v. Sellers, 154 Ind. 370; Blackwell r. Mortgage Co., 65 S. Ca. 105. Infant. Married woman. - Beville v. Cox, 109 N. Ca. 265. Overseers of Poor. - Carpenter v. Whitman, 15 Johns. 208. LEGAL CAPACITY OF DEFENDANT. — An averment that the defendant is executor (or other representative) of A. B. is sufficient. Holliday v. Fletcher, 2 Ld. Ray. 1510, 2 Stra. 781, 1 Barnard, 29 s. c. (discrediting Wade v. Atkinson, Cro. Jac. 9; Bracton v. Lister, 2 Vent. 84); Petto v. Ruddock, 1 Sid. 228; Curtis v. Bowrie, 2 McL. 374; Wilson v. Bothwell, 50 Ala. 378; Espalla v. Richard, 94 Ala. 159; Brown v. Hicks, 1 Ark. 232; Wise v, Williams, 72 Cal. 544; Kirsch v. Derby, 96 Cal. 602 (semble) (see Barfield v. Price, 40 Cal. 535, 543); Stewart v. Smith, 98 Me. 104; Giles v. Perryman, 1 Har. & G. 164; Stoner v. Devilbis, 70 Md. 144; Dodson v. Scroggs, 47 Mo. 285; Skelton v. Scott, 18 Hun, 375; Kingsland v. Stokes, 25 Hun, 107 (affirming s. c. 58 How. Pr. 1); Meara v. Hobrook, 20 Oh. St. 137 (receiver). And in such cases the objection to the legal capacity of the defendant to be sued must be taken by a special plea. It is waived by pleading the general issue or a general denial. Espalla v. Richard, 94 Ala. 159; Harris v. Harris, 2 Harringt. 354; Stewart v. Smith, 98 Me. 104; Stewart v. Richardson, 32 Miss. 313; Lomax v. Spierin, Dudley (S. Ca.) 365; Greenville Co. v. Joyce, 8 Rich. 117; Tolbert v. McBride, 75 Tex. 95. — Ed. い! S. BERNEY AND OTHERS v. A. J. DREXEL AND OTHERS. SUPREME COURT, NEW YORK, OCTOBER TERM, 1884. [33 Hun, 419.] MOTION for a reargument of an appeal from a judgment overruling a demurrer to the complaint. DAVIS, P. J. The demurrer in this case assigned the following grounds: First. That the plaintiffs had no legal capacity to sue. Second. That there was a defect of parties defendant. Third. That the complaint did not state facts sufficient to constitute a cause of action. The substantial question presented on this motion is, whether on these assignments of grounds of demurrer it can be urged that the demurrants are entitled to judgment on the ground that it appears by the allegations of the complaint that there is a misjoinder of parties plaintiff. This question was not presented on the former argument by counsel, nor was it considered by the court. The allegations of the complaint do show that the title of the cause of action, and the right to maintain the same, are vested in the several plaintiffs, other than the plaintiff Louise Berney, who otherwise appears by the complaint to have an interest in the estate of her deceased husband as a beneficiary in trust, if the other plaintiffs recover. The long and short of it is that she is improperly joined as a plaintiff. Section 488 of the Code of Civil Procedure specifies when a defendant may demur to a complaint and on what grounds. The fifth ground so specified is "that there is a misjoinder of parties plaintiff." Section 490 declares that the demurrer must distinctly specify the objections. to the complaint; otherwise it may be disregarded. And it further provides that an objection taken under the fifth, sixth, and seventh subdivisions "must point out specifically the particular defect relied upon." In order therefore to take advantage by demurrer of the misjoinder of Mrs. Berney as a plaintiff in this action it was necessary that the plaintiff should not only assign as a ground of demurrer "that there is a misjoinder of the parties plaintiff," but have proceeded to point out that the plaintiff Louise Berney is improperly joined with the other plaintiffs, because she is shown to have no cause of action jointly with them; but that the sole cause of action set forth in the complaint is averred to be in the other plaintiffs exclusive of her. A demurrer with such an assignment and specification would probably have been sustained both at the special term and on appeal.1 1 Gassett v. Kent, 19 Ark. 602; Christian v. Crocker, 25 Ark. 327; Rowe v. Bacigalluppi, 21 Cal. 633 (semble); Tennant v. Pfister, 45 Cal. 270 (semble); Daniels v. Miller, (Ind. Terr. 1902) 69 S. W. R. 925; Enos v. Leach, 18 Hun, 139; Tew v. Wolfsohn, 77 N. Y. Ap. Div. It is insisted, however, that the point can be taken under the general assignment made under the eighth subdivision of the section, to wit, "that the complaint does not state facts sufficient to constitute a cause of action," because the complaint shows affirmatively that the cause and right of action are not vested in all the parties plaintiff. There would be greater force in this contention if it were not for the fact that the present Code makes the misjoinder of plaintiffs a special ground of demurrer, and requires that when that objection is taken the demurrant must proceed to "point out specifically the particular defect relied upon." If that had been done in this case the plaintiffs could have amended the complaint by dropping out the name of Mrs. Berney altogether; or by transferring her name, if for any reason it was desirable to continue her as a party, to the rank of defendant. They are deprived of that opportunity if it be held at this stage of the case that the same point may be made under the eighth subdivision of section 488. Besides, it may be answered that the eighth subdivision of the section does not reach any such defect. It is aimed only at a failure to state any cause of action in the complaint. Where several plaintiffs unite in bringing an action and state in their complaint facts which do constitute a cause of action in favor of one or more, but not of all the plaintiffs, a demurrer based upon an assignment of the eighth ground of the section must be overruled, because the defect is not that the complaint does not state facts sufficient to constitute a cause of action, but that it fails to show that the cause of action thus stated belongs to all the plaintiffs - which is quite another thing and belongs to another subdivision of the section.1 -good 454, 456 (Palmer v. Davis 28 N. Y. 242, 245; Case v. Carroll, 35 N. Y. 385; Allen v. Buffalo, 38 N. Y. 280; People v. Crooks, 53 N. Y. 648; Peabody v. Washington Co., 20 Barb. 339 are superseded) Accord. Redelsheimer v. Miller, 107 Ind. 485 (semble); Armstrong v. Dunn, 143 Ind. 433; Frankel v. Garrard, 160 Ind. 209, 215 (but a demurrer to a count on the ground that it does not state facts sufficient to constitute a cause of action will be sustained in Indiana, if the count fails to state a cause of action as to any one of the parties plaintiff); Bershire v. Shultz, 25 Ind. 523; Harris v. Harris, 61 Ind. 117; Hyatt v. Cochran, 85 Ind. 231; Brown v. Critchell, 110 Ind. 31; Brunson v. Henry, 140 Ind. 455; McIntosh v. Zaring, 150 Ind. 301; Mornan v. Carroll, 35 Iowa, 22; Dubuque Co. v. Reynolds, 41 Iowa, 454 (in Iowa the objection of misjoinder of parties must be taken by motion); Winifield Co. v. Maris, 11 Kan. 128; McKee v. Eaton, 26 Kan. 226; Hurd v. Simpson, 47 Kan. 372; Dean v. English, 18 B. Mon. 132 (objection to be taken by motion to strike out superfluous parties); Hoard v. Clum, 31 Minn. 186; Boldt v. Budwig, 19 Neb. 739; Burns v. Ashworth, 72 N. Ca. 496 (semble); Stiles r. Guthrie, 3 Okla. 26; Weber v. Dillon, 7 Okla. 568; Mader v. Plano Co., (S. Dak. 1903) 97 N. W. R. 843; Willard v. Reas, 26 Wis. 540; Marsh v. Board, 38 Wis. 250; Kucera v. Kucera, 86 Wis. 416; Geilfuss v. Gates, 87 Wis. 395; Wunderlich v. Chicago Co., 93 Wis. 132 Contra.- ED. Ternant v. Pfister, 51 Cal. 511; O'Callaghan v. Bode, 84 Cal. 489 Accord. The demurrer must point out the particular misjoinder, O'Callaghan v. Bode, 84 Cal. 489. And, of course, the objection is waived, if there is no demurrer, Gillam v. Sigman, 29 Cal. 637. Misjoinder of defendants. — The joinder of too many parties defendant is not a ground of demurrer. Fry v. Street, 37 Ark. 39; Bennett v. Preston, 17 Ind. 291; Hill v. Marsh, 46 Ind. 218; Redelsheimer v. Miller, 107 Ind. 485; Clark v. Crawfordsville Co., 125 Ind. 277; Armstrong v. Dunn, 143 Ind. 433; Beckwith v. Dargets, 18 Iowa, 303; Turner v. First Bank, 26 Towa, 562, King v. King, 40 Iowa, 120; Whiteoak v. Oskaloosa, Iowa, 512; Dolan v. Hubinger, 109 Iowa, 408; Cedar Bank v. Lavery, 110 Iowa, 575; Railway Co. v. Smith, 59 Assuming as we do that the court did not err in holding that facts sufficient to constitute a cause of action are stated in the complaint, it necessarily follows that a reargument would be quite unavailing to the demurrants and should therefore be denied, with the usual costs of a motion. BRADY and DANIELS, JJ., concurred. Motion denied, with ten dollars costs. 6916.294 B. PORTER v. L. FLETCHER AND ANOTHER. SUPREME COURT, MINNESOTA, MARCH 5, 1879. [25 Minnesota Reports, 493.] GILFILLAN, C. J. The complaint alleges that in May, 1877, the defendants owned six certain lots in an addition to Minneapolis, and, to induce plaintiff and one Libby to purchase the same, and with intent to cheat and defraud them, falsely and fraudulently represented to them that the lots extended out to and fronted on Twenty-first Avenue south, and Minnehaha Avenue, and thence back to an alley through the centre of the block, and were about the ordinary size of lots in that vicinity-to wit, about fifty feet front by about one hundred and fifty-seven feet deep; and that, believing in said representations, the plaintiff and Libby purchased the lots from defendants, and paid them therefor $3000, and defendants conveyed the lots to them; that such representations were false, and known to defendants to be so; and that, except as to a part of one of them, the lots do not extend to the avenue, but that a strip of land about forty feet wide, owned by other persons, and not conveyed by defendants' deed, lies between the lots and the avenue; that afterwards, and before they discovered the fraud, plaintiff and Libby made partition of the lots, each taking in severalty three of them; alleges that, by reason of such matters, plaintiff has sustained damages to a specified amount, and Kan. 80; Dean v. English, 18 B. Mon. 132; Livermore v. Norfolk Co., (Mass. 1904) 71 N. E. Ca. 496; Powers v. Bumcratz, 12 Oh. St. 273; Gutridge v. Vanatta, 27 Oh. St. 366; Neil v. Board, 31 Oh. St 15; Clark v. Bayer, 32 Oh. St. 299; Stiles v. Guthrie, 3 Okla 26; Cohen v. Ottenheimer, 43 Oreg. 220, Gr. West Co. v. Etna Co., 40 Wis. 373; Murray v. McGarrigle, 69 Wis. 483. But see contra, Fultz v. Waters, 2 Mont. 165 (semble); Cunningham v. Orange, 74 Vt. 115 (following the old common law rule). By the codes of some states the misjoinder of parties plaintiff or defendant is made a ground of demurrer. Boone, Code Pleading, § 50, n. 2. — ED. demands judgment therefor. The defendants demurred: first, for defect of parties plaintiff, because Libby is not joined.1 The first ground of demurrer is well taken. An objection is made that a demurrer for defect of parties will not lie, except it appears from the complaint that the original proper party to the cause of action not joined is still alive, so that he can be made a party, or, if dead, who succeeded to his interest or liability, as seems to have been required in a plea in abatement for want of proper parties, at common law. If this were so, it would be difficult to conceive a welldrawn complaint upon which the question of want of proper parties could be raised by demurrer. The demurrer given by the statute is not a mere substitute for the plea in abatement. The former raises a question of law upon the facts stated in the complaint. The latter presented an issue of fact, and as it was regarded as a dilatory plea, strict rules were applied to it, and it was required to state the facts. so fully as to exclude the possibility of its having been improperly interposed. The demurrer presents the issue of law that upon the facts stated in the complaint, no other facts appearing, another party. named should be joined as plaintiff or defendant. If, on those facts standing alone, some other party should be joined, the complaint ought to have alleged other facts, showing that the interest or liability of such other party had ceased." Order reversed. 1 Only so much of the case is given as relates to this ground of demurrer. - Ed. 2 In accordance with the principal case, if the declaration discloses the non-joinder of an essential party, it is demurrable, although it does not appear that such party is alive. Non-joinder of a party as plaintiff. - Osborne v. Crosberne, 1 Sid. 238 (semble); Hayes v. Lasater, 3 Ark. 565; Sullivan v. N. Y. Co., 119 N. Y. 348. Non-joinder of party as defendant. Blackwell v. Ashton, Al. 21; Osborne v. Crosberne, 1 Sid. 238 (semble); King v. Young, 2 Anst. 448; King v. Chapman, 3 Anst. 811; South v. Tanner, 2 Taunt. 254; Cocks v. Brewer, 11 M. & W. 51, 53, 55 (semble); Gilman v. Rives, 10 Pet. 298; Percival r. McCoy, 4 McCrary, 418; Bragg v. Wetzel, 5 Blackf. 95; Harwood v. Roberts, 5 Me. 441; Merrick r. Trustees, 8 Gill, 59, 74; Prather v. Monro, 11 Gill & J. 261 (scire facias); Kent v. Holliday, 17 Md. 387; Hanley v. Donoghue, 59 Md. 239; Eaton Bailson, 33 How. Pr. 80; Green v. Lippincott, 53 How. Pr. 33; Hyde v. Van Valkenburgh, 1 Daly, 416; Sanders v. Yonkers, 63 N. Y. 489 (the decisions to the contrary in Brainard v. Provost, 11 How. Pr. 569; Scofield v. Van Syckel, 23 How. Pr. 97 are overruled); Sweigert v. Berk, 8 S. & R. 308; Leftwich v. Berkeley, 1 Hen. & M. 61; Newell v. Wood, 1 Munf. 555. But see contra, Dillon v. State Bank, 6 Blackf. 5; Deegan v. Deegan, 22 Nev. 185; Smith v. Miller, 49 N. J. 521 (semble); Geddis v. Hawk, 10 S. & R. 33 (semble). The non-joinder of an essential party is a good ground of demurrer. Plaintiffs. Vernon v. Jefferys, 2 Stra. 1146; Bell v. Layman, 1 Monr. 39 (semble); Mackall v. Roberts, 3 Monr. 130 (semble); Drury v. Corey, 60 Mo. 224. Defendants. Snyder v. Voorhees, 7 Colo. 296; Durham v. Bischof, 47 Ind. 211; Smith v. Miller, 49 N. J. 521; Mott v. Ruenbuhl, 1 Tex. Ap. Civ. Cas. § 599. (But see contra, Mackall v. Roberts, 3 Monr. 130.) By statute, in many states, the demurrer must point out the precise defect and give the name of the party to be joined. Plaintiffs. Gaines v. Walker, 16 Ind. 361; Kelley v. Love, 35 Ind. 106; Van Sickle v. Erdelmeyer, 36 Ind. 262; Marks v. Indianapolis Co., 38 Ind. 440; Willett v. Porter, 42 Ind. 250; Durham v. Bischof, 47 Ind. 211, 213; Nicholson v. Louisville Co., 55 Ind. 504; Dewey v. State, 91 Ind. 173; Foley v. Mail Co., 8 N. Y. Misc. Rep. 91. Defendants. Stephens v. Parvin, (Colo. 1905) 78 Pac. R. 688; Gaines v. Walker, 16 Ind. 361; Van Sickle v. Erdelmeyer, 36 Ind. 262; Marks v. Indianapolis Co., 38 Ind. 440; |