the action, or that the plaintiff has no cause of action, the Court may stop the proceedings and dismiss the action, for it is idle to go further; but when the objection grows out of a defective statement of the cause of action, the Court cannot stop in the midst of the trial of an issue and dismiss the action; for, the plaintiff is thereby deprived of the advantage of having the defect or omission in the statement of his cause of action cured by verdict, which is a principle of the common law, and does not depend upon a provision of the C. C. P., provided the case falls within the application of the principle; and at all events he is deprived of the privilege of amending, secured to him by the C. C. P., by having the pleading and proceedings made to conform to the facts proved, which, of course, he cannot avail himself of, should the testimony be all ruled out, and the action abruptly terminated, instead of proceeding in the trial of the issue, and hearing the evidence which the parties have come prepared to offer. After verdict, the defendant may make the objection by motion in arrest. Judgment reversed. Section 2. Grounds of Demurrer. ARTHUR v. RICKARDS. 48 Mo., 298. [1871.] CURRIER, Judge, delivered the opinion of the court. The court sustained a demurrer to the petition and dismissed the suit. The judgment of dismissal was informal, but it was final and fatal to the plaintiff's action. The dismissal terminated the suit in the circuit court, and the plaintiff was compelled either to submit to the consequences or bring the cause here. The defendant demurred upon the ground that another suit was then pending between the same parties and for the same action. It is not pretended that the petition shows any such fact. The demurrer should, therefore, have been overruled. The statute is clear and express on this point. (Gen. Stat. 1865, p. 658, Sec. 6.) Judgment reversed and cause remanded. VON GLAHN v. DEROSSETT. 76 N. C., 292. [1877.] PEARSON, C. J.: In Von Glahn v. Harris, 73 N. C., 323, it is held that one creditor could not maintain an action against one stockholder; but that the action should be in the nature of a "creditors' bill," in the name of one or more of the creditors in behalf of themselves and all of the other creditors who may choose to become plaintiffs against all of the stockholders. Accordingly this action is by Von Glahn and the other creditors against DeRossett, Kidder, and others, who are all of the stockholders known to plaintiffs, with leave to make defendants any other stockholders who may become known to the plaintiffs. DeRossett and the others defend by way of answer, except Kidder, who defends by way of demurrer. The case now comes before us on the demurrer of Kidder. This is a novel mode of procedure and we are not willing to allow the case to be split up in that way. The defendants are under a joint liability; their interest in the questions involved is identical and much obscurity and confusion will result from a severance in the mode of defence. When there is but one defendant he is not allowed to demur and also to answer; after the demurrer is overruled 'he can put in an answer, but he cannot defend in both modes at the same time. That would be double pleading in a way not provided for by the statute of Anne. The second ground of demurrer is the subject of another objection. It is "a speaking demurrer," as styled by the books. That is, in order to sustain itself, the aid of a fact not appearing upon the complaint is invoked, to-wit: the allegation that at the expiration of the charter, the Bank held a fund which should first be applied to the satisfaction of the debts of the plaintiffs. Whether there be any fund left on hand at the expiration of the charter of the bank is a question of fact that cannot be inquired into upon demurrer, which raises only an issue of law in regard to the cause of action set forth in the complaint. Judgment reversed. ROBERTS v. JOHANNAS. 41 Wis., 616. [1877.] COLE, J.: In this case the demurrer must be treated as one to the whole answer. If, therefore, the answer contains matters constituting a defense to the action, which is in substance good, however informally or inartificially stated, the demurrer was properly overruled. We think the answer does deny that the property described in the complaint ever came to the possession of the defendant. But it is said by the learned counsel for the plaintiff that the answer in that respect is faulty, because it denies, in the words of the complaint, that at a particular day the defendant had possession of the property, and thus amounts to a negative pregnant, that on some other day the defendant had possession. The criticism is not sustained by the averment, which is as follows: "The defendant denies that at the time stated in the complaint, or at any other time, the property described in the complaint came into the possession of the defendant, or that the same was or remained in his possession at the time of the commencement of this action, as alleged." This is a denial that at any time the property came to the possession of the defendant, and states a complete defense. It surely does not imply that the defendant had possession at some other day than the one named, so as to admit the material fact of possession. The objection is not, therefore, well taken to that part of the answer. But the other portions of the answer seem to us bad in substance. It is not alleged that the stallion therein mentioned is one of the animals mentioned in the complaint, nor that he was over two years old and suffered to run at large, so as to come within the provisions of ch. 93, Laws of 1870. Had the demurrer been confined to that portion of the answer, it should have been sustained. But it amounts to a demurrer to the whole answer, and, for the reasons given, was properly overruled. By the Court-The order of the circuit court is affirmed.* *Accord: Dallas v. MacKenzie, 94 U. S. 660. HAYDEN v. ANDERSON. 17 Iowa, 158. [1864.] COLE, J.: I. A demurrer is proper where a pleading appears on its face to be defective either in substance or form; it is a declaration that the party demurring will go no further, because the other has not shown sufficient matter against him to require an answer: 1 Chitty on Plead., 661. A demurrer admits the facts pleaded, but controverts their legal sufficiency. A demurrer, then, can only be properly interposed where the party controverts the legal sufficiency of the matter stated in the entire count or petition. It is not competent to assail a clause, or a sentence, or several clauses or sentences in a count or petition by demurrer. A demurrer is not a pruning hook, with which to rid a pleading of foreign or improper matter; nor is it a sword, with which to attack and cut off redundant or impertinent averments in a pleading. If a count in a pleading contains sufficient statements to constitute a cause of action or defense, it is not vulnerable to a demurrer, although it may contain very much of foreign, improper, redundant, impertinent or scandalous matter. Nor can such matter be reached by demurrer; and, therefore, a so-called demurrer "to all that part," or "to so much as sets up," etc., in a certain count, does not rise to the dignity of a demurrer, and is not entitled to its name, and whenever sufficient matter is stated in such count to constitute a cause of action or defense, such so-called demurrer should be overruled.* DODGE v. COLBY. 108 N. Y., 445.† [1888.] RUGER, C. J.: We concur in the conclusions reached by that court in respect to this portion of the complaint. The counts referred to, we think, under the liberal system established by the code, each clearly stated a good cause of action in trespass quare clausum fregit, and entitled the plaintiff, if sustained, to recover *See, also, O'Haver v. Shidler, 26 Ind. 278. †For the statement of this case, see ante, p. 785. for all damages accruing to him from the acts described therein. It constitutes no answer to this proposition that the plaintiff might have recovered, upon the facts stated, some of the damages alleged to have been sustained by him, in an action of trover, so long as the gravamen of the charge was the unlawful intrusion upon his real estate. The cutting and tapping of trees constituted the real basis of the damages claimed. While the counts referred to, each allege the value of the timber and turpentine claimed to have been carried away from the premises of the plaintiff, this is merely incidental to the trespass alleged, and the complaint concludes with a general prayer for judgment which would recover the damages arising from the alleged unlawful entry upon the plaintiff's lands and the trespasses committed thereon, as well as the incidental damages arising from the conversion of his property. The doctrine that the courts of this state have no jurisdiction of actions for trespasses upon lands situated in other states is too well settld to admit of discussion or dispute. Telegraph Co. v. Middleton, 80 N. Y., 408; Cragin v. Lovell, 88 N. Y., 258. The claim urged by the plaintiff that if not permitted to maintain this action he is without remedy for a most serious injury, is quite groundless, and affords no reason for the assumption of a jurisdiction by this court which it does not possess. The plaintiff would seem to have the same remedy for the trespasses alleged that all other parties have for similar injuries. His lands cannot be intruded upon without the presence in the state of the wrong-doer, and no reason is suggested why he could not seek his remedy against the actual wrong-doer in the courts having jurisdiction. His remedy is ample, and it is no excuse for assuming a jurisdiction which we do not have, that the plaintiff desires a remedy against a particular person rather than one against the real perpetrators of the injury who were exposed to prosecution in the place where the wrong was committed. * * The general term, we think, also erred in sustaining the demurrer to the third count upon the ground that there was an improper joinder of causes of action. It is quite true that under section 484 of the Code of Civil Procedure, causes of action for slander cannot properly be joined with actions for injuries to real property; but this was not the ground of objection stated in the demurrer. The ground there specified was that a cause of action of a transitory nature, of which the court had jurisdiction, |