CHAPTER XVIII. COMPLAINT—ANTICIPATING DEFENSES. § 235. As we have already observed, the only allegations proper in a complaint are those necessary to show facts sufficient to constitute a cause of action. Therefore, allegations inserted for the purpose of intercepting and cutting off a defense are superfluous and immaterial.1 Facts anticipating a defense ought never to be averred. If such an averment is made in the complaint, the defendant need not traverse it. What is material in the case may be quite immaterial in the pleading. The complainant should not erect a structure, and, to show its stability, attempt, but fail, to knock it down. The plaintiff may be well aware of the defense which will be interposed, but the defendant will be quite as capable of presenting it as the plaintiff. The real effect of such pleading, if allowed, would be to put the opposite party on the stand as a witness, without being obliged to take his whole statement as true. So allegations in a complaint as to the defendant's pretenses are improper, as they are not the facts of the plaintiff's case.3 The above is the general rule, but there are exceptions; such as where the original indebtedness is counted on, when the defense of payment may be anticipated by allegations of matters of fraud. An allegation that defendant was of full age when he executed a bond is the allegation of a fact in anticipation of a defense. A plaintiff cannot by alleging in his complaint that no payment has been made anticipate a plea of payment, and so 1 Canfield v. Tobias, 21 Cal. 349; Gillson v. Price, 18 Nev. 117, 1 Pac. 459. 2 Gould's Pl. 75; Canfield v. Tobias, 21 Cal. 349; Munson v. Bowen, 80 Cal. 572, 22 Pac. 253; Green v. Palmer, 15 Cal. 414; 76 Am. Dec. 492; Kerr v. Blodgett, 16 Abb. Pr. 137; Giles v. Betz, 15 Abb. Pr. 285; Van Demark v. Van Demark, 13 How. Pr. 372; Woodroof v. Howes, 88 Cal. 184, 26 Pac. 111; Jaffe v. Lilienthal, 86 Cal. 91, 24 Pac. 835; Metropolitan Life Ins. Co. v. Meeker, 85 N. Y. 614; Jones v. Ewing, 22 Minn. 157; Du Pont v. Beck, 81 Ind. 271. 8 1 Whitt. Pr. 582; Steph. Pl. 349; Green v. Palmer, 15 Cal. 414, 76 Am. Dec. 492; Van Nest v. Talmadge, 17 Abb. Pr. 99; Hotham v. East India Co., 1 Term. Rep. 638. ✦ Bracket v. Wilkinson, 13 How. Pr. 102. See, also, Wade v. Rusher, 4 Bosw. 537; and Thompson v. Minford, 11 How. Pr. 273. 5 Walsingham's Case, Plow. 564; Bovy's Case, 1 Vent. 217; Stowell v. Zouch, Plow. 376. avoid the necessity of replying to it. A complaint to rescind an unauthorized contract in writing for the sale of land is not bound to anticipate a possible defense that an oral contract was partly performed by taking possession, in connection with payments on purchase money, and need not negative the fact of such possession. In New York, it has been held that in a complaint upon a cause of action which accrued more than six years previous to the commencement of the suit, an allegation, inserted for the purpose of anticipating the defense of the statute of limitations, that "the defendants have not resided in the state at any time within six years," etc., was irrelevant, and should be stricken out.8 An allegation by the plaintiff that he has performed all the conditions precedent on his part is sufficient to tender the issue to the defendant." The objection that matter purely anticipatory of a possible defense is stated in a complaint may and should be made by a motion to strike out.10 • Benicia Agricultural Works v. Creighton, 21 Or. 495, 28 Pac. 775, 30 Pac. 676. Salfield v. Reclamation Co., 94 Cal. 546, 29 Pac. 1105. 8 Butler v. Mason, 5 Abb. Pr. 40. And see Minzesheimer v. Bruns, 1 App. Div. 324, 37 N. Y. Supp. 261. • Milwaukee Mechanics' Ins. Co. v. Winfield, 6 Kan. App. 527, 51 Pac. 567. 10 Brooks v. Bates, 7 Colo. 576, 4 Pac. 1069; Frick Co. v. Carson, 3 Kan App. 478, 43 Pac. 820; Stone v. De Puga, 4 Sandf. 681. CHAPTER XIX. THE DEMURRER. § 236. Introductory. Of course, the aim and object of all pleading is the production of an issue. While the codes attempt to, and in a measure do, simplify the rules tending to the production of an issue, still they are based on the fundamental rules or principles of the common law. The statement of these rules by Mr. Stephen1 shows them to be identical with the ultimate. requirement of the code system, the only difference being in the use of terms. These principles he states as follows: "First, that after the declaration, the parties must at each stage demur, or plead by way of traverse, or by way of confession and avoidance; secondly, that upon a traverse, issue must be tendered; lastly, that the issue when well tendered must be accepted." Under the code system, the application of the first of these rules produces either a demurrer or answer, or both, raising an issue of law, of fact, or of both law and fact. Thus the first question which confronts the defendant is whether his defense should be presented by demurrer or by answer, and this question must be determined, of course, by the nature of the matter constituting the defense. Strictly speaking, however, matters of defense, as that term is commonly understood, should be set out in an answer, the office of a demurrer being to test the sufficiency of a pleading, and its effect being, for that purpose, to admit such facts as are issuable and well pleaded." § 237. Definition and nature of demurrer.-A demurrer is a pleading which raises an issue of law; its office is to test the sufficiency of the pleading against which it is directed by alleging that the latter is insufficient in law to support a cause of action or to constitute a defense. It may be interposed to test the sufficiency of a pleading either in substance or in form,-that is, it 1 Steph. Pl. (Tyler), 156. 2 Branham v. Mayor of San Jose, 24 Cal. 602; Masterson v. Townshend, 123 N. Y. 458, 25 N. E. 928, 10 L. R. A. 816; Cutler v. Wright, 22 N. Y. 472; Groesbeck v. Dunscomb, 41 How. Pr. 302; Hall v. Bartlett, 9 Barb. 297; Kinnier v. Kinnier, 45 8 Bouvier's Law Dict.; Estee's PL & Pr., § 3068. may be either that the case shown by the opposite party is essentially insufficient or on the ground that it is stated in an inartificial manner. It means, literally, that the party objecting will not proceed with his pleading as to matters of fact, because no sufficient statement has been made on the other side, but will "wait" the judgment of the court whether as a matter of law he is bound to answer. It is not the office of a demurrer to set out facts; all the facts involved in a demurrer are those set out in the pleading demurred to, and the demurrer merely raises a question of law as to the sufficiency of those facts to constitute a cause of action or defense." According to the old common-law writers it was not proper to designate a demurrer as a plea, because it neither alleged nor denied any fact." This, however, is not the rule to-day; almost all, if not quite all, of the codes refer to the demurrer as a pleading. But whether, technically speaking, it is a plea or not, in many instances it is the most important paper in the action, and when properly interposed it may settle all the issues of the case by determining, at the threshold of the action, questions which otherwise would only be disposed of on the hearing of the facts. The question whether the plaintiff in his complaint has stated facts sufficient to constitute a cause of action, or has stated them properly, is thus disposed of without the introduction of testimony or the form of a trial.” It follows from this, then, that an objection, in order to be taken advantage of by demurrer, must be apparent on the face of the pleading. The determination of this question involves careful and analytical examination. § 238. Grounds for demurrer.-The statutes of the several states prescribe certain special grounds for demurrer, differing in some respects, but the general ground, that the complaint does not state facts sufficient to constitute a cause of action, can be interposed in all courts of common-law jurisdiction. The inquiries to be made by defendant when served with the complaint, if he wishes to demur to it, are, first, Has the court jurisdiction of the 4 Steph. Pl. (Tyler), 157. Steph. Pl. (Tyler), 82. 6 Brennan v. Ford, 46 Cal. 12; Rice v. Rice, 13 Or. 337, 10 Pac. 495; Johnson v. Burnside, 3 S. Dak. 230, 52 N. W. 1057. 7 Chit. Pl. 678. And see Gould's Pl. 35. 8 Oliphant v. Whitney, 34 Cal. 25; Cashman v. Reynolds, 123 N. Y. 138, 25 N. E. 162. Estee's Pl. & Pr., § 3068. person of the defendant? If the answer be in the affirmative, then, second, Has the court jurisdiction of the subject of the action? For if the person or property named in the complaint is beyond the jurisdiction of the court, for any reason which appears upon the face of the complaint, then the action must fall. The second cause of demurrer under our practice is as to the capacity of plaintiff to sue; for should it appear from the face of the complaint that the plaintiff has no capacity to sue, the action likewise falls. The question of capacity to sue often arises where a married woman is plaintiff, or one of the plaintiffs, or when a minor sues, or when a person sues in a representative or official capacity. But, third, the court may have jurisdiction of the person or property of the defendant, and the plaintiff may have the legal capacity to sue, yet there may be another action pending between the same parties for the same cause; or, fourth, there may be a defect or a misjoinder of parties plaintiff or defendant. The inquiry whether there be another action pending, etc., can rarely be raised by demurrer, for, in most instances, the facts disclosing this will not appear on the face of the complaint, and hence that issue must be presented by the answer. But whether there is a misjoinder or defect of parties plaintiff or defendant is a question requiring a careful consideration. This may generally be settled by the inquiries: Has the plaintiff or defendant an interest in the event of the suit? Will his rights be adjudicated upon in the action? or, Will the rights of another person, not a party to the action, be affected in the disposition of the cause? The interest or right thus to be affected must be an actual, existing interest, an interest which any judgment of the court would nearly or remotely affect. A mere possible interest is not in general such as will require a party to be joined in the action. When, however, the title to property is sought to be determined by the judgment or decree of the court, then persons possessing very slight or remote interests should be made parties, as in actions of partition, the foreclosure of mortgages, etc. The next objection, and the fifth ground of demurrer under the California statute, is, "that several causes of action have been improperly united." For instance, an action for damages for personal injury cannot be united with an action on account; nor can an action to quiet title, or in ejectment, or any other action affecting real property, be united with a simple assumpsit. In general, under the liberal provisions of this statute, different |