rer, 226

commenced.223 The defense of laches appearing upon the face of a bill in equity, which fails to set forth facts excusing the delay, may be set up by demurrer, either general or special.224 If the complaint fails to show whether the contract was verbal or in writing, it will be presumed to be in writing for the purposes of the demurrer.225 It should be distinctly stated in the demurIt is a personal privilege which must be set up or be deemed waived.227 Under the California system the rule is the same in law and equity; and if it appear upon the face of the complaint that the action is barred, and no facts are alleged taking the demand from the operation of the statute, the complaint is defective, and demurrer lies.228 If the demand be in truth barred, but the fact does not appear upon the face of the complaint, the defense must be made by answer. Where a bill in equity states a case to which the act of limitations applies, without bringing it within some of the savings, the defendant may take advantage of the bar by demurrer.229 Where the statute creates an absolute bar by mere lapse of time without exception, the defense may be made by demurrer, if the necessary facts appear in the complaint.230 But the demurrer should be resorted to only where it clearly appears that the plaintiff's case has been fully stated, and that being so stated no recovery can be had.231 By the practice in New York and Montana, it appears that the defense of the statute of limitations can only be taken by answer.232 An allegation in a demurrer, "that it appears by the complaint that the cause of action is barred by the statute of

Ill. 333, 42 N. E. 138. See Castro v. Geil, 110 Cal. 292, 52 Am. St. Rep. 84, 42 Pac. 804.

223 Columbia Sav. & Loan Assoc. v. Clause, 13 Wyo. 166, 78 Pac. 708.

224 Keerfoot v. Billings, 160 Ill. 563, 43 N. E. 804. See, on this point, Sands v. St. John, 36 Barb. 628, 23 How. Pr. 140.

225 Miles v. Thorne, 38 Cal. 335, 99 Am. Dec. 384.

226 Brown v. Martin, 25 Cal. 89; Farwell v. Jackson, 28 Cal. 106; Trubody v. Trubody, 137 Cal. 172, 69 Pac. 968.

227 Grattan v. Wiggins, 23 Cal. 16; Motes v. Gila etc. Ry. Co., 8 Ariz. 50, 68 Pac. 532.

228 Smith v. Richmond, 19 Cal. 476; Maxwell v. Kennedy, 8 How. 210, 12 L. Ed. 1051; Arkins v. Arkins, 20 Colo. App. 123, 77 Pac. 256; Chemung Min. Co. v. Hanley, 9 Idaho, 786, 77 Pac. 226.

229 Wisner v. Barnett, 4 Wash. C. C. 631, Fed. Cas. No. 17914. Compare Dorsey Machine Co. v. McCaffrey, 139 Ind. 545, 47 Am. St. Rep. 290, 38 N. E. 208; Hawkins v. Donnerberg, 40 Or. 97, 66 Pac. 691, 908. 230 State v. Bird, 22 Mo. 470. 231 McNair v. Lott, 25 Mo. 182.

232 New York Code, 1877, § 413; Sands v. St. John, 36 Barb. 628, 23 How. Pr. 140, Mont. Rev. Codes, § 6475; Grogan v. Valley Trading Co., 30 Mont. 229, 76 Pac. 211.

233

limitations," is sufficient in form to raise the question of law as to whether the alleged cause of action is barred by the statute, but generally the section of the code relied on should be stated.284

§ 324. Statutory penalty.-In an action to recover damage by the owner of a licensed ferry against a party alleged to have run a ferry within the limits prohibited by law it was held that the complaint should have alleged that defendant ran his ferry for a fee or reward, or the promise or expectation of it, or that he ran for other than his own personal use, or that of his family; and the omission of those allegations was fatal.235

§ 325. Undertaking on attachment. In an action on an undertaking, executed to release property from attachment, the complaint should allege that the property attached was released upon the delivery of the undertaking.236 A failure to do so is fatal, and the defect may be taken advantage of by demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action.237

§ 326. Admissions by demurrer. In an action by the postmaster-general against a deputy postmaster and his sureties. on the bond executed by them, the sureties pleaded that plaintiff did not, as he was bound by law to do, call upon his deputy to settle his accounts, or cause suits to be brought against him for not so doing; nor did he give notice to the sureties of the defaults; but fraudulently, and in violation of his duty to the United States. and to the sureties, neglected to bring such actions, and to give. notice. It was held that the demurrer having admitted the fraud stated in the plea, the plaintiff could not recover,238

§ 327. What it admits.-Demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action admits the validity of the statute authorizing plaintiff to

sue.

239

233 Brennan v. Lord, 46 Cal. 7.

234 Nelden-Judson Drug Co. v. Com. Nat. Bank, 27 Utah, 59, 74 Pac. 195; Trubody v. Trubody, 137 Cal. 172, 69 Pac. 968.

235 Hanson v. Webb, 3 Cal. 237. 236 Williamson v. Blattan, 9 Cal. 500.

237 Williamson v. Blattan, 9 Cal. 500. See Selz v. Tucker, 10 Utah, 132, 37 Pac. 249.

238 Postmaster-General v. Ustick, 4 Wash. C. C. 347, Fed. Cas. No. 11315; United States v. Sawyer, 1 Gall. 86, Fed. Cas. No. 16227; Greathouse v. Dunlap, 3 McLean, 303, Fed. Cas. No. 5742; McCue v. Corporation of Washington, 3 Cranch C. C. 639, Fed. Cas. No. 8735.

239 Litchfield v. McComber, 42 Barb

288.

328. Written instrument.-An objection to the pleading of a written instrument, by stating its legal effect, instead of setting forth its contents, can be taken only by demurrer.240

$329. Foreclosure of mechanic's lien-Conclusion of law. An objection to the complaint in an action to foreclose a lien for materials furnished a contractor, on the ground that it states merely a conclusion of law as to the amount due and owing from the owner to the contractors, and that it contains no specific averment as to what was the contract price between them, or that there was any express agreement to pay anything, or what was the reasonable value of the work to be done, can only be raised by demurrer, and cannot be urged for the first time on appeal.241

§ 330. Trespass-Unavailing demurrer.-Failure on the part of the owner of land upon which alleged trespass was committed, to comply with certain statutory requirements in connection with his land, conceding it to be a defense to an action for the trespass, cannot be taken advantage of by demurrer to a complaint in which no such fact is alleged.242

§ 331. Action commenced in wrong county.-That an action was commenced in the wrong county is not a ground of demurrer. The defendant's remedy, in such a case, lies in an application to the court, on cause exhibited, to change the place of trial to the proper county.243 Under Oregon procedure, when a defendant wishes to challenge the authority of a court to try an action in replevin in the county in which such action is brought, unless it was alleged in the complaint that the property was taken in such county, he should distinctly specify that objection in his demurrer, and thereby call the attention of the court to the point he asked to have decided.244

§ 332. Ambiguity. This cause of demurrer may be interposed when the complaint is "ambiguous, unintelligible, or uncertain." Under this subdivision it is necessary for the pleader to point out

240 Kellogg v. Baker, 15 Abb. Pr. 286.

241 Russ Lumber etc. Co. v. Garrettson, 87 Cal. 589, 25 Pac. 747.

242 Triscony v. Brandenstein, 66 Cal. 514, 6 Pac. 384.

P. P. F. Vol. I-14

243 Wasson v. Hoffman, 4 Colo. App. 491, 36 Pac. 445.

244 McCarty v. Wintler, 17 Or. 393, 21 Pac. 195.

wherein the complaint is ambiguous, unintelligible, or uncertain, or it will be disregarded.245 The defendant is entitled to a distinct averment in the complaint of the facts which the plaintiff claims to exist, and if the averments are in the alternative, the complaint is ambiguous, even if either averment states a cause of action.246 Mere indefiniteness and uncertainty are not enough to sustain a demurrer in the state of New York.247 In Ohio, demurrer will not lie for indefiniteness or uncertainty. So a demurrer will not lie for uncertainty in New York. The omission to state the time and place of slander is not a ground for demurrer; the remedy is by motion.248 If the pleadings are not full and accurate, the remedy is by motion to cure the defect.249 So where an executor united notes payable to his testator.250 But a demurrer will lie for uncertainty in California.251 A demurrer on the ground. of ambiguity should be overruled if enough appears to render the pleading demurred to easy of comprehension and free from reasonable doubt.252 The question of ambiguity is not raised on demurrer for want of facts.253 That a complaint sets forth the facts more particularly than is absolutely necessary is no ground for demurrer.25 In California, if there are any valid objections to a complaint on the ground of ambiguity or uncertainty, such objections can only be taken by special demurrer.255 And a special demurrer to a complaint, assigning as a ground that it is ambiguous, unintelligible, and uncertain, is properly overruled if the complaint is not subject to each of the objections assigned. 256

245 Blanc v. Klumpke, 29 Cal. 156; Yolo County v. Sacramento, 36 Cal. 193; Lorenzana v. Camarillo, 45 Cal. 125; Jacobs v. Union Mercantile Co., 17 Mont. 61, 42 Pac. 109.

246 Jamison v. King, 50 Cal. 132. For a special case of ambiguity, see Tomlinson v. Monroe, 41 Cal. 94; Hollister v. State, 9 Idaho, 651, 77 Pac. 339.

247 Chesbrough v. New York etc. R. R. Co., 13 How. Pr. 557; People v. Ryder, 12 N. Y. 433; Roeder v. Ormsby, 13 Abb. Pr. 334.

248 Finnerty v. Barker, 7 N. Y. Leg. Obs. 316.

249 Puget Sound Iron Co. v. Worthington, 2 Wash. T. 472, 7 Pac. 882, 886; Jackson v. Jackson, 17 Or. 110, 19 Pac. 847; Freeksen v. Turner, 19 Or. 106, 23 Pac. 857.

250 Welles v. Webster, 9 How. Pr. 251.

251 Cal. Code Civ. Proc., § 430, subd. 9, as amended 1907.

252 Salmon v. Wilson, 41 Cal. 595.

253 Slattery v. Hall, 43 Cal. 191. Time to object for ambiguity. See Spencer v. Montana Railway Co. 11 Mont. 164, 27 Pac. 681.

254 Porter v. Allen, 8 Idaho, 358, 69 Pac. 105, 236.

255 Colton v. Onderdonk, 69 Cal. 155, 58 Am. Rep. 556, 10 Pac. 395; Kirsch v. Derby, 96 Cal. 602, 31 Pac. 567.

256 Spargur v. Heard, 90 Cal. 221, 27 Pac. 198. See White v. Allatt, 87 Cal. 245, 25 Pac. 420; Wilhoit v. Cunningham, 87 Cal. 453, 25 Pac.

675.

But it is held that a conjunctive demurrer on the general grounds of ambiguity, unintelligibility, and uncertainty will be regarded only as a demurrer for uncertainty, where the only specifications made are on the ground of uncertainty.257 Defects in pleadings which make them uncertain are special grounds of demurrer under the code of Idaho, and cannot be taken advantage of on general demurrer. 258 A demurrer alleging that the complaint is "multifarious and improperly confounds two distinct causes of action not belonging to the same class," and "that the complaint is ambiguous, unintelligible, and uncertain," is held not to be sufficiently definite.259 The objection that the averments of a complaint are contradictory must be taken by special demurrer.260 And a complaint is demurrable for ambiguity and uncertainty if its allegations are inconsistent with an exhibit thereto attached.261 The rule that error which does not affect substantial rights is to be disregarded is applied to a demurrer for ambiguity.262

§ 333. Ejectment. In ejectment, where the complaint avers that "the plaintiff on a day named was, and ever since has been, and still is, the owner in fee simple, seised and possessed," etc.; "that, on a day thereafter named, and while the plaintiff was so the owner in fee simple, seised and possessed, defendants entered and ousted him, and from thence hitherto have and still do withhold the same," etc., the complaint may be demurred to for ambiguity.263 A complaint averring that defendant "unlawfully entered on the said land, and then and there turned this plaintiff out of the possession thereof. . . and ever since. said defendant has held and still holds possession thereof," is not demurrable as alleging unlawful entry and forcible detainer in one count.264 Also, an allegation that defendant is unlawfully withholding possession by menace and threats of violence, and still unlawfully withholds possession of the property from plain

257 Field v. Andrada, 106 Cal. 107, 39 Pac. 323. Compare Greenebaum v. Taylor, 102 Cal. 624, 36 Pac. 957; Ryan v. Jacques, 103 Cal. 280, 37 Pac. 186.

258 Palmer v. Utah etc. R. R. Co., 2 Idaho, 315, 13 Pac. 425.

259 Owen v. Oviatt, 4 Utah, 95, 6 Pac. 527.

260 Heeser v. Miller, 77 Cal. 192, 19 Pac. 375.

261 Palmer v. Lavigne, 104 Cal. 30, 37 Pac. 775.

262 Gassen v. Bower, 72 Cal. 555, 14 Pac. 206. Compare Alexander v. Central Lumber etc. Co., 104 Cal. 532, 38 Pac. 410; Consolidated Nat. Bank v. Pacific Coast etc. Co., 95 Cal. 1, 29 Am. St. Rep. 85, 30 Pac. 96.

263 Brown v. Martin, 25 Cal. 82. 264 Kerr v. O'Keefe, 138 Cal. 415, 71 Pac. 447.