That a claim was or was not released." Sufficiency: That certain. things were sufficient or insufficient, or that plaintiff does not have adequate remedy at law.49

Pleadings containing conclusions of law and other surplusage should be attacked by motion and not by demurrer.50 Conclusions of law are not admitted on demurrer.51

§ 98. What facts should be alleged-Essential facts. The rule that only facts should be stated in a pleading is further narrowed by the rule that the facts alleged must be essential facts. By this is meant that nothing should be stated which is not essential to the claim or defense, or, in other words, that none but issuable facts should be alleged.

What is and what is not essential may easily be determined. An unessential, or what is the same thing, an immaterial, allegation is one which may be stricken from a pleading without leaving it insufficient, and which, it follows, need not be proved or disproved. The following question furnishes an absolute test as to the essentiality of any allegation: "Can it be made the subject of a material issue?" In other words, "If it be denied, will the failure to prove it decide the case in whole or in part?" If it will not, then the fact is not essential; it is not one of those which constitute the cause of action, defense, or reply.52

From this it will be seen that "essential" is simply a synonym for "material" as applied to the allegation of facts in pleadings and as defined in the codes;53 and that those facts, and those alone, must be stated which constitute the cause of action, defense, or reply. But the effort of the pleader must not be directed solely

54

54 See on this point Dreux V. Domec, 18 Cal. 88; Smith v. Richmond, 19 Cal. 483; Bowen v. Aubrey, 22 Cal. 569; Grewell v. Walden, 23 Cal. 169; O'Connor v. Dingley, 26 Cal. 11; Johnson v. Santa Clara County, 28 Cal. 547; Larco v. Casaneuava, 30 Cal. 565; Racouillat v. Rene, 32 Cal. 456; Jones v. Petaluma, 36 Cal. 233; Joseph v. Holt, 37 Cal. 255; Bruck v. Tucker, 42 Cal. 351; Cline v. Cline, 3 Or. 359; Perkins v. Barnes, 3 Nev. 565; McNabb v. Wixom, 7 Nev. 172; Clark v. Bates, 1 Dak. 42, 46 Pac. 510; Clay County v. Simonsen, 1 Dak. 403, 430, 46 N. W. 592; Brown v. Galena Mining Co., 32 Kan. 528, 4 Pac. 1013.

to the exclusion of non-essential or immaterial allegations. Care must be taken to include all of the essential or material facts; for "should the pleadings be so framed that even the least important essential fact is left out, the cause of action is impaired.55

56

As has been pointed out in a preceding section, however, a pleader must not allege all the facts that go to prove his case; that only the ultimate facts should be pleaded, and not the probative facts. A pleader must allege the facts which he is required to prove, and will be precluded from proving any fact essential to his cause of action or defense not alleged;57 nothing can be left to the imagination or surmise of the court.58

A consequence of this rule is that given in the codes, that allegations and proof must correspond.59 But this applies expressly to material allegations alone, and in no wise modifies the rule excluding allegations of probative facts, although it doubtless often results in the insertion of probative facts by pleaders, in the fear that otherwise evidence will be excluded. Evidence is always admissible to establish probative facts, although such facts are not alleged in the pleading, and it is error for a court to exclude evidence offered for that purpose.

The expression "facts constituting a cause of action" means the facts which the evidence upon the trial will prove, not the evidence required to prove their existence. They have been variously called physical facts, issuable facts,62 or real, traversable facts."3

61

§ 99. Unnecessary averments. By indicating what should be included in a pleading we have already shown, by a process of exclusion, what should be omitted, and what is said under this head is merely a summary of general rules.

55 Estee's Pl. & Pr., § 190.

56 Fredericks v. Tracy, 98 Cal. 658, 33 Pac. 750; Latiallade v. Orena, 91 Cal. 565, 25 Am. St. Rep. 219, 27 Pac. 924; Rankin v. Newman, 107 Cal. 602, 40 Pac. 1024; Orman v. City of Pueblo, 8 Colo. 292, 6 Pac. 931; Meyer v. School Dist., 4 S. Dak. 420, 57 N. W. 68.

57 Green v. Palmer, 15 Cal. 414, 76 Am. Dec. 492; Willson v. Cleaveland, 30 Cal. 192; Hicks v. Murray, 43 Cal. 522; Gates v. Lane, 44 Cal. 392.

58 Going v. Dinwiddie, 86 Cal. 637, 25 Pac. 129.

59 Cal. Code Civ. Proc., § 1868.

60 Grewell v. Walden, 23 Cal. 165; Depuy v. Williams, 26 Cal. 314; Gillespie v. Jones, 47 Cal. 259; Sears v. Taylor, 4 Colo. 43; Sullivan v. Dunphy, 4 Mont. 511, 2 Pac. 284; Tarpey v. Deseret Co., 5 Utah, 215, 14 Pac. 338.

61 Lawrence v. Wright, 2 Duer, 674. And see Drake v. Cockroft, 1 Abb. Pr. 203.

62 Green v. Palmer, 15 Cal. 416, 76 Am. Dec. 492.

63 Mann v. Morewood, 5 Sandf. 557. See, also, Wooden v. Strew, 10 How.

The rule which comprehends all others under this head is that requiring that nothing be alleged affirmatively which is not required to be proved, or, in other words, which is not decisive of some part of the cause. For while it is the aim of the code to require pleadings to be so framed as to apprise the parties of the facts to be proved, it is equally its aim to narrow proofs at the trial. So merely formal allegations, such as require no proof at the trial, are unnecessary.

64

Thus it is not necessary to aver the fact of consideration for a promissory note sued on, or in an action for libel, where the publication is libelous per se, to allege that it was done "falsely and maliciously;" 65 or in an action for assault and battery, to allege that it was "willful" or malicious. The words, "duly,' "wrongfully," and "unlawfully," when used in connection with issuable facts, while they will not vitiate a pleading, had better be omitted."7 67 These words of themselves tender no issue.68

Ordinarily, the time when facts occur is not material, and need not be alleged in a pleading.69 The rule is otherwise, however, when the time is essential to the cause of action or the defense.

Facts independent of the cause of action, and proper to an affidavit accompanying a pleading, as in cases of arrest, should not be stated. So, also, of facts in relation to a contemporaneous agreement varying the terms of a promissory note," and of facts in connection with a former adjudication which is set up in a pleading.72

Where the facts are pleaded from which another necessarily results, that other need not be alleged.73 Matters of which the

Pr. 50; Carter v. Koezley, 14 Abb. Pr. 150; Cahill v. Palmer, 17 Abb. Pr. 196.

64 County Bank v. Greenberg, 127 Cal. 26, 59 Pac. 139; Gambrill v. Brown Hotel Co., 11 Colo. App. 529, 54 Pac. 1025.

65 Hunt v. Bennett, 19 N. Y. 173; Root v. King, 7 Cow. 620.

66 Andrews v. Stone, 10 Minn. 72; Sloan v. Speaker, 63 Mo. App. 321.

67 Halleck v. Mixer, 16 Cal. 574; Payne v. Treadwell, 16 Cal. 220; Lay v. Neville, 25 Cal. 545; People v. Board of Supervisors, 27 Cal. 655; Richardson v. Smith, 29 Cal. 529; Miles v. McDermott, 31 Cal. 271; Feeley v. Shirley, 43 Cal. 369.

68 Going v. Dinwiddie, 86 Cal. 633, 25 Pac. 129; Reardon v. San Francisco, 66 Cal. 496, 6 Pac. 317, 56 Am. Rep. 109.

69 Backus v. Clark, 1 Kan. 303, 83 Am. Dec. 437; Clyde v. Johnson, 4 N. Dak. 92, 58 N. W. 512'; Aultman v. Siglinger, 2 S. Dak. 442, 50 N. V. 911.

70 Sellar v. Sage, 12 How. Pr. 531, 13 How. Pr. 230; Frost v. McGargar, 14 How. Pr. 131; Secor v. Roome, 2 N. Y. Code Rep. 1. But see Barber v. Hubbard, 3 N. Y. Code Rep. 156.

71 Smalley v. Bristol, 1 Mann (Mich.), 153.

72 Richardson v. Jones, 57 Ind. 240. 73 Osborn v. Clark, 60 Cal. 622; Toby v. Ferguson, 3 Or. 27.

court takes judicial notice need not be averred." Ordinances of a municipal corporation will not be judicially noticed, however. If there is an exception in the enacting clause of a statute, it must be negatived in a pleading; but a proviso need not be.

It is not necessary to aver as a fact any matter already appearing on record; for without oyer, the court will take notice of such facts."

§ 100. Immaterial, irrelevant, and redundant matter.-Sham and irrelevant answers and irrelevant and redundant matter should be omitted from pleadings. Such allegations or denials present no issue, and the codes expressly provide that they may be stricken out, upon such terms as the court may, in its discretion, impose.78

As we have already seen, an immaterial allegation is an unessential allegation, one which presents no issuable fact, and which may be stricken from a pleading without impairing its sufficiency.79 A plea is sham when it sets up matter the falsity of which is clear and indisputable.80 Falsity in fact is the test, not the pleader's ignorance of its falsity.81 An irrelevant allegation is one that has no substantial relation to the controversy between the parties to the action; the term embraces prolixity and needless details of material matter, and matter out of which no cause of action or defense could arise between the parties to the particular suit.83 The term "redundant" is almost a synonym for "irrelevant." Redundancy consists in irrelevant allegations or unnecessary repetitions or prolixity of statement of material facts.8

84

B. & C. Codes, § 96; Green v. Palmer, 15 Cal. 416, 76 Am. Dec. 492.

80 Wetherell v. Wiberg, 4 Saw. 232, Fed. Cas. No. 17917; Morton v. Jackson, 2 Minn. 219; Littlejohn v. Greeley, 22 How. Pr. 345, 13 Abb. Pr. 311. 81 Roome v. Nicholson, 8 Abb. Pr. (N. S.), 343.

82 Morton v. Jackson, 2 Minn. 219; Struver v. Ocean Ins. Co., 2 Hilt. 475, 9 Abb. Pr. 23; Fabbricotti v. Launitz, 1 Code Rep. (N. S.), 121; Stafford v. Mayor of Albany, 6 Johns. 1.

83 Lee Bank v. Ritching, 20 N. Y. Super. 664, 11 Abb. Pr. 435.

84 Wetherell v. Wiberg, 4 Saw. 232, Fed. Cas. No. 17917; Dundas v. Wey

Surplusage is matter altogether superfluous and useless, and which may be rejected by the court, and the pleadings stand as if it were stricken out or had never been inserted.85 The term is comprehensive and includes all the objectionable matters mentioned in the preceding paragraph, when such objectionable matters are inserted in a pleading otherwise good. In such case, these superfluous matters do not vitiate the pleadings.88

Under this head may be included,-a false construction of the terms of a contract set up;87 inconsistent allegations;88 allegations which are absurd or the truth of which is impossible; conclusions of law; probative facts or evidence inserted in a pleading;91 ambiguous statements;92 hypothetical statements;93 frivolous matter.94

.90

mouth, Cowp. 665; Barstow v. Wright,
Doug. 668; Bowman v. Sheldon, 5
Sandf. 660; Rost v. Harris, 12 Abb.
Pr. 446; Benedict v. Seymour, 6 How.
Pr. 303; Clough v. Murray, 19 Abb.
Pr. 97.

85 Estee's Pl. & Pr., § 191; Orr Water Ditch Co. v. Reno Water Co., 19 Nev. 60, 6 Pac. 72; Sabine R. R. Co. v. Brousard, 69 Tex. 617, 7 S. W. 374. 86 Magee v. Fisher, 8 Ala. 320; Jenness v. City of Black Hawk, 2 Colo. 578; Helms v. Wagner, 102 Ind. 385, 1 N. E. 730; Rollett v. Reiman, 120 Ind. 511, 22 N. E. 666, 16 Am. St. Rep. 340; Bunker v. Osborn, 132 Cal. 480, 64 Pac. 853.

87 Stoddard v. Treadwell, 26 Cal. 294.

88 Uridias v. Morrill, 25 Cal. 31; Klink v. Cohen, 13 Cal. 623. And see Conway v. Clinton, 1 Utah, 222.

91 Green v. Palmer, 15 Cal. 414, 76 Am. Dec. 492; Bowen v. Aubrey, 22 Cal. 566; Larco v. Casaneuava, 30 Cal. 560; Willson v. Cleaveland, 30 Cal. 192.

92 Doe v. Sanger, 78 Cal. 150, 20 Pac. 366; Henke v. Eureka Endowment Assoc., 100 Cal. 429, 34 Pac. 1089.

93 Green v. Palmer, 15 Cal. 414, 76 Am. Dec. 492; Brown v. Rickman, 12 How. Pr. 313.

94 Smith v. Countryman, 30 N. Y. 655; Lockwood v. Salhenger, 18 Abb. Pr. 136; Van Valen v. Lapham, 13 How. Pr. 240.