The American Exchange Bank a. Smith.

note was produced to the clerk, and that he assessed the amount due thereon.

Section 281 of the Code specifies the papers that shall constitute the judgment-roll.

If there is no answer, it is to consist of "the summons and complaint, or copies thereof; proof of service, and that no answer had been received; the report, if any; and a copy of the judgment."

The answer having been withdrawn, the plaintiff was at liberty to perfect his judgment in the same manner as if no answer had been served.

Section 246, subdivision 1, in a case like the present, requires the clerk, on production of the note to him, to assess the amount due to the plaintiff thereon, and enter judgment for the amount so assessed. In cases other than those of actions on instruments for the payment of money only, and on which he may assess, he is to ascertain the amount due to the plaintiff from his examination under oath, or other proof, and enter judgment for the

amount so ascertained.

He is not, in terms, required to make any report or certificate of the amount assessed, or ascertained to be due. It was perhaps deemed unnecessary that he should be required to make or file a certificate of the amount so assessed or ascertained, because he is required to enter a judgment for such amount, and that will show the sum which he ascertained to be due. The attorney, in such a case, cannot, as under the former practice, enter the judgment, but the clerk enters it, and the judgment thus entered by himself will show as fully and formally the amount which he assessed as due to the plaintiff on the note, as any other paper could, whether in the form of a certificate or report.

Under subdivision 2, of section 246, when no answer is interposed, the court may order a reference, in certain cases, to ascertain the damages which the plaintiff shall recover, and in others to ascertain a fact to enable the court to give judgment, or to carry the judgment into effect. In the latter cases a report, of necessity, must be made, and such report must form a part of the judgment-roll.

Prior to the Code, in all cases in which the damages were assessed by the clerk, as a matter of course, the Revised Statutes,

The American Exchange Bank a. Smith.

while they required the clerk to report to the court the sum which he ascertained to be due to the plaintiff (2 Rev. Stats., 357, § 7), and declared that the court should give judgment for the sum reported, unless it modified or set aside the report (Ib., §8), also enacted that "the judgment so rendered shall be entered on the record, without stating any reference to the clerk, or any proceedings in consequence thereof; and the damages shall be stated as having been assessed by the court" (1b., § 8). The Code, in omitting to require the judgment-roll to show that the note was produced to the clerk, and that he assessed the amount due thereon, left the practice, in that respect, as the Revised Statutes had prescribed it.

We conclude, therefore, that when an unverified complaint states as a cause of action a promissory note made by the defendant, it is not necessary that the judgment-roll should state that the note was produced to the clerk, and that he assessed the amount due thereon.

No inference can be drawn from the silence of the judgmentroll, as to these facts, that he did not do his whole duty. On the contrary, the inference from it is, that he did all the Code directs.

In the present case, the papers filed as constituting the roll, tend to show, irrespective of the judgment itself, that he assessed the damages. There is a statement of the principal of the note, of the amount allowed for interest, and for protesting the note, and to the aggregate of these is added the costs as the clerk adjusted them. No point is made that either of these items is erroneous.

This being a case in which the clerk might assess the plaintiff's damages, the record does not omit to state any thing which is essential to a regular or valid judgment.

As the motion was not made to obtain relief from the judg ment on the merits, but merely to vacate it on the ground of irregularity alone, the order appealed from must be affirmed, with $10 costs.

Wilson a. The Mayor, &c., of New York.

WILSON a. THE MAYOR, &c., OF NEW YORK.

New York Common Pleas; General Term, December, 1857.

DEMURRER.-OBJECTION TO JURISDICTION.

An objection,--e. g. to the jurisdiction,—which does not appear on the face of the complaint, cannot be raised by demurrer.

Judgment cannot be given for a demurrant on a ground different from that which is stated in the demurrer.

Appeal from judgment sustaining demurrer to complaint.

This was an action brought to enjoin the collection of a tax, imposed, as the plaintiff contended, illegally. The defendant demurred, and assigned for grounds thereof that the complaint did not state facts sufficient to constitute a cause of action. At special term judgment upon the demurrer was given for the defendants, on the ground that a court of equity had not jurisdiction to restrain the collection of such a tax.* From this judgment the plaintiff appealed.

A. F. Smith, for the appellant.

R. Busteed and A. R. Lawrence, jr., for the respondents.

BY THE COURT.-INGRAHAM, F. J.-This case comes before us on an appeal from a judgment at special term, sustaining a demurrer to the complaint.

The ground of demurrer is stated to be, that the complaint does not state facts sufficient to constitute a cause of action; and the judge decided against the plaintiff, upon the ground that the court, as a court of equity, had no jurisdiction.

The ground thus stated is different from that stated in the demurrer; and the question is submitted to us, whether judgment can be given in favor of a demurrant for a cause different from that which is stated in the demurrer.

* See the case reported 1 Abbotts' Pr. R., 4.

Wilson a. The Mayor, &c., of New York.

Section 144 of the Code specifies six distinct grounds, for either of which a party may demur; and section 145 provides that the demurrer shall distinctly specify the grounds of objection to the complaints. If it do not, it may be disregarded.

I can see no good reason why a demurrant should be allowed to state one cause for demurrer, and succeed on another which he has not stated. The object of the Legislature in requiring the demurrer to state the grounds of objection to the complaint, was to give the opposite party notice of the alleged defect;— such is the whole system of pleading as it exists under the Code. The complaint and answer are required to contain a plain statement of the cause of action or defence. No form is necessary, and no technicalities are encouraged; and the same system applied to the demurrer, requires that it should plainly state the ground on which the demurrant rests his objection to the pleading. The object of the demurrer is to raise an issue upon the law, as the answer does upon the facts, and upon the trial the court is confined to that issue. It can never be upheld as an orderly proceeding in a court, while trying an issue of law, to find upon that issue in favor of one party, and to hold that there were other reasons, not involved in the issue, why judgment should be rendered against him.

It has been suggested that by the 148th section, the objection to the jurisdiction of the court is not to be deemed waived by the omission to set it up in demurrer or answer, but that it may be taken at any time.

By referring to section 144, it will be seen that a demurrer is only allowed where the ground of objection appears on the face of the pleading. Unless such objection appears in the pleading, it is no ground of demurrer; and the want of jurisdiction, or other objection, not appearing in the pleading, must be set up in the answer.

This was held by Judge Harris, in Getty v. The Hudson River Railroad Company (8 How. Pr. R., 183), where he says:"It is not to be forgotten that a demurrer is only appropriate when the ground of objection appears on the face of the pleading."

By section 147 it is provided that if the matter of objection does not appear on the face of the complaint, it may be set up in the answer; but if not so stated, where the objection is to the

Sexton a. Fleet.

jurisdiction, or the want of stating a good cause of action, the same is not to be deemed waived.

Taking these sections together, it is clear that a party can only demur where the ground of the demurrer appears on the face of the complaint; that in so demurring he must state the ground of demurrer on which he relies, and can only obtain judgment for the cause stated in the demurrer; that wherever the matter of objection does not appear on the face of the complaint, then it may be set up in the answer; and if no such objection (that is, an objection to the jurisdiction which does not appear on the face of the complaint) be taken by demurrer or answer, it shall not be deemed waived, &c.

In the present case, the facts are so fully disclosed in the complaint, that the ground upon which the judgment appealed from was rendered is apparent upon the face of it, and the same does not come within the exception, as stated in the 148th section.

It appears to me, therefore, that it was erroneous to render judgment for the defendant upon this demurrer for the cause stated. This view of the question of practice renders it unnecessary to examine the question upon the merits.

Judgment reversed, and judgment ordered for plaintiff, upon demurrer, with leave to defendants to answer, on payment of costs.

SEXTON a. FLEET.

New York Common Pleas; Special Term, January, 1858. ACTIONS TO CHARGE SEPARATE ESTATE OF MARRIED WOMEN.REQUISITES OF COMPLAINT.

A complaint seeking to charge the separate estate of a married woman with her debt, is bad upon demurrer, if it does not set forth the property which it is sought to reach, and the nature of her interest in it.*

* To the same effect is the dissenting opinion of Wright, J., in Dickerman v. Abrahams, 21 Barb., 551. For the proper form of complaint in such an action, and the proper demand of relief, see Abbotts' Forms of Pleadings, 85, Form No. 55, and notes.