deposit of a copy of the summons in the post-office, if the same shall have been deposited; or,

4th. The written admission of the defendant.

1. The return of a summons may be amended. Dorente v. Sullivan, 7 Cal. 280. 2. 1st. The return of a sheriff or an affidavit of a person acting in his place, of the service of a summons, is not conclusive upon the defendant. Van Rensselaer v. Chadwick, 7 How. Pr. 297.

3. 3d. The affidavit of a clerk, not stating that he is the principal clerk, is sufficient if the affidavit shows him to be the only clerk. Gray v. Palmer, 9 Cal. 616.

4. 4th. The admission of the defendant, to be available in the action, should be accompanied with some evidence of the genuineness of the signature of the parties. Alderson v. Bell, 9 Cal. 315.

5. An acknowledgment of service of summons is only sufficient when reduced to writing and subscribed by the party. A verbal acknowledgment is not sufficient. Montgomery v. Tutt, 11 Cal. 307.

34. In case of service otherwise than by publication, the certificate or affidavit shall state the time and place of the service.

1. The certificate of the sheriff need not show that the copy of the complaint served was certified by the clerk, as the presumption is, the clerk did his duty in a legal manCurtis v. Herrick, Cal. Oct. T. 1859.

ner.

2. The evidence of the place of service, if insufficient to authorize the rendition of the judgment, should have been taken advantage of, either upon appeal or on motion to vacate the judgment. Pico v. Sunol, 6 Cal. 294.

35. From the time of the service of the summons and copy of complaint in a civil action, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant shall be equivalent to personal service of the summons upon him.

1. What constitutes an appearance? See section 523.

2. An appearance by attorney amounts to a waiver of service. Suydam v. Pitcher, 4 Cal. 280; Mahoney v. Penman, 4 Duer, 603.

3. Where a defendant appears for the purpose of taking advantage of irregular summons by a motion to dismiss, it does not amount to a waiver of his rights so as to cure the defect; nor does he waive his rights by answering after moving to dismiss, and motion overruled. Deidesheimer v. Brown, 8 Cal. 339; Gray v. Hawes, ib. 562.

4. A recital of an appearance in an answer of several defendants is never conclusive, and where the expression is general, it is confined to those parties who have been served with process. Chester v. Miller, Cal. Ap. T. 1859.

5. A voluntary and general appearance, besides being equivalent to a personal service of the summons, is a waiver of all defects in summons and previous proceedings.

Gardner v. Teller, 2 How. Pr. 241; Hill v. Smith, ib. 242; Mulkins v. Clark, 3 ib. 27; Georgia Lumber Co. v. Strong, ih. 246; Dix v. Palmer, 5 ib. 233, 3 Code R. 214; Flynn v. Hudson R. R. R. Co. 6 How. Pr. 308; Webb v. Mott, ib. 439; Hewitt v. Howell, 8 ib. 346; Carpenter v. New York & New Haven R. R. Co., 11 ib. 481; Hyde v. Patterson, 1 Abbott, 248.

TITLE IV.

OF THE PLEADINGS IN CIVIL ACTIONS.

FOR INTERVENTION, SEE SECTIONS 659, ET. SEQ.

36. The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court. 1. Pleadings must be strongly taken against the pleader. Chipman v. Emeric, 5 Cal, 49; Dickenson v. Maguire, 9 Cal. 46; Green v. Covillaud, 10 ib. 317. 2. The mode of taking advantage of defective pleadings discussed. 3 Kern. 83.

White v. Joy,

37. All the forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this act.

1. All rules of pleading that are merely technical, are abolished by this act. Cobb v. West, 4 Duer, 44.

38. [1855, 1860.*] The only pleadings on the part of the plaintiff shall be the complaint, demurrer, or replication to the defendant's answer, and the only pleadings on the part of the defendant shall be a demurrer to the complaint, or a demurrer to the replication, or an answer to the complaint. The demurrer or answer of the defendant, and the demurrer or replication of the plaintiff, shall be filed with the clerk, and a copy thereof served on the adverse party, or his attorney.

39. The complaint shall contain:

1st. The title of the action, specifying the name of the court and

*Statutes of 1860, 00.

the name of the county in which the action is brought, and the name of the parties to the action, plaintiff and defendant.

2d. A statement of the facts constituting the cause of action, in ordinary and concise language.

3d. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof shall be stated.

1. A plaintiff must be confined to the allegations in his complaint. Branger v. Chevalier, 9 Cal. 353.

2. When a pleader wishes to avail himself of a statutory privilege, or right given by particular facts, he must show the facts; those facts which the statute requires as the foundation of the right must be stated in the complaint. Dye v. Dye, 11 Cal. 163.

3. It is well where an action at law is blended with a demand for relief in equity, to commence the latter portion of the complaint which seeks the equitable relief, with the form "and for equitable relief pending the above action at law, the plaintiff further represents," or 'for a further cause of action," &c. Natoma Water Co. v. Clarkin,

Cal. Oct. T. 1859.

4. The pleader is required to state in ordinary and concise language, the facts constituting the cause of action, and the addition of unimportant words and phrases, which do not alter the meaning and lead to doubt and misapprehension, cannot change or impair the effect of the pleading. Darst v. Rush, Cal. July T. 1859.

5. Every fact which the plaintiff must prove to enable him to maintain his action, and which the defendant has the right to controvert in his answer, must be distinctly stated. Jerome v. Stebbens, Cal. Oct. T. 1859.

6. 1st. The statement of the place of trial (and name of the court) in the complaint is essential for many purposes of the action. Merrill v. Grinnell, 10 How. Pr. 31.

7. 2d. Where, on appeal, the complaint is so radically defective as not to authorize the judgment of the court below, a new trial may be granted, with leave to the plaintiff to amend his complaint, on such terms as the court below may deem just. Sterling v. Hanson, 1 Cal. 378.

8. One partner cannot sue another for a partnership transaction, without praying for an account and a settlement of the partnership transactions. Russell v. Ford, 2 Cal. 86; Buckley v. Carlisle, ib. 420; Stone v. Fouse, 3 Cal. 292; Nugent v. Locke, 4 Cal. 318; Barnstead v. Empire Mining Co. 5 Cal. 299.

9. If the complainant do not show a good cause of action, the judgment will be reversed though no objection be taken below. Russell v. Ford, 2 Cal. 86.

10. The statute requiring the complaint to contain a statement of the facts constituting a cause of action in ordinary and concise language, is only declaratory of the common law. Godwin v. Stebbins, 2 Cal. 103.

11. The allegations of ignorance in making the necessary averments, or of insufficient conduct in the prosecution of a former suit, do not constitute a ground for relief in chancery. Barnett v. Kilburn, 3 Cal. 327.

12. Where a bill disclosed that the same subject matter had been litigated between

the same parties in a prior suit, and that in said suit, the plaintiff in this suit had set up the same equity which he claims in this bill, the bill was ordered to be dismissed. Ib. 13. Where the complaint alleged that in September, 1849, plaintiff settled on a tract of land, "the same being public land of the United States;" that subsequently H., a foreigner, built a house and occupied a portion of the tract, and now that H.'s executor is offering the same for sale, and the plaintiff prays an injunction, and damages for the occupation: Held, that the complaint sets forth no principle on which to base a claim. O'Conner v. Corbitt, 3 Cal. 370; Ramirez v. Murray, 5 Cal. 222.

14. Where the declaration was upon a note, and there was but one count, and the court found that the note was never given, but that the indebtedness of defendant to plaintiff was for merchandise sold: Held, that the finding was against the averment, and could not support the judgment. Lewis v. Myers, 3 Cal. 475.

15. A declaration is insufficient, which treats the maker and guarantor of a note as joint makers, and contains no allegation of demand and notice. Lightstone v. Laurencel, 4 Cal. 277.

16. In an action upon a promise to pay money, the complaint should aver consideration or indebtedness. Shafer v. Bear River Co., 4 Cal. 294.

17. An amended complaint cannot be allowed to change the nature of an action. Ramirez v. Murray, 5 Cal. 222.

18. It is only necessary that the cause of indebtedness should be stated in such a manner as to apprise the defendant of the object of the suit. Mulliken ▼. Hall, 5 Cal. 245.

19. A complaint in ejectment need not aver title in the plaintiff, but an averment of prior possession and an ouster is sufficient. Norris v. Russell, 5 Cal. 249.

20. In an action of trespass against a sheriff, where he is declared against personally, and not as sheriff, it is competent to prove that the defendant was sheriff, and that his deputy as such committed the trespass. Poinsett v. Taylor, 6 Cal. 78.

21. Objections to the form of a complaint cannot be raised for the first time in the appellate court. Sutter v. Cox, 6 Cal. 415.

22. In a complaint upon a bond by defendant in an action, either for the delivery of property replevied, or the release of property attached, the conditions precedent of the bond must be set forth in the complaint. Palmer v. Melvin, 6 Cal. 651; Nickerson v. Chatterton, 7 Cal. 568; Williamson v. Blattan, 9 Cal. 500.

23. A great necessity exists for a correct description of commercial paper in a complaint, so as to operate as a bar to any subsequent action to recover for the same cause. Farmer v. Cram, 7 Cal. 135.

24. In a bill in equity, filed to reach assets which are alleged to be fraudulently conveyed, it is not sufficient simply to aver that the conveyance was fraudulent, but facts and circumstances must be set out and shown, to sustain the theory of the bill. Kinder v. Macy, 7 Cal. 206.

25. In an action against an agent for not accounting, etc., a request to account and pay over must be alleged in the complaint, and proved at the trial. Bushnell v. McCauley, 7 Cal. 421.

26. The allegation that plaintiffs were the owners and in the possession of a mining

claim, is sufficient without setting out the particulars of the title. Leigh Co. v. Independent Ditch Co., 8 Cal. 323.

27. Where the payment of a promissory note is by agreement of parties made conditional upon the payment, by the payee, of a certain debt of the payor, such payment is a condition precedent to plaintiff's right to recover on the note, and must be averred in the complaint to have been made. Rogers v. Cody, 8 Cal. 324.

28. The averment in the complaint that the plaintiff is the owner of the note and mortgage is sufficient, without showing that he is the holder. Rollins v. Forbes, 10 Cal. 299.

29. The plaintiff must aver every fact necessary to show a right to recover, and every such necessary averment must be proved in some way. Murdock v. Chenango Co. Mut. Ins. Co., 2 Coms. 210.

30. A complaint should state the facts of a case full enough to enable the court on proof or admission of the facts set forth, to grant the relief sought. Tallman v. Green, 3 Sand. 438.

31.

When an action is founded on an agreement which would be void under the statute of frauds, unless in writing and signed by the party to be so charged, these facts, as constituting a part of the cause of action, must be averred in the complaint. Thurman v. Stevens, 2 Duer, 609; contra, Leroy v. Shaw, ib. 426.

32. The plaintiff is to state in his complaint the facts which constitute the cause of action, and nothing more. Clark v. Harwood, 8 How. Pr. 470.

33. It is not allowed to the plaintiff to set forth in different counts, several distinct causes of action for the same indebtedness. Lackey v. Vanderbilt, 10 How. Pr. 155; Ford v. Mattice, 14 ib. 91.

34. Several causes of action upon promissory notes may be united in the same complaint. They are not improperly united simply because they are not separately stated. Dorman v. Kellum, 14 How. Pr. 184.

35. In the complaint against the drawer of a bank check, or of a bill of exchange properly so called, it is necessary to aver either demand or notice to the drawer of nonpayment, or such facts, e. g., want of funds in the bank, to excuse the demand and notice. Shultz v. Dupuy, 3 Abbott, 252.

36. A complaint upon a promissory note against maker and endorser, is not good if it fails to aver that the maker made and the endorser endorsed the note. Price v. Mc Clare, 3 Abbott, 253.

37. A complaint seeking to charge the separate estate of a married woman with her debts 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. Sexton v. Fleet, 6 Abbott, 8.

38. An officer of a foreign bank brought an action in his own name, upon a bill of exchange belonging to the bank, and alleged in his complaint that he was such officer, and "duly authorised" to commence any and all proceedings at law, &c., on behalf of the bank, and that this action was brought on behalf of the bank; held, that the complaint was bad on demurrer for not setting forth the existence and terms of the foreign law, if any, under which the bank was organized, and an authority given plaintiff to sue on its behalf. An allegation that plaintiff was duly authorized to bring the action, is not an allegation of fact, but merely of a conclusion of law. Myers v. Machado, 6 Abbott, 198.