be final. A judgment on a plea in abatement, or on a demurrer to a plea in abatement, is not final, but on a demurrer which contains matter in abatement it shall be final, because a demurrer cannot partake of the character of a plea in abatement. Salk., 220, is quoted by Bacon, and is to the same purport, indeed, in the same words. These cases show that a demurrer, being in its own nature a plea to the action, and being even in form a plea to the action, shall not be considered as a plea in abatement, though the special cause alleged for demurring be matter of abatement. This court will disregard these special causes, and, considering the demurrer independently of them, will decide upon it as if they had not been inserted in it.' And then the Chief Justice adds, in respect to the particular case then in hand, that 'these cases go far to show that the court would overrule the demurrer, and decide the cause against the party demurring, not that it should be expunged from the pleadings.'

"The second ground of special demurrer is, that the plaintiff shows no title to the bonds or obligations sued on, nor such an interest in the suit as will authorize him to maintain an action on the same. Neither fact stated is a matter of form, and cannot therefore be a cause for a special demurrer. But taking them as matters of substance, the insertion of them in the plaintiff's declaration is not necessary to show his right to sue and recover upon these bonds, or material for the defendants in their plea. This objection will not avail to sustain the judgment.

"The remaining objection to be considered is the third in the order stated, and may be as briefly and as satisfactorily disposed of as some of the rest have been. It is, that the parties for whose use the suit is brought

are not named, who by the laws of Mississippi are the real plaintiffs, and responsible for costs. We remark, that for whose use the bonds were taken is not recited as personal to any of the Choctaw orphans, but as an aggregate for all such as were entitled to lands under the nineteenth article of the treaty. The demurrer admits that the bonds were so made by the defendants, and that the recital in the declaration is as the fact is expressed in the bonds.

"The inquiries, then, into who are individually the orphan children residing in the Choctaw nation, or who by name are entitled to a quarter section of land, or any such averments in the plaintiff's declaration, were not necessary to entitle him to recover, and could not be shown either as a cause of special demurrer, or be urged under a general demurrer to prevent a recovery in this case.

"All of us are of the opinion, that there is nothing in the causes of demurrer which were shown in the argument, or in the special causes assigned, to sustain the demurrer, and thinking, as we all do, that nothing has been shown to lessen the obligations of the defendants to pay these bonds, or their liability to be sued for them at law, we shall direct the judgment of the court below to be reversed, with costs, and shall order the cause to be remanded to the District Court, with directions to that court to enter judgment in this case (principal and interest) for the plaintiff in that court."

CHAPTER VIII.

RULES OF PLEADING.

SECTION 40. RULES TENDING SOLELY TO THE PRODUCTION OF AN ISSUE.

(1) After the declaration, the parties at each stage must demur, or plead, either by way of traverse or of confession and avoidance.

(2) Upon a traverse, issue must be tendered. (3) When issue is tendered, it must be accepted.

SECTION 41. RULES TENDING TO PRODUCE A MATERIAL

ISSUE.

(1) All pleadings must contain matter pertinent and material. Two minor rules need to be noticed: A traverse must not be taken on

material point.

an im

A traverse must not be too large, or too narrow, i. e., a traverse of an allegation should take in no more of that allegation than is material, nor should it omit any material portion of the allegation.

SECTION 42. RULES TENDING TO PRODUCE A SINGLE ISSUE.

(1) Pleadings must not be double. This rule, as applied to the declaration, means that it must not, in support of a single demand, allege several distinct matters, by any one of which that demand is sufficiently supported. In regard to the subsequent pleadings the rule means that none of them is to contain several distinct answers to the pleading which precedes it.

The effect of this rule is qualified by allowing the plaintiff to unite several counts in the same declaration. Consequently the defendant can offer different pleas, according to the nature of the different counts.

(2) It is not allowable to plead and demur to the same matter.

SECTION 43. RULES TENDING TO PRODUCE A CERTAIN ISSUE.

(1) The pleadings must have certainty of place; i. e., the venue of the action, namely, the county in which it is to be tried, must be stated in the declaration. Actions, with regard to venue, are divided into two classes:

(a) Local, or those the cause of which could have arisen in some particular county only, as any of the real actions.

(b) Transitory, or those the cause of which might have arisen anywhere.

In transitory actions, the venue may be laid in whatever county the plaintiff chooses. The matter of venue is now largely regulated by statute.

(2) The pleadings must have certainty of time. In personal actions, the day, month and year when each traversable fact occurred must be alleged.

As a rule, the time is not regarded as being material to the issue, so that the pleader is not obliged to prove the time as alleged.

(3) The pleadings must specify quality, quantity, and value.

(4) The pleadings must specify the names of parties.

(5) The pleadings must show title in the party bringing the suit.