Jenness v. Simpson

Pleading — Foreign Law — Bequisite Statement of — Conclusions of Pleader — Special Demurrer — Points Not Shown to Have Been Made Below. Any pleading relying on a foreign law must specifically set it forth, that the court may judge of its effect. A foreign law properly pleaded as a fact presents a question of law as to its legal effect; hence where without setting forth, such, law, the pleader avers only its legal effect, a special demurrer properly characterized the defect as a “conclusion of law.” In reviewing judgment on special demurrer, only those defects in the challenged pleading will be considered that the record shows were passed upon below.

Case for alienating the affections of plaintiff’s wife. 'Pleas, the general issue and two special pleas in bar. Heard on special demurrer to the first special plea, at the June Term, 1907, Caledonia County, Miles, J., presiding. Demurrer overruled, and plea adjudged sufficient. The defendant excepted. The plea in question relied upon a written contract made at Sioux Falls in the State of South Dakota on September 24, 1906, between the plaintiff and his wife, in.which plaintiff, for the consideration therein expressed, acknowledged full satisfaction “of any and all differences in law or equity existing between him” and his wife and the defendant; and wherein the plaintiff agreed that “this contract is made with the express understanding that no steps shall be taken in law or in equity in any form against ’ ’ his wife or the defendant. The second cause of demurrer assigned was: “That the language in said plea: ‘That it was then and there the law of said state that the force and effect of said contract was and is to deprive this plaintiff, the said Oliver H. Jenness; of all right of action against this defendant in respect of the matters and things alleged in the declaration in this case,’ is a conclusion of law.” The demurrer specified only two defects, and the record did not show that any other defects were relied upon below. The record shows only two objections passed upon by the court below, and plaintiff will here be confined to the objections made and ruled upon below. Vilas v. Downer, 21 Vt. 419; Walton v. Walton’s Est., 63 Vt. 513; Manning v. Leighton, 66 Vt. 56; Barrette v. Laurier, 69 Vt. 509; Parker v. McKannon Bros. & Co., 76 Yt. 96; State v. Sargood, 80 Yt. 412; State v. School-craft, 72 Yt. 222.. The defect pointed ont is that the allegations in respect of the -foreign law are ‘ ‘ conclusions of law, ’ ’ and plaintiff should be here confined to that characterization. The allegations in question, if conclusions are conclusions of fact and not of law, for the foreign law is- a fact to be pleaded and proved like any other fact. Morrisette v. R. R. Co., 74 Yt. 232. The foreign law relied upon is set out with sufficient definiteness. Barney v. Drexel, 33 Hun. (N. Y.) 34; Consolidated Tank Line Co. v. Collier, 148 111. 259. The questioned allegations are not averments of fact but merely the conclusions of the pleader, and bad on demurrer. Herring v. Selding, 2 Aik. 12; Peck v. Hibbard, 26 Vt. 698; McLeod v. R. R. Co., 58 Yt. 727; Walker v. Maxwell, 1 Mass. 104; Hemstead v. Reed, 6 Conn. 480; Dainese v. Hale, 91 U. S. 13; Monroe v. Douglas, 5 N. Y. 451; Roots v. Merriwether, 8 Brush (Ky.) 397; Creenwade v. Greenwade, 3 Dana (Ky.) 495; Jones v. Tennessee Bank, 8 B.. Mon. 122; Collett v. Keith, 2 East 260; Holmes v. Broughton, 10 Wend. (N. Y.) 75.