President of Suffolk Bank v. President of Lowell Bank

Chapman, J. The defendants demur to the plaintiffs’ declaration, and assign their causes of demurrer pursuant to Gen. Sts. c. 139, § 13. One of the causes of demurrer which the statute authorizes is, “ that the declaration, or some count thereof, as the case may be, does not state a legal cause of action substantially in accordance with the rules contained in this chapter.” But in setting forth such a cause of demurrer the party is required to go further. “ The particulars in which the alleged defect consists shall be specially pointed out.” Under this provision it has been decided that the party must be confined to the causes of demurrer specified by him, although the declaration may be defective on grounds not specified. Washington v. Eames, 6 Allen, 417. The only defect which the defendants’ demurrer specifically points out is the following: “ Because it [the declaration! does [357] not set forth the bills alleged to have been presented, or copies of them, or give any reason why the same are not set forth.” All that precedes this statement must be regarded as merely introductory, for it does not of itself specifically point out any defect. But the statute does not make it necessary to set forth the bills or copies of them, or give any reason why they are not set forth. The Gen. Sts. c. 129, § 2, el. 9, only require that written instruments, except policies of insurance, shall be declared on “ by setting out a copy, or such part as is relied on, or the legal effect thereof, with proper averments to describe the cause of action.” So that a declaration may be good, though it does not set forth the instrument declared on, nor a copy of it, nor give any reason why the same are not set forth, provided it sets forth the legal effect with proper averments. Whether the declaration in this case properly sets forth the legal effect of the bills declared on, with proper averments, cannot be considered under the present demurrer, because no defect of this character is specifically pointed out. The pleader has merely pointed out as a defect the want of allegations that it is not necessary to make. Demurrer overruled.