McGlone v. Prosser

| Wis. | Jun 15, 1866

Dixon, C. J.

The plaintiffs sue upon their equitable right— the right given them by the statute, as the holders of the certificate, to maintain ejectment and other actions with respect to the land therein described. R. S., ch. 28, sec. 51. It is therefore a suit upon the statute. In pleading upon a statute, an exception in the general clause must be stated and negatived, so as to show that the party relying upon the general clause is not within the exception. 1 Chitty’s Pl., 223; Vavasour v. Ormrod, 6 B. & C., 430 (13 E. C. L., 225); Smith v. Moore, 6 Greenl., 277. The statute contains this exception — part of the general clause: “ unless such certificate shall have become void by forfeiture so that, notwithstanding the general averment that the plaintiffs own the certificate and are entitled to the possession of the premises under it, it still does not appear from the complaint that they have any right of action upon the statute. The certificate may have become void by forfeiture.

As the exception is not noticed and negatived in the complaint, no cause of action is shown, and the demurrer, for this reason, was properly sustained.

By the Court — Order affirmed.