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Martin v. Wray

1 Cal. Unrep. 25 Court Cal. Decision date 1856-05-19 Docket No. 1095 English

Judges I concur: Terry, J.

Delivered by *26 MURRAY, C. J.

Contents

Majority

p. 25
SAMUEL B. MARTIN, Respondent, v. CALEB P. WRAY, Appellant.
No. 1095;
May 19, 1856.

Headnote

Specific Performance — Nature of Remedy. — The aetion to enforce specific performance of a contract is an equitable remedy.
Pleading. — Misjoinder of Causes of Action in a Complaint is a defect to be taken advantage of by demurrer only, and if not so taken advantage of is deemed to be waived.
APPEAL from Third Judicial District, Alameda County.
Chipman & Pease for respondent; J. B. Hunt for appellant.

— There appears to be but two assignments of error: 1. That the plaintiff: had an adequate remedy at law, and therefore could not resort to equity for relief. In our opinion, this is peculiarly a chancery case, being a bill for specific performance of a contract relating to real estate and the insolvency of the defendants alleged. 2. The misjoinders of several distinct causes of action. This should have been taken advantage of by demurrer, and if not so taken is deemed waived.

Judgment affirmed.

I concur: Terry, J.