Cornell University Law Library 
 
 The Moak Collection 
 
 r PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN nenoRY of 
 
 JUDGE DOUGLASS BOARDMAN 
 
 FtRST bEAN OF THE aCKQOL 
 
 By bis Wife and Daugliter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KF 8840.E79 1885 
 
 V.I 
 
 Estee's Pleadings, practice and forms 
 
 1924 022 239 424 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022239424 
 
ESTEE'S 
 PLEADINGS, PKACTICE 
 
 AND FORMS, 
 
 ADAPTED TO 
 
 ACTIONS AND SPECIAL PEOCEEDINGS 
 
 CODES OF CIVIL PROCEDURE. 
 
 BY 
 
 MOERIS M. J^TEE, 
 
 COUNSELOK A^ZXW. 
 
 THIED EDITION. 
 
 BBVrSBD, KSLARSBD AND RBWKITTEN BT 
 
 CARTER P. POMEROY, 
 
 COUNSBLOK AT LAV. 
 
 IN THEEE VOLtTMES. 
 
 VOL. I. 
 
 SAN FEANCISCO, 
 BANCROFT-WHITNEY CO., 
 
 IiAw Pdblishbrs and Law Booksellers. 
 1886. 
 
Entered according to M<A of Congress, in the year ol oni Lord one 
 
 ciioasand eight hundred and sixty -nine, 
 
 Br MOEEIS M. ESTBE, 
 
 In the Olert's OfSoe of the District Court of the United States, for 
 
 the District of California. 
 
 Entered according to Act of Congress, in the year 1879, 
 
 Bt a. L. BANCEOFT & CO., 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 Entered according to Act of Congress, in the year 1885, 
 
 Bt a. L. BANCEOFT & CO., 
 
 In the Office of tlje Librarian of Congress, at Washington. 
 
PREFACE TO THIRD EDITION. 
 
 In <h.e preparation of the third edition of this standard work, 
 ■while the general plan of the two former editions has been mainly 
 followed, certain changes have been made in arrangement of 
 the several subject-matters discussed, whenever a change seemed 
 desirable. An effort has also been made to enlarge the original 
 scope of the work, and enhance its usefulness, by incorporating 
 it in a large number of new forms, adapted to the needs of the 
 profession in all the code States and Territories* The forms so 
 added have been carefully prepared, and have uniformly been 
 approved by the appellate courts. Whenever necessary the forms 
 contained in the previous editions have been revised so as to 
 harmonize with the most recent decisions. Many new and re- 
 cent authorities have also been examined and cited, from all 
 the States which have adopted the reform procedure ; and when- 
 ever a change has been made in the rules and doctrines con- 
 tained in the previous editions, either by judicial decision 
 or legislative enactment, the same has been noted, and the 
 text modified accordingly. All the citations have been care- 
 fully compared and verified by reference to the original reports, 
 and it is confidently hoped that they will be found substan- 
 tially correct. The citations have been placed in notes at the 
 bottom of the pages, and not embodied in the text as in previous 
 editions. 
 
 C. P. P. 
 San Fkancisco, October, 1884. 
 
 (iii) 
 
PREFACE TO SECOND EDITION. 
 
 The preface to the original work states all that need be said as 
 to its plan and scope. The great favor the work has met with 
 from the profession, as well as its intrinsic merits, which are appar- 
 ent without reference to its popularity, prohibited any change in 
 its plan in this revision. 
 
 Considerable new matter has been introduced, especially in 
 those parts relating to parties, and to pleadings in general; 
 while new notes and new citations of authorities have been 
 added throughout the work wherever it seemed necessary or 
 desirable. 
 
 The original citations have also been carefully examined, and 
 the errors incident to a new work corrected. It is impracticable, 
 in a work of this character, to give a statement of the point de- 
 cided in each case referred to ; but it is believed that each citation 
 will be found to sustain directly, or illustrate, the point or subject 
 to which it is cited. 
 
 The forms have also been carefully examined and, so far as 
 necessary, corrected ; and in the second and third volumes will be 
 found many forms not contained in the original work. 
 
 At the time the original work was written, the Practice Act was 
 in force in California — since that time the Civil Code and the Code 
 of Civil Procedure have been adopted. So far as these codes have 
 changed the law or practice in that State upon subjects treated of, 
 such changes have been stated, or reference made thereto ; and 
 wherever a code is cited without giving the name of the state, the 
 codes of California are intended. 
 
 While the code of each State having one, differs in many par- 
 ticulars from that of every other, yet it will be found that all are 
 based upon common principles, and practitioners in other States 
 will readily adapt this work to the peculiarities of their own code ; 
 and In States not having a code, the profession will find it of 
 
 (V) 
 
vl PREFACE TO SECOND EDITION. 
 
 great value, not only because of its numerous citations upon all 
 leading subjects, but because it has now become necessary for 
 common-law practitioners to become familiar with code pleading 
 and practice. 
 
 In a work covering so many branches of the law, absolute free- 
 dom from errors should' not be expected ; but it is hoped and 
 believed that its utility to the general practitioner will more than 
 atone for its errors. 
 
 San Francisco, July 1, 1878. 
 
PREFACE TO FIRST EDITION. 
 
 In the preparation of this work my object has been to pre- 
 sent to the profession the chief requisition of good pleading, 
 with forms adapted to the modern practice, accompanied by 
 numerous authorities sustaining them. 
 
 With this subject in view, I have commenced at the first 
 inquiry made by the practitioner, in bringing or defending an 
 action, and have advanced with him step by step in the prose- 
 cution or defense of the same ; giving, as far as possible within 
 the scope of this work, the law relative to the pleadings and 
 practice, with the forms necessary for use, to the final dispo- 
 sition of the cause. 
 
 Although the forms given are specially adapted to the prac- 
 tice in California, Nevada and Oregon, and the Territories on 
 the Pacific slope, yet, with rare exceptions, they are equally 
 applicable in New York and nearly all of the other States of 
 the Union. 
 
 The notes under the forms have been arranged alphabetically, 
 with side heads to each, which will be found to be an index to 
 their contents, and a majority if not all of the recent decisions, 
 not only of the supreme courts of the Pacific States, but of the 
 various courts of the other States of the Union, and of Eng- 
 land, have been consulted, and brief extracts or references to 
 them appear under the appropriate headings. 
 
 The general principles discussed in the first part of- this 
 work, as well as the general propositions at the commencement 
 of the leading subjects, Complaints, Summons, Change of Place 
 of Trial, Demurrer, Answer, Notices, Motions, Statement, New 
 Trial, Appeal, etc., will, it is believed, be a guide and assist- 
 ance at each stage of the proceedings. 
 
 The forms have been carefully prepared, and in general will 
 be found correct. Many of them have been tested by the 
 
 (Yii) 
 
viil PREFACE TO FIRST EDITION. 
 
 -courts of last resort, and their correctness sustained, as will be 
 seen by reference to the authorities under each. 
 
 In submitting this book to the profession I am not uncon- 
 scious of the necessity of bespeaking for it a just, if not a 
 charitable criticism; and I trust that its imperfections, which 
 are doubtless many, will not seriously impair its usefulness. 
 
 M. M, E, 
 
TABLE OF CONTEISTTS. 
 
 VOLUME I. 
 
 PART FIRST. 
 GEN^ERAL PRII^CIPLES. 
 
 
 CHAPTER I. 
 
 
 EEMEDIES. 
 
 ?? 1, 2. 
 
 Remedies, how secured. 
 
 5? 3, 4. 
 
 Actions. 
 
 il 5-25. 
 
 Special proceedings. 
 
 J26. 
 
 Provisional remedies. 
 
 
 CHAPTEE. II. 
 
 
 JURISDICTION. 
 
 §§ 27, 28. 
 
 , In general. 
 
 ?29. 
 
 At chambers. 
 
 §30. 
 
 Concurrent jurisdiction. 
 
 ?§ 31, 32. 
 
 . Of state courts. 
 
 11 33-50. 
 
 California courts. 
 
 ?2 34-38. 
 
 Supreme court. 
 
 U 39-^9- 
 
 Superior court. 
 
 gso. 
 
 Justice's court. 
 
 CHAPTER III. 
 
 PLACE OF TBIAL. 
 
 g 51. In general. 
 
 2 52. "Where subject-matter is situated. 
 
 2 68. Actions against counties. 
 
 § 54. Where cause of action arose. 
 
 I 56. Where defendant resides. 
 
 t 66-94. Change of place of trial, 
 (ix) 
 
TABLE OF CONTENTS. xi 
 
 CHAPTEK VI. 
 
 PAKTIES PLAINTIFF— ACTIONS FOUNDED ON CONTKACT. 
 
 § 133. Eelation to contract how may arise. 
 
 g 134. Joinder of plaintift's, generally. 
 
 2 135. Must represent entire cause of action. 
 
 § 186. Eefusal of plaintiffs to join. 
 
 g 137. Where parties are numerous. 
 
 g 138. Common interest. 
 
 g 139. Joint tenants and tenants in common. 
 
 ? 140. Joint owners of chattels. 
 
 g 141. Executors and administrators. 
 
 § 142. Partners. 
 
 1 143. Mortgages and mechanic lions, 
 g 144. Principal and agent. 
 
 2 145. Promissory notes. 
 J 146. Quo warritnio. 
 
 1 147. Sheriffs. 
 
 2 148. State or United States. 
 I 149. Sureties. 
 
 CHAPTER VII. 
 
 PLAINTIFFS IN ACTIONS ARISING PROM TORTS. 
 
 1 150. In general. 
 
 § 151. For injuries to real property. 
 
 g 152. For injuries V personal property. 
 
 g 153. In ejectment. 
 
 g 154. For injuries to the person. 
 
 2 155. Injuries to married women. 
 J 156. Injuries to child or servant. 
 
 1 157. For seduction. 
 
 CHAPTER VIII. 
 
 DEPENDANTS IN ACTIONS LEGAL AND EQUITABLE. 
 
 § 158. Defendants jointly liable. 
 
 J 159. Annulling patent to land. 
 
 g 160. Against assessors. 
 
 2161. Breach of contract. 
 
 J 162. Executors and administrators. 
 
 2 163. Foreclosure suits. 
 I 164. Fraud. 
 
 g 165. Ejectment. 
 
 § 166. Married women. 
 
 ? 167. Infants. 
 
 J 168. Infringement of patent. 
 
 g 169. Injunction. 
 
 1 170. Injuries caused by negligence. 
 §171. Legacy charged on land. 
 
 2 172. Partners. 
 
xii TABLE OP CONTENTS. 
 
 ? 173. Principal and agent. 
 
 g 174. Trespass. 
 
 I 175 Trustees. 
 
 g 176. Persons severally liable on same obligation. 
 
 PART SECOND. 
 ANALYSIS OF PLEADIT^GS. 
 
 CHAPTER I. 
 
 PLEADINGS IN GENERAL, 
 
 J 177. Definitions. 
 
 § 178. Object of pleading — The issue. 
 
 J 179. Eorms of action abolished. 
 
 ^ 180. Legal and equitable rights preserved. 
 
 J 181. Legal and equitable relief g-ranted in same action. 
 
 g 182. Of what pleadings consist. 
 
 I 183. Distinction between pleadings and the action. 
 
 § 184. Pacts only to be stated. 
 
 § 185. Conclusions of law not to be alleged. 
 
 § 186. Anticipation of defense. / 
 
 ^ 187. Pacts independent of cauSe of action. 
 
 5 188. Implications and presumptions of law. 
 
 J2 189, 190. Material averments. 
 
 § 191. Immaterial, irrelevant, and redundant matter. 
 
 I 192. What fact should be stated. 
 
 I 193. "What should be omitted. 
 
 I 194. Mode of stating fticts. 
 
 ^ 195. Must be stated logically. 
 
 J 196. Must be stated by direct averment. 
 
 I 197. In ordinary and concise language. 
 
 § 198. "With suiEcient certainty. 
 
 g 199. Pleadings how construed. 
 
 5 200. Verified pleadings. 
 
 ^J 201-204. Admissions in pleadings. 
 
 1 202. By demurrer and answer. 
 J 203. By want ofsverification. 
 
 ? 204. Effect of admissions. 
 
 2 205. Variance and defects. 
 
 CHAPTER n. 
 
 PORMAL PARTS OP PLEADINGS. 
 
 I 206. Of what formal parts consist. 
 
 Form 25. ^207. Formal parts of complaint— Title of causo. 
 
TABLE OF CONTENTS. Xiu 
 
 Where some parties are unknown. 
 By and against corporations. 
 By state on the relation of indiyidual. 
 By guardian ad litem. 
 By assignee for creditors. 
 By and against national banks. 
 By an officer of the state. 
 Title and commencement. 
 By one suing for himself and others. 
 Conclusion of complaint. 
 Form of complaint complete. 
 Clerk's certificate to copy of complaint. 
 Amended complaint — Commencement. 
 Defendant's pleadings — Commencement of demurrer. 
 Answer. 
 
 Commencement by defendant sued hy wrong name. 
 By an infant. 
 By an insane person. 
 By husband and wife. 
 Separate answer of defendant. 
 Petitions — To the court. 
 Petition to a judge. 
 
 Caption in probate proceedings — Decedent's estate. 
 Minor's estate. 
 Insane person's estate. 
 Caption in insolvency proceedings. 
 Caption on habeas corpus. 
 Caption on disbarment of attorney. 
 Caption of papers used in other courts. 
 Caption for justices' courts. 
 Order of court in an action. 
 
 Caption, commencement, and conclusion of affidavits. 
 Certificate of clerk to affidavit. 
 Jurat when deponent is blind or illiterate. 
 60. 2 277. Jurat when deponent is a foreigner, 
 
 CHAPTER III. 
 
 VERIFICATION OF PLEADINGS. 
 
 J 278. Provisions of codes. 
 
 22 279-283. Construction of statute. 
 
 Form 61. §284. Verification by sole plaintiff or defendant. 
 
 62. 2 285. On information and belief. 
 
 63. 2 287. By one of several plaintiffs or defendants. 
 
 64. g 289. By two parties, severally, 
 
 65. 2 290. By officer of corporation. 
 
 66. 2 293. By attorney or agent knowing facts. 
 
 67. 2 296. By agent when party is absent'. 
 
 68. 2 300. When absent plaintiff is corooration. 
 
 69. -2 301, Verification of petition. 
 
 Form 26. 
 
 §217. 
 
 27. 
 
 §219. 
 
 28. 
 
 §221. 
 
 29. 
 
 §222. 
 
 30. 
 
 2 223. 
 
 31. 
 
 2 224. 
 
 32. 
 
 §226. 
 
 33. 
 
 §228. 
 
 34. 
 
 §230. 
 
 36. 
 
 §231. 
 
 36. 
 
 §233. 
 
 37. 
 
 §234. 
 
 38. 
 
 §235. 
 
 89. 
 
 §236. 
 
 40. 
 
 2 238. 
 
 41. 
 
 §246. 
 
 42. 
 
 2 247. 
 
 43. 
 
 2 248. 
 
 44. 
 
 2 249. 
 
 45. 
 
 2 250. 
 
 46. 
 
 2 251. 
 
 47. 
 
 2 252. 
 
 48. 
 
 2 253. 
 
 49. 
 
 2 254. 
 
 50. 
 
 § 2.55. 
 
 51. 
 
 2 256. 
 
 52. 
 
 2 257. 
 
 53. 
 
 2258. 
 
 64. 
 
 2 259. 
 
 55. 
 
 2 260. 
 
 56. 
 
 2 261. 
 
 57. 
 
 §262. 
 
 58. 
 
 §275. 
 
 59. 
 
 §276. 
 
XIV 
 
 TABLE OF CONTENTS. 
 
 PART THIRD. 
 
 PLEADmGS OF PLAINTIFF. 
 
 CHAPTER I. 
 
 COMPLAINTS IN GENERAL. 
 
 5 303. First subdivision of complaint. 
 
 I 305-310. Character and capacity averred. 
 
 § 306. Action by agent. 
 
 I 307. Action by assignee. 
 
 1 308. Action by company or partnership. 
 
 2 309. Action by corporation. 
 I 810. Permission to sue. 
 
 I 311-33 1. Second subdivision— Statement of cause of action. 
 
 I 312. What facts must be stated. 
 
 I 313. Allegations on information and belief. 
 
 I 314. Joinder of causes of action. ■ 
 
 § 315. Causes of action which can not be joined. 
 
 I 316. Splitting demands. 
 
 J 317. Actions for debt. 
 
 J 318. On contract, for breach of. 
 
 I 319. Pleading contract. 
 
 g 320. Averment of promise. 
 
 J 321. Consideration, when must be alleged. 
 
 g 322. Performance of contracts. 
 
 J 323. Non-performance. 
 
 5 324. Concurrent acts. 
 
 5 325. Breach of contract. 
 
 J 326. Special damages. 
 
 g 327. Negligence, how pleaded. 
 
 I 328. Judgments, how pleaded. 
 
 I 329, 330. Statutes, how pleaded. 
 
 § 331. , Statute of limitations, how pleaded. 
 
 § 332. Third subdivision — Demand for relief. 
 
 FOKMS OF COMPLAIIS^T. 
 
 SUBDIVISION FIRST. 
 
 BY AND AGAINST PAETICULAR PERSONS, INDIVIDUALLY, AND IN REPKESEN- 
 TATITB CHARACTER AND OPFICIAI, CAPACITY, 
 
 CHAPTER I. 
 
 ASSIGNEES AND DEVISEE3. 
 
 Form 70. g 333. By the assignee of a claim. 
 
 g 334. What choses in action are assignable. 
 
TABLE OF CONTENTS. 
 
 
 ?335. 
 
 Assignment of claims arising from torts. 
 
 
 ? 336. 
 
 Assignments, how made. 
 
 
 ?337. 
 
 How alleged. 
 
 
 g338. 
 
 Averment of consideration for. 
 
 
 §339. 
 
 Assignment of accounts. 
 
 
 ?340. 
 
 Of bonds, notes, etc. 
 
 
 ?341. 
 
 By corporation. 
 
 
 ?342. 
 
 Of debts. 
 
 
 §343. 
 
 Personal property not in possession. 
 
 
 §344. 
 
 Of lease. 
 
 
 § 345. 
 
 Of mortgage. 
 
 
 §346. 
 
 Of insurance policy. 
 
 
 §347. 
 
 Of judgments. 
 
 
 §348. 
 
 Ofstoclcof corporation. 
 
 
 §349. 
 
 Effect of assignment. 
 
 Form 71. 
 
 §350. 
 
 By assignee — where plaintiff is trustee. 
 
 
 §§ 351-357. 
 
 Who are trustees and when may sue. 
 
 Form 72. 
 
 §§ 358, 359. 
 
 Where plaintiff is a deyisee. 
 
 73. 
 
 §360. 
 
 By assignee for benefit of creditors. 
 
 CHAPTER II. 
 
 JOINT TENANTS AND TENANTS IN COMMON. 
 Form 74. § 364. By joint tenant and tenants In common. 
 
 CHAPTER III. 
 
 COKPOBATIONS. 
 
 By a foreign corporation. 
 
 By and against foreign corporation. 
 
 Against corporation formed under act in relation to 
 roads and highways. 
 
 On stock assessments. 
 
 On stock subscription. 
 
 On subscription for a public object. 
 
 Against a municipal corporation. 
 
 Against county for guarding jail. 
 
 By a county. 
 
 Against trustees of dissolved corporation, for an ac- 
 counting. 
 
 85. § 408. Against directors of insurance company for unlawful 
 acts. 
 
 86. § 409. Against directors of a corporation for unlawfully 
 declaring dividends, etc. 
 
 87. 2 4^3' Individual creditor, against individual stockholder. 
 
 88. i 414. The same — Shorter form. 
 BsTBB, Vol. I— & 
 
 Form 75. 
 
 §369. 
 
 76. 
 
 §372. 
 
 77. 
 
 §382. 
 
 78. 
 
 §384. 
 
 79. 
 
 §387. 
 
 80. 
 
 §391. 
 
 81. 
 
 §394. 
 
 82. 
 
 J395. 
 
 83. 
 
 §396. 
 
 84. 
 
 §404. 
 
XVI 
 
 TABLE OF CONTENTS. 
 
 Form 89. 
 90. 
 91. 
 92. 
 
 form 93. 
 94. 
 
 CHAPTER IV. 
 
 EXEOUTOKS AND ADMINISTRATORS. 
 
 J 419. By an executor. 
 
 1 420. By an administrator. 
 § 424. By executor or administrator suing in his own right. 
 
 2 426. Against an administrator or executor. 
 
 CHAPTER V. 
 
 HUSBAND AND "WIFE. 
 
 2 437. Against husband for necessaries furnished family. 
 J 441. Against husband and wife for goods sold for her separate 
 estate. 
 
 95. ^ 442. Against husband and wife for goods sold to the wife for 
 her separate estate. 
 
 96. ^ 460. Against husband and wife on note of wife while sole. 
 
 97. § 461. By a married woman. 
 
 98. g 471. Against a married woman, as sole trader. 
 
 99. J 475. Against a married woman on contract. 
 
 CHAPTER VI. 
 
 INFANTS. 
 
 By an infant, suing by general guardian. 
 By an infant, suing by guardian ad '.item. 
 
 CHAPTER VII. 
 
 INSANE PERSONS. 
 
 J 492. By guardian of insane person. 
 2 497. Against guardian of the same. 
 
 CHAPTER VIII. 
 
 PARTNERS. 
 
 Title and commencement of complaint by partners. 
 For dissolution and accounting. 
 For accounting after dissolution. 
 Against partners — Averring partnership. 
 By a surviving partner. 
 
 CHAPTER IX. 
 
 PUBLIC OFFICERS. 
 
 Form 109. J 527. By ,pr against pubUc officers. 
 
 110. 2 533. By sheriflF suing in aid of attachment. 
 
 111. 2 596. Against sheriff for not executing process. 
 
 1 12. J 545. Against sheriff for neglecting to return execution. 
 
 Form 100. 
 101. 
 
 Form 102. 
 103. 
 
 2477. 
 H78. 
 
 104. 
 
 2 504. 
 
 105. 
 
 2 515. 
 
 106. 
 
 2 616. 
 
 107. 
 
 2 517. 
 
 108. 
 
 2 520. 
 
TABLE OF CONTENTS. xvil 
 
 Form 118. J 546. The same— trnder California statute. 
 
 114. I 551. Against sheriff, for neglecting to pay over money. 
 
 115. I 552. The Same— Under California statute. 
 
 116. J 561. Against sheriff for false return. 
 
 117. ^ 562. The same— Allegation for not levying. 
 
 118. § 563. The same — Another form of allegation. 
 
 119. J 568. For seizing a vessel. 
 
 120. I 569. For an escape. 
 
 CHAPTER X. 
 
 EECEIVBE. 
 
 Form 121. | 581. By a receiver appointed pending litigation. 
 
 122. J 582. Motion for appointment of receiver. 
 
 123. g 598. By a receiver appointed in supplementary proceedings. 
 
 124. I 601. The same — Setting out proceedings at length. 
 
 125. g 602. By receiver of a dissolved corporation. 
 
 126. 2 604. By receiver of mutual insurance company, on premium. 
 
 note. 
 
 SUBDIVISION SECOND. 
 
 m ACTIONS POR DBBT. 
 
 CHAPTER I. 
 
 ACCOUNTS. 
 
 For money due on an account. 
 
 The Same — Common count. 
 
 By an assignee on an account. 
 
 On an account stated. 
 
 For a general balance of account. 
 
 Upon an account for services. 
 
 The same — Common count. 
 
 The same — By an architect. 
 
 The same — Common count. 
 
 The same — By a broker, for commissions. 
 
 The same — Common count. 
 
 By carrier, against consignor for freight. 
 
 The same — Common count. 
 
 The same — Against consignee. 
 
 The same — Common count. 
 
 By editor, for services. 
 
 The same — Common count. 
 
 By author, for editing book. 
 
 The same — Common count. 
 
 For services and materials furnished. 
 
 The same — Common count. 
 
 For tuition bills. 
 
 The same — Common count. 
 
 Form 127. 
 
 |605. 
 
 128. 
 
 2 606. 
 
 129. 
 
 2 615. 
 
 130. 
 
 2 616. 
 
 131. 
 
 2 622. 
 
 132. 
 
 2 623. 
 
 133. 
 
 2 624. 
 
 134. 
 
 2 627. 
 
 135. 
 
 2 628. 
 
 136. 
 
 2 629. 
 
 137. 
 
 2 630. 
 
 138. 
 
 2 631. 
 
 139. 
 
 2 632. 
 
 140. 
 
 2 633. 
 
 141. 
 
 2 634. 
 
 142. 
 
 2 636. 
 
 143. 
 
 2 637. 
 
 144. 
 
 2 639. 
 
 145. 
 
 2 640. 
 
 146. 
 
 2 642. 
 
 147. 
 
 2 643. 
 
 148. 
 
 2 644. 
 
 149. 
 
 2 645. 
 
xviii 
 
 TABLE OP CONTENTS. 
 
 Form 150. 
 151. 
 152. 
 
 CHAPTER II. 
 
 ON AWARDS. 
 
 J 646. On an award of arbitrators— Common form. 
 
 \ 660. On an award of an umpire. 
 
 I 661. Allegation of enlargement of timeb 
 
 CHAPTER III. 
 
 ON EXPRESS PROMISES. 
 
 Form 153. J 666. On an express promise in consideration of « precedent 
 debt. 
 
 154. 2 670. Upon compromise of an action. 
 
 155. I 673. On promise of third person to pay money to plaintiff. 
 
 156. 2 677. On promise to pay for surrender of lease. 
 
 157. I 678. For the purchase money of land conveyed. 
 
 158. 2 682. Allegation of new promise. 
 
 CHAPTER IV. 
 
 GOODS SOLD AND DELIVERED. 
 
 For goods sold and delivered. 
 
 The same — Common count. 
 
 The same — Short form. 
 
 For goods sold and delivered at fixed price. 
 
 The same — For a reasonable price. 
 
 The same — On specified price and credit. 
 
 By assignee, for stock, fixtures, and good will. 
 
 By firm with dormant partner — Price agreed upon. 
 
 For goods delivered to third person — Price fixed. 
 
 For goods sold, but not delivered — Price fixed. 
 
 CHAPTER V. 
 
 ON GUARANTIES. 
 
 Against principal and sureties, on contract for work; 
 On agreement to be answerable for price of goods sold. 
 Against guarantor of mortgage, for deficiency after fore- 
 closure. 
 On a guaranty of a precedent debt. 
 Against sureties for payment of rent; 
 
 CHAPTER VI. 
 
 INSURANCE. 
 On fire policy — By the insured. 
 
 Where plaintiif purchased the property after ingurance. 
 The same — Another form. 
 The same — Loss payable to mortgagee. 
 Allegation of removal. 
 
 orm 159. 
 
 ?685. 
 
 160. 
 
 J 686. 
 
 161. 
 
 §692. 
 
 162. 
 
 |695. 
 
 163. 
 
 g700. 
 
 164. 
 
 2 704. 
 
 165. 
 
 2 706. 
 
 166. 
 
 g708. 
 
 167. 
 
 2 709. 
 
 168. 
 
 2 712. 
 
 Form 169. 
 170. 
 171. 
 
 172. 
 173. 
 
 Form 174. 
 175. 
 
 176. 
 177. 
 178. 
 
 1713. 
 i719. 
 
 1724. 
 
 !731. 
 1732. 
 
 S735. 
 5 786. 
 (737. 
 
 5 738. 
 5 749. 
 
TABLE OP CONTENTS. 
 
 xa. 
 
 179. 
 
 ?750. 
 
 180. 
 
 §753. 
 
 181. 
 
 2 758. 
 
 182. 
 
 ?759. 
 
 IBS. 
 
 ?761. 
 
 184. 
 
 §762. 
 
 185. 
 
 ?773. 
 
 186. 
 
 §775. 
 
 187. 
 
 §776. 
 
 188. 
 
 §777. 
 
 189. 
 
 §778. 
 
 190. 
 
 §779. 
 
 191. 
 
 §780. 
 
 Form 192. 
 193. 
 194. 
 195. 
 196. 
 
 5784. 
 ?794. 
 5 796. 
 [798. 
 
 isos. 
 
 On agreement to insure — Policy not delivered. 
 
 By executor on life policy. 
 
 By a wife, partner, or creditor of insured. 
 
 By assignee in trust for wife of insured. 
 
 Accidental insurance — ^Insured against insurer. 
 
 Marine insurance — On an open policy. 
 
 On cargo lost by fire — Valued policy. 
 
 "Valued policy — Allegation o£ 
 
 On freight — Valued policy. 
 
 Averment by loss by collision. 
 
 Averment of waiver of a condition. 
 
 For a partial loss and contribution. 
 
 Allegation for a particular average loss. 
 
 CHAPTEE VII. 
 
 ON JTIDGMENTS. 
 
 General form. 
 
 On judgment by leave of court. 
 
 The same — By an assignee. 
 
 On foreign judgment of court of general jurisdiction. 
 
 On foreign judgment of inferior court. 
 
 Form 197. 
 198. 
 199. 
 200. 
 
 CHAPTER VIII. 
 
 ON LIABILITIES CREATED BY STATUTE. 
 
 i 812. Penalties under statute — General form. 
 
 i 830. For selling liquor without a license. 
 
 \ 831. Against a witness, for disobeying subpcena. 
 
 1 833. For violation of ordinance of supervisors. 
 
 CHAPTEE IX. 
 
 FOE MONEY HAD AND RECEIVED TO PLAINTIFFS' USE. 
 
 Common form. 
 
 Against attorney or. agent, with demand. 
 
 The same — Another form. 
 
 For money received by defendant through mistake. 
 
 For price of goods sold by a factor. 
 
 Against factor, for price of goods sold on credit. 
 
 Against broker, for proceeds of note discounted. 
 
 Form 201. 
 
 §835. 
 
 202. 
 
 §842. 
 
 203. 
 
 §847. 
 
 204. 
 
 §849. 
 
 205. 
 
 §852. 
 
 206. 
 
 §855. 
 
 207. 
 
 1858. 
 
 CHAPTEE X. 
 
 FOR MONEY LENT. 
 
 Form 208. § 860. Lender against borrower. 
 
 209. § 863. The same— No time for payment agreed on. 
 
 210. § 864. By assignee of lender, against borrower. 
 
 211. § 865. Partners, lenders, against partners, borrowers. 
 
TABLE OF CONTENTS. 
 
 Form 212. 
 
 2 866. 
 
 213. 
 
 g869. 
 
 214. 
 
 2 871. 
 
 215. 
 
 2 873. 
 
 216. 
 
 2 875. 
 
 217. 
 
 2 877. 
 
 218. 
 
 2 881. 
 
 219. 
 
 2 884. 
 
 220. 
 
 2 887. 
 
 221. 
 
 2 889. 
 
 222. 
 
 §891. 
 
 223. 
 
 2 893. 
 
 CHAPTEK XI. 
 
 FOR MONET PAID. 
 
 For money paid to a third party at defendant's request. 
 By one having paid the debt of another, to be repaid on 
 
 demand. 
 To be repaid on a specified day. 
 For repayment of money on a reversed judgment. 
 By broker, for money advanced on account of his pr! ncipal 
 For repayment of deposit on purchase Of real estate. 
 To recover back a wager. 
 
 By landlord, against tenant, for repajrment of tax. 
 Against carrier, to recover money paid in excess for freight. 
 To recover back freight on failure of carriage. 
 By surety, against principal. 
 For repayment of advances on services. 
 
 CHAPTEE XII. 
 FOR SERVICES, WORK AND LABOR. 
 
 Form 224. 2 896. For services, at a fixed price. 
 
 225. 2 904. At a reasonable price. 
 
 226. 2 908. By carriers, for freight. 
 
 227. 2 909. For passage money. 
 
 228. 2 910. By parent, for services of minor son. 
 
 229. 2 912. For services and materials at a fixed price. 
 
 230. 2 914. By an attorney, for. services and disbursements. 
 
 231. 2 917i For services and materials at a reasonable price. 
 
 232. 2 918. By advertising agent, for services and disbursements. 
 
 233. 2 919. By publisher and proprietor, for advertising. 
 
 234. 2 920. For stabling horses. 
 
 235. 2 921. Special contract completely fulfilled. 
 
 286. 2 924, The same — Contract fulfilled by an assignee. 
 
 CHAPTER XIII. 
 
 Form 237. 
 238. 
 239. 
 240. 
 241. 
 242. 
 243. 
 244. 
 245. 
 246. 
 247. 
 248. 
 249. 
 250. 
 251. 
 
 FOR USE AND OCCUPATION. 
 
 2 926. On an express contract. 
 
 2 929. For rent reserved in a lease. 
 
 2 935. For deficiency after a re-entry. 
 
 2 938. Against assignee of lessee. 
 
 2 942. Grantee of reversion against lessee. 
 
 2 943. Allegation of assignment of lease. 
 
 2 944. Allegation by heir of reversioner. 
 
 2 946. Assignee of devisee against assignee of lessee. 
 
 2 948. For use and occupation of pasture. 
 
 2 951. On an implied contract. 
 
 2 959. For lodging and board. 
 
 2 960. Allegation for lodging. 
 
 2 961. For the hire of personal property. 
 
 2 863. Of piano forte, with damages for not returning. 
 
 2 964. Of furniture, with damages for ill-use. 
 
TABLE OP CONTENTS. XXl 
 
 SUBDIVISION THIRD. 
 
 UPON ■WBITTKN INSTRUMENTS POR THE PAYMENT OP MONET ONLT, 
 
 CHAPTER 1. 
 
 ON NEGOTIABLE PAPER, BONDS, ETC. 
 
 Form 262. g 966. Against maker. 
 
 258. ^ 986. On a bond for the payment of money only. 
 
 254. I 990. The same— Pleading its legal effect. 
 
 265. ^ 991. By surviving obligee on joint bond. 
 
 CHAPTER n. 
 
 ON BILLS OF EXCHANGE. 
 Form 256. J 994. Foreign bills — Payee against drawer for non-acceptance. 
 
 257. I 1007. Payee against acceptor. 
 
 258. § 1011. Inland bills — Drawer against acceptor, for non-payment. 
 
 259. 1 1019. On bill not negotiated. 
 
 260. 2 1020. Bill returned and taken up. 
 
 261. J 1023. Acceptor without funds against drawer. 
 
 262. J 1024. The same — Copartnership firm against copartnership firm. 
 
 263. J 1025. Payee against drawer for non-acceptance. 
 
 264. J 1026. Allegation setting out copy of bill. 
 
 265. J 1027. Allegation of demand and notice excused. 
 
 266. ^ 1028. Allegation of excuse for non-presentment. 
 
 267. g 1029. The same— Drawee not found. 
 
 268. g 1032. The same — Bill payable at specific date. 
 
 269. g 1033. Partners payees, against partners acceptors. 
 
 270. J 1042. Payee against acceptor — Short form. 
 
 271. §1043. Allegation setting out copy of bill. 
 
 272. i 1046. Pleading the legal effect. 
 
 273. §. 1051. Acceptance varying as to time from the bill. 
 
 274. g 1052. Where drawer is also acceptor on bill drawn on himself. 
 
 275. 1 1058. By assignee of bill payable out of a particular fund. 
 
 276. 2 1055. Payee against drawer and acceptor. 
 
 277. J 1056. On a bill accepted for honor. 
 
 278. J 1059. By indorsee — First indorsee against acceptor. 
 
 279. g 1060. Against first indorser. 
 
 280. 2 1061. Against drawer and indorser. 
 
 281. g 1068. Against all prior parties. 
 
 282. § 1064. Subseq^uent indorsee against acceptor. 
 
 283. g 1065. Against first indorser. 
 
 284. ^ 1066. Against intermediate indorser. 
 
 285. I 1067. Against last indorser. 
 
 286. ^ 1068. Against all prior parties. 
 
 287. g 1069. By a bank in its corporate name. 
 
 288. 1 1070. Checks — Payee against drawer. 
 
 289. g 1080. Indorsee or bearer against drawer. 
 
 290. g 1081. Allegation of excuse for failure to give notice. 
 
 291. §1083. The same — From insolvency of drawee. 
 
 292. g 1085. Against dra-wer and indorser. 
 
 293. § 1086. Against bank drawee, having certified. 
 
xxii TABLE OP CONTENTa 
 
 CHAPTER III. 
 
 ON PEOMISSOET NOTES AND CERTIFICATES OF DEPOSIT. 
 
 Maker of accommodation note having paid it. 
 Joint maker of a note against the other for contri- 
 bution. 
 Indorser of note having paid a part. 
 Payee against maker. 
 On two notes, one partly paid. 
 On several notes given as security. 
 On a note signed by an agent. 
 On a note made by partners. 
 The same — Averring partnership. 
 By payee as receiver against partnershipi. 
 Sight note, allegation of. 
 On a note wrongly dated. 
 
 Domestic corporation against a foreign eorporation. 
 Against surviving maker. 
 Against maker and indorser. 
 Indorser— First indorsee against maker. 
 Against first indorser. 
 Allegation of notice to indorser waived. 
 Allegation of excuse for non-presentment 
 Against maker and first indorser. 
 Against maker, on note drawn to maker's order. 
 Subsequent indorsee against maker. 
 Against first indorser. 
 Against intermediate indorser. 
 Against immediate indorser. 
 Against all prior parties. 
 Transfers not by indorsement— By assignee. 
 By treasurer of unincorporated company, on note pay- 
 able to former treasurer. 
 On a note payable on a contingency. 
 On a note payable in chattels. 
 On guaranties— Against maker and guarantor of note. 
 
 SUBDIVISION FOURTH. 
 
 FOR DAMAGES ON BREACH OV CONTRACT. 
 
 CHAPTER I. 
 
 ON BUILDERS' CONTRACTS. 
 
 Form 325. ? 1212. By contractor, on special contract, modified, with claim 
 for extra work. 
 828. J 1225. Aa-ainat hnilrlaT- fn,. /f,>e«„n^ i 
 
 Form 294. 
 
 , § 1089. 
 
 295. 
 
 , 21096. 
 
 296. 
 
 ?1097. 
 
 297. 
 
 I 1100. 
 
 298. 
 
 ? 1130. 
 
 299. 
 
 2 1132. 
 
 800. 
 
 1 1133. 
 
 801. 
 
 I 1135. 
 
 802. 
 
 2 1137. 
 
 803. 
 
 I 1138. 
 
 804. 
 
 1 1141. 
 
 805. 
 
 ? 1142. 
 
 306. 
 
 2 1148. 
 
 807. 
 
 ? 1147. 
 
 308. 
 
 ? 1149. 
 
 309. 
 
 2 1150. 
 
 310. 
 
 2 1154. 
 
 811. 
 
 2 1166. 
 
 312. 
 
 2 1167. 
 
 81>8. 
 
 2 1170. 
 
 814. 
 
 2 1174. 
 
 816. 
 
 2 1176. 
 
 816, 
 
 2 1178. 
 
 817. 
 
 2 1179. 
 
 318. 
 
 2 1180. 
 
 819. 
 
 2 1181. 
 
 820. 
 
 2 1182. 
 
 321. 
 
 2 1188. 
 
 822. 
 
 2 1189. 
 
 823. 
 
 2 1191. 
 
 824. 
 
 2 1198. 
 
TABLE OF CONTENTS. 
 
 zxm 
 
 Form 828, 
 
 1 1229. 
 
 829. 
 
 § 1232. 
 
 830. 
 
 2 1247. 
 
 831. 
 
 2 1251. 
 
 332. 
 
 i 1252. 
 
 rorm 333. 
 
 ? 1256. 
 
 834. 
 
 1 1258. 
 
 335. 
 
 i 1264. 
 
 336. 
 
 i 1265. 
 
 837. 
 
 i 1266. 
 
 338. 
 
 1 1267. 
 
 339. 
 
 ? 1268. 
 
 340. 
 
 i 1269. 
 
 341. 
 
 § 1270. 
 
 842. 
 
 2 1280. 
 
 848. 
 
 J 1283. 
 
 844. 
 
 § 1288. 
 
 845. 
 
 ? 1293. 
 
 346. 
 
 i 1295. 
 
 347. 
 
 g 1297. 
 
 848. 
 
 2 1307. 
 
 349. 
 
 1 1311. 
 
 350. 
 
 i 1312. 
 
 Form 351. 
 
 ? 1317. 
 
 352. 
 
 i 1323. 
 
 853. 
 
 g 1324. 
 
 864. 
 
 i 1328. 
 
 355. 
 
 J 1332. 
 
 356. 
 
 j 1334. 
 
 357. 
 
 i 1335. 
 
 858. 
 
 8 1836. 
 
 CHAPTER II. 
 
 ON CHARTER PARTIES. 
 Owner against freighter, for not loading. 
 Allegation for demurrage. 
 Charterer against owner, for deviation from contract and 
 
 abandonment of voyage. 
 Ship owner against charterer, for freight. 
 Allegation against assignee of cargo. 
 
 CHAPTER III. 
 
 ON COVENANTS. 
 "Warranty of title to real property. 
 Eviction, allegation of. 
 Special damages, allegation of. 
 Breach of warranty of title — Another form. 
 By assignee of grantee, against previous grantor. 
 By heirs of covenantee, against previous grantor. 
 By devisee of covenantee, against the same. 
 Warranty as to quantity. 
 
 On covenant against incumbrances on real property. 
 The same — Where deed expressed specific incumbrance. 
 On a covenant of seisin or of power to convey. 
 Grantee's covenant to build. 
 
 On covenant against nuisances — Grantor against grantee. 
 On a continuing covenant to maintain a fence. 
 Lessor against lessee, on covenant to keep premises in 
 
 repair. 
 Lessee against lessor, for not keeping premises in repair. 
 For not completing building according to agreement. 
 For breach of covenant of quiet enjoyment. 
 
 CHAPTER IV. 
 
 ON CONTRACTS OF EMPLOYMENT. 
 For breach of contract to employ. 
 Where employment never took effect. 
 For breach of contract to serve. 
 By the master, against father of apprentice. 
 By the apprentice against the master. 
 For breach of contract to manufacture goods. 
 For refusal to accept manufactured goods. 
 On promise to manufacture raw material into merchant- 
 able goods. 
 
 Form 850. g 1337. 
 860. §1354. 
 
 CHAPTER V. 
 
 ON INDEMNITY. 
 
 By retiring partner, on remaining partner's promise to 
 
 indemnify against damage. 
 Against sureties on partner's bond of indemnity. 
 
xxiv TABLE OP CONTENTS. 
 
 Form 861. J 1S57. Surety against principal, on indemnity against liability 
 
 862. § 1360. Sub-tenant against immediate lessor. 
 
 863. 2 1863. On agreement of indemnity to plaintiff, for defense of 
 
 action for surrender of property. 
 
 CHAPTER VI. 
 
 ON BREACH OP PKOMISE OP MARRIAGE. 
 
 Porm 364. J 1365. Por refusal to marry. 
 
 865. 1 1371. Por marriage with another. 
 
 CHAPTER VII. 
 
 ON SALE AND DELIVERY OP CHATTELS. 
 
 Porm 366. J 1375. Seller against purchaser, refusing to receive and pay for 
 goods. 
 
 867. 5 1391. The same — On contract made by broker. 
 
 868. 2 1393. The same — On promise to pay by good bill of exchange. 
 369. § 1394. The same — Por not returning goods or paying for them 
 
 in a reasonable time. 
 870. 1 1396. The same — Por not giving security according to con- 
 ditions of sale at auction. 
 
 371. I 1396. For a deficiency on a resale. 
 
 372. J 1401. By manufacturer, for goods made at defendant's request 
 
 and not accepted. 
 
 373. 2 1407. Por breach of promise, by purchaser of good will, not to 
 
 carry on rival trade. 
 
 374. I 1410. Buyer against seller for not delivering goods sold. 
 
 375. 2 1422. For not delivering within a specified time. 
 
 376. 1 1428. Allegation where neither time nor place «i delivery is 
 
 fixed. 
 
 877. 2 1424. Allegation where both time and place were fixed. 
 
 878. 2 1425. Allegation where time of delivery was not fixed. 
 
 379. j 1431. Allegation of part payment. 
 
 380. g 1434. Against seller of stock, for non-delivery. 
 
 CHAPTER VIII. 
 POR SALE OP REAL PROPERTY. 
 
 Porm 881. J 1436. Purchaser against vendor, for breach of i^eement to 
 convey. 
 
 382. 2 1446. Averment of excuse for non-performance. 
 
 383. 5 1447. The same — For damage for not executing conveyance. 
 
 384. ? 1448. Vendor against purchaser, for breach of agreement to 
 
 purchase. 
 386. I 1452. Averment of excuse for non-performance. 
 
 886. 2 1453. The same— Por not fulfilling agreement, and for de- 
 
 ficiency on resale. 
 
 887. § 1455. Vendor against executor of purchaser. 
 
 888. 1 1456. Vendor against purchaser, for real property contracted 
 
 to be sold but not conveyed. 
 
TABLE OF CONTENTS. 
 
 XXV 
 
 CHAPTER IX. 
 UPON UNDERTAKINGS, BONDS, ETC. 
 
 Porm 889. J 1468. Short form — On undertakings given in actions. 
 
 890. I 1471. For costs of appeal. 
 
 391. 1 1484. For coats and damages on an arrest. 
 
 892. \ 1486. On release from arrest. 
 
 898. J 1492. For costs and damages on attachment. 
 
 894. J 1495. To procure discharge of an attachment. 
 
 896. I 1499. In claim and delivery. 
 896.' I ISll. In injunction. 
 
 897. i 1519. On a bond or undertaking, condition only set forth. 
 
 898. j 1524. On arbitration bond — ^Refusal to comply with award. 
 
 899. 1 1526. For revoking arbitrator's powers. 
 
 400. 1 1527. On a bond for faithful accounting of an agent 
 
 401. I 1529. For fidelity of a clerk. 
 
 402. 1 1583. On an official bond. 
 
 403. 1 1534. Allegation for sheriff's neglect to levy. 
 
 404. I 1535. For neglect to sell after levy. 
 
 405. I 1536. For neglect to return. 
 
 406. I 1587. Allegation of breach in treasurer's bond. 
 
 CHAPTEE X. 
 
 ON WAEEANTT OF CHATTELS. 
 
 Form 407. J 16'!4. "Warranty of title. 
 
 408. 21577. Of quality. 
 
 409. 1 1689. Of soundness. 
 
 410. 1 1696. On a warranty of a judgment. 
 
 411. 1 1597. On a warranty of a note. 
 
 CHAPTER XI. 
 
 SEVEEAL CAUSES OF ACTION UNITED. 
 Form 412. § 1598. Causes of action under money counts. 
 
 SUBDIVISION FIFTH. 
 
 FOB DAMAQB8 ■UPON WRONGS. 
 
 PART FIBST— FOR INJURIES TO THE PERSON. 
 
 CHAPTER I. 
 
 FOR ASSAULT AND BATTEET. 
 
 Form 413. ? 1620. Common form. 
 
 414. i 1633. The same— Short form. 
 
 415. 1 1634. Assault by married woman. 
 
 416. 1 1635. With special damages. 
 
 417. 2 1636. Against corporation, for damages caused by an assault 
 and forcible ejection from a car. 
 
 Assault and false imprisonment. 
 
 418. 21645. 
 
 419. J 1648. Fuller form. 
 
xxvi TABLE OF CONTENTS. 
 
 CHAPTER II. 
 
 FOE FALSE IMPRISONMENT. 
 
 Form 420. g 1649. Common form. 
 
 421. 2 1663. The same— Another form. 
 
 CHAPTER III. 
 
 LIBEL AND SLANDEE. 
 
 Form 422. J 1665. For libel, the words being libelous in themselves. 
 
 423. J 1684. The words not being libelous in themselves, 
 
 424. \ 1698. By an attorney at law. 
 
 425. § 1699. By a physician. 
 
 426. g 1700. Charge of dishonesty, etc., in business. 
 I 1701. By corporation. 
 
 427. g 1702. For charge of crime, words not libelous on their face. 
 
 428. § 1703. Accusing plaintiff of peijury in his answer to a complaint. 
 
 429. 2 1704. For composing a libel not directly accusing the plaintiff 
 
 of perjury. 
 
 480. J 1705. For a libel not directly accusing the plaintiff of larceny. 
 
 431. g 1706. For libel by signs. 
 
 432. J 1707. For slander, the words being actionable in themselves. 
 
 433. 1 1734. "Words spoken in a foreign language. 
 
 434. \ 1736. The words not being actionable in themselves. 
 
 435. g 1742. Eespecting plaintiff's trade. 
 
 436. J 1750. Discharged from employ. 
 487. I 1761. Eefusal to deal. 
 
 438. g 1762. Eefusal to employ. 
 
 439. J 1753. Eefusal to retain in employ. 
 
 440. I 1764. Eefusal to sell. 
 
 441. J 1755. Charging a criminal offense. 
 
 442. J 1758. The same — Several causes of action. 
 
 443. 2 1760. For words directly charging perjury. 
 
 444. J 1763. The same — Containing special inducements. 
 
 CHAPTER IV. 
 
 MALICIOUS PEOSECUTION. 
 
 Common form. 
 
 The same — Fuller form. 
 
 For procuring plaintiff to be indicted. 
 
 The same — For obtaining indictment on which a nolle 
 
 prosequi was afterwards entered. 
 Where judgment of acquittal was rendered. 
 For malicious arrest in a civil action. 
 
 CHAPTER V. 
 
 FOE PERSONAL INJUET CAUSED BY NEGLIGENCE. 
 
 Form 451. g 1798. For injuries caused by collision of vehicle driven by 
 servant. 
 452. 2 1804. Against common carriers, for overturning stage coach. 
 
 Form 445. 
 
 ? 1764. 
 
 446. 
 
 21786. 
 
 447. 
 
 2 1787. 
 
 448. 
 
 i 1788. 
 
 449. 
 
 ? 1790. 
 
 450. 
 
 2 1792. 
 
453. 
 
 2 1811. 
 
 454. 
 
 1 1820. 
 
 455. 
 
 I 1821. 
 
 456. 
 
 1 1822. 
 
 457. 
 
 2 1824. 
 
 458. 
 
 ? 1881. 
 
 459. 
 
 2 1837. 
 
 460. 
 
 2 1841. 
 
 461. 
 
 § 1842. 
 
 462. 
 
 i 1854. 
 
 463. 
 
 21864. 
 
 464. 
 
 2 1866. 
 
 465. 
 
 2 1867. 
 
 466. 
 
 2 1868. 
 
 467. 
 
 2 1874. 
 
 468. 
 
 2 1876. 
 
 Form 469. 
 
 2 1877. 
 
 470. 
 
 2 1880. 
 
 471. 
 
 2 1884. 
 
 472. 
 
 1 1886. 
 
 473. 
 
 1 1899. 
 
 474. 
 
 2 1900. 
 
 TABLE OF CONTENTS. Xxvii 
 
 Against a railroad for injuries by collision. 
 
 The same — By car running off track. 
 
 !For negligently starting car. 
 
 For injuries caused by negligence on a railroad, in omit- 
 ting to give signal. 
 
 By a steamboat explosion. 
 
 For injuries to an engineer of a railroad company, caused 
 by a collision. 
 
 Said company having used a condemned locomotive. 
 
 By executor or administrator against a railroad company, 
 for injuries causing death. 
 
 By heirs, for injuries to employee, causing death. 
 
 Against a municipal corporation, for injuries caused by 
 leaving the street in an insecure state. 
 
 For injuries caused by rubbish in the street, whereby 
 plaintiff was thrown from his carriage. 
 
 For injuries caused by leaving a hatchway open. 
 
 Another form. 
 
 For injuries caused by a vicious dog. 
 
 Against physician for maltreatment. 
 
 Against surgeon for malpractice. 
 
 CHAPTER VI. 
 
 FOK VIOLATION OP PERSONAL EIGHTS. 
 
 Against officers of an election, for refusing plaintiff's 
 
 vote. 
 For criminal conversation. 
 For enticing away plaintiff's wife. 
 For debauching a daughter. 
 For seduction of plaintiff's daughter or servant. 
 For seduction, by female seduced. 
 
ESTEE'S 
 PLEADINGS, PEACTICE, 
 
 AND FORMS. 
 
 (xxlx) 
 
PAET FIKST. 
 
 GENERAL PRINCIPLES. 
 
 CPAPTER I. 
 
 KEMEDIES. 
 
 § 1. Remedies, how Secured. — Eemedies for wrongs ar« 
 secured by a proper application to a competent court, by the 
 party or parties entitled thereto, in an action or proceeding 
 against the proper parties, in the form prescribed by law. 
 
 § 2. The Same. — ^The proceedings in courts of justice to 
 secure such remedies are divided by the statutes of all, or 
 nearly all, of the states which have a code of practice or civil 
 procedure, into : 1. Actions ; 2. Special Proceedings ; 3. Pro- 
 visional Remedies. 1 
 
 I. OF ACTIONS. 
 
 § 3. What is an Action. — ^An action has been defined to 
 be an ordinary proceeding in a court of justice, by which one 
 party prosecutes another party for - the enforcement or protec- 
 tion of a right, the redress or prevention of a wrong, or the 
 punishment of a public offense. But in some sense this defi- 
 nition is equally applicable to special proceedings. More accu- 
 rately, it is defined to be any judicial proceeding, which, if 
 conducted to a determination, will result in a judgment or de- 
 <jree.^ The action is said to terminate at judgment.^ 
 
 § 4. Actions, how Divided. — Primarily, actions are divided 
 into two classes : Civil and Criminal. The former only will be 
 
 ^ Under the Code of Civil Proced- visional remedies " exist in California 
 
 ure of California, the first and second as incidents to an action, 
 
 divisions only are recognized (see sec. * People v. County Judge of Kensse- 
 
 21), in terms at least; though what laer, 13 How. Pr. 398, 
 
 are known under other codes as " pro- ' Co. Lit. 289 a. 
 BsTBB, Vol. I— 1. 
 
2 GENERAL PRINCIPLES. § 5. 
 
 considered in this work ; and the different classes into which they 
 are divided, and the mode of proceeding therein, will be treated 
 of hereafter. 
 
 n. OF SPECIAL PKOCEEDINGS WHICH ABE NOT ACTIONS. 
 
 § 5. What are Special' Proceedings. — Remedies pur- 
 sued by a party which do not result directly in a judgment, but 
 only in establishing a right, or some particular fact, are special 
 proceedings. They include proceedings confined to courts of 
 justice, and from which an appeal will lie, such as proceedings 
 instituted for the correction or revision of erroneous acts of a 
 court, or officer appointed by a court, having particular qualifi- 
 cations, or occupying some particular relation to the parties or 
 the subject-matter, and whose acts are in the nature of adjudi- 
 cations upon which the subsequent proceedings rest, however 
 erroneous they may be.^ The following are instances of special 
 proceedings : 
 
 § 6. Admission to Practice. — Application for admission 
 to practice as an attorney is a special proceeding, and an appeal 
 lies from an order denying such application.* 
 
 § 7. Appraisement. — A proceeding by commissioners to ap- 
 praise compensation for lands taken under the general railroad 
 act. 3 
 
 § 8. Arbitration and Award. — A proceeding on arbitra- 
 tion is not an action.* It is an adjudication upon a matter in 
 controversy, by private individuals selected and appointed by the 
 parties. 5 Proceedings on arbitrations are not affected by the 
 code.* Such proceedings are, however, regulated by statute in 
 many of the states. 
 
 § 9. Assessments. — Proceedings to assess damages on lay- 
 ing out a plank road, or under road laws, are not actions.'' 
 
 § 10. Attachment. — In New York, a proceeding to enforce 
 a judgment by attachment, as for contempt, is also a special pro- 
 ceeding. ^ 
 
 iPorterv. Purdy, 29N. Y. 106. 374; Billings on Awards, 3, 55-65; 
 
 a Matter of Cooper, 22 N. T. 67; Russell's Arbitrator, 112. 
 Matter of the Graduates, 11 Abb. Pr. « New York Code, 836. 
 301 ; reversing Matter of the Gradu- ' General Laws of Cal., par. 6451 ; 
 
 ates of the University, 81 Barb. 353 ; Lincoln v. Colusa Co., 28 Cal. 662 ; 
 
 W) Abb. Pr. 348 ; 19 How. Pr. 97 ; Grigsby v. Burtnett, 31 Id. 406 ; Ex 
 
 Matter of the Graduates of Columbia, parte Ransom, 3 N. Y. Code K 148 ; 
 
 10 Abb. Pr. 357 ; 19 How. Pr. 136. Ex parte Fort Plain and Cooperstown 
 
 «New York Central R. R. Co. v. PI. Road Co., Id. 148; see also N.Y. 
 
 Maroni, 1 Kern. 277. Cent. R. K. Co. v. Maroni, 11 N. Y. 
 
 ♦California Code, sees. 1231, 1290; 276. 
 
 » 8 Bla. Com. 16 ; 3 Steph. Com. 8 (j^ay v. Cook, 15 Abb. Pr. 808. 
 
§ 14. 
 
 REMEDIES. 
 
 § 11. Certiorari. — Certiorari is simply a writ of review and 
 not of action,^ and does not lie where there is an appeal or other 
 remedy at law.^ At common law it tries nothing but the juris- 
 diction. ^ 
 
 § 12. Confession of Judgment. — ^A judgment by confession 
 may be entered without action.* 
 
 § 13. Contempt. — Proceedings in punishment for contempts 
 are not actions.^ Such proceedings may be for a contempt by 
 a witness or a party for disobedience of an order of a referee ;* 
 for disobedience of a subpoena;'' for refusing to testify, or to 
 allow inspection of books \^ for disobeying a writ of mandate or 
 injunction ;9 for sending threatening letter to a grand jury.^" 
 
 § 14. Contested Elections. — The act giving jurisdiction 
 over contested elections to the county judge is constitutional. 
 It is one of the " special cases " provided for in the constitution.^' 
 
 California Code, sees. 1067, 1068. 
 
 « 1 Hilt. 195 ; Cooper v. Kinney, 2 
 Id. 12 ; People v. Shepard, 28 Cal. 115 ; 
 Miliken v. Huber, 21 Id. 166; People 
 V. Dwinelle, 29 Id. 632; People v. 
 Stillwell, 19 N. T. hi\ ; Onderdonk v. 
 Supervisors of Queens, 1 Hill, 195; 
 People V. Overseers of the Poor, 44 
 Barb. 467 ; Poople v. Board of Pilots, 
 37 Id. 126. 
 
 8 State ex rel. Barnett v. Fifth Dist. 
 Ct, 2 West Coast Eep. 630; People v. 
 Delegates of San Francisco Fire De- 
 partment, 14 Cal. 479. That the Cali- 
 fornia statute is affirmative of the 
 common law, see People v. Bd. ofDel- 
 egates, etc., 14 Id. 479 ; People v. Pro- 
 vines, 84 Id. 520, 527, overruling Peo- 
 ple ex rel. Church v. Hester, 6 Id. 679. 
 As to power of county courts to grant 
 writs oi certiorari, see Wilcox v. Oak- 
 land, 49 Id. 29, where such power is 
 denied, except in aid of their appel- 
 late jurisdiction. It cannot be substi- 
 tuted for appeal: Id. As to when 
 it lies, see Cal. P. R. R. Co. v. C. P. 
 E. K. Co., 47 Id. 528. That district 
 courts and judges have authority to 
 issue the writ, see Reynolds v. County 
 Court of San Joaquin, 47 Id. 604, and 
 Gallardo v. Hannrth, 49 Id. 136. 
 
 * California Code, sec. 1132 ; N. Y. 
 Code, sec. 382; Gunter v. Sanchez, 1 
 Cal. 45, 48; see Cordier v. Schloss, 12 
 Id. 143; affirmed in S. C. 18 Id. 580 
 and cited in Wilcoxon v. Burton,27 Id. 
 228, 235, in which the latter case was 
 approved ; Allen v. Smillie, 1 Abb. Pr. 
 354; 12 How. Pr. 156; Hill v. Nor- 
 throp, 9 Id. 525. And the statute 
 must be strictly pursued. Chapia v. 
 
 Thompson, 20 Cal. 681. So of pro- 
 ceedings on motion, setting aside a 
 judgment by confession: Belknap v. 
 Waters, 11 N. Y. 497 ; compare Bow- 
 ery Extension Case, 2 Abb. Pr. 368. 
 The purpose and true interpretation 
 of the provisions of the code regulat- 
 ing confessions of judgment are ex- 
 plained in Hopkins v. Nelson, 24 N. Y. 
 518 ; Neusbaum v. Keim, Id 325, re 
 versing S. C.,1 Hilt. 520 ; 7 Abb. Pr. 23. 
 
 * California Code, c. 721. 
 
 « Page V. Randall, 6 Cal. 82. 
 
 ' California Code, sec. 1991; An- 
 drews V. Andrews, Col. and C. Cas. 121. 
 
 ' Forbes v. Meeker, 2 Bdw. 452. 
 
 ^McCauley v. Brooks, 16 Cal. 11; 
 Golden Gate H. etc. Co. v. Superior 
 Court, 2 West Coast Eep. 736. 
 
 i» In re Tyler, 1 West Coast Eep. 
 337. For other acts which may con- 
 stitute contempts see Cal. Code, sec. 
 1209 ; People v. Dorsey, 32 Cal. 296 ; 
 1 Tidd's Pr. 479, 480; 4 Bla. Com. 
 285 ; 4 Steph. Com. 348 ; Holstein v. 
 Rice, 15 Abb. Pr. 307 ; Gray v. Cook, 
 Id. 308. The provisions of the re- 
 vised statutes concerning contempts 
 in New York are not affected by the 
 Code of Procedure. They are to en- 
 force civil remedies and protect the 
 rights of parties : People v. Compton, 
 1 Duer, 512 ; In re Smethurst, 3 Code 
 R. .55; 2Sandf. 724. 
 
 11 Saunders v. Haynes, 13 Cal. 145 ; 
 approved as to jurisdiction in Stone v. 
 Elkins, 24 Id. 126, 126; Dorsey v. 
 Barry, Id. 452 ; and cited in People v. 
 Davs, 15 Id. 91 ; and approved as to 
 such being "special cases " in Keller 
 y. Chapman, 34 Id. 636, 640. 
 
4 GENERAL PRINCIPLES. § 15. 
 
 § 15. Highways. — In New York, an appeal before referees 
 in highway proceedings is not an action, i Nor is a proceeding 
 to open streets.* 
 
 § 16. Indigent Relative. — The proceeding to compel one 
 to support an indigent relative in such states as have a statute 
 on this subject, is a special proceeding under the act.^ 
 
 § 17. Insolvency Cases. — Insolvency cases are "special 
 cases," and it was an exercise of legitimate power in the legis- 
 lature to confer jurisdiction in such cases upon both county and 
 district courts.* Proceedings in insolvency are not stricti juris 
 either proceedings in law or equity, but a new remedy or pro- 
 ceeding created by statute.' 
 
 § 18. Joint Debtors. — Proceedings against joint debtors 
 after judgment are not actions.^ In proceedings of this character, 
 does the cause of action or right to proceed arise upon judgment 
 or upon the original demand? The proceedings bear a strong sim- 
 ilaritj' to the action of scire facias, and were no doubt intended 
 as a substitute therefor.'' Such a proceeding is not a new action, 
 and the party served can not have the action removed into a fed- 
 eral court.^ The remedy by this proceeding is merely cumulative.' 
 § 19. Probate. — ^Probate proceedings are not civil actions 
 within the meaning of the Practice Act.^" 
 
 § 20. Referees. — A proceeding before referees is not an ac- 
 tion. ^^ The California statute concerning referees is in aid of 
 the common-law remedy by arbitration, and does not alter its 
 principles.^* 
 
 § 21. Review of Assessment.— Proceedings to review the 
 acts of assessors appointed to assess the property of the parties 
 benefited by the construction of a sewer with their proportion- 
 ate expense, are not actions.^^ A proceeding to vacate a local 
 assessment in the city of New York is not a special proceeding in 
 the sense of the code.^* 
 
 1 People V. Flake, 14 How. Pr. 527. ' Alden v. Clark, 11 How. Pr. 209. 
 
 s In re The Bowery, 12 How. Pr. 97. 213. 
 
 SHavilandv. White,7How.Pr.l54. « Pairohild v. Durand, 8 Abb. Pr 
 
 * Harper v. Freelon, 6 Cal. 76 ; ap- 305. 
 
 proved in McNeil v. Borland, 28 Id. ' Dean v. Eldridee, 29 How Pr 
 
 144, 148; see also Prank v. Brady, 8 218. ^ 
 
 Id. 47, and People ex rel. Grow v. " Estate of Scott, 16 Cal. 220 
 
 Raaborough, 29 Id. 415, 418. " California Code, sec. 636 : Pl'ant v 
 
 6 Cohen v. Barrett, 5 Cal. 195; ap- Fleming, 20 Cal. 92; People v. Flake 
 
 proved as to jurisdiction in " insol- 14 How. Pr. 527. ' 
 
 venoy cases " in Frank V. Brady, 8 Id. ^^ Tyson v. Wells, 2 Cal 122- 
 
 47. That oases in insolvency are not afBrmed in Headley v. Reed Id 822 • 
 
 equity cases, approved in People ex Grayson v. Guild, 4 Id 122 ■' Phnlna 
 
 rel. Grow v. Easborough, 29 Id. 418. v. Peabody, 7 Id. 58. ^ 
 
 « California Code, sees. 989-994 ; N. '' Porter v Purdv 90 KT v ma 
 
 T. Code, sec 376. u Eo Dodd, 27 Nl Y. 629. 
 
§ 26. EEMEDIES. 5 
 
 § 22. Specific Performance. — In New York, proceedings 
 to compel a specific performance of contract of ancestor by heirs 
 of deceased are not actions.^ 
 
 § 23. Submission of Controversy. — ^Parties may without 
 action agree upon a case, and present a submission of the same 
 to any court which should have jurisdiction. ^ Such a proceed- 
 ing is not an action. ^ 
 
 § 24. Supplementary Proceedings. — ^Proceedings supple- 
 mentary to execution are special proceedings.* 
 
 § 25. Testimony. — ^Proceedings to perpetuate testimony are 
 not actions. 5 
 
 m. OF PROVISIONAL REMEDIES. 
 
 § 26. Provisional Remedies, What Are. — Proceedings 
 before judgment or decree, in courts exercising equity powers, 
 to provide for the safety and preservation of property in the 
 possession of an adverse party, or to preserve it during the pen- 
 dency of an appeal, by the appointment of a receiver or other 
 like oflScer, and, in some cases, the disposition of the property 
 after judgment or decree, and also restraining orders or injunc- 
 tions pending the action, which, though now regulated by stat- 
 ute in most of the states, existed independently of it, as a 
 necessary incident to equitable jurisdiction. These proceedings, 
 however, so far as they are defined or regulated by statute, as 
 well as others created by the statute, are usually called " pro- 
 visional remedies." 
 
 The provisional remedies created by the statute, or which have 
 been adopted from the common law, are intended to secure in 
 advance the enforcement of the judgment whichr is sought to be 
 obtained. Of these, arrest and bail, attachment of the defend- 
 ant's property, and replevin or claim and delivery, are familiar 
 examples. These provisional remedies will be treated of in con- 
 nection with the actions in which they may be resorted to. 
 
 » Hyatt V. Seely, 11 N. Y. 52. * Gould v. Chapin, 4 How. Pr. 185 ; 
 
 'California Code, sec. 1138; Cran- Davis v. Turner. Id. 190; contra, 
 
 dall V. Atnadore County, 20 Cal. 72. Dresser v. Van Pelt, 15 Id. 19. 
 
 « Lang V. Ropke, 1 Duer, 701, 702. « California Code, aecs. 2083, 2084. 
 
GENERAL PEINCIPLES. § 27. 
 
 CHAPTER II, 
 
 JURISDICTION. 
 
 § 27. Jurisdiction, What Is. — Jurisdiction is the power to 
 hear and determine a ease.i In a more general sense it is the 
 power to make law ; the power to legislate or govern ; the power 
 or right to exercise authority.^ Each branch of government has 
 its functions assigned, and is beyond the control of the other 
 departments of government. ^ Thus legislative functions can not 
 be exercised by the judiciary.* Nor can the courts of justice 
 interfere with the political powers of the legislature. ^ 
 
 § 28. Jurisdiction in General. — The jurisdiction of a court 
 will generally be presumed in the ease of superior courts, or 
 courts of general jurisdiction, where the want of it does not 
 appear upon the record. ^ And where jurisdiction is limited by 
 the constitution or by statute, the consent of parties can not 
 confer it upon the court, except where the limitation is in re- 
 gard to certain persons. In such case they may, if competent, 
 waive their exemption and confer jurisdiction.'' And con- 
 versely the agreement of parties can not operate to divest a 
 court of its jurisdiction. 8 The distinction which exists between 
 the want of jurisdiction and jurisdiction irregularly acquired 
 or exercised, should be carefully noted. In the first case, the 
 judgment can be attacked in any form directly or collaterally ; 
 in the second, only by direct proceeding in the court which 
 rendered it.^ 
 
 § 29. Jurisdiction at Chambers. — The general rule is, 
 that all judicial business -must be transacted in court, and that 
 there must be some express warrant of the statute to authorize 
 
 1 United States v. Arredondo, 6 Sepulveda, 5 Id. 149 ; Grewell v. Hen- 
 Pet. 691, 702; Grignon's Lessee v. derson, 7 Id. 290; Gray v. Hawes 8 
 Astor, 2 How. 319, 338; C. P. E. R. Id. 562; Carpentier v. Oakland, 30 
 Co. V. Placer Co., 43 Gal. 365. Id. 439, approved in Hahn v. Kelly, 
 
 2 Taylor v. Horde, 1 Burr. 113. 34 Id. S91, which authority cites 
 ^ Parsons v. Tuol. Co. Wat. Co., 5 Forbes v. Hyde, 31 Id. 342 ; Sharp v. 
 J'-o*^- , m ,^r , „ ^ , Daugney, 33 Id. 505; Clark v. Saw- 
 * People V. Town of Nevada, 6 Cal. ver, 48 Id. 133 ; Hughes v. Cummincs, 
 
 143; approved in Colton v. Rossi, 9 1 West Coast Rep. 608: Smith v. 
 
 Id. 595; Stone v. Elkins, 24 Id. 125; Montoya, Id. 152. 
 
 People V. Sanderson, 30 Id. 167. ' Gray v. Hawes, 8 Cal. 562 • Nor- 
 
 ^Nougues V. Douglass, 7 Cal. 65, wood v. Kenfield, 34 Id. 329- Bates 
 
 cited in MeCauley v. Brooks, 16 Id. v. Gage, 40 Id. 188. 
 
 1 1, 43 ; Napa Valley E. R. Co. v. Napa « Muldrow v. Norris, 2 Cal 74 
 
 Co- 30 Id. 435. 9 Whitwell v. Barbier, 7 Cal. 54, 64, 
 
 « Nelson V. Lemon, 10 Cal. 50; Nel- approved in Peck v. Strauss 83 Id 
 
 son V. Mitchell, Id. 93; Johnson v. 685. 
 
§ 30. JURISDICTION. 7 
 
 any of it to be transacted at chambers.^ A judge at cham- 
 bers has no power to make an order directing the clerk of 
 his court to enter in the minutes of the court, nunc pro tunc, 
 an order alleged to have been made in open court.* Nor to 
 make an order setting aside an execution issued on a judgment, 
 and perpetually staying the enforcement of the same.* Nor to 
 entertain notions to strike out pleadings or parts of pleadings.'* 
 In Washington territory a judge of the district court has power 
 to render judgment at his chambers, and out of term, in a case 
 where the defendant has made default. ^ 
 
 § 30. Concurrent Jurisdiction. — ^There is nothing in the 
 nature of jurisdiction which renders it exclusive.^ But, on the 
 contrary, it may be concurrent.'' The legislature, however, can 
 not confer on one court the functions and powers which the 
 constitution has given to another, where that jurisdiction is ex- 
 clusive.8 But if exclusive jurisdiction be not conferred upon a 
 court by the constitution, then the legislature may confer on 
 other courts the powers and functions which the constitution 
 has conferred on that court.^ The grant of original jurisdiction 
 in the constitution, to a particular court, of a class of cases, 
 without any words excluding other courts from exercising juris- 
 diction in the same cases, does not necessarily deprive other 
 courts of concurrent jurisdiction in such cases. i" Thus juris- 
 diction in rem may exist in several courts at the same time on 
 the same subject. ^^ But the court whose mesne or final process 
 has made the first actual seizure of the thing, must have ex- 
 elusive power over its disposal and the distribution of the fund 
 arising therefrom, and the judgments of all other courts, when 
 properly authenticated and filed in the court having custody of 
 the fund, must be regarded as complete adjudications of the 
 subject-matter of litigation, and be entitled to distribution ac- 
 
 1 Laroo v. Casaneuava, 30 Cal. 560 ; ^ Courtwright v. Bear Eiv. and Au- 
 Norwood V. Kenfield, 34 Id. 332. burn Wat. Co., 30 Cal. 580. 
 
 2 Hegeler v. Henckell, 27 Col. 491. « Perry v. Ames, 26 Cal. 372 ; see, 
 8 Bond V. Pacheco, 30 Cal. 530; also, Courtwright v. B. R. and Aub. 
 
 Norwood V. Kenfield, 34 Id. 329, 332. Wat. Co., 30 Id. 585. This has been 
 
 * Larco v. Casaneuava, 30 Cal. 560 ; practically demonstrated in American 
 
 Norwood V. Kenfield, 34 Id. 332 . Co. v. Bradford, 27 Id. 360, cited in 
 
 5 Murne V. Schwabacher Bros. & Hill v. Smith, Id. 476 ; see also Peo- 
 Co., 2 West Coast Rep. 799. pie v. Davidson, 30 Id. 879 ; Warner 
 
 6 Delafield v. State of Illinois, 2 v. Steamer Uncle Sam, 9 Id. 697. 
 Hill 157 164. '" Courtwright v. Bear Riv. and 
 
 ' Perry v. Ames, 26 Cal. 372, ap- Aub. Water and Mln. Co., 30 Cal. 573. 
 proved in Cariaga v. Dryden, 30 Id. » Averill v. The Hartford, 2 Cal. 
 246; Knowles v. Testes, 31 Id. 90; 809, affirmed in Taylor v. Steamer 
 and' Courtwright v. B. R. and Au- Columbia, 5 Id. 272; Meiggs v. Scan- 
 burn Wat. and Min. Co., 30 Id. nell, 7 Id. 408; Pisher v. White, 8 
 585. Id. 422. 
 
8 GENERAL PROCEEDINGS. § 31. 
 
 cordingly.i And an action for the non-delivery of freight may 
 exist in the district court of the United States contemporane- 
 ously with an action for freight money in a state court, without 
 fear or danger of any collision or clashing of jurisdiction.' As 
 a general rule, however, courts can not interfere with the judg- 
 ments or decrees of other courts of concurrent jurisdiction.^ 
 
 § 31. Jurisdiction of State Courts. — State courts have 
 jurisdiction in the following cases, among others, over subject- 
 matter situated within the exclusive control of the United States 
 government, or over parties, subjects of a foreign government, 
 resident within the state : 
 
 (1) Assault and Battery. — In an action for assault and battery 
 in a United States navy yard, although the state has ceded 
 exclusive jurisdiction of that place to the United States.* So 
 also state courts have jurisdiction of crimes committed in the 
 United States military reservation of Fort Leavenworth. ^ The 
 act of the legislature, ceding the navy yard at Brooklyn to the 
 United States — which provides that the cession " shall not pre- 
 vent the operation of the laws of the State" within the same — 
 has the effect of preserving the jurisdiction of the state over 
 offenses committed on board a government ship in the navy 
 yard, and over the person of the offender. ^ 
 
 (2) Contracts. — State courts have jurisdiction over actions on 
 a contract made in a foreign country ;^ or of an action on a pol- 
 icy of insurance issued in the state by a resident agent of a 
 foreign insurance company.* 
 
 (3) Customs and Duties. — Of actions by collectors of United 
 States customs upon receiptor's agreement ;3 and of actions on 
 bonds given for duties to the United States, i" 
 
 (4) Foreign Governments may sue and be sued in state courts 
 in their federative names. ^^ 
 
 (5) Foreign Residents. — State courts have jurisdiction in ac- 
 
 1 Russell V. Alvarez, 5 Cal. 48. ' Skinner v. Tinker, 34 Barb. 333. 
 
 * Iii' ^ Burns v. Provincial Insurance Co., 
 8 Anthony v. Dunlap, 8 Cal. 26, 35 Barb. 525 ; Watson v. Cabot Bank. 
 
 affirmed in Uhlfelder v. Levv, 9 Id. 9 Sandf. 423. 
 
 614; Revalk V. Kraemer, 8 "Id. 66. ' Sailly v. Cleveland, 10 "Wend. 155. 
 
 Pot a more exhaustive discussion of M United States v. Dodge, 14 Johns. 
 
 the exclusive and concurrent juris- 95. 
 
 diction of courts than the limits or " Republic of Mexico v. Arrangois 
 
 purposes of this work admit of, see 1 11 How. Pr. 1 ; Mills v. Thursbv 2 
 
 Pomeroy's Eq. Jur., sees. 146-189. Abb. Pr. 437 ; Republic of Mexico v 
 
 ♦ Armstrong V. Foote, 11 Abb. Pr. Arrangois, 3Id. 470; Mennir gv State' 
 384 : but see Dibble v. Clapp, 31 How. of Nicaragua, 14 How. Pr. 517 • " Dela- 
 
 ^^•n?°' a. . ^v .n ^"^'^ "'■ ^'**« °f Illinois, 26' Wend. 
 
 'Clay V. State, 4 Kan. 49. 192; Burrall v. Jewett, 2 Paige Ch. 
 
 • People V. Lane, 1 Edm. 116. 134 ; Gibson v. Woodwoith, 8 Id 132 
 
§ 31. JURISDICTION. 
 
 tions against foreign executors or administrators who are resi- 
 dents of the state. 1 
 
 (6) Habeas Corpus. — ^To discharge on habeas corpus persons 
 enlisted in the United States army.^ 
 
 (7) Property out of State. — ^Where jurisdiction of the person 
 is acquired, state courts have equitable jurisdiction in actions 
 respecting real estate, even if the property is situated out of 
 the state. 3 They have jurisdiction in an action for a breach of 
 covenant to convey real property situated in a foreign state.* 
 Thus, in the leading case of Penn v. Lord Baltimore, 1 Ves. sen. 
 444, specific performance of a contract for lands lying in 
 America was decreed in England. So also in the case of The 
 Earl of Kildare v. Sir Morrice Eustace and Fitzgerald, 1 Vern. 
 419, it was held that a trust' in relation to lands lying in Ireland 
 ma3' be enforced in England if the trustee live in England. So- 
 if the subject of the contract or trust be within the jurisdiction, 
 but the parties are not.^ But the state courts have no jurisdic- 
 tion of an action for injury to real estate out of that state. ^ 
 
 (8) Torts Generally. — State courts have jurisdiction of actions 
 for torts committed in a foreign state, where the defendant is 
 served with process within the state.'' So also for a fraudulent 
 conspiracy formed in another state. ^ 
 
 (9) United States or U. S. Officers. — The United States or a 
 state may consent to be sued in a state court. ^ Or an action may 
 be maintained in a state court against officers of the United States 
 government in certain cases.^* 
 
 IQulickv. Gulick, 33Barb. 92; 21 T. 363; Gardner v. Ogden, 22 Id. 
 How. Pr. 22 ; Montalvan v. Clover, 327 ; Newton v. Bronson, 13 Id. 587 ; 
 32 Barb. 190; Sere v. Coit, 5 Abb. Fanner v. Sanborn, 37 Barb. 610. 
 Pr. 482. The courts of New York ^ Arglasse v. Musohamp, 1 Vern. 75 ; 
 have DO jurisdicti' n in an action at Toller v. Carteret, 2 Id. 494; Wag- 
 law against foreign executors or ad- ner v. Watts. 2 Oranch C. C. 148; 
 ministrators : Metcalf v. Clark, 41 Cleveland v. Burnell, 25 Barb. 532 ; 
 Barb. 46. Newton v. Bronson, 3 Kern. 587; 
 
 > Be Carlton, 7 Cow. 471 ; Ke Dabb, Kourke v. McLaughlin, Cal. Sup. Ct., 
 
 12 Abb. Pr. 113 ; Ke Phelan, 9 Id. July T., 1869. 
 
 286: United States v. Wyngall, 6 "Mott v. Coddington, 1 Abb. Pr. 
 
 Hill, 16; Be Ferguson, 9 Johns. 239. (N..S.) 290; Watts v. Kinney, 6 Hill, 
 
 As to jurisdiction by habeas corpus 82. 
 
 on a commitment by a court of the 'So held in New York: Hull v. 
 
 United States, see Re Barrett, 42 Vreeland, 18 Abb. Pr. 182; Latour- 
 
 Barb. 479 ; In Ee Husted, 1 Johns, ette v. Clark, 45 Barb. 323. 
 
 Caa 136;KeHopson 40 Barb. 34. s Mussina v. Belden, 6 Abb. Pr. 165. 
 
 » Mussina v. Belden, 6 Abb. Pr. » The People of Mich. v. Phoanix 
 
 165 ; Ward v. Arredondo, Hopk. Ch. Bk., 4 Bosw. 363 
 
 243- Shattuokv. Cassidy, 3 Edw. Ch. i»Eipley v. Gelston, 9 Johns. 201; 
 
 152 • Slatter v. Carroll, 2 Sandf. Ch. In re Stacy, 10 Id. 328 ; Hoyt v. Gels- 
 
 573 • De ILlyn v. Watkins, 3 Id. 185; ton, 13 Id. 141; Wilson v. McKenzie, 
 
 D'lvernois v. Leavitt 23 Barb. 63. 7 Hill, 95 ; Teall v. Felton, 1 Comst. 
 
 «Mott V. Coddington, 1 Abb. Pr. 537;McButtv. Murray, 10 Abb. Pr. 
 
 (N. S.) 290; Bailey V. Elder, 10 N. 196. 
 
10 GENERAL PRINCIPLES. § 32. 
 
 § 32. Within the Jurisdiction of the Court, means 
 within the state.^ But whenever the statute prescribes certain 
 specific acts to be done as prerequisites to the acquiring of juris- 
 diction, such acts must be substantially performed in the manner 
 prescribed.^ The jurisdiction of state courts extends to hearing 
 and determining cases left pending in the late United States terri- 
 torial courts.^ 
 
 § 33. Constitutional Jurisdiction of California Courts. 
 In California, prior to the adoption, in 1879, of the present con- 
 stitution, the jurisdiction of the several courts was fixed by the 
 constitution, which prescribed that "the judicial powers of the 
 state shall be vested in a supreme court, in district courts, in 
 county courts, in probate courts, and in justices of the peace, 
 and in such recorders and other inferior, courts as the legisla- 
 ture may establish in any incorporated city or town."'* The 
 constitution of 1879 made radical changes in the judicial system 
 of the state. Among other things, it abolished the district, 
 county, and probate courts, as separate tribunals, and vested 
 the jurisdiction formerly exercised by them ■:> superior courts. 
 The present constitution provides " that the jU'Hcial power of 
 the state shall be vested in the senate sitting as a court of im- 
 peachment, in a supreme court, superior courts, justices of the 
 peace, and such inferior courts as the legislature may establish 
 in any incorporated city or town, or city or county." ^ Under 
 its former judicial system, the California courts established sev- 
 eral propositions which are equally applicable to the system 
 now in existence. Among such propositions are that the legis- 
 lature can not confer other than judicial functions upon any 
 court, s That municipal and inferior courts can only be of in- 
 ferior, limited, and special jurisdiction, and can not go bej-ond 
 the power conferred upon them by statute, nor can they assume 
 rower by implication.'' Where the statute creating a new right 
 
 ' People V. McCauley, 1 Gal. 380; Co. v. Stanilaus Co., Id. 442; Phelan 
 
 ■s'i?"/ =r",' ^^ I?- ^''^; -r. , ^- S"" Francisco, Id. 540; Harden- 
 
 2 bteel V. Steel, 1 Nev. 27 ; Paid v. burg v. Kidd, 10 Id. 403 ; People v. 
 Armatrong, Id. 82. Bircham, 12 Id. 55; Phelan v. San 
 
 3 Hastings v. Johnson, 2 Nev. Francisco, 20 Id. 42 ; People v San- 
 t'n in , , ^A^ .a , derson. 30 Id. 167; but in People v. 
 « Ca . Const. (oM) art. 6, sec. 1. Provines, 84 Id. 525, the case of Bui- 
 l Cal. Const. (18/9), art. 6, sec. 1. goyne v. Supervisors of San Francisco 
 
 °° S®'° i" uurgoyne v. bupervis- was commented on and overruled (obi- 
 
 ors of ban Francisco 5 Cal. 9, which ter dictum) ; see also People v. Bush, 
 
 was affirmed in Exline v. Smith, Iil. 40 Id. 344. 
 
 113; People v Applegate, Id. 295; ' Meyer' v. Kalkmann, 6 Cal. 582, 
 
 ^'•^'^^y '■ ^"''Iburt, I<r 344 : Thomp- cited in Kenyon v. Welty, 20 Id. 640 
 
 son v. Williams, 6 Id 89; People v. Courlwright v. Boar Uiv. and Aub. 
 
 lown of Nevada, Id. 144; Tuolumne Water and Min. Co., 30 Cal. 579; 
 
§ 34. JUKISDICTION. H 
 
 and a particular remedy for violation thereof, provides that the 
 remedy must be pursued in a particular court, no other court 
 has jurisdiction.^ In such case the statute must be strictly 
 pursued.^ The constitution not having defined the jurisdiction 
 of the municipal courts authorized to be established, it is left to 
 be regulated by the legislature under its general powers. 
 
 § 34. Formation of the California Supreme Court. — ^The 
 supreme court of California as it exists under the present consti- 
 tution consists of a chief justice and six associate justices. 
 The court may sit in department and in bank, and is always 
 open for the transaction of business. There are two depart- 
 ments, denominated, respectively, department one and de- 
 partment two. The chief justice is empowered to assign three 
 of the associate justices to each department. Such assignment 
 may be changed by him from time to time, and the associate 
 justices may interchange among themselves by agreement. 
 Each department has power to hear and determine causes and 
 all questions arising therein, subject to the constitutional pro- 
 visions in relation to the court in bank. The presence of three 
 justices is necessary to transact any business in either of the 
 departments, except such as may be done at chambers, and the 
 concurrence of three justices is necessary to pronounce a judg- 
 ment. The chief justice apportions the business to the depart- 
 ments, and may, in his discretion, order any cause pending 
 before the court to be heard and decided by the court in bank. 
 The order may be made before or after judgment pronounced 
 by a department ; but where a cause has been allotted to one 
 of the departments, and a judgment pronounced thereon, the 
 order must be made within thirty days after such judgment, 
 and concurred in by two of the justices, and if so made it 
 shall have the effect to vacate and set aside the judgment. Any 
 four justices may, either before or after judgment by a depart- 
 ment, order a case to be heard in bank. If the order be not 
 made within the time above limited, the judgment is final. No 
 judgment by a department becomes final until the expiration of 
 the period of thirty days, unless approved by the chief justice, 
 in writing, with the concurrence of two associated justices. 
 The chief justice may convene the court in bank at any time, 
 
 "Winter v. Pitzpatriok, 35 Cal. 269 ; T. 1863 ; and cited in People v. Pro- 
 
 Morley v. Elkins, 37 Id. 454. The vines, 34 Cal. 520. 
 
 term "municipal courts" includes ' Smith v. Omnibus K. E. Co., 36 
 
 mayors' and recorders' courts : Uridias Cal. 281. 
 
 V. Morrell, 22 Id. 473, approved in 2 Cohen v. Barrett, 5 Id. 195. 
 
 Uridias v. Buzee, Cal. Sup. Ct, July » Uridias v. Morrill, 22 Id. 473. 
 
12 GENERAL PBINCIPLES. § 35. 
 
 and is the presiding justice of the court when so convened. 
 The concurrence of four justices present at the argument i» 
 necessary to pronounce a judgment in bank ; but if four justices, 
 so present, do not concur in a judgment, then all the justice* 
 qualified to sit in the cause shall hear the argument; but to 
 render a judgment a concurrence of four judges is neeessar3^ 
 In the determination of causes all decisions of the court in 
 bank or in departments must be given in writing, and the 
 grounds of the decisions shall be stated. The chief justice 
 may sit in either department, and shall preside when so sitting, 
 but the justices ■ assigned to each department shall select one of 
 their number as presiding justice. In case of the absence of 
 the chief justice from the place at which the court is held, or 
 his inability to act, the associate justices shall select one of 
 their own number to perform the duties and exercise the powers 
 of the chief justice during such absence or inability to act.^ 
 
 § 35. Election and Term of Office of Justices. — The 
 chief justices and the associate justices of the California supreme 
 court are elected by the qualified electors of the state at large 
 at the general state elections, at the times and places at which 
 state oflacers are elected. Their terms of office shall be twelve 
 years, from and after the first Monday after the first day of 
 January next succeeding their election ; provided, that the six 
 associate justices elected at the first election shall at their first 
 meeting so classify themselves, by lot, that two of them shall 
 go out of office at the end of four years, two of them at the end 
 of eight years, and two of them at the end of twelve years. If 
 a vacancy occur in the office of a justice, the governor shall ap- 
 point a person to hold the office until the election and qualifica- 
 tion of a justice to fill the vacancy, which election shall take 
 place at the next succeeding general election; and the justice 
 so elected shall hold the office for the remainder of the unex- 
 pired term. The first election of justices under the present con- 
 stitution was had at the first general election after the adoption 
 and ratification of the constitution of 1879. ^ 
 
 § 36. Jurisdiction of California Supreme Court. In 
 
 general, the supreme court of California is clothed by the con- 
 stitution with the powers and jurisdiction of the courts of 
 chancery and of king's bench in England.3 Its jurisdiction is 
 original to a certain extent, but mainly appellate. The consti- 
 tution gives it appellate jurisdiction in all cases in equity, ex- 
 
 " California Constitution (1879), art. 6, sec. 2. a la sec 8 
 
 « Ex parte Attorney General, 1 Cal. 85. '' 
 
36. 
 
 JURISDICTION. 
 
 13 
 
 cept such as arise in justices' courts ; also in all cases at law 
 which involve the title or possession of real estate,^ or the 
 legality of any tax, impost, assessment, toll, or municipal fine, 
 or in which the demand, exclusive of interest or the value of 
 the property in controversy, amounts to three hundred dollars ; 
 also in cases of forcible entry and detainer, and in proceedings 
 in insolvency,'' and in all such probate matters as may be pro- 
 vided by law ;^ also, in all criminal cases prosecuted by indict- 
 ment or information in a court of record on questions of law 
 alone.* The court also has power to issue writs of mandamus, 
 certiorari, prohibition, and habeas corpus, and all other writs 
 necessary or proper to the complete exercise of its appellate 
 jurisdiction.* Each of the justices has power to issue writs of 
 habeas corpus, upon petition by or on behalf of any person held 
 in actual custody, and may make such writs returnable before 
 
 1 In actions for damages to real 
 property, when the question of title 
 is involved, it has appellate jurisdic- 
 tion, although the damages claimed 
 are less than three hundred dollars : 
 Doherty v. Thaver, 31 Cal. 140. 
 
 ' Conant v. Conant, 10 Cal. 249, ap- 
 proved in Perry v. Ames, 26 Id. 38ti ; 
 People V. Eosborough, 29 Id. 418; 
 Courtwright v. Bear Eiver and Au- 
 burn Water and Mining Co., 30 Id. 
 679, affirmed in Knowles v. Tates, 
 31 Id. 84; Dumphy v. Guindon, 13 
 Id. 30. So in cases of divorce: 
 Conant v. Conant, 10 Id. 249. So in 
 cases of contested elections on appeal 
 irom county courts: Middleton v. 
 Gould, 5 Id. 190; Knowles v. Yates, 
 31 Id. 82, affirmed in Day v. Jones, 
 Id. 263. On questions of fraud made 
 in petition of insolvent debtor: Pislc 
 V. His Creditors, 12 Id. 281, approved 
 in People v. Shepard, 28 Id. 115 ; Peo- 
 ple V. Rosborough, 29 Id. 418. As to 
 appellate jurisdiction generally, see 
 Houghton's Appeal, 42 Id. 35. 
 
 ' The appellate jurisdiction of the 
 supreme court in probate matters is 
 regulated by sec. 963, subd. 3 of the 
 code of civil procedure. 
 
 * The supreme court may exercise 
 its appellate jurisdiction in criminal 
 cases confined to felony: People v. 
 Applegate, 5 Cal. 295; affirmed in 
 People v. Vick, 7 Id. 165; People v. 
 Johnson, 30 Id. 101 ; People v. Shear, 
 7 Id. 139; People v. Fowler, 9 Id. 86; 
 People V. Apgar, 35 Id. 389 ; see also 
 People V. Cornell, 16 Id. 187 y People 
 v. "War, 20 Id. 117 ; People v. Burney, 
 29 Id. 459; People v. Jones, 31 Id. 
 
 576. The question whether the su- 
 preme court has jurisdiction to review 
 criminal cases upon questions of fact, 
 raised, but not decided : People v. 
 Dodge, 30 Id. 455. From a judgment 
 convicting a person of contempt, and 
 imposing on him a fine exceeding 
 three hundred dollars, no appeal lies. 
 Although contempt proceedings are 
 criminal in their nature, they are not 
 prosecuted by indictment or informa- 
 tion : Tvler v. Connolly, 1 West Coast 
 Rep. 77"9. 
 
 ' The supreme court has original 
 jurisdiction to issue writs of habeas 
 corpus, mandamus,certiorari, and pro- 
 hibition, and may exercise its appel- 
 late jurisdiction by means of such 
 writs : Ex parte Attorney General, 1 
 Cal. 87; Warner v. Hall, Id. 90; 
 Warner v. Kelly, Id. 91 ; Tvler v. 
 Houghton, 25 Id. 28; Miller v." Board 
 of Supervisors Sac. Co., Id. 93 ; People 
 v. Loueks, 28 Id. 71 ; Courtwright v. 
 Bear Eiv. and Aub. Wat. and Min. 
 Co., 30 Id. 585 ; Perry v. Ames, 26 
 Id. 383 ; Caulfleld v. Hudson, 3 Id. 
 389 ; Reed v. McCormick, 4 Id. 342 ; 
 Parsons v. Tuolumne, 5 Id. 43 ; Towns- 
 end V. Brooks, Id. 52 ; Zander v. Coe, 
 Id. 230; People V. Applegate, Id. 296; 
 People V. Fowler, 9 Id. 86 ; People v. 
 Turner, 1 Id. 143; White v. Light- 
 hall, Id. 347 ; Purcell v. McKune, 14 Id. 
 230; Flagley V. Hubbard, 22 Id. 88; 
 Milikin v. Huber, 21 Id. 169 ; Lewis 
 V. Barclay, ' 35 Id. 913, approving 
 People V. Weston, 28 Id. 639 ; A-dams 
 v. Town, 3 Id. 247 ; • Cowell v. Bucke- 
 lew, 14 Id. 642 ; Hyatt v. Allen, 54 
 Id. 353. 
 
14 GENERAL PRINCIPLES. § 37. 
 
 himself, or the supreme court, or before any superior court in 
 the state, or before any judge thereof.^ 
 
 § 37. The Same— Legislative Power over.— The legisla- 
 ture cannot take away or impair the appellate jurisdiction of 
 the supreme court, but may prescribe the mode in which appeals 
 may be taken.^ 
 
 § 38. The Same — Amount in Controversy.— The appel- 
 late jurisdiction of the supreme court extends to all actions in 
 which the demand, exclusive of interest, or the value of the 
 property in controversy amounts to three hundred dollars.* 
 The amount sued for, and the value of the property in contro- 
 versy, is thus the test of jurisdiction.* The words " property 
 in controversy," as thus used, mean the subject of litigation, 
 the matter for which suit is brought.* If an appea} is taken 
 by the plaintiff from a judgment in his favor, then the amount 
 in dispute is the difference between the amount of the judg- 
 ment and the sum claimed by the complaint. But if the 
 judgment is for the defendant, the jurisdiction of the supreme 
 court is determined by the amount claimed in the complaint.^ 
 If the appeal is taken by the defendant from a judgment in his 
 favor, where he set up a counter-claim, the amount in dispute 
 is the difference between the amount of the judgment, exclu- 
 sive of costs, and ' the sum claimed in his counter-claim. The 
 interest due forms no part of the amount in dispute ; so, also, 
 costs constitute no part thereof.'' Where plaintiff had judgment 
 against defendant for six hundred dollars, and defendant had 
 judgment in the same court, in another action, for one hundred 
 and ten dollars, a motion by plaintiff that defendant's judgment 
 be set off against plaintiff's judgment was denied, from which the 
 plaintiff appealed, but the supreme court held that it had no juris- 
 diction, the judgment sought to be set off being less than three 
 hundred dollars.* 
 
 § 39. Jurisdiction of Superior Court of California. 
 The court of general original jurisdiction in California is called 
 the superior court. The constitution of 1879 abolished the 
 then existing district, county, and probate courts, and estab- 
 
 > Cal. Const. (1879), art. 6, sec. 4. Gillespie v. Benson, 18 Id. 409 ; Za- 
 
 2 Haight V. Gay, 8 Oal. 300. briskie v. Torrey, 20 Id. 174 ; Votan 
 
 3 California Const. (1879), art. 6, v. Reese, 20 Id. 91. 
 
 see, 4, . 6 Skillman v, Lachman, 23 Cal, 198, 
 
 * Maxfleld v, Johnson, 30 Cal, 545 ; ' Dumphy v, Guindon, 13 Cal. 28 ; 
 
 Solomon v, Reese, 34 Id. 34, Votan v. Reese, 20 Id, 89 ; Zabriskie 
 
 '> Dumphy v. Guindon. 13 Cal. 28; v. Torrey, Id. 173; Maxfleld v, John- 
 
 aflflrmed in Meeker v, Harris, 2< Id. son, 30 Id. 545. 
 
 286 ; Bolton v. Landers, 27 Id. 107 ; ^ Qrandall v. Blen, 15 Cal. 407. 
 
§ 40. JURISDICTION. 15 
 
 lished such court in their place, combining in it the powers 
 and jurisdiction which had been previously exercised by them. 
 The jurisdiction of the superior court is both original and ap- 
 pellate. It has original jurisdiction in all cases in equity, and 
 in all cases at law which involve the title or possession of real 
 property, or the legality of any tax, impost, assessment, toll, 
 or municipal fine, and in all cases in which the demand, exclu- 
 sive of interest, or the value of the property in controversy, 
 amounts to three hundred dollars, and in all criminal cases 
 amounting to felony, and cases of misdemeanor not otherwise 
 provided for ; of actions of forcible entry and detainer, of pro- 
 ceedings in insolvency, of actions to prevent or abate a nui- 
 sance ; of all matters of probate ; of divorce and for annulment 
 of marriage, and of all such special cases and proceedings as are 
 not otherwise provided for. It also has power to naturalize 
 aliens, and xo issue papers therefor. Such courts, and their 
 judges, have power to issue writs of mandamus, certiorari, pro- 
 hibition, quo warranto, and habeas corpus, on petition by or on 
 behalf of any person in actual custody in their respective coun- 
 ties. Injunctions and writs of prohibition may be issued and 
 served on legal holidays and non-judicial days. They have ap- 
 pellate jurisdiction in such cases arising in justices' and other 
 inferior courts in their respective counties as may be prescribed 
 by law. They are always open for the transaction of business, 
 and their process extends to every portion of the state. There 
 is a superior court in each county of the state. The number of 
 judges belonging to the respective courts varies from twelve in 
 the city and county of San Francisco, to one, which is the 
 number in most of the counties. A judge of any superior 
 court may hold a superior court in any county, at the request 
 of a judge of the superior court thereof, and upon the request 
 of the governor it is his duty so to do.^ 
 
 § 40. The Same — Jurisdiction in General. — The superior 
 court, like the district court, which it superseded, is one of 
 general original jurisdiction; its process is co-extensive with 
 the state f and the regularity of its proceedings is presumed.^ 
 They have no appellate jurisdiction except such as is conferred 
 upon them by the constitution.* When sitting in an equity ac- 
 
 1 Cal. Const. (1879), art 6, sec. supervision of district courts over 
 
 5_g inferior tribunals, see Miliken v. Hu- 
 
 « Reves V. Sanford, 5 Cal. 117. ber, 21 Id. 166. 
 
 'People v. Robinson, 17 Cal. 863, 'People v. Peralta, 8 Cal. 879; 
 
 approved in People v. Eobinson, 27 Canfield v, Hudson, Id. 889; Her- 
 
 Id.67; People v- Judge Tenth Jud. nandez v. Simon, Id. 464; Gray v. 
 
 Dist., 9 Id. 19. As to the power of Schupp, 4 Id. 185 ; Keed v. McCop- 
 
16 GENERAL PRINCIPLES. § 41. 
 
 tioD, as for example an action to abate a nuisance, the court 
 and judge are possessed of all the powers of a court of chan- 
 cery.i As at present organized, the superior courts have no 
 stated terms. Formerly the district courts lost all power over 
 a cause, in which judgment had been rendered, upon the ad- 
 journment of the term, and could not disturb its judgments 
 except in cases provided by statute. ^ 
 
 § 41. The Same — Amount in Controversy. — In actions 
 for the recovery of money, the superior court has jurisdiction, 
 if the sum sued for amounts to three hundred dollars, exclusive 
 of interest, regardless of the sum for which judgment may be 
 ■obtained. 3 Where the principal sum sued for is less than two 
 hundred dollars (now three hundred dollars) the superior court 
 has no jurisdiction.'* 
 
 § 42. The Same — Character of Action, how Deter- 
 mined. — The character of the action is to be determined by the 
 prayer of the complaint. Generally, if the prayer asks for a 
 money judgment, it is an action at law ; if it asks for the fore- 
 closure of a lien, order of sale, etc., it is a suit in equity. In 
 the former the superior court has no jurisdiction where the 
 amount is less than three hundred dollars, and the ad damnum 
 clause is the test.^ In the latter it has jurisdiction, regardless of 
 the amount claimed. ^ 
 
 § 43. The Same — ^Divorce.— In a suit for a divorce, and 
 partition of the property acquired during coverture, the juris- 
 diction of the superior court is not limited as to the amount.'' 
 Superior courts have jurisdiction to decree relief in alimony to 
 the wife, in a separate action, unconnected with a suit for 
 •divorce.^ Or, to enforce an agreement for separation and ali- 
 
 mick, Id. 842, affirmed in Parsons v. affirmed in Oarpentier v. Hart 5 Id 
 
 Tuol. W. Co., 5 Id. 43 ; Keller v. De 407 ; Shaw v. McGregor, 8 Id. 521 ' 
 
 Franklin, Id. 432 ; Becket v. Selover, De Castro v. Richardson, 25 Id. 62 
 
 7 Id. 240 ; and People V. Fowler, 9 Id. Casement v. Ringgold, 28 Id. 338, 
 
 S6; Townsend v. Brooks, 5 Id. 52; see also Whiplev v. Dewev. 17 Id' 
 
 Zander v. Coe, Id. 230; People v. 814. J. • 
 
 Applegate, Id. 295, affirmed in Peo- 8 Solomon v. Reese, 34 Cal. 28. 
 
 pie V. Vlok, 7 Id. 166; People v. * Arnold v. Van Brunt, 4 Cal. 89. 
 
 Johnson, 30 Id. 101; People v. Shear, sMaxfleldv. Johnson, 30 Cal. 545- 
 
 7 Id. 140; People V. Apgar, 35 Id. 889. Solomon v. Reese, 34 Id. 28. 
 
 1 Sanford v. Head, 5 Cal. 297 ; Peo- « People t. Mier, 24 Cal. 61, affirmed 
 pie V. Davidson, 30 Id. 880, approved in Bell v. Crippen, 28 Id. 328 • Court- 
 in Courtwright v. B. R. & A. W. & wright v. Bear River and Auburn 
 M. Co., Id. 585 ; Mahlstadt v. Blanc, Water and Mining Co., 30 Id. 581 • 
 34 Id. 577 ; Courtwright v. B. R. & Mahlstadt v. Blanc, 34 Id. 577 ' 
 A. W. & M. Co., 30 Id. 585 ; ' Deuprez v. Deuprez, 5 Cal'. 887 
 Wright V. Miller, 1 Sandf. Ch. « Galland v. Galland, 88 Cal 265 
 120; Reigal v. Wood, 1 Johns. Ch, citing Purcell v. Purcell 4 Hen .' 
 
 401 
 
 , „ , „. Munf. 507 ; Almond v. Almond 4 
 
 ' Suydam v. Pitcher, 4 Cal. 280. Rand. 662 ; Logan v. Logan, 2 B. Men. 
 
§ 46. JURISDICTION. 17 
 
 mony in connection.^ And, in general, whenever the wife is 
 entitled to live separate from her husband, by reason of breaches 
 of 'matrimonial duty committed by him, a concurring adjudica- 
 tion must be pronounced that he support her while so living.* 
 
 § 44. The Same — Forcible Entry and Detainer. — In 
 Nevada, district courts have jurisdiction in actions of forcible 
 entry and detainer.^ Previous to the present California consti- 
 tution, jurisdiction in such actions was conferred upon the 
 county courts. The present constitution vests it in the superior 
 courts, subject to the proviso that justices' courts shall have con- 
 current jurisdiction in such actions, where the rental value of 
 the property in dispute does not exceed twenty-five dollars per 
 month, and where the whole amount of damages claimed does 
 exceed two hundred dollars.* 
 
 § 45. The Same — Fugitives from Justice. — The' superior 
 courts, being courts of general original jurisdiction, exercising 
 the usual powers of common-law courts, are fully competent to 
 hear and determine all matters, and to issue all necessary writs 
 for the arrest and transfer of fugitive criminals to the authorized 
 agent of the state from which they fied, without any special 
 legislation ;5 or to inquire into the legality of their detention 
 under a requisition from a governor of another state. ^ 
 
 § 46. The Same — Abatement of Nuisances. — Under the 
 constitution, the superior courts have jurisdiction in actions to 
 abate a nuisance. Such jurisdiction, being a constitutional 
 grant, can not be taken away by the action of the legislature in 
 attempting to confer exclusive or concurrent jurisdiction over 
 such cases on other courts.'' Actions to abate a nuisance would 
 ordinarily be included within the equitable jurisdiction of a 
 court clothed with such power. The California constitution, 
 besides granting to the superior court general legal and equita- 
 ble jurisdiction, has specially empowered it with jurisdiction of 
 
 142 ; Prather v. Prather, 4 Desaus. 477 ; Peltier v. Peltier, Harr. (Mich.) 
 
 83 ; Khame v. Ehame, 1 McCord Ch. Ch. 19. 
 
 197; Glover V. Glover, 16 Ala, 440 ^ Ho opes v. Meyer, 1 Nev, 433. 
 
 446. * California Constitution (1879), art. 
 
 1 Galland v. Galland, supra. sees. 5, 11, 
 
 2 2 Story's Eq. Jur., sees. 1422, 1424, ^ jn re Romaine, 23 Cal. 585 ; 106 
 Fischli V. Fischli, 1 Blackf. 360, 365 ; Mass. 225. 
 
 Chapman v. Chapman, 13 Ind. 397 ; " Ex parte Robb, 1 West Coast 
 
 Shannon v. Shannon, 2 Gray, 285; Rep. 255, affirmed in Robb v, Con- 
 
 Sheafe v. Sheafe, 4 Post. 564; Par- nolly, U, S. Sup. Ct., Oct. T. 1883, 
 
 sons V. Parsons, 9 N. H. 809 ; Law- overruling Ex parte Robb, 1 West 
 
 son V. Shotwell, 27 Miss. 630 ; Doyle Coast Rep. 439 
 
 V.Doyle, 26 Mo. 545; Yulev. Yule, 'Fitzgerald v. Urton, 4 Oal. 235; 
 
 2 Stockt. 138, 143; Corey v. Corey, 3 Courtwright v. Bear River and Aub. 
 
 Id. 400; McGee v. McGee, 10 Ga. Water and Mining Co., 30 Id. 573. 
 BsTBB, Vol. I — 2 
 
18 GENERAL PEINCIPLES. § 47. 
 
 actions for the abatement of nuisances, and for the recovery of 
 damages caused thereby. In interpreting the constitutional 
 provisions granting such jurisdiction, and in order to give effect 
 to each, it has been held in a very recent case, that in hearing 
 and determining such actions the superior court sits as a special 
 and not as an ordinary equitable tribunal ; that the verdict of the 
 jury on the general question of damages, in favor of the plaintiff, 
 necessarily is a finding upon the right of the plaintiff to an abate- 
 ment of the nuisance, and that judgment abating such nuisance 
 may be entered upon such verdict without any other finding upon 
 the part of the court. ^ 
 
 §47. The Same— Partition. — The superior courts have 
 jurisdiction of actions to ^cover one half of the value of a par- 
 tition fence, although the amount sought to be recovered is less 
 than three hundred dollars — such action involving title to 
 land.2 
 
 § 48. The Same— Probate.— The jurisdiction of the su- 
 perior court of California over the settlement and distribution 
 of the estates of decedents is twofold. As a tribunal possess- 
 ing the full equity jurisdiction of the English court of chancery, 
 it has jurisdiction of an ordinary equitable action of the set- 
 tlement of the estate of a decedent, notwithstanding the stat- 
 utes of such state have provided a full and complete system for 
 the administration of such estates. As the successor, under 
 the constitution of 1879, of the former probate courts, it pos- 
 sesses jurisdiction to administer such estates in accordance with 
 the statutory system. 3 The facts of the death of the deceased, 
 and of his residence within the county, are foundation facts 
 upon which all subsequent proceedings of the superior court, 
 sitting as a court of probate, rest.^ Where such court has jur- 
 isdiction of the subject-matter, all intendments are, under the 
 statute, in favor of ttie correctness of the action of the court, the 
 same as in other courts of record.* Thus, letters of adminis- 
 tration upon an estate, granted by the probate court, cannot be 
 collaterally attacked by showing that the last residence of the 
 deceased was not in that country, and therefore that the 
 
 ' Learned v. Castle, 3 West Coast systems of probate on the equitable 
 
 I'^p- 15*- j urisdiction of the courts of the vari- 
 
 2 Holman v. Taylor, 31 Cal. 338. ous states, see Pomeroy's Eq., sees. 
 
 3 In re Allgier, 2 West Coast Rep. 847-352, 1153. 
 
 876. In Rosenberg V. Frank, 58 Cal. *Hayne3 v. Meeks, 10 Cal. 110; 
 387, this point was examined with .Townsend v. Gordon, 19 Id. 205; 
 great care, and the effect of the stat- Estate of Harlan, 24 Id. 182. 
 utory system of probate stated as » Lucas v. Todd, 28 Cal. 182 ; Irwin 
 given in the text. For a complete v. Scribe r, 18 Cal. 499. 
 examination of the effect of statutory 
 
§ 50. JUEISDICTIOX. 19 
 
 court had no jurisdiction.^ The probate courts had no jurisdic- 
 tion to administer upon the estates of deceased persons who 
 died prior to the adoption of the first constitution in California ; 
 but the estates of deceased persons in such state, who died 
 prior to the passage of the probate act of 1850, and subse- 
 quent to the adoption of the common law, can be administered 
 on in accordance with the provisions of the probate acts in force.* 
 
 § 49. The Same — Taxes. — An action brought before the 
 revenue act of 1861, to recover judgment for unpaid taxes, is 
 not a case in equity, but an action at law, and where the 
 amount is less than three hundred dollars, the district court has 
 no jurisdiction. 3 If, however, the action is brought under the 
 provisions of the act of May 12, 1862, it is a case in equity, and 
 the district court has jurisdiction, although the amount claimed 
 is less than three hundred dollars.* 
 
 § 50. Jurisdiction of Justices' Courts in California. — 
 The legislature has power to determine the number of justices 
 of the peace to be elected in townships, incorporated cities, 
 and towns, or cities and counties, and may fix by law the 
 powers, duties, and responsibilities of such officers, provided 
 such powers shall not in any case trench upon the jurisdiction 
 of the several courts of record, except that said justices shall 
 have concurrent jurisdiction with the superior courts in cases 
 of forcible entry and detainer, where the rental value does not 
 exceed twenty-five dollars per month, and where the whole 
 amount of damages claimed does not exceed two hundred dollars, 
 and in cases to enforce and foreclose liens on personal property 
 where neither the amounts of the liens nor the value of the 
 
 ^ Irwin v. Scriber, 18 Cal. 499, being filed therein, refused to take 
 affirmed; Halleck v. Moss, 22 Id. 276, jurisdiction of the cause, and ordered 
 Where S. dies out of the state, leav- the papers back: Held, that the pro- 
 ing property in Santa Clara county, bate court of Santa Clara could not 
 and the probate court thereof takes divest itself of jurisdiction, and vest 
 jurisdiction of the estate and grants it in the probate court of San Fran- 
 letters of administration to K. ; the cisco ; and that mandamus will not 
 widow subsequently files a petition to issue to compel the latter court to 
 revoke the letters, on the ground take jurisdiction. Estate of Scott, 
 that the probate court of San Fran- 15 Id. 220. 
 
 Cisco ought to have issued them, ' Downer v. Smith, 24 Cal. 114, 
 
 whereupon the administrator asks the commented on in People v. Senter, 
 
 court to transfer the cause to that 28 Id. 50-5, and approved in Coppin- 
 
 court, representing that the widow ger v. Rice, 33 Id. 428. 
 
 and a majority of the witnesses reside * People v. Mier, 24 Cal. 61, af- 
 
 there, and that the interest of several firmed in Bell v. Crippen, 28 Id. 827 ; 
 
 persons interested in the estate would Courtwright v. Bear River and Aub. 
 
 be advanced by the transfer, to which Water anfl Mining Co., 30 Id. 681 ; 
 
 both parties agreed; the court made and Mahlstadt v. Blanc, 34 Id. 580. 
 
 an order to transfer. The probate * Bell v. Crippen, 28 Cal. 327. 
 court of San Francisco, on the papers 
 
20 GENEBAL PRINCIPLES. § 50. 
 
 property amounts to three hundred dollars.^ In addition to 
 the jurisdiction given them concurrent with the superior courts, 
 justices' courts have cidl jurisdiction within their respective 
 townships or cities, in actions arising on contracts for the re- 
 covery of money only, if the sum claimed, exclusive of interest, 
 does not amount to three hundred dollars ; in actions for dam- 
 ages for injury to the person, or for taking, detaining, or injur- 
 ing personal property, or for injury to real property where no 
 issue is raised by the veriiied answer of the defendant, involv- 
 ing the title to or possession of the same, if the damages 
 claimed do not amount to three hundred dollars ; in actions to 
 recover the possession of personal property, if the value of 
 such property does not amount to three hundred dollars ; in 
 actions for a fine, penalty, or forfeiture, not amounting to three 
 hundred dollars, given by statute, or the ordinance of an in- 
 corporated city and county, city or town, where no issue is 
 raised by the answer involving the legality of any tax, impost, 
 assessment, toll, or municipal fine; in actions upon bonds, or 
 undertakings conditioned for the payment of money, if the sum 
 claimed does not amount to three hundred dollars, though the 
 penalty may exceed such sum ; to take and enter judgment for 
 the recovery of money on the confession of a defendant, when 
 the amount confessed, exclusive of interest, does not amount 
 to three hundred dollars.^ Such jurisdiction does not extend, 
 however, to any action or proceeding against ships, vessels, or 
 boats, for the recoverj' of seamen's wages for a voyage per- 
 formed in whole or in part without the waters of the state. ^ 
 The civil jurisdiction of such court extends to the limits of the 
 city or township in which they are held, but mesne a^d final 
 process may be issued to any part of the county in which they 
 are held.* A justice of the peace has "no power to vacate or set 
 aside a judgment rendered by him, except upon a motion for a 
 new trial. 5 
 
 1 Califomia Const. (1879), art 6, Code of Civil Procedure. As to the 
 
 ^•■^■11; „ _,. ., „ organization of justices' courts in the 
 
 * Code of Civil Proc, sec. 12. city and countv of San Francisco, 
 ' Code of Civil Proc, sec. 114. under the conso'lidation act, see Har- 
 
 * Code of Civil Proc, sec. 106. ston's Practice, 56, et seq. 
 
 The criminal jurisdiction of justices' » "Winter v. Fitzpatrick, 85 Cal, 
 courts is fixed by section 115 of the 269, 
 
§ 52. PLACE OP TRIAL. 21 
 
 CHAPTER III. 
 PLACE- OF TRIAL. 
 
 § 51. Place of Trial— In General.— The remedy being 
 selected, and the jurisdiction of the various courts being fixed, 
 the next inquiry is in what county shall the proceedings be had. 
 The code of civil procedure of California provides that actions 
 must be tried in a particular county or district, having reference : 
 1. To the place where the subject-matter in controversy is 
 situated ; or 2. To the place where the cause of action arose ; or, 
 3. To the place where the parties to tLe action reside, according 
 to the nature of the questions involved. Thus, real actions, or 
 actions affecting real property, have a tendency to a fixed and 
 local jurisdiction ; while personal actions are transitory in their 
 character. 
 
 § 52. Actions to be Tried where the Subject-matter is 
 Situated. — The actions which are to be tried where the subject- 
 matter, or some part thereof, is situated, subject to a change of 
 the place of trial, are as follows : Actions for the recovery of 
 real property, or of an estate or interest therein, or for the de- 
 termination, in any form, of such right or interest, and for 
 injuries to real property ; actions for the partition of land ; ac- 
 tions for the foreclosure of all liens and mortgages on real prop- 
 erty. Where the real property is situated partly in one county 
 and partly in another, the plaintiff may select either of the 
 counties, and the county so selected is the proper county for the 
 trial of such action. ^ 
 
 By the laws of Oregon* and of lowa,^ the recovery of personal 
 property is included in this section, and is made a local action ; 
 
 1 Cal. Code of Civil Proc, sec. 392 ; applies to the commencement of the 
 
 N. T. Code, sec. 123 ; Nash's Ohio PI., action. It does not prevent a change 
 
 p. 16, 17; Wash. Ter., sec. 37; Idaho, of venue, when a cause therefor exists, 
 
 sec 18 ; Ariz., sec. 18. In California such as the disqualification of the 
 
 the constitution of 1879, art. 6, sec judge of the county in which the land 
 
 5, provides that all actions for the is situated : Hancock v. Burton, 61 
 
 recovery of the possession of, quieting Cal. 70. 
 
 the title to, or for the enforcement of In Washington Territory all ac- 
 
 liens upon real estate, shall be com- tions for the causes mentioned in 
 
 menced in the county in which the section 48, laws of 1877, must be 
 
 real estate or any part thereof affected commenced in the county or district 
 
 by such action or actions, is situated, in which the subject of the action lies. 
 
 Whether, in view of this constitu- The court of no other county or dis- 
 
 tional provision, a court other than trict has jurisdiction thereof: Wood 
 
 the one designated therein would have v. Mastick, 2 West Coast Kep. 549. 
 jurisdiction of an action affecting real ' Sec. 41. 
 estate commenced out of such county, ' Sec. 2796. 
 gucere. Such provision, however, only 
 
22 GENERAL PRINCIPLES. § 53. 
 
 while the laws of Arizona include mining claims, but make no 
 provision for the contingency of the property or estate lying in 
 contiguous counties.! In California, also, nfining claims are 
 included under the provisions of this section.^ And while it 
 provides for the trial in certain counties, the situation of the 
 premises, not the residence of the parties, determines the county. ^ 
 
 The statutory requirements do not apply to actions for lands 
 lying out of the state.* But to actions for the possession of real 
 property within the state.^ Or, for the determination of a right 
 of interest therein. 8 Or, for the recovery of title thereto.^ Or, 
 for the foreclosure of mortgages thereon. 8 
 
 § 53. Actions against Counties may be commeiKjed and 
 tried in any county in the judicial district in which such county 
 is situated, unless such action is between counties, in which 
 case it may be commenced and tried in any county not a party 
 thereto. 9 
 
 § 54. Actions to be Tried where Cause of Action 
 Arose. — ^Actions must be tried in the county where the cause, 
 or some part thereof, arose, subject to the power of the court 
 to change the place of trial, where the same is for the recovery 
 of a penalty or forfeiture imposed by statute ; except that, where 
 it is imposed for an offense committed on a lake, river, or other 
 stream of water, situated in two or more counties, the action 
 may be brought in any county bordering on such lake, river, or 
 stream, and opposite to the place where the offense was com- 
 mitted ; and where the action is against a public officer, or per- 
 son especially appointed to execute his duties, for an act done 
 
 ^Code of Arizona, sec. 18. water from the plaintifTs ditch may 
 
 * Watts V. White, 13 Cal. 321. be brought in either of the counties in 
 ' Doll V. Feller, 16 Cal. 433. which such ditch is situated, although 
 
 * Newton v. Bronson, 8 Kern. 587; the defendant's place of business is in 
 Mussina v. Belden, 6 Abb. Pr. 165. the other county where the act coni- 
 
 ' Mairs v. Bamsen, 3 Code E. 138, plained of was committed: Lower 
 
 * Wood V. Hollister, 8 Abb. Pr. 14; Aing's River etc. Co. v. King's River 
 Starks V. Bates, 12 How. Pr. 465. etc. Co., 60 Cal. 408; People's Ditch 
 
 ' Ring V. McCoun, 3 Sandf. 524; Co. v. King's River etc. Co., 1 West 
 
 Wood V. Hollister, 8 Abb. Pr. 14; Coast Rep. 473. 
 
 Newton v. Bronson, 13 N. Y. 587. ' California Code Civil Proc, sec. 
 
 8 Vallejo V. Randall, 5 Cal. 461 ; 894. In the absence of special statu- 
 
 Marsh v. Lowry, 26 Barb. 197; 16 tory provisions, such suits are gov- 
 
 How. Pr. 41 ; Wood v. Hollister, 3 ernea by the usual rules of civil prac- 
 
 Abb.Pr. 14; but see Rawls v. Carr, tice ; and where a county was sued in 
 
 17 Id. 96; Starks v. Bates, 12 How. a judicial district of which it did not 
 
 Pr. 465 ; Ring v. McCoun, 3 Sandf. form a part, but appeared and an- 
 
 524. As to the local jurisdiction of swered without objecting to the ju- 
 
 the same tribunal of a controversy risdiotion, it thereby waived the right 
 
 affecting property within its limits, to a change of venue to its own dis- 
 
 see Nichols v. Bomaine, 9 How. Pr. trict: Clarke v. Lyon County , 8 Nev. 
 
 612. An action for the diversion of 181. 
 
§ 55. . PLACE OP TKIAL. 23 
 
 by him in virtue of his oflSce, or against a person who, by his 
 command or his aid, does anything touching the duties of such 
 •oflacer.i These provisions have been held not to apply to offi- 
 ■cial neglects or omissions, but merely to affirmative acts of 
 officers.' Nor do they apply to offlcers of the United States. ^ 
 
 § 55. Actions to be Tried where Defendants Reside. — 
 In all cases except those above mentioned the action must be 
 tried in the county in which the defendants or some of them 
 reside at the commencement of the action; or if none of the 
 defendants reside in the state, or if residing in the state and 
 the county in which they reside is unknown to the plaintiff, the 
 same may be tried in any county which the plaintiff may desig- 
 nate in his complaint ; and if the defendant is about to depart 
 irom the state, such action may be tried in any county where 
 ■either of the parties reside, or service is had ; subject, however, 
 to the- power of the court to change the place of trial.'* In 
 actions against corporations, the principal place of business of 
 the corporation is its residence,* and the action should be 
 brought there. Action for divorce by a wife living apart from 
 her husband may be brought against him in the county where 
 «he resides.^ 
 
 Actions to recover damages for injuries to the person should 
 be brought under this section,'' and also actions for creating a 
 private nuisance, the same being an action for an injury to the 
 person.8 In quo warranto, the people being a party, their resi- 
 ■dence extends to every county. ^ In proceedings for a man- 
 
 1 California Code Civil Proc, sec Pr. 543. As to foreign corporations, 
 393 ; N. Y. Code, sec. 124 ; Oregon, see International Co. v. Sweetland, 
 ■sec. 42; Wash. Terr., sec. 38 ; Idaho, 14 Abb. Pr. 240. As to the residence 
 sec. 19 ; Ariz., Id. In Ohio and Iowa, of railroad corporations, see Vermont 
 in addition, " an action on the official K. R. Co. v. Northern K. E. Co., 6 
 bond of an officer:" Nash's Ohio PI., How. Pr. 106; Sherwood v. Saratoga 
 sec 47 ; Iowa Code, sec. 2796 ; also, K. E. Co., 15 Barb. 650 ; Belden v. 
 Park T. Carnley, 7 How. Pr. 355 ; N. Y. & Harl. E. E. Co., 15 How. 
 People V. Hayes, Id. 248; Brown v. Pr. 17; People v. Pierce, 31 Barb. 
 Smith, 24 Barb. 419 ; Howland v. 1S8 ; Conroe v. Nat Pro. Ins. Co., 10 
 Willetts, 5 Sandf. 219, affirmed in How. Pr. 403 ; Hubbard v, Nat, Pro. 
 6 Seld. 170; Porter v. Pillsbary, 11 Ins. Co,, 11 Id, 149; see, however, 
 How. Pr. 240; People v. Cook, 6 Id. Pond v, Hudson Eiver E. E. Co., 17 
 448 ; Houek v. Lasher, 17 Id. 520. Id. 543. 
 
 2 Elliott V. Cronk's Adm'r, 13 Wend. « Harteau v, Harteau, 14 Pick. 181 ; 
 -35 • Hopkins v. Haywood, Id. 265; Jenney v. Jenney, 14 Maes. 231 ; 2 Id. 
 McMillan V. Eichards, 9 Cal. 420. 153, 156; 3 Id. 184; 2 Cora. & H. 
 
 » Freeman v. Eobinson, 7 Ind. 821. notes, 879; 9 Greenl. 147 ; Vence v, 
 
 * Cal. Code of Civil Proc, sec. 395 ; Vence, 15 How. Pr, 497 ; Id. 576. 
 
 N. Y. Code, sec. 125 ; Oregon, sec. ' Molvor v, McCabe, 16 Abb. Pr. 
 
 •43; Idaho, sec. 20; Arizona, sec. 20. 319. 
 
 5 Jenkins v. Cal. Steam Nav. Co., » Bay v. Sellers, 1 Duvall (Ky.), 
 
 22 Cal, 537; Hubbard v, Nat. Pro. 254. 
 
 Ins. Co,, 11 How. Pr. 149; Pond v. ' People v. Cook, 6 How. Pr. 448. 
 
 Hudson Biver E. E. Co., 17 How. 
 
24 GENERAL PKINCIPLES. § 56. 
 
 ckimus to compel the execution of a shevifi's deed to a redemp- 
 tioner, the action may be commenced in the county where the 
 relator resides.^ The writ of habeas corpus, however, should not 
 issue to run out of the county, unless for a good cause 
 shown. ^ 
 
 § 56. Change of Place of Trial. — After service of sum- 
 mons and copy of complaint, the attorney for defendant should 
 make inquiry by examining the complaint as to whether the 
 action is brought in the proper county, and if it is not, and a 
 change of venue is desired, the first thing to be done is to move 
 the court for a change of the place of trial. This may be done 
 upon affidavit of merits and notice to the plaintiff. In Califor- 
 nia, the notice to be given as to time is, five days before the 
 time appointed for the hearing, when the court is held in the 
 same district with both parties ; otherwise, ten days, unless the 
 notice is served by mail.^ 
 
 § 57. The Cause. — If the county in which the action be 
 commenced is not the proper county for the trial thereof, the 
 defendant has a statutory right to have the same transferred to 
 such county.* It may, however, be tried in the county in 
 which the action is brought, unless the defendant, at the time 
 he appears and answers or demurs, files an affidavit of merits, 
 and demands, in writing, that the trial be had in the proper 
 county.* Besides the right of the defendant to a change of 
 venue because the county designated in the complaint is not 
 the proper county, the court may also, on motion, change the 
 place of trial when there is reason to believe that an impartial 
 trial can not be had therein; when the convenience of wit- 
 nesses and the ends of justice would be promoted by the 
 change ; and when from any cause the judge is disqualified from 
 acting.* If the defendant desires a change of the place of trial, 
 on the ground that the county designated in the complaint is not 
 the proper county, he must demand a transfer at the time 
 he appears by demurrer or answer. If his motion to change 
 
 1 McMillan V. Richards, 9 Cal. 420. performance; Robinson v. Flint, 7 
 
 2 Ex pane Ellis, 11 Cal. 225. In Abb. Pr 393, note. 
 
 New York, where the parties reside ' Oalifornia Code C. P., sec. 1005. 
 
 in different counties the -suit shall As to which is the proper county, see 
 
 be commenced in the county where Cal. Code 0. P., sees. 392-395. 
 
 the principal transaction occurred, or * Bailey v. Sloan, 1 West Coast 
 
 where it appears the largest number Rep. 472. 
 
 of witnesses reside; Jordan v. Garri- ' California Code C. P., sees. 896. 
 
 son, 6 How. Pr. 6. " Transaction," « California Code C. P., sec. 397 ; 
 
 when relating to a contract, includes Idaho, sec. 21 ; Arizona, sec. 21" n1 
 
 the whole proceeding, beginning with Y. Code, sec. 987, ' 
 
 the negotiation, and endmg with the 
 
§ 59. PLACE OF TRIAL. 25 
 
 the place of trial is brought to a hearing before he has 
 answered, the plaintiff can not, by a cross-motion, demand the 
 retention of the action in the county where it is pending, on 
 the ground of convenience, etc.^ It is only in cases where the 
 change is asked because the county designated in the complaint 
 is not the proper county that the motion for the change must 
 precede or accompany the answer or demurrer. The motion 
 may be made by the defendant, on any other statutory ground, 
 without the affidavit and demand, within a reasonable time after 
 his appearance. Such motions, however, being dilatory, must 
 be prosecuted with diligence.* 
 
 § 56. The Same — The Plaintiff in an Action may have 
 the Place of Trial Changed upon a proper showing, and 
 upon a proper showing it is error in the court to refuse.^ 
 Where, however, there are conflicting grounds, or if the motion 
 be made on the ground of the convenience of witnesses, and 
 there are conflicting affidavits, the court may exercise its discre- 
 tion, and i,ts ruling will not be disturbed except in cases where 
 this discretion has been abused.* The mere preponderance of 
 witnesses on one side is not necessarily decisive of the motion.* 
 Nor is the court bound of its own motion to change the venue. 
 The right to a change is a mere privilege which may be waived.* 
 
 § 59. Demand for Change. 
 
 Form No. 1. 
 [Title.] 
 I hereby demand that the place ot trial of this cause be 
 
 changed to the proper county, viz., the county of 
 
 [Date.] [Siqnattjkb.] 
 
 [Address.] 
 In New York, to procure a change of the place of trial, in 
 case the county named is not the proper county, a demand is 
 first necessary, the service of which is an essential prerequisite 
 to the motion.'' And if the plaintiff fails to consent to the de- 
 mand, application must be made to the court. ^ A demand is 
 
 »Tooms V. Randall, 3 Cal. 438; Pearkes v. Freer, 9 Ad. 642. It may 
 
 Reyes v. Sanford, 5 Id. 117 ; Pearkes be remarked that, as this proceeding 
 
 V. Freer, 9 Id. 642 ; Jones v. Frost, 28 is entirely statutory, and the former 
 
 Id. 246; Mahe v. Reynolds, 38 Id. practice m New York diflFered quite 
 
 660 ; Cook v. Pendersiast, 61 Cal. 72 ; materially from that in California, the 
 
 Heald v. Hendy, 3 West Coast Rep. decisions in New York have generally 
 
 102. but little application under the Cali- 
 
 'Cookv.Pendergast, 61 Cal. 72-78. fornia practice. 
 
 •Grewellv.Walden, 23 Cal. 168,169. 'New York Code, ed. 1877, sec. 
 
 * Territory v. Kinney, 1 West Coast 986 ; Vermont Central R. R. Co. v. 
 
 Ben 801 ; Territory v. Lopez, Id. 821. Northern R. R. Co., 6 How. Pr. 106. 
 
 « Hanchett v. Finch, 47 Cal. 192; » March v. Lowry, 16 How. Pr. 41 ; 
 
 Oook V. Pendergast, 61 Id. 72. 26 Barb. 197; Houck v. Lasher, 17 
 
 •Watte V. White, 13 Cal. 824; How. Pr. 520. 
 
26 GENERAL PKINCIPLES. § 60. 
 
 now necessary also in California-, where the ground of removal 
 is that the action is not brought in the proper county.^ The 
 ■object of the demand in California, however, is not very appar- 
 ent, since there is no provision for removal by consent as under 
 sections 985 and 986 of the New York code ; nor is there any 
 provision for any action by the court upon the demand, nor 
 does the demand do away with the necessity for notice of the 
 motion to change, and the only provision authorizing the re- 
 moval is in California Code of Civil Procedure, section 397. 
 " The court may on motion change the place of trial," etc. It 
 has been held by some of the district courts that service of 
 notice of motion to change the place of trial is a sufficient de- 
 mand. 
 
 § 60. Statement in Demand. — In the demand the name 
 of the proper county to which a removal is sought must be in- 
 serted.^ And service must be made on the opposite counsel 
 before the time for answering expires. ^ But it may be made 
 simultaneously with the service of the answer.* But not after, 
 although defendant answered before his time had expired.* 
 Either party may move when an impartial trial could not be 
 had, or when convenience of witnesses would be promoted. ^ 
 A demand specifying an improper county is irregular.'' On a de- 
 mand there must be an order or consent ; mere service of demand 
 is not sufflcient.8 In a demand to change the place of trial 
 to the proper county, any suggestion as to which is the proper 
 county is surplusage. 9 Under the present New York code the 
 demand must specify the county where the defendant requires 
 the action to be tried.'" And such would seem the better prac- 
 tice in California. 
 
 § 61. Form of Notice. 
 
 Form No. S. 
 
 LTlTLB.J 
 
 To , Attorney for Plaintiff. 
 
 You will please take notice that the defendant will move this 
 
 court, at the court-room thereof, , on the day 
 
 ^^ 1 18 at ten o'clock a.m. of said day, or as soon 
 
 1 Ante, and California Code C. P., » Hinchman v. Butler. 7 How Pr 
 sec 396. 462. 
 
 2 Beardsley v. Dickerson, 4 How. ' Beardsley v. Dickerson, 4 How. 
 * r. 01. Pr. 81, 
 
 3 MiUigau V. Brophy, 2 Code B. » Hasbrouck v. M'Adam, 4 How 
 '^f-., . „ Pr. 342 ; 8 Code K. 89. 
 
 ' Maira V. Eemsen, 8 Code B. 138. » Philbrick v. Boyd, 16 Abb. Pr. 
 
 5 MiUigan V. Brophy, 2 Code E. 398. '' ' 
 
 ^^^- " New York Code, sec. 986. 
 
§ 63. PLACE OF TKIAL. 27 
 
 thereafter as counsel can be heard, for an order changing the 
 place of trial of this action to the superior court in and for the 
 county of Said motion will be made upon affida- 
 vits, copies of which are herewith served upon you, and upon 
 the demand to change the place of trial, and the papers on file 
 in the case, upon the following grounds : — 
 
 I. That the property in controversy is situated in said 
 
 county. 
 
 II. That the defendants are both residents of said 
 
 county. 
 
 III. That this is an action against defendant for 
 
 an act done by him in virtue of his office, said defendant being 
 sheriff of county. A. B., 
 
 [Datb.] Defendants' Attorney.' 
 
 § 62. Joinder of Defendants.— The rule is well settled that 
 all of the defendants must join in the application for a change 
 of venue, or a good reason shown why they do not ; otherwise 
 it will be denied.'* The motion may be made by one of several 
 defendants,^ on notice to the other defendants, unless they be 
 in default ; or a defendant subsequently served, after a similar 
 motion by another defendant has been denied, may move for a 
 change of place of trial.* This, however, seems questionable, 
 and can not be done where part of the defendants live in the 
 county where the action is brought, if the motion is made on 
 the ground that the action is not brought where defendants re- 
 side.^ 
 
 § 63. Statement of Ground — Not the Proper County 
 from Situation of Subject-matter. 
 
 Form No. 3. 
 
 [Substitute in preceding form.] 
 
 That this is an action for the recovery of real property [or of 
 an estate, or interest therein, or for the determination in some 
 form of such right or interest, or for injuries to real property] , 
 and that the said real property is wholly situate in the said last 
 named county (Cal. Code C. P., section 392, subd. 1). 
 
 [Or that this is an action for the partition of real property, 
 which said property is wholly situate in the said county to 
 
 1 Th« applicant may give other stat- ' Mairs v. Kemsen, 3 Oode K. 138 ; 
 utory reasons, according to the facts Job v. Butterfield, 1 Eng. Law and 
 in each particular case. Eq. 417. 
 
 2 Sailly V. Hutton, 6 Wend. 508 ; * N. J. Zinc Co. v. Blood, 8 Abb. 
 Legg V. Dorsheim, 19 Id. 700; Pr. 147. 
 
 Welling v. Sweet, 1 How. Pr. 156 ; ' See California Code C. P., sec. 395. 
 Simmons v. McBougall, 2 Id. 77. 
 
28 GENERAL PRINCIPLES. § 64. 
 
 which the desired change is asked (Cal. Code C. P., sec. 392, 
 subd. 2). 
 
 [Or, that this is an action for the foreclosure of a mortgage 
 of [or lien upon] real property, and that the land in said mort- 
 gage [or lien] described is wholly situate in said last-named 
 county] (Cal. Code C. P., sec. 392, subd. 3).i 
 
 § 64. The Same — Not the County where Cause of Ac- 
 tion Arose. 
 
 Farm No. 4- 
 
 [Substitute in Form No. 2.] 
 
 That this is an action for the recovery of a penalty or for- 
 feiture imposed by statute, except, etc. (see Cal. Code C. P., 
 sec. 303, subd. 1) ; and that it arose in the said last-named 
 county. 
 
 Or, that this is an action against defendant for an act 
 done by him in virtue of his office, said defendant being the 
 
 of said last-named county, and a resident thereof (Cal. 
 
 Code C. P., sec. 393, subd. 2) ; [or when the act complained of 
 was done by, and suit was brought against a person who, by 
 command of such officer, or in his aid, performed the act which 
 is the subject of the action, add] and that such person is a resi- 
 dent of the last-named county, etc.^ 
 
 § 65. Affidavit on the Ground of Non-residence. 
 
 Form No 5. 
 [Title.] 
 [Vhnub.] 
 A. B., the defendant in the above-entitled action, being duly 
 sworn, deposes and says as follows : 
 
 I. The summons and complaint in this action were served on 
 me on the day of , 18... 
 
 II. I further say, that I have fully and fairly stated the case 
 
 in this cause to G. H., my counsel, who resides at No , 
 
 in street, in the city of , and after such 
 
 statement I am by him advised and verily believe that I have a 
 good and substantial defense on the merits to the action. 
 
 III. All the parties defendant to this action reside in the 
 county of , in this state. 
 
 [Jurat.] [Signature.] 
 
 1 Mining claims are real estate within case there is no discretion in the court, 
 
 the meaning of this act, and are gov- the change being a matter of right: 
 
 erned by the provisions of this section. Watts v. White, 18 Cal. 321. 
 
 Where a suit for real estate is brought 2 Jt jg not expected that each form 
 
 in the wrong county, a motion to given will exactly fit each case, as it 
 
 change the venue, and not a demurrer, arises in the practice— but the general 
 
 is the proper remedy. And in such form 1- deemed correct. 
 
§ 69. PLACE OF TBIAL. 29 
 
 § 66. The Same— Affidavit of Merits.— An affidavit of 
 merits, which declares " that the defendant has fully and fairly 
 stated the case to his counsel, and that he has a good and sub- 
 stantial defense on the merits to the whole of the plaintiff's 
 demand, as he is advised by his counsel, and verily believes 
 to be true," is sufficient.^ The affidavit of merits must be made 
 and served with notice of motion.' It is a common and con- 
 venient practice to combine the affidavit of merits with the affi- 
 davit of the ground on which the motion is made, where the 
 latter does not appear upon the face of the complaint, and has 
 to be established by affidavit. 
 
 § 67. The Same — Residence of Parties. — The principal 
 place of business of a corporation is its residence, within the 
 meaning of that term.^ A willful or careless ignorance of the 
 residence of the defendant does not put it in the power of the 
 plaintiff to sue him in any county of the state, however remote 
 from his residence. To resist the application of the defendant, 
 the plaintiff should have shown that he used all proper diligence 
 to ascertain the residence of the defendant before suit, and 
 failed.* The motion to change on the ground of non-residence 
 of defendant can not be resisted on the ground that the conve- 
 nience of witnesses requires the action to be retained where it 
 is commenced. And if the court refuses to grant the change 
 when asked for on such ground, where the motion is made at 
 the time of defendant's demurring or appearance, it is ground 
 for reversal on appeal.* 
 
 § 68. Affidavit on Ground of Partiality and Prejudice. 
 
 . Form No. 6. 
 |;,TiTLE.] 
 [Venub.] 
 [Same as in Form No. 5, down to III ^ 
 
 III. I have reason to believe and do believe that I can not 
 have a fair and impartial trial in said court in which this action 
 is brought, by reason of the interest, prejudice, and bias of the 
 people of said county [give the facts]. A. B. 
 
 [Jurat.] 
 § 69. The Same — Circumstances to be Stated. — It is 
 necessary to state in the affidavit facts and circumstances which 
 
 1 Butler V. Mitchell, 17 "Wis. 52. » Jenkins v. Cal. Stage Co., 22 Cal. 
 
 ' Lynch v. Mosher, 4 How. Pr. 83. 537 ; see ante. 
 As to sufBcienoy of affidavit of merits, * Lohr v. Latham, 15 Cal. 418. 
 consult Richards V. Sweetzer, 1 Code * Cook v. Pendergast, 61 Cal. 72; 
 K. 117; Ellis V.Jones, 6 How. Pr. 296; Bailey v. Sloan, 1 West Coast Rep. 
 Riokards v. Sweetzer, 3 Id. iU ; Jor- 472 ; Heald v. Hendy, 3 Id. 102 ; Will- 
 dan V. G-arrison, fi Id. 6 ; Mixer v. iams v. Keller, 6 Nev. 141. 
 Kuhn, 4 Id. 409, 412. 
 
30 GENERAL PKINCIPLES. § 70. 
 
 induce the belief that an impartial trial can not be had, in order 
 that the court may judge whether the belief is well founded; 
 the affidavits of individuals to their belief that an impartial trial 
 cannot be had are insufficient. ^ It has been said tliat an actual 
 experiment should be first made by attempting to impanel a 
 jury, or by at least one trial of the cause.'' But this rule has 
 not been sustained, and other circumstances than an actual 
 trial are sometimes held sufficient evidence that an impartial trial 
 can not be had.^ 
 
 § 70. The Same— Amount of Partiality or Prejudice 
 Necessary. — The general sentiments of the community respect- 
 ing the merits of an exciting case may be such an obstacle to 
 the administration of justice that a change should be ordered.* 
 But the court will not grant a change of venue on the ground 
 that the prejudices of the people of the county are against turn- 
 pike roads, in an action where such a company is a party.* 
 Nor is it a ground for a change of venue that the people of the 
 county in which the action is to be tried are generally interested 
 in the question involved. ^ Nor in an action against a sheriff, 
 will the influence of his office be sufficient reason.'' But a 
 change of venue will be ordered when it appears that one hun- 
 dred citizens united in employing counsel to prosecute the de- 
 fendant.8 But not because a high party spirit prevails.* 
 
 § 71. AfBdavit ou Account of Convenience of Wit- 
 nesses. 
 
 Form No 7. 
 [Title.] 
 [Venite."! 
 
 [Same as in No. 5, down to III.] 
 
 III. I have fully and fairly stated to my connsel the facts 
 which I expect to prove by each and every one of the following 
 witnesses, viz. : J. K., L. M., and O. P. ; and each and every 
 one of them is a material and necessary witness for my defense 
 
 » Bowman r. Ely 2 Wend. 250 ; « People v. B;iker, 3 Park. Cr. 181, 
 
 People v. Bodine, 7 Hill, 147 ; People 187; S. C, 3 Abb. Pr 42 
 
 v.Vermilye 7 Cow. 108, 137; Scott -"-^ev, Windsor Turnpike Co. v. 
 
 V. Gibbs, 2 Johns. Cas. 116; Corp. of Wilson, 3 Cai. 127. 
 
 ?■ Tc o- rP?™.°,n' ^^- ^^^ ' ^'''*" "• ' C!o"'ey V- Chedlc, 7 Nev. 886. 
 
 ^"S'""' ?«„^*^- ^^^ ' ^''"■^ "■ ilillain. ' Baker v. Sleiget, 2 Cai. 46. 
 
 ^ ? w ■ ^^^- ^ , ' I'eople V. Lee, 5 Cai. 358. 
 
 2 Messenger v Holmes, 12 Wend. ' Zobieskie v. Bauder, 1 Cai. 487. 
 208; People v. Wnght, 5 How. Pr. In general, granting or refusing change 
 
 an 1 tir ,., , ^.„ ot venue on account of the partiality or 
 
 3 People V. Webb 1 Hill, 179 ; prejudice of the citizens of the My 
 People V.Long Island E E. Co., 4 is discretionary with the court, sub- 
 Park. Cr. 602 ; Budge v. Northam, 20 jeet to revision only in cases of kbuse. 
 How. Pr. 248. Watson v. Whitney, 23. Cai. 876. 
 
§ 72. PLACE OF TKIAL. 31 
 
 on the trial of this cause, as I am advised by my said counsel, 
 and verily believe, and that without the testimony of each and 
 every one of the said witnesses, I can not safely proceed to the 
 trial of this cause, as I am also advised by my said counsel, and 
 verily believe. 
 
 IV. That each and every one of said witnesses reside in the 
 county of , viz. : [State the residence of each.] 
 
 V. The facts which I expect to prove by said witnesses are 
 as follows: By J. K., the fact that, etc. ; by L. M., that, etc. 
 
 [Jurat.] [Signature.] 
 
 § 72. The Same— What Affidavit should State.— The 
 affidavit should be made by the defendant himself, but may be 
 made by defendant's attorney where special reasons are shown. ^ 
 The facts expected to be proved must be stated in the affidavit, 
 and wherein they are material must be shown. ^ And the facts 
 that each is expected to prove should be specifically stated 
 where ihere is any contest as to the convenience of witnesses.* 
 The affidavit should state the witnesses' names and residence. 
 The statement that they are residents of the county merely is 
 not sufficient.* As the place of trial will be determined by the 
 county in which the witnesses reside rather than by the distance 
 ^eymust travel.* That each and every one is a necessary wit- 
 ness must appear, and that without the testimony of each he 
 oonld not safely proceed, is also essential.^ The words "every 
 one of them" are held essential.'' It must appear that the wit- 
 nesses are necessary as well as material. ^ And wherein they 
 are material, and that without them he can not safely go to 
 trisil.* Very little reliance is placed by the courts upon a gen- 
 eral allegation of the materiality of witnesses, unjess it be 
 shown wherein they are material.^" The affidavit in New York 
 should state among other things, that he fully and fairly stated 
 his case to counsel: 9 Wend, 431; 3 Cow. 14; giving name and 
 residence of such counsel, and has fully and fairly disclosed to 
 him the facts which he expects to prove by each ;" and that he 
 
 1 Scott V. Gibbs, 2 Johns. Cas. 116. ' See cases cited in preceding note. 
 
 s People V. Hayes, 7 How. Pr. 248. ' Satterlee v. Groot, 6 Cow. 33 j see 
 
 » Price V- Fort Edward Water Young v. Scott, 3 Hill. 32, 35. 
 
 Works, 16 How. Pr. 51. '•Anonymous, 3 Wend. 424; Con- 
 
 * Anonymous, 6 Cow. 389; West- stantine v. Dunham, 9Id.431. 
 
 brook v.Morritt, 1 How. Pr. 195; see "People y. Hayes, 7 How. Pr. 
 
 Pierce v. Gunn, 3 Hill, 446. 248. 
 
 5 Hull V. Hull, 1 Hill, 671 ; People ^ 9 Wend. 10; Hemingway v. 
 
 V. Wright. 5 How. Pr. 23. Spaulding, IHow. Pr. 70; Bobinson 
 
 ' Onondaga Co. Bk. v. Shepherd, 19 v. Merritt, Id. 165 ; Anonymous, 1 
 
 Wend. 10; Satterlee v. Groot, 6 Cow. Hill, 668; Am. Ex. Bank v. Hill, 22 
 
 33; 3 Id. 425; 6 Id. 389; Constantine How. Pr. 29; 8 Cow. 14. 
 V. Dunham, 9 Wend. 431. 
 
32 GENERAL PEINCIPLES. § 73. 
 
 bas a good and substantial defense upon the merits. ^ When 
 defendant is himself a counselor, the affidavit may be modified 
 accordingly.'' It should also state the name of the county 
 designated in the complaint as the county of lrial.3 And if 
 not made by all the defendants, the reason why.* 
 
 § 73. The Same— Granting Motion Discretionary.— 
 The granting or refusing of a motion to change the venue on 
 the oTOund of convenience of witnesses is discretionary with 
 the trial court, and subject to review only in cases of abuse.s 
 
 § 74. The Same— When Motion may be Made.— It 
 would seem that in Nevada an application for change of venue 
 for convenience of witnesses is proper after answer filed and 
 cause set for trial.^ In New York the motion for change on 
 this o-round can not be made before issue joined,^ and the same 
 is true in California.^ Consequently a plaintiff can not, before 
 issue joined, use this ground to resist a motion to change the 
 venue, made by the defendant, on the ground of non-residence 
 in the county in which the action is brought. 
 
 § 75. Affidavit on the Ground of Disqualification of 
 the Judge. 
 
 Fwm No. 8. 
 
 [TiTM.] 
 
 [Ventje.] 
 
 [Same as in No. 5 down to III.] 
 
 III. That the Hon. X. Y., judge of the court in which 
 the complaint in this action is filed, is disqualified from pre- 
 siding in the same [he being related to the plaintiff within three 
 degrees of consanguinity, to wit : a brother of the plaintiff ; or he 
 having heretofore acted as counsel in this action on the part of 
 the plaintiff.] 9 
 
 [Date.] [Signature.] 
 
 §76. The Same — What Amounts to Disqualification- 
 Bias or Prejudice. — ^Bias or prejudice on the part of the judge 
 constitutes no legal incapacity to sit on the trial of a cause, nor is 
 it a sufficient ground to authorize a change of place of trial. 
 The fact alone that the judge, on a previous trial of the same 
 
 1 President etc. v. Board of Super- Merrill v. Grinnell, 10 Id. 31 ; Toll v. 
 visors, 1 How. Er. 162. Cromwell, 12 Id. 79 ; Hubbard v. 
 
 2 Ornmwell v. Van Rensselaer, 8 Nat. Ins. Co., 11 Id. 149. 
 
 Cow. 348. 8 Cook v. Pendergast, 61 Cal. 72. 
 
 s Bull V. Babbitt, 1 How. Pr. 184; » This affidavit is rarely if ever 
 
 1 Hill, 668. made as a rule; the bare suggestion 
 
 * Welling V. Sweet, 1 How. Pr. 156. to the judge of anyone of these facts 
 ' Piersfin V. MoCahill, 22 Cal. 127. is sufficient. As to what constitute 
 
 • Sheckles v. Sheckles, 3 Nev. 404. disqualifications, see Cal. Code C. P., 
 ' Mason v. Brown, 6 How. Pr. 481 ; sec. 170. 
 
§ 79. PLACE OF TRIAL. 33 
 
 cause, made an erroneous ruling, is no evidence of the exist- 
 ence of bias or prejudice in his mind.^ Nor is the exhibition 
 by a judge of partisan feeling, or the unnecessary expression of 
 an opinion upon the justice or merits of a controversy, though 
 exceedingly indecorous, improper, and reprehensible, as calcu- 
 lated to throw suspicion upon the judgment of the court, and 
 bring the administration of justice into contempt, sufficient to 
 authorize a change of venue, on the ground that the judge is 
 disqualified from sitting. The law establishes a different rule for 
 determining the disqualification of judges from that applied to 
 jurors.* 
 
 § 77. The Same — Consanguinity. — The statutes of all of 
 the states disqualify judges from hearing and determining 
 causes when they are related to the parties therein. The stat- 
 ute of California, which may be taken as an example in this 
 regard, provides that no judge shall sit or act as such in any 
 action or proceeding, when he is related to either party by con- 
 sanguinity or affinity, within the third degree. Such disqualifi- 
 cation, however, does not prohibit him from arranging the 
 business of his court, or from transferring such action to some 
 other court.3 Even if no objection is made, he has no right to 
 act, and ought, of his own motion, to decline to sit as judge. In 
 such case an order of the judge dismissing the action is void, 
 on the ground of his incapacity to act.* 
 
 § 78. The Same — Counsel in the Case.— It is sufficient 
 cause for removal that the judge where the venue was laid has 
 been counsel or attorney in the case.^ Thus where the probate 
 judge held a power of attorney from certain persons claiming 
 to be the heirs at law of the deceased, and authorizing him to re- 
 ceive for them all money and property which they might be 
 entitled to from the estate, for which he was to receive a per- 
 centage upon the proceeds of the estate, and that these proceed- 
 ings were instituted at the instance of said probate judge, a 
 change of venue should be granted. ^ 
 
 § 79. The Same — Interested in the Action. — Judges are 
 prohibited from hearing and determining causes in which they are 
 parties or in which they are interested. Statutes to this 
 effect prevail in all the states, and should receive a broad and 
 
 1 People V. Williams, 24 Cal. 31. ^ Cal. Code Civil Proc, sec. 170; 2 
 
 2 McOauley v. Weller, 12 Gal. 500. Wend. 290. 
 
 s Cal. Code Civil Proc, see. 170 ; « Estate of White, HI Cal. 190 ; cit- 
 De la G-uerra v. Burton, 23 Cal. 592. ing Oakley v. Aspinwall, 3 N. Y. 
 
 * People V. Jos^ Eamon de la G-uerra, 647. 
 24 Cal. 73. 
 
 EsTBB, Vol. 1-^3. 
 
34 GENERAL PRINCIPLES. § 80. 
 
 liberal interpretation rather than one that is technical or strict, i 
 This prohibition does not extend to cases where the interest is 
 simply in some question of law involved in the controversy, or 
 when it is indirect and remote. It does not extend to all cases 
 where the interest of the judge is a direct and immediate in- 
 terest in the result of the action. Thus in an action for an 
 injunction, where the property of the judge was equally subject 
 to injury by the acts sought to be enjoined as the property of 
 the plaintiff and where the injunction sought would equally pro- 
 tect his property, the judge is disqualified from acting, and a 
 writ of prohibition will lie to restrain him from proceeding in 
 the action, although the court over which he presides has juris- 
 diction of the cause. ^ 
 
 § 80. The Same— Form of Affidavit.— An affidavit made 
 on application to change the place of trial which states "that 
 the judge, as the affiant is informed, and verily believes, has 
 frequently stated that he b elieves the affiant guilty of the crime 
 charged in the indictment, an d has frequently expressed himself 
 against and adversely to the affiant in connection with said 
 charge," does not merit consideration, as it contains a mere 
 charge upon information and belief, and does not show how the 
 information was obtained, or upon what the belief was based.* 
 And we might add, that such an affidavit, unless some facts are 
 stated, ought to subject the party making it to punishment for 
 contempt. 
 
 § 81. The Same— Transfer of Cause.— "Where a judge is 
 incapacitated to act as such, the action should be transferred — 
 not dismissed ; an order dismissing the action would be null and 
 void.* 
 
 § 82. Affidavit Resisting Motion for Change. 
 Form No. 9. 
 [Title.] 
 [VbnuIb.] 
 
 A. B., plaintiff above named, being duly sworn, says as fol- 
 lows: 
 
 I. I have fully and fairly stated to E. F., my counsel in this 
 
 cause, who resides at , in the county of , 
 
 the facts which I expect to prove by each and every one of the 
 
 following witnesses, viz. : G. H., of the town of ; j. 
 
 K., of the town of ; L. M., of the town of '...., 
 
 iStookwell V. Township Board of Mining Companv v. Kevser 68 fial 
 White Lalce, 22 Mioh. 350; The North 815 P'"'? v. ji.eyser, 6B ual. 
 
 Bloomfield Gravel Mining Company ' People v. Williams, 24 Cal. 81. 
 
 ^tH 'li ?^^-n}^- fl ,j o , * Burton V. Covarrubias, California 
 a The North Bloomfield Gravel April term, 1865, not reported 
 
§ 84. PLACE OP TRIAL. 35 
 
 all of whom reside in said county of ; and that they 
 
 are, each and every one of them, material and necessary wit- 
 nesses for me on the trial of this cause, as I am advised by said 
 counsel, and as I verily believe ; and that without the testimon}' 
 of each and every one of said witnesses I can not safely proceed 
 to the trial of this cause, .as I am also advised by my said coun- 
 sel, and verily believe. _ 
 
 II. That the facts which I expect to prove by said witnesses 
 are as follows [state in detail the facts and circumstances ex- 
 pected to be proved by each witness, naming him, and the ma- 
 teriality of those facts]. 
 
 [JtTBAT.] [Signature.] 
 
 § 83. The Same— Form of Affidavit. — Affidavits to op- 
 pose a motion for a change of place of trial on the ground of 
 convenience of witnesses should be, in form and substance, 
 similar to the moving affidavits of the defendant, and should 
 state what is expected to be proved by the witnesses,^ and their 
 names.^ 
 
 § 84. The Same — When Plaintiff may Oppose. — In New 
 York, a motion to change the place of trial on the ground that 
 the county named in the complaint is not the proper county 
 can not be resisted by the plaintiff, prior to issue joined, on the 
 ground of convenience of witnesses. ^ In California the practice 
 is the same although a different opinion formerly prevailed.* 
 Nor can the hearing of defendant's motion, made at the time of 
 his appearance and demurring, be postponed by the court until 
 his answer is filed, and leave granted to the plaintiff to make a 
 cross-motion to retain the case on the ground of convenience of 
 witnesses. 5 If the plaintiff desires a re-change to the county in 
 which the action is brought, he should make a cross-motion 
 to that effect.^ If the state of the case is such that the plaintiff 
 has a right to resist the motion for a change of venue, time to 
 file counter-affidavits may be allowed him in the discretion of 
 the court.'' The voluntary appearance of a party resisting a 
 motion for a change of venue gives the court jurisdiction over 
 his person, and waives all prior informalities.^ 
 
 1 Onondaga Go. Bank v. Shepherd, Cal. 418 ; Jenkins v. California Stage 
 19 Wend. 10; American Ex. Bank v. Co., 22 Id. 537; Hall v. C. P. K. E. 
 Hill, 22 How. Pr. 29. ■ Co., 49 Id. 454. 
 
 2 Loehr v. Latham, 15 Cal. 418. * Heald v. Hurdy, 3 West Coast 
 ' International L. Ass. Co. v. Sweet- Kep. 102, 
 
 land, 14 Abb. Pr. 240. ' Cook v. Pendergast, 61 Cal. 72; 
 
 * Cook V. Pendergast, 61 Cal. 72 ; Moon v. Gardner, 5 Abb. Pr. 243. 
 
 Bailey v. Sloan, 1 West Coast Rep. ' Pierson v. MoCahill, 22 Cal. 127. 
 
 472. 'Contra: Loehr v. Latham; 15 * Powers v. Prowder, 13 Mo.154. 
 
36 GENERAL PEINCIPLES. § 85. 
 
 § 85. Order Denying Motion. 
 
 Form No. 10. 
 
 fTlTLB.] 
 
 At a regular term of the superior court of the county of 
 
 , state of California, held at 
 
 Present, the Honorable , Judge. 
 
 The motion to change the place of ttial in this action coming 
 on regularly to be heard this day, A. B., Esq., appearing in 
 favor of said motion, and C. D., Esq., appearing in opposition 
 thereto, and the court being duly advised, it is ordered that the 
 motion to change the place of trial in this action be and the same 
 is hereby denied [with dollars costs]. 
 
 § 86. Dismissal — Effect of. — When two motions are pend- 
 ing in an action at the same time, one to change the venue, and 
 one to dismiss, an entry of a judgment of dismissal, without any 
 formal order denying the motion to change the venue, is a. vir- 
 tual denial of the same.^ 
 
 § 87. When Motion -will be Denied. — The motion will be 
 denied where it is clear that the defendant's object is merely de- 
 lay.2 As where nearly six months had elapsed before the motion 
 was made, and long after the defendant had answered. ^ Or 
 where by stipulation evidence is confined to facts occurring in 
 the county where venue is laid.* Or where plaintiff undertook 
 to bear all expenses of bringing defendant's witnesses.^ Or 
 where, after service of papers for a motion to change venue, 
 plaintiff amended his complaint changing the venue.^ Or agreed 
 to change the venue ; or where defendant suffered a default.'' A 
 change of venue is properly refused, unless a party has complied 
 with the requisites of the statute. ^ Probably delay of trial in 
 the county which would otherwise be most convenient is a reason 
 for refusing the change.' 
 
 § 88. The Same — Appeal from. — An appeal from an or- 
 der refusing to change the venue of an action, operates as a 
 stay of all further proceedings in the case in the court below 
 until such an appeal is determined.'" An order refusing a change 
 of venue on the application of defendant in a criminal prosecu- 
 tion will only be reviewed in cases of gross abuse of discretion.^! 
 
 1 People V. .Jose Ramon de la Guer- ' Wolverton v. Wells, 1 Hill, 374. 
 ra, 24 Gal. 78. ' Britton v. Peabody, 4 Hill, 69. 
 
 2 Kilbourne v. Fairehild, 12 Wend. * Lewin v. Dille, 17 Mo. 64. 
 
 293; Garlock v. Dunkle, 22 Id. 615. » King v. Vanderbilt, 7 How. Pr. 
 
 » Tooms V. Eandrtll, 8 Cal. 43S. 885 ; Goodrich v. Vanderbilt, Id. 467. 
 
 < Smith V. Averill, 1 Barb. 28. " Piorson v. McCahiU, 23 Cal. 
 
 6 Worthy v. Gilbert, 4 .Johns. 492; 249. 
 
 but see Rathbone v. Harman, 4 Wend. '^ People v. Pisher, 6 Cal. 154. 
 208. 
 
§ 91. PLACE OF TEIAL. 37 
 
 But it is not to be supposed that the supreme court will trust 
 implicitly in the discretion of inferior courts.^ 
 § 89. Order Granting Change of Place of Trial. 
 
 Form No. 11. 
 
 [Commencement as in preceding form.] 
 
 It is ordered that the place of trial of this action be and 
 
 hereby is changed from the county of to the county 
 
 of 
 
 § 90. The Same — Effect of. — It is error for the court to 
 refuse to change the place of trial upon a proper showing.^ 
 But the fact that the affidavit for a change of venue may be de- 
 fective will not render the order changing the venue a nullity, 
 nor should the case be dismissed for this defect. The objection 
 should be made at the time the petition for a change is acted 
 upon. 3 So, also, although the affidavit upon which the ap- 
 plication to change the venue of an action is made may not 
 show any legal cause for such change, still if the court grants 
 the application, it has acted judicially upon a matter within its 
 cognizance, and where it was clothed with discretion, and by 
 the order the place of trial becomes changed.* 
 
 § 91. The Same — Proceedings and Practice. — In Cali- 
 fornia, when an order is made transferrihg an action or proceed- 
 ing for trial, the clerk of the court, or justice of the peace, must 
 transmit the pleadings and papers therein to the clerk or justice 
 of the court to which it is transferred. The costs and fees 
 thereof, and of filing the papers anew, must be paid by the 
 party at whose instance the order was made. The court to 
 which the action or proceeding is transferred has and exercises 
 over the same the like jurisdiction as if it had been originally 
 commenced therein. ^ If the defendant procures a change of 
 venue, the plaintiff may pay the costs and transmit the papers 
 to the county fixed as the place of trial, and have the case placed 
 on the calendar and tried.* In some states, on a motion to 
 change the place of trial, the costs were usually made to abide 
 the event of the suit, whether the motion be granted or denied.'' 
 But it may be otherwise where the plaintiff has not complied with 
 a demand.* 
 
 1 People V. Lee, 5 Cal. 353. ' G-idnev v. Spelman. 6 Wend. 525 ; 
 
 2 Grewell v. Walden, 23 Cal. 165. Norton v. Kich, 20 Johns. 475 ; but 
 ' Potter V. Adams' Executors, 24 see Worthy v. Gilbert, 4 Id. 492. 
 
 Mo. 159.^ ^ Hubbard v. National Protection 
 
 *The People v. Sexton, 24 Cal. Ins. Co., 11 How. Pr. 149. As to 
 
 78. costs in special cases, see Purdy v. 
 
 6 Cal. Code Civil Proc, 399. Wardell 10 Wend. 619 ; Donaldson 
 
 • Brooks V. Douglass, 32 Cal. 208. v. Jackson, 9 Id. 450. 
 
38 GENERAL PRINCIPLES. § 92. 
 
 § 92. The Same— Service of Order.— In New York, a 
 certified copy of this order must be served upon the plaintiff ; 
 otherwise the plaintiff may proceed as if the place of trial had 
 not been changed.^ An appearance and trial is a waiver of any 
 irregularity in this regard.^ 
 
 § 93. Order to Transfer Cause to Another Court, on 
 Account of Disability of the Judge. 
 
 Form No. 12. 
 [Title.] 
 It being shown to the court by G. H., of counsel for the de- 
 fendant, that the judge of this court was heretofore of counsel 
 in a cause involving the same title which is in issue in this cause : 
 It is ordered, that this cause be transferred to the superior 
 
 court of the county of for trial. 
 
 § 94. Notice of Time and Place of Trial of Trans- 
 ferred Action. 
 
 Form No IS, 
 
 [Title.] 
 
 To A. B., the plaintiff in the above entitled action, and C. D., 
 the defendant in said action : 
 
 You will please take notice that the said action, transferred 
 
 to the above-entitled court from the court of the 
 
 township, in , county of , is set for trial before 
 
 me, at my court-room, in said... township, in said 
 
 county, the day of 18.., at o'clock, p. m. 
 
 J. P., 
 
 [Date.] Justice of the Peace of said township.' 
 
 § 95. Removal of Causes from State to United States 
 Courts — Statutes Affecting. — The principal statutes of the 
 United States, authorizing and regulating the transfer of onuses 
 from the state courts to the courts of the United States, have 
 been the acts of 1789, 1866, 1867, and 1875. The twelfth sec- 
 tion of the judiciary act of 1789, the act of July 27, 1866, and 
 of March 2, 1867, though technically repealed, are substantially 
 embodied in section 639 of the revised statutes of the United 
 States. There are other provisions of the statute covering the 
 transfer of a limited number of special cases, but section 639 
 of the revised statutes, and the act of March 3, 1875 (adopted 
 since the revised statutes, and not found therein), provide for 
 nearly all the cases met with in ordinary practice. For the 
 last-named act, see acts of 1875, p. 470. 
 
 » Root, Adm'r etc. v. Taylor, 18 Johns. 335 ; Keep v. Tyler, 4 Cow. 541. 
 
 * Bettis v. Logan, 2 Mo. 4. 
 
 ' See California Code Civil Proc, sec 836. 
 
§ 97. PLACE OF TEIAL. 39 
 
 § 96. Special Cases. — ^The special cases not falling within 
 section 639, or the act of 1875, are the following: 1. Causes 
 oivil and criminal, in any state court, against persons denied 
 civil rights ; ^ 2. Suits, civil and criminal, against revenue ofll- 
 cers of the United States, and a ainst officers and other persons 
 acting under the registration laws ; * 8. Suits by aliens against 
 ■civil officers of the United States, under specified circumstances ;3 
 and, 4. Suits against certain federal corporations, or their mem- 
 bers as such.* Section 640 is as follows : 
 
 " Any suit commenced in any court other than a circuit or 
 district court of the United States against any corporation other 
 than a banking corporation organized under a law of the 
 United States, or against any member thereof as such member, 
 may be removed, for trial, in the circuit court for the district 
 where such suit is pending, upon the petition of such defend- 
 ant, verified by oath, stating that such defendant has a defense 
 arising under or by virtue of the constitution or of any treaty 
 ■or law of the United States. Such removal, in all other re- 
 spects, shall be governed by the provisions of the preceding sec- 
 tion." 
 
 § 97. Suits against Corporations Organized Under Law 
 of the United States. — ^Under this section a petition for re- 
 moval must state that the corporation or member applying for 
 the removal " has a defense arising under or by virtue of the 
 constitution of the United States, or some treaty or law of the 
 United States," but the facts constituting the defense need not 
 be stated, nor what the defense is.* In Magee v. U. P. E. R. 
 ■Co., 2 Saw. C. C. 447, which was an action for a personal in- 
 jury to the plaintiff, and the only defense made by the answer 
 ■was a denial of the negligence, the decision of which depended 
 entirely upon common-law principles, and did not involve the 
 construction of any act of congress, the cause was, on motion, 
 remanded to the state court. The decision was made by Hill- 
 yer, J., in 1873.6 jn i875, in Turton v, U. P. R. R. Co., 3 
 Dillon C. C. 366, Justice Miller held the other way on the same 
 «tate of facts. If the holding of the latter case is correct, there 
 would seem to be no necessity for requiring the verified state- 
 ment, in the petition for removal, that the defendant has a de- 
 iense under or by virtue of the constitution or some treaty or 
 
 1 U. S.RS., sees. 641, 642. 11 Blatchf. 406; Magee v. U. P. R. 
 
 2 Id., sec. 643. R., 2 Saw. 447 ; Fisk v. U. P. E. K., 8 
 s Id., sec 644. Blatchf. 243. 
 
 * Id., sec 640. * See al^ Texas v. Eailroad Co., 3 
 
 * Jones V. Oceanic Steam Nav. Co., Woods, 308. 
 
40 GENERAL PRINCIPLES. § 98. 
 
 law of the United States ; for if such defense arises from the 
 mere fact of incorporation under a law of the United States, a 
 statement that it is such corporation would evidently be suffi- 
 cient; but Jones v. Oceanic Steam Nav. Co., supra, holds that 
 it is not sufficient. In the case of this corporation, however, 
 the charter authorizes it to sue or be sued in the circuit court 
 of the United States, and jurisdiction having been conferred by 
 the action of the state court, it is not clear that it was improperly 
 retained. 
 
 § 98. Removable Causes. — Section 639 of the revised stat- 
 utes, and the act of 1875, are so important that we copy the ma- 
 terial parts. 
 
 Sec. 639. "Any suit commenced in any state court, wherein 
 the amount in dispute, exclusive of costs, exceeds the sum or 
 value of five hundred dollars, to be made to appear to the satis- 
 faction of said court, may be removed for trial into the circuit 
 court for the district where such suit is pending, next to be held 
 after the filing the petition for such removal hereinafter mentioned, 
 in the cases and in the manner stated in this section. First. 
 "When the suit is against an alien, or is by a citizen of the state 
 wherein it is brought, and against a citizen of another state, it 
 may be removed on the petition of such defendant, filed in said 
 state court at the time of entering his appearance in said state 
 court. Second. When the suit is against an alien and a citizen 
 of the state wherein it is brought, or is by a citizen of such 
 state against a citizen of the same and a citizen of another state, 
 it may be so removed, as against said alien or citizen of another 
 state, upon the petition of such defendant, filed at any time 
 before the trial or final hearing of the cause, if, so far as it re- 
 lates to him, it is brought for the purpose of restraining or en- 
 joining him, or is a suit in which there can be a final determi- 
 nation of the controversy so far as concerns him, without the 
 presence of the other defendants as parties in the cause. But 
 such removal shall not take away or prejudice the right of the 
 plaintiff to proceed at the same time with the suit in the state 
 court as against the other defendants. Third. Where a suit 
 is between a citizen of the state in which it is brought and a 
 citizen of another state, it may be so removed on the petition 
 of the latter, whether he be plaintiff or defendant, filed at any 
 time before the trial or final hearing of the suit, if before or at 
 the time of filing said petition he makes and files in said state 
 court an affidavit stating that he has reason to believe, and does 
 believe, that, from prejudice or local influence, he will not be 
 
§ 98. PLACE OF TRIAL, 41 
 
 able to obtain justice in such state court. In order to such 
 removal, the petitioner in the cases aforesaid must, at the time 
 of filing his petition therefor, offer in said court good and 
 sufficient surety for his entering in such circuit court, on the 
 first day of its session, copies of said process against him, and 
 of all pleadings, depositions, testimony, and other proceedings 
 in the cause; or, in said cases where a citizen of the state in 
 ■which the suit is brought is a defendant, copies of all process, 
 pleadings, depositions, testimony, and other proceedings in the 
 cause concerning or affecting the petitioner, and also for his 
 there appearing and entering special bail in the cause, if special 
 bail was originally requisite therein. It shall thereupon be the 
 duty of the state court to accept the surety and to proceed no 
 further in the cause against the petitioner, and any bail that 
 may have been originally taken shall be discharged. When 
 the said copies are entered as aforesaid in the circuit court, the 
 cause shall there proceed in the same manner as if it had been 
 brought there by original process, and the copies of pleadings 
 shall have the same force and effect, in every respect and for 
 every purpose, as the original pleading would have had by the 
 laws and practice of the courts of such state if the cause had 
 remained in the state court." 
 
 The first subdivision of this section contains the substance of 
 section 12 of the judiciary act, subdivision 2, the .substance of 
 the act of July 27, 1866, and the third subdivison the substance 
 of the act of March 2, 1867. For these two acts see the U. S. Stats, 
 at Large, 306, 558. 
 
 The second and third sections of the act of March 3, 1875 
 (acts of 1875, p. 470), are as follows: " Sec. 2. That any suit of 
 a civil nature, at law or in equity, now pending or hereafter 
 brought in any state court, where the matter in dispute exceeds, 
 exclusive of costs, the sum or value of five hundred dollars, and 
 arising under the constitution or laws of the United States, or 
 treaties made, or which shall be made, under their authority, or 
 in which the United States shall be plaintiff or petitioner, or in 
 which there shall be a controversy between citizens of different 
 states, or a controversy between citizens of the same state claim- 
 ing lands under grants of different states, or a controversy be- 
 tween citizens of a state and foreign states, citizens or subjects, 
 either party may remove said suit into the circuit court of the 
 United States for the proper district; and when in any suit 
 mentioned in this section there shall be a controversy which is 
 wholly between citizens of different states, and which can be 
 
42 GENERAL PEINCIPLES. § 98. 
 
 fully determined as between them, then either one or more of 
 the plaintiffs or defendants, actually interested in such contro- 
 versy, may remove said suit to the circuit court of the United 
 States for the proper district. 
 
 " Sec. 3. That whenever either party, or any one or more of 
 the plaintiffs or defendants entitled to remove any suits men- 
 tioned in the next preceding section, shall desire to remove 
 such suit from a state court to the circuit court of the United 
 States, he or they may make or file a petition in such suit in 
 such state court before or at the term at which said cause could 
 be first tried, and before the trial thereof, for the removal of 
 such suit into the circuit court to be held in the district where 
 such suit is pending, and shall make and file therewith a bond, 
 with good and sufficient surety, for his or their entering in such 
 circuit court, on the first day of its then next session, a copy of 
 the record in such suit, and for paying all costs that may be 
 awarded by the said circuit court, if said court shall hold that 
 such suit was wrongfully or improperly removed thereto, and 
 also for there appearing and entering special bail in such suit, 
 if such bail was originally requisite therein. It shall then be 
 Ihe duty of the state court to accept said petition and bond, and 
 proceed no further in such suit, and any bail that may have 
 been originally taken shall be discharged ; and the said copy 
 being entered as aforesaid in said circuit court of the United 
 States, the cause shall then proceed in the same manner as if 
 it had been originally commenced in the said circuit court ; and 
 if in any action commenced in a state court the title of land be 
 concerned, and the parties are citizens of the same state, and 
 the matter in dispute exceed the sum or value of five hundred 
 dollars, exclusive of costs, the sum or value being made to ap- 
 pear, one or more of the ■ plaintiffs or defendants, before the 
 "trial, may state to the court, and make atBdavit, if the court 
 require it, that he or they claim and shall rely upon a right or 
 title to the land under a grant from a state, and produce the 
 original grant, or an exemplification of it, except where the loss 
 of public records shall put it out of his or their power, and shall 
 move that any one or more of the adverse party inform the court 
 whether he or they claim a right or title to the land under a 
 grant from some other state ; the party or parties so required 
 shall give such information, or otherwise not be allowed to 
 plead such grant, or give it in evidence upon the trial ; and if 
 he or they inform that he or they do claim under such grant, 
 any one or more of the party moving for such information may 
 
§ 100. PLACE OF TRIAL. 43 
 
 ■hen, on petition and bond, as heretofore mentioned in this act, 
 remove the cause for trial to the circuit court of the United 
 States next to be holden in such district ; and any one of either 
 party removing the cause shall not be allowed to plead or give 
 evidence of any other title than that by him or them stated as 
 aforesaid as the ground . of his or their claim, and the trial of 
 issues of fact in the circuit courts shall, in all suits except those 
 of equity and admiralty and maritime jurisdiction, be by jury." 
 
 Section 4 provides in substance, that any attachment or se- 
 questration had in the state courts shall continue to hold the 
 goods or estate after the removal, that all bonds and undertak- 
 ings or security given in the state courts shall remain valid and 
 effectual, and that all injunctions, orders, and other proceedings 
 had prior to removal shall remain in iull force until dissolved or 
 modified by the circuit court. 
 
 Section 5 provides for remanding causes improperly trans- 
 ferred, and for review in the supreme court of order dismissing 
 or remanding the cause. 
 
 Section 7 provides that if the next term of the circuit court 
 to which any cause is removed under the act shall commence 
 within twenty days after the order of transfer is made, the 
 party transferring may have twenty days from the date of the 
 order to file copy of the record and enter appearance in the cir- 
 cuit court. It also provides that a writ certiorari may issue 
 to the state court if the clerk refuses to give copy of the record 
 on payment or tender of his fees, etc' 
 
 § 99. Suits against Aliens under Revised Statutes, 
 Section 639;, Subdivision 1. — ^The right of an alien defend- 
 ant, when sued alone, to remove the cause to the circuit court, 
 is unqualified, except as to the amount in controversy, which 
 must exceed five hundred dollars, exclusive of costs. When 
 sued with a citizen' of the state where the action is brought, if, 
 so far as it relates to him, the action is brought for the purpose 
 of restraining or enjoining him ; or if the controversy, so far as 
 be is concerned, can be finally determined without the presence 
 of the other defendants, and the controversy involves the sum or 
 value of five hundred dollars, he may have it removed. 
 
 § 100. The Same. — To authorize a removal under subdi- 
 vision 1 the petition must show: 1. That the plaintiff, or if 
 more than one, then that all the plaintiffs are citizens of the 
 state in which the action is brought ; 2. That all the defendants 
 are citizens of another state. Normal parties, that is, those 
 
 »See 18 U. S. Stats, at Large, part 3, pp. 470-473. 
 
44 GENERAL PEINCIPLBS. § 101. 
 
 who are not necessary to a determination of the real contro- 
 versy, will not prevent a removal.^ The fraudulent or improper 
 joinder of parties will not prevent a removal.^ 3. That tbo 
 sum or value involved in the case exceeds five hundred dollars, 
 exclusive of costs. 4. That the order for removal is applied 
 for by all the defendants. In Davis v. Cook, 9 Nev. 134, it was 
 held that if a suit be brought against several non-resident 
 joint debtors in a state where the statute authorizes the plaintiff 
 to proceed against the defendants served, and if he recover 
 judgment it may be enforced against the joint property of all 
 (JT the separate property of the defendants served, and the only 
 defendants served are citizens of another state, such defendants 
 are entitled to remove the cause into the circuit court, though 
 the co-defendant not servad does not join in the application.* 
 Whether after removal, in such a case, the plaintiff is entitled to 
 process to bring in the other defendants seems to be dis- 
 puted. In Fallis v. McArthur, 1 Bond, 100, it was held that 
 the plaintiff was entitled to such process, while Deady, J., in 
 Field V. Lownsdale, 1 Deady, 288, seems to be of a different 
 opinion. 5. It must be filed at the time the defendant, or de- 
 fendants, enter their appearance in the state court. As to the 
 meaning of the expression, " at the time of entering his ap- 
 appearance," consult Chatham Nat. Bank v. Merchants' Nat. 
 Bank, 1 Hun, 702; Davis v. Cook, 9 Nev. 134; "Webster v. 
 Crothers, 1 Dill. C. C. 301. In California, and most of the 
 " code states," a formal appearance is not necessary. A defend- 
 ant appears in an action when he answers, demurs, or gives the 
 plaintiff written notice of his appearance, or when an attorney 
 gives notice of an appearance for him.* 
 
 § 101. Removal under Section 639, Subdivision 2.— 
 Under this subdivision, which is substantially the act of July 
 27, 1866, 14 Stat, at Large, 306, the right is given to a part of 
 the defendants to remove a cause under the conditions named. 
 The case of aliens under this subdivision, has been already 
 noticed. Aside from aliens, a removal may be had, under this 
 subdivision, when all tbe following conditions exist: 1. The 
 plaintiff in the suit must be a citizen of the state in which the 
 
 ^ Ward V. Arredondo, 1 Paine, 410; » See also Merwin v. Wexell, 49 
 
 Wood V. Davis, 18 How. (IT. S.) 467 ; How. Pr. 115. 
 
 Mayoretcv. Cummins, 47 Ga. 321. * California Code Civ. Proc, sec 
 
 See Smitli v. Ernes, 2 Sumn. 338 ; 1014 ; see Forbes v. Hyde, 31 Cal. 346 ; 
 
 Ex parte Girard, 3 Wall. jun. 263. Dyer v. North, 44 Id. 157; Lyman v. 
 
 As to improper jomder of causes of Milton, Id. 631 ; Lander v. Flemmine, 
 
 action, see Cooke v. State Nat. Bank, 47 Id. 614. 
 52 N. Y. 96. 
 
§ 102. PLACE OF TKIAL. 45 
 
 «uit is broTigbt; 2. There must be more than one defendant, 
 and one or more of the defendants must be a citizen of the state 
 where the suit is brought, and one or more of them must be a 
 citizen of another state; 3. The amount in controversy must 
 exceed the sum or value of five hundred dollars, exclusive of 
 costs ; 4. The suit must, so far as it relates to the non-resident 
 defendant, be for the purpose of restraining or enjoining him, 
 or be one in which there can be a final determination of the 
 controversy, so far as concerns him, without the presence of the 
 other defendants as parties in the cause ; 5. The party entitled 
 to a removal must apply for it " before the trial or final hearing 
 of the cause" in the state court. Only that part of the case 
 which relates to the non-resident defendant thus applj^ing is 
 removed, leaving the case, as between the plaintiff and the resi- 
 dent defendant, to proceed in the state court. For the con- 
 struction and the extent to which the act of 1866 will be applied, 
 see Hodgson v. Hayes, 9 Abb. Pr., N. S., 87 ; Darst v. Bates, 51 
 111. 439 ; Stewart v. Mordecai, 40 Ga. 1. This act has no appli- 
 cation to a case where one of the defendants is an alien, and the 
 other defendants are citizens of another state, and none of the 
 defendants, or none who are served, are citizens of the state in 
 which the suit is brought.^ Under a joint application by two 
 defendants, the removal may be granted as to one and denied 
 as to the other.^ Under special circumstances one copartner 
 may remove the cause as to himself under the act of 1866.3 
 
 § 102. Removal under Section 639, Subdivision 3. — This 
 subdivision, as already stated, is substantially the act of March 
 2, 1867, known as the "prejudice or local influence act." Like 
 the act of 1866, the primary condition is the existence of a suit 
 in a state court between a citizen of the state in which the suit 
 is brought and a citizen of another state, but unlike that act, 
 the right to remove the cause is given to the plaintiff, as well as 
 the defendant, if an affidavit is made and filed of " prejudice or 
 local influence." The time of making the application is not 
 limited to the time of the " appearance " or answer, but may be 
 made at any time before the trial or final hearing. In Johnson 
 V. Monell, 1 Woolw. 394, Miller, J., says of the act of March 2, 
 
 1 Davis V. Cook, 9 Nev. 134. removing the cause, consult Field v. 
 
 2 Dart V. Walker, 4 Daly (N. T.), Lownsdale, ] Deady, 288 ; Fields v. 
 188. Lamb, Id. 430; Allen v. Eyerson, 2 
 
 5 McGinnity v. White, 3 Dill. C. C. Dill. C. C. 501 ; Bixby v. Couse, 8 
 
 550. As to the construction of this Blatcht. 73; Case of Sewing Machine 
 
 subdivision in regard to cases where Companies, 18 Wall. 583; S. C, Flor- 
 
 there can be a final determination of ence S. M. Co. v. Grover & Baker S. 
 
 the controversy as to the defendant M. Co.. 110 Mass. 70. 
 
46 GENEBAL PRINCIPLES. § 103. 
 
 1867: "For the first time, it allows a plaintiff to remove the 
 suit from the tribunal of his own selection. It also allows this to 
 be done either by plaintiff or defendant, in a certain event 
 in any stage of the litigation prior to the final hearing or trial. 
 The only conditions necessary to the exercise of the right of 
 removal are: 1. That the controversy shall be between a citi- 
 zen of the State in which the suit is brought and a citizen of 
 another State ; 2. That the matter in dispute shall exceed the 
 sum of five hundred dollars, exclusive of costs; 3. That the 
 party, citizen of such other state, shall file an affidavit stating 
 that he believes, and has reason to believe, that, from prejudice 
 or local influence, he will not be able to obtain justice in the 
 state court ; 4. Tbat he give the requisite surety for appearing 
 in the federal court at the proper time, with copies of the 
 papers. Congress intended to give the right in every case 
 where the four requisites we have mentioned exist." 
 
 The right of removal under t'lis act is limited to citizens, and 
 does not apply to aliens.^ The whole suit is to be removed;* 
 and all the defendants, not nominal or merely formal parties, 
 must apply.3 So, as to plaintiffs.'* 
 
 § 103. Removals underthe Act of March 3, 1875.— The 
 important parts of this act have been given. For the entire 
 act, see 18 U. S. Stats, at Large, 470. It is not material in 
 tills connection to note the first section of the act relating to 
 the original jurisdiction of the circuit court, further than to 
 say it gives jurisdiction in certain cases on the ground of the 
 subject-matter, without regard to the citizenship of the parties, 
 and in other cases because of citizenship without regard to the 
 subject-matter of the suit ; and the same distinctive poipts are 
 carried into the second and third sections in regard to removal 
 of causes ; and therefore it may be stated, as a general proposi- 
 tion, that any cause which might, under this act, have been 
 originally brought in the circuit court, may be removed from a 
 state court at the time and in the manner prescribed in the 
 third section. Briefly stated, the conditions of removal are the 
 following: 1. The amount in controversy must exceed five hun- 
 dred dollars, exclusive of costs; 2. The right of removal ia 
 
 1 Crane v. Reeder, 28 Mich. 527; Ion C. C. 299 ; 43 Ga. 181 ; 67 N. C. 391. 
 
 Davis V. Cook, 9 Nev. 134. As so the policy and purpose of the 
 
 -! bewing Machine Companies Case, acts of 1866 and 1867, see Crane v. 
 
 :,,, ^S:lr°B'' ^°°^^ ^- S'lte Nat. Reader, supra; Galpin v. Critohlow, 
 
 ^'V2N.Y.96. 112 Mass. 339; Hazard v.Durant, 9 
 
 SBixby V. Couse, 8 Blatchf. 73; R. I. 602; Fisk v. U. P. R. R. Co.. 6 
 
 Cooke V. State Nat. B'lc, sup7-a. Blatchf. 862. 
 
 * Case et al. v. Douglas et al., 1 Dil- 
 
§ 103. PLAGE Of TRIAL. 47 
 
 given to either party, and, under special circumstances, to 
 either one or more of either plaintiffs or defendants, viz. ; 
 Where in any suit mentioned in section 2 there shall be a con- 
 troversy which is wholly between citizens of different states, 
 and which can be fully determined as between them, then 
 either one or more of the plaintiffs or defendants, actually in- 
 terested in such controversy, may remove the cause ; 3. As to 
 subject-matter, without regard to citizenship, it gives the right 
 to remove " any suit of a civil nature at law or in equity " in- 
 volving over five hundred dollars, (1) in cases ai-ising under the 
 constitution, or laws, or treaties of the United States, and (2) 
 cases in which the United States shall be plaintiff or petitioner ; 
 4. As to citizenship, without regard to subject-matter, the right 
 of removal is given, (1) in any suit in which there shall be a 
 controversy between citizens of different states; or, (2) a con- 
 troversy between citizens of the same state claiming lands under 
 grants of different states; or, (3) a . controversy between citi- 
 zens of a state and foreign states, citizens, or subjects ; 5. The 
 removal must be applied for by petition filed in the state court 
 " before or at the term at which the cause could be first tried, 
 and before the trial thereof." 
 
 The question as to what are cases " arising under the consti- 
 tution and laws of the United States," has received judicial 
 construction. In Cohens v. Virginia, 6 Wheat. 379, it is said 
 that " a case may be truly said to arise under the constitution 
 or a law of the United States, whenever its correct decision de- 
 pends upon a right construction of either, "i In The Mayor v. 
 Cooper, 6 Wall. 252, Swayne, J., said: " Nor is it any objec- 
 tion that questions are involved which are not all of a federal 
 character. If one of the latter exist, if there be a single such 
 ingredient in the mass, it is sufficient." If the actual contro- 
 versy involves only questions of common law or of state stat- 
 utes, though the right or title of one of the parties was 
 originally derived or acquired from or under an act of con- 
 gress, there being no question raised as to the construction or 
 validity of the act, the case is not removable.^ 
 
 In law cases removed to the federal court, or in purely equity 
 eases, it is not necessary to replead, even for the purpose of 
 
 'See also Hughes v. Northern P. (2 Otto), 723;Komie et al. v. Casa- 
 
 K'y Co., 1 West Coast Rep. 21; nova, 91 Id. (1 Otto), 380; Trafton v. 
 
 Northern P. R. R. Co. v. Carland, Nouses (Sawyer, circuit judge), 13 
 
 2 Id. 326 ; Wallamet Iron Bridge Co. Pacific Law Eep. 49 ; S. C, 4 Cent. 
 
 V. Hatch, Id. 230. L. J. 228. 
 
 2 See McStay v. Friedman, 92 U. S. 
 
48 GENEKAL PKINCIPLES. § 104. 
 
 showing jurisdiction, as the order for removal becomes part of 
 the record, and shows how the jurisdiction is acquired. In 
 cases, however, where legal and equitable claims or causes, or 
 causes of action, are joined, as in those states having codes, it 
 is necessary to frame the pleadings anew, making the case one 
 at law or one in equity, or dividing it, and making one a case at 
 law, and the other a suit in equity.^ 
 
 § 104. When the Application for Removal must be 
 Made. — Under subdivision 1 of section 639, the application 
 must be made by the defendant at the time of entering his ap- 
 pearance in the state court. He must act promptly. If he 
 pleads, demurs, or answers, he waives his right.^ It is too late 
 after reference and continuance. ^ Nor can the state court re- 
 store the right of removal by permitting an appearance to be 
 entered nunc pro tunc* Under subdivisions 2 and 3 of the same 
 section the petition for removal may be filed " at any time 
 before the trial or final heqiring of the suit" in the state court. 
 It is too late to make it after the case has been appealed and is 
 pending in the state appellate court. It must be made before 
 final judgment in the court of original jurisdiction.* In Eath- 
 bone Oil Co. v. Raueh, 5 West Va. 79, a case was commenced 
 against a citizen of another state, for unlawful detainer, before 
 a justice of the peace ; judgment was rendered for the plaintiff, 
 and defendant appealed to the (state) circuit court, and in that 
 court made his application to remove the cause to the federal 
 court under the act of 1867, which was denied. On appeal to 
 the court of appeals the latter court reversed the judgment, 
 holding : first, that no motion to remove could have been made 
 before the justice, that not being a "state court" witjjin the 
 meaning of the act of Congress; second, the case on appeal 
 from the justice is tried de novo in the circuit court, the same as 
 if never tried, and lience there was no "final trial" within the 
 intent of the act. It seems now to be generally held that the 
 
 1 See R. S., sees. 639, 914; Thomp- 5 Stevenson v. Williams, 19 Wall, 
 son V. Kailroad Co., 6 Wall. 134 ; 572 ; Vannevar v. Bryant. 21 Id. 41 ; 
 Dart V. McKinney, 9 Blatehf. 359 ; Fashnaoht v. Frank, 23 Id. 416. A 
 trreen v. Custard, 23 How. (U.S.) hearing on a demurrer to a complaint, 
 484 ; Partridge v. Ins. Co., 15 Wall, and an order overruling the same and 
 573. allowing the defendant to answer to 
 
 2 Johnson v. Monell, 1 W'oolw. 390 ; the merits of the case, is not a " trial " 
 West V.Aurora City, 6 Wall. 139; within the meaning of that term as 
 Webster v. Crothers, 1 Dillon C. C. used in section 3 oi the act of 1876 ; 
 801 ; McBratney v. Usher, Id. 367, such trial, whether it be an issue of 
 369. fact or law, is one upon which a final 
 
 8 Robinson V. Potter, 43 N. H. 188. disposition of the case is made; 
 * Ward V. Arredondo, 1 Paine, 410 ; Miller v. Tobin, 1 West Coast Kep. 
 Gibson v. Johnson, Pet. C. C. 44. 236. 
 
§ 105. 
 
 PLACE OF TEIAL. 
 
 49 
 
 fact of a trial, if the verdict has been wholly set aside and a 
 new trial granted by the court in which the action was brought, 
 or if the judgment of that court has been wholly reversed by 
 the state appellate court and the cause has been remanded for 
 a new trial, does not defeat the right of removal. 
 
 § 105. When Petition must be Filed.— The act of 1875 
 requires the petition for removal to be filed before or at the 
 term at which the cause could be first tried. This is construed 
 to mean the first term at which, under the law and the rules of 
 the ■ court, the cause would be triable, whether from press of 
 business or otherwise it could be reached for trial at that term 
 or not.* "Whether laches in malring up the issues will defeat 
 the right of removal, if removal be applied for before the issues 
 are completed, quaere? 3 
 
 * See Vaunevar v. Bryant, 21 WalL 
 41 ; S. C, Bryant v. Kich, 106 Mass. 
 180 ; Kelloggv. Hughes, 3 Dillon, 357 ; 
 Dart V. McKinney, 9 Blatchf. 359; 
 Fashnacht v. Frank, 23 Wall. 416; 
 Dart V. Walker, 4 Daly (N. Y.), 188 ; 
 Insurance Co. v. Dunn, 19 Wall. 214. 
 In a very recent case in Colorado, it 
 was decided by Judge Hallett, that 
 when two actions are brought in the 
 state court on the same cause of ac- 
 tion, and between the same parties 
 or their successors in interest, the 
 court may require the parties to elect 
 in which they will proceed, or may 
 consolidate them. If the causes are 
 not consolidated, any steps taken in 
 one of them will bind the parties in 
 the other. Consequently, if after the 
 right of removal to the federal court 
 had been established in both suits the 
 parties proceed to trial in the state 
 court in either action, the ri^ht to 
 remove the action not tried. Under the 
 act of 1875,is waived : Evans v. Smith, 
 3 West Coast Bep. 213. 
 
 2 See Ames v. Colorado Central E. 
 E. Co., 4 Cent. L. J. 199. A recent 
 case decided by the circuit court of 
 California is important as determin- 
 ing what are "terms" under the 
 present judicial system of that state. 
 An action was commenced in the 
 fourth district court of the state of 
 California, on August 1, 1879: defend- 
 ant demurred August 22, 1879. The 
 demurrer was overruled. It answered 
 September 12, 1879. Plaintiff de- 
 murred to that part of the answer, 
 setting up new matter as a defense, 
 October 2, 1879. The new constitu- 
 
 EsTEB, Vol. I — i 
 
 tion of California of 1879 having in 
 the mean time taken effect, the case 
 was transferred into the superior 
 court as the successor of the district 
 court, Hnd on January 23, 1880, was 
 assigned to department No, 7 of the 
 superior court. On March 22, 1880, 
 the demurrer to the answer was sus- 
 tained. An amended answer was 
 filed April 1, 1880, which put the case 
 at issue. The constitution of 1879, 
 and the statutes passed in pursuance 
 thereof, provide that "the superior 
 courts shall always be open (legal 
 holidays and non-judicial days ex- 
 cepted) and they shall hold * * * 
 regular sessions commencing on the 
 first Mondays of January, April, 
 July, and October, and special ses- 
 sions at such other times as may be 
 prescribed by the judge or judges 
 thereof." On January 21, 1884, the 
 defendant filed a petition to remove 
 the case to the United States circuit 
 court, on the ground that the parties 
 were citizens of different states. 
 Held, that under the act of congress 
 of 1875, providing that the applica- 
 tion for removal must be made " be- 
 fore or at the term at which said 
 cause could be first tried," the appli- 
 cation in this caga came too late ; that 
 the four general sessions of the su- 
 perior court required to be held are 
 "terms" within the meaning of the 
 act: McNaughton v. S. P. C. E. E. 
 Co., 2 West Coast Eep. 662. 
 
 ^ Scott et al. V. Clinton and Spring- 
 field E. E. Co., 8 Chicago Legal 
 News, 210; S. C, Scott et al. etc. v. 
 Clinton etc. E. E. Co., 6 Bissell, 529. 
 
50 GENERAL PRINCIPLES. § 106. 
 
 § 106. Entry of Appearance, 
 
 Form No. H. 
 [Title or State Couet aud Oatob.] 
 The said defendant, A. B., now comes, and by C. D., his 
 attorney, enters his appearance in said action, and herewith 
 also files his petition for the removal of said cause into the cir- 
 cuit court of the United States, in and for the .-. district 
 
 of thestateof C. D., 
 
 Attorney for Defendant 
 
 § 107. Petition for Transfer under Section 639, Sub- 
 division 1. 
 
 F<yrm No 15, 
 [Title or State CffusT and Catisb.] 
 To said superior court : 
 
 Your petitioner, C. D. , respectfuUly shows that he is the de- 
 fendant in the above-entitled suit; that said suit was brought 
 
 by said plaintiff, A. B., on or about the day of , 
 
 18 , in this court; that the said plaintiff at the time of the 
 
 commencement of said suit was, and still is, a citizen of this 
 state, and your petitioner then was, and still is, a citizen of the 
 state of 
 
 Your petitioner further represents that said action above 
 entitled was brought by the said plaintiff for the purpose of 
 [here briefly state the nature of and subject-matter of the suit, and 
 the relief asked] , and that the matter in dispute in said action 
 exceeds the sum and value of five hundred dollars, exclusive of 
 costs. 
 
 Your petitioner further shows that he has herewith filed his 
 appearance in said action, and offers herewith his bond executed 
 
 by , of , as surety in the penal sum of two 
 
 hundred and fifty dollars, conditioned as required by section 
 639 of the revised statutes of the United States, and tbat your 
 petitioner desires to remove said cause above entitled into the 
 
 circuit court of the United States for the district of , 
 
 pursuant to said statute. 
 
 Your petitioner, therefore, prays that said bond may be ac- 
 cepted as good and sufficient, according to said statute, and 
 that the said suit may be removed into the next circuit court of 
 
 the United States in and for said district of , suant 
 
 to said statute in such case made and provided, s it no 
 
 further proceeding be had therein in this court. 
 
 And your petitioner will ever pray. , 
 
 Attorney for PlaintifT. 
 
§ 108. PLACE OP TRIAL. 51 
 
 State of , ) 
 
 County of J ®®- 
 
 C. D., being first duly sworn, says that he is the petitioner 
 above named, that he has read the foregoing petition, and Icnows 
 the contents thereof, and that each and every of the matters and 
 things therein stated are true. 
 
 [JuKAT.] [Signature.]! 
 
 § 108. The Same — On Ground of Prejudice on Local 
 Influence. 
 
 Form No. 16. 
 [Title op State Oot7rt and Cause.] 
 
 To said superior court — ^Your petitioner, A. B., respectfully 
 shows that he is the plaintiff in the above-entitled suit, and 
 
 that the same was commenced by him on or about the day 
 
 of , 18..., in said superior court, and that your peti- 
 tioner was at the time said suit was brought, and still is, a citi- 
 zen of the state of , and a resident thereof. 
 
 Your petitioner further shows that there is, and was at the 
 time said suit was brought, a controversy therein between your 
 
 petitioner and the said defendant , who is a citizen of 
 
 the state of and a resident thereof; that said 'action 
 
 was brought by your petitioner for the purpose of [here briefly 
 state the nature of the suit and the relief asked] , and that the 
 matter in dispute in said suit exceeds the sum of five hundred 
 dollars, exclusive of costs. 
 
 Your petitioner further represents that said suit has not been 
 tried, but is now pending for trial in this court, and that your 
 petitioner desires to remove the same into the circuit court of 
 
 the United States for the district of , in pursuance of 
 
 the act of congress in that behalf provided, to wit, the revised 
 statutes of the United States, section 639, subdivision 3. 
 
 Your petitioner further says that he has filed the affidavit re- 
 quired by the statute aforesaid in such cases, and offers herewith 
 
 his bond, executed by , of , as surety, in the 
 
 penal sum of two hundred and fifty dollars, conditioned as by 
 said act of congress required. 
 
 [Add prayer as in form No. 15.] 
 
 ••• ) 
 
 [Vbripication.] Attorney for Plaintiff. 
 
 1 The statute does not expressly re- statement in the verified petition for 
 
 quire the petition to be verified, nor removal would be ordinarily sufficient 
 
 that any affidavit should be filed, to satisfy the court as to the amount 
 
 though the usual practice, and cer- or value in dispute, but where the 
 
 tainly the better practice, is to verify suit is not upon a money demand, or 
 
 the petition. If the suit is for a for damages, the better course would 
 
 money demand, the declaration or be to present a distinct affidavit of 
 
 complaint of the plaintiff and the value. 
 
62 GENERAL PRINCIPLES. § 109. 
 
 §109. Affiiavit of Prejudice or Local Influence to 
 Accompany the Foregoing Petition. 
 
 F(yrm No. 17. 
 [Title of State Court and Cattsb.] 
 
 State of ' Iss. 
 
 County of j 
 
 I, A. B., being duly sworn, say that I am the plaintiff in the 
 above-entitled cause, and that I have reason to believe, and 
 do believe, that from prejudice and local influence I will not be 
 able to obtain justice in said state court 
 
 [Jurat.] [Signatubb.]* 
 
 § 110. Bond to Accompany Last Petition Above. 
 
 Form No. 18. 
 
 Know all men by these presents that we, as principal, 
 
 and of as surety, are hereby held and firmly 
 
 bound unto in the penal sum of dollars, law- 
 ful money of the United States, for the payment of which, well 
 and truly to be made, we bind ourselves jointly and severally 
 firmly by these presents. The condition of this obligation is 
 
 such that if said shall enter and file, or cause to be 
 
 entered and filed, in the circuit court of the United States in 
 
 and for the district of on the first day of its 
 
 session next to be held, copies of all process, pleadings, deposi- 
 tions, testimony and other proceedings in a certain suit or 
 
 action now pending in the superior court of the county of , 
 
 state of , in which is plaintiff and 
 
 is defendant; and shall do such other appropriate acts as, 
 by the act of congress, in that behalf are required to be done 
 upon the removal of such suit from said state court into the 
 said United States court, then this obligation shall ba void, 
 otherwise of force. 
 
 Dated this day of , 18 
 
 Y 
 
 State of , 
 
 County of | ®®- 
 
 Ii , of said count3^ tl^e surety named in the fore- 
 going bond, being duly sworn, do depose and say that I am a 
 
 resident of the state of , and a property-holder therein, 
 
 that I am worth the sum of five hundred dollars, over and above 
 all my debts and liabilities, and exclusive of property by law 
 
 1 The above form of petition and be readily changed to apply to the 
 
 affidavit are from "Dillon on the Re- case of a defendant applyins on the 
 
 moval of Causes," pp. 81, 82, under same ground, 
 subdivision 3 of section 639, and may 
 
§ 112. PLACE OF TRIAL. 53 
 
 exempt from execution ; and that I have property in the state of 
 
 , liable to execution, of the value of more than five 
 
 hundred dollars. 
 
 [Jurat.] [Signaturb.]i 
 
 § 111. Petition for Removal under Act of March 3, 
 1875, on the Ground of Citizenship, where all the Oppos- 
 ing Parties are Citizens of DifTerent States, and all the 
 Plaintiffs or all the defendants Unite in the Petition. 
 
 Form No. 19. 
 [Title of Statb Court and Cause.] 
 
 To said Court: Your petitioners, A. B., C. D., and E. F., re>- 
 spectfully show to this honorable court that the matter and 
 amount in dispute in the above-entitled suit exceeds, exclusive 
 of costs, the sum or value of five hundred dollars: 
 
 That the controversy in said suit is between citizens of differ- 
 ent states ; that, at the time of the commencement of this suit, 
 the said A. B., one of your petitioners, was, and still is, a citi- 
 
 zenof the state of ; that said C. D. was then, and still 
 
 is, a citizen of the state of [Here give, in the same 
 
 manner, the citizenship of each of the several plaintiffs and de- 
 fendants.]* 
 
 And your petitioners offer herewith a bond, with good and 
 sufficient surety, for their entering in said circuit court of the 
 United States, on the first day of its next session, a copy of the 
 record in this suit, and for the payment of all costs that may- 
 be awarded by said circuit court, if said court shall hold that 
 this suit was wrongfully or improperly removed thereto. 
 
 And you petitioners pray this honorable court to proceed no 
 further in said cause, except to make the order of removal now 
 prayed for and required by law, and to accept the said surety 
 and bond, and to cause the record herein to be removed into 
 the said circuit court of the United States in and for the dis- 
 trict of , and your petitioners will ever pray. 
 
 [VBRiricATioN.] Attorney for Petitioners. 
 
 § 112. The Same. — If the application is made under the 
 latter clause of section 2, act of 1875, and all the plaintiffs, or 
 all the defendants, as the case may be, do not join in the peti- 
 
 1 The above form of bond is applica- testimony, and other proceedings, so 
 
 ble to removals under subdivision 1 far as the same concern or affect the 
 
 of sec. 639, as well as under aubdi- petitioner, in a certain suit," etc. 
 
 vision 3. If the bond is given under Such bond must be sigped by the 
 
 subdivision 2, the condition should principal : Bough v. Booth, 2 West 
 
 be to enter and file, etc., "copies of Coast Rep. 72. 
 all process, pleadings, depositions, 
 
54 
 
 GENERAL PEINCIPLES. § 112. 
 
 tioii for removal, follow the preceding form down to the star (*), 
 changing the plural to the singular if required, and then insert: 
 " Your petitioner states that, in the said suit above mentioned, 
 there is a controversy which is wholly between citizens of differ- 
 ent states, and which can be fully determined as between them, 
 to wit, a controversy between the said petitioner and the said 
 
 and the said [naming the 'parties actually 
 
 interested in said controversy]." If the pleadings in the case 
 do not suflSciently show the nature of the controversy to be one 
 within the latter clause of section 2, an explicit statement show- 
 ing that fact should be added to the above allegations, and then 
 proceed as in the above form. 
 
 Where the ground of removal is that the suit is one " arising 
 un'ler the constitution and laws of the United States, or trea- 
 ties made under their authority," follow the above form down 
 to the star (*), and then insert the following: " Your petitioner 
 further shows that said suit is one arising under the laws [or 
 constitution, or treaties as the case may be] of the United 
 States, in this: [Here state the facts showing that a federal 
 question necessary to a proper decision of the case is involved], 
 after which follow above form to the conclusion. In this case 
 the citizenship of the parties is not necessary to be stated, but 
 such statement can do no harm ; and if it constitutes an additional 
 ground for removal, it may be also relied upon. 
 
 The petition for a removal on the ground that the parties are 
 citizens of different states, must show that such ground of re- 
 moval existed both at the time of the commencement of the 
 action and at the time of the application for removal. A peti- 
 tion which only alleges that the defendant is. and always has 
 been, a citizen of California, and that the plaintiff is a citizen of 
 Missouri, is insufficient. The citizenship of the parties, under 
 such circumstances, is a judicial fact, and must be alleged 
 in the petition. If such allegations are not made, whether the 
 petition may be amended in the circuit court so as to show them, 
 qucere. If the power to allow such amendments be conceded, . 
 it is not a matter which the party removing can demand as a 
 legal right, but only a matter for the exercise of a sound dis- 
 cretion by the court. Such an amendment should not be 
 allowed where, after an amendment of the petition in the cir- 
 cuit court, the record in each court would show upon its face 
 jurisdiction which would authorize it to proceed to final judg- 
 ment.^ 
 
 1 MoNaughtoa v. S. P. 0. R. R. Co., 2 West Coast Bep. 662. 
 
§ 116. PLACE OF TRIAL. 55 
 
 § 113. Bond to Accompany the Preceding Petition. 
 
 Form No SO. 
 
 [Follow No. 18 down to the beginning of the condition, then 
 proceed as follows :] 
 
 This obligation is upon the following conditions: The said 
 
 having petitioned the court of the county of 
 
 of the State of , for the removal of a cer- 
 tain cause therein pending, wherein is plaintiff, and 
 
 is defendant, to the circuit court of the United States in 
 
 and for the district of 
 
 Now if the said , your petitioner, shall enter in the 
 
 said circuit court of the United States, on the first day of its 
 next session, a copy of the record in said suit, and shall pay or 
 ■cause to be paid all costs that may be adjudged against him by 
 •said circuit court, if said court shall determine that said suit 
 was wrongfully or improperly removed thereto, then this obli- 
 gation to be void, otherwise in full force. 
 
 Witness our hands and seals this day of ...., , 18... 
 
 [JnsTiricATioN or Sureties.] [Signatures and Seals.] 
 
 ■ § 114. The Same — Form of Bond. — ^In any case where 
 special bail was required of the defendant in the cause origi- 
 -nally, insert in the condition of the bond, " and shall then and 
 there appear and enter special bail in said action." The sum 
 to be inserted as the penalty of the bond is not prescribed. 
 The amount should be fixed with reference to the circumstances 
 of the case, and the acts and duties of the petitioners in each 
 special case. It is essential that the bond be several, not 
 merely joint.^ It is not essential that the petitioner should be 
 one of the obligors in the bond.^ The bond need not be condi- 
 tioned for the appearance of other defendants who had not been 
 served with process, and who do not unite in the application.^ 
 
 § 115. The Same — Offer and Service of Bond. — ^A suffi- 
 cient bond must be offered at the time pointed out in the act, and 
 can not be afterwards amended in substance.^ 
 
 § 116. Notice of Motion forRemcval. 
 
 Fmm No. 21. 
 [Title of State Court and Cause.] 
 
 To , plaintiff's attorney: 
 
 Take notice, that upon the petition and appearance of the 
 defendant, of which a copy is hereto annexed, and which were 
 
 1 Roberts v. Oarrington, 2 Hall, 694. ' Suydam v. Smith, 1 Den. 263 ; Van- 
 
 * Vandevoort v. Palmer, 4 Duer, devoort v. Palmer, 4 Duer, 677. 
 
 '677; but see Bough T. Booth, 2 West 'Roberts t. Carringtoii, 2 Hall, 
 
 •Coast Rep. 72. 694. 
 
56 GBNEKAL PEINCIPLES. § 117. 
 
 on, etc. [or upon the petition, a copy of which is hereto an- 
 nexed, and which, together with the petitioner's appearance 
 herein already served on you, was, on, etc.], filed in this court, 
 and upon the bond of the petitioner and his sureties [or the 
 bond on behalf of the petitioner], a copy of which is also 
 
 annexed, defendant will, on , at , at the hour 
 
 of ,., move the court that said cause be removed from 
 
 this court to the circuit court of the United States for the 
 
 district of 
 
 [Date.] [Sign atubb.] ^ 
 
 § 117. Order to Show Cause. 
 
 Fm-m No. Z2. 
 [Title of State Court and Cause.] 
 
 To , plaintiff's attorney: 
 
 The defendant having this day entered an appearance in this 
 cause, and at the same time filed a petition praying for the 
 removal of this action to the circuit court of the United States 
 for the district of California, pursuant to the act of congress of 
 the United States in such case made and provided, and offered 
 the surety as therein provided by a bond now filed, it is ordered 
 
 that the plaintiff show cause on , the day of 
 
 next, before this court, at the opening of court on 
 
 that day, or as soon thereafter as practicable, why the prayer 
 of said petition should not be granted, and in the mean time 
 and until the hearing of said petition, let all proceedings on 
 the part of the plaintiff herein be stayed. E. D., 
 
 [Date.] District Judge, 
 
 § 118. Order for Removal of Cause to United States 
 Court. 
 
 Form No. S3. 
 [Title.] 
 
 Upon reading and filing the petition of , the de- 
 fendant in the above-entitled action, and upon filing the bond, 
 and good and suflScient sureties having been offered by the said 
 defendant in the premises, and the same being by me, the judge 
 of said superior court, duly accepted, it is hereby ordered that 
 no further proceedings be had in this cause, and the removal of 
 the same to the circuit court of the United States for the district 
 of California, to be held in and for the district of Cali- 
 
 1 The plaintifFa may oppose the mo- 11 How. Pr, 479. The application 
 
 tion upon the moving papers, or with should be on notice, or an order to 
 
 new affidavits also, but after the order show cause : Disbrow v. Driggs, 8 
 
 granting the petition has been made Abb. Pr. 305, n. But compare Llius 
 
 the junsdictiou of the state court is v. New York and New Haven R. K. 
 
 gone, and that court has no power to Co., 13 N. Y. 597, where an order 
 
 vacate its order ; Livermore v. Jenks, was made ex parte. 
 
§ 123. PLACE OP TBIAL. 57 
 
 fornia, be, and the same is hereby, allowed and ordered, in ac- 
 cordance with the aforesaid petition and the statute of the United 
 States in such case made and provided. 
 
 [Date.] [Signatitbi!.] 
 
 § 119. Effect of Removal on Injunction. — Neither an 
 outstanding injunction, nor a motion for an attachment for its 
 violation, prevents the removal of the cause.^ Injunctions, or- 
 ders and other proceedings granted in the state court prior to 
 removal are expressly continued in force by section 4 of the act 
 of March 3, 1885 (18 U. S. Stat, at Large, 471), where the mo- 
 tion to dissolve an injunction in the federal court is made upon 
 the same papers upon which the writ was granted in the state 
 coui't,.it is in effect ad application for reargument, and leave to 
 to make such motion should be first applied for and obtained be- 
 fore it can be made.^ 
 
 § 120. Mandamus to Compel Trial after Removal. — The 
 supreme court of California has no jurisdiction to grant a writ 
 of mandate to compel the judge of a district court to proceed 
 with the trial of an action commenced therein, in which an or- 
 der has been made by said district court directing the cause to 
 be transferred to the circuit court of the United States for trial, 
 for the alleged reason that the parties thereto are citizens of 
 different sfetes, the subject-matter being in the jurisdiction of 
 the said district court,' 
 
 § 121. Removal Refused. — A suit in equity to enjoin a suit 
 at law is in reality an equitable defense, and its removal may be 
 refused.* A summons to show cause why a debtor not served 
 in the original action should not be bound by the judgment is 
 regarded as a further proceeding rather than a new action, and 
 a removal can not be granted unless the plaintiff is an alien, or 
 all of the several defendants are citizens of another state from 
 the plaintiff.^ 
 
 § 122. Surety Approved. — It is proper that the order 
 should declare the surety approved.® 
 
 § 123. Writ of Certiorari under Section 7, of the Act 
 of March 3, 1875. 
 
 Form No. S4. 
 The president* of the United States of America to the judge 
 
 of the superior court of the county of , in and for the 
 
 state of •California : 
 
 1 Byam v. Stevens, 4 Edw. Ch. 119; * Rogers v. Rogers, 1 Paige, 183. 
 
 2 Carrington v. Florida R. R. Co., * Fairchild v. Durand, 8 Abb. Pr, 
 9 Blatchf. 468. 305 ; see Brightley's Digest, 12. 
 
 'Francisco v. Manhattan Ins. Co., « Vandevoort v. Palmer, 4 Duer, 
 86 Oal. 283. 677. 
 
58 GENEBAL PKINCIPLES. § 123. 
 
 Whereas it hath been represented to the circuit court of the 
 
 Uoited States for the district of , that a certain suit 
 
 was commenced in the [here name the state court] wherein 
 
 , a citizen of the state of , was plaintiff, and 
 
 , a citizen of the state of , was defendant, and 
 
 that the said duly filed in the said state court his 
 
 petition for the removal of said cause into the said circuit court 
 ■of the United States, and filed with said petition the bond with 
 surety required by the act of congress of March 3, 1875, entitled 
 ^'An act to determine the jurisdiction of the circuit courts of 
 the United States, and to regulate the removal of causes from 
 state courts, and for other purposes," and that the clerk of the 
 said state court above named has refused to the said petitioner 
 ior the removal of said cause a copy of the record therein, 
 though his legal fees therefor were tendered by the said peti- 
 tioner ; 
 
 You, therefore, are hereby commanded that you forthwith 
 certify, or cause to be certified, to the said circuit court of the 
 United States for the district of , a full, true, and com- 
 plete copy of the record and proceedings in the said cause, in 
 which the said petition for removal was filed as aforesaid, 
 plainly and distinctly, and in as full and ample a manner as 
 the same now remain before you, together with this writ; so 
 that the said circuit court may be able to proceed thereon, and 
 •do what shall appear to them of right ought to be done. 
 Herein fail not. 
 
 Witness the Honorable Morrison R. Waite, chief justice of 
 the supreme court, and the seal of said circuit court hereto 
 affixed, this, the day of , a. d. 18... 
 
 [Seal.] Clerk of said Circuit Court.» 
 
 1 Writ— "The writ of certiorari made, it is supposed, by the clerk of 
 
 should be addressed to the judge or the state court :^' Dillon on Eemoval 
 
 judges of the state court, but a return of Causes, 88 ; citing Stewart v. Ingle, 
 
 to the writ duly certified may be 9 Wheat. 526. 
 
§ 126. PARTIES TO CIVIL ACTIONS. 69 
 
 CHAPTER rV. 
 
 PARTIES TO CIVIL ACTIONS. 
 
 § 124;. Who are Parties, Generally. — The persons by 
 •whom, and the persons against whom actions are instituted, 
 are the parties to the actions. In courts of original jurisdiction, 
 the former are called plaintiffs, and the latter defendants. In 
 appellate courts they are known as appellant and appellee or 
 respondent; in courts of error, as plaintiff in error, and de- 
 fendant in error. The term " parties," when used in connection 
 ■with the subject-matter of the issue, is understood to include 
 all who are directly interested, and who, therefore, have a right 
 to make a defense, control the proceedings, or appeal from the 
 judgment. Persons not having these rights are regarded as 
 strangers to the action. ^ 
 
 § 125. In Legal Actions. — So far as this general statement 
 is concerned, it applies equally to actions under the common- 
 law system and to actions under a code ; but the mode by 
 which the interest which makes one a proper or necessary party 
 is determined is very different. In an action at law, under the 
 •old system, the plaintiff must be a person in whom is vested 
 the whole legal right or title ; and if there were more than one, 
 they must all be equally entitled to the recovery ; that -is, the 
 right must dwell in them all as a unit, and the judgment must 
 be in their favor equally, and the defendants must be equally 
 subject to the common liability, and judgment must be ren- 
 dered against them all in a body. The necessity of joining all 
 as plaintiffs in whom was vested the whole legal title, was im- 
 perative ; but in certain cases the plaintiff had the right to elect 
 whether he would sue all who were liable ; but wherever judg- 
 ment passed against two or more defendants, it was necessarily 
 joint. 
 
 § 126. In Equitable Actions. — The suit in equity, how- 
 ever, was hampered by no such arbitrary requirements. Its form 
 was controlled by two general and natural principles: 1. That 
 it should be prosecuted by the party beneficially interested, in- 
 stead of the party who had the apparent legal right and with 
 him might be joined all others who had an interest in the subject- 
 matter, and in obtaining the relief demanded; and 2. That all 
 persons, whose presence was necessary to a complete determina- 
 
 1 Van Camp v. Commissioners etc., 2 West Coast Rep. 18. 
 
60 GENERAL PRINCIPLES. § 127, 
 
 tion and settlement of the questions involved, should be parties 
 plaintiff or defendant, so that all their rights and interests, 
 whether joint or several, or however varied as to importance or 
 extent, might be determined and adjusted by the court. It 
 was not necessary that the decree should pass in favor of all 
 the plaintiffs for the same right or interest, nor against all the 
 defendants, enforcing the same obligation. Relief could be 
 granted the defendant, or one of several defendants, against 
 the plaintiffs, or against the other defendants. 
 
 § 127. Equitable Doctrines Adopted by Codes.— The 
 codes of procedure of the different states, while differing some- 
 what in the details of their provisions, agree substantially in 
 adopting the rules observed by courts of equity in regard to 
 parties in the two features above named.^ 
 
 § 128. Cause of Action, Meaning of. — In every case 
 there must be a " cause of action;" that is, a right on the part 
 of one person, the plaintiff, combined with a violation or in- 
 fringement of that right by another person, the defendant. 
 The expression "cause of action" includes in its meaning all 
 the facts which together constitute the action, and therefore we 
 can not conceive of a cause of action apart from the person who 
 alone has the right to maintain it.^ 
 
 § 12y. The right which is violated or is infringed may be 
 one which is created by a contract or agreement, express or im- 
 plied, or it may be a natural right, or one which exists in favor 
 
 1 Pomeroy's Remedies and Rerae- of an antecedent primary right and 
 dial Rights, sees. 196-200. corresponding duty, and a delict or 
 
 2 In analyzing the expression "cause breach of such primary right and 
 of action," as used in the code, Mr. duty by the person on whom the 
 Pomeroy says: "Every action is duty rests. Every judicial fiction 
 brought in order to obtain some par- must therefore involve the foUow- 
 ticular result which we call the rem- ing elements : a primary right pos- 
 edy, which the code calls the ' relief,' sessod by the plaintiff, and a corre- 
 and which, when granted, is summed spending primary duty devolving upon 
 up or embodied in the judgment of the defendant; a delict or wrong done 
 the court. This result is not the by the defendant, which consisted in 
 ' cause of action ' as that term Is used a breach of such primary right and 
 in the codes. It is true this final re- duty ; a remedial right in favor of the 
 suit, or rather the desire of obtaining plaintiff, and a remedial duty resting 
 it, is the primary motive which acts on the defendant, springing from this 
 upon the will of the plaintiff, and im- delict, and finally the remedy or relief 
 pels him to commence the proceeding, itself. Every action, however com- 
 and in the metaphysical sense It can plicated or however simple, must con- 
 properly be called the cause of this tain these essential elements. Of these 
 action ; but it is certainly not so in elements the primary right and duty 
 the legal sense of the phrase. This and the delict or wrong combined 
 final result Is the 'object of the ac- constitute the cause of action in the 
 tion,' as that term Is frequently used legal sense of the term, and as It is 
 in the codes and In modern legal used In the codes of the several 
 lerminology. It was shown » * * states :" Remedies, etc., sec. 463. 
 that every remedial right arises out 
 
§ 129. PARTIES TO CIVIL ACTIONS. 61 
 
 of the plaintiff as against every other person independently of 
 any contract or agreement ; and hence, though codes prescribe 
 but one form of action, yet the right which underlies and forms 
 the basis of the cause of action, naturally divides civil actions 
 into two primary classes or divisions, viz. : actions ex contractu, 
 for the violation of contract rights, and actions ex delicto, for 
 the violation of natural rights. 
 
 Thus in the case of a written contract, wherein A. agrees to 
 sell and deliver certain goods to B., and B. agrees to pay A. a 
 ■certain price, at a time named, therefor, a relation is •established 
 at once between the parties, and the contract itself discloses, 
 in the light of the facts constituting the breach, who the party 
 is who is entitled to maintain an action therefor, and against 
 whom it must be brought. The right, as well as the liabilitj', 
 is fixed by the contract, and can not exist independently of it. 
 But in case of a tort, as if A. wrongfully imprisons B., the 
 right of B. to his personal liberty exists against all the world ; 
 but the right having been violated only by A., he alone is liable 
 to an action therefor. This right of personal liberty is abso- 
 lute ; it, constantly exists, and does not depend upon aay con- 
 tract or other relation of the parties formed by themselves, 
 while in the other case the right is created by the parties, and 
 can not ex;ist without it. Upon this difference depends the dis- 
 tinction between actions on contract and actions for tort. 
 
 This difference also lies at the foundation of the rule that, 
 independently of a statute authorizing it, a right of action for 
 a tort could not be assigned ; whilst a contract, or right based 
 upon a contract, could, at least so far as to vest the beneficial in- 
 terest in " the assignee, it being considered that a natural 
 right, one which the party could not create, he could not 
 transfer. It is not our purpose, however, to discuss in this 
 connection the several kinds of contracts classed as negotiable 
 and non-negotiable, nor the different kinds of torts as affecting 
 the person or property, and the distinction to be taken between 
 them. 
 
GENERAL PRINCIPLES. § 130. 
 
 CHAPTEE, V. 
 
 PARTIES PLAINTIFF— KEAL PAET? IN INTEREST. 
 
 § 130. Provision of Codes. — All the states having a well- 
 deflned code of practice or civil procedure, except Georgia, 
 have adopted the same general rule as to parties plaintiffs, viz, : 
 "Every action must be prosecuted in the name of the real party 
 in interest." To this general rule each code names certain 
 exceptions, which will be hereafter noticed. This general rule 
 applies to all actions, whether founded upon a tort or upon a 
 contract.^ 
 
 § 131. Who is Real Party in Interest. — Where codes 
 do not prevail, actions upon contracts must be brought in the 
 name of the party in whom the legal interest is vested, or whose 
 legal interest has •been injuriously affected ; and the legal inter- 
 est was held to be vested in him to whom the promise was made, 
 and fram whom the consideration passed. Thus, in an action 
 for breach of contract, where no other person has acquired an 
 interest in the matter in dispute, only the parties to the con- 
 tract sued on should be made parties to the suit.^ 
 
 But the party in whom the legal interest is vested is not 
 always the real party in interest. " The real party in interest" 
 is the party who would be benefited or injured by the judg- 
 ment in the cause. The interest which warrants making a per- 
 son a party is not an interest in the question involved merely, 
 but some interest in the subject-matter, of litigation.^ The rule 
 should be restricted to parties whose interests are in issue, and 
 are to be affected by the decree.* The interest of the plaintiff 
 must be connected with the subject-matter of the action upon 
 which the defendant is liable, though it is not necessary that 
 he should be connected to it by a legal title. Hence, in actions 
 
 I As to the effect of this provision ment of a thing in action not arising 
 
 of the code in authorizing suits by an out of contract." 
 
 assignee, and on the assignaoility of ^ Barber v. Cazalis, 30 Cal. 92. 
 
 causes of action, see rpost^ subdivision ' Vallette v. Whitewater Valley 
 
 first of Forms of Complaints, chapter Canal Co., 4 McLean, 192 ; 6 West. 
 
 L, Actions by Assignee. In New L.iw Jour. 80; see Kerr v. Watts, 6 
 
 York, Indiana, Kansas, Missouri, Wlipat. 550. 
 
 Wisconsin, Florida, South Carolina, * Mechanics' Bank of Alexandria v. 
 Kentucky, Oregon, Nevada, Dakota, Seton, 1 Pet. 299; Elmendorf v. Tay- 
 North Carolina, Washington, and lor, 10 Wheat. 152; Story v. Living- 
 Montana the further provision is ston Ex'x, etc., 13 Pet. 359; Unitecl 
 added: "But this section shall not Slates v. Parrott, 1 McAll. 271. 
 be deemed to authorize the assign- 
 
§ 132. EEAL PAETY IN INTEEBST. 63 
 
 ex contractu, the parties must stand related to the contract 
 which forms the basis of the action. 
 
 Even equity will not malie a defendant liable, upon a con- 
 tract, to a plaintiff who is neither a party to the contract, nor 
 the legal or equitable owner of the contract right to the subject- 
 matter of the suit, nor the legal representative of such owner. 
 For example: A. contracts with B. to. sell and deliver to him 
 certain goods. B. sells the same goods to C. and agrees to de- 
 liver them to him in the same manner he would if the goods 
 were already in his possession. A- fails to deliver them to B. , 
 and B. therefore cannot deliver them to C. In such case C. can 
 not maintain an action against A. for the non-delivery of the 
 goods, notwithstanding B. would have delivered to C. if he 
 had received them ; there being no privity between C. and A. , 
 that is, C. is in no way related to the contract by which A. had 
 agreed to deliver them ; but it would be otherwise if B. had as- 
 signed his contract with A. to C. Nor would it, in the ease 
 above supposed, be any defense to an action brought by B. 
 against A. for non-delivery, that B. had resold the goods to C, 
 and that C. did not intend to sue B. for the non-delivery: 
 Gunter v. Sanchez, 1 Cal. 50. It "is perfectly apparent that 
 these two executory contracts created no relation between A. and 
 C., nor between C. and the property, for the property never 
 passed from A. because of the non-delivery. 
 
 If, however, the contract between A. and B. had vested the 
 property in B. , and by the second contract the same property 
 became vested in C, the latter might maintain an action against 
 A. concerning it ; or, if the goods after the sale to B. had re- 
 mained in A.'s hands as bailee, he would be liable to an action 
 by C. for the non-delivery of the goods ; but in that case the 
 bailment, though it may have been created by the terms of the 
 contract between A. andB., is in fact a separate contract from 
 the sale, and imposes the duty upon A. of delivering the goods 
 to whomsoever may be the owner at the time they are demanded, 
 and this duty is the synonym of an implied contract to deliver 
 them to C, he having become the owner; and this implied con- 
 tract must be the basis of the action brought by C. In such 
 action, it is true, it may be necessary to prove both contracts, 
 because in the case supposed these contracts show the facts 
 from which the implied contract arises, viz. : the bailment and the 
 ownership. 
 
 § 132. When Promise is for Benefit of Third Person. 
 In regard to actions upon promises made for the benefit of 
 
64 GENERAL PEINCIPLES. § 132. 
 
 third persons, there has been much conflict in the decisions of 
 the courts of the different states, especially among those which 
 retain the common-law system of procedure as to the right of 
 such third person to maintain an action against the promisor. 
 In a majority of such latter states, however, the doctrine is 
 now settled that such right of action exists. Thus in a recent 
 casein New Jersey the court said: "The doctrine is well set- 
 tled in this state that if, by a contract not under seal, one per- 
 son makes a promise to another for the benefit of a third, the 
 third may maintain an action on it, though the consideration did 
 not move from him." ^ 
 
 The action of assumpsit, at common law, could not be main- 
 tained upon such promise, unless- upon the theory that there 
 was an implied promise to the creditor, for in that form of ac- 
 tion the plaintiff is obliged to aver a promise to himself ; and if 
 such promise may be implied, there is no reason for confining 
 the right of action to any class of cases where a consideration 
 sufficient to support any contract between strangers has passed 
 to the party making the promise. If, however, the action is 
 brought in "case" instead of assumpsit, there would be good 
 grounds for the distinction. 
 
 Under the code, which not only abolishes the distinctions be- 
 tween actions at law and suits in equity, but requires that every 
 action shall be brought in the name of the real party in inter- 
 est, there would seem to be little doubt of the right of the 
 party for whose benefit the promise was made to mainta'in the 
 
 1 Price v. Trosdell, 1 Stew. 200. aside, it was held that he was en- 
 The case to which the court referred titled to recover his salary for the 
 as settling that doctrine in that state whole period. The court said : " It 
 was Joslin v. The N. J. Car Spring Co., is stated in some of the authorities 
 7 Vroora, 141. The facts in the lat- cited, as a result of a review of cases, 
 ter case (which was an action at law) that this is now well settled as a gen- 
 were, that the plaintiff was employed eral rule. It must be borne in mind, 
 as foreman by Fields & King, m.in- however, that this case falls within a 
 ufacturers, at a salary of two thou- special class of oases where the party 
 sand dollars a year from February 1, who makes the promise has received 
 1870, to October 31, 1871, at wfiich from the party to whom the promise is 
 last date the defendants bought mude, money or property, from or out 
 Fields & King's stock and assets, "as- of which he is to pay creditors of the 
 sumod their liabilities, and carried on second party: See Mellen, Adm'x, v. 
 their business. The plaintiff assented "Whipple, I'Gray (Mass.), 317; and in 
 to this transfer of liability, and oon- this class of cases tlie right of the cred- 
 tinued to act as foreman up to Jan- itor, the party for whose benefit the 
 uary, 1872, when he wns discharged, promise was made, to recover, is, we 
 This action was brought to recover think, sustained by the weight of au- 
 from the defendants his salary from thority." See also Seaman v. Wliit- 
 February 1, 1870, to January, 1872. ney, 35 Am. Dec. 618; Burrows v. 
 The jury returned a verdict in his Turner, Id. 622; Birker v. Bucklin, 
 favor, and on a rule to show cause 43 Id. 726, and cases cited in notes 
 why the verdict should not be set thereto. 
 
§ 134. ACTIONS POUNDED ON CONTEACT. 65 
 
 action, although such promise is contained in a writing under 
 seal. Nor does this conflict with the rule above laid down, 
 that " the plaintiff must stand related to the contract, for the 
 test is not the legal but the equitable title, right, or interest, and 
 *hat interest is directly created by the contract."^ 
 
 CHAPTER VI. 
 
 PARTIES PLAINTIFF— ACTIONS POUNDED ON CONTRACT. 
 
 § 133. How Plaintiff's Relation to the Contract may 
 J^rise. — The relation to the contract necessary to enable one 
 "to maintain an action upon it may be created in many different 
 ways: 1. By the contract itself, as in the case of the original 
 parties to the contract; 2. By transfer or assignment ; 3. By 
 -operation of law, as in the case of executors or administrators 
 of a deceased party to, or assignee of, a contract ; 4. By aid of 
 the law, as in case of attachment or garnishment of debts due, 
 or property in possession ; but in most states this is a special 
 proceeding in aid of an action pending; or for the enforcement 
 of a judgment rendered. While in some states, as in Michigan, 
 although a suit must first be commenced against the principal 
 defendant before a writ of garnishment can be obtained against 
 one indebted to him, yet the aflSdavit for the writ and the 
 answer of the garnishee form an issi^ between them, and the 
 -case is docketed and tried as an independent suit, and a judg- 
 ment is rendered therein for or against the garnishee, as in 
 other actions, but as the garnishee of the principal debtor. 
 Although the plaintiff in this proceeding is subrogated by force 
 of the statute to the rights of the defendaat in the principal 
 case, yet it is more analogous to process of attachment against 
 the principal debtor's property, by which a lien is secured upon 
 it in advance of the judgment, since judgment can not be 
 obtained against the garnishee until the plaintiff has obtained 
 Judgment against the principal defendant, and the moneys 
 obtained by the proceeding must be applied to the satisfaction 
 of the principal judgment, and does not otherwise become the 
 property of the plaintiff. 
 
 § 134. Joinder of Plaintiffs Generally. — The provisions 
 -of the code in respect to the joinder of parties plaintiff are bor- 
 
 I Wiggins V. McDonald, 18 Cal. seq., where this subject is discussed 
 126 ; Fomeroy's Remedies, sec 139 et at length. 
 EsTEB, Vol. 1-5. 
 
66 GENERAL PEINCIPLES. § 134. 
 
 rowed from the former equity practice, and are as follows: " All 
 persons having an interest in the subject of the action, and in 
 obtaining the relief demanded, may be joined as plaintiffs, ex- 
 cept when otherwise provided." ^ And "of the parties to the 
 action those who are united in interest must be joined as 
 plaintiffs or defendants; but if the consent of any one who 
 should have been joined as plaintiff can not be obtained, he 
 may be made a defendant, the reason thereof being stated in 
 the complaint," (or petition).^ These sections, as well as the 
 one which provides that all actions shall be prosecuted in the 
 name of the real party in interest, have many exceptions, which 
 will be hereafter noticed. 
 
 The defendant in an action who has made but one contract 
 or incurred a single liability, obviously has the right to require 
 that the whole case be disposed of in one action. There may 
 be cases of a contract made with two or more persons of such 
 nature that a particular breach by the one party may injure but 
 one of several persons who form the other party to the contract; 
 and in such case only the person who has sustained damages, 
 and who would be entitled to receive compensation for the 
 breach, need sue ; but wherever the damages are sustained by 
 all of several constituting one of the parties to the contract, all 
 must join as plaintiffs, unless the contract itself severs the in- 
 terest of each from the other, or unless the amount to which 
 each is entitled has been determined by the mutual agreement 
 of both parties to the contract, which of course would amount 
 to a several liquidation, and would enable each party to sue 
 separately for his share ; the contract and the breach in such 
 case being only matter of inducement. 
 
 "A contract by one person with two jointly does not com- 
 prehend or involve a contract with either of them separately, 
 as is evident from the well-known doctrine that a covenant 
 or promise to two, if proved in an action brought by one of 
 
 ' Arizona, see. 12 ; California, sec. ' New York, sec. 119; Indiana, sec 
 
 378; New Yorlc( 1876), sec. 446; Ohio, 19; California, sec. 382; Wisconsin, 
 
 sec. 34 ; Indiana, sec. 70; Kentucky, c. 122, sec. 20; Florida, sec 70; 
 
 sec. 22 ; Arkansas, sec. 4475 ; Mis- South Carolina, sec. 142 ; Dakota, 
 
 souri, sec. 4; Iowa, sec. 2545; Wis- sec. 72; Oregon, sec. 381; Nevada, 
 
 consin, c. 122, sec. 18; Kansas, sec. sec 14; Ohio, sec. 36; Kansas, sec 
 
 85; Nebraska, see. 37; Nevada, sec. 37; Iowa, sec. 2548; Nebraska, sec 
 
 12; Oregon, sec. 380 (limited to equi- 39; Kentucky, sec, 36; Missouri, sec 
 
 table actions); North Carolina, sec. 6; North Carolina, sec. 62; Idaho, 
 
 60; South Carolina, sac. 140; Florida, sec. 14; Washington, sec. 8; Mon- 
 
 sec. 68; Colorado, sec. 11; Montana, tana, sec 14; Arizona, sec. 14; Wy- 
 
 sec 12; Wyoming, sec. 40; Dakota, oniing, sec. 42 ; Colorado, sec. — . 
 70 ; Washington, sec, 8. 
 
§ 137. ACTIONS POUNDED ON CONTRACT. 67 
 
 them, sustains a plea which denies the existence of the con- 
 tract, "i 
 
 § 135. Plaintiffs must Represent Entire Cause of Ac- 
 tion. — The question as to the joinder of parties being one of 
 the principal grounds of demurrer, is one of great importance 
 and frequent adjudication. It follows from the statement that 
 the plaintiff or plaintiffs must represent the entire cause of ac. 
 tion (that is, that the cause of action can not be divided), that 
 all who are interested in the cause of action and in obtaining 
 the relief sought, must be joined as plaintiffs. We use the 
 words "represent" and "interested" in the sense used in the 
 codes. The person or persons who "represent" the entire 
 cause of action must be " the real party in interest." 
 
 § 136. Refusal of Plaintiffs to Join. — Exceptions to the 
 foregoing general rule existed at common law, and are provided 
 for in the codes. The death of one of the persons thus interested, 
 or Ms refusal to join, have been held suflficient reasons for the 
 failure to make, such person a co-plaintiff, the reason appearing 
 in the complaint, and, in case of refusal to join, he should be 
 made a defendant.^ 
 
 But in such case the recovery must be entire, and for the 
 whole interest, so that the defendant, against whom the recovery 
 is had may not be subjected to a second action; while those 
 jointly entitled to the recovery, though one of them is a defend- 
 ant, being both before the court, may have their mutual rights 
 and interests adjusted in the same decree of judgment ; or if 
 -from a complication of accounts, as between partners, that is 
 inconvenient, the recovery must enter into the accounting be- 
 tween them. The person thus made a defendant is equally 
 with the plaintiff bound by the judgment or decree. 
 
 § 137. Where Parties are Numerous. — In equity, the 
 rule that all persons materially interested must be made parties 
 was always dispensed with where it was impracticable, or very- 
 inconvenient, as in the case of a very numerous association in 
 a stock concern, in effect a partnership. 3 This same rule is em- 
 bodied in the code, which provides that where the parties 
 are numerous, and it is impracticable to bring them all before 
 the court, or where the question is one of common or general 
 interest, one or more may sue or defend for the benefit of all. 
 
 1 Wetherell v. Langston. 1 Ex. 644. 565 ; Moody v. Sewall, 14 Me. 295, 
 
 2 See California Code of Civil Pro- ante, sec. 134, n. 
 
 cedure, sec. 382, and Nightingale v. ^ Cockburn v. Thompson, 16 Ves. 
 Scannell, 6 Cal. 509, and S. C, 18 321; Story's Eq. PI., sec. 135: Gor- 
 Id. 322 ; Hays v. Lasater et al., 3 Ark. man v. Russell, 14 Cal. 540. 
 
G8 GENERAL PRINCIPLES. § 138 
 
 It would be very difficult to lay down any positive rule by which 
 the degree of the inconvenience which would justify the omis- 
 sion could be absolutely determined. Other circumstances 
 aside from the numbers must often enter into a proper deter- 
 mination. The exigencies of the case, the necessity for prompt 
 action, the hazards, or inevitable loss from delay, might justify 
 the omission in one case, while in another all the defendants, 
 though equally numerous, should be brought in. The facts 
 relied upon to justify the omission should be clearly stated in 
 the complaint, and become a matter for judicial decision, gov- 
 erned by the spirit of the code and the facts of the particular 
 case.i 
 
 § 138. Common Interest, What is. — The test of the unity 
 of interest referred to in this section is that joint connection 
 with, or relation to, the subject-matter which, by the rules of 
 the common law, will preclude a separate action. It refers to 
 such cases as joint tenants, co-trustees, partners, joint owners, 
 or joint contractors simply.^ In all these cases the right, to 
 assert or protect which the suit is brought, is one which exists 
 against them all, or the obligation to be enforced is common to 
 them all ; then, if it is impracticable to bring them all before 
 the court, one may sue or defend for all. 3 The rule which per- 
 mits the omission of parties, and the filing of a bill by one in 
 behalf of all the others, is founded on necessity, and is estab- 
 lished to prevent a failure of justice which could not be other- 
 wise avoided.* 
 
 § 139. Actions by Joint Tenants and Tenants in Com- 
 mon. — ^The code of California, following in this respect the 
 majority of the codes of the various states, provides tUat "all 
 persons holding as tenants in common, joint tenants, or copar- 
 ceners, or any number less than all, may jointly or severally 
 commence or defend any civil action or proceeding for the en- 
 forcement or protection of the rights of such party. 5 It is 
 also provided that " any two or more persons claiming any 
 estate or interest in lands under a common source of title, 
 whether holding as tenants in common, joint tenants, copar- 
 
 1 In Andrews v. Mokelurane Hill nam v. Brett, 85 Barb. 596 ; Gibbons 
 
 Co., 7 Cal. 333, it was held that sec- v. Peralta, 21 Cal. 632, 633. 
 
 tion 14 in the former practice act was ' Reid v. The Evergreens, 21 How. 
 
 intended to apply to suits in equity, (N. Y.) 319, 
 
 and not to actions at law. Subse- * Bouton v. City of Brooklyn, 15 
 
 quent decisions ofthis court abolished Barb. 375; Smith v. Lockwood, 13 
 
 all distinctions between the actions at Id. 209 ; Towner v. Tooley, 38 Id. 
 
 law and suits in equity in this respect. 598. 
 
 s Jones V. Felch, 8 Bosw. 63; Buck- » California Code C. P., sec. 384. 
 
§ 139. ACTIONS POUNDED ON CONTRACT. 69 
 
 ceners, or in severalty, may unite in an action against any per- 
 son claiming an adverse estate or interest therein,, for the pur- 
 pose of determining such adverse claim, or of establishing such 
 common source of title, or declaring the same to be held in 
 trust, or of removing a cloud upon the same."^ 
 
 At the common law, joint tenants were required to join in an 
 action of ejectment, and the failure to do so was fatal to a re- 
 covery.^ While two or more co-tenants could not join in an 
 action of ejectment, the interest of each being separate and 
 distinct.^ , But under this provision the right of one tenant in 
 common to recover in an action of ejectment the possession of 
 the entire tract as against all persons but his co-tenants, has 
 been repeatedly upheld.* Or he may sue alone for his moiety ;* 
 or may in equity obtain a partition.^ And these rules apply 
 equally to the grantee of the tenant in common.'' So, also, ex- 
 ecutors and administrators can maintain such action jointly 
 with the other tenants in common in all cases where their testa- 
 tors or intestates could have done so, until the administration of 
 the estates they represent have closed, or the property distrib- 
 uted under the decree of the probate court.^ But if an estate 
 should be sold in lots to different purchasers, they could not 
 join in exhibiting one bill against the vendor for specific per- 
 formance; but where there was a contract to convey with 
 but one person, under which the purchaser conveyed his equi- 
 table interest of a moiety to each one of two persons, it was 
 held that these two persons might sue the original vendor for 
 specific performance.' And where one tenant in common sells 
 the right to a stranger to cut timber off the common property, 
 another tenant in common of the same property can not maintain 
 replevin for the timber after it is cut.'" After severance of a 
 fund held in common, each party may maintain a separate action 
 for his ascertained share.^^ 
 
 1 California Code O. P., sec 381, Tripp v. Eiley, 15 Id. 333 ; Bebee v. 
 
 effect July 1, 1874; see, also, sees. Grltfing, 4 Kern. 235. 
 
 384, 738, and 1452. ' Ktark v, Barrett, 15 Cal. 361, ap- 
 
 * Dewey v. Lambier, 7 Cal. 847. proved in Touchard v. Grow, 21 Id. 
 
 3 De Johnson v. Sepulbeda, 5 Cal. 162 ; Hart v. Kobertson, Id. 348 ; Ma- 
 149 ; Throckmorton v. Burr, Id. 401 ; honey v. Van Winkle, Id. 583 ; Keed 
 "Welch V. Sullivan, 8 Id. 187. v. Spicer, 27 Id. 64 ; Carpenter v.Web- 
 
 4 Touchard v. Crow, 20 Cal. 150; ster, Id.500; Sewardv. Malotte, 15 Id. 
 Stark V. Barrett, 15 Id. 371 ; Mahoney 304. 
 
 V. Van Winkle, 21 Id. 583 ; Galler v. * Keynolds v. Hosmer, 45 Cal. 631. 
 Fett, 30 Id. 484; Weise v. Barker, 2 » Owen v. Frink, 24 Cal. 177. 
 West Coast Kep. 108. " Alford v. Dradeen, 1 Nev. 228. 
 
 5 Covillandv.Tanner,7Cal. 38; Col- ^^ Gen. Mut. Ins. Co. v. Benson, 6 
 lier V. Corbett, 15 Id. 183. Duer, 168. 
 
 « Tlnney v. Stebbins, 28 Barb. 290; 
 
70 GENERAL PRINCIPLES. § 140. 
 
 § 140. Actions by Joint Owners of Chattels. — Both at 
 the common law and under the code a co-owner of a chattel 
 can maintain no action to enforce his proprietary rights therein 
 without joining his co-owners. Thus one co-owner can not re- 
 cover possession of the common property from his co-owner 
 who is in the exclusive possession thereof, in an action in the 
 nature of replevin. ^ Thus tenants in common of wool, who be- 
 came such by one of them letting sheep for a; year to the other^ 
 with an agreement that the latter was to take care of the sheep, 
 shear them, sack the wool, and deliver it to the owner of the 
 sheep at S. , a port, to be by him shipped to a commission mer- 
 chant at S. F., to be sold, and that when the wool was sold 
 the proceeds were to be equally divided, can not maintain 
 replevin against each other, nor can one against the vendee o^ 
 the other ; ^ and the same necessity exists for the joinder of all 
 the co-tenants in an action to recover for the conversion by a 
 strano-er.3 So also tenants in common must join in an action 
 for an entire injury done to the partnership property, either in 
 tort, or assumpsit when tort is waived.* Joint owners or joint 
 charterers of ships are tenants in common, and must all join in 
 an action affecting the common property, or for the recovery of 
 freight. 5 
 
 § 141. Actions oy Executors and Administrators.— 
 The provision that every action must be prosecuted in the name 
 of the real party in interest has certain exceptions. Thus the 
 code provides that ' ' an executor, administrator, or trustee of 
 an express trust, or a person expressly authorized by statute, 
 may sue without joining with him the persons for whose ben- 
 efit the action is prosecuted. A person with whom or in whose 
 name a contract is made for the benefit of another, is a trustee 
 of an express trust, within the meaning of this section." ^ 
 
 In the case of executors, it was formerly the rule that where 
 several were named, all must join in an action, even though 
 some renounce.' By section 135.5, California Code, only those 
 
 1 Cross V. Hulett, 53 Mo. 397 ; Mills 5 Merritt v. Walsh, 82 N. T. 685; 
 V. Malott, 43 Ind. 248; Stall v. Wil- Donnell v. Walsh, 33 Id, 43; Buck- 
 bur, 77 N. Y. 158 ; Hill v. Seager, 2 man v. Brett, 22 How. Pr. 233 ; Id. 
 West Coast Eep. 673. 13Ab. Pr. 119; see Bishop v. Edmis- 
 
 '■i Hewlett V. Owens, 50 Cal. 474; ton, 13 Id. 846; Sherman v. Pream, 
 
 S. C, 51 Id. 570. 30 Barb. 478 ; Coster v. N. X. & Erie 
 
 'Whitney v. Stark, 8 Cal. 514; E. R. Co., 6 Duer, 43 ; Dennis v. Ken- 
 
 Eice V. Hollenbeck, 19 Barb. '664; nedy, 19 Barb. 517. 
 
 Gock V. Kenneda, 29 Id. 120; Tan- « California Codo C. P., sec.' 369. 
 
 ner v. Hills, 44 Id. 428. But see ' 9 Co. 37; 1 Chitt. PI. 18; 1 Saund. 
 
 Yamhill Bridge Co. v. Newby, 1 Or. 291; 3 Bac. 82; Toll. 68; Bodle v. 
 
 173. Hulse, 6 Wend. 313. 
 
 * Gilmore v. Wilbur, 12 Pick. 120. 
 
§ 141. ACTIONS POUNDED ON CONTRACT. 71 
 
 who have been appointed by the court should join; "those ap- 
 pointed have the same authority to perform all acts and discharge 
 the trust required by the will, as effectually for every purpose as 
 if all were appointed and should act together. " But where there 
 are two administrators, and only one acting, he may sue alone in 
 his own right on a guaranty executed since decedent's death. ^ 
 
 Under the code, executors have the right to institute actions 
 under the general authority conferred by statute. ^ But the 
 provision that an executor may sue, without joining with him 
 the person for whose benefit the action is prosecuted, has no 
 application in case of an action for the construction of a will.^ 
 
 In California, it is also provided that " actions for the recovery 
 of any property, real or personal, or for the possession thereof, 
 and all actions founded upon contracts, may be maintained by 
 and against executors and administrators in all cases in which 
 the same might have been maintained by or against their re- 
 spective testators or intestates."* In such section, actions to 
 quiet title to lands are omitted. By section 1452 it is provided 
 "that the heirs or devisees may themselves, or jointly with the 
 executor or administrator, maintain an action for the possession 
 of the real estate, or for the purpose of quieting title to the 
 same, against any one except the executor or administrator." 
 
 As executors and administrators are required to talie into 
 their possession all the estate of the decedent, real and personal 
 (section 1581), they must have the right to maintain an action 
 for its possession, without being compelled to obtain the con- 
 sent of the heirs or devisees, but it is not clear that the exec- 
 utor or administrator can bring an . action to quiet title without 
 joining the heir or devisee, under either of these provisions. 
 However, in cases where it became necessary to the proper ex- 
 ecution of the trust that such action should be brought, he 
 might if the heirs or devisees refused to join as plaintiffs, 
 make them defendants, under section 382. ^ 
 
 In construing these provisions it has been held that an exec- 
 utor or administrator can maintain an action, without joining 
 his beneficiary, for the wrongful conversion or embezzlement of 
 the property of his intestate ;^ or an action of replevin ;'' or for 
 
 J Packer v. Wlllson, 15 Wend. 343. ' But see Curtis v. Sutter, 15 Cal. 
 
 2 Curtis V. Sutter, 15 Cal. 259 ; Hal- 259. 
 
 ipck V. Mixer, 16 Id. 579 ; Tesch- « Jahns v. Nolting, 29 Cal. 507 ; 
 
 maoher V.Thompson, 18 Id. 20. Beckman v. McKay, 14 Id. 250, re- 
 
 ' Hobart College, Trustees of, v. ferred to in .Jahns v. NoltiHg, 29 Id. 
 
 Pitzhugh, 27 N. T. 130. 512 ; Sheldon v. Hoy, 11 How. Pr. 11. 
 
 * California Code of Civil Proce- ' Halleok v. Mixer, 16 Cal . 575. 
 dure, sec. 1582. 
 
72 GENERAL PRINCIPLES. § 141. 
 
 trespass to the real property of the testator,^ or to foreclose a 
 mortgage ;2 or to set aside deeds fraudulently made by the de- 
 ceased. ^ So, also, an administrator may maintain an action on 
 a note made payable to him as administrator. But in Massa- 
 chusetts an administrator of the deceased promisee and the sur- 
 viving promisee of a promissory note can not join in bringing 
 an action on the note.* Nor can an administrator de bonis non 
 maintain an action in Ms own name for the price of goods of 
 his intestate, sold by a previous administrator.^ 
 
 On a demand due to the testator before his decease, the ex- 
 ecutor may sue either in his individual capacity, or in his 
 capacity as executor.'' So he may sue as administrator, or in 
 his own right upon a note made or indorsed to him as admin- 
 istrator f and in an action for conversion, after the death of the 
 intestate, the administrator may sue in his own name properly, 
 though the conversion took place before the granting of the 
 letters of administration, as the letters relate back to the time of 
 the death, and give title by relation.' And it has been held in 
 New York that an executor may sue in two different capacities, 
 as executor and devisee, where the causes of action are such as 
 may be joined.^" 
 
 A foreign executor or administrator can not sue in another 
 state in his representative capacity. His authority does not 
 extend beyond the jurisdiction of the government under which 
 be was invested with his authority. ^^ The objection that a for- 
 eign administrator can not sue must be taken by demurrer. ^^ 
 
 But the assignee of the thing in action transferred by such 
 foreign executor or administrator, may sue the debtor resident 
 in another state. The disability of the representative is per- 
 sonal and does not affect the subject of the action ; and in the 
 application of this rule, executors or administrators made or 
 appointed under the laws of any other state in the Union are 
 regarded as foreign. ^^ 
 
 iHaightv.Green, 19Cal.ll3; Rook- ' Merritt v. Seaman, 6 N. Y. (2 
 
 well V. Saunders, 19 Barb. 473. Seld.) 168, 
 
 2 Harwood v. Marye, 8 Gal. 580. 8 Bright v. Currie, 5 Sandf. 433. 
 
 ' Cal. Code Civil Proc, sec. 1589. * Sheldon v. Hoy, 11 How. (N. T.) 
 
 But see conira, Snyder V. Voorhies, 2 11. 
 
 West Coast Rep. 616. " Armstrong v. Hall, 17 How. Pr. 
 
 * Corcoran v. Doll, 32 Cal. 82 ; 76. Compare Pugsly v. Aiken, 11 N. 
 Copper V. Kerr, 3 Johns. Cas. fi06 ; Y. 494. 
 
 Eagle V. Pox. 28 Barb. 473 ; Robin- " Cal. Code C. P., sec. 1913. 
 
 son V. Crandall, 9 Wend. 425 ; Bright " Robbins v. Wells, 18 Abb. (N.Y.) 
 
 V. Currie, 5 Sandf. 433; Merritt v. 191; S. C, Id., 26 How 15; Id., 1 
 
 Seamen, 2 Seld. 168. Rob. 666. 
 
 ' Smith V. Franklin, 1 Mass. 480. u Peterson v. Chemical Bank, 32 
 
 • Calder v.Pyfer, 2 Cranch C.Ct. 430. N. Y. (5 Tiff.) 21. 
 
§ 143. ACTIONS FOUMDED ON CONTRACT. 73 
 
 § 142. Actions by Partners.— It was the rule of the com- 
 mon law, and the same has remained unchanged by the code, 
 that in actions for the benefit of the partnership, all the part- 
 ners must be joined as parties to the actions. Thus all the 
 partners should join in an action for the collection of a part- 
 nership debt, as for the recovery of the price of goods sold by 
 the firm. It cannot be maintained in the name of one, 
 although he is the general agent of the firm.^ The same rule 
 prevails in an action to recover against an inn-keeper for the 
 loss of goods; 2 or in an action for damages for a deceit in the 
 purchase of real estate for partnership purposes. ^ Whether a 
 dormant oc special partner is a necessary party plaintiff, is a 
 question of practice which has been answered differently in 
 different states. Many of the states have enacted statutes 
 which dispense with the joinder of either the dormant or 
 special partner.'' In New York, however, it would seein that a 
 dormant partner is a necessary party plaintiff. ^ But when 
 one partner is a member of two firms, one of which sues the 
 other, he may elect to be either plaintiff or defendant.^ An 
 agreement to divide the gross earnings of a venture does not 
 necessarily constitute the parties to it partners.''' Where one of 
 the partners has died, the rule under the code and at the common 
 law was that the right remained in the surviving partners to sue 
 on the firm demands, without joining the personal representatives 
 of the deceased partner. The surviving partners might assign 
 the firm demands, even to the representatives of the deceased, in 
 which case the assignee would be the proper party plaintiff.^ 
 
 § 143. Foreclosure of Mortgages and Meclianics' Liens. 
 In actions to foreclose mortgages, all persons interested in the 
 estate may be made parties. But no person holding an unre- 
 corded mortgage, conveyance or lien, from or under the mort- 
 gagor at the commencement of the action, need be made a party 
 to an action to foreclose a mortgage or lien.^ Material men and 
 
 1 Hyde v. Van Valkenburgh, 1 ' Secor v. Keller, 4 Duer, 416;but 
 Datv, 416; Bridge V. Pavson, SSandf. see Hurlbut v. Post, 1 IJosw. 28; 
 210; Mayhew v. Eobinson, 10 How. Brown v. Birdsall, 29 Barb. 549; Van 
 Pr. 162; Briggs v. Briggs 20 Barb. Valen v. Russell, 13 Id. 590. 
 
 477 ; Id., 15 N. Y. 471 ; Sweet v. Brad- " Cole v. Reynolds, 18 N. Y. 76. 
 
 ley, 24 Barb. 549; Halliday v. Dog- 'Wheeler v. Fanner, Cal. Sup. 
 
 gett, 6 Pick. 359. Ct., July term, 18a9, citing Patter- 
 
 2 Needles v. Howard, 1 B. D. son v. Blanohard, 1 Seld. 189; Story 
 Smith, 54. on Part., sec. 34, and eases there 
 
 ^ Medbury v. Watson, 6 Met. 246. cited in note 3. 
 
 * Clark V.Miller, 4 Wend. 629; s ^oys v. Vilas, 18 Wis. 169; 
 
 Clarkson V. Carter, 3 Cow. 84; Li- Brown v. Allen, 35 Iowa, 306, 311. 
 
 veck v. Shaftoe, 2 Esp. 4f)8; Mitchell ' California Code of Civil Procedure, 
 
 V. Doll, 2 Harr. & GilL 171. sec. 726. 
 
74 GENERAL PRINCIPLES. § 144. 
 
 mechanics may join in an equitable action to establish and en- 
 force their liens.i The mortgagee of a policy of insurance is 
 the owner, and can alone maintain an action upon it.* But the 
 party to whom the loss is made payable in the policy may sue in 
 his own name, if not assigned, sold, or mortgaged.^ 
 
 § 144. Principal and Agent. — On contracts made by an 
 agent, either express or implied, in the name of his principal, 
 the latter is the proper party plaintiff. In such case the agent 
 can not sue.^ If, however, the contract, whether verbal or 
 written, is entered into by the agent, in his own name, without 
 disclosing his principal, either the principal or the agent may 
 sue thereon. And the same is true if the contract is entered 
 into by the agent in his own name, and the fact of the agency 
 was known to the contracting parties at the time of the making 
 of the contract.* Thus an agent may maintain an action on a 
 promissory note payable to himself as agent. ^ So also the real 
 owner of goods may maintain an action concerning them in his 
 own name, and parol evidence is admissible to show the agency.' 
 
 § 145. Plaintiffs in Action on Promissory Notes. — In 
 actions on promissory notes the real party in interest, that is, 
 the party having the right to the money thereon, is the proper 
 person to sue.^ The holder of such note is presumed to be the 
 owner, in the absence of evidence to the contrary, and prima 
 facie entitles him to sue thereon.^ The fact that the plaintiff 
 has not the actual possession of the note sued upon does not 
 
 1 Barber v. Eeynolds, 33 Cal. 497; 6 Iowa, 169; Usparicha v. Noble, 18 
 Fitch V. Creighton, 24 How. 159. East, 232 ; Buffum v. Chadwiok, 8 
 
 2 Ripley T. Aster Ins, Co., 17 How. Mass. 103; Fairfield v. Adams, 16 
 Pr. 444 ; Ennis v. Harmony Fire Ins. Pick. 381 ; Morgan v. Reed, 7 Abb. Pr. 
 Co., 3 Bosw. 516; but see Bid well v. 215; Van Lien v. Byrnes, 1 Hilt. 133; 
 N. W. Ins. Co., 19 N. Y. 179 ; Bodle Ruiz v. Norton, 4 Cal. 358 ; Tliurn v. 
 V. Chenango Ins. Co., 2 Id. 53. Alta Tel. Co., 15 Id. 472 ; Crosby v. 
 
 » Frink v. Hampden Ins. Co., 45 Watkins, 12 Id. 88. 
 
 Barb. 384. " Ord v. McKee, 5 Cal. 515 ; Consid- 
 
 * Erickson v, Compton, 6 How. Pr, erant v. Brisbane, 22 N. Y. 389 ; Reilly 
 
 471 ; Union India Rubber Co. v. Tom- v. Cook, 22 How. Pr. 93. 
 
 linson, 1 E. D. Smith, 364 ; St. John ' Union India Rubber Co. v. Tom- 
 
 V. GriflBth, 18 How. Pr. 59; Fish v. linson, 1 E. D. Smith, 364. 
 
 Wood, 4 E. D. Smith, 327; Haigbt v. » Cummings v. Morris, 3 Bosw. 560; 
 
 Sahler, 30 Barb. 218; Stanton v. Selden v. Pringle, 17 Barb. 460 ; Hast- 
 
 Camp, 4 Id, 274 ; Lane v. Columbus ings v. MoKinley, 1 E. D. Smith, 273. 
 
 Ins. Co , 2 C. R. 65 ; Lineker v. Ayesh- " Locket v. Davis, 3 McLean, 101 ; 
 
 lord, 1 Cal. 75 ; Phillips v. Henshaw, Halsted v. Lyon, 2 Id. 226 ; Curtis v. 
 
 6 Id. 509. Sprague, 51 Cal. 239 ; McOann v. 
 
 5 St. John V. Griffith, 2 Abb. Pr. Lewis, 9 Id. 246 ; cited in Corcoran v. 
 
 198 ; Hall v. Plaine, 14 Ohio St, 417 ; Doll, 32 Id. 88 ; Price v. Dunlap, 5 Id. 
 
 Higgins V. Senior, 8 M. & W. 834; 483; Gushee v. Leavitt,Id.l60; James 
 
 Sims V. Bond, 5 B. & Ad. 389 ; Basta- v. Chalmers, 5 Sand. 52 ; affirmed in 
 
 hie V. Poole, 1 C. M. &R. 410: Hicks Lowber v. Leroy, 2 Seld. 209; Molt- 
 
 V. Whitmore, 12 Wend. 648; Taintor ram v. Mills, 1 Sand. 87; Wiltsie v. 
 
 V. Prendergast, 3 Hill, 72 ; Tyler v. Northam, 5 Bosw. 428 ; Farrington v. 
 
 Freeman, 8 Cush. 261 ; Frear v. Jones, Park Bank, 39 Barb. 645. 
 
§ 149. ACTIONS FOUNDED ON CONTKACT. 75 
 
 affect his rights to recover upon it, if he be the real owner, al- 
 though the note is in the possession of the defendant. i Con- 
 versely the mere holder of a note, without an interest in or title 
 thereto, cannot maintain an action thereon.'' 
 
 A party holding a promissory note, as trustee for himself and 
 others, may recover.^ So, a bona fide indorsee may recover.* 
 Or the indorsee of a note for a consideration to be paid after 
 collection may maintain action.^ 
 
 § 146. Quo Warranto. — The claimant of an office may join 
 with the people as plaintiff in a proceeding of quo warranto.^ 
 
 § 147. Action by Sheriff. — A sheriff who levies an attach- 
 ment, by virtue of the process of attachment can not maintain 
 an action in his own name for the recovery of the debt.'' 
 
 § 148. Action by State or United States. — In the absence 
 of any statute to that effect, the state can not be sued.^ In an ac- 
 tion to annul a patent for land, the state as well as persons having 
 a right to the land may be joined as plaintiffs.^ If the state has 
 no interest in the matter, the action can not be sustained.^" Ac- 
 tions for the recovery of an auctioneer's duty are properly brought 
 in the name of the state." The United States of America can sue 
 in that name in chancery without putting forward any public oflS- 
 cer who could be called on to give discovery on a cross-bill.^^ 
 
 § 149. Sureties as Plaintiffs. — A surety on an undertaking 
 who had paid the amount of his liability, is entitled to recover 
 back the amount. ^^ Co-sureties who pay the debt of their prin- 
 cipal by giving their joint and several notes therefor, must join 
 in a suit against him for reimbursement.^* A surety paying a 
 debt for which several persons are liable in distinct proportions, 
 as principals, must proceed by a several action against each upon 
 an implied assumpsit.^^ 
 
 1 Selden v. Pringle, 17 Barb. 468 ; ' People v. Ryder, 12 N. T. 433 . 
 Hastings v. McKinley, 1 E. D. Smith, affirmed, 2 Kern. 433 ; People v, 
 273 ; McClusky v. Gerhauser, 2 Nev. Walker, 23 Barb. 304. 
 
 47; Curtis V. Sprague, 51 Cal. 239. ' Sublette v. Melhado, 1 Cal. 105, 
 
 2 Parker v. Totten, 10 How. Pr. » People v. Doe G-. 1034, 86 Cal. 220, 
 233; Clark v. Philips 21 Id. 87; ' People v, Morrill, 26 Cal. 336 ; ap- 
 Prall V. Hinchman, 6 Duer, 351. proved in Wilson v. Castro, 31 Id. 427, 
 
 8 Palmer v. Goodwin, 5 Cal. 458 ; >» People v. Stratton, 25 Cal. 244. 
 Hamilton v. McDonald, 18 Id. 128; "State v. Poulterer, 16 Cal, 614; 
 
 Pletoher v. Derrickson, 3 Bosw. 181 ; see State v. Conkling, 19 Id. 509. 
 but see Parker v. Totten, 10 How. '^ United States of America v. Wag- 
 
 Pr. 233 ; White v. Brown, 14 Id. 282 ; ner. Law Eep., 2 Oh. App. Oaa. 582. 
 Olark V. Phillips, 21 Id. 87, « Garr v. Martin, 1 Hilt. 358 ; see 
 
 * Cummings V. Morris, 3 Bosw. 560; Jewitt v. Crane, IB Abb. Pr. 97; Id. 
 
 Potter V. Chadsgy, 16 Abb. Pr. 146 ; 85 Barb. 208, 
 Hiramelman v. Hotaling, 40 Cal. 111. " Doolittle v. Dwight, 2 Met. 561 ; 
 
 6 Cummings v. Morris, 25 N. Y. 625. see Chandler v. Brainard, 14 Pick. 
 
 As to transferee without consideration, 285 ; Appleton v. Bascom, 3 Met. 169 
 flee Killmore v. Culver, 24 Barb. 656. « Ohipman v. Morrill, 20 Cal. 130 
 
76 GENERAL PRINCIPLES. § 150. 
 
 CHAPTER VII. 
 
 PLAINTIFFS IN ACTIONS ARISING FROM TORTS. 
 
 § 150. In General. — Actions in form ex delicto are for inju- 
 ries to the absolute or relative rights of persons, or to personal 
 or real property. The proper party plaintiff in such action is 
 the one who has suffered the injury, he being the real party in 
 interest. This was the rule at common law, and it has remained 
 substantially unchanged by the code. The principal changes 
 made by the code, and by statute in other states, in respect to 
 this class of actions, are those relating to the death or injury to 
 the person of adults or minors, caused by the wrongful act or 
 neglect of another, and those relating to seduction. The code 
 has also made several important changes in regard to parties 
 plaintiff in this class of actions by permitting assignments of 
 certain causes of actions sounding in tort. ' 
 
 § 151. For Injuries to Real Property. — An injury to real 
 property is primarily an injury to the possession, for which the 
 party in possession, unless he hold for another as servant or 
 agent, should bring the action. Where, however, the injury is 
 ot a permanent character, and one affecting the inheritance, the 
 remainderman or reversioner may maintain an action, either for 
 trespass on the case, or to enjoin the further continuance of the 
 wrongful act.^ Thus the equitable owner, in possession, may 
 maintain an action for damage to the freehold. ^ Or he may sue 
 for trespass.^ On the same principle, the owner, redeeming 
 from a sale under execution, may sue for waste intermediate 
 between the sale and his redemption.^ So also an action can be 
 maintained by the mortgagee of real estate to recover damages 
 for wrongful and fraudulent injuries done to the mortgaged 
 property, by which the security of the mortgage has been im- 
 paired.s But several parties can not, in a joint action, recover 
 damage for the use and occupation of two or more tracts of 
 land which they own in severalty.' 
 
 § 152. For Injuries to Personal Property. — In actions 
 for injuries to personal property, or for its conversion, the proper 
 
 * Seepoai, Forms of Complaint: As- * Housee v. Hammond, 39 Barb. 89; 
 
 signeea and Devisees. Safford v. Hynds, Id. 625 ; Pierce v. 
 
 '1 Ch. PI. 62, 63; Van Duesen Hall, 41 Id. 142; Sparks v. Leavy, 19 
 
 p. Young, 29 Barb. 9 ; Lamport v. Abb. Pr. 364. 
 
 Abbott, 12 How. Pr. 340; Ulrich v. * Thomas v. Crofut, 4 Kern. 474. 
 
 McCabe, 1 Hilt. 251. « Robinson v. Russell, 24 Cal. 472. 
 
 » Rood V. N. Y. etc. R. R., 18 Barb. ' Tennant v. Pflster, 51 Oal. 511. 
 80. 
 
§ 154. ACTIONS ARISING FKOM TOETS. 77 
 
 party plaintiff is generally the one having the right to the im- 
 mediate possession, although in proper cases the general owner, 
 whose reversionary interest has been injured, may sue.^ If 
 there are two or more joint owners of the property injured, 
 they should all join.^ 
 
 § 153. In Ejectment. — At the common law, tenants in 
 oommon could not join in an action of ejectment under a joint 
 demise to the normal plaintiff, although the rule was different 
 as to the joinder of joint tenants and coparceners. ^ Under the 
 codes which provide that " all persons having an interest in 
 the subject of the action, and in obtaining the relief demanded, 
 may be joined as plaintiffs," such joinder is permitted * Except 
 in California, Missouri, and Nevada, a joinder of tenants in 
 common less than all is not permitted. They must all sue, or 
 «ach one separately.^ In the states named, however, a joinder 
 of less than all is permitted. ^ Actions of ejectment must be 
 prosecuted in the name of the real party in interest,' and the 
 person having the legal title to the land, and not the one having 
 the equitable title, is such party.^ And to entitle him to sue 
 he musft be out of possession.^ In California, the heir may 
 maintain ejectment when there is no administration. i" The rule 
 that each of several heirs may sue in ejectment for payment of 
 rent without joining the others, applies to the case of tenants in 
 ■common of an incorporeal hereditament of rents charged in fee, 
 and no reversion ; the rents are apportioned in either case.^^ 
 The grantee may bring an action to recover lands conveyed 
 while in adverse possession, in the name of the grantor. ^^ 
 
 § 154. For Injuries to the Person. — Injuries to the per- 
 son, although inflicted by the same act and by the same de- 
 fendants, generally are several, and each person injured should 
 
 1 1 Ch. PI. 61 ; Paddon v. Will- * Woolfork v. Ashby, 2 Mete. (Ky.) 
 lams, 2 Abb. Pr. (N. S.) 88 ; Triscony 288. 
 
 V. Orr, 49 Gal. 612; Harrison v. Mar- * Cruger v.MoLaury, 41 N. T. 219; 
 
 shall, 4 E. D. Smith, 271 ; Wiggirts v. Hasbrouok v. Bunce, 62 Id. 479. 
 
 McDonald, 18 Cal. 126; Summers v, « Wag. Stat. 558, sec. 3; Cal. Code 
 
 Parish, 10 Id. 347; affirmed in Pra- Civ. Proc, 384; Comp. Laws Nev., 
 
 ■der V. Purkett, 13 Id. 591 ; Drowner 1873, sec. 1077 ; Morenhaut v. Wilson, 
 
 V. Davis, 15 Id. 11; McGinn v. 52 Cal. 269. 
 
 Worden, 3 E. D. Smith, 355; Hall v. ' Eitchiev. Dorland, 6 Cal. 33. 
 
 Robinson, 2 Oomst. 293 ; Kellogg v. ' Emeric v. Penniman, 26 Cal. 122 ; 
 
 Church, 3 C. E. 53; Cass v. N. Y.' O'Connell v.Doughertv, 32 Id. 462. 
 
 and N. H. R. E. Co., 1 E. D. Smith, ' Taylor v. Crane, 15 How. Pr. 358. 
 
 522; Robinson v. Weeks, 1 C. R. (N. i" Updegraff v. Trask 18 Cal. 458; 
 
 S.) 311 ; Van Hassel v. Borden, 1 Hilt. Estate of Woodworth, 31 Id. 604 ; 
 
 128. Soto v. Kroder, 19 Id. 87. 
 
 2 Dubois V. Glaub, 52 Pa. St. 238; i' Cruger v. McClaughry, 51 Barb. 
 D' Wolf V.Harris, 4 Mason, 515. 642. 
 
 » 1 Ch. PI. 65. ^ Lowber v. Kelly, 9 Bobw. 494. 
 
78 GENERAL PRINCIPLES. § ln5. 
 
 sue alone. This rule is not universal, as the wrongful act may 
 injure two or more persons in their joint relation, in which case 
 they may join. Thus in action for libel or slander against a 
 partnership the partners may join.^ 
 
 § 155. The Same— Injuries to Married Woman.— At 
 the common law, for injuries to a married woman, the right of 
 action was in the husband, although in certain cases the wife 
 must join. As stated by Chitty, the rule was substantially 
 this: "If the cause of action survive to the wife, she must be 
 joined as plaintiff; as where the injury was before marriage, or, 
 if it was inflicted after marringe, it be of such a nature as to 
 bring personal suffering to the wife, or if it injures her person- 
 ally; as a battery, false imprisonment, or slander by words 
 actionable per se.'^ And the same rule prevailed in regard to 
 injuries to the wife's property. If the cause of action survived 
 to her, she should join, otherwise not.* The code has made 
 sweeping changes in regard to the common-law rules concern- 
 ing the joinder of husband and wife. In California the code 
 provides that " when a married woman is a party, her husband 
 must be joined with her, except — 1. "When the action concerns 
 her separate property, or her right or claim to the homestead 
 property, she may sue alone ; 2. When the action is between 
 herself and her husband she may sue or be sued alone; 3. 
 "When she is living separate and apart from her husband, by 
 reason of his desertion of her, or by agreement in writing en- 
 tered into between them, she may sue or be sued alone." ■* In 
 
 1 1 Ch. PI. 64; Forster v. Lawson, as section 369 of the Oalifornia code, 
 
 11 Moore, 360; Cook v. Batchellor, 3 except that the third subdivision is 
 
 Bos. & Pul. 150; Maitland v. G-old- omitted, and the clause "and iifi no 
 
 ney, 2 East, 426 ; see also note to case need she prosecute or defend by 
 
 Corryton v. Lithebye, 2 Wm. Saund. a guardian or next friend," is added. 
 
 361. Ohio code, section 28, is as follows: 
 
 ' 1 Ch. PI. 73, and note 3 ; Bliss on " Where a married woman is a party, 
 
 Code PI., sec. 27. her husband must be joined with her, 
 
 ' 1 Ch. PI. 75. except that where the action con- 
 
 * Oal. Code Civ. Proc, sec. 369. oerns her separate property, or is be- 
 
 Similar statutes have been passed in tween herself and husband, she may 
 
 all the code states. Such statutes sue or be sued alone ; and in every 
 
 differ somewhat in their details, but such case her separate property shall 
 
 their general results are substantially be liable for any judgment rendered 
 
 the same; Oomp. Laws Nev., sec. therein against her to the same ex- 
 
 1070; Rev. and Comp. Laws of Idaho, tent as would the property of her 
 
 sec. 7. In Iowa a married woman husband were the judgment rendered 
 
 may in all cases sue and be sued, against him ; but in no case shall she 
 
 without joining her husband with be required to prosecute or defend by 
 
 her, to the same extent as if she were her next friend." Formerly the code 
 
 unmarried, and an attachment or of New York (section 114) was the 
 
 judgment shall be enforced by or same as the above section of the Ohio 
 
 against her as if she were a smgle code, omitting the clause in regard to 
 
 woman: Code of Iowa, sec. 2662. The the liability of her separate property; 
 
 Oregon code, section 80, is the same but the new code, passed June 2, 
 
§ 155. ACTIONS ARISING FBOM TORTS. 79 
 
 construing these provisions of the code, it has been held that 
 in actions for injuries to the wife's person or character, she 
 must join with her husband;^ while, for injuries to her sepa- 
 rate estate, whether the same arise from deceit, trespass, or con- 
 version, she may sue alone, or her husband may be joined with 
 her, as the provision authorizing her to sue alone has generally 
 been held permissive, except in those states which absolutely 
 require the action to be" prosecuted by the wife alone.* So also 
 if the cause of action arises from contract the wife may sue 
 alone if it concerns her separate estate, or her husband may 
 join with her in such action. 
 
 There is no statutory limitation as to the kind of actions 
 that may be maintained by the wife when they concern her 
 separate property, or are against her husband. Thus a married 
 woman may sue alone on a promissory note forming a part of 
 her separate estate,^ although such note was given to her by 
 her husband before marriage, and he is the party sought to be 
 held liable in the action.* Nor is it necessary, under this sec- 
 tion, for the wife to sue by a prochein ami.^ In New York a 
 married woman, it seems, can not sue her husband for assault 
 and battery;^ nor for libel or slander;'' nor in ejectment. ^ But 
 she may sue him for alimony, without bringing an action for 
 divorce.* In California, the possession of either of the spouses 
 as to the community property is the possession of the other, 
 
 1876, has the following provision, but the right of action continued in 
 
 section 450: "In an action or special the wife, where it was before. But 
 
 proceeding, a married woman appears, supposing the interest in the action 
 
 prosecutes, or defends, alone or joined terminated as to the husband upon 
 
 with other parties, as if she was the entry of the judgment for divorce, 
 
 single." Minnesota, Kansas, and Ne- there was still the same cause of ac- 
 
 braska have provisions similar to tion in favor of the wife, the real 
 
 those of New York and Iowa. party in interest, which she was en- 
 
 1 Pomeroy's Remedies, sec. 2,S7. titled to prosecute in her own name, 
 
 * Palmer v. Davis, 28 N. Y. 242 ; without joining a person whom she 
 
 Newbery v. Garland, 31 Barb. 121 ; afterwards married, and the most that 
 
 Ackley V. Tarbox, 31 N. Y. 564; Van could be said was that there was 
 
 Maren v. Johnson, 15 Cal. 308; Kays a misjoinder of parties plaintiff from 
 
 V. Phelan, 19 Id. 128; Calderwood v. that time forward; and that objeo- 
 
 Pyser, 31 Id. 33S ; Corcoran v. Doll, tion, not having been taken either by 
 
 32 Id. 90. In Calderwood v. Pyser, demurrer or answer, was waived." 
 
 supra, it was held, " that an action ' Corcoran v. Doll, 32 Cal. 82 ; 
 
 which .concerned the separate prop- Smart v. Comstock, 24 Barb. 411. 
 
 arty of the wife, and in which the * Wilson v. Wilson, 36 Cal. 447. 
 
 husband and wife joined, did not " Kashaw v. Kashaw, 3 Cal. 3 12. 
 
 abate in consequence of a divorce; « Longendyke v. Longendyke, 44 
 
 the parties survived the divorce, and Barb. 366. 
 
 the cause of action survived. The ' Freethy v. Preethy, 42 Barb, 
 
 husband was joined, not because he 641. 
 
 owned the property, but because of * Gould v. Gould, 29 How. Pr. 441. 
 
 his relation to the other plaintiff. ' Galland v. Galland, 38 Cal. 265. 
 His relation ceased by the divorce. 
 
so GENERAL PRINCIPLES. § 156. 
 
 and neither can sue the other for the conversion thereof. > The 
 provision of the section authorizing the wife to be sued alone when 
 living separate and apart from her husband, has no application to 
 a mere temporary absence of the wife from her husband. There 
 must have been an abandonment on the part of the husband or 
 wife, or a separation which was intended to be final. ^ 
 
 § 156. For Injuries to Minor Child or Servant.— Both 
 at the common law and under the code, the master may recover 
 damages for injuries to his servant or minor child. The gist of 
 the cause of action is the loss of the service of the servant or 
 child. Under the code it is provided that a " father, or in case 
 of his death or desertion of his family, the mother, may main- 
 tain an action for the death or injury of a minor child, and a 
 guardian for the death or injury of his ward, when such death 
 or injury is caused by the wrongful act or neglect of another. 
 Such action may be maintained against the person causing the 
 injury or death, or if such person be employed by another per- 
 son, who is responsible for his conduct, also against such other 
 person. "3 Under this section the minor may sue by his guard- 
 ian and recover for the injuries he has sustained ; or the parent 
 may sue and recover for the damages sustained by him. If the 
 minor sue, he can not recover for the special damages sustained 
 by the parent ; and the parent may bring and sustain his action 
 for such special damages, notwithstanding the recovery by the 
 child. If the child do not sue, the parent can not, in the same 
 action, recover his special damages, and also the damages which 
 the child might recover, if he brought suit by his guardian, the 
 action, when brought by the parent, being one of that class 
 which is permitted to be brought without joining the person for 
 whose benefit it is brought, and unless the action, when brought 
 by the parent, is to be regarded as for the benefit of the minor, 
 there would seem to be no obstacle in recovering in an action 
 brought by the child. Ih actions for injuries resulting in death, 
 the measure of damages is left to the sound discretion of the 
 jury. 
 
 § 157. For Seduction. — The codes have made great changes, 
 in some of the states in the rules of the common law in regard 
 to the liabilities for seduction. Section 374 of the California 
 «ode provides that "an unmarried female may prosecute, as 
 plaintiff, an action for her own seduction, and may recover 
 
 'Schulei-v. Savings And Loan Soc, s California Code Civil Proc, soc. 
 1 West Coast liep. 525. 876 
 
 ' Tobin V. Galvin, 49 Cal. 86. 
 
§ 157. ACTIONS ARISING FROM TORTS. 81 
 
 therein such damages, pecuniary and exemplar}'-, as are assessed 
 in her favor." Section 375 provides that " a father, or in case 
 of his death or desertion of his family, the mother, may prose- 
 cute as plaintiff for the seduction of the daughter, and the 
 guardian for the seduction of the ward, though the daughter or 
 ward be not living with or in the service of the plaintiff at the 
 time of the seduction or afterwards, and there be no loss of 
 service." Neither of these sections imposes any restrictions 
 upon the right to maintain the action. The unmarried female, 
 whatever her age, whether living with her father or guardian, 
 or not, may maintain the action. Nor does the right of the 
 father or guardian depend upon the question whether the female 
 is living with or in the service of the father or guardian. Some 
 questions as to the measure of damages, and the right to main- 
 tain several actions for the same seduction, arise which are not 
 free from diflSculties. If the female who has been seduced be 
 at the time a minor, and living with her father, the loss of serv- 
 ice accrues to him. Can she recover for that? May she main- 
 tain the action and recover all other damages, and her father 
 maintain a separate action and recover for the loss of services ? 
 If so, can he recover anything more unless he has incurred ex- 
 penses directly caused by the seduction? If the seduction 
 occurs after she has attained her majority, can the father main- 
 tain any action therefor? If he can, does the recovery go for 
 his benefit, or only for the daughter's? Would a recovery by 
 him bar an action brought by the daughter? Or a recovery by 
 the daughter bar an action brought by the father? Section 3339 
 of the civil code declares, " the damages for seduction rest in 
 the sound discretion of the jury." Section 49 of the civil code 
 provides, "the rights of personal relation forbid : 3. The seduc- 
 tion of a wife, daughter, orphan sister, or servant." The 
 rule in relation to actions for torts is, that "the person who 
 sustains an injury is the person to bring an action for the injury 
 against the wrong-doer. " ^ 
 
 Under the penal code of California seduction is a felony. At 
 common law no action could be sustained for damages in cases 
 where the wrong amounted to a felony. These provisions of 
 the code of civil procedure, however, give the right to maintain 
 the action, but whether the common-law rule that an action 
 based upon a tort can not be maintained by any one who has 
 not suffered legal damages, is changed by these provisions, is 
 not free from difficulty. 
 
 * Dicey on Parties, 330. 
 BsTEE, Vol. I —6 
 
82 GENERAL PKINCIPLES. § 157. 
 
 It is true that formerly the woman who was seduced could 
 not maintain the action, having (on the ground volenti non jU 
 injuri) suffered no legal wrong ; and the person who can bring 
 an action is the parent or master, who sues, in theory, at least, 
 for the wrong to him, viz. : the loss of service. The action, 
 therefore, could be brought by any one who stood in the relation 
 of master to the woman seduced, whether he were merely the 
 master, or the parent, brother, or other near relative of the 
 woman. Nor was it any objection that the woman was of age 
 at the time of the seduction ; aud it has been held, in a case 
 where she lived with her father and acted as his servant, no 
 objection to the action that she was a married woman.^ But 
 service of some sort was held to be absolutely essential. Where, 
 therefore, the daughter was living independently, and support- 
 ing herself and the family, neither the parent nor any one else 
 could maintain an action for her seduction.^ 
 
 Under section 375 of the California code, it is plain that the 
 "service," which was formerly essential, is dispensed with as a 
 foundation of the right of the parent to sue ; and we may, there- 
 fore, conclude that the parent has the right now, independently 
 of any loss of services, to recover to the same extent as formerly. 
 If this be true, it would follow that a recovery by the parent 
 would be a bar to an action brought by the daughter ; and that 
 a recovery by the daughter would be a bar to an action brought 
 by the parent for more than special damages (if any were sus- 
 tained) which from their nature could not have been included 
 in the former recovery. Section 34 of the Oregon code is iden. 
 tical with section 375 of the California code, but section 35 ol 
 the Oregon code restricts the right of an unmarried female to 
 sue for her own seduction to those over twenty-one years of age; 
 and further provides that the prosecution of an action to judg- 
 ment by the father, mother, or guardian, as prescribed in sec- 
 tion Si, shall be a bar to an action by such unmarried female. 
 
 1 Harper v. Luffkin, 7 B. & C. 887. 
 
 a Manly v. Tieli, 29 L. J., 79 C. P., 7 0. B. U. S. 98. 
 
§ 159. ACTIONS ARISING PfiOM OONTKACTS, ETC. 83 
 
 CHAPTER VIII. 
 
 DEPENDANTS IN ACTIONS ARISING FROM CONTRACTS, TORTS, 
 AND IN EQUITABLE ACTIONS. 
 
 § 1.58. At the Common Law, All Persons who were 
 Jointly Liable on the same contract or obligation must be 
 joined in an action thereon. In determining whether such lia- 
 bility was joint, the rule was that "several persons contracting 
 together with the same party for one and the same act shall be 
 regarded as jointly, and not individually or separately, liable, 
 in the absence of any express words to show that a distinct as 
 well as entire liability was intended to fasten on the promisors." ^ 
 This common-law rule has been changed in most if not in all 
 of the states which have adopted codes of procedure. In Cali- 
 fornia, the civil code provides that "when all the parties who 
 unite in a promise receive some benefit from the consideration, 
 whether past or present, their promise is presumed to be joint 
 and several.^ In regard to the joinder of such parties the code 
 provides that any person may be made a defendant who has 
 or claims an interest in the controversy adverse to the plaintiff, 
 or who is a necessary party to a complete determination or set- 
 tlement of the question involved therein. And in an action to 
 determine the title or right of possession to real property which, 
 at the time of the commencement of the action, is in the possession 
 of a tenant, the landlord may be joined as a party defendant," ^ 
 and " of the parties to the action, those who are united in interest 
 must be joined as plaintiffs or defendants ; but if the consent of 
 any one who should have joined as plaintiff can not be obtained, 
 he may be made a defendant;"^ and persons severally liable 
 upon the same obligation or instrument, including the parties 
 to bills of exchange and promissory notes, and sureties on the 
 same or separate instruments, may all or any of them be included 
 in the same action, at the option of the plaintiff." 
 
 § 159. Annulling a Patent to Land. — In an action to set 
 aside a patent to land, the patentee is a necessary party defend- 
 
 ' 1 Oh. PI. 41. see. 2762 ; Oregon, sec. 40 ; Idaho, see. 
 
 ^Civil Code, sec. 1659. 13; Nevada, see. 13; Arizona, sec. 13. 
 
 'California Code C. P., see. 379; 1 * California Code C. P., sec. 382. 
 
 Van Santv. PI. Eq. Pr. 74 ; N. Y. Code, Similar provisions are found in the 
 
 1877, sec. 447 i 1- Van Santv. Pi. 1 19 ; codes of other states. 
 Nash's Ohio PI., sec. 36 ; Laws of Iowa, 
 
84 GENERAL PRINCIPLES. § 160. 
 
 ant. His rights can not be determined or impaired in any side 
 suit between third parties.^ 
 
 § 160. Actions against Assessors.— In Massachusetts, 
 assessors are jointly, as well as severally, liable, for illegally as- 
 sessing and collecting a tax.' 
 
 § 161. For Breach of Contract. — All persons materially 
 interested in the subject-matter of the suit should be made 
 parties, either plaintiff or defendant.^ But in an action for 
 damages for breach of contract, only the par ties to the contract 
 should be joined as defendants.* And in a suit to enforce 
 a covenant not to carry on a certain trade, the original covenantor 
 is not a proper party if he has parted with all interest and 
 is not in fault. ^ It is held in Massachusetts that heirs are 
 jointly chargeable, as assigns on a covenant of their ancestor 
 which runs with the land tliat descends to them.s So, witli 
 guardians severally appointed for different heirs.'' In New York, 
 persons severally liable should not be joined in the same action as 
 defendants.^ 
 
 § 162. Actions against Executors and Administrators. 
 In California the executor and administrator of a decedent is 
 entitled to the possession of the entire estate of the deceased, 
 both real and personal. The code provides that " actions for 
 the recovery of any property, real or personal, or for the pos. 
 session thereof, and all actions founded upon contracts may 
 be maintained by and against executors and administrators 
 in all cases in which the same might have been maintained 
 by or against their respective testators or intestates."^ "Any 
 person, or his personal representatives, may maintain an action 
 against the executor or administrator of any testator . or in- 
 testate who in his life-time has wasted, destroyed, taken, or 
 carried away, or converted to his own use, the goods or chat- 
 tels of any such person, or committed any trespass on the 
 real estate of such person."^" And " in actions for or against 
 executors or administrators, it is not necessary to join those 
 as parties to whom letters were issued, but who have not 
 qualified. "^^ The code also contains minute provisions requir- 
 
 1 Bogga V. Merced Mining Company, ' Morse v. Aldrich, 1 Met. 544. 
 14Cal.279; approved in Yount v. ' Donohoe v. Emery, 9 Met 68. 
 Howell, 14 Id. 469; Pioche v. Paul, » Le Roy v. Shaw, 2 Duer, 626; 
 22 Id. 111. Phalen v. Dingee, 4 E. D. Smith, 379; 
 
 2 Withingtonv.Eveleth, TPiek.lOf-. Spencer v. Wheelook, 11 N. T. Leg. 
 ' Burton v. Lies, 21 Cal. 87 ; affirmed Obs. 829. 
 
 in Caroentler v. Williamson, 25 Id. ° California Code Civ. Proc, sec. 
 
 161 : \f ilson v. Castro, 81 Id. 420. 1582. 
 
 * Barber v. Cazalis, 30 Cal. 92. '» Id., sec. 1584. 
 
 5 Clements v.Welles, L. E.,1 Eq. 200. " Id., sec. 1587. 
 
§ 163. ACTIONS ARISING- FKOM CONTRACTS, ETC. 85 
 
 ing a creditor of a deceased to present his claim against the 
 estate to the executor or administrator of the deceased for 
 allowance before he can maintain an action thereon. ^ In con- 
 struing these provisions of the code, it has been repeatedly held 
 that the general right to sue an executor or administrator was 
 taken away by statute, except in cases where the creditor's 
 claim has been properly presented and rejected.^ If an execu- 
 tor has come into possession of the trust fund or its substi- 
 tute, so that the same can be identified, he can be held to 
 account and charged as trustej, upon the same terms as his 
 testator held the trust, and the relation of trustee and cestui que 
 trust is added to that of executor. ^ In suit for specific perform- 
 ance of testator's contract for sale of lands, the executor of de- 
 ceased shojild join as plaintiff.'* In an action for specific perform- 
 ance against heirs on their ancestor's contract, where damages 
 are demanded in the alternative, the executors or administra- 
 tors should be made parties, or no judgment can be taken for 
 such damages.^ In Nevada a joint action can not be maintained 
 against the survivor and the administrator of a deceased maker 
 of a promissory note: ^ and the same would seem to be the rule 
 in California. The reason assigned for this rule is that the judg- 
 ' ment against the survivor would have to be de bonis propriis, and 
 against the executor or administrator de bonis testatorisJ 
 
 It is a general rule of law tliat no action will lie against an 
 executor or administrator to which his testator or intestate was 
 not liable.^ The estate, represented by a person upon whom the 
 duty of keeping the premises in repair is cast, is no more liable 
 for his neglect of that personal duty than it would be for a fine 
 which might be imposed upon him by a criminal court for an 
 assault and battery committed by him while in possession of 
 such estate.'* In actions for the foreclosure of a mortgage, 
 against the estate of a deceased mortgagor, his heirs are not 
 necessary parties. i" 
 
 § 163. Foreclosure of Mortgages and Mechanics' Liens. 
 In actions to foreclose mortgages, all. parties who own or have 
 
 1 See this subject discussed under » Maples v. Geller, 1 Nev. 233. 
 Forms of Complaints: Actions by Ex- ' Bank of Stockton v. Howland, 42 
 ecutors and Administrators. Cal. 129. 
 
 2 EUisen v. Halleck, 6 Cal. 393; s 2 Williams on Executors, p. 1478 ; 
 Hentsch v. Porter. 10 Id. 559; Eus- Eustace.v. Jahns, 38 Cal. 3. 
 
 tace V. Jahns, 38 Id. 3. » Craton v. Wensiger, 2 Tex. 202; 
 
 ' Lathrop v. Bampton, 31 Cal. 17. Able v. Chandler, 12 Id. 92; Eustace 
 
 * Adams v. Green, 34 Barb. 176 ; v. Jahns, 38 Cal. 3. 
 
 see Cal. Code Civ. Proc, sec. 1582. "• Bailey v. Muebe, 1 West Coast 
 
 sMassie's Heirs v. Donaldson, 8 Rep. 125, 263; 3 Id. 195. 
 
 Ohio, 377. 
 
86 GENERAL PEINCIPLES. § 163. 
 
 an estate in the land to be sold under the decree, and those 
 who, either originally or by assignment, are liable on the mort- 
 gage debt, are necessary parties. It is proper, however, to 
 join as defendants all persons materially interested in the sub. 
 jeet-matter of the controversy.^ Thus the owner of the equity 
 of redemption is a necessary party to a foreclosure suit.* And 
 the same is true of the grantee of the mortgagor.' But where 
 the payment of the mortgage debt is assumed by the grantee, 
 as between himself and the mortgagor, although the grantee is 
 a necessary party, the grantor i^ not.'* In New York and other 
 states the wife of the mortgagor, or of the subsequent gi-antee, 
 is a necessary party, in order to cut off her equity of redemp- 
 tion. ^ An assignee in bankruptcy of the mortgagor is a neces- 
 sary party, and if not joined may sue to redeem. ^ But an 
 assignment in bankruptcy pending suit does not make the 
 assignee a necessary party.'' 
 
 If a mortgage is assigned as a security, the assignor is a neces- 
 sary party. 8 So the assignor of a mortgage who' guarantees 
 its payment. 9 Otherwise if there is no express covenant to pay, 
 though it forms part of the purchase-money. i" 
 
 In a foreclosure of mortgage given by trustees the cestuis que 
 trust ar-e necessary parties. ^^ When an action is brought to fore- ■ 
 close a mortgage securing the payment of a promissory note, 
 the maker and indorser of the note may be joined as defend- 
 ants. ^^ A writ of entry to foreclose a mortgage may be main- 
 
 iLuning v. Brady, lO Cal. 265; Van Neat v. Latson, 19 Barb. 604; 
 Montgomery V. Tutt, Hid. 307; Ty- Stebbins v. Hall, 29 Id. 524; Me- 
 ier V. Yreka Water Co., 14 Id. 212 ; Arthur v. Franklin, 15 Ohio St. 485. 
 DeLeonv. Higuera, 15Id. 483;Good- * Denton v. Nanny, 8 Barb. 618; 
 enow V. Ewer, 16 Id. 461; McDer- Dexter v. Arnold. 1 Summ. 109 ; Gor- 
 mott V. Burke, Id. 580; Burton v. don v. Lewis, 2 Id. 143; Wheeler v. 
 Lies, 21 Id. 87 ; Horn v. Jones, 28 Id. Morris, 2 Bosw. 524 ; Vartie v. Un- 
 194 ; Anthony v. Nye, 80 Id. 401 ; derwood, 18 Barb. 561 ; Mills v. Van 
 Carpenter v. Brenham, 40 Id. 221 ; Voorhies, 20 N. T. 412 ; BiyBenburg 
 Brainard v. Cooper, 6 Seld. 356 ; Peck v. Northrop, 13 How. Pr. 289 ; Brown- 
 V. Mallams, Id. 509; Walsh v. Rut- son v. Gifford, 8 Id. 389 ; Pinckney v. 
 gers Fire Ins. Co., 13 Abb. Pr. 33; Wallace, 1 Abb. Pr. 82; Lewis v. 
 Case V. Price, 17 How. Pr. 348; 9 Smith, 11 Barb. 152; Union Bank v. 
 Abb. Pr. 111. Bell, 14 Ohio St. 200. 
 
 2 Beed v. Marble, 10 Paige, 409 ; « Winslow v. Clark, 47 N. T. 261. 
 
 Dexter V. Arnold, 1 Sumn. 109; Gor- 'Cleveland v. Boerum, 24 N. Y. 
 
 don V. Lewis, 2 Id. 143 ; Griswold v. 618 ; Daly v. Burchell. 13 Abb Pr.. 
 
 Fowler, 6 Abb. Pr. 120; N.Y. Life Ins. N. S., 26i 
 
 and Trust Co. v. Bailey, 8 Edw. Ch. » Kittle v. Van Dyok, 1 Sand. Oh. 
 
 417; Crookev. O'Higffins, 14How. Pr. 76. 
 
 154 ; see Bank of Orleans v. Flagg, 3 ' Bristol r. Morgan, 3 Edw. Ch. 142. 
 
 Barb. Ch. ,316 ; Case v. Price, 9 Abb. " Lockwood v. Benedict, 3 Edw. Ch. 
 
 Pr. 113. 472. 
 
 « Skinner V. Buck, 29 Cal. 253; " Piatt v. Oliver, 2 McLean, S. Ct. 
 
 Heyraan v. Lowell, 23 Id. 106. 267. 
 
 i Drury v. Clark, 16 How. Pr. 424; w Eastman v. Turman, 24 Cal. 382. 
 
§ 164. ACTIONS ARISING FROM CONTRACTS, ETC. 87 
 
 tained against a tenant in possession. i Where infants having an 
 equitable vested remainder in fee, liable to be defeated by their 
 dying in the life- time of the equitable tenant for life, were not 
 made parties, they are not bound by the decree.** And where 
 there are several future and contingent interests, the person 
 who has the first vested estate of inheritance and all other per- 
 sons having prior rights or interests in the premises must be 
 made parties ; though every person having a future or contin- 
 gent interest is not a necessary party. ^ In such suit, where 
 the defendant dies after the commencement of suit, the admin- 
 istrator becomes a necessary party in a petition for decree of 
 «ale of mortgaged premises, if it is sought to have a judgment 
 over against the estate for any deficiency.* 
 
 In general, all incumbrancers prior and subsequent are proper 
 parties defendant, and should be joined if it is desired to secure 
 ■a judgment binding them.^ But an incumbrancer who becomes 
 such pending suit is not entitled to redeem, and therefore need 
 not be made a party.® 
 
 But in California, no person holding a conveyance from or 
 under the mortgagor of the property mortgaged, or having a 
 lien thereon, which conveyance or lien does not appear of rec- 
 ord in the proper office at the time of the commencement of 
 the action, need be made a party to such action ; and the judg- 
 ment therein rendered and the proceedings therein had are as 
 ■conclusive against the party holding such unrecorded convey- 
 ance or lien as if he had been made a party to the action.'' 
 Suits for the foreclosure of a mechanic's lien are in many re- 
 spects analogous to those in ordinary foreclosure. All parties 
 necessary to enable the conrt to do complete justice may be 
 ■ joined.'' 
 
 § 164. Action for Fraud. — ^In an action to obtain relief 
 Ifrom a judgment fraudulently procured, the attorney at law 
 <iharged with being a party to the fraud should be joined with 
 "the client.^ So partners may be jointly sued for fraudulently 
 
 1 Fales V. Gibbs, 5 Mason C. 0. 462. • Cook v. Mancius, 5 Johns. Ch. 89 ; 
 
 ' Williamson v. Field, 2 Sand. Ch. Loomis v. Stuyveaant, 10 Paige Ch. 
 
 ^33. 490; People's Bank v. Hamilton Mfg. 
 
 3 Nodine v. Greenfield, 7 Paige Co., 10 Id. 481 ; see Bishop of Win- 
 
 -Ch. 544. Chester v. Paine, 11 Ves. 194. 
 
 * Belloo V. Rogers, 9 Cal. 123; see ' Code C. P., sec. 726. 
 
 Fallon V. Butler, 21 Id. 24. * Sullivan v. Decker, 1 E. D. Smith, 
 
 » Filney v. Bank of United States, 699 ; Lowber v. Childs, 2 Id. 577 ; 
 11 Wheat. S. Ct. 304 ; Matcalm v. Foster v. Skidmore, 1 Id. 719 ; Kay- 
 Smith, 6 McLean S. Ct. 416 ; Ens- lor v. O'Connor, Id. 672. 
 ■worth V. Lambert, 4 Johns. Ch. 605 ; ' Crane v. Hirschfelder, 17 Cal, 
 JEaines v. Beach, 3 Id. 461. 467. 
 
88 GENERAL PEINCIPLBS. § 165. 
 
 recommending an insolvent perso];i as worthy of credit.^ Or 
 for deceit in a sale, if both knowingly make false representa- 
 tions, though only one was interested in the expected fruits of 
 the fraud.^ So in an action to set aside a conveyance as made 
 without consideration and in fraud of creditors, the fraudulent 
 grantor is a necessary party defendant.^ 
 
 § 165. In Ejectment. — The general rule is, that ejectment 
 can be maintained only against the real party in possession, 
 although he is not personally on the premises, but may be in 
 possession through servants and employes.'* A mere party, in 
 charge, for others, is not an occupant.^ A railroad company 
 who have simply laid rails on a public highway are not occu- 
 pants. ^ But if the landlord be joined with the tenant as de- 
 fendant in an action of ejectment, judgment, if for the plaintiff, 
 must be against both.'' 
 
 In ejectment against mining claims, it is not necessary to in- 
 clude as defendants those holding other undivided interests.^ 
 But a landlord may come in and defend in an action in eject- 
 ment, where summons is served on a tenant, by a proper show- 
 ing, even after a default is taken. The statute should in such 
 cases be construed so as to dispose of actions of this character 
 as nearly on their merits as possible, and without unreasonable 
 delay, regarding mere technicalities as obstacles to be avoided.* 
 A landlord may defend in the name of the tenant, but not in 
 his own name.i" Persons renting different apartments in the 
 same house may be joined as defendants.^! And the same is 
 true of parties claiming title, accompanied by acts of owner- 
 ship, to unoccupied premises. ^^ And any number may be made 
 defendants, subject to their right to answer separately.!^ 
 
 § 166. Married Woman. — In California, where a mai-- 
 ried woman is a party, her husband must be joined with her, 
 
 1 Patten v. Gurney, 17 Mass. 182. ' Roland v. Kreyenhagen, 18 Cal, 
 
 2 Stiles V, White, 11 Met. 856. 455 ; see also Ried v. Calderwood, 22 Id, 
 » Gaylords v. Kelshaw, 1 Wall. (U. 465; Barrett v. Graham, 19 Id. 632; 
 
 8.) 81. affirmed in Bailey v. Taafe, 29 Id. 424, 
 
 * Polaok V. Mansfield, 44 Cal. 86 ; " Dimicfe v. Deringer, 82 Cal. 488 ; 
 see also Valentine v. Mahoney, 87 Id. see also Valentine v. Mahoney, 87 Id, 
 889, where the question is discussed 893 ; Hussman v. Wilke, 50 Id. 250 
 as to the applicability of section 13 Garner v. Marshall, 9 Id. 270. 
 
 of the practice act (Cfode C. P., sec. " Pearce v. Golden, 8 Barb. 522. 
 
 379, first clause) to the action of " Garner v. Marshall, 9 Cal. 268: 
 
 ejectment. Taylor v. Crane, 15 How. Pr. 868. 
 
 ' Hawkins V. Reiohert, 28 Cal. 584 ; i^ winans v. Christy, 4 Cal. 70; 
 
 People V. Ambrecht, 11 Ab. Pr. 97. Ritchie v. Dorland, 6 Id. 88 ; Ellis v. 
 
 • Redfield v. ITtica & Syracuse R. .leans, 7 Id. 417 ; Curtis v. Sutter, 15 
 R. Co., 25 Barb. 54. Id. 264; Marion v. Polger, Id. 276; 
 
 ' Codec. P., sec. 879. Leese v. Clark, 28 Id. 35; Fosgate v. 
 
 ' Waring v. Crow, 11 Cal. 866. Herkimer etc. Hyd. Co. 12 Barb. 852. 
 
§ 165. ACTIONS AEISING FKOM CONTRACTS, ETC. 89 
 
 except : 1 . When the action concerns her separate property, or 
 her right or claim to the homestead property, she may sue 
 alone; 2. "When the action is between herself and her hus- 
 band, she may sue or be sued alone; 3. When she is living 
 separate and apart from her husband by reason of his desertiou 
 of her, or by agreement in writing entered into between them 
 she may sue or be sued alone.^ If a husband and wife be sued 
 together, the wife may defend for her own right, and if the hus- 
 band neglect to defend, she niay defend for his right also.* 
 
 For any fraud or deceit practiced by the defendant, whether 
 the injury were wrought through the form of a contract or not, 
 affecting the common property, the remedy is by the husband 
 alone. 3 The husband of a married woman is properly joined 
 with her as a party defendant in an action upou a partnership 
 obligation contracted by the wife and third persons as partners 
 previous to the marriage and while she was a feme sole.* The 
 wife is an improper party to a suit brought to recover money 
 loaned to her to complete the amount of purchase money for a 
 lot of ground, the deed of which was executed to her, but 
 which became common property, and which pur chase was after- 
 wards ratified by the husband. There could be no personal 
 judgment against the wife.^ In California, the wife mn}' appear 
 in and defend an action separately from her husband.^ Where 
 the defense of the wife is a special one, she can defend for her 
 own right as well when sued jointly as if the trial was separate.'' 
 To enable her to defei\d in her own right, she must possess as 
 defendant the rights of a feme sole.^ In an action pertaining to 
 
 1 Code C. P.. sec. 370. action separately from her husband; 
 
 ' Code C. P., sec. 871 ; Laws of she thereibre possesses, as defendant, 
 
 Iowa, see. 2774 ; Idaho, sec. 8 ; Ne- all the rights of a feme sole, and is 
 
 vada, sec. 29 ; N. T. Code, 1877, sec. 8 ; able to make as binding admissions in 
 
 Ohio, sec. 29; N. Y. Code, 1877, sec. writing as other parties: Alderson v. 
 
 450. As to what is separate prop- Bell, 9 Cal. 321. The statute confers 
 
 erty, see California Civil Code, sees, only a privilege which in many in- 
 
 162, 163. In actions brought uoder stances it may be important for the 
 
 subdivision second of this section, the wife to assert for the protection of 
 
 test is simply to ascertain if the suit her interests, and in the exercise of 
 
 is between her and her husband ; and which the fullest liberty should be 
 
 this being found in the affirmative, accorded to her : Van Maren v. John- 
 
 the necessity of introducing other son, 15 Cal. 311. 
 
 parties can not affect her right: ' Barrett v. Tewksbury, 18 Cal. 336. 
 
 Kashaw v. Kashaw, 3 Cal. 321. In * Keller v. Hicks, 22 Cal. 457. 
 
 actions brought under subdivision 3, * Althof v. Conheim, 38 Cal. 230. 
 
 a temporary absence does not come * Alderson v. Bell, 9 Cal. 315; ap- 
 
 within the meaning of the act. There proved in Leonard v. Townsend, 26 
 
 must have been an abandonment on Id. 445. 
 
 the part of the husband or wife, or a ' Deuprez v. Deuprez, 5 Cal. 387. 
 
 separation which was intended to be * Alderson v. Bell, 9 Cal. 315 ; 
 
 final : Tobin v. Galvin, 49 Cal. 36, 37. Leonard v. Townsend, 26 Id. 445. 
 The wife can appear in and defend an 
 
90 GENERAL PRINCIPLES. § 167. 
 
 her property as sole trader under the act of 1852, the husband 
 need not be joined.^ 
 
 The husband is properly joined with the wife in an action 
 upon an obligation contracted by the wife previous to marriage.' 
 In a suit to foreclose a mortgage, and set aside a fraudulent 
 conveyance of property by the husband to the wife, the wife 
 was properly joined with the husband as a defendant.^ And in 
 a foreclosure of a husband's mortgage for the purchase money 
 of the wife's separate estate, both must be joined.'* So, also, 
 where the wife executes a mortgage with her husband, ^ So, in 
 partition suits, the wife must be joined with her husband as de- 
 fendant.8 In forcible entry and detainer, also, the husband is 
 properly joined in the action.' So, also, where the homestead 
 is involved, the wife must be joined as defendant in certain 
 oases. ^ For the torts of the wife, committed out of the presence 
 of the husband, the latter must be joined. ^ 
 
 § 167. Actions by Infants. — "When an infant is a party, 
 he must appear either by his general guardian, or by a guardian 
 appointed by the court in which the action is prosecuted, or by 
 a judge thereof. A guardian may be appointed in any case, 
 when it is deemed by the court in which the action is prose- 
 cuted, or by a judge thereof, expedient, to represent the infant 
 in the action, notwithstanding he may have a general guardian, 
 and may have appeared by him.i" When the infant is defendant, 
 a guardian will be appointed upon the application of the infant, 
 if he be of the age of fourteen years, and apply within ten days 
 after the service of the summons ; if he be under the age of 
 fourteen, or neglect so to apply, then upon the application of 
 
 1 Guttman v. Scannell, 7 Cal. 465. ' See Howard v. Valentine, 20 Cal. 
 For other authorities see Dunderdale 282. 
 
 V. Grymes, 16 How. Pr. 195 ; Eouillier • Sargent v. Wilson, 5 Cal. 504 ; ap- 
 
 V. Wernicki, 3 E. D. Smith, 310 ; Avo- proved in Moss v. Warner, 10 Id. 297 ; 
 
 gadro V. Bull, 4 Id. 885 ; Freeman v. Revalk v. Kraemer, 8 Id. 66 ; Marks 
 
 Orser, 5 Duer, 477. And she must v. Marsh, 9 Id. 96 ; Horn v. Volcano 
 
 be sued alone : McKune V. McGarvey, Wat. Co., 18 Id. 70; Anthony v. Nve, 
 
 •6 Cal. 497; approved in Guttman v. 30 Id. 401. 
 
 Scannell, 7 Id. 455; and Camden v. 'Anderson v. Hill, 63 Barb. 288; 
 
 Mullen, 29 Id. 564. Peak v. Lemon, 1 Lans. 295; Tait v. 
 
 2 Keller v. Hicks, 22 Cal. 457. Culbertson, 57 Barb. 9 ; Rowing v. 
 
 3 ICohner v. Ashenauer, 17 Cal. 579. Manley, Id. 479; 49 N. Y. 192; Brazil 
 * Mills V. Van Voorhies, 20 N. Y. v. Moran, 8 Minn. 236; Ball v. Ben- 
 
 412 ; 10 Abb. Pr. 152 ; Rusher v. Mor- nett, 21 Ind. 427 ; Turner v. Hitch- 
 
 ris, 9 How. Pr. 266. cock, 20 Iowa, 310; Musselman v. 
 
 5 Anthony v. Nye, 30 Cal. 401 ; Galligher, 32 Id. 383 ; McElfresh v. 
 
 ■Conde v. ShepcrJ, 4 How. Pr. 76; Kirkendall, 86 Id. 224; Lusev. Oaka, 
 
 Conde v. Nelson, 2 Code R. 58. Id. 662 ; Curd v. Dodds, 6 Bush, 681 ; 
 
 " De Uprey v. De Uprey, 27 Cal. Coolidge v. Parris, 8 Ohio St. 594. 
 
 829 ; Ripple v. Gilborn, 8 How. Pr. »» Cal. Code C. P., sec. 372. 
 460 ; Tanner v. Niles, 1 Barb. 563. 
 
§ 172. ACTIONS ARISING FROM CONTEACTS, ETC. 91 
 
 any other party to tbe action, or of a relative or friend of tlie 
 infant.^ 
 
 § 168. For Infringement of Patent.— In selling an article 
 ■wliicli infringes upon a patent, tlie agent may be joined with the 
 manufacturer as a party defendant in an action against them as 
 trespassers.^ 
 
 § 169. Injunction. — In an action to enjoin the issuance of 
 bonds by fund commissioners, it is necessary that some of the 
 parties to whom bonds are to be issued should be parties de- 
 fendant.3 In a bill of peace to restrain vexatious litigation, al- 
 though some of the parties be mere accommodation grantees, 
 they have a right to be heard at law in their own defense.^ 
 Where one of the defendants in a joint judgment sues to have 
 the judgment perpetually enjoined, his co-defendants should be 
 made parties to the action. ^ 
 
 § 170. Injuries Caused by Negligence. — ^In an action to 
 recover for damage done to the property of the plaintiff by 
 reason of the breaking away of a dam built by conti-actors, when 
 the employers exercise no supervision, give no directions, furnish 
 no materials, and have not accepted the work, the contractors 
 alone are liable.^ After the acceptance of the work, the owner is 
 also liable for damage resulting from faulty construction.'' Com- 
 mon carriers, for loss of goods, may be sued jointly or sev- 
 eral ly.^ 
 
 § 171. Action for Legacy Charged on Land. — Pur- 
 chasers of land in unequal portions, charged with the payment 
 of a legacy, must be joined in an action for the legacy.* 
 
 § 172. Actions against Partners. — In California partners 
 may be sued by their common name, whether It comprises the 
 names of the persons associated or not.^" In such case the 
 statute provides that the judgment may run against the joint 
 and individual property of the party served, and against the 
 joint property of the partner not served. The constitutionality 
 of the statute, so far as it attempts to impose a liability upon the 
 person or property of the partner not served, has been more 
 than doubted.^ But a party can only be bound on a note 
 
 1 Cal. Code C. P., sec. 373, subdiv. Pratt v. Lick, 38 Id. 691 ; O'Hale v. 
 2; N. Y. Code, sec. 116; Laws of Ore- Sacramento, 48 Id. 212. 
 
 gon, sec. 27. ' Boswell v. Laird, 8 Cal. 469 ; Fan- 
 
 2 Buck V. Cobb, 9 Law Kep. 545; joy v. Seales, 29 Id. 249. 
 
 see Bryoe v. Dorr, 3 McLean, 582. 8 Mcintosh v. Ensign, 28 N. Y. 169 ; 
 
 3 Hutchinson v. Burr, 12 Cal. 103 ; af- Merrick v. Gordon, 20 Id. 93. 
 firmed in Patterson v. Yuba Co.,Id.l05. ' Swasey v. Little, 7 Pick. 296. 
 
 * Knowles v. Inches, 12 Cal. 212. " Cal. Code Civil Proc, sec. 33S j 
 
 5 Gates V. Lane, 44 Cal. 392. "Welch v. Kirkpatrick, 30 Cal. 202. 
 
 6 Boswell V. Laird, 8 Cal. 469; Du " Tay v. Hiiwley, 39 Cal. 93. 
 
92 GENERAL PRINCIPLES. § 173. 
 
 executed in a fli-m name, who is actually a member of the firm 
 executing the same, or has held himself out as a member so as 
 to give the firm credit on his responsibility. So it would seem, 
 dormant partners not disclosed need not be joined as defend- 
 ants. ^ All partners are liable for fraudulent representations of 
 one made in the course of partnership business. ^ So a 
 partner is liable to third persons for injuries occasioned by 
 negligence, if committed in the course of the partnership busi- 
 ness. ^ In suit to take an account and dissolve a mining 
 partnership, all those owning interests are necessary parties 
 defendant.'* A partner may be sued at law by his copartner or 
 one who has been such, where the balance has been ascertained 
 by the act of all the partners, and agreed to as constituting 
 such balance. 5 
 
 § 173. Actions against Principal and Agent. — A prin- 
 cipal, though himself innocent, is liable for fraud or mis- 
 conduct of the agent acting within the scope of his authority.^ 
 But not in matters beyond that scope.'' And where the 
 principal is known, he alone is liable.^ But an agent may ren- 
 der himself personally liable by not disclosing the name of his 
 principal.^ If on the face of an instrument not under seal, ex- 
 ecuted by an agent with competent authority, by signing his 
 own name simply, it appears that the agent executed it in be- 
 half of the principal, the principal and not the agent is bound. i* 
 Where a party makes a purchase from an innocent agent, who 
 afterwards parts with the money of his principal, and the pur- 
 chase avails the purchaser nothing, no legal right of complaint 
 will lie against the agent. i' The principal and agent are jointly 
 liable for an injury caused by negligence of the agent." 
 
 1 North V. Bloss, 30 N. Y. 374 ; Co., 20 Barb. 493 ; Thomas v. Win- 
 Wood V. O'Kelley, 8 Cuah. 406 ; Lord Chester, 2 Seld. 897. 
 
 V. Baldwin, 6 Pick. 852; see also N. ' N. Y. Life Ina. and Triwt Co. v. 
 
 Y. Dry Doclt Co. V. Treadwell, 19 Beebe, 8 Seld. 361; see also Meehan- 
 
 Wend. 525 ; Clarkson v. Carter, 3 ics' Bank v. N. Y. and N. H. K. E. 
 
 Cow. 84; Clark v. Miller, 47 Barb. Co., 8 Kern. 699 ; 4 Duer, 570 
 
 628; Mitchell T. Doll, 2 Har. & G. * Conro v. Fort Henrv Iron Co., 12 
 
 159 ; Hurlbut v. Post, 1 Basw. 28. Barb. 27. 
 
 2 Griswold v. Haven, 25 N. Y. 595. ' Nason v. Cockroft, 3 Duer, 866 ; 
 « Cotter V. Bettner, 1 Bosw. 490. Cabre v. Sturgess, 1 Hilt. 160 ; Blake- 
 * Settembre v. Putnam, 30 Cal. 490. man v. Mackay, Id. 266. 
 
 »EosB V. Cornell, 45 Cal. 183. As '" Haskell v. Cornish, 18 Cal. 45; 
 
 to partnerships, general and special, affirmed in Shaver v. Ocean Mining 
 
 the powers and authority of partners, Co., 21 Id. 45; Hall v. Crandall, 29 
 
 their mutual obligations and liability, Id. 571; Love v. S. JS. L. W and M 
 
 etc., see Civil Code Cal., sees. 2424- Co., 32 Id. 654. 
 
 ^■^.^2; . „ „ . " ^"S«'^ ^- Heatly, 5 Cal. 136. 
 
 » Dwmelle v. Hennquez, 1 Cal. 392; " Phelps v. Wait, 30 N. Y 78- Cal. 
 
 Adams v. Cole, 1 Daly, 147; Hunter C. C, sec. 2388; and generally in rela- 
 
 v. Hudson River Iron and Machine tion to agency, see tit. 9, C. C. of CaU 
 
§ 176. ACTIONS ARISING FROM CONTRACTS, ETC. 93 
 
 § 174. Actions for Trespass. — Generally a trespass coiu- 
 mitted by several persons acting together creates a several lia- 
 bility ; but if the trespass is joint, all the trespassers may be 
 joined. 1 A justice of the peace who issues an execution com- 
 manding the arrest of the judgment debtor, and the attorney 
 who procures the execution to be issued, in a case in which both 
 know that the law prohibits an arrest in such action, are jointly 
 liable to the debtor in trespass.* Trespass lies against a mu- 
 nicipal corporation. 3 
 
 § 175. Actions against Trustees. — In an action to carry 
 out a trust deed, or against a trustee, for breach of trust, all the 
 cestuis que trust are necessary parties.'* But not in an action to 
 set aside a trust deed.^ A party not a trustee may be joined or 
 not, at the option of the plaintiff." In an action by one of sev- 
 eral certuis que trust to declare and enforce an implied trust, all 
 ■who claim to be entitled to a portion of the trust estate are 
 proper parties defendant.'' But when such share is ascertained, 
 . €ach claimant may sue alone ;8 or for breach of trust.^ Per. 
 sons holding funds, and who have always dealt .with them as if 
 they were trust funds, are liable for losses occasioned by im- 
 proper investments, t'l-^ngh they did not in fact know who the 
 cestuis que trust were ^^ So, where A. was indebted to plaintiff, 
 and conveyed his pi op rty to B., to be disposed of for his ben- 
 efit, and had drawn an order in favor of plaintiff on B., who 
 had accepted it, and B. subsequently conveyed a portion of the 
 property to A., without consideration, it was held that A. was a 
 proper and necessary party to the action.^ 
 
 § 176. Persons Severally Liable on Same Obligation 
 or Instrument. — ^Persons severally liable upon the same obli- 
 gation or instrument, including the parties to bills of exchange 
 and promissory notes, and sureties on the same and separat" 
 instruments, may all or any of them be included in the same 
 
 1 Sumner v. Tileston, 4 Pick. 308 ; ^ Eussell v. Lasher, 4 Barb. 2.32 ; 
 
 Creed v. Hartman, 29 N. Y. 591 ; Wheelerv. Wheedon, 9 How. Pr. 298 ; 
 
 Kasson v. The People, 44 Barb; 347; Scudder v. Voorhis, 5 Sandf. 271;' see 
 
 Woodbridge v. Camor, 49 Me. 353. also Wallace v. Baton, 5 How. Pr. 99. 
 
 That they may be sued jointly, see * Bateman v. Margerison, 6 Hare 
 
 King V. Orser, 4 Duer, 431 ; Water- 499. 
 
 bury V. Westervelt, 5 Seld. 698 ; Her- ' Jenkins v. Frink, 30 Cal. 586 ; 
 
 ring V. Hoppock, 3 Duer, 20; Marsh West v. Randall, 2 Mason, 181. Arm- 
 
 V. Backus, 16 Barb. 488. • strong v. Lear, 8 Pet. 52 ; General 
 
 i* Sullivan v. Jones, 2 Gray, 570. Mutual Insurance Company v. Ben- 
 
 s Allen V. Decatur, 23 111. 332. son, 5 Duer, 168. 
 * Ool^rove v. Tallmadge, 6 Bosw. . ^ Smith v. Snow, 8 Madd. 10. 
 
 289 ; Bishop- v. Houghton, 1 E. D. ' Perry v. Knott, 5 Beav. 293. 
 
 Smith, 566 ; Bank of British N.' A. v. i° Ex parte Norris, L. R., 4 Oh. 280. 
 
 Suydam, 6 How. Pr. 379 ; Johnson v. i' Lucas v. Pavne, 7 Cal. 92 ; Shaver 
 
 Snyder, 8 Id. 498. v. Brainard, 29 Barb. 25. 
 
94 GENERAL PRINCIPLES. § 176. 
 
 action at the option of the plaintiff. ^ This section applies 
 only to written obligations.^ It applies to bonds, as well as 
 bills of exchange and promissory notes f and to cases of joint 
 and several contracts.* 
 
 Persons jointly and severally liable may be sued together or 
 separately, at the option of the plaintiff.^ But in actions on 
 joint and several obligations, an administrator can not be joined 
 with the survivor, because against one the judgment would be 
 de bonis testatoris, and against the other de bonis propriis.^ To 
 create a several liability, express words are necessary.'' In New 
 York, it seems the plaintiff may sue one or all of the obligors 
 of a joint and several bond ; but in strictness of law, he can not 
 sue an intermediate number.* The practice is, however, differ- 
 ent in California, where one or all of any intermediate number 
 may be made defendants, at the option of the plaintiff.^ So, 
 also, in cases of a promissory note, and mortgage to secure the 
 same.i" Although the several parties to a bill or note may be 
 sued in one action, yet their being so sued does not make them- 
 jointly liable,!^ or joint debtors.'^ The common-law rule, that 
 where defendants are sued on a joint contract, recovery must 
 be had against all or none, is modified by the code.^^ But one 
 of two joint debtors, not served with process, is not a proper 
 party defendant in an action upon the judgment against the 
 party on whom service of process was made.'* So, where joint 
 debtors reside in different states, they may be sued separately.^ 
 
 1 California Code C. P., sec. 383; Jones, 11 How. Pr. 569; De Ridder v. 
 N. Y. Code, sec. 120 ; Iowa, sec. Scliermerhorn, 10 Barb. 638 ; Snow v. 
 2764 ; Oregon, sec. 36 ; Idaho, sec. 15 ; Howard, 25 Id. 55. 
 
 Arizona, sec. 15. * May v. Hanson, 6 Cal. 642. 
 
 2 Spencer v. Wheeloclc, 11 Leg. ' Brady v. Reynolds, 13 Cal. 31. 
 Obs. 329 ; Tibbits v. Percy, 24 Barb. 39. 8 Leroy v. Shaw, 2 Duer, 626 ; Minor 
 
 8 People V. Hartley, 21 Cal. 585 ; v. Mechanics' Bank of Alexandria, 1 
 
 People V. Love, 26 Id. 530; Brainard Pet. S. Ct. 46 ; Amis v. Smith, 16 Id. 
 
 V. Jones, 11 How. Pr. 569. As to 303; Brainard v. Jones, 11 How. Pr. 
 
 when the bondholders of bonds issued 569; Loomis v. Brown, 16 Barb. 325; 
 
 by a county should be made parties Phalen v. Dingee, 4 E. D. Smith, 379; 
 
 defendant in suit against the county, Allen v. Fosgate, 11 How. Pr. 218. 
 
 see Hutchinson v. Burr, 12 Cal. 103; • Lewis v. Ularkin, 18 Cal. 400; see 
 
 Patterson v. Supervisors of Tuba Co., also. People v. Love, 25 Id. 620 ; Code 
 
 12 Id. 106. In Oregon, the sureties 0. P., sec. 383. 
 
 on an executor's bond can not be '" Eastman v. Turman, 24 Cal. 379. 
 
 sued until after default in the probate " Alfred v. Watkins, 1 Code E. (N. 
 
 court: Hamlin v. Kenney, Laws of S.) 343. 
 
 Or., 1866, p. 55. " Kelsey v. Bradbury, 21 Barb. 631 ; 
 
 * Humphreys v. Crane, 5 Cal. 173 ; Farmers' Bank v. Blair, 44 Id. 642. 
 
 Stearns y. Aguirre, 6 Id. 176. i' California Code Civil Proc, sec 
 
 SEnysv.Donnithorne, 2Burr, 1190; 989; People v. Frisbee, 18 Cal. 402; 
 
 Eccleston v. Clipsham, 1 Saund. 153 ; Lewis v. Clarkin, 18 Id. 399. 
 
 Alfred v. Watkins, 1 C. R. 348 ; Kel- »' Tay et al. v. Hawley, 3» Cal. 93. 
 
 sey V. Bradbury, 21 Barb. 531 ; Parker i» Brown v. Birdsall, 29 Barb. 649. 
 V. Jackson, 16 Id. 83; Brainard v. 
 
§ 176. ACTIONS AEISIiTG FKOX CONTRACTS, ETC. 
 
 9S 
 
 It seems that different parties, liable for tne same sum, but 
 under different contracts, can not be joined in tlie same action. ^ 
 So held in New York, as to a guaranty written under a promis- 
 sory note. 2 And that the guarantor can not be sued in the 
 same action with the maker.^ It was there held, also, that the 
 liability of a purchaser and his guarantor is several.^ So, also, 
 of a lessee and his surety. ^ 
 
 1 Allen V. Fosgate, 11 How.Pr. 218; 
 Glencoe Mut. Ins. Co. v. Harold, 20 
 Barb. 298 ; De(Eidder v.Scherraerhorn, 
 10 Id. 6.38 ; see, also, Brown v. Curtiss, 
 2 Comst. 225 ; Barker v. Cassidy, 16 
 Barb. 177; White v. Low, 7 Id. 204. 
 
 2 Brewster v. Silence, 4 Seld. 207; 
 affirming S. C, 11 Barb. 144; Kelsey 
 V. Bradbury, 21 Id. 440; Alfred v. 
 "Watkins, 1 C. K. (N. S.) 343 : Draper 
 
 V. Snow, 20 N. T. 331 ; Church v. 
 Brown, 29 Barb. 486. 
 
 ' Allen V. Fosgate, 11 How. Pr. 
 213. 
 
 * Leroy v. Shaw, 2 Duer, 526 ; Spen- 
 cer V. Wheelock, 11 L. 0. 329; but see 
 Cal. Code C. P., sec. 383, and Civil 
 Code, title "Negotiable Instruments." 
 
 6 Phalen v. Dingee, 4 E. D. Smith, 
 879. 
 
PAKT seco:n^d. 
 ANALYSIS OF PLEADINGS. 
 
 CHAPTER I. 
 
 OF PLEADINGS IN GENEBAL. 
 
 § 177. Pleadings are deflaed by the Code of Civil Procedure 
 of California as follows : 
 
 The pleadings are the formal allegations by the parties of 
 their respective, claims and defenses, for the judgment of the 
 court. 
 
 The forms of pleading in civil actions, and the rules by which 
 the sufficiency of the pleadings is to be determined, are those 
 prescribed in this code. 
 
 The only pleadings allowed on the part of the plaintiff are : 
 
 1. The complaint ; 
 
 2. The demurrer to the answer. 
 And on the part of the defendant : 
 
 1. The demurrer to the complaint ; 
 
 2. The answer.^ 
 
 The definition given by Chitty^ is this: "Pleading is the 
 statement in a logical and legal form of the facts which consti- 
 tute the plaintiff's cause of action, or the defendant's ground of 
 defense ; it is the formal mode of alleging that upon the record, 
 which would be the support of the action or the defense of the 
 party in evidence." 
 
 § 178. Object of Pleading — The Issue.— The object of 
 pleading is the production of a material issue between the par- 
 
 ' Sees. 420-422. Similar provisions the answer is required in certain 
 are found in the codes of all the states, cases, 
 except that in some states a reply to ^1 Ch. PI. 23S. 
 ESTBE, Voi,. 1—7. 97 
 
98 ANALYSIS OF PLEADINGS. § 179. 
 
 ties ; that is, a material matter of law or fact affirmed upon the 
 one side and denied upon the other, and which is the matter 
 disputed between the parties and to be tried or determined by the 
 court or jury. Issues are of two kinds: of law and of fact. An 
 issue of law is raised by a demurrer, which admits the facts stated 
 in the pleading demurred to, and denies that the law applicable 
 to those facts entitles the plaintiff to maintain his action, or that 
 the facts stated in the answer constitute a defense ; or points out. 
 some defect which in law ought to prevent the party whose plead- 
 ing is demurred to from obtaining the relief sought in his com- 
 plaint or answer. As will be seen hereafter, these defects must 
 appear upon the face of the pleading demurred to. An issue of 
 fact is raised: 1. By a denial in the answer of facts stated 
 in the complaint; and, 2. By operation of the code where 
 new matter in the answer is considered as denied by the 
 plaintiff. 1 
 
 § 179. Forms of Action Abolished. — Under the code of 
 California, 2 and in other States which have adopted a similar 
 system of procedure, only one form of civil action exists. By 
 this is meant that the formal distinctions between the different 
 common-law actions, assumpsit, debb, covenant, trespass, etc., 
 and also between actions at law and in equity, are swept away.' 
 Formerlj' it was necessary to decide what form of action must be 
 resorted to in order to obtain the relief justified by the facts, 
 and this form of action must be stated in the writ, though briefly, 
 as that the defendant is required to answer the plaintiff " in 
 an action upon promises," or "or in an action of debt," etc., 
 and this form of action must be adhered to in the declaration ; 
 so that the pleader was required to decide before he had the 
 writ issued what his form of action must be, and in many cases 
 it was not easy to determine what the form should be ; and the 
 consequences of a mistake were serious. So he was required to 
 determine at his peril whether he must resort to a court of law 
 or a court of equity. But now tliese formal distinctions are 
 taken away, and the pleader is required to state the facts which 
 constitute his cause of action ; and whatever relief those facts, 
 beingestablished, may entitle him to, he will obtain whether 
 legal or equitable, or both, or whether they would have made a 
 case in assumpsit, debt, case, or other form of common-law 
 action. It was held by the supreme court of California, that 
 
 1 The code of Ohio and some other ' California Code of Civil Proced- 
 
 Btates requires a replication by the ure, sec. 307. 
 
 plaintiff to new matter set up in the » Miller v. Van Tassel, 24 Cal. 458. 
 answer. 
 
§ 179. PLEADINGS IN GENERAL. 99 
 
 " under the code of practice, we have but one system of rules 
 respecting pleadings, which governs all cases both at law and in 
 equity. These rules are clearly laid down in the practice act ; 
 and although in construing that act we resort to former ad- 
 judications, and the old and well-established principles of 
 pleading at common law, yet the former distinctions which 
 existed between common law and equity pleadings no longer 
 exist."! 
 
 In the New York Code of Procedure, section 69, the distinc- 
 tions between actions of law and suits in equity is expressly 
 Etbolished. In Ohio, Iowa, Nevada, Oregon, Idaho, Arizona 
 Territory, and most of the states and territories of the Union, 
 as well as New York and California, " the distinction in the 
 modes of obtainiflg relief which formerly characterized the pro- 
 ceedings in courts of law and in equity are abolished," but only 
 as to the forms of actions, and not as to the principles which 
 govern them. 2 In Cole v. Reynolds, 18 N. Y. 74, Harris, J., 
 says: "By the code, the distinctions between actions at law 
 and suits in equity are abolished. The course of proceeding in 
 both classes of cases is now the same. Whether the action 
 depends upon legal principles or equitable, it is still a civil 
 action, to be commenced and prosecuted without reference to 
 this distinction. But while this is s»o with reference to the 
 form and course of proceeding in the action, the principles by 
 which the rights of the parties are to be determined remain 
 unchanged. The code has given no new cause of action. In 
 some cases parties are allowed to maintain an action who could 
 not have maintained it before, but in no case can such an action 
 be maintained where no action at all could have been main- 
 tained before upon the same state of facts. If, under the 
 former system, a given state of facts would have entitled a 
 party to a decree in equity in his favor, the same state of facts 
 now, in an a,ction prosecuted in the manner prescribed by the 
 code, will entitle him to a judgment to the same effect. If the 
 facts are such that, at common law, the party would have been 
 entitled to a judgment, he will, by proceeding as the code 
 requires, obtain the same judgment." "What was an action 
 . at law before the code, is still an action founded on legal prin- 
 
 1 Bowen v. Aubrey, 22 Cal. 570 ; sec. 260 8 ; Traphagen v. Traphagen, 
 Cordier V. Schlosa, 12 H. 143 ; Payne 40 Barb. 537 ; McBurney v. Wellman, 
 V. Treadwell, 16 Id. 243. 42 Barb. 390 ; Bunnell v. Keteltas, 16 
 
 2 Whitt. Pr. 553; see also, 1 Van Abb. Pr. 205; Van Rensselaer v. Read, 
 Santv. PI. 39; Nash's O. P. 2; 2 Till. 26 N. Y. 568; Denman v. Price, 40 
 & Sh. 1 : Swann's PI. 21 ; Stat, of Iowa, Barb. 219. 
 
100 ANALYSIS OF PLEADINGS. § 180. 
 
 ciples ; and what was a bill in equity before the code is still a 
 civil action founded on principles of equity.^ 
 
 § 180. Distinctions between Legal and Equitable 
 Rights Preserved. — In adjudications under the New York 
 code, it is held that although the forms of actions at law and in 
 equity are abolished, yet that even in the pleadings, or the man- 
 ner of stating the facts which constitute plaintiff's cause of 
 action, there is still a broad distinction between cases where 
 legal instead of equitable relief is asked. Following in the 
 same track, the supreme court of California has held, " the dis- 
 tinction between law and equity is as marked as ever, though 
 there is no difference in the form of a bill in chancery and a 
 common-law declaration under our system." ^ 
 
 § 181. Legal and Equitable Relief Granted in Same 
 Action. — Legal and equitable relief may be asked for in the 
 same action, but the wrongs suffered must be those arising out 
 of or from one and the same transaction, and which would be 
 consistent with the relief asked. ^ In the case of The Globe 
 Ins. Co. V. Boj'le, 21 Ohio St. 119, it was held that an action 
 might be broijght to reform a contract, and to recover on said 
 contract so reformed ; and if, when reformed, the cause of action 
 would have been a common-law action, then the court will iirst 
 decide upon the equitable case to reform the contract, and then 
 submit the case to the jury on the contract so reformed. So 
 also when relief is asked for in the alternative* For a party 
 may have such relief as is adapted to his case from the proofs.* 
 It will therefore be observed that relief is now administered 
 without reference to the technical and artificial rules of the 
 common law.^ The prayer of a complaint is not the subject of 
 a demurrer.'' The intention of the legislature was evidently to 
 adopt a "uniform and complete system,"* whereby the old 
 and cumbersome forms of pleading would be dispensed with. 
 Yet the facts constituting plaintiff's cause of action are re- 
 
 1 Nash's PI. & Pr., vol. 1, p. 4; see Beusen v. Young, 29 N. Y. 29; Den- 
 also Gal. Code C.P., see. 307. man ▼. Prince, 40 Barb. 219; Ham- 
 
 ^Eowe V. Chandler, 1 Cal. 167; mond v. Cockle, 2 Hun, N. Y.,495i 
 
 Dewitt V. Hayes, 2 Id. 463 ; Lubert Byxbie v. Wood, 24 N. Y. 610 ; White 
 
 V. Chauviteau, 3 Id. 458; Smith v. v. Madison, 26 Id. 117. 
 
 Eowe, 4 Id. 6; Wiggins v. MoDon- » Rowe v. Chandler, 1 Cal. 168; 
 
 aid, 18 Id. 127 ; Howard v. Tiffany, 3 Jones v. Steamship " Cortes," 17 Id. 
 
 Sandf.695; 1 Van Santv. PI. 41. 487; White v. Lyons, 42 Id. 379; 
 
 3 Gray et al. v. Dougherty, 25 Cal. Grain v. Aldrich, 38 Id. 514. 
 
 266; More v. Massini, 32 Id. 690. ' Althof v. Conheim, 88 Cal. 230; 
 
 * Stevenson v, Buxton 15 Abb. Pr. Hale v. Omaha National Bank, 49 N. 
 
 352; Barlow V. Scott, 24 N. Y. 40. Y. 626. 
 
 s White V. Lyons, 42 Cal. 279 ; Van ^ Humiston v. Smith. 21 Cal. 134. 
 
§ 183. PLEADINGS IN GENERAL. 101 
 
 quired to be stated as fully under the new practice as under 
 the old.i 
 
 § 182. Of What Pleadings Consist. — ^Pleading consists in 
 alleging facts upon the one side and denying them upon the 
 other. ^ But the facts so alleged always presuppose some rule 
 of law applicable to them.^ And hence in all complaints, while 
 the law governing the facts and the facts coming within the law, 
 taken together, exhibit the cause of action, yet the facts are 
 expressed, while the law is understood ; for it would be of no 
 avail "for either party to state facts of which no principle of 
 law could be predicated in his favor." ■* Therefore the pleader 
 first inquires by reference to the law for a remedy, and if he 
 finds there is no legal remedy, he at once knows there has been 
 no wrong known to the law committed, and that the courts can 
 give no relief. As fictitious issues are by the code abolished,^ 
 analogies of the old system of pleading are not in all cases a 
 safe guide under the eode.^ Two prominent elements intended 
 in the new system are, that falsehood shall not be put upon 
 the record, and that the pleadings should disclose the facts re- 
 lied on in support or defense of an action. 
 
 § 183. Distinction between the Pleadings and the 
 Action. — The difference between the pleadings and the action 
 is that the pleadings show the nature of the demand, and the 
 defense ; or, in common terms, the pleadings are the eomplaint 
 and answer ; '' while the action is the history of the whole cause, 
 including: 1. The complaint, which names the parties, and 
 states the injury suffered ; 2. The process, which brings the 
 party into court to answer as to these inj uries ; 3. The answer 
 of defendant, which admits, or denies, or avoids, etc. ; 4. The 
 trial, wherein the nature of the demand and defense are pre- 
 sented by legal proofs; 5. The judgment, wherein the court 
 allows or refuses the remedy asked ; 6. The execution, by which 
 the legal rights of the parties are obtained. It is provided by 
 the code that " the pleading on the part of the plaintiff shall 
 be the complaint, and demui-rer to defendant's answer ; and on 
 the part of the defendant, the demurrer and answer.** Since 
 the statutes of our State have in express terms defined what the 
 pleadings are, it requires no reference to the text-books on the 
 
 1 Miller v. Van Tassel, 24 Cal. 463 ; * Gould's PI., sec. 2. 
 Oonaughty v. Nichols, 42 N. Y. 83, ' New York Code, sec. 72; Snell v. 
 87. Loueks, J 2 Barb. 385. 
 
 2 Buddington v. Davis, 6 How. Pr. « Bush v. Pro.=ser, 1 Kern. 347. 
 402. M Bur. Law Diet. 38. 
 
 » Gould's PI., sees. 2, 3. * California Code, sec. 422. 
 
102 ANALTSIS OF PLEADINGS. § 184. 
 
 subject for further definition. It is also provided by statute 
 that ' ' when a defendant is entitled to relief, as against the 
 plaintiff alone, or against the plaintiff and co-defendant, he 
 may make a separate statement in his answer of the necessary 
 facts, and pray for the relief sought, without bringing a dis- 
 tinct cross-action ;" so that parties litigant may settle all ques- 
 tions of difference between them, so far as is practicable, in one 
 action, and not litigate by piecemeal. Interminable litigation 
 is not favored by our legislature nor by our courts, the deci- 
 sions being numerous and pointed on this subject. ■ It will be 
 our purpose, therefore, to consider the subject of pleadings 
 herein ; reserving the consideration of the action for future 
 chapters, where the various steps will be considered under their 
 appropriate heads. 
 
 § 184. Facts Only must be Stated. — In pleading under 
 the code, it is the invariable rule that facts only should be 
 stated.i The reasons for the existence of these facts are not to 
 be given, but only the naked facts, disrobed of any crreumstance 
 connected with or pertaining to them ; and this without infer- 
 ences or conclusions, arguments, hypothetical statements, or 
 statements of the law, or of the pretenses of the opposite party. 
 
 For example : If A. is indebted to B. in the sum of five hun- 
 dred dollars, state the fact and for what he is indebted ; if for 
 work and labor done say so, and aver what it is reasonably 
 worth if there was no special contract, and that the same is due 
 and unpaid, and stop there ; if for goods sold and delivered, 
 state that fact, and when, where, and to whom sold, what they 
 are worth and what is due, and stop there ; if on a promissory 
 note, state the amount of indebtedness, and that it is upon a 
 promissory note bearing date, etc. (the note is usually copied, 
 but not necessarily so), and that the note has not been paid. 
 Of course, in every case judgment must be demanded for the 
 amount due, stating how much, and for interest if any, and 
 costs. In the first example, for " work and labor done," it is 
 not in general necessary to state how A. happened to work for 
 B., or how B. happened to employ A. Such and other kin- 
 dred facts might become valuable in the course of the trial as 
 evidence, but not as averments in the pleading. In the second 
 example, " for goods sold," it is not necessary to aver how they 
 were sold, or why they were sold, nor anything further than that 
 they were sold to B. at his request for so much money, and 
 
 oo'.^o^?r",T- I'^L"?^'' ^o' 0*1- *11; Hicksv.Murray, 43Id. 615; 1 Van Santv. 
 224 ; 2 Till. & Shear. 8. 
 
§ 185. PLEADINGS IN GENERAL. 103 
 
 that B. has failed to pay for them. The kind of goods sold, 
 and the price and value of each article, are questions of evi- 
 dence which need not be stated in the pleading. In the third 
 example it need not be stated that the note was made for a 
 valuable consideration, or that it was made for any consideration. 
 It is presumed to have been made for a consideration, and if it 
 was not really so made the defense will develop the fact. It 
 will be seen, therefore, that the facts must be carefully distin- 
 guished from the evidence of the facts, since the latter pertains 
 to the trial and not to the pleadings. Argument is improper in 
 a pleading, and should never be inserted,^ as a good pleading 
 should be true, unambiguous, consistent, and certain to a com- 
 mon intent, as to time, place, person, and quantity, and not re- 
 dundant or argumentative.^ 
 
 § 185. Conclusions of Law not to be Alleged. — An alle- 
 gation of a legal conclusion is one which gives no fact, but matter 
 of law only. 3 Such averments are not tolerated by our prac- 
 tice ; the facts from which the conclusions follow must be averred, 
 but not the conclusions. If such conclusions are averred 
 and denied, no issue is raised ; if they are not denied, they 
 are not admitted.* Exampiles and illustrations of allegations 
 that have been held to be mere conclusions of law are given in 
 the note.* Other instances might be enumerated, but we do not 
 
 M Van Santv. 355 ; Steph. PI. 383. ner; Kemeys r. Richards, 11 Barb. 
 
 s Boyce v. Brown, 7 Barb. S. C. R. 312. 
 
 85; Green v. Palmer, 15 Cal. 414; Bona Fide Holder and Owner. — 
 
 Gallagher v. Dunlap, 2 Nev. 326; That a party is the holder and owner, 
 
 Alderman v. French, 1 Pick. 1 ; At- as of a promissory note : White v. 
 
 wood V. Caswell, 19 Id. 493 ; Austin Brown, 41 How. Pr. 282'; but see Hol- 
 
 V. Parker, 13 Id. 222. stein v. Rice, 15 Id. 2. 
 
 s Hatch V. Peet, 23 Barb. 583. , Bound. — Whether a carrier is bound 
 
 * 1 Van Santv. 244 ; 1 Whitt. Pr. to know the Contents of a package : 
 
 563; Levinson v. Schwartz, 22 Cal. Berley v. Newton, 10 How. Pr. 490. 
 
 229; Lightner V. Menzell, 35 Id 452; That the defendant was "bound to 
 
 Cantine v. Clark, 41 Barb. 629 ; Mc- repair :" Casey v. Mann. 5 Abb. Pr. 
 
 Gee V. Barber, 14 Pick. 212; White 91. That defendant became, or was 
 
 V. Madison, 26 N. Y. 117; Haight v. lawfully bound by the rendition of a 
 
 Child, 34 Barb. 186; Commercial B'k judgment against him: People v. Su- 
 
 of Rochester v. Rochester, 41 Barb, pervisors, 27 Cal. 655 ; People v. Com- 
 
 341 ; Butler v. Viele, 44 Id. 166; Car- missioners of Fort Edward, 11 How. 
 
 ter V. Koezlpy, 9 Bosw. 583 ; Campbell Pr. 89. 
 
 V. Taylor, 2 West Coast Rep. 541. Contrary to Law. — That the de- 
 
 5 Arose out of the Transaction. — fendants have aeted contrary to the 
 
 That an Indebtedness arose out of the act (statute) is a conclusion of law : 
 
 transaction is a conclusion of law: Smith v. Lockwood, 13 Barb. 209. 
 
 Brown v. Buckingham, 11 Abb. Pr. Control and Management. — That a 
 
 387. defendant, as executrix, controls and 
 
 Assent. — The knowledge and assent manages the estate of the deceased, 
 
 of a party is a legal conclusion: Moore and is responsible therefor: Phinney 
 
 V. Westervelt, 2 Duer, 69; 1 Bosw. v. Phinney, 17 How. Pr. 197. 
 
 357 ; 21 N. Y. 103. So in the case of Credit. — That the goods were pur- 
 
 u promissory note made by a copart- chased " on credit," and that the 
 
104 
 
 ANALYSIS OF PLEADINGS. 
 
 § 185. 
 
 deem such necessary. If counsel were permitted to aver conclu- 
 sions of law, pleadings might be valuable as briefs, but worth- 
 less as statements of facts, the latter being the only object of 
 pleadings. 
 
 "terms of credit" had not expired: 
 Levinson v. Schwartz, 22 Cal. 229. 
 
 Due. — That a certain amount is 
 due upon a note : Frisch v. Kaler, 21 
 Cal. 71 ; McKyring v. Bull, 16 N. Y. 
 303 ; Allen v. Patterson, 3 Seld. 480. 
 
 Due and Owing. — That a sum is 
 "due and owing: " Keteltas v. Mey- 
 ers, 3 E. D. Smith, 83. 
 
 Duly.—li "duly "has any clear 
 legal signification, it is a question of 
 law to be determined on the facts: 
 Graham v. Machado, 6 Duer, 517. 
 That the plaintiff was duly appointed 
 chamberlain was held suflacient ; Piatt 
 V. Stout, 14 Abb. Pr. 178, That plain- 
 tiff sued by a guardian duly appointed, 
 if the statement is deemed too gen- 
 eral, the proper course is to move to 
 make it definite : S^r^ v. Coit, 5 Abb. 
 Pr. 482. That the trustees were duly 
 appointed : Conger v. Holliday, 3 Edw. 
 Ch. 570. That the plaintiff was duly 
 authorized to bring the action : Myers 
 V. Machado, 6 Abb. Pr. 198 ; 14 How. 
 Pr, 149. That a meeting was duly 
 convened would imply that it was 
 regularly convened: People v. Wal- 
 ker, 23 Barb. 305; 2 Abb. Pr. 422. 
 That the location was duly and prop- 
 erly made according to the provisions 
 of an act : People v. Jackson, 24 Cal. 
 632. 
 
 Duty. — That it was or is the " duty" 
 of a party to 'do or forbear an act is a 
 conclusion: City of Buffalo v. Hollo- 
 way, 3 Seld. 493 ; Eex v. Everett, 8 
 B. & C. 114. 
 
 Indebted. — That a party is indebted 
 or remains indebted : Curtis v. Eich- 
 ardf, 9 Cal. 33 ; Wells v. McPike, 21 
 Id. 215 ; Chamberlain v. Kaylor, 2 E. 
 D. Smith, 134 ; Hall v. Southmayd, 15 
 Barb. 32. Or became indebted : Cal. 
 State Tel. Co. v. Patterson, 1 Nev. 
 151; Lightner v. Menzell, 85 Cal. 
 452. 
 
 InViolation. — Schenck v. Naylor, 1 
 Duer, 678. 
 
 Lawful Bolder. — That one was the 
 "lawful holder: " Beach v. Gallup, 2 
 N. Y. Code R. 86 ; but see Taylor v. 
 Corbiere, 8 How. Pr. 387. 
 
 Lawful Title and unlawfully with- 
 holds: Lawrence v. Wright, 2 Duer, 
 674; see, however, Walter v. Lock- 
 wood, 23 Barb. 230 ; Walter v. Lock- 
 
 wood, 4 Abb. Pr. 307; Ensiga v. 
 Sherman, 14 How. Pr. 439. 
 
 Liable. — That one is " liable :" Bex 
 V. Upton-on-Severn, 6 C. & P. 133. 
 
 Nearer of Kin. — That a party is 
 " nearer of kin : " Pub. Adm'r v. 
 Watts, 1 Paige, 348. 
 
 Necessary Supplies. — That supplies 
 furnished to a vessel are necessary: 
 The Gustavia, Blatchf. & H. 189. 
 
 Obligation. — That he had failed to 
 fulfill his obligations : Van Schaack v. 
 Winne, 16 Barb. 95. 
 
 Ordinance is Legal. — That an or- 
 dinance passed by a municipal cor- 
 poration is legal: People v. Supervis- 
 ors, 27 Cal. 655. 
 
 Owes. — That the defendant owes 
 the plaintiffthe sum before mentioned: 
 Millard V. Baldwin, 3 Gray, 484; Cod- 
 ding V. Mansfield, 7 Id. 272; Hollis 
 T. Richardson, 13 Id. 392. 
 
 Owner. — That a party is owner: 
 Adams v. HoUey, 12 How. Pr. 330; 
 Thomas v. Desmond, Id. 321 ; contra, 
 Davis ▼. Hoppock, 6 Duer, 2S6 ; Wal- 
 ter V. Lockwood, 23 Barb. 233 ; 4 Abb. 
 Pr. 307 ; McMurray v. Gifford, 6 How. 
 Pr. 14 ; Bentley v. Jones, 4 How. Pr. 
 20.4. 
 
 Owner and Holder. — That plaintiff 
 i« owner and holder of a note: Poor- 
 man V. Mills, 35 Cal. 118, approving 
 Wedderspoon v. Rogers, 32 Cal. 669; 
 Witherspoon v. Van Dolar, 15 How. 
 Pr. 266. 
 
 Power and Authority. — That a cor^ 
 poration had full power and lawful 
 authoritv to do a particular act : Bran- 
 ham V. Mayor of San Jose, 24 Cal. 
 685. 
 
 Promised to Pay. — TJiat defendant 
 promised to pay, in the common 
 counts in assumpsit, is a mere conclu- 
 sion of law from the facts stated, and 
 need not be averred under the code: 
 Wilkins v. Stidgers, 22 Cal. 232 
 
 Release. — That a party " did exe- 
 cirte a' release in full : " Hatch v. Feet, 
 23 Barb. 575. " That a settlement 
 had no reference to this claim, nor 
 was the same in any way released or 
 affected : "Jones v. Phoenix Bk., 4 Seld. 
 235. 
 
 B,ej>e<f.ted Acknowledgments. — Blood- 
 good V. Bruen, 4 ."^eld. 366. 
 
 Right of Possession. — That right of 
 
§ 186. PLEADINGS IN GENERAL. 105 
 
 § 186. Defendant's Pretenses, or Facts Anticipating a 
 Defense. — Allegations in a complaint as to the defendant's 
 pretenses are improper, as they are not the facts of the plain, 
 tiff's case.i So, also, facts anticipating a defense ought never 
 to be averred. If such an averment is made in the complaint, 
 the defendant need not traverse it. What is material in the 
 case may be quite immaterial in the pleading. The complain- 
 ant should not erect a structure, and, to show its stability, 
 attempt, but fail, in knocking it down. The plaintiff may be 
 well aware of the defense which will be interposed, but the de- 
 fendant will be quite as capable of presenting it as the plaintiff.' 
 The real effect of such pleading, if allowed, would be to put 
 the opposite party on the stand as a witness, without being 
 obliged to take his whole statement as true.^ The above is the 
 general rule, but there are exceptions ; such as where the origi- 
 nal indebtedness is counted on, and then the defense of pay- 
 ment anticipated by allegations of matters of fraud in answer. ^ 
 An allegation that defendant was of full age when he executed 
 the bond is the allegation of a fact in anticipation of a defense.* 
 So in New York it has been held that in a complaint upon a 
 cause of action which accrued more than six years previous to 
 
 possession was forfeited by non-com- were discontinued is a conclusion of 
 
 pliance with rules and customs : Dutch law : Hatch v. Peet, 23 Barb. 583. 
 
 Flat V. Mooney, 12 Cal 434. Wrongfully and Unlawfully, when 
 
 Sole Owner. — That a party is sole used in connection with issuable facts, 
 
 owner : Thomas v. Desmond, "12 How. are surplusage, and had better be 
 
 Pr. 321 ; see, however, Holstein v. omitted : Halleclc v. Mixer, 16 Cal. 
 
 Kice, 15 Id. 1. 574 ; Payne v. Treadwell, 16 Gal. 220 ; 
 
 Subject to Mortgage. — That defend- Lay v. Neville, 25 Id. 545; People v. 
 
 ant took land subject to mortgage: Supervisors, 27 Id. 655; Richardson 
 
 "Wormouth v. Hatch, 33 Cal. 121. v. Smith, 29 Id. 529 ; Miles v. McDer- 
 
 Tiile to Money. — That plaintiff is raott, 31 Id. 271; People ex rel. Haws 
 
 entitled to the sum of money de- v. Wallcer, 2 Abb. Pr. 421; Fletcher 
 
 manded : Drake v. Cocl^roft, 1 Abb. v. Calthrop, 1 New Mag. Cas. 541 ; 
 
 Pr. 203. Ensign V. Sherman, 13 How. Pr. 87; 
 
 Trust. — Thai by the laws of the Kinsey v. Wallace. 36 Cal. 463; and 
 
 state a trust was created : Throop v. Feely v. Shirley, 43 Id. 369. 
 
 Hatch, 3 Abb. Pr. 25. ^l Whitt. Pi-. 5S2 ; Steph. Pi. 349 ; 
 
 Undertake to Deliver. — " TlhsA he Green v. Palmer, 15 Cal. 414; Van 
 
 did not, by his agreement, undertake Nest v. Talmadge, 17 Abb. Pr. 99; 
 
 to deliver the land from all incum- Hotham r. E. I. Comp., 1 T. R. 638. 
 
 brances:" Warner v. Hatfield, 4 ^ Gould's PI. 75; Canfield v. Tobias, 
 
 Blackf. 394. 21 Cal. 349 ; Green v. Palmer, 15 Id. 
 
 Unjust Refusal. — That a refusal is 414; Kerr v. Blodgett, 16 Abb. Pr. 137 : 
 
 unjust, is a conclusion of law: Re Giles v. Betz, 15Id. 285; VanDemark 
 
 Prime. 1 Barb. 352. v. Van Demark, 13 How. Pr. 372. 
 
 Validity. — Th&t a note never had ^ Bracke v. Wilkinson, 13 How. Pr. 
 
 any validity: Burrall v. Bowen, 21 102; see, also, Wade v. Rusher, 4 
 
 How. Pr. 378. What is the meaning Bosw. 537 ; and Thompson v. Minford, 
 
 of validity and effect of a contract? 11 How. Pr. 273. 
 
 Latham v. Weslervelt, 26 Barb. 256 ; * Walsingham's Case, Plow. 564 ; 
 
 Chapin v. Potter, 1 Hilt, 366. Bovy's Case, 1 Vent. 217; Stowell v. 
 
 Were Discontinued. — That actions Zouch, Plow. 376. 
 
106 
 
 ANALYSIS OP PLEADINGS. 
 
 § 187. 
 
 the commencement of the 8uit, an allegation, inserted for the 
 purpose of anticipating the defense of the statute of limitations, 
 that " the defendants have not resided in the state at any time 
 within six years," etc., was irrelevant and should be stricken 
 out.i But it is otherwise in California.^ 
 
 § 187. Facts Independent of the Cause of Action.— 
 Facts independent of the cause of action and proper to the 
 affidavit, accompanying a pleading, as in cases of aiTest, should 
 not be alleged. 3 So, of facts in relation to a contemporaneous 
 agreement in writing varying the terms of a promissory note.^ 
 
 § 188. Implications and Presumptions of Law.— Where 
 the law presumes a fact, the same need not be stated in the 
 pleading.5 Thus matters of which the court takes judicial 
 notice need not be alleged ;S or. notice ex officio, as of a public 
 statute.'' But ordinances of a municipal corporation are not 
 judicially noticed, and must be alleged.^ Further illustrations 
 of facts which are presumed, and consequently need not be 
 alleged, are given in the note.^ 
 
 1 Butler V. Mason, 5 Abb. Pr. R. 40. 
 
 2 See Keller V. Hicks, 22 Cal. 457; 
 Brennan v. Ford, 46 Id. 7 ; Canfield v. 
 Tobias, 21 Id. 350. 
 
 3 Sellar v. Sage, 12 How. Pr. 531 ; 
 13 Id. 230; Projt v. M'Oarger, 14 Id. 
 131; Secor V. Roome, 2 N. Y. Code 
 K. 1; contra, Barber v. Hubbard, 3 
 Id. 156. 
 
 * Smalley v. Bristol, 1 Mann. (Mich.) 
 153. 
 
 5 1 Chitt. 220; 4 M. & S. 120; 2 
 Wils. 147 ; Steph. on PI. 352 ; 1 Whitt 
 591 ; Partridge v. Badger, 25 Barb. 
 146; Tileston v. Newell, 13 Mass. 
 406; Dunning v. Owen, 14 Id. 157; 
 McG-ee v. Barber, 14 Pick. 212 ; Marsh 
 V. Bulteel, 5 Barn. & Aid. 507; Frets 
 V. Frets, 1 Cow. 335 ; Allen v. Wat- 
 son, 16 Johns. 205; Vymor's Case, 8 
 Bep. 81 ; Bac. Abr., Pleas, i. 7 ; 2 Sand. 
 305 ; Sheers v. Brooks, 2 H. Bl. 120 ; 
 Hanford v. Palmer, 2 Brod. & B. 
 361 ; Wilson v. Hobday, 4 M. 4 t^. 
 125; Chapman V. Pickersgill, 2 Wils. 
 147. 
 
 « Goulett V. Cowdr}', 1 Duer, 139. 
 
 ' 1 Sandf. 262; Steph. PI. 345; 
 Golet V. Cowdrev, 1 Duer, 139. 
 
 8 Harker v. Mayor of N. Y., 17 
 Wend. 199. 
 
 ' Agency. — That presentation of note 
 by a bank was "as agents" for plaint- 
 iff and not as owners, is presumed : 
 Farmers' and Mechanics' Bank of 
 Genesee v. Wadsworth, 24 N. Y. 547. 
 
 Consideration. —A promissory note 
 imports a consideration, and in an ac- 
 tion thereon none need be alleged: 
 Allen V. Carpenter, 1 West Coast 
 Rep. 598 ; Orr v. Hopkins, Id. 157. 
 
 Death of Ancestor. — The allegation 
 that one is heir of A. implies the 
 death of A., for nemo est hceres men- 
 tis : Broom's Leg. Max. 393. Though 
 the term " heir " may denote heir ap- 
 parent : Lockwood v. Jesup, 9 Conn. 
 272 ; Cox V. Beltzhoover, 11 Mo. 142. 
 
 Delioery of a Specialty. — The de- 
 livery of a specialty, though essential 
 to its validity, need not be stated in 
 a pleading : 1 Ch. PI. 364 ; Cabell v. 
 Vaughan, 1 Saund. 291; Chappell v. 
 Bissell, 10 How. Pr. 274; 12 Id. 452; 
 Prindle v. Caruthers, 16 N. Y. 426; 
 Lafayette Ins. Co. v. Rogers, 30 Barb. 
 491. 
 
 Incorporation. — In New York, that 
 a business corporation made and 4e- 
 livered its promissory note, suffi- 
 ciently states a valid contract. A 
 legal consideration may be presumed: 
 Lindsley v. Simonds, 2 Abb. Pr. (N. 
 S.)69; Woodu. Wellington, SON. Y. 
 218; Phcenix Bank of New York v. 
 Donnell, 41 Barb. 571. 
 
 In Writing. — Averment of accept- 
 ance implies "in writing:" Bank of 
 Lowville V. Edwards, 11 How. Pr. 
 216. 
 
 Jurisdiction. — The jurisdiction of a 
 court of record of a sister state will 
 
§ 189. 
 
 PLEADINGS IN GENERAL. 
 
 107 
 
 § 189. Material Averments.— A material allegation in a 
 pleading is one essential to the claim or defense, and wiiich 
 could not be stricken from tlie pleading without leaving it in- 
 sufficient. ^ There is no question of more importance to the 
 pleader than what is and what is not a material allegation ; or, 
 in other words, what is necessary to be stated in a pleading, 
 and what ought to be omitted. In the case of Green v. 'Palmer, 
 15 Cal. 414, this question is elaborately discussed ; and the true 
 rule is there laid down in the clearest and most logical manner.^ 
 
 be presumed. It is sufficient to al- 
 lege that judgment was duly recov- 
 ered: Halstead v. Black, 17 Abb. Pr. 
 227. So, also, of all courts, officers, 
 and boards: Cal. Code C. P., sec. 
 456. 
 
 Non-payment. — That defendant has 
 not paid is implied in the allegation 
 that there is due and owing, etc. : 
 Keteltas v. Meyers, 19 N. Y. 233 ; 
 Holeman v. DeGray, 6 Abb. Pr. 79. 
 In the case of Keteltas v. Meyers, 
 supra, a copy of the note sued on was 
 set out in the complaint, and the fact 
 that the note was due appeared there- 
 from; and the complaint, instead of 
 alleging that so much was unpaid 
 thereon, alleged that a certain sum 
 (the amount of the note) was " due 
 and owing thereon." Held, that it 
 was equivalent to an averment that 
 that amount remained unpaid. If, 
 however, the complaint had simply 
 averred the making and delivery of 
 the note, without stating when the 
 same matured, the allegation that it 
 was " due " would be a mere conclu- 
 sion of law : Roberts v. Treadwell, 50 
 Cal. 520. 
 
 Official Capacity of executor is im- 
 plied : Scrantom v. Farmers' and Me- 
 chanics' Bank, 24 N. Y. 424. 
 
 Ownership. — Possession of negotia- 
 ble paper indorsed in blank by the 
 payee thereof, is prima facie evidence 
 of ownership: Bedell v. Carll, 33N.Y. 
 581 ; Brainerd V. New York & Harlem 
 E. R. Co., 10 Bosw. 332. 
 
 Promise. — In a great many cases 
 whare a legal obligation exists, the 
 law will imply a promise. This has 
 been stated to be an inference or con- 
 clusion of law from the legal liability : 
 Gould's PI. 330; but the report in 
 Kinder v. Paris, 2 H. Bl. 562, says, 
 that from the antecedent debt or duty, 
 the law presumes the defendant did 
 in fact promise to pay, and Lord 
 Holt is reported to have said that 
 there was no such thing as promise 
 
 in law : Parkins v. WoUaston, 6 Mod. 
 131. So a sale of goods or loan of 
 money necessarily implies a promise, 
 and a consideration, and a mutual 
 contract: See notes to Osborne v. 
 Rogers, 1 Saund. 264 ; Victor v. Da- 
 vies, 1 M. & W. 758; Emery v. Fell, 
 2 T. R. 28; Glenny v. Hitohins, 4 
 How. Pr. 98. And the law makes no 
 distinction between an implied prom- 
 ise and an express promise : Kinder 
 V. Paris, 2 H. Bl. 563 ; Chit. Con. 19. 
 See discussion on this subject of pro- 
 mise in Hall v. Southmayd, 15 Barb. 
 34-36; see also Cropsey V. Sweenev, 
 27 Id. 310; Parron v. Sherwood, 17 
 N. Y. 230; Berry v. Pernandes, 17 
 Bing. 338; Durnford v. Messiter, 5 
 Mau. & S. 446. 
 
 Proportion of Liability of Surety. 
 The proportion that a surety has to 
 payis implied: Van Denmark v. Van 
 Denmark, 13 How. Pr. 372. 
 
 Public Officer. — In a suit by a pub- 
 lic officer in his name of office, his due 
 appointment thereto is implied: Fow- 
 ler V. Westervelt, 40 Barb. 374. 
 
 Statute. — As to implications arising 
 in actions brought under a statute, see 
 Freeman v. Pulton Fire Ins. Co., 38 
 Barb. 247 ; Washburn v. Franklin, 35 
 Id. 599; 7 Abb. Pr. 8; Merwin v. 
 Hamilton, 6 Duer, 218 ; Teel v. Fonda, 
 4 Johnsl 304. 
 
 ^ Cal. Code, sec. 463 ; Oregon Code, 
 see. 93. 
 
 2 In Green v. Palmer, 15 Cal. 414, 
 Field, C. J., formulated the following 
 rules in regard to pleadings under the 
 code: "First rule. Facts only must 
 be stated. This means the facts as con- 
 tradistinguished from the law, from 
 argument, from hypothesis, and from 
 evidence of the facts. The facts must 
 be carefully distinguished from the 
 evidence of the facts. The criterion 
 to distinguish the facts from the evi- 
 dence is — Second rule. Those facts, 
 and those alone, must be stated which 
 constitute the cause of action, the 
 
108 
 
 ANALYSIS OF PLEADINGS. 
 
 § 190. 
 
 The following questions will decide in most eases whether an 
 allegation be material: Can it be made the subject of a material 
 issue ?i Or, if it be denied, will the failure to prove it decide 
 the case in whole or in part? ^ Such material averment can not 
 be presumed from the existence of other facts. ^ 
 
 § 190. Essential Facts Only are Material.—What facts 
 are essfential is sometimes a question which puzzles the pleader, 
 yet it should not. The following tests will determine whether 
 certain allegations are unnecessary: 1. Can the allegations be 
 stricken from the pleading without leaving it insufficient? 2. 
 Can it be stricken, from the pleading without impairing any 
 portion of the cause of action or defense? 3. Can it be stricken 
 from the pleading without an injury to the plaintiff or a benefit 
 
 defense, or the reply. Therefore (1) 
 each party must allege every fact 
 which he is required to prove, and 
 will be precluded from proving any 
 fact not alleged. The plaintiff, on 
 his part, must allege all that he will 
 have to prove to maintain his action ; 
 the defendant, on his part, all that he 
 must prove to defeat the plaintiff's 
 title, after the complaint is admitted 
 or proved. (2) He must allege nothing 
 affirmatively which he is not required 
 to prove. This is sometimes put in 
 the following form, viz. : ' That those 
 facts, and those only, should be stated 
 which the party would be required to 
 prove.' But this is inaccurate, since 
 negative allegations are frequently 
 necessary, and they are not to be 
 proven, 'the rule applies, however, 
 to all affirmative allegations, and, 
 thus applied, is universal. Every 
 fact essential to the claim or defense 
 should be stated. If this part of the 
 rule is violated, the adverse party 
 may demur. In the second place, 
 nothing should be stated which is not 
 essential to the claim or defense ; or. 
 In other words, none but ' issuable ' 
 facts should be stated. If this part 
 of the rule be violated, the adverse 
 party may move to strike out the 
 unessential parts. An unessential, or 
 what is the same thing, an immaterial 
 allegation, is one which can be stricken 
 from the pleading without leaving it 
 insufficient, and, of course, need not 
 be proved or disproved. The follow- 
 ing question will determine in every 
 case whether an allegation be mate- 
 rial : Can it be made the subject of a 
 material issue? In other words, if 
 denied, will the failure to prove it 
 decide the case in whole or in part? 
 
 If it will not, then the fact alleged is 
 not material ; it is not one of those 
 which constitute the cause of action, 
 defense, or reply." See also, to the 
 same effect, Dreux v. Domec, 18 Cal. 
 88; Smith v. Richmond, 19 Id. 483; 
 Bowers v. Aubrey, 22 Id. 569; Grew- 
 ell v.Walden, 23 Id. 169; O'Connor v. 
 Dingley, 26 Id. 11 ; Johnson v. Santa 
 Clara Co., 28 Id. 547 ; Larco v. Casa- 
 neuava, 30 Id. 565 ; Willson v. Cleave- 
 land, Id. 200 ; Patterson v. Keystone 
 M. Co., Id. 364; Racouillat v. Eene, 
 32 Id. 456 ; Jones v. Petaluma City, 
 36 Id. 233 ; Joseph v. Holt, 37 Id. 255; 
 Bruck V. Tucker, 42 Id. 351 ; Cline v. 
 Cline, 3 Or. 359 ; Perkins v. Barnes, 3 
 Nev. 565; McNabb v. Wixom, 7 Id. 
 172; Clark v. Bates, 1 Dakota, 42; 
 Clay Co. V. Simonsen, 1 Id. 403, 430; 
 Scott V. Eobards, 67 Mo. 289 ; Dunn 
 V. Remington, 9 Neb. 82; Ingle v. 
 Jones, 43'lowa, 286; Louisville, etc.. 
 Canal Co. v. Murphy, 9 Bush, 522; 
 Pflffner v. Krapfel, 28 Iowa, 27 ; De 
 Graw V. Elmore, 50 N. Y. 1; Pier v. 
 Heinrichoffen, 52 Mo. 333; Horn v. 
 Ludington. 28 Wis. 81 ; Hill v. Bar- 
 rett, 14 B. Mon. 67 ; People v. Eyder, 
 12N. Y. 433; Rogers v. Milwaukee, 
 13 Wis. 610 ; Bird v. Mayer, 8 Id. 363 ; 
 Groves v. Tallman, 8 Nev. 178 ; "Wills 
 V. Wills, 34 Ind. 106 ; Cowin v. Tooie, 
 81 Iowa, 513; Singleton v. Scott, 11 
 Iowa, 589; Campbell v. Taylor, 2 
 West Coast Rep. 641. 
 
 1 Green v. Palmer, 15 Cal. 414; 
 Martin v. Kanouse, 2 Abb. Pr. 330; 
 Mussina v. Clark, 17 Id. 188; Cahill 
 V. Palmer, Id. 196. 
 
 2 Green v. Palmer, 15 Cal. 414. 
 
 » 1 Van Santv. 773, 774 ; Hall v. 
 Southmayd, 15 Barb. 34, 35 ; Van de 
 Sande v. lEall, 13 How. Pr. 458. 
 
§ 191. PLEADINGS IN GENERAL. 109 
 
 to the defendant, however remote this injury or benefit may 
 be?i 
 
 The essential facts only should be averred ; for, should the 
 pleadings be so framed that even the least important essential 
 fact is left out, the cause of action is impaired. What plaintiff 
 ought to aver and what he must prove are, we repeat, entirely 
 distinct propositions. If the pleader were required to aver 
 every fact necessary to prove his case, most pleadings would be 
 of great length. The pleadings should be concise and to the 
 point. "There never was a greater slander upon the code than 
 that it permits long pleadings." ^ It is only ultimate facts that 
 are to be alleged, and not the facts which tend to prove or 
 establish the existence of the ultimate facts. For example: 
 Plaintiff sues for goods sold and delivered ; defendant denies 
 the sale and delivery. The plaintiff must then prove the facts 
 which show the sale and delivery. 
 
 § 191. Immaterial, Irrelevant, and Redundant Matter. 
 Irrelevant, immaterial, unessential, redundant, and surplus 
 allegations should be omitted from a pleading.^ Such allega- 
 tions or denials present no issue.^ And if such matter be in- 
 serted in a pleading, it may be stricken out on motion of any 
 person aggrieved thereby. ^ Irrelevant matter in a pleading is 
 that which has no bearing on the subject-matter of the contro- 
 versy.^ Surplusage is matter altogether superfluous and useless, 
 and which may be rejected by the court, and the pleadings 
 stand as if it were stricken out or had never been inserted.'' Thus, 
 a false construction in law upon the terms of a contract will be 
 regarded as surplusage, and, on motion, will be stricken out.^ 
 Or superfluous matter when inserted by itself.^ So, when the 
 name of the wife is improperly or unnecessarily joined with that 
 of her husband, it may be regarded as surplusage. i" So of in- 
 consistent allegations.il Or allegations which are absurd, or the 
 
 iVan Santv. 319, 320;Whitwell v. « Fabricotti v. Launitz, 1 Code E. 
 Thomas, 9 Gal. 499 ; Green v. Palmer, (N. IS.) 121 ; Stafford v. Mayor of Al- 
 ls Id. 414, and cases cited in last note, bany, 6 Johns. 1 ; Van Rensaalaer v. 
 
 * Green v. Palmer, 15 Cal. 417. Brice, 4 Paige Ch. 177 ; Perrine v. 
 
 3 Green v. Palmer, 15 Cal. 414. Parr, 2 Zab. 356 ; Lee Bank v. Kitch- 
 
 *1 Van Santv. 76; Maretzek v. ing, 11 Abb. Pr. 435; Cahill v. Pal- 
 
 Caldwell, 19 Abb. Pr. 35. mer, 17 Id. 1 96. 
 
 5 Cal. Code, sec. 453 ; Nevada, sec. ' Gould's PI. 143. 
 
 57 ; Idaho, sec. 57 ; Arizona, 57 ; N. Y. ^ Stoddard v. Treadwell, 26 Cal. 294. 
 
 Code, sec. 160 ; Oregon, see. 84 ; Larco • 1 Van Santv. 311 ; Boles v. Cohen, 
 
 V. Casaneuava, 30 Cal. 560; Boles v. 15 Cal. 150. 
 
 Cohen, 15 Id. 150; Hampshire Manuf. ^^ Warner v. Steamer "Uncle Sam" 
 
 Bank v. Billings, 17 Pick. 87 ; Lord v. 9 Cal. 697. 
 
 Tyler, 14 Id. 156 ; Cahill v. Palmer, " 1 Van Santv. 353, 519 ; Uridias v. 
 
 17 Abb. Pr. 196 ; Moffatt v. Pratt, 12 Morrill, 25 Cal. 31 ; Klink v. Cohen, 
 
 How. Pr. 48. 13 Id. 623. 
 
110 ANALYSIS OF PLEADINGS. § 191. 
 
 truth of which is impossible. i So of allegations which are 
 redundant, although the facts averred are relevant, as by a 
 needless repetition even for material averments.^ 
 
 Any matter which may tend to limit or qualify the degree of 
 certainty, is redundant matter or surplusage ; for example, matter 
 of mere evidence, legal conclusions, things within judicial notice, 
 matter coming more properly from the other side, or matter ne- 
 cessarily implied. 3 Though in its more strict and; confined mean- 
 ing, redundancy imports matters wholly foreign and irrelevant.* 
 
 Conclusions of law inserted in a pleading may be considered 
 as mere surplusage. ^ So of evidence when inserted in a plead- 
 ing.^ Or probative facts, such as averments of deraignment of 
 title.'' Or hypothetical statements.^ 
 
 Matter inserted in a pleading obnoxious from uncertainty, as 
 where the facts which constitutes the cause of action is not 
 stated clearly, will be considered as surplusage. ^ So of matter 
 contained in a pleading, which is frivolous, i" Or allegations 
 ambiguous or repugnant to each other.^^ Or a commingled state- 
 ment of two causes of action that may properly be united in 
 one complaint. ^^ But such pleading may be demurred to for 
 ambiguity or uncertainty.'^ Or the names of parties imjDroperly 
 joined, may be stricken out.^* 
 
 But a material allegation can not be stricken out, because 
 the pleader also claims relief which can not be granted. ^^ Nor 
 where the information required was obtainable by demand of 
 
 1 Sacramento Co. v. Bird, 31 Cal. 66. v. Palmer, 15 Cal. 414 ; Wies v. Fan- 
 
 "1 Gh. PI. 227; Dundass v. Lord ning, 9 How. Pr. 543; Brown v. 
 
 Weymouth, Cowp. 665; Barstow v. Rickman, 12 Id. 313. 
 
 Wright, Doug. 668 ; Bowman v. Shel- ' Arrietta v. Morrissey, 1 Abb. Pr. 
 
 don, 6 Sand. 660 ; Host v. Harris, 12 N. S., 439. 
 
 Abb. Pr. 446 ; Benedict v. Seymour, i" Smith v. Countryman, 30 N. T. 
 
 6 How. Pr. 803 ; Clough v. Murray, 655 ; Lockwood v. Salhenger, 18 Abb' 
 
 19Abb. Pr. 97. Pr. 136; Van Valen v. Lapham, 13 
 
 s Steph. PI. 423. How. Pr. 240. 
 
 * Steph PI. 422 ; Barstow v. Wright, " 1 Ch. PI. 877 ; 1 Van Santv. 854 ■ 
 Doug. 667; 1 Saund. 233; Yates v. Com. Dig. (C. 23); Bae. Abr., Pleas, 
 Carlisle, 1 Blaelc. 270; Plowd. Com. i. 4; Vin. Abr., Abatement; Sibley 
 232; Lord v. Houston, 11 EHst, 62; v. Brown, 4 Pick. 137; Wyatt v. 
 Oobbett V. Cochrance, 8 Bing. 17 ; Aland, 1 Salk. 324 ; Nevill v. Soper 
 Bacon v. Ashton, 5 Dowl. 94; Palmer Id. 213; Butt's Cage, 7 Bep. 25; Hut- 
 V. G-ooden, 8 M. &. W. 890 ; Stevens chinson v. Jackson, 2 L'ut 1824 • Hart 
 V. Bigelow, 12 Mass. 488 ; Hampshire v. Longfield, 7 Mod. 148 ■ By'ass v 
 Mant: Bank v. Billings, 17 Pick. 87 ; Wylie, 1 C. M. & R. 686. 
 
 Simpson v. McArthur, 18 Abb. Pr. i'^ 1 Van Santv. 844 ; Harsen v 
 
 802, note. Bayaud, 5 Duer, 656. 
 
 6 Halleok v. Mixer, 16 Cal. 574. " California Code, sec. 430. 
 
 8 Green v. Palmer, 15 Cal. 414; " Yeates v. Walker, 1 Duval CKv ^ 
 
 Bowen V. Aubrey, 22 Id. 566. 84. ^ ^'" 
 
 ' Larco v. Casaneuava, 30 Cal. 560 ; '^ Woodgate v. Fleet 9 Abb Vr 
 
 Wilson V. Cleaveland, Id. 192. 222. 
 
 * See ante; 1 Van Santv. 358 ; Green 
 
§ 193. PLEADINGS IN GENERAL. Ill 
 
 particulars.'^ ^or to obtain details as to contents of a lost in- 
 strument, of which the nature and effect have been stated.^ 
 
 If the immaterial matter constitute part of a material aver- 
 ment, so that the whole can not be stricken out without destroy- 
 ing the right of action or defense of the party, it can not be 
 rejected as surplusage, but may be traversed in the pleading, 
 and must be proved as laid, though the averment be more par- 
 ticular than need be. The true rule is that whenever the whole 
 allegation can be stricken out without affecting the legal right 
 set up by the party, it is impertinent, and may be rejected as 
 surplusage. 3 An entire pleading can not be stricken out as 
 irrelevant or redundant.'* 
 
 § 192. Only Such Facts as Constitute a Cause of Ac- 
 tion, Defense, or Reply, must be Stated. — As has been 
 shown in preceding sections, only such essential facts as con- 
 stitute the cause of action, the defense, or the reply, must be 
 stated in the pleading. Each party must allege what he is re- 
 quired to prove, and he will be precluded from proving any fact 
 essential to his cause of action or defense not alleged.^ In ad- 
 dition to the foregoing, it is a cardinal rule of pleading under 
 the code, as indeed it was at the common law and in equityi 
 that the allegations and proofs must correspond, and substan- 
 tially conform to and sustain each other. Otherwise there 
 would be a variance which would be fatal to a recovery.^ But 
 an allegation in a pleading does not estop the party pleading it 
 from proving that the allegation is not correct, unless the al- 
 legation is made an issuable fact.'' In pleading, it is the ultimate 
 
 1 Crockroft v. Atlantic Mut. Ins. « McKinlay v. Morrish, 21 How. U. 
 Co., 9 Bosw. 681. S. 343; Campbell V. The "Uncle Sam," 
 
 2 Kellogg V. Baker, 15 Abb. Pr. 286. 1 MoAll. 77;' Kramme v. The " New 
 8 United States v. Burnham, 1 Ma- England," Newb. 481 ; 1 Greenleaf, 
 
 son, 57 ; Wyman V. Fowler, 3 McLean, 18; 1 Whitt. Pr. 575; Hicks v. Mur- 
 
 467. ray, 43 Cal. 515. In cases where 
 
 * Benedict v. Dake, 6 How. Pr. complaint was deficient, see Cowen- 
 
 352; Nichols V. Jones, Id. 355; Hull hoven v. City of Brooklyn, 38 Barb. 
 
 V. Smith, 8 Id. 281 ; HSwell v. Knick- 9 ; Van Zandt v. Mayor of N. T., 8 
 
 erbrocker Life Ins. Co., 24 How. Pr. Bosw. 375; Solmsv. Lias, 16 Abb. Pr. 
 
 475; Blake v. Eldred, 18 How. Pr. 311; Bailey v. Johnson, 1 Daly, 61; 
 
 240. For practice on remedy by Curtiss v. Marshall, 8 Bosw. 22. In 
 
 striking out, see Amendments, vol. 2. cases where answer was deficient, see 
 
 5 1 Van Santv. 774; 1 Ch. PI. 214; Eaynor v. Timerson, 46 Barb. 518; 
 
 Green v. Palmer, 15 Cal. 414; Willson Allen v. Mercantile Mar. Ins. Co., 46 
 
 V. Cleaveland, 30 Id. 192 ; Hicks v. Barb. 642 ; Bruce v. Kelley, 39 N. Y. 
 
 Murray, 43 Id. 522 ; Freeman v, Ful- (7 J. & Sp.) 27 ; Smith v. Smith, 60 N. 
 
 ton Fire Ins. Co., 38 Barb. 247; Dol- Y. 161. 
 
 cher V. Fry, 37 Id. 152 ; Barnes v. ' Patterson v. The Keystone Mining 
 
 Quigley, 59 N. Y. 265 ; Peck v. Boot, Co., 30 Cal . 360. As to what is a 
 
 5 Hun, 547 ; Decker v. Saltsman, 1 Id. variance, when material, etc., see also 
 
 421; Hicks v. Murray, 43 Cal. 515; Knapp v. Roche, 37 N. Y. Superior 
 
 Gates V. Lane. 44 Id'. 392. Ct. (5 J. & Sp.) 395 ; Hauok v. Craig- 
 
112 ANALYSIS OF PLEADINGS. § 193. 
 
 and not the probative facts which should be averred, and it is 
 error in the court to exclude evidence offered to establish the 
 probative facts, although they are not averred in the pleading, i 
 For example : title of plaintiff is an ultimate fact in ejectment, 
 while the facts established by plaintiff going to support such 
 title are probative facts. ^ 
 
 The expression "facts constituting a cause of action" means 
 those facts which the evidence upon the trial will prove, and 
 not the evidence required to prove their existence. ^ They have 
 been variously called physical facts,* or issuable facts, ^ or real, 
 traversable facts. ^ As before stated, facts and not evidence 
 should be alleged. In other words, it is not necessary in alleg- 
 ing a fact to state such circumstances as merely tend to prove the 
 truth of the fact.^ 
 
 § 193. What should be Omitted. — Nothing should be 
 alleged affirmatively which is not required to be proved. ^ For it 
 is the intention of the code to require the pleadings to be so 
 framed as not only to apprise the parties of the facts to be 
 proved, but to narrow the proofs on the trial,^ the rule being that 
 the allegations and the proofs must correspond. i" And alle- 
 gations merely formal, i. e., such as require no proof at the trial, 
 are unnecessary. i^ And this is the reason why it is not 
 necessary to aver that a note was given for a " valuable consid- 
 eration," or, in an action for damages for assault' and battery, 
 that A. " wrongfully and unlawfully " beat B., or, in an action 
 for libel, for a publication which is libelous per se, that it was pub- 
 lished " falsely and maliciously ; " for it was of course false, or 
 it would not be libelous, and malice will be presumed when the 
 falsehood is shown. But where a consideration is not ira- 
 
 head, 4 Hun, 561; Sussdorf V.Schmidt, Le/^. Obs. 281 ; Carter v. Koezley, 14 
 
 58N. Y. 319; Boynton v. Boynton, 43 Abb. Pr. 150; Cahill v. Palmer, 17 
 
 Howard, 380; Beard v. Yates, 2 Hun, Id. 196. 
 
 466 ; Degraw v. Elmore, 50 N, Y. 1 ; * Lawrence v. Wright, 2 Duer, 674 ; 
 
 Dudley V. Scranton, 57 N. Y. 424; see Drake v. Cockroft, 1 Abb. Pr. 203. 
 
 Barnes v. Quigley, 59 N. Y. 265; Cal. » Green v. Palmer, 15 Cal. 416. 
 
 Code C. P., sees. 469-471 ; Parnsworth * Mann v. More wood, 5 Sandf. 557. 
 
 V. Holderman, 3 West Coast Rep. 342 ; ' Steph, PI. 342. 
 
 State V. Roe, 1 Id. 602 ; Orr v. Hop- « Green v. Palmer, 15 Cal. 414 ; 
 
 kins, Id. 157. Decker v. Mathews, 2 Kern. 320; 
 
 iGrewell v. Walden, 23 Cal. 165; Bank of U. S. v. Smith, 11 Wheat. 
 
 Moore v. Murdoek, 26 Cal. 514; Miles 171 ; Haskell v. Village of Penn Yan, 
 
 V. McDermot, 31 Id. 271 ; Depuy v. 6 Lans. 43. 
 
 Williams, 28 Id. 313 ; Marshall v. » Pieroy v. Sabin, 10 Cal. 22. 
 
 Shafter, 32 Id. 176 ; See v. Cox, 16 Mo. " Maynard v. P, P. Ins. Co., 34 
 
 166; Sanders v. Anderson, 21 Id. 402. Cal. 48. 
 
 2 Marshall v. Shafter, 32 Cal. 176. " Ensign v. Sherman, 14 How. Pr. 
 
 ' Wooden v, Strew, 10 How, Pr. 439 ; Biggerstaff v. Briees. 3 West 
 
 50; Dows V. Hotchkiss, 10 N. Y. Coast Rep. 353. 
 
§ 195. PLEADINGS IN GENERAL. 113 
 
 plied, or a request Is essential to the defendant's liability, it 
 must be specially averred in the pleading.^ 
 
 The only exception to this rule is to negative a possible per- 
 formance of the obligation which is the basis of the action, or 
 to negative an inference from an act which is in itself indiffer- 
 ent.2 What is inserted in a pleading must be decisive of some 
 part of the cause, one way or the other. 
 
 § 194. Mode of Stating Facts. — ^The facts in a pleading 
 should be stated: 1. In their logical order; 2. By direct aver- 
 ment; 3. In ordinary and concise language; 4. "With reason- 
 able certainty. These several rules will be considered in the 
 order in which they are mentioned. 
 
 § 195. Facts should be Stated Logically. — By "logical 
 order" is meant " natural order." * It is laid down as an essen- 
 tial prerequisite that logical order should be observed in the 
 statement of facts in the pleading.* The California code, section 
 426, provides that the complaint shall contain "a statement of 
 the facts constituting the cause of action in ordinary and concise 
 language." It may be observed that, in erecting a building, the 
 architect does not commence at the top, but at the base, placing 
 each part of his foundation in its proper position, in such a man- 
 ner that it may not have to be removed or reconstructed. So, 
 in framing a pleading it must be remembered that we are making 
 a statement of certain facts which we relate in the order of their 
 occurrence, and the complete narration must bo made in concise 
 language and with sufficient certainty, thus constituting the 
 superstructure of the entire transaction. Should we commence 
 at the wrong end of the story, we would be building without a 
 foundation, and the pleading would be unintelligible ; or should 
 we relate only the latter part of the transaction, however just or 
 plausible might be our statements, still we would not have stated 
 a cause of action, for there would not be a complete and con- 
 nected statement of the transaction. 
 
 It has been held that facts should be stated according to their 
 legal effect. 5 But authorities in states having a code are quite 
 
 1 Spear v. Downing, 12 Abb. Pr. Doug. 667 ; 2 Salk. 574 ; 1 LA. Kaym. 
 437 ; Orr v. Hopkins, 1 West Coast 400 ; Lawes PI. 62 j 1 T. R. 446 ; 
 Kep. 157; Alden v. Carpenter, Id. 598. Steph. PI. 389; Boyce v. Brown, 7 
 
 2 Green v. Palmer, 15 Cal. 411 ; Barb. 85 ; Pattison v. Taylor, 1 N. 
 Payne v. Treadwell, 16 Id. 244. Y. CodeR. 175; 8 Barb. 250; Dollner 
 
 3 Green v. Palmer, 15 Cal. 414. v. Gibson, 3 N. Y. Code R. 153 ; Cog- 
 *1 Ch. PI. 231; Gould's PI. 4; 2 gill v. Amer. Esc Bank, 1 Comst. 117; 
 
 Till. & Shear. 8. Stewart v. Travis, 10 How. Pr. 153; 
 
 'Gould's PI, 145; Bac. Abr., i. 7; Bennett v. Judson, 21 N. Y. 240; 
 
 Co. Litt. 193; Com. Dig. PI. 37; 2 Barker v. Lade, 4 Mod. 150; Howell 
 
 Saund. 96 ; Cowp. 600 ; Oro. Bliz. 352 ; v. Richards, 11 East, 633. 
 ESTEE, Vol, I— S 
 
114 ANALYSIS OP PLEADINGS. § 195. 
 
 as numerous the other way. In some cases it has been held that 
 facts should be stated as they actually occurred or exist.^ In 
 other cases it is held that facts may be alleged either way. Thus, 
 it seems that an act done by an agent may be alleged as the act 
 of the principal, which is the legal effect of the fact, or it may be 
 alleged as the act of the agent, done as agent of the principal.* 
 
 It is evident, however, that pleading facts according to their 
 legal effect is, in most cases, necessary to conciseness, which is 
 one of the requirements of code pleading, and is not, we think, 
 in conflict with any of the requirements of the code. The rule, 
 it is true, has more special application to deeds and other writ- 
 ings, but is not restricted to them ; but, under some circum- 
 stances, may extend to all matters and transactions which a 
 party may be required to allege in pleading ; as where a fact 
 necessarily embraced or implied certain other facts which were 
 but the evidences of the material fact, it is sufficient to allege 
 the legal or material fact.^ This rule, indeed, in many cases, 
 can scarcely be distinguished from that whicii requires ultimate 
 facts to be stated and not the evidence of them. Take, for ex- 
 ample, an action for personal injury resulting from negligence ; 
 it was and still is sufficient for the plaintiff to allege in general 
 terms that the injury complained of was occasioned by the care- 
 " lessness and negligence of the defendant, without stating the 
 circumstances, in order to show that it was occasioned by neg- 
 ligence.* But care must be taken not to confound pleading 
 facts according to their legal effect, and pleading mere conclu- 
 sions of law ; the one is still a fact, while the other is not. 
 
 The converse of the rule above stated is equally true.* In 
 one case the court said: " But facts are not to be, or at least 
 need not be, separated entirely from the law by the -pleader; 
 nor could they be without great and most damaging prolixity. 
 In this, as well as in most things, theory and practice are com- 
 pelled to meet each other half way for the sake of attainable 
 good. The last analysis between fact and law is usually made 
 by the judge at the trial. "^ 
 
 •Ives V. Humphreys, 1 E. D.Smith, • Chiles v. Drake, 2 Meto. (Ky.) 
 
 196 ; Lee v. Ainslee, 4 Abb. Pr. 463 ; 146 ; Kountz v. Brown, 16 B. Mon. 
 
 Smith V. Leland, 2 Duer, 509 ; Far- 582 ; 2 Oh. PI. 650. 
 
 ron V. Sherwood, 17 N. Y. 227, and * Cochran v. Goodman, 3 Cal. 244 ; 
 
 many other cases. Stoddard v. Treadwell, 26 Id. 294 ; 
 
 2 See Bennett v. Judsdn, 21 N. Y. see also Dambmann v. White. 48 Id. 
 
 240 ; Dollner v. Gibson, 3 Code E. 153 ; 450. 
 
 Barney v. Worthington, 4 Abb., N. « Nudd v. Thompson, 34 Cal. 47; 
 
 S., 205. and see Newman's PI. & Pr. 267. 
 
 ' See Shaw v.Jayne, 4 How. Pr, 119. 
 
§ 197. PLEADINGS IN GENEBAL. 115 
 
 § 196. Facts must be Alleged by Direct Averment. 
 
 It is the rule, both at common law and under the code, that 
 facts must be alleged by direct averment, and that an averment 
 is a positive statement of a fact, as opposed to argument, or in- 
 ference,^ or recital. 2 
 
 For instance, it is not an averment that a certain house in 
 San Francisco, known as the "Willows," is a hotel, if it is 
 stated thus: that " certain furniture was furnished for and used 
 in the furnishing of the hotel in the city and county of San 
 Francisco known as the 'Willows.' "^ justice Sanderson, in 
 the case referred to, disposes of the complaint by saying: "It 
 was not an allegation that the goods were used in a hotel, or 
 used in a building called the ' Willows,' or that such building 
 was a hotel; these facts were only stated inf erentially. " All 
 essential facts must be stated directly in unequivocal language, 
 and not left to be inferred.* 
 
 One of the reasons why all essential facts should be averred 
 directly and unequivocally is obvious when we consider that if 
 the language of a pleading is .doubtful, it is construed most 
 strongly against the pleader.* 
 
 Especially must the facts be positively alleged to entitle the 
 plaintiff to an injunction founded on the allegations of his com- 
 plaint.^ But allegations on information and belief are allowa- 
 able ; '' but to authorize an injunction, the facts stated on in- 
 formation or belief must be supported by the affidavit of one or 
 more who can testify to such facts from personal knowledge. 
 And to state the nature and source of the information does not 
 vitiate an independent averment of such facts.^ 
 
 § 197. Facts must be Alleged in Ordinary and Concise 
 Language. — As pleading is but a narration of the events which 
 constitute the wrong suffered, and a de nial of the same or ad- 
 mission thereof by a different statement, these statements must 
 be made in ordinary and concise language ;*> that is, in just 
 
 U Ch. PI. 319; Cowp. 683; Bao. "Moore v. Besse, 30 Cal. 570; 1 
 
 Ab. Pleas, B. Whitt. 578. 
 
 2 Steph. PI. 387 ; Bao. Abr. Pleas, « Crocker v. Baker, 3 Abb. Pr. 182 ; 
 
 B. ; Gould's PI 55 ; Co. Lit. 803 ; 1 Levy v. Lay, 6 Id. 90 ; Rateau v. 
 
 Oh. PI. 231; Cowp. 683; Shafer v. Bernard, 12 flow. Pr. 464. 
 
 Bear River, 4 Cal. 294; Denver v. ' St.Jolins v. Beers, 24 How. Pr. 877 ; 
 
 Burton, 28 Id. 549 ; Stringer v. Davis, Howell v. Praser, 1 N. Y. Code R. 270. 
 
 30 Id. 318; Campbell v. Jones, 38 Id. « Burrowe v. Millbank, 5 Abb. Pr. 
 
 507; Gates v. Lane, 44 Id. 392 ; West 28. 
 
 V. American Bxch. Bank, 44 Barb. ' 1 Van Santv. 35 ; Rey v. Simpson, 
 
 175; Truscott V. Dole, 7 How. Pr. 22 How. U. S. 341; Green v. Palmer, 
 
 221. 15 Cal. 411 ; De Witt v. Hays, 2 Id. 
 
 ' Stringer v. Davis, 30 Cal. 320. 468 ; Jones v. Steamer " Cortez,'.' 17 
 
 * Moore v. Besse, 30 Cal. 572. Id. 487 ; Smith v. Kowe, 4 Id. 6. 
 
116 ANALYSIS OF PLEADINGS, § 198. 
 
 such language as men use in conveying the knowledge of simi- 
 lar facts to one another. The provision of the code in this re- 
 spect is only declaratory of the common law.^ Under our stat- 
 ute, there are no words which have one meaning in a pleading 
 filed in an action, and another meaning when used in common 
 conversation. It was stated by Lord Mansfield that " the sub- 
 stantial rules of pleading were founded in strong sense and the 
 soundest and closest logic." In a pleading under our statute 
 this remark is eminently applicable. If the pleader would but 
 tell the story of his client's wrongs upon paper as he would in 
 private conversation, very few of his pleadings would be demur- 
 rable. For instance, A. meets B. and says : " C. is indebted to 
 me in the sum of one thousand dollars." B. asks : " What for?" 
 "When A. answers: " For- goods I sold him in January last; and 
 I have just demanded payment, and he has refused to pay me." 
 Here we have the whole story of A.'s wrongs, and if he should 
 make a complaint spread over many pages, no further facts 
 could be presented, because they do not exist. 
 
 § 198. Facts must be Alleged with Sufficient Cer- 
 tainty. — ^The matter pleaded must be clearly and distinctly 
 stated, '■* so that the pleadings may be understood by the partv 
 who is to answer them.^ The certainty required in pleading 
 relates chiefly to time, place, person, and subject-matter.^ 
 Facts must be stated with absolute deflniteness, and nothing 
 should be left for inference. ^ 
 
 All ambiguity must be avoided, as well as langnage of doubt- 
 ful, vague, or uncertain meaning.^ But mere vagueness is not 
 frivolousness, and is to be corrected by amendment.' Nor, as 
 before remarked, should such allegations of fact be stated argu- 
 mentatively.8 Nor in the alternative.^ Nor by hypothesis. 
 Such statements are improper, for the court has to deal with 
 the facts in the case, and not with hypothesis.^" But denials 
 must in many cases be hypothetical, ii 
 
 If time is material to constitute a cause of action, it should 
 
 1 Gladwin v. Stebbins, 2 Cal. 105. ' Kelly v. Barnett, 16 How. Pr 185 
 
 3 ?n^-f %T'oI^- ^'Steph. PI. 178, 383; Austin v. 
 
 3 1 Chit. Fl. 233. Parker, 13 Pick . 222. 
 
 5 S°"^'^'' ^i ^^ ' f^^X\ ?^- 2^^- ' '^'SP^- P'- 386 ; Stone v. Graves, 
 
 SMoorev. Besse, 30Cal.570; Peo- 8 Mo. 148 ; Salters v. Genin, 10 Abb. 
 
 pie V. Supervisors of Ulster, 34 N. Y. Pr. 478. , i" -o-uu. 
 
 268 ; Ferguson v. Harwood, 7 Cranoh, i» Stepb. PI. 386 ; Green v. Palmer, 
 
 ''h Ch. PI. 236; Steph. PI. 378; ^^..^^^g «*= ^ies v. Fanning, 9 How. 
 
 nT"chHs?rv.'roo«?°14 Hot'u.^'s: 31;:^— %ckman, 12 How. Pr. 
 
 282« 
 
§ 199. PLEADINGS IN GENERAL. 117 
 
 be alleged with sufficient certainty.^ The day on which it is 
 alleged in the pleading under a videlicet, that an act is done, is 
 usually, however, immaterial.^ By "not material" in this con- 
 nection is meant it may be departed from in the evidence. ^ 
 When it is . an essential point, the place at which the contract 
 was made must be alleged.^ To make a pleading which is bad 
 in these respects definite and certain, the remedy is by motion. ^ 
 
 § 199. Pleadings, Hovr Construed. — It will be observed, 
 by what we have before said, that it is not claimed that our code 
 more than points out and defines certain landmarks by which 
 the pleader may be guided. The rules of the common law and 
 the decisions of the courts should still be consulted when a 
 question of the sufficiency of a pleading arises. And all ques- 
 tions pertaining to the common rules of pleading, not expressly 
 directed by statute, remain unchanged. But the code of Cali- 
 fornia, sec. 421, provides: "That all forms of pleadings in 
 civil actions, and the rules by which the sufficiency of plead- 
 ings is determined, shall be those prescribed in this code." 
 
 In the construction of a pleading for the purpose of deter- 
 mining its effect, the allegations shall be liberally construed, 
 with a view to substantial justice between the parties.^ And 
 with greater liberality when parties go to trial on an issue of 
 fact than when tested on demurrer.' As used in this connec- 
 
 ^ People V. Eyder, 2 Kern. (12 N. v. Eldredge, 29 Id. 309 ; Stockwell v. 
 Y.)439. Wager, 30 Id. 271 ; but see Burke v. 
 
 2 Lester V. Jewett, 1 Kern. 460; Thorne, 44 Barb. 368. 
 
 Lyon V. Clark,4 Seld. 148; Dubois v. ' White v. Spencer, 14 N. Y. 247; 
 
 Beaver, 25 N. Y. 123. St. John v. Northrup, 23 Barb. 26 ; 
 
 3 Andrews v. Chadbourne, 19 Barb. Oady v. Allen, 22 Id. 394; Bennett v. 
 147 J.udson, 21 N. t. 238. Or on motion : 
 
 * See Thatcher v. Morris, 1 Kern. Wall v. Buffalo Wat. Works, 18 Id. 
 
 440;-also, Vermilya V. Beatty, 6 Barb. 119; Lounsbury v. Purdy, Id. 515; 
 
 429 ; Beach v. Bay State Co., 10 Abb. Bank of Havana v. Ma<;ee, 20 Id. 
 
 Pr 71. 355. In Farnsworth v. Holderman, 
 
 'People V. Eyder, 2 Kern. 439; 3 West Coast Eep. 342, the court 
 
 Simmons v. Eldridge, 29 How. Pr. thus stated this rule: " The contract 
 
 309 ; Nash. v. Brown, 18 Law Jour, offered and read in evidence by the 
 
 Eep., N. Si, 62; Payne v. Banner, 15 plaintiff was meagerly set forth In the 
 
 Id. 227; Marshall v. Powell, 8 Law complaint; and it is quite clear that 
 
 Times (2 B.) 159 ; and 13, Jurist, 126. under the common-law rules of plead- 
 
 Por remedy by motion, see vol. ii., Ing it could not properly have been 
 
 Notices, Motions, and Orders. admitted in. evidence ; as under that 
 
 ^ California Code, sec. 452 ; Nevada system, justice between the parties 
 
 Code, sec. 70; Idaho, sec. 70; Arizona, was often secondary to a strictly 
 
 sec. 70; N. Y. Code, sec. 159; 1 Van technical adherence to the doctrine 
 
 Santv. 775; 1 Whitt. Pr. 596; Allen that 'the proofs must correspond 
 
 V. Patterson, 7 N. Y. 476; Simmons with the allegations.' But recent 
 
 V. Sisson, 26 Id. 264; Blackmer v. statutes have displaced this system 
 
 Thomas, 28 Id. 67; Yertore v. Wis- of technicalities, and introduced more 
 
 well, 16 How. Pr. 8 ; Marshall v. equitable rules, requiring the allega- 
 
 Shafter, 32 Csvl. 176; Butterworth v. tions of pleadings to be liberally 
 
 O'Brien, 24 How. Pr. 438; Simmons construed, with a view to substantial 
 
118 
 
 ANALYSIS OF PLEADINGS. 
 
 § 199. 
 
 tion, substantial justice means substantial legal justice, to be 
 ascertained and determined by fixed rules and positive statutes.^ 
 That allegations should be liberally construed does not mean 
 that the omission of substantial averments should be disre- 
 garded ;2 since the law will not assume anything in favor of a 
 party, which he has not averred. ^ 
 
 "Words used in a pleading should ordinarily be construed in 
 their popular sense.^ Various examples of the meanings which 
 have been given to certain words and phrases in common use in 
 pleadings are given in the note.* 
 
 justice between the parties. It is 
 sufficient if the complaint contain, in 
 ordinary and concise language and 
 reasonable certainty, allegations of 
 such constitutive facts as will entitle 
 the plaintiff to prove and maintain 
 his case, and give the defendant op- 
 portunity to meet and controvert the 
 alleged facts relied upon by the 
 plaintiff. To ignore this express com- 
 mand of the statutes by an adher- 
 ence to the system which they were 
 intended to abrogate, would be a 
 wanton neglect of a plain rule of law 
 and duty." 
 
 1 Stevens v. Boss, 1 Cal. 95. 
 
 2 Koenig v.Nott, 2 Hilt.-325; Spear 
 V. Downing, 84 Barb. 523; 12 Abb. 
 Pr. 437. 
 
 ' Cruger v. Hudson River R. E. Co., 
 2 Kern. 201. 
 
 * 1 Chit. 238 ; Backus v. Richard- 
 son, 5 Johns. 476; Woodberry v. Sack- 
 rider, 2 Abb. Pr. 405 ; Mann v. More- 
 wood, 5 Sand. 557; Woolnoth v. 
 Meadows, 5 East, 463; Roberts v. 
 Camden, 9 Id. 93; Respublica v. De 
 Longchamps, 1 Dall. Ill; Rue v. 
 Mitchell, 2 Id. 59; Brown v. Lam- 
 berton, 2 Binney, 37 ; Pelton v. Ward, 
 8 Caines, 76. The subject is fully 
 discussed in Walton v. Singleton, 7 
 Serg. & K. 449. 
 
 ^ Acceptance implies a due accept- 
 ance: G-raham v.Maohado,6Duer,514: 
 Bk. of Lowville v. Edwards, 11 How. 
 Pr. 216. Allegation that certain drafts 
 were accepted by a corporation, by 
 their treasurer includes an averment 
 of authority in the treasurer to accept : 
 Partridge v. Badger, 25 Barb. 146. 
 
 Continuance of Ownership will be 
 presumed where the allegation states 
 ownership on a certain day : Van Rens- 
 selaer V. Bonesteel, 24 Barb. 366. 
 
 Conversion implies a wrongful con- 
 version : Young v. Cooper, 20 Law 
 Jour. R., Ex. 136 ; 6 Ex. 62. 
 
 Delivery. — Allegations of making a 
 
 written instrument imply delivery : 1 
 Chit. PI. 364; citing Peets v. Bratt, 
 6 Barb. 662; Prindle v, Caruthers, 15 
 N. Y. 426 ; Lafayette Ins. Co. v. Rogers. 
 80 Barb. 491. 
 
 Entry on lands means lawful entry: 
 Turner v. McCarthy, 4 B. D. Smith, 
 248. 
 
 Indorsed means lawfully indorsed : 
 Mechanics' Bank Assn. v. Spring Val. 
 Shot Co., 25 Barb. 419; Price v. Mc- 
 Clave, 6 Duer, 544 ; Bank of Geneva 
 V. Gulick, 8 How. Pr. 51. And in- 
 cludes delivery: Bank of Lowville v. 
 Edwards, 11 How. Pr. 216. 
 
 Lease in Writing. — A lease said to 
 be in writing must be taken to be a 
 parol lease : Vernam v. Smith, 15 N. 
 Y. 332. And an agreement for quiet 
 enjoyment is imnlied from its terms : 
 Mayor of New York v. Mabie, 3 Kern. 
 151 ; Tone v. Brace, 11 Paige, 566. 
 
 Negligence. — Negligence includea 
 gross as well as ordinary negligence: 
 Kolton V. West R. R. Corp., 15 N. Y. 
 450 ; Edgerton v. New York and Har. 
 R. R. Co., 36 Barb. 389. 
 
 No Award implies no valid award : 
 Dresser v. Stansfleld, 14 M.& W;822; 
 and " no memorial," no valid memo- 
 rial : Hickes v. Cracknel!, 3 Id. 77. 
 
 Overpayment means an overpay- 
 ment in money : Mann v. Morewood. 
 6 Sandf. 557. 
 
 Possession implies legal possession: 
 23 Ind. 548. 
 
 Signed means made, when applied 
 to a promissory note: Price v. Mo- 
 Clave, 6 Duer, 544; Bank of Geneva 
 V. Gulick, 8 How. Pr. 51. 
 
 Subscription to Stock. — That the de- 
 fendants subscribed to so many shares 
 of stock implies that they were the 
 owners of and entitled to those shares : 
 Oswego and Syracuse PI. Rd. Co. v. 
 Rust, 5 How. Pr. 390. 
 
 Taking means an unlawful taking: 
 Childs V. Hart. 7 Barb. 372. 
 
 Unlawful, Wrongful, are oonolu- 
 
§ 200. PLEADINGS IN GENERAL. 1 19 
 
 § 200. The Same— Verified Pleadings.— A verified plead- 
 ing must be construed so as to make all its parts harmonize, if 
 possible, with each other.^ And the entire pleading must be 
 considered together.^ 
 
 The averment which bears most strongly against the pleader 
 will be taken as true.^ But the liberal provisions of the statute, 
 in facilitating amendments to pleadings, have somewhat modified 
 the maxim that pleadings should be construed most strongly 
 against the pleader, as laid down by standard au thors ; and 
 which, subject to such modification, has been declared as still 
 the rule of construction.'* 
 
 It is presumed that every person states his case as favor- 
 ably to himself as possible. ^ And yet the language of a plead- 
 ing is to have a reasonable intendment and construction.^ 
 
 So, if a pleading has on its face two intendments, it ought to 
 be construed by this rule.^ But where an expression is capable 
 of different meanings, that meaning should be taken which will 
 support the allegation, and not the one which would defeat 
 it. 8 And when a word has two meanings in law differing in 
 degree merely, it will be understood in its larger sense, unless 
 it appears to be used in its narrower sense. * 
 
 Doubtful language is construed most strongly against the 
 pleader,^" unless confessed to be ambiguous, with a request on 
 the part of the pleader to be allowed to amend.^^ Where it is 
 doubtful on which the pleader intends to rely, tort or contract, 
 that construction should prevail which is most unfavorable to 
 the pleader.^^ • 
 
 sions of law : Payne & Dewey v. Tread- ' 1 Ch. PI. 241 ; Co. Lit 303 ; Fuller 
 
 well, 16 Cal. 220. "When used in con- v. Hampton, 5 Conn. 422. 
 nection with issuable facts, though « 1 Ch. PI. 237 ; Com. Dig. PI. (C. 
 
 they do not vitiate a pleading, are 25) ; Hastings y. Wood, 13 Johns. 482. 
 Burplusage, and had better be omitted: ' United States v. Linn, 1 How. (U. 
 
 Miles V. McDermott, 31 Cal. 271; S.) 101; 17 Pet. (U. S.) 88; compare 
 
 Hdlleck V. Mixer, 16 Id. 575. iCerr v. Force, 3 Cranch, 8. 
 
 Writing Obligaiory. — At common ^ j cjjit. 237; Vernon v. Keyes, 4 
 
 law. the term " writing obligatory " Taunt. 492 ; Gage v. Acton. 1 Salk. 325 ; 
 
 In a pleading imports a sealed instru- The King v. Stephens, 5 East, 244, 
 
 ment : Clark v. Phillips, Hempst. 294. 257 ; 12 Id. 279 ; Pender v. Dicken, 27 
 
 1 Ryle V. Harrington, 4 Abb. Pr. 421. Miss. (5 Cush.) 252. 
 
 2 Farrish v. Coon, 40 Cal. 33 ; AUe- » Miller v. Miller, 33 Cal. 353. 
 many v. Petaluma, 88 Id. 553 ; 4 Bast, " Steph. PI. 378 ; 1 Chit. 237 ; Moore 
 502; Beach V. Berdell, 2 Duer, 327; v. B esse, 30 Cal. 570; Bates v. Rose- ■ 
 Hatch V. Peet, 23 Barb. 575. krans, 23 How. Pr. 98 ; Eidder v. 
 
 3 Bell V. Brown, 22 Cal. 671 ; Tris- "Whitlock, 12 Id. 208. 
 
 conny v. Orr, 49 Id. 612. '' Nevada and Sacramento Co. Canal 
 
 * Dickinson v. Mnguire, 9 Cal. 46 ; Co. v. Kidd, 28 Cal. 673 ; Chipman v. 
 
 Moore v. Besse, 30 Id. 570 ; Kingsley Eraerio, 5 Id. 49. 
 
 V. Bill, 9 Mass. 198; Doane v. Badger, 12 Ridder v. "Whitlock, 12 How. Pr. 
 
 12 Id. 69; Star Steamship Co. v. 21 2 ; Hunger v. Hess, 28 Barb. 75. 
 Mitchell, 1 Abb. Pr. (N, S.) 396. 
 
120 ANALYSIS OF PLEADINGS. § 201. 
 
 This rule, however, does not require such a construction to 
 be given as will make the pleading absurd.-* The demand for 
 judgment, and the summons, may in such cases be consulted.^ 
 
 Allegations in the present tense in a verified pleading must 
 be deemed as relating to the date of verification. ^ If the alle- 
 gations of a defense are pertinent to the controversy, their suffi- 
 ciency can only be tested on demurrer or on the trial.'* 
 
 A general allegation, followed by a specific one, is governed 
 by the latter. The latter clause of the sentence explains and 
 restricts the former part ;5 and an averment of a legal conclu- 
 sion at variance with an admitted fact will be disregarded. ^ 
 And such averment, without any fact to warrant it, is always 
 disregarded. 
 
 § 201. Implied Admissions in Pleadings. — A-' failure to 
 answer is an admission of every issuable fact stated in the com- 
 plaint, and of those only.^ But such failure to answer does 
 not admit anything contained in the answer of a co- defendant. ^ 
 
 ^ 202. Admissions by Demurrer and Answer. — A de- 
 muiTcr admits the truth of such facts as are issuable and well 
 pleaded, but not the conclusions drawn therefrom. A demurrer 
 to the answer to a petition for a writ of mandate is an admis- 
 sion of the matters averred in the answer. ^ Every material 
 allegation in the complaint, not controverted by the answer 
 thereto, shall, for the purpose of the action, be taken as true." 
 The failure to deny is an admission of the truth of such alle- 
 gations, and such admission is conclusive.ii So when the answer 
 contains a cross-complaint, the matters therein alleged will be 
 taken as confessed, if not replied to.i^ But immaterial allega- 
 tions require no denial, and are not admitted by such failure to 
 deny them.i^ Nor averments of mere evidence." The statement 
 of any new matter in the answer, in avoidance, or constituting 
 
 1 1 Chit. 237 ; Marshall v. Shatter, 8 Woodworth v. Bellows 4 How 
 
 32 Gal. 176 ; Lorraine v. Long, 6 Id. Pr. 24. ^euows, 4 ±low. 
 
 452. 'Middleton v. Low. 30 Hul KQR. 
 
 ^Sellar v. Sage, 12 How. Pr. 531; Bran ham v. Mayorof San Jose 24Id' 
 
 Rodsers V. Rodgers, 11 Barb. 696; 602. Whetheranything more than th« 
 
 Chambers v. Lewis, 2 Hilt. 591 exact allegations of a cfmpTai. t ond^ 
 
 3 Wheeler v. Heermans, 3 Sandf. murrer are admitted, see LvonvCitv 
 
 Ch.597; Kioev. O'Connor, 10 Abb. of Brooldyn, 28 Barb. 612. Jor further 
 
 • ir. 362. authorities, consult Demurrfir vnl 9 
 
 Carpenter V. Bell, 19 Abb. Pr. 258. i^ California Code. 36^462 ^Nevada 
 
 Hatch V. Peet, 23 Barb. 584. Code, Id. ; Idaho, Id!r Arizona Id , 
 
 8Jone3v. PhcenixBank,4Seld.235; N. Y. Code, sec. 268 '^"^°°*' ^l- ' 
 
 Robinson V. Stewart, 10 N. Y. 189. " Doll v. Good 38 Oal 287 
 
 'Doll V. Good, 38 Cal. 287; De 12 Herald v. Smith 34 CaI12'i 
 
 Godey Y De Godey 39Id,157; Brad- i^ Canfield v. Tobias, 21 Cal 349- 
 
 bury V. Cronise, 46 Id. 287; Coffman Oechs v. Cook, 3 Dner 161 ' 
 
 V. Brown, 2 West Coast Rep. 98. " Eacouillat v. Rene,' 32 Cal. 450. 
 
§ 204. PLEADINGS IN GENERAL. 121 
 
 a defense or counter-claim, must on the trial be deemed con- 
 troverted by the opposite party -^ as a plea of infancy,^ or the 
 statute of limitations.* If a complaint is sworn to, a general 
 denial in the answer thereto admits all the material allegations 
 thereof: the denial should be speciflc* And where the admis- 
 sions in the answer negative its general denials, the latter may 
 be disregarded. 5 A specific denial of one or more allegations 
 is an admission of all others well pleaded.* So, also, a denial 
 of value alleged is an admission of any value less than the 
 amount alleged.'' Literal and conjunctive denials are bad. 
 Where allegations are compound, and are denied as a whole in 
 the exact language of the complaint, the allegation wUl be 
 deemed admitted.^ 
 
 § 203. Admissions by Want of Verifications. — In Cali- 
 fornia, if the answer be not verified, the genuineness and due 
 execution of the written instrument, of which complaint con- 
 tains a copy, shall be deemed admitted, whether the complaint 
 be verified or not.^ This is confined to those who are alleged 
 to have signed the instrument. An administi-ator need not deny 
 the signature of the intestate under oath;!" and when the de- 
 fense to an action is founded on a written instrument embodied 
 in the answer, the genuineness and due execution of the instru- 
 ment shall be deemed admitted, unless an affidavit be filed 
 denying the same.^ But the due execution of the instrument 
 shall not be deemed admitted, unless the party controverting 
 the same is upon demand permitted to inspect the original. '^ 
 A paper attached to a complaint as an exhibit, purporting to be 
 an admission of agency, is not an admission, if the answer 
 denies the agency.^* Exhibits attached to an answer need no 
 further verification than what arises from the averments in the 
 answer, that they are copies." 
 
 § 204. Effect of Admissions. — No proof is required of 
 facts admitted or not denied,^* except for an amount of unUqui- 
 
 1 California Code, sec. 462. Smith v. Richmond, Id. 501 ; Doll v. 
 
 2 Hodges V. Hunt, 22 Barb. 150. Good, 38 Id. 287. 
 
 3 Esseltyn v. Weeks, 2 E. D. Smith, ' California Code, see. 447 ; Sacra- 
 116- 2 Kern. 635; see, also, Cutler v. mento Co. v. Bird, 31 Cal. 78; Bur- 
 Wright, 22 N. Y. 472 ; McKenzie v. nett v. Stearns, 33 Id. 468. 
 
 Farrell, 4 Bosw. 193. " Heath v. Lent, 1 Id. 411. 
 
 * Pico v. Colimas, 32 Cal. 578 ; Lan- " California Code, sec. 448. 
 ders V Bolton, 26 Id. 398. ^ California Code, sec. 449. 
 
 5 Fremont V. Seals, 18 Cal. 433. i^ (Jarfield v. Knight's Perry and 
 
 6 De Ko V Cordes, 4 Cal. 117. * Tab. Mt. Wat. Co., 14 Cal. 37. 
 ' Towdy V. Ellis, 22 Cal. 651. " Ely v. Frisbie, 17 Cal. 250. 
 
 8 Blood V. Light, 81 Cal. 115; i' Tuolumne Redemption Co. v. Pat- 
 AWnnrlworth v. Knowlton, 22 Id. 164 ; terson, 18 Cal. 416 ; Patterson v. Ely, 
 Blankman v. Vallejo. 15 Id. 638; 19 Id. 28. 
 
122 ANALYSIS OF PLEADINGS. § 205. 
 
 dated damages.' On such admissions, the onus of proving his 
 affirmative allegations will be thrown on the defendant. ^ An ad- 
 mission in the answer that defendant received money to plaint- 
 iff's use, and refused to pay the same on demand, does not pre- 
 clude evidence of payment if payment is set up in the answer.^ 
 But an admission in one plea does not operate as an admission 
 in respect to an issue presented in another.* Where there are 
 several defenses in an answer, an admission made in one is not 
 an admission for all the purposes of the case. It does not de- 
 stroy the effect of a denial of the matter thus admitted in an- 
 other answer.^ When an ultimate fact is admitted, probative 
 facts, tending to establish, modify, or overcome it will not be 
 considered.^ So an admission of indebtedness implies a promise 
 to pay." 
 
 § 205. Variance and Defects. — Although, as heretofore 
 stated, the rule is well established that the allegata and probata 
 must correspond, and that the plaintiff must prove his case as 
 alleged in his complaint, ^ the codes uniformly provide than an 
 error or defect that does not affect a substantial right shall be dis- 
 regarded. ^ This provision of the code has been most beneficial 
 in doing away with the technicalities of the common law, and 
 should be liberally construed. i" And a disregard of a variance 
 may be held equivalent to an amendment at the trial. ^^ A vari- 
 ance between the pleadings and proof, if it be not a material 
 variance, that is, one which has actually misled the adverse 
 party to his prejudice, shall not be regarded.^* But where the 
 allegations in a pleading to which the proof is directed remain 
 unproved in its entire scope and meaning, it is not a case of 
 variance to be disregarded, and an amendment will not be 
 allowed unless it clearly appear to be in furtherance of justice 
 to allow it. 13 If evidence is offered by the plaintiff at variance 
 with the allegations of the complaint, and the counsel for the 
 defense does not object to it at the time, nor move to strike it 
 
 1 Stuart V. Binsse, 10 Bosw. 436. York Code, sec. 176 ; Nevada, sec 71 • 
 
 2 Thompson v. Lee, 8 Cal. 276. Idaho, sec. 71 ; Arizona, sec. 71 
 8 McDonald v. Davidson, 30 Cal. i» Began v. O'Reilly, 32 Cal 11 
 
 1'^*- , ^ l^Mullikenv. Hull, 5Cal.245: Cole- 
 
 4 Fowler v. Davenport, 21 Tex. 626. man v. Playsted, 36 Barb. 26 • Smith 
 
 5 Siter V. Jewett, 33 Cal. 92. v. Roe, 1 West Coast Rep. 502 
 
 8 Mulford V. Estudillo, 32 Cal. 131. >* California Code, sec. 475- Began 
 ' Levinson v. Schwartz, 22 Cal. 229. v. O'Reilh-, 32 Cal. 11 ; Plate v Veea 
 
 oo'^?"l^>^lv^^°' ^'°"' ^- Coffin, 3114.883; Lettmon v. Ritz, 8 Sanclf! 
 
 28 Cal. 65; Hathaway v. Ryan, 35 734. 
 
 Id. 188; Tomlinson v. Monroe, 41 i^ Egert v. Wicker, 10 How. Pr 193 ■ 
 
 »r\-f ■ r^ A .,. XT Catlin v. Hansen, 1 Duer, 309. 
 
 » California Code, sec. 475 ; New 
 
§ 205. PLEADINGS IN GENERAL. 123 
 
 out upon the ground of variance, this error is waived.^ As 
 illustrations as to what constitutes a material or immaterial de- 
 parture between the pleadings and the proofs, it has been held 
 that the complaint must agree with the summons in the de- 
 scription of the parties.'' On the contrary it was held in New 
 Hampshire, that the description of the defendants as partners 
 under a particular name or firm in the writ, is not an averment 
 that they promised by that name. Proof of the promise by an- 
 other name is therefore not a variance. ^ It was held in New 
 York, that a complaint setting forth a conversion by the de- 
 fendant, of money deposited with him, and demanding the 
 amount of such money,. is not a variance from a summons for a 
 money demand on contract.* So it has been held by the supreme 
 court of the United States, that a variance between pleadings 
 and findings will not be regarded where there is no allegation 
 that the findings were unwarranted by the proofs. ^ And where, 
 in an action against a common carrier for not complying with 
 a contract to carry or deliver a draft, the complaint alleged that 
 it was signed "John Q. Jackson," the proof showed that it 
 was signed "John Q. Jackson, Agent," it was held, that the 
 variance was immaterial.* Further examples of material and 
 immaterial variances are given in the notes.'' 
 
 » Bovoe V. California Stage Co., 25 tion: Plate v. "Vega, 31 Cal. 383; 
 
 Cal. 471 ; Bell v. Knowles, 45 Id. 193. Cochran v. Duty, 8 Allen (Mass.), 324. 
 
 2 Blanchard v. Strait, 8 How. Pr. A complaint alleged that the consid- 
 
 83 ; Tuttle v. Smith, 6 Abb, Pr. 336 ; eration of a contract was five thou- 
 
 AUen v. Allen, 14 How. Pr. 248. sand five hundred dollars ; the proof 
 
 s Brown v. Jewett, 18 N. H. 230. was, that the consideration was a sight 
 
 * Goff V. Edgerton, 18 Abb. Pr. 381. draft, which was paid : Held, no vari- 
 6 Railroad Co. v. Lindsay, 4 Wall, ance : Nash v. Towne, 5 "Wall. U. S. 
 
 TJ. S. 650. 689. 
 
 * Zeiglor v. "Wells, Fargo & Co., 28 Covenant. — Plaintiffs will not be 
 Cal. 263. allowed to recover upon an implied 
 
 ' Consideration. — It is not a variance covenant in a lease, totally difl'erent 
 
 if, upon the consideration stated in from the express covenant declared 
 
 the count, it is proved that the defend- on, when objection is specifically 
 
 ant undertook to do an act in addition made, though not taken until the evi- 
 
 to that, the non-performance of which dence is all in : Merritt v. Clossen, 36 
 
 is stated in the count : Morrill v. "Vt. 172. 
 
 Riohey, 18 N. H. 295. A written Dates. — So, when dates are in ques- 
 
 agreement in this form : "Borrowed tion, unless they be the gist of the ac- 
 
 and received of A., two hundred and tion, a variance will be immaterial : 
 
 sixty dollars, which 1 promise to pay Zorkowski v. Zorkowski, 3 Robertson, 
 
 on demand, with interest;" imports 613; United States v. Le Baron, 4 
 
 a consideration on its face ; and if the Wall. U. S. 642. When a contract 
 
 defendant in an action upon it, has is alleged to have been made on a oer- 
 
 introdueed evidence tending to show tain day, it is no variance to offer in 
 
 that it was given without consider- evidence a written contract which 
 
 ation, the plaintiff may prove that it took effect on a different day : Id. 
 
 was given in. payment of a debt of a Time stated in a pleading is often not 
 
 third person, although there is no material, and may be denarted from 
 
 averment to that effect in the deolara- in evidence : Andrews v. ChadDourne, 
 
124 
 
 ANALYSIS OF PLEADINGS. 
 
 § 206. 
 
 CHAPTER II. 
 
 FORMAL PARTS OF PLEADINGS. 
 
 § 206 The Formal Parts of Pleadings Consist of the 
 
 caption, commencement, prayer, verification, and subscription. 
 The caption consists of: 1. The name of the state and county 
 in which the action is brought ; 2, The name of the court, and, 
 
 19 Barb. 147; but compare Waldeni;. 
 Crafts, 2 Abb. Pr. 301 ; see also Peo- 
 ple ex rel. Kane v. Ryder, 2 Kern. 438. 
 An averment in the plaintiff's state- 
 ment, that notice of non-pnyment was 
 given at a wrong date, is but a defect 
 in form, and the subject of amend- 
 ment. It is not necessary to aver the 
 precise date when the notice was 
 given. And the averment in the 
 statement not being inconsistent with 
 the fact that another notice was given 
 at the proper time, if the parties go to 
 trial on the merits, on the pleas of 
 payment and payment with leave, etc., 
 judgment will not be arrested on the 
 ground of the insufiSciency of the state- 
 ment of notice of non-payment: Loose 
 v. Loose, 36 Pa. St. 538. 
 
 Deceit. — A declaration in action of 
 tort, which alleges that the plaintiff, 
 through his agent, procured the de- 
 fendants to furnish and deliver to him 
 a certain article, and that they negli- 
 gently and carelessly furnished a 
 different article, and that he sus- 
 tained an injury by the use of the 
 article furnished, believing it to be 
 that which he ordered, is not sus- 
 tained by proof that the plaintiff 
 bought the article of a third person, 
 who obtained it of the defendants: 
 Davidson v. Nichols, 8 Allen (Mass.), 
 75; see Porter v. Hermann, 8 Cal. 
 619. 
 
 ■Deseription. — So in a case where 
 the proof, among other things, showed 
 certain lands to extend a certain dis- 
 tance from the north-easterly instead 
 of the north-westerly corner of the 
 tract, as alleged in the complaint. 
 The judgment followed the descrip- 
 tion in the complaint. Defendant ap- 
 pealed. Held, that the variance m 
 the description of the premises did not 
 prejudice appellant ; that the question 
 was one of identity, and the fact that 
 the corner of the small tract was 
 called the north-easterly instead of the 
 north-westerly corner, was itself in- 
 
 sufficient to defeat the action, if the 
 other and more definite marks of de- 
 scription sufficiently indicated and 
 identified the premises : Paul v. Silver, 
 16 OhI. 75; Calderwood v. Brooks, 28 
 Id. 151. 
 
 Joint Liability. — Although the proof 
 may show a joint liability of the de- 
 fendant with another, and thus may 
 constitute a variance, yet if the objec- 
 tion is not taken in the mode pointed 
 out by the code, it is one which the 
 defendants shall be deemed to have 
 waived : Lee v. Wilkes, 27 How. Pr. 
 336. An action against two or more 
 for a joint trespass can not be sustained 
 by evidence of acts committed by one 
 ot them : Davis v. Cassell, 50 Maine, 
 294. 
 
 Nuisance. — A declaration charging 
 that the defendant dug, opened, and 
 made, is sustained by proof that he 
 formed it partially by excavation, and 
 partially by raising walls : Robbins v. 
 Chicago City, 4 Wall. U. S. 657. 
 
 Promise. — If the declaration alleges 
 a single promise for the performance 
 of two different things, founded upon 
 an entire consideration, and the evi- 
 dence shows two promi ses, at different 
 times, upon distinct considerations, 
 that is a fatal variance : Hart v. Ches- 
 ley, 18 N. H. 373. 
 
 Promissory Note. — It is held in 
 Massachusetts,' that a declaration upon 
 an agreement to discharge the plaint- 
 iff from all liabilities, on account of 
 certain purchases, as one of a firm re- 
 cently dissolved, which alleges that a 
 certain note was due from the firm at 
 at the time when the agreement was 
 made, is not sustained By proof that 
 such a note was afterwards given for 
 a liability of the firm ; but an amend- 
 ment would be allowed on terms: 
 Nichols V. Prince, 8 Allen (Mass.), 
 404 ; see also Luna v. Mohr, 1 West 
 Coast Rep. 673 ; Orr v. Hopkins, Id. 
 157. 
 
 Relief. — The complaint should agree 
 
§ 208. FORMAL PARTS OP PLEADINGS. ' 125 
 
 3. The names of the parties, plaintiff and defendant.^ Iii the 
 forms throughout this worlc, the caption ■will be indicated by 
 the word "Title," which will be understood to include both 
 the venue of the action and the names of the parties. 
 § 207. Formal Farts of Complaint — Title of Cause. 
 
 Form No. S5. 
 State of California, 
 
 State of California, ) 
 
 City and County of 1 Iii the Supreme Court.* 
 
 1 
 
 Andrbw Black, PlaintiflF, 
 
 against 
 Chaklbs Dean, Defendant. ' 
 
 § 208. The Same. — The first subdivision of the complaint 
 is an essential part thereof, and constitutes the title of the 
 action. This embraces the name of the state and county or venue 
 of the action, the name of the court in which the action is to 
 be tried, and the names of the parties to the action. ■* An omis- 
 sion to state either of these is an irregularity* which may cause 
 the complaint to be set aside or action dismissed on motion. ^ 
 
 The California Code provides" that the complaint must con- 
 tain : 
 
 1. The title of the action, the name of the court and county 
 in which the action is brought, and the names of the parties to 
 the action. 
 
 2. A statement of the facts constituting the cause of action, 
 in ordinary and concise language. 
 
 3. A demand of the relief which the plaintiff claims. If the 
 recovery of money or damages be demanded, the amount thereof 
 must be stated. 
 
 with the summons as to the amount is cured byyerdict : Robinson v. Eng- 
 
 claimed : Johnson V. Paul, 14 How. Pr. lish, 3iPa. St. 324; G-arland v. Davis, 
 
 454. A departure of the complaint 4 How. U. S. 131. If the cause of 
 
 from the summons, in respect to the action or defense be substantially 
 
 form of relief, is not ground for re- proved, the failure to prove certain 
 
 versing the judgment on appeal. If allegations precisely as laid, is an im- 
 
 necessary to sustain the iudgment, the material variance which will be to- 
 
 summons maybe amended on appeal tally disregarded: Union India Rub- 
 
 from the judgment, so as to conform berCo. v. Tomlinson, 1 Smith, Com. 
 
 to the fact proved: Willettv. Stewart, PI. R. 364; Lettman v. Ritz, 8 Sandf. 
 
 43 Barb. 98. But, in most states, it 734. 
 
 seems an appearance waives all errors ^ 1 Ch. PI. 261, 527, 528 ; 1 Arch, 
 
 of service, or form of summons. 72, 168 1 Steph: PI. 440; Topping v. 
 
 Siatemmt of Cause of Action.— Tha Fuge, 1 Marsh. 341. 
 
 complaiftt mast agree with the sum- 2 Or, in the superior court, in and 
 
 mons in the statement of the cause of for the county of , state of 
 
 action : Bidder v. Whitlock, 12 How. ' See California Code, sec. 426 ; 4 
 
 Pr. 208 ; Boington v. Lapham; 14 Id. Oomst; 253. 
 
 360 ; Shafer v. Humphrey, 15 How. * 1 Van Santv. 203. 
 
 Pr. 564 ; Campbell v. Wright, 21 Id. ^ Williams v. Wilkinson, 1 Code 
 
 13. But if the complaint set forth a R. 20. 
 
 substantial cause of action, and the « Sec. 426. 
 
 defect be one that was amendable, it 
 
126 ANALYSIS OF PLEADINGS. § 209. 
 
 § 209. Name of County. — Naming the county in the title 
 of the cause, as above, is a sufficient designation of the county 
 in which the plaintiff desires the trial to be had.^ 
 
 § 210. Name of Court. — Every complaint shall be entitled 
 in the proper court.^ If a suit be brought in a local court, the 
 full title of the court should be given, e. g. : " The City Court 
 of Brooklyn." But where the summons and complaint are 
 served together, its omission from the complaint is a technical 
 irregularity which can not injure the defendant. ^ But if neither 
 the summons nor complaint names any court, no cognizance of 
 the action need be taken. ^ 
 
 § 211. Names of Parties. — The law knows only one Chris- 
 tian name, and all intervening initials are no part of the name.^ 
 It seems that the word "junior" is no part of a name.6 Nor 
 the word "senior." These are mere unnecessary additions, 
 and should not be inserted in the complaint. Yet we do not 
 see why the terms "junior " or " senior " may not be properly 
 used in a complaint for the purpose of more clearly identifying 
 the person. 
 
 The caption should contain the names of all the parties, 
 plaintiff and defendant.'' The rule is that the names of the 
 parties must be fully set forth and be properly designated, the 
 complaining party as plaintiff, and the adverse party as defendant.^ 
 If, however, some are named in the title, and all are correctly 
 named in the body of the complaint, it will be sufflc ient.^ But 
 being once stated, it is sufficient afterwards to designate them 
 as "the plaintiff " and " the defendant, "i" And this rule applies 
 when plaintiff sues in an official character. ^i And if they sue in 
 
 ^.},.^^- ^'- -^^' Swans. PI. 141; nevertheless authority upon the een- 
 
 WiUiams PI. 97; Tidd's Pr. 434; eral propositions. P"» '"e gen 
 
 Steph. PL 280; Tappan v. Powers, 2 » People v. Cook, 14 Barb. 261 
 
 Hall, 301 ; Slate v. Post, 9 Johns. 81 ; That the law recogn izes but one Chris- 
 
 Capp V. Gilman, 2 Blackf. 45 ; Davi- tian nanie was held in the case of 
 
 son V.Powell 13 How. Pp.287; Me- Garwood v. Hastings, Cal. Sup. Ct, 
 
 Kenna v. Fisk, 1 How. U. S. 211 ; July T., 1869. ^ 
 
 ■^",^35'' J; ^'>-}^¥^- 15 Cal. 418. « People v. Cook, 14 Barb. 261. 
 
 2 California Code, sec. 426; see codes ' CaUfornia Code, sec. 426- NY 
 
 of Oregon, Nevada, and Arizona; 1 Code, sec. 142; Oreeon Code 'sbc 'fiS- 
 
 Cbit. 263 ; Tidd's Pr. 43 ; 1 Van Santv. Nevada, sec. 39 ; Arizona, Id.' ' 
 
 "? i ^'^P'"i7 ^- Watts. Leg. Obs. 86. » California Code, sec. 3 08 ■ N Y 
 
 P. ?qI ^*"f N'lpee ^- Pf opje. 9 How. Code, sec. 70 ; and see cod es of Oregon, 
 
 Pr. 198; cited in Van Benthuysen v. Idaho, Nevada, Arizona, etc. 
 
 Stevens, 14 Id. 70. » Hill v ThactPr 9 r«^l c a . a 
 
 * Ward v.Stringham,l Code R.118. How: PrJ"407 ' ' ^' ^ 
 
 The above authorities have special w Davison v. Savage, 6 Tau nt 121 • 
 
 reference to the New York practice, Stephenson v. Huntir Id. 406- StanI 
 
 which in service of summons and ley v. Chappell, 8 Cow. 23 5 
 
 commencement of actions differs from " Stanley v. Chappell, s'Cow 235- 
 
 the practice of California. It is Ketchum v. MorrelT, 2 N Y ' Leg 
 
§ 218. FORMAL PAETS OP PLEADINGS. 127 
 
 an oflScial capacity, it is usual and proper that their character 
 should be indicated.^ 
 
 § 212. The Same— Mistake in. — Though the names of the 
 parties must be correctly stated, yet a mistake in the name even 
 of the plaintiff is not fatal, but may be corrected at any time.^ 
 
 § 213. Place of Trial. — The complaint is irregular unless it 
 states the place of trial.^ And in such case it must be amended or 
 striclten out.* It can not be cured by reference to the summons. ^ 
 It may be amended, but only on payment of defendant's costs. ^ 
 
 § 214. Real Party. — The complaint shall contain the name 
 of the real party in interest.'' The term "parties" includes all 
 who are directly interested in the subject-matter of the action, 
 having a right t'o malie defense, control proceedings, examine 
 and cross-examine -witnesses, and appeal from the judgment.^ 
 
 § 215. Titles to be Avoided. — In designating the parties 
 to the action, except where suit is brought in an official' or rep- 
 resentative capacity, no title or other appellation is necessary. 
 If inserted, it will be treated as mere surplusage. ^ 
 
 § 216. Venue, ho^w Laid. — ^As a venue is technically neces- 
 sary to every traversable fact, when it is once properly laid, all 
 matters following refer to it.^" It has been held, however, that 
 a venue laid in the body of the complaint is sufficient, ^i The 
 proper mode in all cases will be to lay the venue in the title. 
 
 § 217. Title of Cause where Some of the Parties are 
 Unknown. 
 
 Fm-m No. Z6. 
 [State Couittt, and Court.] 
 Andrew Black, PlaintiflF, 
 against 
 Charles Dean, John Doe, and 
 Richard Eoe, Defendants. 
 
 § 218. Parties Known and Unknown. — In certain cases 
 the statute authorizes the plaintiff to proceed against parties 
 
 Obs. 58 ; but compare Christopher v. ' Hall v. Huntley, 1 Code E. 21. 
 
 Stockholm, 5 Wend. 36. The authorities apply more particu- 
 
 1 Hill V. Thacter, 2 Code E. 3; 3 larly to the practice in New York, 
 How. Pr. 407. though they are applicable in Cali- 
 
 2 Barnes v. Perine, 9 Barb. 202 ; fornia. 
 
 Bank of Havana v. Magee, 20 N. Y. ' Cal. Code, sec. 367 ; 1 Van. Santv. 
 
 356 ; Elliot v. Hart, 7 How. Pr. 25, Bq. Pr. 72 ; see ante. Parties, 
 
 cited in Dole v. Manley, 11 Id. 138; * Bobbins v. Chicago City, 4 Wall. 
 
 Farnham V. Hildreth, 32 Barb. 277. (U. S.) 657. For a further definition, 
 
 3 1 Van Santv. 203 ; Williams v. see Giraud v. Stagg, 4 E. D. Smith, 
 
 Wilkinson, 1 Code E.,N.S., 20; Hall 27. 
 
 v. Huntley, Id. 21. » Shelden v. Hoy, H How. Pr. 15; 
 
 * Merrill v. Grinnell, 10 How. Pr. Eoot v. Price, 22 Id. 372 ; Butterfleld 
 
 31 ; Hotchkiss v. Crocker, 15 Id. 336 ; v. McOucher, Id. 150. 
 
 Davison v. Powell, 13 Id. 288. " Cocke v. Kendall, Hempst. 236. 
 
 3 McKenna v. Pisk, 1 How. (U. S.) " D wight v. Wing, 2 McLean, 580. 
 241. 
 
128 ANALYSIS OF PLEADINGS. § 219. 
 
 some of whom are known and others unknown, giving the true 
 names of such as are known, and designating the others by 
 fictitious names, stating in the body of the complaint the rea- 
 son, that "their true names are unknown." 
 
 Thus if the plaintiff should be ignorant of the name of the 
 adverse party he may designate him by any name, and amend, 
 of course, at any stage of the proceedings, when his true name 
 shall become known. ^ But the plaintiff can not thus use a fic- 
 titious name at hi3 discretion ; he is restricted to cases where the 
 name of the adverse party is unknown,^ and must aver in the plead- 
 ing that the true name of the party is to the plaintiff unknown. ^ 
 
 § 219. Title of Cause by and against Corporations. 
 
 Form No. S7. 
 [State, County, and Court.] 
 Thb Mono Q-old and Silver "J 
 
 Mining Company, Plaintiff, f 
 against V 
 
 The Fort Tkjon Railroad I 
 
 Company, Defendant. / 
 
 § 220. The Same.— A corporation can not sue otherwise 
 than by its corporate name,* and a company by its firm name 
 or title. 5 In New York a banking association may sue either in 
 its corporate name or in the name of its president. ^ This does 
 not, however, take the place of the averments necessary in the 
 body of the complaint showing their official character. 
 
 The word "person" in its legal signification is a generic 
 term, and intended to include artificial as well as natural per- 
 sons.'' All distinction between natural and artificial persons, . 
 so far as the rules of pleading applicable thereto are concerned, 
 is abolished.^ 
 
 § 221. The State on the Relation of an Individual. 
 
 Form No. S8. 
 [State, County, and Court.] 
 The People of the State of California, 
 on the relation of John Doe, Plaintiffs, 
 against 
 Richard Roe,- Defendant. 
 
 1 Cal. Code, sec. 474 ; N. T. Code, the record to show that the person 
 sec. 175 ; Morgan v. Thrift, 2 Cal. 562 ; served was the person sued : Sutter v. 
 see also Rosecrantz v. Rogers, 40 Cal. Cox, 6 Cal. 415. 
 
 491 ; MoKinlay V. Tuttle, 42 Cal. 577; ' Curtisa v. Murray, 28 Cal. 6S3; 
 
 Campbell v. Adams, 50 Cal. 205. Crawford v. Collins, 80 How Pr. 398. 
 
 2 Crandall v. Beach, 7 How. Pr. 271 ; 6 King v. Eandlett, 33 Cal. 318. 
 .?,l^ 7- ?«™^°' 45 Cal. 692. 6 Leonardsville Bank v. Willard, 25 
 ' Waterbury v. Mather. 16 Wend. N. Y. 574. 
 
 611. Where a defendant is sued as ' Douglass v. Pacific M. S. S. Co., 
 
 James , service was returned 4 Cal. 304. 
 
 upon John -, and judgment was « San Francisco Gas Co. v. The City 
 
 entered agamst J : Held to be of San Francisco, 9 Cal. 467; see also 
 
 error, unless there was something in sec. 17, Political Code of California. 
 
 } 
 
§ 229. FOKMAL PARTS OP PLEADINGS. 129 
 
 § 222. By Guardian ad Litem. 
 
 Form No. S9. 
 [State, County, and Court.] 
 John Doe, by his guardian ad litem, Bichard Roe, Plaintiff, "i 
 against r 
 
 The Southern Pacific Railroad Cqmpant, Defendant. J 
 
 § 223. By Assignee for Creditors. 
 
 Form No. SO. 
 
 [State, Countt, and Court.] 
 
 John Doe, as Assignee for the Benefit of the -^ 
 
 Creditors of James Roe, Plaintiff. ( 
 
 against ( 
 
 Richard Black. ) 
 
 § 224. By and against National Banks. 
 
 Form No. 31. 
 [State, County, and Court.] 
 The First National Bane, Plaintiff, "i 
 against > 
 
 The Second National Bank, Defendant, j 
 
 § 225. The Same. — In alleging the co rporate existence of a 
 national bank, it is sufficient to state that the plaintiff or de- 
 fendant is a corporation duly incorporated under the national 
 banldng laws of the United States. As affect ing the necessity 
 of giving costs, the location of the plaintiff's place of business 
 should sometimes be alleged.'- 
 
 § 226. By an Officer of the State. 
 
 Form No. SS. 
 
 [State, County, and Court.] 
 
 Andrew Black, Comptroller of -v 
 
 the State of California, I 
 
 Plaintiff, V 
 
 against I 
 
 Charles Dean, Defendant. ) 
 
 § 227. Name of Officer.— The action should be brought 
 in the name of the officer, with the title of his office annexed.* 
 § 228. Title and Commencement. 
 
 Form No. S3. 
 [State, County, and Court.] 
 Andrew Black, Plaintiff, 
 
 against 
 Charles Dean, Defendant. 
 
 The plaintiff complains of the defendant, and alleges : 
 
 § 229. Commencement. — ^The commencement of pleadings 
 
 consists of those formal words of expression used to introduce 
 
 the subject-matter. 
 
 1 Abb. N. Cas. 292; Id. 293, note; 4 Id. 224; 60 Barb. 889. 
 
 2 Paige V. Pazackerley, 36 Barb. 392. 
 ESTEE, Vol. 1—9. 
 
 J 
 
130 ANALYSIS OF PLEADINGS. § 230. 
 
 § 230. Commencement— By One Suing for Himself and 
 Others. 
 
 Form No. 34. 
 [State, Oountt, and Court.] 
 The plaintiff complains on behalf of flimseu and of all 
 others (judgment creditors of the defendant), who shall in due 
 time come in and seek relief by and contribute to the expenses 
 of thjs action, and alleges: 
 § 231. Conclusion of Complaint. 
 
 Form No. 35. 
 
 Wherefore the plaintiff demands judgment, etc. 
 
 E, F., Attorney for Plaintiffs. 
 [Verification.] 
 
 § 232. Conclusion. — ^The conclusion varies according to 
 the character of the document to which it is a flBxed. In a 
 complaint it consists of the prayer for relief, signature of 
 counsel, and verification; while in an affidavit, the signature 
 and juraA only are required. Where two attorneys, partners, 
 subscribe a pleading, they may sign in their firm name.^ And 
 the subscription to the verification of a pleading is a suflicient 
 subscription of the pleading.* The codes provide that every 
 pleading shall be subscribed by the party or his attorney.^ But 
 an attorney in fact who is not an attorney at law, can not sign his 
 name to the complaint for his principal as " plaintiff's attorney." * 
 
 §233. Form of Complaint, Complete. 
 
 Foi-m No. SB. 
 [State, Cottntt, and Court,] 
 Andrew Black, Plaintiff, 
 
 against 
 Charles Dean, Defendant.^ 
 
 The plaintiff complains of the defendant, and alleges: 
 
 1. For a first cause of action: 
 
 I. That, etc. 
 
 n. That, etc. 
 
 III. That, etc. 
 
 2. For a second cause of action: 
 
 I. That, etc. 
 II. That, etc. 
 III. That, etc. 
 Wheretore the plaintiff demands judgment, etc. 
 
 E. F., Plaintiff's Attorney. 
 
 [Verification.] 
 
 « Bank of Geneva v. Eioe, 12 Wend. 424. 
 
 • Hubbell V. Livingston, 1 Code E. 63. 
 
 « California Code, sec. 446 ; N. T. Code, sec. 158L 
 
 * Dixey v. Pollock, 8 Cal. 570. 
 
§ 238. FORMAL PARTS OF PLEADINGS. 131 
 
 § 234. Clerk's Certificate to Copy of Complaint. 
 
 Form No. S7. 
 I hereby certify the foregoing to be a full, true, and correct 
 copy of the original complaint on file in my oflSce, in the above- 
 entitled action. 
 In witness whereof I have hereunto set my hand and affixed 
 
 the seal of the above-named court, this day of 
 
 A. C, Clerk. 
 By J. S., Deputy Clerk. 
 § 235. Amended Compiaint — Commencement. 
 
 Form No. S8. 
 [State, Cotjhtt, Coitet, and Parties.] 
 Plaintiff, by leave of the court [or by stipulation] files this 
 his amended complaint and alleges : 
 [State cause of action as before.] 
 
 § 236. Formal Parts of Defendant's Pleadings — Com- 
 mencement of Demurrer. 
 
 Form No. 39. 
 [Title.] 
 The defendant demurs to the complaint [or to the first al- 
 leged cause of action in the complaint] filed herein and for 
 cause of demurrer alleges : 
 I. That, etc. 
 n. That, etc. 
 § 237. Grounds of Demurrer. — The defendant may state 
 as many grounds or causes of demurrer as may be apparent on 
 the face of the complaint. But each cause or ground should 
 be distinctly alleged, and be numbered in the margin as above, 
 and if the demurrer is sustained, plaintiff may obtain leave of 
 court to file an amended complaint, which will take the place of 
 the original complaint in the action.^ 
 § 238. Form of Answer. 
 
 Form No. 40. 
 [Title.] 
 The defendant, by G. H., his attorney, answers the complaint 
 herein, and 
 
 1. For a first defense to the first alleged cause of action, 
 denies : 
 
 I. That, etc. 
 
 2. For a second defense to said first alleged cause of action, 
 defendant alleges : 
 
 I. That, etc. 
 
 > See this subject discussed at length in second volame under head of " De- 
 murrer." 
 
132 ANALYSIS OF PLEADINGS. § 239. 
 
 3. For a third defense to said first alleged cause of action, 
 defendant alleges : 
 
 [Set forth facts constituting the defense, and if any of them 
 have been alleged above, an express reference to them will 
 suflSce.] 
 
 4. And for a counter-claim to the second alleged cause of 
 action, defendant alleges: 
 
 I. That, etc. 
 Wherefore defendant demands, etc. [stating demand on 
 
 counter-claim] . 
 
 G. H. , Attorney for Defendant. 
 
 [VlBIMOATION.] 
 
 § 239. Attorney's Signature, in New York may be omit- 
 ted where he has served a notice of appearance ; and where two 
 attorneys are partners the firm name will suffice.' But the sig- 
 nature of counsel must be attached to an answer in chancery.' 
 
 § 240. Demand of Relief. — No demand for relief is neces- 
 sary, unless the defendant seeks some affirmative relief against 
 the plaintiff or against a co-defendant. ^ 
 
 § 241. Denials of Several Allegations are but one de- 
 fense.* So several demands against the plaintiff, available as a 
 set-off, may be pleaded in one defense. Each must, however, 
 be distinctly described.^ 
 
 § 242. Distinct Defenses. — Each defense in an answer 
 which is declared to be a distinct defense, must be complete in 
 itself, and must contain all that is necessary to answer the 
 whole cause of action, or that part which it professes to answer, 
 either by express allegation or by an express reference to other 
 parts of the answer ;^ though a partial defense must be pleaded, 
 and may be pleaded as a separate defense.'' 
 
 § 243. First Alleged Cause of Action.— If the complaint 
 contains more than one cause of action, the answer should in- 
 dicate to which cause of action each defense is interposed.^ 
 But if the substance of the defense shows to which cause of 
 action it is addressed, it is sufficient on demurrer.^ 
 
 § 244. For a First or Second Defense. — Where a num- 
 ber of defenses are pleaded in one answer, they must be sepa- 
 rately stated and plainly enumerated, and the denials should 
 
 1 Bank of Geneva V. Rice, 12 Wend. * Loosey v. Orser, 4 Bosw. 391; 
 
 424. Ayres v. Covill, 18 Barb. 260. 
 
 ' Davis V. Davidson, 4 McLean, 136. ' Loosey v. Orser, 4 Bosw. 391. 
 
 8 Averill v. Taylor, 5 How. Pr. 476. ^ Kneedler v. Sternberg, 10 How. 
 
 * Otis v. Ross, 8 How. Pr. 193; 11 Pr. 67. 
 
 N. T. Leg. Obs. 343. » Willis v. Taggard, 6 How. Pr. 
 
 » Ranney v. Smith, 6 How. Pr. 420, 433. 
 
§ 249. FORMAL PARTS OF PLEADINGS. 133 
 
 be distinctly and specifically stated. Consequently there is but 
 one safe rule in stating actions or defenses, and that is to indicate 
 distinctly, by fit and appropriate words, where it commences 
 and where it concludes.^ But no formal commencement or con- 
 clusion is prescribed.^ 
 
 § 245. Verification. — A verified answer is defective if 
 neither the answer nor the verification is subscribed.^ The sub- 
 scription of the verification is, however, sufficient.'* An answer 
 in chancery which does not show the authority of the justice of 
 the peace before whom it was sworn, if not within the state, is 
 not sufficiently certified. ^ If the complaint is verified, the an- 
 swer must be also verified. ^ 
 
 § 246. Commencement of Answer by Defendant Sued 
 by a Wrong Name. 
 
 Form No. il, 
 [Title.] 
 
 Defendant, C. D., in the sunsm )ns and complaint in this 
 action called L. M., answers the complaint herein, and alleges 
 [or denies] : 
 
 § 247. Commencement of Answer by an Infant. 
 
 Form No. 4S. 
 [Title.] 
 
 Defendant, an infant under the age of years, by N. O., 
 
 his guardian, answers the complaint herein, and alleges [or de- 
 nies] : 
 
 § 248. Commencement of Answer by an Insane Per- 
 son. 
 
 Fonn No. 43. 
 
 Defendant, Q. E., an insane person [or a person of unsound 
 mind, or an idiot], by S. T., his guardian, answers the com- 
 plaint herein, and alleges [or denies] : 
 
 § 249. Commencement of Answer by Husband and 
 Wife. 
 
 Form No. 44- 
 [TrrLS.] 
 A. X., one of the above-named defendants, and B. X., his 
 wife, for answer to the complaint in this action, allege [or 
 deny] :'' 
 
 iLippeneott v. Goodwin, 8 How. 'Addison ▼. Dackett, 1 Cranch C. 
 
 Pr. 242 ; see Benedict v. Seymour, 6 Ct. 849. 
 
 Id. 298. ' See post, pt 2, c 3, " "Verification 
 
 * Bridge V. Payson, 4 Sandf. 210. of Pleadings." 
 
 * Laimbeer v. Allen, 2 Sandf. 648 ; ' The above must not be understood 
 2 Code R. 15. as an allegation that the parties are 
 
 * Hubbell v. Livingston, 1 Sandf. husband and wife. 
 3. 
 
134 ANALYSIS OF PLEADINGS. § 250. 
 
 § 250. Commencement of Separate Anssrer of De- 
 fendant. 
 
 '> Form No. iS, 
 
 [Title.] 
 
 The defendant, A. B., answers on his own behalf the com- 
 plaint herein, and alleges [or denies] : 
 § 251. Forms of Petitions— Petition to the Court. 
 
 Form No. 4S. 
 [Title.] 
 
 To the honorable the superior court of the county of , 
 
 state of California [or other court with full designation]. 
 
 The petition of , of the city of , shows: 
 
 § 252. Petition to a Judge. 
 
 Fonn No. 47. 
 [Title.] 
 
 To the honorable , judge of the superior court of 
 
 the county of , state of California [or other magistrate, 
 
 giving full oflScial designation] . 
 
 The petition of, etc. 
 
 § 253. Caption of Papers Used in Probate Proceedings 
 — Decedent's Estate. 
 
 Form No. 43, 
 [State, Coitet, and Coitnty.] 
 In the Matter ov the Estate 1 
 or John Dob, Deceased. / 
 
 The petition of, etc. 
 
 §254. The Same— Minor's Estate. 
 
 Form No. 49. 
 
 [State, Coubt.'and County.] 
 In the Matter of the Estate oi' "I 
 John Doe, a Minor. j 
 
 The petition of, etc. 
 
 § 255. The Same— Insane Person's Estate. 
 
 Form No, 60. 
 [State, Coxjet, and County.] 
 In the Matter or the Estate oe 1 
 John Doe, An Insane Person. / 
 
 § 256. Caption of Papers used in Insolvency Proceed- 
 ings. 
 
 Form No. SI, 
 [State, County, and Court.] 
 In the Matter of the Estate of "» 
 John Doe, an Insolvent Debtor, / 
 
 § 257. Caption of Papers on Habeas Corpus. 
 
 Form No. 5S. 
 [State, County, and Court.] 
 In the matter of John Dob, "( 
 on Habeas Corpus. j 
 
§ 263. POBMAL PARTS OF PLEADINGS. 135 
 
 § 258. Caption of Papers on Disbarment of Attorney. 
 
 Form No. S3, 
 [StATB, OotJNTT, aud Cohet.] 
 In the Matter of the Application for 
 the Disbarment of Jobn Dob, a 
 a member of the bar of this court, 
 and for the certificate issued to 
 him by this court. 
 
 § 259. Caption of Papers used in Other Courts. 
 
 Form No, 54. 
 JohitDoe, Plaintiff, \ 
 
 Ric=AK/C:Defendant.l ^^^'y^o-^ County. 
 
 § 260. Caption of Papers used in Justices' Courts. 
 
 Form No. 55. 
 
 In the justice's court of the township of county 
 
 of , state of California. 
 
 JoNH Dox, Plaintiff, 1 
 
 against f 
 
 Richard Roe, Defendant. J 
 
 § 261. Order of a Court in an Action. 
 
 For^n No. 56. 
 
 At a regular term of the superior court of the city and county 
 
 of , state of California, held at the city hall in the city • 
 
 and county of San Francisco, etc. 
 
 Present: The Honorable , Judge. 
 
 § 262. Caption, Commencement, and Conclusion of 
 Affidavits. 
 
 Form No. 57. 
 [State, County, and Court.] 
 John Doe, Plaintiff, 1 
 
 against >- Affidavit for .,.,. 
 
 Richard Roe, Defendant. ) 
 
 State of California, ) gg 
 
 County of ) 
 
 John Doe, of [and if there are two deponents, and 
 
 James Doe, of , severally], being duly sworn, say [each 
 
 for himself] : 
 
 1. I am the plaintiff [or other description of the deponent]. 
 
 2. I have, etc. [State facts sworn to]. 
 
 [Signature] 
 
 Subscribed and sworn to \ 
 
 before me this day > 
 
 of , 18 ) 
 
 E. F., 
 
 [Seal] ' Notary Public. 
 
 § 263. Affidavits — Before Whom can be Taken.— Affi- 
 davits to be used before any court, judge or officer of the state 
 
1S6 ANALYSIS OP PLEADINGS. S ZtJ4. 
 
 (California), may be taken before any judge or clerk of any 
 court, justice of the peace, or notary public in the state. ^ And 
 an afHdavit in which the official character of the justice before 
 whom it is taken, does not appear, is good,'' as courts take 
 judicial notice of the official character of justices of the peace 
 in their own states. An affidavit taken in another state of the 
 United States, to be used in this state, may be taken before a 
 commissioner appointed by the governor of this state to take 
 affidavits and depositions in such other state, or before any 
 notary public in another state, or before any judge or clerk of 
 a court of record having a seal.' An affidavit taken in a foreign 
 country, to be used in this state, may be taken before an em- 
 bassador, minister, consul, vice-consul, or consular agent of the 
 United States, or before any judge of a court of record having 
 a seal, in such foreign country.^ When an affidavit is taken 
 before a judge or a court in another state, or in a foreign coun- 
 try, the genuineness of the signature of the judge, the exist- 
 ence of the court, and the fact that such judge is a member 
 thereof, must be certified by the clerk of the court under the 
 seal thereof. 5 
 
 § 264. The Same— Date.— The jurat should state the day 
 on which it was sworn.^ Unless it is shown, when the objec- 
 tion is raised, that it was sworn in due season for its purpose. 
 So held where it was shown by the opposing affidavit that the 
 oath was taken before the judgment was entered.'' 
 
 § 265. The Same— Entitling Affidavit.— Of course, when 
 there is no proceeding pending, the affidavit must not be en- 
 titled. Though it has been held that a superfluous title may be 
 disregarded as not affecting the substantial rights of the party. 8 
 
 § 266. The Same— Information and Belief.— It is en- 
 tirely useless in the affidavit to a pleading to insert the words, 
 "except as to those matters stated on information and belief, 
 and as to those matters he believes it to be true," unless the 
 pleading contains some averment on information and belief.^ 
 
 § 267. The Same— Jurat.— The jurat should be in a special 
 form where deponent is illiterate," or blind. i^ Otherwise the 
 
 1 California Code Civil Proc, sec. « Pindar v. Black, 4 How. Pr. 96. 
 1%A T u ,r ^ , „„ _» But see Truscott v. Dole, 7 How. 
 
 . 5^5 V. Johnson, 15 Cal. 58. Pr. 221 ; Patterson v. Ely, 18 Cal. 
 
 !S°4«S-S-''^'=-SSl?- 28; Kelly v. Kelly, 1 West Coast 
 
 * Codec. P., sec. 2014. Eep. 148. 
 
 s Code C. P., sec. 2015. i6 Tidd's Pr. 495 ; 3 Moult. Ch. Pr. 
 
 « Doe V. Eoe, 1 Chit. 228; 18 Eng. 551. 
 
 Com. L. 188. u Matter of Christie, 5 Paige, 242 ; 
 
 Schoolcraft; v. Thompson, 7 How. see also Matter of Cross, 2 Ch. Sent 
 
 Pr. 446. 8. 
 
§ 273. POEMAL PARTS OP PLEADINGS. 137 
 
 common form is sufficient.^ It, however, seems to be sufficient 
 if a party hears the paper read, and swears he knows its con- 
 tents. 
 
 § 268. The Same — Names of Deponents. — ^The names of 
 all the deponents should be mentioned.* 
 
 § 296. The Same — Place. — The jurat need not specify the 
 place where it was sworn, as the venue sufficiently shows it.^ 
 
 § 270. The Same — Severally Sworn. — The affidavit 
 should show that they were severally sworn.* 
 
 § 271. The Same— State and County. — It has been held 
 that the omission of the venue from an affidavit is fatal. The 
 venue is an essential part of every affidavit, a,nd prima facie evi- 
 dence of the place where it was taken. ^ This certainly can not 
 be laid down as the rule with all classes of affidavits. If by the 
 venue it appears that the affidavit was taken at a place beyond 
 that where the officer was authorized to act, it will not be re- 
 ceived by the court.^ But it is no objection that it does not 
 appear that the affidavit was sworn to within the limits of the 
 city for which the commissioner was appointed. The court will 
 not presume the contrary.'' An affidavit, notice, or other paper 
 without the title of the action or proceeding in which it is made, 
 or with a defective title, is as valid and effectual for any pur- 
 pose as if duly entitled, if it intelligibly refer to such action or 
 proceeding.^ 
 
 § 272. The Same— Subscription. — The affidavit should be 
 subscribed by deponent or deponents.' 
 
 § 273. The Same — Subscription to Jurat. — The jurat 
 must be subscribed by the officer, with his official addition.^" 
 An affidavit should show upon its face that it was made before 
 some officer competent to take affidavits." 
 
 1 Fryatt v. Lindo, 3 Edw. Ch. 239. ' Parker v. Baker, 8 Paige, 428. 
 
 a Anonvmous, 2 Chit. 19 ; 18 Eng. « Cal. Code C. P., sec. 1046. 
 Com. L. 235. ' 1 Newl. Ch. Pr. 165 ; Hathway 
 
 3 1 Tidd's Pr. 496; Mosher v. Eey- v. Seott, 11 Paige, 173; overruling in 
 
 drick, 45 Barb. 549; 1 Abb. Pr., N. efiFeot, HaflFv. Spicer, 8 Cai. 190; Col. 
 
 S., 258; 30 How. Pr. 161; Belden v. &C. Cas. 495; and Jackson v. Virgil, 
 
 Devoe, 12 Wend.223;Mfp9.andMech. 3 Johns. 540, which held that if an 
 
 Bank V. Oowden, 3 Hill, 461. affidavit begins with the names of the 
 
 * Pardoe v. Territt, 5 M. & G. 291 ; deponent, and appears to have been 
 44 Eng. Com.L. 159; Kincaid v.Kipp, duly sworn to before a proper magis- 
 1 Duer, 692; 11 N. T. Leg. Obs. 313. trate, it is sufficient without the sig- 
 
 * Lane v. Morse, 6 How. Pr. 394 ; nature of deponent ; see also Ede v. 
 Cook V. Staats, 18 Barb. 407. Com- Johnson, 15 Cal. 57. 
 
 pare Parker v. Baker, 8 Paige, 428 ; "• Ladow v. Groom, 1 Den. 429 ; 
 
 Barnard v. Darling, 1 Barb. Ch. 218. Jackson v. Stiles, 1 Cow. 575. Oom- 
 
 " Davis V. Eich, 2 How. Pr. 86 ; pare, as to addition, Hunter v. Le 
 
 Sandland v. Adams, Id. 127 ; Snyder Conte, 6 Cow. 728 
 
 V. Omstead, Id. 181. " Lane v. Morse, 6 How. Pr. 395 
 
138 ANALYSIS OP PLEADINGS. S ZV4. 
 
 § 274. The Same— That I am, etc.— The description or 
 residence of deponent should be directly alleged as above.^ 
 § 275. Certificate of Clerk to Affidavit. 
 
 Fo7m M. 58. 
 
 State of Kg 
 
 County of ) 
 
 I, S. T., clerk of the county court of said county of , 
 
 do hereby certify that O. P., before whom the above affidavit 
 was talcen, is a judge of the county court [or other title], which 
 is a court of record of said state [or county, as the case may 
 be], having a seal, existing pursuant to the laws thereof, in and 
 for said county [or country, district, or otherwise] , and that he 
 is duly qualified and commissioned as such, and that the sub- 
 scription to the same is his genuine signature. 
 
 Witness my hand and the seal of said court, at , this 
 
 day of , 18... 
 
 [seal.] S. T., County Clerk. 
 
 § 276. Jurat, Where Deponent is Blind or Illiterate. 
 
 Form No. 59. 
 
 Sworn before me, this day of , 18...., the same 
 
 having been in my presence [or by me] read to the deponent, 
 he being blind [or illiterate] , and he appearing to me to under- 
 stand the same. R. S., 
 
 Notary Public. 
 
 § 277. Jurat, where Deponent is a Foreigner. 
 
 Form No. 60. 
 
 Sworn before me, this day of , 18..., I having 
 
 first sworn R. M., an interpreter, to interpret truly the same tD the 
 deponent, who is a foreigner not understanding the language, 
 and he having so interpreted the same to deponent. 
 
 A. C-, 
 
 County Clerk. 
 
 iSteinbach v. Leeae, 27 Cal. 298; 41; Payne v. Young, 8 Id. (ISeld.) 
 
 ExparteBaakof Monroe, 7 Hill, 177; 168. Compare People v. Bamson. i 
 
 Cutiningham v. Goelet, 4 Den. 71; Id. (2 Oomat.) 490. 
 Staples V. Pairchild, 8 N.Y. (3 Comst.) 
 
§ 279. VERIFICATION OF PLEADINGS. 139 
 
 CHAPTER in. 
 
 VERIFICATION OF PLEADINGS. 
 
 § 278. Provisions of Code in Regard to Verification. — 
 
 The codes of all states which have adopted the reformed system 
 of procedure contain provisions in regard to verification of 
 pleadings. In California the code provides that every plead- 
 ing must' be subscribed by the party or his attorney ; and where 
 the complaint is verified, or when the state, or any officer of the 
 state, in his official capacity, is plaintiff, the answer must be 
 verified, unless an admission of the truth of the complaint might 
 subject the party to a criminal prosecution, or unless an officer 
 •jyi the state, in his official capacity, is defendant. In all cases 
 of a verification of a pleading, the affidavit of the party must 
 state that the same is true of his own knowledge, except as to 
 the matters which are therein stated on his information or belief 
 and as to those matters that he believes it to be true ; and where 
 a pleading is verified, it must be by the affidavit of a party, unless 
 the parties are absent from the county where the attorney re- 
 sides, or from some cause are unable to verify it, or the facts are 
 within the knowledge of his attorney, or other person verifying 
 the same. When the pleading is verified by the attorney, or 
 any other person except one of the parties, he must set forth 
 in the affidavit the reason why it is not made by one of the 
 parties. When a corporation is a party, the verification may be 
 made by any officer thereof. 
 
 § 279. Construction of Statute. — The object of the veri- 
 fication is to secure good faith in the averments of the party.^ 
 There is nothing in the statute absolutely requiring the com- 
 plaint to be verified, with the exception of complaints in actions 
 for an injunction. ^ Or in actions brought against steamers, 
 boats, and vessels.* So also in proceedings against attorneys.* 
 And in applications for the voluntary dissolution of corpora- 
 lions.^ And such other actions as are specially provided for. 
 The safer and better practice, however, is to verify the complaint 
 in all cases, and if the complaint is verified, the answer, as above 
 stated, shall be verified also, except when an admission of the 
 truth of the complaint might subject the party to prosecution 
 
 1 Cal. Code C. P., sec. 446, * Oal. Code C. P., sec 815. 
 
 « Patterson v. Ely, 19 Cal. 28. » Sec. 291. 
 
 8 Cal. Code C. P., sec. 527. ' Sec. 1229. 
 
140 ANALYSIS OF PLEADINGS. S :J»U. 
 
 for felony or niisdemeancir.^ Unless such prosecution is barred 
 by the statute of limitations.^ And when the court could not 
 see from the pleadings themselves that the admission of the 
 allegations in the complaint would subject the defendant to a 
 criminal prosecution, he may show that fact by affidavit. ^ So 
 also whenever the defendant would be excused from testifying 
 as a witness to the truth of any matter denied by the answer, he 
 need not verify the answer.* But defendant is not excused 
 from verifying his answer when the complaint charges him with 
 fraud in making the assignment. ^ Such verification should be 
 by the affidavit of the party, and if he be absent from the county, 
 then by his attorney, or other person having a knowledge of the 
 facts. 8 A verification is sufficient if it conform substantially to 
 the statute.'' 
 
 § 280. Defective Verification. — A defect in verification of 
 a complaint, even when apparent upon its face, does not render 
 the complaint irregular, because a verification is no part of a 
 pleading.8 It only operates to relieve the defendant from the 
 obligation to verify his answer. This, however, can not be in 
 cases where the complaint is required to be sworn to. If such 
 defect be latent, the remedy is by motion, ^ and not by de- 
 murrer.i" 
 
 The objection to the want of verification of a complaint, where 
 verification is required by statute, must be taken either before 
 answer or with the answer. The filing of the answer waives 
 the defect." So, also, the objections to the verification to the 
 complaint, that it was not authenticated by the seal of the 
 notary ; that there was no venue to the affidavit ; that there was 
 no evidence that the officer was a notary public, etc. being 
 
 1 Wheeler V. Dixon, 14 How. Pr. vada, see. 55 ; Idaho, Id. ; Arizona, Id. • 
 151; Anablev.Anable, 24Id. 92. consult also Humphreys v. McCall 9 
 
 2 Henry V. Salina Bk., 1 Comst. 86. Cal. 69; Ely v. Prisbie 17 Id 2fi'n. 
 
 3 Scoville V. New, 12 How. Pr. 319 ; Patterson v. lEIy, 19 Id 28 
 
 Lynch T.Todd, 13 Id. 547; Wheeler ' 2 Sandf. 647; Ely v.Vrisbie 17 
 
 V.Dixon, 14Id. 151; Anablev.Anable, Cal. 250. y y- -pname, ii 
 
 24 Id. 92 ; Moloney V. Dows, 2 Hilt. ^(jeorgev. McAvoy, 6 How Pp 
 
 247; Blaisdell V.Raymond, 5 Abb. Pr. 200. ^' ^^' 
 
 ^^•^ ^„, . . ' Gilmore v. Hempstead. 4 How 
 
 'Drum V. Whiting, 9 Cal. 422; Pr. 153. t-s^eau, a xiow. 
 
 Blaisdellv. Raymond, 5 Abb. Pr. 144; " Seattle Coal Co. v Thomns K7 
 
 ReTappan,9How.Pr.394; Moloney Cal. 197; Fritz v. Barnes, 6 nX 435 • 
 
 v. Dows, 2 Hilt. 247; People v. Kelly, Warner v. Warner, U K:an7 12i: 
 
 24 How. Pr. 869; Clapper v. Fitz- Pudney v.Burkhardt, 62 Ind 179 
 
 P«tn<:k lCodeR.69. " Greenfield v. Steamer Gunnell 6 
 
 ^ Wolcott V. Winston, 8 Abb. Pr. Cal. 69; Laimbeer v. Allen. 2 Code R 
 
 BO ^ , T, . 15; see California Code Civil Proo. 
 
 « See Cal. Pr. Act, seo. 55: N. T. sec. 434; ' 
 
 Code, sec. 157 ; Oregon, mc. 795 N&' 
 
§ 284. VERIFICATION OF PLEADINGS. 141 
 
 technical, should be taken in the court below and can not be 
 raised for the first time in the supreme court. '^ 
 
 § 281. Before Whom may be Taken.— The attorney of 
 the plaintiff, being a notary, may take the affidavit verifying 
 the complaint.^ 
 
 § 282. Subscription to Verification.— The verification 
 must be subscribed by the party making it.^ And such sub- 
 scription, it has been held, was a sufficient subscription of a 
 pleading.* A verified answer is defective if neither the answer 
 nor the verification is subscribed. ^ 
 
 § 283. When Answer may be Verified — Amendment. 
 A defendant may be allowed to verify his answer before or at 
 the trial. 8 If defendant omit to verify the answer to a verified 
 complaint, the plaintiff may proceed as if no answer was filed.'' 
 Inability of counsel to obtain defendant's verification in time 
 can not avail in resisting a motion to strike out.^ If the verifi- 
 cation be omitted or defective, the court may allow the same 
 to be inserted or amended.^ 
 
 § 284. Verification by Sole Plaintiff or Sole Defendant. 
 
 Form No. 61. 
 State of California. ) 
 
 City and County of j ^^' 
 
 A. B., the plaintiff [or defendant] above named, being duly 
 sworn, says as follows: 
 
 I have read the foregoing complaint [or answer] and know 
 the contents thereof, and that the same is true to the best of my 
 knowledge. 
 
 [SlQNATUBB.J 
 
 Subscribed and sworn to ) 
 
 before me, this day > 
 
 of ,18... ) 
 
 J. K, County Clerk. 
 
 1 Kuhland v. Sedgwick, 17 Gal. 123. v. Ball, U How. Pr. 305 ; MeOullough 
 
 « Suhland v. Sedgwick, 17 Cal. 123 ; v. Clark, 41 Cal. 298 ; Llttlejohn v. 
 
 Young V. Toung, 18 Minn. 90 ; contra, Munn, 3 Paige Ch. 280. 
 
 Meade v. Thome, 2 West. L. M. 312; « prum v. Whiting, 9 Cal. 422. 
 
 Warner v. Warner, 11 Kans. 121; » Bovles v. Hogt, 2 West. L. M. 
 
 Peyser v. McOormack, 51 How. Pr. 548 ; White v. Freese, 2 0. S. 0. B. 30 ; 
 
 205. Bragg v. Bickford, 4 How. Pr. 21; 
 
 8 Laimbeer v. Allen, 2 Sandf. 648. Jones v. U. S. Slate Co., 16 Id. 129 ; 
 
 * Hubbell V. Livingston, 1 Code K. Davis v. Potter, 4 How. 155. As to 
 63. the effect of a verification when a writ- 
 
 ' Laimbeer v. Allen, 2 Sandf, 648 ; ten instrument is embodied in a com- 
 
 S. C, 2 Code R. 15. plaint, consult California Code Civil 
 
 * Angier v. Masterson, 6 Cal. 61; Proc, sec. 447; Corcoran v. Doll, 82 
 Arrington v. Tapper, 10 Id. 464 ; Lat- Cal. 83 ; see also Heath v. Lent, 1 Id. 
 timer v. Kyan, 20 Id. 628. 411. When embodied in an answer, 
 
 ' Stout v. Curran, 7 How. Pr. 36 ; see California Code Civil Proc, sees. 
 Moloney v. Dows, 2 Hilt 217; Hull 448, 449. 
 
142 AN 
 
 A-JUXOi-o wj: rxjj2iAj^Ln\j(tjt 
 
 § 285. On Information and Belief. 
 
 Form No. 6S. 
 
 A. B., the plaiatiff above named, being duly sworn, says as 
 follows : 
 
 I have read the foregoing complaint and know the contents 
 thereof, and that the same is true of my own knowledge, ex- 
 cept as to those matters therein stated on information or [and] 
 belief, and as to those matters I believe it to be true. 
 
 rSlGNATUSBl 
 
 Subscribed and sworn to ^ 
 
 before me, this .... day > 
 
 of , 18.... ) 
 
 J. K., Notary Public. 
 
 § 286. The Same. — There seems to be no reason why our 
 statute prescribes that the verification shall be " upon informa- 
 tion or belief," instead of " upon information and belief," yet 
 the former is the statute of this state ; in New Yopk the statute 
 is different; there the word "and" is used. There can be no 
 reason why the language of the verification should not follow 
 the language of the pleading verified. In such case the verifi- 
 cation should use the word "or" or " and" to correspond with 
 the pleading. The word " belief " is to be taken in its ordinary 
 sense, and means the actual conclusion of the party drawn from 
 information. Positive knowledge and mere belief can not exist 
 together. 1 If the pleader avers matters "upon information 
 and belief," or " upon information or belief," the veriftcatioa 
 will be sufficient if his affidavit states that as to the matters 
 thus alleged he believes the pleading to be true.^ Where tiie 
 pleader states nothing on the information or belief, the verification 
 need not mention the same.^ If, however, there are such alle- 
 gations in the pleading, an allegation that " the same are true 
 according to the best of his knowledge and belief," is insuffi- 
 cient.* So, also, a verification alleging that " the same is 
 substantially true," etc., was held insufficient, as containing a 
 qualification that was a material departure from the require- 
 ments of the code.* 
 
 > Humphreys V. MoOall, 9 Oal. 59. words " of his own knowledffe." waj 
 
 2 Patterson v. Ely, 19 Oal. 28 j Kirk held sufficient in Southworth v. Our- 
 
 V. Rhoads, 46 Id. 403. tis, 6 How. Pr. 271 ; gee also Arata v. 
 
 8 Patterson v. Ely, 19 Oal. 28 ; Kin- Tellurium etc. Co., 8 West Coast Rep. 
 
 kaid V. Kipp 1 Duer, 692; Boss v. 151; but adjudged fatal in Willianis 
 
 Lorigmuir 15 Abb. Pr. 326; Kelly v. v. Riel, 11 How. Pr. 375; Tibballs v. 
 
 Kelly, 1 West Coast Rep. 143. Selfridge, 12 Id. 64. 
 
 T,* ^*S ?o"r®a7-.., l^'"it^''™9'-y. 5 s Waggoner v. Brown, 8 How. Pr. 
 How. Pr. 238; Stadlerv. Parmlee, 10 212. 
 Iowa, 23. A verification omitting the 
 
§ 291. VEBIFICATION OP PLEADINGS. 143 
 
 § 287. By One of Several Plaintiffs or Defendants. 
 
 Form No. 63. 
 [Vbnub] 
 
 A. B., being duly sworn on his own behalf, and on behalf ot 
 
 R. S. , one of the other defendants therein, says as follows . 
 
 1. I am one of the defendants in the above-entitled" action. 
 
 2. I have read the foregoing answer, and know the contents 
 thereof, and that the same is true of my own knowledge, ex- 
 cept as to the matters which are therein stated on information 
 or" [and] belief, and as to those matters I believe it to be true. 
 
 [Jurat.] [Signature.] 
 
 § 288. When One of Several may Verify. — One of sev- 
 eral plaintiffs may verify.' But in certain cases it has been 
 held that where the action is joint, the parties should unite in 
 the verification.* Thus in an action against husband and wife, 
 where her interest is separate, the answer must be verified by 
 both, if relied on as the answer of both.^ 
 § 289. By Two Parties, Severally. 
 
 Form No. 64. 
 
 [Venue.] 
 
 A. B. and C. D., the plaintiffs [or defendants] above named, 
 being duly sworn, say, each for himself, as follows : 
 
 I have read the foregoing complaint [or answer] , and know 
 the contents thereof, and the same is true of my own knowl- 
 edge [except as to those matters stated therein on information 
 and belief, and as to those matters I beheve it to be true] . 
 [Jurat.] • [Signatures.] 
 
 § 290. By Officer of Corporation. 
 
 Form No. 65. 
 [Venue.] 
 A. B., being duly sworn, says as follows: 
 
 1. I am an officer of the company, the plaintiffs [or 
 
 defendants] above named, to wit, the president thereof. 
 
 2. I have read the foregoing complaint [or answer] , and know 
 the contents thereof, and the same is true of my own knowl- 
 edge [except as to those matters which are therein stated on In- 
 formation or [and] belief, and as to those matters I believe it to 
 
 be true]. 
 
 [Jurat.] [Signature.] 
 
 § 291. GroundsofBelief— Sources of Knowledge. —It 
 has been held that a verification made by an officer of a corpo- 
 
 1 Patterson v. Ely, 19 Cal. 28; Alfred v. Watkins, 1 Code R., N. S., 
 
 Kelley v. Bowman, Transcript, July 343 ; Hull v. Ball, 14 How. Pr. 306. 
 18, 1861. ' YouDgs V. Seely. 12 How. Pr 
 
 « Andrews v. Storms, 5 Sandf. 609 ; 395 ; Eeed: v. Butler, 2 Hilt. 589. 
 
144 ANALYSIS OP PLEADINGS. S 232. 
 
 ration need not state the grounds of belief or sources of knowl- 
 edge. It is a verification of the corporation.^ 
 
 § 292. Managing Agent. — A managing agent of a, corpo- 
 ration is an officer of the corporation within the provisions of 
 the act.^ 
 
 § 293. By Attorney or Agent, when the Facts are 
 within his Personal Knowledge. 
 
 Form No. 6B. 
 [Vbntje.] 
 A. B. be'ng first duly sworn, says: 
 
 1. I am the attorney of the plaintiff in this action [or agent 
 as the case may be]. 
 
 2. I have read [or heard read] the foregoing complaint [or 
 answer] , and know the contents thereof, and the same is true 
 of my own knowledge, except as to the matters therein averred 
 to be upon information or belief, and as to these matters I be- 
 lieve it to be true. 
 
 3. The reason why the verification is not made by the plaint- 
 iff [or defendant] , is that the facts stated in said complaint [or 
 answer] are not within his personal knowledge. 
 
 [Jurat.] [SiONATtTBE.] 
 
 § 294. The Same. — ^The attorney may verify a complaint in 
 two cases : 
 
 1. "When the parties are absent from the county where the 
 attorney resides, or from some cause are unable to verify it. 
 
 2. When all the material allegations of the petition are within 
 his personal knowledge.^ But in all cases of verification by 
 attorney or agent, the reason why the verification is not made 
 by the party must be set forth in the afl5davit.* 
 
 Such verification by an agent must disclose the nature of the 
 agency.5 But it is not necessary to verify by the agent who 
 knows most about the matter.^ 
 
 1 Glaubensklea v. Hamburg and How. Pr. 4; Mvers v Gerrith ^<^ 
 American Packet Co., 9 Abb. Pr. Abb. Pr. 106 ; Gourney v. We" uland 
 104; compare Van Home y. Mont- 3 Duer,613; Boss v.Lonffmuir,24How' 
 
 !n!'v 11 TT X. , veriacations by attorneys or agents. 
 
 ^ Glaubensklee V Hamburg and see Pitch v. Bigelow, 5 fiow. Prf 23?: 
 
 American Packet Co., 9 Abb. Pr. Meads v. Gleason, 13 Id.313; Tibballs 
 
 akasonv. Brown, 6How. Pr. 484; Mafherf llVbl 'Ir %^°tl ll 
 
 ^eadwell v Passett 10 Id^ 184; the State of MaineV.Buel, UHow 
 
 Wheeler v. Chesley, 14 Abb. Pr. 441. Pr. 811 
 
 *Cal Code C.P sec 446. For » Boston Locomotive Works v 
 
 examples of sufficient verifications by Wright, 16 How Pr 253 
 
 attorneys, see Wheeler v. Chesley, 14 e Drevert v Annsprt ' 2 Ahh Pr 
 
 Abb.Pr.441; Stannardv. Mattice, 7 166 Appsert, 2 Abb. Pr. 
 
§ 298. VERIFICATION OF PLEADINGS. 145 
 
 § 295. Agent Having Notes in Possession.— Stating that 
 
 the notes were in possession of deponent sufficiently avers that 
 deponent was agent of the plaintiff.^ And authorized to verify 
 the complaint.^ Whether plaintiff was within the county or 
 not. 3 But in California, possession of the written instrument 
 or obligation upon which the suit is based does not authorize 
 the attorney or agent to verify the complaint. 
 
 § 296. By Agent when the Party is Absent from the 
 County. 
 
 Form No. 67. 
 
 [Venue.] 
 
 A. B., being duly sworn, says as follows: 
 
 1 . I am the attorney [or one of the attorneys] of the plaintiff 
 Xpr defendant] in this action. 
 
 2. I have read the foregoing complaint [or answer] and know 
 the contents thereof, and that it is true of my own knowledge 
 [except as to those matters therein stated on information or 
 £and] belief, and as to those matters I believe it to be true] . 
 
 3. The reason this verification is not made by the plaintiff 
 [or defendant] is that he is not within the county of 
 
 which is the county where I reside. 
 
 [Jurat.] [Signature.] 
 
 § 297. The Same— Absent from County.— When the 
 ■party is not within the county where the attorney resides, a 
 
 verification made by the attorney is good, though he have no 
 
 personal knowledge of the truth of the allegations.* Although 
 it appears that the client has a resident agent through whom 
 
 the attorney has obtained his information. ^ 
 
 § 298. The Same— Grounds of Belief. — ^Where an at- 
 torney or agent verifies a complaint, the verification shall state 
 the grounds of behef , and the reasons why it was not made by 
 the party.* The grounds of knowledge or belief need not be 
 «et forth if all the allegations in the pleading are made in the 
 positive form.^ Under the California Code it is not necessary 
 that the attorney or agent should state his grounds of belief. 
 
 1 Myers v. G-errits, 13 Abb. Pr. 106. v. Appsert, 2 Abb. Pr. 165 ; Myers v. 
 
 ' Myers V. Gerrits, Id. Gerritts, 13 Id. 106; Gourney v. Wer- 
 
 3 Wheeler V. Ohesley, 14 Abb. Pr. suland, 3 Duer,6l3 ; Dixwellv. Woods- 
 
 441. worth, 2 Code E.l. 
 
 * Humphreys v. MoCall, 9 Cal. 59 ; ^ Drevert v. Appsert, 2 Abb. Pr. 
 
 Ely V. Frisbie, ]7Id. 250; Patterson 165. 
 
 V. Ely, 19 Id. 28; Lefevre v. Latson, '•Oregon Code, sea 79; Boston 
 
 5 Sandf. 650. Roscoe v. Maison, 7 Locom. Works v. Wright, 15 How. 
 
 How. Pr. 121; Stannard v. Mattiee, Pr. 253; Meads v Gleason, 18 Id. 
 
 Id. 4; Smith v. Eosenthall, 11 Id. 309; People v. Allen, 14 Id. 334. 
 
 ■442 ; Wilkin v. Gilman, 13 Id. 225 ; ' Ross v. Longmuir, 15 Abb. Pr. 
 
 People V. Allen, 14 Id. 334; Drevert 326. 
 EsTBE, Vol. I— 10 
 
146 ANALYSIS OF PLEADINGS. § 299 
 
 § 299. The Same — Guardian. — The guardian, or attorney 
 for the guardian, of an infant plaintiff may verify.^ In an ac- 
 tion by an infant appearing by a guardian ad litem, the com- 
 plaint may properly be verified by the guardian, and be need 
 not do so as the agent or attorney for the infant, but may as 
 the plaintiff.^ 
 
 § 300. Where the Absent Plaintiff is a Corporation. 
 
 Form No. 68. 
 
 [Ventje.] 
 
 A. B., being first duly sworn, says: I am the attorney of the 
 plaintiff in this action. I have read the foregoing complaint, 
 and know the contents thereof, and the same is true of my own 
 knowledge [except, etc.J 
 
 The reason why the complaint in this cause is not verified by 
 an officer of said corporation is, that its place of business is at 
 
 in the state of , and that none of its officers 
 
 are now within the county of , where I reside. 
 
 [JTJBAT.J [SlGirATTTBE.] 
 
 § 301. Verification of Petition. 
 
 Form No. 69. 
 
 [Insert venue, introduction, and description of deponent, and 
 add]: 
 
 I have read the foregoing petition subscribed by me, and 
 know the contents thereof ; that the same is [or, where such 
 papers are annexed, and that the same and the accounts and 
 inventories hereunto annexed are] true of my own knowledge 
 [except as to the matters therein stated on information or 
 [and] belief, and as to those matters I believe it to be true]. 
 [Jurat.] [Signatuiib.] 
 
 § 302. Verified Petition.— The petition for the perpetua- 
 tion of testimony must be verified by the applicant thereof.^ 
 
 1 Hill V. Thaeter, 2 Code R. 8 ; 2 Anable v. Anable, 24 How. Pr. 
 Anable v. Anable, 24 How. Pr. 92; 92. 
 Eogers v. Cruger, 7 Johns. 657. » Code 0. P., sec 2084. 
 
PAET THIED. 
 
 PLEADINGS OF PLAIKTIFF. 
 
 CHAPTER I. 
 
 COMPLAINTS IN GENERAL. 
 
 § 303. In Gsneral. — The complaint, under the California 
 code, or the petition, as it is called in some states, is the first 
 pleading in the action, and the foundation for all future pro- 
 ceedings. In modern practice, it is a substitute for the declara- 
 tion at common law, and under the new system, the plaintiff's 
 allegations showing his cause of action, whether at law or in 
 equity, are termed the complaint. The code as adopted in most 
 of the states and territories of the Union declares expressly 
 what the complaint shall contain, which is as follows : 1. The 
 title of the action, specifying the name of the court and the 
 name of the county in which the action is brought, and the 
 names of the parties to the action, plaintiff and defendant ; 2. 
 A statement of the facts constituting the cause of action in or- 
 dinary and concise language ; and 3. A demand for the relief 
 vvnich the plaintiff claims. 
 
 § 304. First Subdivision of Complaint. — The first sub- 
 division of complaints under the code, which provides what the 
 complaint shall contain, will be found under the title Formal 
 Parts of Pleadings, part second, chapter II, where the entitling 
 of a cause may be found, with forms and authorities in support 
 thereof. 
 
 § 305. Averment of Chasacter and Capacity. — If the 
 plaintiff sue in a representative or official character or capacity, 
 
 U7 
 
148 PLEADINGS OP PLAINTIFF. § 306, 
 
 the character must be alleged as well as stated in the title.^ It 
 is usual and proper in stating the title to a complaint in such 
 cases to add to the name of the party a designation stating the 
 especial character which he sustains, as "A. B., Executor," 
 "C. D, Sheriff." This, however, will not dispense with the 
 necessity of the averment of the character in which he sues. 
 Standing alone in the title would be but a mere descriptio per- 
 sonce.^ Such an averment, and also an averment that the action 
 is brought by him in such capacity, is suflScient to sustain a re- 
 covery in that capacity.3 In general a plaintiff can not sue in 
 two capacities, private and representative, in the same action.* 
 
 § 306. The Same — Action by Agent. — The character of 
 agent of a company must be averred.^ But an agent can not 
 sue as such unless specially authorized by statute. 
 
 § 307. The Same Action by Assignee. — The character 
 of assignee must be averred when plaintiff sues in that capacity." 
 But the form of the assignment, or the consideration thereof, 
 need not be stated.'' And on an assignment by a corporation, 
 the plaintiff need not aver that the directors were authorized to 
 make it.^ 
 
 § 308. The Same— Action by Company or Partnership. 
 In an action where a member of a company is plaintiff or 
 defendant, membership must be averred. ^ And the jurisdiction 
 and a cause of action must be shown, i" And in the state of 
 New York, where such actions will lie, in actions by or against 
 joint stock companies, the complaint must allege that the com- 
 pany is a joint stock company or association, consisting of more 
 than seven shareholders or associates.ii But in an action in 
 which the defendants were named Hull & Co., the " & Co." were 
 considered surplusage.^^ ^ complaint which contains no other 
 
 lGouiav.G-la99,18 Barb. 185; Smith In a representative and official ca- 
 
 V. Levinus, 8 N. T. 472, and other pacity. 
 
 authorities there cited. 6 Tolmie v. Dean, 1 Wash Ter 46 
 
 2 Merritt v. Seaman, 6 N. Y. 168 ; s Butterfleld v. Macomber, 22 How. 
 Hallett V. narrower, 83 Barb. 537; Pr. 150; Wheelook v. Lee 15 Abb 
 Barfleld v. Price, 40 Cal. 535; Free- N. S., 24. 
 
 man v. Pulton Fire Ins, Co., 14 Abb. ' Fowler v. N. T. Indem Ins Co 
 Pr.407; Murray v. Church, 58 N. Y. 23 Barb. 161; Moranse v. Mudge, 6 
 €21 ; Bonsteed v. GarUnghouse, 60 Abb. Pr. 243. 
 
 ^Tp^^i^' w * 1. .A „ . „' Nelson V. Eaton, 16 Abb. Pr. 113. 
 
 3 Fowler v. Westervelt 40 Barb, See po«<- Forms of Complaints : Ac- 
 873; Agate v. Kmg, 17 Abb. Pr. 59, tions by Assignees, 
 distinguishing upon this point the de- » Tolmie v. Dean, 1 Wash. Ter 46 
 cisioninGouldv.Glass, 19Barb. 179. "Id. 
 
 * Yates V. Kinimel, 5 Mo. 87. See " Tiffany v. Williams, 10 Abb. Pr. 
 
 this subject further considered post—^ 204. 
 
 Porms of Complaints : By and against M MuUiken v. Hull, 5 Cal. 245 
 particular persons, individually and 
 
§ 310. COMPLAINTS IN GENERAU 149 
 
 designation of the party plaintiff than the name of a copartner- 
 ship firm, is deemed defective.^ 
 
 § 309. The Same — Action by Corporation. — In NewYork, 
 where the plaintiff sues by an appropriate corporate name, it is 
 not necessary to aver expressly that the plaintiff is a corpora- 
 tion ; in such a case there is an implied averment to that effect.^ 
 This holding, however, was upon a demurrer assigning as the 
 grounds thereof: 1. That it appeared from the pleading that 
 the plaintiff had not legal capacity to sue ; and, 2. That it did 
 not contain facts constituting a cause of action. The general 
 rule undoubtedly is, that a coi-poration plaintiff must aver that 
 it is a corporation, the exception being where the defendant is 
 estopped from denying the incorporation, as by having con- 
 tracted with it by its corporate name.^ Where plaintiff suing 
 as supervisor, described himself in the title of the complaint as 
 supervisor of North Hempstead, and commenced it, " The 
 complaint of the plaintiff above named, as supervisor as afore- 
 said, shows," etc., it was held, on demurrer, a sufficient state- 
 ment of the capacity in which he sued.* 
 
 The act of incorporation, may be pleaded by reciting the title 
 of the act and the date of its passage.* But it must be set forth 
 with accuracy.^ But the short mode of pleading permitted by 
 this statute is not intended to relieve corporations from prov- 
 ing their existence.'' Where the original act of plaintiff's in- 
 corporation is referred to in the complaint, a vague reference 
 to other general statutes affecting it does not render the com- 
 plaint demurrable.* 
 
 § 310. The Same — Permission to Sue. — There are cases 
 in which by reason of some special character, a party can not 
 sue or be sued except by permission of the court. In such 
 cases, the obtaining permission to sue should be alles:pd 
 stating how, when, and from wtiom obtained, as in case of a 
 
 1 Oilman v. Cosgrove, 22 Cal. 356; * Smith v. Levinus, 4 Seld. 472. 
 Walker v. Parkins, 9 Jur. 685 ; 14 ^ Cal. Code C. P., sec. 459 ; IT. S. 
 Law Jour. R. 214, Q. B. ; 1 New Pr. Bank v. Haskins, 1 Johns. Cas. 132. 
 Cas. 199 ; 2 D. & L. 982. See post, « Union Bank v. Dewey, 1 Sandf. 
 Forms of Complaint — Actions by Cor- 509. 
 
 porations and Partners. ' Onondaga County Bank v. Carr, 
 
 2 Union M. Ins. Co. v. Osgood, 1 17 Wend. 443 ; compare Bank of W,i- 
 Duer, 707; The Bank of Genesee v. terville v. Beltser, 13 How. Pr. 270; 
 The Patchin Bank, 13 N. Y. (3 Kern.) Bank of Genesee v. Patohin Bank, 13 
 313; Phcenix Bank of N. Y. v. Don- N. Y. (3 Kern.) 809. 
 
 nell, 41 Barb. 571. * Sun Mutual Ins. Co. v. Dwight, 1 
 
 ' Conn. Bank v. Smith, 17 How. Pr. Hill. -50. See post. Forms of Com- 
 JR. 487. plaiiit — Actions by Corporations. 
 
150 PLEADINGS OF PL.aNTIFJP. § 311. 
 
 receiver ;i or of a guardiaa of an habitual drunkard ;^ or of a 
 lunatic. 3 
 
 § 311. Second Subdivision— Statement of cause of 
 Ac ::ion. — The complaint should state expressly and in direct terms 
 the facts constituting the cause of action, and leave no essential 
 fact in doubt, or to be inferred or deduced by argument from 
 the other facts stated, as inference, argument, or hypothesis can 
 not be tolerated in a pleading. "• A cause of action being the 
 right a person has to institute and carry through a proceeding,^ 
 and as the object of the complaint is to present the facts upon 
 which the action is founded in ordinary and concise language, 6 
 the manner of the statement of those facts becomes a matter of 
 importance, not only in reference to the facts which should be 
 alleged, but of such facts as need not be alleged and which 
 ought to be omitted from the complaint. 
 
 It is not in general necessary to make it appear on the face of a 
 complaint that the court has jurisdiction of the person or of the 
 subject-matter of the action.'' It is, however, held that in an 
 action against a foreign corporation, t he complaint must allege 
 that the plaiatiff is a resident, or tha t the cause of action was, 
 or the subject of it is situated in this state.^ 
 
 Allegations in a complaint must be consistent with each other, 
 and such as are not consistent, as well as such allegations as are 
 absurd, and the truth of which is impossible, may be regarded 
 as surplusage. 3 An averment at the end of a complaint that 
 the defendant owes the plaintiff, is a mere conclusion of law 
 and is not admitted by demurrer.^" The complaint need not be 
 dated, nor need it state the time when the action was com- 
 menced."^ But the clerk shall indorse on the complaint the day, 
 month, and year the same is filed. ^^ 
 
 § 312. Wiiat Facts are to be Stated. — Those facts, and 
 
 1 Angel V. Smith, 9 Ves. .335 ; 3 « Cal. Code C. P., sec. 426. 
 
 Bro. C. Cas. 88; Merritt v. Lyon=!, 16 ' Koenig v. Nott, 8 Abb. Pr. 884: 
 
 Wend. 410 ; Chautauque County Bank Spencer v. Koeers Loco. Works 17 
 
 V. Rislev. 19 N. Y. 376. Id. 110. 
 
 ^Hallv. Taylor, 8 How. Pr. 428. » House v. Cooper, 16 How. Pr 
 
 ' Williams v. Cameron, 26 Barb. 292. 
 
 172 ; Graham v. Scripture, 26 How. » Sacramento County v Bird. 81 
 
 Pr. 501. See post. Forms of Com- Cal. 66. 
 
 plaints— Actions by , Receivers and i» Millard v. Baldwin, 3 Gray 484 : 
 
 Guardians. Codding v. Mansfield, 7 Gray! 272: 
 
 « Joseph V. Holt, 37 Cal. 250, citing 13 Id. 392. 
 
 Green V. Palmer, 1.5 [d. 411. " Maynard v. Talcott, 11 Barb. 569. 
 
 5 Meyer v. Van CoUem, 28 Barb. i^ Cal. Code, sec. 406; and codes of 
 
 ■^•''■' Nevada, Idaho, Arizona, etc. 
 
§ 312 COMPLAINTS IN GENERAL, 151 
 
 those only, should be stated, which constitute the cause of ac- 
 tion ;^ and the kind of relief should be explicitly demanded.* 
 
 All the material facts out of which the cause of action arose 
 ought to be stated, and none others ;3 and they should be stated 
 in an intelligible and issuable form, capable of trial ;* but a de- 
 fective allegation of a fact may be cured by default or verdict : ^ 
 Thus, a statement in a complaint that the contract sued on was 
 made payable in a specifle kind of money, is an alligation of a 
 material fact.^ 
 
 It is laid down as a rule that the complaint must contain all 
 the facts which, upon a general denial, the plaintiff will be 
 bound to prove in the first instance, to protect himself from a 
 nonsuit, and show himself entitled to a judgment.'' And this 
 statement must be made without unnecessary repetition. ^ 
 
 The statute in this respect is only declaratory of the common 
 law,' and is applicable as well to every description of pleading 
 under the code, whether in law or equitj', all distinctions in the 
 form of actions having been abolished.^* This rule governs all 
 cases of pleading, legal and equitable. "^ 
 
 A complaint is materially defective if, to lay the foundation 
 of a recovery, the proof must go further than the allegations it 
 contains.^ It must be so framed "as to raise upon its face the 
 question whether, admitting the facts stated to be true, the 
 plaintiff is entitled to judgment, instead of leaving that ques- 
 tion to be raised or determined upon the trial.^^ Yot where a 
 complaint shows no legal cause of action on its face, a judg- 
 ment by default can no more be taken. than it can be over a 
 general demurrer, i* 
 
 1 Green v. Palmer, 15 Cal. 413; Garvey v. Fowler, 4 Id. 665; 4 How. 
 
 Wilson V. Cleaveland, 80 Id. 192; Pr. 98; Paff v. Kinney, 5 Id. 390; 
 
 Kacouillat v. Bene, 32 Id. 455 ; Bud- Turner v. Comstook, 1 Code E. 102 ; 
 
 din^ton v. Davis, 6 How. Pr. 402. Tucker v. Eushton, 2 Id. 59 ; Russell 
 
 2'Bankston v. Farris, 26 Mo. 175; v. Clapp, 3 Id. 64; Mann v. More- 
 
 Biddle v. Boyce, 13 Id. 532. wood, 5 Sand. 564 ; Lienan v. Lincoln, 
 
 sHentsoh v. Porter, 10 Cal. 555; 2Duer,670; Green v. Palmer, 15 Cal. 
 
 Hicks V. Murray, 43 Id. 522; Brack- 414. 
 
 et V. Wilkinson, 13 How. Pr. 102 ; ' Lawrence v. Miller, 2 Comst. 253 ; 
 
 Elwood V. Gardner, 45 N. T. 349 ; N. T. Code, 142 ; Laws of Oregon, sec. 
 
 Van Nest V. Talma^e, 17 Abb. Pr. 99 ; 65 ; Wash. Territory, sec. 53. ' 
 
 Wade V. Eusher, 4 "Bosw. 537. ' Gladwin v. Stebbins, 2 Cal. 108. 
 
 ♦ Boyce v. Brown, 7 Barb. 81 ; Los ^ Pieroy v. Sabin, 10 Cal. 27 ; Cor- 
 An^eles v. Signoret, 50 Cal. 298. dier v. Schloss, ]2 Id. 147. 
 
 * Russell V. Mixer, 42 Cal. 475. See ^^ Goodwin v. Hammond, IS Cal. 
 also Mercier v. Lewis, 39 Cal. 535 ; and 169 ; Riddle v. Baker, Id. 302 ; Payne 
 Reynolds v. Hosmer, 45 Id. 616. v. Treadwell, 16 Id. 248. 
 
 ' Wallace v. Eldredge, 27 Cal. 498. ^ Stanley v. Whipple, 2 McLean, 
 
 ' 1 Van Santv. 215 ; Bristol v. The 35. 
 
 Rensselaer, etc., Co., 9 Barb. 158; 13 i Van Santv. 216. 
 
 Tallmaa v. Green, 8 Sandf. 437 : " Abbe v. Marr, 14 Cal. 211. 
 
152 PLEADINGS OF PLAINTIFf. § 313. 
 
 If tlie complaint contains one good count, though the find- 
 ings of fact are defective, it will be sufficient ;^ since a plaintiff 
 can only recover for such causes of action as are stated in hia 
 coinplaint,^ he must show a good cause of action,^ and facts 
 sufficient to constitute it.* 
 
 § 313. Allegations on Information and Belief. — Allega- 
 tions made upon information and belief should be distinguished 
 by the phrase, ''alleges upon information and belief." The 
 decisions on this point have been numerous and irreconcilable.^ 
 Section 524 of the new Code of Procedure in New York settles 
 the question in that state. It provides: "The allegations or 
 denials in a verified pleading must, in form, be stated to be 
 made by the party pleading. Unless they are therein stated to 
 be made upon the information and belief of the party, they 
 must be regarded, for all purposes, including a criminal prose- 
 cution, as having been made upon the knowledge of the person 
 verifying the pleading. An allegation that the party has not 
 sufficient knowledge or information to form a belief with re- 
 spect to a matter, must, for the same purposes, be regarded as 
 an allegation that the person verifying the pleading has not 
 such knowledge or information." The difference in the au- 
 thorities upon this question has grown out of a very literal 
 application of the rule that all facts must be positively alleged. 
 "When pleadings were not required to be verified, the rule was 
 of easy application. But this rule related to the form of the 
 allegation and not to the knowledge of the party. It is evi- 
 dent that a fact may be tiverred positively, so far as the form of 
 the allegation is concerned, and yet the truth of the allegation 
 rests upon information and belief. A failure to distinguish in 
 the pleading between facts stated on personal knowledge and 
 those stated on information and belief must of necessity de- 
 feat to a great extent the object to be attained by verification, 
 unless the person verifying shall be held to iiave made every 
 allegation upon personal knowledge. 
 
 The propriety and sufficiency of allegations upon informa- 
 tion and belief, otherwise unobjectionable, have not been ques- 
 tioned in California, unless in injunction cases.* 
 
 'Lucas V. San Francisco, 28 Cal. « Summers v. Farisb, 10 Cal. 847; 
 
 591 ; Hayden v. Sample, 10 Mo. 215 ; Maguire v. Vice, 20 Mo. 429. 
 
 State V. Campbell, Id. 724; Marshall "See Trusoott v. Dole, 7 How. Pr. 
 
 V. Bouldin, 8 Id. 244. 221 ; St. John v. Beers, 24 Id. 877. 
 
 " Benedict V. Bray, 2 Cal. 256. « See Patterson v. Ely, 19 Cal.80 85. 
 
 3 Russell V. Ford, 2 Cal. 86; Little 40; Kirk v. Rhoads. 46 Id. 408- N Y 
 
 V. Mercer, 9 Mo. 216. Marbled LWorks v.Smith,4 Du'er,8'62. 
 
§ 314. COMPLAINTS IN GEMERAL. 153 
 
 § 314. Joinder of Causes of Action — The codes of all 
 the states make provisions for the joinder of causes of action. 
 Such provisions differ in their details. In California, and in 
 most of the other code states, it is provided that the plaintiff 
 may upite several causes of action in the same complaint, 
 where they all arise out of : (1) Contracts, expressed or implied ; 
 (2) Claims to recover specific real property, with or without 
 damages for the withholding thereof, or for waste committed 
 thereon, and the rents and profits of the same ; (3) Claims to 
 recover specific personal property, with or without damages for 
 the withholding thereof ; (4) Claims against a trustee by virtue 
 of a contract, or by operation of law; (5) Injuries to character; 
 (6) Injuries to person ; (7) Injuries to property. The causes of 
 action so united must all belong to one only of these classes, 
 and must affect all the parties to the action, and not require 
 different places of trial, and must be separately stated. But an 
 action for malicious arrest and prosecution, or either of them, 
 may be united with an action for either an injury to character or 
 to the person. 1 In construing this provision of the code, it has 
 been held that causes of action arising out of the same transac- 
 tion, against the same parties, where all the defendants are inter- 
 ested in the same claim of right, and where the relief asked for 
 in relation to each is of the same general chai-acter, may in gen- 
 eral be united.^ Thus, an action for damages and also for a 
 penalty, in a suit against a sheriff for a failure to execute process, 
 maybe united.' So a complaint in ejectment maybe for two 
 separate and distinct pieces of land, but the two causes of 
 action must be separately stated, and affect all the parties to the 
 action, and not require different places of trial. * And under 
 our system a cause of action in tort may be united with a cause 
 of action on contract, if the two causes of action arise out of the 
 same transaction. ^ 
 
 Each cause of action should be separately and distinctly 
 stated.' And each separate and distinct proposition of each 
 cause of action should be separately set forth, and logical order 
 should be obsei-ved in the statement of the premises, leaving the 
 conclusions of law deduced therefrom to be drawn by the court. 
 The better practice is to number each cause of action, and 
 
 1 California Code, Civil Proc, see. * Boles v. Cohen, 15 Cal. 151. 
 
 427. ' Jones v. Steamship " Cortes," 17 
 
 » Varick V. Smith, 5 Paige Ch. 137 ; Cal. 487. 
 
 Jones V. Steamship " Cortes," 17 Cal. * Boles v. Cohen, 16 Cal. 151 ; Sturges 
 
 487. V, Burton, 8 Ohio St. 216. 
 
 s'pearkes v. Freer. 9 Cal. 642. 
 
154 PLEADINGS OF PLAINTIPI'. § 315. 
 
 «ach proposition of eacli cause of action.^ The causes of ac- 
 tion required to be separately stated are such as by law entitle 
 the plaintiff to separate actions, and each of which would be a 
 perfect cause of action in itself.^ And such statement should 
 begin with appropriate words to designate it as such.^ Each 
 statement must be complete in itself, or must be made so by 
 express reference to other parts of the pleadings.* That refer- 
 ence may be made to other allegations was the rule at common 
 law. ^ A complaint seeking to recover on two causes of action 
 must show how much is due on each. In a word, each cause 
 of action must be clearly and explicitly stated, and must be 
 perfect in itself.^ 
 
 § 315. Causes of Action Which can not be Joined. — 
 Causes of action arising under different classes, as specified in the 
 provisions of the code quoted in the preceding section, can 
 not be united in one action. So, inconsistent causes of action 
 oan not be united in the same complaint.'' Nor can the pleader 
 under the present system, any more than under the old, ask for 
 two or more distinct kinds of relief, inconsistent with or repuc^- 
 nant to each other." Thus, an action in ejectme nt for breach of 
 condition, with damages for breach of covenant, is deemed in- 
 ■compatible.9 So, an action in ejectment against vendor, and 
 an equitable claim that vendor execute a conveyance, can not 
 in general be united. i" 
 
 A claim for the possession of real property, with damages for 
 its detention, can not be joined in the same complaint, under 
 any system of pleading, with a claim for consequential damages 
 arising from a change of road, by which a tavern-keeper may 
 have been injured in his business." A complaint which joins an 
 action of " trespass quare dausum fregit," ejectment, and prayer 
 for relief in chancery, will be held bad on demurrer. ^^ So 
 
 «„c^m^'^'''u''-.^®^'S"'"?'''„^.¥°'^-P''- ' 1 Van Santv. 54, 55; Linden v. 
 
 298; Blanchard V. Strait, 8Id. 83. Hepburn, 3 Sandf. 668 
 
 " Sturges V. Burton, 8 Ohio St. 215. « 1 Van Santv 55 
 
 3 Benedict y Seymour 6 How Pp. 9 Underbill v. Saratoga and Wash- 
 
 298 ; Lippincott v. Goodwin, Id. 242. ington B. fl. Co., 20 Barb 455 
 
 * Watson V. S. P. & H. B. K. B. " Lattin v. McCartv 17 How Pr 
 
 f^-'Jl ^"'KH' ^"'='i«^- (Harrison, 289; 8 Abb. Pr. 225. As to ejectment 
 
 10 Abb. Pr. 246. and equitable relief generally, see On- 
 
 5 Preeland V. McCullough, 1 Den. derdonk v. Mott, 34 Barb. 106 
 
 414; Crookshank V. Gray, 20 Johns. ^ Bowles v. Sacramento Turnpike 
 
 .S44; GriBwold V. Nat. Ins. Co., 8 Cnw. Co., 5 Cal. 224. 
 
 98 ; Loomis v. Swick, 3 Wend. 205 ; " Bigelow v.Cove 7 Cal 138 • Nevada 
 
 Porterv Cumming3,7Id.l72 ' and SalramentoSl Co v S It 
 
 l/fi ?^ v^ ""!. "; ^%^^' ^^ S*^- ^^•^^*: ^''^^ V.Bingham, 18 Barb. 
 
 146; Clark v. Parley, 3 Duer, 646; 494; Cowenhoven v. City of Brooklyn. 
 
 Watson T. S.P.&fl. B. E. E. Co., 38 Id. 9; Hotchkiss y. AuCn 4 
 
 ^^ -''^^- !'• Eochester E. B. Co., 86 Id. 600. 
 
§ 315. COMPLAINTS IN GENERAL. 155 
 
 claims for injury to personal property, and for its possession, 
 cau notbe united.! Enforcement of equitable lien, and demand 
 for possession in replevin, can not be united.^ 
 
 A count in assumpsit can not be joined with a count in toH; 
 and upon trial the plaintiff may be compelled to elect upon 
 ■which he will proceed.^ But in California, where both arise out 
 •of the same transaction, they may be united. It is held in 
 Pennsylvania that a count in assumpsit can not be joined with a 
 •count for a deceit ; and where added after an award of arbitra- 
 tors, and an appeal therefrom by the defendant, under a 
 •declaration containing a count for deceit only, it was properly 
 stricken off by the court on the trial.* 
 
 Counts in debt and covenant can not be joined. Such a 
 cieclaration is bad on general demurrer. ^ A claim on a demand 
 for money had and received can not be joined with a claim to 
 compel the delivery up of notes. ^ It seems that the vendor can 
 not unite in the same action a claim against a broker for dam- 
 .ages for fraudulent sale of land with a claini against a purchaser 
 for reconveyance or accounting.^ So a landlord can not de- 
 mand an injunction against a breach of covenant in the same 
 action in which he demands a forfeiture of the lease. Such 
 reliefs are inconsistent. ^ 
 
 Claim for equitable relief against a corporation and one for 
 •damages against individual directors are incapable of joinder.^ 
 So, where the interests of the defendants are several, as in ease 
 of the several purchasers of securities, in an equitable suit to 
 •compel their surrender, the causes of action against the several 
 purchasers can not be united. !" 
 
 An individual and representative claim can not properlv be 
 joined in the same action.^ 
 
 Complainant can not unite In one bill a demand that defend- 
 
 1 Spalding v. Spalding, 1 Code R. S. C, 5 How. Pr. 188 ; 9 N. Y. Leg. 
 ■64 ; Smith v. Hallock, 8 How. Pr. Obs. 80. 
 
 73. ' House v. Cooper, 30 Barb. 157 ; 
 
 2 Otis V. Sill, 8 Barb. 102. 16 How. Pr. 292. 
 
 3 Noble V. Laley, 50 Penii. 281 ; " Lexington and Bis: Sandy R. R. 
 Childs V. Bank of Missouri, 17 Mo. Co. v. Goodman, 25 Barb. 409; 15 
 213; Lackey v. Vanderbilt, 10 How. How. Pr. 85; Hess v. The Buffalo and 
 Pr. 155; see Ford v. Mattice, 14 Id. Niagara Falls R. R. Co., 29 Barb. 391 ; 
 91 ; Dunning v. Thomas, 11 Id. 281. Clark v. Coles, 50 How. Pr. 178 ; Aus- 
 
 * Pennsylvania K. R. Co. v. Zug, tin v. Monro, 47 N. Y, 360. 
 
 47 Penn. 480. i' Lucas v. N. Y. Cent. R. E. Co., 
 
 SBrumbaughv.Keith, SlPenn. 327. 21 Barb. 245; Hall v. Fisher, 20 Id. 
 
 6 Cahoon v. Bank of Utica, 3 Code 441; Voorhis v. Child's Ex'r, 17 N. 
 
 R. 110; Aleger v. Scoville, 6 flow. Pr. Y. 354; Higgins v. Rockwell, 2 Duer, 
 
 131. 650; Tracy v. Suydara, 30 Barb. 110; 
 
 ' Gardner v. Ogden, 22 N. Y. 327. Buckham v. Brett, 22 How. Pr. 233; 
 
 « Linden v. Hepburn, 3 Sandf. 668 ; Gridley v. Gridley, 33 Barb. 250. 
 
156 PLEADINGS OF PLA.INTIFP. § 315. 
 
 ant account individaally for moneys received by him with a 
 demand that he account as administrator or trustee.^ So, a 
 claim against surviving partners and executors of deceased part- 
 ners can not be united unless the survivor is insolvent.^ 
 
 Actions on contracts, injury to person or injury to property, 
 are incompatible and can not be united, as it is essential that 
 they should all belong to the same class. ^ Causes of action to 
 recover damages for alleged injuries to the person and property 
 of the plaintiff, and for false imprisonment of the plaintiff's 
 person, for forcibly ejecting him from a house and premises 
 alleged to have been in plaintiff's possession, and keeping him 
 out of the possession thereof, can not be united.* So the tort of 
 a husband and separate tort of wife can not be united. ^ A claim 
 for damages for a personal tort can not be united with a 
 demand properly cognizable in a court of equity in the same 
 action. 8 
 
 As a rule, personal actions ex contractu and ex delicto can not 
 be united,'' as the distinction between actions growing out of 
 torts and those growing out of contracts must still be pre- 
 served. ^ It has been held, however, that a party whose prop- 
 erty has been wrongfully taken, may waive the tort and sue in 
 assumpsit.^ But whichever ground of recovery the pleader 
 adopts, the substantial allegations of the complaint in a given 
 case must be the same under our prac tice as were required at 
 the common law.^" 
 
 A bill in equity is multifarious when several matters are 
 united against one defendant, which are perfectly distinct and 
 unconnected, or when relief is demanded against several de- 
 fendants of several matters of a distinct and independent 
 nature." So, in an action against trustees of two separate 
 estates. 1^ 
 
 An action against a sheriff and his official bondsmen, alleging 
 only a cause of action against him as a trespasser, and against 
 his sureties as signers of the bond, and not otherwise, is a mis- 
 
 oo'r.'^i^o^Auu ^^i-J^^' 28 How. Pr. ' White V. Snell, 5 Pick. 425 ; Bos- 
 
 /30; 18 Abb. Pr. 39a; Latting v. ton v. Otis, 20 Id. 41. 
 
 Latting, 4 Sandf. Oh. 31; Bai-tlett v. e Knickerbocker v. Hall, 3 Nev. 
 
 w: ' ^IJt?^: fjA ^.1^' ^^^ ^"''^ "' '^*! ^'^'•8°" K'^er Lumbering Co. v. 
 Wilson, 28 Cal. 632, 639. Bassett, 2 Id. 249. 
 
 2 McVean V Scott. 46 Barb, 879. » Eversole v. Moore, 3 Bush, 49: 
 
 11, "''^ ''•^^"™P^°"' 9 How. Pr. co«fo'a, Ladd V. Kogers, 11 Allen 
 
 113 ; Mayo V. Madden, 4 OhI. 27. 209. 
 
 •McCarty V.Fremont, 23 Cal. 197. i» Miller v. Van Tassel, 24 CaU 
 
 'Malone v. Stilwell, 15 Abb. Pr. 463. 
 
 ^^JV »^ J 1 ,,-.,„, " Wilson V. Castro, 31 Cal. 420. 
 
 « Mayo V. Madden, 4 Cal. 27. " Vial v. Mott, 37 Barb. 208. 
 
§ 316. COMPLAINTS IN GENERAL. 157 
 
 joinder of causes of action.' So, a lessee and his surety can 
 not be united in the same suit.^ 
 
 A husband and wife may join in suit for her services, but 
 when they sue together he can not join a claim of his own.^ A 
 suit by an infant coming of age, seeking to avoid two separate 
 grants to different persons, and to recover possession, can not 
 be brought in one action.* 
 
 A count on contract made by one defendant can not be joined 
 with one made by all defendants.^ Two claims, the one against 
 both defendants for recovery of possession of real estate and 
 damages, the other against one only for rents received, no con- 
 nection existing between the same, can not be joined.^ 
 
 A complaint setting forth a liability on the part of the defend- 
 ant, partly joint and partly several, is fatally defective.'' Or a 
 claim arising out of joint liability on contract, with claim for 
 joint and several liability sounding in tort.^ Nor can an action 
 be maintained against a defendant as sole debtor on one con- 
 tract and joint debtor on another.* 
 
 A suit on a recognizance given before a justice, for the ap- 
 pearance of the defendant to answer a criminal charge. The 
 complaint, after setting out the cause of action on the recogniz- 
 ance, avers that the defendant, S., to secure his sureties, executed 
 a trust deed to T. of certain warrants and money. This deed 
 provides that in case the recognizance be forfeited and the sure- 
 ties become liable thereon, the trustee is to apply the property 
 to the payment thereof, so far as it will go. The complaint asks 
 to have this property so applied. It is a misjoinder of causes 
 of action, the trust deed having nothing to do with the liability 
 of the sureties.'" 
 
 § 316. Splitting Demands. — ^At law a creditor has not the 
 right to assign the debt in parcels, and thus by splitting up the 
 cause of action subject his debtor to costs and expenses of sev- 
 eral suits." But although such assignment is not good at law 
 without consent of the debtor, it is valid in equity, and in an 
 action thereon it is not necessary to aver consent. So a prom- 
 
 1 GhirardelH v. Bourland, 32 Gal. « Tompkins v. White, 8 How. Pr. 
 585. 520. 
 
 2 Phalen v. Dingee, 4 E. D. Smith, ' Lewis v. Acker, 11 How, Pr. 163. 
 379' Tibbitts v. Perey, 24 Barb. 39. " Harris v. Sohultz, 40 Barb. 315. 
 
 » Avogadro v. Bull, 4 E. D. Smith, ' Barnes v. Smith, 16 Abb. Pr. 420; 
 384. Warth v. Radde, 28 How. Pr. 230. 
 
 * Voorhjes v. Voorhies, 24 Barb. '" The People v. Skidmore, 17 Oal. 
 
 150. 
 
 260. 
 
 6 Moore v. Platte Co., 8 Mo. 467 ; u Marziou v. Pioche, 8 Cal . 536 ; 
 Dean V Holly, 25 Mo. 357; S. C, but see McEwen v. Johnson, 7 Id. 
 26Id. 186. 260 ; Grain v. Aldrich, 38 Id. 514. 
 
158 PLEADINGS OF PLAINTIFF. § 317. 
 
 issory note can not be the foundation of two suits, each for a 
 part of the note.^ But there is no case or dictum requiring a 
 party to join in one action several distinct causes of action. 
 The plaintiff may elect to sue upon them separately,^ even when 
 they belong to the class of causes which might be joined, pro- 
 vided their identity is not the same.^ But an attorney suing for 
 services must include his entire demand in one action.* So a 
 joint cause of action vested in two or more, can not be split. ^ 
 But any demand may be split with the consent or assent of the 
 defendant. s 
 
 The failure to join several causes of action arising out 
 of the same transaction may sometimes operate as a bar to 
 the subsequent assertion of the omitted demands.'' Thus in a 
 suit in trover for the recovery of bed-quilts, when bed and bed- 
 quilts were taken at the same time, a recovery of the quilts was 
 a bar to an action for the recovery of the bed.* So an action 
 for the recovery of one barrel of potatoes was a bar to a suit 
 for the recovery of two barrels, all sold at the same time.^ So, in 
 case of sale of hay under a contract, to be delivered in parcels. i' 
 So, also, judgment in an action for a breach of one covenant of 
 a lease is a bar to a recovery on the breach of another cove- 
 nant in the same lease, committed before the first suit was 
 commenced. ^1 
 
 § 317. Actions for Dsbt. — A debt is a sum of money due 
 upon a contract, express or implied. ^^ Standing alone, the 
 word "debt" is as applicable to a sum of money which has 
 been promised at a future day, as to a sum now due and pay- 
 able. But a sum of money payable on a contingency does not 
 become a debt till the contingency has happened. i3 go, the 
 wages of a seaman is not a debt till the vessel has arrived, i* 
 So of a contract between shippers and owners, which "does not 
 become a debt till the termination of the voyage. ^^ go of a 
 covenant to pay rent quarterly, from which the tenant is liable 
 to be discharged by quitting the premises, or by assigning the 
 
 1 Miller v. Covert, 1 Wend. 487. ' Farrington v. Payne, J5 Johns 432 
 
 2 Phillips V. Berick, 16 Johns. 140; » Smith v. Jones, 16 Johns 229 
 t^ecor V. Sturgis, 16 N. Y. 554. i' Miller v. Covert, 1 Wend 487 
 
 3 Staples V. Goodrich, 21 Barb. 817. u Bendernagle v. Cocks, 19 Wend 
 * Beekraan v. Platner, 15 Barb. 650. 207; Stuyvesant v. Mavor of New 
 
 5 Coster V. N. Y. & JE. E. K Co., 6 York, 11 Paige Ch. 414. 
 
 ^T^' *^' „ ^ , , „ ^' ^^'■'■y ^- Washburne, 20 Cal. 350. 
 
 6 Cornell v. Cook, 7 Cow. 810; w People v. Arguello, 37 Cal 624 
 ^^,°SuT,-,.'^*"''S'!: 16 N. Y. 559. " Wentworth V. Whitteraore, 1 
 
 'Phillips V. Berick, 16 Johns. 186; Mass. 471. 
 Bendernagle v. Cooks, 19 Wend. 207 ; is Davis v. Ham, 8 Mass. 33 ; Froth- 
 Hopf V. Meyers, 42 Barb. 270. ingham v. Haley, Id. 68. 
 
§ 317. COMPLAINTS IN GENERAL. 15» 
 
 term, with lessor's consent, or the lessee may be evicted there- 
 from by title paramount.^ Bat a debt pay able in any event, 
 but not yet due, is a debt, debitu m in prceseiiti, solvendum in. 
 futuro.^ 
 
 The action of debt lies to recover a certain specific snm of 
 money, or a sum that can readily be reduced to certainty.^ It 
 is a species of contract whereby a right to a certain sum of money 
 is mutually acquired and lost;* or, more properly, the result 
 of such contract.^ Counts in indebitatus assumpsit, heretofore 
 known as the common counts , may be stated separately, or may 
 be all united i n the same complaint. It is only necessary to- 
 aver an indebtednes s, and that said indebtedness has not been 
 paid. 
 
 The actio n of debt is founded upon contract ; the action of a*- 
 sumpsit, upon the promise. ^ An action of debt founded on a 
 statute is considered as an action founded on a specialty, but 
 it is not of equal dignity with a debt due by bond.'' 
 
 The action of debt will lie in general where the sum is cer- 
 tain, and it is the duty of the defendant to p ay the amount to 
 the plaintiff.^ But it may also be brought for a sum capable of 
 being certainly ascertained, though not ascertained at the time 
 of action brought.' 
 
 Indebitatus assumpsit lies to recover the stipulated price due 
 on a contract not under seal, where the contract has been com- 
 pletely performed.!" The action of debt lies upon a judgment," 
 or on a decree.^ An indorsee of a note can have debt against 
 the maker,!' qj. against a remote indorser.^* The action of 
 debt lies on a penalty, whether it be a statutory penalty, although 
 uncertain,!^ if the du ty or penalty be capable of being reduced 
 
 1 Wood v. Partridge, 11 Mass. Kn app, 9 Pet. 541 ; Hyde v. Li^erse, 
 488. 1 ranch C. Ct. 408 ; Brockett v. Ham- 
 
 2 People V. Arguello, 37 Oal. 524. mond, 2 Id. 56 ; Pipsioo v. Bontz, 3 
 ' 1 Bur. Law Diet. 450; 3 Bl. Com. Id. 425; to the contrary, Krouse v. 
 
 154; 3Steph. Com. 461; Browne on Deblois, 1 Id. 138 ; Talbot v. Selby, 
 
 Actions, 333; Smith on Contracts, Id. 18 1. 
 
 497. " Stuart v. Lander, 16 Cal. 372 ; see 
 
 * 2 Bl. Com. 464. also Ex parte Prader, 6 Id. 239 ; Law - 
 
 6 2 Steph. Com. 187. rencev. Martin, 22 Id. 173; Penning- 
 
 6 Metoalf V. Kobinson, 2 McLean, ton v. Gibson, 16 How. U. S. 65. 
 
 363. ^ Pennington V. Gibson, 16 How. U. 
 
 ' United States V. Lyman, 1 Mason, S.65; Thompson v. Jameson, 1 Cranch, 
 
 482. 282. 
 
 sHomev. Semple, 3 McLean, 150; '^ 12 .Johns. 90; Willraarthv. Craw- 
 Bank of Ciroleville v. Iglehart, 6 Id.- ford, 10 Wend. 341. 
 568. " Onondaga Co. Bank v. Bates, 3 
 
 9 United States V. Colt, Pet. C. Ct. Hill, 53. 
 
 145. !° United States v. Colt, Pet. C. Ct. 
 
 1" Bank of Columbia v. Patterson, 7 145. 
 Cranch, 299; Chesapeake Canal Co, v. 
 
160 PLEADINGS OF PLAINTIFF. § 318. 
 
 to a certainty,! or for the penalty of an agreement.^ And in the 
 latter case, a sum less than the penalty may be recovered.^ Such 
 action lies to recover rent on an expired lease.'* And so where 
 there is a demise not under seal, whether against lessee or 
 lessee's assignee, debt for use and occupation will lie.^ Tlie 
 act of covenant lies where a party claims damages for a breach 
 of covenant, that is, of a promise under seal, as distinguished 
 from actions of assumpsit, or for breach of contracts not under 
 seal. 8 
 
 § 318. Actionsfor Breach of Contract. —The requisites 
 which must carefully be observed in a complaint on contracts are : 
 1. The existence of the contract sued upon, and its terms clearly 
 shown upon the face of the pleading ; 2. Performance or readi- 
 ness to perform, and a tender of performance on the part of 
 the plaintiff, must be shown ; 3. The breach must be clearly 
 apparent ; 4. Special damages resulting from the breach must be 
 specifically and clearly averred. 
 
 § 319. The Same — Pleading Contract. — The existence 
 of the contract should be stated, and if it was an alternative or a 
 conditional engagement, or qualified by exceptions, this should 
 appear in the complaint.'' 
 
 If the contract be in writing, it may be pleaded in hcec verba, 
 or the pleader may set forth its legal effect. The former mode, 
 however, is preferable as being more consistent with the present 
 system of pleading.^ The rule which permits the pleader to 
 declare upon a contract in hcec verba must be limited to cases 
 where the instrument set out contains the formal contract, show- 
 ing in express terms the promises and undertakings on both 
 sides. ^ 
 
 It is by far the better practice to plead a contract, if it be a 
 written contract, by setting forth a copy of it or by annexing a 
 <!opy to the complaint,^" the same as in actions upon written in- 
 struments for the payment of money only.i^ If declared on ac- 
 cording to its legal effect, the defendant may, by the rule of the 
 common law in a proper case, crave oyer of the instrument; 
 and if it appears that its provisions have been misstated, he may 
 
 > Bullard v. Bell, 1 Mdson, 243. v. Knowlton, 8 Wend. 374 ; Lutwellor 
 
 ^Martinv. Taylor, 1 Wash. C.Ct.l. v. Linnell, 12 Barb. 512: Crane v. 
 
 ° Id- Maynard, 12 Wend. 408. 
 
 *Thursbyv. Plant, 1 Saund.233; 'See Stoddard v. Tread well, 26 Cal. 
 
 Woodf. 823; Norton v.Vultee, IHall, 800; Murdock v. Brooks, 38 Id. 603 
 
 *H\. ^ ^,. * Joseph V. Holt, 37 Cal. 253. 
 
 ' McKeon v. Whitney, 3 Den. 452. i» Fairbanks v. Bloomfleld, 2 Duer. 
 
 •Steph. PL18. 849. 
 
 ' Hatch V. Adams, 8 Cow. 85 ; Stone " Swan on PI. 204. 
 
§ 318. COMPLAINTS IN GENERAL. 161 
 
 set out the contract in hmc verba, and demur the ground of 
 the variance.^ 
 
 It is not necessary that the words of a deed or other written 
 instrument should be given; the substance is sufficient. But 
 whatever is pleaded should be truly pleaded.^ For where a 
 pleading purports to recite a deed or record in hcec verba, trifling 
 variances, if material, have been deemed fatal. ^ 
 
 Records and papers can not be made a part of a pleading by 
 merely referring to them, and praj'ing that they may be taken 
 as a part of such pleading, without annexing the originals or 
 copies as exhibits, or incorporating them, so far as to form a part 
 of the record in the cause.* The party, by pleading ■a. record 
 with the words, " as appears by the record," or " as appears of 
 record," proffers that issue, and it is incumbent on him to main- 
 tain it literally ; and this is true where the averment has refer- 
 ence to particulars which need not, as well as to those which 
 must be specifically stated upon the record. ^ In an action of 
 foreclosure, where the complaint has a copy of the mortgage 
 annexed, and to which it refers, a correct description of the 
 land in the mortgage is sufficient for the purpose of the suit.^ 
 If time is stated, it should be when the debt became due, 
 though time is only material when it is sought to recover interest.' 
 Thus, in an action on the case for failure to perform a parol 
 contract, the time of making it is not material. ^ The plaintiff 
 may, in fact, allege any time after the debt accrued and give 
 evidence of the true time. ' 
 
 If the time of performance is not stated, the law imports a 
 reasonable timfi therefor. i" In assumpsit on a promise to pay a 
 debt due by the promisor, if the plaintiff would give time, 
 whenever the promisor should be able, the declaration need not 
 state that the plaintiff accepted the promise. It is sufficient to 
 aver that the time was given and the ability of the defendant. "^^ 
 Although the forms of the action of assumpsit and of the plead- 
 ings therein have been abjlished, yet the distinction between an 
 express and implied assumpsit remains, and it is only on the- 
 
 'Stoddardv. Treadwell, 26Cal. 300, 8 s cull v. Higgins, Hempst. 90; 
 
 2 Ferguson v. Harwood, 7 Cranch, compare McLaughlin v. Turner, 1 
 
 408. Cranch C. Ct. 476. 
 s Id. ' Moffet V. Sackett. 18 N. Y. 522 ; 
 
 * People V. De la Guera, 24 Cal. 78. Farran v. Sherwood, 17 Id. 227 ; Wet- 
 s Purcell V. Macnamara, 9 East, 160 ; more v. San Francisco, 44 Cal. 299. 
 
 Whittaker v. Branson, 2 Paine, 209. '" Pickett v. Brioe, 22 How. Pr.' 194. 
 
 • Emeric v Tams, 6 Cal. 155. " Lonsdale v. Brown, 4 Wash C. 
 ' Lyon V. Clark, 4 Said. 148. But Ct. 148 ; compare Kice v. Barry, 2 
 
 see Norris v. Elliot. 39 Cal. 74 ; Todd Cranch C. Ct, 447. 
 V. Myres, 40 Id. 355. 
 
 ESTEB, VOI,. I —1] 
 
162 PLEADINGS OF PLAINTIFF. § 320. 
 
 ory of an implied assumpsit, " inferred from the conduct, station^ 
 or mutual relation of the parties," that justice can be enforced 
 and the performance of a legal duty compelled. It is no longer 
 necessary in such a case for the plaintiff to allege in his com- 
 plaint any promise on the part of the defendant ; but he must 
 state facts which if true according to the well-settled principles of 
 law, would have authorized him to allege, and the court to in- 
 fer, a promise on the part of the defendant in a case in assumpsit.^ 
 
 The allegation that the defendant " made his contract in 
 writing," imports a delivery,^ and this need not ordinarily be 
 alleged, 3 nor need it be alleged that it was accepted.* Elxcep- 
 tions, however, exist to this rule, as in case of instruments in 
 trust, for benefit of others, where delivery should be alleged. 
 Thus in case where a grantor handed a deed purporting to 
 convey land to his son to a third party, saying: "Here is a 
 writing in [my son's] favor. It is for him, but I don't want him 
 to have it in his hands just now ; I want you to take it and keep 
 it in your possession till a proper time to produce it. If I 
 keep it in my hands I don't know who will get hold of it," and 
 gave his reasons, there being no privity between the depositary 
 and the grantee; on the death of the grantor, it was held that 
 there had been no delivery. ^ 
 
 § 320. Allegations of Promise. — If there is an express 
 promise, it should be properly alleged and proved. In such 
 case, the promise is the fact constituting the cause of action. 
 But if the promise is implied from the other facts alleged, it 
 need not be averred. And in the absence of an express prom- 
 ise, every fact essential to fix the liability of the defendant 
 should be stated ; for where the plaintiff does not allege in his 
 pleadings a contract or agreement, he can not recover upon it.'' 
 
 A party who has wholly performed a special contract on his 
 part, may cou,nt upon the implied agreement of the other party 
 to pay the stipulated price, and is not bound to specially declare 
 upon the agreement. ^ 
 
 In pleading a contract which the statute of frauds requires to 
 
 Z°rA'h-,^'^-^^^'' %^b'ev- Wood, V. Sherwood, 17 N. Y. 227- Jordan 
 
 V^'. ,,• r. , etc. Co. V. Morley, 23 Id. 532; Irwin 
 
 2 Pnndlev. Oaruthers, 15 N. T. 425. v. Schultz, 46 Penk 74 
 
 r^l ^.!^'I'^^i^°^ "• I(*wrence, 2 Sandf. 8 ^Uen v. Patterson," 3 Seld 476- 
 
 Ch. 400; Peets v. Bratt, 6 Barb. 660; Keteltas v. Myers, 19 N T 231 • Mof- 
 
 Tompkins v. Corwin, 9 Cow. 255. fet v. Sackett, 18 Id. 522 • Hos'lev v 
 
 « tfaz oy V Price, 16 Johns. 267. Black, 28 Id. 428 ; S. C, 26 How Pr' 
 
 I Whitelock V. Fiske. 3 Edw. 131. 97 ; Todd v. Huntington 3 West Coast 
 
 Baker v. Hasl.ell, 47 N H. 479 Kep. 331 ; Steeples TNewIon 7 Or 
 
 ' Wilkins V. Stidger, 22 Cal. 235; 110; Tribou v. Strowbridge, Id. ISc! 
 
§ 321. COMPLAINTS IN GENERAL. 163 
 
 be in writing, e. g., & contract relating to lands — it is not neces- 
 salry to allege the facts relied on to take the case oat of the 
 statute. It is sufficient on demurrer to allege that a contract 
 was made. Such an allegation is to be understood as intend- 
 ing a real contract — something which the law would recognize 
 as such. There is no reason for departing, under the code, 
 from the former well-settled rules in law and eqaity.^ The ex- 
 istence of a writing in such case is a matter of eviden ce ; it is 
 not one of the pleadable facts.* 
 
 Thus a complaint upon an undertaking to answer for the 
 debt of a third person is good, though it does not allege that 
 either the promise or the consideration was in writing.' And 
 the same rule is established in California.* 
 
 § 321. Consideration vrlien must bs Alleged. — The 
 essential element of every contract being the consL deration, a 
 proper statement in the complaint becomes a matte r of great 
 importance, while an averment of consideration in cas es where 
 it is implied by law, becomes surplusage, an d should be avoided. 
 The rule, however, is that the considerati on must appear on the 
 face of the complaint, either impliedly, as in cases of sealed 
 instruments, where the seal imports consideration;^ or the par- 
 ticular consideration on which the contract is founded must be 
 expressly stated,^ whenever proof of it is necessary to support 
 the action,'' for in its absence no cause of action can be main- 
 tained.8 
 
 In a suit upon an agreement un der seal, the complaint setting 
 out the agreement in Jioec verba need not aver a ny considera- 
 tion for the agreement. The seal imports a consideration.^ . 
 But on a simple contract the law of pleading requires the com- 
 plaint to state the particular cons ideration for the defendant's 
 promise declared on.^" And in all cases when the performance 
 of the consideration is a condition precedent." This rule has 
 its exceptions, as in cases of bills of exchang e and promissory 
 
 * Etling V. Vanderlyn, 4 Johns. 237; ' Wills v. Kempt, 17 Cal. 98; Mc- 
 Meyers v. Morse, 15 Id. 425. Oarty v. Beach, 10 Id. 461. 
 
 2 Livingston v. Smith, 14 How. Pr, • 1 Ch. PI. 293 ; Douglass v. Davie, 
 
 490. 2 McCord, 218 ; Kean v. Mitchel, 13 
 
 8 State of Indiana v. Woram, 6 Mich. 207, and cases there cited. 
 
 Hill, 33 ; and also in Wakefield v ' 4 Johns. 280. 
 
 Greenhood, where it is held that ^ Bristol v. The Eensselaer etc. Co. 
 
 though the contract must be in writ- 9 Barb. 158. 
 
 ing under a statute, yet it is not "Willis v. Kempt, 17 Cal. 99; Mc- 
 
 necessary in the complaint to show Carty v. Beach, 10 Id. 461. 
 
 that fact. " Moore v. Waddle, 34 Cal. 145 ; 
 
 * McDonald v. Mission View H. Joseph v. Holt, 37 Id. 253. 
 
 Assn., 51 Cal. 210. " Moore v. Waddle, 34 Cal. 145. 
 
104 PLEADINGS OF PLAINTIFF. § 321. 
 
 notes, where the consideration is implied. ^ In California any 
 written instrument is presamptive evidence of a consideration,* 
 and the burden of showing a want of consideration sufHcient to 
 support an instrument lies with the. party seeking to invalidate 
 or avoid it. 3 Similar statutes have been passed in many of the 
 states.* 
 
 To constitute a valuable consideration it is not necessary that 
 money should be paid. It is sufficient that it has been ex- 
 pended on the faith of the contract.' The acknowledgment of 
 one dollar is sufficient, whether actually paid or not.^ The con- 
 sideration of a written instrument may be inquired into.'' It 
 has been held that the allegation of a "good and valuable 
 consideration" is not sufficient on demurrer, or to sustain a 
 judgment by default; yet it is sufficient to sustain a verdict 
 after trial upon the issues.* 
 
 If part of a consideration be merely voidable, the contract may 
 be supported by the residue, if good per se. But if any part 
 be illegal it vitiates the whole. ^ It is no objection that the 
 direct consideration moves to a third person. i" Nor is it an ob- 
 jection that it moves from a third party to the person who seeks 
 to enforce it.^^ 
 
 The consideration must in all cases be legally sufficient to 
 support the promise for the breach for which the action is 
 brought.12 If there is a benefit to the defendant and a loss to 
 the plaintiff directly' resulting from the promise in behalf of 
 the plaintiff, there is a sufficient consideration to enable the 
 latter to maintain an action.i^ The court will not inquire into 
 the exact proportion between the value of the consideration and 
 that of the thing to be done for it.i* 
 
 The recital in a complaint of an executed or past considera- 
 tion is not usually traversable, and requires little certainty, 
 
 'Moore V. Waddle, 84 Cal. 145; 7 Vandenberg, 30 Id. 12; Ingersoll v. 
 N. Y. Lee;, Obs. 149. Truebod.y, 40 Id. 603. 
 
 I n!"!,' S"^^' '^''- J?J?- ' '^«*"' ^- Mitchell, 13 Mich. 207. 
 
 ' w" Q'!''f'.?-n-^^^^V ^ , r.^^ S''"<lf- P>- & Ev. 187; Cobb v. 
 
 * Wag. Stat. 2/0, see. 6; Caples V. Cowderv, 40 Vt 25 
 Branham, 20 Mo. 248; Iow,i Code, " Townley v. Sumrall 2 Pet 170- 
 
 '^7j"k^^^V ^^w^'IV^i"*- '5P' ^"* co^-npe,ve D'WoIf v. Kaband, 1 Id 
 p. 249 ; Kans. G-en. Stat. 1868, p. 183 ; 47K. 
 
 Ind. Code Civ Proe. 273. n R^vmond v. Pritchard, 24 Ind. 318.' 
 
 {^!,"tfw J^ vT'°r>: ^^,!?- ^^i:T ^ ," ^ ^^- ^'- ^^^ ; Bristol V. Van Rens- 
 
 » Dutchman v. Tooth 5 Buig. N. C. solaer & Saratoga R. R Co., 9 Barb. 
 
 577;_[.awrencev.McCHlmount,2How. 158. vyu., ^ ±jo,.u. 
 
 ^•,?.;f^;, , p. p ,„^, "Add. on Cont. 1002; Emerson 
 
 , Vn£ ^l^- J''"°- ^'"'- '^''-- V. Slater, 22 How. U. S. 43. 
 
 \eMs V, Uewey, 13 Cal. 43: Peck v. ties there cited. 
 
§ 322. COMPLAINTS IN GENERAL. 165 
 
 either of name, place, person, or subject-matter,^ although 
 it should be known to both parties at the time of making the 
 contract that the subject-matter is liable to a contingency by 
 which if may be destroyed. If this contingency has already 
 happened at the time, the agreement is without consideration.^ 
 
 However strong may be one's moral obligation to do that 
 which he agreed to do, it is only promises founded on the per- 
 formance of duties actually agreed to be done, or imposed by 
 law, which are regarded in law as binding. A promise by a 
 party to do what he is bound in law to do, is an insufQcient but 
 not an illegal consideration.'' 
 
 In contracts imposing a restraint on one of the parties con- 
 tracting, there must not only be a consideration for the con- 
 tract, but some good reason for entering into it, and it must 
 impose no restraint upon one party which is not beneficial to 
 the other. 4 
 
 § 322. Alleging Performance of Contracts. — In pleading 
 the performance of conditions precedent in a contract, it is not 
 necessary to state the facts showing such performance, but it 
 may be stated generally that the party duly performed all the 
 conditions on his part, and if such allegation be controverted, 
 the party pleading must establish, on the trial, the facts showing 
 such performance. 5 The purpose of the statute is to avoid 
 prolixity by permitting the plaintiff to aver generally, by group- 
 ing all the conditions to be performed by himself in a general 
 averment that he has duly performed them all.^ And it is a 
 sufficient averment to allege that he had " fully and faithfully " 
 performed the said contract on his part.'' This general allega- 
 tion of performance is confined to conditions contained in con- 
 tracts. If the performance of a condition precedent, not con- 
 tained in a contract, is necessary to create a cause of action, the 
 facts showing such performance must be alleged. ^ 
 
 It seems that the word "party," in the provision of the 
 code that " it may be stated generally that the party duly per- 
 formed all the conditions on his part," means the person or 
 persons by whom the conditions were to be performed, and the 
 
 1 Gebhart V. Francis, 32 Penn. 78, ' Rowland v. Phalen, 1 Bosw.44; 
 
 2 Allen V. Hammond, 11 Pet. 63. Griffiths v. Henderson, 49 Gal. 570. 
 
 3 Cobb V. Cowdery, 40 Vt. 25. * Spear v. Downing, 34 Barb. 523 ; 
 * California Steam Nav. Co. v. Dye v. Dye, 11 Cal. 167;Rhodav. 
 
 Wright, 6 Cal. 263. Alameda Co., 52 Id. 350; People v. 
 
 s Cal. Code C. P., sec. 457. Jackson, 24 Cal. 632 ; Hatch v. Feet, 
 
 6 Woodburv v. Sackrider, 2 Abb. 23 Barb. 580 ; Couch v. Ingersoll, 2 
 
 Pr. 402 ; Graham v. Machado, 6 Duer, Pick. 292 ; Kane v. Hood, 13 Id. 281 ; 
 
 515 • Rowland V. Phalen, 1 Bosw. 43. Pomroy v. Gold, 2Met. 500. 
 
166 PLEADINGS OP PLAINTIFF. § 322. 
 
 plaintiff in the suit is not necessarily the person who is the 
 party to the contract. Upon a liberal construe tion, the statute 
 means that it may be stated generally that the perso n or per- 
 sons by whom the conditions were to be perfor med, have duly 
 performed, etc.^ 
 
 In an action on a contract by which the plaintiff had bound 
 himself to do certain acts, and to procure third parties to do 
 certain acts, the complaint alleging performance on their part, 
 in the following form : And the plaintiff further s ays, that he 
 and those on whose behalf the agreement was made and entered 
 into by him have fully and faithfully performed and fulfilled all 
 and singular the covenants and 'agreements in the said agree- 
 ment contained, on the part of the said plaintiff and those on 
 whose behalf the said agreement was made and entered into by 
 him, as aforesaid, was held sufficient.* Such general averment 
 imports a sufficient statement of being ready to do all things 
 necessary in the future.' 
 
 And where certain work was to be done by the d efendant, 
 for the government, and certain things were to be done by the 
 plaintiff to enable the defendant to perform his contract, the 
 declaration must show that the precedent acts were d one by the 
 government, according to the terms of the contract.* 
 
 Performance must be averred according to the intent of the 
 parties. Thus, a vendor of land who sues upon an agreement 
 of sale containing a covenant on his part that he " will make a 
 deed for the property," must aver and prove not merely his 
 readiness to " deliver a deed," but that he had a good title, free 
 of incumbrance, which he was ready and willing to convey by a 
 legal deed. 5 
 
 In an action of covenant on a contract to deliver m erchandise 
 at any place between certain points on a river, to be designated 
 by the party to whom the delivery was to be m ade, the omission 
 of such party to designate the place did n ot prevent the other 
 from making a delivery at any convenient point he might select. 
 The declaration need not aver that a place of delivery was des- 
 ignated, nor that notice of a place for the delivery of the mer- 
 chandise was given. An issue formed as to such notice is im- 
 material.^ 
 
 1 Rowland v. Phalen, 1 Bosw. 43. ' Washington v. Ogden, 1 Black. 
 
 "Id. IT. S. 450; Prewett v. Vaughn. 21 
 
 » Williams on PI. 117, n. ; Bentley Ark. 417. 
 
 V. Dawes, 9 Exoh. 066. « Hartfield v. Patton, Hempst. 
 
 « U. S. V. Beard, 6 McLean, 441 ; 268. 
 compare Hart v. Bose, Hempst. 238. 
 
f 324. COMPLAINTS IN GENERAL. 167 
 
 An averment of performance is always made in the declaration 
 upon contracts containing undertakings ; and that averment 
 jnust be supported by proof.^ In pleading title to land under 
 an act of the legislature which prescribes conditions upon the 
 performance of which the title may be recovered, it is neces- 
 sary to aver a performance of all the acts required by the 
 statute. ^ 
 
 § 323. Alleging Non-performance. — When performance is 
 impracticable, such fact may be shown under an excuse for 
 non-performance. 3 As from sickness or death.** Or by act of 
 law.^ Or by casualty of flre.^ In such cases, the excuse for 
 non-performance must be shown.'' If performance has been 
 prevented or interrupted by an act of the adverse party, or where 
 a waiver thereof may be inferred, an averment of facts consti- 
 tuting the excuse is sufficient.^ In such cases performance need 
 not be alleged.8 "Where the conditions contained in the con- 
 tract have been modified, or plaintiff has become excused from 
 them, an averment of performance is not proper ; the modifica- 
 tion or excuse should be stated.^" For under a complaint setting 
 •out a contract and, averring its performance by the plaintiff, 
 •evidence in excuse for non-performance is not admissible ; yet 
 this rule becomes of little importance in view of the power of 
 amendment given to the court by the code.^ 
 
 § 324. Alleging Concurrent Acts. — In an action for breach 
 ■of contract, the performance of a concurrent act, which the 
 contract expressly, or by implication, devolved on the plaintiff, 
 must be averred.^ So where a contract is executory, a per- 
 formance, or tender of performance, or a readiness and willing- 
 
 1 Bank of Columbia v. Ha^ner, 1 Hosley v. Black, 26 How. Pr. 97; 
 Pet. 455 ; United States v. Arthur, 5 Holmes v. Holmes, 5 Seld. 525. 
 •Cranch U. S. 257; compare Beale v. >» Oakley v. Morton, 11 N. T. 25. 
 JTewton, 1 Id. 404; Savary v. G-oe, 3 ^ California Code C. P., sees. 472, 
 
 Wash. 140. 473 ; sec. 173 of the N. Y. Code ; Hos- 
 
 2 People V. Jackson, 24 Cal. 632. ley v. Black, 26 How. Pr. 97. Of 
 ' Wolfe V. Howes, 24 Barb. 174, the rule requiring full performance, 
 
 •666. except where sufficient excuse is 
 
 * Wolfe V. Howes, 24 Barb. 174, shown, see Wolfe v. Howes, 20 N. Y. 
 •666; Fahy V. North, 19 Id. 341. 197. And that no recovery can be 
 
 * Jones V. Judd, 4 Comst. 411. had for part performance of condi- 
 8 Lord V. Wheeler, 1 Gray, 282. tions precedent, consult Sickles v. Pat- 
 'Newcomb v. Brackett, 16 Mass. tison, 14 Wend. 257; M'Millan v. 
 
 166; Baker V. Fuller, 21 Pick. 318. Vanderlip, 12 Johns. 165; Eeab v. 
 
 8 For example see Clarke v. Cran- Moore, 19 Id. 837 ; Lantry v. Parks, 8 
 
 dall. 27 Barb. 73 ; Crist v. Armour, Cow. 63 ; Oakley v. Morton, 1 Kern. 
 
 ^4 Id. 378; Eivara v. Ghio, 3 E. D. 25. 
 
 Smith, 264; Little v. Mercer, 9 Mo. i^ Lester v. Jewett, 1 Kern. 453; 
 
 516. Considerant V. Brisbane, 14 How Pr. 
 
 'Oakley r. Morton, 1 Kern. 33; 487. 
 
168 PLEADINGS OF PLAINTIFF. § 314. 
 
 ness to perform, on the part of the plaintiff, must be shown in 
 the complaint.^ 
 
 A tender of performance, or a readiness and willingness to 
 perform, is a substitute for the general allegation of perform- 
 ance in such cases as it may be required. It may also be 
 alleged that the plaintiff offered to perform.^ In England, a 
 general averment of readiness and willingness is sufficient.' So 
 also in Ohio.'* And such tender or offer of performance must 
 be proved. 5 But an offer of performance is of no effect if the 
 the person making it is not able and willing to perform according 
 to the offer. 6 
 
 la cases where the performance on the part of the plaintiff 
 depends upon acts previously to have been done on the part of 
 the defendant, an averment of readiness and willingness will be 
 sufficient.' So where there are mutual promises, not dependent 
 on each other, the omission to state in the declaration perform- 
 ance of that made by the plaintiff, is cured by the verdict. ^ 
 
 If mutuality exists at the inception of the contract, or at the 
 time the contingency happens, no subsequent changes can de- 
 stroy the contract, if the party has performed all the conditions 
 on his part.8 In an executory contract for the sale of an article 
 to be paid for on delivery, the obligation for one party to pay, 
 and the other to deliver, are mutual and dependent; and the 
 seller must show that he was readj' and offered to deliver the 
 goods. 1" But where there has been part performance, a special 
 allegation is not necessary.^i In cases where mutuality exists 
 in the conditions of a contract, neither party can maintain an 
 action against the other for a breach of contract, without shew- 
 ing performance or tender of performance on his part.^^* But 
 
 1 Barron v. Frink, 30 Cal. 486; » Sufrd. on Vend. 194; 1 Ves. 218; 
 Englander V. Rogers, 41 Id. 220; Van Mortlock v. BuUer, 10 Ves. jun. 315; 
 Schaick v. Winne, 16 Barb. 94; Lawrenson v. Butler, 1 Schoales & L. 
 Beecher V. Conradt, 3 Kern. 110; 19; Walton v. Coulsoii, 1 McLean, 120. 
 Bronson v. Wiman, 4 Seld. 188 ; Tin- " Barron v. Frink, 30 Cal. 486 • Gib- 
 nev V. Ashley, 15 Pick. 546. bons v. Scott, 15 Id. 284; 1 Sand. PI. 
 
 2 See Williams v. Healev, 3 Den. & Ev. 190; Eno-Iander v. Bosers 41 
 363; Crandall V. Clark, 7 Barb. 169; Cal. 420; Consi'derant v. Brisbane, 14 
 Clark V. Crandall, 27 Id. 73. How. Pr. 487 ; Dunham v. Pettee, 4 E. 
 
 /.-> ?,"f n7- ,?°'J"'^"®' ^ ^'"^ * ^'- ^- Smith, 500; Fickett v. Brice, 22 
 
 (Q. B.) 99 ; Bentley v. Dawes, 9 Exch. How. Pr. 194. 
 
 Welsh. H. & G. 666. n Grant v. .Johnson, 5 Barb. 161 ; 
 
 *SwanonP1.206;Nathanv.L6wis, Wallis v. Warren, 18 Law .lour. Ren 
 
 1 Handy. 242. Ex. 449 ; 14 Law Times, 108 ; 7 Dowl. 
 
 5 Goodwin V. Lynn, 4 Wash. C. Ct. & L. 60 ; 4 Ex. 364 
 
 ^V'n ^ n- ■, n ;, ,,n- "Porter v. Rose, 12 Johns. 209; 
 
 ?w f^'^'i^"^^''"".-^^?'- ,, Gazleyv. Price, 16 Id. 267; Parker v! 
 
 ' West V. Emmons, 5 Johns. 179. Parmele, 20 Id. 130 ; Topping v. Root, 
 
 r. /?.%'i?J"''^- Do"gl>e'''y. 4 Cranoh .5 Cow. 404; Walden v. Davison, 11 
 
 ^- ^^ 205. VVcnd. 67 : Lester v. Jewett, 11 N. Y. 
 
§' 325. COMPLAINTS IN GENERAL. 169 
 
 where the covenants of an agreement are independent, the 
 plaintiff can not support his action as to them without showing 
 performance of ever3'' affirmative covenant on his part, and in 
 such a case it is competent to the defendant to prove a breach 
 of such as are negative.^ 
 
 Thus where it was agreed that plaintiff, in consideration of 
 the payment of a certain sum and the delivery of certain notes 
 on a certain day, would make a certain assignment to defend- 
 ant, plaintiff in an action to recover the money need not allege 
 performance or offer of performance.^ 
 
 But if notice is necessary to give a right of action, such no- 
 tice must be specially averred. ^ And an averment of facts 
 "which defendant well knew" is not sufficient.* Otherwise if 
 knowledge only is necessary to fix the liability ; as for keeping 
 mischievous animals ;^ against a municipal corporation for de- 
 fect in a grating over an area in a sidewalk,^ and other like 
 cases. 
 
 So, also, whenever a request is necessary to give a party a 
 right to sue, it must be specially averred ;' and where the stat- 
 ute prescribes conditions precedent to the acquirement of a 
 right, the performance of those conditions must be specifically 
 averred, and the facts showing such performance must be 
 pleaded.* 
 
 But in an action by a purchaser to recover money paid in part 
 execution of a contract rescinded by the vendor, an allegation 
 of tender or readiness to pay the whole price is not necessary.' 
 So, on a contract for wheat to be delivered on demand, it was 
 not necessary to aver a tender.^" And under an averment of 
 tender, the plaintiff may prove a waiver of it by defendant.^ 
 
 § 325. Alleging Breach of Contract. — A complaint for 
 breach of contract must state a breach in unequivocal lan- 
 guage.^^ A general allegation, however, will be sufficient to 
 
 453 ; People v. Ednjonds, 15 Barb. ^ McGinity v. Mayor of New York, 
 
 359; Culver V. 'Burgher, 21 Id. 324; 5 Duer, 674. 
 
 Daud V. King, 2 Pick. 155 ; Fickett v. ' Ramsey v, WaUham, 1 Mo. 395 ; 
 
 Brice, 22 How Pr. 194 ; to the same Perner v. Williams, 37 Barb. 9. 
 effect, Frev v. Johnson, Id. 316; Eng- 'People v. Jackson, 24 Gal. 632. 
 lander v. Rogers, 41 Cal. 420. ' Main v.King, 8 Barb. 535 ; Faucher 
 
 1 Webster V.' Warren, 2 Wash. C. v. Goodman, 29 Id. 316 ; McKnight v. 
 Ct. 456. Dunlop, 4 Id. 36. 
 
 2 Smith V. Belts, 16 How. Pr. 251. '» Crosby v. Watkins, 12 Cal. 85. 
 s Bensley v. Atwill, 12 Cal. 231 ; " Holmes v. Holmes, 5 Seld. 525. 
 
 Colt V. Root, 17 Mass. 229 ; Hobart ^ 1 Van Santv. 222 ; Moore v. Besse, 
 
 V. Hilliard, 11 Pick. 144. 30 Cal. 570; Sehenok v. Naylor, 2 
 
 « Colchester v. Brooke, 7 Q. B. 339 ; Duer, 675 ; Van Sehaick v. Winne, 16 
 
 S C, 58 Eng. Com. L. 339. Barb. 89. 
 
 5 Fairchild v. Bentley, 30 Barb. 147. 
 
170 PLEADIN&S OF PLAINTIFF. § 326. 
 
 admit proof, and will only be obnoxious to a motion to render it 
 more certain.^ 
 
 Thus wliere the covenant describes U specific act, the breach 
 may be averred in the language of the covenant ; but if a num- 
 ber of acts are included in one phrase, the complaint must set 
 forth the breach of each particular act upon which the plaintiff 
 relies with particularity.^ For when a party relies ui^on any 
 breaches of an agreement as the foundation of an action, he 
 must set forth in his pleading sufficient of the agreement to 
 make it appear to the court that the breaches complained of do 
 actually exist, and to what extent.^ If the promise contained 
 an exception or proviso, it must be stated.'* And on a contract 
 containing various undertakings, the plaintiff complaining of 
 the breach of one, thereby waives any right as to th e others.* 
 
 § 326. Alleging Special Damages. — For the breach of a 
 contract an action lies, thoigh no actual damages be sustained. ^ 
 And damages which materially and necessarily arise from the 
 breach of the contract need not be stated, as they are covered 
 by the general damages laid in the declar ation ; but special 
 damages must be specially stated.^ It is sufficient, so far as the 
 demurrer is concerned, to aver in the complaint the contract, 
 the breach complained of, and the general damages. ^ But the 
 omission to aver specially the damages laid in the complaint, is 
 waived by going to trial without objection.^ In an action for 
 special damages for injuries, such damages as are the natural 
 although not the necessary result of the injury must be 
 specially stated, and the facts out of which they arise must be 
 specially averred in the complaint."* Thus a jury can not give 
 compensation for loss of time, remuneration for wages paid, etc. 
 unless there is an allegation in the complaint as to these matters." 
 The want of any averment of special damages can not be 
 reached by demurrer. Such averment is only necessary where 
 the right of action itself depends upon the special injury re- 
 ceived.12 Matters in aggravation of damages need not be 
 
 1 Trimble v. Stilwell, 4 E. D. Smith, s Barber v. Cazalis, 30 Cal. 92 
 
 2W IP 1 * , Tx„ ,,„ • Nearyv. Bostwick, 2 Hilt. 514. 
 
 ^ Wolfe V. Luyster, 1 Hall, 146; " Stevenson v. Smith, 28 Cal 102- 
 
 Brown v. Stebbins, 4 Hill, 154. Cole v. Swa«ston, 1 Id 51 ; Squier vl 
 
 = Lynch V. Murray, 21 How. Pr. Gould, 14 Wend, 159 ; Strang v.Whitel 
 
 ^"^V head, 12 Id. 64; 1 ChiL PI S71 • 
 
 « Latham v. Eutley,2 Barn. & Cress. Sedg. on Dam. 67 • Sav on Dam Sia 
 
 20, Jonesv.Cowley4Id.446; Tem- Tuolumne Wkler' Co? v. cZmb a 
 
 ^'V^^.J.- ^"™5?<^. 4 t!amP- 20. and Stanislaus Water Co 10 Cal 
 
 * Chinn V. Hamilton, Hempst. 438. 193. naier ^o., 10 Cal. 
 
 » McCarty v. Beach, 10 Cal. 461. " Dabovich v. Emeric 12 Cal 171 
 
 ' Bas V. Steele. 3 Wash. C. Ct. 381. M McCarty v. Be^ch^lO Cal. 461. 
 
§ 327. COMPLAINTS IN GENERAL. 171 
 
 alleged; the quo animo maybe proved without being plead ed,^ 
 and therefore should not be pleaded.^ 
 
 § 327. Allegations in Actions for Injuries Resulting 
 from Negligence. — ^Negligence is the omission to do some- 
 thing -which a reasonable man, guided by those considerations 
 which ordinarily regulate the conduct of human affairs, would 
 do; or doing something which a prudent and reasonable man 
 would not do. It is not absolute or intrinsic, but is always 
 relative to some circumstances of time, place, or person.' The 
 prudence and propriety of men's actions are not judged by the 
 €vent, but by circumstances under which they act. If they con- 
 duct themselves with reasonable prudence and good judgment, 
 they are not to be made responsible because the event, from 
 causes which could not be foreseen nor reasonably anticipated, 
 has disappointed their expectations.* Where the safety of 
 human life is in question, a very high degree of care is required.^ 
 But a casualty happening without the will and without the neg- 
 ligence or other default of the party, is, as to him, an inevita- 
 ble casualty.^ Ordinary care or commou prudence, is such a 
 degree of care and caution as will be in due proportion to the 
 injury or damage to be avoided.'' Thus, the question of negli- 
 gence must depend upon the facts of the case, and it is not an 
 abstract question of law.* Hence it will not be necessary in a 
 complaint to aver the degrees of negligence in each case, as 
 they are matters of proof to be decided from the facts stated.^ 
 Negligence implies gross as well as ordinary negligence; and 
 a general averment of negligence is all that is required. i" If an 
 employment requires skill, failure to exert it is culpable negli- 
 gence, for which an action lies.^^ 
 
 In New York, in an action for damages caused by negligence, 
 it must appear that the plaintiff's acts or omissions did not con- 
 
 - Rustell V. Macquister, 1 Camp. 49 * Baxter v. Second Ave. E. E. Co., 
 
 Slack V. McChesney, 2 Yates, 473; 30 How. Pr. 219; Welling v. Judge, 
 
 Wallis V. Mease, 8 Binney, 546; Kan 40 Barb. 193. 
 
 V. McLaughlan, 2 Serg. & R. 469. » Nolton v. Western R. E. Co., 15 N. 
 
 2 Warne T. Croswell, 2 Stark. 457; X. 444; 35 Barb. 389. 
 
 Moloney v. Dows, 15 How. Pr. 265 ; " Oldfield v. N. Y. and Harlem E. 
 
 see, however, Eoot v. Poster, 9 Id. 37 ; E. Co., 4 Kern. 310. 
 
 Brewer v. Temple, 15 Id. 286. " The New World v. King, 16 How. 
 
 8 Richardson v. Kier, 34 Cal. 63. (U. S.) 469, in which case the theory 
 
 * The Amethyst, Davies, 20 ; 2 N. of the three degrees of negligence is 
 
 Y. Leg. Obs. 312. examined. As to what constitutes 
 
 ' Castle V. Duryea, 32 Barb. 480. negligence, see also Needham v. S. F. 
 
 « 1 T. E. 27 ; Hodgson v. Dexter, 1 A S. J. E. E. Co., 37 Cal. 409 ; Schier- 
 
 Craneh C. Ct. 109; The Lotty, 01c. hold v. N. B. & M. R. E. Co., 40 Id. 
 
 S29 447 ; Karr v. Parks, 40 Id. 188 ; Mc- 
 
 ' Ernst V. Hudson Eiver E. E. Co., Coy v. Cal. P. E. R. Co., 40 Id. 532. 
 35 N. Y. 9. 
 
172 PLEADINGS OF PLAINTIFF. § 328. 
 
 tribute in any degree to the result.^ The rule that, where the. 
 injury has been caused by the negligence of the party injured, 
 he has no redress, has been commented on and qualified in 
 Califoroia ; ^ where it is also held that the negligence which 
 disables a plaintiff from recovering must be a negligence which 
 directly or by natural consequence conduces to the injury. It 
 must have been the proximate cause, that is, negligence at the 
 time the injury happened.^ 
 
 It is not necessary to allege in the complaint in an action for 
 damages to either person or property that the plaintiff is with- 
 out fault,^ as it may fairly be presumed that the plaintiff exer- 
 cised usual care for his own safety. ^ The right to recover 
 damages for injuries to the person depends upon two concur- 
 ring facts: 1. The party claimed to have done the injury must 
 be chargeable with some degree of negligence, if a natural per- 
 son; if a corporation, with some degree of negligence on the 
 part of its servants or agents; 2. The party injured must have 
 been entirely free from any degree of negligence which con- 
 tributed proximately to the injury. 8 Where negligence consists 
 in the omission of a duty, the facts relied on as implying that 
 duty must be alleged.' The allegation that the injury con- 
 tinued to be done from time to time, from the date of the 
 wrongful act until the commencement of the suit, claiming 
 special damages as a matter of aggravation, need not state the 
 time or times when the damages were sustained, as the legal 
 effect of the allegation is that they were sustained when the 
 wrongful act was committed, and on divers days between that 
 time and the commencement of the suit.^ 
 
 § 328. Judgments, how Pleaded. — In pleading a judg- 
 ment, and especially of a court of general jurisdiction, it is not 
 necessary to state the facts conferring jurisdiction, but such 
 judgment may be stated to have been duly given or made, and 
 if controverted, the facts conferring jurisdiction must be estab- 
 
 1 Wilds V. H. Kiv. R. R. Co., 24 N. Y. » Johnson v. Hudson River R. R. 
 
 4;i0; 24 How. Pr. 97; Goruschv. Cree, Co., 20 N. Y. 65. 
 
 8 Com. Bench (N. S.), 572, 598 ; Dela- « See chses cited above. 
 
 field V. Union Ferry Co., 10 Bosw. 216. ' City of BuflFalo v. HoUoway, 7 N. 
 
 '^ Richmond v. Sacramento Val. R. Y. 493 ; Taylor v. Atlantic Mutual 
 
 R. Co., 18 Cal. 851. Ins. Co., 2 Bosw. 106; Congreve v. 
 
 3 Kline v. C. P. R. R. Co., 37 Cal. Morgan, 4 Duer, 439 ; Seymour v. 
 
 400; Needham v. 8. P. & S. J. R. R. Maddox, 16 Q. B. 826; S. C. 71 Eng. 
 
 Co., 37 Id. 409; Flynn v. Same, 40 Com. L. K. 326; and see McGinity v. 
 
 Id. 14; Maumuav. Champion, Id. 121; Mayor, etc., 5 Duer, 674; Gregory 
 
 Hearne v. S. P. K. R. Co., 50 Id. 482. v. Onksmith, 12 How. Pr. 134. 
 
 * Wolfe V. Supervisors of Richmond, » McConnel v. Kibbe, 33 HI. 175. 
 1 1 Abb. Pr. 270 ; 19 How. Pr. 370. 
 
§ 329. COMPLAINTS IN GENEKAL. 173 
 
 lished on the trial ^ In California, under tiie section cited below, 
 this rule applies to all judgments or other determinations of a 
 court, officer, or board. It was formerly held that in pleading 
 the judgment of a court of limited jurisdiction, it is neces- 
 sary to set forth the facts which give jurisdiction,- as the law 
 presumes nothing in favor of their jurisdiction. 3 The decisions 
 in New York seem to bear the other way on this point, and 
 would appear to ponform more nearly to the language of the 
 statute than the early California decisions. There, it seems, it 
 is no longer necessary to state the facts conferring jurisdiction 
 on a court or officer of limited jurisdiction.'* If it be denied, 
 jurisdiction and all jurisdictional facts must be proved. ^ So 
 held in pleading an insolvent discharge.^ 
 
 In pleading a judgment, the precise words of the record need 
 not be observed, and surplusage or immaterial omissions in 
 matters of substance, in such pleas, are attended with no other 
 ■consequences than in other cases. But in matters of descrip- 
 tion, the record produced must conform strictly to the plea.^ 
 
 But this section does not refer to foreign judgments, and a 
 general averment of jurisdiction of a foreign tribunal is not 
 sufficient;® and therefore facts showing jurisdiction, both of 
 person and subject-matter, must be stated. ^ But in California, 
 .where the transcript of the judgment shows the jurisdiction of 
 the court on its face, it is not necessary to aver jurisdiction. i" 
 A judgment of the probate court may be pleaded in the mode 
 prescribed by the statute.^ 
 
 § 329. Statutes, hovr Pleaded. — Pleading a statute is 
 merely stating the facts which bring a case within it, without 
 making mention or taking any notice of the statute itself. 
 Counting upon a statute consists in making express reference to 
 it, as by the words, " against the form of the statute," or "by 
 
 » California Code Civ. Proc.sec. 456; Pr. 133; Carter v. Koezley, 1 1 Id. 
 
 N. Y. Code, sec. 161; ]Sevada Code, 147; per contra, McDonald v. Katz, 
 
 sec. 59; Idaho, sec. 59; Arizona, sec. 31 Gal. 169. 
 
 59; Oregon, sec. 85; Low V. Burrows, ' Whitaker v. Br:im=on, 2 Painp, 
 
 12'Cal. 181; Hanscom v. Tower, 17 209; compare Riddle v. Potter, 1 
 
 Id. 518 ; Hunt v. Dutcher, 13 How. Cranch C. Ct. 288. 
 
 Pp 538_ 8 Hollister v. Hollister, 10 How. 
 
 2 Smith V. Andrews, 9 Cal. 652. Pr. 539 ; citing Barnes v. Harris, 3 
 
 s Swain v. Chase, 12 (Jal. 283 ; Row- Barb. 603 ; Avres v. Covill. 18 Id. 260 ; 
 
 lev V Howard, 23 Id. 403 ; McDonald Bemet v. Wisner, 1 N. T. Code R. 
 
 V. Katz, 31 Id. 169. But see Cal. (N. S.) 148. 
 
 Code Civ. Proc, sec. 456. ' McLaughlin v. Nichols, 13 Abb. 
 
 * Wheeler v. Dakin, 12 How. Pr. Pr. 244 ; but in Halsted v. Black, 17 
 
 K49 Abb. 227, the contrary is held, 
 
 j-j^ i» Low V. Burrows, 12 Cal. 181. 
 
 « Livingston v. Oaksmith, 13 Abb. " Beans v. Emanuelli, 36 Cal. 117. 
 
174 PLEADINGS OP PLAINTIiT. § 32&. 
 
 force of the statute in such case made and provided." Becitinff 
 a statute is quoting or stating its contents, and either form may 
 be adopted by the pleader.^ In pleading a private statute, or 
 right derived therefrom, it shall be sufficient to refer to such 
 statute by its title and the day of its passage, for the court to 
 take judicial notice thereof.^ An averment that the statute was 
 passed is sufficient. ^ 
 
 In pleading an act of the legislature, the title, being no part 
 of an act, need not be recited ;* but where a party refers! to an 
 act merely by the title, he thereby makes the title material, and 
 must recite it correctly.^ But when a pleader wishes to avail 
 himself of a statutory privilege or right given by particular 
 facts, he must show the facts ; and those facts which the statute 
 requires as the foundation of the action must be stated in the 
 complaint.^ It is safest to adopt and follow the very words of 
 the law;'' as the court takes judicial notice of the law, though the 
 statute may be referred to in some cases to avoid ambiguity 
 and create a certainty as to the relief demanded, as where the 
 plaintiff lias his election to sue for a penalty given by a statute, 
 or to bring his action simply for the debt.^ 
 
 "With reference to acts regulated by the provisions of a stat- 
 ute, as of the statute of frauds, it is sufficient to use such cer- 
 tainty of allegation as was sufficient before the statute. So, on 
 a promise to answer for the debt or default of another, it is not 
 necessary in the complaint to aver that the promise was in 
 writing f or in an action on a contract relating to real estate.^* 
 
 If a statute should contain exceptions in the enacting clause, 
 the plaintiff must clearly show that the defendant is not witliin 
 
 1 Gould's PI. 46, note. Pr. 8 ; Brown v. Harmon, 21 Barl). 
 
 2Cal. Code C, P., sec. 459; N. T. 508; Drowne v. Stimpson, 2 Mass. 
 
 Code, sec. 530; Idaho, sec. 61; Ne- 444; Soper v. Harvard College 1 
 
 vada, sec. 61 ; Arizona, aec. 61 : Ore- Pick. 178 ; Austin v. Goodrich,' 49 
 
 gon, see. 87 ; 1 Van Santv. 270 ; 5 N. Y. 266. 
 
 Sand. 153. ^ Ford v. Babcock, 2 Sandf. 523; 
 
 8 Wolfe V. Superv. of Richmond, 11 Thomas v. People, 19 Wend 480- 
 
 Abb. Pr. 270. Cole v. Jessup, 10 How. Pr. 515; 
 
 4 Eckert v. Head, 1 Mo. 593. overruling Fowler v. Hunt. 10 Johns. 
 
 = I(J. 464. 
 
 sDyev. Dye, 11 Cal. 163; but see « City of Utica v. Eichardson, & 
 
 Gimmyv. Doane, 22 Id. 638, where Hill, 300. 
 
 the application of the rule laid down 'Wakefleld v. Greenhood 29 Cal 
 
 in D.ye V. Dye is doubted. In Himmel- 597 ; Stern v. Drinker, 2 E D Smith 
 
 man v. Danos, 35 Id. 448, the distinc- 406 ; Hilliard v. Austin, 17 Barb 141 ' 
 
 tion Is drawn between pleading the Etling v. Vanderlyn, 4 Johns. 237 ' 
 
 performance of conditions precedent i" Livingston v. Smith, 14 How Pr 
 
 under a contract and conditions pre- 492; Reynolds v. Dunkirk R E Co " 
 
 pcribed by a, statute, holding that the 17 Barb. 617; Champlin v.' Parish. 
 
 latter must be alleged specially. See 11 Paige, 408. 
 also Tertore v. Wiswall, 16 How. 
 
§ 330. COMPLAINTS IN GENERAL. 175 
 
 the exception ; ^ unless it be matter of defense, in whicli case the 
 burden of proof being on the defendant the plaintiff need not 
 allege it in the complaint, as the plaintiff need not allege any- 
 thing in anticipation.^ Numerous violations of the same subdi- 
 vision of a section of a statute may be alleged in one count ; * 
 •but separate counts must be used for violations of separate 
 subdivisions.'* 
 
 In penal actions founded on statutes, facts constituting the 
 offense must be set out, and it must be stated'as a substantive 
 allegation that the offense was committed against the form 
 of the statute.^ As a general rule, a scienter need not be 
 averred. 8 In remedial actions founded on statutes, such aver- 
 ments must be made as are necessary to bring the case within the 
 statute,^ as remadies in derogation of the common law must be 
 strictly pursued. ^ 
 
 § 330. Foreign Statutes, how Pleaded. — "Where the 
 plaintiff relies on the statute laws of another State, he must aver 
 those laws in his pleadings in the same manner as other facts.* 
 Thus, to plead that a contract is void by foreign usury laws, the 
 laws should be stated ; and the facts which render the contract 
 void according to them should be alleged.^" And the same rule 
 applies to municipal laws and ordinances. ^^ To show due dili- 
 gence in suing on a foreign debt, the laws of such state regu- 
 lating the contracts mast be averred. ^^ Pleading foreign 
 statutes by their titles and dates, or statement of their general 
 provisions and requirements, is insufficient.^^ g^t i^ tjjg courts 
 
 1 1 T. R. 144; 6 Id. 559; 1 East, ' Roed v. Northfleld, 13 Pick. 94; 
 646 ; 2 Chit. 522 ; Bennett v. Hurd, Woi-ster v. Canal Bridge, 16 Id. 541 ; 
 3 Johns. 438 ; Teel v. Fonda, 4 Id. 304 ; Read v. Chelmsford, Idl 128 ; Mitchell 
 Hart V. Cleis, 8 Id. 41 ; Sheldon v. v. Clapp, 12 Cash. 278. 
 
 Clark, 1 Id. 513 ; Burr v. Van Bus- « Steel v. Steel, 1 Nev. 27. 
 
 kirk, 3 Cow. 263 ; Foster v. Hazen, » Throop v. Hatch, 3 Abb. Pr. 25 ; 
 
 12 Barb. 547; First BaptistChuroh v. Phinney v. Phinney, 17 How Pr. 197; 
 Utica & Schenectady B. R. Co., 6 Id. Thatcher v. Morris, 11 N. Y. 437; 
 313 ; Williams v. Ins. Co. of North Monroe v. Douglass, 1 Seld. 447 ; 
 America, 9 How. Pr. 365. Hutchison v. Patrick, 3 Mo. 65 ; Ruse 
 
 2 Canfleld v. Tobias, 21 Cal. 349 ; v. Mutual Benefit Ins. Co., 23 N. Y. 
 Radcliffe V. Rowley, 2 Barb. Ch. 23. 516; Bean v. Brings, 4 Iowa, 464; 
 
 s Longworthy v. Knapp, 4 Abb. Walker v. Maxwell, 1 Mass. 104; and 
 
 Pr. 115; People v. McFadden. 13 see Andrews v. Herriott, 4 Cow. 510, 
 
 Wend. 396; G-affney v. Colvill, 6 Hill, note. 
 
 5g7. " Curtis V. Masten, 11 Paige, 15. 
 
 <" See oases cited in last note. " Harker v. Mayor of N. Y., 17 
 
 '' Levy V. Gowdey, 2 Allen, 321; Wend. 199; People v. Mayor of N. Y., 
 
 Peabody v. Hayt, 10 Mass. 36 ; Nich- 7 How. Pr. 81. 
 
 ols V Squire, 5 Pick. 168; Haskell v. i^ Mendenhall v. Gately,18Ind. 149. 
 
 Moody, 9 Id. 162 ; Reed v. Northfleld, >' Throop v. Hatch, 3 Abb. Pr. 23 ; 
 
 13 Id. 99. Phinney v. Phinney, 17 How. Pr. 
 6 Bayard v. Smith, 17 Wend. 88 ; 197 ; Carey v. Cincinnati etc, R. R. 
 
 Gaffney v. Colvill, 6 Hill, 567. Co., 5 Clarke (Iowa), 357. 
 
176 FLBADINGS OF PLAINTIFF. § 331. 
 
 of the United States, no averment need be made in pleading, in 
 respect to the laws of the several states, which would not be 
 necessary within the respective states.^ 
 
 § 331. Statutes of Limitations, how Pleaded.— Facts 
 taking the case out of the statute of limitations must be spe- 
 cially^set out in the complaint.^ A failure to plead it is a waiver, 
 of the same.3 Yot if it appear on the face of the complaint that 
 the claim is barred, and no facts are alleged taking the demand 
 from the operation of the statute, the complaint is defective, and 
 demurrer lies.'* So, if fraud be alleged as committed more than 
 three years before the commencement of the action, that period 
 being the limitation prescribed by our statute, the plaintiff must 
 allege discovery at a period bringing him within the exception. 
 It is not, however, in general, necessary for plaintiff to allege 
 in his complaint any facts or circumstances to ayoid or antici- 
 pate the defense of the statute of limitations, unless the cause 
 of action appear, upon the face of the Complaint, to be barred. 
 Where triple damages are given by a statute, it must be ex- 
 pressly inserted in the complaint, Which must either recite the 
 statute or conclude to the damage of the plaintiff against the 
 form of the statute ; as in actions for waste. ^ Where there are 
 separate statutes, giving a different measure of damages for the 
 same wrongs, it has been held that the plaintiff must elect upon 
 which he will rely.^ 
 
 § 332. Third Subdivision — Dsmand for Relief. — The 
 third subdivision of section 426 of the California code of civil 
 procedure prescribes that the complaint shall contain a demand 
 for the relief which the plaintiff claims. This is the most im- 
 portant subdivision of the section, as the relief granted to the 
 plaintiff, if there be no answer, shall not exceed that demanded 
 in the complaint.'' But in ahy other case than a default of the 
 defendant, as where issue is joined, the court may grant any re- 
 
 1 Pennington v. Gibson, TB How. 580 ; N. Y. Code, sec. 275 ; and codes 
 
 IT. S. 65. of Nevada, Idaho, Arizona, etc. ; Raun 
 
 » Wormouth v. Hatch, 33 Oal. 121. v. Keynolds, 11 Cal. 19; Gage v. Kog- 
 
 8 People V. Broadway Wharf Co., ers, 20 Id. 91; Lattimer v. "Evan, Id. 
 
 31 Cal. 33. 628 ; Lamping v. Hyatt, 27 Id. 102 ; 
 
 * Smith V. Richmond, 19 Cal. 476; Gautier v. English, 29 Id. 165; Par- 
 Chabot V. Tucker, 39 Id. 434. rott v. Den, ,34 Id. 81; Simonson v. 
 
 6 Chipman v. Emerio, 5 Cal. 239; Blake, 12 Abb. Pr. 331; 20 How. Pr. 
 
 see also Eees v. Emerick, 6 Serg. & 484; Walton v. Walton, 32 Barb. 203 ; 
 
 R. 288 ; Newcomb v. Butterfleld, b Bond v. Pacheco, 30 Cal. 531, where 
 
 .Johns. 342; Livingston v. Plainer, 1 it is held that a judgment rendered 
 
 Cow. 176; Benton v. Dale, Id. 160. for a sum greater than that demanded 
 
 * Sipperly v. Troy and Boston K. in the prayer is not void, but errone- 
 R. Co., 9 How. Pr. 83. ous. See also Andrews v. Monilaws, 
 
 ' California Code Civil Proc, sec. 8 Hun, 65. 
 
§ 332. COMPLAINTS IN GENERAL. 177 
 
 lief consistent with the case made by the complaint and em- 
 braced within thfe issue ;i so that where there is an answer to 
 the complaint, the prayer for relief becomes immaterial.^ So 
 held in mandamus and quo warranto.^ 
 
 The theory of the code seems to require the plaintiff spe- 
 cifically to demand the relief to which he supposes himself 
 entitled.* But. where a party asks for a specific relief, or for 
 such other or further order as may be just, the court may afford 
 any relief compatible with the facts of the case presented. ^ 
 And if specific relief can not be granted, such relief as the case 
 authorizes may be had under the prayer for general relief.^ 
 Thus, under the general prayer, the court may allow a deedto 
 be reformed by inserting in it a power of revocation.'' It is, 
 however, improper to include counsel fees and amount paid for 
 taxes in the judgment, if not asked for in the prayer for relief. ^ 
 To entitle plaintiff to relief in equity, it must be shown that he 
 is without remedy at law.^ 
 
 The prayer of a complaint may seek both legal and equitable 
 relief where the matter arises out of the same transaction.^" 
 But they must be separately stated in the complaint. ^^ And the 
 •grounds of equitable interposition should be stated subse- 
 quently to and distinct from those upon which the judgment at 
 law is sought.i^ Thus a prayer for an injunction is proper in an 
 action of trespass. ^^ Or where suit is brought to test the prior- 
 
 ^ California Code Civil Proo., sec. see Dykers v. Townsend, 24 N. T. 
 
 ■580; Savings and Loan Society v. 62. 
 
 Thompson, 32 Cal. 347. ' Grafton v. Eemsen, 16 How. Pr. 32. 
 
 « Se-j cases last cited; Marquat v. * Janson v. Smith, Cal. Sup. Ct., 
 
 IMarquat, 2 Kern. 336. Jan. T. 1866, not reported. 
 
 s People V. Board of Supervisors, ' Lupton v. Lupton, 3 Ca]. 120; 
 
 27 Cal. 655. Parker v. Woolen Co., 2 Black. U. S. 
 
 * L'Amoreaux V. Atlantic Mut. Ins. 545. What averments on the face of 
 
 Co., 3 Duer, 680; Mills v. Thursby, a bill in equity entitle plaintiff to 
 
 •2 Abb. Pr. 432. The effect of the relief, see Griffing v. Gibb, 2 Black 
 
 prayer of the complaint is discussed U. S. 519. 
 
 and qualified in Savings and Loan i" Gates v. Kieff, 7 Cal. 125 ; Marius 
 
 Society v. Thompson, .32 Cal. 347; T. Bioknell, 10 Id. 224; Weaver v. 
 
 Conger V. Gilmer, 34 Id. 77; Lane v. Conajer, Id. 237; EoUins v. Forbes, 
 
 ■Gluckauff,28Id.280;Cassaciav.PhcB- Id. 300; Hill v. Taylor, 22 Id. 191 ; 
 
 nix Ins. Co., 28 Id. 628 ; McComb v. Eastman v. Turman, 24 Id. 382 ; Gray 
 
 Eeed, Id. 289; N. C. & S. C, Co. v. Dougherty, 25 Id. 266; More v. 
 
 V. Kidd, 37 Id. 301; Van Dyke v. Massini, 82 Id. 595, 596; Palen v. 
 
 Jackson, 1 E. D. Smith, 419; Jones Bus'hnell, 46 Barb. 24. 
 
 V. Butler, 30 Barb, 641 ; 20 How. Pr. " Gates v. Kieff, 7 Cal. 124 ; Getty 
 
 189; Emery v. Pease, 20 N. Y. 62; v. Hudson River H. R. Co., 6 How. 
 
 Marquat v. Marauat, 12 Id. 336 ; re- Pr. 269 ; New fork Ice Co. v. N. W. 
 
 versing S. C.,7 How.Pr. 417. Ins. Co., 28 N. Y. 357; 21 How. Pr. 
 
 = People V. Turner, 1 Cal. 152. 296 ; Lamport v. Abbott, 12 Id. 340. 
 
 ^ Id. ; Truebody, v. Jacobson, 2 Id. ^^ Natoma Water andMining Co. v. 
 
 2"9 : Rollins v. Forbes, 10 Id. 299 ; Clarkin, 14 Cal. 544. 
 
 Hemson v. Decker, 29 How. Pr. 385; i» Gates v. Kieff, 7 Cal. 126, 
 
 KSTBE, VOL. 1— 12 
 
178 PLEADINGS OF PLAINTIFF, § 332. 
 
 ily of the appropriation of water.' Or on foreclosure of a 
 mortgage to restrain waste during the period of redemption.* 
 But a prayer can not include a demand for two kinds of relief 
 inconsistent with each other, as for redelivery of and damages 
 for the detention and conversion of personal property.^ Or for 
 general relief and for judgment in a spec ifled sum for a money 
 demand on a contract.'* But such prayer will not be struck out.^ 
 And the court will not resort to rules of construction to de- 
 termine the species of relief demanded.* But, although the 
 prayer be inartificially framed, the court will grant relief.'' 
 Under the liberal rules of our code the complaint must be 
 taken as a whole, and mere failure to make the prayer conform 
 to the causes of action set forth in the complaint, will not pre. 
 elude the plaintiff from obta,ining the relief which the com- 
 plaint seeks, but which the prayer omits. A party can not 
 state one set of facts in his complaint, pray for the relief which 
 those facts would authorize, and get judgment upon another 
 set of facts. 
 
 In general, a demand for judgment in the alternative is im- 
 proper.8 But in actions for equitable relief, the complaint 
 may be framed with a double aspect where there is doubt as to 
 the particular relief to which the plaintiff is entitled. 9 
 
 There is no rule of pleading which requires a party to aver 
 the precise amount he claims ; but he may recover a less amount 
 than that which is stated in the complaint." An d where there 
 are two independent counts in the complaint, each complete 
 within itself, and concluding with a prayer for relief, and a 
 verdict for the plaintiff on one count only, the relief will fol- 
 low the prayer of that count.'' 
 
 1 Marius v. Bieknell, 10 Cal. 217. « Maxwell v. Farnam, 7 How. Pr. 
 
 I S"^ "■ ,T"y'°,^- 2^ ^*'- ^^^- 236 ; Durant v. Gardner, 10 Abb. Pr. 
 
 ' Maxwell v. Farnam, 7 How. Pr. 445 ; 19 How. Pr. 94. 
 
 ^^^n , r. J ,n .vv T> .,. "Young V. Edwards, 11 How. Pr. 
 
 * Diirant V. Gardner, 10 Abb. Pr. 445. 201 ; Warwick v. Mayor of N. Y., 28 
 
 SHemson v. Decker, 29 How. Pr. Barb. 210; 7 Abb. Pr.265; People v. 
 
 »r. * 1^- ^ ,,, , ,„r Mayorof N. T., 28 Barb. 240; 8 Abb. 
 
 Gates V. Kieff, 7 Cal. 125. Pr. 7 ; Wood v. Seely, 32 N. Y. 105. 
 
 'People V. Turner, 1 Cal. 152 ; True- " Meek v. McClure. 49 Cal. 627 
 body y. Jacobson, 2 Id. 269 ; Stewart " N. C. & S. C. Co. v. Kidd, 37 Cal. 
 
 V. Hutchinson, 29 How. Pr. 181. 288. 
 
FORMS OF COMPLAINTS. 
 
 'SUBDIVISIOE" FIEST. 
 
 BY AND AGAINST PARTICULAK PERSONS, INDIVIDUALLY, AND 
 IN REPRESENTATIVE CHARACTER AND OFFICIAL CAPACITY. 
 
 CHAPTER I. 
 ASSIGNEES AND DEVISEES. 
 § 333. By the Assignee of a Claim. 
 
 Ferm No. 70. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. [State cause of action accruing to the plaintiff's assignor.] 
 
 II. That on the day of , 18.., at , the 
 
 said assigned the said claim to plaintiff. 
 
 [Demand op Judgment. 
 § 334. What Choses in Action are Assignable. — ^The 
 provisions of the codes of the various states requiring that 
 ' ' every action must be prosecuted in the name of the real party 
 in interest," ^ except as otherwise provided, the immediate effect 
 of which is to permit the assignee of a thing in action to sue in 
 his own name, raises the important question, What things in 
 action are assignable? At common law, with the exception of 
 actions on negotiable paper, the rule was well settled that "in 
 general, the action upon a contract, whether express or implied, 
 or whether by parol or under seal, or of record, must be brought 
 in the name of the party in whom the legal interest in such 
 
 1 California, sec. 367; N. T., sec. sec. 62; Nev., sec. 4; Ky., sec. 30; 
 — ; S. C, sec. 134; N. C, sec. 55; Ohio, sec. 25; Iowa, sec. 2548; Neb., 
 Indiana, sec. 3 ; Kansas, sec 26 ; Minn., sec. 28 ; Col., sec. — ; Wyoming, sec. 
 sec. 26; Mo., art. 1, sec. 2; Wis., c. 31; Idaho, sec. 4; Ariz., sec. — ; 
 122, sec. 12; Or., sees. 27, 379; Pla.. Mon., sec. 4. 
 
 179 
 
180 FOKMS or COMPLAINTS. § 337. 
 
 contract was vested." ^ In equity a differeat rule prevailed, 
 which permitted the assignee to sue in his own name. The 
 effect of the provisions of the code cited above is to extend this 
 equity doctrine to all cases of assignment, but not to render 
 assignable any claims or demands which before its enactment 
 were unassignable.^ In the determination of this question, 
 therefore recourse must be had to the settled doctrines of the 
 law as they existed, independent of any changes of procedure 
 made by the code. As a general proposition, all choses in ac- 
 tion which survive and pass to the personal representatives of 
 a decedent are assignable, and this includes not only causes of 
 action which arise from contract, but in many cases those which 
 have their origin in torts done to personal or real property. In 
 general all causes of action arising from the breach of con- 
 tract survive, and are consequently assignable, except those 
 which are purely personal in their nature, and the fulfillment 
 of which requires the continuance of the relation between the 
 original contracting parties. As illustrations of such personal 
 contracts which are not subject to assignment, are contracts 
 providing for apprenticeship,^ contracts for marriage,* and con- 
 tracts stipulating for the performance of services by an attorney 
 or medical practitioner. ^ On the contrary the following causes 
 
 ^ 1 Ch. PI. 2. erence to which the administrator or 
 
 ' Hodgman v. Western E. Co., 7 executor represents the person of the 
 How. Pr. 492, in which the court said : deceased, and is in law his assignee. 
 " The only change made b}' the code But as to this class of rights of action 
 is to transfer with the beneficial in- late cases have somewhat qualified 
 terest the right of action also in those the rule, and it is now well settled 
 cases where before the court would that an executor or administrator 
 recognize and protect the rights of can not maintain an action upon an 
 the assignee. No new right of action express or implied promise to tne de- 
 is created; no authority is given to ceased, where the damages consist 
 assign a right of action not before as- entirely of the personal sufferings of 
 signable." the deceased, whether mental or cor- 
 
 s Hall v. Gardner, 1 Mass. 172 ; poreal. Actions for the breach of a 
 
 Davis V. Coburn, 8 Id, 299 ; Cochran's promise of marriage, for unskillful- 
 
 Ex'r V. Davis, 5Litt. 118. ness of medical practitioners contrary 
 
 *Stebbins v. Palmer, 1 Pick. 71; to their implied undertaking, the im- 
 Smith v. Sherman, 4 Cush. 408 ; Lat- prisonment of a party on account of 
 timore v. Simmons, 13 Serg. & E. 183 ; the neglect of his attorney to perform 
 Chamberlain v. Williamson, 2 Mau. his professional engagements, fall un- 
 A Sel. 408 ; 1 Ch. PI. 61 ; Meech v. der this head, being considered as 
 Stoner, 19 N. T. 29; Wade v. Kalb- virtually actions for injuries to the 
 fleiseh, 58 Id. 282. person. * * * If it be true that 
 Zabriskie v. Smith, 13 N. T. 833. the executors and administrators are 
 In this case Demo, J., said: "The the testator's assignees, it is fair to 
 maxim of the common law is. Actio assume that they take whatever of a 
 perspnalismoritur cum persona. This personal nature the deceased had 
 principle was not originally applied which was capable of assignment; and 
 to causes of action growing out of the thus the power to assign and to trans- 
 breach of a contract. They were mit to the personal representatives are 
 parcel of the personal estate, in ref- convertible propositions. * * * Any 
 
§ 335. ASSIGNEES AND DEVISEES. 181 
 
 of action have been held assignable, although upon a casual 
 examination they might appear to fall within the class of per- 
 sonal contracts which are not subject to transfer. Thus a con- 
 tract of guaranty ; ^ the right of a borrower to recover back the 
 excessive interest upon an usurious loan ; ^ a contract for the 
 hiring of the services of state prison convicts ; ^ a contract with 
 the authorities of a city corporation for cleaning the streets 
 during a certain time and at a stipulated price ; * right of an 
 officer to his fees,^ and the right of a widow to her dower before 
 admeasurement, may all be assigned.^ 
 
 § 335. Assignment of Claims Arising from Torts. — ^In 
 determining what causes of action arising from torts are assign- 
 able, the same criterion has been adopted as in the case of con- 
 tracts. If the claim is one which would survive to the personal 
 representative of the decedent, it is assignable, otherwise not. 
 As a general rule causes of action arising from torts were not 
 assignable at common law; and the same rule prevailed in 
 equity as to merely personal injuries, such as libel, slander, and 
 the like, where the effect of the injury did not tend to diminish 
 the value of the estate. Such i^ersonal injuries died with the 
 person, and were incapable of assignment.'' Statutes have been 
 passed in most of the states which increase the nunlber of causes 
 of action which survive, so as to include all injuries to property 
 by which its value has been . diminished. ^ As illustrations of 
 such causes of action which survive, and are consequently as- 
 signable, may be mentioned claims arising, from the negligent 
 use of real or personal property. ^ Or for the conversion of the 
 
 interest to which the personal repre- ' People v. Tioga, 19 Wend. 73 ; 
 
 sentatives of a decedent would not Comegys v. Vane, 1 Pet. 209. 
 
 succeed is not the subject of assign- ^ Hoyt v. Thompson, 5 N. Y. 320; 
 
 ment inter vivos." Haieht v. Hayt, 19 Id. 464 ; Bj'xbio 
 
 1 Small V. Sloan, 1 Bosw. 352. v. Wood, 24 Id. 607 ; McMahon v. 
 
 s Wheelock v. Lee, 64 N. Y. 242. Allen, 35 Id. 403 ; Graves v. Spiers, 58 
 
 8 Horner v. Wood, 23 N. Y. 350. Barb. 349 ; Butler v. N. T. & E. R. R., 
 
 * Devlin v. Mayor, 63 N. Y. 8. In 22 Id. 110; Weire v. Davenport, 11 
 
 discussing the right of a contractor Iowa, 49; Tyson v. MoGuineas, 25 
 
 to assign, Allen, J., said: "If the Wis. 656; Smith v. Harris, 43 Mo. 
 
 service to be rendered is not neces- 562. 
 
 sarily personal, and such as can only, • Fried v. N. Y Cent. R. R., 25 
 
 and with due regard to the interests How. Pr. 285 ; Waldron v. Willard, 17 
 
 of the parties and the rights of the N. Y. 466; Merrill v. Grinnell, 30 Id. 
 
 adverse party, be rendered by the 594; Merrick v. Brainard, 38 Barb, 
 
 original contractor, and the latter has 574; Stanton v.Leland, 4E. D.Smith, 
 
 not disqualified himself from perform- 88; Fulton Fire Ins. Co. v. Baldwin, 
 
 ance," the contract is assignable. 37 N. Y. 648; Dininny v. Pay, 38 
 
 6 Piatt V. Stout, 14 Abb. Pr. 178 ; Barb. 18 ; Ayrault v. Pacific Bank, 6 
 
 Birkbeck v. Stafford, Id. 285. Robt. 337. 
 6 Strong v. Clem, 12 Ind. 37. 
 
182 FOEMS OF COMPLAINTS. § 336. 
 
 latter.^ Or injuries to the same.^ Or for fraudulently inducing 
 one to enter into the marriage relation. ^ Or for fraud or de- 
 ceit in contracts relating to the sale of real or personal prop- 
 erty.* On the contrary, causes of action which relate purely to 
 ike person, and are founded on injuries done to the body or 
 character, do not survive, and, as a consequence, are not as- 
 signable. As illustrations of this class are claims for malicious 
 prosecution. 5 Or for injuries to the person, caused by the neg- 
 lect of a common carrier.^ Or for a vendor's lien for the purchase 
 price of land sold.^ Nor will a verdict rendered in such an 
 action change the nature of the demand so as to render it as- 
 signable, although after judgment the same may be assigned as 
 a contract of record. ^ If, however, after judgment has been 
 entered upon the verdict, and a motion for a new trial has been 
 made, the party in the mean time die, judgment will be entered 
 nunc pro tunc as of the time of the verdict, so as to prevent the 
 action from abating.^ 
 
 § 336. Assignments, how Made. — No formality in the 
 manner of assignment is necessary to invest the assignee with 
 the right to bring suit in his own name. Any act amounting to 
 a rightful appropriation of a debt, or whereby one person's in- 
 terest in a chose in action passes to another, constitutes an 
 assignment.!" So, where an order is given for a valuable con- 
 sideration, and for the whole amount of a demand against the 
 drawee, though worthless as a bill, it operates as an assignment 
 of the debt or fund against which it is drawn.i^ And an order 
 
 iLazard v. Wheeler, 22 Cal. 139; « Hodgman v. Western K. E., 7 
 
 Tyson v. McGuineas, 25 Wis. 656 ; How. P'r. 492 ; Purple v. H. E. E. K., i 
 
 Smith^.KenneU, ]8Mo. ]54;McKee Duer, 74. This rule has beem changed 
 
 V. Judd, 12 N Y. 622; Eiohtmeyer v. In several of the states bv special 
 
 Eemsen 38 Id. 206. statutes, which give a right of ac- 
 
 c ^"^l ITa"''! ^- -*■'!'-?"• ^ ^- Y. tion under such circumstances to the 
 
 ?"P- ii.'-.°V' ^o""^ '^- '^assini, 32Cal. personal representatives of the de- 
 
 590; Haight v. Green, 19 Id. 113; ceased. 
 
 Weire V. Davenport, 11 Iowa. 49; ' Baum v. Grisby, 21 Cal 172- 
 
 ^° ^^aW\?''^^\^^ 1^- C«- 34 Lewis v. CoviUand, Id. 78; Williams 
 
 Wis. 139 ; Butler v. N. Y. & E. E. E., v. Young, Id. 227. 
 
 "^s ??''''■•"*'■ n n,, .„, „' Lawrence V.Martin, 22 Cal. 173; 
 
 8 Higgms V. Breen, 9 Mo 497. Crouch v. Gridley, 6 Hill, 250 ; In re 
 
 •Haight vHayt. 19 KY. 464; Charles, 14 East,-^197; Kellogg v. 
 
 Byxbie V. Wood, 24 N. Y. 607; Schuyler, 2 Denio, 73 
 
 Graves v. bp.er, 58 B.rb. 3*9; Johns- » Eyghtmyre v. Durham, 12 Wend., 
 
 qq?. WoT ' "^ f,''^ ^'-.F^ V l*"' T""«'' ^- Boolcer,2 Dana, 334; 
 331; Woodbury V Deloss, 65 Barb. Collins v. Prentice, 15 Conn. 428 
 501; Grocers' Nat. Bk. v. Clark, 48 Dial v. Holter, 6 Ohio St. 228. 
 
 Smi?h,'l8 N.T. 322?™' ^"^"'^'^ '' ^^6 ^'^^"" ^" *^'=^°"''l'^' ^^ ^al. 
 s Noonan v Orton 34 Wis. 250; " Wheatley v. Strobe, 12 Cal. 92; 
 Lawrence v. Martin. 22 Cal. 173. Walker v. Mauro, 18 Mo. 564. 
 
§ 337. ASSIGNEES AND DEVISEES. 183 
 
 drawn by a creditor on his debtor for a portion of his demand 
 constitutes an assignment of the debt pro tanto.^ In Kentucky, 
 however, no title passes by a partial assignment.^ While in 
 Indiana (the code of which state requires that in an action by 
 an assignee, founded on a non-negotiable instrument, the 
 assignor shall be joined), the assignee of part of a judgment 
 was united with the assignor ;3 and the same was permitted in 
 the case of the assignee of one of two payees of a promissory 
 note.* Upon the same principle, the assignment by a creditor 
 to his debtor of part of his demand constitutes a payment 
 theieot pro tanto.^ So also the indorsement of a bill of lading, 
 prima facie, vests the property in the goods in the indorsee.^ 
 An instrument in writing, whether the same be a contract, bond, 
 or judgment, may be assigned by a writing on a separate piece 
 of paper, or even by parol (^ and an instrument under seal may 
 be transferred by a writing not sealed.^ The mere signing an 
 assignment, without delivery, is sufficient to constitute the 
 assignee the real party in interest, so as to authorize him to sue 
 in his own name.^ A negotiable promissory note or bill of ex- 
 change must be assigned by indorsement, in order to preserve 
 its negotiability ; but an assignee by delivery may sue thereon 
 in his own name, subject to all the equities existing in favor of 
 the drawer. 1* 
 
 § 337. Assignments, how Alleged. — Where the plaintiff 
 is an assignee, the complaint must allege the fact of the assign- 
 ment.^ Such allegations must be a positive averment of a trans- 
 fer, so as to show title in the plaintiff.'^ It is not enough merely 
 to allege that " the said plaintiff is now the sole owner of the 
 
 iMcEwen v. Johnson, 7 Cal 258; son v. Gumming?, 28 Iowa, 344; Will- 
 Grain V. Aldrioh, 38 Id. 514. iams v. Norton, 3 Kan. 295 : Carpenter 
 
 *Elledge v. Straughn, 2 B, Mon. v. Miles. 17 B. Mon. 898; Conyngham 
 
 82; Bank of Galliopolis v. Trimble, v. Smith, 16 Iowa, 471; Barthol v. 
 
 6 Id. 599. Blakin, 34 Id. 452 ; Moore v. Lowry, 
 
 8 Tapping v. Duffy, 47 Ind. 57. 25 Id. 336 ; Green v. Marble, 37 Id. 95. 
 
 « Groves v. Eubj, 24 Ind. 418. s Moore v. Waddle, 34 Cal. 145. 
 
 'MePike v. McPherson, 41 Mo. » Ritter v. Stevenson, 7 Cal. 388. 
 
 521. >" Andrews v. McDaniel, 68 N. C. 
 
 « Lineker v. Ayeshford, 1 Cal. 76 ; 385 ; Mandeville v. Riddle, 1 Crancb, 
 
 Harris V. De Wolf, 4 Pet. 147; Bilder- 95; White v. Brown, 14 How. Pr. 
 
 ston V. Manro, 2 Oraneh C. C. 623. 282; Billings v. Jane, 11 Barb. 620: 
 
 ' Hooker v. Ertgle Bank, 80 N. Y. 83 ; Gould v. EUery, 39 Id. 163 ; Farring- 
 
 Jones v, Witter, "l3 Mass. 304; Briggs ton v. Park Bank, Id. 645; Brown v. 
 
 V. Dorr, 19 Johns. 95; Dunn v. Snell, Richardson, 1 Bosw. 402; Houghton 
 
 15Id.481; MfiClain V. Weideraeyer, v. Dodge, 5 Id. 326 ; Sexton v. Fleet, 
 
 25 Mo. 3S4 ; Thornton v. Crowther, 24 2 Hilt. 48-5. 
 
 Id. 164; Hancock V. Ritchie, 11 Ind. " Prindle v. Caruthers, 15 N. T. 
 
 48; Andrews v. McDaniel, 68 N. C. 426; White v. Brown, 14 How. Pr. 
 
 385; White v. Phelps, 14 Minn. 27; 282; Adams v. HoUey, 12 Id. 330. 
 
 Weinwick v. Bender, 33 Mo. 80 ; Pear- '» Stearns v. Martin, 4 Cal. 227. 
 
184 FORMS OF COMPLAINTS. § 338. 
 
 demand." Such an allegation is not an averment of an issuable 
 fact, but of a mere conclusion of law, and its denial would 
 raise no issue.^ An allegation that A. duly assigned and trans- 
 ferred all his interest in the contract to the plaintiff B., and 
 that the plaintiff C. became interested by a sale and assign- 
 ment <to him of a part of B.'s interest, has been held suflScient.* 
 In Indiana, where an instrument not assignable is assigned and 
 sued on by the assignee, if the assignor is made a party, it is 
 immaterial and need not be alleged how the assignment was 
 made.^ 
 
 § 338. Averment of Consideration for Assignment. — 
 A promissory note imports a consideration, and none need be 
 pleaded in an action by an assignee.* Even for a sealed con- 
 tract an averment of assignment imports that it was made by a 
 sealed instrument, from which a consideration is to be inferred, 
 and consequently none need be stated. ^ Nor can the defend- 
 ant aver or prove that the assignment was only intended as 
 collateral security for the payment of a debt, if the assignment 
 is absolute on its face.^ So, in Kentucky, it is not necessary in 
 a suit by an assignee of a chose in action, against the assignor, 
 to aver a valuable consideration. It is sufficient to set out the 
 assignment.'' 
 
 § 339, Assignment of Accounts. — The assignee may sue 
 in his own name on an account assigned to him.s But where 
 there is no final settlement of partnership accounts, and no bal- 
 ance struck, and no express promise on the part of the individual 
 members to pay their ascertained portions of this amount, no 
 action can be maintained therefor in assumpsit, nor can an 
 individual partner assign his claim against the partnership so 
 that the assignee may sue.9 The assignee of an account and 
 note given in part payment of it, where the assignment of the 
 
 501 ^^°'"''1/- °?,^™°"'^' ''2 ^°^- 'P'- 'Winters v. Rush, 34 Cal. 136- 
 
 321 ; Russell V. Clapp, 7 Barb. 482 ; Martin v. Kanouse, 2 Abb, Pr. 331 • 
 
 Beivtley v. Jones, 4 How. Pr. 202 ; Horner v. Wood, 15 Barb. 372. 
 
 f'^Xn^'in^i^l'^f I-^V?*; ^^'^^^ JUoove y. Waddle, 34 Cal. 145; 
 
 Mill ^fi Ki lo'J- f^'h P°°™5J1 7- Fowler V. New York Indem. Ins. Co. 
 
 ^i' 9ft K." v^-.J"^''°'^"''-^'°'^- 23 Barb. 143; Clark v. DownW 1 
 
 ardson 20 N. Y. 472, an averment in E. D. Smith, 406 ; Burlnett v. Gwvfne 
 
 ♦T»f*?^T °° * non-negotiable note 2 Ab. Pr. 79; Vogel v. Badcock. 1 
 
 trtd%'oldefo'/tJretmrjas' 330; Richardson v. Mead, 27 Barb. 
 
 ?h1t'si?nment.*° "'"'' '"''''''' "' c:i.Tll"°" " '^" ^"''"''"'°' '' 
 ^Horner V. Wood, 15 Barb. 372; 'Holt v. Thompson, 1 Duval 801 
 Fowler v. N. Y. Indem. Ins. Co.. 23 » Carpenter y. rhnso.n. 1 Nev. 881 
 
 » Buntin V. Weddle, 20 Ind. 449. ' ^""""^ "^ ""'""^y- ^° ^'''- ««• 
 
§ 342. ASSIGNEES AND DEVISEES. 185 
 
 two claims was contemporaneous, may sue in his own name.^ 
 An assignment of an account by indorsing on it the word 
 ''Assigned," is sufficient, and it may be amended on the trial by 
 writing above it, ' ' For value received, I hereby assign the within 
 account." ® 
 
 § 340. Assignment of Bonds, Notes, etc. — ^An assignee 
 of bonds, notes, etc., may maintain an action thereon in his 
 own name.3 The assignment of a note to the maker is a pay- 
 ment of the same. And the same is true of a joint and several 
 note, assigned to one of the makers.* Payment by the maker 
 of a non-negotiable note of the sum due upon an attachment 
 against the payee, without notice of an assignment, will bar a 
 suit by the assignee.^ Although a bill or note payable to order 
 can only be made negotiable by an indorsement by the payee, 
 still a transfer by deliveiy is sufficient to entitle the holder to 
 sue thereon in his own name, the same as in assignments of 
 other choses in action.^ 
 
 § 341. Assignment by a Corporation. — In an action 
 brought by the assignee of a corporation, it is not essential to 
 particularly state the fact of incorporation. A statement of the 
 name of the corporation, and of the making of the agreement 
 between them, and of what the corporation did in fulfillment of 
 its agreement, is sufficient.'' And the complaint need not aver 
 that the directors were authorized to make it.^ 
 
 § 342. Assignment of Debts. — An order drawn by a credi- 
 tor on his debtor is prima facie evidence of an assignment of the 
 debt pro tanto, and the assignee may recover on the same.^ And 
 drawees with notice are liable to payees without an express 
 promise to pay. In Maine, an assignment of a debt may be 
 made by parol, or may be inferred from the acts of the parties.^* 
 And in New Hampshire also claims for torts as well as for prop- 
 erty maybe assigned by parol." In Missouri, a general con- 
 veyance of all " debts that may be due," without a schedule, 
 passes to the grantee such a title as will enable him to recover 
 from a subsequent general assignee.^^ 
 
 1 Armstrong v. Cushney, 43 Barb. 5 Bosw. 326 ; Sexon v. Fleet, 2 Hilt. 
 340. 485; Gould v. EUery, 39 Barb. 163; 
 
 2 Ryan v. Maddux, 6 Cal. 247. Parrington v. Park Bank. Id. 645. 
 
 3 Mandeville v. Riddle, 1 Cranch, ' Kennedy v. Cotton, 28 Barb. 59. 
 290; Cottle v. Cole, 20 Iowa, 481. ' Nelson v. Eaton, 16 Abb. Pr. 118. 
 
 4 Gordon v. Wansey, 21 Cal. 77, ° McEwen v. Johnson, 7 Cal. 258 ; 
 
 5 Weinwick v. Bender, 33 Mo. 80. Wheatley v. Strobe, 12 Id. 97 ; Pope 
 
 6 Brown v. Richardson, 20 N. Y. v. Huth, 14 Id. 408. 
 
 472- S. C 1 Bosw. 402; Billings v. '» Garnsey v. Gardner, 49 Me. 1 67. 
 Jane 11 Barb. 620 ; White v. Brown, " Jordan v. Gillen, 44 N. H. 424. 
 14 How. Pr. 282 ; Houghton v. Dodge, ^ Page T. Gardner, 20 ilo. 507. 
 
186 FOEMS OF COMPLAINTS. § 343. 
 
 § 343. Assignment of Goods not in Possession. — "Where 
 the vendor of goods is not at the time of sale in possession, the 
 transfer is an assignment, and an actual and continued change 
 of possession is required equally as in eases of sale by one in 
 possession.^ And where B., the vendee, assigned to C. aeon- 
 tract for the delivery of goods to arrive, and C, after the 
 arrival of the goods, tendered payment for the same, it was 
 held that A., the vendor, was not entitled to notice of the 
 assignment, but that C. might enforce the contract against 
 him.^ 
 
 § 344. Assignment of Lease. — An assignment of all right, 
 title, and interest of the lessee conveys his right for compensation 
 for new erections on the land under the covenants. ^ A lease, 
 or an interest therein, or a right of entry for breach of one of its 
 conditions, may be assigned, so as to entitle the assignee to sue 
 in his own name.* 
 
 § 3i5. Assignment of Mortgages. — A mortgage, inde- 
 pendent of the debt it is intended to secure, has no assignable 
 quality.5 The assignment of the debt, note, or bond secured by 
 the mortgage, even without a formal transfer of the security, 
 carries the mortgage with it.^ In California it has been held 
 that the equitable lien which a vendor of real estate retains 
 upon the property for the unpaid purchase money is not assign- 
 able.'' But a claim for damages for trespass on land is assign- 
 able, and the assignee may maintain an action for the same in his 
 own name. 5 
 
 § 346. Assignmentof Insurance Policy.— An assignment 
 of a policy of insurance on a stock of goods attaches, in equity, 
 as a lien upon the amount due on the policy to the extent- of the 
 debt as soon as the loss occurs.^ 
 
 §347. Assignments of Judgments. — A cause of action 
 which does not survive to the personal representatives is not 
 assignable. But if suit has been brought on such a cause of 
 action, and judgment recovered, the judgment is considered as 
 a contract, and is capable of assignment, even after the death of 
 the judgment creditor. A verdict, however, on such a cause 
 
 1 Weil V. Paul, 22 Cal. 492. Willis v. Farley, 24 Ca!. 490 ; Hurtv. 
 
 2 Morgan v. Lowe, 5 Cal. 326. Wilson, 38 Id. 263 
 
 J Hunt V. Danforlh, 2 Curt. 0. Ct. ■> iiaum v. Grigsby, 21 Cal. 172; 
 
 4 4,r=,.-ii T 1 Q xr ^ .. Lewis v.CoviUaud, Id. 178; Williams 
 
 * Averill T. Taylor, 8 N. Y. 44; v. Young, Id. 227. 
 VanEensse aer v. Ball, 12 N. Y. 100; « More v. Massini, 32 Cal. 590. 
 
 Van Eensselaer v. Hays, Id. 68. » Bibend v. L. & L. F. & L Ins 
 
 Polhemus V. Trainer, 30 Cal. 685. Co., 30 Cal. 78 ; Pope v. Huth, 14 Id. 
 
 8 Hatch v. White, 2 Gall. 152; 403 ; Wheatley v. Strobe, 12 Id 92. 
 
§ 349, ASSIGNEES AND DEVISEES. 187 
 
 of action does not have the same effect.^ If a judgment credi- 
 tor assign the judgment, and the judgment debtor without no- 
 tice of the assignment afterwards pays the same voluntarily to 
 the sheriff, by reason of service of garnishment process upoa 
 him, the assignee may still enforce the judgment.^ In a suit to 
 enforce a judgment lien on real estate brought by the assignees 
 of the judgment, the judgment and the assignment must be set 
 forth.3 
 
 § 348. Assignment of Corporate Stock. — An assignment 
 of shares of stock in a corporation under the California statute 
 of 1853, by delivery of the certificates, without transfer on the 
 books of the company, is invalid against subsequent purchasers 
 on execution against the assignor, without notice of the assign- 
 ment.* 
 
 § 349. Effect of Assignment. — In addition to the provis- 
 ions of the codes which require every action to be prosecuted in 
 the name of the real party in interest — the effect of which, as 
 has been seen above, is to permit the assignee to bring the ac- 
 tion in his own name — there is another very important section 
 which should be considered in this connection. The codes, 
 with very little difference in the language, provide that "in the 
 case of an assignment of a thing in action, the action of the as- 
 signee shall be without prejudice to any set-off or other defense 
 existing at the time of or before notice of the assignment ; but 
 this section shall not apply to negotiable promissory notes and 
 bills of exchange, transferred in good faith and upon good con- 
 sideration, before maturity. "^ This statutory provision is a 
 substantial embodiment of the familiar rule which existed prior 
 to the adoption of the codes, that the assignee of a thing in 
 action, not negotiable, takes the same subject to all the defenses 
 legal or equitable existing between the original parties.^ Or, as 
 the rule is stated by Johnson, J., "In the case of the assign- 
 ment of a thing in action, the action of the assignee shall be 
 
 1 Lawrence V. Martin, 22 Cal. 173. North Carolina, sec. 55; Nebraska, 
 
 2 Brown v. Ayrea, 33 Cal. 525. sec. 29 ; Oregon, sees. 28, 382 ; South 
 ' Brookshire V. Loniax, 20 Ind. 512. Ciirolina, sec. 135; Washington, sec. 
 * Weston V. Bear Kiver etc. Co., 5 3 ; Wisconsin, c. 122, sec. 13 ; Wyom- 
 
 Cal.l86;Naglee V.Pacific Wharf Co., ing, sec. — . 
 
 20 Id. 529; People v. Elmore, 35 Id. « McCabe v. Gray, 20 Cal. 509; 
 
 €53 ; Parrott v. Byres, 40 Id. 614. Northam v. Gordon, 23 Id. 255 ; True- 
 
 5 Arizona, sec. 5; California, sec bodyv. Jacobson, 2 Id. 269; Olds v. 
 
 368; Colorado, sec. — ; Dakota, sec. Cummings, 81 111. 188; Fortier v. 
 
 65; Florida, sec. 63: Idaho, sec. 5; Darst, Id. 212; Shaw v. Shaw, 4 
 
 Indiana, sec. 6; Iowa, sSc. 2-546; Kan- Cranch C. Ct. 715; Shirras v. Caig, 
 
 sas, sec. 27; Kentucky, see. 31 ; Mon- 7 Cranch, 34; Kinsman v. Parkhurst, 
 
 tana, sec 5; Minnesota, sec. 27; Ne- 18 How. 289; Timms v. Shannon, 19 
 
 vada, sec. 5 ; New York, see. ; Md. 296. 
 
188 FORMS OP COMPLAINTS. § 349. 
 
 witbout prejudice to any set-off or other defense existing at the 
 time of or before notice of the assignment, which would have 
 been available to the defendant had the action been brought in 
 the name of the assignor.^ This doctrine has been applied to 
 assignments of bonds under the statutes of Virginia and Indi- 
 ana : 3 in actions by the assignees of mortgages ; ■^ in an action on 
 a non-negotiable warehouseman's receipt;'* in an action by the 
 assignee of judgments and decrees ; ^ in actions by the assignees 
 for the benefit of creditors ; ^ in actions by the assignee of nego- 
 tiable paper after it has lost its negotiable character ; ' in ac- 
 tions by the assignee of the vendee, to compel the specific 
 performance of a contract for the sale of lands ; * and in actions 
 by the assignee of a partner.^ 
 
 When the assignee of a thing in. action, which is subject to 
 equities between the original parties, assigns it to a second as- 
 signee by a transfer which purports to convey a perfect title, for 
 a good consideration, and without any notice on the part of the 
 second assignee of any defect in the title, the question has 
 often arisen, whether such second assignee is affected by the 
 equities which existed between the original parties. These 
 equities are often spoken of as latent, and several courts have 
 adopted the rule that such latent equities can not prevail against 
 the title of the second assignee. i** The effect of this rule is to 
 
 1 Beckwith v. Union Bank, 9 N. Y, ' Sampeyreao v. United States, 7 
 21] ; and see to the same effect, My- Pet. 222. 
 
 ersv. Davis, 22 N, T. 489; Ingraham ^Marine Bank v. Jauncey, 1 Barb. 
 
 V. Disborough, 47 Id. 421 ; Andrews 486: Maas v. Goodman, 2 Hilt. 275. 
 
 V. Gillespie, Id. 487; Bush v. Lathrop ' Gwathney v. McLane, 3 McLean, 
 
 22 Id. 535 ; Beeves v. Kimball, 40 Id. 371 ; Rounsavel v. Scholfield, 2 Cranch 
 
 299; Wood v. Perry, 1 Barb. 114; 0. Ct. 139. 
 
 Ainslie v. Boynton, "2 Id. 258; Com- * Reeves v. Kimball, 40 N. T. 299. 
 
 meroial Bank v. Colt, 15 Id. 606; » Nicoll v. Mumford, 4 Johns. Ch. 
 
 Western Bank v. Sherwood, 29 Id. 383 ; 522 ; Eodriguez v. Heffernan, 5 Id. 417. 
 
 Blydenburgh v. Thayer, 3 Keyes, 293 ; '» Livingston v. Dean, 2 Johns. Ch. 
 
 In Callanan v. Edwards, 32 N. Y. 486. 479 ; Murray v. Lvlburn, 2 Id. 441 ; 
 
 the rule is thus stated: "An 'assignee Rodriguez v. Heffernan, 5 Id. 417; 
 
 of a chose in action not negotiable Murray v. Ballou. 1 Id. 566; Bebee 
 
 takes the thing assigned, subject to v. Bank of N. Y., 1 Johns. 529; 
 
 all the rights which the debtor had James v. Morey, 2 Cow. 246 ; Losev 
 
 acquired in respect thereto prior to v. Simpson, 3 Stockt. Ch. 246"; 
 
 the assignment, or to the time notice Bloomer v. Henderson,' 8 Mich. 395; 
 
 was given of it, when there is an in- Croft v. Bunster, 9 'Wis. 503 ; Mott 
 
 terval between the execution of the v. Clark, 9 Pa. fit. 399; Tavlor v. 
 
 transferand the notice." Gitt, 10 Id. 428; Metzgar v. Metzgar, 
 
 2 Scott v. Shrevp. 12 Wheat. 605; 1 Rawle, 227; McConnell v. Wen- 
 Bell v. Nimmo, 5 McLean, 110. rich. 16 Pa. St. 865; Moore v. Hol- 
 
 » Hubbard V. Turner, 2 McLean, combe, 3 Leigh, 648; Ohio L. Ins.'Co. 
 
 519; 'Western Bank v. Sherwood, 29 v. Ross, 2 Md. Ch. 26; Sleeper v. 
 
 Barb. 383. Chapman, 121 Mass, 404; Sumner v. 
 
 'Commercial Bank V.Colt, 15 Barb. Waugh. 56 111. 531; Winter v. Bel- 
 
 606. mont M. .Co., 53 Cal. 428. In this 
 
§ 349. ASSIGNEES AND DEVISEEb. 189 
 
 extend to the assio;ament of ordinary choses in action the well- 
 settled doctrines which apply to the assignment of negotiable 
 instruments. The better doctrine, however, is, and the one 
 which is settled by the weight of authority, that the right of 
 the second assignee under such circumstances, is subject to all 
 the equities existing in favor of the original parties. The orig- 
 inal assignee can not convey a greater title or interest in the 
 subject of assignment than he himself has.^ Where, however, 
 the owner by his own affirmative act has conferred the apparent 
 title and absolute ownership upon an assignee, upon the faith 
 of which the chose in action has been purchased for value by a 
 second assignee, the owner is precluded from asserting his real 
 title, as against such subsequent purchaser, by the application 
 of the doctrine of estoppel. This rule, although it has gen- 
 erally been applied to transfers of stock eertifleates has been ex- 
 tended by some courts to assignments of various other kinds 
 of choses in action.^ 
 
 In order to give a debtor, when sued by the assignee, the 
 right to set off a demand against the assignor, it is necessary 
 that such demand should have been due and payable at the time 
 of the assignment, and not have matured afterwards. ^ In Cal- 
 ifornia, however, a demand which has accrued prior to notice of 
 the assignment is allowed to be set offl.* Negotiable paper, as- 
 signed after maturity is subject to the same rules in regard to 
 
 latter case the plnintiff, the owner of 421; Ledwich v. McKim, 53 Id. 307; 
 
 certain shares of stock, transferred Cutts v. Q-uild, 57 Id. 229 ; Barry v. 
 
 them on the books of the company in Eq. L. Ins. Co., 59 Id. 587 ; Trustees 
 
 the name of M., to whom a certifi- etc. v. Wheeler, 61 Id. 88; Sherwood 
 
 cate was issued. M. afterwards In- v. Meadow etc. Co., 50 Cal. 412. 
 
 dorsed the certificate in blank and ^ McNeil v. Tenth Nat. Bank, 46 
 
 delivered it to the plaintiff. He then N. Y. 325; Holbrook v. N. J. Zinc 
 
 stole the certificate from the plaintiff Co., 57 Id. 616 ; Combes v. Chandler, 
 
 and sold it to a bona fide purchaser. 33 Ohio St. 178; Moore v. Metropol- 
 
 The court held that the title of the itan Bank, 55 N. T. 41 ; Farmers' 
 
 purchaser was superior to that of the National Bank v. Fletcher, 44 Iowa, 
 
 real owner. 252. 
 
 i Bush V. Lathrop, 22 N. T. 535 ; ' Beckwith v. Union Bank, 9 N. 
 Anderson v. Nicholas, 28 Id. 600; Y. 211; Smith v. Felton, 43 Id. 419; 
 Reeves v. Kimball, 40 Id. 299; Ma' Barlow v. Meyers, 6 N. Y. Sup. Ct. 
 son V. Lord, Id. 476 ; Sohafer v. 183 ; Meyers v. Davis, 22 N. Y. 489 ; 
 Beilly, 50 Id. 61; Reid v. Spras;ue, Chance v. Isaacs, 5 Paige, 592; Brad- 
 72 Id. 457; McNeil v. Tenth Nat. ley v. Angeli, 3 N. Y. 475; Martin v. 
 Bank, 55 Barb. 59; Williams v. Kunzmuller, 87 Id. 396; Watt v. 
 Thorn, 11 Paige Oh. 459; Bradley v. Mayor, 1 Sundf. 23; Wells v. Stew- 
 Root, 5 Id. 632; Marvin v. Inglis, 39 art, 3 Barb. 40; Ogden v. Prentice, 
 How. Pr. 329; Poillon v. Martin, 1 33 Id. 160; Adams v. Eodarmel, 19 
 Sandf. Ch. 569; Jud*onv. Corcoran, Ind. 339: Walker v. McCay, 2 Mete. 
 17 How. 612; Ballard v. Burgett, 40 294; Williams v. Brown," 2 Keyes, 
 N. Y. 314; Davis v. Beohstein, 69 Id. 48H. 
 440 ; Ingraham v. Disborough, 47 Id, * McCabe v. Grey, 20 Cal. 509. 
 
^90 FORMS OF COMPLAINTS. § 350. 
 
 set-off as other clioses in action not negotiable.^ In order to 
 entitle a defendant to set off a demand, it is necessary that the 
 claim asserted against him should affect him in the same char- 
 acter as the demand attempted to be set off. Thus one sued as 
 an individual can not set off a demand due him as an executir.^ 
 AVhen n )tiee of the assignment is required to be given by the 
 assignee to the debtor, an actual notice is not necessary. Any 
 notice which would put a reasonable man on inquiry is suffl- 
 cient.3 One who sues as assignee can not maintain his title by 
 proof of an assignment made after suit brought.* But a neg- 
 lect to record an assignment within the statutory period fixed 
 therefor, in cases where an assignment must be recorded, does not 
 make it fraudulent.^ 
 § 350. By Assignee, where Plaintiff is Trustee. 
 
 Form No. 71. 
 [Title.] 
 The plaintiff complains, as assignee, for the benefit of [state 
 
 whom] , and alleges : 
 
 I. [State a cause of action accrued to the assignor.] 
 
 II. That on the day of , 18..., the said C. D. 
 
 assigned all his prbperty, including the said claim, to the plaint- 
 iff, intrust, for the purpose of [state the purpose]. 
 
 [Demand op Judgment.] 
 
 § 351. Who are Trustees, and when may Sue Alone. 
 
 The provisions of the various codes provide in effect, aitliough 
 there is some slight difference in their language, that ' ' an ex- 
 ecutor, or administrator, or trustee of an ~ express trust, or a 
 person expressly authorized by statute, may sue without joining 
 with him the persons for whose benefit the action is prosecuted. 
 A person with whom, or in whose name, a contract is made for 
 the benefit of another, is a trustee of an express trust within 
 the meaning of this section."^ In order to entitle a trustee to 
 sue alone, it is necessary that the trust should be express, that 
 is, a trust created by the direct and positive act of the parties, 
 by some writing, deed, or will, or by the proceedings of a court.'' 
 
 1 Harris V. Burwell, 65 N. C. 584; aec. 5; Dak., sec. 66; Fla., sec. 64; 
 Lpavenson v. Lafontane, 3 Kans. Idaho, sec. 6 ; Ind., sec. 4 ; Iowa, sec. 
 623 ; Norton v. Foster, 12 Id. 44. 2544 ; Kan., sec. 28 ; Kv., sec. 38 ; Minn., 
 
 2 Barlow v. Myers, 6 N. Y. Sup. sec. 28; Mon.,sec 6; i^ev., see. 6; N. 
 Ct. 183. Y., seo. 449 ; N. C, sec. 67 ; Neb., sec. 
 
 « Wilkins V. Batterman, 4 Barb. 47 ; 80 ; Ohio, sec. 27 ; Or., sec. 29 ; S. C, 
 Williamson V. Brown, 15 N. Y. 854. sec. 139; Wash., sec. 4; Wy., sec. 34; 
 
 * Garrigue v. Loescher, 3 Bosw. Wis., c. 122, sec. 14. 
 
 578. ' Considerant v. Brisbane, 22 N. Y. 
 
 * Denzer v. Mundv, B Rob. 636 889. 
 
 * Ariz., sec. ; Gal., sh.c. 369 ; Col. 
 
§ 352. ASSIGNEES AND DEVISEES. 191 
 
 Among such trustees which have been permitted to sue alone, 
 without joining the person for whose benefit the action is pros- 
 ecuted, have been included: assignees for the benefit of cred- 
 itors ;i one who holds a security which is to be collected and 
 applied to the payment of a debt due by himself f the assignee 
 of a stock subsc'xiption -^ the president or treasurer of an in- 
 corporate association ;■* or the nominal proprietor of an indi- 
 vidual bank ;5 trustees for the separate use of married women \^ 
 trustee to whom personal property is conveyed for the use of a 
 husband and wife for life, with remainder to their children, in 
 an action to recover the wrongful conversion of the property 
 during the life-time of the parents ;'' a receiver appointed in an- 
 other state ;^ a grantee of lands in trust, in actions for the pos- 
 session or to recover damages for trespass. ^ In California, the 
 priest who appears to have charge of church property is the 
 proper party plaintiff in all actions concerning it. This would 
 appear, however, to depend entirely upon the fact of in whom 
 the title stands, and whether the society is incorporated, and 
 how incorporated.!" 
 
 § 352. Persons with Whom or in whose Name a Con- 
 tract is Made for the benefit of another, although not neces- 
 sarily trustees of an express trust, are made so by the statute, 
 and may maintain an action in their own name. The circum- 
 stances under which this rule is generally applied are, where an 
 agent enters into a contract in his own name, and the promise 
 is made directly to him, and not to the principal. In such case 
 the agent is permitted to sue alone, although of course an ac- 
 tion might also be maintained in the name of the principal. 
 And it makes no difference as to the agent's right to maintain 
 the action, whether the principal was known or disclosed at the 
 time of the contract or not.^ As illustrations of all kinds of 
 
 1 Mellen v. Hamilton F. Ins. Co., 5 « Reed v. Harris, 7 Eobt. 151. 
 
 Duer, 101 ; Kyerss v. Farwell, 9 Barb. ' Gribbens v. Gentry, 20 Mo. 468 ; see 
 
 615; Lewis v. Graham, 4 Abb. Pr. also Richardson v. Means, 22 Mo. 495. 
 
 106: Fletcher v. Derricljson, 3 Bosw. « Runk v. St John, 29 Barb. 585; 
 
 181 ; St. Anthony's Mill Co. v. Van- Lathrop v. Knapp, 37 Wis. 307 ; Gar- 
 
 dall, 1 Minn. 246; Foster v. Brown, ner v. Kent, 70 Ind. 428; Hope Life 
 
 65 Ind. 234 ; McClain v. Weidenmeyer, Ins. Co. v. Taylor, 2 Eobt. 278. 
 
 25 Mo. 364; Cummins v. Barkalow, 4 'Goodrich v. Milwaukee 24 Wis. 
 
 Keyes, 514. 422; Boardman v. Beckwith, ISIowa, 
 
 s'Gardinierv. Kellogg, 14 Wis. 605; 292; Holden v. N. Y. & Brie Bank. 
 
 Davidson v. Elms, 67 N. C. 228 ; 72 N. Y. 286 ; Tyler v. Granger, 48 
 
 Moorehead v. Hyde, 88 Iowa, 382 ; Cal. 259 ; MoKinnon v. McKinnon, 81 
 
 Thompson v. Toland, 48 Cal. 99 ; N. C. 201. 
 
 Clark V. Titcomb. 42 Barb. 122. i" Santillan v. Moses. 1 Cal. 92. 
 
 8 Kimball v. Spicer, 12 Wis. 668. i' Morgan v. Reed, 7 Abb. Pr. 215 ; 
 
 * Tibbetts v. Blood, 21 Barb. 650. St. John v. Griffith, 2 Id. 198 ; Erick- 
 
 6 Burbank v. Beach, 15 Barb. 326. son v. Corapton, 6 How. Pr. 471 ; Con. 
 
192 ' POEMS OP COMPLAINTS. § 353. 
 
 ao-ents who are thus iiermitted to maintain an action in their 
 own name, may be mentioned, ordinary mercantile factors, who 
 transact business in their own name ;i an auctioneer ;2 the 
 manao-ing owner of a vessel;^ a contractor for the benefit of 
 third parties ;* the outgoing trustees of an association ;5 the 
 agent for a foreign principal, or officer of a foreign bank or 
 government ;^ a sheriff, for the purchase price of property sold 
 on execution ;''■ payee of a note, for the benefit of others ;8 the 
 people, where bonds are taken in their name for the benefit of 
 individuals,^ and on the same principle bonds given to superior 
 oificers for the faithful discharge of the duties of the obligor, ^o 
 On the other hand one who is a mere agent, not embraced 
 within the description of the statute, can not prosecute an action 
 in his own name, on a contract made in the name of his principal.^' 
 § 353. Averment of Trustee — Relation. — In an action 
 brought by an express trustee, or by one in whose name a con- 
 tract is made for the benefit of another, the general rule of 
 pleading, that the plaintiff must show title in himself in the 
 capacity in which he sues, prevails. Unless, therefore, the de- 
 scription of the obligation, and the breach thereof, disclose 
 such facts, the complaint must make a positive and issuable 
 averment of the trust or agency.^^ Thus, one who claims as a 
 
 siderant v. Brisbane, 22 N. Y. 389 ; 657 ; Myers v. Maehado, 6 Duer, 678 ; 
 
 Rowland v. Phalen, 1 Bosw. 48 ; Peel v. Elliott, 16 How. Pr. 483 ; Ee- 
 
 Cheltenham Pire-brick Co. v. Cook, pub. of Mex. v. Arrangois, 11 Id. 1. 
 
 44 Mo. 20; Wr-ght V. Tinsley, 30 Id. ' Armstrong v. Vroman, 11 Minn. 
 
 889; Weaver V. Trustees, 28ind. 112; 220; McKeev. Lineberger, 69 N. C. 
 
 Kice V. Savery, 22 Iowa, 470; Win- 217. 
 
 ters V. Bush, 34 Cal. 136 ; Ord v. Mc- « Soantlin v. Allison, 12 JEan. 85 ; 
 
 Kee. 5 Id. 515; Seantlin v. Allison, Ord v. MoKee, 5 Cal. 515. 
 
 12Kans. 85; Noe v. Christie, 51 N. » People v. Norton, 5 Seld. 176; 
 
 y. 270 ; Hubbell v. Medburv, 53 Id. Bos. v. Seaman, 2 C. E. 1 ; People v. 
 
 98 ; Prosb. Soc. v. Beach, 8 Hun, 644 ; Laws, 3 Abb. Pr. 450 ; People v. 
 
 People V. Sloeum, 1 Idaho, 62; Walker, 21 Barb, 630; Hunter v. 
 
 Thompson v. Fargo, 68 N. Y. 479; Commissioners, 10 Ohio St. 515; State 
 
 Grinnell v. Schmidt, 2 Sandf. 706; v. Moore, 19 Mo. 369; Meier v. Lester, 
 
 Union India Rubber Co. v. Tomlinson, 21 Id. 112 ; Shelby Co. v. Simmonds, 
 
 1 E. D. Smith, 364 ; Van Lien v. 83 Iowa, 345 ; Annett v. Kerr, 28 
 
 Byrnes, 1 Hilt. 183 ; Higginsv. Senior, How. Pr. 324; People v. Townsend, 
 
 « M. & W. 834. 37 Barb. 520 ; Baggott v. Boulger, 2 
 
 1 Grinnell v. Schmidt, 2 Sandf. 706. Duer, 160. 
 
 2 Bogart V. O'Regan, 1 E. D. Smith, " Stillwell v. Hurlbert, 18 N. Y. 
 590; Hulse v. Young, 16 .Tohns. 1; 374; Puller v. PuUerton, 14 Barb.59; 
 Minturn v. Maine, 3 Seld. 220 ; Min- People v. Clark, 21 Id. 214 ; People v. 
 turn V. Allen. 3 Sandf. 399. Norton, 9 N. Y. 176. 
 
 3 Ward V. Whitney, 3 Sandf. 399 ; " Swift v. Swift, 46 Cal. 266 ; Rob- 
 Kennedy v. Eilau, 17 Abb. Pr. 73; bins v. Devevill, 20 Wis. 150; Red- 
 Houuhton V. Lynch, 13 Minn. 85. field v. Middleton, 7 Bosw. 649; 
 
 * Rowland v. Phalen, 1 Bosw. 43. Eawlings v. Puller, 81 Ind. 255 ; 
 
 <• Davis V. G-arr, 2 Seld. 124. White v. Chouteau, 10 Barb. 202. 
 » Oonsiderant v. Brisbane, 22 N. Y. i' Freeman v. Fulton Fire Ins. Co., 
 
 389; Habicht v. Pemberton, 4 Sandf. 13 Abb. Pr. 124. 
 
§ 358. ASSIGNEES AND DEVISEES. 193 
 
 substituted trustee under a will, should state all the material 
 facts distinctly in his bill. If the will provides two modes for 
 the appointment of new trustees, he must state in which mode 
 he was appointed.^ 
 
 § 354. Cestui que Trust, when may Sue. — A cestui que 
 trust of an express trust has no right of action until the trust 
 is denied, or some act is done bj' the trustees inconsistent with 
 the trust ; and until then the statute of limitations does not be- 
 gin to run. Thus, when a person takes a title in his own name, 
 at the request of another, who furnishes the consideration, the 
 former has the right to presume that he is to hold it until a de- 
 mand is made upon him for it.^ And where the share of one 
 of several cestuis que trust in a trust fund is ascertained and 
 known, he may maintain a suit for a breach of the trust against 
 the trustees, without joining the other cestuis que trvst.^ 
 
 § 355. Notice of Trust. — Where an assignment is made 
 to one as trustee of a mercantile firm, and he receives from an 
 obligor a deed for land to members of the firm, and the firm 
 «old the land to their successors in business, some of the origi- 
 nal firm being a portion of such successors, the purchasers are 
 chargeable with notice of the trust.'* 
 
 § 356. Trust Deed. — In Nevada, under section 55 of the 
 statute concerning conveyances (Statutes of 1861), a declara- 
 tion of trust as to land must be by deed or conveyance, in 
 -writing, subscribed by the party declaring the same, or by his 
 lawful agent thereunto authorized by writing.^ 
 
 § 357. Who may Assign. — An administrator of an estate 
 in New York may assign a judgment obtained there by an in- 
 testate against one who has since removed to California.* 
 
 § 358. Where Plaintiff is a Devisee. 
 
 Form No. 7£. 
 
 [TlTLB.] 
 
 The plaintiff, as devisee of A. B., deceased, complains, and 
 alleges : 
 
 I. [State cause of action accrued to deceased.] 
 
 II. That the said A. B. was seised of the estate hereinbefore 
 
 mentioned, and that he died on the day of , 18..., 
 
 at , and by his last will devised the same to this 
 
 plaintiff. 
 
 [Demaot) or Judgment.] 
 
 1 Cruder v. Halliday, 11 Paige, 314. * Connelly v. Peck, 6 Cal. 348, 
 
 2 White v. Sheldon, 4 Nev. Rep. 280. ' Slrae v. Howard, 4 Nev. 473. 
 ' Pickering v. De Rochemont, 45 N. " Low v. Burrows, 12 Oal, 181 
 
 H. 67. 
 
 BsTKE, Vol. 1 — 13 
 
194 FOEMS OP COMPLAINTS. § 359. 
 
 § 359. Assets, Allegation of. — Where one of several heirs 
 is sued on his promise to pay the debt of the ancestor, the 
 plaintiff need not allege that the defendant or heirs had assets.* 
 Where the will by construction shows an intention to charge 
 the real estate with the payment of a legacy, it is not necessary 
 to aver in the bill a deficiency of personal assets.* The above 
 form of allegation is suflBcient on demurrer. ^ 
 
 § 360. By an Assignee for the Benefit of Creditors. 
 
 Form No. 73. 
 [Title.] 
 The plaintiff as assignee for the benefit of the creditors of 
 , complains of the defendant, and alleges: 
 
 I. [State a cause of action accrued to the assignor.] 
 
 II. That on the day of , 18 . ., at , 
 
 the said assigned all his property, including the 
 
 said claim, to the plaintiff [in trust for the purpose of paying 
 
 all his debts] . 
 
 [Demand of Jtjdgmbnt.] 
 
 § 361. An Assignee for the Benefit of Creditors is a 
 Trustee of an express trust, and as such he is entitled to sue,'* 
 or to defend an action, without joinder of a beneficiary.* He 
 must allege in his complaint that he sues as such, or the court 
 will not relieve him from payment of costs in case he fails in 
 the action.^ For any other purpose this allegation is unneces- 
 sary, as he is assignee of an express trust, has the entire legal 
 title, and may sue in his own name without referring to his 
 character as assignee.'' But an assignment by a creditor of a 
 portion of a debt does not make the assignee joint owner of the 
 whole, and he is not a necessary party in a suit for its recover- 
 ery.8 
 
 § 362. Assignee in Bankruptcy. — Proceedings in bank- 
 ruptcy do not affect the previously acquired right of an assignee 
 of a chose in action to sue in the bankrupt's name.^ In Con- 
 necticut, the insolvent act of 1853 provides that all the prop- 
 erty of the debtor shall be vested in the trustee, and that the 
 trustee may sue in his own name on all choses in action.*" 
 
 » Bltingv. Vanderlyn,4 Johns. 287. Sells v. Hubbell; 2 Johns. Ch. 394; 
 
 ' Lewis V. Darling, 16 How.U. S. 1. Springer v. Vanderpool, 4 Edw. Ch. 
 
 8 Spier V. Eobinson, 9 How'. Pr. 362 ; Wakeman v. Grover, 4 Paige 
 
 325. Ch. 23 ; Dias v. Bouohaud, 10 Id. 446. 
 
 * I Daniell, 224; Spragg v. Binkea, ^ jtyrray y. Hendriokson, 6 Abb. 
 
 5 Ves. 587 ; De GoUs v. Ward, 8 P. Pr. 96 ; 1 Bosw. 635. 
 Wms. 311; Kaye v. Fosbroke, 8 ' Butterfield v. Maoomber,22 Ho'W. 
 
 Sim. 28; Dyson v. Hornby, 7 De G. Pr. 150. 
 M. & G. 1. 8 Leese v. Sherwood, 21 Cal. 152. 
 
 5 Collet V. Woolaston, 3 Bro. C. C. » Hayes v. Pike, 17 N. H. 564. 
 228 ; Lloyd v. Lander, 5 Mad. 282 ; i" Hart v. Stone, 30 Conn. 94. 
 
, § 365. JOINT TENANTS AND TENANTS IN COMMON. 195 
 
 In an action brought by an assignee in bankruptcy, as the 
 title of the plaintiff does not depend upon the voluntary acts 
 of the parties, a general allegation of assignment is not suffi- 
 cient. The plaintiff must set out the facts in connection with 
 his appointment. Such facts must be alleged in a manner suf- 
 ficient to show that an appointment has been made, and so as 
 to be triable."^ An allegation that the plaintiff was duly ap- 
 pointed on a certain day is insufficient.^ In an action brought 
 by a receiver of a bank, a complaint which showed such fact, 
 and that the appointment was made by the supreme court, by 
 an order made upon a certain day, upon filing security, and 
 that such security had been filed was held sufficient.^ In Ohio 
 a similar averment was held good on demurrer, although it 
 could be taken advantage of on motion.* It is irregular, how- 
 ever, to allege that the demand is the property of the assignor, 
 or that the defendant is indebted thereon to the assignor. ^ 
 
 § 363. Who May Assign. — One partner of a firm, sole 
 manager, his copartners being absent at a great distance, may 
 assign the firm property, in trust, for the benefit of creditors, 
 if necessary for their protection. * 
 
 CHAPTER II. 
 
 JOINT TENANTS AND TENANTS IN COMMON. 
 
 § 364. By Joint Tenants and Tenants in Common. 
 
 Form No. 14. 
 [Title.] 
 The plaintiffs complain and allege : 
 
 I. That the property hereinafter mentioned and described is 
 owned in coipmon by the plaintiffs. 
 
 II. [State cause of action. J 
 
 [Demand of Judgment.] 
 § 365. Who are Tenants in Common or Joint Tenants. 
 The rule which prevails in a majority of the states of the Union 
 is, that when two or more persons" succeed by inheritance to the 
 same land, or it is conveyed to them by the same instrument, 
 without express direction to the contrary, their interests are 
 those of tenants in common, and not of joint tenants.'' 
 
 1 White V. Low, 7 Barb. 206. " Palmer v. Smedley, 28 Barb. 468; 
 
 2 Gillet V. Fairchild, 4 Denio, 80 ; S. C, 6 Abb. Pr. 205 ; compare liters 
 White V. Joy, 3 JCern. 83 ; Bangs v. v. Machado, Id. 198 j S. C, 14 How. 
 Mcintosh, 23 Barb. 591. ^I'i^^ „ „ ,„.„ 
 
 s Stewart v. Beebe, 28 Barb. 34. * Forbes v. Scannell, 13 Cal. 242. 
 
 * Schrook v. City of Cleveland, 29 '1 Wash, on Keal Prop. 409, and 
 Ohio St. 499. note. 
 
196 rOKMS OF COMPLAINTS. § 366. 
 
 § 366. Legal Actions by Owners in Common or Joint 
 Owners of Land. — The provisions of the codes of the various 
 states provide that " all persons having an interest in the sub- 
 ject of the action, and in obtaining the relief demanded, may 
 be joined as plaintiffs, except as otherwise provided,''^ and "of 
 the parties to the action, those who are united in interest must 
 be joined as plaintiffs or defendants ; but if the consent of any 
 one who should have been joined as plaintiff can not be ob- 
 tained, he may be made a defendant, the reason thereof being 
 stated in the complaint."^ In the interpretation of these pro- 
 visions in reference to actions brought by tenants in common or 
 joint tenants of land, it has been held that in an action to re- 
 cover an entire rent from the lessee, or from one to whom it has 
 been paid, all the tenants in common may join.^ This, however, 
 is unnecessary, as one may maintain an action to recover his 
 moiety of the rent, although it may be entire.* To recover for 
 torts done to the land, such as nuisances and trespasses, the 
 rule is the same as it was at the common law, and all the ten- 
 ants in common must join.^ And the same rule applies in ac- 
 tions to recover for fraud in the sale of land to several tenants 
 in common.^ 
 
 § 367. Actions to Recover Possession of Land. — In 
 actions to recover the possession of land, all the owners in com- 
 mon may join.'' Or each may sue to recover his undivided 
 share.* Whether, in such action, one tenant in common can 
 recover more than his undivided share, where the entii'e land is 
 
 1 Arizona, see. 12 ; California, sees. * Cruger v. McLaury, 41 N. Y. 219' 
 378,381; Colorado, sec. 11; Dakota, Jones v^ Pelch, 3 Bosw. 63 ; Porter v! 
 sec. 70 ; Florida, sec. 68; Idaho, sec. Bleiler, 17 Barb. 149. 
 
 12; Indiana, sec. 1 7 ; Iowa, sec 2645 : ^Be Puy v. Strong, 37 N. Y. 372; 
 
 Kansas, sec 36; Kentucky, sec 34; Hill v. Gibbs, o Hill, 56; Parke v' 
 
 Montana, sec 12 ; Minnesota, sec — ; Kilham, 8 Cal. 77; Wausau Boom 
 
 Missouri, art. 1, sec 4; Nevada, sec. Co. v. Plumer, 49 Wis. 1]2; Schiffer 
 
 12; New York, sec 446; Nebraska, v. Eau Claire, 6Hd. 385 ; Seymour v. 
 
 sec. 37; North Carolina, sec. 60 ; Ore- Carpenter, Id. 413; Van Deusen v. 
 
 son, sec 380; South Carolina, sec Young, 29 Barb. 9; Samuels v. Blan- 
 
 140; Washington, sec. 8; Wisconsin, chard, 25 Wis. 329 ; Alford v. Dewin 
 
 c. 122, sec 18 ; Wyoming, sec 40. 1 Nev. 207 ; May v. Slade, 24 Tex! 
 
 2 Arizona, sec. 14; California, sec. 205; White v. Brooks, 43 N. H. 402; 
 382; Colorado, sec. 13; Dakota, sec. Bullock v. Hayward, 10 Allen, 460; 
 72; Florida, sec. 40: Idaho, sec. 14 j Mobley v. Bruner, 59 Pa. St. 481. 
 Indiana, sec. 19 ; Iowa, sec 2548 ; Kan- « Lawrence v. Montgomery, 37 Cal 
 sas, sec 37; Kentucky, sec 36; Min- 188; Foster v. Elliott, 33 Iowa, 216. 
 nesota, sec.—; Missouri, art. 1, sec ' Hasbrouck v. Bunce 65 N Y 472- 
 6; Montana, sec. 14; Nevada, sec. 14; Cook v. Wardens of St. Paul's Ch., 5 
 Nebraska, sec 39 ; New York, sec. Hun, 293 ; Cruger v. McLaury 41 
 448; North Carolina, sec 62; Oregon, N. Y. 219; Fisher v. Hall Id 416 
 sec 381; South Carolina, sec 142; ' Morenhautv. Wilson. 52Cal 262- 
 Washington, sec 8; Wisconsin, c Goller v. Fett, 30 Cal. 481 ; Covi'uaud 
 122, sec. 20 ; Wyommg, sec. 42. v. Tanner, 7 Id 88 
 
 4 Marshall v.JiloBeley, 21 N. Y. 280. 
 
§ 368. JOINT TENANTS AND TIlNANTS IN COMMON. 197 
 
 held adversely by the defendant, is a question on which the au- 
 thorities materially differ. In some of the states the recovery of 
 the tenant in common is limited to the amount to which he can 
 show title in himself ; that is, to his own share.^ On the other 
 hand, the rule is equally well settled in other of the states, 
 that one tenant in common can recover possession of the entire 
 premises as against a mere trespasser without joining his co- 
 tenants, either as plaintiffs or defendants.^ The reasons of this 
 rule are that one tenant in common has a right of enjoyment of 
 and possession to the whole of the common property, and 
 although he can not possess in severalty before partition, still 
 each and every one of them has a right to enter upon and occupy 
 tbe whole of the common lands, and every part thereof.^ In 
 most of the states, although their codes permit actions to be 
 brought either by all the tenants in common for the whole of the 
 common property, or by one for his undivided share, they 
 do not permit actions to be brought by more than one and less 
 than all.^ In California, however, a special provision of the 
 code permits any number of joint owners, or owners in common, 
 either to commence or to defend such actions. ^ And the same 
 is so in Missouri and Nevada. ^ The code of California also pro- 
 vides that "any two or more persons claiming any estate or 
 interest in lands, under a common source of title, whether 
 holding as tenants in common, joint tenants, coparceners, or in 
 severalty, may unite in an action against any person claiming 
 an adverse estate or interest therein, for the purpose of deter- 
 mining such adverse claim, or of establishing such common 
 source of title, or of declaring the same to be held in trust, or 
 of removing a cloud upon the same."'' 
 
 § 368. Action by Tenant in Common against Co- 
 tenant. — In an action by a tenant in common against his co- 
 tenant, in the sole possession of the premises, to recover a share of 
 the profits of the estate, a complaint which avers a tenancy in 
 
 1 Mobley v. Bruner, 59 Pa. St. 481 ; ' Tevis v. Hicks, 38 Cal. 234; Car- 
 Jlinke v. McNamee. 30 Md. 294 ; pentier v. Webster, 27 Id. 545. 
 Gray v. Givens, 2(5 Mo. 291 ; Dewey * Fisher v. Hall, 41 N. Y. 416 ; Hub- 
 V. Br(.wn, 2 Pick. 887. bell v. Lerch, 58 Id. 237 ; Hasbrouck 
 
 2 Treat v. Eeilly. 35 Cal. 129 ; Hart v. Bunce. 62 Id. 475 
 
 V. Robertson, 21 Id. 346 : Winthrop ^ Cal. Code Civ. Proc, sec. 384 ; Gol- 
 
 V. Grimes, Wright, 330; Dolph v. ler v. Fett, 30 Cal. 481 ; Touohard v. 
 
 Barney, 5 Or. 191; French v. Ed- Keyes, 21 Id. 202; Eeynolds v. Hos- 
 
 wards, 5 Saw. 266; Le Franc v. mer, 45 Id. 616. 
 
 Kichmond, Id. 601 ; Sharon v. David- « Was;. Stat. 558, sec. 3 ; Comp. 
 
 son. 4 Nev. 416 ; Hibbard v. Foster, Laws Nev. 1873, sec. 1077. 
 
 24Vt. 542; Kobinson v. Roberts, 31 ' California Code of Civ. Proc, sec. 
 
 Conn. 145; Collier v. Corbett, 15 Cal. 381. 
 
 183 ; Stark v. Barrett, 15 Id. 361. 
 
198 F0KM3 OF COMPIiAINTS. § 368. 
 
 common between the parties ; the sole and exclusive possession 
 of the premises by the defendant; the receipt by him of the 
 rents, issues, and profits thereof ; a demand by the plaintiff of 
 an account of the same, and the payment of his share; the de- 
 fendant's refusal ; and that the rents, issues and profits amount 
 to eighty-four thousand dollars, is insufficient to support the ac- 
 tion. The action is a common-law action of account; and, 
 viewed in this light, the complaint should aver that the defend- 
 ant occupied the premises upon an agreement with the plaint- 
 iff, as receiver or bailee of his share of the rents and profits. It 
 is essential to a recovery that it be alleged.^ A tenant in com- 
 mon may maintain a bill in equity against his co-tenant who has 
 exclusively occupied a salt well and works, and a coal mine, the 
 common property, for an account of rents and profits. The 
 defendant, in such case, is liable for " receiving more than 
 comes to his just share or proportion," under Stat. 4 Anne, c. 
 16, sec. 27.2 j^ tenant in common of lands, employed as agent 
 by common agreement between himself and co-tenant, to take 
 charge of the land, make sales thereof at certain prices, receiv- 
 ing a commission of five per cent on sales, may sue his co-ten- 
 ant for services in respect to the land outside of selling it.' 
 Several persons owning a tract of mining claims, as tenants in 
 common, acting under a company name, can not in the name 
 of the company, take or hold the interest of any one or more 
 by forfeiture.* If two are tenants in common of personal prop- 
 erty, and the sheriff, in an action against one of them, attaches 
 his interest in the common property, he may take all the prop- 
 erty into his possession without being guilty of a conversion of 
 the other tenant's share. ^ 
 
 » Pico V. Columbet, 12 Cal. 414. * Wiseman v. McNuHv. 25 Cal.230i 
 
 2 Earley v. Friend, 10 Gratt. 21. Dutch Flat Co. v. Moonev 12 Id. 584. 
 
 ' Thompson v. Salmon, 18 Cal. 632. 6 Veach v. Adams, 51 Cal. 609 
 
§ 371. CORPOllATIONS. 199 
 
 CHAPTER in. 
 
 C0EP0RA.TI0N3. 
 § 369. By a Foreign Corporation. 
 
 Form No. 75, 
 [Title.] 
 
 The Company, Plaintiff, "j 
 
 against V 
 
 John Dob, Defendant, j 
 
 The plaintiff complains, and alleges : 
 
 I. That it is a corporation organized and existing under the 
 laws of the state of Nevada, for the purpose of [here state the 
 purpose], and is- doing business as such in its said corporate 
 name. 
 
 II. [State the cause of action.] 
 
 [Demand of Judgment.] 
 
 § 370. Existence of Foreign and Domestic Corpora- 
 tions. — Although a corporate body may carry on business be- 
 yond the territorial limits of the state which created it, it has 
 no corporate existence beyond those limits, ^ and a corporation 
 which owes its existence to the laws of several states must be 
 considered as a domestic corporation in each of such states.^ 
 In the latter case each charter creates a legal entity to be recog- 
 nized within its own state.^ In the case of a foreign corpora- 
 tion its existence is a question of fact, which it has been held 
 is for the jury to determine,* The right of a domestic corpora- 
 tion to act as such cannot be questioned collaterally. ^ And 
 where defendants are alleged to be a corporation doing busi- 
 ness within the state, courts will not presume as a matter of 
 law that it is a foreign corporation. ^ The national banks 
 organized and doing business under the acts of congress are 
 to be regarded as foreign corporations, within the provisions of 
 the code of procedure authorizing actions to be brought and 
 attachments to be issued against corporations.''' 
 
 § 371. Rights and Liabilities of Foreign Corporations. — 
 When a foreign corporation comes by its officers within the juris- 
 
 1 Day V. Newark India Rubber Co., • Lindaur v. Delaware Ins. Co., 13 
 
 1 Blatehf. 628; Bank of Augusta v. Ark. 461. 
 
 Earle, 13 Pet. 588; Ohio & M. R. R. ' Dean v. Davis, 51 Cal. 407. 
 
 Co. V. Wheeler, 1 Black. 283. • Acome v. American Mineral Co., 
 
 * State v. Northern Central Rail- 11 How. Pr. 24. 
 
 way Co., 18 Md. 193; Sprague v. ' Bowen v. First Nat. Bank of 
 
 Hartford etc. R. R. Co., 5 R. I. 233. Medina. 34 How Pr. 408; Cooke v. 
 
 s Ohio & Miss. E.R. Co. v. Wheeler, State Nat. Bank of Boston, 3 Abb. 
 
 1 Black. 286. Pr., N. S., 339. 
 
200 FOKHS OP COMPLAINTS. § 372. 
 
 diction of another state to engage in business, it becomes amen- 
 able to the laws of the latter state, and can not escape the conse- 
 quences of its illegal acts by setting up its existence under a for- 
 eiofn government. 1 Such corporations are deemed " persons," 
 within the meaning of the statute relating to taxation, unless a 
 different intent is indicated in the statute.^ 
 
 In New York one foreign corporation may sue another in the 
 courts of that state, upon a cause of action arising in it. 3 But 
 a complaint against a foreign corporation must either allege 
 that the plaintiffs are residents of that state, or that the cause 
 of action arose, or the suject of the action is situ ated, within 
 the state. If such allegations are omitted, the complaint msiy 
 be dismissed on motion.* A corporation created by the laws of 
 one state, and composed entirely of citizens of that state, is 
 not entitled to all the privileges and immunities of citizens of 
 another state in which it may be engaged in business. ^ Nor is 
 it entitled to privileges which by the statutes of the latter are 
 confined to corporations created by the laws of that state. ^ 
 Nor does the provision of the United States constitution, guar- 
 anteeing to citizens of each state all the privileges and im- 
 munities of citizens in the several states, prevent a state from 
 regulating or restricting the business of a corporation created 
 by the laws of another state, and imposing terms on its right 
 to carry on business withiQ its boundaries.'' In a recent case in 
 the court of appeals of New York, the nature and extent of 
 state jurisdiction, and the duty of the comity which one state 
 owes to foreign states, were considered and explained. ^ 
 
 § 372. By or against a Domsstic Corporation. 
 
 Form No. 76. 
 
 [TlTLK.] 
 
 The plaintiff complains, and alleges : 
 
 I. That it is a corporation organized and existing under the 
 laws of this state, and as such doing business in its corporate 
 
 » Austin V. N. T. & Erie E. R. Co., Ducat v. Chicago, 10 Id. 410; Liver- 
 
 1 Dutch. 381; People V. Cent. R. R. pool Ins. Co. v. Ma*sach usetU, Id. 
 
 Co. of N. J., 48 Barb. 478 ; Warren 567 ; Ins. Co. v. Morse, 20 Id. 457 : 
 
 Mfg. Co. V. ^tna Ins. Co., 2 Paine, Louisiana v. Lathrop, 10 La Ann 
 
 ^'^K.,., „ T-. T ^ 398; Doyle v. Continental Ins. Co., 
 
 2 British Comm. Life Ins. Co. v. 94 U. S. 540; Lamb v. Lamb, 6 Biss. 
 
 Com'rs of Taxes, 28 How. Pr. 41. 420; HofiFman v. Banks, 41 Ind. 1- 
 
 a Bank of Commerce v. Rutland & Rising Sun Ins. Co. v. Slaughter, 20 
 
 Wash. K. R. Co., 10 How. Pr. 1. Id. 520; Wash. Co. M Ins! Co. v. 
 
 'House V.Cooper, 16 How. Pr. 292. Hasting, 84 Mass. 398; Williams v. 
 
 Bank of Augusta v. Earle, 13 Pet. Cheney, 74 Id. 206 ; Ins. Co. v. N. 0., 
 
 «V i>i u .. T. , „ 1 Woods, 89; Ex parte Robinson, 12 
 
 rl-^nl^ "' ^anl^attan Bank, 20 Nev.263; Ex parte Cohn, 13 Id. 424. 
 
 "?'°'283. .. « Merrick V. Van Santvoord, 34 N. 
 
 ' Paul V. Virginia, 9 Wall. 168 ; Y. 208. 
 
§ 373. CORPORATIONS. 201 
 
 name of [insert name of corporation] , [or that tlie defendant is 
 a corporation created by and existing under the laws of this 
 state] . 
 
 II. [State cause of action, etc.] 
 
 [Demand of Judgment.] 
 
 § 373. Allegation of C jrporate Existence. — In the com- 
 mon-law system of pleading, in an action brought by a corpora- 
 tion, the rule was established by the weight of authority, that 
 the declaration need not contain an allegation of corporate 
 existence, although the plaintiff is not such a corporation that 
 its existence will be judicially taken cognizance of.i Under 
 such system the defendant might join issue on the fact of the 
 plaintiff's corporate capacity, so as to compel it to give evi- 
 dence thereof. How such issue was joined differed in the several 
 ■ states. In England, and in ma;iy of the states, pleading the 
 general issue wassufBcient.^ On the contrary, other states estab- 
 lished the rule that by pleading the general issue, the plaintiff's 
 corporate capacity was admitted, and if the defendant wished to 
 raise an issue to such fact it must be by a plea in abatement or a 
 plea in bar.''' 
 
 In those states which have adopted codes of procedure, the 
 question whether or not a corporation must allege its corporate 
 existence, iti an action brought by it, has been answered in so 
 many ways that it is difficult, if not impossible, to reconcile 
 the decisions. Some of the states have made special enactments 
 which cover this question. Thus the code of Iowa provides 
 that " a plaintiff, suing as a corporation, partnership, executor, 
 guardian, or in any other way implying corporate, partnership 
 representative, or other than individual capacity, need not state 
 
 1 Aug. & Ames on Corp., sec. 632, Adams Express Co. v. Hill, 43 Ind. 
 
 (n) 2 ; Harris v. Muskingum Mfg. Co., 157. 
 
 4 Blackf. 2B7 ; Beiinin<;ton Iron Co. v. ^ Rees v. Conooooheague Bank, 5 
 
 Rutherford, 18 N. J.L. 107; Rees v. Rand. 326; Hargrave v. Bank of Illi- 
 
 Conoooeheague Bank, 5 Rand. 326; nois, Breese, 122; Jones v. Bank of 
 
 Richardson v. St, Joseph Iron Co., 5 Illinois, Id. 124; Lewis v. Bank of 
 
 Blackf. 146 ; Zion Church v. St. Peter's Ky., 12 Ohio, 132 ; Henriques v. Dutch 
 
 Church, 5 Watts & S. 215; Union West India Co., 2 Ld. Raym. 1535; 
 
 Mut. Ins. Co. V. Osgood, 1 Duer. 707 ; Jackson v. Plumbe, 8 Johns. 378 ; 
 
 Kennedy V. Cotton, 28 ' Barb. 59 ; La Dutchess Mfg. Co. v. Davis, 14 Id. 
 
 Fayette "Ins. Co. v. Rogers, 30 Id. 491 ; 215 ; Bank of Auburn v. Weed, 19 Id. 
 
 Phoenix Bank v. Donnell, 41 Id. 571 ; 803; McDonald v. Neilson, 2 Cow. 
 
 Frye v. Bank of Illinois, 10 111. 332; 139. 
 
 Heasten v. Cincinnati etc. R. R.. 16 ' Society etc. v. Pawlet, 4 Pet. 480 ; 
 
 Ind. 275; German Ref. Ch. v. Von Zion Church v. St. Peter's Church, 5 
 
 Puechelsteln, 27 N. J. Eq. 30 ; Gil- "Watts & S. 215 ; Christian Society v. 
 
 lett V. American etc. Ware Co., 29 Macomber, 3 Mete. 235; School Di.=- 
 
 Gratt. 665 ; Odd Fellows' Bid. Assoc, trict v. Blaisdell, 6 N. H. 197 ; Lang- 
 
 V Hogan, 28 Ark. 261 ; Wilson v. don v. Potter, 11 Alass. 313 ; Boston 
 
 Sprague M. M. Co., 55 Ga. 672 ; Type Foundry v. Spooner, 5 Vt. 93. 
 
202 rOEMS OP COMPLAINTS, § 373. 
 
 the facts constituting such capacity or relation, but may aver 
 o-enerally, or as a legal conclusion, such capacity or relation; 
 and when defendant is held in such capacity or relation, a 
 plaintiff may aver such capacity or relation in the same general 
 way."i In Minnesota it is provided, that " in actions by or 
 against corporations created by or under the law s of this state, 
 it is sufficient to refer in the complaint or answer, to the act of 
 incorporation, or the proceeding by which such corporation was 
 created." In that state it has been held, that where the statute 
 creating the corporation requires certain acts to be do ne before 
 it can be considered in esse, the complaint must show that 
 sach acts have been done.'^ In California, the allegation that 
 the plaintiff is a corporation, organized and existin g under the 
 laws of the state, has been held on demurrer, a sufficient alle- 
 gation of the plaintiff's corporate capacity. ^ And the same 
 allegation has been held sufficient in Iowa under the statute ; * 
 and in Minnesota.^ In Kansas the common-law rule seems to 
 have been adopted, and no allegation that the plaintiff is a cor- 
 poration is essential.^ And the same is true in Indiana.' In 
 Wisconsin it is provided by statute, that the plaintiff need not 
 prove its corporate existence, unless it has be en specially de- 
 nied, and that the allegation thereof miy be made by reference 
 to the title of the act of incorporation. And tliis rule applies 
 to foreign as well as to domestic corporations.^ In New Yorls:, 
 in suits by a domestic corporation, it is not necessary to allege 
 the plaintiff's incorporation, because by the provisions of the 
 revised statutes, which have been held to be in force notwith- 
 standing the enactment of the code of procedure, proof of such 
 incorporation was not necessary, unless the defendant specially 
 denied it.* In the case of a foreign corporation, however, there 
 
 1 Code, 1873, sec. 2716 ; Code Proc, Cross, 18 Id. 109. In this latter case 
 
 sen. 98. it was held that in an action by a for- 
 
 " St. Paul Division No. 1 v. Brown, eign insurance company to recover 
 
 9 Minn. 157. money loaned, it is not necessary to set 
 
 3 California Steam Nav. Co. v. out in the complainfin A(ec ueria that 
 
 Wright, 6 Cal. 258. portion of the plaintiff's charter which 
 
 * Koot V. Illinois Cent E. E., 29 confers the power to loan money, 
 
 lowrt, 102 ; Savings Bank v. Horn, 41 ' Shoe & Leather Bank v. Brown, 
 
 Id. 55. 9 Abb. Pr. 218 ; Phcenix Bank v. Don- 
 
 5 Broome v. Galena etc. Packet Co., nell, 40 N. Y. 410 ; Fulton Fire Ins. 
 
 9 Minn. 239; Dodge v. Minnesota Co. v. Baldwin, 37 Id. 648; Union 
 
 Plastic etc. Co., 14 Id. 49. Marine Ins. Co. v. Osgood, 1 Duer, 
 
 « Eyan v. Farmers' Bank, 6 Kan. 707 ; Canandarqua Academy y. Mc- 
 
 658 ; Campbell y. Blanke, 13 Id.. 62. Kechnie, 19 Hun, 62; Acome y. 
 
 ' O'Donald y. Evansville etc. E. E. American Min. Co., 11 How. Pr. 24; 
 
 Co., 14 Ind. 259. Lighte v. Everett Fire Ins. Co., 5 
 
 ^E. S., c. 148, sees. 3, 11 ; Farmers' Bosw. 716; La Fayette Ins. Co. y. 
 
 Loan etc. Co. y. Fisher, 17 Wis. 114; Rogers, 30 Barb. 491; Elizabethport 
 
 Connecticut Mut. Life Ins. Co. v. Mfg. Co. v. Campbell, 18 Abb. Pr. 86. 
 
§ 374. C0KP0KA.T10NS. ' 203 
 
 is no such statute applicable, and its existence must be alleged, 
 and proved on the trial.^ It is not necessary , however, to set 
 forth the specific powers of the corporation to enter into the 
 transaction under which the cause of action arose.* But where 
 an officer of a foreign corporation sues his in own name on be- 
 half of his company, his complaint must state facts showing 
 his authority to sue on their behalf. Merely alleging authority 
 is not enough. 3 And. whenever it is necessary to aver the exist- 
 ence of a corporation, it may be done by referring to the title 
 of the act incorporating it, and the date of its passage. The 
 substance thereof need not be set forth.* Wbere the original 
 act is referred to in the complaint, a vague reference to other 
 general statutes affecting it does not render the complaint de- 
 murrable ;5 but the title of the act must be set forth with ac- 
 ■curacy.^ 
 
 § 374. Collateral Attack on Corporate Existence. — 
 Where the plaintiff enters into a contract with a defendant, by 
 a corporate name, and afterwards sues it as such corporation, 
 the general rule established by the weight of authority is, that 
 the defendant is estopped to deny its corporate existence.''' The 
 civil code of California, which provides a general law for the 
 formation of corporations, has enacted that "if a corporation 
 does not organize and com nenoe the transaction of its business 
 or the construction of its woi'ks within one year from the date 
 of its incorporation, its corporate powers cease. The due in- 
 corporation of any company, claiming in good faith to be a 
 corporation under this part, and doing business as such, or its 
 
 1 Waterville Mfg. Co. v. Brynn, 14 ^ Sun Mut. Ins. Oo. v. Dwiglit, 1 
 Barb. 182 ; Connecticut Bank v Smith, Hilt. 50. 
 
 ■9 Abb. Pr. 175; Myers y. MHchiido, * Union B:ink v. Dewey, 1 Sandf. 
 
 1 4 How. Pr. 149 ; Loaners' Bank v. 509. For lorin of averment, see New 
 
 Jacobv, 10 Hun, 143. York Floating Derrick Co. v. New 
 
 2 jje'formed Dulch Church v. Vee- Jersey Oil Co., 3 Duer, 648. 
 
 der, 4 Wend. 494; Struver v. Ocean ' National Ins. Co. v. Bowman, 60 
 
 Ins. Co., 9 Abb. Pr. 23; Perkins v. Mo. 252; Farmers' etc. Ins. Co. v. 
 
 Church, 31 Barb. 84; Marine etc. Bank Needles, 52 Id. 17; Congregational 
 
 V. .Jauneey, 1 Id. 486. Compare, how- Soc. v. Perry, 6 N. H. 164 ; Henriques 
 
 •ever, Camden etc. Co. v. Eemer, 4 Id. v. Dutch West India Co., 2 Ld. 
 
 127; Bard V. Chamberlain, 3 Sandf. Eaym. 1-535; People v. Ravenswood 
 
 Ch. 31, where it is said that the power Turnpike Co., 20 IBarb. 518 ; Connec- 
 
 of a foreign corporation to make the ticut Bank v. Smith, 17 How. Pr. 
 
 contract which is sought to be enforced 487 ; All Saints' Church v. Lovett, 1 
 
 must be set-forth. Hall, 213; Ryan v. Vanlandingham, 
 
 SMeyers v. Machado, 6 Abb. Pr, 7Ind. 416; Brookville etc. Turnpike 
 
 198. Co,v. McCarty, 8 Id. 392; Tar River 
 
 * California Code Civ. Proc, sec. Nav. Co. v. Neal, 3 Hawks, 620 ; 
 
 459 ; New York Code, sec. 163; United Worchester Med. Inst- v. Harding, 1 1 
 
 States Bank V. Haskins, 1 Johns. Cas. Cush. 285; but see contra, Welland 
 
 132. Canal Co. v. Hathaway, 8 Wend. 480. 
 
204 
 
 FOEMS OF COMPLAINTS. 
 
 § 375. 
 
 right to exercise corporate powers, shall not be inquired into, 
 collateral!}', in any private suit to which such de facto corpora- 
 tion may be a party, but such inquiry may be had at the suit of 
 the state on information of the attorney-general, "i The gen- 
 eral rule thus reduced to statutory form in California has been 
 adopted In many of the states, and may be considered as the 
 correct statement of the law on this subject.^ 
 
 § 375. Incorporation Inferred and how Proved. — Where, 
 in an action brought against the directors of a corporation, 
 facts are stated in the complaint which shows that the defend- 
 ants became a body corporate, no special averment to that effect 
 
 1 California Civil Cooe, sec. 358. 
 
 ' Oroville, etc., E. R. Co. v. Plumas 
 County, 37 Cal. 355; Dannebroge Min- 
 ing Co. V. Ailment, 26 Id. 286 ; Stock- 
 ton etc. Road Co. t. Stockton etc. E. 
 E. Co., 45 Id. 680 ; Bakersfleld T. H. 
 Assn. V. Chester, 55 Id. 98; Hughes 
 V. Bank of Somerset, 5 Litt. 45; 
 Searsburg Turnpike Co. v. Cutler, 6 
 Vt. 315; Tar Eiver Nav. Co. v. Neal, 
 3 Hawks, 520 ; Palmer v. Lawrence, 
 3 Sandf. 161 ; Brookville etc. Turn- 
 pike Co. V. McCarty, 8 Ind. 392 ; John 
 V. Farmers' Biiiik, 2 Blackf. 367; 
 Trumbull Mut. F, Ins. Co. v. Honer, 
 17 Ohio, 407; Rice v.Rocklaland etc 
 E. R. Co., 21 111. 93 ; Tarball v. Page, 
 24 111. 46. In Oroville etc. E. E. v. 
 Plumas County, supra, in construing 
 the section of the California code 
 above cited, the court said: "This 
 provision does not go to the extent of 
 precluding a private person from 
 denying the existence de jure or dfC 
 facto of an alleged corporation. It 
 can not be true that the mere allega- 
 tion that a party is a corporation puts 
 the question whether it is such a cor- 
 poration beyond the reach of inquiry 
 in a suit with a private person. It 
 must be a corporation either de jure 
 or de facto, or it has no legal capacity 
 to sue or be sued, nor any capacity of 
 any kind. It is an indispensable al- 
 legation in an action brought by a 
 corporation, that the plaintift' is a 
 corporation ; and it results from the 
 logic of pleading thMt the opposite 
 party may deny the allegation. * * * 
 It is not contemplated that the alle- 
 gation that the company was duly 
 organized should put the fact beyoni 
 dispute and dispense with all 'evi- 
 dence. The statute furnishes a rule 
 of evidence. It is declared that the 
 due incorporation of any company 
 
 shall not be inquired into collaterally 
 in any private suit, etc., in a certain 
 case; that is, when the company 
 claims in good faith to be a corpora- 
 tion under the laws of the state, and 
 is doing business as such corporation. 
 The alleged corporation must claim in 
 good faith that it is such a corpora- 
 tion; and then its due incorporation 
 can not be inquired into collaterally. 
 To say that the ' due incorporation ' 
 can not be inquired into collaterally, 
 does not mean that no inquiry can be 
 made as to whether it iaa corporation. 
 Many of the acts required to be per- 
 formed in order to make a complete 
 organization of the corporation may 
 have been irregularly performed, or 
 some of them may have been entirely 
 omitted, and the rule of the statute 
 is, that such irregular or defectivp 
 performance shall not defeat the ir 
 corporation when drawn in question 
 colliiterally. The omission of the 
 names and number of the first trustees 
 from the articles of association, the 
 failure to file a duplicate of the arti- 
 cles of association with the secretary 
 of state, an incorrect statement of the 
 length of the road, and omission of 
 the statement of the principal place 
 of business, and many other irreg- 
 ularities of the kind mentioned in 
 Spring Valley Water Works v. San 
 Francisco, 22 Cal. 440, the insufiS- 
 cient acknowledgment of the articles 
 of incorporation (Dannebroge Mining 
 Company V. Aliment, 26 Id. 286), are 
 irregularities that will not defeat thft 
 corporation when its organization is 
 collaterally called in question. A 
 substantial compliance with the re- 
 quirements of the statute will be sufB- 
 cienttoshow a corporation dejurc in 
 an action between the corporation and 
 a private person." 
 
§ 376. COEPOBATIONS. 206 
 
 is necessary. The fact of incorporation is, then, an inference 
 of law.^ Proof of the fact of corporation may be made by 
 evidence of the charter or general act, or by organization and 
 user.^ 
 
 § 376. Contracts Made for, but not in Name of Corpo- 
 ration, how Alleged. — A corporation is recognized in law by its 
 corporate name, and must sue and be sued by such name, under 
 which it transacts its business. ^ The directors of a corporation 
 are its chosen representatives, and constitute the corporation for 
 all purposes of dealing with others. What they do as the 
 representatives of the corporation, the corporation itself is 
 deemed to do; and the manifested motives and intentions of 
 such directors, when a material fact is in issue, are to be im- 
 puted to the corporation.* As a corporation can contract only 
 through the instrumentality of its chosen representatives, it fol- 
 lows that a corporation is the proper party plaintiff in an action 
 founded on a contract made for its benefit, and the misnomer 
 of a corporation in a grant, obligation, or other written contract 
 does not prevent a recovery thereon by or against the corpora- 
 tion in its true name, provided its identity is sufficiently averred 
 and proved.^ Thus a contract not under seal, signed by the 
 agents of a corporation, and showing upon its face that the 
 agents intended to contract for the corporation, and not for 
 themselves, may be declared upon as the contract of the corpora- 
 tion ;^ and where a deed is made to a corporation, by a name 
 varying from its true name, it may sue in its true name, and 
 aver that the defendants made the deed to them by the name 
 mentioned in the deed; and an allegation that the defendants 
 acknowledged themselves to be bound unto the plaintiffs by the 
 description of, etc., is equivalent to such an averment.'' So, 
 also, an obligation given to the corporation, which is, in terms, 
 l^ayable to its agents or directors, is properly described in de- 
 claring on it, as given to the corporation, by the name and de- 
 scription of the directors, etc.^ In California, in an action on a 
 
 1 Falconer v. Campbell, 2 McLean, Mass. 444 ; Med way Cotton Manuf. 
 
 J95. Co. V. Adams, 10 Mass. 360; Com- 
 
 3 Waterville Manf. Co. v. Bryan, 14 raerolal B'k v. French, 21 Pick. 48B ; 
 
 Barb. 182 ; Stoddwrd ». Onondaga Iiowell v. Morse, 1 Met. 473 ; Chari- 
 
 Annual Conference, 12 Id. 573. table Association v. Baldwin, 1 Met. 
 
 3 Curtiss V. Murry, 26 Cal. 633 ; 859. 
 
 Kiag V. Randlett, 35 Id. 318 ; Buiidy « Many v. Beckman Iron Co., 9 
 
 V. Birdsall, 29 Bnrb. 31. Paige Ch. 188. 
 
 * Mavnard o. Fireman's Fund Ins. ' N. Y. African Society v. Varick, 
 
 Co., 34 Cal. 48. 13 Johns. 88. 
 
 5 Melledge v. Boston Iron Co., 5 ^ Bayley v. Onondaga Ins. Co., 6 
 
 Gush. 158, 176; Minot v. Curtis, 7 Hill. 476. 
 
206 FORMS OF COMPLAINTS, § 377. 
 
 note executed by the defendant, payable to the " board of trus- 
 tees of the Sonoma Academy, or their successors in office," and 
 which specified that " no change in the name, character, or 
 management of the said academy " should affect the liability of 
 the pa.yor, the complaint of the "Cumberland College" was 
 held sufficient, which stated that the plaintiff was a corporation, 
 and the same institution of learning formerly known as the 
 "Sonoma Academy," that the academy was, after its establish- 
 ment, cbanged to "Cumberland College," and that the note 
 was the property of the plaintiff.^ Upon the same principle, in 
 an assumpsit against a bank, an averment that the defendant 
 "promised through its president and cashier," without alleging 
 their authority, is sufficient, as the bank could not have prom- 
 ised except through its agents duly authorized.^ At the com- 
 mon law, the officers of a corporation are not liable personally 
 on a promissory note of the corporation, ^ and are not proper 
 parties defendant to an action on a mere money demand against 
 the corporation, except where statutes authorize suits against 
 them. 4 In certain actions of an equitable character, where the 
 members of a corporation are authorized to bring an action on 
 behalf of the corporation, the complaint must allege that the 
 officers whose duty it is to sue have been requested to institute 
 proceedings for that purpose, and have refused to do so.* 
 Where an obligation is executed to two corporations jointly, 
 they may sue thereon jointly.^ 
 
 § 377. Actions by Individual Banker.— In New York, an 
 individual banker commencing and carrying on business under 
 the general banking act of that state, and the acts amending the 
 same, is a corporation sole ; and as such he may assume a cor- 
 porate name, as well as may an association of several persons. An 
 action by such banker upon a cause of action accruing to him 
 as such,- is properly brought in the corporate name.'' 
 
 § 378. Corporation's Liability for Libel, Slander, and 
 Malicious Prosecution.— In California it is held that a cor- 
 poration has the power to compose and publish a libel, and by 
 reason thereof, when done, becomes liable to an action for dam- 
 ages by the person of and concerning whom the words are com- 
 
 1 Cumberland College v.Ish, 22 Cal. Pr. -361 ; House v. Cooper, 16 How. 
 »Baak of Metropolis v.Guttschlick, fogs'"'' « ^"-"^-y'^ ^q. Jur., sec 
 
 '*» Ha\l v! Crandall, 29 Cal. 567. Mltel'"'"'^'* " ''''"'^''^ °°- "^ 
 
 4 nL^^* J' ^y^^S''™^ Association, 'Bank of Havana v. Wickham, 7 
 ' ?v;Ade'rbilt v. Garrison, 3 Abb. ^^^_%''^-- ^^^^^^^^- S'^n-o.er,' S, 
 
§ 382. COKPOEATIONS. 207 
 
 posed and published.* And on the same principle, in an action 
 for a libel published by a corporation, acting through its direc- 
 tors in the discharge of their office, the malice of the directors 
 is the malice of the corporation.** Conversely a corporation may 
 maintain an action for libel on it as such, for words affecting its 
 business or property, if special damages be alleged and proved. ^ 
 In Missouri, however, it has been held, that an action for mali- 
 cious prosecution, slander, false imprisonment, or assault and bat" 
 tery, can not be maintained against a corporation aggregate, but 
 must be brought against the individuals implicated personally. < 
 
 § 379. Corporate Existence when Commences. — Undei 
 the general laws, and by statute, the word "person," in its 
 legal signification, is intended to include artificial as well as 
 natural persons.^ Under the laws of California, corporations 
 have a legal existence from the date of filing the certificate of 
 incorporation in the office of the county clerk. ^ 
 
 § 380. Verification by a Corporation. — When a corpora- 
 tion is a party, the verification of the pleading may be made by 
 any officer thereof ;'' and in some states by an agent or attorney 
 thereof.^ And this includes municipal as well as private cor- 
 porations. 9 
 
 § 381. Allegation of Residence. — In New York, in an ac- 
 tion against a foreign corporation brought in the supreme court 
 of the city New York, where the complaint states a cause of 
 action of which the court has jurisdiction, it is unnecessary to 
 aver that the plaintiff resides within the city of New York •,^^ or 
 that the defendants transact their business or keep an office 
 within the city.^ 
 
 § 382. Against Corporation Formed under the Act in 
 Relation to Roads and Highways. 
 
 Form No. 77. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 1 Maynard v. F. F. Ins. Co., 34 Cal. ' Califoi-nia Code of Proc, sec. 446; 
 
 •if. N. Y. Code, sec. 157; Ariz. Code of 
 
 * Maynard v. Fireman's Fund Ins. Proc, sec. 55; Idaho, sec. 55; ante. 
 
 Co., 34 Cal. 48 ; Philadelphia etc. R. K. s Oregon Code, sec. 348 ; Or. Dacis. 
 
 Co. V. Quigley, 21 How. (U. S.) 204. 79. 
 
 3 Shoe & Leather Bank v. Thomp- ' Hixon v. George, 18 Kans. 253. i 
 
 son, 18 Abb. Pr. 413. l" Spencer v. Kogers Locomotive 
 
 *Child3 V. Bank of Missouri, 17 Works, 17 Abb. Pr. 110; S. C, 8 
 
 Mo. 213. Bosw. 612. 
 
 ' Douglas V. P. M. S. S. Co., 4 Cal. " Corn Exchange Bank v. Western 
 
 304; Cal. Code of Proc, sec. 17. Transportation Co., 15 Abb. Pr. 319, 
 
 « Mokelumne Hill Min. Co. v. note ; Koenig v. Nott, 2 Hilt. 323 ; 
 
 Woodbury; 14 Cal. .424; Cal. Civil S. C, 8 Abb. Pr. 884. 
 Code, sec. 296. 
 
208 FORMS OF COMPLAINTS. § 383. 
 
 I. That the defendant is a corporation created by and under 
 the laws of this state, organized pursuant to an act of the leg- 
 islature entitled [title of action in full] , passed 18..., 
 
 and the acts amendatory thereof and supplementary thereto. 
 
 II. [State a cause of action].^ 
 
 [Demand of Judgment.] 
 
 § 383. Liability of Directors of Turnpike Company.— 
 
 In California, the directors of a corporation formed for the con- 
 struction of planis: or turnpike roads are not personally liable 
 under the act creating such corporations, on a contract made by 
 them, which, by its terms, binds the corporation, unless the 
 stockholders have adopted bj-^-laws, and the same have been 
 filed in the recorder's office, and the contract is made in viola- 
 tion of the by-laws.'' 
 § 384. By Corporation on Stock Assessments. 
 
 Form No, 78. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That in pursuance of an act of the legislature of the state 
 of California, entitled "an act" [give the title of the act], 
 
 passed , 18..., and of the acts amendatory thereof and 
 
 supplementary thereto, the above-named company was organ- 
 ized and formed into a corporation under the name of the 
 
 Company, and ever since its said organization has had 
 
 its principal office and place of business at the city of 
 
 II. That on the day of , 18.., at , 
 
 defendant and certain other persons, being desirous of associating 
 themselves together for the purpose of constructing a toll road 
 [or state the actual purpose] from the village of R. to the vil- 
 lage of S. in said county, in consideration thereof and of the 
 mutual promises each to the other and of the benefits to be 
 derived from being members of said association, made and sub- 
 scribed a certain agreement in writing, as follows, to wit: 
 
 [Copy subscription paper, with subscribers' names, and add]: 
 and other persons whose names are here omitted. 
 
 III. That the said defendant did, at the time of subscribing 
 said agieeraent, set opposite to his name thereto subscribed the 
 number of ten shares, and that the par value of each share is 
 fifty dollars, and that said defendant agreed to take and pay 
 for the same. 
 
 » The suffieienoy of this form has 390; N. T. Floating Derrick Co. r. 
 been upheld ;n Oswego and Syracuse N. .T. Oil Co., 3 Duer, 64^ 
 1 lank Koad Co. v. Bust, 5 How. Pr. » Hall v. Crandall, 29 Cal. 568. 
 
f 385. C0RP0RATI.0N8. 209 
 
 IV. That afterwards, to wit, on the day of , 
 
 18..., at a regular meeting of the trustees of said company, an 
 assessment of five per cent of the par value of each share of 
 the capital stock of the said corporation was duly levied ; that 
 a,t the time of the levy of such assessment, defendant was a 
 subscriber to the capital stock of said corporation in the amount 
 
 of shares, of the par value of dollars, and 
 
 was the owner of such stock. 
 
 V. That afterwards, etc. [Allege the number of assessments 
 •defendant has failed to pay, each as above. J 
 
 VI. That the defendant had due notice of each of the said 
 assessments, made by the trustees of said company as afore- 
 said, and that the same were duly published in the daily 
 
 , a newspaper printed and published in the city of 
 
 , for at least days, and in every respect according 
 
 to law. 
 
 VII. That the whole sum of dollars is now due 
 
 plaintiff from defendant thereon, and no part thereof has been 
 paid. 
 
 [Demand of Judgment.] 
 § 385. Stockholder's Liability for Assessments, how 
 lEiUforced. — The liability of a stockholder for a valid assess- 
 ment may he enforced hy an action at law, upon his promise, 
 express or implied, to pay the same, although the corporation 
 is authorized to sell the delinquent shares of its stockholders 
 for non-payment of assessments. The remedy of sale given to 
 the corporation, under such circumstances, is merely cumula- 
 tive, and may be waived by the corporation.^ In some of the 
 states, however, the remedy, in the first instance, is by a sale of 
 the stock. It is so held in Massachusetts,* in New Hamp- 
 
 1 Salem & Tenn. E. R. Co. v. Tip- Roekville etc Road v. Maxwell, 2 
 -ton, 5 Ala. 787 ; S. C, 39 Am. Dec. Cranch C. C. 451 ; Del. etc. Canal Co. 
 344; Worcester Turnp. Co. v.Willard, v. Sansom, 1 Binn. 70; Kirksey v. 
 5 Mass. 80 ; S. C, 4 Am. Dec. 39 ; In- Florida etc. Road Co., 7 Pla. 23 ; In- 
 stone V.Frankfort Bridge Co., 2 Bibb, glis v. Great N. R'y Co., 1 Macq. 112; 
 676 ; S. C, 5 Am. Dec. 638 ; Taunton South Bay etc Co. v. Gray, 30 Me. 
 Turnp. Co. V. Whiting, 10 Mass. 327; 547; Mann v. Cooke, 20 Conn. 178; 
 S. C., 6 Am. Dec. 124; Gahan etc. Raymond v. Caton, 24 111. 123; City 
 Turnp. Road v. Hurtin, 9 Johns. 217 ; Hotel v. Dickinson, 6 Gray, 586. 
 S. C, 6 Am. Dec 273; Conn. etc. R. That the justices' courts in California 
 R. Co. V. Bailey, 24 Vt. 465; Troy have jurisdiction over actions to col- 
 ■etc. R. R. Co. V. Ker, 17 Barb. 581 ; lect unpaid assessments, the liability 
 JMortheru R. R. Co. v. Miller, 10 Id. therefore being founded on contract, 
 ■260; East. Plank K. Co. v. Vaughan, see Alpers v. isuperior Court, 3 West 
 20 Id. 155 ; Spear v. Crawford, 14 Coast Rep. — . 
 
 Wend. 20; Troy etc R. R. Co. v. * " Boston etc. R. R. Co. v. Welling- 
 
 McChesney, 21 Id. 296; Dayton v. ton, 113 Mass. 79 ; City Hotel v. Dick- 
 
 Bbrst, 31 N. T. 435; Carlisle v. Ca- inson, 6 Gray, 586; New Bedford etc 
 
 Ittwba etc. E. R. Co., 4 Ala. 70; Co. v. Adaibs.S Mass. 138. 
 
210 FORMS OP COMPLAINTS. § 386. 
 
 shire, ^ and in Maine.* In California it has been decided in a re- 
 cent case, that the stockholders of mining corporations organized 
 under the laws of California incur no liability ex contractu, 
 either express or implied, to pay in, either for the prosecution 
 of the enterprise or the payments of the debts of the company, 
 the nominal par value of their shares ; that unless stockholders 
 of a corporation have subscribed for stock, or are the successors 
 of subscribers, assessments levied on their stock can be en- 
 forced only by the sale of their shares, and that the provisions 
 of the code, defining the personal liability of stockholders, only 
 apply where, from the terms of the stockholder's subscription, 
 such liability was incurred. ^ In such state also, it has been re- 
 cently held that corporations organized and existing under the 
 provisions of the code have authority to levy and collect assess- 
 ments on stock for which the subscription price has been fully 
 paid.'* 
 
 § 386. Averment of Assessments, how Made. — ^In an 
 action to collect an assessment, the complaint must aver a 
 proper assessment, and state how it was ordered, so as to make 
 it conform to the charter and by-laws, or general act under 
 which the corporation was organized. ^ In Pennsylvania, an 
 averment that the assessment was duly made is a sufficient aller 
 gatiou to show that they conformed to the statute. ^ In Ohio 
 however, where the statute provided for a thirty-days notice of 
 the time and place, an averment that the defendant was called 
 upon and duly notified by publication was held insufllcient, as 
 being too general.'' And in this latter state, in proceeding under 
 the provisions of the revised statutes, an allegation is necessary 
 that the directors required subscriptions to be paid in install- 
 ments of a certain amount at a certain time.s Where a corpora- 
 tion becomes insolvent, and ceases to act under its charter, so 
 that the prescribed mode of making assessments can not be 
 complied with, the debt will be considered as due without fur- 
 ther demand.9 But in an action brought by the receiver of an 
 
 qa't^'w ■sQn"'\?- -^I ^°- ^ "^°^!!,'°"' J?^- ^^^' ■^tl"""': etc. Ins. Co. v. 
 30 N. H. 390 ; Piscataqua Ferry Co. v. Young, 38 N. H. 451 
 
 Jones, 39 Id. 491 ; White Mts. R. R. » Bavington v. Pittsburgh etc. R. 
 Co. V. Eastman, 34 Id. 124. R., 34 Pa. St. 358. 
 
 A ^,^Q??^^l^n'°-T?- ^ P°- "'■ ^*"- ' P«""- & O- Canal Co. v. Webb, 9 
 
 dall, 31Me.470; Kennebec etc. E. R. Ohio, 136. ."^uu, » 
 
 Co. V. Jarvis 84 Id. 860. *MC&LMRR.v Hall "'6 
 
 »Inre South Mt. Con. M. Co., 7 OhioSl. 310; Devekdorf v. Beardsley. 
 
 ♦ w„r p T? n = ,, 23 Barb. 656; Williams v.Babcock, 20 
 
 o w ? n ° i'i^- ■^,Vn°cT-„^P''^''^®'=' "• 109; Hurlbut V. Root, 12 How. 
 
 2 West Coast Rep. 752, 883 Pr. 511 ; Williams v. Lakey. 15Id.206. 
 
 'Cxibbart V. Junction R. R., 12 » Henry v.V. & A. R. R. 17 Ohio 1«7 
 
§ 388. COEPOBA.TIONS. 211 
 
 insolvent corporation, to recover on a stock subscription, which 
 provided that after twenty per cent had been paid, the balance 
 should be subject to the call of the directors, as they may be 
 instructed by a majority of the stockholders, the complaint 
 must show, by alleging losses or otherwise, the necessity for an 
 assessment, and a call made on the stockholders.'^ 
 § 387. By a Corporation, on a Stock Subscription. 
 
 Fonn No 79. 
 [Title.] 
 
 The plaintiff complains and alleges : 
 
 I. [Aver incorporation, as in No. 78. j 
 
 II. That in contemplation of the incorporation of these 
 plaintiffs, and for the purpose of constructing, owning, and 
 maintaining the [toll road], then contemplated, the defendant, 
 
 with others, on the day of , 18..., at , became 
 
 a subscriber to the stock of the said company by [severally] 
 signing and delivering an agreement in writing, of which the 
 following is a copy: [Copy subscription paper.] 
 
 III. That, among other persons, the defendant signed and 
 executed said agreement, and set opposite to his name the 
 
 sum of dollars, which he thereby agreed to pay to said 
 
 company. 
 
 IV. That after the defendant had thus subscribed, and on or 
 about the day of , 18 — , he subscribed to the arti- 
 cles of association of said company his name and his place of 
 
 residence, to wit, , and the number of shares of stock 
 
 taken by him, to wit, shares, amounting to 
 
 dollars, the shares of stock being dollars each. 
 
 V. That the plaintiff, by its directors, on the day of 
 
 , 18...., at , tendered to the defendant the 
 
 shares of stock, so subscribed for by him, and demanded the 
 
 defendant to pay thereon the sum of , agreeably to said 
 
 subscription and the pharter and by-laws of the company. 
 
 VI. That the plaintiff has performed all the conditions 
 thereof on its part. 
 
 VII. That the defendant has not paid the said subscription, 
 
 or any part thereof. 
 
 [Demand or Judgment.] 
 
 § 388. Averments in Actions on Stock Subscription. — 
 
 A complaint on a subscription to be paid as assessed must aver 
 a proper assessment.^ Where the general law or charter under 
 
 ^ Chandler v. Keith, 42 Iowa, 99. under the statutes of New York, see 
 
 SQ-ebhartv. Junction B. E. Co., 12 Poughkeepsie Plank Road Co. v.Grif- 
 
 Ind. 484. For a form of complaint fin, 21 Barb. 464; Oiwego&Syr.Plk. 
 
212 POEMS OF COMPLAINTS. § 389. 
 
 which the corporation was organized requires the whole or a 
 certain part of the stock to be subscribed before the corporation 
 can act, a complaint to collect an individual subscription must 
 allege that such conditions have been complied with.^ If there 
 has been a different agreement between the subscribers, this rule 
 does not apply.® In Ohio it has been held sufllcient to aver the 
 due election of directors, as that implies that the requisite amount 
 of stock has been subscribed. ^ Where the subscription was con- 
 ditional, an allegation of the performance of the condition is essen- 
 tial. Under the code, it would seem that an allegation that the 
 plaintiff had performed all the conditions on his part, is suflScient.'* 
 If the action is to recover the entire amount of the subscription, 
 . the complaint should allege a tender of the stock, or a readiness 
 and willingness on the part of the corporation to deliver it to the 
 defendant, where such acts are not conditions precedent. ^ In 
 conformity with the practice of some of the states, the complaint 
 must contain a copy of the subscription paper. ^ The company 
 may assign its right to recover subscriptions,'' but in such case 
 the complaint, in an action by the assignee, must aver the assign- 
 ment. ^ 
 
 § 389. Separate Subscriptions. — ^Where a defendant sub- 
 scribed in his own name for fifty shares of railroad stock, and 
 at the same time subscribed for fifty more, signing his own 
 name again, adding thereto the letters "Exr.," to indicate that 
 he took the additional fifty shares for an estate for which he 
 was executor, it was held that these were separate contracts, 
 upon which separate actions would lie, and that the pendency 
 of an action to enforce payment of the first subscription formed 
 no suflScient ground for abating the action to enforce the sec- 
 ond subscription. 9 And where one guarantees the payment of 
 
 Ed. Co. V Rust, 5 How. Pr. 390; Cal. Code ofProc, sec. 457; Ohio E. 
 
 Dutchess Cotton Mfg. Co. v. Davis, S., sec. 5091. 
 
 14 Johns. 238 ; First Baptist Soc. v. * St. Paul etc. R'y Co. v. Bobbins, 
 
 Rapelee, 16 Wend. *>05; Buffalo etc. 23 Minn. 439; James v. C. H. & D. R. 
 
 R. E. Co. V. Gary, 26 N. Y. 75 ; Wei- R., 2 Disney, 261 ; Minneapolis Har- 
 
 land Canal Co. v. Hathaway, 8 Wend, vester Works v. Libby, 24 Minn. 327. 
 480; S. C, 24 Am. Dec. 51, note 58; « Hudson v. Plank Eoad Co., 4 G. 
 
 „„ •'i''®" ^- Railway, 34 Ohio St. Greene, 152 ; Stockton v. Creager, 51 
 
 «01; fopeka Bridge Co. v.Cummings, Ind. 262; but see VanRiper v. Ameri- 
 
 3 Kan. 5o ; Fry v. Lexington etc. E. can Cent. In^. Co.. 60 Id. 123 
 R., 2 Met. ^K;y.) 314; Livesey v. ' Downie v. Hoover, 12 Wis. 174; 
 
 Omaha Hotel, 5 Neb. 50. James v. C. H. & D. R. E., 2 Dinsey, 
 
 => Emmitt V. Eailroad Co., 31 Ohio 261; Trott v. Sarchett, 10 Ohio St. 
 
 ^a'n^^i.'^fo ^" ^'' ^'^■■^'"S Coal Co., 241 ; M. & C. E. R. v. Elliott, Id. 57. 
 * ?A , I V , . „ ^ , ° Minneapolis Harvester Works v. 
 
 -Ashtabula etc. R. E. v. Smith, 15 Libby, 24 Minn 327 
 Ohio St. 328. 9 ^^ie & N. Y. City E. R. Co. v. 
 
 * Trott V. Sarchett, 10 Ohio St. 241 ; Patrick, 2 Xeyes, 256. 
 
§ 392. CORPORATIONS. 213 
 
 a subscription, the subscriber and the guarantor may be sued 
 in the same action.' A release of the guarantor, however, will 
 not discharge the subscriber, as their liabilities are several.^ 
 
 § 390. Actions by Religious Corporations. — Eeligious 
 corporations may sue for subscription. ^ Trustees of such cor- 
 porations must first establish their right, before they can use 
 the corporate name.'* Before the court can take notice of the 
 regulations of particular religious denominations, or their na- 
 ture or effect, their existence should be properly averred and 
 proved as matter of fact.^ 
 
 § 391. On a SabBcriptiou to the Expense of a Public 
 Object. 
 
 Form No. SO. 
 [Title.] 
 
 The plaintiff complains and alleges: 
 
 I. [Aver incorporation.] 
 
 II. That the plaintiff, in the month of , 18.., was 
 
 erecting a building at , for the purposes of public 
 
 worship. 
 
 III. That the defendants and others requested the plaintiff 
 to complete the same, and for the purpose of enabling the 
 plaintiff to do so, they subscribed and agreed to pay to the 
 
 plaintiff the sum of dollars, in consideration of the 
 
 premises, and of the like subscription and agreement of other 
 persons. 
 
 IV. That upon the faith of said subscription the plaintiff 
 proceeded with the erection of the building, and expended 
 thereon large sums of money, and incurred large liabilities, 
 and completed said building, and otherwise duly performed all 
 the conditions on its part. 
 
 V. That the defendant has not paid said subscription, or any 
 part thereof [except, etc.] 
 
 [Demand of Judgment.] * 
 
 § 392. Consideration for Subscription. — The general rule 
 is settled by a weight of authority, although there are many cases 
 
 1 Neil V. Trustees, 31 Ohio St. 15. donations for an enterprise not ira- 
 
 ' Deming v. Trustee, 81 Ohio St. mediately connected with the church 
 
 corporation, see Rector, etc., of the 
 3 Dansville Seminary v. Welch, 38 Church of the Redeemer v. Craw- 
 Barb. 221. ford, 5 Rob. 100. 
 
 * North Baptist Church v. Parker, * The sufficiency of this form is 
 86 Barb. 171. sustained in Richmondville Union 
 
 * Youngs V. Ransom, 31 Barb. 49. Sem. v. Browncll, 37 Barb. 535 ; 
 As to what parties can maintain an Wayne etc. Institute v. Smith, 36 
 action against a defendant, treasurer Id. 57b ; Ohio Wesleyan Female Col- 
 of a religious corporation, for money lege v. Higgins, Ex'r etc., 16 Ohio 
 received by him as subscriptions and St. 20, 
 
L'14 FORMS OF COMPLAINTS. § 393. 
 
 which seems to hold the contrary doctrine, that merely signing 
 a subscription paper which has been signed by others, for the 
 purpose of raising funds for the accomplishment of a public ob- 
 ject, is not sufficient to render a subscriber liable. The reason 
 of this rule is the want of consideration for the promise. If, 
 however, the subscription paper contains a request to Ahose 
 who represent the object for which the subscription is made to 
 do an act, or incur any expense, or submit to any inconve- 
 nience, and on the strength thereof such act is done, and ex- 
 pense or inconvenience incurred, this request and performance 
 have uniformly been held to be a sufficient consideration to 
 support the promise made in the subscription paper.^ 
 
 § 393. Actions to Recover Subscriptions, by Whom 
 should be Brought. — An action for money due a church on 
 a verbal contract with the trustees should be brought in the 
 name of the corporation, and not in the name of the trustees.^ 
 
 § 394. Against a Municipal Corporation. 
 
 Form No. 81. 
 [Title.] 
 
 A. B., Plaintiff, . 
 
 against y 
 
 Thk County oy , Defendant, j 
 
 The plaintiff complains and alleges : 
 
 I. That the defendant is a municipal corporation, created by 
 the laws of this state. 
 
 II. [State cause of action.] 
 
 III. That on the day of ..........77, at ....'. , the 
 
 plaintiff presented in writing the claim or demand hereinbefore 
 set forth to the board of supervisors of the county of , 
 
 1 Parmington Academy t. Allen, 14 633 ; L'Amoreux v. Gould, S Seld. 349 ; 
 Mass. 172; S. C, 7 Am. Dec. 201 ; Foxoroft Academy v. Favor, 4 Greenl. 
 Phillips' Limerick Academy V. Davis, 382. In Now Hampshire, however, 
 11 Mass. 113; S. C, 6 Am. Dec. 162; the mutual promises of the subscribers 
 Trustees v. Garvey, 53 111. 401 ; Bridge- are held to be a sufficient considera- 
 water Academy v. Gilbert, 2 Piclc. tion: George v. Harris, 4 N. H. 533; 
 579 S.C,, 13 Am. Dec. 457, and note; Society v. Perry, 6 Id. 164; Society 
 McClure v. "Wilson, 43 HI. 356 ; Phila- v. Goddard, 7 Id. 435 ; and the same 
 math College v. Hartless, 6 Or. 158; doctrine is held in California : Chris- 
 Trustees V. Stewart, 1 N. Y. 581 ; tian College v. Hendley, 49 Cal. 847. 
 Howard v. Williams, 2 Pick. 80 ; In this last case it was held that if 
 Barnes v. Ferine, 12 N. Y. 18; Trus- subscriptions in aid of a college are 
 tees V. Garvey, 53 111.401; MoAuley made to a flnanoe oommittee, and 
 V. Billinger, 20 Johns. 89 : Thompson pass by operation of law to a corpo- 
 V. Mercer M. Co., 40 111.379; Ohio ration afterwards formed, the com- 
 Wes. Female College v. Love, 16 Ohio plaint in an action by the corporation 
 St. 20; Troy Academy v. Nelson, 24 to recover a subscription should aver 
 Vt. 189; Gittings V. Mayhpw, 6 Md. that fact. 
 
 113; Phipps V. Jones, 2bPa. St. 260; 2 Bsimeg y_ pgpjng^ g -Q^^y^^ 202; 
 
 "Wilson V. Baptist Ed. Soc, 10 Burb. Leftwickv. Thornton, 18 Iowa, 56. 
 809; Gait's Ex'r v. Swain, 9 Giatt. 
 
I 397. COKPOKATIONS. 215 
 
 for allowance, and that they failed and refused to allow the same 
 or any part thereof. 
 
 IV. That a copy of said claim as presented to the said board 
 of supervisors is hereunto attached and made a part of this 
 complaint. 
 
 V. That the defendant has not paid the same. 
 
 [Dbmand or Judgment.] 
 § 395. Against a County for Temporarily Guarding Jail. 
 
 Fo7in No. 8S. 
 
 [TiTLB OF CotTKT AND CaTJSE.] 
 
 The plaintiff complains, and alleges: 
 
 I. [Allege defendant's corporate existence.] 
 
 II. That the plaintiff performed services for the said defend- 
 ant in guarding the jail of said county, from the day of 
 
 , 18..., to and including the day of , 18 
 
 III. That the sheriff, with the assent, in writing, of the supe- 
 rior judge of said county, employed plaintiff to perform said 
 service as a temporary guard for the protection of the county 
 jail, and for the safe keeping of prisoners, and that said em- 
 ployment was necessary. 
 
 IV. That said sheriff at the time of employing said plaintiff 
 promised plaintiff that the defendant would pay plaintiff for 
 said services what they were reasonably worth, and that said 
 services were reasonably worth the sum of dollars. 
 
 V. [Allege presentation, rejection, and non-payment of claim 
 as in preceding form. J 
 
 VI. [If there are other claims for similar services, performed at 
 different dates, allege them as separate causes of action, j 
 
 [Demand tor Judombnt.] 
 § 396. By a County. 
 
 Farm No. 83. 
 
 [TlTM.] 
 
 The County or \ 
 
 PlainiiflF, f 
 
 against ( 
 
 A. B., Defendant. J 
 
 The plaintiff, a corporation existing by [or under] the laws of 
 this state, complains and alleges : 
 
 I. [State cause of action.] 
 
 [Dkmand or Judgment.] 
 
 § 397. Corporate Character must be Alleged. — ^It is an 
 indispensable allegation, in an action brought by a corporation, 
 
 1 The foregoing form is founded on Mendocino County, 3 West Coast 
 section 1610 of the California Penal Bep. 201. 
 Code, and is sustained in Hughes v. 
 
216 FORMS OP COMPLAIJiirTS. § 398. 
 
 that it is a corporation, and it results from the logic of plead- 
 ing that the opposite party may deny the allegation.^ In an 
 action to charge a defendant as a municipal corporation, in 
 Iowa, it is sufficient to aver that the defendant is a city ; and 
 the same allegation has been held adequate in Ohio.^ Where 
 municipal corporations are divided into certain classes, in pro- 
 portion to population, and it is sought to charge a defendant 
 as belonging to one of such classes, an averment to that effect 
 is necessary. 3 And a complaint against a municipal corpora- 
 tion existing under a new charter and name, for work and labor 
 done for the same town under a former charter and name, must 
 aver that the new incorporation is liable for the debts of the 
 old.4 
 
 § 398. Parties to Actions against Municipal Corpora- 
 tions. — In actions by or against municipal corporations, towns, 
 counties, public boards, and other official bodies, who are the 
 proper parties to bring the action, or against whom it should 
 be brought, depends largely upon the local laws of each state, 
 to which laws and the decisions thereunder reference must 
 be had for the determination of the proper form of action. 
 In California counties are corporations, but not the people 
 thereof, and as such are required to sue or to be sued in the name 
 of the county.^ Thus an action on a recognizance given in a 
 criminal case should be brought in the name of the county.^ 
 So, also, in an action for the recovery of money from a default- 
 
 1 Oroville etc. E. K. Co. v. Plumas tors v. Coe, 40 Id. 103 ; Supervisors v. 
 
 County, 87 Cal. 354. A substantial Hall, 42 Id. 59 ; in Missouri, Lafayette 
 
 compliance with the requirements of Co. v. Hixon, 69 Mo. 581 ; in Indiana, 
 
 the statute will be sufficient to show Vanarsdale v. State, 65 Ind. 176 ; Gar- 
 
 a corporation de jure, in an action be- ner v. Kent, 70 Id. 428 ; in Montana, 
 
 tween It and a private person : Id. Por Comm'rs v. Lineberg, 3 Mont. 31. 
 
 forms of complaints under the New ' Stier v. Osltaloosa, 41 Iowa, 353; 
 
 Yorl£ practice, in actions by or against Mitchell v. Treasurer ot Franklin Co., 
 
 towns, counties, supervisors, and other 25 Ohio St. 143. 
 
 similar public bodies, see Carman v. a Bolton v. Cleveland, 85 Ohio St. 
 
 Mayor, 14 Abb. Pr. 301 ; Doolittle v. 319; the contrary is held in Indiana. 
 
 Supervisors, 18 N. Y. 155 ; Eoosevelt where such fact Is iudicially noticed 
 
 V. Draper, 23 Id. 318 ; Hathaway v. as a matter of history : Stultz f. 
 
 Town of Cincinnatus, 62 Id. 434; State, 65 Ind 492 
 
 J°7V^ '^"V^ V. Marshall, 56 Id. ♦ Lyle v. Common Council of Alex- 
 
 Tj !i,„ m""^ Ci-i'ifo'-d V. Cooley, 58 andria, 1 Cranch C. C. 473; Clear- 
 
 i J I Vt "'"" °^ Chautauqua v. Gif- water v. Meredith, 1 Wall. 25. 
 
 o^x4 v?'in'^^'^^' ^"''^^^'^''"'^^•'^'"''■' °f'al- Pol- Code, sees. 4000-4008; 
 
 ?2 nol* 105; Hagadorn v. Raux, 72 Price v. Sacramento Co., 6 Cal. 254; 
 
 Id. 583; '" Wisconsin Cairns y. People ex rel. Hunt v. Supervisors, 28 
 
 O Bleness, 40 Wis. 469 ; Beaver Dam Id. 431 ; Smith v. Meyers, 15 Id. 33: 
 
 r- K™fK'TlL\^-??^'u^"P^''-,^''°" ^- ^l'"=«'' Co. V. Astin, 8 Id. 805. And 
 
 5^ t/' «si 4 ' ^"^"i?"^ V. Dutcher, the same is true in Nevada : Waitz v. 
 
 ^9 Id. 651 ; Town of Pine Valley v. Ormsby Co., 1 Nev. 370 
 
 Town of Unity 40 Id. 682 ; La Crosse « Mendocino Co. v. Lamar, 80 Cal. 
 
 V. Melrose, 22 Id. 459 ; School Direc- 627. 
 
§ 399. CORPORATIONS. 217 
 
 ing treasurer;^ or to recover money belonging to the general 
 county fund.^ So an action may be maintained in tlie name of 
 the county to recover upon a note payable to the county, to the 
 use of the state school fund.^ For similar reasons the county 
 is the proper party plaintiff to object to a contract made by the 
 board of supervisors for building a jail;* or to conduct proceed- 
 ings by mandamus against county officials.* So, also, boards of 
 supervisors can not be sued in their official character, in ordi- 
 nary common-law actions, for claims against the public, county, 
 or village, without express statutory provision.^ And in an 
 action to enjoin a board of supervisors, when it consists of three 
 members, at least two must be joined as defendants.' But an 
 action to abate a nuisance caused by the obstruction of a public 
 highway must be brought in the name of the road overseer, 
 and not in the name of the county.® In California, actions 
 against counties may be commenced and tried in any county in 
 the ju.dicial district in which such county is situated, unless 
 such actions are between counties, in which case they may be 
 commenced and tried in any county not a party thereto.^ 
 
 § 399. Averment of Demand and Presentation of 
 Claim. — Whenever it is provided by statute that in order to 
 render liable a municipal corporation the plaintiff's demand or 
 claim must be presented to a certain board or official for allow- 
 ance, the complaint must contain an allegation of the facts 
 constituting such presentation, and aver the rejec ion of the 
 demand or claim.^" Unless such facts are alleged, the presenta- 
 tion can not be proved.^ In California it is provided by statute 
 that "the board of supervisors must not hear or consider any 
 claim in favor of an individual against the county, unless an 
 account properly made out, giving all the items of the claim, 
 duly verified as to its correctness, and that the amount claimed 
 
 1 Mendocino Co. v. Morris, 32 Cal. ' Trinity Co. v. McCammon, 25 Cal. 
 145. 119. 
 
 2 Solano Co. v. Neville, 27 Cal. 468 ; » San Benito Co. v. Whitesides, 51 
 Sharp V. Contra Costa Co., 34 Id. 284. Cal. 416. 
 
 3 Barry Co. v. Mc&lothlin, 19 Mo. » Cal. Code of Proc, sec. 394. 
 
 307. " Ernst v. Kunkle, 6 Ohio St. 523 ; 
 
 * Smith v. Myers, 15 Cal. 33. Russell v. Mayor, 1 Daly, 263 ; Ellis- 
 
 6 Calaveras Co. v. IBrockway, 30 sen v. Hallect, 6 Cal. 386 ; McCann 
 
 Cal. 336. In New York, actions v. Sierra County, 7 Id. 128. 
 
 against counties should be brought " City of Atchison v. King, 9 Kan. 
 
 against the supervisors as an official 550. But see Jaquish v. Town of 
 
 board, and not against them Individ- Ithaca, 36 Wis. 108, where it is held 
 
 ually: Wild v. Supervisors, 9 How. that the failure to make such allega- 
 
 Pr. 315 ; People v. Supervisors, 24 Id. gations must be taken advantage of by 
 
 119. the defendant, either by motion for 
 
 ' Hastings v. San Francisco, 18 Cal. nonsuit or otherwise. 
 49. 
 
218 FORMS OF COMPLAINTS. § 400. 
 
 is justly due, is presented to the board within a year after the 
 last item of the account accrued."^ In the construction of 
 this statute it has been held that a substantial compliance 
 therewith is essential to render the county liable after the rejec- 
 tion of the claim ;^ and that the plaintiff must aver all the facts 
 required by the statute in relation to the presentation of his 
 claim, and its rejection by the board- of supervisors. Merely 
 averring that the claim has been duly presented and rejected is 
 not enough. 3 Where, however, a board of supervisors entered 
 into a contract for the erection of a county jail, the work to be 
 paid for in installments, on the certificate of the architect, an 
 account giving the sum total of an installment, without "all 
 the items of a claim," is sufficient.* The necessity of pre- 
 sentation of a claim is not confined to causes of action arising 
 out of contract, but includes cases arising from torts,^ and a 
 money judgment.^ Unless a claim is presented within the time 
 limited, it is barred, and the supervisors have no power tp allow 
 it afterwards ;''' nor has the legislature power to legalize an ille- 
 gal claim, so as to make it binding on the county. ^ After the 
 final action of the board in rejecting a claim, the plaintiff must 
 bring action thereon within six months, or his demand is barred.^ 
 § 400. Instances of Necessary Allegations in Actions 
 l)y or against Municipal Corporations — Authority to En- 
 act By-laws. — The authority to enact may be averred in gen- 
 eral terms. Where a corporation is authorized to pass a by-law 
 if they find it necessary, and they pass it, a declaration on the 
 by-law need not aver the necessity, i" It is sufficient in pleading 
 to aver generally, that a contract sought to be enforced is in 
 
 1 California Pol. Code, sec. 4072. demand before a suit against the cities 
 
 '^ Baboock v. Goodrich, 47 ChI. 488. of Brooltlyn and Buffalo, respectively, 
 
 'Khoda v. Alameda Co., 52 Cal. see Howell v. City of Buffalo, 15 N. 
 
 350. Y. 512 ; Hart v. City of Brooltlyn, 36 
 
 * Babcock v. Goodrich, 47 Cal. 488. Barb. 226. In New fork, a second 
 
 6 Price V. County of Sacramento, 6 demand on the expiration of twenty 
 
 Cal. 254; McCann v. Sierra County, days after the rejection of the claim 
 
 7 Id. 121. is required, and under that practice 
 
 " Alden v. County of Alameda, 43 the foUowina; allegation is essential : 
 
 Cal. 270. That thereafter, on, etc., and after 
 
 ' Carroll V. Siebenthaler, 37 Cal. 193. the expiration of twenty days, he 
 
 8 Uomingos v. County of Sacra- made a second demand in writing, 
 
 raento, 51 Cal. 603. upon the said , for (the ad- 
 
 » California Political Code, sec. justment of the said claim; but the 
 
 4075. No action can be maintained said has hitherto wholly 
 
 Hgainst the City of New York till neglected and refused to make an ad- 
 such claim has been presented to the iusiment or payment thereof: See 
 comptroller: Laws of N. Y , 1860, Abb. Forms, No. 184, and authorities 
 c. 879, sec. 2 ; Russell v. Mayor of there cited. 
 
 N. Y.; 1 Daly, 268. For somewhat '» Stuyvesant v. Mayor etc. of New 
 
 similar statutes as to the neceisiiry York, 7 Cow. 585. 
 
§ 402. COBPOEATIONS. 219 
 
 violation of some municipal ordinance or enactment. When 
 such ordinance or enactment is founded upon a statute, it is 
 not necessary to plead the statute specially.^ 
 
 § 401. Actions on Bonds and Contracts. — In a suit against 
 a municipal corporation on its bonds, where the complaint sets 
 out the bonds ; avers the defendant to be a corporation ; that 
 the corporation made and delivered the bonds on good consid- 
 eration, under an ordinance passed by the proper agents of the 
 corporation, having authority for that purpose, and that de- 
 fendant has failed to pay ; it was held that the complaint shows 
 prima, facie, a liability on the part of the corporation ; and it 
 was not necessary to set out the ordinance, nor the vote, or 
 other proceedings of the corporate agents, or give any further 
 description of the agents of the corporation.^ 
 
 "Where a suit is brought on a contract made by a city, where 
 the laws regulating it require the consent of two-thirds of its 
 electors to validate debts for the borj-ow6d money, such consent 
 need not be averred on the plaintiff's part. If with such sanc- 
 tion the debt would be obligatory, the sanction will, primarily, 
 be presumed. Its non-existence, if it does not exist, is matter 
 of defense, to be shown by the defendant.^ In an action against 
 the city of St. Paul, on a contract for grading streets, it is not 
 necessary to allege that an estimate of the expenses was filed by 
 the commissioner, nor that the contract was made with the low- 
 est bidder.* 
 
 In California, a complaint which alleges that the plaintiff, as 
 a justice of the peace, performed services at the request of the 
 district attorney for the county, in cases wherein the people of 
 the state were plaintiffs, to the amount of thirty-two hundred 
 dollars, and that defendant thereby became and is liable to pay 
 the said sum, does not state facts sufficient to constitute a cause 
 of action against said county.^ A complaint in an action against 
 a county for damages sustained by the location of a public high- 
 way over plaintiff's land, laid out under the act of 1861, fails 
 to state a cause of action unless it avers that the plaintiff had 
 attempted to come tci an agreement with the board of supervis- 
 ors as to the amount of damages sustained, and could not agree 
 with the board as to such amount. ^ 
 
 § 402. Actions for Medical Care of Sick.— A complaint 
 
 1 Beman v. Tugnot, 5 Sandf. 153. * Xash v. St. Paul, 8 Minn. 172. 
 
 * Underhill v. Trustees of the City ^ Miner v. Solano County, 26 Cal. 
 
 of Sonoma, 17 Cal. 172. 115. 
 
 3 Gelpoke v. City of Dubuque, 1 " Lincoln v. Colusa County, 28 Cal. 
 
 Wall. U. S. 221. 662. 
 
220 FORMS OP COMPLAINTS. § 403. 
 
 in an action against a county to recover for medical care and 
 treatment of sick persons fails to state a cause of action if it do 
 not aver that the sick persons treated were indigent persons 
 and residents of the county.^ 
 
 When in an action against a corporation for the value of 
 medical services readered its employees, the petition did not al- 
 lege any promise by the defendant, or any fact by which the 
 law would imply a promise, it was held defective. An allega- 
 tion that the services were rendered at the instance' and request 
 of the agent of the defendant is not an averment that they were 
 rendered at the instance and request of the defendant.* 
 
 § 403. Action for Injury by Negligence. — The person 
 or persons upon whom the law may impose the duty either to 
 repair a defect or to guard the public from an excavation, em- 
 bankment, or grading, and also the oflBcer or officers through 
 whose official neglect such defect continues, are jointly and 
 severally liable for injuries occasioned by their negligence. ^ In- 
 corporated cities are not liable, in California, for injuries sus- 
 tained by private individuals caused by the neglect of the city 
 officers in keeping its streets in repair, unless made so liable by 
 the acts under which they are incorporated ;■* nor for personal 
 injuries caused by the acts of its officers at a public hospital;* 
 nor for injuries to property occasioned by the overflow of water by 
 reason of the abutment of a bridge being wrongfully built by 
 the road overseer in the channel of the stream. ^ In Illinois, if 
 a city, in the exercise of its right to grade highways, creates a 
 stagnant pond on a man's land, close to his house, it is liable 
 in damages.'' 
 
 § 404. Against the Trustees of a Dissolved Coxpora- 
 tion for an Accounting. 
 
 Form No. 84. 
 [Title.] 
 
 The plaintiff, on behalf of himself, as well as of all other 
 creditors of the company who may come in and con- 
 tribute to the expenses of this action, complains and alleges : 
 
 I. That the company was incorporated on the 
 
 I Johnson V. Santa Clara County, 28 mento, 61 Id. 271. In what cases an 
 
 5 w*?i' r. action lies against a village for neglect 
 
 •i Wells V. Pacific Railroad, 35 Mo. to maintain sidewalks, see Harrington 
 
 1»4- , ^ , V. Village of Corning, 61 Barb. 396. 
 
 8 Eustace v. Jahns, 38 Cal. 3. 6 Sherbourne v. Yuba County, 21 
 
 ♦ Winbigler V. City of Los Angeles, Cal. 113. 
 
 ^'^ *-'^|-„^*'J O'Hale V. bacramento, 48 « Crowell v. Sonoma County, 25 Cal. 
 
 Id. 212; Krause v. Sacramento, Id. 313. 
 
 -rV,^'"/'"'JJJ ^- San .Joaquin County, ' Nevins v. City of Peoria, 41 111. 
 
 2l Id. 426 ; Tranter v. City of Sacra- 503. 
 
§ 405. COEPORATIONS. 221 
 
 day of , 18 , under the "act" [title of act] passed 
 
 , 18 , and the acts amending the same. 
 
 II. [State cause of action.] 
 
 III. That on the day of , 18 , the said corpo- 
 ration was dissolved by the judgment of the court on 
 
 that day duly given and made in a certain proceeding in said 
 court then pending, wherein the people of the state of Califor- 
 nia, upon information of the attorney general of said state, was 
 plaintiff, and the said corporation was defendant (or that it was 
 dissolved on its own petition to the county judge, or otherwise, 
 as the case may be). 
 
 IV. That the defendants above named were, at and preceding 
 the date of the dissolution of said corporation, the (trustees, 
 •directors, or managers, etc., according to the fact) of said cor- 
 poration, and upon its said dissolution became the trustees of 
 the creditors (or stockholders) thereof. 
 
 V. That the defendants, as such trustees, have received a 
 large amount of money and other property belonging to the 
 said company, but have refused to pay the claim of the plaintiff. 
 
 "Wherefore, the plaintiff demands judgment. 
 
 1. That the defendants account, under the direction of the 
 court, for the property received by them, as aforesaid. 
 
 2. For the payment to him of dollars, with interest 
 
 from the day of , 18 , and costs, out of the 
 
 funds in possession of the defendants, or which they may col- 
 lect. 
 
 3. That the defendants, without delay proceed to the dis- 
 charge of the trusts devolved upon them in the premises. 
 
 § 405. Dissolution by Surrender by Trustees. — That 
 the trustees have the power to surrender the franchise, after its 
 debts are paid, is a proposition which admits of no doubt ; and if 
 they should do so without having made any disposition of its prop- 
 erty, there being no stockholders or creditors, the personal prop- 
 erty of the corporation would vest in the state. ^ Chancellor Kent 
 says : "The better opinion seems to be that a corporation aggre- 
 gate may surrender, and in that way dissolve itself ; but then the 
 surrender must be accepted by the government, and be made by 
 some solemn act to render it complete."* In Angell & Ames 
 on Corporations (sec. 772), after announcing that some doubt 
 
 i2Kent'sCom. 386; Angell & Ames the State of California v. President 
 
 on Corp;, sec. 196; People v. President and Trustees of the College of Cali- 
 
 and Trustees of the College of Cali- fornia, 38 Cal. 166 ; Sullivan v. Tri- 
 
 Ji.rnia. 38 Cal. 166. unfo M. Co., 39 Id. 459. 
 
 s 2 Kent's Com. 311 ; The People of 
 
222 POKMS OF COMPLAINTS. § 406. 
 
 has existed in England touching the powers of a municipal coi'- 
 poration to surrender its corporate existence, the author con- 
 cludes, that " by far the better opinion is, that where the sur- 
 render is duly made and accepted, it is effectual to dissolve a 
 municipal body. In this country, the power of a private cor. 
 poration to dissolve itself by its own assent seems to be assumed 
 by all judges upon the point."* 
 
 § 406. Trustees, Appointment of, in California. — Upon 
 the dissolution of a corporation, unless other persons are ap- 
 pointed by the legislature, or by a court of competent authority, 
 the directors or managers of the corporation shall be trustees of 
 the creditors and stocijholders.* 
 
 § 407. Powers and Liabilities of Trustees. — In California 
 the trustees or receivers of a dissolved corporation are jointly 
 and severally responsible to the creditors and stockholders to 
 the extent of the property and effects of the corporation in their 
 hands. 3 Such trustees or receivers may sue and recover the 
 debts and property of the dissolved corporation. And where a 
 common-law receiver sues in the name of the corporation, the 
 declaration must aver that the suit is brought by the direction 
 of the receiver.^ So when a receiver is appointed, and the assets 
 are assigned to him, even if the corporation is still in being.^ 
 
 § 408. Against Director of Insurance Company- 
 Grounds of Unlawful Dividends and Transfers of 
 Assets. 
 
 Form No. 85. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That from the day of , 18..., to the 
 
 day of , 18..., the company was a cor- 
 poration existing by virtue of the laws of this state, and author- 
 ized by law to make insurances. 
 
 II. That during the said time the said corporation made 
 
 insurances for plaintiff, in the sum of dollars, on two 
 
 vessels, viz. : dollars on a vessel named the "Brother 
 
 Jonathan," and dollars on a vessel named the " Cen- 
 
 1 The authorities quoted in support Potomac Co., 8 Pet. 281 ; The People 
 
 are : Hampshire v. Franklin, 16 Mass. of the State of California v. President 
 
 86; McLaren V. Pennington, 1 Paige and Trustees of the College ofCali- 
 
 Ch. 107 ; Enfield Toll Bridge Co. v. fornia, 38 Cal. 166. 
 
 Connecticut Railroad Co., 7 Conn. 45 ; * Cal. Civil Code, sec. 400. 
 
 Slee V. Bloom, 19 Johns, 456 ; Canal 8 Oal. Civil Code, sec. 400. 
 
 Co.v.KailroadCo., 4Gill& J. 1; Trus- * Bank of Niagara v. Johnson, 8 
 
 lees, etc., v. Zanesville C. and M. Co., Wend. 645. 
 
 9 Ohio, 203; Penobscot Buom Co. v. s B;ink of Lvons v. Demmon, Hill 
 
 Liimson, 16 Maine, 224; Mumm v. & D. Supp. 398. 
 
§ 409. CORPOKATIONS. 223 
 
 tral America; " both of which vessels became total losses, within 
 the meaning of said policies of insurance, and during the voyages 
 for which such insurances were made. And that the amounts of 
 such insurance have not been paid. 
 
 III. That at a meeting of the board of trustees of said corpo- 
 ration, at which defendant was present, during the time aforesaid, 
 the defendant with the other trustees made dividends to the stocli- 
 liolders of the said corporation, to a large amount, to wit, to the 
 
 sum of dollars, which dividends were not made from 
 
 the surplus profits arising frjm the business of said corpo- 
 ration. 
 
 IV. That at a meeting of the board of trustees of said corpo- 
 ration, at which the defendant was present, and when the said 
 corporation was insolvent and in contemplation of insolvency, the 
 defendant, with the other trustee, made conveyances, assignments, 
 and transfers of the assets and property of said corporation, with 
 the intent of giving a preference to particular creditors of said 
 corporation over other creditors of said company. 
 
 V. That the plaintiff is, and was at the times of the aforesaid 
 acts, a creditor of said corporation for the sum of dol- 
 lars, as aforesaid, and the defendant then was a trustee of said 
 company. That in consequence of the wrongful acts and viola- 
 tions of law by the defendant, with the other directors of said 
 corporation hereinbefore mentioned, the said corporation, prior to 
 
 said day of and while the plaintiff was such 
 
 creditor, and the defendant such trustee, became, and now is, 
 wholly insolvent ; that plaintiff has sustained loss by reason thereof 
 in the sum of dollars. 
 
 [Demand op Jitdgment] 
 § 409. Against Directors of an Incorporated Company 
 for Making Unlawful Dividends, and Distribution of 
 Stock, Adapted to Section 309 of the Civil Code of Cali- 
 fornia — ^Naming the Defendants as Individuals, not as 
 Directors. 
 
 Form No 86. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., and from that 
 
 day until the day of 18..., the com- 
 pany was a corporation existing under the laws of the state of 
 California, and doing business as such, in its said corporate 
 name. 
 
 II. That on the day of 18 ..., said 
 
 Company made and delivered to the plaintiff its promissory 
 
224 FORMS OF COMPLAINTS. § 410. 
 
 note, of which the following is a copy [insert copy of note] ; 
 and that said promissory note remains wholly unpaid, and there 
 is due to the plaintiff thereon the said sum of $ , and in- 
 terest thereon from the day of ., 18..., at the rate 
 
 of per centum per annum, all in gold coin of the United 
 
 States. 
 
 III. That the directors of the said corporation on the day 
 
 of , 18..., and while the said corporation was so in- 
 debted to the plaintiff, made and declared a dividend to the 
 
 stockholders thereof of $ per share, amounting in all to 
 
 the sum of $ , and afterwards paid the dividend afore- 
 said to its stockholders aforesaid, and the plaintiff avers that 
 said dividend was not made from the surplus profits arising 
 from the business of said corporation. 
 
 IV. That on the day of , 18..., the said directors 
 
 of said corporation divided among and paid the stockholders 
 thereof, the whole of the capital stock of said corporation, to 
 wit, the sum of $ 
 
 V. That the defendants, A. B., C. D., and E. F., and each 
 of them, were, at and during all the times aforesaid, directors of 
 said corporation, and assented to the making of said dividend, 
 and the division and paymeat of said capital stock as aforesaid. 
 
 VI. That said corporation was, on the day of , 
 
 18..., dissolved. [State how. J 
 
 [Demand op Jubombnt.] 
 
 § 410. Essential Averment. — It should appear that the 
 plaintiff was a creditor of the corporation at the time the wrong- 
 ful acts and violation of law complained of are alleged to have 
 been done or committed. i 
 
 § 411. Grounds of Action.— The complaint may set forth 
 several grounds, on either of which the defendants would be 
 liable.'' The statutes of the several states differ so much in 
 regard to the acts which make directors or trustees of corpora- 
 tions individually liable to stockholders or creditors, and the 
 grounds under each statute are so numerous, that we can only 
 give the foregoing as suggestions to the pleader, who will, in 
 all cases, be required to examine with great care the statute 
 under which he is pleading. 
 
 § 412. Statute — But when two different statutes severally 
 authorize an action upon a certain state of facts, the arising of 
 such state of facts constitutes but one cause of action : and a 
 
 I Ogden v. KoUo, 13 Abb. Pr. 300. 
 
 ' Durant v. Gardner, 10 Abb. Pr. 445; S. C, 19 How. Pr. 94. 
 
§ 413. CORPORATIONS. 225 
 
 plaintiff must elect which statute he will proceed under; and 
 can not complain upon the same facts in two counts, one under 
 each statute.i^ 
 
 § 413. Individual Creditor against Individual Stock- 
 holder. 
 
 Form No. 87. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That the Company is now, and since the 
 
 day of , 18..., has been a corporation existing under 
 
 and bj' virtue of the laws of this state, for the purpose of min- 
 ing for silver and other precious metals, and that the principal 
 place of business of the said corporation is, and since the said 
 
 day of , 18..., has been in the city and county of 
 
 San Francisco, and state of California. 
 
 II. That the capital stock of said corporation is, 
 
 and since the said day of , 18..., has been limited 
 
 to shares, of the par value of dollars per 
 
 share, making a total capital of dollars. 
 
 in. That the whole of said capital stock of said corporation 
 was and is issued to and owned by various persons, who are 
 
 now and have been such owners of said stock since the 
 
 day of , 18..., and that the full amount thereof has 
 
 been paid into said corporation by said stockholders, and that 
 all amounts paid in by said stockholders havfe been expended, 
 and that nothing now remains to pay the claims of the creditors 
 of the said corporation, and that said corporation is insolvent. 
 
 IV. That on the day of , 18..., the said corpora- 
 tion gave its promissory note to one A. B. for the sum of 
 
 dollars, payable in gold coin, with interest at per cent 
 
 per month, a copy of which is hereby annexed, marked " Ex- 
 hibit A." 
 
 V. That said note was afterwards indorsed to the plaintiff by 
 the said A. B. 
 
 VI. That on the day of , 18..., at , the 
 
 defendant made its acceptance in writing for the sum of 
 
 dollars, in gold, with interest from date, also payable in 
 gold, for supplies then furnished by the plaintiff to said cor- 
 poration, at its special instance and request, and delivered the 
 same to the plaintiff. 
 
 VII. That on the day of , at , the de- 
 fendant made its certain other acceptance in writing for the sum 
 
 » Sipperly v. Troy and Boston E. R. Co., 9 How. Pr. 83, 
 EsTBE, Vol. I — 15. 
 
226 FORMS OF COMPLAINTS. § 413. 
 
 of dollars payable to the plaintiff, in gold coin, with 
 
 interest at the rate of per cent per month, from date, pay- 
 able in gold coin, for supplies and money then and there fur- 
 nished by the plaintiff to said corporation, at its special instance 
 and request. 
 
 "VIII. That on or about the day of , in the dis- 
 trict court of the judicial district, county of , 
 
 in this state, the plaintiff commenced an action against the said 
 corporation, for the sura of dollars principal and in- 
 terest due upon said note and acceptances, and for costs and 
 damages, all in gold coin. 
 
 IX. That afterwards, on the day of , 18..., 
 
 personal service of summons and certified copy of complaint in 
 said action was made on the said company. 
 
 X. That afterwards, to wit, on the day of , 18..., 
 
 judgment was rendered in the said action against the said com- 
 pany, the defendant therein, and in favor of this plaintiff, for 
 the full amount of dollars, in United States gold coin. 
 
 XI. That afterwards, to wit, on the day of , 18..., 
 
 execution was issued in the said action upon said judgment by 
 the clerk of the said court, and addressed to the sheriff of the 
 said city and county of San Francisco, and which execution was 
 
 thereupon delivered to said sheriff and on the day of 
 
 , 18..., he returned the same wholly unsatisfied, and that 
 
 no property could be found within the said county belonging to 
 said company. 
 
 XII. That the said company has not paid the 
 
 said judgment, and that it still remains in full force and effect 
 unsatisfied, unreversed, and not appealed from ; and that the 
 plaintiff is the owner thereof. 
 
 XIII. That ever since the day of ,18..., and 
 
 also at and during the time when the said debts and liabilities, 
 for said moneys advanced and supplies furnished, accrued and 
 were contracted and incurrred by said corporation, and the said 
 note given and acceptance made, the defendant was a stock- 
 holder in the said corporation to the amount of shares 
 
 of the capital stock of said corporation. 
 
 XIV. That the total amount of indebtedness of the said cor- 
 poration is dollars. 
 
 XV. That the proportion of said indebtedness, for which de- 
 fendant is liable to plaintiff, is dollars per share, in 
 
 United States gold coin, amounting to the full sum of 
 
 dollars in gold coin, with interest at the rate of per cent 
 
§ 414. CORPORATIONS. 227 
 
 per month, and payable in gold coin, on dollars of the 
 
 above amount sued for, and interest at the rate of per cent 
 
 per month, in gold coin, upon the sum of dollars, the 
 
 remainder of the above amount sued for. 
 
 XVI. That although often requested, stiU defendant has 
 failed, neglected, and refused to pay the same, or any part 
 thereof. 
 
 Wherefore, plaintiff demands judgment against the defendant 
 
 for the sum of dollars in United States gold coin, and 
 
 interest on the sum of dollars, at the rate of per 
 
 cent per month, compounded monthly, payable in like gold 
 
 coin, and interest on the sum of doUai's, at the rate of 
 
 per cent per month, in United States gold coin, and for 
 
 costs of suit. 
 
 [Exhibit "A," Annexbd.] 
 
 § 414. The Same— Shorter Form. 
 
 Form No. 88. 
 [Title.] 
 
 The plaintiff complains and alleges : 
 
 I. That at the times hereinafter mentioned, the 
 
 company was a corporation created by and under the laws of 
 this state, organized pursuant to an act entitled "An act" [title 
 
 of act], passed , 18..., and the acts amending the same, 
 
 and supplementary thereto. 
 
 n. That on the day of , 18..., said company, by 
 
 its agent , duly authorized thereto, made its promissory note 
 dated on that day, a copy of which is hereto annexed, and 
 marked "Exhibit A." 
 
 III. That on the ...... day of , 18..., in an action in 
 
 the district court of the judicial district, for the county 
 
 of , to recover the same from said company, judgment 
 
 was rendered by said court against said company, in favor of 
 
 the plaintiff for dollars, being dollars, the 
 
 amount due thereon, with interest, amounting to dol- 
 lars, and costs. 
 
 IV. That execution thereon was thereafter issued against 
 said company, and returned wholly unsatisfied. 
 
 V. That at the time said debt was contracted, the defendant 
 was a stockholder of said company, holding stock therein to 
 
 the amount of dollars, being shares of the 
 
 par value of dollars each; and that he still ia such 
 
 stockholder therein. 
 
 [Demand op Judoment.] 
 [Exhibit "A" Annexed.] 
 
228 F0K51S OF COMPLAINTS. § 415. 
 
 § 415. Nature of Stockholder's Liability for Corpo- 
 rate Debts. — At the common law, a stockholder was not individ- 
 ually liable for the debts of the corporation.^ Such liability has 
 been verj' generally created by statute in the several states. These 
 statutes differ largely in their details, and in the extent of the 
 liability which they impose upon the stockholder. Some of 
 the statutes make a stockholder liable for the debts of the cor- 
 poration to the extent of the value of the stock held by him. 
 By others the liability is limited to such a proportion of the debt 
 or claim against the corporation contracted during the time he 
 was a stocliholder as the amount of stock or shares owned by the 
 stockholder bears to the whole of the subscribed capital stock 
 or shares. This latter is the limit of the liability imposed on 
 the stockholders in California.^ In this state the constitution 
 leaves to the legislature the power to regulate the liabilities of 
 stockholders, and to prescribe the rule by which each stock- 
 holder's proportion of such debts shall be ascertained. ^ The 
 stockholder's liability in California is not that of a mere surety. 
 It is primary and original. And the same identical act which 
 casts the liability on the corporation, also casts it on the stock- 
 holder.* Consequently such liability is not contingent upon a 
 recovery against the corporation, ^ and is not affected by a sus- 
 pension of the remedy against the corporation. ^ Where, how. 
 ever, the corporate debt is satisfied in part, there is also a pro 
 tanto discharge of the liability of the stockholders. Accord- 
 ingly, in an action against a stockholder for his proportion of 
 a corporation djebt which had been partially satisfied by a sale 
 of mortgaged and pledged property, the defendant is only 
 liable for his proportion of indebtedness after the payments 
 have been credited.'' Such liability is not in the nature of a 
 penalty of forfeiture, but a liability arising from contract.^ It 
 is not, therefore, barred by the provision of the statute of lim- 
 itations providing that an action to enforce a penalty or for- 
 feiture must be brought within two years after the cause of 
 
 •Whitman v. Cox, 25 Me. 335; « Pi '.nee v. Lynch, 38 Cal. 528; 
 
 Shaw V. Boylan, 16 Ind. 384 ; Ireland Young v. Bosenbaum, 39 Id. 646 ; So- 
 
 V Palestine, etc., Turnpike Co., 19 noma Valley Bank v. Hill, 59 Id. 107. 
 
 Ohio St. 369; Gray v. Coffin, 9 Cush. ° Davidson v. Rankin, 34 Cal. 50-3. 
 
 192 ; Niehola v. Thomas, 4 Mass. 232 ; « Ybung v. Rosenbaum, 39 Cal. 646 ; 
 
 Vincent v. Chapman, 10 Gill & J. 279. Prince v. Lvnch, 38 Id. 528. 
 
 ,,. ?opst- »■''■■ 12. sec. 3 (1879) ; Cal. ' San Jo.'^ Savings Bank v. Pharis, 
 
 CivilCode, sec. 322; French v.Tesohe- 58 Cal. 380. 
 
 maker, 24 Cal. 543; Mok. HiU Canal » Corning v. MeCullough, 1 N. Y. 
 
 O'. V. Woodbury. 14 Id. 265. 47; Norris v. Wrenschall,''34 Md.492;. 
 
 ' Larrabbeev. Baldwin, 35 Cal. 155; Coleman v. White, 14 Wis. 700- 
 
 French v. Teschemaker, 24 Id. 539. Ericksou v. Nesmith, 46 N. H. 371. ' 
 
§ 416. CORPORATIONS. 229 
 
 action accrued.^ In New York, however, it has been held that 
 the liability of stockholders is in general an original liability, 
 and an action against them is upon a contract made by them 
 in a qualified corporate capacity. Where, however, the corpo- 
 rate capacity is not thus qualified, the members or oflScers are 
 not thus liable as original or principal debtors, by reason of 
 something imposed on them by the statute, and the action 
 must be upon the statute to recover a debt in the nature of a 
 forfeiture.® The present constitution of California limits the 
 stockholder's liability to debts contracted by the corporation 
 while he occupied such relation. ^ This is also the construction 
 that the courts had put upon the old constitution, in holding 
 that a stockholder did not render himself liable by becoming 
 such for the pre-existing debts of the corporation.* Such lia- 
 bility is not released by the stockholder subsequently assigning 
 his stock. 5 
 
 § 416. Parties to the Action. — In California any creditor 
 of a corpolration may institute joint or several actions against 
 any of the stockholders, and in such action may recover the 
 proportion of the debt for which each defendant is liable, and 
 have a several judgment against each stockholder, in conform- 
 ity therewith. 8 In New York, in conformity with the statutory 
 provisions, any separate creditor may maintain an action for the 
 enforcement of his demand, although it seems to be conceded 
 in that state that a joint action may be brought against all the 
 StockLolders, for the benefit of all the creditors.'' In Ohio, on 
 the other hand, it is provided by statute, in conformity with 
 prior decisions, that the action must be against all the stock- 
 holders, and by all the creditors, or by one suing in behalf of 
 all. 8 While in Missouri it has been held that if the statute 
 makes the stockholders liable for an amount equal to the 
 amount of their stock, their liability is not joint, but each must 
 be sued separately. ^ If the state is a holder of stock, it can not 
 
 1 Green v. Beckman, 5S Gal. 545. have judgment for the stockholder's 
 
 2 Bird V. Hayden, 2 Abb. Pr., N. S., proportion of such corporrtte debts, 
 e], * California Civil Code, sec. 322. 
 
 s Const, art. 12. sec. 3, « Cnlifornia Civil Code, sec. 822; 
 
 « Larrabbee v. Baldwin, 35 Cal. 156i Larriibbee v. Baldwin, 85 Cal. 156. 
 In this case it was held that to deter- ' Weeks v. Love, 50 N. Y. 568; 
 mine how much any one stockholder Mann v. Pentz, 3 Id. 415; Garrison 
 is liable to pay to a corporate creditor, v. Howe, 17 Id. 458; Briggs v. Pen- 
 it is necessary to find the whole niman, 8 Cow. 887; Osgood v. Lay- 
 amount of the indebtedness of the tin, 5 Abb. Pr., N.S., 1. 
 corporation created while he was a « R. S., sec. 3260; Umsted v. Bus- 
 stockholder; and any one creditor kirk. 17 Ohio St. 113. 
 whosfi demand is large enough may 9 Perry v. Turner, 55 Mo. 418. 
 
230 FORMS OF COMPLAINTS. § 417. 
 
 be made a party defendant.^ And where any stockholder pays 
 his proportion of any debt due from the corporation, incurred 
 while he was a stockholder, he is relieved from any further lia- 
 bility for such debt, and if an action has been brought against 
 him upon such debt, it must be dismissed as to him.^ One 
 stockholder, however, can not recover against another a debt 
 due him from the company.^ And as between the corporation 
 and its stockholders, the corporate property is the fund pri- 
 marily liable for the corporate debts.* 
 
 § 417. Essential Averments in Such Action. — ^An ac- 
 tion to enforce the personal liability of stockholders is, in many 
 cases, to be considered as founded on that vestige of the rela- 
 tion of partnership between the members of the company which 
 the charter or general act failed to remove. ^ In such action 
 the complaint must show that the defendant was a stock- 
 holder at the time the debt was contracted ;8 and an averment 
 to this effect in the words of the charter is sufficient ;'' other- 
 wise a judgment which has been rendered by default will be set 
 aside. 8 So, also, the grounds on which they are individually 
 liable must be shownl^ And in pleading the amount of the 
 stockholder's liability, it must be averred that such stockholder 
 held an amount of stock equal to the amount for which he is 
 sought to be held liable. i" It is not necessary, however, to aver 
 that the corporation is insolvent.^i Nor in an action to enforce 
 a promissory note is it necessary to aver the facts showing for 
 what the note was given.^^ In many of the states, before a 
 creditor can proceed against a stockholder, he must have recov- 
 ered judgment against the corporation, and the execution is- 
 sued thereon must have been returned unsatisfied. -Where 
 such facts are necessary to fix. the stockholder's liability the 
 complaint must allege their performance's Where, however, 
 
 iMiers v. Zanesville etc. Tump. 'Freelandv.McCuUoueh, lDen.4U. 
 
 Co., 11 Ohio, 273. 8 Hooker v. Kilgour, 2 C. S. C. R. 
 
 2 California Civil Code, sec. 322 ; 550 ; Kearney v. Buttles, 1 Ohio St. 
 
 Larrabbee v. Baldwin, 35 Cal. 156. 362. 
 
 » Bailey v. Baucker, 3 Hill (N. Y.), ' Geery v. New York etc. S. S. Co., 
 
 188. 12 Abb. Pr. 268. 
 
 « Prince v. Lynch, 38 Cal. 528. w Chambers v. Lewis, 16 Abb. Pr. 
 
 5 Corning v. McCuUough, 1 N. Y. 443. 
 
 47; Conantv. Van Schaick, 24 Barb. "Parkins v. Church, 81 Barb. 84; 
 
 87 ; Bailey v. Baneker, 3 Hill, 88. Davidson v. Rankin, 84 Cal. 608. 
 
 For a form of complaint against l» Gebhard v. Eastman, 7 Minn. 56. 
 
 stockholders, see Herkimer Co. B'k M Conant v. Van Schaick 24 Barb, 
 
 y. Furman, 17 Barb. 116; Wither- 87; Wria;ht v. McCormack. 17 Ohio 
 
 head V. Allen, 28 Id. 661. . St. 86 ; Blake v. Hinkle, 10 Yere. 218 ; 
 
 ,'J?^'^f^''-^^'^^'^T^^^^<^-S.S.Go., Cowles v. Bartell, 2 West. Law 
 
 15 Abb.. Pr. 69 ; Larrabbee v. Bali- Month. 41 ; Hays v. New Bait. etc. 
 
 win. 35 Cal. 155. Tp. Co., 1 HanSy, 281. 
 
§ 418. CORPORATIONS. 231 
 
 the performance of such conditions precedent would plainly 
 be of no avail, as where the corporation is insolvent, or in the 
 hands of a receiver, or dissolved, the necessity of averring a 
 recoverj'- of judgment no longer exists, if the complaint con- 
 tains other facts sufficient to excuse it.^ Such rule does not 
 prevail in California, as in that state the stockholder's liability 
 is created at the same time as the liability against the corpora- 
 tion.* Though a stockholder is individually liable for debts 
 contracted while he was a stockholder, yet a judgment recovered 
 against the corporation while he is a stockholder, upon a con- 
 tract entered into before he became such stockholder, is not a 
 •contract within the meaning of the act rendering such stock- 
 holder liable. And proof of a judgment against a corporation 
 does not show when the debt was contracted.' 
 
 §418. Who Liable as Stockholders in Such Action. 
 The civil code of California provides that not only shall those 
 "whose names appear on the books of the corporation be liable 
 as stockholders, but also every equitable owner of stock, al- 
 though the same appears on the books in the name of another ; 
 and also every person who has advanced the installments or 
 purchase money of stock in the name of a minor ; and also apy 
 guardian, or other trustee, who voluntarily invests any trust' 
 funds in the stock. The pledgee of stock is not liable as a 
 stockholder within the meaning of such code. In coi-porations 
 having no capital stock, each member is individually and per- 
 sonally liable for his proportion of the debts, and actions may 
 be brought against him, either alone or jointly with other mem- 
 -bers, to enforce such liability. The liability of stockholders of 
 foreign corporations doing business in California is the same as 
 that of stockholders of domestic corporations.'* Prior to the 
 •enactment of such statute it was held that one who never ac- 
 cepts, but refuses to accept any stock in a corporation, is not a 
 
 1 Shellington v. Howland, 53 N. T. the judgment against the company, 
 
 ■871; Lovett V. Oornwell, 6 Wend, see Bailey v. Bancker, 8 Hill (iS. Y.), 
 
 -869; People V. Bartlett, 3 Hill, 670; 188; Andrews v. Murray, 9 Abb. Pr. 8. 
 
 Loomis V. Tifft, 16 Barb. 641 ; Dry- ' Larrabbee v. Baldwin, 35 Cal. 
 
 -den V. Kellogg, 2 Mo. App.87; State 156; Miller v. White, 50 N. Y. 187. 
 
 Savings Asa'n v. Kellogg, 52 Mo. 583 ; But see Hastings v. Drew, 76 Id. 9, 
 
 Paine V.Stewart, 33 Conn. 516; Merrill where such judgment was said to be 
 
 V. Suffolk Bank, 81 Me. 57 ; Hetzel v. at least prima facie evidence of lia- 
 
 Tannehiil Silver Min. Co., 4 Abb. N. bility ; also Corse v. Sandford, 14 Iowa, 
 
 •Cas. 40; Warner v. Callender, 20 235; Thayer v. New England, etc., 
 
 Ohio St. 190. Print, Co., 108 Mass. 523 ; Milliken 
 
 ^ Davidson v. Eankin, 34 Cal 503 ; v. Whitehouse, 49 Me. 627 ; Tyng v. 
 
 Prince v. Lynch, 38 Id. 528 ; Cal. Clarke, 9 Hun, 269. 
 
 Civ. Code, sec. 322. As to whether ' California Civil Code, sec. 322. 
 « stockholder is liable for the cost of 
 
232 FORMS OP COMPLAINTS. § 419. 
 
 stockholder, even though the secretary enters his name in the 
 books as such, and the stock book of the corporation is not ad- 
 missible in evidence in an action by a creditor of the corpora- 
 tion against one claimed to be a stockholder for the purpose of 
 proving that he is such stockholder.^ And in Ohio, parties 
 whose names are nominally on the corporation books, but who 
 never were actually owners of stock, their contracts not having 
 been fulfilled, are not liable as stockholders.* 
 
 CHAPTER IV. 
 
 EXECCTTORS AND ADMINISTRATORS. 
 § 419. By an Executor. 
 
 Fm-m No. 89. 
 
 [Title.] 
 
 A. B., Executor of the "Will of ■) 
 
 C. D., Deceased, Plaintiff, f 
 
 against T 
 
 John Dob, Defendant. ) 
 
 The plaintiff, as such executor, complains, and alleges : 
 
 I. [State cause of action.] 
 
 II. That the said C. D. in his life-time made and published his 
 last will, whereby he appointed the plaintiff executor thereof. 
 
 III. That on the day of 18.., at , 
 
 the said C. D. died. 
 
 IV. That on the day of , 18.., at , 
 
 said will was proved and admitted to probate, in the superior 
 court in the county of , in this state. 
 
 V. That thereupon, on the day of , 18..., let- 
 ters testamentary were issued on the said will to the plaintiff, 
 by the superior court of said county. 
 
 VI. That thereupon the plaintiff duly qualified and entered 
 upon the discharge of his duties as executor, and that said let- 
 ters testamentary have not been revoked. 
 
 [Dbmand of Jitdgment.] 
 § 420. By an Administrator. 
 
 Form No. 90. 
 [Title.] 
 
 The plaintiff, as such administrator, complains, and alleges : 
 
 I. [State cause of action accruing to the intestate.] 
 
 II. That on the day of 18..., at , 
 
 the said A. B. died intestate. 
 
 » Mudgett V. Horrell, 33 Cal. 25. 
 
 2 Wehrman v.Reakirt, 1 C. S. C. R.230. 
 
§ 421. EXECUTORS AND ADMINISTKATORP. 233 
 
 III. That on the day of , 18 , letters of ad- 
 ministration upon the estate of the said A. B. were issued by 
 
 the superior court of the county of , in this state, to 
 
 the plaintiff. 
 
 IV. That the plaintiff thereupon duly qualified as such ad- 
 ministrator, and entered upon the discharge of the duties of 
 his said office, and that said letters of administration have not 
 been revoked. 
 
 [Demasd op Jxjdgment.] 
 § 421. Essential Averments of Representative Capac- 
 ity. — ^The capaeity of the plaintiff to sue is independent of the 
 cause of action, and, therefore, in an action by an executor or 
 administrator to enforce a cause of action on which he is author- 
 ized to sue as such, the complaint must allege his representative 
 capacity. No formal mode of allegation is essential, provided 
 the plaintiff's right to maintain the action is substantially 
 shown, so that issue may be joined thereon.^ In conformity 
 with this rule, the complaint should state, in cases of testacy, 
 the death of the decedent, his leaving a last will and testament, 
 the appointment therein of the plaintiff as executor, the probate 
 of the will, the issuance of letters testamentary thereon to the 
 plaintiff, and his qualifleation and entry upon the discharge of 
 his dqties as executor, and that he is still acting as such.^ In 
 cases of intestacy, the death of the decedent, without leaving a 
 last will and testament, must be shown, together with appro- 
 priate allegations of the plaintiff'? appointment as administra- 
 tor, his qualification and entry upon the discharge of his duties 
 as such, and that he is still so acting; and this is so although 
 the plaintiff may be the public administrator.^ In the case of 
 either an executor or administrator, the date, place, and court 
 by whom letters were granted should be stated.* If this is not 
 
 ' Bank of Lowville v. Edwards, 11 * Mo-rell v. Dickey, 1 Johns. Oh. 
 
 How. Pr.^16; Johnson v. Kemp, 11 156; Williams v. Storrs, 6 Id. 353; 
 
 Id. 186; President of Hanover Bank Vroom v. Van Horn, 10 Paige Ch. 
 
 T. Wickham, 16 Id. 97; Thomas v. 550 ; Vermilya v. Beattv, 6 Barb. 429 ; 
 
 Cameron, 16 Wend. 579 ; Halleck v. Warren v. Eddv, 13 Abb. Pr. 28 ; Gru- 
 
 Mixer, 16 Cal. 574 ; Barfield v. Price, lick v. Gulick, 21 How. Pr. 22 ; Robins 
 
 40 Id. 535 ; Beach v. King, 17 Wend. v. Wells, 26 Id. 15 ; Emery v. Hildreth, 
 
 197; Welles v. Webster, 9 How. Fr. 2 Gray, 228; Bloom v. Burdick,! Hill, 
 
 251; English V. Roche, 6 Ind. 62; Dun- 134; Beach v. King, 17 Wend. 197; 
 
 can v.. Duncan, 19 Mo. 368; State v. Gillet v. Fairchild, 4 Denio, 80; 
 
 Matson, 38 Id. 489; Bird v. Cotton, White v. Joy, 3 Kern. 83; Forrest v. 
 
 57 Id. 568; State v. Patton, 42 Id. Mavor of N. Y., 13 Abb. Pr. 350; 
 
 530; Headlee v. Cloud, 61 Id. 301. Christopher v. Stockholm,, 5 Wend. 
 
 "■ Thomas v. Cameron, 16 Wend. 36; Tolmie v. Dean, 1 W.T. 60; Day- 
 
 579; Halleck v. Mixer, 16 Cal 574; ton v. Connah, 18 How. Pr. 326; 
 
 Barfleld v. Price, 40 Id. 535. Shaldon v. Hoy, 11 Id. 11 ; Barfield 
 
 3 Ketchum v. Morrell, 2 N. Y. Leg. v. Price, 40 Cal. 535. 
 Obs. 58. 
 
•234 FORMS OF COMPLAINTS. § 422. 
 
 done, the complaint is bad on demurrer on that ground. ^ By 
 parity of reasoning, where suit is brought by an administrator 
 during the minority of the executor, his powers being deter- 
 mined when 'uhe executor attains full age, the fact that he has 
 not attained majority must be averred. ^ Where the plaintiff's 
 representative capacity is shown, pi-ofert of letters testamentary 
 or of administration is no longer necessary. ^ 
 
 § 422. Illustrations of Sufficient and Insufficient Alle- 
 gations. — In New York, the word "as" is essential in the title 
 to the action, nor can it be easily replaced by any other word. 
 Thus, a declaration which invariably and more than a dozen 
 times mentioned the plaintiff ' as "the said Sarah, executrix as 
 aforesaid," closing with profert of letters testamentary, was 
 held to be fatally defective under the old practice.* In the same 
 state a complaint averring that the plaintiff has been duly ap. 
 pointed and qualified by the surrogate of New York, to act as 
 the " sole executor of A. B., deceased," was held not sufficient 
 in an action to recover a demand due the estate of the plaint- 
 iff's testator ;5 and the allegation "duly appointed" was held to 
 be not insufficient, but indefinite.^ A complaint commencing 
 "A. B., administrator of the goods, etc., of , de- 
 ceased, plaintiff in this action," and containing no other state- 
 ment of the fact of the plaintiff's appointment as administrator, 
 does not allege that he is administrator, or show that he pros- 
 ecutes in that capacity.'' On the contrary, a bill alleging that 
 there was no instrument purporting to be the last will and 
 testament of M., deceased, duly executed and attested; that it 
 
 "Shaldon v. Hoy, 11 How. Pr. 11. see, also, Gould v. Glass, 19 Barb. 
 For a form of averment allee;ing ap- 185; Shaldon v. Hoy, 11 How.Pr. U; 
 pointment, see Beach v. King, 17 Ogdensburg Bank v. Van Rensselaer, 
 5^®"L^^I' ^'"^" ^' ^airohild. 4 6 Hill, 241. if the plaintiff's char- 
 Den. 80. Section 161, N. Y. Probate acter is thus stated in the title, it is 
 Code, and section 1365, Oal. Code C. not necessarv to repeat it, but he mav 
 P., are applicable to the decision of afterwards be called "the plaintiff." 
 the surrogate (probate court) in the Stanley v. Chappell, 8 Cow. 235. 
 appointment of an administrator : An- 5 Forrest v. Mayor of N Y 13 
 Person v. Potter, 6 Cal. 63 ; Wheeler Abb. Pr. 350. ' " 
 V. Dakin, 12 How. Pr. 537. For a « Cheney v. Pisk, 22 How. Pr.238: 
 <!oraplamt by an administrator, with People v. Walker, 23 Barb. 305 : Peo- 
 the will annexed of a deceased judg- pie v. Ryder, 2 Kern 433. 
 ment creditor who was resident of a ' Merritt v. Seaman, 6* N. Y. 168- 
 foreign state, see Wheeler v. Dakin, Shaldon v. Hoy, 11 How. Pr. II; 
 
 2 V * T r n „^ Christopher v. Stockholm, 5 Wend! 
 
 8 J*- ,?? ""• ^<?"°'. ^ K^^■J^^• ^^ ' Worden v. Worthington, 2 Barb. 
 
 ' B"ght \(5urrie, 5 Sand 433; 368. Promises made to the testator 
 
 WeUes y. Webster, 9 How. Pr. 251. should not be stated as made to "the 
 
 1KX r" •5°''".''''' ^ ^*''' ^5^' plaintiff-" Worden v. Worthington. 
 
 1®V r9XM^^fis"" -/^^l*"?!"' ^ ^?; ^^°' Christopher v. Stockhofm, 6 
 ^. Y. (2 Seld.) 168, with Smith v. Wend. 36. 
 Levinus, 8 N. Y. (4 Seld.) 474 ; and 
 
§ 422. EXECUTORS AND ADMINISTRATORS. 235 
 
 was admitted to probate as such will ; that letters testamentary 
 were issued, and that the executors took upon themselves the 
 execution of the instrument, suflSciently shows that the instru- 
 ment was a will, and that it had been so adjudged by the surro- 
 gate's court.^ And so, also, a complaint which describes the 
 plaintiff as an executor, and states the cause of action as, an in- 
 debtedness due to the plaintiff as an executor, and that the money 
 was had and received by the defendant for the use of the plain- 
 tiff as such executor, sufficiently shows that the plaintiff sues in 
 his representative capacity.^ And an averment that letters testa- 
 tamentary on, etc., and not before, were issued to, etc., is suffi- 
 cient to import that no other or prior letters had been issued. ^ 
 In Missouri, a petition stating the character in which the plaint- 
 iff sued, the indebtedness to the intestate, and the prayer for 
 judgment as administratrix, was held sufficient as showing her 
 right to sue.* In California, in an action brought by an admin- 
 istrator who has been appointed afte;r the resignation of a 
 former administrator, the complaint is sufficient if it avers the 
 issue of letters to the former administrator, that he qualified 
 and entered upon the discharge of the trust, that he resigned, and 
 his resignation was accepted by the probate court, and that 
 the plaintiff was afterwards appointed administrator, and qual- 
 ified, and that letters were issued to him.^ And the same effect 
 was given to an averment that letters of administration were 
 issued on a certain day, by the appropriate court, to the plaint- 
 iff, who duly qualified as such administrator, and entered upon 
 the discharge of his duties as such, and now is, and has been, 
 continuously from the date of appointment, such administrator.^ 
 In that state there are only two classes of administrators, special 
 and general; and no such officer as an " administrator de bonis 
 non" is known to our law. When the authority of a general 
 administrator is terminated, and a new one appointed, the latter 
 takes the place of the first, and succeeds to the office, clothed 
 with the same powers, and subject to the same restrictions ; and 
 when he invokes the action of the court, he must institute the 
 same proceedings, and, so far as he is able, must make a similar 
 showing.'' The order for the appointment, the qualifications of 
 the appointee, and the issuing of letters to him thereon, are all 
 necessary proceedings to invest such appointee with the office 
 
 1 Mason v. JonPS, 13 Barb, 461. ^ Lucas v. Todd, 28 Cal. 182. 
 
 * Scrantom v. Farmers' etc. Bank, ' M cCutcheon v. Weston, 1 West 
 SS Barb. 527. Coast Kep, 850. 
 
 3 l-ienjamin v. De Grott, 1 Den. 151. ' Haynes v. Meeks, 20 Cal. 288. 
 
 * Duncan v. Duncan, 19 Mo. 36S. 
 
236 FOEMS OF COMPLAINTS. § 423. 
 
 of an administrator. The appointment is in fieri until tlie ap- 
 pointee has qualified and received his letters. ^ 
 
 § 423. Action by Foreign Administrator or Executor. 
 Except as modified by the statute, the authority of an executor or 
 administrator is limited to the state or country in which he re- 
 ceives . his authority. Consequently he is not authorized to 
 maintain an action in his representative capacity outside of 
 such state. If objection is not raised to the plaintiff's capacity 
 to sue, either by answer or demurrer, it is waived. ^ But it has 
 been held that a plaintiff may maintain a suit in the United 
 States circuit court, as a citizen of Maine, in his character of 
 administrator if he has taken out his letters in New Hampshire. ^ 
 
 § 424. Comnieacemsnt of Complaint by Executor or 
 Administrator Suing in his own Right. 
 
 Form No. 91. 
 [Title.] 
 
 The plaintiff complains, as administrator of the estate [or exe- 
 cutor of the will] of A. B., deceased, and alleges: 
 
 I. [State cause of action.] 
 
 [Demand oe Judgment.] 
 
 § 425. Executor or Administrator, when may Sue in 
 Own Name. — Contracts made by an executor or administrator 
 subsequently to the death of the deceased, although affecting 
 the assets of the estate, may be sued on by such executor or 
 administrator in his personal, and not in his representative ca- 
 pacity. The action need not necessaiily be in such form, as the 
 executor or administrator has an election whether to sue per- 
 sonally or in a representative capacity.'' Thus an executor or 
 administrator may sue in his own name to recover back money 
 of the estate paid by mistake ;5 or on a note payable to' him as 
 representative ;^ or to bearer ;'' or to him indivi iually for money 
 due the estate ;* or for the price of property sold by him as 
 
 ' Estate of Hamilton, 34 Cal. 46t. * Mowry v. Adams, 14 Mass. 
 
 2Hamv. Henderson, 50 Cal. 367; 327. 
 
 Ciishman v. Wood, 6 Hun, 520; Rob- * Ro2;ers v. Weaver, Wrijjht, 174: 
 
 bins V. Wells, 18 Abb. Pr. 191; Con- Gulkev. Uhlig, 55 How Pr. 434. 
 
 nor's Adm'x v. Paul, 12 Bush, 144; * Rittenhouse v. Ammerman, 64 
 
 Duncan v. Whedbee, 4 Col. 143; Mul- Mo. 137; Merritt v. Seamen, 6 N. Y. 
 
 lin's Appeal, 40 Wis. 154; Harte v. 168; Carleton v. Byington, 17 Iowa, 
 
 Houcbin, 50 Ind. 327 ; Wriebt v. 579 ; Kalkhofif v. ^oehrlaut, 40 Wis. 
 
 Wright, 72 Id. 149 ; S. W. K'y v.^Paullc, 427. 
 
 24 (ia. 370; Dougherty V. Walker, 15 ' Holcomb v. Beach, 112 Mass. 
 
 Id. 444; Brookshire v. Dubose, 2 450. 
 
 .Jones Eq. 279 ; Eueks v. Taylor, 49 « MeG-ehee v. Slater, 50 Ala. 431 ; 
 
 Miss. 560; Palmer V. Ins. Co., 84 N. Walt v. Walsh, 10 Heislc. 314; 
 
 Y. 67. CockpT V. Cocker. 2 Mo. .\pp. 451; 
 
 '•barter v. Treadwell, 3 Story C. Blankenship v. Niramo, 50 Ala., 606. 
 \j. 25. 
 
§ 427. EXECUTORS AND ADMINISTRATOES. 237 
 
 representative ;^ or on a judgment obtained by him -^ or for the 
 wrongful conversion of the property of the estate,^ although 
 such conversion was made prior to his appointment. In such 
 case he has a special property in the goods taken suflBcient to 
 support the action. No demand is necessary if such taking were 
 were tortious.* 
 
 § 426. Against an Administrator or Executor. 
 
 Form No. 9B. 
 [Title.] 
 
 A B., Plaintiff, ) 
 
 against / 
 
 C D., Administrator or (Executor) of the Q 
 
 estate of £. F., deceased, Defendant ^ 
 
 The plaintiff complains, and alleges: 
 
 I. [State a cause of action against the decedent.] 
 
 II. [Allege death of decedent, and defendant's appointment 
 as administrator or executor, as in preceding forms.] 
 
 III. That said defendant, as such executor [or administrator] , 
 
 in pursuance of an order of the superior court of 
 
 county, caused a notice to the creditors of said deceased to be 
 
 published in , the same being the newspaper designated 
 
 by said court, requiring all persons having claims against said 
 ■deceased to exhibit them, with the necessary vouchers to the 
 said executor [or administrator] at [specify the place], the same 
 being specified therein as his place of business, within .... 
 months after the first publication of said notice ; that said notice 
 was first published on the day of , 18... 
 
 IV. That on the day of , 18..., at , the 
 
 claim hereinbefore set forth, verified by the oath of the claim- 
 ant, and upon which this action is founded, was duly presented 
 in writing by the plaintiff to the defendant, as such administra- 
 tor [or executor], for allowance. And that the same was by 
 him, as such administrator or executor, rejected, on the •■•• 
 
 day of , 18.. That a copy of said claim as presented 
 
 is hereunto attached and made a part of this complaint 
 
 [Demand or Judgment.] 
 
 § 427. Action against Executor or Administrator on 
 New Promise. — Whether an executor or administrator can, 
 by a new promise, revive a debt barred by the statute of limita- 
 tions, depends upon the special statutes of the different states. 
 Where there is no limitation upon the power of the executor or 
 administrator imposed by statute, it has been held that a new 
 
 ' Layoook v. Oleson, 60 111. 30. ' Munch v. Williamson, 24 Cal. 
 
 s Page V. Cravens, 3 Head, 383 ; 167. 
 Hunt V. Lisle, 6 Terg. 417. * Ham v. Henderson, 60 Cal. 367. 
 
238 FOKMS OF COMPLAINTS. § 428. 
 
 promise would avoid the statute.^ la South Carolina it has 
 been held that before the bar of the statute is complete, the ad- 
 ministrator may revive the debt by an acknowledgment or prom- 
 ise.^ In another ease in that state it was held that a promise 
 by the executor would revive a debt barred by the statute at the 
 time of the acknowledgment or promise, if not barred at the 
 death of the testator. ^ In California, the allowance of a claim 
 against an estate, after it is barred by the statute, is prohibited.* 
 But a widow, executrix of an estate of her deceased husband, 
 who has an interest in the same, who gives her own note for a 
 debt of her husband, which is barred, under the mistaken opin- 
 ion that it is still binding, will be held personally liable thereon. * 
 § 428. Presentation of Claims against Estate. — Statutes 
 have been passed in most of the states which limit the absolute 
 right of the creditors of a deceased debtor to proceed against 
 the estate. These statutes differ greatly in their details, but 
 their general effect is to require the creditor to present his 
 claim to the executor or administrator, within a certain time, 
 for allowance. If not, such claim is forever barred. In Cali- 
 fornia the executor or administrator is required to publish notice 
 to creditors to pre=?ent their claims against the estate. If the 
 value of the estate exceeds ten thousand dollars, such time is 
 limited to ten months after the first publication; otherwise to 
 four months. All claims arising upon contract, whether the 
 same be due, not due, or contingent, must be presented within 
 the time limited in the notice, and any claim not so presented 
 is barred forever. Where, however, it is made to appear by the 
 affidavit of the claimant, to the satisfaction of the court, or a 
 judge thereof, that the claimant had no notice, by reason of 
 being out of the state, it may be presented at any time before a 
 decree of distribution is entered." Every claim which is due 
 when presented to the executor or administrator must be verified 
 by the affidavit of the claimant, or some one in his behalf, to the 
 effect that the amount thereof is justly due; that no payments 
 have been made thereon which are not credited, to the knowl- 
 edge of the affiant. If the claim be not due when presented, 
 
 .^ ^fo';'Ju°™ °^ ^'®™'^°^'''^ ■^^ ^^'■'■- ■^•Shed, 15 Mass. 6, and note, p. 8; 
 lett, 18 Ohio, 271; Brown v. Ander- Thompson v. Brown, 16 Id. 171; Ross 
 
 °°»'w?, *?^- ? j^- , ^ '■ ^°SS' 6 Hun. 80 ; Estate ofHidden, 
 
 » Wilson s Adm'r v. Wilson, 1 Mc- 23 Cal. 362. 
 
 Mullan's Eq. 329. 6 MuU v. Van Trees, 50 Cal. 547. 
 
 s Pearce v. Ex'rs of Zimmerman, « Code of Civil Proc, sees. 1490- 
 
 4^"f ^ r,- •, T, ^*^^! ^s'^ts of Taylor, 16 CaU 434; 
 
 4 Code of Cml Proc, sec. 1499. CuUerton v. Mead, 22 Cal. 96. 
 Upon this subject general'v, see Dawes 
 
§ 428. EXECUTOBS AND ADMINI3TRAT0KS. 239 
 
 or be contingent, the particulars of such claim must be stated.^ 
 Upon the presentation of a claim the executor or administrator 
 must indorse thereon his allowance or rejection, with the date 
 thereof. If he aUows the same, it must be presented to the 
 judge for his approval, who must indorse thereon his allowance 
 or rejection. If the executor or administrator, or the judge, 
 refuse or neglect to indorse such allowance or rejection, for ten 
 days after the claim has been presented to him, such refusal or 
 neglect may, at the option of the claimant, be deemed equiva- 
 lent to a rejection on the tenth day. If the claim be presented 
 to the executor or administrator before the expiration of the 
 time limited, it is a sufficient presentation, although not acted 
 upon until after the expiration of such time.^ After the allow- 
 ance of a claim by the executor or administrator and the judge, 
 the statute provides that it shall be filed in court within thirty 
 days, and thereafter it ranks among the acknowledged debts of 
 the estate to be paid in due course of administration. 3 The 
 foregoing provision, so far as the time in which tlie filing of an 
 approved claim is concerned, has been held merely directory.* 
 If the claim be founded on a bond, bill, note, or other instru- 
 ment, a copy of such instrument must accompany the claim. 
 If the claim has been secured by mortgage or other recorded 
 lien, it is sufficient to describe the mortgage or lien, and refer 
 to the date, volume, and page of its record. ^ If the claim is 
 rejected, either by the executor or administrator, or judge, suit 
 must be brought thereon within three months after the date of 
 its rejection, if it be then due, or within two months after it 
 becomes due, otherwise it is barred forever.^ The time during 
 which there is a vacancy in the administration is not included 
 in such limitation.'' If an action is pending against the dece- 
 dent at the time of his death, the plaintiff must, in like man- 
 ner, present his claim for allowance, authenticated' as in other 
 cases ; and no recovery can be had in the action unless proof be 
 made of such presentation. ^ If the defendant dies after verdict 
 against him, atid before judgment, the claim' need not be pre- 
 sented. The proper practice in such case is to direct the entry 
 of a judgment against him by name, and then suspend all fur- 
 ther proceedings until tha substitution of an executor or ad- 
 
 1 Code of Civ. Proc, sec. 1494. Benedict v. Haggin, 2 Cal. 385 ; Hall 
 
 2 Code of Civ. Proc, sec. 1496. v. Smith, 19 Id. 85; Eice v. Inskeep, 
 
 3 Code of Civ. Proc, sec. 1497. 34 Id. 224. 
 
 * Willis V. Farley, 24 Cal. 601 ; Es- ' Danglada v. De la Guerra, 10 CaU 
 
 tate of Schroeder, 46 Id. 304. 386 ; Smith v. Hall, 19 Id. 85. 
 
 5 Code of Civ. Proc, sec. 1497. ' Code of Civ. Proc, sec 1502. 
 e Code of Civ. Proc, sec 1498 ; 
 
240 FORMS OF COMPLAINTS. § 429. 
 
 ministrator.i Such judgment is not a lien on t*he real estate of 
 the decedent, but is payable in due course of administration.' 
 An objection that such claim was not presented to the adminis- 
 trator or executor, after the death of the defendant, must be 
 made in the court below. It comes too late if made in the ap- 
 pellate court for the first time. 3 
 
 § 429. The Same — Further Construction of California 
 Statutes. — The words "claimant" and "claim" and "de- 
 mand," as used in the California statutes, are synonymous, and 
 have reference to such debts and demands against the decedent 
 as might have been enforced against him during his life-time, 
 by personal action, for the recovery of money, and upon which 
 only a money judgment could have been rendered.^ They do 
 not include expenses incurred in the administration,^ or the 
 family allowance, ^ as the object of the statute is mainly to 
 prevent estates from being squandered or wasted in unnecces- 
 sary litigation ;'' nor an assessment for public improvements 
 made after the death of the decedent. ^ And in an action of 
 accounting between a surviving partner and the representative 
 of the deceased partner, the surviving partner is entitled to an 
 allowance for sums drawn by the deceased partner from the 
 partnership assets in his life-time, although the claim for the 
 sum so drawn has never been presented for allowance and ap- 
 proval,9 as the claim for such advances need not be presented 
 until the partnership affairs are wound up.^" Nor need a claimant 
 of specific property present a claim. ^^ Claims which are necessary 
 to be presented may be, before notice to creditors is published.^' 
 In Ohio a formal presentation of a claim, which the adminis- 
 trator had previously seen, is not necessary when, on being 
 requested to allow it, he refuses, the claim being then present 
 in the owner's pocket." A refusal to allow a claim in that state 
 is equivalent to a rejection, i* but the requirements of presentation 
 does not apply to proceedings to revive an action before judg- 
 ment against the personal representative. ^^ In Missouri a de- 
 
 1 Estate of Page, 50 Cal. 40. » Manuel v. Escolle, 2 Weat Coast 
 
 2 Code of Civil Proc. sec. 1506 ; Rep. 375. 
 
 Drake v. Foster, 62 Cal. 225. " Gleason v. White, 34 Cal. 258. 
 
 ' Drake t. Foster, 52 Cal. 225. " Gunter v. Janes, 9 Cal. 643. 
 
 * Gray V. Palmer, 9 Cal. 616; Fal- '2 uicketson v. Richardson, 19 Cal. 
 
 Ion V. Butler, 21 Id. 32; Estate of 330; Janin v. Browne, 9 Id. 87. 
 
 McClausland, 52 Id. 568. " Kyle's Adm'r v. Kyle, 15 Ohio St. 
 
 6 Deck V. Gherke, 6 Cal. 666. 15. 
 
 « Estate of McClausland, 52 Id. 568. " Harter et al. v. Taggart's Ex'rs, 14 
 
 ' Ellissen v. Halleck, 6 Cal. 386 ; Ohio St. 122 ; Stambaueh v. Smith, 23 
 
 Falkner v. Folsom, Id. 412. Id. 584. 
 
 ' Hancock v. Whittemore, 50 Cal. '» Musser'a Ex'rs v. Chase. 29 Ohio 
 
 622; People v. Olvera, 43 Id. 492. St. 677. 
 
§ 431. EXECUTOKS AND ADMINISTEATORS. 241 
 
 fendant in an action by an administrator need not aver presenta- 
 tion of a set-off.* Nor, in New Jersey, need an assignee, whose 
 assignor presented the claim, again present it.^ In Arkansas a 
 plaintiff seeking to foreclose a mortgage or vendor's lien need 
 not present the same for allowance. ^ In Idaho it has been held 
 that when the United States comes into court seeking to enforce 
 a claim against an estate, it is subject to the same statutory re- 
 quirements as individuals and must present its claim.* The 
 non-presentation of a claim only defeats the present right to 
 recover. If the plaintiff has failed in his action by reason of 
 such non-presentation, the claim may be presented if within 
 the statutory time, and if rejected, a new suit instituted which 
 will not be barred by the former judgment. ^ 
 
 § 430. Allowance and Rejection of Claims. — An allow- 
 ance of a claim by one executor is sufficient to bind the estate.® 
 Such allowance must be made in writing; a verbal allowance 
 gives the claimant no cause of action.^ After allowance by the 
 executor or administrator, and approval by the judge, the claim 
 has the force and effect of a judgment against the estate, and is 
 payable in due course of administration.^ The presentation of 
 a claim to the executor or administrator is the commencement 
 of a suit upon it, and stops the running of the statute of limi- 
 tations.* And where the executor neglects to indorse his allow- 
 ance or rejection for more than ten days, the law presumes that 
 the claim was rejected on the expiration of the tenth day.*" The 
 claimant of a rejected claim, in recovering judgment thereon is 
 entitled to interest from the time of presentment, i* 
 
 § 431. Presentation of Claim Secured by Mortgage 
 — In California. — The statutes of California regulating the pre- 
 sentation of claims secured by mortgage or other lien have been 
 frequently changed. The decisions of the courts in that state, 
 unless interpreted with reference to the provisions of the par- 
 ticular statute applicable thereto, would seem in irreconcilable 
 conflict. Under the original sections of the act to regulate the 
 estates of deceased persons, the requirement that all claims 
 
 ^ Lay, Adm'r etc. v. Mechanics' ' Pitte v. Shipley, 46 Oal. 154. 
 
 Bank, 61 Mo. 72. 8 Estate of Cuok, 14 Cal. 129 ; Deck's 
 
 2 Eyan v. Flanagan, Adm'x, 38 N. Estate v. Gherke, 6 Id. 666 ; Estate 
 J. L. 161. of Hidden, 23 Id. 363 ; Magraw v. 
 
 3 Allen V.Smith, 29 Ark.74;Simms McGlynn, 26 Id. 420; Pico v. De la 
 V. Richardson, 32 Id. 297 ; McClure v. Guerra, 18 Id. 422 ; McKinney v. 
 Owens, 32 Id. 443. Davis, 6 Mo. 501 ; Kenneriy v. Shep- 
 
 * United States v. Hailey, 2 West ley, 15 Id. 640. 
 
 Coast Kep. 824. » Beckett v. Selover, 7 Cal. 215. 
 
 » Hentsch v. Porter, 10 Cal. 560. i" Bice v. Inskeep, 34 Cal. 226. 
 
 6 ■Willis V. Parley, 24 Cal. 490. " Pico v. Stevens, 18 Cal. 377. 
 
 ESTEE, Vol.. 1—16 
 
242 FORMS OF COMPLAINTS. § 431. 
 
 must be presented for allowance or rejection before any action 
 could be maintained thereon was held broad enough to include 
 claims secured by mortgage.^ Such continued to be the law on 
 this subject until the adoption of the code of civil procedure in 
 1873. By sections 1493 and 1500 thereof it was rendered un- 
 necessary for the holder of a mortgage or other lien to present 
 the same to the representative of the estate. In 1874 these 
 sections were amended so as to render such presentation neces- 
 sary. In 1876 these sections were again amended so as to malie 
 a presentation unnecessary. Section 1500, after providing that 
 no holder of any claim against an estate shall maintain any ac- 
 tion thereon unless the claim is first presented to the executor 
 or administrator, contains the following provision: "An action 
 may be brought by any holder of a mortgage or lien to enforce 
 the same against the property of the estate subject thereto, 
 where all recourse against any other property of the estate is 
 expressly waived in the complaint ; but no counsel fees shall be 
 recovered in such action unless such claim be so presented." 
 These sections as amended in 1876 continue to be the law in 
 California,^ and render it unnecessary for a pledgee to present 
 his claim to the representative of the pledgor, unless he seeks 
 recourse against other property of the estate than that pledged.^ 
 And in construing the amendments of 1874 repealing the pro- ' 
 vision authorizing actions upon mortgages to be maintained 
 against the property of thg estate of a deceased mortgagor, 
 without presentation, it has been held that the same are not re- 
 troactive, and do not give to a notice to creditors previously 
 published, any effect which.it did not have under the law under 
 which it was published ; and that a mortgage falling due after 
 the amendment was not barred by a failure to present the claim.'' 
 If, however, the mortgage or other lien is on the homestead, the 
 claim must be presented for allowance, as section 1475 of the 
 code of civil procedure requires such presentation, and section 
 1600 will be construed so as to give it effect.^ But where a 
 debtor, before his decease, conveys land to a person in trust, to 
 secure his promissory note, and after his decease the creditor 
 fails to present his claim to the executoi- or administrator within 
 the time fixed by the statute after publication of notice to cred- 
 
 1 Probate Act, sees. 130, 136 ; Ellis- ' Hibernia Savings etc. Soc. v. Jor- 
 sen V. Halleck, 6 Cal. 386 ; Pico v. De dan, 5 Pac. 0. L. J. 381 
 la Guerra, 18 Id. 428 ; Fallon v. But- s Estate of Kibbe, 57 Cal. 407. 
 
 //' ?}JK?^' '^'^'l^- ^^'^''^y- 24 * Hibernia S. & L. Soc v. Hayes, 
 
 Id. 490; Ellis v. Polhemus, 27 Id. 56 Cal. 297. 
 
 350; Pitte v. Shipley, 46 Id. 160; ^ Camp v. Grider, 62 Cal. 20 
 Marsh v. Dooley, 62 Id. 232. 
 
§ 433k EXECUTORS AND ADMINISTRATORS. 243 
 
 itors, the executor can not invoke the power of a court of equity 
 to compel the surrender of the security, or to enjoin the cred- 
 itors from selling the land under the power contained in the deed 
 of trust.^ This rule is based upon the well-known doctrines that 
 statutes of limitations do not destroy the right of action, but 
 merely bar the remedy, and that he who seeks equity must do 
 equity. 
 
 § 432. Allegation of Presentation, and Rejection of 
 Claim. — Where the statute provides that claims must be presented 
 for allowance, and rejected before action can be maintained 
 thereon, all the facts necessary to show a valid presentation and 
 rejection, with the dates on which they severally occurred, must 
 be alleged. It is well also to attach to and make part of the com- 
 plaint a copy of the claim as presented,. that the court may judge 
 of its legal sutBciency.^ 
 
 §433. Forms of Complaints— Description of Party — 
 Capacity — Promise. — In an action against executors for a 
 legacy, plaintiff must aver and prove existing assets. ^ A legatee 
 who has been represented by counsel at the allowance of accounts 
 against the estate, will not be allowed, after a lapse of time, to 
 come in and have the allowance set aside on a mere general 
 averment of newly discovered evidence. In such a case it is not 
 sufficient to allege ignorance at the time of allowance, but the 
 plaintiff must go further, and show that he could not, with the 
 use of due diligence on his part, have made himself acquainted 
 with, or ascertained the existence of the facts.'* A declaration 
 on a promise made by the defendant as administrator must 
 aver assets in order to charge him personally de bonis propriis.^ 
 In Louisiana, an action brought by a creditor of a testator 
 against his executor, charging him with a devastavit, without 
 averring proceedings to compel the defendant to exhibit a table 
 of distribution, can not be maintained. ^ A complaint against 
 
 1 Whitmore v. San Francisco Sav- thereon, was attached to the com- 
 ings Union, 50 Gal. 145. See also plaint, was held sufficient. 
 
 Sichel V. Carrillo, 42 Id. 493, ' Dewitt v. Sohoonmaker, 2 Johns. 
 
 2 Bllissen v. Halleck, 6 Gal. 393 ; 243. 
 
 Falkner v. Folsom, Id. 412; Hentsch * Williams v. Price, 11 Gal. 212. 
 
 V. Porter, 10 Id. 558 ; Fallon v. But- ^ Adams v. Whiting, 2 Cranch 0. Ct 
 
 ler, 21 Id. 24; Ellis v. Polhemus, 27 132. As to sufficiency of complaint 
 
 Id. 354; Benedict v. Hagein, 2 Id. against executrix, in her own wrong, 
 
 386; Janin V. Browne, 59 Id. 37. In which did not charge her as such, see 
 
 this latter case, a complaint that Harper v. West, 1 Cranch G. Ot. 192 ; 
 
 alleged that the claim sued upon was or of one which did not show by whom 
 
 presented to the administrator within the letters are granted: Oawood v, 
 
 the time limited in the notice to cred- Nichols, 1 Id. ISO. 
 
 itors, and a copy of the claim pre- ' McGill v. Armour, 11 How. U. S. 
 
 sented, with the verification annexed, 142. 
 together with the indorsements 
 
244 FORMS OF COMPLAINTS. § 434. 
 
 executors seeking to charge them in their representative capacity 
 can not be sustained on demurrer, if the facts alleged show only 
 a personal liability on their part.^ If the defendant is described 
 in the caption of the complaint as administrator, it is immaterial 
 so long as the facts stated in the body of the complaint show 
 he is not sought to be charged as administrator.^ 
 
 In an action against executors, plaintiff may, to save the stat- 
 ute of limitations, lay the promise as made by the representa- 
 tive. ^ A complaint which alleges a promise by deceased, and 
 also a promise by his administrators, though informal, is not 
 bad on general demurrer, if it appears that defendants are 
 charged. in their representative capacity.* Where the complaint 
 did not state that the promises were made in the testator's life- 
 time, nor to him, nor for an indebtedness to him, nor to them 
 as administrators, the action is in their individual and not in 
 their representative capacity.^ 
 
 § 434. Torts, Actions of. — No action can be sustained 
 against an executor or administrator as such on a penal statute; 
 nor when the cause of action is founded upon any malfeasance 
 or misfeasance, is a tort, or arises ex delicto, such as trespass, 
 false imprisonment, assault and battery, slander, deceit, divert- 
 ing a watercourse, etc., when the complaint imputes a tort done 
 to the person or goods of another by the testator or intestate.^ 
 
 § 435. Administrator with Will Annexed.— If the tes- 
 tator appoints an executor of his will, and the executor dies, 
 and an administrator with the will annexed is appointed, the 
 administrator with the will annexed, under the statutes of Cali- 
 fornia, possesses all the powers conferred on the executor named 
 in the will, and can sell the land devised if the executor could 
 have sold it.' 
 
 § 436. Action for Use and Occupation against Execu- 
 *0J^' — At the common law an executor has constructive pos- 
 session of the decedent's goods from the time of his death, and 
 may declare on his own possession " as executor," although in 
 fact he never has had possession. Under the laws of California 
 an administrator is vested with the right to the possession of 
 the real estate of his intestate as well as to the personal prop- 
 
 iBartlett v. Hatch, 17 Abb. Pr. » Worden v. Worthington, 2 Barb. 
 2 P«„„.„ _ TT„._u..,=__ - ^, ??§ ; see Merritt v. Seaman, 6 N. Y. 
 350 
 
 People V. Houghtallng, 7 Oal. 168.' 
 
 5 3 Williams on Ex., pp. 1728, 1729; 
 Bople V. Gibbs, 9 Wend. 29 ; Eustace 
 , „ ,. „ . . - .. Jahns, 88Cal. 3. 
 
 * Curtis y. Bowrie, Adm'rs of, 2 ' Kidwell v. Brummagim, 32 Cal. 
 McLean, 3(4. 43g. ^ 
 
 sWhitaker v. Whitaker, 6 .Johns. People v. Gibbs, 9 WenU 29; Eustace 
 112 ; Carter v. Phelps, 8 Id. 440. v. Jahns, 38 Cal. 3. 
 
§ 439. HUSBAND AND WIFE. 245 
 
 erty ; and his duties and liabilities in respect thereto are there- 
 fore of the same general character. If the administrator occu- 
 pies and uses premises belonging to his estate, he beeomes at 
 least the tenant of the estate, liable in any event for the value 
 of its use and occupation ; and if he makes a profit, he becomes 
 liable for that also, at the election of the parties in interest; 
 such is the law of his relation. If in this case the administra- 
 tor sustains a loss, the loss is his, and the hardship is no greater 
 than a like result in the case of any other tenant. ^ 
 
 CHAPTER V. 
 
 HUSBAND AND WIFE. 
 
 § 437. Against Hisband for Nacessaries Furnished 
 to Defendant's Family, without his Express Request, 
 at a Reasonable Price. 
 
 Form No. 93. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , he 
 
 furnished to Mary Smith, the wife of defendant, at her request, 
 sundry articles of [food or clothing, etc. J, to wit: 
 
 II. That the same were necessary to her maintenance, and 
 suitable to her station in life. 
 
 III. That the same were reasonably worth dollars. 
 
 IV. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Dkmand oj' Judgment.] 
 
 § 438. Against Husband for Goods Furnished, to 
 
 Wife. — To sue a husband for goods furnished to his wife, it 
 should be alleged that the goods were sold and delivered to him. 
 If she were authorized by the relationship, the nature and charac- 
 ter of the goods, and his circumstances to buy them, they were 
 in law sold to him ; and averring they were sold to her states no 
 cause against him, and such averments may be omitted as mere 
 evidence and not ultimate facts. ^ 
 
 § 439. The Same — Husband, when Liable. — If a husband 
 fails or refuses to provide a support for his wife, the law au- 
 thorizes her to purchase from others on the credit of her hus- 
 band, whatever is necessary fo%her maintenance, and suitable 
 
 1 Walls V. Walker, 37 Cal. 424. ' Jacobs v. Scott, 58 Cal. 74. 
 
246 FORMS OP COMPLAINTS. § 440. 
 
 to her station in Hfe.i It is not necessary to allege that the 
 wife acted as the husband's agent, or with his consent. In 
 nine cases out of ten, these averments would be fictions of law, 
 which must never be pleaded under the code. The husband is 
 liable in the proper cases, although he had expressly forbidden 
 the plaintiff to trust his wife.^ 
 
 § 440. The Same— Husband, when not Liable.— A wife 
 who, without cause, and against her husband's will, refuses to 
 live with him, can not bind him for necessaries to a third party, 
 who knows that she is not living with her husband, and who 
 sells to her without further inquiry. » 
 
 § 441. Against Husband and Wife for Goods Sold, for 
 her Separate Estate. 
 
 Farm No. 94> 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That between the day of , 18..., and the 
 
 (Jay of , 18..., at , the plaintiff sold and 
 
 delivered to the defendant, A. B., who was then, and still is, 
 the wife of the defendant, C. B., materials used for the build- 
 ino- of a house for her, upon and for the benefit of her separate 
 
 lands and premises, situated in the town of , in the 
 
 county of , bounded and described as follows: [De- 
 scribe the premises.] 
 
 II. That the said defendant, A. B., in consideration thereof, 
 then and there promised the plaintiff that she would pay for 
 
 the same dollars, out of her separate property, and 
 
 did agree and intend that the same should be paid for out of 
 her separate property. 
 
 III. That said materials are reasonably worth the said sum 
 of dollars, and that no part thereof has been paid. 
 
 IV. That plaintiff further alleges, on information and belief, 
 that the premises above mentioned and described, were, at and 
 
 before the day of , 18... [date of marriage], since 
 
 have been, and now are, her sole and separate property, and 
 the same are worth about dollars. 
 
 Wherefore the plaintiff demands judgment. 
 
 1. That the separate property aforesaid be charged with the 
 
 payment of the said sum of dollars, with interest 
 
 from , together with the costs of this action. 
 
 1 Galland v. Galland, 38 Cal. 265. « This form is applicable to New 
 
 2 Kent's Com. 148; Sykes v. Hal^ York and some other states. The 
 Btead, 1 Sandf. 483 ; Cal. C. C, sec. 174. following, Form No. 95, is adapted to 
 
 2 Brown v. Mudgett, 40 Vt. 68 ; the practice in California. 
 Cal. Civil Code. sec. 175. 
 
§ 445. HUSBAND AND WIFE. 247 
 
 2. That the said property be applied to the payment of the 
 same. 
 
 3. That a trustee be appointed to take possession of her said 
 separate property, and dispose of it, or of so much thereof as 
 shall be necessary to satisfy the same. 
 
 § 442. Against Husband and Wife for Goods Sold to 
 the Wife for her Separate Estate. 
 
 Foi-m No. 95. 
 [Title.] 
 
 The plaintiff complains of the defendants, and alleges: 
 
 I. That between the day of , 18..., and the 
 
 day of , 18..., at , the plaintiff sold and 
 
 delivered to the defendant, A. B., who then was and still is the 
 wife of C. B. , at her request, materials used for the building of 
 a house for her, upon and for the benefit of her separate lands 
 and property. 
 
 II. That said materials were of the agreed price and value [or 
 
 were reasonably worth the sum] of dollars, and that no 
 
 part thereof has been paid. 
 
 Wherefore the plaintiff demands judgment against the defend- 
 ants for the said sum of dollars, and interest thereon from 
 
 the day of , 18 ..., and costs of suit. 
 
 § 443. Charging Separate Estate. — A complaint under 
 the New York practice, which directly alleges that the note was 
 given by her for the express purpose of charging her separate 
 estate with its payment, is suflScient on demurrer.^ So it seems 
 a complaint seeking to charge the separate estate of the wife is 
 bad, if it does not set forth the property and the nature of her 
 interest.^ 
 
 § 444. Common and Separate Property Equally Lia- 
 ble. — The separate property of the wife, and the common prop- 
 erty of both husband and wife, are equally liable for the debts 
 of the wife contracted before marriage. ^ The statute changes 
 the common-law rule on this subject. In an action against the 
 husband and wife, on a sole debt of the wife contracted by her 
 before marriage, a judgment may be rendered to be collected out 
 of the common property of both husband and wife.* 
 
 § 445. Consideration. — If the debt is contracted for the ben- 
 efit of the wife, or of her estate, no allegation of an intent to 
 
 •Tale V. Dederer.-lS N. T. 265; » Van Maren v. Johnson, 15 Cal. 
 
 Francis v. Ross, 17 How. Pr. 561; 313. 
 
 Phillips V. Hagadon, 12 Id. 17. * Vlautin v. Bumpus, 35 Cal. 214; 
 
 2 Mallorv v. Yanderhevden. 3 Barb, see Oiv. Code, c. 3, Husband and Wife, 
 
 Ch. 9 ; Dyett v. N. A. C. Co., 20 Wend. sees. 158, 167, 171. 
 670; Sexton v. Fleet, 6 Abb. Pr. 8. 
 
248 POEMS OF COMPLAINTS. § 446. 
 
 charge it on the estate is necessary.^ Thus where the wife exe- 
 cutes a note, although as surety, such intent need not be averred ; 
 it is presumed from her signing an express contract in writing.^ 
 In New York, if the consideration were not for the benefit of the 
 wife or her estate, this allegation is necessary.^ The agreement 
 charging her estate must be in writing ; but this is not necessary 
 to be alleged.* 
 
 § 446. Alleging Coverture. — The fact of coverture has 
 ceased to have any relation to the technical right of maintain- 
 ing an action by a married woman in respect to her separate 
 property, and the allegation oi coverture in the complaint is 
 not necessary. 5 
 
 § 447. Demand and Form of Judgment. —To charge the 
 separate estate of a wife in an equitable action in New York, 
 the demand must be as in this form.^ But there is no differ- 
 ence in the form of judgment, though the execution is re- 
 stricteci.'' 
 
 § 448. Estate must be Showrn. — The complaint must 
 show what the estate is, and what is its value.^ But such is not 
 the practice in California ; for in this state the complaint need 
 not set out any separate property of the defendant, because 
 the wife was liable in personam before coverture, and under 
 our statute continues so after marriage.' 
 
 § 449. For Benefit of her Separate Lands. — The weight 
 of the decisions is, that the acts relative to the rights and lia- 
 bilities of married women in New York, enlarged only the 
 power of married women to hold and convey their separate 
 estate, but did not operate to subject them to new remedies on 
 their personal contracts.^" Under the California code she may 
 
 1 Tale V. Dederer, 18 N. Y. 273, see Sexton v. Fleet, 6 Abb. Pr. 8 ; S. 
 284.285. C, ISHowPr. 105. 
 
 2 Williams v. Urmston, 35 Ohio St. s gexton v. Fleet, 6 Abb. Pr. 9; S. 
 296; Phillips v. Graves, 20 Id. 371; C, 15 How. Pr. 106; Cobine v. St. 
 Avery V. Vansickle, 35 Id. 270; Lil- John, 12 Id. 336. 
 
 lard V. Turner, 16 B. Mon. 374; Dob- » Bostic v. Love, 16 Cal. 69; see 
 
 bin V. Hubbard, 17 Ark. 189; Patton also Foote v. Morris, 12 N. Y. Leg. 
 
 V. Kinsman, 17 Iowa, 428 ; Boarman Obs. 61. 
 
 V. Groves, 23 Miss. 280; During v. " Francis v. Boss, 17 How. Pr. 561 ; 
 
 Boyle, 8 Kans. 525 ; Metropolitan Gates v. Brower, 6 N. T. (5 Seld. 
 
 Bank V. Taylor, 62 Mo. 338. 205; Switzer v. Valentine, 4 Duer ) 
 
 8 Yale V. Dederer, 18 J>f. Y. 281. 96 ; Cobine v. St. John, 12 How. Pr. 
 
 * Yale V. Dederer, 22 N. Y. 450. 333 ; Coon v. Brook, 21 Barb. 546. 
 
 5 Peters T. Fowler, 41 Barb 467. For other modes of pleading, see 
 
 « Cobine v. St. John, 12 How. Pr. Coster v. Isaaqg, 16 Abb. Pr. 828 ; 
 
 333; Coon v. Brook. 21 Barb. 546. Baldwin v. Kimmel, Id. 353; Young 
 
 'Laws New York, 1858. p. 1057. v. Gori, 13 Id. IS, note; Thompson 
 
 For form of complaint on a note in- v. Sarsjent, 16 Id. 452; Aitken v. 
 
 dorsed by the wife, while sole, before Clark, 16 Id. 328, note, 
 the delivery of the note to the payee, 
 
§ 4:56. HUSBAND AND WIPE. 249 
 
 make herself liable without specially charging her separate 
 estate. 1 
 
 § 450. Homestead. — A complaint by husband and wife to 
 recover the homestead conveyed away by the deed of the hus- 
 band alone, must aver either that the premises were occupied 
 as a homestead at the date of the conveyance, or that they had 
 not been previously abandoned.* So a married woman can not 
 alone convey away the homestead.* 
 
 § 451. Marriage. — A marriage de facto, although not legally 
 solemnized, is sufficient at common law to render the husband 
 liable for the previously contracted debts of the wife.* It is 
 not material whether the marriage was solemnized, if the par- 
 ties afterwards, and after the passage of the act, resided and 
 acquired the property here.* 
 
 §452. Misjoinder of Causes of Action. — Claim for per- 
 sonal judgment against husband^ and enforcement of a lien 
 against wife's separate estate, are incompatible.^ 
 
 § 453. Promise of Married Woman. — In New York, in 
 an action to charge the separate estate of a married woman 
 upon her promise, it is necessary that the complaint allege 
 either that the consideration of the prosiise was for the benefit 
 of the estate, or that she intended to charge such estate.'' 
 
 § 454. Property Liable for Debts of Wife. — I'he sepa- 
 rate property of the wife is liable for her debts contracted 
 before marriage, and the separate property of her husband is 
 not.8 The interest of the wife in the common property is a 
 mere expectancy, like the interest which an heir may possess in 
 the property of his ancestors.^ 
 
 § 455. The Same — Property Owned before Marriage. — 
 The complaint is not demurrable for omitting to designate the 
 wife's separate property, which by the statute law of New York, 
 1853, is alone bound by the judgment in such case.i" 
 
 § 456. Rent. — Where husband and wife are sued for rent 
 claimed on a lease made by plaintiff to the. wife, plaintiff and 
 
 1 See chapter 3, Civil Code. ' Palen v. Lent, 5 Bosw. 713 ; Francis 
 
 2 Harper v. Forbes, 15 Cal. 202. v. Boss, 17 How. Pr. 561. 
 
 » Poole V. Gerard, 6 Cal. 73. « Cal. Civil Code, sec. 170; Van 
 
 « Norwood V. Stevenson, Andr. 227, Maren v. Johnson, 15 Cal. 811; Van- 
 
 228 ; Robinson v. Nahon, 1 Camp, derhej-den v. Mallory, I Comst. 472. 
 
 245; Watsonv. Threlkeld, 2Esp.637. » Van Maren v. Johnson, 16 Cal. 
 
 5 Dye V. D\'e, 11 Cal. 163; see Peo- 311 ; Guice v. Lawrence, 2 La. An. 
 pie v Anderson, 26 Id. 129 ; Graham 226 ; see also Packard v. Arellanes, 
 v. Bennett, 2 Id. 503 ; Letters v. Uady, 17 Cal. 587 ; Vlantin v. Bumpus, 35 
 10 Id 583. I^- 2^*' 
 
 6 Palpn V. Lent, 5 Bosw. 713; Sex- "> Foote v. Morris, 12 N. Y. Leg. 
 ton V. Fleet, 2 Hilt. 477. Obs. til. 
 
250 FORMS OF COMPLAINTS. § 457. 
 
 the wife being tenants in common of the property, it was held, 
 that the wife can be liable only as sole trader under the statute ; 
 and that the complaint must aver facts requisite to establish 
 her liability in that character, and that the allegation that she 
 " was doing business as a feme sole, with the consent of her 
 husband," is insufficient." 
 
 § 457. Sale and Delivery. — The complaint must allege a 
 sale for the benefit of such estate.^ Alleging a sale and deliv- 
 ery to the husband, instead of alleging a sale and delivery to 
 the wife on the faith of or for the benefit of her separate estate, 
 is not 8uflacient.3 Merely alleging a sale on the credit of her 
 estate, is insufficient on demurrer.* 
 
 § 458. Separate Property. — In an action against husband 
 and wife to recover antenuptial debts, the complaint need not 
 designate wife's separate property.^ Where the complaint does 
 not aver that the purchase -money paid for land bought in the 
 name of the wife was her separate property, the presumption 
 is that it is common property. ^ 
 
 § 459. Sufficient Averment. — Where the complaint in an 
 action upon the contract of a married woman alleged that the 
 property sold was for the use and benefit of the wife, that it 
 was purchased at her special instance and request, and used in 
 and about her premises, it is a sufficient averment of a contract 
 made with the wife in relation to her separate property.'' 
 
 § 460. Against Husband and Wife on Note by Wife 
 while Sole. 
 
 Form No. 96. 
 [Title.] 
 
 The plaintiff complains of the said C. D. and E., his wife, 
 
 the defendants, for that the said E., heretofore, whilst ghe was 
 
 sole and unmarried, on the day of , 18..., at 
 
 [place of date] , made her certain promissory note in writing of 
 
 that date, and then and there delivered the same to the said 
 
 plaintiff, and thereby promised, by her then name of E. F . , to 
 
 pay to the said plaintiff, or order, the sum of $ in 
 
 after the date thereof ; and the said E. F. , has since intermarried 
 
 with the said C. D. ; yet the said defendants have not, nor hath 
 
 either of them, paid the said sum of money, or any part thereof, 
 
 to t&e said plaintiff. 
 
 1 Aiken v. Davis, 17 Cal. 119, »Foote v. Morris, 12 N. T. Leg. 
 
 » Bass V. Bean, 16 How. Fr. 93. Obs. 61. 
 
 ' Arnold v. Bignold, 16 How. Pr. • Althol v. Conheira, 38 Cal. 230. 
 IfiS. ' Musser v. Hobart, 14 Iowa, 248. 
 
 ♦ Bass V. Bean, 16 How. Pr. 93. 
 
§ 464. HUSBAND AND WIFE. 251 
 
 Wherefore the said plaintiff prays judgment against the said 
 
 defendants for the said sum of $ , together with interest 
 
 thereon from the day of , 18..., and costs of suit. 
 
 § 461. By a Meurried Woman. 
 
 form No. 97. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , 
 
 the plaintiff intermarried with one A. B., whose wife she now is. 
 
 n. That on the day of , 18..., at , 
 
 the defendant made his promissory note payable to the plaintiff 
 
 for the sum of dollars, and which note is in words and 
 
 figures as follows: [Copy note. J 
 
 in. That the consideration of the said note was the payment 
 
 by this plaintiff to the maker thereof of the sum of 
 
 dollars, which said sum was at and before the time of her mar- 
 riage owned" by her, and thereafter was her sole and separate 
 property, and so continued until the date the said note became 
 due, and that said note thereupon became and ever since has 
 remained her sole and separate property [or otherwise, accord- 
 ing to the circumstances, showing it to be her separate estate]. 
 [Demand of Jubbment.] 
 
 § 462. Division of Common Property. — Tn an action for 
 the division of the common property of husband and wife, after 
 a decree of divorce, the plaintiff, to bring herself within the 
 provisions of the act "defining the rights of husband and wife," 
 passed April 17, 1850, must aflJrmatively state such facts as give 
 her the right to the property under the act.^ 
 
 § 463. Marriage, Averment of. — "Where the plaintiff 
 averred in her complaint, in a suit brought for her distributive 
 share of the estate of an alleged deceased husband, that the 
 deceased made proposals of marriage to her, when she accepted, 
 and consented to live with hira as his true and lawful wife ; and 
 that in accordance with his wishes she henceforth lived and co- 
 habited with him as his wife, always conducting herself as a 
 true, faithful, and affectionate wife should do, it was held that 
 these were insuflBcient averments of the existence of a marriage, 
 and that the facts aveited were only inima facie evidence of a 
 marriage.* 
 
 § 464. Mortgage. — ^It is immaterial whether a conveyance 
 to the wife was made with or without a fraudulent intent; in 
 
 1 Dye V. Dye, 11 Cal. 163; see Johnson v. Johnson, Id. 200. 
 
 ' Letters v. Cady, 10 Cal. 533 ; see People v. Anderson, 26 Id. 129. 
 
252 FORMS OP COMPLAINTS. § 465. 
 
 either case it is unavailing against the mortgage, because the 
 inference from the language of the complaint that the convey- 
 ance was upon purchase and during marriage, and consequently, 
 that the property was common property, is not negatived by 
 any averment that the property was transferred to her before 
 marriage, or was a gift to her, or in exchange for her separate 
 property. 1 
 
 § 465. Mortgage of Separate Property. — Where a wife 
 sought relief by a bill in chancery from a mortgage of her sepa- 
 rate property, it was no objection to the bill, as a rule of pleading, 
 that a husband was made a party to it with the wife. He acts only 
 as her prochein ami.^ 
 
 § 466. Separate Property of Wife.— The law of Califor- 
 nia provides that all property owned by the wife before her 
 marriage, or after marriage, acquired by gift, bequest, devise, 
 or descent, shall be her separate estate ; ^ the law in this respect 
 being similar to that of Texas and Louisiana. ■* A general aver- 
 ment that the property is the separate property of the married 
 woman, is not bad on demurrer.^ 
 
 § 467. Services of Wife before Marriage. — The husband 
 is properly joined with the wife in an action for services performed 
 by her, and the action brought therefor, previous to marriage.^ 
 
 § 468. When Husband may Join. — When a married 
 woman is a party, her husband must be joined with her, except 
 in special cases.' And even in these special cases it is not obli- 
 gatory on the wife to sue alone.* 
 
 § 469. When She may Sue Alone. — In actions concern- 
 ing her separate estate, she may sue alone, as if she were a 
 feme sole.^ So in Illinois, under the act of 1861, p. 24,1" So, 
 also, in New York, under the code of procedure, section 114. 
 Under the new code of procedure in New York, section 450, a 
 married woman appears, prosecutes, or defends alone or 
 joined with other parties, as if she were single. So, also, 
 by the laws of Pennsylvania.^' So, also, under the laws of 
 
 '■ Kohner v. Ashenauer, 17 Cal. 578. « Van Maren v. Johnson, 15 Cal. 
 
 2 Bein v. Healh, 6 How. U. S. 228. 310. 
 
 sCWil Code, see. 162; Meyer v. ' Code C. P., sec. 370. 
 
 Kinzer, 12 Cal. 251 ; Smith v. Smith, 8 Van Maren v. Jonhson, 15 Cal. 
 
 Id. 224. 310. 
 
 * Huston V. Curl, 8 Tex. 242 ; Chap- » Code C. P., sec. 370. 
 
 man V. Allen, 15 Id. 278; Claibornev. "See Emeison v. Clayton. 32 HI. 
 
 Tanner, 18 Id. 69; Dominguezv. Lee, 493. 
 
 V -^^-^ ^^-^ ,^isher v. Gordy, 2 La. u See Goodyear v. Eumbiugh, 18 
 
 An 763 ; Webb v. Peet, 7 Id. 92. Pa. St. 480 ; Oumraines' App., 11 Id. 
 
 5 Spies V. Accessory Transit Co.. 5 275; Sheidle v. Weishlee, 16 Id. 134; 
 
 Duer, 662 ; Lippman v. Petersburgh, Long's Adra'r v. While's Adm'r, 5 J. 
 
 10 Abb. Pr. 254. J. Marsh. 230. 
 
§ 473. HUSBAND AND WIFE. 253 
 
 Texas.^ A married woman may sue alone in actions against 
 her husband.^ 
 
 § 470. When She can not Sue Alone. — The wife can not 
 bring suit in her own name on a contract which the law does not 
 authorize her to make.^ Nor to recover the homestead.* 
 Nor for damages for a personal injury.^ The question of the 
 rights of married women is regulated by the statutes of the 
 several states. Hence the authorities referred to have little 
 application, except in the states where such laws are in force, 
 or the decisions were made. In Illinois, whenever a wife joins 
 with her husband, her interest must appear.^ 
 
 § 471. Against a Married Woman, as Sole Trader. 
 
 Farm No. 98. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That the defendant is the wife of one A. B. 
 
 II. That on the day of , by a decree of the 
 
 county court of the county of , in this state, the de- 
 fendant was decreed a sole trader ; and at the time of making 
 the note hereafter mentioned, the defendant was, and still is, a 
 sole trader, carrying on husiness as at 
 
 III. That on the day of , 18..., at , 
 
 the plaintiff sold and delivered to the defendant, at her request 
 
 of the value of dollars, which were used by 
 
 the defendant in her said business, as sole trader. 
 
 IV. That in consideration thereof, the defendant, as sole 
 trader, made her promissory note, of which the following is a 
 copy. [Copy note.] 
 
 V. That she has not paid the same. 
 
 [Dbmasd of Judgment.] 
 
 § 472. Separate Property. — The letters received by a mar- 
 ried woman from ker first and second husband, before her mar- 
 riage with the latter, are her separate property^like jewels — and 
 her gift of them to her daughter is valid as against her husband.'' 
 
 § 473. Sole Trader. — A complaint, in an action to recover 
 a debt from a mamed woman, which charges that she is a 
 sole trader under the statute, is sufficient, without any aver- 
 ment of facts showing that the debt was contracted in the 
 
 1 Mclntire v. Chappell, 2 Tex. 378; fornia Code Civil Procedure, sec. 370, 
 O' Bi-ien v. Hilburn, 9 Id. 297. subd. 1. 
 
 2 Kashaw v. Kashaw. 3 Cal. 812. * Sheldon v. Uncle Sam, 18 Gal. 526. 
 
 3 Snyder v. Webb, 3 Cal. 83. « 2 Black. 1236. 
 
 * Poole V. Gerrard. 6 Cal. 71 ; G-uiod ' Grigaby v. Breckinridge, 2 Bush, 
 V. Guiod, 14 Id. 506; but see Cali- 480. 
 
254 POKMS OF COMPLAINTS. § 474. 
 
 particular business which she had declared her intention to 
 carry on."^ 
 
 § 474. Sole Trader, Averment of. — An averment in the 
 complaint that the defendant, a married woman, who carried 
 on a separate business, represented at the time of making the 
 contract that it was for the use of such business, is sufttcient 
 on demurrer.^ If the contract was not in fact for the uses of 
 such business, it should appear by way of defense.* - 
 
 § 475. The Same, on Contract Generally. 
 
 Form No. 99. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. [State marriage as in previous form.] 
 
 II. [State cause of action.] 
 
 III. That the property hereinbefore mentioned was acquired 
 by her as sole trader, and has ever since been her sole prop- 
 erty. 
 
 [Demand of Judgment.] 
 
 § 476. Facts to be Alleged.- By the decisions of the 
 courts in New York, it seems that it is still necessary, in an 
 action against a married woman, to allege in the complaint the 
 facts creating her peculiar liability, for an act relating to her 
 separate estate, or relating to trade carried on by her for her 
 own benefit.* 
 
 CHAPTER VI. 
 
 INFANTS. 
 
 § 477. By an Infant, Suing by General Guardian. 
 
 Form No. 100. 
 [Title.] 
 
 A. B., aa Infant, by C. V., his Guar-"! 
 
 dian, Plaintiff, ( 
 
 against f 
 
 E. F., Defendant. J 
 
 The plaintiff complains, and alleges: 
 
 I. That he is under the age of twenty-one years. 
 
 II. That on the day of , 18..., at , 
 
 the above-named C. D. was duly appointed by the 
 
 iMelcherv. Kuhland, 22 Cal. 523. N. T. 604 ; and, less fully, Id., 25 How. 
 
 * Coster V. Isaacs, 16 Abb. Pr. 828. Pr. 488. 
 
 5 Coster V. Isaacs, 16 Abb. Pr. 828. * Dickerman v. Abrahams, 21 Barb, 
 
 -tor the substance of a complaint 551; Baldwin v. Kimmel, 16 Abb, Pr. 
 
 against a married woman as sole 358. 
 trader, see Goulding v. Davidson, 26 
 
§ *81- INFANTS. 255 
 
 court of the county, state of Califoruia, guardian of 
 
 the property and person of the plaintiff. 
 
 III. [State the cause of action.] 
 
 [Demand of Judgment.] 
 
 § 478. By an Infant, Suing by Guardian ad Litem. 
 
 Form No. 101. 
 
 [TiTLB.] 
 
 A. B., an Infant, by C. D., his Guar- ■) 
 
 dian ad litem. Plaintiff, . / 
 
 against ( 
 
 JE. F., Defendant. ) 
 
 The plaintiff complains, and alleges: 
 
 I. That he is under the age of tweuty-one years, to wit, of 
 tlie age of years. 
 
 II. That on the day of , 18..., at , 
 
 the above-named C. D. was duly appointed by the 
 
 court of the county of , state of California, the guardian 
 
 of the above-named A. B., for the purposes of this action. 
 
 III. [State the cause of action. J 
 
 [Demand of Judgment.] 
 
 § 479. Actions by or against Infants should be brought 
 in the name of their general guardian, or by their guardian ad 
 litem. 1 
 
 § 480. Appointment of Guardian.— Where the will ap- 
 points a guardian, there is no necessity for any letters of guar- 
 dianship.2 The court has no right to appoint a guardian ad 
 litem, for an infant defendant, till the defendant is properly 
 brought before the court.* But where his interests require it, 
 the court will appoint such a guardian even though the minor 
 may have a general guardian.'* The provisions of sections 9 and 
 10 of the California Civil Practice Act (Code, 372, 373), relative to 
 the appointment of guardians ad litem, where infants are parties, 
 only apply where there is no general guardian, or where he does 
 not act.* 
 
 § 481. Appointment, how and when must be Alleged. 
 In New York, where the plaintiff is an infant suing by guar- 
 dian, the complaint shall contain an allegation of the appoint- 
 ment of the guardian, and it should be stated in a traversable 
 form.^ Such appointment must be alleged with certainty as to 
 
 1 Cal. Code Civ. Proc, sec. 372 ; N. ^ Fox v. Minor, 32 Oal. 119 ; Spear 
 
 Y. Code (1877), sec. 469. v. Ward, 20 Id. 676. 
 
 « Norris v. Harris, 15 Cal. 255. « Hulbert v. Young, 13 How. Pr. 
 
 3 Gray v. Palmer, 9 Cal. 616. 414; Grantman v. Thrall, 44 Barb. 
 
 * Gronfier V. Puymirol, 19 Cal 929; 173; see also Stanley v. Chappell, 8 
 
 Emeric v. Alvarado, 1 West Coast Cow. 235. 
 Kep. 708. 
 
256 FORMS OF CQMPLAINTS. § 482. 
 
 time, place, and power of the appointment.^ But an allegation 
 that the appointment was made on the plaintiff 's application is 
 implied by the averment that the guardian was " duly ap- 
 pointed."^ When, however, a complaint was entitled, "J. G., 
 by J. G., his Guardian, v. 6. T.," aiid commenced thus: " The 
 plaintiff, complaining, states," etc , but contained no allegation 
 that the plaintiff was an infant, under the age of twenty-one 
 years, or that the guardian was appointed by any court, it was 
 held bad on demurrer, for the reason that, while it showed that 
 the plaintiff appeared by guardian, it did not show that the guar- 
 dian was duly appointed, so as to authorize such appearance.' 
 If the allegation be deemed too general, the objection can not be 
 taken by demurrer. The remedy is by motion to make it more 
 definite.* 
 
 In California, however, in an action against infants, neither 
 the petition for the appointment of a guardian ad litem, nor the 
 order making the same, need appear on the judgment roll. 
 Such appointment may be made on an application ore tenus in 
 open court, as well as in writing, and where the record is silent 
 as to the manner of appointment, the regularity thereof will be 
 presumed.^ 
 
 § 482. Actions by General Guardian. — A general guar- 
 dian can not sue in his own name to recover money due the in- 
 fant. Such actions must be brought in the name of the infant, 
 by his guardian. 8 In an action by an infant, a general guardian, 
 designated in the complaint as a guardian ad litem, is of no im- 
 portance, if the body of the complaint shows him to be a gen- 
 eral guardian.'' In an action by a guardian, to recover from 
 his ward's estate for services rendered in a suit at law, it must 
 be alleged that the employment of the plaintiff was a reason- 
 able and proper expense incurred by the guardian.^ 
 
 § 483. DisafiEirmance of Deed. — Where an infant conveys 
 his land, and afterwards, on coming of age, would avoid the 
 deed and recover possession, he must before suit make an entry 
 upon the lands, and execute a second deed to a third person, 
 or do some other act of equal notoriety in disaffirmance of the 
 
 1 Stanley v. Chappell, 8 Cow. 235 ; Hulbert v. Young, 13 How. Pr. 413 ; 
 Hulbert v. Young, 13 How. Pr. Grantman v. Thrall, 44 Barb. 173. 
 413. « S6r6 V. Colt, 6 Abb. Pr. 481. 
 
 2 Polly V. Saratoga and Washington ' Eraerlc v. Alvarado, 1 West Coast 
 E. E. Co., 9 Barb. 449 ; People ex rel. Eep. 708. 
 
 Haws V. Walker, 2 Abb. Pr. 421 ; « Spear v. Ward, 20 Cal. 676 ; Fox 
 
 People ex rel. Crane v. Eyder. 12 N. v. Minor, 32 Id. 119. 
 
 Y. 483. ' Spear V. Ward, 20 Cal. 676. 
 
 3 Stanley V. Chappell, 8 Cow. 285; * Caldwell v. Young, 21 Tex. 800. 
 
§ 488. INFANTS. 257 
 
 first deed, or an action can not be maintained. ^ His act of dis- 
 affirmance must be averred in the pleading, and is necessary to 
 be proved. The want of this allegation malies the complaint 
 fatally defective.' 
 
 § 484. Infant Feme Covert.— Under the California stat- 
 utes, the disability of infancy attaches as well to a feme covert 
 under age, as to a feme sole, subject to the act of 1858, p. 108, 
 which makes married women under eighteen, and married 
 with the consent of their parent or guardian, of full and lawful 
 age. 3 
 
 § 485. Actions by Infants in Ohio and Illinois. — In 
 Illinois minors may bring suits in all cases whatever, by per- 
 sons they may select as their next friend, who must file a bond 
 for costs that may accrue.* In Ohio the action must be brought 
 by the guardian or next friend of the infant,^ who is liable for 
 all costs. ^ In a joint suit by husband of age, and wife a minor, 
 no guardian for the wife is necessary.' 
 
 § 486. Partition. — Guardians ad litem appointed to repre- 
 sent an infant in suits in partition, have no power to admit 
 away by their answer the rights of the infants, as it is not a 
 matter within the scope of their appointment.^ They have 
 power to defend for the infant solely against the claim set up 
 for partition of the common estate.* 
 
 § 487. Promissory Notes. — The promissory note of an in- 
 fant is voidable, not void.^" 
 
 § 488. Special Obligation of Ancestor. — Where the infant 
 was sued upon a special obligation of the ancestor, chargeable 
 upon the inheritance, he might pray that the proceedings be 
 stayed until he should attain his majority. This privilege is 
 confined to the heir alone.^ In Ohio it is held that in an action 
 against an infant for the specific performance of an alleged con- 
 tract with his ancestor, he is entitled to a day in court after 
 coming of age to show cause against the decree, and if an abso- 
 lute decree be taken against him, it will be error. ^^ In the same 
 
 J Bool v.Mix, 17 Wend. 119; Dom- " Ohio Code, sec. 30. 
 
 inick V. Michael, 4 Sandf. 420. « Ohio Code, sec. 31. 
 
 SVoorhies v. Voorhies, 24 Barb. ' Cook v. Bawdon, 6 How. Pr. 283 ; 
 
 150. See, also. Civil Code, sees. 35, 86, Hulbert v. Newell, 4 Id. 93. 
 
 and 87. As to what acts will amount ' Waterman v. Lawrence, 19 Cal. 
 
 to affirmance, see Henry v. Root, 33 210. 
 
 N Y 526 '■^' 
 
 '» Maeee' v. Webh, 18 Cal. 155. " Young v. Bell, 1 Cranch C. Ct. 
 
 This statute is not now in force. As 342 ; Tucker v. Moreland, 10 Pet. U. 
 
 to disaffirmance of deed by infant, S. 58. 
 
 «'^e 5 Ohio 251. " Joyce ^- MoAvoy, 31 Cal. 278. 
 
 * Scates?Treat. and Stat. 552. " Long v. Mulford, 17 Ohio St. 485. 
 EsTM, Vol. 1—17. 
 
258 FOKMS OF COMPLAINTS. § 489. 
 
 case, it was held that the right of parol demurrer, or staying 
 proceedings until the infant attained his majority, was abolished 
 by statute! but that the right of the infant to a day in court 
 after coming of age does not' depend upon the existence or non- 
 existence of the right of parol demurrer. 
 
 § 489. Trover. — Infancy is no bar to an action of trover for 
 conversion of goods. ^ 
 
 § 490. Wages. — An infant, after the death of his father, can 
 not recover his wages for services performed in the life-time of 
 his father, under a contract made with the father.^ 
 
 § 491. Wrongs. — Infancy is no defense to an action founded 
 on fraud and falsehood of the party pleading it,3 
 
 CHAPTER VII. 
 
 INSANE PERSONS. 
 
 § 492. By Guardian of an Insane Person, or Person of 
 
 Unsound Mind. 
 
 Form No. 102. 
 [Title.] 
 C. D., an Insane Person [or Person" 
 of Unsound Mind], by A. B., his 
 Guardian, Plaintiff, 
 against 
 E. P., Defendant. 
 
 The plaintiff coniplains, and alleges; 
 
 I. [State the cause of action. J 
 
 IJ. That on the day of , 18..., at the county 
 
 of , the superior judge of said county [or city and 
 
 county], state of California, upon the petition of -.. ..., and 
 
 after due notice and hearing, adjudged the said C. D. to be an 
 insane person [or incapable of taking care of himself and manag- 
 ing his property] . 
 
 III. That afterward on the same day [or on the day 
 
 of , 18...], at said county [or city and county], said 
 
 superior judge [or court], appointed the plaintiff guardian of 
 the person and estate of the said C. D. ; that he, this plaintiff, 
 has given bond as required by law, and still and now is such 
 guardian of the said C. D., as aforesaid. 
 
 [Dbmand of Judgment.] 
 
 § 493. Appointment of Guardian.-rUpon petition under 
 
 1 Vasse V, Smith, 6Cranch, 226; Fish v. Ferris, 5 Duer, 49; Schunemann V. 
 Paradise, 46 How. Pr. 426. 
 
 2 Roby V. Lyndall, 4 Craneh 0. Ot, 851. 
 
 ' Catts V. Phalen, 2 How. Pr. 376 ; see California Civil Code, sec. 41. 
 
§ 498. INSANE PERSONS. 269 
 
 oath, by any relative or friend of any insane person, or any 
 person who by old age or other cause is mentally incompetent, 
 the probate judge shall, after hearing and examination, appoint 
 a guardian of his person and estate. ^ And every such guardian 
 shall appear for and represent his ward in all legal suits, and 
 proceedings, unless another person is appointed for that purpose, 
 as guardian or next friend.^ 
 
 § 494. " Duly Appointed." — The word " duly," as used in 
 the New York forms, may be omitted, as jurisdiction of the pro- 
 bate court will be presumed.* / 
 
 § 495. Limitations. — The probate of a will shall be conclu- 
 sive, if not contested within one year, but in the case of infants, 
 married women and persons of unsound mind alike, a period of 
 one year, after their respective disabilities are removed is granted 
 by the probate act.* 
 
 § 496. Attack on Authority of Guardian. — Letters of 
 guardianship of an insane person can not be questioned in a col- 
 lateral proceeding, and are admissible in evidence.^ 
 
 § 497. Against the Guardian of an Insane Person. 
 
 Form No. 103. 
 
 [TlTLB.] 
 
 A. B., Plaintiff, \ 
 
 against i 
 
 C. D., Guardian of E. F., an Insane > 
 
 Person [or Person of Unsound 1 
 
 Mind], Defendant. j 
 
 The plaintiff complains, and alleges; 
 
 I. [State a cause of action against an insane person.] 
 
 II. That afterwards [or on the day of , 18...], 
 
 the said E. F., was adjudged by the court to be a per- 
 son of unsound mind. 
 
 III. That the defendant was, on the day of , 
 
 18 ..., appointed by the said court guardian of the person and 
 estate of the said E. F., that he, the defendant, accepted said 
 appointment, and is now such guardian. 
 
 Wherefore the plaintiff demands judgment for dol- 
 lars, with interest from to be paid out of the estate of 
 
 the said E. F., in the hands of the defendant. 
 
 § 498. Ejectment. — The guardian of a lunatic, etc., has no 
 estate in his lands ; and an action of ejectment for the lunatic's 
 land must be brought in the lunatic's name.^ 
 
 » California Code 0. P. sec. 1764. » Warner v. Wilson, 4 Cal. 310. 
 
 2 Cal. Code C. P., see. 1769. « Petrie v. Shoemaker, 24 Wend. 85. 
 
 » See Bloom v. Burdiok, 1 Hill, 130. For a history of the judical custody 
 
 As to presumption of jurisdiction, see of lunatics, see Brown's Case, 1 Abb. 
 
 " Jurisdiction," c. 2. Pr. 108 ; S. C, 4 Duer, 613. 
 
 * Cal. Code C. P., sec. 1333. 
 
260 POEMS OF COMPLAINTS. § 499. 
 
 § 499. Equity Suits. — If any person has a legal or equitable 
 claim against the estate of an insane person, which is under the 
 care of the guardian, who refuses to allow the same, he must 
 apply to chancery by petition. He will not be permitted to sue 
 at Ifw except under the sanction of chancery.^ 
 
 § 500. Habitual Drunkard. — In New York, where, pend- 
 ing a suit brought by a creditor to reach the assets of his debtor, 
 the latter is, by proceedings previously commenced in another 
 court, adjudged to be an habitual drunkard, and a committee is 
 appointed of his estate, the court in which the former suit is 
 pending can not properly proceed to final judgment.^ The 
 rules of comity always observed toward each other by courts of 
 concurrent jurisdiction, would prevent the granting of a decree 
 as prayed for.^ 
 
 § 501. Lunatic. — A suit in equity for the benefit of a lunatic 
 must be brought in his own name.* 
 
 § 502. Necessary Averment. — A complaint against the 
 guardian of an habitual drunkard must state with particularity 
 the court and authority by which the debtor was declared an 
 habitual drunkard.^ 
 
 § 503. Personal Actions. — And there is no distinction be- 
 tween actions concerning his realty and those relating to his 
 personal estate, since all actions must be brought in the name 
 of the lunatic.8 In Alabama, a person may sue an adult lunatic 
 for necessaries furnished him, and is entitled to proceed in the 
 case upon the appointment of an attorney for the defendant, 
 although there is no guardian ad litem.'' 
 
 » Matter of Heller, 3 Paige, 199 ; * McKillip v. McKillip, 8 Barb 552 
 
 Brasher v. Van Cortlandt, 2 Johns. Lane v. Sehermerhorn. 1 Hill, 97 
 
 Ch. 242 ; Williams v. Estate of Cam- Petrie v. Shoemaker, 24 Wend. 85 
 
 eron, 26 Barb. 172. Davis v. Carpenter, 12 How. Pr. 287 
 
 » In re Helle, 3 Paige Ch. 199 ; Clarke Ee McLaughlin, Clarke's Oh. 113. 
 
 V. Dunham, 4 Den. 262 ; In re Hopper, ' » Hall v. Taylor, 8 How. Pr. 428. 
 
 5 Paige Ch. 489; Eobertson v. Lain, « Lane v. Sehermerhorn, 1 Hill, 97; 
 
 9 Wend. 649. McKillip v. McKillip, 8 Barb. 552. 
 
 « Hiblo V. Harrison, 9 Bosw. 668. ' Ex parte Northington, 87 Ala. 496. 
 
§ 506. PARTiSJiKS. 261 
 
 CHAPTEK VIII. 
 
 PAETNERS. 
 
 § 504. Title and Commencement of Complaint by 
 Partners. 
 
 Form No. lOJjf. 
 [Title.] 
 A. B. and C. D., Partners, under") 
 the firm name of "A. B. & Co.," 
 Plaintifl's, 
 against 
 E. P. and G-. H., Partners, under 
 the firm name of "E. F. &Co.," 
 Defendants. 
 
 A. B. and C. D., the plaintiffs in the above-entitled actio 
 complain of E. F. and G. H., partners, under the firm name of 
 "E. F. & Co.," and allege: 
 
 I. [State cause of action.] 
 
 [Demand of Judgment.] 
 
 § 505. Actions between Partners. — As a general rule, no 
 action 4t law can be maintained between partners, pending the 
 relation as juch,^ although a stipulation by one, for the benefit 
 of the others, may be enforced by them or their trustees, as 
 against a limited partner.^ They can not sue one another for 
 any of the business or undertakings of the flrm.^ They can 
 only ask for a dissolution and an accountii^. One partner can 
 not sustain an action against his copartner for the delivery of 
 personal property belonging to the copartnership.* But one 
 partner may sue his copartner on a note.^ Or one partner may 
 sue another at law for damages caused by a premature dissolu- 
 tion on breach of copartnership articles,^ and after division of 
 a specific fund he may sue for his allotted portion.'' So, one 
 partnership firm may sue another, having a mutual partner, for 
 an ascertained balance, ^ and such mutual partner may elect 
 whether to be plaintiff or defendant in the action. 
 
 § 506. Authority of Partner. — ^In California a partner can 
 not make an assignment of the partnership property to a creditor, 
 or in trust for creditors, nor dispose of the good-will of the 
 
 ' Koningsburg v. Launitz, 1 B. D. 215 ; but see Robinson v. Mcintosh, ,S 
 
 Smith, 215. Id. 221. 
 
 2 Robinson v. Mcintosh, 8 E. D. ' Buckley v. Carlisle, 2 Cal. 420. 
 
 Smith 221. ° Van Ness v. Forrest, 8 Cranch, 30. 
 
 ,3 Buckley v. Carlisle, 2 Cal. 420; « Bagley v. Smith, 6 Seld. 489. 
 
 Stone V. Fouse, 3 Id. 292 ; Barnstead 'Crosby v. Nichols, 3 Bosw. 450; 
 
 V. Empire Min. Co., 5 Id. 300; Kon- Ross v. Cornell, 45 Cal. 133. 
 
 iiigsburg V. Launitz, 1 B. D. Smith, » Cole v. Reynolds, 18 N. Y. 74. 
 
262 
 
 FORMS OF COMPLAINTS. § 507. 
 
 business, nor dispose of the whole of the partnership property 
 at once, unless it consists entirely of merchandise, nor do any 
 act -which would make it impossible to carry on the ordinary 
 business of the partnership, nor confess a judgment, nor sub- 
 mit a partnership claim to arbitration, unless his copartners 
 have wholly abandoned the business to him, or are incapable 
 of actino-.^ Nor can one member of a partnership bind his co- 
 partner by a promissory note for a partnership demand, made 
 after the dissolution of the partnership.^ 
 
 § 507. Arbitration. — In Vermont it was held that a partner 
 has not authority, as such, to submit partnership matters to 
 arbitration, so as to make the award binding on the firm.s A 
 partner may submit his own interest in the firm to reference, 
 but he can not thereby bind the other partners.* 
 
 § 508. Individual Interest — The interest of a copartner- 
 ship can not be given in evidence on an averment of individual 
 interest; nor an averment of copartnership interest be supported 
 by a special individual contract.* 
 
 § 509. Joint Assumpsit. — Where suit is brought on a part- 
 nership transaction, the complaint stating a contract with the 
 partner sued, evidence may be given of a joint assumpsit.^ 
 
 § 510. Judgment Against Partners — Service on One.— A 
 partnership consisting of several persons must sue or be sued 
 by their names at length, and not in the name of the firm.' 
 Such is the commo#-law rule; but, "when two or more per- 
 sons, associated in any business, transact such business under 
 a common name, whether it comprises the names of such per- 
 sons or not, the associates may be sued by such common name, 
 the summons in such cases being served on one or more of the 
 associates ; and the judgment in the action shall bind the joint 
 property of all the associates, in the same manner as if all had 
 been named defendants and had been sued upon their joint 
 liability," is the form of a provision found in the California 
 Code of Civil Procedure. Similar provisions exist in the codes 
 or statutes of many of the states. The supreme court of the 
 United States has refused to give a judgment thus obtained 
 against a partner not served with process any extra territorial 
 force, on the ground that the judgment was obtained without 
 
 1 Civil Code, sec. 2430. see also Lyle v. Eodser?, 5 Wheat. 
 
 'Curry v. White, 51 Cal. 530; 394. 
 
 Beo also Stokes v. Stevens, 40 Id. * Graves v. Boston Mar. Ins. Ooi, 
 
 891. 2 Cranch, 215. 
 
 » Martin v. Thrasher, 40 Vt. 460. « Barry v. Foyles, 1 Pet. U. S. 311. 
 
 ' Karthaus v. Ferrer, 1 Pet. 222 ; ' Bentley v, Smith, 3 Cai. 170. 
 
§ 511. 
 
 PAETNEES. 
 
 263 
 
 due process of law.^ In several states the validity of such a 
 judgment has been either tacitly assented to, or expressly upheld 
 by the courts.* In California, the earlier cases upheld the con- 
 stitutionality of such a judgment,^ but this position has been since 
 receded from, and such judgments, at least as against the partner 
 not served, are considered void.* 
 
 § 51 1. Liability of Partners. — The whole of the partners 
 are liable on a warranty by one of the members, on sale of firm 
 
 1 Mason v. Eldred, 6 Wall. 239 ; 
 Public Works v. Columbia College, 17 
 Id. 527 ; D' Arcy v. Ketchum, 11 How. 
 165; Phelps V. Brewer, 9 Cush. 890; 
 Hall T. Lanning, 91 U. S. 160. 
 
 •Johnson v. Lough, 22 Minn. 203; 
 Lahey v. Kingon, 13 Abb. Pr. 192 ; 
 Harper v. Brink, 24 N. J. L. 333; 
 Martin v. Eising, 2 Pac. C. L. J. 56 ; 
 Guimond v. Nast, 44 Xex. 114; J£idd 
 V. Brown, 2 How. Pr. 20 ; Whitmore 
 V. Shiverick, 3 Nev. 288. 
 
 ' Welsh v.KirkpaLriok, 30 Cal.203. 
 
 * Tay V. Hawley, 39 Cal. 95. In 
 this case the court, p»T Bhodes, J., 
 said : " The statute provides that the 
 'joint property' of all the defend- 
 ants may be taken in execution for 
 the satisfaction of the judgment; but 
 none of the cases in this court de- 
 fines such joint property. * * * 
 In Mason v. Denison, 16 Wend. 64, 
 it is said that the term applies to the 
 property which one defendant might 
 apply to the satisfaction of the debt, 
 without consulting his co-contractor. 
 Accepting the restriction indicated in 
 that case, or even limiting the mean- 
 ing of 'joint property' to part- 
 nership property of the persons al- 
 leged to be joint debtors, we are 
 utterly unable to see how a judg- 
 ment that is to be enforced against 
 the interest in such property of a per- 
 son who has not been served with 
 process, and has not appeared, can be 
 maintained. It is a cardinaj princi- 
 ple of jurisprudence that a judgment 
 shall not bind or conclude a man, 
 either in respect to his person or prop- 
 erty, unless he has had his day m 
 court. No person shall be deprived 
 of life, liberty, or property without 
 due process of law, says the constitu- 
 tion ; but this principle is older than 
 written constitutions, and without 
 invoking the constitutional declara- 
 tion, every person may, as a matter 
 of common right, insist that he be 
 heard in his own defense before judg- 
 
 ment passes which binds, charges, or 
 injuriously affects his person or es- 
 tate. It is no answer to say that the 
 judgment affects only the joint prop- 
 erty of the defendants — property 
 that ^ either of the debtors might ap- 
 ply to the satisfaction of the common 
 deot — for that assumes that the de- 
 fendants are joint debtors, and that 
 may be to the defendant who is not 
 served the vital point of the contro- 
 versy. He may be ready to admit 
 eyery allegation of the complaint, 
 except that he is a party to the con- 
 tract; or he may even admit the con- 
 tract, and yet be ready, if an oppor- 
 tunity were presented", to maVe a 
 successful defense on the ground of 
 fraud, failure of consideration, pay- 
 ment, accord and satisfaction, etc. 
 The defendant who ia served may be 
 ignorant of the defenses upon which 
 his co-defendants would rely, or he 
 may, either negligently or purposely, 
 omit to present them. And what- 
 ever his answer may be, he only 
 answers for himself; and there is 
 nothing in the law regulating the ac- 
 quisition or disposition of joint prop- 
 erty, which confers upon one joint 
 owner the right to defend actions for 
 his fellows. Unless it can he shown 
 that such property is under the ban 
 of the law, a judgment which sub- 
 jects to execution the interest of a 
 person who has had no opportunity 
 to be heard in the action, can not be 
 upheld without violating principles 
 wnich lie at the base of all judicial 
 proceedings." In the latter part of 
 this opinion the judge stated that the 
 provisions of the code, which provide 
 for summoning a defnndant who had 
 not originally been served, to show 
 cause why he should not be bound by 
 the judgment, furnish the exclusive 
 mode by which he can be bound by 
 the judgment, and such provisions 
 necessarily imply that he ia not 
 already bound." 
 
264 FORMS OF COMPLAINTS. § 512. 
 
 property.^ One partner is liable to third parties for iujuries 
 occasioned by negligence of another.® All are liable for the 
 fraud of one.^ 
 
 § 512. Partnership, what Contitutes. — Actual intention 
 is necessary to constitute a partnership inter se. There must 
 be a joint undertaking to share in the proflt and loss. Each 
 party must, by the agreement, in some way participate in the 
 losses as well as the proflts.* An agreement to divide the gross 
 earnings does not constitute the parties to it partners.* A part- 
 nership may exist as to third persons, when there \a no partner- 
 ship as between the persons thus liable. ^ 
 
 § 513. Partnership Property. — The plaintiff must recover 
 on the allegations in his complaint, if at all, and if the com- 
 plaint fails to aver that the property was partnership property, 
 the judgment of the court should not And that fact.'' 
 
 § 514. Special Partner. — In California, the general part- 
 ners may sue and be sued alone, in the same manner as if there 
 were no special partners. ^ 
 
 § 515. Suit for Dissolution and Accounting. 
 
 Form No. 105. 
 [Title.] 
 The plaintiff complains of the defendant, and alleges : 
 
 L That on or about the day of , 18...., 
 
 the plaintiff and defendant, at , entered into and 
 
 formed a copartnership for the purpose of [state nature of busi- 
 ness] , under the firm name and style of 
 
 and that they thereafter entered upon and continued to trans- 
 act such copartnership business under their firm name. 
 
 II. That since the commencement of said copartnership, the 
 defendant has wrongfully, and without the assent of the -plaint- 
 iff, applied some of the money or receipts and profits of their 
 said business to his own use, and by reason thereof has become 
 indebted to said copartnership, and impeded and injured the 
 business thereof. 
 
 III. That the plaintiff has repeatedly requested the defend- 
 ant to pay said copartnership the money so received by 
 
 1 Sweet V. Bradley, 24 Barb. 549. '^ Pattisonv. Blanchard. 1 Seld. 191; 
 
 2 Cotter V. Bettner, 1 Bosw. 490. Story on Part., sec. 34, and oases cited 
 s Getty V. Devlin, 54 N. Y. 403. in note 3; Wheeler v. Farmer, supra. 
 * 2 Kent's Cora. 23-28 Hazard v. • See Ontario Bank v. Hennessey, 
 
 Hazard, 1 Story 873; Denny v. 48 N. Y. 645; Manhattan Brass & 
 
 Cabot, 6 Met. 82 ; Muzzy v. Whitney, Mfg. Co. v. Sears, 45 Id. 797 ; McStea 
 
 lOJohns.228; Championv. Bostwiok, v. Matthews, 60 Id. 166. 
 
 18 Wend. 181 ; Smith v. Moynihan, 44 ' Sterling v. Hanson, I Cal. 480. 
 
 Cal. 53; Wheeler v. Farmer, 88 Id. ^ civil Code, sec. 2492. 
 
 203. 
 
§ 516. PARTNERS. 265 
 
 him and misappropriated as aforesaid, or to account to said 
 firm therefor, but that the defendant has heretofore neglected 
 and refused, and still does neglect and refuse, so to account, and 
 has threatened to continue to collect the copartnership debts 
 and appropriate the same to his own use. 
 Wherefore the plaintiff prays : 
 
 I. That said copartnership may be dissolved, and an account- 
 ing taken of all the dealings and transactions thereof. 
 
 II. That the property of the firm be sold, and the firm's 
 debts and 1 abilities be paid off, and the surplus, if any, divided 
 between the plaintiff and defendant, according to their re- 
 spective interests, and for such other relief as may be just, to- 
 gether with the costs of this suit. 
 
 § 51£. For Accounting After Dissolution. 
 
 Farm No. 106. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. [Allege formation and purposes of partnership as in pre- 
 ceding form.] 
 
 II. That on or about the day of *. ; 18...., 
 
 by the mutual consent of said partners, the said firm was dis- 
 solved. 
 
 III. That at such time the defendant promised and agreed 
 with the plaintiff to account for and pay over to the plaintiff 
 his proportionate share of all moneys which had been previ- 
 ously collected by the defendant, on account of said firm, 
 and also to collect the debts due said firm, and ren- 
 der, from time to time, to the plaintiff, on demand, full 
 statements of the debts due to said firm, and the payments 
 made on account thereof, and to pay over to the plaintiff his 
 full share of the assets of said firm. 
 
 IV. That prior and since the dissolution of said firm the 
 defendant has collected large sums of money, amounting to 
 
 the sum of dollars, more or less, on account of the 
 
 debts due to said firm, and has applied the same, and the whole 
 thereof, to his own use, and has neglected and refused, and 
 still does neglect and refuse, to account with and pay to the 
 plaintiff his proportionate share of the assets of said firm, so 
 collected as aforesaid, or any part thereof, although often re- 
 quested by the plaintiff so to do. 
 
 [Demand for relief as in preceding form, omitting prayer for 
 dissolution.] 
 
266 FORMS OP COMPLAINTS. § 517. 
 
 § 517. Against Partners^Averring Partnership. 
 
 Form No. 107. 
 [State and Cottntt.] _ [Ooubt.] 
 
 John Doe, i'laintiff, ") 
 against > 
 
 A. B. and C. D., Defendants, j 
 
 The plaintiff complains of the defendants, and alleges: 
 
 I. That at the time hereafter mentioned, the defendants were 
 copartners, and doing business as merchants or traders [or other- 
 wise] at the city of , under the firm name of A. B. 
 
 «&Co. 
 
 II. [State cause of action.] 
 
 [Demand of Judgment.] 
 
 §518. Allegation of Partnership. — The same allegation 
 will do where the plaintiffs are partners, substituting the word 
 "plaintiffs" for "defendants." Where the partnership is a 
 material fact, it should be alleged.^ A distinct averment of 
 partnership between the plaintiffs is only necessary when the 
 right of action depends upon the partnership.^ When a joint 
 ownership or joint conttact will enable them to recover, it is no 
 objection t* their complaint that their partnership is not 
 pleaded. 3 
 
 § 519. Dormant Partner. — At common law a dormant part- 
 ner need not, and ought not to be joined in a suit by the firm.^ 
 But if a dormant partner be unknown in the contract of a lease, 
 it was held that he need not be joined as defendant.^ They have 
 tlie right, but are not bound, to sue all under such circumstances.' 
 Where the name of a dormant partner was fraudulently concealed, 
 an injunction to restrain a levy on partnership property was set 
 aside.'' 
 
 § 520. By a Surviving Partner. 
 
 Form No. 108. 
 [State and Ooxtntt.] rCoTJRT.] 
 
 John Doe, Plaintiff, "l 
 
 against J- 
 
 RiCHARD Rob, Defendant. ) 
 
 The plaintiff complains, and alleges: 
 
 I. That at the time hereinafter mentioned, the plaintiff and 
 
 1 See Parties, ante. 3 Cow. 84 ; Clark v. Miller, 4 Wend. 
 
 2 Loper V. Welch, 3 Duer, 644 ; and 628 ; N. Y. Dry Dock Co. v. Tread- 
 see Oechs v. Cook, Id. 161. well, 19 Wend. 525. But the rule 
 
 i* For a auflScient though informal would appear to be otherwise under 
 averment of partnership, see An able the code of New York: See Secor v. 
 V. Conklin, 25 N. Y. 470 ; Anable v. Keller, 4 Duer, 416 ; and compare Bel- 
 Steam Engine Co., 16 Abb. Pr. 286. shaw v. Oolie, 1 E. D. Smith, 213. 
 
 * Leveek v. Shaftoe, 2 Esp. 468 ; 7 T. 6 Hurlbut v. Post, 1 B<>sw. 28. 
 
 R 361 ; Llovd v. Archbowle, 2 Taunt. « Brown v. Birdsall, 29 Barb. 549. 
 
 324 : 1 Ch. PI. 9 : Clarksoti v. Carter, ' Van Valen v. Russell, 13 Barb. 590. 
 
§ 526. PAETNEES. 267 
 
 one C. D. were partners, doing business as merchants or traders 
 
 [or otherwise] at the city , under the firm name 
 
 of "John Doe & Co." . 
 
 II. [Statement of cause of action.] 
 
 III. That on the day of , 18..., at , 
 
 said C. D. died, leaving the plaintiff the sole survivor of the said 
 flrm.i 
 
 [Demaot) op Judgment.] 
 
 § 521. Duties of Surviving Partner. — The surviving 
 partner is to wind up the affairs of the partnership, and pay its 
 debts out of the assets, if suflScient, and divide the residue, if 
 any, among those entitled to it.* And a claim of the surviving 
 partner against the estate of the deceased partnei is contingent 
 and does not become absolute till the partnership affairs are 
 settled. 
 
 § 522 Partnership Debt. — An action at law does not lie 
 against the personal representative of the deceased partner. It 
 must be brought against the survivor.^ So, vrhen one of two 
 joint covenanters dies.* 
 
 § 523. Promise, how Stated. — In an action for a debt 
 which accrued to the partnership before the death of one of its 
 members, that fact, the death of the member, and survivorship 
 must be alleged, unless there has been an accounting with the 
 survivor.* 
 
 § 524. Right of Possession. — ^A surviving partner has the 
 exclusive right of possession, and the absolute power of disposi- 
 tion of the assets of the partnership. ^ 
 
 § 525. Services. — ^He is not entitled to pay for his services 
 in merely winding up the affairs of the concern.'' But if he ex- 
 pends his time and labor in the care and management of the 
 partnership property, by which its value is enhanced, he should 
 receive compensation for the same. 
 
 § 526. Survivor, Liabilities of. — ^The survivor of a part- 
 nership may be charged on a debt of the firm, contracted before 
 the death of the other, and without averring the partnership, 
 death, etc.^ And the personal representative of a deceased part- 
 ner can not be joined with him, unless the survivor be iusol- 
 
 * This form is necessary only when ^ Allen v. Hill, 16 Cal. 113; see 
 the cause of action accrued to the California Code Civil Procedure, sec. 
 partnership. 1585. 
 
 2 Gleason v. White, 34 Cal. 258. ' Griggs v. Clark, 23 Cal . 427. 
 
 ' Grant v. Shurter, 1 Wend. 148. ^ Goelet v. McKinstry, 1 Johns. Cas. 
 
 * Gere v. Clark, 6 Hill, 350. 405 ; compare Holmes v. De Camp, 1 
 6 Holmes v. De Camp, 1 Johns. 36 ; Johns. 84. 
 
 Tom v. Goodrich, 2 Jouqs. 213. 
 
268 FOKMS OP COMPLAINTS. § 527. 
 
 vent.^ Where, after the death of one partner, on account stated 
 between defendant and the copartnership, admitting balance due 
 for goods sold in the life-time of deceased, the survivor may re- 
 cover it on insimul computassent, without averring the death of the 
 other partner.^ 
 
 CHAPTER IX. 
 
 PUBLIC Orj'ICEES. 
 
 § 527. By or against Public Officers. 
 
 Form No. 109. 
 
 [State and County.] fOoTTRT.] 
 
 A. B., [Comptroller] of the State of \ 
 
 California, Plaintiff, I 
 
 against C 
 
 C. D., Defendant. J 
 
 The plaintiff complains, and alleges : 
 
 I. That he is [Comptroller of the State of California]. 
 
 II. [State the cause of action, etc.] 
 
 [Demand op Judgment.] 
 
 § 528. Actions against Officers. — ^That in an action against 
 the collector of the customs for refusing a clearance, a count 
 stating that the plaintiff was the owner of the vessel, laden with 
 a cargo of a certain value, the allegation is sufficient as respects 
 ownership of the cargo. ^ 
 
 § 529. Acts of Deputy. — In an action against a sheriff for 
 wrongful acts of deputy, it is not essential that the complaint 
 should allege that he is sheriff, nor the acts complained of were 
 committed by his deputy.* The act of the deputy sliould be 
 alleged as that of the sheriff. ^ 
 
 § 530. Official Character must be Averred.— -The offi- 
 cial character must be averred in the body of the complaint.^ 
 A very short averment, if clear in its terms, is sufficient;' 
 though a special authority must be averred with fullness suffi- 
 cient to make it clearly apparent.^ But a sheriff suing as such, 
 
 1 Voorhis' Ex'ra v. Child, 17 N. Y. " Compare Gould v. Glass, 19 Barb. 
 
 354; Moorehouse v. Ballou, IB Barb. 185, with Smith v. Levinus, 8 N. T. 
 
 289; Higginsv. Freeman, 2 Diier, 050. 472; Ogdensburgh B'lc v. Van Rensse- 
 
 » Holmes v. De Camp, I Johns. 34. laer, 6 Hill, 240 ; Delafield v. Kinney, 
 
 » See Bas v. Steele, 3 Wash. C. Ct. 24 Wend. 846 ; Fowler v. Weatervelt, 
 
 381. 17 Abb. Pr. 59 ; 40 Barb. 374. 
 
 * Poinsett V, Taylor, 6 Cal. 78 ; Cur- 'Smith v. Levinus, 4 Seld. 472; 
 
 tiss V. Fay, 37 Barb. 64. Root v. Price, 22 How. Pr. 872 ; Hal- 
 
 ' People V. Ten Eyck, 13 Wend, lett v. Harrower, 33 Barb. 637. 
 
 448; Hirsch v. Kand, 39 Cal. 318; ^i^. 
 Campbell v. Phelps, 17 Mass. 24u. 
 
§ 533. PUBLIC! OFFICERS. 269 
 
 need not state in his complaint how he acquired his office. It 
 is enough to show that he is sheriff in fact.^ 
 
 § 531. Official Capacity, how Averred.— That "the 
 plaintiff is sheriff of the city and county of San Francisco," is 
 a sufficient allegation of his official character.^ Where the title 
 gives the names of the plaintiffs with the description " commis- 
 sioners of highways," and in the body of the complaint it is 
 averred "that the plaintiffs, commissioners of highways, com- 
 plain," the character in which they complain is sufficiently in- 
 dicated.^ 
 
 § 532. Title. — ^A party suing as a public officer should sue 
 in his own name, with the addition of his. name of office.* For 
 the words in brackets in the above form any others may be sub- 
 stituted which will properly designate the title and jurisdiction 
 of the officer. 
 
 § 533. By Sheriff Suing in Aid of Attachment 
 
 Form No. 110. 
 [Title.] 
 
 The plaintiff complains, and alleges; 
 
 I. That he is the sheriff of the [city and] county of , 
 
 duly elected, qualified, and acting as such. 
 
 II. That on the day of , 18 ..., a warrant of at- 
 tachment was issued out of this court, and to him directed and 
 delivered, as such sheriff, in an action against A. B., whereby he 
 
 . was directed to attach and keep all the property of said A. B. 
 in his county. 
 
 III. That the defendant then had in his possession 
 
 dollars belonging to A. B. [or was indebted to the said A. B. in 
 the sum of dollars]. 
 
 IV. That on the day of , 18 ..., the plaintiff 
 
 made due service of said warrant by delivering to and leaving 
 with said defendant a copy thereof, with a notice showing the 
 property levied on ; whereupon the plaintiff became entitled to 
 receive from the defendant, and he became answerable to 
 the plaintiff for said dollars, which the defendant re- 
 fuses to pay over to the plaintiff, or to account to him therefor ; 
 to his damage dollars.^ 
 
 [Demand or Jtjdoment.^ 
 
 1 Kelly V. Breusing, 33 Barb. 123; lyn v. Acker, 26 How Pr. 263; Fow- 
 affirming S. C, 32 Id. 601. ler v. Westervelt, 40 Barb. 384; 17 
 
 2 Kelly V. Breusing, 32 Barb. 601 ; Abb. Pr. 59. , , , 
 affirmed in 33 Barb. 123. ^ This form, with slight changes, 
 
 » Fowler v. Westervelt, 40 Barb. 374. from Abbott's excellent work on forms, 
 
 « Paige V. Fazaekerly, 36 Barb. 392 ; is not applicable under the California 
 
 Trustees Fire Department of Brook- statute ; but being an approved form 
 
■270 FORMS OP COMPLAINTS. § 534. 
 
 § 534. Right of Action. — The sheriff who levies an attach- 
 ment has not the right of property in the debt, and can not 
 maintain an action in his own name for the recovery thereof.^ 
 An indemnity bond to the sheriff to retain property seized un- 
 der attachment, is an instrument necessary to carry the power 
 to sue into effect.^ 
 
 § 535. Against Sheriff, for not Executing Process. 
 
 Form No. 111. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That at the time of issuing the execution hereinafter men- 
 tioned, the defendant was the sheriff of the county of Sacra- 
 mento, in this state. 
 
 II. That on the day of , 18..., at ..^ , 
 
 judgment was duly given and made in an action in the 
 
 court, in favor of the plainiiff , against one E. F. , for [one thou- 
 sand] dollars. 
 
 III. That on the day of , 18..., an execution 
 
 against the property of the said E. F. was issued upon the said 
 judgment, and directed and then delivered to the defendant as 
 sheriff aforesaid. 
 
 IV. That on that day the said E. F. had [a large quantity of 
 
 general merchandise] in his store, No , First street, San 
 
 Francisco, and owned the said store and lot [or as the case 
 may "be], in the said county, out of which the said execution 
 might have been satisfied, of which the defendant had notice. 
 
 V. That he refused and neglected to make a levy under or by 
 virtue of said execution, upon said property, or any part thereof 
 [or as the case may be ; and if he levies a part, specify it] , as by 
 said execution he was required to do, to the damage of the 
 plaintiff dollars. 
 
 [Demand op Judgment.] 
 § 536. Arrest, Neglecting to Execute Order of.— That 
 before the return of said order, to wit, on, etc., notice was given 
 to the defendant that said E. F. was within the said county, 
 and that the defendant there had said E. F. in his view and 
 presence, so that if the defendant had desired so to do he could 
 have arrested the said E. F., by virtue of said order; but the 
 defendant, disregarding his duty, did not arrest the said E. F., 
 an<l willfully neglected the execution of said order, is sufficient. ^ 
 
 under the statute of the state of New » Sublette v. Melhado, 1 Gal. 105. 
 
 York, is deemed of value here. See » Davidson v. Dallas, 8 Cal. 227. 
 
 Kelly V. Breusing, 33 Barb.123 : affirm- » Dininny v. Fay, 38 Barb. 18. 
 ing S. C, 32 Id. 601. ' •" 
 
§ 640. PUBLIC OFPICEES. 271 
 
 § 537. Averment of Official Capacity.— That defendant 
 was sheriff, or acted as such, is a sufficient averment of capacity.^ 
 If the object of the suit is to establish a personal and not an 
 official liability, for which the sheriff could be sued while he is 
 out of office, an averment of official character in the title is not 
 necessary.^ 
 
 § 538. Breach of Duty.— That although defendant could 
 have levied, of goods of the execution debtor within his baili- 
 wick, the moneys indorsed on the writ, yet defendant, disre- 
 garding his duty, did not levy of the said goods, the moneys, or 
 any part thereof, sufficiently charges a breach of duty, and 
 implies improper conduct in the sale of the goods. ^ But the 
 mere omission of a deputy to inform the sheriff of having process 
 in hand is not such negligence as to charge the sheriff, in case a 
 writ last in hand was executed flrst.^ 
 
 § 539. Ese'cution, Averment of. — It is not necessary to 
 state the terms of the execution, as the courts take judicial 
 notice of the forms of their own proceedings. The steps in- 
 volved in the issuance of the writ need not be stated. It is suf- 
 ficient to aver that it was duly issued ; the same is true of the levy.* 
 
 § 540. Damages, hovy Averred. — The measure of dam- 
 ages for failure to execute an execution is prima facie the 
 amount due on the execution. If such amount could not have 
 been collected by the exercise of due diligence, such fact may 
 be shown in defense. -Special damage need not be averred.^ 
 In Illinois the action lies where the officer so delays in making 
 a proper levy that the rights of third parties intervene.'' The 
 damages on failure to collect an execution are such as the 
 plaintiff shall actually suffer by. the sheriff's neglect.^ Where 
 the sheriff accepts an assignment of a chattel mortgage, the 
 plaintiff in execution being ignorant thereof, is not bound by 
 his acts.'' 
 
 1 Potter V Luther, 3 Johns. 431 ; First Nat. Bank v. Kogers, 18 Minn. 
 Dean V. Gridley, 10 "Wend. 255 ; and 407. 
 
 see Hall v. Luther, 13 Id. 491 ; com- « Moore v. Floyd, 4 Or. 101 ; Led- 
 
 pare Curtis v. Fay, 37 Barb. 64. yard v. Jones, 7 N. Y. 550 ; Dunphy 
 
 2 Stillman v. Squire, 1 Ben. 327 ; v. Whipple, 25 Micb. 10 ; Clough v. 
 Armstrong v. Garrow, 6 Cow. 463; Monroe, 34 N. H. 381; Evans v. 
 Overton V.Hudson, 2 "Wash. (Va.) 172; House, 26 Ohio St. 488; Both v. 
 Hirsch v. Eand, 39 Cal. 815; Curtis Duval, 1 Idaho, 149; People v. Koper, 
 V. Fay, 37 Barb. 64; "Wymond v. Ams- 4 Scam. 560. That damages must be 
 bury, 2 Col. 213. averred, see Nash v. "Whitney, 39 
 
 8 Mullett V. Challis, 16 Q. B. 239 ; Me. 341 ; Commonwealth v. Lelar, 1 
 
 20 Law J. E. (N. S.) Q. B. 161; .15 Phila. 333. 
 Jur. 243; Political Code, sec, 4180. ' Davidson v. Waldrnn. 31 111. 120. 
 
 * "Whitney v. Butterfleld, 13 Cal. 335. ^ French v. Snyder, BO 111. 339. 
 
 » French v. Willet, 10 Abb. Pr. 99 ; 'Dibble v. Briggs, 28 111. 48 
 
5^72 FORMS OP COMPLAINTS. § 541. 
 
 § 541. Notice. — ^The allegation of notice, though usual, 
 seems unnecessary.^ 
 
 § 542. Refusal to Make Deed. — In an action against a 
 sheriff for special damages, resulting from a refusal on the part 
 of the sheriff to make and deliver to plaintiff a deed to certain 
 premises purchased by plaintiff at sheriff 's sale, when there is 
 no allegation in the complaint of title, nor any averment that 
 in case the deed had been executed, plaintiff would have been 
 able to recover possession of the jJpemises, or the rents and 
 profits, it was held that such complaint is insufficient.* 
 
 § 543. Replevin. — ^The proper mode of declaring in a com- 
 plaint against a sheriff for not taking sufficient security in 
 replevin, or in executing a writ in replevin, is stated in the cases 
 cited below.3 Where defendant had a right to replevy, a com- 
 plaint which avers that the marshal neglected to make the 
 money is bad.* 
 
 § 544. Selling Homestead. — A complaint against a sheriff 
 and his sureties for selling under execution the homestead of 
 plaintiffs, which set out that the sheriff was in possession of a 
 certain execution against plaintiff, J. Kendall, and under color 
 of said execution wrongfully and illegally entered upon and 
 sold certain property, the homestead of plaintiffs, and averring 
 damages in the sum of two thousand dollars, the value of the 
 property, is insufficient, as the same does not state fa,cts suffi- 
 cient to constitute a cause of action. ■ No damage has or can 
 result from such a sale. If the property sold was a homestead, 
 the sheriff's deed conveyed nothing. The purchaser at sale 
 could acquire no right to the property, nor could the plaintiff 
 suffer any injury.^ 
 
 § 545. Against Sheriff for Neglecting to Return Exe- , 
 cution. 
 
 Form No. IIS. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That at the time of the issuing of the execution herein- 
 after mentioned, the defendant was the sheriff of the county of 
 , in this state. 
 
 II. That on the day of ,..., 18..., in an action 
 
 in the superior court of the county of , in this state [or 
 
 other court], wherein this plaintiff was plaintiff, and one A. B. 
 
 > Tomlinson v. Bowe, Hill & D. * Bispham v. Taylor, 2 McLean, 
 
 Supp. 410. 355. 
 
 2 Knight V. Fair, 12 Cal, 296. * Kendall and Wife v. Clark, 10 Cal. 
 
 'See Gibbs V. Bull, 18 Johns. 485; 17. 
 Westervelt v. Bell, 19 VYeud. 531. 
 
§ 54:9. PUBLIC OPMCERS. 273 
 
 ■was defendant, the plaintiff recovered a judgment duly given by 
 said court against tiie said A. B., for dollars. 
 
 III. That on the day of , 18 ..., an execu- 
 tion against the property of said A. B. was issued on said judg- 
 ment, and directed and then delivered to the defendant, as 
 sheriff of the county of , of which execution the follow- 
 ing is a copy: [Copy the execution and indorsement, j 
 
 rV. That although [more than] days elapsed after 
 
 delivery of said execution to the defendant, and before the 
 commencement of this action, yet he has, in violation of his 
 duty as such sheriff, failed to return the same, to the damage of 
 
 the plaintiff dollars. 
 
 [Dbmaotj op Judgment.] 
 
 § 546. The Same— Under California Statute.— The Po- 
 litical Code of California provides as follows : 
 
 " If the sheriff does not return a notice or process in his pos- 
 session, with the necessary indorsement thereon, without delay, 
 he is liable to the party aggrieved for the sum of two hundred 
 dollars, and for all damages sustained by him." ^ 
 
 Under this statute, add to the above the following: 
 Form No. US. 
 
 And whereby, also, the defendant has become and is liable 
 to the plaintiff in the further sum of two hundred dollars under 
 the provisions of section 4179 of the political code of the state 
 of California. 
 
 Wherefore the plaintiff demands judgment against the de- 
 fendant for the said sum of two hundred dollars, under the 
 provisions of the statute aforesaid, and the further sum of 
 
 dollars, 'his damages so as aforesaid sustained, and for 
 
 costs of suit. 
 
 § 547. Issue of Process. — It is suflacient after showing 
 jurisdiction to issue process, to allege that it was issued.* 
 
 § 548. Property. — ^In an action for not returning an ex- 
 ecution, the complaint need not aver that defendant had prop- 
 erty out of which the money might have been levied. The gist 
 of the action is the neglect to return. 3 It is not necessary to 
 allege or prove special damages.^ 
 
 § 549. Remedy.— Plaintiff may proceed by attachment, or 
 may sue for the neglect. ^ This action lies, although the sheriff 
 has not been ordered to make return. ^ 
 
 t Political Code, sec. 4179. ^ = Burk v. Campbell, 15 Johns. 456 
 
 » French V. WiUet, 4 Bosw. 649; Bank of Kome v. Curtigs 1 HiU, 275 
 
 S C 10 Abb Pr 99 ° Burk v. Campbell, 15 Johns. 4ab 
 
 's Pardee v. Eobertson, 6 Hill. 650. Bank of Kome v. Curtiss, 1 Hill, 275 
 
 « Ledyard v. Jones, 7 N. Y. 550. Pardee v. Eobertson, 6 Id. 550. 
 EsTBE, Vol. 1—18 
 
274 
 
 FOKMS OF COMPLAINTS, § 550. 
 
 § 550. Request. — A request to return execution need not 
 
 be alleged. 1 
 
 § 551. Against Sheriff, for Neglecting to Pay Over 
 Moneys Collected on Execution. 
 
 Form No. 114. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I.-^ That at the times hereinafter mentioned, the defendant 
 was the sheriff of the county of , in this state. 
 
 II. That on the day of , 18..., at , an 
 
 execution, then duly issued, in form and effect as required by 
 law against the property of one A. B., and in favor of the 
 plaintiff, upon a judgment for the sum of dollars there- 
 tofore duly given in favor of the plaintiff against said A. B., in 
 
 the superior court of the county of , in this state, was 
 
 by the plaintiff directed and delivered to the defendant as such 
 sheriff. 
 
 III. That the defendant thereafter, as such sheriff, collected 
 and received upon said executi(Jn, to the use of the plaintiff, the 
 sum of dollars, besides his lawful fees. 
 
 IV. That although [more than] sixty days elapsed, after the 
 delivery of said execution to the defendant, before this action, 
 yet he has, in violation of his duty as sheriff, failed to pay over 
 to the plaintiff the amount so collected. 
 
 [Demand of Judgment.] 
 
 § 552. The Same — Under California Statute. — The polit- 
 ical code of California provides : "If he neglects or refuses to 
 pay over on demand, to the person entitled thereto, ^.ny money 
 which may come into his hands by virtue of his office (after de- 
 ducting his legal fees), the amount thereof, with twenty-'five per 
 cent damages, and interest at the rate of ten per cent per month 
 from the time of demand, may be recovered by such person."^ 
 Under this section neither the rate of interest specified therein 
 nor twenty-five per cent as damages can be recovered unless 
 there has been a demand for the money collected, prior to the 
 commencement of the suit, and in such case the complaint must 
 aver such demand and the date thereof. 
 
 The above form is sufficient for the recovery of the money re- 
 ceived by the sheriff and legal interest from the time it should 
 have been paid over. If it is desired to recover the damages 
 and special rate of interest provided for in the above section of 
 
 ' Corning v. Southerland, 3 Hill, 552 ; Fisher v. Pond, 2 Id. 888; Howdenv. 
 Stanish, 6 0. B. 504 ; S. C, 60 Eng. Com. L. R, 503. 
 2 Political Code, sec. 4181. 
 
§ 556. PUBLIC OFFICERS. 275 
 
 the code, omit Part IV in the above form, and insert the fol- 
 lowing. 
 
 Form No. 115. 
 IV. On the day of , 18..., the plaintiff de- 
 manded of the defendant that he pay over to him the moneys 
 so received by him upon said execution, as aforesaid, less his 
 lawful fees thereon, yet he has, in violation of his duty as such 
 sheriff, failed and neglected to pay over to the plaintiff the 
 amount so collected ; by reason whereof the said defendant has 
 become and is liable to the plaintiff for the moneys collected as 
 
 aforesaid, to wit, the sum of dollars, together with 
 
 twenty-five per cent theieof, as damages for the non-payment 
 
 thereof, and interest on the said sum of dollars, at 
 
 the rate of ten per cent per month from the said day of 
 
 , 18... 
 
 Wherefore the plaintiff demands judgment against the defend- 
 ant for the said sum of dollars and interest thereon 
 
 at the rate of ten per cent per month from the said day of 
 
 , 18.., and the further sum of ...'. dollars, 
 
 being twenty-five per cent of said sum of dollars, under 
 
 the provisions of the statute aforesaid, and for costs of suit. 
 
 § 553. Against Deputy. — To render a deputy liable, an 
 express promise must be shown.^ 
 
 § 554. Delivery of Execution. — ^It is enough to show the 
 delivery of execution without proving the judgment.^ 
 
 § 555. Demand. — In an action against a sheriff to recover 
 property seized under process, or its value by the owner, it is 
 not necessary that the plaintiff should show affirmatively notice 
 and demand before bringing suit. This rule is now established 
 by the weight of authority. The early cases in California held the 
 contrary, but they have since been overruled.* 
 
 § 556. Money Paid Over. — Where it is averred in the 
 complaint that the money has been collected, and that defend- 
 ant has failed to return the execution, it will not be presumed 
 that the money has not been paid over. An averment to this 
 effect is essential.* 
 
 J Tuttle V. Love, 7 Johns. 470 ; Pad- also Kluender v. Lynch, 2 Ahb. App, 
 
 dock V. Cameron, 8 Cow. 212 ; and see Deo. 638 ; Moore v. Murdook, 26 Cal, 
 
 Colvin V. Holbrook, 2 N. T. 126; 514; Woodbury v. Long, 8 Pick. 543 
 
 aflarming S. C, 3 Barb. 475. Owings v. Frier, 2 A. K. Marsh. 268 
 
 2 Elliott V. Cronk, 13 Wend. 36 ; and Jamison v. Hendricks, 2 Blackf. 94 
 
 see 1 Cow. Tr. 322. Hicks v. Cleveland. 48 N. Y. 84 
 
 » Wellman v. English, 38 Cal. 583 ; Glossop v. Pole, 8 M. & S. 175 ; Glass- 
 Boulware v. Craddock, 30 Id. 190, poole v. Young, 9 B. &C. 696; Ed- 
 overruling Ledley v. Hays, 1 Id. 160 ; wards v. Bridges, 2 Stark. 396. 
 Daumiel v. Gorham, 6 Id. 44. See * Hoag v. Warden. 37 Cal. 522. 
 
276 rORMS OF COMPLAESTS. §557. 
 
 § 557. Obligation to Pay. — So, to say that plaintiff has 
 been obhged to pay the amount of, etc., in consequence of the 
 negligence and acts of the defendant in his office of under- 
 sheriff, is good, at least on general demurrer ;^ even if process is 
 voidable.^ 
 
 § 558. Remedy. — An action on the case, or an action for 
 money had and received, may be maintained, at the option of 
 the plaintiff. 3 
 
 § 559. Statute Penalties. — "Where a sheriff fails to pay 
 over money collected on execution, the action should be for a 
 false return.* The statute penalties against sheriffs, for the 
 non-payment of moneys collected on execution, are only recov- 
 erable when the sheriff by his return admits the collection of 
 the money, but refuses to pay it over.* 
 
 § 560. SufBcient Averment. — It is enough to say gen- 
 erally that the defendant had collected or embezzled, etc., such 
 a sum, which he had refused, etc., without setting forth the 
 particular items, which would lead to prolixity.* 
 
 § 561. Against Sheriff, for False Return. 
 
 Form No. 1X6. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That at the time of issuing the execution hereinafter men- 
 tioned, the defendant was the sheriff of the county of 
 
 in this state, 
 
 II. That on the day of , 18 ..., at , 
 
 judgment was duly given and made in an action in the 
 
 court, in favor of the plaintiff, against one G. W., for [ten 
 thousand] dollars. 
 
 III. That on the day of , 18 ■.., an execu- 
 tion against the property of the said G. W. was issued upon the 
 said judgment, directed and delivered to the defendant, as 
 sheriff aforesaid. 
 
 rv. That the defendant afterwards, and during the life thereof, 
 levied, under the said execution, on property of the said W. [of 
 the value of ten thousand dollars ; or sufficient to satisfy the 
 said judgment, with all the expenses of the execution ; or state 
 particulars of property on which he might have levied.] 
 
 1 Hughes V. Smith, 5 Johns. 168. • Egery v. Buchanan, 5 Oal. 54. 
 
 2 Walden v. Davison, 15 Wend. 575 ; = Johnson v. G-orham, 6 Cal. 196 ; 
 Bacon v. Cropsey, 7 N. T. 195 ; and 2 Nev. 378 ; Gregory v. Ford, 14 Cal. 
 see Ontario Bank v. Hallett, 8 Cow. 143. 
 
 192; GroBvenor V. Hunt, 11 How. Pr. « Postmaster-general v. Cochran, 2 
 
 855; Ginochio V. Orser, 1 Abb.Pr.433. Johns. 418; Hughes v. Smith, 6 Id. 
 
 8 Dygert v. Crane, 1 Wend. 534 ; 168. 
 Shepiird V, Hoit, 7 Hill, 198. 
 
§ 0^4. PUBLIC OFFICERS. 277 
 
 V. That the defendant afterwards, in violation of his duty as 
 such sheriff, falsely returned upon the said execution, to the 
 clerk of the county of , that the said W. had no prop- 
 erty in his county on which he could levy the amount of said 
 judgment or any part thereof. 
 
 VI. That by means of said premises, the plaintiff has been 
 deprived of the means of obtaining the said moneys directed to 
 be levied as aforesaid, and which are still wholly unpaid, and 
 is likely to lose the same. 
 
 [Demand ov Judgment.] 
 § 562. The Same — Allegation for not Levying when 
 there was an Opportunity, and Falsely Returning Nulla 
 Bona. 
 
 Form No. 117. 
 
 [Allege as in preceding form down to IV, and insert] : 
 
 rV. That the defendant neglected to make any levy on the 
 
 goods and chattels, lands, and tenements of the said G. W. ; 
 
 and falsely and fraudulently returned upon the said writ to the 
 
 said court, that the said G. W. had not any goods or chattels, 
 
 lands or tenements, in his county. That by reason of the 
 
 premises, the plaintiff is deprived of his remedy for obtaining 
 
 payment of his judgment and costs aforesaid, and has wholly 
 
 lost the same. 
 
 [Demand of Judgment.] 
 
 § 563. The Same — Another Form of Allegation. 
 
 Form. No. 118. 
 
 [Allege as in preceding form, and insert] : 
 
 IV. That the defendant, so being sheriff as aforesaid, and 
 having the said order in his hands to execute, and knowing that 
 the said G. W. was in his county and view as aforesaid, falsely 
 and deceitfully returned on the same order to said court, that 
 the said G. W. could not be found in his county. 
 [Demand of Judgment.] 
 
 § 564. Cause of Action. — The cause of action for a false 
 return arises only on actual return of the writ ; but it relates 
 back to the return day, and the false return is properly alleged 
 to have been on that day.^ An officer who should refuse to pro- 
 ceed "upon a second execution would be liable for a false return.^ 
 A "fee bill "is a process, and governed by the same rule as 
 exeeutions.3 
 
 ' Michaels v. Shaw, 12 Wend. 587. 
 
 * Ross V. Weber, 26 111. 221 ; Davidson v. Waldron, 31 Id. 120 ; Moore v. 
 Fit',, 15 Ind. 43. See Howe v. White, 49 Cal. 658. 
 
 s De Wolf V. Long, 2 Gilm. 678; 5 Id. 96; Newkirk v. Chapman, 17 111. 
 S44; 24 Tex. 12. 
 
278 FORMS OF COMPLAINTS. § 565. 
 
 § 565. Measure of Damages.— The plaintiff is entitled, 
 prima facie, to tJie face of the execution.^ And in ease of loss 
 of property by negligence, the damages are the value of the 
 property lost.^ It is not essential to aver any special damage. 
 The amount due on the judgment is, prima facie, the measure 
 of damages.^ 
 
 § 566. That Return was False.— The complaint should 
 show that the return was false, and that the respect in which it 
 was false is material ; deceit or fraud need not be alleged.* 
 
 § 567. Valid Judgment. — In such action, plaintiff must 
 prove a valid judgment.^ 
 
 § 568. For Seizing a Vessel. 
 
 Form No. 119. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That the plaintiff is, and at the time hereinafter mentioned 
 was the owner of [naming the vessel], her tackle, apparel, and 
 furniture, and that he had chartered the same to one A. B., for 
 a voyage from to , and back, for dol- 
 lars per week. 
 
 II. That when said vessel was at , on her voyage 
 
 aforesaid, and in the possession of C. D., her master, appointed 
 
 by the plaintiff, the defendant, on or about the day 
 
 of , 18..., forcibly seized the same, with her apparel, 
 
 furniture, and cargo, of the value of dollars, and 
 
 brought the same to 
 
 III. That in consequence thereof the plaintiff has lost the 
 said vessel, her apparel, equipments, and furniture, and the 
 money which he was to receive for the charter for the period 
 
 of weeks, and has been put to great cost and expense 
 
 in and about asserting and maintaining his rights to said vessel, 
 her tackle and furniture. 
 
 [Demand of Judgment.] 
 § 569. For an Escape. 
 
 Form No. ISO. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That at the time of issuing the execution and of the escape 
 
 'Ledyard v. Jones, 8 Seld. 650; v. Robertson, 6 Hill, 550; Bank of 
 
 Rome V. Curtiss, 1 Hill, 275 ; Pardee Rome v. Curtiss, 1 Id. 2t5 ; and see 
 
 V. Robertson, 6 Id. 550 ; Kelloeg v. Bacon v. Cropsey, 7 N. Y. 195. 
 Manro, 9 Johns. 300; Weld v. Bart- * Peebles v. Newson, 74 N. C. 473; 
 
 lett, 19 Mass. 474. Bacon v, Cropsey, 7 N. Y. 195; Kidzie 
 
 '' Morgan v. Meyers, 14 Ohio, 538 ; v. Sackrider, 14 Johns. 195 ; Hough- 
 Smith V. Fuller, Id. 545. ton v. Swarthout, 1 Den. 589. 
 
 8 Ledyard v. Jones, 7 N. Y. 550, * McDonald v. Bunn, 3 Den. 45. 
 affirming S. C, 4 Baudf. 67 ; Pardee 
 
§ 569. PUBLIC OFFICERS. 279 
 
 hereinafter metitioned, the defendant was the sheriff of the 
 county of , in this state, 
 
 II. That on the day of , 18 ..., in an action 
 
 in the [superior court of the county of , in this state], 
 
 brought by this plaintiff against one A. B. for embezzlement 
 [or other cause authorizing arrest], this plaintiff recovered judg- 
 ment, duly given by said court against said A. B., for 
 
 dollfirs. 
 
 III. That on the day of , 18 ..., an execution 
 
 astainst the property of said A. B. was duly issued by the 
 clerk of said court on said judgment, and thereafter duly re- 
 turned wholly unsatisfied. 
 
 IV. That thereafter, on the day of , 18..., an 
 
 order of arrest was issued by the judge of the said court 
 against the person of said A. B., and then directed and de- 
 livered to the defendant as said sheriff, whereby he was required 
 to arrest said A. B., and commit him to the jail of said county 
 of , until he should be discharged according to law. 
 
 V. That thereafter the defendant, as such sheriff, arrested 
 said A. B. and committed him to jail, pursuant to said execution, 
 and order or arrest. 
 
 VI. That thereupon the plaintiff entered into an under- 
 taking, with good and sufficient securities, duly executed and 
 approved, conditioned for the payment of the expenses of said 
 A. B. for necessary food, clothing, and bedding [or state a de- 
 posit for this purpose]. 
 
 VII. That in violation of his duty as such sheriff, he has 
 
 since, to wit, on the day of , 18...., without 
 
 the consent or connivance of the plaintiff permitted said 
 
 A. B. to escape, to the damage of the plaintiff, 
 
 dollars. 
 
 Wherefore the plaintiff demands judgment against the de- 
 fendant, according to the statute, for the debt [or for damage, 
 or sum of money] for which such prisoner was committed, to 
 wit, dollars, with interest from, etc.^ 
 
 iJn California the political code "2. When the arrest is upon an 
 
 provides, sec. 4182: "A sherifF who execution or commitment to enforce 
 
 suffers the escape of a person in a the payment of money, he is liable in 
 
 civil action, without the consent or the amount expressed in the execu- 
 
 connivance of the person in whose tton or commitment, 
 
 behalfthearrest or imprisonment was " 3. When the arrest is on an exe- 
 
 made, is liable as follows : cution or commitment other than to 
 
 "1. When the arrest is upon an or- enforce the payment of money, he is 
 
 der to hold to bail or upon surrender liable for the actual damages sus- 
 
 inexoneration of bail before judgment tained. , , , 
 
 he is liable to the plaintiff as bail. " 4. Upon being sued for damages 
 
280 FOEMS OF COMPLAINTS. § 570. 
 
 § 570. Arrest for Contempt. — A complaint in an action 
 against a sheriff, for the escape from his custody of a person 
 arrested by him upon a process for contempt, which alleges 
 that the sheriff " suffered and permitted such person to escape 
 and go at large," states a voluntary and not a negligent escape; 
 and an answer which avers that such person may have " wrong- 
 fully and privily, and without the knowledge, permission, or 
 consent of this defendant, escaped," etc., and that "if he did 
 so escape, he afterwards" returned into custody, etc., is insufll- 
 cient as a pleading, as it does not deny, either generally or 
 specifically, the allegation that the sheriff permitted the pris- 
 oner to escape.^ 
 
 § 571. Authority to Release. — The general authority of 
 the attorney as such, is not sufficient to authorize the sheriff to 
 discharge the prisoner upon his consent.^ 
 
 § 572. Committed. — That he had arrested the debtor and 
 detained him in custody in execution, sufficiently imports com- 
 mitment to jail. 3 
 
 § 573. Damages. — The measure of damages is only prima 
 facie the amount of the debt.* A complaint which claimed the 
 amount of the debt, with interest and costs, without using the 
 word "damages," is equivalent to a declaration in debt.^ 
 
 § 574. Escape, Definition of. — In New York, if a person ad- 
 mitted to the liberties of the jail limits is without such limits by 
 virtue of a valid legal process which affords justification to the 
 officer taking him thence, it is not to be deemed an escape within 
 the meaning of 2 R. S. 437, sec. 63, although that section contains 
 no express exception to the rule that being without the bound- 
 aries is an escape. To constitute an escape there must be some 
 agency of the prisoner employed, or some wrongful act by an- 
 other against whom the law gives a remedy.^ The act of the 
 
 for an escape or rescue, he may intro- ' Ames v. Webbers, 8 Wend. 545. 
 
 duce evidence in mitigation and ex- * Ginochio v. Orser, 1 Abb. Pr. 433 ; 
 
 culpation." Potter v. Lansing, 1 Johns. 215; Ku!" 
 
 Sec. 4183. " He is liable for a rescue sell v. Turner, 7 Id. 189 ; Tliomas v. 
 
 of a person arrested in a civil action, Weed, 14 Id. 255; Littlefield v. 
 
 equally as for an escape." Brown, 1 Wend. 398 ; Patterson v. 
 
 Sec. 4184. "An action can not be Westervelt, 17 Id. 543 ; Fairchild v. 
 
 maintained against the sheriif for a Case, 24 Id. 381 ; Ames v. Webbers, 
 
 rescue, or for an escape of the person 8 Id. 545 ; Hutchinson v. Brand, 9 
 
 arrested upon an execution or com- N. Y. 208. 
 
 mitment, if after his rescue or escape ^ Renick v. Orser, 4 Bosw. 384; 
 
 and before the commencement of the McCreery v. Willet, Id. 643. 
 
 action, the prisoner returns to jail, or « Allen on Sheriffs, 231 ; Baxter r. 
 
 is retaken by the sheriff." Taher, 4 Mass. 361 ; Cargill v. Taylor, 
 
 ' Loosey v. Orser, 4 Bosw. 391. 10 Id. 206. 
 
 * Kellogg V. Gilbert, 10 Johns. 220. 
 
§ 579. PUBLIC OPFICEES. 28J 
 
 law, as well as the act of God or of the public enemies, will 
 excuse the sheriff in an action for escape. ^ 
 
 § 575. Excuse.— Nothing but the act of God or public en- 
 emies will excuse the sheriff for an escape.* In California the 
 sheriff is liable for a rescue equally as for an escape ;3 but an 
 action can not be maintained for either after the prisoner returns 
 to jail, or is recaptured by the sheriff.* 
 
 § 576. Form of Allegation in Debt.— That thereupon, 
 the judgment remaining wholly unpaid, the defendant became 
 
 indebted to the plaintiff in the sum of dollars, the 
 
 amount of said judgment.^ This form is equivalent to a decla- 
 ration in debt. 
 
 § 577. Indorsement. — The indorsement on the execution or 
 writ need not be set out.^ 
 
 § 578. Liability as Bail. — ^If, after being arrested upon an 
 order to hold to bail, or upon a surrender in exoneration of bail 
 before judgment, the defendant escape or be rescued, the sheriff 
 shall himself be liable as bail ; but he may discharge himself 
 from such liability by the giving and justification of bail at any 
 time before judgment.'' Whether a judgment creditor, injured 
 by the escape of his debtor from arrest, elects to sue the sheriff 
 at common law for escape, or under section 201 of the code 
 of procedure of New York, as bail, is manifested by the com- 
 plaint. If he proceeds against the sheriff as bail, he must set 
 forth the proceedings to and including the escape, and allege 
 that the defendant is bail, and must bear the appropriate judg- 
 mei\t. If he elects to prosecute for an escape, tlje complaint 
 will contain the same matters, but all allegation as to the char- 
 acter of the defendant as bail should be omitted, as wholly irrel- 
 evant to a cause of action for an escape. A complaint in such 
 a case, "which makes no mention of the defendant as bail, and 
 contains nothing manifesting an intention or election to hold 
 him liable in that character, is to be treated as intending an ac- 
 tion for an escape. ^ 
 
 § 579. Negligence. — An officer who negligently permits an 
 escape is liable to the person injured by his neglect of duty ;9 
 
 1 Wilckens V. "Willett, 1 Keyes, 521, 225; S. C, 19 How Pr. 564; so in 
 
 affirming S. C, sub nom. Wickel- Eeniok v. Orser. 4 Bosw. 384, and 
 
 hausen v. Willet, 12 Abb. Pr. 319 ; 21 McOreery v. Willett, Id. 643. 
 
 How. Pr. 40. ° Jonea v. Cook, 1 Cow. 309. 
 
 ' r'airohild v. Case, 24 Wend. 381 ; ' Political Code, sec. 4182, subd. 1. 
 
 Kainey v. Dunning, 2 Murph. 386. « Smith v. Knapp, 30 N. Y. 581. 
 
 s Political Code, see. 4183. 'Brown v. Genung, 1 Wend. 115; 
 
 ' Id. 4184. 37 111. 267. 
 
 6 Barnes v. Willett, 11 Abb. Pr. 
 
282 FORMS OP COMPLAINTS. § 58P. 
 
 and an escape from a deputy may be declared on as an escape 
 from the sheriff.'- 
 
 §580. Voluntary. — A complaint which alleges that "the 
 sheriff suffered and permitted such person to escape and go at 
 large," states a voluntary and not a negligent escape.^ Under 
 the averment that he voluntarily suffered the party to escape, a 
 negligent escape may be proved ;3 and evidence of a negligent 
 escape supports an action for a voluntary one.* 
 
 CHAPTER X. 
 
 EECEIVERS. 
 
 § 581. By a Receiver Appointed Fending Litigation. 
 
 Form No. 121. 
 
 [State and County.] [Couet.] 
 
 A. B., Receiver of the Property of ") 
 
 C. D., Plaintiff, f 
 
 against T 
 
 E. P., Defendant. ) 
 
 The plaintiff, as receiver of the property of C. D., complains, 
 and alleges : 
 
 I. [State cause of action.] 
 
 II. That on the day of , 18 ..,, at the city and 
 
 county of San Francisco, and %tate of California, in an action 
 
 then pending in the superior court of the , county of 
 
 , state of , wherein C. D. was plaintiff and E. 
 
 F. was defendant, upon an application made by the said A. B., 
 and by order duly made by said court [or judge], this plaintiff , 
 was appointed receiver of the property of the said C. D., here- 
 inafter described, to wit : [Describe property so as to show that 
 the cause of action is embraced.] 
 
 III. That thereafter, and before the commencement of the 
 present action, he gave his bond required by the sai'd order, as 
 such receiver, approved by the said judge, which bond, with such 
 
 approval, is on file in the said court, and were so filed 
 
 prior to the commencemeat of this action. 
 
 IV. That on the day of , 18..., said receiver duly 
 
 obtained leave of the said court [the court appointing him] to 
 bring this action. 
 
 [Demand of Judgment.] 
 
 * Skinner v. White, 9 N. H. 204. 
 ^ Loosey V. Orser, 4 Bosw. 391. 
 
 ' 2 T. R. 126; O'Neil v. Marson, 5 Burr. 2814: \ Saund. 35. 
 
 * Sltinner v. White, 9 N. H. 204. 
 
§ 583. RECEIVERS. 283 
 
 § 582. Motion for Appointment of Receiver. 
 
 Form No. 12Z. 
 [Title.] 
 
 Plaintiff moves that a receiver be appointed in this action on 
 
 the following grounds [stating them] : 
 
 [Signature.] 
 
 § 583. Appointment of Receiver. — Courts of equity have 
 the power to appoint receivers and to order them ' to take pos- 
 session of the property in controversy, whether in tiie immediate 
 possession of the defendant or his agents; and in proper cases, 
 they can also order the defendant's agents or employees, al- 
 though not parties to the record, to deliver the specific property 
 to the receiver.^ But they caa not appoint a receiver and de- 
 cree a sale of the property and affairs of a corporation.^ Such 
 a decree would necessarily result in a dissolution of the corpo- 
 ration. ^ Under subdivision 5, section 564, California Code C. 
 P., a receiver may be appointed 'wlien a corporation has been 
 dissolved, or is insolvent, or iu imminent danger of insolvency, 
 or has forfeited its corporate rights. Where the allegations of 
 a bill are general, and the equities are fully denied, such a case 
 is not presented as will justify the appointment of a receiver, 
 and the withdrawal of the property from the hands of one inti- 
 mately acquainted with all of the affairs of the concern, and 
 placing it in the hands of another who may not be equally com- 
 petent to manage the business.* 
 
 In California, the code provides that a receiver may be ap- 
 pointed by the court in which the action is pending, or by a 
 judge thereof: 
 
 "1. In an action by a vendor to vacate a fraudulent purchase 
 of property, or by a creditor to subject any ptoperty or fund 
 to his claim, or between partners, or others jointly owning or in- 
 terested in any fund, on the appUcation of the plaintiff, or of 
 any party whose rights to or interest in the property or fund, 
 or proceeds thereof, is probable, and where it is shown that the 
 property or fund is in danger of being lost, removed, or mate- 
 rially injured. 
 
 "2. In an action by a mortgagee for the foreclosure of his 
 mortgage, and the sale of the mortgaged property, where it ap- 
 pears" that the mortgaged property is in danger of being lost, 
 removed, or materially injured, or that the condition of the 
 mortgage has not been performed, and that the property is 
 probably insufficient to discharge the mortgage debt. 
 
 • Ex parte Cohen, 5 Cal. 494. ! I5:.„. nr a noi qsq 
 
 2 i^eall V. Hill, 16 Cal. 148. * Williamson v. Monroe, 3 Cal. 383. 
 
,284 FORMS OF COMPLAINTS. § 584. 
 
 "3. After judgment, to carry the judgment into effect. 
 
 " 4. After judgment, to dispose of the property according to 
 the judgment, or to preserve it daring the pendency of an ap- 
 peal, or in proceedings in aid of execution, when an execution 
 has been returned unsatisfied, or when the judgment debtor 
 refuses to apply his property in satisfaction of the judgment. 
 
 "5. In cases where a corporation has been dissolved, or is 
 insolvent, or in imminent danger of insolvency, or has forfeited 
 its corporate rights. 
 
 "6. In all other cases where receivers have heretofore been 
 appointed by the usages of courts of equity." ^ 
 
 In constraing this provision of the California code it has been 
 held that subdivision 6 thereof is but declaratory of the equity 
 jurisdiction conferred on the courts by the constitution, and in- 
 cludes only the suits 'in which it has been the usage of courts of 
 equity to appoint a receiver ;• their jurisdiction in this respect 
 would have been the same in the absence of the statute. It 
 does not include the power to appoint a receiver in an action of 
 ejectment, and an order maldng an appointment should be 
 annulled ; ^ nor does it embrace the power to appoint a receiver 
 of the property of a corporation in aid of a suit prosecuted 
 against the corporation by a private person ; such power must 
 be derived from express statute. If a receiver is appointed in 
 such a suit, the appointment will be annulled on certiorari.^ The 
 appointment of a receiver may be made upon an ex parte appli- 
 cation at chambers.^ 
 
 § 584. Alleging Appointment. — ^A receiver suing by virtue 
 of his title and authority should state the time and place of his 
 appointment, and distinctly aver that he has been appointed by 
 an order of the court.^ Where a receiver would make title to a 
 chose in action, he must set forth the facts showing his appoint- 
 ment. It will not be sufficient to aver that he was duly ap- 
 pointed.* So describing himself as "having been duly appointed 
 receiver of, etc. , and bringing this suit by order of the supreme 
 court," is insufficient on demurrer.^ And where a plaintiff 
 
 1 California Code Civ. Proc, sees. Intoah, 23 Barb. 591 ; Hobart v. Frost, 
 
 564-5S9;.]SIew York Code, sec. 244; 5 Duer, 672 ; White v. Low, 7 Barb. 
 
 Ohio Code, sec. 253. 206 ; Dayton v. Connah, 18 How. Pr. 
 
 ' Baleman v. Superior Court, 54 Cal. 826. 
 
 285. 6 GHUett v. Fairchild, 4 Den. 80; 
 
 8 La Soci«t6 Fransaise etc. v. Fif- White v. Joy, 3 Kern. 86 ; Stuart v. 
 
 teenth District Court, 58 Cal. 495. Beebe, 28 fiarb. 84; Tuckerman v. 
 
 * Real Estate Association v. Supe- Brown, 11 Abb. Pr. 889. 
 
 rior Court, 60 Cal, 228. ' See authorities cited above, note 
 
 5 White V. Low, 7 Barb. 201 ; Gillett 1 ; see also Dayton v. Connah, 18 How. 
 
 V. Fairchild, 4 Den. 80 ; Bangs v. Mc- Pr. 326. 
 
§ 587. RECEIVERS. 285 
 
 claims title to a note sued on by virtue of his appointment as 
 receiver of an insurance company, the note being payable to a 
 company bearing a name different from that of the company of 
 ■which he is receiver, it is necessary that he should, by proper 
 averments, show that the note is a part of the assets of the com- 
 pany of which he has been appointed receiver. ^ If the change 
 of name was by reorganization of the company under the general 
 act, a general averment of the fact of reorganization is enough. 
 But alleging that plaintiff is receiver of, etc. , appointed by the 
 supreme court Dy an order made on a specified day, on condition 
 of filing security, and that such security was given accordingly, 
 states enough to enable the defendant to take issue upon the 
 legality of the plaintiff 's appointment.^ 
 
 § 585. Appointment Fending Litigation. — When either 
 party establishes a prima facie right to the property, or to an 
 interest in the property, the subject of the action, and which is 
 in possession of an adverse party, and the property or its rents 
 and profits are in danger of being lost or materially injured or 
 impaired, the court or a judge thereof may appoint a receiver.^ 
 In a foreclosure suit, the plaintiff has no right to have a receiver 
 of rents and profits of the mortgaged property appointed pend- 
 ing a litigation;* unless it appears that the condition of the 
 mortgage has not been performed, and that the property is 
 probably insufficient to discharge the mortgage debt.^ 
 
 § 586. Appointment after Judgment. — In an action to 
 recover possession of real estate, and while a motion for a new 
 trial is pending, a receiver of the rents and proceeds of the 
 property in dispute may be appointed, if the facts of the ease are 
 such as warrant it. If the defendant in possession is receiving 
 monthly large sums of money from the sale of the waters of 
 mineral springs on the land, and is insolvent, a receiver may 
 be appointed, pending the further litigation, on motion for a 
 new trial and appeal.* 
 
 § 587. Bound by Order of Court. — Receivers, or other 
 
 1 Hyatt V. McMahon, 25 Barb. 457. name, and without averring his ap- 
 
 2 Stewart v. Beebe, 28 Barb. 34 ; pointment, see White v. Joy, 13 N. 
 compare Crowell v. Church, 7 Abb. T. 83; Bank of Niagara v. Johnson, 8 
 Pr. 205, note. Of thepropermode of Wend. 645; Haxtun v. Bishop, 3 Id. 
 complaining in an action by a receiver, 13. 
 
 of departure from the complaint in the ' Cal. Code Proc, sec. 564. 
 
 replv, and of the proper mode of seek- * Guy v. Ide, 6 Cal. 101 ; Meyer v. 
 
 ine relief where the reply departs from Seebald, 11 Abb. (N. S.) 326, note. 
 
 the complaint, see White -. Joy, 8 » £,» Soci«t6 Fran^aise etc. v. Sel- 
 
 Kern 83 reversing S. C, 11 How. Pr. heimer, 57 Cal. 623. 
 
 36- 2 Abb. Pr. 548. As to the cases « Whitney v. Buckman,26Cal. 447; 
 
 in which a receiver may sue in his own see Cal. Code C. P., sec. 564. 
 
286 FORMS OF COMPLAINTS. § 588. 
 
 custodians of money in the hands of a court, as they are bound 
 to obey orders of the court in their relation to the fund, as well 
 as regards its safe custody as its return, are eo-relatively entitled 
 to the protection of the court against loss for disbursements 
 which were necessary and proper and such as a reasonable and 
 prudent man, acting as receiver, would have been justified in 
 
 expending.^ 
 
 § 588. Disbursements of Receiver.— An order of court 
 directing a referee " to ascertain and report the amount of dis- 
 bursements and expenses made with or under the direction and 
 authority of the court," by a receiver or custodian of money in 
 the hands of the court, is too narrow to do him justice, and 
 should be so enlarged as to allow for all reasonable and proper 
 expenses incident to the receivership. ^ And this, although the 
 claim is for disbursements incurred by the custodian of the 
 fund under an appointment as assignee in a pro^ceeding in 
 insolvency which was afterwards held to be void.^ 
 
 § 589. Discretion of Court. — The appointment of a re- 
 ceiver rests in the sound discretion of the court upon a view of 
 all the facts ; -one of which is, that the party asking the appoint- 
 ment should make out a prima facie case ; and after an ex parte 
 appointment has been made, the order may be vacated, either 
 before or after the trial, upon a proper showing.'* 
 
 § 590. Leave to Sue and be Sued. — ^Unless expressly au- 
 thorized by the statute under which the appointment is made, 
 a receiver can not sue or be sued without leave of court. ^ And 
 it has been held that the power to collect is not sufficient to 
 authorize him to sue.^ Notice of the application to the court 
 appointing, for leave to sue the receiver, need not be given to 
 him, nor to the parties to the action in which he was appointed.' 
 "Where leave to sue or be sued is required to be obtained, that 
 the same was obtained should be alleged in the complaint. 
 Even if this allegation is not held necessary by the courts in 
 some of the states, the safer practice is to make it.^ 
 
 1 Adams v. Haskell, 6 Cal, 475; Ohio St. 137; High on Reo. 167; De- 
 Guardian Savings Inst. v. Bowling Groot v. Jay, 30 Barb. 483 ; Cal. Code 
 Green S. I., 65 Barb. 275. Civil Proc., sec. 458. 
 
 2 Adams v. Haskell, 6 Ual. 475. « Screven v. Clark, 48 Ga, 41 ; King 
 8 See also O'Mahoney v. Belmont, v. Cutts, 24 Wis. 627. 
 
 62 K. Y. 133. ' Potter v. Bunnell, 20 Ohio St. 150. 
 
 * Copper Hill Min. Co. v. Spencer, * Scofield v. Doseher, 72 N. Y. 491 ; 
 
 26 Cal. 15. Watts v. Everett, 47 Iowa, 269. See 
 
 ' King V. Cutts, 24 Wis. 627 ; Battle contra, a dictum in Finch v Carpen- 
 
 V. Davis, 66 N. C. 252 ; Screven v. ter, 5 Abb. Pr. 225 ; compare Cal. Code 
 
 Clark, 48 Ga. 41 ; Miami etc. v. Gano, 0. P. 568. 
 13 Ohio, 269 ; Murphy v. Holbrook, 20 
 
§ 593. RECEIVERS. 287 
 
 § 591. Powers, Duties, ana Liabilities of Receiver.— In 
 
 California, the code provides that the receiver has, under the 
 control of the court, power to bring and defend actions in his 
 own name, as receiver ; to take and keep possession of the prop- 
 erty ; to receive rents, collect debts ; to compound for and com- 
 promise the same ; to make transfers, and generally to do such 
 acts respecting the property as the courts may authorize.^ The 
 code of Ohio contains the same provision.^ A receiver may 
 employ counsel. ^ Upon the application of the receiver, in the 
 suit for dissolution, he can obtain the necessary proceedings for 
 procuring a correct application of the balance of a judgment 
 held by the partnership against a third party, after paying the 
 judgment creditor of the partnership.'* A receiver can pay out 
 nothing, except on an order of the court ; but there are excep- 
 tions to the rule ; nor will he be denied reimbursement in every 
 case in which he neglects to obtain the order, especially in a 
 court of equity. 5 It will not be presumed that the receiver has 
 transcended his duties, and taken possession of property to which 
 he was not entitled ; nor is the opposite party entitled to have 
 issues framed and submitted to a referee or jury to ascertain the 
 ownership of the money in the receiver's hands. ^ A receiver is 
 personally liable to persons sustaining loss or inj ury by or through 
 his own neglect or misconduct ; but for the neglect or miscon- 
 duct of those employed by him in performance of the duties of 
 his trust, he is liable only in his offlcial capacity, and the judg- 
 ment against him, if any, must be made payable out of the funds 
 in his own hands as receiver.'' In this case it was held, that where 
 a railroad was operated by a receiver, a party injured may, by 
 leave of the court appointing the receiver, maintain an action 
 ao-ainst him as such, for injuries sustained, and that it is no de- 
 fense in such action that the receiver was a public officer, or that 
 he was an agent or trustee. 
 
 § 592. Mining Claims. — The purchaser at a judicial sale of 
 a mining claim may, where the judgment debtor remains in pos- 
 session, working the claim, and is insolvent, have a receiver 
 appointed to take charge of the proceeds during the period 
 allowed by the statute for redemption.^ 
 
 § 593. On Application for Injunction. — If notice is given 
 
 1 Cal. Code C. f., sec. 568. ^ Whitney v. Buckman, 26 Cal.451. 
 
 2 Ohio Code, sec. 5590. ' Camp v. Barney, 4 Hun, 373; 
 
 3 Adams v. Woods, 8 Cal. 315. see, also, Miller v. Loeb, 64 Barb. 
 * Adams v. Hackett, 7Cal. 187. 454; Potter v. Bunnell, 20 Ohio St. 
 5 Adams v. Wo-jds, 15 Cal. 207; 151; Murphy v. Holbrook, Id. 137. 
 
 Adams v. Haskell, 6 Id. 475. « Hill v. Taylor, 22 Cal. 191. 
 
288 FORMS OF COMPLAINTS. § 594. 
 
 of an application for an injunction, and the petition prays for an 
 injunction, the judge, on the hearing, may appoint a receiver. If 
 the facts make out a proper case for a receiver, and no ob- 
 jection Is made on the ground of want of notice of the applica- 
 
 tlon.i 
 
 § 594. Setting aside Assignment. — "Where a receiver brings 
 an action to set aside an assignment, he must state in his com- 
 plaint the equity of the party whose rights he represents, to 
 maintain the action which he attempts to prosecute. A receiver 
 in general Is not clothed with any right to maintain an action 
 which the parties or the estate which he represents could not 
 maintain.' And he must show a cause of action existing in those 
 parties.^ 
 
 § 595. Suit against. — A suit can not be brought against a 
 receiver when the judgment would disturb the receiver's pos- 
 session of the property; nor can a creditor bring an action 
 against him to litigate his claim. All such questions may be 
 determined by the court by an Intervention In the pending liti- 
 gation.'* 
 
 § 596. Transfer to Receiver. — In California the transfer 
 to a receiver by order of court of the effects of an insolvent In 
 the suit of a judgment creditor, is not an assignment absolutely 
 void under the insolvent act of 1852, according to any decision of 
 the supreme court, but only void against the claim of creditors.' 
 Where it appears that the partners, parties to the suit for a dis- 
 solution, held a judgment against a third party which was never 
 reduced to the possession nor under the control of the receiver, 
 the appointment of the receiver would not operate as an assign- 
 ment or transfer of any property not so reduced to possession 
 within a reasonable tlme.^ 
 
 § 597. Vacating Order of Appointment. — ^The pendency 
 of a motion for a new trial does not operate as a stay of proceed- 
 ings, so as to deprive the court of the power of vacating an 
 order appointing a receiver made before the trial.'' The court 
 which first acquires jurisdiction and appoints a receiver of a 
 fund, has the whole jurisdiction thereof, and Is bound to ad- 
 minister it. 8 
 
 > Whitney v. Buckman, 26 Cal. * Spinning v. Ohio Life Ins. and 
 
 447. Trust Co., 2 Dis. 336. 
 
 2 Coope V. Bowles, 42 Barb. 87 ; S. ' Naglee v. Lyman, 14 Cal. 450. 
 
 C, 18 Abb. Pr. 442 ; and 28 How Pr. « Adams v. Haskell, 6 Cal. 113. 
 
 10. ' Copper Hill Min. Co. v. Spencer, 25 
 
 • Coope V. Bowles, 42 Barb. 87 ; S. Cal. 16 ; Wilson v. Barney, 5 Hun, 257. 
 
 C-, 18 Abb. Pr. 442; and 28 How. « O'Mahoney v. Belmont, 62 N. Y. 
 
 Pr.lO. 133. 
 
§ 601. RECEIVERS. 289 
 
 § 598. The Same — Appointed in Supplementary Pro- 
 ceedings. 
 
 Form No. ISS. 
 
 [TiTLB.] 
 
 The plaintiff, as receiver of the property of C. D., complains, 
 and alleges : 
 
 I. [State cause of action.] 
 
 II. That on the day of , 18..., at , upon 
 
 an application made by L. M., a judgment creditor of said C. D., 
 in proceedings supplementary to execntion, and by an order or 
 determination then duly made by the Hon. G. H., judge of the 
 
 superior court for the county of , state of , the 
 
 plaintiff was appointed receiver of the property of said C. D. 
 
 III. That thereafter, and before the commencement of this 
 action, he gave his bond, required by said order, etc. [as in pre- 
 ceding form] . 
 
 IV. [Allege permission to sue as in preceding form.] 
 
 [Demand or Judgmknt.] 
 
 § 599. Fund in Hands of Trustees. — Where a complaint 
 by a receiver, appointed in supplementary proceedings, alleged 
 that a fund was given by will to the defendants as trustees, in 
 trust, to keep the same invested and pay the interest to the ex- 
 ecution debtor during his life ; that the defendants had collected 
 interest since the appointment of the plaintiff as receiver, but 
 refused to pay the same over to the plaintiff, but did not aver 
 that any part of the interest was in the hands of the defend- 
 ants, as a surplus above what was necessary for the debtor's 
 support ; it was held that the complaint did not state facts suffi- 
 cient to constitute a cause of action.^ The interest of the debtor 
 in the income of the fund under such a trust is only subject to 
 the claims of creditors to the extent of a surplus over and above 
 what is necessary or proper for his maintenance and support. 
 The court can not infer that such a surplus exists. It is the duty 
 of the pleader to show by proper averments that such facts exist.'' 
 
 § 600. Supplementary Proceedings— In proceedings sup- 
 plementary to execution, the court may appoint a receiver when 
 it has all the parties before it. 3 
 
 § 601. Another Form — Setting out Proceedings at 
 
 ^®°^* ■ Form No. IZi. 
 
 [Title.] 
 The plaintiff, as receiver of the property of C. D., complams, 
 
 and alleges: 
 
 1 Graff V. Bonnett, 31 N. T. 9. » H. » Hathaway v. Bradd, 23 Cal. 586. 
 EsTBB, Vol. 1—19. 
 
290 EOKMS OF COMPLAINTS. § 601. 
 
 I. That E. F. and G. H., of San Francisco, state of California, 
 survivors of C. D., deceased, in an action brought by them in the 
 
 superior court of the county of , state of California, 
 
 against J. K., obtained judgment against the defendant in that 
 action, on, etc., for the sum of, etc., which judgment was en- 
 tered by the clerk of the county of , on the day aforesaid, 
 
 and the roll filed and judgment docketed in said clerk's office on 
 that day. 
 
 II. That on, etc. , an execution therefor was duly issued and 
 
 delivered to the sheriff of said county of , commanding 
 
 Mm to make said, etc., with interest from, etc., and make return 
 of his doings in the premises ; that said sheriff afterward, and on, 
 etc., returned said execution to the office of the clerk of the county 
 of , with his return thereon indorsed, showing the execu- 
 tion wholly unsatisfied. 
 
 III. That afterwards, and on, etc., the plaintiff in said action 
 caused an affidavit to be made, setting forth the above facts, as 
 to obtaining said judgment, the filing of transcript, the issuing 
 and return of said execution, and that the said judgment re- 
 mained wholly unsatisfied, and presented the same to Honorable 
 
 J. D., judge of the superior court of the county of , on 
 
 the same day, who thereupon, and on, etc., made an order re- 
 quiring said judgment debtor to appear before L. M., Esq., 
 referee thereby appointed, at the office of said L. M., in, etc., on, 
 
 etc., at o'clock in the noon, to testify concerning his 
 
 property ; and said N. O. by said order was further forbidden to 
 transfer, or in any manner dispose of, or interfere with any prop- 
 erty, moneys, or things in action belonging to him until further 
 order in the premises. 
 
 IV. That said order was personally served on said defendant 
 on the same day, and said defendant appeared before said 
 referee at the time and place in said order specified, and sever- 
 ally submitted to an examination under oath, and testified as to 
 his property, which examination was on the same day, by said 
 referee, certified to said judge, who, thereupon, by an order, 
 appointed A. B., of, etc., this plaintiff, receiver of all the 
 debts, property, effects, equitable interests, and things in action 
 of said CD., and further ordered this plaintiff, before entering 
 upon the execution of his trust, execute to the clerk^ of this 
 
 'Under section 567, California Code direct. The allegation of the making 
 of Civil Procedure, the undertaking and filing of the bond should follow 
 must be made to such person and in the order of the court or judge direct- 
 such sum as the court or judge may ing the bond to be given. 
 
§ 604. RECEIVERS. 291 
 
 court a bond, with sufficient sureties, to be by said judge ap- 
 proved, in the penal sum of , conditioned for the faith- 
 ful performance and discharge of the duties of such trust, and 
 that this plaintiff,. upon filing such bond in the olBce of the 
 
 clerk of the county of , be invested with all rights and 
 
 powers as receiver according to law. The said C. D. was therein 
 and thereby enjoined and restrained from making any disposi- 
 tion of or interfering with his property, equitable interests, 
 things in action, or any of them, except in obedience to said 
 order, until further order in the premises. 
 
 V. That on, etc., he executed a bond with sureties, as re- 
 quired by said order, and the rules and practice of this court, 
 which was approved by said judge, and filed in the office of the 
 clerk of the county of, etc. 
 
 VI. [Allege cause of action. ]i 
 
 [Demand of Judgment.] 
 § 602. By Receiver of Dissolved Corporation. 
 
 Farm No. 1$5. 
 [Title.] 
 
 The plaintiff, as receiver of the company, complains, 
 
 and alleges : 
 
 I. [State a cause of action accruing to the corporation.] 
 
 II. That on the day of , 18..., at , 
 
 upon an application made upon occasion of the insolvency of 
 
 the said company [or state any other reason which 
 
 may exist], and by an order of the Hon > judge of the 
 
 superior court of the county of , state of California, 
 
 the plaintiff was appointed receiver of the property, and effects, 
 
 and things in action of the said company, pursuant to 
 
 statute. 
 
 III. [Allege qualification and permission to sue as in form 
 
 No. 121.] 
 
 [Demand of Judgment.] 
 
 § 603. Occasion of Dissolution. — ^The occasion of the dis- 
 solution should be shown.* 
 
 § 604. By Receiver of Mutual Insurance Company on 
 Premium Note. 
 
 Form No. 1S6. 
 [Title.] 
 The plaintiff, as receiver of the company, complains, 
 
 and alleges : 
 
 » The above form is substantially from McCall's Forms, 270, See Cal. Code, 
 
 sec. 564, subd. 3; N. T. Code, sec. 244, aubd. 5. n a.,1, t. aao 
 
 ' Gillet V. Sairchild. 4 Den. 80 ; see Tuckerman v. Brown, 11 Abb. rr. dsa. 
 
292 FOKMS OF COMPLAINTS. § 604. 
 
 I. That the Insurance Company was at the time 
 
 hereinafter mentioned a mutual insurance company, duly in- 
 corporated as such under and by virtue of an act of the legisla- 
 ture of this state, entitled [title of act] , and was duly organized 
 under said act, to make, etc. [State object of incorporation.] 
 
 II. That on the day of , 18..., at the general 
 
 term of the superior court, in and for the county of , 
 
 state of California, this plaintiff was appointed receiver of the 
 stock, property, things in action, and effects of the said company 
 [upon the occasion of its voluntary dissolution, or otherwise], 
 
 III. That thereafter, and prior to the day of , 
 
 18..., the plaintiff gave the requisite security as said receiver, 
 and filed the same in the clerk's ofEce of the said county of 
 
 , and thereupon entered upon the duties of bis oflSce 
 
 as such receiver, and is now, as said receiver, in possession of 
 the stock, property, things in action, and effects of the said 
 corporation. 
 
 IV. That the defendant made his certain note in writing, 
 commonly called a premium note ; and, at the date in said note 
 mentioned, delivered the said note, of which the following is a 
 copy, to the said company. [Copy note.] 
 
 V. That said policy of insurance expired in one year from 
 the date thereof, and said note formed part of the capital stock 
 of said company, and which said policy of insurance was issued 
 and delivered to the said defendant at the date mentioned in 
 the said note, and thereby the said defendant became a member 
 of said company, down to and including the time for which 
 said note was assessed by said plaintiff as said receiver, to pay 
 the losses and liabilities of said company, incurred whilst said 
 policy and note were in full force and effect. 
 
 VI. That after he had entered on the duties as said receiver, 
 he ascertained the amount of the losses by risks, and other 
 
 liabilities of said company; and as said receiver, at 
 
 aforesaid, on the day of , 18..., did settle and de- 
 termine the sums to be paid by the several members of said 
 company, as their respective portions of such losses and lia- 
 bilities, in proportion to the unpaid amount of his or their 
 deposit note or notes, agreeably to the charter and by-laws of 
 said company, and did thereafter on said note assess the sum so 
 settled and determined upon to be paid by the several members of 
 said company, liable to be assessed therefor. 
 
 VII. That after the making of the said assessment, as said 
 receiver, he published notice thereof in the ., a news- 
 
§ 604. EECEIVEES. 293 
 
 paper published in the county of , once in each -week 
 
 for days, commencing on the day of , 
 
 18...., and that previous to the day of , 18...., 
 
 he caused notice to be served on each person assessed, of the 
 amount so settled, determined, and assessed to be paid by him 
 on his premium note, by depositing such notice in the post- 
 office at , directed to each person assessed at his place 
 
 of residence, as far as such place of residence could be ascertained 
 from the books of said company, requiring said assessment to 
 .be paid in days after service of such notice. 
 
 VIII. That at a term of the superior court of the county 
 
 of ,held at the court-house, in the city and county of 
 
 San Francisco, on the day of , 18..., the afore- 
 said assessment, so made by said receiver on the premium 
 notes of the members of said company, was ratified and con- 
 firmed, and the said receiver authorized and directed by said 
 court to bring suits against the several members of said com- 
 pany, who have refused or neglected .to make payment of the 
 amount so assessed by plaintiff to be paid on their respective 
 premium notes. 
 
 IX. That the said defendant's note aforesaid was assessed, 
 
 for the purpose aforesaid, to the amount of dollars, 
 
 and said assessment was made for losses or damages by risks on 
 life [or otherwise] and expenses accrued to said company only 
 while said note and policy of insurance therein mentioned were 
 in full force and effect. 
 
 X. That the defendant has not paid the said assessment, or any 
 
 part thereof. 
 
 [Demand of Judgment.]' 
 
 > Such a cDmplaint must show the liabilities of the company: Thomas ▼, 
 Whallon, 81 Barb. 172. 
 
SUBDIYISION SECOND. 
 
 IN ACTIONS FOR DEBT. 
 
 CHAPTER I. 
 
 ACCOUNTS. 
 
 § 605. For Money Due on an Account. 
 
 Form No, 1S7. 
 [Title.] 
 The plaintiff complains of the defendant, and alleges : 
 
 I. That between the day of and the day 
 
 of , 18..., at , the plaintiff sold and delivered 
 
 to the defendant, at his request, certain goods, wares, and mer- 
 chandise. 
 
 II. That the same were reasonably worth the sum of 
 
 dollars. 
 
 III. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demakd of Judoment.] 
 
 § 606. The Same — Another Form — Common Count. 
 
 Form No. 1S8. 
 The plaintiff complains of the defendant, and alleges : 
 
 I. That the defendant is indebted to the plaintiff in the sum 
 of dollars, upon an account of goods sold and deliv- 
 ered by the plaintiff to the defendant, at his request, at , 
 
 between the day of and the day of , 
 
 18... 
 
 II. That the same became due and payable on the day 
 
 of , 18.., but the defendant has not paid the same, nor 
 
 any part thereof [if there have been payments, add " except the 
 sum of dollars"]. 
 
 [Demand or Judgment.] 
 § 607. Essential Averments. — ^At the common law, an 
 allegation in an action on an account, that the defendant is in- 
 debted to plaintiff in the sum, etc. , for goods sold and deliv- 
 ered on, etc. , and that there was then due to the plaintiff from 
 
 294 
 
§ 608. ACCOUNTS. 295 
 
 the defendant said sum, implies a contract, a promise to pay, 
 and that the period when the same was promised to be paid liad 
 expired, and constitutes a good indebitatus count in debt.^ An 
 averment of request is not necessary.* The allegation of value, 
 is material.3 But an implied promise to pay is matter of law, 
 and should not be pleaded.-* "Where a demand would be neces- 
 sary if the plaintiff sued for damages for conversion, he must 
 aver a demand where he sues upon the implied contract, waiv- 
 ing the tort, 5 A contract to pay generally, and without time 
 or terms specified, creates a debt payable presently, and no 
 previous call or demand of payment is required, and none need 
 be averred. Bringing the action is a sufficient demand.® On 
 an agreement to pay on request, though no request is necessarj'- 
 if the promisor be the principal debtor, it is necessary if he is 
 a surety.'' 
 
 § 608. Items of Account. — ^In California and many of the 
 other code states, the code contains the following provision: 
 "It is not necessary for a party to set forth in a pleading the 
 items of an account therein alleged, but he must deliver to the 
 adverse party, within five days after demand thereof, in writing, 
 a copy of the account, or be precluded from giving evidence 
 thereof. The court, or a judge thereof, or a county judge, may 
 order a further account where the one delivered is too general, 
 or is defective in any particular. "8 If the account as delivered 
 is not satisfactory, and the other party intends to object to the 
 introduction of evidence on the subject, an order for its exclu- 
 sion should be obtained previous to the trial.* A count for the 
 value of the use and occupation of plaintiff 's land does not pre- 
 vent a claim upon which a bill of particulars can be required.^" 
 
 In an action to recover many items of demand claimed by 
 one and the same right, the items may be, for the sake of brev- 
 ity and convenience, thrown into one count." If the action be 
 
 1 1 Ch. PI. 345; 2 Id. 142; Emery Co. v. Prader, 32 Id. 638; Goodrich 
 
 V Pell, 2 T. K. 28 ; Allen v. Patter- v. James, 1 Wend. 289 ; N. Y., 
 
 son, 7 N. r. 479; see also Hughes v. 1876, sec. 531; Wis. R. S., c. 125, 
 
 Woosley, 15 Mo. 492, as to form of sec. 20; Minn. Code Proc, sec. 92; 
 
 complaint on an account Col. Code Civil Proc., sec. 64 ; Nev. 
 
 » Acorn V. American Mineral Co., Comp. L., sec. 1119; N. C.Code Civil 
 
 11 How Pr. 24. Proc, sec,118 ; S. C. Code Proc, sec. 
 
 SGreKoryV.Wright,llAbb.Pr.417. 181; Florida Code Civil Proc, sec. 
 
 * Farron v. Sherwood, 17 N. T. 227. 108. In other states the copy of the 
 
 6 Spoor V. Newell, 3 Hill, 307. account must be either attached to 
 
 "Lake Ontario etc. R. R. Co. v. or incorporated In the pleading. 
 
 Mason, 16 N. Y. 451. l^f°SS ^■Pa'"^' ^ ^^.a ' ^^^• 
 
 ' Nelson v. Bostwick, 5 Hill, 37. " Moore v. Bates, 46 (^al. 30. 
 
 8 Code C. P., sec 454; Conner v. " Longworthy v. Knapp, 4 Abb. Pr. 
 
 Hutchinson, 17 Oal. 281; P. Tool 115. 
 
296 FORMS OF COMPLAINTS. § 609. 
 
 in fact for an accounting, it may be treated as one cause of 
 action of an equitable nature, and stated accordingly.^ 
 
 § 609. Mutual, Open, and Current Account— Set-ofF.— 
 A " mutual, open, and current account, where there have been 
 reciprocal demands," within the meaning of the statuta of lim- 
 itations, is one consisting of demands upon which each party 
 respectively might maintain an action.* If all the items on 
 one side of the account were intended by the parties as payment 
 or credits on account, it is not a mutual, open, and current account 
 where there are reciprocal demands. ^ So where one party is 
 selling to the other party goods from time to time, and charging 
 the same, and the other gives him the money, which he credits on 
 the account as payment, the credit does not make the account 
 mutual within the statute of limitations, and each item is barred 
 in two years after its delivery.* But where the defendants de- 
 livered to the plaintiffs an article of personal property, for 
 which the latter gave the former credit at a specifled valuation, a 
 mutual account was created.* In Nevada, it was decided that 
 such a credit would not constitute a mutual account consisting 
 of reciprocal demands, but it would create a mutual account if 
 delivered without any understanding that it should be applied 
 as payment.^ Mutual accounts are made up of matters of set- 
 off, where there is an existing debt on the one side and a credit 
 on the other ; or where there is an understanding, express or 
 implied, that mutual debts shall be satisfied or set off pro tanto. 
 A payment made on an account and not intended as a set-off 
 pro tanto, does not make a mutual account. Striking a balance 
 converts the set-off into a payment. And until such balance is 
 struck a mutual account exists.'' ^ 
 
 § 610. Joint Adventure. — A bill for an account is the 
 proper remedy for the settlement of the proceeds of a joint ad- 
 venture, where, in consideration of an outfit and advances made 
 by plaintiff, the defendant agreed to account for and pay over a 
 proportion of the proceeds of his labor and speculation of every 
 kind for a certain period of time, although the parties may not 
 have been technically partners. Nor is it a misjoinder of causes 
 of action to demand in the same action, that defendant account 
 for and refund a proportion of the outfit and advances made by 
 plaintiff as agreed in same contract. ^ 
 
 1 Adams v. Holley, 12 How. Pr. 326. s Norton v. Lareo, 30 Oal. 132. 
 
 » Warren v. Sweeney, 4 Nev. 101. « Warren v. Sweenev, 4 Nev. 101. 
 
 ' Id. 7 Norton v. Larco, 30 Cal. 126. 
 
 * Adams v. Patterson, 35 Cal. 122. ' Garr v. Kedman, 8 CaL 674. 
 
§ 615. ACCOUNTS. 297 
 
 § 611. Partners. — An action of account at law may be 
 brought by one partner against another, ^ in any business.^ 
 
 § 612. Running Accounts. — In suits on running account, 
 the whole should be included in a single action. * Various items 
 of an account, though accrued at different times, maybe united.* 
 
 § 613. When Action Lies.— The action of account lies be- 
 tween merchants between whom there is a privity. ^ Against 
 an attorney for money received from his client.^ By a cestui 
 que trust, against trustee appointed by will for an account.'' 
 By receiver against his deputy. ^ So, by a sheriff against his 
 deputy. 9 Against a receiver appointed to receive rents and 
 debts of another. 1" 
 
 Su£Scienc7 of Common Accounts. — The courts of 
 almost all the states, with the exception of one or two, uphold 
 the suflSciency of the common counts, in actions under the 
 code, in all cases where such forms were sufficient at common 
 law.^ In Minnesota and Oregon the use of the common count 
 in such connection is not permitted. 
 
 § 615. By an Assignee on an Account. 
 
 Form No. 1Z9, 
 [TrrLE.] 
 The plaintiff complains and alleges : 
 I. That on the day of ..., 18..., at the city of 
 
 »Co. Lit 171; 1 Montg. on P. 45; 'Id. 
 
 Duncan v. Lyon, 3 Johns. Ch. 351; »1 Com. Dig. 190; 1 Boll. 116; 6 
 
 Atwater v. Fowler 1 Edw. Ch. 417 ; Mod. 92, 
 
 Ogden T. Aster, 4 Sandf. 313. " Abadie v. Carrillo, 82 Cal. 172; 
 
 »See Lanfair v. Lanfair, 18 Pick. Wilkins v. Stidger, 22 Id. 235; Ma- 
 
 299, everrullng dicta in lIoMurray v. gee v. East, 49 Id. 141 ; .Merritt v. 
 
 Bawson 3 Hill, 59; see, also, Kelly Glidden, 39 Id. 559 ; Pavisichv. Bean, 
 
 V. Kelly, 3 Barb. 419. 48 Id. 364 ; Curran v. Curran, 40 Ind. 
 
 3 Guernsey v. Carver, 8 Wend. 492 ; 473 ; Johnson v. Kilgore, 3S Id. 147 ; 
 
 Bonsey ▼. Wordsworth, 36 Bng. Law Commissioners v. Verbarg, 63 Id. 
 
 & Eq. 283; 18 O. B. 325; Wood v. 107; Bouslog v. Garrett, 39 Id. 338; 
 
 Perry, 3 Exch. 442. Noble v. Burton, Id. 206 ; Gwalt- 
 
 * Dows V. Hotchkiss, 10 N. Y. Leg. ney v. Cannon, 31 Id. 227 ; Raymond 
 Obs. 281 ; Adams v. Holley, 12 How.Pr. v. Hanford, 6 N. Y. S. C. 812 ; Fells 
 326. As to when separate accounts v. Vestvali, 2 Keyes, 152; Ball v. 
 between the same parties are separate Futlon Co., 31 Ark. 379; Jones v. 
 causes of action, and therefore must Mial, 82 N. C. 252 ; Emslie v. Leaven- 
 be separately stated, see Phillips v. worth, 20 Kans. 562; Allen v. Patter- 
 Berick, 16 Johns. 186; Stwrens v. son, 7 N. Y.476; Meagher v. Mor- 
 Lockwood, 18 Wend. 644; Staples v. gan, 3 Kans. 372; Clark v. Fensky, 
 Goodrich, 21 Barb. 317, and long- S Id. 389 ; Carroll v. Paul's Bx'rs, 16 
 worthy v. Knapp, 4 Abb. Pr. 115. Mo. 226 ; Farron v. Sherwood, 17 K 
 
 « 2 Jreenl. Ev. 35 ; 1 Com. Dig., Ac. Y. 227 ; Hoaley v. Black, 28 Id 438 ; 
 
 I irreem. j!,v. ou , e . ^^^^^ ^_ Litchfield, 39 Id. 877 ; Queen 
 
 sBreedin v. Kingland 4 Watts, v. Gilbert, 21 Wis. 395; Grannisv. 
 
 420 • 3 Chit 383 Hooker, 29 Id. 65. 
 
 ' Bredin v. DeVen, 2 Watts, 95. « Foerster v. Kirkpatrick, 2 Minn. 
 
 8 1 Roll 118-120; 1 Com. Dig. 191. 210; Bowen v. Emmerson, 8 Or. 452. 
 
298 FOEMS OF COMPLAINTS. § 616. 
 
 ^ the defendant was indebted to one E. P. in the sum 
 
 of dollars, on an account for money lent by said E. F. 
 
 to said defendant, and for money paid, laid out, and expended 
 by said E. F. to and for use of said defendant, and at his 
 request. 
 
 II. That thereafter said E. F. , assigned said indebtedness to 
 this plaintiff, of which the defendant had due notice. 
 
 III. That the defendant has not paid the same, nor any part 
 
 thereof.^ 
 
 [Demand or Jtjdombnt.] 
 
 § 616. On an Account Stated. 
 
 Form No. ISO. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18...., at , an 
 
 account was stated between the plaintiff and the- defendant, 
 
 and upon such statement a balance of dollars was 
 
 found due to the plaintiff from the defendant. 
 
 II. That the defendant agreed to pay to the plaintiff the said 
 balance of dollars. 
 
 m. That he has not paid the same. 
 
 [Demand of Judgment.] 
 
 § 617. Essential Averments. — Where the parties to an ac- 
 count have examined it, and agreed upon a certain sum of money 
 as the balance justly due thereon from one party to the other, 
 then such account has become an account stated, and an action 
 thereon is not founded upon the original items, but upon the 
 balance ascertained by the accounting.^ The material allega- 
 tions in'such action are : 1. That plaintiff and defendant came 
 to an accounting together; 2. On such accounting defendant 
 was found indebted to the plaintiff in a specified sum; 3, 
 Which defendant promised to pay ; 4. And has not paid. What 
 constitutes an account stated is a question of law.* An aver- 
 ment that one party made a statement of an account and de- 
 livered it to the other, who made no objection to it, is not an 
 averment that an account was stated between them. At most, 
 these are matters of evidence, tending to show, but not conclu- 
 sively, an account stated.* Where, after the death of one part- 
 ner, an account is stated between defendant and the copartner- 
 ship, admitting a balance due by him for goods sold in the 
 
 ' As to actions by an assignee, see * Lockwood v. Thome, 11 K Y. 
 
 ante. 170; Graham v. Camman, 13 How. 
 
 2 Benites v. Bicknell, 2 West Coast Pr. 361. 
 
 Kep. 359; Orr v. Hopkins, 1 Id. 157. ' Emery v. Pease, 20 N, Y. 62. 
 
§ 618. ACCOUNTS. 299 
 
 life-time of the fleceased, the surviving partner may recover 
 without averring the death of the other partner, and the surviv- 
 orship.^ 
 
 A complaint stating that whereas said defendant was justly 
 indebted to plaintiffs in the sum of three thousand dollars, for 
 money paid, laid out, and expended for the use and benefit of 
 said defendant, and at his special instance and request, to wit, 
 at, etc. , and. on the first day of April, 1857, and in the sum of 
 three thousand dollars, for money found to be due from the de- 
 fendant to plaintiffs on an account then stated between them ; 
 and the said defendant being so indebted to the plaintiffs, after- 
 wards, to wit, on the day and year aforesaid, at the place afore- 
 said, undertook, and faithfully promised the plaintiffs, to pay 
 the same, etc., and that said sum is due and unpaid, sufficiently 
 states a cause or action.^ A cornplaint, although it refers to an 
 account, should indicate the nature and character of the claim, 
 and the period within which it arose.' 
 
 § 618. Account, how Stated, and Effect of. — The mere 
 rendering of an account does not make a stated one. Yet if it 
 is received, its correctness admitted, balance claimed, or offer 
 made to pay, it becomes a stated account.* An iaccount in writ- 
 ing, showing a balance, or that there is none, does not require a 
 signature to make it a stated account.^ And it is not affected 
 by its balance being introduced into a subsequent account. The 
 complaint must show a demand in favor of the plaintiff acceded 
 to by the defendant.^ Where a party receives an account, and 
 keeps it for a reasonable time without objecting to it, he will be 
 considered as acquiescing in it, and it will have the force of an 
 account stated.'' But where a merchant sends an account current 
 to another residing in a different country, and he keeps it 
 through two years without making an objection, it becomes an 
 account stated.^ Long acquiescence makes an account an ac- 
 count stated. 9 The statement of an account is not conclusive, but 
 throws upon the party claiming error the burden of proving 
 it.i" But if there have been mutual compromises, it will operate 
 as an estoppel in pais.^^ Where accounts bear upon their face 
 "audited and approved," and "certified to be correct," they 
 
 1 Homea v. DeCamp, 1 Johns. 34. ' 1 Story Eq. .Jur., sec. 526 ; Scbet- 
 
 2 DeWltt V. Porter, 13 Cal. 171. tier v. Smith, 34 N. T. (2 J. & Sp.) 
 8 Farcy v. Lee, 10 Abb. Pr. 143. 17 ; Stenton v. Jerome, 54 N. Y. 480. 
 * Toland v. Sprague, 12 Pet. 300. ^ Massachusetts Life Ins. Co. v. 
 
 5 Baker v. Biddle, Baldw. 394. Carpenter, 49 N. Y. 668. „_ _ ^ 
 
 6 Terry v. Sickles, 13 Cal. 427. " Kook v. Bomtz, 4 Daly (JN. Y.), 
 ' Towsley V. Denison, 45Barb.490. 117. 
 
 8 Preeland v. Heron, 7 Cranoh, 147. 
 
300 FORMS OF COMPLAINTS. § 619. 
 
 become instruments of writing within the meaning of the statute, 
 and are not barred by that portion of the statute of limitations 
 applying to accounts.^ An account between merchant and mer- 
 chant, closed by cessation of mutual dealings, does not therefore 
 become an account stated.^ An account stated alters the nature 
 of the original indebtedness, and has the effect of a new promise.^ 
 The rule in matters of account is applicable to a private corporate 
 body, engaged in trade, and conducting its affairs by ofllcers and 
 agents.* 
 
 § 619. The Same — "Errors Excepted." — An account in 
 writing, examined and signed, will be deemed a stated account, 
 notwithstanding it contains the phrase "errors excepted.''^ 
 Accounts stated may be opened, and the whole account taken de 
 novo, for gross mistake in some cases; but only when the 
 error affects all the items of the transaction. And when a 
 party goes into particulars he is confined to those items im- 
 properly charged, and the remainder of the account must 
 stand. ^ 
 
 § 620. Opening an Account Stated. — When an account 
 is settled by the parties themselves, their adjustment is final 
 and conclusive,* even as to the guarantor.^ It is not at all im- 
 portant that the account be made out by one party against the 
 other. When a consignor rendered an account to the consignee, 
 it was a stated account from the time the consignor demanded 
 payment of the balance.^" So where the agent presented the 
 account. '1 The practice of opening accounts stated is not en- 
 couraged, and should only be done on clear proof of error or 
 mistake.!'^ But fraud is a suflSlcient ground to open an account 
 stated. 1^ The effect of surcharging and falsifying an account is 
 to leave it an account stated, except so far as it can be impugned." 
 An account can not be reopened by one of the parties without 
 proof of the items, and that some one or more of them ought 
 
 1 Sanniokson v. Brown, 5 Cal. 57. ' Hager v. Thomson, 1 Black. 80. 
 
 2 Mandeville v. Wilson, 5 Crauch, ' Bullock v. Boyd, 2Bdw. Ch. 298; 
 15. w Toland V. Sprague, 12 Pet. 300. 
 
 3 Carey v. P. & C. Petroleum Co., " Willis v. Pernegan, 2 Atk. 251 ; 
 33 Cal. 694; Holmes v. De Camp, 1 Denton v. Shellard, 2 Ves. sen. 239; 
 Johns. 34; Allen v. Stevens, 1 N. y. Murray v. Toland, 3 Johns. Ch. 669; 
 Leg. Obs. 359. 12 Wilde v. Jenkins, 4 Paige Oh. 
 
 4 Bradley v. Richardson, 2 Blatchf. 481 ; Lockwood v. Thorne, lllCY.170. 
 343. 13 2 Dana's Ch. Pr. 764. 
 
 5 Branner v. Chevalier, 9 Cal. 353 ; n Pit v. Cholmondeley, 2 Ves. sen. 
 Troup V. Haight, Hopk. 272. 565; Perkins v. Hart, 11 Wheat, 287; 
 
 « Brangerv. Chevalier, 9 Cal. 353; Story'sEq, PI., sec. 801; 1 Story'sBq. 
 
 Hagar v. Thomson, 1 Black. 80. Jur., sec. 523 ; Bruen v. Hone, 2 Barb. 
 
 ' Brangerv. Chevalier, 9 Cal. 353; 586; Bullock v. Boyd, 2 Edw. Ch. 
 
 Perkins v. Hart, 11 Wheat. 237. 293 ; Phillips v. Belden, 2 Id. 1. 
 
§ 623. ACCOUNTS. 301 
 
 not to have been allowed.^ If the complaint is verified, and 
 the answer does not charge fraud or mistake, evidence of over- 
 charge is not admissible.^ 
 
 This rule is founded upon the idea that when an account be- 
 tween parties is stated, with debit and credit sides, and the 
 matter in controversy is stated therein, the presumption of law 
 is that the account is correct, unless it is shown that fraud, 
 omission, or mistake exists. ^ An account against the state, 
 certified by the auditor, is conclusive on him only as to the cor- 
 rectness of the statements herein contained.* 
 
 § 621. Erasure. — An erasure in a settled account, not shown 
 to have been made before its settlement, is sufficient to avoid it.^ 
 The presumption is that the alteration was made after execution. ^ 
 
 § 622. For a General Balance of Account. 
 
 Form No. 131. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That the defendant is indebted to the plaintiff in the sum 
 
 of dollars, for the balance of an account for groceries 
 
 sold and delivered by the plaintiff to defendant, and for services 
 performed by the plaintiff for the defendant as an accountant, 
 and for commissions of plaintiff on the sale for defendant of 
 various articles of farm produce, and for moneys paid by 
 plaintiff for defendant's use ; the whole furnished, done, and 
 
 performed at the request of the defendant, between the 
 
 day of J 18..., and the day of , 18...; 
 
 that the whole amount and aggregate value of which items is 
 
 dollars, no part of which has been paid, except the 
 
 sum of dollars, the balance of account first aforesaid 
 
 still being unpaid. 
 
 II. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand of Judgment.] 
 
 § 623. Upon an Account for Services. 
 
 Form No. ISS. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That between the day of , 18..., and the 
 
 day of , 18..., at the city of , the 
 
 plaintiff performed work, labor, and services [state the services] 
 for the defendant at his request. 
 
 ' Sntphen v. Cushman, 35 111. 188. ' Prevost v. Gratz, Pet. 364. 
 
 * Phillips V. Belden, 2 Edw. 1. ' Id. ; but compare Malarin v. 
 
 * CarroU v. Paul, 16 Mo. 226. United States, 1 Wall. U. S. 282. 
 
 * State V. Hinkson, 7 Mo. 353. 
 
302 FORMS OF COMPLAINTS. § 624. 
 
 II. That the same were reasong,bly worth the sum of 
 
 dollars. 
 
 III. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand ot' JuBaMBNT.] 
 
 § 624. The Same — Another Form — Common Count. 
 
 Form No. ISS. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That the defendant is indebted to the plaintiff in the sum 
 
 of dollars on an account for the work, labor, and services 
 
 in [state the service] performed at the request of the defendant 
 
 at , between the day of , 18..., 
 
 and day of , 18... 
 
 n. That he has not paid the same, nor any part thereof. "■ 
 [Demand of Judgment.] 
 
 § 625'. Services. — A (complaint) on an account for services 
 rendered a third person charging an original liability is suffi- 
 cient.^ 
 
 § 626. Time. — In order to be suflSciently definite and cer- 
 tain, the complaint should show the nature and character of the 
 claim, and the period within which it arose. <* 
 
 § 627. The Same— By an Architect. 
 
 Form No. 134. 
 [Title.] 
 
 The plaintiff complains, and alleges ; 
 
 I. That between the day of , 18..., and the 
 
 clay of , 18..., at , the plaintiff 
 
 performed work, labor, and services for the defendant, and at 
 his request, as architect, in forming and drawing plans, and 
 making estimates for, and superintending the erection of a row 
 
 of buildings to be known as Cottage Row, in street, in the 
 
 city and county of San Francisco. 
 
 II. That the said services were reasonably worth the sum of 
 dollars. 
 
 III. That the defendant has not paid the same, nor any part 
 'thereof. 
 
 [Demand of Judgment.] 
 § 628. The Same — Another Form — Common Count. 
 
 Form No. 1S5. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That the defendant is indebted to the plaintiff in the sum 
 
 1 This form is sustained by Moffet 2 Wing v. Campbell, 15 Mo. 275. 
 v. Sackett, 18 N. Y. 522. a Farcy v. Lee, 10 Abb. Pr. 148. 
 
§ 631. ACCOUNTS. 303 
 
 of dollars, on account for work, labor, and services 
 
 as architect, in forming and drawing plans, and making esti- 
 mates for, and superintending the erection of a row of buildings 
 
 to be known as Cottage Row, in street, in the city and 
 
 county of San Francisco, performed at the request of the de- 
 fendant between the day of , 18..., and the 
 
 day of , 18.... 
 
 II. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand of Judgment.] 
 
 § 629. The Same, by a Broker for Commissions. 
 
 Form No. 1S8. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That between the day of , 18..., and 
 
 the day of , 18..., the plaintiff performed 
 
 services for the defendant at his request, as broker, at the city 
 and county of San Francisco, in the purchase [and sale] of 
 [government bonds, state stock, negotiable securities, real es- 
 tate, personal property, or otherwise] . 
 
 II. That such services were reasonably worth the sum of 
 dollars. 
 
 III. That the defendant has not paid the same nor any part 
 
 thereof. 
 
 [Demand op Judgment.] 
 
 § 630. The Same— Another Form— Common Count. 
 
 Form No. 1S7. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That the defendant is indebted to the plaintiff in the sum 
 
 of dollars, on an account for services as broker in the 
 
 purchase [and sale] of [government bonds, state stock, nego- 
 tiable securities, real estate, personal property, or otkerwise], 
 performed at the request of the defendant, at the city and 
 
 county of San Francisco, between the day of , 
 
 18..., and the day of , 18.... 
 
 II. That the defendant has not paid the same nor any part 
 
 thereof. 
 
 [Demand op Judgment.] 
 
 § 631. By Carrier, Against Consignor, for Freight. 
 
 Form No. 138. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That between the day of , lo ■•, and the 
 
 (Jay of , 18..", the plaintiff performed work, 
 
304 FORMS OF COMPLAINTS. § 632. 
 
 labor, and services for the defendant, at his request, in carrying 
 
 in their vessel, the , sundry goods and merchandise 
 
 from to 
 
 II. That such services were reasonably worth the sum of 
 dollars. ^ 
 
 III. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand of Jttdsmbnt.] 
 
 § 632. The Same— Another Form — Common Count. 
 
 Form No. 139. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges: 
 
 I. That the defendant is indebted to the plaintiff to the 
 
 amount of dollars, on an account for work, labor, and 
 
 services, in carrying in their vessel, the , sundry goods 
 
 and merchandise, from to , at the request of 
 
 the defendant, between the day of , 18..., 
 
 and the day of ..... ......... , 18... 
 
 II. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand of Judgment.] 
 
 § 633. The Same — Against Consignee. 
 
 Form No. l/fi. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That between the day of ,18..., and the 
 
 day of , 18..., the plaintiff performed work, labor, and 
 
 services in carrying in their vessel, the , sundry goods 
 
 and merchandise, from to , which were 
 
 consigned to the defendant and delivered by plaintiff at ^ , 
 
 to the defendant, and by him accepted. 
 
 II. That such services were reasonably worth the sum of 
 dollars. 
 
 III. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand of Judgment.] 
 
 § 634. The Same — Another Form — Common Count. 
 
 Form No. HI. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That the defendant is indebted to the plaintiff to the 
 
 amount of dollars, on account for work, labor, and 
 
 services, in carrying in their vessel, the , sundry goods 
 
 and merchandise, from to , which were con- 
 signed to the defendant and delivered by plaintiff at 
 
§ 639. ACCOUNTS. 305 
 
 to the defendant, and by him accepted, between the day of 
 
 , 18..., and the day of , 18 
 
 II. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand op Judgment.] 
 
 § 635. Interest. — Freight doea not bear interest till after 
 demand.^ 
 
 § 636. By Editor for Services. 
 
 Form No. 14S. 
 
 [TlTLK.] 
 
 The plaintiff complains, and alleges : 
 
 I. That between the day of , 18 , and the 
 
 day of , 18 , at the city and county of San Francisco, 
 
 the plaintiff performed services for the defendant, at his request, 
 as an editor, in conducting the newspaper of the defendant 
 
 knownas"The ," and in writing and preparing articles 
 
 and paragraphs for the same. 
 
 II. That such services were reasonably worth the sum of 
 dollars. 
 
 III. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand of Jotjombnt.] 
 
 § 637. The Same — Another Form— Common Count. 
 
 Form No. 14S. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That the defendant is indebted to "the plaintiff in the sum 
 
 of dollars, on an account for services as an editor in 
 
 conducting the newspaper of the defendant Imown as "The 
 
 ," and in writing and preparing articles and paragraphs 
 
 for the same, performed at the request of the defendant, at the 
 
 city and county of San Francisco, between the day of 
 
 , 18 , and the day of , 18 
 
 II. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand ot Judgment.] 
 
 § 638. Contributor's Services. — The furnishing of articles 
 for publication, at the request of the publisher, is not of itself 
 a service for which a promise to pay will be implied. See au- 
 thorities under the next form. 
 
 § 639. By Author for Editing and Compiling Book. 
 
 Form No. 144- 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 1 ScUureman v. Withers, Anth. N. P. 230. 
 EsTEB, Vol. 1—20. 
 
306 FORMS OP COMPLAINTS. § 640. 
 
 I. That between the day of , 18..., and the 
 
 day of , 18 .., at the city and county of San Francisco, 
 
 the plaintiff performed work, labor, and services for the defend- 
 ant, at his request, in compiling and writing a certain book, 
 
 entitled "The ," and in preparing the same for the 
 
 press, and revising and correcting the proofs for the same. 
 
 II. That such services were reasonably worth the sum of 
 dollars. 
 
 III. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Dbmand of Judgment.] 
 
 § 640. The Same — Another Form — Common Count. 
 
 Fm-m No. 145 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That the defendant is indebted to the plaintiff in the sum 
 
 of dollars, on an account for work, labor, and services, 
 
 ill compiling and editing a certain book, entitled " The ," 
 
 and in preparing the same for the press, and revising and cor- 
 recting the proofs of the same, performed at the request of the 
 defendant, at the city and county of San Francisco, between 
 
 the day of , 18..., and the day of , 
 
 18... 
 
 II. That the defendant has not paid the same, nor any part 
 thereof. 
 
 [Demaio) or Judgment.] 
 
 § 641. Author's Services. — A stronger case is required to 
 raise an implied promise on the part of the publisher to pay 
 for the services of the author than in the case of other services.^ 
 We can not, however, see any reason why a stronger case is 
 required to raise an implied promise to pay on the part of pub- 
 lishers, for services rendered them, than for any other class of 
 persons. 
 
 § 642. For Services and Materials Furnished. 
 
 Form No. I46. 
 [Title ] 
 
 The plaintiff complains, and alleges: 
 
 I. That between the day of , 18..., and the 
 
 day of , 18..., at the city and county of San 
 
 1 See, as to the rights of the author This case was never decided. Beck- 
 without copyright, in Donaldson v. ford v. Hood, 7 T. R. 620- and see 
 
 lihuk. 306; Yates arguendo Id. 333. Pet. 591 ; S. C, 11 Curtis'' Decis. 223. 
 
§ 64b. A.CCOUNTS. 307 
 
 Francisco, the plaintiff performed work, labor, and services for 
 the defendant, at his request, in [insert nature of work], and 
 furnished materials to the defendant in and about the said work, 
 on the li'-ce request. 
 
 II. That such services and materials were reasonably worth 
 the sum of dollars. 
 
 III. That the defendant has not paid the same, nor any part 
 thereof. 
 
 [Dbmand oj Judgment.] 
 
 § 643. The Same— Another Form— Common Count. 
 
 F^rm No. 147. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That the defendant is indebted to the plaintiff in the sum 
 of dollars, on an account for work, labor, and serv- 
 ices of the plaintiff, performed at the request of the defendant, 
 in [insert nature of work] , and for materials furnished by the 
 plaintiff in and about the said work, on the like request, between 
 
 the day of , 18..., and the day of , 
 
 18..., at the city and county of San Francisco. 
 
 II. That he has not paid the same, nor any part thereof. 
 
 [Demand of Judgment.] 
 
 § 644. For Tuition Bills. 
 
 Form No. 148. 
 [Title.] 
 
 The plaintiff complains, and alleges; 
 
 I. That between the day of , 18..., and the 
 
 day ef , 18..., at the city and county of San 
 
 Francisco, the plaintiff, at the request of the defendant, per- 
 formed work, labor, and services in instructing his children in 
 various branches of learning, and furnished them with books, 
 papers, and other things necessary in and about said work, at 
 the like request, and provided them with board, lodging, and 
 other necessaries. 
 
 II. That such services and materials furnished were reason- 
 ably worth the sum of dollars. 
 
 ni. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Dbmaot) ot Judgment.] 
 
 § 645. The Same— Another Form— Common Count. 
 
 Form No. U9. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That the defendant is indebted to the plaintiff in the sum 
 of doUars, on an account for the wovk, labor, and 
 
308 POEMS OF COMPLAINTS. §' 646. 
 
 services performed at the request of the defendant, in instruct- 
 ing his children in various useful branches of learning, and for 
 books, papers, and other necessary things furnished by this 
 plaintiff in and about said work, at the like request, and for 
 the board, lodging and other necessaries for said children, pro- 
 vided by the plaintiff during said time, at the like request, be- 
 tween the day of , 18..., and the day of 
 
 , 18..., in the sum of dollars. 
 
 II. That the defendant has not paid the same, nor any part 
 thereof [except, etc.] . 
 
 [Demand of Judgment.] 
 
 CHAPTER II. 
 ON AWAKDS. 
 § 646. On An Award of Arbitrators — Common Form. 
 
 Form No. 150. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 disputes and differences existed between the plaintiff and de- 
 fendant concerning [a demand of the plaintiff for labor and 
 service rendered by him for the defendant at his request] , and 
 thereupon, on the day last aforesaid, the plaintiff and defendant 
 agreed, in writing, to submit the same to the award of A. B. as 
 an arbitrator between them, a copy of which said agreement 
 and submission is hereunto annexed, marked " Exhibit A," and 
 made part hereof. 
 
 II. That thereafter the said A. B. duly qualified as such arbi- 
 trator, and heard the plaintiff and the defendant touching their 
 
 said matters of dispute, and thereafter, on the day of 
 
 , 18..., at , duly made and published his award, 
 
 in writing, of and concerning the matters so referred, and 
 thereby said arbitrator awarded and declared, that after due 
 appearance before him on behalf of this . plaintiff and said de- 
 fendant, he found that the said defendant was justly indebted 
 
 to this plaintiff in the sum of dollars, for services 
 
 aforesaid [or otherwise, according to the fact] ; a copy of wliich 
 said award is hereto attached, marked "Exhibit B," and made 
 part hereof. 
 
 III. That the plaintiff duly performed all the conditions of 
 said award on his part, and afterwards, and on or about the 
 
§ 648, .AWARDS. 309 
 
 day of , 18...., at , gave notice of said 
 
 award to the defendant, and demanded of him payment of the 
 
 said sum of dollars, so awarded to the plaintiff as 
 
 aforesaid. 
 
 IV. That the defendant has not paid the same, nor any part 
 thereof, and there is now due from the defendant to the plain- 
 tiff, thereon the sum of dollars, with interest from the 
 
 day of , 18... 
 
 [Demand of Jtjdqment.J 
 
 § 647. Essential Allegations. — A .complaint on an award 
 must show that the arbitrators conformed to the submission, 
 and the powers of the arbitrators. ^ It was the rule at common 
 law, that the plaintiff need not show the award on both sides, 
 and if -there be a condition precedent it need not be- alleged.^ 
 But under the code, performance of the conditions of an award 
 must be pleaded, as well as in the case of a contract. ^ But if 
 the arbitrators award that one of the parties shall pay to the 
 other a certain sum, and also that the parties shall execute to 
 each other mutual releases of all actions, etc., the tender of a 
 release as provided by the award is not a condition precedent 
 to the right to try an action to recover the money.* The award 
 of money is absolute and unconditional, but the award of release 
 is different ; they are concurrent acts, and neither party can 
 compel the other to execute a release without the tender of a 
 release by him.^ But where matters awarded to be done are in^ 
 dependent, tender or demand before suit need not be averred. ^ 
 
 Where the award was required to be delivered to the parties, 
 an allegation that it was ready to be and was delivered to the 
 plaintiff, is not sufHcient.'' Notice of the award and demand need 
 not be alleged, unless required by the terms of the submission. ^ 
 This is not, however, the law in California. There notice must 
 be served on the opposite party before jndgment is entered.^ 
 
 § 648. Torm of Submission— When must be in Writ- 
 ing. — ^In California, under section 1282 of the code of proce- 
 dure,' the submission must be in writing. It may be stipulated 
 in the submission that it be entered as an order of the superior 
 
 iGearv. Brocken, Burn. (Wis.)88; "Nichols v. Eensselaer Co., 22 
 
 Matthews v. Matthews, 2 Curt. C. Wend. 125. 
 
 Ct_ 105. ' Pratt v. Haokett, 6 Johns. 14. 
 
 2 Mckinstry V. Solomons, 2 Johns. sHodsdenv. Horridge, 2 Saund. 
 
 57; Diblee V. Best, Hid. 103. 62; Eowe v. Young, 2 Brod. & B. 
 
 'Colev. Blunt. 2Bosw. 116. 233. „ ., „ 
 
 < Dudley v. Thomas, 28 Cal. 365. » See Code of Civil Procedure, sec. 
 
 6 Dudley v. Thomas, 23 Cal. 365; 1286. 
 Cole V. Blunt,2 Bosw. 116. 
 
310 FORMS OF COMPa^AlNTS.. § 649. 
 
 court. When so entered it can not be revoked without the 
 consent of both parties, and the award may be enforced in the 
 same manner as a judgment. If the submission is not made an 
 order of court, it may be revoked at any time before the award 
 is made.i The clerk must be authorized by the stipulation to 
 malse a note in his register, and he must in fact make it there ; 
 the mere authority without the act done is no more than the 
 act done without the authority would be. Both these must 
 concur, and in the absence of either there is no jurisdiction.^ 
 A stipulation that judgment in the district court of, etc., may 
 be rendered upon the award made in pursuance of the submis- 
 sion without a stipulation that the submission shall be entered 
 as a rule of the court, is not sufficient.^ If the submission is 
 not made a rule of court, an action may be maintained upon 
 the award, as in the case of common-law arbitration. If the 
 submission is not made a rule of court, it may be revoked by 
 either party at any time before the award is made ; but the 
 party revoking is liable to an action for the costs and damages 
 of the other party in preparing for and attending the arbitra- 
 tion.* In New York an action may be maintained upon the 
 award. 5 But a verbal award will not be valid, unless a verbal 
 submission, of the matters on which the award is made would 
 be binding upon the parties.^ If a submission is attempted tp 
 be made under the provisions of the statute, and the same is' 
 inoperative for failure to comply therewith, it is not valid as a 
 common-law submission.^ But a stipulation that neither party 
 shall appeal from an award is not binding.^ 
 
 § 649. Who may Make Submission. — Any person capa- 
 ble of contracting may submit to arbitration any contrbversy, 
 except a question of title to real property, in fee, or for life.^ 
 This statute is but an affirmance of the common law, and under 
 it the parties have no higher rights than they might have 
 asserted in a court of equity, in cases of fraud, accident, or 
 mistake. 1" As the submission to arbitration is a contract, the 
 party making the submission must have the power to contract 
 with reference to the subject-matter in dispute. In general an 
 agent has no authority to submit to arbitration unless expressly 
 
 1 See Code 0. P., sec. 1283. ' French v. New, 28 N. Y. 147 
 
 2 Pieratt v. Kennedy, 43 Cal. 395 ; ' Inhabitants of Deerfleld v! Arms. 
 Kyan v. Dougherty, 30 Id. 218. 20 Pick. 480. 
 
 SFairchild v. Doten, 42 Cal. 128. « ,\iuldrow v. Norris, 2 Cal 74 
 
 * Code C. P., sec. 1290. » Cal. Code, sec. 1281, 
 
 scope V. Gilbert, 4 D<inio, 847; i" .Muldrow v. Norris, 2 Cal. 74- re- 
 
 Deidrick V. Richley, 2 Hill, 271; affirmed in Peachy v. Ritchie, 4 Cal. 
 
 Hays V. Hays, 23 Wend. 363. 205. 
 
§ 652. AWARDS. 311 
 
 or impliedly empowered by his principal.^ But an agent author- 
 ized to prosecute a suit, has authority to submit to a reference, 
 under a rule of court.^ And it is the practice throughout the 
 Union for suits to be referred by consent of counsel, without 
 special authority.^ If, however, an unauthorized submission is 
 ratified by the principal, he is bound thereby.* 
 
 § 650. The Same— Partners— Parties Jointly Inter- 
 ested. — ^The great weight of authority is in support of the 
 doctrine that the right to submit a partnership controversy to 
 arbitration is not included within the ordinary course of part- 
 nership business, and consequently t'lat one partner, unless 
 expressly authorized, has no such power, so as to bind his co- 
 partner.5 The partner who makes the submission is himself 
 bound by it.^ Persons jointly interested can not in general 
 bind each other by & submission to arbitration without express 
 authority.^ 
 
 § 651. Election of Remedy. — Where the submission is by 
 bond, the plaintiff has his election to sue on the bond or on the 
 award, if it is merely for the payment of money ; but if a col- 
 lateral thing is awarded, the suit must on the bond, as debt will 
 lie for money only.^ Where a sum of money is awarded, it is 
 sufficient to set forth only so much of the award as to show a 
 good cause of action.* It seems that a clause in a contract pro- 
 viding that in case any dispute should arise in regard to the same 
 it should be settled by arbitrators, is no bar to an action upon the 
 contract.^" 
 
 § 652. Judgment upon Award. — Judgment may be en- 
 tered on an award without an order of the court." But the 
 award shall be in writing, signed by the arbitrators, or a major- 
 
 1 Trout V. Emmons, 29 Dl. 433. Bankart, 1 Comp. M. & R. 681 ; Kart- 
 
 ' Buckland V.Conway, 16 Mass. 396. haus v. Ferrer, 1 Pet. 222; Buehoz v. 
 
 ? Holker v. Parker, 7 Oranch, 436 ; Grandjean, 1 Mich. 367 ; Backus v. 
 
 Alexandria Canal Co. v. Swann, 5 Coyne, 35 Id. 5 ; Harrington v. Hig- 
 
 How (U. S.)83; and see Greene v. ham, 13 Barb. 660; Onion v. Robinson, 
 
 Darling, 5 Mason, 201. 15 Vt. 510; Martin v. Thrasher, 40 Id. 
 
 •Isaacs V. Beth Hamedash Soc, 1 460. ,„,„,, „ 
 
 Hilt 469 ; Detroit v. Jackson, 1 Doug. « Jones v. Bailey, 5 Cal. 345 ; Kar- 
 
 (Mich.) 106 ; Memphis etc. R. R. Co. thaus v. Ferrer, 1 Pet. 222 ; Wood v. 
 
 V. Scruggs, 50 Miss. 284; Furber v. Shepherd, 2 Patt. & H. (Va.) 442. 
 
 Chamberlain, 29 N. H. 405 ; Perry v. ' Eastman v. Burleigh 2 N. H. 48o ; 
 
 Mulligan, 58 Ga. 479; Lowensiein v. Smith v. Smith, 4 Rand. 95; Boyd s 
 
 Mcintosh, 37 Barb. 251; Smith v. Heirs v. McGruder's Heirs 2 Rob. 
 
 Sweeney, 35 N. Y. 291. (Va.) 761. See this subject discussed 
 
 5 Jones V. Bailev, 5 Cal. 345; Bu- at length m note toHutchins v. John- 
 
 chanan v. Curry, 19 .Johns. 137; East- son, 30 Am. Dec 626. 
 
 man v. Burleigh 2 N. H. 384 ; South- » Hodsden v. Harridge, 2 Saund. 62. 
 
 ard V. Steele, 3 T. B. Mon. 435; 1 Ld. Raym. 115. 
 
 Steiglitz V. Bgginton. Holt, 141; Binsee v. Paige, 38 N. Y. 87 
 
 Stead V. Salt, 3 Bing. 101 ; Adams v. " Carsley v. Lindsay, 14 Cul. 390. 
 
312 FORMS OP COMPLAINTS. § 653. 
 
 ity.of them, and be delivered to the parties. ^ The court will not 
 disturb the award unless the error complained of, whether of law 
 or of fact, appear upon the face of the award.* If a judgment 
 on an award of arbitrators is entered by the clerk, at the request 
 of the party in whose favor it is rendered, within less than five 
 days after the award is filed, and without notice to the other party, 
 the prevailing party can -not afterwards question its validity on 
 the ground that it was irregularly entered. ^ 
 
 § 653. Jurisdiction. — Where the court has no jurisdiction 
 of a subject-matter, the arbitrators can have none.* And the 
 award being void, the release of the action by one of the parties 
 is also void, if filed in pursuance of the submission.^ A court of 
 equity may decree specific performance of an award.^ This does 
 not apply to real estate, as no arbitration or award can be made 
 affecting the title to real property in California.'' Where a party 
 receives the amount of a judgment under an award, it is a waiver 
 on his part of all errors and misconduct on the part of the arbitra- 
 tors.^ But a submission to arbitration of title to real estate, be- 
 ing prohibited by statute, is not merely voidable, but is void and 
 incapable of ratification.^ But, where, under an agreement in 
 writing, parties submit matters of difference relative to the parti- 
 tion of lands to the award of arbitrators, and an award is made 
 thereunder, a specific performance of the award will be de- 
 creed.i" So in New York as to disputed boundaries,!^ and in 
 Ohio.i2 
 
 § 654. Where there are three arbitrators all shall meet, but 
 two of them may do any act which might be done by all,i3 The 
 arbitrator must make his award within the time limited in the 
 agreement. 1^ An allegation that an award was made, imports 
 that it was ready to be delivered.^s They may select an umpire 
 either before or after investigation, and may award costs. ^^ 
 But after an award has been once made and delivered, they can 
 not amend the same without consent of the parties. i' They 
 shall be sworn, and a majority may determine any question.^* 
 
 ' California Code, sec. 1286. ^ Whitney v. Stone, 23 Cal. 275. 
 
 » Tyson v. Wells, 2 Cal. 122 ; over- " Stout v. Woodward, 5 Hun, 340. 
 
 ruled as to the report of a referee, in '2 Hunt v. Guilford, 4 Ohio, 810. 
 
 Cappe V. Brizzolara, 19 Id. 607. " California Code, sec. 1285 ; Glass 
 
 » Hoogs V. Morse, 31 Cal. 128. Pendery Min. Co. v. Mever Min. Co., 
 
 * Williams v. Walton, 9 Cal. 142. 1 West Coast Hep. 290. 
 
 » Muldrow V. Norris, 12 ChI. 831. » Ryan v. Dougherty, 30 Cal. 218. 
 
 * Whitney v. Stone, 23 Cal. 275. >» Munroe v. Allaire, 2 Cai. 820. 
 
 ' Spencerv.Winselman,42 Ciil.479. i« Dudley v. Thomas, 23 Cal. 865. 
 
 8 Hoogs V. Morse, 31 Cal. 128. J' Dudley v. Thojnas, 28 Cal. 805. 
 
 ' Wiles V. Peck, 26 N. Y. 42. '8 Caliloruia Code, see. 1285. 
 
§ 658. AWABDS. 313 
 
 Arbitrators have no common-law powers when appointed in the 
 mode provided by statute. ^ 
 
 § 655. Publication.— The arbitrator cannot " award " with- 
 out "publishing" his award, and " publishing " is a technical 
 phrase, merely implying that the arbitrator has finaUy disposed 
 of the case.2 And when published, any alteration whatever, 
 without consent of the parties, will vitiate it.^ Notice of the 
 award need not be averred, unless required by the terms of the 
 submission.* No demand need be alleged unless expressly re- 
 quired.^ 
 
 § 656. Revocation. — An agreement to submit a matter to 
 common-law arbitration is, both at law and in equity, revocable 
 before the award is given, ^ and it cannot be made irrevocable 
 by any agreement of the parties.'' Otherwise, it seems, of a 
 submission by rule of court.s After the arbitrators have been 
 sworn, neither of the parties has the right to revoke the sub- 
 mission. ^ 
 
 § 657. Submission. — To constitute a submission to arbitra- 
 tion under the statute, so as to give the award the effect of a 
 judgment, the statute must be pursued in the manner in which 
 the submission is filed with the clerk j^" and the clerk may enter 
 judgment on the award in due time, without any order of the 
 court. 1^ And by the statutes of California, the submission to 
 arbitration shall be in writing, and may be to one or more per- 
 sons. ^^ 
 
 § 658. Vacation of Award. — The court may, on motion, 
 vacate an award : 1. Where it was procured by fraud or corrup- 
 tion ; 2. Where the arbitrators were guilty of misconduct ; 3. 
 Where the arbitrators exceeded their powers. ^^ Or it may mod- 
 ify or correct an award : 1. Where there is a miscalculation in 
 figures ; 2. When part of the award is on matters not submit- 
 ted ; 3. When, if it had been the verdict of a jury, it could 
 have been amended, or the imperfection disregarded. ^^ As, 
 
 1 Williams V. Walton, 9 Cal. 145. ' CommissionersMontgomery Co. v. 
 
 2 Brooke v. Mitchell, 6 M. & W. Caaey, I Ohio St. 463 ; Pellock v. 
 473. Hall, 4 Call. 222 ; Haskell v. Whitney, 
 
 3 Porter v. Scott, 7 Cal. 312. 12 Mass. 47. 
 
 * Hodsden v. Harridge, 2 3aund, 62 ; ^^ Heslep v. San Francisco, 4 Cal. 
 
 6 M. & W. 474. 1 ; Carsley v. Lindsay, 14 Id. 390. 
 
 5 Kowe V. Toung, 2 Brod. & B. 233. " See also Eyan v. Dougherty, 30 
 
 6 8 Co. R. 81; Milne v. Gratrix, 7 Cal. 218. 
 
 East, 607 ; Clapp v. Highum, 1 Bing. '^ Cal. Code Civil Proc, sec. 1282. 
 
 89; King V. Joseph, 6 Taunt. 452. '= Cal. Code Civil Proc, sec. 1287; 
 
 ' Tohey v. The County of Bristol, Morris etc. Co. v. Salt Co., 58 N. Y. 
 
 3 StoryC. Ot. 800. 667. 
 
 8 Masterson v. Kidwell, 2 Cranch '* Cal. Code Civil Proc, sec. 1288. 
 C.Ct.669. 
 
314 FORMS OF COMPLAINTS. § 659. 
 
 where the object of the submission is to make an end of litiga- 
 tion, and the award is uncertain and incomplete upon its face, 
 it defeats the object of the submission and must be set aside. ^ 
 "Where an award is objected to on tbe ground that it embraces 
 matters not in fact submitted, it lies with the objecting party to 
 show affirmatively in what the arbitrators have exceeded their 
 duty.^ An award may be good in part and bad in part.' 
 
 § 659. Valid Awards. — The rule is that arbitrators must 
 pass upon all matters submitted ;^ and an award which clearly 
 goes beyond the issues submitted is invalid as a whole, where 
 the matter ultra vires can not be separated without violating the 
 intent of the parties. ^ It seems that in New York, " that an 
 arbitrator made an award " means a qualified arbitrator, and 
 suflEiciently imports that he was duly sworn, where an oath is 
 required.^ An award rendered upon fair arbitration, and for a 
 long time concurred in, must be held to be conclusive.'' No 
 award implies no valid award. ^ An award settles forever all 
 matters fairly within the meaning and intention of the submis- 
 sion 9 An award bad in part, may be enforced for the part that 
 is good, if not attacked for fraud, and the matter is divisible. i' 
 It must be certain and decisive as to the matters submitted, and 
 thus avoid all further litigation." Unless it is final and conclu- 
 sive as to the matters submitted, it is not admissible in evidence." 
 
 § 660. On an Award of an Umpire. 
 
 Form No. 151. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. [Allegation as in preceding form.] 
 
 II. That said A. B., before they proceeded upon the said ar- 
 bitration, on the day of , 18...., by writing'under 
 
 their hands, appointed one E. F. to be umjiire in the matter so 
 submitted; and the said arbitrators, after hearing the plaintiff 
 and defendant, and not being agreed concerning the matters 
 submitted to them, the said E. F. afterwards undertook said 
 arbitration, and heard the plaintiff and defendant, and on the 
 flay , 18..., the said arbitrators made their award, 
 
 'Pierson v. Norman, 2 Cal. 599; ' Jnrvia v. Fountain Water Co., 5 
 
 Jacob V. Ketcham, 37 Id. 197. Cal. 179. 
 
 a Blair v. Wallace, 21 Cal. 317. 8 Dresser v. Stansfleld, 14 M. & W. 
 
 > Williams v. Walton, 9 Id. 146; 822. 
 
 *3 Johns. 364. "Brazil! v. Isham, 12 N. Y. 15; 
 
 * Muldrow V. Norns, 12 Cal. 331 ; Lowenstein v. Mcintosh, 37 Barb. 
 
 Porter V. Scott, 7 Id. 312. 251. 
 
 ' White V. Arthur, 59 Cal. 33, w Muldrow v. Norris, 2 Cal. 74 
 
 g Browning v. Wheeler, 24 Wend. " Jncob v. Ketchum, 37 Id. 197. 
 
§ 664. AWARDS. 315 
 
 in writing, that the defendant should [pay the plaintiff 
 
 dollars]. 
 III. That he has not paid the same.^ 
 
 [Demand oi' Judgmbnt.J 
 
 • § 661. Allegation of an Enlargement of the Time 
 
 Form No. 15S. 
 [Title.] 
 
 That on the day of , 18...., the plaintiff and de- 
 fendant, by agreement [in writing, of which a copy is hereto 
 annexed], extended the time for making the award until the 
 day of 18... 
 
 § 662. Date of Award. — ^An award may be counted on as 
 made at the time of its date, not at the time as extended by 
 erasure or interlineation.^ 
 
 § 663. Appointment. — An umpire may be appointed by 
 parol, unless the submission require the appointment to be in 
 writing. 3 Where an umpire has been appointed and has entered 
 on the performance of his duty, the authority to decide is vested 
 solely in him ; the original powers of the arbitrators cease to 
 exist.* 
 
 § 664. Power to Award. — But where two arbitrators, 
 unable to agree, appoint under the submission a third arbitrator, 
 the power to make<an award is vested in the three jointly. 
 Wherever, therefore, the action is founded on an award, its true 
 character, as the act of an umpire or of arbitrators, must be set 
 forth in the complaint, in order that a defense adapted to its true 
 character may be set up in the answer. ^ 
 
 ' The above form of complaint ' Elmendorf v. Harris, 5 Wond. 516. 
 
 does not apply under the practice in * Underbill v. Van Cortlandt, 2 
 
 California. The report of a referee, Johns. Ch. 339; Butler v. Mayor of 
 
 and the award of an arbitrator, are in N. Y., 1 Hill, 489; Mayor of N. T. 
 
 all essentials the same : Grayson v. v. Butler, 1 Barb. 325. 
 
 Guild, 4 Gal. 122. » Lyon v. Blossom, 4 Duer, 318. 
 
 * Tompkins v. Corwin, 9 Cow. 255. 
 
316 FORMS OF COMPLAINTS. § 665. 
 
 CHAPTER III. 
 
 ON EXPRESS PROMISES. 
 
 665. On an Express Promise in Consideration of a 
 Precedent Debt. 
 
 From No. 153. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18 . ., at , the 
 
 defendant was then indebted to the plaintiff in the sum of 
 
 dollars, for [state what]. In consideration thereof, he 
 
 then promised to pay to the plaintiff the said sum, on the 
 day of 
 
 II. That he has not paid the same, nor any part thereof. 
 
 [Demand of Judgment.] 
 
 § 666. Consideration. — In every action upon a promise to 
 pay, a consideration must be stated.^ Such a consideration is 
 an essential fact to be proved, and unless proved the plaintiff 
 can not recover.'^ In an action upon a promise to pay money, 
 if the complaint contains no averment of consideration or of in- 
 debtedness, except by way of recital, it is insuflficient.^ 
 
 § 667. Consideration, in Purchase of Land. — Defendant 
 upon the purchase of certain land from B., agreed in writing as 
 part of the consideration, to pay to plaintiff a debt due to him 
 by B. Plaintiff afterward assented, and verbally agreed to look 
 to defendant for the debt. This was not within th e statute of 
 frauds, and plaintiff may recover the debt from defendant.* A 
 promise or agreement to convey lands in consideration ot the 
 purchaser's paying for them out of the profits, is void, as having 
 no consideration.* A promise made under mistake, as to lia- 
 bility, is void.^ 
 
 § 668. Consideration — Married Woman. — The advance 
 of money to the son of a married woman is not a sufficient con- 
 sideration for her subsequent promise to repay.'' 
 
 § 669. Consideration to Third Person. — An action can be 
 maintained upon a promise made by the defendant, upon a 
 valid consideration to a third person for the benefit of the 
 
 1 Ba-iley v. Freeman, 4 Johns. 280. ' Dorsey v. Packwood, 12 How. 
 
 2 Gyle V. Soenbar, 23 Cal. 538. U. S. 126. 
 
 3 Shafer v. Bear Eiver and Aub. "W. " Offutt v. Parrott, 1 Cranoh C. C. 
 and M. Co., 4 Cal. 295. 154. 
 
 4 McLaren v. Hutchinson, 22 Cal. ' "Watson v. Uunlap, 2 Oranoh C. C. 
 187. 14. 
 
§ 673. EXPRESS PROMISES. 317 
 
 plaintiff, although the latter was not privy to the consideration. 
 And a creditor can maintain an action against a person who 
 had received monty from his debtor upon a promise to pay the 
 amount to the creditor.^ Where A., who is indebted to B. 
 promises in consideration of his release by B. to pay the amount 
 to C. , who is a party to the arrangement, it is a sufficient consid- 
 eration to support such prom se.^ 
 § 670. Upon Compromise of an Action. 
 
 Form No. 154. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of an action was pending 
 
 in the court, brought by the plaintiff to recover from 
 
 the defendant the sum of dollars, for goods sold by 
 
 plaintiff to the defendant. 
 
 II. That on the day of , at , in consid- 
 eration that the plaintiff would discontinue said action, and 
 
 would accept dollars in satisfaction of his claim, the 
 
 defendant promised to pay the plaintiff the sum of 
 
 dollars. 
 
 III. That the defendant accordingly discontinued said action. 
 
 IV. That nb part of said sum has been paid. 
 
 [Demamd of Judgment.] 
 
 § 671. Essential Allegations. — An agreement to compro- 
 mise, not unconscientious or unreasonable, must be executed, 
 without regard to the merits of the dispute. ^ A complaint on a 
 promise in consideration of a compromise should show that 
 there was some shadow of a claim ; * though it need not show 
 that the plaintiff had a valid claim. ^ It must also aver that the 
 litigation was discontinued according to the compromise.^ 
 
 § 672. Covenant to Sue. — A covenant not to sue for 
 five years is no bar to the action ; but the defendant must rely 
 upon the covenant for his remedy.' A covenant not to sue, 
 made to a portion only of joint debtors, does not release any of 
 them.^ 
 
 § 673. Promise of a Third Person to Pay Money to 
 
 Plaintiff. 
 
 Form No. 155, 
 
 [Title.] 
 The plaintjff complains, and alleges : 
 I. That on the day of , one A. B. was, and ever 
 
 1 Seeor v. Lord, 3 Keyes. 525. ' Palmer v. North, 35 Barb. 282. 
 
 2 Barrineer v. Warden, 12 Cal. 311. = Dolcher v. Fry, 37 Barb. 152. 
 
 « Sargent v. Larned, 2 Curt. 340. ' Howland v. Marvin, 6 Gal 501. 
 
 * Dolcher v. Fry, 37 Barb. 152. « Matthey v. Gall/, 4 Cal. 62. 
 
318 FOKMS OF COMPLAINTS. § 674. 
 
 since has been, indebted to the plaintiff in the sum of 
 
 dollars. 
 
 II. That on that day, the said A. B. was the holder of a bill 
 of exchange [describe it] , then indorsed, and delivered the same 
 to the defendant; in consideration of which the defendant 
 then and there promised A. B. that he would endeavor to col- 
 lect the same, and that when collected, he would apply the 
 proceeds in payment of said indebtedness of said A. B. to the 
 plaintiff. 
 
 III. That afterwards, on the day of the de-' 
 
 fendant collected and received the same. 
 
 IV. That no part thereof has been paid to the plaintiff. 
 
 [Demand or Judgment.] i 
 
 § 674. Essential Allegations. — In an action for a breach 
 of an engagement to pay money to A. for the benefit of B. , it is 
 not necessary to aver that the defendant had refused to pay to 
 B., as well as to the plaintiff.^ But on a promise to pay money 
 when collected, collection is a condition precedent, and must 
 be averred. 
 
 § 675. Vendor of Lands. — In a case in California, defend- 
 ant, upon the purchase of certain land from B., agreed with him 
 in writing, as part of the consideration, to pay to plaintiff a debt 
 then due the latter from B. Plaintiff afterwards assented to 
 the arrangement, and verbally agreed with the defendant to 
 look to him for his debt, and release B. It was held, that this 
 agreement was not within the statute of frauds, and gave plaint, 
 iff a right of action against defendant for the debt.* 
 
 § 676. When Action Lies. — Assumpsit is the proper form 
 of an action against a guarantor by one who has given credit 
 on the faith of a general promise to be security. The creditor 
 is not confined to an action of deceit.^ When A., by agreement 
 between him and B., assented to by C, becomes liable to pay 
 the latter a debt originally due to him from B. , the assignee of 
 C. may maintain an action for the debt in his own name against 
 A.s Defendant being indebted to E. M. & Co., and they to 
 
 1 This form is supported by Dela- ' Dodge v. Coddington, 8 Johns, 
 
 ware and Hudson Canal Co. v. West- 146. 
 
 Chester County Bank, 4 Den. 97. We 'McLaren v. Hutchinson, 22 Cal. 
 
 have, however, changed it by adding 188. Whether the assent was neces- 
 
 to and strilcing out portions. Money sary to fix defendant's liability, see 
 
 received by a third person, on promise Lewis v. Covillaud, 21 Id. 178. 
 to pay creditor's debt, may be recov- ' Lawrason v. Mason, 3 Cranoh, 
 
 ered : Goddard v. Mockbee, 5 Cranch 492. 
 C. C. 666. , 'Lewis v. Covillaud, 21 Cal. 178; 
 
 ' Rowland v. Phalen, 1 Bosw. 43 McLaren v. Hutchinson, 22 Id. 187. 
 
§ 680. EXPRESS PROMISES. 819 
 
 plaintiff, all pariies agreed that defendant should pay the amount 
 
 of his indebtedcess to the company to plaintiff. This was an 
 
 equitable assignment, and the only mode of enforcing it is by 
 
 action in the name of the assignee to recover the debt.^ 
 
 § 677. On a Fromiss to Pay for the Surrender of a 
 
 Lease. 
 
 Form No. 156. 
 [Title.] 
 
 The plaintiff complains, and alleges ; 
 
 I. That at the time hereinafter mentioned, the plaintiff leased 
 
 from the defendant a house and lot in the town of , for 
 
 a term commencing on the day of , 18..., and end- 
 ing on the day of , 18..., under which he was en- 
 titled to the possession of said house and lot. 
 
 n. That on the day of , 18..., the defendant 
 
 promised the plaintiff that in consideration that he, the plaint- 
 iff, would surrender to the defendant the unexpired term and 
 
 the possession, he would pay the plaintiff the sum of 
 
 dollars. 
 
 III. That the plaintiff thereupon surrendered the unexpired 
 term of said lease, and the possession of said land to the de- 
 fendant. 
 
 IV". That no part of said sum has been paid. 
 [Demand of Judgment.] 
 
 § 678. For the Furchase Money of Land Conveyed. 
 
 Form No. 157. 
 [Title]. 
 The plaintiff complains, and alleges : 
 
 I. That on the day of 18..., at , the 
 
 plaintiff sold and conveyed to the defendant [the house and lot 
 No. 203 street, in the city of ]. • 
 
 II. That defendant promised to pay the plaintiff 
 
 dollars for the said [house and lot] . 
 
 III. That he has not paid the same, nor any part thereof. 
 
 [Demand as Judgment.] 
 
 § 679. Consideration of Deed. — In New York an action 
 will lie for ihe consideration of a deed, although there was no 
 valid contract under the statute of frauds,^ even when the deed 
 contains a receipt for the consideration.^ 
 
 § 680. Delivery. — Under a verbal contract of sale of real 
 estate, the delivery of the title deeds is equivalent to a symbol- 
 
 * "Wiggins V. McDonald, 18 Cal. 126. 
 
 » Thomas v. Dickinson, 12 N. T. 364. i» -nt v afti 
 
 sShephard v. Little, U Johns. 210; Thomas v. Dickinson, 12 N. Y. 864. 
 
320 FORMS OF COMPLAINTS, § 681. 
 
 ical delivery of and admission into the possession of the prop- 
 erty, as between vendor and vendee.^ 
 
 § 681. Request is Implied by the Word " Sold."® A 
 failure on the part of the vendee to pay the purchase money for 
 two years and more, does not forfeit his right under the eon- 
 tract, as the vendor may enforce the payment at any time after 
 it is due. 3 
 
 § 682. Allegation of New Promise. 
 
 Form No. 158. 
 
 That thereafter, on the day of , at , in 
 
 consideration of the foregoing facts the defendant promised to 
 the plaintiff, in writing, that he would pay such indebted- 
 ness. 
 
 § 683. Statute of Limitations— New Promise. — It is 
 well settled with reference to actions for moneys due on con- 
 tracts, that the statute does not discharge tlie debt, or in any 
 way extinguish the right or destroy the obligation, but only 
 takes away a remedy. The debt remains unsatisfied and unex- 
 tinguished. It is a sufficient consideration to support a new 
 promise.* In some of the states, where there is a new promise 
 to pay a continuing debt, although the creditor may sue on the^ 
 old debt and give the new promise in evidence, he may, on the 
 other hand, sue on the new promise. 5' 'W'here a debtor promises 
 to pay when able, and the creditor does not wait, but proceeds 
 immediately on the original obligation before defendant is able 
 to pay, he can not afterwards resort to an action of assumpsit 
 on the new promise. In Iowa the new promise must be alleged.* 
 And in Missouri, under the statute of 1845, and in the revision of 
 1855, the promise or acknowledgment must be in writieg, or it 
 is of no.effect.'' In Ohio the rule seems to be that, where a new 
 promise or acknowledgment has been made, the plaintiff may 
 state the demand barred, as a consideration of the new promise, 
 and allege the new promise in writing as the cause of action. ^ 
 By the practice in New York the complaint may be made on the 
 original demand, and if the statute of limitations be pleaded, 
 the new promise may be given in evidence without an allega- 
 
 • Tohler v. Folsom, 1 Cal. 207, and Ang. on Lim., p. 268, sec. 218 ; Oha- 
 note. bot v. Tucker, 39 Cal. 434. 
 
 2 1 Saund. 264, note 1 ; Comstook v. » Lonsdale v. Brown, 4 Wash. C. 
 
 Smith, 7 Johns. 87 ; Parker v. Crane, Ct. 148. 
 
 6 Wend. 647. 6 Id. 
 
 8 Gouldin v. Buckelew, 4 Oal. 107. ' Blackburn v. Jackson, 26 Mo. 308. 
 
 * Townsend v. Jemison, 9 How. U. ^ gturges v. Burton, 8 Ohio St. 
 S. 413 ; Bulger v. Eoohe, 11 Pick. 37 ; 216. 
 
 Lincoln v. Battelle, 6 Wend. 485; 
 
§ 684. - EXPEESS PROMISES. 321 
 
 tion.^ And the same rule applies after a discharge in bank- 
 ruptcy or insolvency.^ 
 
 "When a promise to pay a debt is relied on to take a case out 
 of the statute of limitations, it is not necessary, in pleading, to 
 allege that it was in writing, signed by the party. =< It is other- 
 wise in California.* In that state it is held that where the 
 acknowledgment is made while the contract is a subsisting lia- 
 bility; that is, before it has become barred by the statute, it 
 establishes a continuing contract ; but when made after the bar 
 of the statute, a new contract is created. It is not held that 
 the statute raises a presumption of payment, but bars the rem- 
 edy. That, therefore, when the creditor sues after the statute 
 has baiTed the original contract, his cause of action is not upon 
 the original contract, but upon the new promise, whether it be 
 in form a new promise, or an implied promise arising from the 
 acknowledgment; the consideration being the original contract, 
 which, though barred by the statute, is binding in foro con- 
 scientine.^ That the statute acts only on the remedy, and does 
 not raise a presumption of payment.^ In New York it has been 
 held that where there is a new promise to pay a debt barred by 
 the statute of limitations, it is not necessary to count upon this 
 as a new contract ; but the action may be brought upon the 
 original obligation.'' The time of such new promise must be 
 definitely averred. An averment of repeated acknowledgments 
 will not suffice. 8 The acknowledgment must be a direct, dis- 
 tinct, unqualified, and unconditional admission of the debt 
 which the party is liable and willing to pay.^ "When the new 
 promise is coupled with a condition, it should be so alleged, 
 and performance must be averred^" 
 
 § 684. Request. — ^Allegation that plaintiff refused, etc., 
 though then and there particularly requested to do so, is a 
 sufficiently explicit allegation of a request to amount to a posi- 
 tive averment." Where the agreement is to pay on request the 
 debt of another, if he does not pay on the day, a special request 
 must be averred. The general allegation "though often re- 
 quested" is not enough.^2 
 
 lEsselstyn v. Weeks, 12 N. Y. 635. ' Van Alen v. Feltz, 9 Abb. Pr. 
 
 Clark V. Atkinson, 2 E. D. Smith, 112. 277 ; Sands v. St. Johns, 23 How. Pr. 
 
 ^ Shippey v. Henderson, 14 Johns. 140. 
 
 178 ; Depuy V. Swart, 3 Wend. 135. *BIoodgood v. Bruen 8 N. Y. 362. 
 
 * Lynch v. Musgrave, Hayes & J. ° McCormickv. Brown, 36 Cal. 186, 
 
 821 . and cases there cited. 
 
 « Porter V. Elam, 25 Cal. 291. '» Wait v. Morris, 6 Wend. 394. 
 
 ^McCormickv. Brown, 36 Cal. 180; i Supervisors of Allegany v. "Van. 
 
 Chabnt v. Tucker, 89 Id. 438. Campen, 3 Wend. 48. 
 
 « See Johnson v. Al bany etc. K. R. " Bush v. Stevens, 24 Wend. 256. 
 Co.,54N.Y.416. 
 
 EsTEB. "Vol. I — 21 
 
322 POUMS OF COMPLAINTS. 8 o85. 
 
 CHAPTER IV. 
 GOODS SOLD AND DELIVEEBD. 
 § 685. Goods sold and Delivered. 
 
 Form No. 159. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18 ., [or between two 
 
 dates, naming them], at , the plaintiff sold and deliv- 
 ered to the defendant, at his request, certain goods, to wit [de- 
 scribe the property sold, briefly, at least as to its general char- 
 acter] . 
 
 II. [Allege the price agreed to be paid, or the reasonable 
 value of the goods, as the case may be.] 
 
 III. That the defendant has not paid the said sum, nor any 
 part thereof [if any payments have Been made, add, except, 
 etc. , stating payments] . 
 
 [Demand ot Jitdombnt.] 
 
 § 686. The Same — Another Form — Common Count. 
 
 Form No. 160. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18 ... [or between two 
 
 dates, flaming them], at , the defendant was indebted 
 
 to the plaintiff in the sum of dollars, on an account 
 
 for goods [describe the property sold briefl y, at least as to its 
 general character] sold and delivered by the plaintiff to the 
 defendant on the day aforesaid [or between the dates aforesaid] 
 at his request. 
 
 II. That the defendant has not paid the said sum, nor any 
 
 part, thereof [if any payments have been made, add, except, etc., 
 
 stating payments] . 
 
 [Demand of Judgment.] 
 
 § 687. Essential Allegations — Amount Due. — The failure 
 to state the amounts due, severally, for goods and for money, in 
 a confession of judgment, would be fatal. i 
 
 § 688. The Same — At his Request. — ^The averment, " at 
 his request," is not requisite in New York.^ 
 
 § 689. The Same — Description of Goods. — A party must 
 be presumed to know what was intended by his account, and 
 
 > Cordier v. Schloss, 18 Oal. 576. Pr. 24 ; Glenny v. Hitchins, 4 Id. 98 ; 
 ' Acome V. Amer. Min. Co., 11 How. Victors v. Davis, 1 Dowl. & L. 986. 
 
§ 692. GOODS SOLD AND DELIVERED. 323 
 
 therefore, where a bill of sale is set forth in hceo verba, it reme- 
 dies a defect in the description of the quantity of goods sold.^ 
 
 § 690. The Same— Implied Promise.— The implied prom- 
 ise to pay is matter of law, and should not be pleaded.^ Under 
 a count for goods sold and delivered, the plaintiff may show 
 that his chattels had been wrongfully converted by a sale of 
 them by the defendant, who had received the money therefor, 
 or he may waive the tort and sue for goods soH.^ 
 
 § 691. The Same — Common Counts. — ^A count in the or- 
 dinary form of counts in indebitatus assumpsit for goods sold and 
 delivered, is sufficient.-* Thus, an allegation that the defendant 
 is indebted to the plaintiff in a certain sum for goods sold and 
 delivered to him at his request, and that defendant has not paid 
 for the same, stages a cause of action.^ A complaint alleging 
 that between specified days the plaintiff sold and delivered to 
 defendant, at his special instance and request, a large quantity 
 of boots and shoes of a specified value, and that there is due 
 and unpaid therefor a sum designated, which he promised to 
 pay, but though often requested by them, has wholly refused, is 
 sufficient on demurrer.^ But a declaration is insufficient which 
 alleges an indebtedness and sets forth an account, but does not 
 allege the sale or delivery of the articles to the defendant, nor 
 show in what place or what manner the indebtedness accrued, 
 whether on account of the defendant or that of another.'' 
 
 In a complaint in an action by several plaintiffs, to recover for 
 goods sold and delivered, an allegation of partnership is not 
 necessary, and an allegation of sale and delivery sufficiently 
 implies that the goods belong to the plaintiff.^ That the plaint- 
 iff had purchased a quantity of ^oods from W. & P., then and 
 there acting as agents of the defendant, is only another form of 
 declaring that he had purchased from the defendant, and is 
 good on demurrer. Where the complaint sets forth in hcea 
 verba the bill of sale, it was held to remedy a defect in the de- 
 scription of the quantity of goods sold.^ 
 
 § 692. The Same— Short Form. 
 
 Form No. 161. i 
 
 [Title]. 
 The plaintiff complains, and alleges : 
 
 ■Cochran v. Goodman, 3 Cal. 244. son, 7 N. T. 476;'Higgins v. Ger- 
 
 'Parron v. Sherwood, 17 N. T. 227. maine, 1 Mon. 230 ; see ante, sec. 613. 
 
 sHarpending v. Shoemaker, 37 ' Abadie v. CarriUo, 32 Cal. 172. 
 Barb. 270. ' Phillips v. Bartlett, 9 Bosw. 678. 
 
 •Freeborn v. Glazer, 10 Cal. 337; 'Mershon v.Bandall, 4 Cal. 824. 
 Abadie v. Carrillo, 32 Cal. 172 ; Magee ' Phillips v. Bartlett, 9 Bosw. 678. 
 V. East, 49 Id. 141 ; Allen v. Patter- • Cochran v. Goodman, 3 Cal. 244. 
 
324 FOBMS OF C0MPi<Ali«T6. § 693. 
 
 I. That on the day of 18... [or between certain 
 
 dates, naming tliem] , the defendant was indebted to the plaintiff 
 
 in the sum of dollars, on an account for' goods then sold 
 
 and delivered by the plaintiff to the defendant at 
 
 II. That he has not paid the same nor any part thereof.^ 
 
 [Demand of Judgment.] 
 
 § 693. Balance of Account for Goods Sold. — Where a 
 complaint stated a cause of action for goods sold, and in addi- 
 tion, with a view to meet a probable defense of payment based 
 upon the giving of certain notes by defendant, and a receipt in 
 full by plaintiff, stated the making of the notes and receipt, and 
 alleged facts attending the transaction, which, if true, avoided 
 its effect as payment, by reason of fraud and misrepresentation 
 on tbe part of the defendant, it was held, that the allegations 
 of the complaint in reference to the transaction claimed to oper- 
 ate as payment, were not material allegations requiring a denial, 
 and were not, therefore, admitted by the failure of defendant to 
 deny them. ^ 
 
 § 694. Nature of Claim. — The complaint should indicate 
 the nature and character of the claim, and the period within 
 which it arose. 3 
 
 § 695. For Goods Sold and Delivered at a Fixed Price. 
 
 Form No. 16S. 
 [Title.] 
 
 The plaintiff complains, and alleges; 
 
 I. That on the day of , 18.., at , 
 
 he sold and delivered to the defendant [fifty casks of sugar, or 
 other goods, describing them] . 
 
 II. That the defendant then promised to pay dol- 
 lars for the said goods [in gold coin of the United States] . 
 
 III. That he has not paid the same nor any part thereof. 
 
 [Demand oi' Judgment.] 
 § 696. Debt, when Due. — It is not necessary to specify 
 any time at which the debt was to be paid.* A general promise 
 is to be construed as a promise to pay immediately.* And if 
 the promise was to pay at a certain time not yet elapsed, it is 
 matter of defense.^ But if a day was fixed, it will, if stated, 
 furnish a day for the commencement of interest.'' 
 
 * This form is supported by Allen * Peots v. Bratt, 6 Barb. 622 ; Gibbs 
 
 v. Patterson, 7 N. Y. 476; Adams v. v. Sotham, 5 Barn. & Adol. 911. 
 
 Holley, 12 How. Pr. 326; Cudlipp ' Peetsv. Bratt, 6 Barb. 622; Gibbs 
 
 V. Whipple, 4 Duer, 610; Graham v. v. Sotham, 5 Barn. & Adol. 911. 
 
 Camman, 5 Id. 697 ; Chamberlain v. ^ Smith v. Holmes, 19 N. Y. 271. 
 
 Kaylor, 2 E. D. Smith, 134. ' Van Rensselaer v. Jewett, 2 N. Y. 
 
 « Oanfield v. Tobias, 21 Cal. 359. 140. 
 
 « Farcy v. Lee, 10 Abb. Pr. 143. 
 
§ 702. GOODS SOLD AND DELIVERED. 326 
 
 § 697. Demand. — No demand is necessary. ^ On an agree- 
 ment to pay on request, though no request is necessary, a de- 
 mand is necessary if the promisor be a surety.^ But upon a 
 state of facts in which a demand would be necessary if the 
 plaintiff sued for damages for conversion, it is equally necessary 
 where he sues upon the implied contract, waiving the tort.3 
 The averment of the demand is proper, to fix the time of inter- 
 est.* 
 
 § 698. Gold Coin. — Where there is a verbal understanding 
 that the price of the goods sold shall be payable in gold coin, 
 it may be enforced, if after the debt has accrued and suit has 
 been commenced, one of the firm, in the firm name, makes a 
 contract in writing to pay in gold coin, said contract dated 
 before the sale of such goods, provided the complaint avers a 
 contract to pay in gold, made before the goods were sold.^ 
 
 § 699. Heec Verba. — When the complaint sets forth in hoec 
 verba the bill of the articles purchased, it is sufficient to inform 
 the defendant with what he is charged, for he is presumed to 
 kuow what is intended by his own account. And it was held 
 to remedy a defect in the description of the quantity of goods 
 sold. 6 
 
 § 700. The Same, at a Reasonable Price. 
 
 Form No. 163. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 he sold and delivered to the defendant [describe the articles] . 
 
 II. That the same were reasonably worth dollars. 
 
 III. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand or Judgment.] 
 
 § 701. Debt Due. — It is not necessary to show that the debt 
 was due before the commencement of the action, nor even at 
 the date of the complaint.'' 
 
 § 702. Promise.— The promise to pay alleged in the com- 
 mon count in assumpsit was a mere conclusion of law from the 
 facts stated, and need not be averred under the code, which 
 requires only the facts to be stated. » From the indebtedness 
 admitted, the law implies a promise to pay, and the denial of 
 
 > Gibbs V. Southam, 5 Barn. & « Beers v. Beynolds, 1 Kern. 97. 
 Adol. 911 ; Lake Ontario B. R. Co. v. * Meyer v. Kohn, 29 Cal. 278 ; see 
 
 Ma*on, 16 N. Y. 451. Cal. Code 0. P., sec. 667. 
 
 « Nelson V. Bostwick, 5 Hill, 37; " Cochran v. Goodman, 8 Cal. 245. 
 D. . uglass V. Rathbone, Id. 143. ' Smith v. Holmes, 19 N. Y. 271. 
 
 3 Spoor V. Newell, 3 Hill, 307. » "Wilkins v. Stedger, 22 Cal. 232. 
 
326 FOEMS 0¥ COMPLAINTS. § 703. 
 
 any express promise raises no issue.^ The law implies a prom- 
 ise to pay so mucii as the goods are reasonably worth. This is, 
 however, a matter of law and should not be pleaded.^ 
 
 § 703. Value, Allegation of. — The allegation of value is 
 material. 3 
 
 § 704. The Same, on Specified Price and Credit. 
 
 Form No. 164. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , the 
 
 plaintiff sold and delivered to the defendant, at his request 
 [describe articles], for the sum of dollars. 
 
 II. That the defendant promised to pay therefor to the plaint- 
 iff the said sum of dollars, on or before the day 
 
 of , 18 
 
 III. That he has not paid the same, nor any p art thereof. 
 
 [Demand of Judgment.] 
 
 § 705. Demand, Averment of. — The object of averring a 
 demand is simply to carry interest. It has been held in New 
 York that where goods are purchased at a price fixed, and with- 
 out fixing any term of credit, if, after reasonable time elapses, 
 the account is presented and impliedly admitted, interest is 
 properly chargeable from the time of the demand.'* 
 
 § 706. The Same, by Assignee for Price of Stock and 
 Fixtures of Store and Good Will, Payable by Install- 
 ments. 
 
 Form No. 165. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18 .., at , one 
 
 A. B. sold and delivered to the defendant the stock and fixtures 
 
 of the grocery store. No , in street, in , 
 
 the property of said A. B., and bargained, sold, and relin- 
 quished to the defendant the good will of the business thereto- 
 fore carried on by the said A. B. 
 
 II. That the defendant promised to pay to the said A. B. 
 therefor the sum of dollars, in five equal monthly in- 
 stallments, the firit installment to be paid on the day of 
 
 , 18..., and the remaining installments to be paid on 
 
 the day of each succeeding month, until all shall be paid. 
 
 1 Levison v. Schwartz, 22 Cal. ' Greeory v. Wright, 11 Abb. Pr, 
 
 229. 417. 
 
 ' Fftrron v. Sherwood, 17 N. Y. ' Beers v. Reynolds, 11 N. Y. 97 
 
 230. 102 ; affirming 8. 0., 32 Barb. 288. 
 
§ 708. GOODS SOLD AND DELIVERED. 327 
 
 III. That the defendant has not paid the same, nor any part 
 thereof. 
 
 IV. [Allege assignment to plaintiff.] 
 
 [DlMAND OF JtrDGMBNT.] 
 
 § 707. Good Will.— Good will of a trade is the probability 
 that the business will continue in the future as in the past, add- 
 ing to the profits of the concern, and contributing to the means 
 of meeting its accruing engagements, and is an element to be 
 considered in determining whether at a given date the parties 
 conducting the business were solvent. It is a part of the part- 
 nership property, and adds to the value of property and stock, 
 and will accompany the sale.'- Plaintiff having bought certain 
 horses of defendant, as also the " good will " of a mercantile 
 house in the matter of drayage, can not sue to recover back the 
 purchase money on the ground that such "good will" is not 
 vendible.^ 
 
 § 708. The Same, by a Firm in which there is a Dor- 
 mant Partner, the Price being Agreed upon. 
 
 Form No. 166. 
 [State and Codntt.] [Court.] 
 
 A. B., J. H., and J. C. J., 
 
 Plaintiffs, 
 against 
 John Dos, Defendant. 
 The plaintiffs complain of the defendant, and allege : 
 
 I. That the plaintiffs are copartners in business in the city of 
 San Francisco, under the firm name of B. & H. , and that said 
 plaintiff, J. C. J., is a dormant partner in said firm. 
 
 II. That on or about the day of , 18..., the 
 
 said plaintiffs, in their firm name, sold and delivered to defend- 
 ant a certain quantity of merchandise, to wit, dry goods, in the 
 quantities and at and for the prices specified in the bill thereof, 
 hereto annexed, mailed "Exhibit A," and made part of this 
 complaint, amounting to the sum of dollars. 
 
 III. That defendant promised to pay the same at the expira- 
 tion of four months from the said date of sale. 
 
 IV. That .said time has elapsed, and the said defendant has 
 not paid the same or any part thereof .^ 
 
 [Demand of Judgment.] 
 
 •Bell V. Ellis, 88 Cal. 620. see. 142. That a dormant party is a 
 
 ' Buckingham v. "Waters, 14 Cal. necessary party plaintiff, see Secor v. 
 
 146. Keller, 4 Duer, 416 ; compare Belshaw 
 
 « As to the necessity of joining the v. Colie, 1 E. D. Smith, 213. 
 
 dormant partner as plaintiff, see ante. 
 
 •I 
 
 t. J 
 
328 FOKMS OP COMPLAINTS. . § 709. 
 
 § 709. Tor Goods Delivered to a Third Party at De- 
 fendant's Request, at a Fixed Price. 
 
 Form No. 167. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18 ..., at , 
 
 he sold to the defendant [two hundred bags of coffee] , and at 
 the request of the defendant, delivered the same to one A. B. 
 
 II. That the defendant promised to pay to the plaintiff 
 dollars therefor. 
 
 III. That he has not paid the same, nor any part thereof. 
 
 [Demand of Judgment.] 
 
 § 710. Delivery. — "When goods sold are delivered to a third 
 person for the exclusive use of such person, the plaintiff, in an 
 action against the purchaser, is bound to aver delivery to the 
 third party in the complaint. It is only as a conclusion of law 
 that such a delivery amounts to a delivery to the purchaser.* But 
 a variance in this respect may be disregarded if the defendant 
 does not appear to have been misled. ^ 
 
 § 711. Who Liable. — That person is liable to whom the 
 creditor at the time gave the credit.^ But if the credit is not 
 given to the person making such agreement, his undertaking is 
 collateral, and must be in writing.* 
 
 § 712. For Goods Sold, but not Delivered, Price Fixed. 
 
 Form No. 168. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18 ..., at , he 
 
 sold to the defendant [all the potatoes then growing on his farm 
 
 in ]. 
 
 II. That defendant promised to pay plaintiff dollars 
 
 for the same. 
 
 in. That he has not paid the same, nor any part thereof. 
 [Demand of Judgment.] 
 
 1 Smith v. Leland, 2 Duer, 497. Chit on Oont. 226 ; Story on Agency, 
 
 2 Rogers v. Verona, \ Bosw. 417; 213, sec. 263; Smith's Merc. L. 212. 
 BriMfsv. Evans, 1 B. D. Smith, 192; * Dixon v. Prazee, 1 B. D. Smith, 
 
 « Storr V. Scott, 6 Oarr. & P. 241 ; 32; Briggs v. Evans, Id. 192. 
 
§ 714. GUARANTIES. 329 
 
 CHAPTER V, 
 
 (JUAKANTIES. 
 
 § 713. Against Principal and Sureties on Contract for 
 Work. 
 
 Form No. 169. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 certain articles of agreement were made and entered into be- 
 tween the plaintiff and the defendants under their respective 
 
 hands and seals, and bearing date the day of 
 
 18....,of which the following is a copy [insert copy]. 
 
 II. That the plaintiff afterwards duly performed all the con- 
 ditions of the said contract on his part, and that the same was 
 
 fully completed on the day of , , 18..., and that on 
 
 that day he was entitled to have and receive from the said de- 
 fendants, upon the said contract, for the said work, mentioned 
 in the said agreement, a large sum of money, viz. , the sum of 
 dollars. 
 
 III. That the said defendants have wholly failed to perform 
 the said contract on their parts. 
 
 rV. That they have not paid the same, nor any part thereof. 
 [Demand of JxroaMENT.] 
 
 § 714. Absolute, Conditional, and Continuing Guar- 
 anties — Demand. — A mere offer to guarantee is not binding until 
 notice of its acceptance is communicated by the guarantee to 
 the guarantor, but an absolute guaranty is binding upon the 
 guarantor, without notice of acceptance.^ In cases of a clear 
 and absolute guaranty, demand on the principal and notice to 
 the guarantor is not necessary.^ But the guarantor is to pay, in 
 case the principal fails to pay on demand, a demand is neces- 
 sary, and must be averred and proved. ^ If oae gu&rantees a 
 debt to be collected by himself, demand on the principal debtor 
 need not be shown; otherwise on a demand against one who 
 merely guarantees a debt where the creditor is to collect.* Thus 
 
 1 Cal. Civil Code, sec. 2795. Pire Ins. Co. v. Ogden, 1 Wend. 137 ; 
 
 « Allen v. Kightmere, 20 Johns. 365 ; Morris v. Wads worth, 11 Id. 100. 
 
 Minn V. Eckford's Ex'rs, 15 Wend. » Douglass v. Eathbone, 5 Hill, 143 ; 
 
 502; Kemble V. Wallis, 10 Id. 374; Bank of N. Y. v, Livingstone, 2 
 
 Rushmore v. Miller, 4 Edw. Ch. 84; Johns. Cas. 409; Nelson v. Bostwlck, 
 
 Van Rensselaer v. Miller, Hill & D. 5 Hill, 37 ; Bush v. Stevens, 24 Wend. 
 
 Supp. 237 ; McKenzie v. Farrell, 4 256. 
 
 Bosw. 192; but compare Mechanics' 'Millikenv. Byerly, 6 How. Pr. 214. 
 
330 FORMS OF COMPLAINTS. § 715. 
 
 in an action where the plaintiff euaranted that certain certifi- 
 cates of stock should pay ten per cent per annum, an averment 
 that no dividend was made was insufficient. The undertaking 
 was collateral, and in all such cases a demand and notice must 
 be averred.^ On a general guaranty that debtor will pay, de- 
 mand on the principal is not necessary to fix the liability of the 
 surety, except for laches of the creditor.'' So where demand 
 would be useless, as where the principal debtor is insolvent. ^ 
 
 The liability of a conditional guarantor is commensurate with 
 that of his principal, and he is no more entitled to notice of a 
 default, unless the act is beyond his inquiry.* Where the 
 liability of the guarantor depends upon an action against the 
 principal, it is only necessary to show a suit against the prin- 
 cipal. ^ Where one guarantees the debt of another in consider- 
 ation of a stay of proceedings against the debtor, the promise 
 of the creditor is a condition precedent, and its performance 
 must be alleged in an action against the guarantor.^ Upon a 
 guaranty that the judgment is collectible, proceedings for the 
 collection in due course of law ia a condition precedent, and its 
 performance must be shown, or excuse for its non-performance.'' 
 
 When, by the terms of the guaranty, it is evident the object 
 is to give a standing credit to the principal, to be used from 
 time to time either indefinitely or until a certain period, then 
 the liability is continuing; but when no time is fixed, and 
 nothing in the instrument indicates a continuance of the under- 
 taking, the presumption is in favor of a limited liability as to 
 time, whether the amount is limited or not.^ The intention of 
 the parties must be ascertained and carried into effect, and in 
 arriving at that intent, the language of the contract must be 
 construed according to its plain and obvious import.^ In case 
 of ambiguity, the language is to be construed most strongly 
 against the guarantor, i" 
 
 § 715. Consideration. — A guaranty must be in writing, but 
 the consfderation need not be stated.^ And it is confined to 
 
 > Hank V. Crittenden, 2 McLean, 557. » Smith v. Compton, 6 Gal. 24. 
 
 2 Clark V. Burdett, 2 Hall, 217; ' Mains v. Halirht, 14 Barb. 76. 
 
 Union Bank V. Coster's Executors, 3 *Christv. Burlingame, 62Barb.851; 
 
 Comst. 203. Doacher v. Shaw, 52 N. Y. 602 ; Sickle 
 
 8 Morris v. Wadsworth, 11 Wend. v. Marsh, 44 How. Pr. 91. As to 
 
 100; see also Cooke v. Nathan, 16 liability of guarantors, generallv, see 
 
 Barb. 342. Cal. Civil Code, sees. 2808-2815." - 
 
 * Douglass V. Howland, 24 Wend. 85. ' Christ v. Burlingame, 62 Barb. 851. 
 
 'Morris v. Wadsworth, 17 Wend. ^'Id. . 
 
 103 ; but see Cooke v. Nathan, 16 " Packard v. Kichardson, 17 Mass. 
 
 Barb. 342 ; see, also, Prentiss v. Gar- 122. 
 land, 64 Me. 165. 
 
§ 718. GUARANTIES. 331 
 
 the person or persons to whom addressed to give a credit on it. 
 A guaranty not under seal nor expressing consideration, made 
 contemporaneously with the contract guaranteed, is a part of 
 the contract, and the expression of the consideration in the 
 guaranty takes the contract out of the statute of frauds.^ Thus 
 a guaranty indorsed on a charter party at the same time with 
 its execution, and the consideration of one being in fact the 
 consideration of the other, is good.^ The charter party re- 
 ferred to in the guaranty becomes part thereof. But if the 
 guaranty were executed subsequently, it would fail for want of 
 consideration, or of the expression of consideration.* 
 
 § 716. Guaranty by Factor. — A factor who charges his 
 principal with a guaranty commission upon a sale, thereby 
 assumes absolutely to pay the price when it falls due, as if it 
 were a debt of his own, and not as a mere guarantor for 
 the purchaser; but he does not thereby assume any additional 
 responsibility for the safety of his remittances of the pro- 
 ceeds. ^ 
 
 § 717. Joinder of Parties. — ^In New York it is held that 
 the principal and sureties who engage by different instruments, 
 although written upon the same paper, should not be joined as 
 parties in one action.^ So a claim against a debtor on a sealed 
 contract, and one against a guarantor by another sealed instru- 
 ment in the paper, can not be united,'' as the original liability 
 and the guaranty are separate contracts.^ But they may be 
 joined when they engage by one instrument.' In Iowa, under 
 a similar statute, the contrary is held." In California they may 
 be joined whether the liability is created by the same or separate 
 instruments." 
 
 § 718. Promise in Writing. — It need not be alleged in the 
 complaint that the promise of the guarantor was in writing.^^ 
 A parol guaranty of the payment or collection of a note, given 
 on its transfer in payment for property purchase'd, or debt due 
 by the guarantor, is not within the statute of frauds, but may 
 be enforced," An agent authorized to sell a note, and not lim- 
 
 » Taylor y. Wetmore, 10 Ohio, 490. » Brewster y. Silence, 4 Seld. 207 ; 
 s Jones V Post, 6 Cal. 102; see overruling Enos v. Thomas, 4 How. 
 
 FuUs^efBarrsI/''' '^"™'°°' " '"•■ctmany. Plass, 23 N. Y. 286. 
 
 ^'^mZ^n^vLTC0,TC^\.^2. "Marvin y. Adaruson. 11 Iowa, 
 
 4 Tfl 371. 
 
 California Civil Code, sec. 2029. "Code of Civil Procedure, sec. 
 
 'De Bidder t. Sohermerhorn, 10 hood, 29 Cal. 59 . 
 Barb 638 Lessee v. Williams, 6 Lans. iio. 
 
332 FOBMS OF COMPLAINTS. § 719, 
 
 ited by instructions, can bind his principal by a guaranty tliat 
 it is good or collectible.^ 
 
 § 719. On an Agreement to be Answerable for the 
 Price of Goods Sold. 
 
 Form No. 170. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at in 
 
 consideration that the plaintiff, at the request of the defendant, 
 
 would sell to one A. B., on a credit of months, such goods 
 
 as said A. B. should desire to buy of this plaintiff, the defend- 
 ant promised to be answerable to the plaintiff for the payment 
 by said A. B. of the price of goods so sold on credit, 
 
 II. That the plaintiff afterwards, and on the faith of said 
 guaranty, sold and delivered to said A. B. [describe the goods], 
 
 for the sum of dollars, upon a credit of months, of 
 
 all of which the defendant had notice. 
 
 III. That payment of the same was thereafter demanded from 
 said A. B. , but the same was not paid. 
 
 IV. That notice of such demand and non-payment was given to 
 the defendant. 
 
 V. That on the day of , 18..., at i pay- 
 ment of the same was demanded by the plaintiff from the, 
 defendant. 
 
 VI. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand of Judgment.] 
 
 § 720. Form of Guaranty. —" Mr. H., Sir: You can let 
 D. have what goods he calls for, and I will see that the same 
 are settled for. Yours truly, H. S. B." — is a continued guar- 
 anty.^ 
 
 Where a vendor of shares of fruit, growing in an orchard, 
 guaranteed the vendee that he should collect the fruit without 
 disturbance and annoyance, and the vendee was subsequently 
 prevented from gathering all the fruit by third persons, the 
 vendee has a right of action against the vendor on his guaranty, 
 as he was not bound to take a portion of his contract. ^ ■ But 
 
 1 Lessee v. Williams, 6 Lans. 228. Wills v. Brown, 11 8 Mass. 137; Walker 
 
 As to the sufficiency and validity of v. Hill, 119Id.249; Booth v. Eighmie, 
 
 parol promises, as original and inde- 60 N. Y. 238 ; Townsend v. Long, 77 
 
 pendent contracts, to exclude the oper- Pa. St. 148. For action against prin- 
 
 ation of the statute of frauds, cipal and sureties on promissory note, 
 
 determined in cases depending on par- and against guarantors thereon, see 
 
 ticular facts, see Clifford v. Luhring, Promissory Notes, posi. 
 69 111. 401; Buntirgv. Darbvshire. 75 SHotchkiss v. Barnes, 84 Conn. 27. 
 Id. 408; Horn v. Bray, 65 Md. 555; 'Dabovichv.lCmerio, 12Cal. 171. 
 
§ ''24- GUARANTIES. 333 
 
 where the one person wrote, "Let M. (the writer's brother) 
 have what goods he may want, on four months, and he will pay 
 as usual," it was held to be merely an expression of confidence, 
 and not a guaranty.^ 
 
 § 721. Good or Collectible.— A guaranty to the effect that 
 an obligation is good, or is collectible, imports that the debtor 
 is solvent, and that the demand is collectible by the usual legal 
 proceedings, if taken with reasonable diligence.^ Such guaranty 
 is not discharged by an omission to take proceedings upon the 
 principal debt, or upon any collateral security for its payment, 
 if no part of the debt could have been collected thereby.^ 
 
 § 722. Liability, Limitation of.— Where one guarantees 
 in writing the debt of another for goods sold and delivered, by 
 the guaranty the defendant becomes the debtor of plaintiff, and 
 no limitation could defeat the action, except that prescribed for 
 indebtedness evidenced by the written guaranty.* A delay of 
 three years in giving notice that a guaranty in similar terms has 
 become operative, discharges the guarantor. ^ 
 
 § 723 Notice — Pleading.— Where the guaranty relates to a 
 bill of goo is, the guarantor must be immediately notified of the 
 acceptance of the guaranty ,« to be given in a reasonable time.'' 
 In some of the states, the guarantor is entitled to notice that 
 his guaranty has been accepted.^ On a guaranty of prompt pay- 
 ment an allegation that the guarantor has not paid is essential. 
 Merely alleging that the principal debtor has not paid is insuffi- 
 cient.' 
 
 § 724. Against Guarantor of Mortgage to Recover 
 Deficiency after Foreclosure. 
 
 Form No. 171. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on or about the day of , 18.., the de- 
 fendants entered into an agreement with the plaintiff, under their 
 their hands and seals, in the words and figures following : [Copy 
 agreement.] 
 
 II. That the principal sum secured by the note and mortgage 
 referred to in the said agreement, became due and payable on 
 
 ' Eaton V. Mayo, 118 Mass. 141. Tuckerman v. French, 7 Id. 115; 
 
 2 Cal. Civil Code, see. 2800. Babcock v. Bryant, 12 Pick. 133 ; 
 
 » Cal. Civil Code, sec. 2801. Beckman v. Hale, 17 Johns. 134. 
 * Whiting V. Clark, 17 Cal. 407. » Oaks v. Weller, 13 Vt. 106; Hank 
 
 ' Whiting V. Stacy, 15 Gray, 270. v. Crittenden, 2 McLean, 557 ; How 
 
 6 Taylor v. Wetmore, 10 Ohio, 490. v. Nichols, 9 Shep. 175 ; Hill v. Col- 
 
 ' Mussey v. Rayner, 22 Pick. 223 ; vin, 4 How. (Miss.) 231. 
 Norton v. Eastman, 4 Greenl. 521 ; ' Roberts v. Treadwell, 50 Cal. 520. 
 
334 FOEMS OF COMPLAINTS. § 725. 
 
 the day of , 18..., and that on or about, etc., 
 
 the plaintiff commenced rn action in the superior court of the 
 
 county of , in this state, for the foreclosure of the 
 
 said mortgage ; and such proceedings were thereupon had ; that 
 
 on the day of , 18..., a decree was made by 
 
 the said court, for the foreclosure of the said mortgage and sale 
 of the premises ; and that if the proceeds of such sale should 
 be insufficient to pay the amount reported due to the plaintiff, 
 with interest and costs, the amount of such deficiency should 
 be specified in the report of sale therein, and W., one of the 
 defendants therein, should pay the same to the plaintiff. 
 
 III. That pursuant to said decree or judgment-order, the 
 premises were duly sold on, etc., by the sheriff of, etc., for the 
 price or sum of, etc. [and that the plaintiff became the pur- 
 chaser thereof] . 
 
 IV. That upon said sale, there occurred a deficiency of, etc., 
 as appears by the sheriff's report of said sale, duly filed in the 
 office of the clerk of, etc., and that thereupon, to wit, on the 
 
 day of , 18..., a judgment was rendered in said 
 
 court against W. in favor of the plaintiff, for the said sum of, 
 
 etc., with interest from , 18..., of which no part has 
 
 been paid. 
 
 V. That before the commencement of this action, he de- 
 manded of the defendants payment of the amount of such de- 
 ficiency, and at the same time tendered to them an assignment 
 of said judgment against W., duly executed by the plaintiff, but 
 that the defendants refused to pay the same, and have ever since 
 neglected and refused to pay to same, although the plaintiff 
 has always been, and still is, ready and willing to deliver to said 
 defendants an assignment of said judgment upon being paid 
 the amount due thereon.^ 
 
 [Demand or Judgment.] 
 
 § 725. Action may be on the Note. — That a mortgage 
 given to secure the payment of several notes falling due at dif- 
 ferent times, provides for payment at times or in modes different 
 from the notes, is no objection to suit on the notes at their ma- 
 turity. The mortgage is no part of the contract of indebtedness.* 
 
 § 726. Demand of Judgment. — If the sheriff returns the 
 amount due, and the plaintiff has not been fully paid by the 
 
 'This form is from"Abbott's Forms," »Bobinson v. Smith, 14 Oal. 95. 
 
 vol. 1, p. 295, and Is sustained by As to actions against administrators 
 
 Goldsmith v. Brown, 35 Barb. 485, and executors, see ante, sec. 417 et 
 
 but the recovery is limited by the sum seq. 
 actually paid. 
 
§ 728. GUARANTIES. 335 
 
 sale of the mortgaged property, the clerk, without further order 
 of the court, dockets the judgment for the balance due against 
 those defendants named in the judgment as personally liable 
 for the debt, upon which docketed judgment execution may 
 
 issue. ^ 
 
 • 
 
 § 727. Interest. — Where the assignee of a mortgage agreed 
 to waive his lien in favor of one who had agreed to advance money 
 to replace buQdings destroyed by fire, but no agreement at the 
 time was made as to interest, the guaranty of the assignee ex- 
 tended no further than the contract, and as this was silent as to 
 the interest, a higher rate of interest than the law allowed could 
 not be collected.^ 
 
 § 728. Mortgage as Security.— This form of action would 
 not apply under the statutes of California, and we here append 
 the following notes and authorities as to the practice in this stale. 
 It will be seen by the current of authorities that the action must 
 be upon the original indebtedness, and that the mortgage is con- 
 sidered as a mere security. ^ A mortgage is therefore a mere 
 security for the debt, and does not pass the fee, nor give right to 
 entry.* A mortgage in California, then, does not confer a right 
 to the possession of real property, except as a result of foreclos- 
 ure and sale.^ And the vendee of the mortgagor can not be 
 ousted by a purchaser under the decree of foreclosure and sale, 
 unless such vendee was made a party to the foreclosure suit." It 
 shall not be deemed a conveyance, whatever its terms, so as to 
 enable the owner of the mortgage to recover possession of the 
 real property, without a foreclosure and sale,'' thus restricting the 
 mortgage to the mere purposes of security.^ The words " what- 
 ever its terms," do not relate to stipulations for possession or 
 sale." A deed of trust, the trustee not being the creditor, but a 
 third party, given to secure a note, and authorizing the trustee to 
 sell the land at public auction, and execute to the puirchaser a 
 good and sufficient deed of the same, upon default in paying the 
 note or interest, as it falls due, and out of the proceeds to satisfy 
 the trust generally, and to render the surplus to the grantor, etc. , 
 is not a mortgage requiring judicial foreclosure and sale.^" 
 
 ' Leviston v. Swan, 33 Cal. 480. ' Cal. Pr. Act, sec. 260 ; Code 0. P. 
 
 2 Godfrey v. Caldwell, 3 Cal. 101. sec. 744. 
 
 » McMillan v. Kiohards, 9 Cal. sMcMillnn v. Richards, 9 Cal. 365; 
 
 365. Grattan v, Wiggins, 23 Id. 16 ; Dut- 
 
 * Id. ; Haffley v. Maier, 18 Cal. 13 ; ton, v. Warscnauer, 21 Id. 609 ; Skin- 
 
 Pcgarty V. Sawyer, 17 Id. 589. ner v. Buck, 29 Id. 253. 
 
 5 Kidd V. Teeple, 22 Cal. 255. « Fooavtv v. Sawyer, 17 Cal. 589. 
 
 « Haffley v. Maier, 13 Cal. 13. " Koch v. Briggs, 14 Cal. 256. 
 
336 FORMS OF COMPLAINTS. § 729. 
 
 § 729. Necessary Averment. — Where the plaintiffs held 
 certain security on real estate for 'the payment of an indebted- 
 ness of M. to them, but gave up and canceled such security 
 upon B. executing a bond in their favor, the condition of which 
 was that B. should pay to the plaintiffs such amount, not ex- 
 ceeding four thousand dollars, as should be found due to them 
 from M. after sale of certain goods, and the winding up of the 
 accounts of M. with the plaintiffs, the payment of which bond 
 was guaranteed by the defendant under the same conditions 
 expressed therein, it was held, in an action on the defendant's 
 guaranty, that the want of an averment in the complaint of the 
 winding up of the accounts of the plaintiffs with M. , or any 
 averment equivalent thereto, rendered the complaint substan- 
 tiallj'^ defective, and judgment was given for the defendant on 
 demurrer to the complaint. ^ 
 
 § 730. Parol Evidence. — ^Parol evidence of previous agree- 
 ment to give a guaranty, or of knowledge of the relations be- 
 tween the principal parties, is inadmissible to make that a 
 continuing guaranty which is not so upon its face.'' So to 
 charge one as guarantor who is not embraced in the writing. 3 
 
 § 731. On a Guaranty of a Precedent Debt. 
 
 Form No. m. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of ,18..., at , one 
 
 A. B. was indebted to this plaintiff in the sun of dollars. 
 
 II. That on the day of , 18..., at ,the 
 
 defendant made and subscribed a memorandum in writing, of 
 which the following is a copy [copy of the guaranty] , and de- 
 livered the same to the plaintiff, whereby he promised to the 
 plaintiff to answer to him for said debt. 
 
 III. 'j;hat the plaintiff duly performed all the conditions 
 thereof on his part. 
 
 IV. That the defendant has not paid the same. 
 
 [Demand of Judgment. 
 § 732. Against Sureties for Payment of Rent. 
 
 Form No. 173. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at.... , 
 
 one W. B. hired from the plaintiff for the term of years 
 
 J Mickle V. Sanchez, 1 Oal. 200. » First National Bank y. Bennett, 
 
 2 Boston etc. G-lass Co. v. Moore, 83 Mich. 520. 
 119 Maes. 435. 
 
^ '^33- GUARANTIES. 
 
 337 
 an- 
 
 the [house "No street, city of , at the 
 
 nualrentof dollars, payable monthly]. 
 
 II. That [at the same time and place] the defendant aoreed, 
 in consideration of the letting of the said premises to the said 
 W. B., to guarantee the payment of the said rent. 
 
 III. That the rent aforesaid for the month ending on the 
 
 ^*y °* > 18..., amounting to dollars, 
 
 has not been paid. 
 
 [If by the terms of the agreement notice is required to be 
 
 ^iven to the surety, add:] IV. That on the day of 
 
 ' 18 ..., the plaintiff gave notice to the defendant of 
 
 the non-payment of the said rent, and demanded payment 
 thereof. 
 V. That he has not paid the same.^ 
 
 TDemand of Judgment.! 
 § 733. Guaranty to be in Writing in California.— The 
 following provisions of the civil code of California cover so 
 many disputed questions, that it is thought best to insert them 
 liere. The code provides : 
 
 Sec. 2793. Except as prescribed by the next section, a gua- 
 ranty must be in writing, and signed by the guarantor ; but the 
 writing need not express a consideration. 
 
 Sec. 2794. A promise to answer for the obligation of another, 
 in any of the following cases, is deemed an original obligation 
 of the promisor, and need not be in writing: 1. Where the 
 promise is made by one who has received, property of another 
 upon an undertaking to apply it pursuant to such promise ; or 
 by one who has received a discharge from an obligation in whole 
 or in part, in consideration of such promise; 2. Where the 
 ■creditor parts with value, or enters into an obligation, in con- 
 sideration of the obligation in respect to which the promise is 
 made, in terms or under circumstances such as to render the 
 party making the promise the principal debtor, and the person 
 in whose behalf it is made his surety; 3. Where the promise, 
 being for an antecedent obligation of another, is made upon the 
 •consideration that the party receiving it cancels the antecedent 
 obligation, accepting the new promise as a substitute therefor ; or 
 upon the consideration that the party receiving it release the 
 property of another from a levy, or his person from imprisonment 
 under an execution on a judgment obtained upon the ante- 
 cedent obligation; or upon a consideration beneficial to the 
 
 ' The second count is a sufiSeient statement of consideration : Caballero v. 
 -Slater, 14 C. B. 303. 
 EsTBB, Vol. 1—22 
 
338 FOKMS OP COMPLAINTS. § 734. 
 
 promisor, whether moving from either party to the antecedent 
 obligation, or from another person ; 4. Where a factor under- 
 takes, for a commission, to sell merchandise, and guarantee the 
 sale; 5. Where the holder of an instrument for the payment of 
 money, upon which a third person is or may become liable to 
 him, transfers it in payment of a precedent debt of his own, or 
 for a new consideration, and in connection with such transfer 
 enters into a promise respecting such instrument. 
 
 § 734. Leases. — At the time of the execution of a lease 
 from A. to B., C. wrote underneath it: "I hereby agree to pay 
 the rent stipulated above when it shall become due, provided 
 the said B. does not pay the same " — this must be considered as 
 a part of the lease itself, and not within the statute of frauds.* 
 
 CHAPTER VI. 
 
 INSURANCE. 
 § 735. On Fire Policy — By the Insured. 
 
 Form No. 174. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That the defendants are a corporation' duly created by and 
 under the laws of this state [or the state of, etc.], organized 
 pursuant to an act of the legislature [of said state] entitled 
 [title of the act] , passed [date of passage] , and the acts amend- 
 ing the same. 
 
 II. That the plaintiff [was the owner of, or] had an interest 
 
 in a [dwelling-house, known as No. 200 street, in the 
 
 city of ], at the time of its insurance and destruction 
 
 [or injury] by fire as hereinafter mentioned. 
 
 III. That on the day of , 18..., at , 
 
 in consideration of the payment by the plaintiff to the defend* 
 
 ants of the premium of dollars, the defendants, by 
 
 their agents duly authorized thereto, made their policy of in- 
 surance in writing, a copy of which is annexed hereto, and 
 made part of this complaint. 
 
 IV. Thatonthe day of , 18...., said dwelling- 
 house and furniture were totally destroyed [or greatly damaged, 
 and in part destroyed] by flre. 
 
 V. That the plaintiff's loss thereby was doUai's. 
 
 1 Evoy V. Tewksbury, 5 Cal. 285. 
 
§ 737. INSURANCE. 339 
 
 VI. That on the day of , 18...., he furnished 
 
 the defendant with proof of his said loss and interest, and oth- 
 erwise performed all the conditions of said policy on his part. 
 
 VII. That the defendant has not paid the" said loss, nor any 
 
 part thereof. 
 
 [Demand of Judgment.] 
 [Annex a copy of policy.] 
 
 § 736. The Same, where Plaintiff Purchased the Prop- 
 erty after Insurance. 
 
 Form No. 175. 
 [Title.] 
 
 I. [Allege incorporation as in last form.] 
 
 n. That [name of original insured] was the owner of, or had 
 
 an interest in, etc. , etc. 
 
 III. [The same as in last form, substituting the names of the 
 original insured, instead of the words " the plaintiff."] 
 
 IV. That on the day of , 18..., at , 
 
 with the consent of the defendants, in writing, on said policy, 
 by their said agents, the said [original insured] sold, assigned, 
 and conveyed to the plaintff, his interest in the said [property] 
 and in the said policy of insurance. [Continue as in last form.]^ 
 
 [Demand or Judgment.] 
 § 737. The Same — Another Form. 
 
 Form No. 178. 
 [Title.] 
 
 The plaintiff coraplaios, and alleges: 
 
 I. That he was the owner of a [match factory, and the ma- 
 chinery therein] , in the town of , county of , 
 
 at the time of its insurance and destruction by fire, as herein- 
 after mentioned. 
 
 n. That on the day of , 18..., at , 
 
 in consideration of the sum of dollars to them paid, 
 
 the defendants executed to the plaintiff a policy of insurance on 
 the said property, a copy of which is hereto annexed [marked 
 "Exhibit A"], and made part of this complaint. 
 
 III. That on the day of , IS-., the said property 
 
 was totally destroyed by fire. 
 
 IV. That the plaintiff's loss thereby amounted to more upon 
 each part of the property separately insured, than the amount 
 of such separate insurance. 
 
 V. That on the day of , 18..., he furnished tne 
 
 defendant with proof of his said loss and interest, and otherwise 
 duly.performed all the conditions of the said policy on his part. 
 
 1 A3 to the form of averment of an sured, see Grander v. Howard Ins. 
 assignee's interest in the subject in- Co., 5 Wend. 200. 
 
340 FOEMS OF COMPLAINTS. § 738. 
 
 VI. That the defendant has not paid the said loss, nor any 
 
 part thereof. 
 
 [Dbuand of Judsmbnt. 
 
 [Annex "Exhibit A."] 
 
 § 738. The Same— Loss Payable to Mortgagee. 
 
 Form No. 177. 
 
 [TiTLB.] 
 
 [Allege as in form jl<o. 174, substituting the original insured's 
 name for the word " plaintiff," down to V.] 
 
 V. That on the day of , 18 ..., the said in- 
 sured made, executed, and delivered to plaintiff his mortgage on 
 
 said premises, to secure the sum of dollars, and assigned 
 
 said policy to plaintiff, as further security, and thereupon defend- 
 ant, at the request of plaintiff and of the insured indorsed on 
 said policy, "loss, if any, payable to [plaintiff]." 
 
 VI. That said mortgage and the debt secured thereby is wholly 
 unpaid and unsatisfied. 
 
 [Continue as in preceding form.] 
 
 [DbMAND or JUDQMBNT.] 
 
 § 739. Insurable Interest— Averment of. — A legal or 
 equitable title is not necessary to give an insurable interest in 
 property. If one has a right which may be forced against 
 the property, and which is so connected with it that injury 
 thereto will necessarily result in. loss to him, he has an insur- 
 able interest.! The interest of the insured is one of the facts 
 constituting the cause of action, and must be alleged.* Alleg- 
 ing that the defendants, in consideration, etc., insured him 
 against loss, etc., on his three-story and attic stone building, 
 and a frame one-story building attached, occupied by the said 
 insured, is a sufficient averment of interest, at least on demur- 
 rer. If the averment is too general, the defendant's remedy is 
 by motion.3 Such interest must be alleged not only as to the 
 time the policy was taken out, but also as to the time of loss.'' 
 An allegation, however, that at the time of insurance, he, the 
 plaintiff, had a chattel mortgage on ' the property, has been held 
 sufficient, as the interest will be presumed to continue.^ An 
 allegation, also, that the insurance was effected by plaintiff on 
 "his" building is sufficient without setting out his title. ^ And 
 
 1 Koliruaoh v. Oermania Pire xiis. * Quarrier v. Peabody Ins. Co~ 10 
 Co., 62 N. T. 47 ; aee also Cal. Civil W. Va. 507. 
 
 Code, sees. 2546, 2568. > Rouasel v. St. Nicholas Ins. Co., 41 
 
 2 2 Greenl. on Ev., sees. 376, 878- N. T. Sup. Ct. 279. 
 
 381. « Fowler v. N. Y. Ind. Ins. Co., 23 
 
 2 Fowler v. N. Y. Indemnity Insur- Barb. 143. 
 ance Co., 28 Barb. 143. 
 
§ 741. INSUEANCE, .341 
 
 so of an allegation that the defendant " insured plamtiff " on a 
 certain amount of grain. ^ 
 
 § 740. OtherEssential Averments— Loss— Policy — Ac- 
 tion by Mortgagor. — ^In an action to recover on an insurance 
 policy, it is essential to aver the loss, and to show that it oc- 
 curred by reason of a peril insured against. It is not necessary 
 to show that the loss did not occur through a peril excepted 
 from the policy. Thus it is not necessary to state that the loss 
 was not caused by invasion, riot, lightning, etc. That is a mat- 
 ter of defense which need not be anticipated.^ A partial loss is 
 recoverable under an allegation of total loss.^ An insurance 
 policy being a contract of the insurer's dictation, must be con- 
 strued most strongly against them.* Policies of insurance are 
 written contracts, to be interpreted by the same rules which ap- 
 ply to other contracts, and to be enforced according to the in- 
 tention of the parties, and are to be construed liberally in favor 
 of the assured. 5 In pleading the policy, formerly it was cus- 
 tomary to set out the policy and conditions annexed at length. 
 The more convenient way is to annex a copy to the complaint, 
 and refer to it.® The payment of the premium is a condition 
 precedent to the right to recover for the loss, and must be al- 
 leo'ed.'' The acknowledgment of the receipt of the premium in 
 the policy may be contradicted.^ In an action by the mort- 
 o'a'^or on a policy issued to him, but on terms paj'^able to the 
 mortgagee, the complaint must aver " that the mortgage has 
 been paid," or must join the mortgagee as a party.^ Where 
 a policy contained a provision that "if the property" in- 
 sured "shall be sold," a delivery of the said property to a 
 mortgagee, with the assent of the insurers, does not avoid the 
 
 policy.^" 
 
 § 741. A*snt. — An agent, to effect an insurance, who re- 
 tains the policy, has the authority to collect it in case of loss, 
 
 1 Eisinff Sun Ins. Co. v. Slaughter, Co., 44 Cal. 397; Foot v. ^tna Life 
 
 20Ind 620 I"'- ^°- °'^ ■'^- ^' °''^' 
 
 "Lo'unsburyv.Pro.Ins. Co.,8Conn. » Fairbanks v. Bloomfield, 2 Duer, 
 
 466; Euckerv. Green, 16 East, 290; 349. „ -,j , t ri aa 
 
 HuAt V. Huds. Biv. Ins. Co., 2 Duer, ' Bergson v. Builders' Ins. Co., 38 
 
 487; Catlin V. Sprin£;aeld Fire Ins. Cal. 541. _...., 
 
 Co 1 Sumn 439; Ferrer v. Home ^Id.; per contra, see Teutonia Life 
 
 Ins" Co 47^ Cal 416 ; Forbes v. Am. Ins. Co. v. Anderson, 77 111. 384 ; Same 
 
 „»„' T„='' n^ 1 1; arsiv 2 19 V. Mueller, Id. 22. 
 
 s-p^oria Marf & F.^Ini Co. v. White- » Ennis v. Harmony Fire Ins. Co., 
 
 V.,, o>;tii 4.Rfi 3 Bosw. 516. 
 
 ';/S-v^Veabody Ins. Co., 8 W. ^/° W.shin.^on 1- Co.^-^Hayes, 
 
 s' Wells, Fargo & Co. v. Pacific Ins. avoided as to removed goods, see Id. 
 
SJ-2 FORMS OF COMPLAINTS. § 742. 
 
 and the presumption is tliat he did retain it, especially as he 
 proceeded to collect the money.^ 
 
 § 742. Double Insurance.. — A policy forfeitable if the as- 
 sured shall make any other insurance upon the property, is not 
 forfeited by his taking a second but invalid policy thereon.'' 
 
 § 743. Exceptions in Policy. — A provision in a policy of 
 fire insurance exonerating the company from loss by fire which 
 should happen by explosion, must be taken to include an ex- 
 plosion of a steam-engine, insured by the policy, as well as any 
 external explosion.^ 
 
 § 744. Parol Policy. — In the absence of a statutory prohi- 
 bition, a policy of insurance may be made or changed by parol, 
 and the fact that a policy is written does not prevent its change 
 or enlargempnt or continuance by subsequent parol agreement.'* 
 
 § 745. Representations. — A representation is a statement 
 in regard to a material fact made by the applicant for insurance 
 to the insurer, with reference to a proposed contract of insur- 
 ance. They are not part of the contract, but merely collateral 
 to it. It is sufficient if representations are substantially true, 
 while warranties must be strictly complied with. ^ 
 
 § 746. Re-insurance. — There is no privity betwe3n the one 
 originally insured and the re-insurer, and the liability over of 
 the re-insurer is solely to the re-insured. ^ But where judgment 
 is rendered against the original insurer, and he has contested 
 the suit with the advice or acquiescence and for the benefit of 
 the re-insured, tlie latter will be bound by the judgment, and 
 for the costs and expenses incurred in the defense.'' 
 
 § 747. Warranties, Misrepresentation, Concealment, 
 etc. — Under the provisions of the Georgia code, applicati on for 
 insurance must not only be made in the utmost goo d faith, but 
 the representations contained therein are covenanted to be true. 
 Not that they are warranties so as to vacate the policy, if any 
 of them, whether material or not, are not true; but any variation 
 in them from what is true, whereby the nature or extent or 
 character of the risk is changed, will, if the policy makes them 
 the basis of the contract of assurance, avoid the policy, whether 
 
 1 De Eo V. Cordes, 4 Cal. 117. ' Buford v. N. T. Life Ins. Co., 5 
 
 2 Thomas V. Builders' Mutual Fire Or. 884; Higbee v. Guardian etc. Ins. 
 Ins. Co., 119 Mass. 121; see Cal. Co., 66 Barb. 462. 
 
 Civil Code, sees. 2641, 2642. « Strong v. Phoenix Ins. Co., 62 Mo. 
 
 5 Hayward v. Liverpool and L. Fire 289. 
 
 and Life I. Co., 5 Abb. Pr. (N. S ) 1 42 ; ' Strong v. Phoenix Ins. Co., 62 Mo. 
 
 Breuner v. Insurance Co., 51 Ciil. 101. 289; see Cal. Civil Code, sees. 2646- 
 
 < Westchester Fire Ins. Co. v. Earle, 2649. 
 33 Mich. 143. 
 
§ 750. INSURANCE. 343 
 
 they are or are not willfully and fraudulently made.^ But a 
 provision in a policy of insurance, that the application for in- 
 surance shall be considered as a warrant, and that if the prop- 
 erty insured is overvalued in it, the policy shall be void, ap- 
 plies only where the statement as to value is intentionally false. 
 So also where the policy provides that all fraud, or attempt at 
 fraud, by false swearing as to loss, shall cause a forfeiture of 
 all claim under the policj', a wrongful or intentional false swear- 
 ing is intended, and not a mere discrepancy or innocent error. 
 And whether fraud is to be inferred from an excessive statement 
 of the value of the property in the original application, or of 
 the loss in the preliminary proofs, is a question of fact ; and in 
 neither case does a legal presumption of fraud arise, nor is the 
 burden cast upon the assured to establish that his statement 
 was not intentionally false. ^ 
 
 § 748. Wagering Policies. — Policies executed by way of 
 gaming or wagering, or where the policy stipulates for the pay- 
 ment of the loss whether the insured has any interest or not, or 
 that the policy shall be received as proof of such interest, are 
 void. 3 Insurance of lottery, or lottery prize, is unauthorized.* 
 
 § 749. Allegation of Renewal. 
 
 Form No. 178. 
 
 That on the day of , 18..., at , the de- 
 fendants,, by their agents duly authorized thereto, in considera- 
 tion of dollars to them paid by the plaintiff, executed 
 
 and delivered to this plaintiff their certificate of renewal of said 
 policy, of which the following is a copy annexed, as a part of 
 this complaint. 
 
 § 750. By Insured, on Agreement to Insure, Policy not 
 Delivered. 
 
 Form No. 179. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. [Incorporation of defendants, as in Foi'm No. 174.] 
 
 II. That on and before the day of , 18..., 
 
 the plaintiff applied to A. B., who was then and there the duly 
 authorized agent for the defendants, for insurance against loss 
 or damage by fire upon a certain stock of merchandise, the 
 property of said plaintiff, consisting of [describe it], contained 
 in a building occupied by the plaintiff for [state what] , in said 
 
 1 Southern Life Ins. Co. v. Wilkin- ^ Helbing v. Svea Ins. Co., 54 Cal. 
 
 son, 53 G-a. 535; see also Cal. Civil 1C6. 
 
 Code, sec. 2561 et seq. ; also see. 2603 « Cal. Civil Code, sec. 2558. 
 
 et seq. ; Highbee v. Guardian etc. Ins. * Cal. Civil Code, sec. 2532. 
 Co., 66 Barb. 462. 
 
314 FOEMS OF COMPLAINTS. § 750. 
 
 town of And the defendants, by their said agent, then 
 
 and there agreed to become an insurer to the plaintiff on the 
 
 said stock for three months from that day, for dollars. 
 
 at a premium of , and that the said defendants would 
 
 execute and deliver to the plaintiff a policy of insurance in the 
 
 usual form of policies issued by them, for the sum of 
 
 dollars, for the term of three months from the said day. 
 
 III. That the plaintiff then and there paid to the defendant 
 said premium, to wit, dollars. 
 
 IV. That it was then and there agreed between the plaintiff 
 and the defendants, that the said insurance should be binding 
 on them for the term of three months from the time of the 
 
 receipt of the said premium, for the sum of dollars; 
 
 and the said defendants then and there, in consideration of the 
 premises, agreed with the plaintiff, to execute and deliver to 
 him, in a reasonable and convenient time, a policy, in the usual 
 form of policies issued by said company, insuring the said stock 
 
 of goods in the sum of dollars against loss and damage 
 
 by fire, the insurance to commence at the time of the receipt of 
 the said preniium, and to continue for the said term of thi'ee 
 months. 
 
 V. That the defendants, by a policy of insurance issued in 
 their usual form, among other things did promise and agree 
 [here set out the legal effect of the contemplated policy]. 
 
 VI. That after the insurance so made, and after the said 
 promise to execute and deliver a policy in conformity thereto, 
 and within the said term of three months, for which the said 
 
 plaintiff was so insured, to wit, on the day of , 
 
 18..., the said stock of merchandise in the said building mentioned 
 and intended to be so insured, was totally destroyed by fire. 
 
 VII. That the plaintiff duly fulfilled all the conditions of said 
 
 agreement and insurance on his part, and that more than 
 
 days [or otherwise, as required by the .policy] before the com- 
 mencement of this action, to wit, on the day of 
 
 18..., at , he gave to the defendants due notice and 
 
 proof of the loss as aforesaid, and demanded payment of the 
 said sum of dollars. 
 
 VIII. That the defendant has not paid the same, nor any 
 part thereof. 
 
 [Demand or Judgment.] * 
 
 ' Of the proper form of action to re- JEtna Ins. Co., 43 Barb. 851. For a 
 cover on an executory agreement to form of complaint, see Rockwell v. 
 issue an insurance policy, see Post v. Hartford Fire Ins. Co., 4 Abb. Pr. 179. 
 
§ 753. INSURANCE. 345 
 
 § 751. Action by Assignee. —In an action on a policy of 
 fire insurance, tlie interest of the assignee must be stated in 
 the complaint, to make out a cause of action.^ Where a com- 
 plaint by the assignee of a fire policy averred an assurance of 
 assignor on his building, that the policy was duly assigned with 
 the consent of the insurers, that the plaintiff, at the time of the 
 loss, was the lawful owner of the policy and of the claim against 
 the insurers by reason of the policy and loss, and he made a 
 demand of payment accompanied with the written assent of the 
 person to whom the original assured had, after the loss, assigned 
 all his property, it was held bad on general demurrer, as not 
 showing any interest of the plaintiff or his assignor in the sub- 
 ject insured.^ The assignee of a policj^ of insurance takes it 
 subject to all equities.^ An assignment of a policy of insurance 
 upon a stock of goods, effected in the name of the assignor, 
 made as collateral security for a debt, with an agreement that 
 in case of loss by fire, -the assignee shall collect the money and 
 pay the debt, attaches in equity as a lien upon the amount due 
 on the policy to the extent of the debt, as soon as the loss 
 occurs.^ 
 
 § 752. Notice of Loss. — If the notice alleged states the 
 twenty-fourth of May, the plaintiffs were not precluded from 
 showing on the trial that the proper notice was given on the 
 morning of the twenty-first.' 
 
 § 753. By Executor on Life Policy. 
 
 Fonn No. 180. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. [Allege incorporation as in form No. 174.] 
 
 II. T^hat on the day of , 18.., a* 
 
 the defendant, in consideration of the [annual, semi-annual, or 
 
 otherwise] payment by one A. B. to it, of dollars, 
 
 made their policy of insurance in writing, of which a copy is 
 hereto annexed, marked "Exhibit A," and made part of this 
 complaint, and thereby insured the life of said A. B. in the sum 
 of dollars. 
 
 TTT . That on the day of , 18.., at , 
 
 the said A. B. died. 
 
 1 Grano-er v. Howard F. Ins. Co., 5 * Hovey v, American Mutual Insur- 
 
 Wend 202. *"''^ Company, 2 Duer, 554. As to 
 
 » Fowler V.N. T. Indem. Ins. Co., when the insiarer is exonerated by 
 
 22 N Y 422. failure to give notice of loss, prelimi- 
 
 « Winslow V. Nason-, 113 Mass. 414. nary proofs, etc., .see California Civil 
 
 ♦ Bibend V. L. F. and U Ins. Co., Code, sees. 2B33-2637. 
 80 Cal. 78. 
 
S46 FORMS OP COMPLAINTS. § 754. 
 
 IV. That on the daj'of , 18..., at , 
 
 said A. B. left a will, by which the plaintiff was appointed the 
 sole executor thereof [or this plaintiff and C. D. were appointed 
 executors thereof]. 
 
 V. That on the day of , 18..., said will was 
 
 duly proved and admitted to probate in the probate court of the 
 
 county of , and letters testamentary thereupon were 
 
 thereafter issued and granted to the plaintiff, as sole executor 
 [or otherwise] , by the probate court of said county ; and this 
 plaintiff thereupon duly qualified as such executor, and entered 
 upon the discharge of the duties of his said oflSce. 
 
 VI. That on the day of , 18..., the plaintiff 
 
 furnished the defendant with proof of the death of the said 
 A. B., and the said A. B. and the plaintiff each duly performed 
 all the conditions of said insurance on their part. 
 
 VII. That the defendant has not paid the same, and the said 
 
 sum is now due thereon from the defendants to the plaintiff, as 
 
 such executor. 
 
 [Dbmand ov Judgment.] 
 
 § 754. Application. — A paper attached to the application, 
 with the heading " Questions to be answered by the medical 
 examiner for the company," is not to be deemed the applica- 
 tion or a part of the application ; and that statements made by 
 the applicant to the medical examiner, in answer to the ques- 
 tions in that paper, were not. warranties within the meaning of 
 the policy.^ Incorrect statements by the applicant for a policy 
 of life insurance, in answer to a question by the examining 
 physician, will not be deemed such a misrepresentation as to 
 avoid the policy when it appears that the physician's report as 
 to the applicant's condition, and not the statements of ,the ap- 
 plicant himself, was relied upon by the company.' 
 
 § 755. Conflict of Laws. — Where a policy of life insur- 
 ance was made by a New York company, with a condition that 
 it should not become valid until countersigned by their agent 
 at Chicago, and the premium paid, and the condition complied 
 with in Chicago, it was held that the law of Illinois as to assign- 
 ment of the policy prevailed, and that such an assignment by a 
 married woman by way of pledge was good in equity. ^ 
 
 § 756. Construction of Instruments and Statutes. — A 
 policy of insurance on the life of a husband was made payable 
 
 ^Higbee v. Guardian etc. Ins. Co., and what constitutes a warranty, see 
 
 66 Barb. 462. same case. 
 
 "Id. As to when the application .^Pomeroy V.Manhattan Life Ins. 
 
 will be held to be a part of the policy, Co., 40 111. 898. 
 
§ 758. INSURANCE. 347 
 
 to the wife, her executors, administrators or assigns, for her 
 sole use, and in case of her death before his, to be paid to her 
 children. A statute authorized a husband to effect such an in- 
 surance, and protected it from his creditors. The wife assigned 
 , the policy for value, and died before her husband. In an ac- 
 tion thereon, it was held that the policy was payable to the 
 children, not to the assignee, in the event which had happened.^ 
 
 § 757. Suicide. — Life insurance policies of the present day 
 generally contain a provision, that in case the insured should 
 "die by his own hand or act, the policy shall be void." If 
 death occurs in such a manner, it is held that this proviso would 
 not prevent a recovery if the insured killed himself in a fit of 
 insanity, which overpowered his consciousness, reason, and will ; 
 that it is incumbent upon the plaintiff to show that the insured 
 was insane when the act of self-destruction was committed ; 
 proof merely that he was insane at times would not be sufficient ; 
 that insanity could not be inferred from the fact that the in- 
 sured destroyed his own life.^ In an action on a policy con- 
 taining such a provision, papers offered for the purpose of show- 
 ing compliance with the requirements of the policy as to pre- 
 liminary proof of death are prima facie evidence against the 
 insured of the facts recited therein, including the manner of the 
 insured's death, even though such recital show a death by 
 suicide.3 
 
 § 758. By a Wife, Partner, or Creditor of the Insured. 
 
 Farm No. 181. 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18 , at 
 
 the defendant, in consideration of the [annual, or otherwise] 
 
 payment to it of dollars, executed to the plaintiff a 
 
 policy of insurance on the life of [her husband] A. B., of which a 
 copy is hereto annexed, and made a part of this complaint, and 
 marked "Exhibit A." 
 
 II. That the plaintiff had a valuable interest in the life of the 
 said A. B. at the time of his death, and at the time of effecting the 
 said insurance [state nature of interest]. 
 
 III. That on the day of 18 , at > 
 
 the said A. B. died. 
 
 1 Connecticut Mut. Life Ins. Co. v. 103 ; Hatl,away'| Adm'r v. Nat. Life 
 
 'r^^^^^'^-l.s. CO. V. ^^ W^-^2- i^ual Ins. Co., 8 
 Peters, 42 Md. 414; see Merritt v. West Coast Eep. 368. 
 Cotton States Life Ins. Co., 55 Ga. 
 
348 FOEMS OB" COMPLAINTS. § 759. 
 
 rv. That on the day of , 18.., the plaintiff 
 
 furnished the defendant with proof of the death of the said A. 
 B., and otherwise performed all the conditions of the said policy 
 on [her] part. 
 
 V. That the defendant has not paid the said sum, nor any part . 
 
 thereof. 
 
 [Demand of Judombnt.] 
 [Annex a copy of policy, marked " Exhibit A."] 
 
 § 759. By Assignee in Trust for Wife of Insured. 
 
 Form No. 182. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. [Allege incorporation as in form No. 174.] 
 
 II. [Same as in form No. 180. j 
 
 III. That on the day of , 18.., the said A. B. 
 
 [with the written consent of the defendants, or othenrise, ac- 
 cording to the terms of the policy], assigned said policy of in- 
 surance to this plaintiff, in trust for E. B. , his wife. 
 
 IV. That up to the time of the death of A. B., all premiums 
 accrued upon said policy were fully paid. 
 
 V. That on the day of , 18.., at , said 
 
 A. B. died. 
 
 VI. That said A. B. and the plaintiff each performed all the 
 conditions of said insurance on their part, and the plaintiff, 
 
 more than days before the commencement of this action, 
 
 to wit, on the day of , 18.., at , gave 
 
 to the defendants notice and proof of the death of said A. B. 
 
 as aforesaid, and demanded payment of the said sum of 
 
 dollars. 
 
 VII. That the defendant has not paid the same, nor any" part 
 thereof. i 
 
 [Demand op Judgment.] 
 
 § 760. Assigned. — That a policy was duly assigned ana 
 transferred, indicates that the assignment was by a sealed in- 
 strument, and a consideration is inferred.^ In California all 
 written instruments import a consideration. ^ 
 
 § 761. Accidental Insurance— Insured against Insurer. 
 
 Form No. 183. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That defendant is a corporation, organized under the laws 
 
 of the state of New York. 
 
 1 Fowler v. N. T. Indera. Ins. Co., 23 Barb. 143 ; Morange v. Mudge, 6 
 Abb. Pr. 248. ^ ^ 
 
 » Civil Code, sec. 1614. 
 
§ 761. INSUKANCE. 349 
 
 II. That on the day of , 18 .., at the city of San 
 
 Francisco, and state of California, in consideration of the pay- 
 
 raent by plaintiff to defendant of a premium of dollars 
 
 [gold coin], defendant made and delivered to plaintiff its policy 
 
 of insurance, in writing, upon the life of , of the city 
 
 and county of San Francisco, and state of California, a copy of 
 •which is annexed to this complaint and marked " Exhibit A," 
 and is made part thereof ; and thereby insured the life of said 
 
 , in the sum of dollars [gold coin], against 
 
 loss of life by personal injury caused by accident, as stated in 
 said policy, for the term of [six] months from and after the 
 day of , 18 ... 
 
 in. That afterwards, to wit, on the .... day of , 
 
 18.. , for a valuable consideration, the defendant made and 
 
 delivered to plaintiff its written consent that said 
 
 might pursue the vocation of supercargo on a sailing vessel 
 during the continuance of the said policy of insurance, without 
 prejudice to said policy, a copy of which consent is hereto an- 
 nexed as a part of this complaint, and marked " Exhibit B." 
 
 IV. That between the day of , 18.., and the 
 
 day of , 18..., and as plaintiff is informed and 
 
 believes and avers, on or about , 18.., and while said 
 
 insurance policy and said written consent were in force, said 
 
 received a personal injury which caused his death 
 
 within three months thereafter, and that said injury was caused 
 by an accident within the meaning of said policy and insurance, 
 and the conditions and agreements therein contained, to wit, 
 
 by the destruction and loss of a certain schooner called , 
 
 while said , was on board of her as supercargo, and not 
 
 otherwise, by a storm at sea, or other perils thereof, while she 
 was on a trading voyage from the poi't of San Francisco, in said 
 state, to the Aleutian Islands, in the North Pacific ocean, and 
 back to said San Francisco, within the meaning of said policy and 
 
 written consent, and between the said day of and 
 
 said day of 
 
 V. That plaintiff at the times of making and delivery of said 
 policy and written consent, as aforesaid, was the wife of said 
 , and as such had a valuable interest in his life. 
 
 VI. That said and this plaintiff each fulfilled all the 
 
 conditions and agreements of said policy of insurance on their 
 part, and the plaintiff more than sixty days before the com- 
 mencement of this action, to wit, on or about the day of 
 
 , o-ave to the defendants due notice and proof of the 
 
350 FOKMS OF COMPLAINTS. § 762. 
 
 death of said , as aforesaid, and demanded payment 
 
 of the sum of dollars [gold coin], but no part thereof 
 
 has been paid. 
 
 VII. That the defendant has not paid the same, nor any part 
 thereof. 
 
 [DbMAND or JUDOMEXT.] 
 
 [Annex copy of policy, marked "Exhibit A."] 
 
 § 762. Marine Insurance — On an Open Policy. 
 
 Form No. 184. 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges: 
 
 I. [Allege incorporation as in form No. 174.] 
 
 II. That the plaintiff was the owner of [or had an interest in] 
 the ship [name of ship] , at the time of its insurance and loss, as 
 hereinafter mentioned. 
 
 III. That on the day of , 18..., at , 
 
 the defendant, in consideration of dollars to it paid 
 
 [or which the plaintiff then promised to pay] , executed to him a 
 policy of insurance upon the said ship, a copy of which is 
 hereto annexed and made part hereof [or whereby it promised 
 
 to pay to the plaintiff, within days after proof of loss 
 
 and interest, all loss and damage accruing to him by reason of 
 the destruction or injury of the said ship, during its next voy- 
 age from to , whether by perils of the sea, or 
 
 by fire, or by other cause therein mentioned, not exceedincr 
 dollars]. 
 
 IV. That the said vessel, while proceeding on the voyage men- 
 tioned in the said policy, was, on the daj'of , 18..., 
 
 totally lost by the perils of the sea [or otherwise] . 
 
 V. The plaintiff's loss thereby was dollars. 
 
 VI. That on the day of , 18..., he fur- 
 nished the defendant with proof of his loss and interest, and 
 otherwise performed all the conditions of the said policy on his 
 part. 
 
 VII. That the defendant has not paid the said loss, nor any 
 part thereof. 
 
 [Demand or Judoment.]1 
 [Annex copy of policy.] 
 
 § 763. Abandonment.— It is not necessary, in an action of 
 covenant on a policy, that the declaration s'lould aver that the 
 plaintiff had abandoned to the underwriters. ^ 
 
 1 For a sufficient form of complaint, Cranch, 100; and see Columbian Ins 
 
 consult P^e V. Fry, 2 Bos. & Pul. Co. v. C«tlett, 12 Wheat. 383; Snow 
 
 240; Crawford v. Hunter, 8 T. R. 23. v. Union Mut. etc. Ins. Co. 119 "' 
 
 ' Hodgson V. Marine Ins. Co., 5 692. ' 
 
§ 765. INSUKANCE. 351 
 
 § 764. Insurance by Agent. — Where the agent of an in- 
 surance company -was fully authorized to make insurance of 
 vessels, and had, in fact, on a previous occasion, insured the 
 same vessel for the same applicant, and in the instance under 
 consideration actually delivered to him, on receipt of the pre- 
 mium note, a policy duly executed by the officers of the com- 
 pany, filled up and countersigned by himself under his general 
 authority, and having every element of a perfect and valid con- 
 tract, the fact that after the execution and delivery of the policy 
 the party insured signed a memorandum thus: " The insurance 
 on this application to take effect when approved by E. P. D., 
 general agent." etc., does not make the previous transaction a 
 nullity until approved.^ And though the general agent sent 
 back the application directing the agent who delivered the 
 policy to return to insured his premium note and cancel the 
 poller, the party insured was held entitled to recover for a loss, 
 the agent having neither returned the note nor canceled the 
 policy.'' 
 
 § 765. Interest of Insured — Allegation of. — ^The interest 
 of the insured is one of the facts constituting the cause of 
 action,^ and the averment that he gave the defendant due proof 
 of loss and of interest, can not be construed as an averment that 
 the plaintiff had an insurable interest.* It is the safest practice 
 to aver the interest, when it does not distinctly appear in the 
 policy as set forth or annexed. ^ Interest may be more briefly 
 alleged by inserting after the description of the object insured, 
 "then and until the loss hereinafter mentioned, the property of 
 this plaintiff." It need not be averred that the plaintiff was 
 interested at the time of making the policy. In marine insur- 
 ance an interest at the commencement of the risk is sufflcient,^ 
 or that the plaintiff was interested in the vessel at the time of 
 the loss, to the extent of the policy.'' The nature or extent of 
 the trust upon which the interest was held need not be set forth, 
 they being matters of evidence. ^ Where the property is ad- 
 mitted to have been owned by the plaintiff when the policy was 
 issued, the burden of proof is upon the defendants to show a 
 subsequent alienation of the property.^ 
 
 1 Ins. Co. V. Webster, 6 Wall. U. S. « 2 Greenl. on JSv. 381 ; 2 Phil, on 
 
 19q Ins. 614. , „ „ 
 
 •Id. ; Amer. Law Reg., July, 1868. ' Henshaw v. Mat. Safety Ins. Co., 2 
 
 » 2 Greenl. Ev., sees. 376, 37&-381. Blatchf. 99. 
 
 * Williams v. Ins. Co. of North "Id. t ^ i o 
 
 AmS.THow. Pr. 365. ^ » Orrell v. Hampden Ins. Co., 13 
 
 5 Phil, on Ifls. 612 ; Ellis on Fire Ins. Gray, 431. 
 175. 
 
S52 FORMS OP COMPLAINTS. § 766. 
 
 § 766. Mutuality of Agreement.— ^In an action on an 
 open policy, providing that the company shall be liable for such 
 sums as shall be specified by application, and mutually agreed 
 upon and indorsed upon the policy, it is necessary to aver that 
 an amount sought to be recovered had been mutually agreed 
 upon and indorsed upon the policy.^ 
 
 § 767. Nature of the Loss. — The complaint must show a 
 loss of a nature intended to be covered by the insurance ;^ but 
 not to negative possible defenses. And the loss of a vessel in- 
 sured should be deemed effectual and certain, from the time 
 the vessel was so injured that her destruction became inevitable, 
 and the claim for damages must be deemed to have then attached 
 although she was kept afloat some time after such injury.' 
 
 § 768. Parties. — Those who had an interest in the vessel 
 insured, at the time of the fatal injury, may recover upon the 
 policy, notwithstanding the fact of their having subsequently, 
 and before the sinking of the vessel, made an assignment of 
 their interest to others, who are not parties to the action.* 
 Where the policy is on account of whom it may concern, the 
 person to whom it is issued may sue, on behalf of all the owners, 
 in his own name, as a trustee of an express trust. ^ If such 
 person die, his personal representative may sue.* Where sev- 
 eral insurance companies join in one policy, in which the several 
 liability of each is set forth, they may be joined as defendants in 
 an action to recover the loss.'' 
 
 § 769. Foreignlnsnrance Company's Compliance with 
 Statutes. — In an action against a fpreign insurance company 
 it is not necessary to allege or show that the laws of the state 
 in which the contract was made, authorizing the company to do 
 business therein, had been complied with.^ But in an action 
 by such company such compliance must be shown. * 
 
 1 Crane v. Evansville Ins. Co., 13 Co.,93U.S. 527; Waring v. Indemnity 
 
 Xnd. 446. Ins. Co., 45 N. Y.. 606 ; Strohn v. Hart- 
 
 2Ellia on Fire Ins. 176; Phil, on ford Ins. Co.. 33 Wis. 648 ; Fleming v. 
 
 Ins. 618. Ins. Co., 12 Pa. St. 391 ; Williams v. 
 
 ' Duncan v. Great Western Ins. Co., Ocean Ins. Co., 2 Met. 803 ; Knight v. 
 
 5 Abb. Pr., N. S., 173 ; Pardo v. Os- Eiireki etc. Ins. Co., 26 Ohio St. 664. 
 
 good, 6 Bob. 348; reversing S. C, 2 « Sleeper v. Union Ins. Co., 65 Me. 
 
 Abb.Pr., N.S., 365. 385. 
 
 *Duncanv. Great Western Ins. Co., ' Bernero v. Ins. Cos., 8 West 
 
 5 Abb. Pr., N. S., 173. Coast Rep. 292; Ins. Co. v. Boykin, 
 
 5 Illinois Fire Ins. Co. v. Stanton, 57 12 Wall. 433. 
 111. 354; Walsh V. Washington Mar. * Germania P. Insurance Co. v. Cur- 
 Ins. Co., 32 N.Y. 427 ; Pitney v. Glen's ran, 8 Kan. 9 ; Weber v. Union M. L. 
 Falls Ins. Co., 65 Id. 6 ; Sturm v. Atlan- Ins. Co., 5 Mo. App. 61 ; Pitzsimmons 
 tic Mat. Ins. Co., 63 Id. 77 ; Protection v. City P. Ins. Co., 18 Wis. 234. 
 Tns. Co. V. Wilson, 6 Ohio St. 554; 'Jones v. Smith, 8 Gray, 500; 
 Horaelns.Co. V.Baltimore Warehouse Washington Co. M. Ins. Co. v. Hast- 
 
§ 773. INSUEANCE. 353 
 
 § 770. Attaching Policy and Application. — Where, by 
 the express terms of the policy, the proposals, answers, and 
 declarations made by the applicant are made a part of the pol- 
 icy, they should be stated in the complaint in an action founded 
 on the policy.^ But such application need not be attached 
 when not made a condition of the policy.^ 
 
 § 771. Premium, how Alleged. — ^The complaint must aver 
 payment, or a liability to pay the premium.' 
 
 § 772. Risks. — Capture, though not enumerated, is one of 
 the risks where the enumeration of risks was in the English 
 form, and upon a loss the company was liable.* 
 
 § 773. On Cargo Lost by Fire — Valued Policy. 
 
 Fm-m No. 185. 
 
 [TlTT.K.] 
 
 The plaintiff complains, and alleges : 
 I. [Allege incorporation, as in form No. 174.] 
 n. The plaintiff was the owner of [or had an interest in] 
 [two hundred barrels of flour], shipped on board the vessel 
 
 called the A. D., from to , at the time of the 
 
 insurance and loss hereinafter mentioned. 
 
 III. That on the day of , at , the 
 
 defendant, in consideration of dollars which the plaintiff 
 
 then paid, executed to him a policy of insurance upon the 
 said goods, a copy of which is hereto annexed, marked "Ex- 
 hibit A," and made part of this complaint [or whereby it prom- 
 ises to pay to the plaintiff dollars in case of the total 
 
 loss, by fire or other causes mentioned, of the said goods, be- 
 fore their landing at or, in case of pai-tial damage, 
 
 such loss as the plaintiff might sustain thereby, provided the 
 
 same should not exceed- per centum of the whole value of 
 
 the goods]. 
 
 IV. That on the day of , 18... at , 
 
 while proceeding on the voyage mentioned in the said pohcy, 
 the said goods were totally destroyed by fire. 
 
 V. That the plaintiff's loss thereby was dollars. 
 
 ings, 2 Allen, 398 ; Washington M. Gujirdian Mut. L. Ins. Co. v. Hogan, 
 
 Ins. Co. V. Chamberlain, 16 Gray, 80 111. 35. 
 
 jg5_ 8 2 Grepnl. Bv., sees. 876-381 ; Fhil. 
 
 iBidwellv. Connecticut M.L. Ins. on Ins. 611. 
 Co., 3 Sawyer, 261 ; Byers v. Farmers' * The Merchants' Ins. Co. v. Ed- 
 Ins Co . 35 Ohio St. 606 ; Bobbint v. mond etc., 17 Gratt. (Va.) 138. As to 
 L &L. &G. Ins.Co., 66N.C. 70. the terms of an insurance policy, 
 
 2 Union Ins. Co. v. McGookey, 33 whether it be by a marine or fire in- 
 
 OhioSt555; Mutual Ben. Ins. Co. surance, see Eureka Ins. Co. v. Kob- 
 
 V. Cannon, 48 Ind. 264; Jacobs v. inson 56 Pa. St. 256 ; American H. 
 
 Nat. L. Ins. Co., 1 McArthur, 632; Ins. Co. v. Patterson, 28 Ind. 17. 
 
 ESTBE, VOL. 1—23. 
 
3u4 POKMS OF COMPLAINTS. § 774. 
 
 VI. That on the •'. day of , 18..., he furnished 
 
 the defendant with proof of his loss and interest, and other- 
 wise performed all the conditions of the said policy on his part. 
 
 VII. That the defendant has not paid the said loss, nor any 
 
 part thereof. 
 
 [Demand of JimGMENT.] 
 
 [Annex copy of policy, marked "Exhibit A."]' 
 § 774. Interest, how Alleged. — In a declaration upon a 
 policy of insurance on the cargo of a canal boat, it was held a 
 sufficient averment of the plaintiff's interest to allege that the 
 insurance was " for the account and benefit of the plaintiff as a 
 common carrier, for hire," etc. ; and a sufficient averment of 
 the liability incurred, to state that an amount of goods exceed- 
 ing that mentioned in the policy was intrusted to him as a 
 carrier, and that they were consumed by fire, and the plaintiff 
 thereby became liable to pay to the respective owners a greater 
 sum than that insured. It is not necessary to aver actual pay- 
 ment.® If the insurance was upon the goods to be laden, state 
 that they were laden, and their loss.^ 
 § 775. Valued Policy — Allegation of. 
 
 Form No. 186. 
 That on, etc., at, etc., in consideration of the premium of 
 
 dollars, then and there paid to them by the plaintiff, the 
 
 defendants, by their agents duly authorized thereto, made their 
 policy of insurance in writing, of which a copy is annexed, 
 
 marked "Exhibit A," and thereby insured for him 
 
 dollars upon the ship , then lying in the harbor of 
 
 , for a voyage from to , against the 
 
 perils of the seas, and other perils in the policy mentioned. 
 § 776. On Freight— Valued Policy. 
 Form No. 187. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. [Allege incorporation as in form No. 174.] 
 
 II. That he had an interest in the freight to be earned by the 
 
 ship [Flying Mist], on her voyage from to , 
 
 at the time of the insurance and loss hereinafter mentioned, 
 and that a large quantity of goods was shipped upon freight in 
 her at that time. 
 
 III. That on the day of , 18..., at , 
 
 1 As to manner of pleading a want Co., 2 Sandf. 490 ; and see De Forest 
 
 of seaworthiness to an action on a v. Fulton Fire Ins. Co., 1 Hall, 94. 
 time policy, see Jones v. The Insur- ^ Marsh on Ins. fSd ed.1 244-6, 278, 
 
 ance Co., 2 Wall Jr. C. Ct. 278. 724. 
 
 ' Van Natta v. Mutual Security Ins. 
 
§ 779. INSUKANCE. 355 
 
 the defendant, in consideration of dollars to it paid, 
 
 executed to the plaintiff- a policy of insurance upon the said 
 freight, a copy of which is hereto annexed, marked " Exhibit A," 
 and made part of this complaint, and thereby insured for him 
 
 dollars upon certain goods then laden upon the ship, for 
 
 avoyagefrom to , against the perils of the sea, 
 
 and other perils in the policy mentioned. 
 
 IV. That the said vessel, while proceeding upon the voyage 
 mentioned in the said policy [or during said voyage, and while 
 
 lying in the port of ], was [or state said goods, the freight 
 
 whereof was insured, were], on the day of , 
 
 18 ..., totally lost by [the perils of the sea]. 
 
 V. That the plaintiff has not received any freight from the said 
 vessel, nor did she earn any on the said voyage, by reason of her 
 loss as aforesaid. * 
 
 VI. That the plaintiff's loss thereby was dollars. 
 
 VII. That on the day of , 18 ..., he fur- 
 nished the defendant with proof of his loss and interest, and 
 otherwise performed all the conditions of the said policy on his 
 part. 
 
 VIII. That the defendant had not paid the said loss. 
 
 [Demamd of Jtjdsment.] 
 [Annex copy of policy, marked " Exhibit A."] 
 
 § 777. Averment of Loss by Collision. 
 
 Form No. 188. 
 
 That on the day of , 18 ..., while the said [ship], 
 
 with the said goods on board, was proceeding on her said voyage, 
 and before her arrival at her said port of destination in the said 
 policy mentioned, another vessel, with great force and violence, 
 was carried against and run foul of the said [ship] and the said 
 [ship] thereby was, with the said goods, sunk and [totally] 
 lost. 
 
 § 778. Averment of Waiver of a Condition. 
 
 Form No. 189. 
 
 That afterwards, and on the day of , 18 ..., a1 
 
 , the defendants, by their agents duly authorized thereto 
 
 waived the condition of the said policy by which [designating 
 it], and released and discharged the plaintiffs from the perform- 
 ance thereof [or, and consented that the plaintiffs should, etc., 
 according to the facts] . 
 
 § 779. For a Partial Loss and Contribution. 
 
 Form No. 190. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
356 rOKMS OF COMPLAINTS. § 780. 
 
 I. [Allege incorporation as in form No. 174.] 
 
 II. That on the day of , 18..., at in 
 
 consideration of the premium of dollars, then and 
 
 there paid by the plaintiff to the defendant, the defendants by 
 their agents duly anthcrized thereto, made their policy of in- 
 surance in writing, of which a copy is annexed as a part of this 
 complaint, and marked "Exhibit A," and thereby insured for 
 
 him dollars upon certain goods then and there laden 
 
 upon the ship , for a voyage from to , 
 
 against the perils of the sea [or mention the perils which occa- 
 sioned the loss] . 
 
 III. That said ship did, on the day of , sail on 
 
 the said voyage, and while they proceeded thereon was, by the per- 
 ils of the seas, dismasted, and otherwise damaged in her hull, 
 rigging, and appurtenances; insomuch that it was necessary for 
 the preservation of said ship and her cargo, to throw over a part 
 of said cargo [or a part of her rigging and furniture] , and the 
 same was accordingly thrown over for that purpose. 
 
 IV. That in consequence thereof, the plaintiff was obliged to 
 
 expend dollars in repairing said ship, at , and is 
 
 also liable to pay dollars as a contribution to and for the 
 
 loss occasioned by said throwing over of part of said cargo. 
 
 v. That on the day of , 18..., at , 
 
 he gave to the defendant due notice and proof of the loss as 
 aforesaid, and otherwise duly fulfilled all the conditions of said 
 policy of insurance on his part. 
 
 VI. That no part of the same has been paid by the de- 
 fendant. 
 
 [Demand oif Judsmknt.] 
 Annex copy of policy, marked " Exhibit A." 
 
 § 780. Allegation for a Particular Average Loss. 
 
 Form No. 191. 
 
 That on the day of , while on the high seas, the 
 
 sea-water broke into the said ship, and damaged the said [flour] 
 to the amount of dollars. 
 
 § 781. Contribution.— The owner of a vessel is not entitled 
 to contribution on general average, for damage sustained, or ex- 
 pense incurred, by reason of the perils of the seas, if the vessel 
 was unseaworthy when she left port, although from a latent 
 defect. 1 
 
 § 782. Jettison. — A vessel fell in with a ship, in a sinking 
 condition. To save the lives of the ship's passengers and crew, 
 
 ' Wilson V. Crosa, 33 Oal. 60. 
 
§ 785. JUDGJ.1ENTS. 357 
 
 the master of the vessel consented to receive them ; but as it 
 was necessary to throw overboard part of his« cargo to make 
 room for them, he began to do so before any of them came on 
 board, and continued it while they were coming on board, until 
 room enough was made. The owner of the vessel sued the in- 
 surers for a contribution to general average, for the above jetti- 
 son ; it was held that he could not recover.^ 
 
 § 783. Particular Average.— Furniture was insured " free 
 of particular average " (which was taken to mean " against total 
 loss only"). During the voyage, the vessel was wrecked and 
 condemned, and said goods were transhipped, parts of sets into 
 one vessel, and parts into another. One of said vessels was lost, 
 with its cargo, and the other arrived safely; it was held that 
 the insurers were liable for the goods lost.* 
 
 CHAPTER VII. 
 
 ON JUDGMENTS. 
 § 784. General Form. 
 
 Form No. 193. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., in the superior 
 
 court of the county of , in this state, a judgment was 
 
 duly given and made by said court in favor of this plaintiff, and 
 against the defendant herein, in an action in said court last 
 above-named pending, wherein this plaintiff was plaintiff, and 
 
 said defendant was defendant, for the sum of dollars 
 
 [if the judgment provided for a special rate of interest, add] , 
 which said judgment bears interest from the date thereof at 
 per centum per annum. 
 
 II. That said judgment remains wholly unpaid.^ 
 
 [Demand or Judgmbnt.] 
 
 § 785. Action Lies on Judgment or Decree.— Where a 
 
 court of competent jurisdiction has adjudicated a certain sum 
 
 to be due from one person to another, a legal obligation arises 
 
 to pay that sum, on which an action of debt to enforce the 
 
 iDabney v. New England Mutual mestic court, or on a judgment of a 
 
 Ins Co 14 Allen (Mass.), 300. circuit court of the United States, for 
 
 2 Pierce v. Columbia Ins. Co., 14 the jurisdiction of such courts is pre- 
 AUen (Mass.), 320, sumed : Bement v. Wisner, 1 Code E 
 
 3 The above form of complaint is (N. S.) 143; Griawold v. Sedgwick, 1 
 sufficient on a judgment of any do- Wend. 126. 
 
S58 FOKMS OP COMPLAINTS. § 786. 
 
 judgment maybe maintained. It is in this way that judgments 
 of foreign courts ^re enforced, and the rule applies equally whether 
 they be courts of record or not.^ The same rule prevails in the 
 United States, where such action has been maintained in one state 
 on a judgment rendered by a justice of the peace in another.^ 
 In Virginia, debt was maintained upon a judgment obtained in 
 a court, the office of which had been consumed by fire, and the 
 record of the judgment wholly destroyed. ^ An action lies upon 
 an unpaid judgment, although the execution has not been re- 
 turned.* It is not necessary to allege an unsuccessful effort to 
 collect the judgment.^ It was formerly doubted whether an 
 action could be maintained upon a decree for the reason that the 
 plaintiff had no legal right to the money, but only that upon 
 certain views peculiar to a court of equity the payment ought 
 to be made and that no promise could be imjplied from a de- 
 cree.^ It is now established, both in England and the United 
 States, that an action will lie on such a decree.'' Such action 
 lies although the judgment could have an execution issued 
 thereon. 8 
 
 § 786. Against Counties. — A judgment against a county 
 under the act authorizing counties to sue and be sued, has the 
 effect of converting a demand into an audited claim. ^ After such 
 judgment has been obtained the proper mode of enforcing it is 
 by a writ of mandate. An ordinary action on such judgment 
 does not lie.^" 
 
 § 787. Judgment, how Pleaded.— In pleading a judgment 
 or award, it is not necessary to state the facts conferring juris- 
 diction, but such judgment or determination may be stated to 
 have been duly given or made.i^ This applies, however, to 
 judgments of courts of general jurisdiction. In suing on a 
 judgment of a foreign court of inferior jurisdiction, facts must 
 
 1 Williams v. Jones, 13 M. & W. 628. » Sharp v. Contra Costa Co., 34 Cal. 
 
 2 Cole V. Driskell, 1 Blackf. IB. 284. 
 
 « Newcomb v. Drummond, 4 Leigh, « Alden v. Countv of Alameda, 43 
 
 57. Cal. 270. 
 
 * Linton v. Hurley, 114 Mass. 76. " California Code C. P., sec. 456 : 
 
 s King V. Blood. 41 Cal. 314. N. Y. Code, sec. 532 ; Ohio Code, sec. 
 
 » See Carpenter V. Thornton, 2 Barn. 120 ; Wheeler v. Dakin, 12 How. Pr. 
 
 & Aid. 52. 642. It is said, in great measure 
 
 ' Henderson V.Henderson, 51 Eng. oAtifer, in HoUister v. Hollister, 10 Id. 
 Com. L. 288; Pennington v. Grife- 582, that this section does not apply 
 son, 16 How. (U. S.) 76 ; Jreeman on to foreign judgments, and that a gen- 
 Judgment, sees. 432-441. eral averment of jurisdiction would 
 
 8 Brooks V. Todd, 1 Handv, 169; not be sufficient; but in Halstead v. 
 
 Herdley v. Roby, 6 Ohio, 521 ; Jh'ux Black, 17 Abb. Pr. 227, the contrary 
 
 V. Burns. 2 W. L. M. 387; Linton v. is held. 
 Hurley, 114 Mass. 76. 
 
f 790. JUDGMENTS. 359 
 
 be stated showing jurisdiction of the person and the subject- 
 matter.^ In Ohio it was held that this section was not intended 
 to apply to the judgments of .the superior courts of general 
 jurisdiction of that State, or to the judgments of the courts of 
 other States.' But section 120 of the Ohio code refers only to 
 *' pleading a judgment or other determination of a court or officer 
 of special jurisdiction." In Indiana it is held that in a complaint 
 on a judgment of a justice of the peace of another state, the aver- 
 ment that the judgment or decision was duly given or made is 
 •equivalent to an averment that the justice had jurisdiction of the 
 person and subject-matter. ^ 
 
 § 788. The Same — Date of Entry. — Where in an action 
 on a judgment the postea in the record stated that the judge 
 presiding at nisi prius sent up the record of proceedings had 
 before him on the nineteenth day of November, 1855, and it ap- 
 peared that judgment was signed September 26, 1856, it was 
 held that it was properly averred in the complaint that the 
 judgment was recovered on the latter day ; and if this had been 
 an error it was amendable at the trial, and would be disregarded 
 on appeal.* 
 
 § 789. The Same— Appeal.— A judgment unreversed and 
 not suspended, may be enforced.^ But it need not be averred in 
 the complaint that it was unreversed.^ 
 
 § 790. The Same— Pleading in Federal Courts.— A dec- 
 laration is sufficient which avers that " at a general term of the 
 supreme court in equity, for the state of New York," etc. ; being 
 thus averred to be a court of general jurisdiction, no averment 
 ■was necessary that the subject-matter in question was -within 
 its jurisdiction, and the courts of the United States will take 
 notice of the judicial decisions in the several states, in the same 
 manner as the courts of those states.'' Indeed it has become a 
 settled practice in declaring in an action upon a judgment, 
 not as formerly, to set out in the declaration the whole record 
 of the proceedings in the general suit ; but only to allege, gener- 
 .ally, that the plaintiff, by the consideration and judgment of the 
 court, recovered the sum mentioned therein ; the original cause 
 of judgment having passed in rem judicatam.^ 
 
 X McLaughlin v. Nxehols, 13 Abb. ^^ Eaun v.^Reynolds, IS^CaU m. ^_ 
 
 i Memphis Medical College v. New- Ortet 60 Cal. 594 ; Freem. on Judg., 
 . „ TT„„j„ 1R? sees. 432-434. 
 
 ^""•SrK'Craie. 18Ind.l56; Hal- 'Pennington v. Gibson 16 How. 
 
 ^^llk^it'wLtc'o^i 26-i'"Y. m. '^» Bldte v. Wilkins. 1 Pet. 680. 
 
360 POKMS OP COMPLAINTS. § 791. 
 
 § 791. Judgment by Confession. — A judgment creditor, 
 made such by confession of judgment, who seeks to reach 
 money of the judgment debtor in the hands of junior judgment 
 creditors, upon the ground that he has a prior lien on the 
 same, must aver in his complaint that at the time his judgment 
 was rendered, the amount for which it was rendered was unpaid 
 and due.^ 
 
 § 792. Defense of Dismissal. — Where defendant relies in 
 defense upon an agreement under which a former action for the 
 same cause was dismissed, settled, or released, he must raise 
 such defense by plea, otherwise it will not be available as a bar.* 
 The plea of nil debit is an insufficient answer to an action on a 
 judgment.^ 
 
 § 793. Judgments of Justices' and Probate Courts.— It 
 is a general rule that the law presumes nothing in favor of the 
 jurisdiction of a justice's cou^t. Where such rule prevails, a 
 complaint on a judgment of a justice must affirmatively show 
 every fact conferi-ing jurisdiction.* This was originally the rule 
 in California, but it has since been changed by statute. ^ In 
 pleading the judgment of a probate court, in California, it was 
 formerly necessary to set forth the facts which give jurisdiction.* 
 This, however, has been changed by the code, section 456, and 
 judgments of that court are now pleaded as other judgments of 
 courts of general jurisdiction.' 
 
 § 794. On a Judgment by Leave of Court. 
 
 Form No. 19S. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That by leave of this court first had and obtained by order 
 
 of this court, made at the general term held at ,' and 
 
 on , which order was made on due notice to the defendant, 
 
 the said plaintiff brings this action. 
 
 II. [Allege recovery of judgment as in preceding form. J 
 
 [Demand or Judgment.] 
 . § 795. Necessary Averment, — In New York, in a com- 
 plaint on a judgment rendered in any court of that state, it is 
 necessary to aver that leave to prosecute the action has been 
 obtained.^ And if this averment is not made, it does not state 
 
 » Denver v. Burton, 28 Cal. 549. <> Cal. Code of Civil Procedure, sec. 
 
 2 Haldeman v. United States, 91 U. 456. 
 S. (1 Otto) 584. 'Smith v. Andrews, 6 Cal. 652; 
 
 » Indianapolis, B. & W. Railway Co. Townsend v. Gordon, 19 Id. 189. 
 V. Kisley, 50 Ind. 60. ' Beans v. Emanuelli, 36 Cftl. 117, 
 
 ♦ Swain v. Chase, 12 Cnl. 283 ; Kow- 8 n. Y. Code, sec. 71. 
 ley V. Howard, 23 Id. 401. 
 
§ 798. JUDGMENTS. 361 
 
 a sufficient cause of action.^ The practice in California is, how- 
 ever, different, as their suit may be commenced without leave 
 of court previously obtained. Yet there are in our practice 
 numerous instances where leave of court must be first obtained ; 
 such as suits against receivers, etc. 
 § 796. The Same, by an Assignee. 
 
 Form No. 194. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., in the superior 
 
 court, in and for .the county of , in this state, a judg- 
 ment was duly given and made by said court in favor of one C. 
 D., and against E. F., the defendant herein, in an action in 
 said court pending, wherein said C. D. was plaintiff, and the 
 saidE. F. was defendant, for the sum of dollars. 
 
 II. That on the day of , 18.., at , the 
 
 said C. D. assigned said judgment to this plaintiff. 
 
 in. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Dbmand op Judqmbnt.] 
 
 § 797. Dennand. — It is not necessary to aver any demand of 
 payment by the assignee, or any refusal to pay by the debtor.^ 
 
 § 798. On a Foreign Judgment of a Court of General 
 Jurisdiction. 
 
 Form No. 195. 
 [Title.] 
 The plaintiff complains, and alleges.* 
 
 I. That at the times hereinafter mentioned, the court of com- 
 mon pleas, in and for tlie county of , in the state of 
 
 [Ohio], was a court of general jurisdiction, duly created and 
 organized by the laws of said state. 
 
 II. That on the day at , 18.., the plaintiff com- 
 menced an action in said court against the defendant by the 
 issuance of summons [or other process, as the case may be], 
 which summons was duly and personally served upon said de- 
 fendant [or, in which action the defendant appeared in person, 
 or by attorney]. That thereupon such proceedings were had 
 
 therein in said court; that on the ... day of 18.., a 
 
 judgment for the sum of dollars was duly given and 
 
 made by said court .in favor, of the plaintiff, and against the 
 defendant. 
 
 in. That no part thereof has been paid [except, etc.] 
 [Dkmakd op Judgmbnt.] 
 
 1 Graham v. Scripture. 26 How. Pr. 501. 
 » Moss V. Shannon, 1 Hilt. 175. 
 
362 
 
 FORMS OP COMPLAINTS. § 799. 
 
 § 799. Essential Allegations.— In pleading the judgment 
 of a sister state, it is sufficient to allege that it was duly recov- 
 ered. Facts conferring jurisdiction need not be stated, over- 
 ruling dictum.^ It is necessary to allege jurisdiction only in the 
 case of a court whose title indicates that it may be one of lim- 
 ited jurisdiction. In such a case, it is better to aver that the 
 court had a general jurisdiction. This was held necessary in an 
 action on the judgment of a county circuit court of another 
 state.2 In Foot v. Stevens, 17 Wend. 483, it is said that courts 
 of common pleas, and county courts of other states, are to be 
 presumed of general jurisdiction. ^ 
 
 § 800. Appearance, how Alleged. — Alleging that defend- 
 ant was duly notified, but not saying of what; or that he had 
 personal notice of the commencement of the suit, without say- 
 ing from whom, is bad.* 
 
 § 801. Appearance without Summons. — In pleading the 
 judgment of a court of general jurisdiction of another state, if 
 the defendant therein was served or appeared, the facts upon 
 which jurisdiction is founded need not be averred. Want of 
 jurisdiction is matter of defense. ^ 
 
 § 802. Exemplification of Judgment. — A certificate of 
 exemplification of a judgment rendered in another state, attested 
 bv the clerk under the seal of the court, and when the presiding 
 judge of the court certifies that the attestation is in due form of 
 law, is sufficient to sustain an action in another state.^ It is 
 only necessary that the certificate should state the main facts 
 which are made necessary by the act of congress respecting the 
 authentication of judgments. It is not necessary to aver juris- 
 diction.'' A certificate of the proceeding of the surrogate's 
 court of New York, which states that A. W. B. is surrogate of 
 the city and county of New York, and acting clerk of the surro- 
 gate court; that he has compared the transcript of the papers 
 with the original records in the matter of the estate of W. Y., 
 and finds the same to be correct, and a true copy of all the pro- 
 ceedings ; and that the certificate is in due form of law ; in tes- 
 timony whereof he sets his hand and affixes his seal of office — is 
 sufficient. 8 
 
 1 HoUlster v. Hollister, 10 How. T. 176 ; Kundolf v. Thalheimer, 17 
 Pr. 532; Ayres v. Oovill, 18 Barb. Barb. 506. 
 
 260; Halstead v. Black, 17 Abb. Pr. * Long v. Long, 1 Hill, 597. 
 
 227. 6 Wheeler v. Eaymond, 8 Cow. 811. 
 
 2 McLaughlin v. Nichols, 18 Abb. « Thompson v. Manrow, 1 Cal. 428. 
 Pr. 244. » Low v. Burrows, 12 Cal. 181. 
 
 » Compare also Frees v. Ford, 6N. 'Id. 
 
§ S05. JUDGMENTS. 363 
 
 § 803. Force and Effect of Foreign Judgment.— The 
 
 judgment in one state is to be received, and have full force, 
 effect, and virtue, in another state.^ An action on a judgment of 
 a court of competent jurisdiction, in the state of New York, may 
 be maintained in this state, notwithstanding an appeal from 
 such judgment has been taken and is still pending in the court 
 of appeals in that state. ^ 
 
 The provision of the United States constitution giving force 
 and effect to the judgments of sister states has no reference to 
 the manner of pleading, but only to their effect when offered in 
 evidence. 3 
 
 § 804. Allegation of Jurisdiction.— In actions on judg- 
 ments obtained in another state, where the transcript shows the 
 jurisdiction of the court on its face, it is not necessary to aver 
 jurisdiction.* In Indiana, the record of the judgment or a 
 transcript of it must be set forth.^ It should not be, in New 
 York.s If the judgment was recovered in Ohio against the 
 company by an erroneous name, but the suit upon the judg- 
 ment was brought in Indiana against the company, using its 
 chartered name correctly, accompanied with an averment that 
 it was the same company, this mistake is no ground of error ; 
 it could only be taken advantage of by a plea in abatement in 
 the suit in which the first judgment was recovered.'' In Ohio 
 it is held that a transcript of a record showing the recovery of 
 a judgment is not " an instrument for the unconditional pay- 
 ment of money only," and can not be made a part of the com- 
 plaint by reference.^ In an action in Kansas upon a judgment 
 recovered in the court of • common pleas of Pennsylvania, the 
 petition need not aver that that court had jurisdiction, either 
 of the person or the cause of action.* 
 
 § 805. On a Foreign Judgment of an Inferior Tribunal. 
 
 Form Sfo. 196. 
 [Title.] 
 The plaintiff complains, and alleges: 
 I. That at the time hereinafter' mentioned, J. P. was a justice 
 
 1 Miller v. Duryee, 7 Cranch, 481 ; the transcript, see Richardson v. 
 
 Hampton v. McConnell.S Wheat. 234; Hickman, 22 Ind. 244. ^,„,„ 
 
 Mayhewv. Thatcher, 6 Id. 129; Arm- » Brady v. Murphy, 19 Ind. 258; 
 
 strong V. Carson's Bx'rs, 2 Call. 302 ; Adkins v. Hudson, Id. 392. 
 
 Green v. Sarmiento, 9 Washington C. « Harlow v. Hamilton, 6 How. Pr. 
 
 C. 17; Borden V. Fitch, 15 Johns. 121; 475. 
 
 Shumwavv. Stillman, 4 Cow. 293, ' Lafayette Ins. Co. v. French, 18 
 
 2 Taylor V. Shew, .39 Gal. 536. How. U.S. 404. 
 
 3 Gebhard v. Gamier, 12 Bush, 321 ; » Memphis Medical College v, New- 
 Karnsv. Kunlde, 2Minn. 313. ton 2 Handy, 163. 
 
 « Low V. Burrows, 12 Cal. 181. 'Butcher v. Bank of Brownsville, 
 
 How such a complaint should state 2 Kan. 70. 
 
364 FORMS OF COMPLAINTS. § 806. 
 
 of the peace, in and for the town of , in the county of 
 
 , and state of ..., having authority under and 
 
 by virtue of an act of said state, entitled [title of act], passed 
 on the day of , 18...., to hold court, and hav- 
 ing jurisdiction as such over actions of [state jurisdiction to 
 include the cause of action]. 
 
 II. That on the day of ,18..., at , 
 
 aforesaid, the plaintiff commenced an action against the de- 
 fendant before the said justice, by filing his complaint, and 
 causing summons to be duly issued by said justice, on that day, 
 for the recovery of [state what] , which summons was duly and 
 personally served on the defendant. 
 
 III. Tliat on the day of , 18..., in said 
 
 action, the plaintiff recovered judgment, which was duly given 
 
 by said justice against the defendant, for the sum of 
 
 dollars, to wit, dollars for said debt, with 
 
 dollars for interest from the said date, and dollars 
 
 costs. 
 
 IV. That defendant has not paid the same, nor any part 
 thereof. 
 
 [DsMAND or Judgment.] 
 
 § 806. Action. — It appears that the action of indebitatus as- 
 sumpsit lies on a judgment of a justice of the peace.^ ' 
 
 § 807. Before the Said Justice. — The appropriate mode 
 of pleading a judgment of a justice of the peace is to allege 
 that it was recovered " before him," not " in his court."' 
 
 § 808. Costa. — This should be inserted in the third allegar 
 tion, if it would not otherwise appear that the amount of the 
 debt did not exceed the juris'liction.3 
 
 § 809. Designation of Office. — It is necessary in Califor- 
 nia* or in New York,^ in pleading the determination of an 
 officer of special jurisdiction, to designate the officer ; an aver- 
 ment that such determination was duly made is sufficient.^ 
 
 § 810. Jurisdictionof Person.— To show that jurisdiction 
 over the person had been acquired, it is necessary to aver, 
 
 1 Gveen v. Fry, 1 Cranch C. Ct. 137. given," is suggested by the court in 
 
 2 McCarthy v. Noble, 5 N. Y. Leg. Crake v. Crake, 18 Ind. 156. As to 
 Obs. 380. how far other words may be deemed 
 
 ' Smith V. Mumford, 9 Cow. 26. equivalent to " duly given," compare 
 
 * California Code Civ. Proc, sec. Willis v. Havemeyer, 6 Duer, 447; 
 
 456. Hunt v. Dutcher, 13 How. Pr. 538. 
 
 6 New York Code, sec. 532. If the judgment was rendered in a 
 
 « Carter v. Kaezley, 14 Abb. Pr. iustice's court, "duly" must be in- 
 
 147. The form of allegation, "re- serted : Thomas v. Kobinson, 8 Wend. 
 
 no vered judgment, which was duly 268; Keys v. Grannis, 3 Nev. 548. 
 
§ 813. LIABILITIES CREATED BY STATUTE. 865 
 
 either that the party appeared, or that process was sued out 
 and duly served on him.^ 
 
 § 81 1. Jurisdiction of Justice. — ^The authority under which 
 the judgment was rendered should be set forth.^ A general 
 allegation that the justice had jurisdiction is not enough. The 
 statute giving jurisdiction should be pleaded. ^ A judgment 
 against the plaintiff for costs of a nonsuit only, is an exception 
 to this rule.* But such facts need not be alleged, as residence 
 of defendant, that summons was returned, that return was 
 made thereon, that time of day was specified in summons, nor 
 that court was held at the time and place specified.^ After 
 stating the facts on which jurisdiction depends, it is sufficient, 
 without setting out the proceedings, to say, " suoh proceedings 
 were had," that plaintiff recovered, etc.^ 
 
 CHAPTEE VIII. 
 
 LIABILITIES CEEATED BY STATUTE. 
 § 812. Penalties under the Statute — General Form. 
 
 Form No. 197. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at ,the 
 
 defendant [here state acts constituting a violation of the stat- 
 ute, either following the words of the statute, or setting forth 
 the facts more speeiflcally] against the form of the statute [or 
 statutes, as the case may be] , in such case made and provided. 
 [See sec. 813, below.J 
 
 II. That hereby the defendant became indebted in the sum 
 of [amount of penalty] to [one for whose use the action is given] , 
 whereby an action accrued to the plaintiff according to the pro- 
 -visions of [describing the statute in such terms as the case may 
 
 require] . 
 
 . [Demaitd of Judqmbn-t.J 
 
 § 813. Attorney Practicing without License. — An at- 
 torney practicing without a license may be punished as in other 
 cases of contempt. The right to practice is not " property," 
 nor in any sense a " contract," withm the constitutional mean- 
 
 iCornell v. Barnes, 7 Hill, 35; ^Turner v. Eoby,3 N. Y. 193 
 
 Quivey v. Baker, 87 Cal. 465 ' Barnes v. Hams, 4 N. 1. 3<5 ; 3 
 
 ^ » Stiles V. Stewart, 12 Wend. 473 B.rb. b03. , ^ ^ iq, 
 
 » Sheldon v. Hopkins, 7 Wend. 435 ; » Turner v. Eoby. 3 N. Y. 193. 
 Stiles v. Stewart, 12 Id. 473. 
 
366 FOKMS OF COMPLAINTS, § 814. 
 
 ing of those terms. ^ The right to practice is not a constitu- 
 tional right, but a statutory privilege. But the authoritj' of an 
 attorney to appear will be presumed where nothing to the con- 
 trary appears.^ 
 
 § 814. Copyright. — A declaration for the penalty imposed 
 for putting the imprint of a copyright upon a work not legally 
 copyrighted, in the name of two persons, is bad on general de- 
 murrer. ^ 
 
 § 815. Failure to Pay Assessment. — The failure of one 
 partner in a ditch to pay his proportion of the expenses of the 
 concern does not forfeit his right in the common property.* 
 Where forfeiture is claimed under a mining regulation or cus- 
 tom, this regulation or custom will be most strictly construed 
 under the claim of forfeiture.^ 
 
 § 816. Ferries and Toll Bridges. — In an action brought to 
 recover damages by the owners of a licensed ferry against a 
 party alleged to have run a ferry within the limits prohibited by 
 law, it was held that the complaint should have alleged that de- 
 fendant ran his ferry for a fee or reward, or the promise or 
 expectation of it, or that he ran it for other than his own personal 
 " use or that of his family, and that the omission of these allega- 
 tions was fatal. ^ 
 
 § 817. Forfeiture under Statute. — When a forfeiture ia 
 purely the creation of statute, no other process or procedure 
 can be made use of to enforce the forfeiture than that which 
 the statute prescribes.'' In an action to enforce a penalty or 
 forfeiture imposed by statute, the claim is to be strictly con- 
 strued.^ If there be any rule requiring the payment of a debt, 
 the rule can not apply to the case of a judgment rendered "for a 
 penalty under the penal statute.^ An action founded on a stat- 
 ute to recover a penalty, where no penalty is imposed, can not 
 be sustained. 1" In order to have a forfeiture take place, there 
 must be some person who is entitled to receive the benefit of 
 the forfeiture. ^1 
 
 ' Cohen V. Wrisht, 22 Cal. 293. 'Reed v. Omnibus E. E. Co., S3 
 
 2 Hayes v. Shattuck, 21 Cal. 51;. Cal. 212. 
 
 Wilson V. Cleaveland, 30 Id. 192 ; « Askew v. Ebberts, 22 Cal. 263. 
 
 Holmes v. Rogers. 13 Id. 19] ; Turner ' Chester v. Miller, 13 Cal. 558. 
 
 V. Caruthers, 17 Id. 431. " Board of Health v. Pacific Mail 
 
 ' Ferrett v Atwill, 1 Blatchf. Steamship Company, 1 Cal. 197. 
 
 151. " Wiseman v. McNulty, 25 Cal. 230. 
 
 * Kimball v. Gearhart, 12 Cal. 27. How far the strict rules of the com- 
 
 ' Colman v. Clements, 23 Cal. mon law, as to pleading in criminal 
 
 245; Wiseman v. McNulty, 25 Id. cases, are applicable to informations 
 
 230. for forfeitures in rem, considered in 
 
 6 Hanson V. Webb, 8 Cal. 236. The Palmyra, 12 Wheat. 1. 
 
§ 822. LIABILITIES CKEATED BY STATUTE. 367 
 
 §. 818. Forfeitnreof Title to Real Estate.— No forfeiture 
 of real estate can take place for non performance of conditions 
 precedent or subsequent, unless there are two contracting par- 
 ties who have, at the same time, or successively, an interest in 
 the estate upon which the condition is reserved.^ No forfeiture 
 accrues to a title otherwise good, by failure to present it to the 
 board of land commissioners. ^ The United States, after the 
 treaty of Guadalupe Hidalgo, did not become vested with any 
 authority to prosecute a claim for forfeiture or escheat that had 
 accrued in California to the Mexican government. ^ 
 
 § 819. Gaming.^An allegation in a complaint that the par- 
 ties kept a saloon for the purpose of gaming, and selling liquors 
 and cigars, does not raise the presumption that the gaming was 
 necessarily unlawful, or that the saloon was a common gaming 
 house, as the word might apply to lawful games, as billiards 
 etc.* 
 
 § 820. Marks and Brancls. — That in an action for a pen- 
 alty for altering the inspector's marks on barrels of flour, it 
 is necessary to set out the marks and the manner of the alter ■ 
 ation.5 
 
 § 821. OfSce and Officers. — In an action against an ofBoer 
 to recover a penalty imposed by a general statute, it is sufficient 
 to refer to such statute, though the particular duty in question 
 was created by a subsequent statute.^ 
 
 § 822. Railroad Companies — Excessive Fare. — In an 
 action against a railroad company for breach of duty by such 
 company in not conveying a passenger, it is not necessary for 
 plaintiff to allege in his complaint a strict legal tender of his 
 fare.'' It is sufficient to allege that plaintiff was ready and will- 
 ing, and offered to pay such sum of money as the defendant was 
 legally entitled to charge. The transportation and payment of 
 the fares are contemporaneous acts.* In an action against 
 the New York Central Railroad Co. to recover a statutory pen- 
 alty for exacting an excessive fare, it was held that it was not 
 necessary that the complaint should set out the various enact- 
 ments consolidating the several companies which make up the 
 New York Central Railroad Company so as to show that the 
 latter company is restricted to a fare of two cents per mile for 
 
 1 Wiseman v. McNuUy, 25 Cal. ^^» Cloud v. Hewett, 3 Crancli C. 0. 
 
 Wry V. MoPherson. 13 Cal. ' VKu" . at K K Co.f si Cal. 
 
 s'Peoplev. Polsom, 5 Cal. 373. 616. , 
 
 * Whipley V. Flower, 6 Cal. 632. * M. 
 
368 FOKMS OF COMPLAINTS. § 823. 
 
 each passenger ; but that it was enough to allege that the de- 
 fendants had been duly organized, that they were entitled to 
 demand and receive of passengers a certain rate of fare, and 
 that they had demanded and received a higher rate.^ 
 
 § 823. Telegraph Messages. — ^Where the telegraph com- 
 pany fails to transmit a message, upon compliance by the per- 
 son contracting with it with the conditions required by law, an 
 action lies for the penalty.^ And the party who contracts is en- 
 titled to the penalty,^ 
 
 § 824. Theatrical Exhibitions. — A complaint which charges 
 that the defendant "did willfully and unlawfully, on the first 
 day of the week, commonly called Sunday, to wit, on the Sab- 
 bath day, get up, and in getting up and opening of a theater," 
 contains a sufficient statement of the facts constituting the 
 offense of getting up a theater on the Sabbath day.* 
 
 § 825. Statutory Action — Allegations. — In an action on 
 a statute, the party prosecuting must allege every fact necessary 
 to make out his title and his competency to sue.^ Thus, where 
 the statute giving the cause of action prescribes what the plaint- 
 iff shall state in his complaint, and requires a reference to be 
 made to the statute, the requirement must be complied with or 
 the plaintiff can not recover.'' But if a statute gives a new de- 
 fense, or authorizes the introduction of evidence not previously 
 admissible, the defendant may so shape his pleas as to avail 
 himself of the benefits of the new law, and the old rules of 
 pleading must yield to the statute.'' 
 
 § 826. Penal Statutes — Allegations in Actions on.— In 
 penal actions founded on a statute, a reference to the statute is 
 usually, but not necessarily, made^ for the purpose of in- 
 forming the defendant distinctly of the nature and character of 
 the offense.^ AnS in cases where no general form of complaint 
 is given, the plaintiff must set forth the particular acts or omis- 
 sions which constitute the cause of action. i" But omitting to 
 refer to the statute is a defect of form only.^^ In declaring on 
 
 » Npllis V. N. T. Cent. E. R. Co., 30 151 ; Austin v. Goodrich, 49 N. T. 
 
 N. Y.605. 266. 
 
 2 Thurn v. Alta Tel. Co., 15 Cal. « Schroeppell v. Corning, 2 N. T. 
 472. 132 ; andsee Avery v. Slack, 17 Wend. 
 
 3 Id. 85. 
 
 * People v. Maguire, 26 Cal. 635 ; ' Cutts v. Hardee, 38 Ga. 850. 
 
 for complaint, see People v. Koll, 3 * Brown v. Harmon, 21 Barb. 510. 
 
 Kei'es, 236. » Shaw v. Tobias, 3 Comst. 190. 
 
 5 Fleming v. Bailey, 5 East, 3 13 ; 4 i" Slack v. Avery, 17Wend. 86 ; Peo- 
 
 Johna. 193 ; Bigelow v. Johnson, 13 Id. pie v. Brooks, 4 Den. 469 ; Bigelow v. 
 
 428 ; Fairbanks v. Town of Antrim. 2 Johnson, 13 Johns. 428. 
 
 N. H. 106 ; Ferrett v. AtwilC 1 Blatchf. u O'Maley v. Reese, 6 Barb. 658. 
 
§ 826. LIABILITIES CBBATED BY STATUTE. 369 
 
 ■a penal statute, it is sufHcient to pursue the worfls of the stat- 
 ute, and not essential to conclude " against the form of the 
 statute. "1 The declaration must aver that the act complained of 
 was done contrary to the statute.^ A declaration founded ex- 
 ■clusively upon a statute, and not maintainable at common law, 
 must conclude "against the form of the statute. "* A declara- ' 
 tion, if founded on an amendatory act, which refers to and 
 contains a former one, should conclude "against the statute," 
 and not " statutes."* A declaration on a penal statute need not 
 aver the uses to which the forfeiture is to be applied.^ 
 
 Where a number of penalties are incurred in one act, they 
 may all be included in one count. In an action against an oflS- 
 ■cer to recover a penalty imposed by a general statutg for any 
 neglect or refusal to perform a duty, it is enough to refer to 
 ■such statute, though the particular duty in question was created 
 by a subsequent statute. ^ 
 
 Where a penalty is given by statute and no remedy is pro- 
 vided, debt will lie.'' And this although it is uncertain. ^ In an 
 action for debt, brought to recover several penalties (under sec- 
 tion 1 of the act of 1790), against the master of a vessel for 
 shipping seamen without articles, a single count for all the 
 penalties is sufflcient.s go also if an agreement contain a pen- 
 alty, the plaintiff may bring debt for the same and for no more, 
 or covenant, and recover more or less damages than the penalty f^" 
 and for several penalties incurred in one act, plaintiffs may de- 
 clare generally in one count.^^ But only one penalty can be en- 
 forced for the same act.^^ Thus, under an ordinance forbidding 
 both the sale of a thing and its exposure to sale, a single act of sell- 
 ing can not be separated so as to impose therefor two penalties. 
 In case of an actual sale, the exposure to sale is merged in the 
 sale.^3 Where two or more concur in the act of aiding, and but 
 
 1 People V. Bartow, 6 Cow. 290; company for not ringing bell on ap- 
 Lee V. Clark, 2 East, 333. proacbing a crossing : See Wilson v. 
 
 2 Parker v. Hawortb, 4 McLean, Boch. & Syr. R. E. Co., 16 Barb. 167. 
 _!j7g ' Jacob V. United States, 1 Brock. 
 
 sch.Pl. 246, 405; Sears v. United Marsh. 520. 
 
 -States, 1 Gall. 257; Smith v. United « Corporation of Washington v. 
 
 States Id 261 ; 1 Saund. 135, n. ; Jones Eaton, 4 Cranch C. C. 352. 
 
 V. Vanzandt, 2 McLean, 611. That it J People v. M'Fadden.lS Wend. 396 ; 
 
 19 essential, see Sears v. United States, Wolverton v. Lacy, 8 Law K., N. S., 
 
 1 Gall. 257. ^ «'2. 
 
 195. 
 
 Falconer v. Campbell, 2 McLean, ;° Martin v. Taylor.l Wash. C. C. 1. 
 
 11 People V. M'Padden, 13 Wend. 
 
 5 Sears v. United States, 1 Gall. 257. 896. b • i, q nr t .o rqi 
 
 « Morris v. People, 3 Den. 381. For ^^ Driskill v. Parish, 3 McLean, 631. 
 
 oxacUng exc3 fare on railroad: iscuf Brooklyn y. Toynbee, 31 
 
 JSellis V. N. Y. C. E. E.Co., 30 N. Barb. 282. 
 
 Y. 605. Complaint against railway 
 
 ESTEE, VOL. 1—24. 
 
370 rOKMS OF COMPLAINTS. § 827. 
 
 one penalty attaches, they may be sued together.^ In an action 
 for a statute penalty, intent to violate the law must be shown; 
 but a neglect may be so gross as to amount to a criminal intent.^ 
 The repeal of a law imposing a penalty determines the action.* 
 
 § 827. Provisos and Exceptions. — It is a general rule, 
 that in pleading under a statute, it is suffleient to use the lan- 
 guage of the statute, and though there are exceptions requiring 
 specific facts to be stated where general language is used in the 
 statute, yet it is not necessary in a civil proceeding to add to the 
 language of the statute other general language, which does not 
 make the pleading any more specific, because such other language 
 was technically required in a common-law indictment.'* But when 
 a pleading is filed under a statute where there is an exception in 
 the enacting clause, it must negative the excdetion ; but where 
 where there is no exception to the enacting clause, but an exception 
 in the proviso thereto, or in a subsequent section of the act, it is 
 matter of defense and must be shown by the defendant. ^ A 
 public statute need not be recited or referred to in pleading, and 
 all that seems material is that enough be stated to bring the case 
 within the statute.* 
 
 § 828. Statutes, how Proved. — As to whether an act is 
 passed by the requisite vote, the printed statutes are presumptively 
 correct, and the original on file conclusive.' 
 
 § 829. Venue in California. — Actions for the recovery of a 
 penalty or forfeiture imposed by statute, shall be tried in the 
 county where the cause, or some part thereof, arose, subject to 
 the power of the court to change the place of trial. ^ 
 
 § 830. For Selling Liquor without a License. 
 
 Firm No. 198. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18 ..., at , 
 
 the defendant sold to one A. B. [or to divers persons] strong 
 
 ' Partridge v. Naylor, Cro. Eliz. 480 ; Hanks, 36 111. 281 ; Lvnch v. People, 
 
 F. Moore, 453 ; Rex v. Clark, Cowp. 16 Mich. 472 ; Faribau't v. Hulett, 10 
 
 610; Barnard V. Gostling, 2 East, 569; Minn. 30; Clough v. tshepherd, 31 N. 
 
 Warrenv. Doolittle, 5Cow. 678; com- H. 490; McG-lone v. Prosser, 21 Wis. 
 
 pare Marsh v. Shute, 1 Den. 230; In- 273 ; but see Farwell v. Smith, 16 N. 
 
 gersoll V. Skinner, Id. 540; Mayor of J. L. (1 Harr.)133. 
 
 N. r. V. Ordrenan, 12 Johns. 122; see ' MoHarg v. Eastman, 7 Robt. 137; 
 
 also Palmer V. Conly, 4 Den. 374. S. C, 35 How. Pr. 205; Bretz v. 
 
 2 Sturges V. Maitland, Anth. N. P. Mayor, 35 Id. 180 ; S. C, 4 Abb. Pr. 
 
 208, '" ' - '-- - -- 
 
 (N. S.) 258; reversing 3 Abb. Pr. (N. 
 B.) 478. ^ ^ 
 
 ' People ex rel. v. Commissioi 
 Highways, 54 N. Y. 276; Pec 
 Devlin, 33 Id. 269. 
 27 ; Great Western E. K. Co. v. « California Code C. P., sec i 
 
 ' People ex rel. Cook v. Board of B.) 478. 
 
 Police, 40 Barb. 626 ; 16 Abb. Pr. 473. ' People ex rel. v. Commissioners of 
 
 * Jarvls V.Hamilton, 16 Wis. 574. Highways, 54 N. Y. 276; People v. 
 
 5 Washburn v. Franklin, 28 Barb. Devlin, 33 Id. 269. 
 
§ 831. LIABILITIES CREATED BY STATUTE. 371 
 
 liquors [or spirituous liquors, or wines], in quantities less than 
 by the bottle [or otherwise, according to the terms of the ordi- 
 nance or statute] . 
 
 II. That the defendant had not then a license to sell liquors, 
 as required by the act entitled " An act," etc. [giving title of act 
 in full], passed on the day of* 18.. 
 
 III. That thereby the defendant became, and is indebted to 
 
 the plaintiff in the sum and penalty of dollars, for said 
 
 act of selling [or, each and every of said acts of selling] , whereby 
 this action has accrued to the plaintiff, according to the provis- 
 ions of said act, for the said sum of dollars [or if more 
 
 than one penalty is claimed, for the aggregate amount or sum 
 of dollars]. 
 
 [Dkmand of Judgmbnt.]' 
 
 § 831. Against a Witness, for Disobeying Subpoena. 
 
 Form No. 199. 
 [Title.] 
 
 I. That on the day of , 18.., at , 
 
 the plaintiff caused the defendant to be duly served with a sub- 
 poena commanding him to attend as a witness in court, 
 
 in and for the county of , in this state, on the 
 
 day of , 18.., there to give testimony on behalf of the 
 
 plaintiff in an action in said court pending, wherein this plaintiff 
 was the plaintiff, and one C. D. was defendant [or otherwise 
 designate the proceedings] . 
 
 II. That at the same time the plaintiff caused dol- 
 lars, the lawful fees of the said witness, to be paid [or tendered] 
 to him. 
 
 III. That defendant failed to attend as commanded, whereby 
 the defendant became indebted to the plaintiff in the amount of 
 ».... dollars, according to the provisions of the statute [de- 
 scribe the statute]. 
 
 IV. That by reason of the premises, the defendant forfeited to 
 the plaintiff the sum of dollars. 
 
 [If special damages are claimed, add:] V. And for a second 
 cause of action, the plaintiff alleges that because of the said 
 failure of the said defendant to attend said trial as such witness 
 as aforesaid, the plaintiff, when said action was called for trial, 
 was compelled, for want of the testimony of said defendant, 
 without whose testimony he could not safely proceed to the trial 
 of said action, to move the said court to continue the said action ; 
 
 1 For another form, see People v. Cole v. Jeesup, 10 N. Y. 96 ; 10 How. 
 Bennett, 5 Abb. Pr. 384. To follow Pr. 515. 
 the words of the act is sufficient : See 
 
372 FORMS OJF* COMPLAINTS. § 832. 
 
 and the said court did continue tlie same, and the plaintiff was 
 
 compelled to paj' on said continuance, as costs thereof , 
 
 dollars, which sum he was so compelled to pay by reason of the 
 said failure of the said defendant to attend as such witness as 
 aforesaid, to the damage .of the plaintiff in the said sum of 
 
 dollars. 
 
 [Demand or Judgmbnt.J 
 
 § 832. Witness Refusing to Answer. — An action lies at 
 common law against a witness refusing to answer or attend 
 under a subpcBna.^ The complaint must aver that the witness 
 fees were paid or tendered to him.^ It would seem that a gen> 
 eral allegation that he was legally subpoenaed is insufficient.^ 
 
 § 833. For Violation of Ordinance of Board of Super- 
 visors. 
 
 Form No. ZOO. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on or about the day of , 18..., the 
 
 board of supervisors of the county of , in pursuance of 
 
 the power in them vested by law, passed a law entitled "An 
 order, regulation or ordinance, etc. [giving title of the same] 
 a copy of which is annexed as a part of this complaint. 
 
 II. That since the passing thereof, to wit, on the day 
 
 of , 18.., the defendant [here state fully wherein the 
 
 defendant has disobeyed the order] , contrary to the provisions 
 of the said ordinance above mentioned. 
 
 III. That by reason of the premises, the defendant forfeited 
 to the plaintiff the sum of dollars. 
 
 [Demand of Judgment.]* 
 § 834. Essential Allegations. — In general, the by-laws of 
 all corporate bodies, including municipal corporations, must be 
 set forth in pleading, when they are sought to be enforced by 
 an action, or set up as a protection.^ In Indiana a copy of the 
 by-law or ordinance should be made a part of the complaint.^ 
 But the authority to enact may be averred in general terms.'' 
 
 1 King V. The Inhabitants etc., » Wile, on Mun. Corp., pt. 1, sec 
 Dou^l. 561 ; Grorham v. Thompson, 430 ; Harker v. Mayor etc. of N. T., 
 Prake, 60; Warner v. Lucas, 10 Ohio, 17 Wend. 199; People v. Mayor etc. 
 836. ofN. Y.,7How. Pr. 81. 
 
 2 McKeon v. Lane, 1 Hall, 355. « Green v. Indianapolis, 22 Ind. 
 »Id. 192. 
 
 « This is substantially the form of ' Stuyvesant v. Mayor of N. Y,, 7 
 the complaint in Smith v. Levinus, 8 Cow. 603. 
 N.y.472. 
 
§ 837. MONET HAD AND EECEIVED TO PLAINTIPtF'S USE. 373 
 
 CHAPTER IX. . 
 
 FOP HaNEYHAD AND RECEIVED TO PLAINTIFF'S USE. 
 § 835. Common Form. 
 
 Form No. SOI. 
 [Title.] 
 
 The plantiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 [or at sundry times between the day of , 18... 
 
 and the day of , 18..., at J, the defend- 
 ant received the sum of dollars from one A. B., to and 
 
 for the use' of the ptaintiff. 
 
 II. That thereafter, on the day of , 18... [or 
 
 before the commencement of this action], the plaintiff demanded 
 payment thereof from the defendant. 
 
 III. That the defendant has not paid the same, nor any part 
 thereof L^xcept, etc.] 
 
 [Demand of Judgment.]* 
 
 § 836. Demand. — It is not necessary that the plaintiff, in an 
 action for money received by defendant for his use, should make 
 a demand before suit, where it was the duty of the defendant to 
 have remitted the money.^ No demand is necessary before ac- 
 tion brought to recover back an illegal tax ; ^ so of moneys col- 
 lected by sheriff.4 
 
 § 837. Essential Averments. — The common allegation 
 that the defendant received money " for the use of the plaintiff," 
 is open to the objection on the ground of its indefiniteness. In 
 some cases it has been held bad on demurrer. ^ A complaint 
 which avers " that the defendant received a sum of dol- 
 lars, belonging to or on account of the plaintiff, and which is 
 now due him," states facts sufficient to constitute a cause of ac- 
 tion.8 Thus, where the complaint charges that A., being in- 
 debted to the plaintiff in a sum of monej^ it was agreed between 
 the plaintiff and defendant that A. should pay the same to 
 plaintiff at the request of plaintiff, and thereafter A. paid to de- 
 fendant said sum in gold coin of the United States and for the 
 
 J In those cases where demand is not Howard v. France, 43 Id. 593 ; Keyser 
 
 necessary, the second paragraph may v. Shafer, 2 Cow. 437. 
 be omitted. "Where a demand is nee- ^ Newman v. Supervisors of Living- 
 
 essary to charge the defendant with ston Co., 45 N. Y. 676. 
 interest, the date of the demand * Nelson v. Kerr, 59 N. Y. 224. 
 should be inserted. ^ Lienan v. Lincoln, 2 Duer, 670. 
 
 2 Stacy V. Graham, 14 N. Y. 492; " Betts v. Bache, 14 Abb. Pr. 279. 
 
374 FORMS OF COMPLAINTS. § 838. 
 
 use and benefit of plaintiff, the defendant refused to pay the 
 same to the plaintiff upon request duly made, an action to re- 
 cover said sum in gold coin is an action for money had, and re- 
 ceived, and defendant is not charged as a bailee.^ 
 
 When a person recovers the money of another, and applies it 
 to his own use, the law implies a promise to repay it.^ Where 
 one receives at the request of another a sum for a third person, 
 with directions to pay the same over, it is equivalent to an ex- 
 press promise to pay the same, and the latter may maintain an 
 action for money had and received. ^ And no consideration 
 need be shown.* Where one receives the money of another, 
 and has not the right conscientiously to retain it, a privity 'be- 
 tween the ti'ue owner and the receiver will be implied, as well as 
 a promise to pay it.^ Such implied promise to pay is a fiction > 
 which need not be alleged.^ 
 
 § 838. Nature of the Action— When it Lies.— The 
 general rule is, that an action for monej' received lies, whenever 
 money has been received by the. defendant, which ex aequo et 
 bono belongs to the plaintiff ;'' or which in equity and conscience 
 he has no right to retain, ^ whether there be any privity between 
 the parties or not. For it has been held there need be no priv- 
 ity of contract between the parties, in order to support this 
 action, except that which results from one man's having anoth- 
 er's money, which he has not a right conscientiously to retain.' 
 In an authoritative case it has been decided that this action 
 lies : 1. Wherever the defendant has received money which he 
 is bound in justice and equity to refund; 2. Where an agent is 
 not the mere carrier or instrument, for transmitting the fund, 
 but has the power of retaining it, and before he has paid over 
 the money, has received notice of the plaintiff's claim, and a 
 warning not to part with the fund ; 3. Where there exists a 
 privity between the plaintiff and defendant.^" 
 
 § 839. The Same — Duress — Protest. — That money ex- 
 torted under duress may be recovered back in this form of 
 action has been long established. In such action the complaint 
 
 > Wendt V. Boss, 33 Cal. 650. * Judson v. Gray, 17 How. Pr. 289; 
 
 2 Uumond v. Carpenter, 3 Johns. Berry v. Mayhew, 1 Daly, 54. 
 
 183. 5 Caussidiere v. Boers, 2 Keyes, 198. 
 
 3 Weston V. Barker, 12 Johns. 276; * Byxbie v. Wood, 24 N. Y.607. 
 Therusson v. McSpedon, 2 Hilt. 1 ; ' Tutt v. Ide, 3 Blatchf. 249. 
 Delaware etc. Co. v. Westchester Co. ' Kreutz v. Livingston, 15 Cal. 344. 
 Bank, 4 Den. 97. But see Seaman "Mason v. Waite, 17 Mass. 560; 
 V. Whitnev, 24 Wend. 260 ; Turk v. Buel v. Boughton, 2 Den. 91 ; Lock- 
 Ridge, 41 N. y. 201 ; and Williams \'. wood v. ICelsea, 41 N. H. 185. 
 Everett, 14 East, 590, where distino- i" Gary v. Curtis, 3 How. U. S. 236. 
 tions are taken. 
 
§ 840. MONKY HAD AND EECEIVilD TO PLAINTIFF'S USE. 375 
 
 must state that it was wrongfully obtained, and not state a 
 mere conclusion of law ; but the facts should be fully detailed, 
 so that the court may see from the facts that the payment was 
 compulsory.! It is not sufficient to allege compulsion in a gen- 
 eral way. Money extorted by duress of goods may be recov- 
 ered.^ 
 
 Thus, a complaint in an action to recover money wrongfully 
 obtained, under color of judicial proceedings, must contain 
 such averments as will exclude the idea that the money could 
 have been lawfully obtained.^ But the influence exerted by 
 the provisions of the statutes of the United States, requiring 
 stamps to be placed on passage tickets by steamer from San 
 Francisco to New York, does not constitute the kind of coercion 
 or compulsion which the law recognizes as sufficient to render 
 the payment therefor involuntary.* Generally, to constitute 
 compulsion or coercion, so as render a payment involuntary, 
 there must be some actual or threatened exercise of power, 
 possessed or supposed to be possessed by the party exacting or 
 receiving the money.^ The object of the protest is to take from 
 the payment its voluntary character, and conserve to the party 
 the right to recover it back. The fact that a party pays money 
 under protest does not change the character of the transaction 
 or enable him to recover it back, unless the payment was under 
 duress or coercion, or where undue advantage was taken of his 
 situation.^ 
 
 Where money was not credited on an account upon which 
 judgment by default was rendered it may be recovered back.'' 
 Where a special contract remains open, the remedy is on the 
 contract, but if the contract has been put an end to, an action 
 for money had and received lies to recover any payment that has 
 been made under it.^ 
 
 § 840. When it does not Lie — Voluntaiy Payments. — 
 
 The simple facts that A., owing money to B., chose to pay it to 
 
 ' Commercial Bank v. Bochester, 41 ^ Brumagin v. Tillinghast, 18 Cal. 
 
 Barb. 341. 265; Kansas & Pac. K. K Co. v. Wy- 
 
 2 Astley V. Eeynolds, 2 Stra. 915 ; andotte Co., 16 Kan. 587. 
 Bates V. Johnson, 3 Johns. Cas. 238 ; ' Parker v. Danforth, 16 Mass. 306 ; 
 4 T. E. 485; Id. 561 ; Chase v. Dwinal, Richardson v. Maine Ins. Co., 6 Id 
 7 Greenl. 134; Chase v. Taylor, 4 Harr. 14; Loring v. Mansfield, 17 Id. 394; 
 & J. 54; Little v. Gibson, 3N. H. 508; Whitcomb v. Williams, 4 Pick. 228; 
 Tutt V. Ide, 3 Blatchf. 249 ; McMillen Gary v. Hull, 11 Johns. 441 ; Cobb v. 
 V. Eiohards, 9 Cal. 365. Curtis, 8 Id. 470; Phil, on Ev.; Cow. 
 
 ' Punkhouser v. How, 17 Mo. 225 ; & H. 832 ; contra, 1 N. H. 83 ; Mitch- 
 Chandler V. Sanger, 114 Mass. 364. ell v. Sanford, 11 Ala. 695 ; Binok v. 
 * Garrison v. Tlllinghast,18 Cal. 404. Wood, 43 Barb. 315. 
 5 Brumagin v, Tillinghast, 18 Cal. ^ Chesapeake and Ohio Canal Co. v. 
 265. Knapp, 9 Pet. 541. 
 
376 FORMS OF COMPLAINTS. § 841. 
 
 C, under the impression that C. was entitled to control the 
 services of B. , and to receive all compensation therefor, do not 
 entitle B. to maintain an action against C. for money had and 
 received. 1 Under a count for money had and received, a surety 
 can not recover of his principal for money paid by the surety 
 on account of his liability as such.^ To sustain a count for 
 money had and received it must appear that the defendant had 
 received money due to the plaintiff, or something which he 
 had really or presumptively converted into money before suit 
 brought, or which he had received as money, and instead of it.* 
 Money voluntarily paid upon a claim of right with full knowl- 
 edge of all the facts, can not be recovered back merely because 
 the party at the time of payment was ignorant of or mistook 
 the law as to his liability.* Money voluntarily paid can not be 
 recovered back, even though it could not have been enforced 
 by law.5 So money advanced on part performance of an agree- 
 ment cannot be recovered back.^ 
 
 § 841. Statute of Limitations. — "Where the promise is 
 laid of a day more than two years prior to the commencement 
 of the action, the complaint is demurrable on the ground that it 
 shows the demand to be barred by the statute of limitations.'' 
 
 § 842. Same, against Attorney or Agent with Demand. 
 
 Form No. BOS. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of .., 18.., at the county of 
 
 , state of , the defendant received from the 
 
 plaintiff, as the agent of said plaintiff, the sum of dollars, 
 
 to the use of the said plaintiff. 
 
 II. That thereafter, and before this action, the said plaintiff 
 demanded payment thereof from said defendant. 
 
 III. That the defendant has not been paid the same, nor any 
 part thereof. 
 
 [Demand op Judoment.] 
 § 843. Liability of Attorney and Agent. — An attorney 
 is not liable for moneys collected until after a demand or in- 
 structions toremit.8 But the right to a demand may be waived. 
 
 1 Murphy V. Ball, 38 Barb. 262. 413; Commercial Bank v. Rochester, 
 
 ' Child V. Eureka etc. Works, 44 42 Barb. 488. 
 
 N. H. 354. « Hansbrough v. Peck, 5 Wall. TJ. 
 
 'Hatten v. Robinson, 4 Blackf. S. 497. 
 
 (Ind.) 479; Mason v. Waite, 17 Mass. ' Keller v. Hicks, 22 Gal. 457. 
 
 56; Ainslie v. Wilson, 7 Cow. 662. » Beardsley v. Root, 11 Johns. 464; 
 
 *Brumagim V. Tillinghast, 18 Gal. Stafford v. Richardson, 15 Wend. 302; 
 
 265. Taylor v. Bates, 5 Cow. 376 ; Walradt 
 
 * Corkle v. Maxwell, 3 Blatchf. v. Maynard, 3 Barb. 581. 
 
§ 845. MONEY HAD AND RECEIVED TO PLAINTIFF'S USE. 377 
 
 And where, au attorney set up a claim against his client to a 
 larger amount, it was held a waiver from a demand.^ Attorneys 
 as partners are liable, although it was paid to one of them, and 
 has been demanded from him only.^ A person not an attorney, 
 who collects a note at the request of another is liable for the 
 amount, after a reasonable time, without demand. ^ Money 
 collected by a subagent may be recovered.* Or money paid to 
 an agent, if before it be paid to the principal, notice be served 
 upon the agent that it will be reclaimed. ^ 
 
 § 844. Demand Essential. — A count in a complaint in such 
 an action is bad when it is not alleged that demand has been 
 made on defendant ; as a party receiving money for the use of 
 another is rightfully in possession till the same is demanded.* 
 One who has received money, standing in the position of trustee, 
 e. g., a collecting agent, is in general not liable in an action for 
 money received until demand is made or some breach of trust 
 or duty committed.' As where a bank receives money it can 
 not be sued until after it has been drawn for.^ But a deposit 
 with a stockholder, or an alleged wager, may be sued for without 
 a previous demand, where the money has been paid over before 
 the action. 8 
 
 § 845. Sufficient Allegations. — A complaint which alleges, 
 that the defendant was employed as plaintiff's agent for the 
 purchase of stock, that in settlement between the seller and de- 
 fendant, the former was found to be indebted to the latter, as 
 the plaintiff's agent, in a certain sum, which he paid, but which 
 the defendant refuses to pay to the plaintiff, states a sufficient 
 cause of action.^" A complaint against an agent for money re- 
 ceived, who pretends to have been robbed thereof, may properly 
 allege simply that the defendant being in possession of the 
 plaintiff's property as his agent, converted the same to his own 
 use.i' That defendant, as such agent, -had collected from divers 
 persons divers sums, either stating the aggregate or asking an 
 accounting, is sufflcient.^^ In an action by a corporation to re- 
 cover funds received by the treasurer thereof, if the complaint 
 shows the relation of the parties, and gives a statement of the 
 
 'Id.: and see Satteriee v. Frazer, 2 « Eeina v. Cross, 6 Cal. 31 ; Green- 
 
 Sandf. 141. * field v. Str. " Bunnell," Id. 68. 
 
 2 McFarland v. Crarv, 6 "Wend. 207 ; ' Walrath v. Thompson, 6 Hill, 540. 
 compare Ayrault v. fchamberlln, 25 * Downs a. Phoenix B'k, 6 Hill, 237. 
 Barb. 83. ' Ruckman v. Pitcher, 1 N. T. 392 ; 
 
 3 Hick'ok V. Hickok, 13 Karb. 632. see Johnson v. Russell, 37 Cal. 670. 
 « Wilson V. Smith, 3 How. U. S. " Bates v. Cobb, 5 Bosw. 29. 
 
 763 11 Frost V. McCarsar, 29 Barb. 617. 
 
 s'Woodv. United States, Dev. 55 " West v. Brewster, 1 Duer, 647. 
 
378 FOEMS OF COMPLAINTS § 846. 
 
 moneys received by him, and that the defendant is indebted, it is 
 suflBcient. A demand will be inferred, and if none were made, 
 defendant should pay the debt, but not the costs. "^ 
 
 § 846. Who may Recover. — An action for money had and 
 received is proper, when a recovery is sought of money which 
 defendant has received and refused to pay on demand to the 
 plaintiff, who is entitled to it.^ Where an agent or servant ap- 
 plies money of his employer, in his hands, to discharge the debt 
 of a third person, the employer may recover it from the payee 
 as money received to his use, if the payee received it with a 
 knowledge of the facts. ^ Either one of the several joint owners of 
 claims against a third person, they not appearing to be part- 
 ners, may maintain an action against an agent to recover his 
 share of money had and received by the latter from the debtor.'* 
 An assignee to recover a surplus collected by a creditor, or of 
 the assignor, must give notice of the assignment, and make a 
 demand.^ 
 
 § 847. The Same— Another Form. 
 
 Form No. SOS. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That betw^een the day of , 18..., and the 
 
 day of 18..., the defendant was the agent of the 
 
 plaintiff in [stating generally the employment], that he col- 
 lected and received as such agent, from divers persons, certain 
 sums of money, for and on account of the plaintiff, amounting in 
 
 the whole to the sum of dollars; no part of which has been 
 
 paid by defendant to the plaintiff. 
 
 II. That on the day of , 18..., at .., the 
 
 plaintiff demanded payment of the same from the defendant. 
 
 III. That he has not paid the same, nor any part thereof. 
 
 [D KM AND ov Judgment.] 
 § 848. Notes Received. — Under a complaint in an action 
 against an agent for money had and received, the plaintiff may 
 recover where it appears that the defendant received notes 
 which were good and collectible, and by his transactions he re- 
 leased the debtor and deprived his principal of all remedy except 
 against himself.* 
 
 1 Second Avenue E. E. Co. v. Cole- » Sears v. Patrick, 23 Wend. 528. 
 man 24 Barb. 300. 6 Oorlies v. Cumming, 6 Cow. 183, 
 
 2Stanwoodv.Sf.ge 22 Cal. 517. note; Floyd v. Dav, 1 Mass. 403; 
 
 3 Araidon V. Wheeler, 3 Hill, 137. Beardsley v. Eoot; 11 John. 464; 
 
 Allen V. Brown, 51 Barb. 86. Allen v. Brown, 51 Barb. 86. 
 
§852. MONBYHAD AND RECEIVED TO PLAINTIFFS USE. 379 
 
 § 849. For Money Received by Defendant Through 
 Mistake. 
 
 Form No. S04, 
 [Trpi.1!.] 
 
 The plaintilf complains, and alleges : 
 
 I. That on the day of , 18..., at , the 
 
 defendant presented to the plaintiff an account of mutual deal- 
 ings theretofore had between them, which said account set forth 
 a balance due from the plaintiff to the defendant of the sum of 
 dollars. 
 
 II. That the plaintiff, believing said account to be correctly 
 stated, then paid said sum of dollars to the defendant. 
 
 in. That in fact said account was not correctly stated, but 
 that it overcharged the plaintiff with the sum of dol- 
 lars by an error in adding up the items thereof [or otherwise, 
 specifying the error]. 
 
 IV. That defendant has not paid the said sum of 
 
 dollars to the plaintiff, though requested so to do. 
 
 [DeMAHD or JuDQMItNT.] 
 
 § 850. When the Action Lies. — Money paid under a 
 mutual mistake of facts may be recovered back.i But money 
 paid by mistake of law can not be recovered back, there being 
 no difference between money paid in ignorance of law and 
 money paid by mistake of law.^ 
 
 § 851. Essential Averments — Demand. — "Where money 
 is paid by mistake, notice of the mistake and demand of repay- 
 ment before suit to recover it back are not necessary. The 
 party receiving the money under such circumstances is not a 
 bailee or a trustee. But such a demand may affect the ques- 
 tion of interest.* The facts constituting the mistake must be 
 alleo-ed.'* A direct averment of mistake is unnecessary, if the 
 iacts upon which it is founded are stated. ^ An allegation of 
 fraud will not support evidence of mistake, nor vice versa.^ 
 
 § 852. For Price of Goods Sold by a Factor. 
 
 Form No. SOS. 
 [Tit LB.] 
 The plaintiff complains, and alleges : 
 
 1 Burr V. Veeder, 3 Wend. 412 ; » Utioa Bank v. Van Gieson, 16 
 
 "Wheadon v. Olds, 20 Id. 174; Canal Johns. 485. 
 
 Bank v. Bank of Albany, 1 Hill, 287 ; * Finch v. Hollinger, 47 Iowa, 3 /3 ; 
 
 Bankof Commerce, V. Union Bank, 3 Stephens v. Murton, 6 Oreg. 193; 
 
 N Y 230- Duncan v. Berlin, 60 Id. Schoonover v. Dougherty, 65 Ind. 
 
 151 ; Manchester v. Burns, 45 N. H. 463 : Evarts v. Steger, 5 Oreg. 147. 
 
 482 » Welles v. Yates, 44 N. Y. 525; 
 
 » Schlesinger v. United States, 1 Maher v. Hibernia Ins. Co., 67 Id. 283. 
 
 Nott & H. 16; Elliott V. Swartwout, « Stephens v. Murton, 6 Oreg. 193; 
 
 10 Pet 137 Leighton v. Grant, 20 Minn. 345. 
 
380 FORMS OJ? COMI'LAINTS. § 853. 
 
 I. That on the day of , 18.., at , 
 
 the defendant, in consideration of his reasonable commissions, 
 agreed with plaintiff to sell for plaintiff certain goods [fifty bar- 
 rels of flour]. 
 
 II. Thatonthe dayof , 18..., at , 
 
 he delivered to defendant [ftf Ly barrels of flour] , for sale upon 
 commission. 
 
 III. Thatonthe dayof ,18... [or on some 
 
 other day unknown to the plaintiff, before the day of 
 
 , 18... J, the defendant sold the said merchandise for 
 
 dollars. 
 
 [IV. That the commission and expenses of the defendant 
 thereon amounted to dollars.] 
 
 V. Thatonthe day of , 18..., the plaintiff 
 
 demanded from the defendant the proceeds of the said mer- 
 chandise. 
 
 VI. That he has not paid the same, nor any part thereof. 
 
 [Demand os Judoment.]i 
 
 § 853. Essential Avermants — Demand. — In an action 
 against an agent for not accounting, etc., a request to account 
 and pay over must be alleged and proved. ^ An express demand 
 should be alleged. ^ In an action against a factor for the pro- 
 ceeds of goods sold, of which he apprised his principal, a de- 
 mand must be shown, unless he had instructions to remit, or 
 the usage of his business made it his duty to do so without in- 
 structions.* If the complaint in an action for the price of goods 
 sent on commission alleges that defendant sold, but did not 
 account to plaintiff, the plaintiff must prove that a sale actually 
 took place. 5 
 
 § 854. Election of Remedy — Waiver of Tort. — ^Under 
 a complaint which contained a count for indebtedness from the 
 defendant to the plaintiff, for property sold' and delivered, and 
 money received to the plaintiff 's use, the plaintiff may prove a 
 tortious taking by the defendant, and the sale of the property 
 
 1 This form is drawn on the pre- " Bushnell v. McCnulpy, 7 Cal. 421. 
 sumption that the factor h«8 not ac- The distinction, in respect to the 
 .counted. If he has accounted, but necessity of proving a demand, be- 
 not paid, the better form is on an tween an action for not accounting, 
 "account stated." If he has not ac- and an action for not paying over, i9 
 counted, it is improbable that the discussed in Cooley v. Betts, 24 Wend, 
 plaintiff will know the precise amount 203. 
 
 of his expanses, and it is not neces- ' g^i^j y Walker, 12 Barb. 298 : 
 
 sary to credit him with them in the Halden v. Crafts, 4 E. D. Smith, 490. 
 
 complaint: N. Y. Code Comm'rs, * Cooley v. Betts, 24 Wend. 203; 
 
 note. The third allegation is not Ferris v. Paris, 10 Johns. 285; Halden 
 
 essential, but may prevent any an- v. Crafts, 4 E. D. Smith, 490. 
 
 swer setting up his claim. » Elbourne v. Upjohn, I C. & P. 672. 
 
§ 856. MONEY HAD AND RECEIVED TO PLAINTIFF'S USE. 381 
 
 ■fay him, and the receipt of the money, and the waiver of the tort, 
 and sue for the money had and received, or for the value of the 
 property, as for goods sold and delivered. If the wrong-doer 
 sells the property, and receives the money therefor, an action 
 lies at the suit of the owner for money had and received, and 
 such an action is a waiver of the tort.^ In such an action it is 
 not necessary to state how, or under what circumstances, the 
 money came to the defendant's hands. The receipt of the 
 money to the plaintiff's use is the fact which constitutes the 
 cause of action.^ 
 
 §855. Against Factor, forPrice of Goods Sold on Credit. 
 
 Form No. S06. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18...., the plaintiff 
 
 employed the defendant to sell certain goods and merchandise, 
 of the value of dollars, upon commission, and deliv- 
 ered the sfime to the defendant, who then promised to sell 
 them, and be responsible to the plaintiff for the price thereof. 
 
 n. That on the day of , 18...., as the plaintiff 
 
 is informed and believes, the defendant sold said goods and 
 
 merchandise for the sum of dollars, on a credit of 
 
 months from that date, which credit expired before the com- 
 mencement of this action. 
 
 III. That the commission and expenses of the defendant 
 thereon amount to dollars. 
 
 IV. That plaintiff further alleges, on information and belief, 
 
 that the sum of dollars is the price of said goods and 
 
 merchandise, after deducting said charges. 
 
 V. That on the day of .., , 18..., at , 
 
 the plaintiff demanded of the defendant payment of the said 
 sum of dollars. 
 
 VI. That he has not paid the same nor any part thereof. 
 
 [Dbmand of Judqmbnt.] 
 § 856 Default of Purchaser.— It is unnecessary for the 
 plaintiff to aver that the purchaser was in default, nor is it nec- 
 essary to aver a demand on him, though it might be otherwise 
 if the factors guaranteed the payment of a price to be coUected 
 by the principal.^ 
 
 1 Putnam v. Wise, 1 Hill, 234, 240, pending v^ Shoemaker, 37 Barb. 270; 
 note a; Schreppel v. Corning, 2 Seld. uomBare Byxbie v. Wood, 24 N. Y. 
 
 "?L^o°4w-fe"'2'C"pfl26; ''^\ Pars, on Cont 78; MiUiken v. 
 Allen vPlufrson, 3 Seld. 476 ; Har- Byerly. 6 How. Pr. 214. 
 
382 FOKMS OF COMPLAINTS; § 857. 
 
 § 857. Demand.— The rule is settled in New York, that a for- 
 eign factor is not liable to an action for the proceeds of sales 
 made by him for account of his principal on commission, until 
 a demand made by the principal, or instructions to remit.^ 
 
 § 858. AgainstBroker for Proceeds of Note Discounted. 
 
 Form No. 207. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That on the day of ,18.., at , the 
 
 plaintiff employed the defendant to negotiate a promissory note, 
 the property of the plaintiff, made by one A. B. [describe the 
 note] , and thereupon he delivered the same to the defendant, 
 who undertook to negotiate the same for a reasonable commis- 
 sion, and to pay the proceeds over to the plaintiff. 
 
 II. The plaintiff further alleges, on information and belief, 
 
 that on the day of , 18 , the defendant procured 
 
 said note to be discounted at the Bank, and received as 
 
 the proceeds thereof the sum of dollars. 
 
 III. That the commission and expenses of the defendant 
 thereon amount to 
 
 IV. That on the day of , 18...., at , 
 
 the plaintiff demanded of the defendant dollars, the 
 
 balance of the proceeds of said note after deducting said expenses 
 and commission. 
 
 V. That he has not paid the same. 
 
 [Dim AND OF Judgment.] 
 
 § 859. Unauthorized Sale. —For selling without authority 
 stock which the broker had purchased for the plaintiff, if this 
 fact be shown in the complaint, and that it was to be delivered 
 to him within a specified time at his option, but that he sold it 
 meanwhile against his express instructions, a demand and tender 
 on the part of the plaintiff need not be alleged. ^ 
 
 » Walden v. Crafts, 2 Abb. Pr. 801 ; Halden v. Crafts, 4 E. D. Smith, 490; 
 Ferris v. Paris, 10 Johns. 286 ; Lillie v. Hoyt, 5 Hill, 395. 
 s Clark v. Meigs, 18 Abb. Pr. 487. 
 
§ 8U1. MONEr LENT. 383 
 
 CHAPTER X. 
 
 FOR MONEY LENT. 
 § 860. Lender against Borrower. 
 
 Form No SOS, 
 
 fTlTLE.] 
 
 The plaintiff complains, and alleges; 
 
 I. That on the day of , 18..., at , he 
 
 lent to the defendant, at his request, dollars. 
 
 II. That the defendant has not paid the same, nor any part 
 thereof. 
 
 Wherefore the plaintiff demands judgment for 
 
 dollars, with interest from the daj-^ of , 18... 
 
 § 861. Essential Averments. — Every material fact must 
 be alleged with certainty ; and all those facts which are neces- 
 sary to distinguish the transaction in question from every other 
 like transaction are material. These details are often immate- 
 rial, in the sense that no issue can be made upon them ; yet are 
 material as matter of description. For instance : if to the plaint- 
 iff's allegation that "at San Francisco, he lent," the defendant 
 should answer that he never boiTowed any money from the 
 plaintiff at San Francisco, the answer would be frivolous. 
 Time is no> ordinarily material, except the order of occurrences, 
 and to fix the date when interest began. When no time is fixed 
 for the repajunent of the loan, the presumption is that it. was to 
 be paid immediately.^ Nor is it necessary to show that the debt 
 had become payable at the commencement of the action, as that 
 is matter of defense to be set up in the answer.* But whenever 
 time is material, as in the case of demand and notice to charge an 
 indorser, it must be directly and truly stated.^ 
 
 It has been held that an allegation that the money was lent 
 at the defendant's request may be omitted.* Although it is nec- 
 essary to prove a request in order to constitute a loan. 5 But in 
 general, a request in such case will be implied.^ Where a spe- 
 cial request is necessary to be averred, the genei-al allegation of 
 " though often requested " is not sufficient.'' The defect, how- 
 
 iPeete V Bratt, 6 Barb. 662. L. 984; see also, in this connection, 
 
 »lm'«iv Holmes, 19 N.Y.271; Brown v. Gamier 6 Taunt. 889; S 
 
 Mavnard v. Talcott, 11 Barb. 569. C, 1 Eng. Com. L. R 421, where it 
 
 sL'Mtro V Wetmore, 16 Cal. 379. was helJ that " hired implies a re- 
 
 . Victors V. Davis, 1 Dowl. & L. que^t^^ ^ gtevens, 24 Wend. 256; 
 
 fBrown v. Gamier, 6 Taunt. 389. Whitton v. Whitton, 38 N. H. 127. 
 «See Victors v. Davis, 1 DowL & 
 
SSi FORMS OF COMPLAINTS. § 862. 
 
 ever, is cured by verdict.^ In an action to recover money loaned, 
 if tlie complaint cliarges the indebtedness, tlie manner in which 
 it accrued, the promise to pay, and the refusal, it is suflScient.^ 
 It is not necessary to state when the debt was to be repaid, ex- 
 <;ept for the purpose of fixing a date for interest. The pre- 
 sumption of law is, that it was to be paid immediately. ^ Nor 
 is it necessary to show that the debt was due at the commence- 
 ment of the action. If it was not, that is matter of defense, to 
 be set up in the answer.'* Where the count, in an action for 
 money lent and advanced, sets forth a demand for a certain sum, 
 and the jury find a verdict for a larger sum, it is not erroneous, 
 if the declaration covered the larger sum in the ad damnum.^ 
 It may be doubted whether the allegation of non-payment is 
 necessary.^ 
 
 In an action where the complaint set out a draft drawn by 
 defendants on a house in Boston, which it avers was drawn with 
 the understanding that plaintiff should pay the same, but did 
 not aver that after paying the draft, he canceled it, and delivered 
 it up to the defendant ; it was held that the defects were fatal 
 in this form of action.'' 
 
 § 862. Payments Made on Account.— The plaintiff need 
 not state payments made on account, as this is matter of de- 
 fense. But where the complaint is verified, there is a necessity 
 to do so ; and in such case he should briefly state what amount 
 has been paid;^ As any payments must be pleaded, it is certain 
 that the most general form of averring non-payment is suflScient. 
 It is not necessary to add " or any part thereof." Although 
 nut necessary, it is highly proper to credit the defendant with any 
 payments. 
 
 § 863. The Same— No Time for Payment Agreed on. 
 
 Form No. S09. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., he loaned the 
 
 defendant, for his accommodation, and at his request, and with- 
 out any time being agreed on for repayment, the sum of 
 
 dollars. 
 
 J Leffingwell v. White, 1 Johns. ' See Lanning v. Carpenter, 20 N. 
 
 Cas. 99. Y. 458 ; McKyring v. Bull, 16 Id. 
 
 2 Williams v. Glasgow, 1 Nev. 688. 297. 
 
 » Peets V. Bratt, 6 Barb. 662. ' Lambert v. Slade, 3 Cal. 330. 
 
 « Smith V. Holmes, 19 N. T. 271. s Van Demark v. Van Demark, 13 
 
 ' Mill V. Bank of United States, 11 How. Pr. 372; Giles v. Betz. 15 Abb. 
 
 Wheat. 431, at p. 440. Pr. 285. 
 
§ 865, MONEY LENT. 385 
 
 II. That he has demanded payment of the same, but the de- 
 fendant has not paid said sum of dollars, nor any part 
 
 thereof. 
 
 [Demand of Judgment.] 
 
 § 864. By Assignee of Lender against Borrower. 
 
 Borm No. 210. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , the 
 
 defendant was indebted to one A. B., in the sum of •• 
 
 dollars, on an account for money lent by said A. B. to the de- 
 fendant. 
 
 II. That on the day of , 18..., at , the 
 
 said A. B. assigned said indebtedness to the plaintiff, of which 
 assignment defendant had due notice. 
 
 III. That he has not paid the same, nor any part thereof. 
 
 [Demand of Judgmbnt.] * 
 § 865. Partners Lenders, against Partners Borrowers. 
 
 Farm No. Sll. 
 [Title.] 
 A. B. and C. D., the plaintiffs, complain of E. F. and G. H., 
 the defendants, and allege ; 
 
 I. [Allege partnership as in Form 104. j 
 
 II. That on the day of , 18..., at , 
 
 the plaintiffs loaned to the defendants at their request the sum 
 of [five hundred] dollars, on condition that It should be repaid on 
 demand, with interest from that date, at per cent per month. 
 
 III. That plaintiffs have demanded payment thereof. 
 
 rv. That defendants, or either of them, have not paid said 
 sum, and the interest, or any part thereof. 
 
 Second. And for a second cause of action, the said plaintiffs 
 allege : 
 
 I. That on the <•.. day of , 18..., at , the 
 
 plaintiffs, at the special instance and request of the said defend- 
 ants, paid, laid out, and expended for the said defendapts, and to 
 and for their use and benefit, the sum of [five hundred] dollars ; 
 
 » This form of complaint should only plaint may be obnoxious to a motion 
 
 be employed in cases where the items to make it more definite and certain, 
 
 of the claim are embraced in an ac- if defendant is prejudiced by its want 
 
 count : Allen v. Patterson, 7 N. Y. 476. of particularity : Eno v. Woodward, 4 
 
 For authorities in support of the above N. Y. 249; see also Wood v. An- 
 
 form, consult Freeborn v. Glazier, 10 thony, 9 How. Pr. 78 ; Cheesbrough 
 
 Cal 337 ■ De Witt v. Porter, 13 Id. v. New York & Erie K. R. Co., 13 
 
 171- Beekman v. Plainer, 15 Barb. Id. 557; Hall v. Southmayd, 15 Barb. 
 
 560- Second Avenue K. E. Co. v. 32. But not necessarily so: Adams 
 
 Coleman, 24 Baib. 300. Where the v. HoUey, 12 How. Pr. 326. 
 action is not on an account, this com- 
 BSTKB, Vol. 1—25. 
 
386 FOKMS OF COMPLAINTS. § 866. 
 
 in consicleration whereof, the said defendants promised the said 
 plaintiffs to pay unto the said plaintiffs the sum of [five hundred} 
 dollars on demand, together with interest thereon. 
 
 II. That on the day of , 18.., at , 
 
 the plaintiffs demanded payment thereof. 
 
 V. That the defendants, or either of them have not paid the 
 same, the interest or any part thereof; except, etc. [State 
 briefly the total payments.] 
 
 [Dbmand of Judgment.] 
 
 CHAPTER XI. 
 
 FOE MONEY PAID. 
 
 § 866. For Money Paid to a Third Party at Defend- 
 ant's Request. 
 
 Form No. SIS, 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18.., at , at 
 
 the request of defendant, plaintiff paid to one A. B 
 
 dollars. 
 
 II. That in consideration thereof, defendant promised to pay 
 the same to plaintiff. 
 
 III. That on the day of 18.., the plaintiff de- 
 manded payment of the same from the defendant, but he has 
 not paid the same nor any part thereof. 
 
 [Demand of Judoment.] 
 
 § 867. Action for, when it Lies. — In this action there 
 may be a recovery of money which an acceptor has paid for the 
 drawer.i or which a surety has been obliged tQ pay for his 
 principal.^ In general, it lies upon an implied engagement by 
 the defendant to repay.^ But the objection that there was a 
 special agreement can not defeat the action for money paid, 
 when the written contract produced contained nothing more 
 than what the law would imply.* Where the plaintiff in an 
 action omitted to state the amount of money advanced and 
 sought to be recovered, the defect is not cured by a bill of sale 
 filed with a petition, though it- contains a statement of the 
 amount advanced.* In an action to recover back money re- 
 
 iWhitwellv. Brigham.ig Pick. 121. * Gibtsv. Bryant, 1 Pick. 118. 
 
 2 Ward V. Henrv, 6 Conn. 598. ^ Allen v. Shortridge, 1 Duval 
 
 » Grissell v. Robinson, 32 Eng. 0. (Kv.) 34. 
 L. 15. 
 
§ 869. MONEY PAID. 387 
 
 ceived by tLe defendant from the plaintiff, words in the complaint 
 charging fraud may be regarded as a matter of inducement. The 
 fraud need not be proved. ^ Money fraudulently received from a 
 bank may be sued for before the note given to the bank becomes 
 due.^ Or money received on a prize drawn by fraudulent means 
 in a lottery.^ Where a third person receives money due from a 
 debtor to his creditor, and does not pay it over to the creditor, 
 in consequence of which the creditor brings an action against the 
 debtor and recovers his demand, the debtor may sue such third 
 person to recover back the former payment.* , 
 
 § 868. Essential Allegations — Demand — Promise. — No 
 demand is necessary. It is inserted here only as an example of 
 the mode of alleging demand when it is desired to fix a date for 
 the commencement of interest. An allegation of promise is not 
 absolutely necessary, as the law will imply a promise ; but as an 
 express promise is almost already made in such cases, it is better 
 to state it. If no express promise is made, none should be 
 pleaded. 5 The statute of frauds prescribes that "every special 
 promise to answer for the debt, default, or miscarriage of an- 
 other," is void if not in writing. But it need not be alleged in 
 the complaint that the promise was "in writing." Money paid 
 upon a contract which is invalid under the statute of frauds, can 
 not be recovered back so long as the other party is ready and 
 willing to perform on his part.^ 
 
 § 869. By One having Paid Debt of Another, to be 
 
 Repaid on Demand. 
 
 Form No. SIS. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That on the .... day of , 18.., at , he paid 
 
 to the use of the defendant, at his request, and on condition 
 
 that the same should be repaid on demand, the sum of 
 
 dollars, to one A. B., for one quarter's rent of the house 
 then occupied by the defendant [or state the character of the 
 debt]. 
 
 pi. That the plaintiff, on the .... day of , 18.., at 
 
 (Jemanded payment of the same from the defendant.] 
 in. That defendant has not paid the same, nor any part 
 
 thereof. , 
 
 [Demand of Jtjdgmbnt.j 
 
 JHarpenaing ▼. Shoemaker, 37 = See Parron v. Sherwood, 17 N, 
 
 Barb. 270. "^- 22" ; see, also, Berry v. Fernandes, 
 
 2 Gibson V. Stevens, 3 McLean, 551. 1 Bing._338. .- ^r v i^o 
 
 " rates V. Phalen, 2 How. U. S. 376. « aUis v. Read, 4o N. Y. 142. 
 ♦ Priest V. Price, 3 Keyes, 222. 
 
388 POBMS OF COMPLAINTS. § 870. 
 
 § 870. Essential Allegations— Demand— Request.— The 
 
 allegation of demand is not in general necessary, except for the 
 purpose of fixing the time for interest thereon. An averment 
 of request is necessary in a complaint for money paid.^ But it 
 may be either express or implied ; and if implied, the facts rais- 
 ing it must be alleged.^ 
 § 871. The Same— To be Repaid on a Specified Say. 
 
 Form No. 2U. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That on the day of 18..., at , he 
 
 paid to the use of the defendant, and at his request, the sum of 
 
 dollars, to one A. B., the amount of apromissory 
 
 note made by the defendant. 
 
 II. That defendant promised to repay said sum, with interest, 
 to this plaintiff, on the day of ., 18... 
 
 III. That he has not paid the same, nor any part thereof. 
 
 [Demand of Judgment.] 
 
 § 872. Liability to Repay, how Created. — ^The defend- 
 ant's legal liability to pay the debt which the plaintiff has paid 
 is an essential fact in an action to recover the money paid, un- 
 less there be an express promise by defendant to repay the 
 plaintiff.3 But a party who pays an illegal claim, without 
 duress of person or of goods, or fraud on the part of the claim- 
 ant, although he makes such payment under protest, can not 
 maintain an action to recover back the money so paid.* 
 
 § 873. For Repayment of Money Paid on a Reversed 
 Judgment. 
 
 Form No. S15. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on or about the , day of , 18... , judg- 
 ment was rendered against this plaintiff in the superior court, 
 
 county of , state of California, in an action wherein 
 
 the defendant was plaintiff, and this plaintiff was defendant, 
 for the sum of dollars. 
 
 II. That on the day of 18 ..., at , the 
 
 plaintiff paid to the defendant the sum of dollars, in 
 
 satisfaction thereof. 
 
 III. That afterwards, on the day of , 18..., by 
 
 the judgment of the supreme court of the state of California, 
 
 ' 2 Greenl. Ev. 93. 3 2 Greenl. Ev. 108, sec. 114, note. 
 
 2 Durnford v. MeBsiter, 6 Mau. & S. * Flower t. Lance, 59 N. Y. 60S. 
 446 
 
§ 875. MONEY PAID. 389 
 
 said first-mentioned judgment was reversed ; hnt tliat no part of 
 the said sum paid in satisfaction thereof has been repaid to this 
 plaintiff. 
 
 [Dbmand oif .JmjaMENT.] 
 
 § 874. Essential Allegations— When Action Lies.— 
 Money paid on a reversed or suspended judgment may be recovered 
 back.^ In such action it must be shown, that the judgment was 
 reversed ; it can not be stated as erroneous.^ The award of a 
 venire de novo, to be issued by the court below, and an order that 
 the costs of reversal abide the event of the suit, are no bar to the 
 action to recover back the money paid.* An action lies to recover 
 back money paid under the award of a public oflScer, when such 
 award was obtained by fraud and imposition, and where the pay- 
 ment was made before discovering the fraud.* 
 
 § 875 By Broker, for Money Advanced on Account 
 of his Principal. 
 
 Fo7-m. Jfo. S16, 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges: 
 
 I. That the plaintiffs are partners, doing business in the city 
 of as brokers, under the firm name of A. B. & Co. 
 
 II. That, as brokers, on or about the day of , 
 
 18 ...., they purchased for and on account of the defendant, and 
 at his request, the following goods, wares, and merchandise [des- 
 ignate them], under an agreement that spid goods, wares, and 
 merchandise were to be paid for by the defendant at the expira- 
 tion of days from the day of purchase, with the right to 
 
 I the defendant to pay for said goods, wares, etc., at any tine be- 
 fore the expiration of said days. 
 
 III. That it is the custom of brokers in such cases to pur- 
 chase the goods in their own names, without disclosing the 
 name of their principal, and in case of the failure of the prin- 
 cipal to pay for the same, to resell the goods on account of the 
 principal. 
 
 IV. That on the day of 18 ..., at , 
 
 plaintiffs offered to deliver said goods, wares, and merchandise to 
 the defendant, and demanded of him payment for the same. 
 
 v. That pn or about the day of , 18..., the 
 
 defendant paid to the plaintiffs, on account of the said purchase 
 of goods, wares, etc., dollars. 
 
 1 Eaun v. Kevnolds, 18 Cal. 276. 627 ; White v. Ward 9 Jobns. 232 ; 
 
 s Bank of Washington v. Bank of Both v. Schloss fa Barb. 308. 
 
 UnitedStates, 4 Cranch C. C. 86 ; com- ' Sturges v. All.s, 10 Wend. 355. 
 
 pare McDaniel v. Riggs. 3 Id. 167; •Michigan v. Phcen-- Bank, 33 N. 
 
 Banli of Washington V. Neale, 4 Id. T. 9; modilyingsauiecttov., 7Bosw.20. 
 
390 FORMS OF COMPLAINTS. § 876. 
 
 "VT. That at the expiration of the said days, the de- 
 fendant failed to pay the balance due for said goods, and the 
 plaintiffs paid for the same, and to reimburse themselves, after- 
 wards, on the day of , 18.., sold the same on 
 
 his account, at [state the pricej. And that there is now due 
 and unpaid, from the defendant to the plaintiff, on account 
 
 thereof the sum of ,...' dollars, and interest thereon from 
 
 the' date last aforesaid. 
 
 [Demand of Judgmknt.] 
 
 § 876. Essential Allegations— Custom— Demand.— It is 
 well to set forth the custom of brokers in such transactions.^ A 
 custom of Insurance brokers to take dividends declared by 
 mutual companies in lieu of all other compensation, is bad.^ 
 The plaintiff must aver that he demanded payment of the price, 
 and offered to deliver the goods.' 
 
 § 877. For Repayment of Deposit on Furchase of Real 
 Estate. 
 
 Form No. 217. 
 . '[TiTti;.] 
 'The plaintiff complains, and alleges : 
 
 I. That on the day of , 18.., the plaintiff 
 
 and the defendant made their contract in writing, subscribed 
 by them, whereby it was mutually agreed that the said defend- 
 ant should sell to this plaintiff, and the plaintiff should buy 
 from the defendant, certain real estate [describe it], for the 
 
 sum of dollars, to be paid by the plaintiff; that the 
 
 defendant should make a good title to the said premises, and 
 
 deliver a deed thereof on the day of , 18..; 
 
 and that the plaintiff should thereupon pay to the said defend- 
 ants the said purchase money. 
 
 II. That the plaintiff, as a security, as well for the perform- 
 ance of said agreement on his part, as to secure a performance 
 thereof on the part of the defendant, then and there deposited 
 
 in the hands of said defendant the sum of .. dollars, as 
 
 part of said purchase money, to be to and for the use of the 
 defendant, and to be retained by him on account of the pur- 
 chase money, if the plaintiff should complete his purchase and 
 receive the deed ; but to be to and for the use of the plaintiff, 
 and to be returned to him, if the defendant should fail to fulfill 
 his agreement, to give a deed at the time and pursuant to the 
 agreement. 
 
 1 Wliitehouse v. Moore, 13 Abb. Vt. 142. 
 
 * M nnesotaC. E. R.Co. v. Morgsn, 62 Barb. 217. 
 
 '-^orwin V. Hamilton, 6 Uuur, 244. 
 
S 878. MOJSJSY i-Aia 391 
 
 III. That he has always been ready and willing to do and 
 perform everything in the agreement contained on his part, 
 
 and on the said day of ,18..., was ready and 
 
 willing, and offered to the defendant to accept the deed of the 
 premises pursuant to the agreement, and to pay to him the 
 balance of the purchase money due therefor. 
 
 IV. That the defendant did not on the said day of 
 
 » 18 , nor at any time since, give him a deed of the 
 
 premises pursuant to the agreement, but refused to do so. 
 
 V. That on the day of 18 , he demanded 
 
 ■of the defendant payment of the sum of dollars, de- 
 posited with him as aforesaid. 
 
 VI. That defendant lias not paid the same, nor any part 
 thereof. 
 
 [DsMAirD OP Judgment.] 
 § 878. When Action Lies. — Upon failure of the vendor to 
 toe ready with the deed, and convey a good title on the day 
 agreed, the vendee may rescind the contract-, and recover back 
 the deposit ; ^ and a demand of the deposit is a rescission.^ And 
 if on demand the vendor positively refuses, no further demand 
 is necessary. 3 But if by the laches of the vendee the remedy at 
 law is barred, and the right to a specific performance is forfeited, 
 there can be no recovery of what has been paid on the contract.* 
 Thus, upon a sale by auction, if the vendor fails to complete the 
 contract, the deposit may be recovered from the auctioneer as 
 stakeholder ; ^ and if he fail to disclose his principal, he is liable 
 for damages as well.^ But where a party makes a purchase from 
 an innocent agent, who afterwards parts with the money of his 
 principal, and it afterwards transpires that such purchase avails 
 the purchaser nothing, no right of legal complaint lies against 
 the agent.'' So, also, where a purchaser at a sale under a decree 
 in foreclosure suit, which decree was void because grantee of 
 the mortgagor was not made a party, an action will not lie to 
 recover back the money paid them on his bid.^ But where 
 plaintiff bought a lot and paid taxes thereon, and afterwards 
 discovered that the defendant had previously sold it, and the 
 
 i.Judson V. Wass, 11 Johns. 525; ' Hanson v. Bobardeau, Peake's N. 
 
 Sued, on Vendors, 359; Van Ben- P.O. 168; Item's Com, 630, 681; 
 
 thuvsen v. Crapser, 8 Johns. 257; Mauri v. Heffernan, 13 Johns. 68; 
 
 Dominick v. Sayre, 3 Sandt 655. Bank of Koobester v. Monteath, 1 
 
 J jj Den. 402 ; Mills v. Hunt, 20 Wend. 
 
 3 Bl'ood V. Goodrich, 9 Wend. 68. 431 ^ n i iqk 
 
 * Finch V. Parker, 49 N. T. 1. ' Engels v. Heatly, 5 ''f-^f^, 
 
 5 Lee V. Munn, 1 Moore, 481 ; Cur- » Boggs v. Hargrave, 16 Oal.6B9. 
 
 iing V. Shuttleworth, 6 Bing. 121. 
 
392 FORMS OF COMPLAINTS. § 879. 
 
 defendant knew of this former conveyance, and that the money 
 was fraudulently obtained, the procurement by defendant of a 
 full title to the lot will not bar the plaintiff 's recovery of the pur- 
 chase money and interest. ^ And where the sale of a city's prop- 
 erty was without authority, the plaintiff is not required to sur- 
 render the property before bringing an action for recovery back 
 of the purchase money.^ He is not required to transfer either 
 the property or the possession to the corporation before the 
 commencement of the action.^ 
 
 § 879. Essential Averments-^Demand — Offer to Per- 
 form. — To recover back purchase money on the ground of a 
 breach of covenant, the complaint must allege a breach of cove- 
 nant.* It is necessary for the plaintiff to aver his readiness and 
 willingness to fulfill at the time and place agreed.* But the 
 purchaser is not bound to make an absolute tender of perform- 
 ance ; a conditional offer to perform is sufficient.® An offer to 
 perform is necessary ; mere readiness is not sufficient.''' The 
 bringing of the action is not, however, a sufficient demand. A 
 conveyance should be demanded and refused, and a: reasonable 
 time allowed for its execution. ^ 
 
 § 880. Interest when Allowed. — The plaintiff may recover 
 interest on the deposit money recovered, from the time of de- 
 mand ;^ and on money in his hands lying idle, ready to com- 
 plete the contract. 1" 
 
 § 881. To Recover Back a Wager. 
 
 Form No. S18. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the , day of , 18..., at , 
 
 the plaintiff deposited in the hands of the defendant, as stake- 
 holder, dollars, which was to abide the €vent of a 
 
 wager made between the plaintiff and one A. B., on the result 
 of [here state what, as election, race, or otherwise]. 
 
 U. That such wager was in violation of the statute entitled 
 
 1 Alvnvez V. Brannan, 7 Cal. 503. 'Lester v. Jewett, 11 N. Y. 463; 
 
 '' MoOraofcen v. San Francisco, 16 Williams v. Healey, 3 Den. 363 ; John- 
 
 C«l- 591. ■ son V. Wygant, 11 Wend. 48. 
 
 SHerzo v. San Francisco, 83 Cal. « Fuller v. Hubbard, 6 Cow. 13; 
 
 184. Hackett v. fluson, 3 Wend. 249 ; Foote 
 
 * Willis V. Primm, 21 Tex. 880. v. West, 1 Den. 544; Lutweller T. 
 
 » Porter v. Kose, 12 Johns. 209. LiYinell, 12 Barb. 512. To the con- 
 
 •Robb V. Montgomery, 20 .Johns, traryare: Driggs ▼. Dwight, 17 Wend. 
 
 15; West v. Emmons, 5 Id. 179; Top- 71 ; Plvnn v. MeKeon, 6 Duer, 208. 
 ping V. Root, 5 Cow. 404; Rawson v. 'Fftr'quhar v. Farley, 7 Taunt. 592. 
 Johnson, 1 East, 203 ; Bellinger v. >» Sherry v. Oke, 8 Dowl. Pr. C. 
 
 KitU, 6 Barb. 273. 349. 
 
883. 
 
 MONEY PAID. S9a 
 
 "An act," etc. [title of act], passed , and the acts 
 
 amendatory thereof and supplementary thereto. 
 
 III. That no decision has as yet been rendered upon said 
 election [race or otherwise] ; and that the defendant still re- 
 tains said money as stakeholder. 
 
 IV. That on the day of , 18.., the plaintiff 
 
 demanded the return of said money of the defendant. 
 
 V. That the defendant has not returned or paid back the 
 same.^ 
 
 [Demand op JtroaMENT.] 
 
 § 882. When Action Lies. — At common law, a wager 
 made in respect to matters not affecting the feelings, interest, 
 or character of third persons, or the public peace, or good 
 morals, or public policy, is valid, and can be enforced. In 
 many of the states statutes have been passed for the discour- 
 agement of gaming, which gave a right of action for money 
 lost at play or on a wager. In California, where an illegal 
 wager is made, the parties to it may, before the wager is de- 
 cided, recover their stakes from each other, or from the stake- 
 holder. But after the money has been lost or won, and the 
 result generally known, neither party can recover from each 
 other, nor from the stakeholder, if he has paid over the money. 
 In such state, betting on a horse-race is against public policy, 
 and included within the foregoing rule.* There seems to be no 
 satisfactory reason for the distinction, as made by the English 
 cases, between actions directly between the parties to the wager 
 and actions between the loser of a bet and the stakeholder, if 
 one has been employed.^ But where an act makes wagers on 
 horse races and the holding of stakes criminal offenses, one 
 who has deposited money with a stakeholder can not recover it, 
 although the race has not come oft.* 
 
 In Kansas, money placed in the hands of a stakeholder, on 
 an illegal bet on elections, may be recovered by the depositor, 
 on demand, at any time before it is paid over to the winning 
 party.* In Michigan, money lost at play or on a horse-race, 
 may be recovered as money had and received.* 
 
 § 883. Essential Allegations — Demand. — An action to re- 
 cover back money lost at play, is not an action for a penalty or 
 
 ^Foranothierform, coTisultO'Mfiley 'Johnson v. Russell, 37 Cal. 670. 
 
 V. Beese, 6 Barb. 668 ; Belts v. Bache, * Sutphin v. Crozier, 8 Vroom, 462 ; 
 
 14 Abb. Pr. 279. see Bybee, v. Burbank, 2 Oregon, 295 ; 
 
 2 Johnson v. Bussell. 37 Cal. 672; * Reynolds v. MoRiimey, 4 Kans. 
 
 Hill V. Kidd, 43 Id. 615; Qridley v. 94; Jennings v. Keynolds, Id. 110. 
 
 Dorn 57 Id. 78. ° Grant v. Hamilton, 3 McLean, 100. 
 
394 FORMS OF COMPLAINTS. § 884. 
 
 forfeiture. 1 The complaint in such action, if founded on statute, 
 must be special, setting out the facts, and bringing the plaintiff 
 within the statute by force of which he claims to recover.* The 
 complaint is obnoxious to a motion that it be made more definite 
 and certain, unless it states the facts necessary to show clearly 
 under which section of the statute the action is brought. ^ As 
 the remedy in such action is given by statute, the plaintiff 
 must by his complaint bring himself within its provisions.^ The 
 count in a complaint stating that, on a day named, the defend- 
 ant received a specified sum belonging to or on account of the 
 plaintiff, and which is now due, being contrary to the provisions 
 of the statute designating it, is not demurrable for not stating 
 facts sujfficient to constitute a cause of action. ^ An action 
 against a stakeholder, to recover money deposited on an illegal 
 wager, may be maintained without previous demand, when the 
 money has been paid over before the action.^ In such an action 
 interest is recoverable from the time of demand, e. g., from the 
 commencement of the action.'' In New York, in an action to 
 recover money lost at play, since the statute gives the action 
 only for losses exceeding twenty-flve dollars at one sitting, and 
 requires it to be brought within three months after payment, the 
 defendant is entitled to require the plaintiff to specify in his 
 complaint the amount lost at each sitting, and the time of pay- 
 ment. It is not sufficient that these facts might be called forth 
 by requiring a bill of particulars. ^ 
 § 884. By Landlord, against Tenant, for Repayment of 
 
 Tax. 
 
 Form No. S19. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , 
 
 the plaintiff and the defendant entered into an agreement, of 
 which the following is a copy [set forth lease or agreement]. 
 
 II. That there was duly levied and assessed upon said prem- 
 ises for the year 18..., and while the covenants of the aforesaid 
 agreement were in full force, and the defendant in possession 
 
 of the premises by virtue thereof, a tax of dollars, 
 
 which the defendant neglected to pay. 
 
 ' Arrietii v. Morrissey, 1 Abb. Pr., ' Betts v. Baclie, 9 Bosw. 614. 
 
 N. S., 439. « RCickmaii v. Pitcher, 1 N. T. 
 
 2 15 Johns. 5 ; Moran v. Morrissey, 892. 
 
 18 Abb. Pr. 131. ' Euckman v. Pitcher, 20 N. Y. 9; 
 
 ' Arrieta v. Morrissey, 1 Abb. Pr., 13 Barb. 556. 
 
 N. S., 439. 8 Arrieta v. Morrissey, 1 Abb. Pr., 
 
 ' Lnngworthy v. Broomley, 29 How. N. S., 439. 
 Pr. 92. 
 
§ 887. MONEY PAID. 395 
 
 III. That by reason thereof, the plaintiff was, on the 
 
 day of , 18..., compelled to pay the said sum of 
 
 dollars, with dollars arrearages of interest, 
 
 and per cent, amounting in the whole to 
 
 dollars. 
 
 IV. That defendant has repaid no part thereof to plaintiff. 
 
 [Demand or Judgment.] 
 
 § 885. Demand. — The lessor's right of action is perfect 
 •without a previous demand of the tenant. ^ 
 
 § 886v Illegal Taxes. — In an action to recover back illegal 
 taxes, it is not sufficient to aver that the valuation of the prop- 
 erty is "unjust, disproportioned, and unequal." The complaint 
 must state specifically wherein it is so.^ 
 
 § 887. Against Carrier, to Recover Money in Excess 
 for Freight. 
 
 Form No. S20, 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , the 
 
 defendant agreed with the plaintiff to transport from 
 
 to and to deliver to him certain goods of the plainti:H, 
 
 for the sum of dollars. 
 
 II. That the said sum of dollars was a reasonable 
 
 sum to be paid therefor. 
 
 III. That the defendants entered upon the performance of 
 said agreement, and transported said goods. 
 
 IV. That on the arrival of said goods the plaintiff demanded 
 said goods of the defendant, and was ready and willing, and 
 offered to pay to the defendants for transporting the same, the 
 said sum of dollars. 
 
 V. That the defendant refused to deliver said goods to the 
 
 plaintiff, unless he would pay to the defendant dollars 
 
 for transporting the same. 
 
 VI. That on the day of , 18..., at 
 
 the plaintiff paid dollars to the defendant to obtain 
 
 delivery of said goods, which sum he paid under protest, and 
 expressly denying the defendant's right to claim it, and other- 
 wise performed all the conditions of said agreement on his part. 
 
 VU. That the defendant has not repaid the same, nor any part 
 thereof. , , 
 
 [DBMAND or JUDGMBNT.] 
 
 1 Gamer v. Hannah, 6 Duer, 262 5 Hun, 42i;; Dewey v. Board of Siy,. 
 
 2 Guy v. "Washburn, 23 Cal. Ill; etc., 2 Id. o92. 
 Bee also Dietrich y. Mayor of N. Y., 
 
396 FORMS OF COMPLAINTS. § 888. 
 
 § 888. Concurrent Acts.— Delivery of freight by the car- 
 rier, and payment of freight money by the owners, are concur- 
 rent acts, and neither party is bound to perform his part of the 
 shipping contract unless the other is ready to perform the correla- 
 tive act.i 
 
 § 889. To Recover Back Freight on Failure of Car- 
 riage. 
 
 Form No. SSI. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , the 
 
 defendant agreed with the plaintiff to transport from 
 
 to , and to deliver to him certain goods of the plaintiff, 
 
 for the sum of dollars. 
 
 i;r. That on the day of , 18..., the plaintiff paid 
 
 to the defendant the sum of doUavs, as an advance 
 
 payment for said transportation, and otherwise performed all 
 the conditions of said agreement on his part. 
 
 III. That the defendant has not transported said goods, nor 
 delivered the same to the plaintiff. 
 
 IV. That on the day of , 18.... at , the 
 
 plaintiff demanded of the defendant repayment of said sum of 
 
 dollars advanced. 
 
 V. That he has not repaid the same. 
 
 [Dbmand of Judoment.] 
 
 § 890. When Action Lies — In General. — Where money is 
 paid by one person, in consideration of an act to be done by 
 another, and the act is not performed, the money so paid may 
 be recovered back.^ Contracts for carrying freight form no ex- 
 ception to the general law, that where money is paid for an act 
 to be done by another, and the act is not done, the money may 
 be recovered back.^ Thus freight paid in advance for transpor- 
 tation of goods is to be repaid in the event of their not being 
 carried, unless there be a special agreement to the contrary.'* 
 This rule is not subject to any usage to the contrary.* Ad- 
 vanced freight can be recovered back by the charterer, in ease 
 of the loss of the ship, or non-performance of the voyage, whether 
 by fault of the master or not.^ 
 
 1 Frothingham V. Jenkins, 1 Cftl. 43. 578; Griggs v. Austin, 3 Pick. 20; 
 
 2 Beinav. Cross, 6 Cal.31; see Tay- Harris v. Kand, 4 H. H. 259, 655; 3 
 lor V. Beavers, 4 B. D. Smith, 215. Kent's Com. 226. 
 
 • Eeina v. Cross, 6 Cal. 29. => Emery v. Dunbar, 1 Daly, 408. 
 
 * Phelps V. "Williamson, 5 Sandf. ' Lawson v. Worms, 6 Cal, 865. 
 
§ 893. MONET PAID. 397 
 
 § 891. By Surety against Principal for Payment on 
 Appeal Bond. 
 
 Farm No. S2Z. 
 
 [TITLB.J 
 
 The plaintiff complains, and alleges: 
 
 I. That on the .... day at , 18..., at , a judg- 
 ment was duly given and made in the court of , 
 
 against the defendant, in favor of one , for 
 
 dollars, from which the said defendant appealed. 
 
 II. That on the .... day of , 18..., at the request of 
 
 defendant, the plaintiff executed an undertaking, a copy of 
 which is hereto annexed. 
 
 III. That on the .... day of 18..., the said judg- 
 ment was affirmed by the supreme court of this state, with 
 dollars costs and damages. 
 
 IV. That on the .... day of , 18..., the plaintiff 
 
 paid dollars, upon the said undertaking, to the said 
 
 V. That the defendant has not paid the same to plaintiff, nor 
 any part thereof. 
 
 [Demand of Judgment.] 
 [Copy of the undertaking.] 
 
 § 892. When action Lies— Essential Allegations. — 
 
 Unless there is a special promise, the defendant's legal liability 
 to pay is an essential fact.^ But in a suit by a surety against 
 his principal to recover back money paid by him on a judgment 
 against him for the debt of his principal, a transcript of the 
 judgment need not be annexed to the complaint.^ And where a 
 defendant undertook to pay any judgment which M. might re- 
 cover against L. , and the plaintiff undertook to save him harm- 
 less from such payment to the extent of five hundred dollars, 
 which sum he deposited with the defendant for that purpose, 
 the relation of principal and surety did not exist between them. 
 Under these circumstances, the deposit could not become the 
 money of the defendant till he had paid the judgment, and the 
 plaintiff is entitled to recover the money on the payment or 
 release of the judgment. ^ 
 § 893. For Repayment of Advances on Services. 
 
 Form No. S^3. 
 
 [TlTLK.] 
 
 The plaintiff comijlains, and alleges : 
 
 12 Greenl. Ev. 103. oipals and co-sureties, are discussed 
 
 'ttirker v. 61ideweU,23 Ind. 219. in 1 Para, on Cont. 33; Para. Mer. 
 
 3 Solomon v. Reese, 34 Cal. 3d, Law, 39; Baker v. Martin, S Barb. 
 
 The rights of sureties, as against prin- 634. 
 
398 FORMS OF COMPLAINTS. § 894. 
 
 I. That on the day of , 18.., at , 
 
 the plaintiff and defendant entered into an agreement, whereby 
 the plaintiff agreed to hire, and the defendant agreed to render 
 
 his services to the plaintiff as , for the term of , 
 
 in cojisideration of the sum of dollars, to be paid therefor 
 
 by the plaintiff. 
 
 II. That on the day of , 18.., at , the 
 
 plaintiff paid to the defendant as an advance for his services, to 
 be rendered thereafter, in pursuance of said agreement, the sum 
 of dollars. 
 
 III. That the defendant wholly neglected and refused to render 
 said sers'ices, although demanded by the plaintiff so to do. 
 
 IV. That the defendant has not repaid the same, nor any part 
 
 thereof. 
 
 [Dkmjsnb of Jttdgment.] 
 
 §894, When Action Lies — Demand.— The acceptance 
 of an order to pay money, to be deducted from a payment to be- 
 come due under a contract for work to be performed, is a promise 
 to the paj'ee, and the payee may recover thereon under the com- 
 mon money counts. ^ "Where an agreement has been rescinded 
 on a contract for services, or performance so neglected as to en- 
 title the plaintiff to rescind, a demand is not necessary to enable 
 the plaintiff to recover back advances.* If money has been paid 
 or services rendered in the performance of the conditions of a 
 void contract by one party thereto, and the other party fails to 
 voluntarily perform on his part, the injured party has no remedy 
 at law upon the contract. He may, however, under such circum- 
 stances, disaffirm such contract, and maintain his action at law to 
 recover back money so paid, or the value of services so rendeued.' 
 
 § 895. Sufficient Allegations.— In a complaint for money 
 expended and services performed, technical words, the meaning 
 of which is long established, rather than phrases of doubtful 
 import, should be used. The complaint ought to state that the 
 money was expended for the use and benefit of defendant, and 
 at his instance and request. So, in regard to the performance 
 of labor. "t The plaintiff must allege and prove non-performance.* 
 And it the defendant has rescinded, plaintiff need not prove readi- 
 ness to pay the whole contract price.* 
 
 1 Quin T. Hftnford, 1 Hill, 84 ; Wes- » King v. Brown, 2 Hill, 485 ; Bald- 
 ton V. Bttiker, 12 .Johns. 278; 17 win v. Palmer, 10 N. Y. 234; Fuller 
 Wend. 206; McClellan v. Anthony, 1 v. Eeed, 88 Gal. 99. 
 
 Edm. 284. « Huguetv. Owen, 1 Nev. 464. 
 
 2 Kaymond v. Bearnard, 12 Johns. » Wheeler v. Board, 12 Johns. S6S. 
 274; and see XJtica Bank v. Van Gie- * Main v. King, 8 Barb. 535. 
 
 son, 18 Id. 485. 
 
§ 898. SEBVICES, WOBK, AND LABOR. 39J 
 
 CHAPTER XII. 
 FOE SERVICES, WORK, AND LABQR. 
 § 896. For Services at a Fixed Price. 
 
 Form No. 224. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That between the day of , 18..., and the 
 
 day of , 18..., plaintiff rendered services to the 
 
 defendant, at his special instance and request, in the capacity 
 of [clerk or otherwise]. 
 
 II. That for said seryices the defendant promised to pay 
 plaintiff a salary at the rate of [fifteen dollars per week]. 
 
 III. That the defendant has not paid the said salary [or that 
 no part of said salary has been paid, except, etc.] 
 
 [Demand oi Judgment.] 
 
 § 897. When Action Lies. — The action for work, labor, 
 and services lies upon the contract. If nothing remains to be 
 done by the contractor but payment of the stipulated price, 
 plaintiff may rest upon the duty raised by the law on the part 
 of defendant to pay the price agreed, or he may plead the ex- 
 press agreement, and allege performance. ^ Or excuse for non- 
 performance, and allege part performance,^ if the contract has 
 been abandoned by agreement, or rescinded by the wrongful 
 act of a party, or its execution is incomplete by reason of an 
 excuse. 3 "Where, however, there has been a written contract, 
 it must be produced on the trial, or its absence accounted for.'* 
 Where by the terms of a contract parties performing labor under 
 it are to be paid at the end of each month, for the labor per- 
 formed to that time, and they are not paid at the stipulated 
 time, and are, by reason thereof, compelled to abandon the 
 work, they have the right to do so, and are entitled to recover 
 for the work done and not paid for, 'pro tanto, at the contract 
 
 price. ^ 
 
 § 898. The Same— Services of a Substitute.— The 
 plaintiff may recover for work and services done by his substitute 
 
 1 Farron v. Sherwood, 17 N. T. 227. 19 Id. 205 ; Smith v. Smith, 1 Sandf. 
 
 2 Wolfe V Howes, 20 N. T. 197. 206 ; Ladue v. Seymour, 24 Wend. 60 ; 
 s Parron v. Sherwood, 17 N. T. Sherman v. N. Y. Central K. K., 22 
 
 227- Wolfe V. Howes, 20 Id. 197. Barb.. 239; Adams v. The Mayor, 4 
 
 * Clark V. Smith, 14 Johns. 326, and Duer, 295. 
 
 cases there cited; Champlin v. But- ' Dobbins v. Higgins, 78 111. 440, 
 ler, 18 Id. 169; Wood v. Edwards, 
 
400 FORMS OF COMPLAINTS. § 899. 
 
 under a contract made by defendant with him, provided that the 
 services of a particular person were not contracted for, and that 
 no other person could, under the contract, fill the place of the 
 employee.^ Under a general complaint for work and labor, the 
 plaintiff may recover on proof of a special contract fully com- 
 pleted.® Where there is a special contract between principal 
 and agent, by which the entire compensation is regulated and 
 made contingent, there can be no recovery on a count for a 
 quantum meruit.^ 
 
 § 899. Service for the Public. — "Where a service for the 
 benefit of the public is required by law, and no provision for its 
 payment is made, it must be regarded as gratuitous^ and no 
 claim for compensation can be enforced.'* 
 
 § 900. Entire Contract. — Where a person agrees to work 
 for a certain period, at a certain price, or to perform certain 
 services for such an amount, he can not break off at his own 
 pleasure, and sue upon the contract for the work so far as he 
 has gone. 5 In such a case, performance is a condition prece- 
 dent to payment. 6 In a suit to recover for services for half a 
 year, under a contract to work a whole year, plaintiff having 
 quit, it requires slight evidence of assent or agreement to ap- 
 portion the contract and allow plaintiff to recover.''' A contract 
 may be entire where payment is stipulated to be made monthly, 
 where a note was to be given by the employer for the last four 
 months' labor yet to be done, on a contract of eight months' 
 duration. 8 Where one is employed by another under a con- 
 tract, at a stated salary, payable monthly or at a stated time, 
 as clerk or business agent, and the employee neglects his busi- 
 ness, the employer is not precluded from suing for damages for 
 neglect, by payment in full of employee's wages, or by not 
 setting up a counter-claim in an action by employee for his 
 wages.9 Where a party contracts for a consideration in money 
 to find a purchaser for certain lands, it is a contract of employ- 
 ment, and not a contract for the sale of land within the mean- 
 ing of the statute of frauds.^" But where a part of the remuner- 
 ation was to be land, the contract was entire, and if void as to 
 part under the statute of frauds, is void in toto, and could not 
 
 » Leet V. Wilson, 24 Cal. 398. « Hutchinson v. Wetmore, 2 Cal. 
 
 * Hurst V. Litchfield, 39 N. T. 377. 311. 
 
 ' Marshall v. Baltimore and Ohio ' Hogan v. Titlow, 14 Cal 255 
 
 K.E. Co., 16 How. (U.S.) 314, « Hutchinson v. Wetmore, 2 Cal. 
 
 'Anderson v. Bd. Com., 25 Ohio 311. 
 
 ^'; i?\ u • ^ ' Stoddard v. Treadwell, 26 Cal. 294. 
 
 ' Hutchinson v. Wetmore, 2 Cal. 311. w Heyn v. Philips, 37 Cal. 529. 
 
§ 903. SERVICES, WORK, AND LABOR. 401 
 
 be enforced. 1 But if services have been performed on such a 
 void contract, the injured party may disaffirm the contract, and 
 maintain his action at law for services rendered.^ 
 
 § 901. Essential Allegations — Demand. — A declaration 
 for labor done or services performed generally, without speci- 
 iy'mg them in particular, is good.' And where a complaint for 
 work, labor, and services, alleged an indebtedness in a sum 
 certain therefor, but omitted to allege specially the value of the 
 same or a promise to pay ; and defendant, without demurring, 
 put in an answer denying indebtedness, admitting services per- 
 formed, and setting up payment in full, and there was a v,erdict 
 for plaintiff ; whatever the defects of- the complaint may be, 
 they were cured by defendant's pleading and by the verdict.'* 
 If the contract contains special provisions as to the mode of 
 performance, the proper mode of declaring is still on the con- 
 tract itself, and not on the general counts, setting it out at 
 length, or in substance, with proper averments, to show that 
 the conditions to the plaintiff 's right of recovery have all been 
 complied with.* No demand is necessary. Bringing the ac- 
 tion is a sufficient demand on a contract to pay generally, and 
 without time or terms specified. It is a debt payable when the 
 services are performed, and no previous demand of payment is 
 required.^ An express agreement for extra pay must be shown 
 where a party works for a monthly salary.' 
 
 § 902. Joint Services. — Where two persons are employed 
 by a claimant of a tract of land to procure a confirmation 
 of the same, such service is not joint, and a separate action 
 may be maintained by such agents for their expenses thus in- 
 curred. ^ 
 
 § 903. Jurisdiction.— A British seaman on board a British 
 vessel of which a British subject is master, may, when dis- 
 charged by the master in a port of the United States, without 
 any fault on the part of the seaman, sue for and recover his 
 wages in a state court.' 
 
 >Crawford V. Morrell, 8 Johns. 255; Duer, 295; Atkinson v. Collins, 80 
 
 Van Alstine v. Wimple, 5 Cow. 164. Barb. 430 ; S. C, 9 Abb. Pr. 353 ; 
 
 • Kina V. Brown, 2 Hill, 485; Bald- Brown v. Colie, 1 E. D. Smith, 265; 
 
 •win ». Palmer, 10 N. Y. 232; Puller Wyokoffv. Myers, 44 N. T. 143. 
 
 V Reed 38 Cal. 99. ° Lake Ontario B. R. Co. v. Mason, 
 
 "a Edwards v. Nichols, 3 Day, 16; 16 N. Y. 451; Ernst v. Bartle, 1 
 
 compare Willamette Falls Transports- Johns. Cas. 319 „_,,,„ 
 
 tion Co. V. Smith, 1 Or. 171. ' Cany v. Halteck. 9 C»l. 198. 
 
 i MoManus v. Ophir S. M. Co., 4 ' Conner v. Hutchinson, 12 CaL 126. 
 
 j^gy_ 15, » Pugh V. Gillam, 1 Cal. 485. 
 
 5 Adams v. Mayor etc. of N. T., 4 
 EsTJCB, Vol. 1—26 
 
402 FOBMS OF COMPLAINTS. § 904. 
 
 § 904. For Services at a Reasonable Price. 
 
 Form No. SS5. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That between the day of , 18..., and the 
 
 day of , 18..., at , he [made sundry 
 
 repairs on several articles of furniture] for the defendant, at 
 his request. 
 
 II. That the said services were reasonably worth 
 
 dollars. 
 
 III. That defendant has not paid the same [or that no part 
 thereof has been paid, except, etc.] 
 
 [Demand of Judgment.] 
 
 § 905. When Action Lies — Allegations, — The general 
 rule of law is, while a special contract remains open or unper- 
 formed, the party whose part of it has not been done can not 
 sue in indebitatus assumpsit, to recover a compensation for what 
 he has done, until the whole shall be completed. But the ex- 
 ceptions from that rule ■ are cases in which something has been 
 done under a special contract, but not in strict accordance 
 with it ; but if the other party derives any benefit from the 
 labor done, the law implies a promise on his part to pay such a 
 remuneration as the work is worth ; and to recover it an action 
 of indebitatus assumpsit is maintainable. ^ The services must 
 have been rendered in pursuance of an agreement, express or 
 implied, that they were to be paid for.^ But a person enjoying 
 the benefit of the services of another is presumed to be bound 
 to pay therefor what they are reasonably worth.^ But this pre- 
 sumption may be rebutted by proof of agreement at a fixed 
 amount.* And where a hired person continues in employment 
 after the term of the contract, the presumption is that the same 
 wages are to be continued under the new employment, and the 
 servant can not recover on a quantum meruit.^ If the complaint 
 alleges no special contract, plaintiff can recover only what his 
 services are worth.* In an action on a quantum meruit, for 
 services rendered," excuses for not performing the contract 
 need not be set up.' The complaint in an action against a 
 guardian, to recover from his ward's estate for services ren- 
 dered them, must allege that the employment of the plaintiff 
 
 1 Dermott v. Jones, 23 How. U. S. s Moulin v. Columbet, 22 Cal. 509. 
 
 220. » Id. 
 
 » Maltby v. Harwood, 12 Barb. 473 ; ' Nicholson v. Patchin, 5 Cal. 475. 
 
 Livingston v. Ackeston, 5 Cow. 531; « Crole v. Thomas, 19 Mo. 70. 
 
 Williams V. Hutchinson, 3 N. Y. 312. ' "Wolfe v. Howes, 20 N. T. 197. 
 
§ 910- SEEVICES, WOEK, AND LABOB. 403 
 
 was a reasonable and proper expense incurred by the guard- 
 
 1 
 
 lan 
 
 § 906. Services of Wife— Proof that the plaintiff was 
 wife of one of the parties defendant, defeats the implication of 
 a contract as on a quantum meruit.^ 
 
 § 907. Subsequent Promise. — "Where a promise to pay is 
 made subsequent to the completion of the services, it must be 
 shown that the services were rendered at the defendant's re- 
 quest. ^ 
 
 § 908. By Carriers, for Freight. 
 
 Form No. eS6. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., he transported 
 
 [in his wagon], thirty tons of coal, from , to , 
 
 for the defendant, and at his request. 
 
 II. That defendant promised to pay plaintiff the sum of 
 dollars per ton, as freight thereon [or that such trans- 
 portation was reasonably worth dollars]. 
 
 III. That defendant has not paid the same, nor any part 
 thereof. 
 
 [Demaitd ov Judgment.] 
 § 909. For Passage Money. 
 
 Form JVo. SS7. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., he conveyed de- 
 fendant in his steamer, called the , from to 
 
 , at his request. 
 
 II. That defendant promised to pay plaintiff dollars 
 
 therefor [or that said passage was reasonably worth 
 
 dollars]. 
 
 III. That defendant has not paid the same nor any part 
 
 thereof. 
 
 [Demand of Judgment.] 
 
 § 910. By Parent, for Services of Minor Son. 
 
 Form No. SS8. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That one A. B. rendered services [as clerk] to the defend- 
 ant, at his request, in his store at , from the 
 
 iay of , 18.., to the day of 18... 
 
 1 Caldwell v. Young, 21 Tex. 800. Parker v. Crane, 6 Wend. 647 ; see 
 
 2 Angulo V. Sunol, 14 Cal. 402. also 1 Smith's Lead. Gas. H. & W. 
 s Bartholomew V. Jackson, 20 Johns, notes, 222; see also Hewett v. Bron- 
 
 28 ; Prear v. Hardenbergh, 6 Id. 272 ; son, 5 Daly (N. Y.) 1. 
 
404 POEMS OF COMPLAINTS. § 911. 
 
 II. That such services were reasonably worth dol- 
 lars [or allege price agreed, as in preceding forms] . 
 
 III. That the said A. B. was then, and is now, under twenty- 
 one years of age, and the minor child of this plaintiff. 
 
 IV. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand of Judgment.] 
 
 § 911. Interest of Parent. — Legal interest vests in a 
 parent for the work, labor, and services of his child, where 
 there is no express agreement. '^ But under an express agree- 
 ment, or where circumstances warrant the conclusion that it 
 was understood that the child might receive his earnings, pay- 
 ment to such child will be good.' So where the father gives 
 his implied consent. ^ So the father in the above instances can 
 not sue for such services, even though he give notice not to 
 pay said son his wages.* A father can not sue in his own name 
 for money due his minor son, in consideration of his enlistment 
 under a contract made with the father's consent. ^ 
 
 § 912. For Services and Materials, at a Fixed Price. 
 
 Form No. Z29 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 he furnished the paint, and painted defendant's house, at his 
 request. 
 
 II. That defendant promised to pay him dollars 
 
 therefor. 
 
 III. That he has not paid the same [or that no part of the 
 same has been paid, except, etc.] 
 
 [Demand of Judgment.] 
 
 § 913. Demand — Cause of Action. — In an action for 
 services and materials furnished, where both items go to con- 
 stitute a single cause of action, it must be made so to appear 
 in the complaint. Bringing the action is sufficient demand. ^ 
 
 § 914. By an Attorney for Services. 
 
 Form No. SSO. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 iShutev.Dorr, 5Wend. 204. United States ▼. Mertz, 2 "Watts, 
 
 'Id.; Benson V. Remington, 2 Mass. 406; Gale v. Parrott, 1 N. H. 28; 
 
 115 ; McCoy V. Huffman, 8 Cow. 84. Eubanka v. Peak, 2 Bailey, 497; 
 
 » Whiting V. Earle, 3 Piolc. 201 ; see Chase v. Smith, 5 Vt. 556. 
 
 Burlingame v. Burlingame, 7 Cow. 92 ; ' Mears v. Bickford, 55 Me. 628 ; see 
 
 Keen v. bprague, 3 Greenl. 77 ; Man- also Simpson v. Buck, 5 Lans. (N. Y.) 
 
 Chester v. Smith, 12 Pick. 115. 337. > v / 
 
 'Morse v. Welton, 6 Conn. 547; Teeter v. Heath, 11 Wend. 479. 
 
§ 916. SERVICES, WOKE, AND LABOE. 405 
 
 I. That between the day of , 18..., and the 
 
 day of , 18..., the plaintiff performed serv- 
 ices for the defendant, at his request, in prosecuting and de- 
 fending certain suits, and in drawing and engrossing various 
 instruments in writing, and in counseling and' advising the de- 
 fendant, and in attending in and about the business of the 
 defendant. 
 
 II. That said services were reasonably worth the sum of 
 dollars. 
 
 m. That defendant has not paid the same, nor any part 
 thereof. 
 
 [Demand ot JuDaMBNT.] 
 
 § 9 1 5. When Action Lies — Allegations. — In an action by 
 an attorney for his fees it is necessary to aver and prove on the 
 trial a retainer or employment of the plaintiff as attorney in the 
 suit or business in which his services was rendered.^ It is not 
 necessary to show a written retainer, a parol employment will suf- 
 fice ; or the jury may infer a retainer from acts of the client, in the 
 progress of the suit, amounting to a recognition of the attorney, 
 or from his undertaking to pay for the services. ^ If the services 
 were rendered as attorney of another person than the defend- 
 ant, facts showing the defendant's liability therefor must be 
 alleged.^ A complaint for money expended and services per- 
 formed should state, for the use and benefit of defendant, and 
 at his instance and request. So in regard to performance of 
 labor.* So a complaint which avers substantially that the de- 
 fendant was, at a certain time, indebted to the plaintiff in a cer- 
 tain sum, for professional services rendered at the special instance 
 and request of the defendant, is sufficient, without stating in 
 terms the value of the services, or that the defendant promised 
 to pay. 5 
 
 § 916. Measure of Damages — Contingent Fee. — ^To as- 
 certain what may be a reasonable compensation for services 
 rendered by an attorney, the amount involved and the charac- 
 ter of the business transacted by him must be taken into ac- 
 count, and the time employed ; not the time immediately devoted 
 to the business alone, but the time which he must lose from 
 other business in attending to it.* In addition to these, the 
 jury should consider the character of the litigation in which the 
 
 iHotchkissv. Leroy, 9 Johns. 142; ^ jjerritt v. Millard, 5 Bosw. 645. 
 Burghart v. GaMner, 3 Barb. 64. * Huguetv. Owen, 1 Nev. 464. 
 
 « Harper v. Williamson, 1 McCord, * Wilkins v. Stldger, 22 Gal. 232. 
 156; Owen v. Ord, 3 Car. & P. 349; « Quint v. Ophir S. M- Co., 4 Nev. 
 
 Wiggins v.Peppin, 8 Beav. 340; see 304. 
 also Allen v. Bane, 4 Id. 494. 
 
406 POEMS OF COMPLAINTS. § 917. 
 
 services were rendered ; the novelty, difficulty, and importance 
 of the questions involved ; the value of the rights or property in 
 controversy; the attorney's position in the case as leading or 
 assistant counsel, and the degree of responsibility resting upon 
 him ; and the fact, if it be a fact, that compensation was wholly 
 contingent upon success. '^ If the services were so contingent, 
 the question when such success was obtained is a question of 
 law.^ And an instruction in a suit on a quantum meruit, to re- 
 cover counsel fees, that " if plaintiffs' fee was to be contingent 
 on success, and defendant settled the suit without plaintiffs' 
 consent, plaintiffs could recover what their services were worth," 
 does not incorrectly state the law.^ And an instruction to the 
 jury in a suit to recover counsel fees, that "if plaintiffs were 
 employed by defendant to come from San Francisco to Virginia 
 city, or from San Francisco to Aurora, and there was no special 
 agreement as to the amount to be paid, they can only recover 
 the value of the services rendered at the place where they were 
 rendered, with the addition of reasonable traveling expenses; 
 and if the traveling expenses were paid by defendant, then they 
 can not be recovered by plaintiffs," was held clearly erroneous, 
 and properly refused."* 
 
 § 917. For Services and Materials, at a Reasonable 
 Price. 
 
 Form No. SSI. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , he 
 
 built a house known as No , street, in said city, 
 
 and furnished the materials therefor, for the defendant, at his 
 request. 
 
 II. That the said work and materials were reasonably worth 
 dollars. 
 
 III. That the defendant has not paid the same. 
 
 [Demand of Judgment.] 
 § 918. By Advertising Agents, for Services and Dis- 
 bursements. 
 
 Form No. ZS2. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That between the day of , 18..., and the 
 
 day of ..., 18..., at , the plaintiff rendered 
 
 1 Leitensdorfer v. King, 3 West » Quint v. Ophir S. M.. Co.. 4 Nev. 
 Coast Eep. 135. 804. 
 
 2 Leitensdorfer v. King, 3 West * Quint v. Ophir S. M. Co., 4 Nev. 
 Coast Kep. 135. 814. 
 
§ 921. SERVICES, WOEK, AND LABOR. 407 
 
 services to the defendant, at his request, in causing the defend- 
 ant's advertisements of his business to be inserted in the fol- 
 lowing named newspapers and periodicals [names of news- 
 papers] . 
 
 n. That the plaintiff paid out at the request of the defend- 
 ant, for such insertions for the use of the defendant, and at his 
 request dollars. 
 
 III. That the defendant promised to pay said amount, to- 
 gether with a reasonable sum for said services. 
 
 rV. That said services were reasonably worth dollars. 
 
 V. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Dbmand ot Jttdgment.] ^ 
 
 § 919. By Publisher and Proprietor for Advertising. 
 
 Form No. SSS. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That the plaintiffs, at the times hereinafter mentioned, were 
 publishers and proprietors of the daily newspaper known as the 
 
 "Mountain Avalanche," published at , in the county 
 
 of , in this state. 
 
 n. That between the day of , 18 , and the 
 
 day of , 18 , the plaintiff published 
 
 insertions in the said newspaper of the advertisements of the 
 defendant at his request. 
 
 m. That such services and publication were reasonably worth 
 dollars. 
 
 IV. That the defendant has not paid the same, nor any part 
 thereof. 
 
 [DlMAND OF JxTDGMElfT.] 
 
 § 920. For Stabling Horses. 
 
 Form No. SS4. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That, at the request of the defendant, he provided for, 
 
 kept, and fed a horse of the defendant, from the day of 
 
 , 18 , to the day of , 18 
 
 n. That such keeping and finding of said horse was reason- 
 ably worth dollars. 
 
 TTT . That he has not paid the same, nor any part thereof. 
 
 PDeMAUD of JlTDGXrKNT.] 
 
 § 921. Special Contract, Completely Filled. 
 
 Form No. SSS. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
408 POEMS OF COMPLAINTS. § 922. 
 
 I. That on the day of 18.,, at , the 
 
 defendant made his agreement in writing under his hand and 
 seal, of which the following is a copy [copy of agreement]. 
 
 n. That the plaintiff has duly performed all the conditions 
 thereof on his part. 
 
 III. That on the day of , 18..., at , 
 
 the plaintiff demanded of the defendant payment of the sum of 
 dollars, in said contract mentioned. 
 
 IV. That he has not paid the same nor any part thereof. 
 
 [Demand of Judgment.] 
 
 § 922. Partnership. — ^Where partners employed plaintiff 
 on condition that a certain portion of his wages should be re- 
 tained till a certain sum had accumulated, when plaintiff should 
 become a partner, and during the accumulation the firm dis- 
 solved, the plaintiff may sue on the special contract or for work 
 and labor. ^ 
 
 § 923. Performance. — If the plaintiff undertakes to aver 
 performance by setting out the facts showing performance, he 
 may be held to aver them with certainty.' 
 
 § 924. The Same, where the Contract was Fulfilled 
 by an Assignee. 
 
 Form No. S36. 
 
 [TiTLI.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , de- 
 fendants, in consideration of , executed and delivered in 
 
 writing, under their hands and seals, a contract with one A. B., 
 of which the following is a copy, and marked " Exhibit A." 
 
 n. That thereafter, and before the day of , 
 
 said A. B. duly assigned the same, and all his rights under it, 
 to the plaintiff. 
 
 III. That up to the time of the assignment, the assignor had 
 duly performed all the conditions of the contract on his part, 
 and that since said assignment, the plaintiff duly performed all 
 the conditions thereof on his part. 
 
 rV. That on the ..., day of , 18..., at , 
 
 the plaintiff demanded of the defendant payment of the sum of 
 dollars, in said contract mentioned. 
 
 V. That he has not paid the same. 
 
 [Demand of JuDaMiNT] 
 [Annex copy of contract, marked " Exhibit A."] 
 
 1 Adams v. Pugh, 7 Cal. 150. ified contract, see Smith v. Brown, 17 
 
 ' Hatch V. Peet, 23 Barb. 575. As Barb. 431. 
 to averment of performance on a mod- 
 
§ 928. USE AND OCCUPATION. 409 
 
 J 925. Performance, how Alleged. — One suing on a con- 
 tract assigned to him may allege performance by saying that 
 up to the time of the assignment the assignor had performed, 
 on his part, aU the covenants of the contract, and that after- 
 wards the plaintiff fully performed the conditions imposed by 
 the contract on the assignor.^ Where plaintiff has bound him- 
 self to procure certain acts to be done by third parties, adding 
 that those on whose behalf he acted have also performed, is 
 unnecessary.* 
 
 CHAPTER XIII. 
 
 FOE USE AND OOCUPATIOU. 
 § 926. On an Express Contract.. 
 
 Form No. 2S7. 
 [TrrLB.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 the plaintiff rented to the defendant, and the defendant hired 
 
 from the plaintiff [the oiHce No , street], and agreed 
 
 to pay therefore the monthly rent of dollars, payable 
 
 [monthly] , on the first day of each [month] . 
 
 II. That defendant occupied the said premises from the 
 
 day of , 18..., to the day of , 
 
 18... 
 
 III. That defendant has not paid dollars, being the 
 
 [part of said] rent due on the day of , 18... 
 
 [DSMAUD OP JtJDGMBNT.] 
 
 § 927. Summary Proceedings to Recover Possession. — 
 
 It seems that where a landlord elects to terminate a lease for 
 non-payment of rent, and commences summary proceedings to 
 recover possession, he is not entitled to recover for use and oc- 
 cupation from the time he terminated the lease until he obtained 
 possession. 3 
 
 § 928. Occupancy. — Actual continued occupancy is not 
 necessary to be shown.* 
 
 » California Steam Navigation Co. ' Powers v. Witty, 42 How. Pr. 
 
 V. Wright. 6 Cal. 258. 352 ; S. C, 4 Daly, 652. 
 
 'Kowland v. Phaleu. 1 Bosw. 43. * Little v. Martin, 3 Wend. 220; 
 
 For cases of services rendered to rela- Westlal^e v. De Graw, 26 Id. 669 ; 
 
 tivea, see Thornton v. Grange, 66 Hoffman v. Delihanty, 18 Abb. Pr. 
 
 Barb. 507: and Neal v. Gilmore, 79 388. 
 Pa. St. 421. 
 
410 FOEMS OF COMPLAINTS. § 929. 
 
 § 929. For Rent Reserved in a Lease. 
 
 Form No. ISS8. 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 the defendant entered into a covenant with plaintiff, under 
 their hands and seals, a copy of which is annexed hereto, and 
 made a part of this complaint, marked "Exhibit A" [or state 
 the substance of the agreement] . 
 
 II. That the defendant has not paid the rent for the month 
 ending on the day of , 18..., amounting to 
 
 dollars. 
 
 [Demand or JuDOMBifT.] 
 [Annex copy of lease, marked "Exhibit A."] 
 
 § 930. Parties. — Where parties own tracts in severalty, they 
 can not join in an action to recover for the use and occupation of 
 the entire tract. '^ 
 
 § 931. Designation of Premises. — The premises may bo 
 designated by a simple reference to the lease', as in the above 
 form.^ 
 
 § 932. Forfeiture. — The tenant can not insist that his own 
 act amounted to a forfeiture ; if he could, the consequence 
 would be that in every instance of an action of covenant for 
 rent brought on a lease containing a provision that it should be 
 void on the non-performance of the covenants, the landlord 
 would be defeated by a tenant showing his own default at a 
 prior period, which made the lease void.-'' At commop law there 
 was no forfeiture of an estate for years for the non-payment of 
 rent.* By failure to pay rent when demanded, the contract 
 under the lease is determined, and possession from that titne is 
 tortious.5 But the mere failure to pay will not make a forfeit- 
 ure ; a formal demand on the day it becomes due is necessary.* 
 "Where the record shows no demand of rent, there can be no 
 forfeiture.'' 
 
 § 933. Liability of Tenant.— The tenant is liable to pay- 
 ment until he has restored full and complete possession to the 
 landlord, and his liability to pay the rent is not discharged by an 
 eviction, unless under a title superior to the landlord's, or by 
 some agency of the landlord's. ^ 
 
 > Tennant v. Pfiste^Sl Cal. 611. ♦ Chipman v. Emerio, 8 Cal. 273. 
 
 J^ J^^O^ass V. Lord Wymouth, Cowp. » Treat v. Liddell, 10 Cal. 802, * 
 666; Van Rensselaer v. Bradley, 3 » Gaskill v. Trainer, 8 Cal. 334. 
 
 a"^ J T, I, , • „' „ , ' Chipman v. Emeric, 3 Cal. 273. 
 
 ono S®^--^'^*"^-^*"^^''*^-*''''''^- 'Schilling V. Holmes, 28 Cal. 
 
 409; Stuyvesantv. Davis, gPaigeCh. 227. "uimo», ^o v.ai. 
 
 427 ; Camfleld v. Westcott, 6 Cow. 270. 
 
§ 936. USE AND OCCUPATION. 411 
 
 § 934. Term of Lease.— If the tenant takes a receipt from 
 his landlord, specifying the amount of rent paid, and the length 
 of the term, to commence on the expiration of the lease, the new 
 term will be for the time specified in the receipt. No new ten- 
 ancy by implication arises in such cases. ^ "Where a landlord 
 served upon his tenant, wiio was occupying under him certain 
 premises, under a rent of two hundred and fifty dollars per month, 
 a notice to quit, but before the time at which, by the effect of 
 the notice, the tenancy would have terminated, the tenant, 
 through a third person, proposed to the landlord to continue 
 his occupancy, at a rent of three hundred dollars, with which 
 proposal the landlord expressed himself satisfied, but did not in 
 terms notify the tenant of his acceptance of it, and he con- 
 tinued to occupy the premises, it was held, in an action by the 
 landlord for rent at the rate of three hundred dollars per month, 
 that it must be inferred that the subsequent occupation of the 
 tenant was with the consent of the landlord, on the basis of the 
 proposal, rather than as a trespasser, and that plaintiff was enti- 
 tled to recover. ** 
 
 § 935. For Deficiency after a Re-entry. 
 
 Foiin No. S39. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges: 
 
 I. That by a lease made between the plaintiff and the de- 
 fendant, on the J day of , 18.., at , 
 
 the defendant rented from the plaintiff, and the plaintiff de- 
 mised and leased to the defendant, the premises therein men- 
 tioned, at the monthly rent of dollars, gold coin, pay- 
 able monthly in advance, on the day of each and every 
 
 month, and that said indenture contained a covenant of which the 
 following is a copy [copy covenant]. 
 
 II. The defendant, contrary to his covenant [state the breach], 
 and that the plaintiff for that cause re-entered the premises, and 
 took possession thereof by virtue of the authority given in said 
 lease, and as agent of the defendant, and not otherwise, and that 
 he made diligent efforts to relet the premises for the defendant, 
 but was unable to do so. 
 
 III. That thereby the plaintiff lost the sum of dollars 
 
 for rent for the months of and 
 
 [DBMAND or JUDGMBNT.] 
 
 § 936. Surrender of Premises. — One of the most impor- 
 tant duties of the tenant is to peaceably surrender the premises 
 
 1 Blumenberg v. Myres, 32 Cal. 93. « Hoff ii. Baum, 21 Cal. 120. 
 
412 FORMS OF COMPLAINTS. § 937 
 
 as soon as the tenancy has expired. i The surrender of a lease- 
 hold estate is the merger of the fee, but this will not defeat the 
 rights of a third party intervening before the merger took 
 
 effect. 2 
 
 § 937. Waiver of Forfeiture.— The subsequent receipt of 
 the rent by the lessor is a waiver of the forfeiture unless the 
 covenant has a continuing covenant, or the lessor was ignorant 
 of the breach. 3 The forfeiture of a lease is not waived by the 
 lessor allowing the tenant to hold over, without notice to quit, 
 unless the circumstances show a new term created.* 
 
 § 938. Against Assignee of Lessee. 
 
 Form No. UO. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., by a lease made 
 
 between this plaintiff and one A. B., under the hand and seal 
 of said A. B. [of which a copy is annexed] , this plaintiff leased 
 to said A. B., and said A. B. rented from the plaintiff, certain 
 lands, to have and to hold to said A. B. and his assigns, from 
 
 the day of , 18..., for the term of , 
 
 then next ensuing, for the [monthly] rent of dollars, 
 
 payable to this plaintiff on the [state days of payment] , which 
 rent said A. B. did thereby, for himself and his assigns, cove- 
 nant to pay to the plaintiff accordingly. 
 
 II. That thereafter, and during said term, to wit, on the 
 
 day of ,18... [naming a day before breach] , all the 
 
 estate and interest of said A. B. in said term, by an assignment 
 then by him made, became vested in the defendant, who there- 
 upon entered into possession of the demised premises. 
 
 III. That during the time the defendant was so possessed of 
 
 the premises, to wit, on the day of , 18..., th« 
 
 sum of dollars of said rent, for the month ending on 
 
 that day [or otherwise], became due to the plaintiff from the 
 defendant. 
 
 IV. That he has not paid the same or any part thereof. 
 
 [Demand of Judombnt.] 
 
 § 939. Assignment. — In such cases the assignment need 
 not be more specifically alleged. ^ 
 
 § 940. Liability. — The liability of an assignee is confined 
 to the term during which he holds the premises, by himself, or 
 
 » Schilling v. Holmes, 23 Cal. 227. * Calderwood v. Brooks, 28 Cal. 151. 
 
 » G-askill V. Trainer, 3 Cal. 8S4. ' Van Kenssolaer v. Bradley, 3 Den. 
 
 « MoGlynn v. Moore, 25 Cal. 384. 135; Norton v. Vultee, 1 Hall, 427. 
 
§ 943, USE AND OCCUPATION. 413 
 
 his immediate tenants,^ The assignee of a lease may discharge 
 himself from all liability under the covenants of a lease, by as- 
 signing over ; and the assignment over maybe to a beggar, 9, feme 
 covert, or a person on the eve of quitting the country forever, pro- 
 viding the assignment be executed before his departure, and even 
 though a premium is given as an inducement to accept the transfer.* 
 
 § 941. Non-Fayment. — It is sufficient to aver that the de- 
 fendant has not paid the same.' 
 
 § 942. Grantee of Reversion against Lessee. 
 
 Foitn No. S41, 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That one A. B. was the owner in fee of certain premises 
 
 [describe them] , and on the day of , 18..., by 
 
 a lease made between him and the defendant, under the hand 
 and seal of the defendant, a copy of which is annexed and 
 made apart of this complaint, marked "Exhibit A," he leased 
 
 to the defendant said premises, from the day of , 
 
 18..., for the term of then next ensuing, for the 
 
 [monthly or yearly] rent of dollars, payable to said 
 
 A. B., his heirs and assigns, on the [state days of payment], 
 which rent the defendant did thereby covenant to pay to said 
 A. B., his heirs and assigns, accordingly. 
 
 II. That thereafter, on the day of , 18..., 
 
 at , said A. B., by his deed, under his hand and seal, 
 
 sold and conveyed to this plaintiff the demised premises. 
 
 III. That notice thereof was given to this defendant. 
 
 IV. That thereafter, to wit, on the day of , 
 
 18..., the sum of dollars of said rent, for the quarter 
 
 ending on that day [or otherwise], became due to the plaintiff 
 from the defendant. 
 
 v. That the defendant has not paid the same, nor any part 
 thereof. 
 
 [DkMAST) or JUDOMENT.]' 
 
 § 943. Allegation of Assignment. 
 
 Form No. S42, 
 
 That on the day of , at , the said 
 
 A. B., assigned to the plaintiff said lease and covenants, and all 
 his right to the rent therein secured. 
 
 lAstor V. L'Amoreux, 4 Sandf. » Johnson v. Sherman, 15 Cal. 287; 
 
 524. As tr> the liability of one citing 2 Piatt on Leases, 416. 
 
 in possession without a valid assign- ' Dubois, Ex'rs of, v. Van Orden, 6 
 
 ment, see Carter v. Hammett, 12 Johns. 105; Van Eensselaer v. Bradley, 
 
 Barb. 253; Ryerss v. Farwell, 9 Id. 3 Den. 135: Holsman v. De Gray, 6 
 
 tU6. ^^^- ^^- 73- 
 
414 FORMS OF COMPLAINTS. § 944. 
 
 § 944. Allegation by Heir of Reversioner. 
 
 Farm So. S4S. 
 
 That the said A. B. was on the day of 
 
 18..., seised of the reversion in said demised premises. That 
 
 afterwards, and during the said term, on the day of 
 
 , 18..., A. B. died so seised; whereupon the said rever- 
 sion then descended to the plaintiff as his son and heir, and 
 thereby plaintiff then became seised thereof in fee. 
 
 § 945. Assignments. — In these actions, the complaint 
 should specifically allege the assignments to the grantee, and 
 the better plan is to annex a copy or copies (if there be several) 
 to the complaint.' It should be alleged distinctly that there 
 was a lease, that the defendant was lessee, and is sued for the 
 rent.^ 
 
 § 946. Assignee of Devisee against Assignee of Lessee. 
 
 Form No. S44, 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That one A. B. was in his life-time the owner in fee of certain 
 
 premises [describe them], and that on the day of , 
 
 18...., he leased the same to one C. D., by his lease dated on 
 that day, a copy of which is hereto annexed as part of this 
 complaint, and marked " Exhibit A." 
 
 II. That by virtue thereof the said C. D. entered into the 
 possession of the demised premises. 
 
 III. That on the day. of 18..., at , the 
 
 said C. D. assigned all his right, title, and interest in the de- 
 mised premises tb the defendant. 
 
 rv. That on the day of , 18..., at , the 
 
 said A. B. died. 
 
 V. That by his last will and testament which was proved 
 and admitted to probate before the probate court of the county 
 
 of , in this state, on the day of , 18..., 
 
 the said A. B. devised the reversion and rent to one E. F. 
 
 VI. That on the day of , 18..., at , 
 
 the said E. F. assigued the said reversion and rent to the 
 plaintiff. 
 
 VII. That after the said E. F. so assigned the said reversion 
 
 and rent to the plaintiff, the sum of dollars accrued 
 
 as the rent of said premises for the [month or quarter] ending 
 
 on the day of , 18..., under and according to the 
 
 terms of said lease. 
 
 » Beardsley v. Knight, 4 Vt. 471. « Willard v. Tillman, 2 Hill, 274. 
 
§ 951. USE AND OCCTJPATIOil. 415 
 
 VIII. That the defendant has not paid the same. 
 [DBMAI7D or Judgment.] 
 [Annex copy of lease, marked "Exhibit A."] 
 § 947. Ezecutor and Devisee. — One who is both executor 
 and devisee of the lessor may join a claim for rent subsequent 
 to the decease of testator with a claim for damages for breach of 
 covenant respecting personal property embraced in the lease." 
 § 948. Tor Use and Occupation of Pasture. 
 
 Form No 24$, 
 
 [TlTLl.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at 
 
 the defendant hired from the plaintiff, and the plaiutiff rented 
 to the defendant, the vacant lot of land [describe it], at the rent 
 
 of, dollars per month, payable in gold coin, monthly 
 
 [or otherwise] , on the first day of each month. 
 
 II. That defendant occupied said lot by permission of the 
 plaintiff, and as his tenant, under said agreement, tor the graz- 
 ing of his sheep [or cattle], from the day of , 18..., 
 
 to the day of , 18... 
 
 III. That the defendant has not paid the rent for the months 
 
 of and 
 
 [Demand of Judgment.] 
 
 § 949. Request and Permission. — The allegation that the 
 use and occupation of the lot in question was at the request of 
 defendant, and by the permission of plaintiff, is the allegation of 
 a contract, which the plaintiff is bound to establish to enable 
 him to succeed. 3 
 
 § 950. Terms Stated. — If a plaintiff in an action on a con- 
 tract for the pasturage of cattle at a fixed price, does not insert 
 in his complaint any quantum valebat count, judgment must be 
 for the stipulated sum, or for the defendant.* 
 
 § 951. For Use and Occupation — Implied Contract. 
 
 Form No. IS46. 
 [Title.] 
 The plaintiff complains, and alleges : 
 I. That defendant occupied the [stable or dwelling house, 
 
 No. 47 street], by permission of the plaintiff, from 
 
 the day of , 18..., until the day of , 
 
 18.... 
 
 1 It is not expected that this form ' Armstrong v. Hall, 17 How. Pr. 
 
 will be of special use to the profession 76. „ , « o ^ , on, 
 
 in California, but instances may pre- s Sampson v. Schaeffer, 3 Oal.201. 
 
 sent themselves where it may be of * Seale v. Emerson, 25 Cal. 293. 
 utility, and it is therefore inserted. 
 
416 FQRMS OF COMPLAINTS. § 952. 
 
 II. That the use of the said premises for the said period was 
 reasonably worth dollars. 
 
 III. That defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand or JtrooMBNT.] 
 
 § 952 When Action Lies. — No action for use and occupa- 
 tion will lie where possession is adverse and tortious, for there 
 can be no implication of a contract.^ The right to recover for 
 use and occupation is founded alone upon contract.^ Or an 
 agreement by which the tenant, with permission of the owner, 
 occupied the premises.^ But in certain cases a contract may be 
 implied.'* And in an action for use and occupation upon an 
 understanding on appeal, the defendants are estopped from deny- 
 ing that the defendant in the judgment was in possession at 
 the time he took his appeal and gave the undertaking.* If the 
 occupation was contrary to the owner's will, his action must be 
 for damages.^ If the complaint shows that the occupation was 
 a trespass, it is of course bad on demurrer.''' 
 
 § 953. Essential Allegations — Title — Indebtedness. — 
 The plaintiff need not set forth an implied demise, but may 
 declare for use and occupation, and recover on the special facts 
 shown.8 No tenancy can be implied under a party who has not 
 the legal estate. ^ But it would appear that one occupying and 
 paying rent to an apparent proprietor as his landlord, can not, 
 when sued, allege that he has only the equitable estate. i" An 
 averment of use and occupation as tenant is a sufficient aver- 
 ment of indebtedness. 11 The plaintiff must show that the de- 
 fendant used and occupied the premises by the permission of 
 the plaintiff. 1^ It seems that in this action plaintiff neeci not 
 aver title, and the defendant can not object to his title. ^^ 
 
 § 954. Parties. — The grantee of demised premises, on the 
 reversion thereof, is the proper party to bring suit for the recov- 
 ery of rent which accrued and became due before, and, a for- 
 tiori, after the conveyance to him. After such conveyance an 
 
 1 Sampson v. Schaeffer,' 3 Cal. 196 ; « Smith v. Stewart, 6 Johns. 46 ; 
 Kamirez V. Murray, 5 Oal. 222. Bancroft v. Wardwell, 13 Id. 489; 
 
 2 0' Connor v.Corbett, 3 Cal. 370; Hall v. Southmayd, 16 Barb. 32. 
 Espy V. Fanton, 6 Or. 428 ; Lankford ' Hurd v. Miller, 2 Hilt. 540. 
 
 V. Ghreen, 52 Ala. 103. » Morris v. Niles, 12 Abb. Pr. 103 ; 
 
 3 Atkins V. Humphrey et als., 52 Waters v. Clark, 22 How. Pr. 104. 
 Eng. Com. L. 658 ; Selby v. Browne, ' Morgell v. Paul, 2 Man. & R. 303. 
 7 Q. B. 620 ; 63 Eng. Com. L. 620. " Dolby v. lies, 11 Ad. & E. 335. 
 
 * Osgood V. Dewey, 13 Johns. 240 ; " "Walker v. Mauro, 18 Mo. 664. 
 
 Abeel v. Radoliff, Id. 297 ; Porter v. i' Sampson v. Schaeffer, 3 Cal. 196 ; 
 
 Bleiler, 17 Barb. 149; Eyerss v. Far- Hathaway v. Rvan, 35 Id. 188. 
 
 well, 9 Id. 615. 13 Vernan v. Smith, 16 N. Y. 329. 
 
 ' Murdock v. Brooks, 38 Cal. 596. 
 
§ 959. USE AND OCCUPATION. 417 
 
 action by the gi-antor for rent can not be sustained.' Tenants 
 in common may join in an action for use and occupation without 
 showing a joint demise.''' So, in Elngland, an infant can also 
 maintain this action, although he has a general guardian.' 
 
 § 955. Separate Demands. — In New York, in an action for 
 use and occupation, demands for rent which accrued in the life- 
 time of a decedent, and for rent accruing after his decease, while 
 the tenancy was continued by the executors on account of the 
 estate, are properly joined as one cause of action, against the 
 executors as such.* 
 
 § 956. Tenant at Will. — If a party enters upon 'land which 
 he has contracted to purchase, with the consent of the vendor, 
 and the contract falls through because the purchaser fails to 
 pay as agreed, the vendor may treat him as a tenant at will, 
 and may bring assumpsit for use and occupation, or it seems he 
 may maintain trespass. ^ After the determination of a tenancy 
 at will by notice, assumpsit for use and occupation lies against 
 the tenant, if he holds over.* 
 
 § 957. Interest. — Interest may be recovered on a claim for 
 use and occupation, after demand.'' 
 
 § 958. Improvements. — A defendant who entered under a 
 bond for a deed from the plaintiff, can not set off his improve- 
 ments against the damages for use and occupation.^ 
 
 § 959. For Lodging and Board. 
 Form No. S47. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That from the day of , 18..., until the 
 
 (Jay of , 18..., defendant occupied certain rooms in the 
 
 house [No. 54 street, city of ] by permission 
 
 of the plaintiff, and was furnished by the plaintiff, at his request, 
 with food, attendance, and other necessaries. 
 
 II. That in consideration thereof the defendant promised to 
 pay [or the same was reasonably worth] the sum of 
 
 dollars. 
 
 III. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand or Jttdqment.] 
 
 1 Anderson V. Tread well, 1 Edm. 'Woodbury v. Woodbury, 47 JN.H. 
 201 11; Jones v. Nathrop, 1 West Coast 
 
 2 Porter v. Bleiler, 17 Barb. 149; Kep. 279. 
 
 'Porter v. Bleiler, 17 Barb. 149; « Hogsott v. Ellis, 17 Mich. 851; 3 
 end see Pitzmaurice v. Waugh, 3 Am. Law. Eev. 757, 758. 
 Dowl. & K. 273 ; 16 Eng. Com. L. K. ' Ten Eyok v. Houghtahng, 12 How. 
 
 169 ^'^' ^^^' 
 
 4 Pugsley v. Aiken, 11 N. T. 494. ' Kilburn v, Eitchie, 2 Cal. 14e. 
 
 BsTEB, Vol. 1—27. 
 
418 FOKMS OF COMPLAINTS. § 960. 
 
 § 960. Allegation for Lodging. 
 
 Form No. ^48- 
 
 That the defendant occupied rooms in, and part of the house 
 
 of the plaintiff, at [and if furnished, add, together 
 
 with furniture, linen and other household necessaries of the 
 plaintiff which were therein], by the plaintiff 's permission, as 
 his tenant, from, etc. 
 
 § 961. For the Hire of Personal Property. 
 
 Form No. $49. 
 [Title] 
 The plaintiff complains, and alleges : 
 
 I. That between the day of , 18..., and the 
 
 day of , 18..., the defendant hired from the plaintiff 
 
 [horses, carriages, etc.], for which he promised to pay the 
 
 plaintiff, on account thereof , the sum of dollars on the 
 
 day of , 18.. 
 
 II. That the defendant has not paid the same [or that no part 
 of the same has been paid except the sum of, etc.] 
 
 [Demand ov Judsmbnt.] 
 
 § 962. Essftntial Allegations. — Facts on which the amount 
 of compensation depends must be set f orth.^ The word ' ' hired ", 
 implies a request.^ 
 
 § 963. Hire of a Piano-forte, with Damages for not 
 Returning it 
 
 Form No. SSO. 
 [Title.] 
 
 The plaintiff complains, and alleges ; 
 
 First. — For a first cause of action : 
 
 I. That on the day of , 18..., at , 
 
 the defendant hired from the plaintiff one piano-forte, the prop- 
 erty of the plaintiff, for the space of [six] months, then "next 
 ensuing, to be returned to this plaintiff at the expiration of said 
 time in good condition, reasonable wear excepted, for the use 
 of which he promised to pay this plaintiff a reasonable sum [or 
 state how much] . 
 
 II. That dollars was a reasonable sum for the hire 
 
 of the same. 
 
 III. That he has not paid the same. 
 Second. — And for a second cause of action: 
 
 I. That the value of the piano-forte so hired by the defend- 
 ant, as above alleged, was dollars, and that the de- 
 fendant in violation of his ageeement, has not returned the 
 same, although he was, on the day of 18.. .| 
 
 * Eelyea V. Drew, 1 Den. 581. * Emery v. Fell, 2 T. B. 28. ' 
 
§ 964. USE AND OCCUPATION. 419 
 
 at , requested by the plaintiff so to do; to the damage 
 
 of the plaintiff dollars. 
 
 [DaMAND or Judgment.] 
 § 964. Hire of Furniture, etc., with Damages for Ill- 
 use. 
 
 Form No. S51. 
 
 [TlTLI.] 
 
 The plaintiff complains, and alleges: 
 First. — For a first cause of action : 
 
 I. That on the day of , 18 .... at , the 
 
 plaintiff rented to the defendant, and the defendant hired from 
 the plaintiff, household furniture, plate, pictures, and books, the 
 property of the plaintiff, to wit [describe the articles], for the 
 
 space of then next ensuing, to be returned by him to 
 
 the plaintiff at the expiration of said time, in good condition, 
 reasonable wear and tear thereof excepted. 
 
 n. That he promised to pay the plaintiff for the use thereof 
 
 dollars [in equal quarterly payments, on the 
 
 days ot thereafter]. 
 
 III. That no part thereof has been paid. 
 
 Second. — ^For a second cause of action: 
 
 [Allege as in preceding form to II.] 
 
 II. The plaintiff further alleges that the value of the prop- 
 erty so hired by the defendant, as above alleged, was 
 
 dollars. 
 
 m. That the defendant, in violation of his said agreement 
 to return the same in good condition, neglected the same, and 
 through his negligence, carelessness, and ill-use the same be- 
 came broken, defaced, and injured beyond the reasonable wear 
 thereof, and in that condition were returned to the plaintiff, to 
 his damage dollars. 
 
 [DlMAlTD OP JUDQMBKT.] 
 
SUBDIVISION THIRD. 
 
 UPON WRITTEN INSTRUMENTS FOR THE PAYMENT OF 
 MONEY ONLY. 
 
 CHAPTER I. 
 
 NEGOTIABLE PAPER, BONDS, ETtt 
 § 965. Against Maker. 
 
 Form No. SSS. 
 [Title.! 
 The plaintiff complains, and alleges: 
 
 I. That the defendant, in consideration of , made, 
 
 executed, and delivered to the plaintiff a certain instrument in 
 writing of which a copy is hereto annexed and made a part 
 hereof [or an instrument in writing in the words and figures 
 following, to wit]. 
 
 II. That by the terms of said written instrument, the de- 
 fendant became indebted to the plaintiff in the sum of 
 
 dollars. 
 
 III. That the plaintiff has duly performed all the conditions 
 thereof on his part. 
 
 IV. That defendant has not paid the same, nor any part 
 thereof. 
 
 [Demaitd ot Judgment.] 
 
 § 966. Altered Instrument — Onus Proband! — A party 
 who claims under an instrument which appears upon its face 
 to have been altered, is bound to explain the alteration. But 
 not so, when the alteration is averred by the opposite party, 
 and it does not appear upon the face of the instrument.'^ The 
 alteration of the number of a state bond, payable to bearer, and 
 not required by law to be numbered, is immaterial, and though 
 made with fraudulent intent, does not avoid it in the hands of 
 a subsequent bona fide holder for value without notice.^ In 
 California, the code provides that the party producing a writ- 
 ing as genuine which has been altered, or appears to have been 
 
 J United States V. Linn, 1 How. U. S. 10*. 
 
 a Commonwealth v. Emigrant Industrial Savings Bank, 98 Mass. 12. 
 420 
 
§ 968. NEGOTIABLE PAPEE, BONDS, ETC. 421 
 
 altered, after its execution, in a part material to the question 
 in dispute, must account for the appearance or alteration. He 
 may show that the alteration was made by another without his 
 concurrence, or was made with the consent of the parties affected 
 by it, or otherwise properly or innocently made, or that the 
 alteration did not change the meaning or language of the in- 
 strument. If he do that, he may give the writing in evidence, 
 but not otherwise.^ 
 
 § 967. Consideration, when and how must be Alleged. 
 Where a copy of the instrument declared on is set out in the 
 complaint, and it purports to be for value received, that is a 
 suflBcient allegation of a consideration.^ In California, a writ- 
 ten instrument is presumptive evidence of a consideration. ' 
 In declaring upon such instrument, it may be unnecessary to 
 aver a consideration if the instrument set out expresses one ; 
 but if none is expressed on the face of the instrument, it is ; 
 and it is the better practice in all cases unless upon negotiable 
 instruments. Where the instrument neither expresses a consid- 
 eration nor, as in the case of a sealed instrument or negotia- 
 ble paper, imports one, a consideration should be averred.* 
 Where the instrument requires a consideration to support it, 
 the co)asideration must be averred in the complaint. ^ In an 
 action on a written instrument, it is not necessary to set out the 
 consideration.* In Iowa and Indiana, an agreement in writing 
 imports a consideration.^ In a sealed instrument, the seal im- 
 ports consideration. 8 So, in an undertaking to answer for the 
 debt of another.* 
 
 § 968. Constrnction. — In construing written instruments, 
 the circumstances under which they were written, and the sub- 
 sequent conduct of the parties, may he consulted.'" Under the 
 code, the recitals of an instrument averred in a complaint to 
 have been executed by the defendant, have the same effect as 
 specific averments of the truth of the facts recited.^i When the 
 plaintiff sets out in his complaint the contract sued on in the 
 terms in which it is written, and then puts a false con- 
 struction on its terms, the allegation repugnant to its terms 
 
 1 California Code Civil Proo., sec. * Sloan v. Gibson, 4 Mo. 32 ; Caples 
 
 1982. V. Branham, 20 Id. 244. 
 
 ! Jerome v. Whitney, 7 Johns. 321 ; ' Tousley v. Olds, 6 Clark, 526. 
 Walrad V. Petrie, 4 Wend. 575; Prin- » McCarty v. Beach, 10 Cal. 461; 
 
 die V. Caruthers, 15 N. Y. 425. Willis v. Kempt, 17 Id. 98; Clark v. 
 
 a Civil Code, sec. 1614. Thorpe, 2 Bosw. 680. 
 
 * Spear v. Downing, 12 Abb. Pr. 437. ' Bush v. SWivens, 24 Wend. 256. 
 
 5 Prindie v Caruthers, 10 How. Pr. '» McNeil v. Shirley, 33 Cal. 202. 
 33 ■ Joseph V. Holt, 37 Cal. 250. " Slack v. Heath, 1 Abb. Pr. 331. 
 
422 FOKMS OF COMPLAINTS. § 96fl: 
 
 should be regarded as surplusage;,^ and where a declaration 
 contains an averment of a fact dehors the written contract, 
 which is in itself immaterial, the party making such averment 
 is not bound to prove it.^ In Massachusetts, where a written 
 agreement has been executed by one person only, by which he 
 agreed to deliver to another, upon the formation of a coal com- 
 pany, and when the certificate should have been issued, a cer- 
 tain amount of the stock of the company, and the agreement 
 recites that the person who was to receive the stock agreed, in 
 consideration thereof, to sell a certain araou'nt of the stock of 
 the company at a specified valuation, and collect payment 
 therefor, a declaration in -an action against the signer of the 
 agreement is demurrable, which does not allege that there was 
 a consideration for the defendant's promise, or that the com- 
 pany has been formed, the certificates issued, or the specified 
 amount of stock sold, and payment therefor collected by the 
 plaintiff.^ 
 
 All the terms of the promise, including the kind of money in 
 which the payment is to be made, are to be ascertained by an 
 inspection and construction of the instrument.* 
 
 § 969. Date of an Instrument. — In pleading a written inr 
 strument, e. g., a, release, if the only materiality of the date is 
 that it was after another event, it is sufficient to say that it was 
 so. 5 
 
 § 970. Delivery. — A delivery of a deed need not be stated 
 in a pleading, and it may be stated to have been made on a day 
 other than its date. Time need not be averred, unless it be the 
 essence of the contract.^ That an instrument was executed, 
 imports a delivery.'' The delivery of a promissory note fe suf- 
 ficiently averred by implication, and indorsement is unneces- 
 sary to transfer the title. ^ 
 
 § 971. Executed Implies Subscribed.— An averment 
 that an agreement was "executed," amounts to an averment that 
 it was " subscribed " by the party to be charged.^ If, in plead- 
 ing a deed executed by a married woman, the pleader states that 
 it was executed by attorney, he must also state the facts which 
 
 1 Love V. S. N. L. W. & M. Co., « Cro. Eliz. 178 ; Ashmore v. Evp- 
 
 82 Cal. 639; Stoddard v. Treadwell, ley, Cro. Jac. 420; Moore V. Jones, 2 
 
 26 Id. 800. Ld. Eaym. 1538 ; Tompkins v. Cor- 
 
 ' Wilson V. Codman'i Executors, 3 win, 9 Cow. 255; Brinkerhoff v. Law- 
 
 Cranch, 193. rence, 2 Sandf. Oh. 400. 
 
 'Murdock v. Caldwell, 8 Allen ' Brinkerhoff v. Lawrence, 2 Sandf. 
 
 (Mass.), 309. * Ch. 400. 
 
 * Burnett v. Stearns, 33 Cal. 468. sPerdy v. Vermilvea, 8 N. T. 346. 
 
 • Kellogg V. Baker, 15 Abb. Pr. 286. » Cheney v. Cook, 7 Wis. 418. 
 
§ 977. NEGOTIABLE PAPER, BONDS, ETC. 423 
 
 make the case one in ■which such mode of execution is valid, or 
 his pleading is demurrable. ^ 
 
 § 972. Foreign Language. — If the instrument is in a for- 
 eign language, it is sufficient on demurrer to set forth in that 
 language.* But it is better to plead it according to its legal 
 effect. 
 
 § 973. Genuineness Deemed AAmitteA. — When an action 
 is brought upon a written instrument, and the complaint con- 
 tains a copy of such instrument, or a copy is annexed thereto, 
 the genuineness and due execution of such instrument shall be 
 deemed admitted, unless the answer denying the same be veri- 
 fied. ^ This section extends only to those parties who are 
 alleged to have "signed" the instrument.* Therefore if the 
 action is against an administrator, the genuineness of the 
 signature must be proved.^ So proceedings which are void by 
 reason of the infirmity of the statute under which they are had, 
 are not cured by an averment in a complaint that they were 
 duly and legally had ; and a failure to deny the averment in the 
 answer is not an admission that the proceedings were valid or 
 legal.8 
 
 § 974. Identity — Where the note was made payable to G. 
 W., and the plaintiff named himself as Gilbert W., it was held 
 that he should be presumed the same person.' Where the 
 note was signed in the name of one of the partnership " & 
 Co.," and in the action the defendants were named individually, 
 it was held sufficient.* 
 
 § 975. Indebtedness of Defendant.— If a complaint should 
 only allege that defendant was indebted to plaintiff in a named 
 sum, which defendant refused to pay, it would be insufficient. 
 It must allege the facts which constitute the indebtedness.' 
 
 § 976. Indorsement of Sealed Instrument. — Assumpsit 
 may be brought on the unsealed indorsement of a sealed writing.^" 
 
 § 977. Interest of Parties. — Where the covenant pui-ported 
 to be made between two persons by name, of the first part, and 
 the corporate company, of the second part, and only one of the 
 persons of the first part signed the instrument, and the cove- 
 nant ran between the party of the first part and the party of the 
 second part, it was proper for the person who had signed on the 
 
 » Johnston V.Taylor, 15 Abb. Pr. 339. ' Marshall v. Kockwood, 12 How. 
 
 'Nourny T..r)ubosty, 12 Abb. Pr. Pr. 452. 
 
 128 * Butchers' and DroTers' Bank v. 
 
 » California Code C. P., sec. 447. Jacobson, 15 Abb. Pr. 218; S. C, 24 
 
 * Heath V. Lent, ICal. 411. How. Pr. 204. ,„„,„„ 
 
 6 Id. sPiercvv.Sabin, lOCal. 28. 
 
 6 People V. Hastings, 29 Cal. 449. •» Campbell v. Jordan, Hemp. 534. 
 
424: FORMS 01" COMPLAINTS. § 978. 
 
 first part to sue alone; because the covenant inured to the 
 benefit of those who were parties toit.^ 
 
 § 978. Issue of Warrant. — Averring the issue of a warrant 
 imports a seal, if the case is one in which a seal is necessary.^ 
 
 § 979. Lost Instrument. — A party need not plead loss of 
 an instrument, unless it be a negotiable instrument properly in- 
 dorsed. ^ A motion to make. a pleading more definite and cer- 
 tain, by setting forth the contents of a written instrument relied 
 on by the pleader, should not prevail where it appears that the 
 instrument is lost, and the pleading apprises the adverse party of 
 the nature and effect of the instrument.* 
 
 § 980. New Promise, when to be Alleged. —In Cali- 
 fornia in actions upon written instruments for the payment of 
 money, as promissory notes, the date, being shown, shows the 
 period when the right of action accrues. In such cases, any new 
 promise which has been made, renewing or continuing the con- 
 tract, should be alleged. ^ In Ohio, this provision under the 
 statute extends to accounts and other instruments ' ' for the un- 
 conditional payment of money only," But a judgment can not 
 be so pleaded.' 
 
 § 681. Promissory Notes. — "When a copy of the promis- 
 sory note is annexed and the answer is not verified, the due ex- 
 ecution and genuineness of the note is admitted.'' So of a bond. 
 And if the complaint contains a copy of the written instrument 
 sued on, and is not verified, and the answer denies its execution 
 but is not sworn to, the note is admissible in evidence without 
 proof of the genuineness of the signature.* 
 
 § 982. Written Instruments, how Proved. — An instru- 
 ment in writing, executed and attested by a. subscribing witpess 
 in a foreign country, or beyond the jurisdiction of the court, 
 can be proved by evidence of the handwriting of the party who 
 executed it.^ The intent of the statute is fully carried out by 
 excluding parol testimony to contradict a deed; but where 
 parties admit the real facts of the transaction in their pleadings, 
 these admissions are to be taken as modifications of the instru- 
 ment,!" as no proof is required of facts admitted or not denied." 
 
 ' Phil. W. &B. R. R. Co. v. Howard. Horn v. Volcano Wat. Co., 13 Id. 62 ; 
 
 13 How. (U. S.) 308. Kinney v. Osborne, 14 Id. 112. • 
 
 2 Beekman v. Traver, 20 Wend. 67. « Corcoran v. Doll, 32 Cal. 83 ; Horn 
 
 « McCluskyv. Gerhauser, 2 Nev. 47. v. Volcano Wat. Co., 13 Id. 62; Sac- 
 
 * Kellogg y. Baker, 15 Abb. Pr. ramento County v. Bird, Id. 66; Bur- 
 
 286. nett v. Stearns, 33 Id. 468. 
 
 5 Smith V. Richmond, 19 Cal. 481. ' McMinn v. Whelan. 27 Cal. 300. 
 
 « Memphis Med. College v. Newton, '° Lee v. Evans, 8 Cal. 424. 
 
 2 Handy, 163. "Patterson v. Ely, 19 Cal. 28; 
 
 'Burnett v. Stearns, 33 Cal. 468; Landers v. Bolton, 26 Id. 416. 
 
§ 984. NEGOTIABLE PAPEK, BOJSDS, ETC, 425 
 
 Where a written instrument is made part of the complaint with 
 both the first and second counts, and in the second count is 
 referred to as abeady on file with the former, the latter will be 
 sufflcient.1 The legal effect of written documents offered in 
 evidence is a question for the court and not for the jury.^ 
 
 § 983. Sealed Contract— Allegations in Actions on.— 
 Where the sealing of an instrument is sufficient according to 
 the laws of a state in which it was made, the remedy upon it in 
 a state in which such mode of sealing is not sufficient, must be 
 according to the law of the latter state, instead of the former. 
 Thus, in New York, an action on a deed sealed with a scroll, 
 must be an action appropriate to unsealed instruments.-* An im- 
 pression of the seal of a corporation stamped upon the paper 
 on which a mortgage of the corporation is written, is a good 
 seal, although no adhesive substance is used.* In declaring on 
 a specialty, it must be averred that it was sealed by the defend- 
 ant. Setting it forth, with its conclusion, that it was signed and 
 sealed with the name of the defendant and with an L. S. , is not 
 sufficient;* although "indenture" "deed," "writing obliga- 
 tory," were held to import a seal.® The delivery of a specialty, 
 though essential to its validity, need not be stated in a plead- 
 ing. It is enough to allege that it was made by the defendant 
 as that implies delivery.'' Where the law requires an instru- 
 ment to be under seal to authorize a particular remedy thereon, 
 it is necessary to state that it is under seal. But where it is 
 wholly immaterial whether the instrument was or was not under 
 seal, an averment that it was in writing is supported by the pro- 
 duction of a written instrument, either with or without a 
 seal attached.^ In California all distinctions between sealed and 
 unsealed instruments are abolished. ^ 
 
 § 984. Sttbscription by Agent.— The word " agent," ap- 
 pended to the signature of the agent, is not mei-e descriptio 
 personcB. It is the desiguation of the capacity in which he 
 
 > Peck V. Hensley, 21 Ind. 844. 1 Ch. PI. 109 ; Van Santwood v. Sand- 
 
 « Carpenter v. Thurston, 24 Cal. 268. ford, 12 Johns. 197 ; Macomb v. Thomp- 
 
 s Warren v. Lynch, 5 Johns. 239; son, 14 Id. 207. To much the same 
 
 Van Santwood v. Sandford, 12 Id. 198 ; effect : btaunton v. Camp, 4 Barb. 274. 
 
 Coit V. Milliken, 1 Den. 376 ; Andrews « Cabell v. Vaughan, 1 Saund. 291, 
 
 V Herriot, 4 Cow. 508; 4 Kent. 451 ; Phillips v. Clift, 4 Hurlst. & N. 168. 
 
 U S. Bank v. Donnally, 8 Pet. 362 ; '1 Ch. PI. 348 ; Cabell v. Vaughan, 
 
 Story's Confl. of L. 47 ; Thrasher v. 1 Saund. 291 ; Marshall v. Eockwood, 
 
 Everett 3 Gill & J. 234 ; Douglass t. 12 How. Pr. 452 ; Lafayette Insurance 
 
 Oldham 6 N. H. 150. Co. v. Rogers, 30 Barb. 491. 
 
 *Hendee v. Pinkertoo, 14 Allen « Jenkins v. Pell. 20 Wend. 450. 
 
 (Ma7s!),881. 'CivilQode, sec. 1629. 
 ' Cabell v. Vaughan, 1 Saund. 291 ; 
 
426 FORMS OF COMPLAINTS. § 985. 
 
 acted. 1 Where a contract purported upon its face to have been 
 made by an agent, and it is set fortii in full in the complaint, it 
 must be alleged that the agency was duly constituted.' 
 
 § 985. Writing Implied. — An award set forth, "as in the 
 form following," and with a date, may be presumed to have 
 been in writing.^ When the terms and conditions of an agree- 
 ment are set out in a comjilaint, and the violation of that agree- 
 ment is charged against the defendant, if it is such an instru- 
 ment as the law requires to be in writing, and the complaint is 
 silent whether it was oral or in writing, courts will presume it 
 was a lawful written instrument, until the contrary appears.* 
 
 § 986 On a Bond for the Payment of Money Only. 
 
 Foim No. S5S. 
 [Title.] 
 The plaintiff complains, and alleges ; 
 
 I. That on the day of , 18..., at , 
 
 the defendant covenanted with the plaintiff, under his hand and 
 seal, to pay to the plaintiff the sum tf dollars. 
 
 II. That he has not paid the same, nor any part thereof. 
 
 [Demand os Judgment.] 
 
 § 987. Breach, how Alleged. — It is not alone sufficient to 
 show a technical breach of the literal terms of a covenant in a 
 bond; but upon a reasonable interpretation of the intent and 
 meaning of the covenant, to be ascertained from all its 
 terms, it must likewise appear that some substantial right 
 guaranteed thereby has been infringed, or some of its purposes 
 defeated.^ It is suggested that specific breaches should be 
 assigned, even on a mere money bond.''- In California, where 
 the contract or bond was for payment in gold coin, it must be 
 averred, and judgment demanded accordingly. 
 
 § 988. Mutilated Bond.— If the obligee tear off the seal 
 or cancel a bond, in consequence of fraud and imposition prac- 
 ticed by the obligor, he may declare on such mutilated bond as 
 the deed of the party, making a proper averment of the special 
 facts.* 
 
 § 989. What Written Obligation Imports.— The term 
 «' written obligation" imports a sealed instrument.^ Under the 
 
 ^Sayrev.Niohols, 7Cal.585;seeTol- sufficient to charge a garantor, see 
 
 mie V. Dean, Wash. Terr. 46. That Tappan v. Cleveland 'E. B. Co., 4 
 
 "executed" implies "subscribed," see West. Law Month. 67. ' 
 
 Cheney v. Cook, 7 Wis- 413. « Levitaky v. Johnson. 35 Cal. 41. 
 
 2 Kegents v. Detroit Society, 12 ' Western Bank v. Sherwood. 29 
 Mich. 138. Barb. 383. 
 
 3 Munro v. Alaire, 2 Cai. 320. » 3 t. R. 153 ; United States v. Spald-, 
 
 4 Van Doren v. Tjader, 1 Nev. 380. ing, 2 Mason Cir. Ot. 478. 
 'What averments on a bond are * Clark v. Phillips, Hempst, 294. 
 
§ 993, NEGOTIABLE PAPER, BONDS, ETC. 427 
 
 statutes of California, bonds are on the same footing as under- 
 takings.^ 
 
 § 990. On a Bond— Pleading It according to its Legal 
 Effect. 
 
 Form No. S5i. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the , day of , 18..., at , 
 
 the defendant covenanted -with the plaintiff, under his hand 
 and seal, to pay to the plaintiff the sum of [state the actual 
 debt], in gold coin, on the day of , with in- 
 terest from, etc. [or otherwise, accordino- to the condition]. 
 
 II. That he has not paid the same, nor any part thereof. 
 
 [Demand of Judgment.] 
 § 991. By a Surviving Obligee, on a Joint Bond. 
 
 Foi-m No. SSS. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on day of .. , 18...., at , the 
 
 defendant made and sealed his certain bond, of which the fol- 
 lowing is a copy [copy the bond], and thereby covenanted with 
 
 the plaintiff and one R. N. to pay them the sum of 
 
 dollars [on, etc., stating when it became payable]. 
 
 li. That on the day of , 18..., at , 
 
 said R. N. died. 
 
 III. That no part thereof has been paid. 
 
 [Demand or Judgment.] 
 
 § 992. Averment of Death of Joint Obligee. — One of 
 
 two joint obligees can not sue, unless he avers that the other is 
 dead. Wherever, by reason of a several interest, one may sue, 
 he must set forth the bond truly, and then by proper averments 
 show a cause of action in himself alone. ^ 
 
 § 993. Joint and Several Bonds.— No recovery can be 
 had on a bond purporting to be the joint bond of the principal 
 and sureties, but signed by the latter only.* It is otherwise as 
 to a joint and several bond, where each signer is considered 
 bound without the signature of the others named as obligors.* 
 "Where a complaint is against two or three obligors, it must 
 aver that all three have failed to pay the debt.s Under the 
 statute of Indiana, the representatives of a deceased joint 
 obligor may be sued on a joint and several obligation. ^ A dec- 
 
 1 Canfleld v. Bates, 13 Cal. 606. * Sacramento v. Dunlap 14 Cal. 421. 
 
 2 Ehle V. Purdy, 6 Wend. 629. ' Robins v. Pope, Hemp?t. 219 
 
 s Sacramento v. Dunlap, 14 Cal. 421. « Curtis v. Bowrie, 2 ALcLeuu, 374. 
 
428 FORMS OF COMPLAINTS, § 994. 
 
 laration in an action of debt against the obligor, setting forth a 
 joint and several bond," can not be annulled by adding a new 
 count, setting forth a bond by the defendant and another per- 
 son.^ 
 
 CHAPTER ir. 
 BILLS OF EXCHANGE. 
 
 § 994. Foreign Bills — Payee against Drawer for Non- 
 acceptance. 
 
 Form No. S5B. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , the 
 
 defendant made and delivered to the plaintiff his certain bill of 
 exchange of that date, of which the following is a copy [copy 
 the bill] : 
 
 II. That on the day of , 18..., the same was 
 
 duly presented to the said , for acceptance, but was not 
 
 accepted, and was thereupon duly protested for non-acceptance. 
 
 III. That due notice thereof, was given to the defendant. 
 
 IV. That he has not paid the same. 
 
 V. That the value of a similar bill of exchange at the time of 
 
 said protest, in , that being the place where said bill 
 
 was negotiated, and where such bills were currently sold, was 
 dollars. 
 
 Wherefore the plaintiff demands judgment against the de- 
 fendant for the sum of dollars [the amount named in 
 
 the bill], and dollars damages, and interest on said 
 
 sums from the day of , 18... [date of protest;], 
 
 and costs of suit.''' 
 
 § 995. Definition. — A bill of exchange drawn in one state 
 upon a person in another, is a foreign bill.3 And such bills are, 
 by the custom of merchants, protested if dishonored.* 
 
 § 966. Alteration. — If a person who has no authority to do 
 so, and who is not the agent of the payee for that purpose, 
 writes across the face of a draft, payable generally in money, 
 the words, "payable in United States gold coin," it is not such 
 an alteration of the draft as vitiates it.s An alteration is ma- 
 
 ' Postmaster General v. Pvidgeway, Buokner v. Finley, 2 Id. 586 ; Bank 
 
 <^'lp-135. of United States V. Daniel; 12 Id. 32. 
 
 2 The fifth paragraph above is drawn » Townsley v. Sumrall, 2 Pet 170. 
 
 under section 3238 of the California ' l.iangenberger v. Kroewer, 48 C'al. 
 
 Civil Code. 147 ; see, also, Flint v. Craig, 59 Barb. 
 
 "Dickens v. Beal, 10 Pet. 572: 819. 
 
§ 999. BILLS OP EXCHANGE. 429 
 
 terial and vitiating which, in any event, may alter the prom- 
 isor's liability, if made without his consent at the time, unless 
 subsequently approved by him.^ Erasing the words " to ordei 
 of," and inserting "or bearer" instead, is material, and avoids 
 the note.** In such case it matters not whether the altei-ation 
 was with fraudulent intent or not, except as such intention 
 affects the right to resort to the original indebtedness. ^ 
 
 § 997. Damages on Foreign Bills, Protested.— In Cali- 
 fornia, damages are allowed, as a full compensation for interest 
 accrued before notice of dishonor, re-exchange, expenses, and 
 all other damages, in favor of holders for value only, upon bills 
 of exchange drawn or negotiated in that state, and protested 
 for non-acceptance or non-payment, as follows: 1. If drawn 
 upon any person in this state, two dollars upon each one hun- 
 dred of the principal sum specified in the bill; 2. If drawn 
 upon any person out of this state, but in any of the other states 
 west of the Rocky Mountains, five dollars upon each one hun- 
 dred ; 3. If drawn upon any person in any of the United States 
 east of the Rocky Mountains, ten dollars upon each one hun- 
 dred; 4. If drawn upon any person in any foreign country, 
 fifteen dollars upon each one hundred.* 
 
 § 998. Demand. — If a draft does not specify the kind of 
 monej' in which it is made payable, a demand of pa3'raent in 
 gold coin, whether by a notary or the holder, is not sufficient 
 to charge the drawer. The demand must be in accordance 
 with the tenor of the draft. ^ In the absence of evidence to the 
 contrary, the presumption is that the notary demands payment 
 in the kind of money in which it appears on its face to be made 
 payable.^ 
 
 § 999. Dishonor. — In California a bill of exchange, payable 
 a certain time after sight, which is not accepted within ten 
 d»ys after its date, in addition to the time which would suffice, 
 with ordinary diligence, to forward it for acceptance, is pre- 
 sumed to have been dishonored.'' A negotiable instrument is 
 dishonored when it is either not paid or not accepted accord- 
 ing to its tenor, on presentment for that purpose, or without 
 
 'Langenberger v. Kroeger, 48 Gal. 'Civil Code, sees. 3234,3235; see, 
 
 147 ; see, also, Flint V. Craig, 59 Barb, also, Pratalongo v. Larco, 47 Cal. 
 
 3I9_' 378, as to who is the holder in the 
 
 2 Booth V. Powers, 56 N. T. 22. sense of the statute. 
 
 s Id. ; see. also, Meyer v. Huneke, * Langenberger v. Kroeger, 48 Cal. 
 
 55 N. Y. 412; reversing S. C 65 147. 
 
 Barb. ■S04;Seibel V. Vaughan, 69 111. «Id. , „ ..„ . 
 
 257 ; Beal v. Roberts, 113 Mass. 525 ; ' Civil Code of California, sec. 
 
 Evans v. Foreman, 60 Mo. 449 ; Good- 8133. 
 speed V. Cutler, 75 111. 634. 
 
430 FOBMS OP COMPLAINTS. § 1000. 
 
 presentment, where that is excused.^ Although a check may 
 be actually dishonored by a refusal to pay upon proper demand 
 before presumptive dishonor, yet to charge the check with the 
 infirmity of dishonor in the hands of a third party to whom it 
 has been transferred for a valuable consideration before the 
 expiration of the reasonable time which must elapse before pre- 
 sumptive dishonor, notice of the previous actual dishonor must 
 be brought home to him, or he holds it free from the taint of 
 dishonor.^ 
 
 § 1000. Difference of Exchange. — On a bill of exchange, 
 payable at a particular place, it seems that the difference of 
 exehange may be recovered, if the declaration contains the 
 proper averment ; but this is not the rule where the action is on 
 a note, and there is no count or allegation in the declaration to 
 cover the rate of exchange. ^ 
 
 § 1001. Non-Payment. — In a declaration on a foreign bill 
 of exchange for non-payment, no averment of a presentment 
 for acceptance, or of a refusal and protest for non-acceptance 
 of the bill is necessary.'' 
 
 § 1002. Notice of Dishonor. — Notice of dishonor may be 
 given by a holder, or by any party to the instrument who might 
 be compelled to pay it to the holder, and who would, upon 
 taking it up, have a right to reimbursement from the party to 
 whom the notice is given. ^ 
 
 § 1003. Omission of Demand and Notice. — The omission 
 of demand and notice, when it can not possibly operate to the 
 injury of the indorser of a note or drawer of a bill, does not 
 discharge him ; but the mere insolvency of the maker does not 
 excuse neglect in presenting it.' ^ 
 
 § 1004. Protest, when Necessary. — Protest of a domestic 
 note is unnecessary.' A bill of exchange drawn in one state 
 upon a citizen in another state is a foreign bill, and protesk is 
 necessary to charge the indorser. ^ 
 
 § 1005. Waiver of Demand. — A promise by an indorser 
 after notice of non-payment of a note, and with full knowledge 
 of all the circumstances attending presentment and demand, to 
 pay the note or give a new one, will constitute a waiver of any 
 
 1 Civil Code, sec. 3141. and notice, see Id., sees. 8155-8160; 
 
 2 Himmelmann v. Hotaling, 40 Cal. see, also,' Himmelmann v. Hotaling, 
 111. 40 Cal. 111. 
 
 « Weed T. Miller, 1 McLean, 423. » Smith v. Miller, 52 N. Y. 545. 
 
 * Brown v. Barry, 3 Dall. 365.. ' Brennan v. Lowry, 4 Daly, 253. 
 
 , ' Civil Code, sec. 3142. For service * Commercial Bank of Kentucky 7. 
 
 of notice see Id., sees. 3144-3151. Varnum, 49 N. Y. 269. 
 As to what will excuse presentment 
 
§ 1011. BILLS OF EXCHANGE. 431 
 
 irregularities in presenting or demanding tlie same, and even of 
 presentment and demand itself.^ 
 
 § 1006. Parties. — ^An agent to whom a bill of exchange has 
 been indorsed in blank for collection, may fill up the assignment 
 to himself, and bring suit in his own name.^ 
 
 §1007. Payee against Acceptor. — 
 
 Fcynn No. S57. 
 
 [TlTLK.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18 ..., at , 
 
 the defendant made and delivered to the plaintiff his certain bill 
 of exchange of that date, of which the following is a copy [copy 
 the bill]. 
 
 n. That on the day of , 18 ..., at , 
 
 the defendant accepted the said bill. 
 
 III. That he has not paid the same, nor any part thereof. 
 [Dbmanb op Jitdqmbnt.]' 
 
 § 1008. Acceptance. — In an action against B., as sole ac- 
 ceptor of a bill of exchange, the plaintiffs were entitled to re- 
 cover under a count in the declaration, stating the bill to have 
 been drawn on " B. & Co.," and to have been accepted by B., by 
 the name and style of " B. & Co.," by writing the name of " B. 
 & Co." thereon.* 
 
 § 1009. Letter of Credit. — A letter of credit, promising 
 unconditionally to accept bills drawn upon its faith, is an actual 
 acceptance in favor of a person who, upon its faith, receives a 
 bill so drawn for a valuable consideration.^ 
 
 § 1010. Promise to Indorse. — A promise to indorse under a 
 letter of credit representing a person to be good, and saying that 
 the writer will indorse for him on a purchase to a certain amount, 
 the writer is not liable directly for the amount of a sale without 
 any request to indorse, and unless an indorsement is required no 
 action can be maintained.^ 
 
 § 1011. On Inland Bills— Drawer against Acceptor for 
 
 Non-payment. 
 
 Form No. S58. 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18 ..., at , 
 
 •Mever v. Hibsher, 46 N. Y.265; 1 Blatehf. 438; compare Lapeyre v. 
 
 Kichai4 v. Boiler, 51 How. Pr. 37]. Gales, 2 Crancb G. Ct |91. 
 
 » Orr V. Lacy, 4 McClean, 243. \ ^f^Si^V" Lyman, 14 Cal. 450. 
 
 3 To recover statutory damages, see « Stutford v. Low, 16 Johns. 67; 
 
 preceding form. Stockbridge v. Sohoonmaker, 45 Barb. 
 
 « City Bank of Columbus v. Beach. 100. 
 
432 FORMS OF COMPLAINTS. § 1012. 
 
 the defendant made and delivered to the plaintiff his certaio 
 bill of exchange of that date, of which the following is a copy 
 [copy of the bill] . 
 
 II. That the defendant thereafter accepted the said bill. 
 
 III. That be has not paid the same, nor any part thereof. 
 
 [Demand op Judgment.] 
 
 § 1012. Acceptance. — A promise that a drawer will pay a 
 draft which may be drawn on him, is an acceptance, and he 
 may be sued as acceptor. '^ An unconditional promise, in writ- 
 ing, to accept a bill of exchange, is a sufficient acceptance 
 thereof, in favor of every person who upon the faith thereof 
 has taken the bill for value or other good consideration.^ If 
 the bill is payable at a certain time after " sight," the date of 
 acceptance should be stated ; otherwise it is not necessary. A 
 bill drawn payable so many days after sight, means after pre- 
 sentment for acceptance. 3 
 
 § 1013. Acceptor. — A person, not personally a party to a 
 bill of exchange, who for a consideration accepts the same, is 
 an acceptor, equally as if he were drawee.* The loss of the 
 acceptance by the drawee is a sufficient consideration for the 
 acceptance by the third person.* 
 
 § 1014. Corporations. — Where a draft is drawn by the pres- 
 ident and secretary of a corporation upon its treasurer, no 
 notice of presentation and non-payment is necessary to hold 
 the corporation.^ The burden of proof is on the corporation to 
 show that the drawee was provided with funds and ready to 
 paj' at maturity, in order to exempt them from damages and 
 costs.'' 
 
 § 1015. Equities between Parties. — Where a creditor 
 takes a bill before maturity, as collateral security for an ante- 
 cedent debt, if there be any change in the legal rights of the 
 parties, the creditor becomes the holder for value, and the bill 
 is not subject to the equities between the parties. ^ 
 
 § 1016. Form of Bill. — The following written order pos- 
 sesses all the requisites of an inland bill of exchange: "Mr. 
 
 1 Wakefield v. Greenwood, 29 Cal. * Kelly v. Lynch, 22 Oal. 661. 
 
 597. 6 Id. 
 
 ' Civil Code, sec. 3197. As to how • Dennis v. Table Mountain Water 
 
 acceptance is made, who entitled to, Co., 10 Oal. 369. 
 
 what sufficient, acceptance by sep- ' Wolcott, etc., v. Van Santvoord, 
 
 arate instrument, what acceptance 17 Jolins. 248; Fairohild v. Ogdens- 
 
 admits, and cancellation of accept- burgh, Clayton & Borne E. E. Co., 
 
 ance, see Civil Code (Cal.), sec. 3193, 15 S.T. 837. 
 
 and following. 8 jjaglee v. Lyman, 14 Cal. 450; 
 
 3 Mitchell V. Degrand, 1 Mason, 175. Eobinson v. Smith, Id. 95. 
 
§ 1019. BILLS OF EXCHANGE. 433 
 
 , Please pay the bearer of these lines dollars, 
 
 and charge the same to my account." ^ The following document 
 is a negotiable bill of exchange: "July 15, 1865. On first of 
 August next, please pay to A., or order, £600, on account of 
 moneys advanced to me by the S. Company. To Mr. W., Ofll- 
 oial Liquidator of the Company." ^ The words "or order," 
 ^' or bearer," in notes, bills and checks, are words of negotia- 
 bility, and the use of either of them makes the paper negotiable, 
 although impersonal words are used in naming a payee. ^ The 
 insertion of the word "please" does not alter the character of 
 the instrument.* "Value received " is not necessary to show a 
 consideration. 5 
 
 § 1017. Satisfaction of Demand. — A bill of exchange 
 operates only as a conditional payment, but if the creditor fails 
 "to present it for payment to the drawee, it becomes pro tanto a 
 satisfaction of the demand.^ 
 
 § 1018. Who May Recover. — A bill indorsed to the treas- 
 urer of the United States may be sued and declared on in the 
 name of the United States, and the averment that it was indorsed 
 to them immediately is good.'' Where the complaint stated the 
 bill drawn on " B. & Co.," and to have been accepted by B. by 
 the name and style of B. & Co., by writing the name of B. & Co., 
 the plaintiff may recover. ^ 
 
 § 1019. The Same— On a Bill Payable to Drawer's 
 Own Order, and not Negotiated. 
 
 Form No. 259. 
 
 [TlTLK.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , the 
 
 plaintiffs [under their firm name of A. B. C. & Co. J, by their bill 
 of exchange, required the defendant to pay to the order of the 
 
 plaintiffs dollars, days after date thereof [or 
 
 otherwise]. A copy of which said bill of exchange is hereto 
 attached and made part of this complaint. 
 
 n. That on the day of , 18..., the defendant 
 
 accepted the bill. 
 
 ni. That he has not paid the same, nor any part thereof. 
 [Demand op Jud9mi:nt.] 
 
 « Wheatley v. Strobe. 12 Cal. 92. » Benjamin v. Tillman, 2 McLean, 
 
 * Griffin y. Weatherby, L. R., 3 Q. 213. 
 
 g ygg 6 Brown V. Gronise, 21 Cal. 386. 
 
 ■'Mechanics' Bank v. Straiton, 5 ' U. S. o. Barker, 1 Paine U.S. 156. 
 
 Ahb Pr N S 11 8 City Bank of Columbus V. Beach, 
 
 'WheatleV'y. 'strobe, 12 Cal. 1 Blatchi 438 Compare Lapeyre v. 
 
 ^2_ Gales, 2CranchC. 0. 291. 
 
 Ebtkb, Vol. 1—28. 
 
434 rOKMS OP COMPLAINTS. § 1020. 
 
 § 1020. The Same — Bill Returned and Taken Up. 
 
 Form No. S60. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , the 
 
 plaintiff, by his bill of exchange, required the defendant to pay 
 
 to one A. B dollars, days after the date thereof. 
 
 A copy of which bill of exchange and the acceptance thereon in- 
 dorsed, is hereto attached and made part of this complaint. 
 
 II. That on the day of , 18..., at , 
 
 the defendants, upon sight thereof, accepted the same for value 
 received. 
 
 III. That at maturity the same was presented for payment, 
 but was not paid. 
 
 IV. That on the day of , 1$..., the same was 
 
 returned to the plaintiff for non-payment, and the plaintiff, as 
 drawer thereof, was then and there compelled to take up the same 
 
 and to pay to the holder thereof the sum of dollars, 
 
 being the amount of said bill, with damages and interest. 
 
 V. That no part of the same has been repaid. 
 
 [Demand or Judgment,] 
 
 § 1021. Payable to Third Persons. — When the drawer 
 sues on a bill payable to a third person, it is necessary to state 
 that it was dishonored, taken up, and paid by the plaintiff.^ 
 
 § 1022. Sufficient Averment. — ^A complaint against the 
 drawees of a bill, alleging that they had refused to accept, and 
 that they had a settlement of accounts with the drawers, and 
 that on such settlement the drawers had in their hands suffi- 
 cient money to pay the bill, which they had agreed to pay, is 
 sufficient.^ 
 
 § 1023. By Acceptor, without Funds, against Drawer. 
 
 Form No. 261. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 the defendant became indebted to him for money advanced by 
 him, and paid by him, upon a certain draft drawn by the defend- 
 ant, bearing date on the day of , 18..., whereby 
 
 the defendant requested the plaintiff days after date, 
 
 to pay to one A. B. the sum of dollars. 
 
 II. That on the day of , 18.., at , 
 
 the plaintiff accepted said draft, and paid it. 
 
 •2 Chit PI. 148. 
 
 * Mittenbeyer v. Atwood, 18 How. Pr. 330. 
 
§ 1026. BILLS OF EXCHANGE. 435 
 
 [Or II. That the plaintiff accepted said draft, and paid the 
 same at maturity.] 
 
 III. That at the time of the acceptance and payment of said 
 draft, the plaintiff was without funds of the defendant in his 
 hands to meet the same. 
 
 rV. That defendant has not paid the same, nor any part thereof. 
 [Demand of Judgment.] 
 
 § 1024. The Same— By a Copartnership rirm against 
 Another Firm, on a Draft Accepted and Paid by Plaint- 
 iff's. 
 
 Form No 262. 
 [Title.] 
 
 The plaintiffs complain, and allege : 
 
 I. That on the day of , 18..., the defend- 
 ants, then composing the firm of C. D. & Co., drew their cer- 
 tain bill of exchange, in said copartnership name, at , 
 
 and directed the same to the plaintiffs at , who then 
 
 were and now are copartners, doing business under the firm 
 name of A. B. & Co., by which bill of exchange the said de- 
 fendants requested the plaintiffs to pay to the order of said 
 
 defendants, four months after date, the sum of dollars, 
 
 for value received. 
 
 II. That said bill of exchange the plaintiffs afterwards ac- 
 cepted and paid in full. 
 
 III. That no funds were provided by said defendants, either 
 before or after the same was drawn as aforesaid for the payment 
 thereof, and the plainti:Qs have had no funds of said defendants 
 at any time in their hands to pay the same. 
 
 [Demand of Judgment.] 
 
 § 1025. Payee against Drawer, for Non-acceptance. 
 
 Form No 26S. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , the 
 
 defendant, by his bill of exchange, required one C. D. to pay 
 to the plaintiff dollars [ days after sight]. 
 
 II. That on the day of , 18..., the same was duly 
 
 presented to the said C. D. for acceptance, but was not ac- 
 cepted. 
 
 III. That due notice thereof was given to the defendant. 
 
 IV. That he has not paid the same, nor any part thereof. 
 
 [Demand of Judgment.] 
 § 1026. Allegation Setting Out Copy of Bill. 
 
 Form No. 264. 
 That on the day of 18..., at the 
 
436 FORMS OF COMPLAINTS. § 1027. 
 
 defendants made and delivered to the plaintiff their bill of ex- 
 change, of which the following is a copy [copy of bill]. 
 
 § 1027. Allegation of l3emand and Notice Excused 
 by Waiver. 
 
 Form No. S65. 
 
 That the defendant at the time said bill was transferred by 
 
 him, waived as well the presentation of the same to said 
 
 for payment, as notice of the non-payment thereof. 
 
 § 1028. Allegation of Excuse for Non-presentment — 
 Bill Countermanded. 
 
 Form No. S66. 
 
 That on or about the day of , 18..., said 
 
 bill not then having been presented for acceptance [or for pay- 
 ment], the defendant countermanded the same by instructions 
 to the said [drawee] not to accept or pay [or, if payable at sight) 
 not to pay] the same : wherefore it was not presented. 
 
 § 1029. Allegation of Excuse for Non-presentment— 
 Drawee not Found. 
 
 Form No. Z67. 
 
 That on the, etc., due search and inquiry was made for said 
 
 at [state the place of address], that the same 
 
 might be presented for acceptance, but he could not be found, 
 and the same was not accepted. 
 
 § 1030. Averment of Protest. — That said "bill was duly 
 protested at maturity, is sufficient to admit evidence of demand, 
 neglect to pay, and notice of non-payment.^ The holder of a 
 bill, upon protest for non-acceptance, has an immediate cause of 
 action against the drawer, and averments of demand of payment 
 and protest might be rejected if the declaration counted properly 
 for non-acceptance.' 
 
 § 1031. Necessary Averments. — In a complaint against 
 the drawer of a bank check, or of a bill of exchange properly so 
 called, it is necessary to aver either demand, and notice to the 
 drawer of non-payment, or such facts as excuse demand, and 
 notice, e. g., want of funds at bank.' 
 
 § 1032. The Same — Form of Allegation Where Bill 
 was payable at a Specific Date. 
 
 Form No. S68. 
 
 [TlTLK.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , 
 
 the defendant made and delivered to the plaintiff his bill of 
 
 ' Woodbury v. Saokrider, 2 Abb. » Mason v. Franklin, 8 Johns. 202. 
 Pr. 405. » Shultz v. Dupuy, 3 Abb. Pr. 262. 
 
§ 1034. BILLS OF EXCHANGE. 437 
 
 exchange, directed to E. F. , and required said E. F. to pay to 
 
 the plaintiff dollars on the day of , 
 
 18... [or at sight, or days after date thereof, or after 
 
 sight thereof] , for value received. 
 
 II. That the same was presented to E. F. for payment, but 
 was not paid. 
 
 III. [If a foreign bill.] That the same was duly protested 
 for non-payment. 
 
 IV. That notice thereof was given to the defendant. 
 
 V. That the defendant has not paid the same, nor any part 
 thereof. 
 
 [DkMAKD or JtrOGMBNT.] 
 
 § 1033. By Partners Payees against Partners Ac- 
 ceptors. 
 
 Form No. S69. 
 
 [TlTLB.] 
 
 A. B. and C. D., the plaintiffs in the above-entitled action, 
 complain of E. F. and G. H., the defendants, and allege: 
 
 I. That at the times hereinafter mentioned, the said plaintiffs 
 
 were partners, doing business at ■ , under the firm name 
 
 of "A. B. & Co.," and the said defendants were partners, 
 
 doing business at , under the firm name of "E. F. & 
 
 Co." 
 
 II. That on the day of , 18..., at , 
 
 L. M. and N. O., partners, doing business under the firm name 
 of "L. M. & Co.," under their said firm name made their cer- 
 tain bill of exchange in writing, payable id gold coin of the 
 United States, directed to the defendants, under their said firm 
 name of "E. F. & Co.," bearing date on that day, in the words 
 and figures following, to wit [copy of bill]. 
 
 III. That on the day of , 18..., at , 
 
 the said defendants, under their said firm name of " E. F. & 
 Co.," upon sight thereof, accepted said bill of exchange. 
 
 IV. That they have not paid the same, nor any part thereof. 
 
 [Demand or Judgment.] 
 § 1034. Acceptance. — It is not necessary to copy the ac- 
 ceptance, nor even to aver that it was in writing. It is enough 
 to aver its acceptance. ^ Where a draft is accepted conditionally 
 
 1 Horner v. "Wood, 15 Barb. 371 ; 609 ; Le Roy v. Shaw, Id. 628 ; Merwin 
 
 BankofLowvillev.Edwards, 11 How. v. Hamilton, 6 Id. 248; as the ac- 
 
 Pr 216 • Fowler v. N. T. Indem. Ins. ceptance of a bill of exchange must 
 
 Co 23 Barb. 150: Gibbs v. Nash, 4 be in writing: Civil Code Cal., sees. 
 
 Id. '449; Washburn v. Franklin, 28 3193, 3194; Wheatley v. Strobe, 12 
 
 Id." 27 ; V Abb. Pr. 8 ; and see dicta, Cal, 92. 
 contra, Thurman v. Stevens, 2 Duer, 
 
438 , rORlIS OF COMPLAINTS. § 1035. 
 
 to be paid upon the happening of a contingency, the question 
 whether it has happened is a question of fact.^ 
 
 § 1035. Copy of Bill. — The holder must sue on that one of 
 the set "which was dishonored.^ Where a second of exchange 
 was dishonored, and the first was subsequently paid previous to 
 suit brought, the drawer was released from damages for the 
 dishonor. 3 
 
 § 1036. Drafts on Appropriation. — A draft payable in 
 terms out of an "appropriation," for work done by the acceptor, 
 becomes due on pa^'ment for the work by government.'' 
 
 § 1037. Gold Coin. — Underthe statute of California, if the 
 written instrument provided for payment in gold coin, the com- 
 plaint and demand for judgment should be for gold coin, and 
 judgment will thereupon be entered up accordingly. 
 
 § 1038. Non-acceptance, Effect of. — The want of accept- 
 ance affects the right of the payee only as to his mode of en- 
 forcing payment.' 
 
 § 1039. Notice. — iNotice may be given to the indorser or 
 others entitled to notice, immediately after presentment to the 
 maker or acceptor, and the refusal of the same to pay.^ Any 
 notice is sufficient, if it informs the party of the fact.'' 
 
 § 1040. Part Payment. — When the drawee pays a part of 
 the draft, and receipts on the back of the order the amount 
 paid, and it is signed by the payee, it is not an acceptance.^ It 
 is evidence that the drawee owed that amount and paid it.^ 
 The acceptance of a note of a tliird party by the creditor is 
 accompanied with the condition that the note shall be paid at 
 maturity. '^^ 
 
 § 1041. Presentment. — In an action against the maker of 
 a note or the acceptor of a bill of exchange, in which the place 
 of payment is fixed, it is not necessary to aver presentment at that 
 place and refusal to pay.'^i 
 
 § 1042. Payee against Acceptor— Short Form. 
 
 Fortn No. S70. 
 [TlTLI.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18.., the defendant 
 
 1 Nagle V. Homer, 8 Cal. 353. see Minturn v. Fisher, 7 Oal. 
 
 2Downes v. Church, 13 Pet. 205; 573. 
 
 Wells V. Whitehead, 15 Wend. 527. * Bassett v. Haines, 9 Cal. 260. 
 
 3 Page, Bacon & Co. v. Warner, 4 ' Id. 
 
 Cal. 395. i» Griffith v. Grogan, 12 Cal. 317. 
 
 * Nagle V. Homer, 8 Cal. 353. u Montgomery v. Tutt, 11 Cal. 307. 
 
 = Wheatley v. Strobe, 12 Ual. 92. Case in which the evidence shows suf- 
 
 « McFarland v. Pico, 8 Cal. 6'26. ficient diligence in presenting draft tor 
 
 'McFarhand v. Pico, 8 Cal. 626; payment : Brown v.Olmsted, 50 Id.l62. 
 
§ 1047. BILLS OF EXCHANGE. 439 
 
 accepted a bill of exchange made [or purporting to have been 
 
 made] by one C, D., on the day of , 18..., at 
 
 ) requiring the defendant to pay to the plaintiff 
 
 dollars, after sight thereof. A copy of said 
 
 bill of exchange is hereto attached, marked "A," and made part 
 of this complaint. 
 
 II. That he has not paid the same. 
 
 [Demand of Jtjdombitt.] 
 
 § 1043. Allegation Setting Out Copy of Bill. 
 
 Form No. gZt. 
 
 That on the day of ....« , 18.., at the 
 
 defendant A. B. accepted and delivered to the plaintiff a bill 
 of exchange, of which the following is a copy. 
 [Copy bill and acceptance.]! 
 
 § 1044. Corporation.— Where defendant is a corporation, 
 and the bill is accepted by the president thereof as such, an 
 averment that he was president, and aa such authorized to 
 accept, is not necessary. ^ 
 
 § 1045. Costs of Protest.— A claim for statutory damages 
 and costs of protest need not be set forth in the petition as a 
 separate and distinct cause of action, disconnected from the 
 claim on the bill. ^ 
 
 § 1046. The Same— Pleading the Legal Effect, 
 
 Foiin Mo. S72, 
 [TrrLB.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , one 
 
 A. B., by his bill of exchange in writing, dated on that day, 
 required the defendants to pay to the order of the plaintiff 
 
 dollars, days after said date [or otherwise], for 
 
 value received. 
 
 II. That on the day of , 18..., at , 
 
 the defendant upon sight thereof, accepted said bill, of which, 
 and the acceptance thereof, the following is a copy [copy the 
 bill]. 
 
 III. That he has not paid the same, or any part thereof. 
 
 [Djcmand or Judgment.] 
 
 § 1047. Consideration on Acceptance. — A written 
 agreement to accept amounts to an acceptance, and no consid- 
 eration need be shown.'* 
 
 1 Andrews v. Astor Bank, 2 Duer, ' Summit County Bank v. Smith, 1 
 
 629 : Levy v. Ley, 6 Abb. Pr. 89. Handy, 575. 
 
 ^ Partridge v. Badger, 25 Barb. 146 ; * Ontario B'k v. Worthington, 12 
 
 Andrews v. Astor Bank, 2 Duer, 629 ; Wend. 593. 
 Price V. McClave, 6 Id. 544. 
 
440 rOKMS OP COMPLAINTS. § 1048.' 
 
 § 1048. Party in Interest. — ^In an action on a draft, brought 
 by the Camden Bank against the drawer, after showing that the 
 draft was made payable "to the order of W. B. Storm, cashier," 
 an averment that the defendant " delivered the said draft to W. 
 B. Storm, oasMer of said Camden Bank, for the said bank," and 
 that "the said dr&ft is now held and owned by the said plaintiffs, 
 and still remains due to them from the defendants," sufficiently 
 shows that the bank, and not the cashier, is the real party in 
 interest.^ 
 
 § 1049. Presentment. — Against the acceptor, it is not nec- 
 essary to aver or prove presentment at the place where the bill 
 was made payable.^ 
 
 § 1050. Promise to Accept. — In an action brought upon a 
 promise made by the defendant to accept a draft which another 
 might draw on him, it is not necessary to aver that the promise 
 was in writing.' 
 
 § 1051. The Same — Acceptance Varying as to Time 
 
 from the Bill. 
 
 Form No. S7S. 
 [Title.] 
 
 I. [Allege making of bill as in preceding form.] 
 
 II. That on the day of , 18 ..., at , 
 
 the defendant [or the defendants under their firm name], upon 
 
 sight thereof, accepted the same, payable at days [or 
 
 otherwise] after the date of said bill [or after said day of accept- 
 ance]. A copy of which said bill, and the acceptance thereof, is 
 hereto attached and made part of this complaint. 
 
 III. That he has [they have] not paid the same, nor any part 
 thereof. 
 
 [Demand or Judgment.] 
 § 1052. Were Drawer is also Acceptor, on Bill Drawn 
 on Himself. 
 
 Form No. S74. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18 ..., at , 
 
 the defendant made and accepted, and delivered to the plaintiff, 
 his bill of exchange in writing, of which the following is a copy 
 [copy of the bill and acceptance]. 
 
 II. That he has not paid the same, nor any part thereof. 
 
 [Demand of Judsmbnt.] 
 
 J Camden Bank v. Rodgers, 4 How Pr. 63. 
 
 2 Wolcott V. Van Santvoord, 17 Johns. 248; Caldwell v. Oassidy, 8 Cow. 
 271 ; Haiton y. Bishop, 3 Wend. 13. 
 
 ' Wakefield v. Greenhood, 29 Cal. 597 ; Bank of Lowville v. Edwards, 11 
 How. Pr. 216. 
 
§ 105». BILLS OF EXCHANGE. 441 
 
 § 1053. By Assignee of a Bill Payable O-ut of a Par- 
 ticular Fund. 
 
 Form No. 275. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at ! , 
 
 one A. B. made his bill of exchange or order in writing, dated 
 on that day, and directed it to the defendant, and thereby 
 required the defendant to pay to one 0. D., out of the pro- 
 ceeds of [state fund as in the bill] dollars 
 
 days after the date thereof, and delivered it to said C. D. 
 
 n. That on the day of 18..., at ;., 
 
 upon sight thereof, the defendant accepted the same, payable, 
 when in funds, from the proceeds of [etc., as in acceptance], 
 
 III. That on the day of 18..., at , 
 
 said C. D, -assigned said bill to this plaintiff. The following is 
 a copy of said bill of exchange, and of the said acceptance and 
 assignment thereof [copy same] . 
 
 IV. That on the day of , 18..., the defendant 
 
 had funds of the said A. B., proceeds of, etc. 
 
 V. That on the day of , 18 ..., at , 
 
 the plaintiff demanded payment thereof from the defendant. 
 
 VI. That he has not paid the same, nor any part thereof. 
 
 [Demand or Judgment.] 
 
 § 1054. Allegation that Defendant Accepted. — An ac- 
 ceptance generally without words of restriction to a fund or 
 contingency, will in some cases bind the acceptor abso- 
 lutely.i 
 
 § 1055. Payee against Drawer and Acceptor— On a 
 Bill Accepted by the Drawee. 
 
 Form No. S76. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day. of , 18 ..., at , the 
 
 defendant A. B., by his bill of exchange, required one C. D. 
 
 to pay to the plaintiff dollars, days after the 
 
 date thereof [or otherwise] . 
 
 II. That on the day of , 18 ..., the defendant 
 
 C. D., upon sight thereof, accepted said bill. The following 
 is a copy of said bill and of said acceptance [insert copy]. 
 
 III. That at maturity the same was presented to the defend- 
 ant C. D. for payment, but was not paid. 
 
 1 Atkinson v. Manks, 1 Cow. 691 ; Maber v. Massias, 2 W. Blackst 1072 ; 
 Lent v. Hodgman, 15 Barb. 274. 
 
442 FOKMS OF COMPLAINTS. § 1056. 
 
 IV. That notice thereof was given to the defendant A. B. 
 v. That no part of the same has been paid. 
 [Demand of Judgment.] 
 
 § 1056. By Payee, on a Bill Accepted for Honor. 
 
 Form No. S77. 
 [Title.] 
 The plamtiff complains, and alleges : 
 
 I. That on the day of , 18.., the defendant A. 
 
 B., by his bill of exchange, required one C D. to pay to the 
 
 plaintiff dollars days after the date thereof 
 
 [or otherwise] . The following is a copy of the said bill of ex- 
 change, and of all acceptances thereon [insert copy of same] . 
 
 II. That on the day of ', 18.., the same was 
 
 presented to the said C. D. for acceptance, but was not ac- 
 cepted. 
 
 III. That notice thereof was given to the defendant A. B. 
 
 IV. That on the day of , 18..., at , 
 
 the defendant E. F. [acceptor for honor], upon sight thereof, 
 accepted said bill for the honor of said A. B. 
 
 V. That at maturity the same was presented for payment to 
 said C. D., but was not paid. 
 
 VI. That notice thereof was given 'to the defendant, A. B. 
 
 VII. That thereupon the same was duly presented to the 
 defendant, E. F. [acceptor for honor] , for payment, hut was not 
 paid. 
 
 VIII. That notice thereof was given to the defendant, A. B. 
 
 IX. That no part of the same has been paid. 
 
 [Demand or Judgment.] 
 
 § 1057. Accommodation Acceptor. — The accommodntion 
 acceptor who pays without funds, can recover from the drawer, 
 not upon the bill, but for money paid.^ 
 
 § 1058. Presentment at Maturity. — In a complaint against 
 acceptor for honor, the plaintiff must show that the bill was 
 presented at maturity to the drawee, and that the drawer had 
 notice of non-payment.'' It is not necessary to aver that the 
 demand was made of the maker at the place specified in the 
 note, in a complaint under the code. Such a demand was, by 
 authority settled to be a condition precedent under the late 
 practice, and the averment essential to a recovery. But section 
 162 of the code (New York) has> dispensed with the necessity of 
 
 I Griffith V. Eeed, 21 Wend. 502 ; Cress. 468 ; Schofield v. Bayard, 3 
 Suydam v. Westfall, i Hill, 211. Wend. 488. 
 
 ' Williams v. Germaiiie, 7 Barn. & 
 
§ 1061. BILLS OP EXCHANGK 443 
 
 pleading the facts which constitute the performance of a condi- 
 tion precedent. 1 
 § 1059. By Indorsee— First Indorsee against Acceptor. 
 
 Form No. S78. 
 [Title] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of 18.., the defendant 
 
 accepted a bill of exchange, made by one A. B., on the 
 
 day of , 18.., at , requiring the defendant to 
 
 pay to the order of one C. D., dollars after sight 
 
 thereof, of which the following is a copy [insert copy] . 
 
 II. That the said C. D. indorsed the same to the plaintiff. 
 
 III. That defendant has not paid the same. 
 
 [DKMAlfD OF JtroaMKNT.] 
 
 § 1060. First Indorsee Against First Indorser. 
 
 Form No. 279. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That the defendant indorsed to the plaintiff a bill of ex- 
 change, made by one A. B., on the day of , 
 
 18..., at , requiring one C. D. to pay to the order of 
 
 the defendant dollars, [days] after sight [or 
 
 after date, or at sight] thereof, and accepted by the said C. D. 
 on the day of 18..., at The fol- 
 lowing is a copy of said bill of exchange, and of said indorsement 
 and acceptance [insert copy]. 
 
 II. That on the day of , 18..., at , 
 
 the same was presented to the said , f or payment, but it 
 
 was not paid. 
 
 III. That due notice thereof was given to the defendant. 
 
 IV. That he has not paid the same, nor any part thereof. 
 
 [Demand of Judqmbnt.] 
 
 § 1061. First Indorsee against Drawer and Indorser— 
 For Non-acceptance. 
 
 Form No. gSO. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 the defendant, by his bill of exchange, required one C. D. to pay 
 
 to the order of one E. F dollars days after the 
 
 date thereof [or otherwise]. 
 
 »Gay V. Paine, 5 How. Pr. 107; Machado, 6 Duejj^.515. The later 
 Woodbury V. Sackrider, 2 Abb. Pr. case of Perner v. Williams, 37 Barb. 
 402; to the contrary, Graham v. 9, follows and approves Gay v. Payne. 
 
Ui POKMS OF COMPLAINTS. § 1086. 
 
 II. That the said A. B. then and there delivered the same to 
 the defendant E. F. , Vho then and there indorsed it to the de- 
 fendant G. H. 
 
 III. That on the.., day of , 18..., at , 
 
 the defendant G. H. indorsed the same to the plaintiff for value. 
 The following is a copy of said bill of exchange and of the said 
 indorsements thereon [copy bill and indorsements] . 
 
 IV. That the same was presented to C. D. for acceptance, 
 but was not accepted [if a foreign bill, add, and was thereupon 
 duly protested for non-acceptance] , of all which due notice was 
 given to the defendants. 
 
 V. That no part of the same has been paid. 
 
 [Dbmand or Judgment.] 
 
 § 1062. Delivery. — Where the plaintiff, as indorsee of a 
 bill of exchange, sued the acceptor, declaring under the statute 
 of New York, on the money counts, and appending a copy of the 
 bill, with notice that it was his cause of action ; but in the copy 
 his indorsement was omitted, it was held that delivery was suffi- 
 ciently averred by implication, that indorsement was not neces- 
 sary to pass title, and that the bill was therefore admissible 
 upon the trial of the cause.* 
 
 § 1063. First Indorsee against All Prior Parties— For 
 Non-payment. 
 
 Form No. S81. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of 18..., at , the 
 
 defendant A, B., by his bill of exchange, requested C. D. to 
 
 pay to the order of the defendant E. F., dollars, 
 
 days after the date thereof. 
 
 II. That the said A. B. then and there delivered the same to 
 the said E. F., who thereupon indorsed it to the defendant G. H. 
 
 III. Thatonthe day of , 18...., at , 
 
 the said G. H. indorsed the same to the plaintiff for value. 
 
 IV. That on the day of ,18...., at , 
 
 the defendant C. D., upon sight thereof, accepted said bill. 
 
 V. That at maturity the same was presented to the defendant 
 C. D. for payment, but was not paid [if a foreign bill, add, and 
 was thereupon duly protested for non-payment], of all which 
 due notice was given to the defendants A. B., E. F., and G. H. 
 
 VI. That no part of the same has been paid. 
 
 [Dbmand op Judgment.] 
 
 T.'nnJ*'3,"'°"^y^°''*'°"Ser but similar form, seePholps v. Fergusoa' 9 Abb. 
 Pr.206; Greenburyv. Willdns, Id., note. 
 * Purdy V. Vermilya, 4 Seld. 346. 
 
§ 1067. BILLS OP EXCHANGE, 445 
 
 § 1064. Subsequent Indorsee against Acceptor.— 
 
 Fwm No. SSS. 
 [Title.] 
 
 I. [Allege acceptance of bill, as in form No. 281.] 
 
 II. That by the indorsement of said , the same was 
 
 transferred to the plaintiff for value. 
 
 III. That the defendant has not paid the same, nor any part 
 thereof. 
 
 [Demand or Jxtdgment.] 
 
 § 1065. Subsequent Indorsee against First Indorser 
 
 Indorsement Special. 
 
 Jorm No. SSS. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That the defendant indorsed to one C. D. a bill of ex- 
 change, made by one A. B., on the day of , 
 
 18..., at requiring E. F. to pay to the order of the de- 
 fendant dollars, days after sight thereof [or 
 
 otherwise], and accepted by the said E. F. on the day of 
 
 , 18..., at 
 
 n. That the same was by the indorsement of the said C. D., 
 transferred to the plaintiff. 
 
 m. That on the day of , 18..., at , 
 
 the same was presented to the said E. F. for payment, but it 
 was not paid. 
 
 rV. That notice thereof was given to the defendant. 
 
 V. That he has not paid the same nor any part thereof. 
 [Djcmand oe Judgment.] 
 
 § 1066. Subsequent Indorsee against Intermediate In- 
 dorser. 
 
 Farm No. S84. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That a bill of exchange made by one A. B. on the 
 
 day of , 18.., at , requiring one C. -D. to pay 
 
 to the order of one E. F dollars, days after 
 
 sight thereof [or otherwise], [accepted by said C. D.], and in- 
 dorsed by the said E. F. to the defendant, was by the indorse- 
 ment of the defendant [and others] , transferred to the plaintiff. 
 
 [Allege presentment, notice, and non-payment as in form 
 
 No. 283.] 
 
 [Demand oe Judgment.] 
 
 § 1067. Subsequent Indorsee against Last Indorser. 
 
 Form No. SSS. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
446 FOEMS OF COMPLAINTS. § 1068. 
 
 I. That the defendant indorsed to him a bill of exchange, made 
 
 [or purporting to have been made] by one A. B., on the 
 
 day of , 18..., at , requiring one C. D. to pay 
 
 to the order of one E. F. dollars, days after 
 
 sight thereof [or otherwise], [accepted by the said C. D.J, and 
 indorsed by the said E. F. to the defendant. 
 
 II. That on the day of i , 18..., at , 
 
 the same was presented to the said C. D. for payment, but it was 
 not paid. 
 
 III. That due notice thereof was given to tba defendant. 
 
 IV. That he has not paid the same nor any part thereof. 
 
 [Demand ov Judgment.] 
 § 1068. Subsequent Indorsee Against all Prior Par- 
 ties—Short Form. 
 
 Form No. 1186. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 the defendant A. B., by his bill of exchange, required the defend- 
 ant C. D. to pay to the order of the defendant E. F., 
 
 dollars, days after sight thereof. 
 
 II. That on the day of 18..., the said C. 
 
 D. accepted the same. 
 
 III. That the said E. F. indorsed the same to the plaintiff. 
 
 IV. That on the day of 18..., the same 
 
 •was presented to the said C. D. for payment, but was not paid. 
 
 V. That due notice thereof was given to the other defendants, 
 and each of them. 
 
 VI. That they have not, nor has either of them, paid the 
 
 same. 
 
 [Demand of Judgment.] 
 
 § 1069. The Same by a Bank in its Corporate Name. 
 
 Form No. Z87. 
 [State and County.] [Court.] 
 
 The Bank of 1 
 
 against \ 
 
 A. B., C. D., andE..F. J 
 
 The plaintiff, a corporation, duly organized and incorporated 
 
 under the laws of the state of complains, and alleges 
 
 [allegations same as in last form] . 
 
 [Demand of Judgment.] 
 
 § 1070. Checks— Payee Against Drawer. 
 
 Form No. 288. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That at the times hereinafter mentioned, the said defend- 
 
§ 1074. BILLS OF EXCHANGE. 447 
 
 ants were partners, doing business as merchants at , 
 
 under the firm name of C. D. & Co. 
 
 n. That on the day of , 18..., at , the 
 
 defendants, under their said firm name of C. D. & Co. , made 
 their check in writing, dated on that day, payable to the order 
 of the plaintiff, which said check is in the words and figures 
 following, to wit [copy of check]. , 
 
 III. That the said check was presented on the day 
 
 of , 18..., to the said , for payment, but was 
 
 not paid. 
 
 IV. That due notice thereof was given to the defendants. 
 
 V. That they have not paid the same, nor any part thereof. 
 
 [Demand op Judgment.] 
 
 § 1071. Checks — Taking after Dishonor — Considera- 
 tion. — Checks are on the same footing as bills of exchangCj 
 excepting the difference which may arise from the custom of 
 merchants.^ The legal presumption is that a check is dra^n 
 for money due from the drawer.^ A party taking a check after 
 presentment and dishonor, takes it subject to all the equities to 
 which it was subject in the hands of the original holder.^ When 
 the holder of a note accepts a draft or check in payment, he is 
 not bound to give up the note before payment of the draft or 
 check.* The surrender of the note is prima facie evidence of 
 its payment.^ The presumption is that the check was given on 
 a valid consideration, but this presumption being rebutted, 
 plaintiff must prove that he received it in good faith, and 
 without notice of the illegality of the consideration..^ A check 
 given for a gaming debt is void in the hands of all persons, ex- 
 cept a bona fide holder without notice.'' 
 
 § 1072. Grace. — In California days of grace are not allowed.^ 
 
 § 1073. Lost Paper. — Where a check has been lost and 
 paid by the banker upon a forged indorsement, in a suit for the 
 same, where the banker refused to deliver the check to the 
 owner, in the absence of rebutting testimony, the measure of 
 damages is the full amount for which it was drawn. ^ 
 
 § 1074. Non-negotiable Draft. — A non-negotiable draft, 
 rendered so by the absence of any fixed amount, may be ren- 
 dered negotiable by an indorsement, "balance due dol- 
 
 » Mintburnv. Fisher, 4 Cal. 35. ' Smith v. Harper, 5 Cal. 330. 
 
 s Headley v. Beed, 2 Cal. 322. « Fuller v. Hutchings, 10 Cal. 523. 
 
 •Fuller V. Hutchings, IQ Cal. 523; 'Id. 
 but see Chambers v. Satterlee, 40 Cal. * Civil Code, sec. 3181. 
 611. » Survey v. Wells, Fargo & Co., 5 
 
 * Smith V. Harper, 5 Cal. 330. Cal. 124. 
 
448 FORMS OP COMPLAINTS. § 1075. 
 
 krs," and signed by indorser, who is estopped thereby from 
 settino- up against it any antecedent matter, and is liable for the 
 full amount.^ No right of action can accrue upon a draft till 
 payment.* 
 
 § 1075. Notice. — In general, presentment and notice of non- 
 payment are necessary to charge the drawer of a check." 
 
 § 1076. Presentment, — ^As against the drawer, presentment 
 at any time before suit brought is sufficient, unless it appear that 
 he has been prejudiced by unreasonable delay.* By the law mer- 
 ohant, it is sufficient if a check drawn upon one day be presented 
 for payment in the usual banjting hours on the next succeeding 
 day.* The payee, to hold the drawer, is bound to use reasonable 
 diligence. ^ 
 
 § 1077. Payment Stopped. — Where the complaint alleged 
 demand, refusal, and notice to defendants of non-payment, and 
 also that before the demand the defendant had stopped its pay- 
 ment by notice to the officers of the bank not to pay it, and the 
 answer denied that the defendants had notice of the non-payment, 
 and alleged that they stopped its payment because it was obtained 
 from them by fraud of which, as well as of -ite payment having 
 been stopped, the plaintiffs had notice before they took the check, 
 it was held that the allegation in the complaint, of notice to the 
 defendants of non-payment, might be disregarded as surplusage ; 
 and the plaintiffs should be allowed to prove, under the pleadings, 
 the fact that payment had been stopped. That excused the want 
 of notice.'' 
 
 § 1078. To Bearer. — A check payable to the order of a fic- 
 titious person, e. g., of a firm long since dissolved, ^ or "to the 
 order of biHs payable," ^ is to be deemed payable to bearer, if 
 negotiated by the maker. 
 
 § 1079. When Due. — When no time of payment is men- 
 tioned, the check or note is payable immediately, and complaint 
 should not state a time of payment.^* 
 
 § 1080. Indorsee or Bearer of Check ag;ainst Drawer. 
 
 Form No. 289. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 1 Garwood v. Simpson, 8 Cal. 101. » Eitohie v. Bradshaw, 6 Cal. 228. 
 
 ' Wakeman v. Vanderbilt, 3 Cal. 380. • Ritchie v. Bradshaw, 5 Cal. 228 
 8 Harker v. Anderson, 21 Wend. ' Purchase v. Mattison, 6 Duer, 687. 
 
 S23 ; Shultz v. Dupuy, 8 Abb. Pr. 252 ; 8 Stevens v. Strang, 2 Sandf. 188. 
 
 but compare Cruger v. Armstrong, 3 ' Willets v. Phoenix Bank, 2 Duer, 
 
 Johns. Cas. 4'; Conroy V. Warren, Id. 121. 
 
 ^^?V-.., -Dv, • Tj , n Ti.„ „'°Herrickv. Bennett, 8 Johns. 874; 
 
 * Little V. Phoenix Bank, 2 Hill, PearsoU v. Prazer, 14 Barb 664. 
 
 425; Harbeck v. Craft, 4 Duer, 122. Thompson v. Ketcham, 8 Johne*. 189. 
 
§ 1085. BILLS OF EXCHANGE. 449 
 
 I. That on the day of , 18..., at , 
 
 the defendant made his check in writing, dated on that day, 
 and directed the same to the bank of A. B., requiring said 
 
 bank to pay to one C. D., or order [or bearer], dollars 
 
 for value received. 
 
 n. That the defendant then and there indorsed the same to 
 this plaintiff. 
 
 III. That on the day of , 18.., at , 
 
 the same was presented to said bank of A. B. for payment, but 
 was not paid. 
 
 rV. That due notice thereof was given to the defendant. 
 
 V. That he has not paid the same, nor any part thereof. 
 [Dbmanb or Judgment.] 
 
 § 1081. Allegation of Excuse for Failure to Give 
 Notice. 
 
 Form No. S90. 
 
 That on the day of , 18..., the same was pre- 
 sented to said [drawee] for payment, but the defendant had no 
 funds with said drawee. 
 
 § 1082. Allegation of Excuse — Want of Funds. — 
 Want of funds in the drawee's hands excuses the omission to give 
 notice of non-payment.^ But where it is intended to rely upon 
 Trant of funds as excusing demand or notice, that fact must be 
 averred.* 
 
 § 1083. Allegation of Excuse from Insolvency of 
 Drawee. 
 
 Farm No. S91. 
 
 That on the day of , 18..., at , said 
 
 [drawee] was insolvent [or had stopped payment] .3 
 
 § 1085. Time. — The time should be stated that it may 
 appear -whether it was such as to excuse the holders from a de- 
 mand.* One who takes a check which by its date appears to 
 have been outstanding for two years and a half, and which has 
 •" Mem." written on its face, must bear the loss arising from his 
 taking it without inquiry.^ 
 
 § 1085. Indorsee or Bearer, against Drawer and In- 
 
 dorser. ^^ „„. 
 
 Form No. S9S 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 ' As to whether it excuses non-pre- Franklin v. Vanderpool, 1 Hall, 78. 
 
 sentment, see Cru-er v. Armstrong, . » As agamst drawer, the drawees 
 
 S Johns. Cas. 5; Id. 259; Fitch v. insolvency is sufficient to dispense 
 
 Bedding, 4 Sandf. 130; Franklin v. with presentment and notice : Lovett 
 
 Vanderpool, 1 Hall, 88. y\S°P J. pi qYq' 
 
 2 Shultz V. Dupuy, 3 Abb. Pr. 252 ; « 1 Chit. PI. 289 
 Garvey V. Powterf 4 Sandf. 665 r 6 skiUman v. Titus, 3 Vroom, 96. 
 
 EsTEE. Vol. 1—29. 
 
450 POKMS OF COMPLAINTS. § 1086. 
 
 I. That on the day of , 18..., at , the 
 
 defendant, A. B. , made his check, and directed the same to the 
 bank of C. D., and thereby required said C. D. to pay to the 
 
 defendant, E. F., or order [or bearer], dollars for 
 
 value received, and delivered it to the defendant, E. F. 
 
 II. That thereupon said defendant, E. F., indorsed the same 
 to this plaintiff for value. 
 
 III. That said check was duly presented for payment, but 
 was not paid. 
 
 IV. That due notice thereof was given to the defendants. 
 
 V. That they have not paid the same, nor any part thereof. 
 
 [Demand of Judgment.] 
 ; 1086. Against Bank, Drawee having Certified. 
 
 Form No. S9S. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That the defendant is a corporation, created by and under 
 the laws of this state, organized pursuant to an act of the leg- 
 islature entitled "An act to authorize the business of banking," 
 passed , and the acts amending the same. 
 
 II. That on the day of , 18..., at , 
 
 one A. B. made his check, and directed it to the defendants, 
 and thereby required them to pay this plaintiff, or order [or 
 
 bearer], dollars, for value received; and delivered the 
 
 same to this plaintiff [or, if nayable to third party, state accord- 
 ingly]. 
 
 III. That on the day of , 18..., at , 
 
 the defendant, by its agent duly authorized thereto, in writing, 
 accepted and certified the same to be good. 
 
 IV. That thereafter the same was duly presented for 'pay- 
 ment, but no part thereof was paid. 
 
 [Demand of Judgment.] 
 
 § 1087. Raised Check Certified. — A bank, by certifying a 
 check in the usual form, simply affirms the genuineness of the 
 signature of the drawer, and that it has funds sufficient to 
 meet it, and engages that they will not be withdrawn to the 
 prejudice of the holder of the check, but does not warrant the 
 genuineness of the body of the check. ^ Where a raised check 
 had been certified and afterwards paid, the bank certifying and 
 paying could recover back as for money paid by mistake.^ 
 
 § 1088. Certified Check.— The certifying of a check as 
 " good " transfers the sum drawn for to the holder, and imports 
 
 1 Marine National Bank v. The National City Bank, 59 N. T. 67. 
 = Id. ; and Security Bank v. National Bank, 67 N. Y. 458. 
 
§ 1090. PKOMISSOBY NOTES, ETC. 451 
 
 a promise to pay to him on demand. But the drawee can not set 
 off a claim on the holder against the amount so transferred, and 
 the maker of the check is not discharged.^ Where & check dated 
 January 10, 1866, was certified by the assistant cashier of defend- 
 ant's bank, and was indorsed to W., December 1, 1865; March 
 7, 1866, the check was deposited with the plaintiff, who credited 
 W. with the amount on theur books ; and the drawer of the check 
 had not funds with defendants to meet it, either when it was cer- 
 tified, or when it was presented, it was held, that "W., as he took 
 a postdated check, had notice that the cashier was exceeding his 
 authority in certifying it, and that plaintiffs took subject to the 
 equities against W.^ 
 
 CHAPTER III. 
 
 ON PEOMISSORT NOTES, AND CEETIPICATES OP DEPOSIT. 
 § 1089. Maker of Accommodation Note, having Faidit. 
 
 Form No. 294. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , the 
 
 plaintiff made his promissory note, of which the following is a 
 copy [copy of note]. 
 
 II. That the plaintiff never received any consideration therefor, 
 but that it was an accommodation note, made and given to the 
 defendant, at his request, and upon his promise that he would 
 pay it at maturity. 
 
 III. That as the plaintiff is informed and believes, the de- 
 fendant thereafter and before its maturity negotiated it for 
 value. 
 
 IV. That the defendant failed to pay the same at maturity, 
 and the plaintiff paid it. 
 
 "V. That defendant has not repaid the same, nor any part 
 
 thereof. 
 
 [Di;M.urD OF Judgmbnt.] 
 
 § 1090. Accommodation Maker as Plaintiff. — An ac- 
 commodation maker or indorser is a surety and may sue as such 
 
 'Brown v. Leckie, 43 111. 497; of bank officers to accept and certify, 
 
 Bickford v. First National Bank of see Willets v. Phcenix Bank, 2 Duer, 
 
 Chicao-o, 42 Id. 238; Rounds v. Smith, 121 ; Farmers' Bank v. Butchers' and 
 
 Id. 245. Drovers' Bank, 4 Id. 219; Glaflin v. 
 
 » Clark Nat. Bank v. Bank of Al- Purmers' and Citizens' Bank, 25 N. Y. 
 
 bion, 52 Barb. 592. As to authority 293 ; S. C, 24 How. Pr. 1. 
 
452 FOBMS OF COMPLAINTS. § 1091. 
 
 to recover payments made by him.^ If the accommodation 
 maker was sued, the allegation may state that ' ' the plaintiff was 
 thereupon compelled, by suit brought against him by A. B. , the 
 holder, in the court."^ 
 
 § 1091. Coupons. — Interest coupons to railroad bonds, pay- 
 able to bearer at a specified time and place, are negotiable 
 promises for the payment of money, and are subject to the same 
 rules as other negotiable instruments. They are transferable 
 by delivery, although detached from the bonds, and a purchaser 
 in good faith, before maturity, from one who has stolen them, 
 acquires a valid title. ^ 
 
 § 1092. Contingent Order. — A contingent order is not 
 negotiable.* 
 
 § 1093. Considsration. — A complaint upon a promissory 
 note need not aver that it was given for a consideration. ^ Sec- 
 tion 3104 of the Civil Code of California is as follows: "The 
 signature of every drawer, acceptor, and indorser of a negotiable 
 instrument is presumed to have been made for a valuable con- 
 sideration, before the maturity of the instrument, and in the 
 ordinary course of business." 
 
 § 1094. Date. — A negotiable instrument, may be with or 
 without date, and with or without designation of the time or 
 place of payment. s Any date may be inserted by the maker of 
 a negotiable instrument, whether past, present or future, and 
 the instrument is not invalidated by his death or incapacity at 
 the time of the nominal date.'' 
 
 § 1095. Filling Blanks.— One who makes himself a party 
 to an instrument intend ed to be negotiable, but which is left 
 wholly or partly in blank, for the purpose of filling afterwards, 
 is liable on the instrument to an indorser thereof in due course, 
 in whatever manner and at whatever time it may be filled, so 
 long as it remains negotiable in form.^ 
 
 § 1096. Joint Maker of a Note, having Paid it, against 
 the Other, for Contribution. 
 
 Form No. S95 
 
 [TiTLF.l 
 
 The plaintiff complains, and alleges : 
 
 1 Baker V. Martin, 3 Barb. 634; Holmes v. Weed, 24 Barb. 546, which 
 JNeass V. Mercer, 15 Id. 318. For a limits it to costs of default. 
 
 form of complaint by accommodation » Evertson v. Nat. Bank, 66 N. T. 14. 
 
 maker, see Osgood v. Whittelsey, 10 * Kenny v. Hinds, 44 How. Pr. 7. 
 
 Abb. Pr. 134. 6 Pinney v. King, 21 Minn. 514. 
 
 2 Packard v. Hill, 7 Cow. 442. And « Cal. Civil Code, sec. 3091. 
 may recover the costs of suit: Baker ' Cal. Civil. Code, sec. 8094. 
 V. Martin, 3 Barb. 634. But see 8 Qal. Civil Code, sec. 3125. 
 
§ 1099. PEOMISSORY NOTES, ETC. 453 
 
 I. Thaton the day of , 18..., at 
 
 this plaintiff and the defendant made their joint' [or joint and 
 several] promissory note in writing, of which .the following is a 
 copy [copy notel . 
 
 ,11. That at the maturity of said note, the plaintiff was com- 
 pelled to pay, and did pay, the same. 
 
 III. That no part thereof has been repaid to him. 
 [Demand of Judgment.] 
 
 § 1097. By Indorser of Note, having Paid a Part. 
 
 Farm No. 296. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day , 18..., at ,.., 
 
 the defendant made his promissory note, whereby he pi-omised 
 
 to pay to the order of the plaintiff, days afterdate, 
 
 the sum of dollars, for value received [or copy the 
 
 note]. 
 
 II. That thereafter, and before the maturity of said note, the 
 plaintiff indorsed it and negotiated it for value. 
 
 III. That at the maturity it was presented for payment to the 
 defendant [or allege excuse for non-presentment], but was not 
 paid, whereof the plaintiff had due notice. 
 
 IV. That on the day of , 18.., at , 
 
 the plaintiff paid to one A. B. , the holder thereof, the sum of 
 dollars, the amount due on said note. 
 
 v. That no part thereof has been repaid to the plaintiff. 
 [Demand oi' Judgment.] 
 
 § 1098. Accommodation Indorsers, Co-sureties. — In an 
 action by an indorser of a promissory note, who has paid the 
 same, against a prior indorser, it is competent for defendant to 
 prove by parol that all the indorsers were accommodation in- 
 dorsers, and by agreement they were, as between themselves, 
 co-securities.^ 
 
 § 1099. Legal Owner. — Where an indorser has paid the 
 whole of a note, and become the legal owner of it, he may sue 
 directly on the note.^ But where he paid only a part, he must 
 sue for the amount actually paid, as for money paid to the use 
 of the drawer or first indorser. ^ But separate prior indorsers 
 can not be joined as defendants in such an action.* 
 
 1 Easterly v. Barber, 66 K. Y. 433. v. Perrand, 6 Barn. & Cress. 439; Dy- 
 
 2 Baker v. Martin, 3 Barb. 634 ; gert v. Gross, 9 Barb. 506. 
 Wrieht V. Butler, 6 Wend. 290. * Barker v. Cassidy, 16 Barb. 177. 
 
 » Wrigbt V. Butler, Id. 284 ; Pownal 
 
454 FOEMS OF COMPLAINTS. § 1100. 
 
 § 1100. Payee against Maker. 
 
 Form So. Z97. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18 ..., at , the 
 
 defendant made and delivered to the plaintiff his promissory note 
 of which the following is a copy [set out copy of note] . 
 
 II. That he has not paid the same [except dollars, 
 
 paid on the day of , 18 ...].i 
 
 [Demand or Judsmbnt.] 
 
 § 1101. Certificate of Deposit. — A certificate of deposit is 
 on the same footing as a promissory note.^ It changes the char- 
 acter of the maker from a custodian of the funds to that of a 
 debtor -^ and the brokers become liable to pay to the holder of 
 the certificate on its presentation.* In an action by an indorsee 
 on a certificate of deposit, presentation and demand must be 
 alleged in the complaint. ^ 
 
 § 1102. Consideration. — ^In a complaint on a promissory 
 note it is not necessary that a consideration should be specially 
 alleged. If there is no consideration, the defendant should set 
 up the want of it as a defense.^ Every note imports considera- 
 tion.' An oral promise to convey land, in accordance with 
 which the land is subsequently conveyed, is a sufficient consid- 
 eration for a promissory note.^ A covenant to convey is a good 
 consideration for note for purchase money, although the payee 
 of the note who had given the bond of conveyance had not the 
 legal title, and could not convey it when the note became pay- 
 able.9 But paying part of a note when all is due is no consid- 
 eration for an agreement to extend the time of payment.^" 
 Though the holder of a promissory note which proves to be void 
 may in a proper case recover on the consideration for which the 
 
 lit is always advisable in pleading days after date, the sum of 
 
 under a code to set out the instrument dollars. 
 
 sued upon in the body of the com- ^ Welton v. Adams, 4 Cal. 37 ; Brum- 
 
 plaint, as thereby any mistake as to magim v. Tallant, 29 Id. 503. 
 
 the legal effect of the instrument will ' Na^lee v. Palmer, 7 Cal. 543. 
 
 be avoided, and besides it will then * Mc"Millan v. Richards, 9 Cal. 865 ; 
 
 not be necessary to prove the exeou- see Civil Code, sec. 3095. 
 
 tion of the instrument, unless the ex- ^ Bellows Falls Bank v. Rutland 
 
 eoution is specifically denied under County Bank, 40 Vt. 377. 
 
 oath. The following allegation, how- • Winters v. Rush, 34 Cal. 136. 
 
 ever, is good, and may be substituted ' Bank of Troy v. Topping,13 Wend. 
 
 for the first paragraph in the above 557 ; Goshen Turnpike Co. v. Hurtin, 
 
 form: I. That on the day of 9 Johns. 217; Prindle v. Caruthers, 
 
 18 ..., at , the'de- 15 N. Y. 426. 
 
 fendant made and delivered to the * Kratz v. Stocke, 42 Mo. 351. 
 
 plaintiff his promissory note of that » Holy v. Rhodes, 2 Cranch C. C. 
 
 date, and thereby promised to pay to 245 ; Lane's Adm'r v. Dyer, Id. 349. 
 
 the plaintiff, or his order, in I'Lieningv. Gould, 13 Cal. 598. 
 
§ 1106. PKOMISSOEY NOTES, ETC. 455 
 
 note was intended to be given, he can not do so unless tlie 
 pleading set out such consideration.^ Where an agreement of 
 sale of personal property was signed by the purchaser only, who 
 gave his note for the price, it might be inferred from the evi- 
 dence of performance on seller's part so as to constitute a con- 
 sideration for the note.^ As the statute makes a promissory 
 note prima facie evidence of indebtedness, though no consid- 
 eration be expressed,^ it is not necessary to add an averment 
 that the defendant is indebted.* 
 
 § 1 103. Copy of Note. — A complaint against a maker is 
 sufficient where it sets forth a copy of the note, and alleges 
 that a specified sum is due thereon from defendant to plaintiff, 
 although the note is by its terms payable to a third person, and 
 there is no allegation of an indorsement by him.^ 
 
 § 1104. Date — Variance. — It is- of n oconsequence whether 
 the date of a promissory note be at the beginning or end of it.^ 
 But as a variance would be immaterial,'' the plaintiff may trans- 
 fer the allegation of time and place into one of date, thus: 
 
 That the defendant, by his promissory note, dated on , 
 
 at , promised, etc. A variance of one month in the 
 
 time of a note described, was disregarded as immaterial, the 
 defendant not having been misled. ^ Where no time of payment is 
 named, the note is due immediately,* and interest runs from 
 ■date and without demand. On such a note a count stating no 
 time of payment is good.'" 
 
 § 1105. Delivery. — It is not necessary to add an averment 
 of delivery where the plaintiff is the payee. "Made" imports 
 delivery.ii Indorsement likewise imports delivery. 
 
 § 1106. Demand. — No previous demand is necessary to 
 maintain an action on a note payable on demand.i^ The action 
 itself is a sufficient demand, and if there were no days of grace 
 allowed, the note would be payable immediately after delivery.is 
 But an indorser after maturity is entitled to demand and notice 
 
 1 Wayman v. Torreyson, 4 Nev. 124. » Trowbridge v. Didier, 4 Duer, 448. 
 
 2 Weightman v. Caldwell, 4 Wheat. ' Thompson v. Ketcham, 8 Johns, 
 05 ^ 189 ; Gaylord v. Van Loan, 15 Wend. 
 
 3 Stewart v. Street, 10 Cal. 872. 808 ; 6 Barb. 662 ; Bell v. Sackett, 88 
 * Connecticut Bank v. Smith, 9 Cal. 407. ,^ q t v qt^ 
 
 Abb Pr 168 Herriok v. Bennett, 8 Johns. 374, 
 
 5 Prindle v.' Caruthers. 15 N. Y. 425 ; " Churchillv Gardner. 7 T. R. 596 ; 
 Continental Bank v. Bramhall, 10 Eusse 1 v. Whipple, 2 Cow^ 536; 
 Bosw. 695; Eaynor v. Hoagland, 39 Pnndle v. Caruthers, 15 N. Y. 425; 
 N Y S C 11 Keteltas v. Myers, 19 Id. 231. 
 
 6 Sheppard v. Graves, 14 How. U. '^ ziel v. Dukes, 12 Cal. 482 ; Story 
 S "SO"! o" Prom. Notes, sec. 29. 
 
 ' Bentzingv. Scott, 4 Carr. & P. 24. " BeU y. Sackett, 38 Cal. 407. 
 
456 FORMS OF COMPLAINTS. § 1107. 
 
 of non-payment before he is liable to pay.^ As against a maker 
 or acceptor of a note drawn payable at a particular bank or 
 place, it is not necessary to aver tliat a demand, was made at 
 place specified.^ But with the indorser the rule is dif- 
 ferent. ^ Where a note is payable in installments due at differ- 
 ent times, and demand on the maker is not made till the last 
 installment falls due, and then demand is made for the whole 
 amount, the demand is good for .the purpose of charging the 
 indorser for the last installment.'* 
 
 § 1107. Indorsement. — If a person who is not a party to a 
 promissory note indorse his name upon it in blank, with intent 
 to give it credit, the holder may write over it an engagement to 
 pay it in case of insDlvency of the maker, and if such insolv. 
 ency be shown no allegation of demand or notice is necessary.* 
 A parol agreement between two indorsevs at the time of in- 
 dorsement, to divide the loss between them in the event of non- 
 payment, is a collateral agreement, founded on sufficient con- 
 sideration, and will support an action. ^ Payment of a note by 
 an indorser after protest, is a good consideration for an assump- 
 sit on the part of the maker, for the note, with cost of protest.'' 
 
 § 1108. Execution. — The general rule of law requiring proof 
 of the title of the holders of a note, may be modified by a rule 
 of court dispensing with proof of the execution of the note, un- 
 less the party shall annex to his plea an affidavit that the note 
 was not executed by him." 
 
 § 1109. Foreign Coin Note. — "Where a note is payable in 
 foreign coin, the value of such coin must be averred.^ 
 
 § 1110. Forms of Notes. — A written promise to pay to " A. 
 B.," without adding" or order," or " or bearer," is apromissory 
 note within the statute ;!" but is not negotiable under the civil code 
 of California. An instrument in the following form : "Troy, Au- 
 gust 4, 1846. I hereby agree to pay Miss A. Y. twenty dollars 
 per month during her natural life, for her attention to my son 
 J. S. M. [Signed] B. M." — is not a promissory note." Such 
 
 1 Beebe v. Brooks, 12 Gal. 308. ' Mills v. Bank of United States, 11 
 
 ' Silver v. Henderson; 3 McLean, Wheat. 431; see Cal. Code C. P., sec. 
 
 165; Payson v. Whitcomb, 15 Pick. 447. 
 
 212. 'United States v. Hardyman, 13 
 
 » United States Bank v. Smith, 11 Pet. 176; see sec. 3238 Civil Code. 
 
 Wheat. 171. w Burchell v. Slocock, 2 Ld. Eaym. 
 
 * Eastman V. Turman, 24 Cal. 379. 1546; Smith v. Kendall, 6 T.E. 123; 
 
 * Offut V. Hall, 1 Cranch C. C. 504 ; Downing v. Blackenstoes, 3 Cai. 187 ; 
 M- 572. Goshen & Minisink Turnpike Co. v. 
 
 « Phillips V. Preston, 6 How. (U. Hurtin, 9 Johns. 217. 
 S-)278. "Spear v. Downing, 12 Abb. Pr. 
 
 ' Morgan v. Reintzell, 7 Cranch, 273, 437. 
 
§ 1114. PROMISSORY NOTES, ETC. 457 
 
 an instrument expresses no consideration, since it affords no pre- 
 sumption that the services referred to were rendered in pursuance 
 of a previous request of the promisor, or that they were beneficial 
 to him.^ On a promise to pay "as soon as able," a judgment 
 and execution are the best test of defendant's ability to pay.* 
 
 § 1111. Interest. — If the holder of a promissory note fill in 
 the rate of interest left blank by the maker, he can collect only 
 legal interest ; but an innocent holder from him can collect the 
 interest as filled in.^ Interest need not be averred. It can be 
 recovered as damages.* The filling of a blank with the rate of 
 interest does not thereby vitiate the note.^ If the original note 
 offered in evidence contains an abbreviation for the word "ad- 
 ministratrix," and specifies the rate of interest in figures only, 
 and the copy in the complaint gives the word in full, and states the 
 rate of interest in words as well as figures, the variance is imma- 
 terial.^ 
 
 § 1112. Pleading, Legal Effect. — A note may be set out 
 according to its legal effect.'' The difference between a note pay- 
 able on a certain day and one payable on or before such a day is 
 material when described according to its legal effect. ^ A com- 
 plaint pleading a note according to its legal effect must state a 
 payee, otherwise it seems it is demurrable.^ 
 
 § 1113. Liability of Maker. — The maker is bound. by the 
 contract which he signs, whatever his motive or purpose in 
 signing it may be, and can not vary the legal effect of his obli- 
 gation by parol. ^^ A promissory note is neither an account, 
 unliquidated demand, nor a thing in action not arising out of 
 contract.^ 
 
 § 1114. Lost Paper. — In case of the loss or destruction of 
 ne<Totiable paper, as a note or certificate of deposit, the plaintiff 
 can not maintain an action without first indemnifying the maker 
 against all future claims upon it.^^ And no distinction exists 
 between a note destroyed and one lost ; but in either case a bond 
 of indemnity need not be tendered or filed with the complaint, 
 but may be tendered upon the trial.i^ 
 
 1 Spear v.Downing, 12 Abb. Pr. 437. Turner's Ex'rs v. "White, 4 Cranch 0. 
 
 » Cecil V. Welsh, 2 Bush (Ky.), 168. C. 465 
 
 8 Fisher v. Dennis, 6 Cal. 577. * Kikindal v. Mitchell, 2 McLean, 
 
 4 Chinn v. Hamilton, Hempst. 438. 402. i,v,va» 
 
 5 Fisher V. Dennis, 6 Cal. 577 ; Visher 'White v. Joy, 13 N. T. 83. 
 
 V. Webster, 8 Id. 109 ; see Humphreys ° Aud v. Magruder, 10 Cal. 282. 
 
 V. Crane, 5 Id. 173 ; see ante. Bills of " Pnest v. Bounds, 26 Cal. 188 
 
 Exchange »2 Welton v. Adams, 4 Cal. 3 /; Price 
 
 • Corcoran V. Doll, 32 Cal. 82. v. Dunlap, 5 Id. 483. 
 
 'Drake v. Fisher, 2 McLean, 69; '' I^a^TPu/- J"T; ?! S^v f qV 
 Spaulding v. Evans, Id. 139 ; compare but see Wright v. Wright, 54 N. Y. 437. 
 
458 rOEMS OF COMPLAINTS. § 1115. 
 
 § 1115. Maturity. — It is not necessary to show that the 
 note was due before the commencement of the action,^ nor 
 that the time for payment has elapsed.^ An allegation that a 
 note was given to provide for payment does not mean a present 
 payment, but a provision for a future payment.^ 
 
 § 1116. New Promise. — Where a creditor sues after the 
 statute of limitations has run upon the original contract, or 
 after a discharge in insolvency, his cause of action is not the 
 original contract, but the new promise; and in such case the 
 new promise must be pleaded.* 
 
 § 1117. Non-payment. — In a complaint upon a promissory 
 note, an allegation of its non-payment is material, and if 
 omitted, the complaint is demurrable. The averment that 
 there is a certain amount due upon the note is insufficient, 
 being a statement of a mere conclusion of law.^ An allegation 
 in the complaint that " no part of said note, principal or in- 
 terest, has been paid," is a sufficient averment of a breach. ^ 
 
 § 1118. Note Held Adversely. — A party who claims to be 
 the owner of a promissory note, which is at the time in the pos- 
 session of another claiming title thereto, can not maintain an 
 action thereon; the maker being entitled to have it delivered 
 up, and canceled upon paying it. The title to the note could 
 not be settled in such suit.'' 
 
 § 1119. Negotiability. — In Indiana a promissory note made 
 payable at a bank in that state having an actual existence, is ne- 
 negotiable ; if not so payable, it is assignable, but is not commer- 
 cial paper f and in an action brought thereon by a bona fide 
 holder, the maker is not estopped from showing that there was 
 no such bank in existence. ^ A promissory note providing ihat 
 it may be paid at any time before maturity, and that interest at 
 eighteen per cent per annum shall be deducted till due, is not 
 negotiable. '^'' A note may be negotiable if payable certainly at 
 a fixed time, although subject to a contingency under which it 
 may become due earlier. ^^^ The current rate of exchange must 
 be proved by extrinsic evidence ; therefor a promise to pay a 
 
 1 Smith v. Holmes, 19 N. Y. 271 ; overruling Smith v. Richmond, 19 Id. 
 Maynard v. Talcott, 11 Barb. 569. 476. 
 
 2 Peets V. Bratt, 6 Barb. 662 ; May- ^ Frisoh v. Caler, 21 Cal. 71. 
 nard v. Talcott, 11 Id. 569 ; Smith v. ^ Jonea v. Frost, 28 Cal. 245. 
 Holmes, 19 N. T. 271; Keteltas v. ' Crandall v.Schroeppel, IHun, 557. 
 Myers, Id. 231. s King v. Vance, 46 Ind. 246. 
 
 3 Bates V. Kosenkrans, 23 How. Pr. ' First Nat. B'k v. Grindstaff, 45 
 
 98. Ind. 158. 
 
 « McCormick V. Brown, 36 Cal. 180, J» Way v. Smith, 111 Mass. 523. 
 
 and Chabot v. Tucker, 39 Id. 434 ; " Ernst v. Steokman, 74 Pa. Bt 13. 
 
§ 1123. PROMISSORY NOTES, ETC 459 
 
 sum certain -witli the euiTent rate of exchange added, is not a 
 negotiable note.' 
 
 § 1120. Allegation of Ownership.— The averment in the 
 complaint that plaintiff is the owner of the note and mortgage in 
 suit, is a sufficient answer to a demurrer, on the ground that it 
 does not appear by the complaint that the plaintiff is the holder 
 of the note.^ That tl|,e defendant made his promissory note in 
 writing, and thereby "promised to pay plaintiff," is sufficient 
 to show that plaintiff is owner of the note.^ The averment that 
 the plaintiff was owner of the note is not the averment of an 
 issuable fact. It is the allegation of a legal conclusion, and is 
 immaterial, and should be omitted.* For the plaintiff may re- 
 cover without being the holder, as where the note has been 
 destroyed or lost.* Or, as when the note is in possession of de- 
 fendant.^ In such cases he may sue if he is the real party in inter- 
 est, trustee of an express trust, or person authorized by statute.'' 
 
 § 1121. Parties. — Persons severally liable upon the same 
 obligation or instrument, including the parties to bills of ex- 
 change and promissory notes, and sureties on the same or sepa- 
 rate instruments, may all or any of them be included in the same 
 action, at the option of the plaintiff.^ 
 
 § 1122. Presentment. — In an action against the maker of a 
 note, or the acceptor of a bill of exchange, in which the place 
 of payment is fixed, it is not necessary to aver presentment at 
 that place and refusal to pay.^ But the averment of present- 
 ment and demand of note at the place specified is necessary to 
 charge an indorser.'" 
 
 § 1123. Real Party in Interest. — If the holder of a promis- 
 sory note legally has its possession, and is entitled to receive 
 its payment, he is the proper plaintiff in its prosecution, and 
 this without reference to the party who may ultimately be en- 
 titled to a participation in its proceeds.^ 
 
 1 Lowe V. Bliss, 24 lU. 168 ; Hill v. ^ Supervisors v. White, 80 Barb. 72 
 
 Todd, 29 111. 101. Des Arts V. Leggett, 16 N. Y. 582. 
 
 « Rollins V. Forbes, 10 Cal. 300. « Smith v. McClure, 5 East, 476 
 
 » Moss v. CuUv, 1 Or. 147. ' Selden v. Pringle, 17 Barb. 468. 
 
 «Poorman v.Mills, 35 Cal. 118; ap- ' Koot v. Price, 22 How. Pr. 3^2, 
 
 proving Wedderspoon v. Rogers, 32 Butterfleld v. McOmber, Id. 150. bee, 
 
 Cal. 569 ; see, also, JPlammer v. Kline, on this subject, " Pleadings. 
 
 9 How. Pr. 216; Bank of Lowville v. » Cal. Code 0. P., sec. 383. 
 
 Edwards, 11 Id. 217 ; Mitchell v. Hyde, 'Montgomery v. Tutt, 11 Cal. 307. 
 
 12 Id. 460 ; Keteltas v. Myers, 19 N. i° Gay v. Paine,5How. Pr. 107 ; Per- 
 
 Y. 231 ; Farmers' etc. Bank v. Wads- ner y. Williams 14 Abb. P'- 216^- b- 
 
 worth, 24 Id. 547 ; Niblo v. Harrison, Bankv. Smith, 11 Wheat. 171 ;Wood- 
 
 7 Abb Pr. 447 ; Skinner v. Stuart, 18 worth v. Bk. of America,19 Johns. 419. 
 
 Id 249- Ohio etc. Co. v. Goodin, 1 " Williams v. Brown, 2 Keyea, 486. 
 
 Handy, 31. Consult " Parties." 
 
460 FOBMS OF COMPLAINTS. 4 1124. 
 
 § 1124. Rate of Interest. — On a note made in another 
 state, and bearing higher interest than is lawful by the law of 
 the forum, the foreign statute need not be pleaded, for the 
 court may presume that the common law, by which any rate 
 of interest is lawful, prevails in the law of the place of the con- 
 tract.^ 
 
 § 1125. Substitute Notes. — A complaint is not deficient, in 
 stating a cause of action, because after alleging valid notes, it 
 states that they were given up and canceled on the giving by de- 
 fendant of new notes, in which usurious interest was reserved for 
 the extension of time. The plaintiff may in such a case recover 
 upon the original notes. ^ 
 
 § 1126. Value Received. — The legal effect of a promissory 
 note is the same with or without the words " value received."* 
 
 § 1127. Verbal Conditions. — In Indiana,^ it was held that 
 a verbal condition could not be annexed to a promissory note ; 
 but in New York ^ it vras held that a bill or note may be delivered 
 to the person beneficially interested therein, upon conditions the 
 observance of which is essential to its validity ; and the annexing 
 of such conditions to the delivery is not an oral contradiction to 
 the written obligation, though negotiable, as between the parties 
 to it or others having notice. 
 
 § 1128. Void Notes. — Notes given for a gaming considera- 
 tion are valid in the hands of a bona fide indorsee.^ A negotia- 
 able note, the consideration of which is against public policy, 
 becomes valid in the hands of an innocent holder before matur- 
 ity.'' A promissory note, given for the release of property 
 seized for a toll imposed by the state law on lumber floated 
 down a stream from that state into another, is void for want of 
 consideration. 8 
 
 § 1129. When Due. — When days of grace are allowed, the 
 day on which the note became due is excluded from the computa- 
 tion. * And the maker has all of the last day on which his note 
 falls due to pay it, and suit commenced thereon on that day is 
 premature. 1" A promissory note payable generally, without 
 specifying any time, is due immediately.^! 
 
 1 Buekinghouse v. Gregg, 19 Ind. * C. E. L. Co. v. Patterson, 33 Cal. 
 (Kerr.) 401. 334. 
 
 2 Winsted Bank v. Webb, 39 N. Y. " Story on Prom. Notes, sec. 217 ; 
 32.5. Chit, on Bills, 403 ; Bailey on Bills. 
 
 3 People v. McDermott, 8 Cal. 245. 
 
 288. i» Wilcombev. Dodge, 8 Cal. 260; 
 
 * Potter V. Earnest, 45 Ind. 416. see Davis v. Eppinger, 18. Id. 381 ; 
 
 ' Benton v. Martin, 52 N. Y. 570. Bell v. Sackett, 88 Id. 407. 
 
 « Haight V. Joyce, 2 Cal. 64. " Holmes v. West, 17 Cal. 628. See 
 
 ' Thome v. Yontz, 4 Cal. 321. ante, " Bills of Exchange." 
 
§ 1132. PEOMISSOHY NOTES, ETC. 461 
 
 § 1130. The Same— On Two Notes, One beins Partly 
 Paid. ' 
 
 ,„ , Form No. S98. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges : 
 First. — For a first cause of action: 
 
 I. That on the day of , 18 ..., at , the 
 
 defendant made and delivered to the plaintiff his promissory 
 note, of which the following is a copy [insert copy of note]. 
 
 II. That he has not paid the same [except dollars, 
 
 paid on the day of , 18. ..j. 
 
 Second. — For a second cause of action : 
 
 I. That on the day of , 18..., at , 
 
 the defendant made and delivered to the plaintiff his promissory 
 note, of which the following is a copy [insert copy of the note]. 
 
 II. That he has not paid the same, nor any part thereof. 
 
 Wherefore the plaintiff demands judgment against the de- 
 fendant for the sum of [aggregate principal], with interest on 
 
 ■ -. dollars thereof, from the day of , and 
 
 with interest on dollars thereof, from the day of 
 
 , and costs of suit.i 
 
 § 1131. Causes of Action. — It would seem that several 
 notes are several causes of action, and must be separately 
 stated.* But it appears the contrary is held in Iowa. 3 
 
 § 1132. Several Notes given as Security. 
 
 Form No. S99. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That upon the day of , 18..., the defendants 
 
 were indebted to the plaintiffs in the sum of dollars. 
 
 II. That to secure the payment of that sum, the defendants 
 made their promissory notes, copies of which are hereto annexed, 
 marked Exhibits " A," " B," and " C." 
 
 III. That at the same time the defendants agreed with the 
 plaintiffs, in writing, that in case of default in the payment of 
 any of the said notes at any time when the same should become 
 
 due and payable, the whole amount of said sum of 
 
 dollars and interest, then remaining unpaid, should forthwith, 
 at the option of the i^laintiffs, become at once due and payable. 
 
 ' If preferred, and in fact it is unless the answer denying the same 
 
 the hetter practice, a copy of the be verified : Gal. Code C. P., sec. 44'7. 
 
 notes may be set out, in pleading on ' Van Namee v. Peoble, 9 How. Pr. 
 
 written instruments. By doing so, 198 ; Dorman v. Kellam, 4 Abb. Pr. 
 
 the genuineness and due execution of 202. 
 
 the instrument are deemed admitted, ^ Merritt v. Nihart, II Iowa, 67. 
 
462 FOKMS OF OOMPLAINTS. § 1133. 
 
 IV. That the first of said notes became due and payable on 
 the day of , 18... 
 
 V. That defendants have not paid the same nor any part 
 
 thereof. 
 
 [Demand of Jxtdgmknt.] 
 
 [Annex copies of notes marked Exhibits " A," " B," " C."]i 
 
 § 1133. On a Note Signed by an Agent. 
 
 Form No. 300. 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on day of , 18.., at , the 
 
 defendant, by his agent [or attorney in fact], duly authorized 
 thereto, made his promissory note, and thereby promised to pay 
 
 to the plaintiff [or his order] dollars, months after 
 
 said date. 
 
 II. That he has not paid the same [except dollars, paid 
 
 on the day of , 18..]. 
 
 [Demand op Judgment.] 
 
 § 1134. Action on Note Sxecuted by Agent. — A com- 
 plaint averring that the principal by his agent, made a promissory 
 note, is good.^ But it has been held that in the common counts 
 it is not necessary to state that the defendants acted by an agent, 
 but that an averment that the act was the act of the defendants 
 would be supported by proof of the act of their agent.* 
 Where the pleading shows, by setting out a copy of the instru- 
 ment, that the act was by an agent, his authority should be 
 averred.'' The ratification by a principal, of an unauthorized act 
 of an agent, has a retroactive efficacy, and being equivalent to an 
 original authority, an allegation of due authority is sustained by 
 proof of such ratification. 5 
 
 § 1135. On a Note made by Partners. 
 
 Form No. SOI. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18.., at , 
 
 the defendants under their firm name of A. B. & Co. , made and 
 delivered to the plaintiff their promissory note, of which the fol- 
 lowing is a copy [insert copy of note] . 
 
 1 It is not necessary to allege, Sherman v. Oomstock, 2 McLean, 19; 
 "agreed to deliver and did make and compare Wilsaa v. Porter, 2 Cranch 
 deliver to the plaintiffs," because the C. Ct.458. 
 
 copies are annexed, showing posses- ' Sherman v. N. Y. Central E. K. 
 
 sion in the plaintiff of the said notes, Co., 22 Barb. 239. 
 
 and because "made" implies delivery: • McCuUough v. Moss, 5 Den. 567. 
 
 See Brown v. South. Mich. K. K. Co., ' Hoyt v. Thompson's Ex'rs, 19 N. 
 
 6 Abb. Pr. 237. Y. 207.. 
 
 2 Childress v. Emory, 8 Wheat. 642; 
 
§ 1140. PHOMISSORY NOTES, ETC. 463 
 
 II. That they have not paid the same nor any part thereof. 
 [Demand op Judgment.] 
 
 § 1136. The Same— How Alleged.— Signature of a note, 
 in the name of a firm, by a partner, may be alleged as made by 
 the firm. It is sufficient to set forth a writing according to its 
 legal effect.^ All the joint maimers of a promissory note are 
 principals ; ^ and suit must be brought against them all.^ 
 
 § 1137. Another Form, Averring Partnership. 
 
 Form No. SOS. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That at the time of malting the note hereinafter men- 
 tioned, the defendants were partners doing business at , 
 
 under the firm name of A. B. & Co. 
 
 II. That on the day of , 18 ..., at , 
 
 the defendants, under their said firm name, made their promis- 
 sory note, and thereby promised to pay the plaintiff 
 
 dollars months after said date. 
 
 III. That they have not paid tht same, nor any part thereof. 
 
 [Demand of Judgment.] 
 § 1138. Allegation by Payee as Receiver againstPart- 
 ners. 
 
 Form No. SOS. 
 
 That heretofore the defendants under their firm name of A. 
 B. & Co. , made their promissorj' note, and thereby promised to 
 
 pay to the plaintiff, as such receiver [or to his order], 
 
 dollars on the daj of , 18... 
 
 § 1139. As Such Receiver. — The act should be averred as 
 that of the party as suchreceiver.* Where, however, the plain- 
 tiff's character is once sufficiently stated, the word "plaintiff " 
 in subsequent parts of the pleading requires no addition to the 
 description. 
 
 § 1140. Partnership. — An averment that the note was in- 
 dorsed by the defendants under a certain name and description 
 is sufflcient.5 Where the fact of partnership is likely. to be 
 drawn in question, it is better to aver the fact distinctly.* Tiie 
 denial of the copartnership of the plaintiffs is immaterial unless 
 the defendant denies the execution of the note.'' 
 
 » Manhattan Co. v. Ledyard, 1 Cai. was contained in the complaint in 
 
 192: Vallett v. Parker, 6 Wend. 615 ; Smith v. Levinus, 8 Id. 472 ; and see 
 
 see Bass v. Clive, 4 Camp. 78. Gould v G^ss, 19 Barb. 179 ; Sheldon 
 
 2 Shriverv. Lovejoy, 32 Cal. 574. v. Hoy 11 How. Pr. 11. 
 
 8 Woodwoi-th V. Spafford, 2 -Mc- ' Kendall v. Freeman 2 McLean, 
 
 Lean, 168; Keller v. Blasdel, 1 Nev. 189; Davis v Abbott Id 29 
 
 .Qi 6 Oechs V. Cook, 3 Duer, ibl. 
 
 « Merritt v. Seaman, 6 N. Y. 168, ' Whitwell v. Thomas, 9 Cal. 499. 
 and cases there cited. This clause 
 
464 FORMS OP COMPLAINTS. § 1141. 
 
 § 1141. Sight Note, Allegation of. 
 
 Form. No. 304. 
 
 Thatonthe day of , 18..., at , said note 
 
 was duly presented to the defendant [maker] , with notice that 
 payment was required according to the terms thereof.^ 
 
 § 1142. On a Note Wrongly Dated. 
 
 Form No. 303. 
 
 [TlTM.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , the 
 
 defendant made and delivered to the plaintiff his certain prom- 
 issory note, of which the following is a copy [insert copy of 
 note] ; that by inadvertence or mistake said note was dated as 
 
 of the day of , instead of the said day of 
 
 [the date of delivery]. 
 
 II. That he has not paid the same, nor any part thereof. 
 
 [DisMAND OF Judgment.] 
 
 § 1143. Domestic Corporation, Payee, against a For- 
 eign Corporation. 
 
 Form No. 306. 
 
 [TiTLK.] 
 
 The plaintiff complains, and alleges : 
 
 I. [Allege incorporation of plaintiff under the act as in form 
 No. 75.] 
 
 II. That the defendant is a corporation, chartered by and un- 
 der the laws of the state of Nevada, and pursuant to an act of the 
 legislature of said state [title of act], passed [date of enactment]. 
 
 III. Thatonthe day of , 18..., at ,the 
 
 defendant, as such corporation, by one A. B., its agent [or at- 
 torney in fact], made its promissory note, and thereby promised 
 to pay to the plaintiff, under its corporate name of E. F. [or to 
 
 their order], dollars, months after said date. A 
 
 copy of said note is hereto attaclied, marked "Exhibit A," and 
 made part of this complaint. 
 
 IV. That the same has not been paid nor any part thereof. 
 
 [Demand of Judqmknt.] 
 § 1144. Form of Note. — " The president, by the order of 
 the board of thfe A. B. Co , promises to pay," etc., signed 
 "C. D., Pres., E. F.," et al., binds the individuals signing, 
 and not the corporation.^ " The president and directors of the 
 A. B. Co. will pay," etc., signed " C. D., Pres., E. F.," et al., 
 does not bind the individuals signing, but only the corporation.* 
 
 1 Sight is a condition precedent : 2 ^ Caphavt v. Dodd, 8 Bush, 584. 
 Ch. PI. 234. » Yowell v. Dodd, 3 Bush, 581. 
 
§ 1148. PEOMISSOEY NOTES, ETC. 465 
 
 §1145. Insurance Company.— In an action by the in- 
 dorsees against the maker of a note, of which an insurance 
 company were the payees and indorsers, the complaint showed 
 that the defendant made his note to the Atlas Mutual Insurance 
 Company, or order; and that the company indorsed it, and 
 transferred and delivered it to the plaintiffs, but it did not ex- 
 pressly aver that the transfer was made pursuant to a resolution 
 Of the board of directors ; it was held sufficient on demurrer. 
 If such resolutions were necessary, it was implied and provable 
 under the allegation that the company transferred the note. 
 But that is not true if the transfer was not made by the proper 
 officer, and according to law.^ 
 
 § 1146. Power of Corporation to make Note.— In the 
 absence of any prohibitory statute, a corporation may give a note 
 for a debt contracted in the course of its legitimate business.^ 
 Prima facie, a corporation has power to take a promissory note.^ 
 "Where there is nothing on the face of the note to show that it 
 was issued contrary to law, or that the consideration or the 
 purpose was illegal, the presumption is that it was given for a 
 lawful purpose.* 
 
 § 1147. • Payee against Surviving Maker. 
 
 Form No. S07. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That at the time of the making the note hereinafter men- 
 tioned, the defendant and one A. B. were partners, doing busi- 
 ness under the firm name of A. B. & Co. 
 
 II. That on the day of , 18..., at , 
 
 they made, under their said firm name, their promissory note of 
 that date, of which the following is a copy [insert copy of note]. 
 
 III. That on the day of , 18..., at , 
 
 said A. B. died, leaving the defendant the sole surviving partner 
 of said firm. 
 
 rV. That said note has not been paid, nor any part thereof. 
 [Demand op Judsment.] 
 
 § 1148. When Action Lies— Allegations.— A joint ac- 
 tion at law can not be maintained against the survivor and 
 administrator of the deceased maker of a promissory note.^ 
 
 1 Nelson v. Eaton, 15 How. Pr. 305. ' Mutual Benefit Life Insurance Co. 
 
 2 Mott V. Hicks, 1 Cow. 513, 632 ; v. Davis, 12 N. Y. 569. 
 
 Mossv. Oaklev, 2Hill, 665; Attorney * Safford v. Wyckoff, i Hill, 442; 
 
 General v. Life and Fire Insurance Barker v. Mechanic's Fire Ins. Co., 3 
 
 Co., 9 Pai^e Ch. 470; KeUey v. Mavor Wend. 94. 
 
 etc. of Brooklyn, 4 Hill, 263 ; Mc- ^ Maples v. Geller, 1 Nev. 233. 
 CU Hough V. Moss, 5 Denio, 567. 
 EsTBB, Vol. 1—30. 
 
466 FORMS OP COMPLAINTS. § 1149. 
 
 The rule in equity has been that the estate of a deceased joint 
 obligor could only be reached when the survivor was bankrupt or 
 insolvent.^ Where an action is brought against two, as the sur- 
 vivors of one who executed -a joint note, it is not essential to 
 allege in the .declaration that the note was not paid by the 
 deceased.* 
 
 § 1149. Payee against Maker and Indorser, on Note 
 Taken on the Faith of the Indorsement. 
 
 Form No. 308. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18,.., at , the 
 
 defendant, A. B. , made his promissory note, and thereby prom- 
 ised to pay to the order of the plaintiff, at ». , the sum 
 
 of dollars, months after said date. 
 
 II. That the defendant, C. D., indorsed said note, when said 
 A. B. delivered the same to plaintiff. 
 
 IIL That said note at maturity was presented to said A. B. 
 for payment, and payment thereof demanded, but the same was 
 not paid ; of all which due notice was given to the defendant, 
 CD. 
 
 IV. That said note was made by the defendant A. B. , and in- 
 dorsed by the defendant C. D., for the purpose of paying for 
 [state what], on the credit of such indorsement; that the de- 
 fendant C. D. indorsed the same for the purpose of procuring for 
 the said maker a credit with the plaintiff, knowing that it would 
 be so applied, and that said note was so passed and so indorse^ 
 by the defendant with his privity, to the plaintiff in payment for 
 [state what]. 
 
 V. That no part thereof has been paid.* 
 
 [Demand of Judgment.] 
 
 § 1150. First Indorsee Against Maker. 
 
 Form No. S09. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18.,., at , 
 
 the defendant, by his promissory note, promised to pay to the 
 order of one C. D., dollars. 
 
 II. That the said C. D. indorsed the same to the plaintiff. 
 
 1 Maples V. Geller, 1 Nev. 233. Cross, 19 N. T. 227. For a complaint 
 
 * Silver v. Henderson, 3 McLean, on instrument for payment of money 
 165; but see Winter v. Simonton, 3 only: Held sufficient against makers, 
 Oranch 0. Ct. 62. and insufficient against indorsers, in 
 
 * See as to the authorities sustain- Conkling v. Gandall, 1 Keyes, 228. 
 ing a form similar to this, Moore v. 
 
§ 1153. PEOMISSOBY NOTES, ETC. 467 
 
 III. That defendant has not paid the same, nor any part 
 thereof. 
 
 [Demand op Judgmbwt.] 
 
 § 1151. Consideration. — ^Whfen the consideration passing 
 between the indorsee and his indorser is not equal to the amount 
 of the paper, the indorsee as against his indorser can recover only 
 the amount of consideration he has paid.^ The indorsement, as 
 well as the making of a note, imports a consideration.^ The 
 phrase, in a declaration on a note, that the plaintiff received it 
 " before maturity, bona fide, and in due course of trade," means 
 that he took it for value. ^ 
 
 § 1152. Indorsement by a Firm. — An indorsement or signa- 
 ture of a note, in the name of a firm, by a partner, may be alleged 
 as made by the firm. It is sufficient to set forth a writing accord- 
 ing to its legal effect.* So, also, of joint makers not alleged to 
 be partners.^ It is sufficient in such cases to allege, generally, 
 that M. N. & Co. indorsed it.^ 
 
 § 1153. Oivner. — The holder of negotiable paper indorsed 
 before maturity, is supposed to be the bona fide owner of tlie 
 same, and all intendments are in his favor.'' Nor is it necessarv 
 that he should show how he became possessed of the note.s His 
 right to maintain the action can not be questioned on the ground 
 that the note belongs to a third party, except defendant pleads 
 payment to or offset against that party. » So, it has been decided 
 that the possession obtained before or after maturity is prima 
 facie evidence of ownership. i" It is no objection to a recovery 
 that title be shown out of the payee by special indorsements, 
 without any retransfer from the last indorsee, if there be proof 
 that the indorsees had no interest in it." An allegation that the 
 plaintiff (indorsee) is owner, or owner and holder, is unnecessary, 
 since, when title is shown, a denial that he is the lawful owner 
 and holder, is frivolous.^'' 
 
 1 Ooye V. Palmer, 16 Cal. 158. » Mack v. Spencer, 4 Wend. 411. 
 
 2 Hughes V. Wheeler, 8 Cow. 77; « Cochran v. Scott 3 Wend. 229; 
 Cruger v. Armstrong, 3 Johns. Cas. 5 ; Bacon v. Cook, 1 Sandf. 77. 
 C6nfoy v. Warren,^ Id. 259; Safford Palmer v. Goodwin, ^J>f-f^' 
 V Wyckoff, 4 Hill, 442; Nelson v. Himmelmann v. Hotaling, 40 id. Hi. 
 Cowing, 6 Id. J?36; Wheeler V. Guild, «Id. ^ n i iao 
 
 20 Pick. 550 ; Collins v. Martin, 1 Bos. 'Price v. Dunlap, 5 Cal. 483. 
 
 & P. 648 ; Luning v. Wise, 1 West " McCann y. Lewis, 8 Cal 246 
 
 rvo.f-Rorv 1<!« 11 Nagle V. Lyman, 14 Cal. 450. 
 
 ^°MiUe?V:Mayfleld,87Miss.688.. ^,'=^ Catlin v. &-t«r ^ Du«r, 253; 
 
 * Manhattan Co. v. Ledyard, 1 Cai. Fleury v^oget. 5 Sa"df-„646 , Poor- 
 
 192; S. C, Col. &C. Cas. 226; Vallett man v. Mills, 35 Cal. 118; Feloh v. 
 
 V. Parker, 6 Wend. 615 ; Bass v. Olive, Beaudry, 40 Id. 439. 
 4 Camp. 68. 
 
468 FOBMS OF COMPLAINTS. § 1154. 
 
 § 1154 The Same, against First Indorser. 
 
 Form No. SIG. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That the defendant indorsed to the plaintiff a promissory 
 note, made [or purporting to have been made] by one A. B., 
 
 on the day of , 18..., at , to the order 
 
 of the defendant to the sum of dollars. 
 
 II. That on the day of , 18..., the same was 
 
 presented to the said A. B. for payment, and payment thereof 
 demanded, but the same was not paid [or state facts excusing 
 want of presentment]. 
 
 III. That due notice thereof was given to the defendant. 
 
 IV. That he has not paid the same or any part thereof. 
 
 [DjSMAND or JuDGMBIfT.] 
 
 § 1155. Accommodation Indorsement. — Where a prom- 
 issory note was indorsed by a third person before delivery to 
 the payee, it was held that such indorsement was prima facie 
 an accommodation to the payee, but proof that his design was 
 to become a surety or guarantor would make him liable to the 
 payee. 1 Where a promissory note made payable to S., and 
 previous to its delivery to payee was indorsed for the accom- 
 modation of maker by H. and brother, and defendant, upon 
 agreement that each would become surety if the other would, 
 they were guarantors jointly and not severally liable.* To create 
 a several liability, express words are necessary.^ 
 
 § 1156. Demand, how Made and Alleged. — Payment of 
 the note must be first properly demanded of the makers, and 
 due notice given to the indorser, before any legal liability at- 
 taches to the latter ; and it is incumbent upon the pleader to 
 state these facts.'' That as against the indorser, an averment 
 of demand at the place designated is deemed necessary. ^ If 
 there are stated business hours at the place where it is made 
 payable, presentment and demand must be made within those 
 hours. ^ If a promissory note, payable on demand, or at sight, 
 without interest, is not duly presented for payment within six 
 months from its date, the indorsers thereof are exonerated, 
 unless such presentment is excused.'' But if payable at sight 
 or on demand with interest, mere delay in presenting does not 
 
 1 Clarke v. Smith, 2 Cal. 605. 11 Wheat. 171. See Civil Code, sec. 
 
 2 Brady V. Reynolds, 13 Cal. 31. 3131. 
 
 3 Id. 6 McFarland v. Pico, 8 Cal. 626. 
 
 * Conklin v, Gandall, 1 Keyes, 228 ' California Civil Code, see. 3248. 
 
 ' Bank of United States v. Smith, 
 
§ 1158. PROMISSORY NOTES, BTa 469 
 
 exonerate any party thereto.^ The failure to make presentment 
 and demand would not discharge the debt, but would only 
 affect the question of costs and damages.^ In an action against 
 the indorsee of a bill or note, an allegation of a demand in gen- 
 eral terms, "although often requested," etc., is good after ver- 
 dict.^ But if fce note was made payable at a particular place, 
 an allegation as in preceding form will be sufficiently specific 
 averment of demand- and notice. The contract of the indorser 
 of a promissory note is a written one, and his liability a condi- 
 tional one, to pay upon a proper demand and notice,* upon a de- 
 mand upon the maker made within a reasonable time, and that in 
 the event of his failure to do so, the indorser will pay.^ And 
 the contract can not be changed from a conditional to an ab- 
 solute contract by parol evidence.* 
 
 § 1157. Demand and Notice, Allegation of Excuse for 
 Omission of. — An express waiver of notice of non-payment is 
 sufficient excuse of demand and notice of non-payment.' And 
 this may be done by an agent of the indorser, and a verbal waiver 
 of demand, or of demand and notice, may be proved. ^ But the 
 declaration of the indorser, made to a third person, "that notice 
 not having been given at the proper time would make no difference 
 to him, and that he would do what was right," is not a waiver.* 
 Where payment by the maker to the indorser is relied upon as 
 an excuse, it must be payment directly and specifically for the 
 note, not as security for transactions in the aggregate.^" If the 
 waiver was before maturity, it operates as an estoppel to the 
 indorser from denying that demand was made and notice given, 
 and evidence of such waiver is admissible under the averment 
 of demand and notice." 
 
 § 1158. Indorsement, Averment of. — An averment in the 
 declaration that the note was indorsed by the defendants under 
 a certain name and description, is sufficient. Where a contract 
 shows a joint liability, it is unnecessary to allege a partnership.^^ 
 The fact of the indorsement only need be pleaded to show title 
 in the plaintiff, and an averment that the plaintiff is the owner 
 
 1 Id 9ec8 3214 3247. see also Drinkwater v. Tebbetts, 17 
 
 8 Monto-omery v. Tutt, 11 Cal. 307. Me. 16, where notice was waived in 
 
 s Leffingwell v. White, 1 Johns, writing. . r n , ^sn 
 
 P„. qq ' Olendorf v. Swartz, 5 Cal. 480. 
 
 * Goldman v. Davis. 23 Cal. 256. '' VanNorden v. Buckley, 5 Cal. 283 
 
 5 
 
 329. 
 
 * Goldman v. Davis, 23 Cal. 256. J' VanNorden v. Buckley, 5 Cal. 283 
 
 sKeyes v. Penstermaker, 24 Cal. ^ "holmes v. Holmes 9 N.Y 625 
 
 ig ■' Coddington v. Davis, 1 N. Y. 186 ; see 
 
 6 Goldman v. Davis, 23 Cal. 256. Civil Code sec. 3156. 
 
 ' Matthev v. Gaily, 4 Cal. 62 ; Min- ■' Kendall v. Freeman, a McLean, 
 
 turn V. Fisher, 7 Id. 573. 186 : Davis v. Abbott, Id. 29. 
 « See Mills V. Beard, 19 Cal. 158; 
 
470 FORMS OF COMPLAINTS. § 1159. 
 
 and holder is a conclusion of law, and need not be pleaded.^ 
 Where au indorsement upon a promissory note was made, not 
 by the payee, but by persons who did not appear to be other- 
 wise connected with the note, and the note thus indorsed was 
 handed to the payee before maturity, a motion to strike out of 
 the declaration a recital of these facts, and also an allegation 
 that this indorsement was thus made for the purpose of guar- 
 anteeing the note, was properly overruled.^ In an action against 
 a corporation as indorsers, it need not be averred that the note 
 was indorsed by the defendants in the course of their legitimate 
 business.^ 
 
 § 1159. Indorsement, Effect of. — The presumption is that 
 the indorser of a promissory note is the holder thereof for value.'* 
 Where a promissory note is indorsed in blank, the title and 
 right of action pass by delivery, and the note is payable to the 
 bearer.5 An unlawful diversion is not to be presumed, but 
 negotiation to a bona fide holder may be presumed, where the 
 paper bears the blank indorsement of the defendant.^ An 
 agent who has received a promissory note by indorsement, holds 
 the title as against all persons thereto, except the principal, and 
 may maintain an action thereon in bis own name.'' 
 
 § 1160. Notice to Charge Indorser. — Notice of demand, 
 as well as of non-payment, should be alleged.* A general aver- 
 ment of notice of all the premises is sufficient.' Where a note 
 is due on the first of July, the fourth being a non-judicial day, 
 notice of protest on the third is premature, and will not charge 
 the indorser. 1° In California, whenever any act of a secular na- 
 ture, other than a work of necessity or mercy, is appointed by 
 law or contract to be performed upon a particular day, which 
 day falls upon a holiday, it may be performed upon the next 
 business day, with the same effect as if it had been performed 
 upon the day appointed.^ If much time intervenes between de- 
 mand and notice, in transfers after maturity, the question may 
 arise whether the delay has not released the indorser.i^ When 
 demand of payment is made upon the maker of a note payable 
 on demand, notice of demand and non-payment must be given 
 
 i 
 
 ' Poorman v. Mills, 35 Cal. 118. • Rice v. Isham, 1 Keyes, 44. 
 
 ' Rey V. Simpson, 22 How. U. S. ' Poorman v. Mills, 35 Oal. 118. 
 
 ^^}- , . ' Pahquioque Bank v. Martin, 11 
 
 ^ Mechanics' Banking Association v. Abb. Pr. 291. 
 
 Spring Valley Shot and Lead Co., 25 " Boot v. Franklin, 8 Johns. 207. 
 
 Barb. 419 ; Nelson v. Eaton, 15 How. '» Toothaker v. Cornwall, 3 Cal. 144. 
 
 l*'-- 306. 11 Cal. Civil Code, sec. 11. 
 
 * Poorman v. Mills, 35 Cal. 118. ^ Thompson v. Williams, U Cal. 
 
 'Id. 160. 
 
§ 1162. PROMISSORY NOTES, ETC. 471 
 
 to the indorser withiu the same time which is required in the 
 case of a bill made payable at a particular day ;i and it should 
 be made on the day following the demand, unless good reason 
 ■exists for not doing so.'^ An indorser who signs his name under 
 the words, "holden on the within note," is entitled to notice of 
 demand and non-payment.' 
 
 § 1161. Notice, how Given. — Notice should be personally 
 served, if indorser resides in the same city, and in such case 
 service through, the post-oflSce is not suflS.cient.'* To charge an 
 indorser, it is not necessary to show that the notice of dishonor 
 was actually received by him, nor even that it was addressed to 
 him at his place of residence.^ Notice left by a notary at the 
 residence of the indorser, he being at the time absent, but not 
 •signed by any one, is insufficient to charge the indorser.^ If 
 the notary in good faith use due diligence, and acts upon in- 
 formation from proper parties in mailing his notice, the indorser 
 will be charged, notwithstanding the notice may be sent to 
 the wrong place and never reach him.'' Notice of protest of a 
 note left at the house in Washington of a member of congress, 
 after congress had adjourned, and he had left the city as was 
 his custom at such times, and his domicile was in the district he 
 Tepresented, and his Washington house was occupied by stran- 
 gers by his permission, who did not pay rent, is not sufficient.^ 
 
 § 1162. Notice, SufBciency of. — ^A notice is sufficient, if 
 :from it, it can be reasonably inferred that the note was pre- 
 sented and dishonored ;9 but if it state that the demand was 
 made on a day subsequent to maturity, it will not bind the in- 
 dorsers.i" The certificate need not state the form of notice 
 given, as any notice is sufficient which informs the party, either 
 by express terms or by implication." Whether verbal or writ- 
 ten, and even without description of the note, if at the time of 
 receiving notice he knew the paper referred to, it is sufficient.i" 
 Where notes are indorsed before maturity, the notice must state 
 the time of the demand and dishonor ; but it is otherwise where 
 the note was indorsed after maturity. A notice by the holder 
 that he had " demanded payment of that note," implies a de- 
 
 XKeyes v. Fen^termaker. 24 Dal. ^^^^^^^^^ f^H^^^^'^,' ^:^; 
 
 '*'''^ j J {inder the Civil Code of California, see 
 
 sVancev. Collins, 6 Cal. 436. ^^■;?}*K. s™.n 4 Pal 213- 
 
 ^ Id. ; but see Civil Code, sec. 3144. " Staughton v Swai^ 4 Cal. 213 , 
 
 6 Ga^ver v. Downie, 83 Cal. 176. Cal Civil ^^o^e, f <;. 3143 
 
 . Klockenbaum v. Pierson, 16 Cal. - ^ev. ;j,;j^ood,|. Cal.^398.^ ^^^ 
 
 rearver v. Downie, 33 Cal. 176. w Thompson v. Wimam9,14Cal.l60. 
 
472 FOEMS OP COMPLAINTS. § 1163. 
 
 mand of the maker ; and the declaration that he intended to look 
 to the indorser for payment, implies non-payment.^ 
 
 § 1163. Notice, how Alleged. — Where the complaint 
 against the indorser of a note alleges due demand, non-payment, 
 and protest, and that due notice of such non-payment and pro- 
 test was given, it is sufficient, without averring notice of demand 
 also.^ A general averment of due notice is sufficient to charge 
 an indorser. 3 " That the note, on the day it matured, was pre- 
 sented for payment at the banking house of , and 
 
 payment thereof demanded, and thereupon the same was duly 
 protested for non-payment," is a sufficient notice of demand, 
 refusal, and non-payment, to charge the indorser.^ 
 
 § 1164. Presentment. — An averment that at maturity the 
 notes were duly presented for payment to the makers, is, upon 
 demurrer, a sufficient averment of a presentment at the plac© 
 specified in the notes. ^ Nor need it be shown by whom it was 
 presented. 8 An allegation of presentment by a bank does not 
 imply ownership, but at most a holding as agent for another,'' 
 where it was alleged in a declaration that a note when due was 
 presented to the bank for payment, to wit, twenty-third of July, 
 1841, it was held, that the statement of the date, being inconsist- 
 ent with the allegation that the note was presented when due, 
 should be rejected as surplusage. ^ 
 
 § 1165. Presentment and Demand. — To charge an in- 
 dorser of a note payable on demand, presentment must be 
 made within a reasonable time, and what constitutes a reason- 
 able time depends upon the facts of each particular case.' If 
 delay has occurred, the holder must aver and prove the circum- 
 stances excusing the delay. i" A delay of thirteen months-was 
 held unreasonable.^^ After presentment and demand, the lia- 
 bilities of the parties become fixed.^^ But the presentment and 
 demand must be made in reasonable hours, and reasonable 
 hours depend upon the question whether or not the bill is pay- 
 able at a bank or elsewhere. ^^ And when a promissory note is 
 protested, the protest must be attended with all the incidents 
 
 iThompsonv. Williams, 14Cal.l60. C, 5 Bng. Com. L. E. 459; and see 
 
 * Spencer v. Eogers Locomotive Hunt v. Maybee, 7 N. Y. 266. 
 Works, 17 Abb. Pr. 110. "Farmers' and Mechanics' Bank v. 
 
 8 Finh V. Thrush, 8 Barn. & Cress. Wadsworth, 24 N. T. 647. 
 887 ; S. C, 2 Man. & R. 869 ; Dwight * Hyslop v. Jones, 3 McLean, 96. 
 V. Wing, 2 McLean, 580. » Keyes T. Fenstermaker, 24 Cal. 329. 
 
 * Eastman v. Tuvman, 24 Cal. 879. " Id. 
 
 'Fernerv. Williams, 37 Barb. 9; 14 »' Jerome v. Stebbins, 14 Cal. 474. 
 ^tb. Pr. 215. ^ , „ w McFarisnd v. Pico, 8 OaL 626. 
 
 * Boehm v. Campbell, CJow. 55; S. W id. 
 
§ 1170. PEOMISSORY NOTES, ETC. 473 
 
 of a foreign bill of exchange.* Presentment of a note to a joint 
 maker is excused, if at the time of the execution and maturity of 
 the note, such maker resided in a state other than that in which 
 payment should be made.^ 
 § 1166. Allegation of Notice to Indorser Waived. 
 
 Form No. Sll. 
 
 That the defendant [indorser] thereafter waived the laches of 
 the plaintiff in not giving him notice thereof, and promised to 
 pay said note. 
 
 § 1167. Allegation of Excuse for Non-presentment— 
 Maker not Found. 
 
 Form No. SIS. 
 
 That at the maturity of said note, search and inquiry was 
 made for said John Doe, at [place of date of note] , that the 
 same might be presented to him for payment ; but he could not be 
 found, and the same was not paid. [Note. — State any facts 
 relative to search and inquiry, and failure to find the party.]* 
 
 § 1168. Allegation of Promise to Pay.— There is a dis- 
 tinction between a promise by the indorser to pay, proved as 
 presumptive evidence of actual notice, and a promise proved as 
 evidence of a waiver. The former should not be alleged ; the 
 latter should.'* 
 
 § 1169. Protest. — There is no necessity of protesting a 
 promissory note. A demand of payment and refusal, and notice 
 to the indorser are all chat is required.* It is but a form 
 of evidence of demand and notice. A simple averment of 
 presentment and refusal to pay is sufficient.* An averment of 
 protest does not imply i. proper demand.'' An averment that a 
 note protested is not equivalent to an averment that it was 
 duly presented for payment to the maker, and payment was re- 
 fused. ^ 
 
 § 1170. The Same — Against Maker and First Indorser. 
 
 Form No. SIS. 
 [Title.] 
 The plaintiff complains, and alleges : 
 I. Thatonthe day of , 18.., at , the 
 
 » Tevis V. Bandall, 6 Cal. 632. yee v. Dennison, Id. 248 ; Jones v. 
 
 2 Luning v. Wise, 1 West Coast O'Brien, 26 Eng. L. & Eq. 283. 
 Kep. 138. ' 1 Pars, on Cont. 238 ; Edw. on 
 
 » Of course the allegation depends Bills, 268 ; Coddington v. Uavis, 1 N. 
 
 upon the facts in each case. As to Y. 186 ; McParUnd v. Pico, 8 Cal. 
 
 sufficiency of this form, see 2 Oh. PI. 626 ; Cole v. Jessup, 10 How. Pr. 515. 
 134_ « Price v. MoClave, 6 Duer, 544. 
 
 ♦Thornton V. Wynn, 12 Wheat. ' Graham v. Machado, 6 Duer, 516; 
 
 183. Leonard v. Gary, 10 Wend. 504 ; Price v. McClave, Id. 544. 
 'ieubetts v. Dowd, 23 Wend. 379 ; * Price v. McClnve, 3 Abb. Pr. 253. 
 Miller v. Hackley, 6 Johns. 375 ; Dur- 
 
474 FOEMS OF COMPLAINTS. § 1171. 
 
 drfendant, A. B., by his promissory note, promised to pay to the 
 defendant, C. D., dollars, months after date. 
 
 II. That the said C. D. indorsed the same to the plaintiff. 
 
 III. That on the day of , 18...., the same was 
 
 presented to the said A. B. for payment, but was not paid. 
 
 IV. That due notice thereof was given to the said C. D. 
 
 V. That they have not paid the same, nor any part thereof. 
 
 [Demand or Judgment.] 
 
 § 1171. Discharge of Indebtedness.-^Giving a note pay- 
 able at a future time does not discharge the debt."- So when a 
 note is given for an account.^ The substitution of a new security 
 will discharge the indorser.^ Where a person sued on a note 
 which had two indorsements, signed by the payee, the first a re- 
 ceipt for the amount due, and the second in the words, "without 
 recourse to me," there was no presumption that the indorsements 
 were made at different times, or that payment was voluntary and 
 unconditional.^ 
 
 § 1172. Indorsement. — The allegation of indorsement to the 
 plaintiff is essential.^ 
 
 § 1173. Joint and Several Liability. — In New York the 
 assignor and maker of non- negotiable paper can not be joined in 
 an action thereon by the assignee.^ 
 
 § 1174. Indorsee Against Maker, on Note Drawn to 
 Maker's Own Order. 
 
 Form No. SI4. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of ,18...., at , the 
 
 defendant, by his promissorj'- note, promised to pay to bearer 
 
 [or to hi^ own order], dollars, mouths after date 
 
 [or on demand]. 
 
 II. That the same was by the indorsement of the defendant 
 transferred to the plaintiff. 
 
 III. That defendant has not paid the same, nor any part thereof. 
 
 [Demand oe Judgment.] 
 § 1175. Indorsement Essential.— It would seem that when 
 a note is drawn to the drawer's own order, the indorsement by 
 the maker is necessary to pass the title.' But in New York it is 
 provided otherwise by statute.^ 
 
 ^Brewster v. Bours, 8 Cal. 502; « White v. Low, 7 Barb. 204; and 
 
 Smith V. Owens, 21 Id. 11. see Allen v. Fosgate, 11 How. Pr. 218. 
 
 ^Higginsv. Wortell, 18 Cal. 330. ' Macferson v. Thoytes, Peake's >'. 
 
 3 Smith V. Harper, 5 Cal. 329. P. C. 29 ; Bosanquet v. Anderson, li 
 
 « Frank v. Brady, 8 Cal. 47. Esp 43 ; Smith v. Lusher, 5 Cow. 688. 
 
 s Montague v. Reinger, 11 Iowa, 8 2 R. s.N. Y. 58; and see Plets v. 
 
 603; Bennett V. Crowell, 7 Minn. 385. Johnson, 3 Hill, 112; Masters V.Bar- 
 
§ 1179. PEOMISSOEY NOTES, ETC. 475 
 
 § 1176. Subsequent Indorsee against Maker. 
 
 Fo7-m No. SIS. 
 [Title.] 
 
 The plaintiff complains, and alleges ; 
 
 I. [Allege making of note.J 
 
 II. Tiiat the same was, by the indorsement of the said C. D. 
 and L. M. and N. O. [or, and others],' transferred to the 
 plaintiff. 
 
 III. That the defendant has not paid the same, nor any pai-t 
 thereof. 
 
 [Demand or Judgment.] 
 
 § 1177. Allegation of Indorsements.— The use of the 
 words " and others " will perhaps obviate the necessity of prov- 
 ing the indorsements, which if stated, must be proved. It is 
 not necessary to state all the indorsements, as possession by 
 plaintiff and production at the trial is a legal presumption that 
 he is the owner, and for value. ^ Nor to allege genuineness of 
 indorsements.^ If the defendant on the trial prove loss or 
 theft of the note in rebuttal of such presumption, the plaintiff 
 may prove that he took the note in good faith, and for a valuable 
 consideration.^ 
 
 § 1178. The Same— Against First Indorser— Indorse- 
 ment Special. 
 
 Form No. S16. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That the defendant indorsed to one A. B. a promissory note 
 
 made by one C. D., on the day of , 18..., at 
 
 , to the order of the defendant, for the sum of 
 
 dollars, payable days after date. 
 
 II. That the same was by the indorsement of the said A. B. 
 
 transferred to the plaintiff [or that the said E. F. indorsed the 
 
 same to the plaintiff] . 
 
 [Dbmand of Judgment.] 
 
 § 1179. The Same— Against Intermediate Indorser. 
 
 Form No. 317. 
 [Title.] 
 The plain tifE complains, and alleges: 
 
 I. That a promissory note made by one A. B. on the day 
 
 of , 18..., at , to the order of one C. D., for 
 
 rets, 2 Carr, & K. 715 ; S. C, 61 Eng. Peacock v. Ehodes, 2 Dougl. 633 ; 4 
 
 Com L 714 Sandf. 97; Millis v. Barber, 1 Mee. & 
 
 » Smith V. Schanck, 18 Barb. 344; W. 425; De la Chaumette v. Bank of 
 
 Jame3 v. Chalmers, 2 Seld. 209. England, 9 Barn. & Cress. 208; 2 
 
 'Pentzv. Winterbottom,5Den.51. Campb. 5; Miller v. Race, 1 Burr. 
 
 » Catlin V. Hauser, 1 Duer, 309 ; 452 ; Grant v. Vaughan, 3 Id. 151b. 
 Eochester v. Taylor. 23 Barb. 18; 
 
476 FORMS OF COMPLAINTS. § 1180. 
 
 the sum of dollars [payable days after date], 
 
 and indorsed by the said C. D. to the defendant, was by the in- 
 dorsement of the defendant transferred to the plaintiff. 
 II., III., and IV. [Same as in form No. 313.] 
 [Demand of Judgment.] 
 
 § 1180 The Sajue— A|;ainst his Immediate Indorser. 
 
 Form No. S18. 
 [Title.] 
 The plaintiff complains, and alleges : 
 I. That the defendant indorsed to him a promissory note 
 
 made by one A. B. on the .... day of , 18...., at , 
 
 to the order of one C. D., for the sum of dollars, pay- 
 able days after date, and indorsed by the said C. D. 
 
 to the defendant, 
 II., III., andlV. [As in form No. 313.] 
 
 [Demand or Judgment.] 
 
 § 1181 The Same— Against All Prior Parties. 
 
 Foi-m No. S19. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18. ., at , 
 
 the defendant A. B., by his promissory note, pi'omised to pay 
 
 to the order of the defendant C. D dollars, 
 
 months after date. 
 
 II. That the said C. D. indorsed the same to the defendant 
 E. F. , who indorsed it the plaintiff. 
 
 III. That on the day of , 18 . . , the same was 
 
 presented [or state facts excusing presentment] to the said A. 
 B. for payment, but it was not paid. 
 
 IV. That notice thereof was given to the said C. D. and E. F. 
 
 V. That the same has not been paid, nor any part thereof. 
 
 [Demand of Judgment.] 
 
 § 1182. Transfers not by Indorsement — By Assignee 
 of Note. 
 
 Form No. S20. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 the defendant, by his promissory note, promised to pay to the 
 order of one A. B., dollars, days after date. 
 
 II. That said A. B. sold and delivered said note to the 
 plaintiff [for a valuable consideration, before it was payable]. 
 
 III. That the defendant has not paid the same, nor any part 
 
 thereof. 
 
 [Demand of Judgment.] 
 
§ 1184, PKOMISSOKY NOTES, ETC. 477 
 
 § 1183. Allegations of Assignment. — An averment that 
 the note was assigned on the day or at the time of its execution 
 is sufficient.! g^^ consideration need not be averred.® By the 
 assignment of the note alleged, the plaintiff acquired title to 
 the note, and the action, under the code could be maintained 
 in his own name.^ Under the common law, if it appeared from 
 the declaration that the note was not yet payable, a demurer 
 would lie.* If the complaint, not verified, sets out the note, 
 and avers assignment by payee to plaintiff, and the answer is 
 a general denial, the plaintiff must prove the assigoment.^ In 
 an action against the maker of negotiable paper payable 
 to bearer, it is sufficient, after alleging that the defendants drew 
 it, to allege that it was transferred and delivered to the plaintiff 
 without saying by whom, if it be also alleged that the transfer 
 was for value, and that the plaintiff was the owner.^ The 
 allegation on a note payable to bearer is sufficient, if it allege 
 that it is his property, and that the amount is due.'' In case the 
 note is payable to the order of a fictitious person, and in case 
 it is payable to the maker's own order, it is in law payable 
 tobearer.8 The words " before its maturity," and "for value," 
 are not material to the cause of action. Unless the contrary is 
 shown, the indorsement will be presumed to have been made 
 before maturity.^ In an action upon promissory notes assigned 
 to the plaintiff, and for goods sold , the plaintiff may properly 
 allege in his complaint, on his "information and belief," 
 that the notes were executed by the defendant ; and he might 
 allege in the same way that the goods were sold to the defendant, 
 for they might have been sold by his agent. A motion to 
 strike out the words "on information and belief" should be 
 denied. 1* 
 
 § 1184. La^7 of Place. — An assignment of a negotiable 
 instrument, as between the parties to that assignment, is sub- 
 ject to the law of the place where the assignment is made ; and 
 if by such law the assignment is void, as against law the as- 
 
 1 Silver v. Henderson, 3 McLean, « Mechanics' Bank v. Straiten, 5 
 165; compare Barhart v. Campbell, Abb. Pr. (N.S.) 11. 
 
 Eempst. 49. ' Dabney v. Keed, 12 Iowa, 315. 
 
 2 Wilson ' V. Codmau's Ex'rs, 3 ' Minet v. Gibson, 1 H. Blackat. 
 Cranch, 193. 669; Plets v. Johnson, 3 Hill, 112. 
 
 8 Savage v. Bevier, 1 2 How. Pr. 166 ; « Pinkerton v. Bailey, 8 Wend. 600 ; 
 
 Hastings v. McKinley, 1 E. D. Smith, Pratt v. Adams, 7 Paige Oh. 615 ; Nel- 
 
 273 son V. Cowing, 6 Hill, 336; Case v. 
 
 * Waring v. Yates, 10 Johns. 119; Mechanics' Banking Association, 4 
 
 Lowry V. Lawrence, 1 Cai. 69. N. Y. 166; and see James v. Chal- 
 
 » Hastings v. DoUarhide, 18 Cal. mers' 6 Id. 209. 
 
 391. '» St. John V. Beers, 24 How. Pr. 377. 
 
478 POEMS OF COMPLAINTS. § 1185. 
 
 signee can exercise no right under such assignment ;i and what is 
 a discharge of a contract, in a place where it was made, will be of 
 equal avail in every other place. Except that where a contract is 
 to be executed at a place different from that where it is made, the 
 law of the place of execution will apply. ^ 
 
 § 1185. Note with a Blank for Name of Payee, how 
 Pleaded. — Where, in an instrument for the payment of money, 
 the name of the payee is left blank, with the intention that such 
 instrument may be transferred by delivery, since any lawful holder 
 may fill the blank with his own name as payee, he may plead it in 
 an action thereon as having been delivered to some persons un- 
 known, for a consideration from them received, and as having 
 thereafter come lawfully into plaintiff 's possession, and that he is 
 the owner thereof.^ There must be two parties to every prom- 
 issory note, a maker and a payee ; if the payee named is not in 
 esse there is no note.'* 
 
 § 1186. Partnership and Individual Liability. — ^A com- 
 plaint would seem to be bad which shows a partnership note as 
 a cause of action against an individual. If there was no real 
 firm, it should have been alleged that the note was signed by A, 
 B., in the name of A. B. & Co. The words "& Co." indi. 
 cate a firm. The defendant may have been a member of that 
 firm, and yet never have made the note, nor have had any such 
 knowledge of its existence. It may have been the objection is 
 not strictly for defect of parties, but that the complaint does 
 not, on its fa,ee, show an individual liability on the part of 
 "A. B."5 
 
 § 1187. Allegation of Plaintiff's Title.— In an allegation 
 on a note payable to a third person, the right of plaintiff skould 
 be alleged. 6 And if the answer d"oes not deny the allegation, 
 defendant can not prove that payee had no capacity to transfer.'' 
 Thus, in an action against one A. B., as the maker, and others 
 as indorsers of a promissory note, the complaint set forth a 
 copy of the note signed A. B. & Co., upon which it alleged the 
 defendants were indebted, etc. The word " signed " was pre- 
 fixed to the name of the makers, and the word " indorsed" was 
 prefixed to the name of the indorsers in the copy; but there 
 
 ' 5 East, 123 ; 12 Johns. 142 ; Pow- '* Wayman v. Torreyson, 4 Nev. 124. 
 
 ers V. Lynch, 8 Mass. 77 ; MoClintick » Price v. McClave, 6 Duer, 544, 
 
 v. Cummins, 8 McLean, 168 ; Dundas affirming S. C, 5 Id. 670. 
 
 V. Bowler, Id. 397. 'Montague v. Keineger, 11 Iowa, 
 
 ' Van Beimsdyk v. Kane, 1 Gall. 503 ; Bennett v. Crowell, 7 Minn. 885 
 
 ^^I'rr vu J XT TT CTT 1 T, T, «.1^°''''™ '• -BichardBon, 2 Bosw. 
 
 3 Hubbard v. N. Y. & Harlem R. K. 248, 
 Co., 14 Abb. Pr. 275. 
 
§1189. PKOMISSORT NOTES, fiTC. 479 
 
 was no other allegation that the defendants made or indorsed 
 the note, except that it was alleged that the note was " written," 
 and that it was passed to the plaintiff ; it was held on demurrer, 
 that the making and indorsement should be deemed sufficiently 
 alleged.^ An allegation that a corporation indorsed and trans- 
 ferred and delivered to the plaintiffs the note sued on, suflS- 
 ciently implies that the transfer was made pursuant to a 
 resolution of the board of directors, if such resolution is nec- 
 essary. So an allegation that after the transfer the company 
 became insolvent and was dissolved, is an indirect statement 
 that it was solvent when the transfer was made.* Yet all nec- 
 essary allegations should be directly made. 
 
 § 1188 By the Treasurer of an Unincorporated Com- 
 pany, on a Note Payable to the Former Treasiirer. 
 
 Fo?-m No. SSI, 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That the Mountain View Homestead Association is an as- 
 sociation consisting of persons, in the city of , 
 
 in this state. 
 
 II. That at the time hereinafter mentioned, one A. B. was 
 treasurer thereof. 
 
 III. That on the day of , 18..., the defend- 
 ant made his promissory note, of which the following is a copy 
 [copy of notej, and thereupon delivered the same to said A. B., 
 as the treasurer of the association, who was duly authorized to 
 receive it on their behalf. 
 
 IV. That said note was given for the benefit of the associa- 
 tion, and that it is the property of the members thereof, and 
 owned by them in common. 
 
 V. That this plaintiff is now the treasurer of said association, 
 and, as such, is the lawful holder of said note on and for their 
 behalf. 
 
 VI. That the defendant has not paid .the same, nor any part 
 
 thereof. ^, 
 
 [Demand of Judgment.]' 
 
 § 1189. On a Note Payable on a Contingency. 
 
 Form No. S22. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 » Phelps V. Ferguson, 9 Abb. Pr. » Homestead dssociations, under the 
 
 206;Leev.kinslfe. 4 Id. 463; Bank statutes of C^Ufornia are incorpo- 
 
 of Geneva v. Gulick, 8 How. Pr. 51. rated pursuant to the statute Hence 
 
 2 Nelson v. Baton, 15 Ho w. Pr. 305 ; the above form is not strictly applioa- 
 
 Taylor v. Corhiere, 8 Id. 385 ; but see ble in this state. 
 Montague v. King, 87 Miss. 441. 
 
480 rOKMS OP COMPLAINTS. § 1190. 
 
 I. That on the day of , 18..., at , 
 
 the defendant made and delivered to the plaintiff his promissory 
 
 note, in writing, of which tl;e following is a copy: 
 
 ^300. Shasta, January 1, 1869. 
 
 For value received, I promise to pay to A. B., one year after 
 date, three hundred dollars, in case the proceeds of the news- 
 paper route I have this day bought of him shall exceed the sum 
 of one thousand dollars. C D. 
 
 II. That the proceeds of said newspaper route did, before the 
 expiration of said year, exceed the sum of one thousand dol- 
 lars. 
 
 III. That no part of the said note has been paid. 
 
 [Demand or Judgment.] 
 
 § 1190. Condition Precedent. — Where a note was made 
 payable on the contingency of the confirmation of a grant of 
 land, the conflv»iation was a condition precedent to the payment 
 of the note.' Where the complaint on a promissory note 
 shows that, by agreement of the parties, Its payment was made 
 conditional upon the payment by the payee, of a certain debt ot 
 the payor, such payment is a condition precedent to plaintift'f. 
 right to recover on the note, and must be averred in the complaint 
 to have been made.^ 
 
 § 1191. On Note Payable in Chattels. 
 
 Form No SSS. ' 
 
 [TiTLlS.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 1&..., at , 
 
 the defendant, for value received [or, where 'the consideration 
 is expressed in the note, for a valuable consideration therein 
 expressed], made and delivered to plaintiff his promissory* note. 
 of which the following is a copy : 
 
 For value received, thirty days after date, I promise to pay 
 A. B. five hundred dollars, in clothing, at the usual market rates ; 
 lihe same to be delivered within two days after the same is 
 selected or demanded by the said A. B. ; and on default thereof, 
 I agree to pay the said amount in money. C. D. 
 
 January I, 1869. 
 
 IL That the plaintiff thereafter demanded of defendant the 
 said clothing, but defendant refused to deliver it, or any part 
 thereof to him [or that the plaintiff thereafter performed all the 
 conditions of the same on his part] . 
 
 III. That no part thereof has been paid. 
 [Djsmand 01' Judgment.] 
 
 » Sanders v. Whitesides, 10 Cal. 88. " Eogerg v. Cody, 8 Cal. 824. 
 
§ 1198. PKOMISSOKY NOTES, ETC. 481 
 
 § 1192. Consideration. — Consideration in such complaints 
 may be specially set out,i and if so stated, must be proved as 
 laid.* It must be averred, wlien the instrument itself does not 
 import a consideration.^ In ease the consideration be subject 
 to transfer on demand of payment, the plaintiff must allege a 
 transfer or tender of transfer.* 
 
 § 1193. Demand. — The demand should be made at the place 
 of business of the maker of the note, when the note is payable 
 in chattels.5 But if the day of delivery of chattels be defined in 
 the note, as " on or before" a day named, no demand is nec- 
 essary, unless the holder exercises an election as to choice of 
 goods.® Where the payee of a note of forty dollars, payable on 
 demand, in " hemlock bark, at the going price," in the summer 
 of 1863, requested the maker to have the bark peeled in the 
 course of the summer ( the peeling season), and delivered the 
 next winter, which the maker agreed to do, but the bark was 
 not delivered : it was held that the demand was appropriate to 
 the note, and that on defendant's failure to furnish the bark, 
 the payee could recover on the money counts.''' 
 
 § 1194. IifTect of Indorsement. — The indorser of such a 
 note has no right to insist on a previous demand on the maker, 
 but is immediately liable thereon.* 
 
 § 1195. Maturity. — It seems such notes are generally due 
 Oil demand, and a special demand is necessary.^ 
 
 § 1196. Measure of Damages. — Upon such notes, the 
 measure of damages is the sum of money named, i" 
 
 § 1197. Noa-payment. — ^The allegation of non-payment of 
 the money is alone sufficient." 
 
 § 1198. OnGuaranties— Against Maker and Guarantor 
 of a Promissory Note. 
 
 Form No. SU- 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18.., at , the 
 
 defendant A. B., and C. D. as his security, by their promissory 
 
 ' "Ward V. Sackrider, 3 Cai. 263. 403 ; atfirmed, sub nam. Stone v. Sey- 
 
 * Jerome V. Whitney, 7 Johns. 321. mour, 15 Id. 19. 
 
 3 Spear v. Downing, 34 Barb. 522. » Lobdell v. Hopkins, 5 Cow. 516 
 
 * Considerant v. Brisbane, 14 How. but see Barns v. (graham. 4 Id. 452 
 Pj. 437 If Finney v. Gleason, 5 Wend. 393 , 
 
 5 Vance v. Bloomer, 20 Wend. 196 ; Eockwell v Eoekwell, 4 Hijl, 164 ; 
 
 Eice V. Churchill, 2 Den. 145. and see Gilbert v. Danforth, 6 ^. Y. 
 
 8 Johnson V. Seymour, 19 Ind. 24. (2Seld.)585. 
 
 'Eeedv.Sturtevant, 40Vt. 521. "Eockwell v. Eockwell, 4 Hill, 
 
 8 rieyinour v. Van Slyck, 8 Wend. 164. 
 BsTBB, Vol. I — 31. 
 
482 POEMS OF COMPLAINTS. § 1199. 
 
 note promised to pay to the order of one E. F dol- 
 lars [ days after date]. 
 
 II. That the said E. F. indorsed the same to the plaintiiS. 
 
 III. That on the day of , 18...., the same was 
 
 presented [or state facts excusing presentment] to the said A. 
 B. for payment, but was not paid. 
 
 IV". That notice thereof- was given to tlie said C. D. 
 
 V. That the defendants have not paid the same, nor any part 
 
 thereof. 
 
 [Demand of Judomknt.] 
 
 § 1199. Certificate of Deposit. — Where the indorsee, on 
 payment to him of the amount, guarantees the genuineness of the 
 signature, which is afterwards found to be a forgery, and the 
 payee recovers from the makers the amount of certificate and 
 costs, the malcer may recover from the indorsee and guarantor 
 the costs of the former action.^ 
 
 § 1200. Demand ahd Notice. — "Where it is agreed "that if 
 the holder should not be able to collect the note from the 
 maker by due course of law, then the guarantor would be re- 
 sponsible without requiring notice," it is a waiver of demand 
 on the maker.^ A note indorsed, " I guarantee the collection 
 of the within note when due," contemporaneous with the sign- 
 ing of the note, constitutes a guaranty, and the party is enti- ' 
 tied to the legal notice of non payment before he can be charged on 
 his contract. 3 A complaint is sufficient which treats the 
 maker and guarantor of a note as joint makers, and contains no 
 allegation of demand and notice.* " I assign the within to K., 
 for value received, and bind myself to pay it promptly after 
 maturity," indorsed upon a note, is a guaranty, and desaand 
 and notice are not necessary to fix the guarantor's liability on 
 failure of the makers to pay at maturity.^ So in case of a lease.* 
 
 § 1201. Discharge of Surety. — Mere extension of time to 
 the maker is not sufficient to discharge a surety or indorser, 
 unless it will be such as will suspend the right of action against 
 the maker.'' The failure of a holder of a note to sue, when re- 
 quested by the surety, does not in general operate to discharge 
 the liability of the latter. ^ If the surety desires to protect him- 
 self, he must pay the note, and proceed against the principal.* 
 
 1 Mills V. Barney, 22 Cal. 240. « Voltz v. Harris, 40 111. 155. 
 
 2 Backus v.Shipherd, 11 Wend. 629. ' Williams v. Covillaud, 10 Cal. 419; 
 ^ Reeves v. Howe, 16 Cal. 152. Draper v. Romeyn, 18 Barb. 166. 
 
 * Lightstone v. Laurenoel, 4 Cal. * Hartman v. Burlingame, 9 Cal. 557. 
 277: Bid. 
 
 5 Baker v. Kelly, 41 Miss. 696. 
 
§ 1205. PEOMISSORT NOTES, ETa 483 
 
 § 1202. Guarantor, Who is.— One who puts his name upoQ 
 a promissory note, out of the usual course of regular negotia- 
 ability, is a guarantor, whether inscription is in blank or accom- 
 panied by the words, "I guarantee," etc.i Or if the indorser 
 accompanies his signature with the words, " I hereby waive de- 
 mand, notice of non-payment, and protest," he is a guarantor.^ 
 "Where the holder of a note, after its maturity, obtained from a 
 stranger a guaranty of its payment within sixty days from date 
 of guaranty, there is no presumption of law that the guarantee 
 was taken for the benefit of the maker, or that it extended to 
 him the time of payment.* 
 
 § 1213. Joint Liability. — Each one who writes his name 
 upon a promissory note is a party to it, and each party an orig- 
 inal undertaker,"* as the note itself imports consideration. 
 "Where a party signs a joint and several note, he is not entitle-d 
 to notice of non-payment, though in fact he signed as surety.* 
 "When a promissory note is signed by two persons in the 
 same manner, with nothing to show that one was surety, one 
 of such signers can not set up that he was a surety only.^ 
 Where, in the body of the note, one party signs as principal, 
 and one as surety, both are liable.'' 
 
 § 1204. Liability of Guarantor. — The liability of an in- 
 dorser is a guaranty that he will pay, if the maker does not, 
 upon presentment, if he receives notice. And the liability of a 
 guarantor is the same, and he is entitled to all his rights stricti 
 juris.^ "Where the defendant signed a negotiable note, as surety, 
 and delivered it to his principal, on the condition that it should 
 not be delivered to the payee, or negotiated, until another 
 party should have signed the same as co-surety, and it was de- 
 livered without such other signature, but the payee did not 
 know of such condition, and there was notJiing on the face of 
 the note to put him on inquiry, it was held that defendant was 
 liable.9 
 
 § 1205. Nature of Contract. — A guarantee is an independ- 
 ent contract, which does not suspend any right of action of 
 
 1 1 Eiggs V. "Waldo, 2 Cal. 485 ; Chit. ♦ Biggs v. "Waldo, 2 Cal. 485. 
 
 on Cent. 397 ; 3 Kent's Com. 121. ^ Hartman v. Burhngame, 9 Cal. 
 
 2 Ford V. Hendricks, 34 Cal. 673 ; 557 ; Dane v. Cordman, 24 Id. 157. 
 
 see, also, Brady v. Eeynolds, 18 Id. « Krltzer v. Mills, 9 Cal. 21. 
 
 31: Story on Prom. Notes, sec. 434 ; 'Humphreys t. Crane, 5 Cal. 178. 
 
 Fell's Law of Guar. & Sur. 1 ; Hall v. s Kigga v. Waldo, 2 Cal. 485 ; Ford 
 
 Farmer, 5 Den. 484; Miller T. Gaston, v. Hendricks, 34 Id. 678; Fierce v. 
 
 2 Hill, 191;Meechv. Churchill, 2 Kennedy, 5 Id. 148. ,,„,.„ 
 
 "Wend 630 ' Merriam v. Eockwood, 47 JN. U. 
 
 swilUams v. Oovillaud, 10 Cal. 81 ; see Hoboken City Bank v. Phelps, 
 
 419 34 Conn. 92. 
 
484 FORMS OF COMPLAINTS. § 1206. 
 
 the holder of the note against its maker.^ An indorsement or 
 a guaranty of a note, as an agreement of itself, a new contract 
 undertaken for another.^ The contract of indorsement is 
 primarily that of transfer; the contract of guaranty is that of 
 security.* 
 
 § 1206. Notice of Protest. — In California, prior to the 
 adoption of a civil code, a notice of protest was as essential to 
 charge a guarantor as an indorser,* as the liability of a guar- 
 antor was the same as that of the indorser, and he was entitled 
 to all his rights stricti juris.^ Subsequent to the adoption of 
 the civil code, a guarantor is not entitled to demand of notice.^ 
 "I hereby wa;ive demand, notice of non-payment and protest, 
 Q. Eu, " indorsed on the note of a third party before it is deliv- 
 ered by the maker, is a guaranty, and not within the statute of 
 frauds.^ 
 
 § 1207. Primary Liability. — One who signs a note to pay 
 absolutely at a certain time is making his own contract, although 
 he puts " surety" with his name.^ When in consideration of a 
 conveyance, a party agrees to pay an outstanding note of his 
 vendor, and writes his name on the back of the note as a mem- 
 orandum of said agreement, he is primarily liable for the note.' 
 
 § 1208. Surety — Security. — The word "surety" does not 
 in any way control the words of the note, as between the payor 
 and payee.i" Where three parties purchased property together, 
 one taking an undivided half, and each of the others taking 
 an undivided fourth, and for the purchase money executed their 
 joint note, the purchaser of the half interest was a principal 
 and co-surety with the others for their interests." Where a 
 promissory note was made jointly by A. and B. and delivered 
 to C, the consideration being delivered to A. alone, and as be- 
 tween A. and B., the latter signed as surety for A., who had de- 
 posited collateral security with C, of which transaction as a 
 whole C. had notice when the note was executed, as between 
 the makers and the payee, A. and B. were principals, and liable 
 as such to C.i^ 
 
 § 1209. Trustee. — Where a party signs a promissory note, 
 with the addition to his name of the word " trustee," he is per- 
 
 1 Williams v. Oovillaud, 10 Oal. ' Ford v. Hendricks, 34 Cal. 673. 
 419. ' Aud V. Magruder, 10 Oal. 282. 
 
 2 Aud V. Magruder, 10 Cal. 282. ' Palmer v. Tripp's Adm'r, 8 Oal. 
 8 Brady v. Reynolds, 13 Cal. 31. 95. 
 
 * Riggs V. Waldo, 2 Cal. 485. " Aud v. Magruder, 10 Cal. 282. 
 6Geiger v. Clark, 13 Cal. 580 J " Chipman v. Morrill, 20 Cal. 130. 
 
 Crooks V. TuUy, 50 Id. 254. ^ Damon v. Pardow, 34 Cal. 278. 
 
 • Civil Code, sec. 2807. 
 
§ 1211 PEOMISSOEY NOTES, BTa 485 
 
 sonally liable.^ A note stating that "we the undersigned, 
 trustees of, etc., on behalf of the whole board of trustees of said 
 association, promise to pay," etc., and signed without qualifica- 
 tion by two persons having authority, is a note of the associa- 
 tion.' 
 
 § 1210. What Contract Imports. — The difference between 
 a maker and indorser or guarantee, is that the contract of the 
 first imports an unconditional obligation, that of the last a con- 
 ditional obligation.3 
 
 § 1211. When Action Lies. — "Where a guaranty is given in 
 consideration of an extension of time to the maker, the holder 
 of the note must exhaust his remedy on the original demand, 
 and can then compel the guarantor to make good the defi- 
 ciency.'* A creditor having, legally fixed the liability of the 
 guarantor, is not bound to sue the debtor in order to hold the 
 guarantor. The guarantor should pay the debt, and then sue 
 the principal, or file a bill to compel the creditor to sue.s 
 
 1 Conner V. Clark, 12 Cal. 168. * Donahue v. Gift, 7 Cal. 242; but 
 
 * Haskell v. Cornish, 13 Cal. 45. Bee. also, Gross v. Parrott, 16 Id. 143. 
 
 • A.ud V. Magruder, 10 Cal. 282. » Whiting v. Clark, 17 Cal. 407. 
 
STJBDIVISIOK FOURTH. 
 
 POK DAMAGES ON BREACH OP CONTKACT. 
 
 CHAPTER I. 
 
 BUILDER'S CONTRACTS. 
 
 § 1212. By Contractor, on Special Contract, Modified, 
 with a Claim for Extra Work. 
 
 Form No. SB5. 
 
 [TWLB.] 
 
 The plaintiff complains, and alleges : 
 First. — For a first cause of action: 
 
 I. Thaton the day of , 18..., at ...., the defendant 
 
 under his hand and seal made a contract in writing with the 
 plaintiff, of which the following is a copy [copy contract]. 
 
 II. That he has duly performed all the conditions thereof on 
 his part, except that, at the request of the defendant, he finished 
 the building with hard finish instead of cloth and paper, for which 
 the defendant promised to pay a reasonable sum in addition to 
 the price named in the contract. That by the consent of the de- 
 fenda;nt the time for completing said work was extended for one 
 
 month beyond the time fixed for the contract, to wit, to the* 
 
 day of , 18... 
 
 III. That the plaintiff on his part duly performed all the con- 
 ditions of said contract as modified. 
 
 IV. That the sum of dollars is a reasonable payment 
 
 to be made in addition to the price named in said contract for 
 finishing the building with hard finish instead of cloth and paper. 
 
 V. That on tlie day of , 18..., at , the ■ 
 
 plaintiff demanded of the defendant payment of the sum of 
 dollars, the amount due on said contract as modified. 
 
 VI. That he has not paid the same nor any part thereof. 
 Second. — For a second cause of action : 
 
 I. That between the day of 18..., and the 
 
 day of ' 18.., at , the plaintiff rendered 
 
 486 
 
§ 1215. BUILDERS' CONTKAGTS. 487 
 
 further services and furnished iraterialsto the defendant, at his 
 request, in [here state extra worli and material] , for which the 
 •defendant promised to pay. 
 
 II. That the same are reasonably worth dollars. 
 
 III. That he has not paid the same, nor any part thereof. 
 
 [Demand of Judgment.] 
 
 § 1213. Essential Averments.— Under the rules of pleading 
 established by the code, the party to a written contract for 
 the erection of the building, who has performed his part of it by 
 the erection of the same, can not bring an action against the 
 other party who has failed to fulfill, for work and labor done 
 and performed ; but the complaint must aver the execution of 
 the contract, its terms, the performance of the same on the part 
 of the plaintiff, and the non-performance by the other party, 
 and the damages thereby sustained.^ The contract should be 
 set forth in the complaint, together with the necessary allega- 
 tions of deviations, performance, etc., which the plaintiff must 
 prove, instead of the general allegation that the defendant is 
 indebted for work and labor, etc.^ The plaintiff may plead as 
 follows: 1. He may set forth the contract according to its legal 
 effect, as modified, and then allege that he has duly " performed 
 all the considerations thereof on his part; " or, 2. He may set 
 forth the contract in hcec verba, and then state that he has duly 
 performed, etc., all the conditions thereof on his part, except 
 that in certain points it was subsequently modified, and that in 
 those points he fulfilled it according to the modifications.* 
 
 § 1214. Abandonment of Contract. If the contract for 
 the erection and completion of a building is entire, and the con- 
 tractor abandons the work before it is completed, he loses 
 the right which he would have had to the full compensation 
 agreed on.* 
 
 § 1215. Acceptance by Architect. — Where a contract for 
 alterations and repairs to a building was to be performed in a 
 certain manner, particularly specified, " subject t acceptance 
 or rejection by E. W., architect," and payment only to be made 
 when the work was completely done and accepted, it was held 
 that the provision for acceptance was only an additional safe- 
 guard against defects not discernible by an unskilled person, 
 and the architect could not, by accepting a different class of 
 work from that provided for, or inferior materials, bind the 
 
 1 O'Connor v. Dingley, 26 Cal. 11. 
 
 'Id 
 
 » Smith V. Brown, 17 Barb. 431 ; see, also, Hatch v. Peet, 23 Id. 575. 
 
 * Blythe v. Poultney, 31 Cal. 233. 
 
488 FORMS OP COMPLAINTS. § 1216. 
 
 owner of the building to pay for them.^ The architect's ap- 
 proval or disapproval must be based uiDon the requirements of the 
 contract.'^ 
 
 § 1216. Acceptance of Work. — Where the work has been 
 accepted and approved by the superintendent, under a contract 
 for repairs of streets, it is a full performance of the contract; 
 and if the parties are dissatisfied they should have appealed to 
 the board of supervisors. This was their only remedy. ^ That 
 the defendants demanded possession, which the plaintiff de- 
 livered up to them, is not a sufHcient averment of acceptance 
 on the part of the plaintiff.'* Where the work was to be done 
 to the satisfaction of the defendant, it is not necessary to aver 
 that it was done to his satisfaction, if it is shown to be accord- 
 ing to the contract ; but if the contract requires it to be done tO' 
 the satisfaction of third persons, the plaintiff must aver that it 
 was done to their satisfaction. ^ 
 
 § 1217. Payment — Terms of. — When, by the terms of the 
 contract, payment was to be made upon a certificate of the 
 architect, " that the work was fully and completely finished 
 according to the specification," the giving of a certificate to 
 that effect must be averred and proved.^ But where payment 
 was to be made upon a certificate of an officer, the complaint 
 should allege that he had made such certificate. It need not be 
 averred also that the work had been performed.' And on a writ- 
 ten contract to build certain bridges for a railroad company, to- 
 be paid for, one-fourth in cash, and the rest in stock, no time 
 and place of payment stated, the payment could not be required 
 until the terms of the contract were complied with, or at least 
 that payment on any bridge was not due until such bridge iwa& 
 completed. And where no time or place is fixed by the agree- 
 ment, express" or implied, a demand is essential to base an 
 action upon.^ But after -performance in such a contract, an 
 action will lie without proof of the demand of the stock.9 
 
 § 1218. Enlargement of Time. — The time of performing 
 a simple written contract may be enlarged by parol. i** But not 
 
 ^ Glacius V. Black, 50 N. Y. 145. » Butler v. Tucker, 24 Wend. 447. 
 
 » Doyle V. Halpin, 33 N. Y. Sup. 6 Smith v. Briggs, 3 Den. 73 ; 
 
 (1 J. & Sp.) 352. For cases depend- W3'ckoff v. Meyers, 44 N. Y. 143. 
 ing on special facts, see Killip v. ' Towsley v. Olds, 6 Clark (Iowa), 
 
 Metzen, 50 N. Y. 658; Shute v. 526. 
 
 Hamilton, 3 Daly, 462 ; see, also, 8 Boody v. Rutland & Burlington B, 
 
 Blethen v. Blake, 44 Cal. 117. B. Co., 3 Blatchf. 25. 
 
 3 Emery V. Bradford, 29 Cal. 75; .' Hallihan v. Corporation of Wash- 
 Taylor v; Palmer, 31 Cal. 248 ; Beau- ington, 4 Cranch C. Ct. 304. 
 dry V. Valdez, 32 Cal. 278. '» 12 Barb. 366 ; Meehan v. Will- 
 
 * Smith V. Brown, 17 Barb. 431. iams, 86 How. Pr. 78. 
 
§ 1221. BUILDEES' CONTRACTS. 489 
 
 unless the parol contract be upon sufficient consideration.^ And 
 the extension is not an alteration necessarily material to the 
 cause of action.* But after a contract is modified, the declara- 
 tion must not be upon the original contract alone. ^ 
 
 § 1219. Performance — Averment of. — Building contracts 
 need not be literally complied with in eveiy punctilio, as a cou:- 
 dition to recovery.^ Thus where there was a special contract 
 to build a house by a certain day, which was not fulfilled, 
 owing to various circumstances, and the contractor brought a 
 suit setting forth the special contract and averring performance, 
 it was erroneous in the court to instruct the jury to find for the 
 plaintiff, as the work was not finished by the appointed day, 
 though it was completed after the appointed time with the 
 knowledge and approbation of the defendant. ^ But in a con- 
 tract for the erection of a building upon the land of another, if 
 performance is to precede payment, and is the condition thereof, 
 the builder, having substantially failed to perform according to 
 the specification of the contract on his part, can recover noth- 
 ing for his labor and materials, notwithstanding the owner has 
 chosen to occupy and enjoy the erection.^ The pleader may 
 aver performance which he wishes to aver, and state excuses 
 and causes for non-performance of other conditions.^ If there 
 has been any variation from the terms of the written contract 
 in the progress of the work, by consent of the parties, that fact 
 should also be averred, and the performance of the contract as 
 varied. 8 
 
 § 1220. Eztra Work. — It is held that the contractor can 
 not recover for extra work, merely upon the proof that such 
 work was done at defendant's request, the presumption being 
 that provision was made for extra work under the contract.* 
 The employer is bound to pay the contractor for extra work and 
 materials, in a deviation from the contract, upon an oral order. i» 
 
 § 1221. Public Works. — Conti-acts for the construction of 
 public works are not necessarily illegal because for an amount 
 
 ^ Tinkerv. Geraghty, 1 E. D. Smith, Turner, 6 N. H. 487 ; which were dis- 
 
 gg- ^ ■' approved in the cases first cited. 
 
 2 Crane v Mavnard, 12 Wend, 408. ' Fx)r the rules on the subject uf 
 
 8 Freeman v. Adams, 9 Johns. 115. averment of Performance of condi- 
 
 ♦ Smith V. Gugerty, 4 Barh. 614 tions precedent see ""<«.' Complaints 
 
 aDerniottv.foneB.28 How. U. S. ^^^:^l^_%J^ll'^\^^^^'- ""'' 
 
 eVin, V Hanlen 3 Taunt. 52; » O'Connor v. Dingley, 26 Cal. 11. 
 
 Pike vBT;tle^fo!,mk 360; Smith ' Collyer v. Collins 17 Abb Pr. 9. 
 
 V BraSv 17 N. T. 178. Compare, to i« Smith v. Gugerty, 4 Barb. 614 
 
 the Sarv Hayward v. Leonard, For a case where the contract provided 
 
 7 Pick l«l^S.St V. Congregational for the contingency of extr^ work see 
 
 mIc ing House? 8 Id. Hsf Britton v. Alger v. Vanlerpool. 34 N. Y. 161. 
 
490 FORMS OF COMPLAINTS. § 1222. 
 
 exceeding the sums appropriated by law.^ So a contract for the 
 performance of certain public work, not authorized by law, pro- 
 vided the legislature shall sanction it, is not void as against 
 public policy.^ When a contract for the constructioii of a public 
 work is silent as to time and manner of measurement, the law 
 implies that the work is to be done of the ordinary kind, and 
 the measurement made in the ordinary way. 
 
 § 1222. Separate Counts. — Where the complaint contained 
 three counts, the first on a special contract for the erection of a 
 warehouse, the second for extra work on the building, and the 
 third for work and labor done, and materials furnished in its 
 erection, and the answer denied the allegations of the first two 
 counts, but failed to deny the allegations of the third, it was held 
 that the third count should be considered as denied.^ 
 
 § 1223. Performance by Substitute. — An agreement to 
 find work and materials for building a house entitles the party to 
 recover upon the completion of the work, although he procured 
 it to be done by other parties.* If a new contract was substituted, 
 the original should not be pleaded.^ 
 
 § 1224. Terms of Contract.— Upon a compliance on the 
 part of a subconiractor, laborer, or material man, with the terms 
 of the statute, their right, which through the original contractor 
 inures primarily to the benefit of such persons, must be deter- 
 mined by the terms of the original contract, and they are pre- 
 sumed to have notice' of the existence and terms of such contract ;S 
 and in the absence of fraud or misrepresentations by the owner, 
 this presumption is conclusive against them.'' If, by the terms of 
 the contract, the party who has failed to fulfill was to execute his 
 note for the money due, payable at a future day, his failure to do 
 so should be averred, for the ground of action against him is his 
 failure to execute the note.^ 
 
 § 1225. Against a Builder, for Defective Workmanship. 
 
 Form No. 3S6, 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18.., at , the 
 
 plaintiff and defendant entered into an agreement, of which a copy 
 is hereto annexed [or state the terms of the contract] . 
 
 1 Cook V. Hamilton Co., 6 McLean, * Blakeney v. Evans, 2 Craneh, 185. 
 
 ^'fTj c , ^ • ■, nc r. „*Chesbrough V. N.Y. &EneE. B. 
 
 ''Id. bee also, to similar effect, Co- Co., 26 Barb. 9. 
 
 lumbus R R. Co. v. Indianapolis and ^ Shaver v. Murdock 36 Cal 293 
 
 Bellefontaine R. R. Co., 5 McLean, ' Henley v. Wadswonli, 88 Cal. SSfi! 
 
 «V 1, ^ ,. „ ' O'Connor V. Dingley, 26 (Jul 11. 
 
 "Kalkmanv. Bajlis, 23 Cal. 803. ^ j-, ^u v.ai 
 
S 1227. BUILDERS' CONTRACTS. 
 
 491 
 
 II. That the plaintiff duly performed all the eonditioas of 
 the said agreement on his part. 
 
 III. That defendant built [the bridge] referred to, in a 
 bad and unworkmanliiie manner [specifying wherein the work 
 
 was not properly done], to tlie damage of the plaintiff 
 
 •dollars. 
 
 [Demand of Judgment.] 
 § 1226. Against a Builder, for not Completing, with 
 Special Damage for Loss of Rent. 
 
 Form No. S27. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of ,18..., at , the 
 
 plaintiff and the defendant entered into an agreement, under 
 their hands and seals, of which a copy is annexed as a part of 
 this complaint, marked " Exhibit A." 
 
 II. , That the plaintiff duly performed all the conditions thereof 
 ■on his part. 
 
 III. That the defendant entered upon the performance of the 
 work under said contract, but has neglected to finish the said 
 ■contract [state what he has neglected], and that although the 
 time for the completion of the Said building expired before 
 commencement of this action, he neglects and refuses to com- 
 plete the same. 
 
 IV. That the plaintiff, on the day of 18,.., at 
 
 , made an agreement with one A. B., whereby he agreed 
 
 to let, and said A. B. agreed to hire, the said building for 
 
 months, from the day' of , 18..., to the 
 
 day of , 18.., at the monthly rent of 
 
 dollars, of which the defendant had notice. 
 
 V. That by reason of the defendant's failure to complete the 
 contract aforesaid on his part, the plaintiff has been unable to 
 give said A. B. occupancy thereof, and has been thereby de- 
 prived of the profits of said lease, to his damage dollars, 
 
 ^old coin. 
 
 [Demand ov Judgment.] 
 [Annex agreement, marked " Exhibit A."] 
 
 § 1227. Performance— Plans and Specifications — Vari- 
 ation. — The unqualified refusal of a contractor to perform a part 
 of the work on a building in actual progress of erection, is in 
 itself a breach of the contract.^ If a contract to do work pro- 
 vides that the work shall be done according to certain specifica- 
 tions, which are annexed to it, the specifications are a part of 
 
 1 Thompson v. Laing, 8 Bosw. 482. 
 
492 FOKMS OP COMPLAINTS. § 1228. 
 
 the contract. 1 If the contract is not annexed and made part of 
 the complaint, the allegation should embody sufficient of the 
 plan and specifications to show, in connection with the aver- 
 ment of the breach, in what particular the contract was broken.^ 
 An averment may be made sufficiently certain by introducing 
 and referring to diagrams showing form and dimensions, etc.* 
 "Where the contract gives the employer the right to change the 
 form and the material, the builder has not the right upon such 
 a change to stop the work in an unfinished state, and thus arbi- 
 trarily annul the contract.* A written contract to furnish arti- 
 cles for a building, mentioning no time for performance, is to 
 be performed in a reasonable time, and oral evidence that a 
 certain time was agreed on by the parties is not admissible. ^ 
 
 § 1228. Breach of Contract— Damages — Esicusable 
 Delay. — A covenant in a contract to erect and complete a 
 building by a certain day, under a penalty of thirty dollars for 
 every day same should remain unfinished, is not an abso- 
 lute covenant to finish it on that day.s Where the plaintiff 
 fails to perform by the day fixed, the defendant's consenting to 
 his going on and completing the contract afterwards is no 
 waiver of the right to recoup his damages for the delay.' One 
 who has agreed to build a house on the land of another, and 
 has substantially performed his contract, but has not com- 
 pletely finished the hou^e, nor delivered it, when it is destroyed 
 by fire, is liable in an action for money advanced upon the con- 
 tract, and damages for its non-performance.^ If the delay on 
 the part of the contractor to perform the work is caused by 
 want of readiness in the' work performed by another contractor 
 under an independent contract, he can not be held liable for a 
 breach of his contract, nor forfeit his right to recover for what 
 he has done.' Where a building contract contained a provision 
 that the owner, on fifteen days' notice, might employ another 
 to finish it, and pay therefor out of any money due the con- 
 tractor, it was held that by failing to complete, the contractor 
 forfeited only so much as the owner was obliged to pay to 
 finish the building, i" 
 
 1 Titylor V. Palmer, 31 Cal. 241. Hefford v. Alger, 1 Taunt. 218 ; Mer- 
 
 2 Cooiiey V. Wiiiants, 19 Wend. 504. rit v. Johnson, 7 Johns. 473 ; Adams 
 « Booker v. Ray, 17 Ind. 522. Nichols, 19 Pick. 276 ; Harmony v. 
 » Clark V. Mayor of New York, 4 Bingham, 12 N. Y. 99 ; School District 
 
 N. Y. 338. T. Douohy, 25 Conn. 530 ; 3 Dutch. 614 ; 
 
 5 strange v. Wilson, 17 Mich. 342. Tompkins v. Dudley, 25 N. Y. 272. 
 « Farnham v. Boss, 2 Hall, 167. ' Stewart v. Keteltas, 9 Bosw. 261. 
 
 ' Barber t. Bose, 5 Hill, 76. i» Foley v. Gough, 4 E. D. Smith, 
 
 * Andrews V. Durant, 11 N. Y. 35; 724. 
 
§ 1231. CHAKTBR PAETIES. 493 
 
 CHAPTER II. 
 
 ON CHARTER PARTIES. 
 § 1229. Owner against Freighter for not Loading. 
 
 Form No. S28. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , the 
 
 plaintiff and defendant entered into an agreement, a copy of 
 which is hereto annexed. 
 
 [Or, I. That on the day of , 18...., at , 
 
 the plaintiff and defendant agreed by charter party that the de- 
 fendant should deliver to the plaintiff's ship " Flying Scud," at 
 
 , on the day of , 18...., four hundred and 
 
 ■fifty tons of wheat, which she should carry to London, England, 
 and there deliver on payment of four thousand dollars freight ; 
 and that the defendant should have ten days for loading, five days 
 for discharge, and three days for demurrage, if required, at fifty 
 dollars per day.J 
 
 II. That at the time fixed by the said agreement the plaintiff 
 "Was ready and willing and offered to receive the said merchan- 
 dise [or the merchandise mentioned in the said agreement] from 
 the defendant. 
 
 III. That the period allowed for loading and demurrage has 
 elapsed, but the defendant has not delivered the said merchandise 
 to the said vessel. 
 
 Wherefore the plaintiff demands judgment for dol- 
 lars for demurrage, and dollars additional for dam- 
 ages. 
 
 § 1230. Charter Party Defined — A charter party is a con- 
 tract by which the owner lets his vessel to another for freight.^ 
 Any contract founded on an illegal voyage partakes of the char- 
 acter of that voyage, and stands or falls with it.^ 
 
 §1231. Measure of Damages. — The measure of damages 
 ;against a charterer who refuses to furnish a cargo according to 
 his contract is the stipulated price, deducting the net earnings 
 of the vessel during the time she has been occupied on the voy- 
 age, at an average passage, and including the lay days.3 If the 
 freighter only partially fulfills his contract, the owner may re- 
 
 1 Spring V. Gray's Ex'rs, 6 Pet. 151, 164. 
 
 2 Colquhoun v. N. Y. Fireman's Ina. Co., 15 Johns. 352. 
 s Ashburner v. Balchen, 7N. Y. 262. 
 
494 POEMS OP COMPLAINTS. § 1232. 
 
 cover for the dead freight his contract price ; but the owner is 
 bound to talie other freight if offered, though at a less price, 
 and can recover only the difference in price.' 
 § 1232. Demurrage, Allegation for. 
 
 Form No. SS9 
 
 That the defendant detained the ship daj^s beyond the 
 
 periods so agreed on for loading, discharging, demurrage, as 
 aforesaid, whereby the plaintiff, during all that time, was de- 
 prived of the use of the ship, and incurred dollars ex- 
 pense in keeping the same and maintaining the crew thereof. 
 
 § 1233. Demurrage, Damages for. — Although demurrage, 
 properly so called, is only payable when it has been stipulated, 
 yet if a vessel is improperly detained, the owner may have a 
 special action for the damage.* It is the duty of the chartei'evs 
 to restore the ship at the end of the period allowed for the de- 
 murrage, but they are not responsible for an unreasonable delay 
 by the master.^ And one who purchases goods arriving in bond, 
 is not liable for demurrage of the vessel for the detention occur- 
 ring before th« seller obtains legal permit for the delivery.* No 
 demurrage can be recovered by an owner for a detention occa- 
 sioned either by the misconduct of the master, for which the 
 owner alone was answerable, or to avoid danger, and not by any 
 misconduct or any breach of covenant by the charterer. ^ 
 
 § 1234. Distinction between Contracts of Hiring and 
 Affreightment. — An agreement to hire a vessel in any legnl 
 trade for a specified period, with covenants for her seaworthi- 
 ness, and that the hirer should pay by the time, and not by the 
 carrying of goods on the voyage, is a hiring of the vessel, and 
 not a contract of freight. ^ 
 
 § 1235. Duties of Master. — ^Where a charter party allows 
 a charterer a number of " lay days," and neither the consignees 
 nor other persons receive the cargo or pay the freight after 
 arrival at the port of destination, the master, acting as sole agent 
 on behalf of both charterer and owner, is bound to sell the 
 cargo and pay the freight, on expiration of the " lay days," 
 but he is not bound to sell before the expiration of the "lay 
 days. "7 
 
 ^ Abb. on Shipping, 428 ; Heoksoher » Hooe v. Groverman, 1 Ci-aneh, 214. 
 
 v. MoCrea, 24 Wend. 304. « Winter v. Simoiiton, 3 Cranch C. 
 
 ' Abb. on Shipping, 304 ; Clendaniel Ct. 104 ; see aiso Donahoe v Kettell 
 
 V. Tuclierman, 17Barb. 184. 1 Cliff. 135; Hasten v. Richards, 41 
 
 3 Bobbins v. Codman, 4 E. D. Smith, Me. 182. 
 
 315. ' Robbins v. Codman, 4 E. D. Smith, 
 
 'Gillespie v. Durand, 8 E. D. 815. 
 Smith, 531. 
 
§ 1238. CHAPTER PARTIES. 495 
 
 § 1236. Interpretation of Contract; — In the construction 
 of charter parties, it must be remembered that they are often 
 informal, and must have a liberal construction, in furtherance 
 of the real intention of the parties and the usage of the trade. ^ 
 And though the owner of a ship, of which the charterer is 
 freighter only, has a lien upon the cargo for freight, and also 
 for a sum agreed, to be paid for the use and hire of the ship, 
 his lien may be considered as waived, without express words to 
 that effect, if there are stipulations in the charter party incon- 
 sistent with the exercise of the lien, or when it can fairly be 
 inferred that the owner meant to trust to the personal responsi- 
 bility of the charterer.^ 
 
 § 1237. Mode of Stowage. — ^Where no mode of stowage is 
 prescribed in the charter party, the usage of trade will obtain, 
 and the owner will not be liable for damages resulting there- 
 from. ^ 
 
 § 1238. Lay Days.— Under a charter party, the lay days of 
 a vessel, by the general rule, commence to run from the time 
 the vessel enters the dock.* Where the delivery, by the terms of 
 the charter party, was to be made "alongside of the plaintiff' s 
 vessel, within reach of her tackles," it was held, that if the mas- 
 ter was directed to take the vessel to a certain dock, and did so, 
 the lay days commenced to run from the day she was taken 
 there, and was in readiness alongside the dock to receive her 
 cargo. A charter party provided for "laydays" as follows: 
 to load twenty days from the twelfth instant, the owner guaran- 
 teeing to have the vessel reaiy by that time ; and by a subsequent 
 stipulation the charter party was to commence when the vessel 
 was to receive cargo, and notice thereof should be given to the 
 charterer. The readiness of the vessel at the day named was a 
 condition precedent to the charterer's liability to accept and 
 employ her, and the charter party commences on notice that the 
 vessel is ready to received the cargo.* Where no " lay days " are 
 provided in the charter party or bill of lading, and there is no 
 
 'Abb. on Shipping (Story's ed.) & Aid. 52; Eaymond v. Tyson, 17 
 
 188; 3 Kent's Com. 201 et seq.; How. TT. S. 53. As to the con- 
 
 Kuffglesv. Buckner, 1 Paine, 358; 1 stmction of charter parties in pecu- 
 
 SuSn. 551 ; Certain Logeto. v. Rich- culiar cases, see Ogden v. Parsons, 37 
 
 ardsOD, 2 Id. 589; Gracie y. Palmer, Hunt's Merchant's Mag. (Dec. 18o/), 
 
 8 Wheat. 605, 634; Eaymond v. Ty- 710 ; Belmont v. Tyson, 36 Id.- (Feb. 
 
 son, 17 How. U. S. 53. l^^V'If.' Fr^T^Jo^ \S"^° °^ 
 
 s Paine, 363; Chandler v. Belden, Salt, 40 Id. (April, 1859), 457. 
 
 18 Johns. 1'57, 162 ; Abb. on Shipping, « Lamb v. Parknian, Sprague, 343 ; 
 
 178; Lucas v. Nackells, 4 Bing. 729; * 1 Pa™- ^ar. L. 262 ; Kowe v. 
 
 Cowell V. Simpson, 16 Ves. 275; Smith 10 Bosw^ 268. 
 
 Chase V. Westraore, 5 Mau. & Sel. ^ Weisser v. Maitland,.3 Sandf. 318. 
 180; Crawshay v. Hamfray, 4 Barn. 
 
496 POBMS OF COMPLAINTS. § 1239. 
 
 express stipulation as to the time of unloading, the consignee is 
 not liable for delays occurring without his fault.^ 
 
 § 1239. Liability of Charterer. — Where, by the terms of 
 the charter party, the charterer was to return the boats " in as 
 good condition as they now are, with the exception of the ordi- 
 nary use and wear," he is not liable as an insurer against the 
 perils of the sea or rislis of navigation. ^ 
 
 § 1240. Negligence, Liability for. —If persons charter a 
 steamboat generally, they are owners, in respect to liability for 
 negligence in running her. If the contract is one of affreightment 
 merely, they are not such owners. ^ 
 
 § 1241. Owner for Voyage. — ^If , by the terms of the charter 
 party, the charterers are to have exclusive possession, control, 
 and management of the vessel, appoint master, run the vessel, 
 and receive the entire profits, they are the owners, and are alone 
 responsible for damages and contracts.^ And the charterers' 
 right of possession may be lost by a voluntary surrender to the 
 owners.^ 
 
 § 1242. Power of Master. — The master of the vessel may 
 make a charter party, where the owner has no agent in a foreign 
 port, for the benefit of the owner, but not to give a creditor of 
 the owner a security of the debt due to him.^ 
 
 § 1243. Refusal to Overload. — Although the charter party 
 lets the entire capacity of the vessel, if the goods put on board 
 are heavy articles, and before the ship is full sink her as low as 
 is usual and proper without extra danger, the owners or master 
 of the vessel do not, by refusal to take more, violate the charter 
 party.'' 
 
 § 1244. Repairs of Vessel. — A breach of a clause is the 
 charter party, binding the charterer to keep the vessel in re- 
 pairs, should be alleged in tlie complaint in an action by owners 
 of a vessel against charterer.^ 
 
 § 1245. Rescission. — Where two persons chartered a vessel 
 for six months, and after a part of the time had passed, the 
 
 i The Glover, 1 Brown Adm. 166. held not to have had the effect of 
 
 ' Story on Bailm., seo.-35; Brown's transferring the ownership and pos- 
 
 Lpg. Max. 187 ; Ames v. Belden, 17 session from the general owners : 
 
 Barb. 514. Clarkson v. Edes, 4 Cow. 470; Mac- 
 
 3 Sherman v. Fream, 30 Barb. 478. tai^ger v. Henry, 3 E. D. Smith, 390 ; 
 
 » Oracle v. Palmer, 8 Wheat. 632; Holmes v. Pavensledt, 6 Sandf. 97. 
 
 Marcofdier v. Chesapeake Ins. Co., 8 * Bergen v. Tarained, 40 Hunt's 
 
 Craneh, 39 ; Abb. on S. (Eng. ed.) 67, Merch." Mag. 708. 
 
 note 1 ; Id. 288, 289 ; 1 Sumn. 566, « Hurry v. Hurry, 2 Wash. C. C. 145. 
 
 667 ; K.leine v. Catara, 2 Gall. 75 ; Hill ' Weston v. Minot, 3 Woodb. & M. 
 
 V. The Golden Gate, 1 Newb. 308; 436. 
 
 Winter v. Simonton, 3 Cranoh C. Ct. « Coster v. N. T. and Erie B. B. 
 
 104. A charter party examined, and Co., 3 Abb. Pr. 332. 
 
§ 1249. CHARTER PARTIES. 497 
 
 owner agreed with one of the charterers, in writing, that the 
 charter party was to be deemed to haye expired, it was held a 
 valid rescission of the contract. ^ 
 
 § 1246. Running Days.— A provision in the charter party 
 for running days is in effect a -'positive stipulation by the 
 freighter that he will load and unload within the time men- 
 tioned, and inevitable accident does not excuse him.^ 
 
 § 1247. Charterer against Owner, for Deviation from 
 Contract, and Abandonment of Voyage. 
 
 Form No. SSO. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on -the day of 18..., at , the 
 
 plaintiff and defendant agreed, by charter party, that the de- 
 fendant's ship, called the , then at , should 
 
 «ail to , or so near there as she could safely get, with 
 
 all convenient speed, and there load a full cargo of , or 
 
 other lawful merchandise, from the factors of the plaintiff, and 
 •carry the same to , and there deliver the same, on pay- 
 ment of freight. 
 
 II. That the plaintiff duly performed all the conditions of the 
 ■contract on his part. 
 
 III. That the said ship, the , did not, with all con- 
 venient speed, sail to , or so near thereto as she could 
 
 safely get; but that the defeniant caused the said ship to devi- 
 ate from her said voyage, and abandon the same, to the plain- 
 tiff' s damage dollars. 
 
 [Demand op Jitdgmknt.] 
 
 § 1248. Assent of Charterer. — Where a chartered vessel 
 met another vessel in distress in the course of her voyage, and 
 one of the charterers, being on board, consented that a part of 
 the crew might go on board the distressed vessel to assist in 
 saving her, the assent of the charterer would not vary the con- 
 tract respecting tlie freight. ^ 
 
 § 1249. Deviation. — On a voyage from South America to 
 Boston, stopping at New York may be such a deviation as 
 would render the charterer liable for, damage it might occasion. 
 Yet it is not such a change as will dissolve the charter party 
 and entitle the owner to possession at New York, and to retain 
 cargo for freight, though the charterer has become insolvent.* 
 
 1 Wheeler v. Curtis, 11 Wend. 653. ' Mnson v. Blaireau 2 Cranoh, 
 2 Field V. Chase, Hill & D. Sapp.. 240 ,„,,„„ ,a^ 
 
 £0. * Lander v. Clark, 1 Hall, 394. 
 
 EsTEB, Vol. 1—32. 
 
498 FOKMS OF COMPLAINTS. § 1250. 
 
 § 1250. Negative Allegations. — If there are exceptions 
 in the charter party, allegations tending to negative the same 
 are not necessary. ^ 
 
 § 1251. Ship Owner Against Charterer for Freight. 
 
 Form No. 331. 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of ,18..., at , the 
 
 plaintiff and'defendant agreed, by charter party, that the plaint- 
 iff's ship, called , should, with all convenient speed, 
 
 sail to , and that the defendant should there load her 
 
 with a full cargo of , or other lawful merchandise, to 
 
 be carried to , and there delivered, on payment by the 
 
 defendant to the plaintiff of freight, at dollars per ton. 
 
 II. That the said ship accordingly sailed to , afore- 
 said, and was there loaded by the defendant with a full cargo 
 of lawful merchandise,, and the plaintiff carried the said cargo 
 
 in said ship to aforesaid and there delivered the same 
 
 to the defendant, and otherwise performed all the conditions 
 of said contract on his part. 
 
 III. That said freight amounted in the whole to the sum of 
 dollars. 
 
 IV. That the defendant has not paid the same. 
 
 [Demand os' Judgment.] 
 
 § 1252. Allegation against Assignee of Cargo. 
 
 Foi-m No. 33$. 
 
 That thereafter the said A. B. assigned the cargo to the de- 
 fendant, who thereupon became the owner thereof and entitled 
 to receive the same. 
 
 § 1253. Allegation of a Charter. — The plaintiffs alleged 
 in their complaint that their assignors having chartered a vessel, 
 earned freight, which the defendants, the consignees of the ves- 
 sel had collected and refused to pay over. The defendants, in 
 their answer, dgnied that the plaintiff's assignors had chartered 
 the vessel in any other way than by a charter party, which pro- 
 vided that their right to any share of the freight should be con- 
 tingent on the freight exceeding twenty-five thousand dollars ; 
 it was held that this put in issue of plaintiff's allegation of a char- 
 ter, and that the plaintiffs must prove, either an unconditional 
 charter, or that under the charter alleged by defendants the 
 freiglit had exceeded twenty-five thousand dollars.* 
 
 • Wheeler v. Bavidge, 9 Exch. 668 ; S: C, Eng. Law & Eq. 541. 
 2 Patrick v. MetcaU, 9 Bosw. 483. 
 
§ 1256. COVENANTS. 499 
 
 § 1254. Lien for Freight.— The right of lien for freight 
 does not absolutely depend on any covenant to pay freight on the 
 delivery of the cargo.^ Nor can charterers, with the consent of 
 the master abroad, make any agreement exonerating the goods 
 from freight, and defeating the lien of the owners. ^ Nor can the 
 master enter into such agreement, and such agreements would 
 give no rights to a person who entered into them with the knowl- 
 edge of the charter party. ^ But the master, notwithstanding the 
 interference of the charterer, may retain the goods until his lien 
 shall be satisfied, or may sue the consignee after delivery of the 
 the goods.'* 
 
 § 1255. Sale of Cargo. — Where owners of cargo did not 
 appear, and the master put up at auction and sold the cargo on 
 due notice, and became the purchaser, but retained the goods on 
 the vessel, awaiting a higher price, he had no right thus to con- 
 stitute the ship a storehouse, and the charterer was not liable for 
 demurrage, beyond a reasonable time for discharging after the 
 first sale.^ 
 
 CHAPTER III. 
 
 COVENANTS. 
 
 § 1256. Warranty of Title to Real Property. 
 
 Form No. SS3. 
 [Title.] , 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18...., at , the 
 
 defendant, in consideration of dollars to him paid, 
 
 granted to the plaintiff, by deed [here insert description], and 
 in his said deed warranted that he had good title in fee simple to 
 the said property, and would defend the plaintiff in his possession 
 of the same. 
 
 n. That the defendant was not, but one _ A. B. was then the 
 lawful owner of the said lands, in fee simple. 
 
 III. That on the day of , IS---, the said A. B. 
 
 lawfully evicted the plaintiff from the same, and still withholds 
 
 the possession thereof from him. 
 
 [Demand of Judgment.] 
 
 1 A-hh nnSh Tit 3 e i. sec. 7, p. * Gracie v. Palmer, 8 Wheat. 605; 
 177 Th'e Vo^unteeVi Sumn!55i:' ^ 3 Kent (3d. ed ), 138 210, 220 ; Abb. 
 
 2 eiacie V Palmer 8 Wheat. 605 ; on Sh. 286-8 ; Smith Merc. Law, 187 ; 
 gve.in,_Palmerv. (.raeie, 4 Wash, ^haw v..Thom^pj. 0.^ 
 
 3 The Salem's Cargo.l Sprague, 389. 315. 
 
500 FORMS OP COMPLAINTS. § 1257. 
 
 § 1257. Action on Covenant — Assignment of Breach.— 
 
 In order to enable one to maintain an action on a covenant, 
 there must not only be a breach of the covenant, but some loss 
 or damage to the covenantee.^ The covenant of quiet enjoy- 
 ment and of general warranty requires the breach to show an 
 eviction.^ Covenants are to be considered dependent on or inde- 
 pendent according to the intention of the parties, which is to 
 be deduced from the whole instrument. ^ Where covenants are 
 dependent, an action can not be maintained without showing a 
 performance on plaintiff's part of every affirmative covenant.'* 
 That a party covenanted by indenture, imports that a covenant 
 was under seal ;5 and an averment of execution imports delivery. ^ 
 The grantee in a deed-poll is bound by the covenants therein 
 contained to be performed by him, and an action of covenant 
 lies for a breach thereof. By acceptance of such a deed, the 
 grantee is estopped from denying his covenants, or that the seal 
 attached to the deed is his own as well as the grantor's.'' Even 
 if an action of covenant will not lie in such case against the 
 grantee, a court of equity will restrain him or his grantees from 
 doing what, by such covenant, he has agreed not to do. 
 § 1258. Eviction, Allegation of. 
 
 Form No. S34. 
 
 That the defendant has not warranted and defended the 
 premises to the plaintiff ; but, on the contrary, one C. D. law- 
 fully claimed the same premises by a paramount title, and after- 
 wards, in an action brought by him in the superior court of 
 
 the county of , state aforesaid, in which said C. D. was 
 
 plaintiff, and this plaintiff was defendant, the said C. D., on 
 
 the day of , 18.., recovered judgment, \^ich 
 
 WHS duly given by said court against this plaintiff, for his seisin 
 
 ffld possession of the premises, and on the day of , 
 
 18.., lawfully ' entered the premises, and ousted the plaintiff 
 ^herefrom, and still lawfully holds the plaintiff out of the pos- 
 session thereof. 
 
 § 1259. Eviction, What is— Averment of.— Eviction by 
 process of law is not necessary to enable an action to be main- 
 tained on the covenant.^ And an averment that the vendor had 
 
 1 Svvall V. Clarke, 51 Cal. 227. Phillips v. Clift, 4 Hurlst. & N. 
 
 2 Kickert V. Snyder, 9 Wend. 416; 168. 
 
 Mlavston v. Hobbs, 2 Mrtss. 433. « Brinckerhoff v. Lawrence, 2 Sandf. 
 
 " Philadelphia E. R. Co. v. Howard, Ch. 400. 
 
 13 How. (U. S.) 307, 339. ' Atlantic Dock Co. v. Leavitt, 54 
 
 * Webster v. Warren, 2 Wash. C. N. Y. 85. 
 
 :t. 456. 8 Id. 
 
 " Cabell V. Vaughan, 1 Saund. 291 ; » McG-ary v. Hastings, 39 Cal. 360. 
 
§ 1261. COVENANTS. 501 
 
 not a good and sufficient title to the said tract of land, and by- 
 reason thereof the said plaintiffs were ousted and dispossessed 
 of the said premises by due course of law, is sufficient.! In a 
 declaration upon a covenant of warranty, it is necessary to 
 allege substantially an eviction by title paramount; but no 
 formal terms are prescribed in which the averment is to be 
 made.2 A purchaser in possession can not reclaim the purchase 
 money on account of defect in the title, unless he has been 
 evicted or disturbed. ^ Nor on the ground that the title ex- 
 isted elsewhere than in the grantor.* That the plaintiff was 
 lawfully evicted from the right and title to said premises by a 
 paramount and lawful title to the same, does not import an 
 ouster from possession. ^ Where the covenantee is held out of 
 possession by one in actual possession under a paramount title, 
 the covenant is broken. ^ The use of aright of way by the party 
 entitled to it, is an eviction of the servient estate, within a cov- 
 enant of warranty against all "lawful claims," for which the 
 latter may sue as assignee of the covenantee.'' 
 
 § 1260. Judgment Covenants. — ^Where the parties to a 
 deed covenanted severally against their own acts and incum- 
 brances, and also to warrant and defend against their own acts 
 and thoss of all other persons, with an indemnity in land of an 
 equivalent value, in case of eviction, these covenants are inde- 
 pendent, and it is unnecessary to allege in the declaration any 
 eviction, or any demand, and refusal to indemnify with other 
 lands, but it is sufficient to allege a prior incumbrance by the 
 acts of the grantors, etc. ; and that the action might be sus. 
 tained on the first covenant for the recovery of pecuniary dam- 
 ages. ^ 
 
 • §1261. General Covenant of Warranty.— If a deed con- 
 tains a general covenant of warranty of lands thereby intended 
 to be conveyed, and also a covenant that if any portion of the 
 land has been before conveyed to other persons, the grantor 
 will convey to the grantee other lands of like quality, the 
 former covenant relates to land which the deed purports .to 
 convey, and not to the land which the grantor covenanted to 
 convey in the latter covenant. » Where land is sold with cove- 
 nant of warranty, accompanied with delivery of possession, and 
 
 iDavv. Chism, 10 Wheat. 449. s Whity v. Hightower, 12 Smed. & 
 
 SEickertv.Snyder, 9 Wend. 416; M. 478. ,„ vf sin 
 
 Day V. Chism, 10 Wheat. 449. ' Russ v. fateele, 40 Vt. 310. 
 
 8 Salmon v. Hoffman, 2 Cal. 138. » Duvall v. Cra.g 2 Wheat 45. 
 
 « Fowler V. Smith, 2 Cal. 44. » Vance v. Pena, 33 Cal. 631. 
 
 5 BlyJenberg v. Cotheal, 1 Duer, 176. 
 
502 rOEMS OP COMPLAINTS. § 1262. 
 
 the purchaser gave a note in payment, the warranty and the 
 promise to pay are independent covenants. "^ A covenant of the 
 grantor, warranting the title of the land sold as "indisputable 
 and satisfactory," is not broken if the title is good and valid.' 
 A covenant of non-claim in a deed amounts to a covenant of 
 warranty, and operates equally as an estoppel. ^ The covenant 
 of warranty runs with the land, and the vendor is liable directly 
 to the person evicted.* Where a covenant of warranty is based 
 upon a right or title, which is subsequently, by a judgment of 
 the court, adjudged invalid, and five years are given by statute 
 to appeal from said judgment, an action for breach of the cov- 
 enant will not lie till the five years have expired. ^ 
 
 § 1262. Notice of Action. — Verbal notice is suflBcient.s If 
 the covenantor has notice of the action, the covenantee is not 
 bound to defend.'' The proceedings will be conclusive against 
 the covenantor in this action. ^ 
 
 § 1263. Remedy. — If a party takes a conveyance without 
 ■ covenants, he is without remedy in case of failure of title ; and 
 if he takes a conveyance with covenants, his remedy ujoon fail- 
 ure of title is confined to them.^ 
 
 § 1264. Special Damages — Allegation of. 
 
 Form M. SS5. 
 
 That by reason thereof the plaintiff has not only lost said 
 
 premises, but also the sum of dollars, by him laid out 
 
 and expended in and upon the said premises, in repairing and 
 
 improving the same, and also the sum of dollars, 
 
 costs and charges sustained by the said A. B., in prosecuting 
 
 his action for the recovery thereof, and the sum of 
 
 dollars, for his own costs, charges, and counsel fees in deffend- 
 ing said action. 
 
 § 1265. Breach of Covenant of Warranty— Another 
 Form. 
 
 Form No. S36 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , the 
 
 defendant, by his deed of that date, duly executed, in consid- 
 eration of dollars, sold and conveyed in fee simple, to 
 
 the plaintiff, certain land [describe it] . 
 
 ' Norton v. Jackson, 5 Oal. 263. ' See Kelly v. Dutch Church of 
 
 2 Winter v. Stock, 29 Cal. 407. Schenectady, 2 Bill, 105. 
 
 3 Gee V. Moore, 14 Cal. 472. ' Jackson v. Marsh, 5 Wend. 44. 
 ' Blackwell v. Atkinson, 14 Cal. * Cooper v. Watson, 10 Id. 202. 
 
 470. 9 Peabody v. Phelps, 9 Cal. 213. 
 
 s Hills V. Sherwood, 33 Cal. 474. 
 
§ 1266. COVENANTS. 503 
 
 II. That the defendant, by the same deed, covenanted as 
 follows [copy the covenant] . 
 
 III. That the defendant had not, at the time of the execution 
 of said deed, a good and sufficient title to said premises, and 
 
 by reason thereof , on the day of , 18..., at , 
 
 the plaintiflf was ousted and dispossessed of the said premises 
 by due course of law. 
 
 [Or, III. That one G. H., at the time of tlie execution of the 
 said deed and from thence, had lawful right and paramount 
 title to the said premises, and by virtue thereof, after the ex- 
 ecution of said deed, on the day of , 18..., en- 
 tered upon the possession thereof, and ousted and dispossessed 
 by due process of law, and kept, and still keeps, the plaintiff 
 from the possession of the same. That the plaintiff has also 
 been compelled to pay the costs and charges sustained by the 
 
 said G. H., in prosecuting a certain action in the 
 
 court, in county, for the recovery of said premises, 
 
 which amounted to dollars, and to pay out the addi- 
 tional sum of dollars in endeavoring to defend such 
 
 action.] 
 
 [DEMAND or J-UDGMENT.] 
 
 § 1266. By Assignee of Grantee against Previous 
 Grantor. 
 
 Form No. SS7. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. [Allege sale to one C. D.] 
 
 II. [Allege and set out copy of covenant.] 
 
 III. That the said C. D. afterwards, on the day of 
 
 ■„.., 18..., at , by deed duly executed, in con- 
 sideration of the sum of dollars, conveyed the said 
 
 premises to one E. F., his heirs and assigns ; and the said E. F. 
 
 afterwards, on the day of , 18..., at , by 
 
 his deed of that date, duly executed, in consideration of the sum 
 of dollars, conveyed the same premises to the plaintiff. 
 
 rV. That the plaintiff afterwards, on the day of , 
 
 18... at , entered into and was possessed of said 
 
 premises. 
 
 V. That the defendant had not at the time of the execution 
 of his said deed, nor has he since had, a good and sufficient 
 title to the said premises ; by reason whereof the plaintiff was 
 afterwards, on the day of , 18..., ousted and dis- 
 possessed of the said premises by due course of law. 
 [Demand of Judqmbnt.] 
 
504 PORMS OP COMPLAINTS. § 1267. 
 
 § 1267 By Heirs of Covenantee against Previous 
 Grrantor. 
 
 Form No. MS. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. [Allege sale as preceding forms. J 
 
 II. [Allege and set out copy of covenant.] 
 
 III. That the said C. D. afterwards, and on the same "flay, 
 entered into and was possessed of said premises, and after- 
 
 s'avds, on the day of ,.. 18..., at , 
 
 said C. D. died, whereupon the said premises, and his estate 
 ;herein, descended to the plaintiffs, as children and co-heirs of 
 ;he said C. D., deceased ; and that they afterwards, on the same 
 Jay, entered into and were possessed of said premises, until 
 )usted and dispossessed, as hereinafter mentioned. 
 
 [Here set forth the breach, etc., as in the preceding forms.] 
 
 [Demand of Judgment.] 
 § 1268. By Devisee of Covenantee, against Previous 
 Griantor. 
 
 Form No. SS9. 
 [Title.] 
 The plaintiff complains, and alleges : 
 I. and II. [Allege sale and covenant.] 
 
 III. That the said E. F., afterwards, and on the same day, 
 entered into and was possessed of said premises ; and after- 
 
 (vards, on the day of , ., 18. ., at , made 
 
 lis last will and testament, in writing, and thereby, amongst 
 jther things, devised the said premises to the plaintiff; and 
 
 ifterwards, on the day of , 18 . . , at 
 
 ;he said E. F. died, leaving such will. 
 
 IV. That on the day of , 18 . . , the said 
 
 will was proved and admitted to probate in the probate court of, 
 3tc., and by order of said court, letters testamentarj'' were 
 issued. [If the property is situated in a county other than the 
 Dne where the will was admitted to probate, add : That after- 
 wards, on the day of , 18 . . , by an order of 
 
 the probate court of county (where the premises are 
 
 situated), an authenticated copy of said will, from the record 
 aforesaid, with a copy of said order of probate annexed thereto, 
 was filed of record in the probate court of said county of 
 (where premises lie), and duly recorded.] 
 
 V. That thereupon the plaintiff entered into possession of 
 the said premises, and was possessed thereof until ousted and 
 
§ 1270. COVENANTS. 505 
 
 dispossesed as hereinafter mentioned. [Set forth breach, etc. 
 as in preceding forms.] 
 
 [UkMAND of JnnSMKNT.J 
 
 § 1269, Warranty as to Quantity. 
 
 Form No. 340. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , the 
 
 defendant warranted a certain farm in township, 
 
 county, state of , to contain acres of land, 
 
 and thereby induced tlie plaintiff to purchase the same from 
 him, and pay to him . ,= - dollars therefor. 
 
 II. -That the said farm contained only acres, instead 
 
 of ....^. acres, the quantity sold to plaintiff by defendant. 
 
 III. That plaintiff was damaged thereby in the amount of 
 dollars. 
 
 [Dbmanb or Jttdqmknt.] 
 § 1270. On Covenant Against Incumbrances on Real 
 Property. 
 
 Form No. 341. 
 
 [TiTLI.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the. . day of , 18..., at , the 
 
 defendant, in consideration of dollars, to him paid, 
 
 granted to the plaintiff, by deed, in fee simple, a farm in the 
 town of , county of [or otherwise briefly des- 
 ignate the property]. 
 
 II. That said deed contained a covenant on the part of the 
 defendant, of which the following is a copy [copy of cove- 
 nant]. 
 
 III. That at the time of the making and delivery of said deed 
 the premises were not free from all incumbrance, but on the 
 
 contrary, the defendant before that time, on the day of 
 
 ,18,.., at .......c...., by deed in the nature of a mort- 
 gage, duly executed, had mortgaged the said premises to one 
 E. S.,to secure the payment of dollars, with interest. 
 
 IV. And for a further breach, the plaintiff alleges, that on 
 
 the day of , 18..., in the court of the 
 
 judicial district of county, in this state, judgment 
 
 was rendered against the defendant for the sum of dol- 
 lars, in an action in which the said [incumbrancer] was plaintiff, 
 and the defendant herein was defendant, which judgment wasj 
 
 on the day of , 18..., docketed in said county of 
 
 [where premises are situated] and which judgment at the time 
 
506 FORMS OF COMPLAINTS. § 1271. 
 
 of the execution and delivery of the deed in the nature of a 
 mortgage, remained unpaid and unsatisfied of record. 
 
 V. And for a further breach, the plaintiff alleges, that at the 
 time of the execution and delivery of said deed the premises 
 were subject to a tax theretofore duly assessed, charged, and 
 
 levied upon the said premises by the said city of , and 
 
 the officers thereof, of the sum of dollars, and which 
 
 tax was then remaining due and unpaid, and was at the time of 
 the delivery of said deed a lien and incumbrance by law upon 
 the said premises. 
 
 VI. That by reason thereof the plaintiff paid, on the 
 
 day of , 18..., the sum of dollars in extinguish- 
 ing the [here state what, whether the judgment, lien, tax, or 
 other incumbrances, or all of them] aforesaid, to his damage 
 
 dollars. 
 
 [Demand or Judgment.] 
 
 § 1271. Assignment of Breach — Payment by Cove- 
 nantee. — A breach of covenant is sufficiently assigned by nega- 
 tiving the words of the covenant.^ If the special facts to 
 negative a covenant are necessarily included in the general 
 averment of the breach, a distinct and substantive averment of 
 them is not necessary.^ A general covenant against* incum- 
 brances is broken by the existence of an incumbrance at the 
 making of the deed. The breach must set out the particular 
 incumbrance relied on.' That certain persons recovered judg- 
 ment against the owner, which were liens and incumbrances, is 
 sufficient, without stating the fact of docketing said judgment, 
 or its legal effect.* A covenant that the whole amount of a 
 judgment is due is not to be construed to mean that no one of 
 the judgment debtors has been released. ^ When an action is 
 brought on the breach of a covenant in the contract, it is 
 enough to allege the conveyance according to its legal effect, 
 showing a consideration for the covenant, and then set forth a 
 •copy of the covenant, ^ thus combining the two systems of 
 pleading for the sake of brevity. This method will be desir- 
 able when the contract is of great length. So, in a covenant 
 to pay certain accounts, it is not necessary to set out the ac- 
 
 1 MoQ-eehan v. McLaughlin, 1 Hall, compare People v. Russell, Id. 
 
 37. 670. 
 
 « Randall v. 0. and D. Canal Co., 1 * Cady v. Allen, 22 Barb. 388 ; see, 
 
 Harr. 151 ; Breckenridge's Adm'r v. also, Chamberlain v. Gorham, 20 
 
 Lee's Bx'rs, 3 Bibb, 830. Johns. 746 ; reversing S. C, 20 Id. 144, 
 
 8 Sheltou v. Pease, 10 Mo. 473 
 -Julliand v. Burgott, 11 Johns. 6 
 Thomas v. Van Ness. 4 Wend. 549 
 
 ' Bennett v. Buohau, 5 Abb. Pr. (N. 
 S.) 412. 
 • Swan on PI. 198. 
 
5 1275. COVENANTS. 507 
 
 counts so paid, thereby producing great prolixity.'' Wliere a 
 complaint avers a sale and conveyance, the existence of the 
 mortgage, the execution of the bond, the failure of the defend- 
 ant to comply with its conditions, consequent sale of the 
 premises under the mortgage, and their loss to the plaintiff, it 
 was held sufHcient on demurrer.^ And consideration need not 
 be alleged, as in pleading on a sealed instrument the seal im- 
 ports consideration. Without the averment of payment of the 
 incumbrance, plaintiff 'can recover only nominal damages.-^ Ex- 
 cept in the case of a covenantee who bought for the purpose of 
 a resale, with notice to the covenantor at the time of sale.* In 
 such a case those facts, and the diminution in value of the 
 estate, and the expenditure in paying off the incumbrance, 
 should be alleged, the latter as a special averment of damage.^ 
 
 § 1272. The Same — Description of Land Conveyed. — 
 A brief description will be sufficient with profert of conveyance.* 
 
 § 1273. Condition Precedent. — Where a deed contains a 
 covenant that in case the guarantees shall pay a certain sum of 
 money before a certain day " then this instrument is to take 
 effect as a full and complete conveyance in fee of all, etc. , take 
 the estate belonging to the covenantor, etc., the payment of 
 the purchase money was a condition precedent to vesting the 
 estate.'' 
 
 § 1274. Covenant in Mortgage. — If the mortgagor cove- 
 nants to pay and discharge all legal mortgages and incum- 
 brances, the covenant will make the mortgagor personally liable 
 for the sum due and secured by an executory contract for a 
 mortgage not under seal or recorded if the mortgagor had actual 
 notice of it, and the mortgage will become security for the per- 
 formance of the covenant. 8 It does not put the purchaser from 
 the mortgagor upon any inquiry as to any mortgages or incum- 
 brances not of record.* 
 
 § 1275. Measure of Damages.— A party having been de- 
 feated in a suit against him for damages for having interfered 
 with an easement on his land may recover of his warrantor the 
 damage he has sustained in consequence of the breach of the 
 covenant against incumbrances, and such costs and expenses as 
 
 1 .Tones v. Hurbaugh, 5 N. Y. Leg. ' De Forest v Leete V°A?t" ^Vi 
 
 2 McCarty v. Beach, 10 Cal. 461. 192, u. i ; Dunham v. Pratt, 14 Johns. 
 SDelavergne v. Norris, 7 Johns. 372. o^ j i j a n„i oqt 
 
 858 : Hall vrDean, 13 Id. 105 ; Stanard Kesiok v. Sunderland 6 Cal. 297. 
 
 V Eldridt'e, 16 Id. 234. ^ Racouillat v. bansevain, 32 Cal. 
 
 ^^*BatcheMer v. Sturgis, 3 Cash. 8' «-^^,^^ii,^t ,. Bene. 32 Cal. 450. 
 
508 FOEMS OF COMPLAINTS. § 1276. 
 
 he has fairly and in good faith incurred in attempting to main- 
 tain and defend his title. ^ He was not bound to follow the ad- 
 vice of his warrantor by suing the party who claimed the ease- 
 ment and entered upon the premises.^ "There is," says Lord 
 Mansfield, in Lowe v. Peers, "a difference between covenants 
 in general and covenants secured by a penalty or forfeiture. In 
 the latter case, the obligee has his election ; he may either bring 
 an action of debt, and recover the penalty, after which recovery 
 of the penalty he can not resort to the covenant ; or, if he does 
 not choose to go for the penalty, he can proceed upon the cove- 
 nant and recover more or less than the penalty toties quoties."^ 
 
 § 1276. EstoppeL — One who has covenanted with executors, 
 as such, that third persons should satisfy and discharge a mort- 
 gage, is thereby estopped from denying the right of executors 
 to sue on such covenant in their representative capacity.* But 
 a subsequent grantee may maintain an action against the grantor 
 on a covenant.^ 
 
 § 1277. Incumbrances.— The term "incumbrances" in- 
 cludes taxes, assessments, and all liens upon property. ^ No tax 
 or assessment can exist until the amount thereof is ascertained 
 and determined. Hence, although the expense has been incurred 
 at the time of conveyance, to meet which a local assessment is 
 subsequently laid upon the premises conveyed which are legally 
 chargeable therewith, such assessment does not constitute a 
 breach of the covenant against incumbrances.'' Only nominal 
 damages can be recovered until after actual payment of the in- 
 cumbrance.^ 
 
 § 1278. Purchase after Breach.— A purchaser of a mill, 
 after breach of covenant by a railroad company, with Its fortner 
 owner, to dig a new channel, etc., for the mill stream, can not 
 sue on said covenant.^ Where defendant made a vahd agree- 
 ment with three partners not to do business in a certain place, 
 and two of said partners sold out to a third, and left said place, 
 but the third resold to defendant, and released said agreement, 
 
 1 Smith V. Sprague, 40 Vermont, ♦ Farnhnm v. Mallory, 5 Abb Pr. 
 43- (N. S.) 380. 
 
 ,ai •, Tx .r.. ' Colby V. Ossood, 29 Barb. 339. 
 
 8 Sedgwick on Damages, 424; see « Civil Code Cal., sec. 1114 
 
 Lowe V. Peers, 4 Burr. 2225; ^Iso ' Dowdney v. Mayor etc., 54 N. Y. 
 
 Bird V. Eandall, 1 W. Black. 373, ,S87 ; 186; see De Peysler v. Murphy. 39 
 
 Winter v. Trimmer, 1 Id. 395 ; Har- N. Y. Supr. (7 J. & Sp ) 255 
 
 risoi. V. Wright, 13 East, 343. The sheading v. Gray, 37 Id 79- see 
 
 use and meaning of the terms "pen- also Blythe v. Gately, 51 Cal. 236, as 
 
 Blty and "liquidated damages" in to when taxes become a lien 
 
 agreements commented on in People » Junction E. E. Co. v Saver= 28 
 
 V. Love, 19 Cal. 677. Ind. 318. "' 
 
^ 1280. COVENANTS. 
 
 509 
 
 it was held that the other two partners could not sue for a breach, 
 &3 the agreement was incident only to the business. ^ 
 
 § 127a. To What Covenant Attaches.— Every covenant 
 relating to the thing demised attaches to the land, and runs 
 ■with it.'' But where the wan-anty in a deed contains a covenant 
 -to " warrant and defend the premises conveyed, from and against 
 all or any incumbrances, claims or demands, created, made, or 
 suffered, by, through, or under him, and against none other," 
 the warranty in the deed attaches itself to the interest conveyed, 
 and not to the land itself. 3 A covenant of seisin runs with the 
 land and is divisible, so that if the land be sold in parcels to 
 different purchasers, each may maintain an action on the cove- 
 nant.* "Where the covenantee, in a deed of land, takes posses- 
 sion and conveys, a covenant of warranty in the deed to him 
 will pass to his grantee, although the covenantor was not in 
 possession at the time of his conveyance. ^ A covenant to con- 
 vey, contained in a lease, runs with the land and may be as- 
 signed.® 
 
 § 1280. The Same, where the Deed Expressed Spe- 
 cific Incumbrance. 
 
 Form No. S42. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. [As in preceding form.] 
 
 II. That by said deed the premises conveyed were described 
 as being subject, nevertheless, to the payment of a certain 
 
 mortgage recorded in the recorder's office at , on the 
 
 day of , 18.., in Book A of mortgages [or other 
 
 incumbrance, describing it], and no other incumbrances were 
 mentioned or specified in said deed, as existing upon or affect- 
 ing said premises or the title thereto. 
 
 III. That said deed contained a covenant on the part of the 
 defendant, of which the following is a copy [copy covenant]. 
 
 IV. That at the time of the making and delivery of the said 
 deed, the premises were not free from all incumbrances other 
 than the mortgage therein excepted, but on the contrary [here 
 set out any or all other incumbrances as breaches, and con- 
 clude as in preceding form]. 
 
 [Demand op Judgment.] 
 
 * Gompers v. Eochester, 56 fenn. ^ Weed v. Larkin, 54 111. 489. 
 
 St. ]94. «Hagar v. Buck, 44 Vt. 285. 
 
 ' Laffan v. Naglee, 9 Cal. 662. When covenant to make and main- 
 
 s Kimball v. Bemple. 25 Cal. 440. tain fence runs with the land, see 
 
 « Schafleld v. The Homestead Co, Bronson v. Coffin, 108 Mass. 175. 
 
 S2 Iowa, 317. 
 
510 rOEMS OP COMPLAINTS. § 1281. 
 
 § 1281. Implied Covenant. — Where a deed containing the 
 words "grant, bargain, and sell," recites a mortgage existing 
 at the time of the conveyance, with a warranty a;gainst the 
 same, the general covenant implied by the words, "grant, bar- 
 gain and sell," is restrained by the special covenant.^ And the 
 special covenant is not a covenant to pay -the mortgage. 
 
 § 1282. Mortgage. — ^When premises are described in the 
 granting part of a deed as subject to a mortgage, such mort- 
 gage will not be in the covenant against incumbrances.^ A cove- ■ 
 nant by a vendor of real estate, that neither he nor his assigns 
 will sell any marl from the adjoining premises, will not be en- 
 forced in equity against the alienee of the land intended to be 
 burdened with the covenant. ^ 
 
 § 1283. On a Covenant of Seisin, or of Power to Con- 
 vey. 
 
 Form No. S4S. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., the defend- 
 ant, for a valuable consideration, by deed, conveyed to the 
 plaintiff in fee simple [describe the property]. 
 
 II. That said deed contained a covenant on the part of the 
 defendant, of which the following is a copy [copy of covenant]. 
 
 III. That at the time of the execution and delivery of said 
 deed, the defendant was not the true, lawful, and rightful 
 owner, and had not in himself at said time good right, full 
 power, etc. [negative the words of the covenant]. 
 
 IV. Whereby the plaintiff has sustained damages in the sum 
 of dollars. 
 
 [Demawd of Judgment.] 
 
 § 1284. Essential Averments. — In an action of covenant 
 it must appear in the complaint with whom the covenant was 
 made, the performance or readiness to perform, or the excuse 
 for non-performance of a condition precedent, at the place 
 and within tiie time specified.* An action cannot be main- 
 tained on a covenant of seisin, unless a breach and an eviction 
 be alleged. 5 . And when there has not been an eviction, some- 
 thing equivalent must be averred. ^ It is sufficient to negative 
 the words of the covenant.' It is not necessary that a breach 
 
 1 Shelton V. Pease, 10 Mo. 473. * Eobinson v. Neil, 8 Ohio, 525- 
 
 " Freeman v. Foster, 55 Me. 508. King v. Kerr's Adm'r, 5 Id. 155 
 
 » Brewer v. Marshall, 4 0. E. Green, « Id. ; McGarry v. Hastings, 39 Oal. 
 
 637. 360. 
 
 *Keatley v. McLaugherty, 4 Mo. M Kent's Com. 479; Kickert v. 
 
 221. SDyder,.9 Wend. 416. 
 
§ 1286. COVENANTS. 511 
 
 of a covenant shonM be assigned in the very words of the cove- 
 nant. It is sufficient to aver what is substantially a breach, i 
 
 § 1285. Implied Covenants— A deed containing the words 
 "grant, bargain, sell, and enfeoff," is operative as a deed of 
 feoffment, and livery of seisin is not necessary.^ And under the 
 statute of Missouri, it was held that they are separate and inde- 
 pendent of each other. » In Illinois, the words " grant, bargain, 
 and sell," express covenants that the grantor is seised of an in- 
 defeasible estate in fee simple, free from incumbrances done or 
 suffered by the grantor, as also for quiet enjoyment against 
 the grantor, his heirs and assigns.* It embraces such incum- 
 brances only as the vendor has control of, and not an outstand- 
 ing mortgage created by his grantor. » In California the civil 
 code provides that " from the use of the word ' grant ' in any con- 
 veyance by which an estate of inheritance or fee simple is to be 
 passed, the following covenants, and none other, on the part 
 of the grantor, for himself and his heirs to the grantee, his 
 heirs and assigns, are implied, unless restrained by express 
 terms in such conveyance : 1. That previous to the time of the 
 execution of such conveyance, the grantor has not conveyed 
 the same estate, or any right, title, or interest therein, to any 
 person other than the grantee ; 2. That such estate is at the time 
 of the execution of such conveyance free from incumbrance 
 done, made, or suffered by the grantor, or any person 
 claiming under him. Such covenants may be sued upon in the 
 same manner as if they had been expressly inserted in the con- 
 veyance."^ Prior to the code, however, it was held that where 
 there are no covenants of seisin, etc., in the deed, the law will 
 not imply other covenants than those for quiet possession.'' 
 
 § 1286. Damages, Measure of. — When the grantor, in a 
 deed containing a covenant of seisin, has no title to the land, 
 the covenant is broken the instant it is made.^ Such a covenant 
 is an assurance to the purchaser that the grantor has the estate 
 both in quantity and quality. ^ But where the vendor was actually 
 seised, but of a defeasible estate, the damages should be merely 
 nominal until the estate has been actually defeated.^" The 
 rule of damages, where there has been an actual loss of the 
 
 » Fletcher v. Peck, 6 Cranch, 87. * Nichols v. Nichols, 5 Hun, 108. 
 
 ' Perry v. Price, 1 Mo. 558. ' Pecare v. Chouteau, 13 Mo. 527. 
 
 s Alexander v.'Schreiber, 10 Mo. 46. i»Keeae v. Smith, 12 Mo. 344; 
 
 * Mosly V. Hunter, 15 Mo. 322. Bircher v. Watkins, 13 Id. 521 ; Mosely 
 
 6 Armstrong v. Darby, 26 Mo. 517. v Hunter, 16 Id. 322 ; see also Cow- 
 
 e Sec. 1113. dery v. Coit, 44 N. Y. 382. 
 ' Fowler V. Smith, 2 Cal. 39. 
 
512 FO?vMS 0£' COMPLAIlNlS. § 1287. 
 
 premises, is the purchase money and interest. Where the plaint- 
 iff has purchased the paramount title, it is the sum actually and 
 in good faith paid for the paramount title, and the amount ex- 
 pended in defending his possession; provided such damages 
 shall in no case exceed the purchase money and interest. ^ 
 
 § 1287. Death of Covenantor. — Where the covenantor dies 
 before the discovery of the defect of title, and his personal rep- 
 resentatives procure a good title, and tender a deed to the cov- 
 antee, a court of equity will compel him to accept such 
 conveyance, and enjoin a judgment at law for a breach of the 
 covenant.^ 
 
 § 1288. Grantee's Covenant to Build. 
 
 Foryn No. S44. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That in consideration that the plaintiff would sell and con- 
 vey to the defendant a lot of land [describe it], for the sum of 
 
 dollars, the defendant, on the day of , 
 
 IS..., agreed that he would erect upon the premises a good 
 brick house, to be occupied as a dwelling, and that he would 
 not erect upon the premises any building that would be a 
 nuisance to the vicinity of the premises. 
 
 II. That the plaintiff did accordingly sell and convey to the 
 defendant said premises for said sum, but the defendant has 
 not erected a good brick house on the lot, to be occupied as a 
 dwelling ; but, on the contrary, has erected upon said premises a 
 wooden building, to be used as a slaughter-house. 
 
 III. That the defendant thereby has prevented other lots in 
 the vicinity, owned by the plaintiff, from becoming valuable to 
 the plaintiff, as they would otherwise have become, and has in- 
 juriously affected their condition, and hindered the plaintiff . from 
 selling tliem; to his damage dollars. 
 
 [Demand or Judgment.] 
 
 § 1289. Covenant to Build Party Wall.— A covenant 
 between A. and B., owners of adjoining premises, that A. may 
 build a party wall, half on each lot, and that when B. uses the 
 same he shall pay half its cost, is personal, and does not pass 
 with the land to A.'s grantee. ^ 
 
 § 1290. Covenant to Remove Buildings.— A covenant 
 entered into between owners of adjoining city lots, for them- 
 selves and all claiming under them, to the effect that all build- 
 
 1 McGary v. Hastings, ,S9 Cal 360. 2 Reese v. Smith, 12 Mo. 844. 
 
 » Block V. Isham, 28 Iiid. 37. 
 
§ 1293. COVENANTS. ' 613 
 
 ings erected on SHcb lots shall be set back a apecifled distance 
 from the line of the street on which the lots front, is a convenant 
 which equity will enforce between the parties to it, in favor of 
 one against the other, or in favor of one against any subsequent 
 grantee of either lot. ' Where the lessee stipulates to surrender 
 the premises at the end of the term, "reasonable use and wear 
 thereof, and damages by the elements, excepted," it does not 
 authorize the tenant to remove buildings erected by him on the 
 lot, even if there be evidence of an oral agreement to that effect.^ 
 
 § 1291. Special Damages. — In an action to recover dam- 
 ages for the breach of a contract, if the damages do not neces- 
 sarily arise from the breach complained of, so as to be implied 
 by law, the plaintiff must specify in his declaration the particu- 
 lar damage he has sustained, or he will not be permitted to 
 give evidence of it.^ 
 
 § 1292. Stipulation to Build.— "Where the lessee stipu- 
 lated to build a wharf, but specified no particular time, the 
 lessor, before the expiration of the tetrm, could have no legit- 
 imate cause of complaint.* If the lessee covenants to build on 
 the demised premises within a given tijme, the covenant is not 
 a continuing covenant, and if he fails to build, the receipt of 
 rent by the lessor accruing after the end of the time given is a 
 waiver of the forfeiture.® 
 
 § 1293. On Covenant against Nuisances — By Grantor 
 against Grantee. 
 
 Foim No. 345. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 the plaintiff, by his deed, conveyed to the defendant, for a 
 valuable consideration, as well as in consideration of the cove- 
 nant hereinafter mentioned, a lot of land. 
 
 II. That said deed contained a covenant on the part of the 
 defendant, the grantee therein, of which the following is a copy 
 [copy of covenant against nuisances] . 
 
 III. That said deed was delivered by the plaintiff, and by the 
 defendant duly accepted. 
 
 rv. That the defendant has erected, and suffered and per- 
 mitted to be erected, on said premises, a building occupied and 
 used as a slaughter-house. 
 
 v. That the offal and blood in and carried out from said 
 
 1 Roberts v. Lew, 3 Abb. Pr., N. « Bogert v. Burkhalter 2 Barb. 525. 
 
 <5 ai 1 ■ * Chipraan v. Bmenc, 5 Cal. 49. 
 
 i Jungerman v. Bovee, 19 Oal. 355. » Mc&ynn v. Moore, 25 Cal. 384. 
 SsTKB, Vol. I — 33. 
 
514 POEMS OF COMPLAINTS. § 1294. 
 
 slaughter-honse, and the offensive smell created thereby, is a 
 nuisance to the vicinity of the said premises and to the plaintiff, 
 
 whose house is adjoining; to his damage dollars. 
 
 [Demand op Judgment.] 
 
 § 1294. Alleged Nuisance — In such, an action it must be 
 shown what the alleged nuisance is, an(J how it has injured the 
 complainant.^ 
 
 § 1295. On a Continuing Covenant to IMaintain a 
 Fence. 
 
 Form No. S46. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., the plaintiff and 
 
 defendant then were the owners of lands adjoining, and then 
 made an agreement in writing, nnder their hands and seals, of 
 which the following is a copy [copy agreement] . 
 
 n. That the plainldff has duly performed all the conditions 
 thereof on his part. 
 
 IIL That the defendant did not, after the erection of said 
 fence, maintain the same and keep it in continual repair, but 
 
 on the contrary, in the month of , 18..., he suffered 
 
 the same to become dilapidated and broken down, and to re- 
 main in that cotiditiou from that time until the day of 
 
 ,18... 
 
 IV. That by means thereof the plaintiff suffered great damage 
 by the injury to his lands and crops thereon, and his garden 
 and fruit trees, by cattle coming through said dilapidated fence 
 from the defendant's land, upon the plaintiff's premises, and 
 that plaintiff was compelled to repair and rebuild said feace, in 
 order to protect his land from the damage caused by said cat- 
 tle; to the damage of the plaintiff dollars. 
 
 [Demand op Judgment.] 
 
 § 1296. Damages on Former Suit. — Where damages have 
 been recovered in a former action on the same cause, it is proper 
 to allege that fact, and tha,t damages now sued for accrued since 
 the commencement of the former action.^ 
 
 § 1297. Lessor against Lessee, on Covenant to Keep 
 Premises in Repair. 
 
 .Form No. $47. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 1 Bogart v. Burkhalter,2 Barb. 525. ages for resulting injury and forneo- 
 ^ Beckwith v. Griswold, 29 Barb, essary repairs combined, see Beach v. 
 291. As to the right to recover dam- Grain, 2 Comst. 86. 
 
§ 1300. COVENANTS. 515 
 
 I. That on the day of 18..., by a lease in 
 
 writing under their hands and seals, the plaintiff leased to the 
 defendant, and the defendant rented from the plaintiff for one 
 
 year from said date, at a monthly rent of a certain 
 
 dwelling-house in in the county of , the 
 
 property of the plaintiff. 
 
 II. That said lease contained a covenant of the part of the 
 defendant, of which the following is a copy [copy of the cove- 
 nant] . 
 
 III. That the defendant entered upon the premises and occupied 
 the same during the said term of one year, under said agreement ; 
 but that he has failed to keep the said house and premises in good 
 repair; but, on the contrary [state injuries to premises], and 
 the house and the premises otherwise injured by reason of the 
 neglect of the defendant to keep them in good repair, to the 
 damage of the plaintiff dollars. 
 
 [Dbmanb or Judgment.] 
 
 § 1298. Assigning Breach — In a de claration upon an 
 ao-reement, by which the lessor stipulated to let a farm, from 
 January 1, 1820 ; to remove the former tenants ; and that the 
 lessor should have the tenancy and occupation of the farm from 
 that day, free from all hindrance ; the assignment of the breach 
 was, that although specially requested on January 1st, the de- . 
 fendant refused and neglected to turn out the former tenant, who 
 was then, or had been, in the possession and occupancy of the 
 land, and to deliver possession thereof to the plaintiff. Such 
 allegation was held sufflcient.i Xo aver plaintiff's readiness and 
 offer, as made on the first day of January, was sufficient. They 
 need not be averred to have been made at the last convenient hour 
 on the day. Nor need they be averred to have been made on the 
 land.2 
 
 § 1299. Copy of Covenant. — ^The entire lease need not be set 
 out, only such covenants as relate to the breaches assigned.3 But 
 where the breach assigned relates to a violation of the obligation 
 arising out of the relation of landlord and tenant, state the hiring, 
 and set out a copy of the lease. The facts out of which the duty 
 or obligation arose ought to be stated.'* 
 
 § 1300. Covenants in Leases, Interpretation of .—A cove- 
 nant in a lease to be renewed indefinitely is in effect the creation 
 
 ' Carroll v, Peake, 1 Pet. 18. way, 14 Barb. 101 ; Congreve v. Mor- 
 
 s y*"°" "• •^'""*- ' gan, 4 Duer, 439 ; Seymour v. Mad- 
 
 »Sandfordv.Halsey,2Den.235. dox, 16 Q^^B. 326; S. C, 71 Eng. 
 
 * City of Buffalo v. Holloway, 7 N. Com. L. iib. 
 Y. 493; BuflFalo, City of, v. Hollo- 
 
516 PORMS OF COMPLAINTS. § 1301. 
 
 of a perpetuity, and is against the policy of law.^ In California 
 leases of agricultural lands for over ten years, where rent of 
 any kind is reserved, and of city lots for over twenty years, are 
 void. 2 Where a lease contains a covenant against assignment, 
 and the restriction is once removed, it operates as a removal 
 forever. 3 A 'covenant that if the lessor shall sell or dispose of 
 the demised premises, the lessee is to be entitled to the refusal 
 of the same, is a covenant running with the land.* A descrip- 
 tion in a lease as " a certain lot of land, etc., together with the 
 improvements thereon, consisting of the dwelling known as the 
 Hotel de France," is not an implied guaranty that the hotel 
 shall remain on the. lot during the term.^ A covenant to pay 
 rent quarterly is not a debt until it becomes due ; for before that 
 time the lessee may quit with the consent of the lessor, or he 
 may assign his term with his consent, or he may be evicted by 
 a title paramount to that of the lessor.^ A clause in a lease 
 exempting the tenant from liability to restore house in case of 
 fire, does not relieve from rent in case of such destruction.'' 
 
 § 1301. Damages by the Elements. — Those acts are to be 
 regarded as the acts of God which do not happen through human 
 agency, such as storms, lightnings and tempests. ^ Damages " by 
 the elements " are damages by the act of God.' 
 . § 1302. Exceptions in Covenant to Repair. — In an action 
 on a covenant in a lease to repair, followed by an exception in a 
 distinct clause, the complaint need not notice the exception.^" 
 
 § 1303. Forfeiture. — If the landlord, after default, accepts 
 the rent, he thereby waives the forfeiture, and can not after- 
 wards insist upon it, and much less can the tenant be allowed 
 to say that he is discharged from his covenants by his own de- 
 fault in the payment of rent.^^ In relation to leases for years, 
 as well as those for life, the happening of the cause of forfeiture 
 only renders the lease void as to the lessee. It may be affirmed 
 as to the lessor, and then the rights and obligations of both 
 parties continue without regard to the forfeiture. i" The tenant 
 can not insist that his own act amounted to a forfeiture. If he 
 could, the consequence would be, that in every instance of an 
 action on the covenant for rent, brought on a covenant with a 
 
 1 Morrison v. Rossignol, 6 Gal. 65. » Polaok v. Pioche, 35 Cal. 416. 
 
 » Civil Code, seca. 717, 718. » Id. 
 
 ' Chipman v. Emeric, 5 Cal. 49. i" Trustees of New Castle Common 
 
 *Laffan t. Naa;lee, 9 Cal. 662. v. Stevenson, 1 Houst. (Del.) 451. 
 
 ' Branger v. Manoiet, 30 Cal. 624. " Belloc v. Davis, 38 Cal. 250. 
 
 •Wood v. Partridge, 11 Mass. 488; i' Clarke v. Jones, 1 Den. 619; 
 
 cited in People v. A.rguello, 370»1. 524. Eede v. Farr, 6 AI. & S. 121 ; Belloo 
 
 ' Beach v. Farish, 4 Cal. 339. v. Davis, supra. 
 
^ ^^^^- COVENANTS. 517 
 
 proviso of forfeiture of non-performance, the landlord would be 
 defeated by the tenant showing his own default at a prior 
 period.^ ^ 
 
 § 1304. Lease as Evidence.-In California, leases for 
 more than one year must be in writing, but for a less term a 
 verbal lease is sufficient.^ In New York, the plaintiff may in- 
 troduce m evidence a lease not under seal, to prove that the 
 relation of landlord and tenant existed, and what was the rent 
 agreed upon.^ 
 
 V, ^ \^u^' ,^^°^"-lease.-One who takes an under-lease is 
 bound by all the covenants in the original lease. « So the sale 
 of spirits in bottles by a grocer, is a breach of a covenant that 
 premises shall not be used "as an inn, public house, or tap- 
 room, or for the sale of spirituous liquors." s An under-lease 
 of a whole term amounts to an assignment.^ 
 
 § 1306. Void Lease.— A lease for two years, executed by the 
 lessees and by an agent of the lessors, but who had no written 
 authority to do so is void.^ Where a clau^ of renewal in a lease 
 discloses no certain basis for ascertaining the rent to be paid, 
 such clause is void for uncertainty.s So a covenant " to let the 
 lessor have what land he and his brothers might want for cul- 
 tivation," is void for uncertainty. ^ 
 
 § 1307. Lessee against Lessor, for not Keeping Prem- 
 ises in Repair. 
 
 Form No. SiS, 
 
 [TiTLX ] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18.., by a lease made 
 
 between the plaintiff and the defendant, under their hands and 
 seals, the defendant leased to the plaintiff, and the plaintiff 
 
 rented from the defendant, the premises known as No 
 
 street, in , for months from that 
 
 date, at the monthly rent of dollars. 
 
 II. That said lease contained a covenant on the part of de- 
 fendant, of which the following is a copy : [Copy of covenant to 
 keep in repair.J 
 
 ' Doe dem. Bryan v. Banks, 4 Barn. * Civil Code, sec. 1624. 
 
 & Aid. 409; cited in Belloc v. Davis, 3 vVilliama v. Sherman, 7 Wend. 
 
 supra, referring also to Stuyvesant v. 109. 
 
 Davis, 9 Paige, 427 ; Canfield v. West- * Feilden v. Slater, L. K., 7 Eq. 523. 
 
 cott, 5 Cow. 270 ; and the distinction * id. 
 
 drawn between these cases and the • Beardman v. Wilson, L. E., 4 
 
 caseofHempv. Garland, 4 Q. B. 519; C. P. 57. • 
 
 S Gale & Davidson, 402 ; 46 Eng. Com. ' Polsom v. Perrin, 2 Cal. 603. 
 
 L. 619; see, also, vol. 2, "Landlord • Morrison v. Kossignol, 5 Cal. 65. 
 
 and Tenant." ' Chipman v. Emerio, 5 Cal. 49. 
 
518 FOKMS OF COMPLAINTS. § 1308. 
 
 III. That the plaintiff entered into possession of said prem- 
 ises under said lease, and used the same as a warehouse for 
 storing various articles of merchandise. 
 
 IV. That the defendant has failed to keep the premises in 
 repair, and has allowed [state neglect and special damage caused 
 thereby], to the damage of the plaintiff dollars. 
 
 [Dbmand or Judgment.] 
 
 § 1308. General Covenant to Repair. — If the embank- 
 ment of a natural reservoir, which is filled with water by un- 
 usual rain, is broken by a stranger, so that the demised prem- 
 ises are injured by the water, the injury is not the act of God or 
 of the elements, and the tenant is bound to repair, even if 
 damages by the elements or acts of Providence are excepted 
 from his covenant.^ A general covenant to repair is binding 
 upon the tenant under all circumstances, even if the injury is 
 from the act of God or a stranger.^ 
 
 § 1309. Implied Obligation. — Defendant entered upon, 
 occupied, and paid rejit for premises under a demise for a term 
 of years, made on behalf of a corporation, the owners, but not 
 sealed with the corporate seal. By this agreement defendant 
 undertook to make certain repairs; it was held that he was 
 bound by his stipulation. He had become tenant from year to 
 year, on the terms of the demise applicable to such tenancy. ^ 
 
 § 1310. Joint Lessors. — Where a lease was made by several 
 owners of a house, reserving rent to each one in proportion to 
 his interest, and there was a covenant on the part of the lessee 
 that he would keep the premises in good repair, and surrender 
 them in like repair, this covenant was joint as respects the les- 
 sors, and one of them (or two representing one interest) can 
 not maintain an action for the breach of it by the lessees.'' 
 
 § 1311. Lessee against Lessor, for not Completing 
 Building according to Agreement. 
 
 Fot-m No. S49. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at ,the 
 
 plaintiffs, under the firm name of A. B. & Co. , and the defendants, 
 under the firm name of C. D. & Co., entered into an agreement in 
 writing, of which agreement the following is a copy [copy agree- 
 ment to complete unfinished store, similar to adjoining store]. 
 
 1 Polack V. Pioche, 35 Oal. 416. 
 5 Id. 
 
 * Ecclesiastical Commissioners v. Merral, L. R., 4 Exch. 162. 
 
 * Calvert v. Bradley, 10 How. (U. S.) 680. 
 
I 1313. COVENANTS. 519 
 
 II. That after the making of said agreement, and on the 
 
 <Jay of , 18...., the defendants delivered, and the plaint- 
 iffs took possession of said building, under and in pursuance of 
 said agreement, and upon the faith aud assurance of the defend- 
 a.nts, and the full belief thereof that the said premises were fin- 
 ished in the same manner as the adjoining store, and in accord- 
 ance with the terms of said agreement. 
 
 III. That the said premises were not finished in the same 
 manner as the store adjoining at the time of making such agree- 
 ment, but, on the contrary [allege specifically the difference]. 
 
 IV. [Allege special damages] , to the damage of the plaintiff 
 
 dollars. 
 
 [Demand or Judgmbnt.] 
 
 § 1312. For Breach of Covenant of Quiet Enjoyment 
 
 i^gainst Landlord. 
 
 Form No. S50, 
 [Title.] 
 
 The plaintiff complains", and alleges : 
 
 I. That on the day of .,..., 18...., at , the 
 
 defendant, by deed [or lease under seal], let to the plaintiff, 
 and the plaintiff rented from the defendant, the house numbered 
 
 , street, , for the term of three years, 
 
 covenanting that the plaintiff should quietly enjoy possession 
 thereof for the said term. 
 
 II. That on, etc., one A. B., who was the lawful owner of the 
 said house, lawfully evicted the plaintiff therefrom, and still 
 withholds the possession thereof from him. 
 
 III. That the plaintiff was thereby prevented from continuing 
 the business of [merchandising] a,t the said place, and was com- 
 pelled to expend dollars in moving, and lost the cus- 
 tom of C. D., E. F., and G. H., and divers other persons, by 
 
 such removal. 
 
 [Demafd of Judgmbxt.] 
 
 § 1313. Covenant Defined.— The breach of the covenant 
 
 for quiet enjoyment is an actual disturbance of possession by 
 
 reason of some adverse right existing at the time of the making 
 
 the covenant ;i not a tortious disturbance, nor a lawful dis. 
 
 turbance by an adverse right subsequently acquired.^ Where 
 
 a lease contains an express covenant for quiet enjoyment 
 
 *' without molestation or disturbance of or from the lessor, his 
 
 successor or assigns," no other or further covenant in respect 
 
 1 2 Greenl. on Ev. 239. an entry by the landlord, see Sedg- 
 
 ' Greenby v. Wilcox, 2 Johns. 1 ; wick v. HoUenbaok, 7 Johns. 376. 
 Grannls v. Clark, 8 Cow, 36. As to 
 
520 FOKMS OP COMPLAINTS. § 1314. 
 
 to enjoyment will be implied.^ Under the civil code of Cali- 
 fornia a covenant for quiet enjoyment against all persons law- 
 fully claiming the same, is implied in all letting for hire.' 
 
 § 1314. Eviction. — Without an eviction there is no breach 
 of the covenant for quiet enjoyment ; but it is not necessary 
 that the eviction should be by process of law, consequent on a 
 judgment. 3 The covenant is brojken whenever there has been 
 an involuntary loss of possession by reason of the hostile 
 assertion of an irresistible paramount title.* 
 
 § 1315. Necessary Averments. — The complaint must 
 state the particulars as to the person or persons who prevented 
 him and by what right, and show a title at or before the date 
 of the lease declared on.^ 
 
 § 1316. Responsibility of Landlords.— Upon a covenant in 
 a lease for quiet enjoyment, the lessor is responsible only for his 
 own acts and those of others claiming by title paramount to tlie 
 lease.* In such a covenant no set formula is requiied. Any 
 language which expresses the intent is sufficient.' 
 
 CHAPTER IV. 
 
 EMPLOYMENT. 
 
 § 1317. For Breach of Contract to Employ. 
 
 Form No. S51. 
 [TiTLB.] 
 
 The plaintiff complains, and alleges : 
 
 III. That on the day of , 18 ...., at , 
 
 the plaintiff and defendant mutually agreed that the plaintiff 
 should serve the defendant as [an accountant], and that* the 
 defendant should employ the plaintiff as such for the term of 
 [one year, or as the case may be] , and pay him for his services 
 dollars monthly [or as the case may be]. 
 
 II. That on the day of , 18..., the plaintiff 
 
 entered upon the service of the defendant under said agree- 
 ment, and has ever since been, and still is, ready and willing to 
 continue in such service. 
 
 III. That on the day of 18.., the defend- 
 ant wrongfully discharged the plaintiff, and refused to permit 
 him to serve as aforesaid, though the plaintiff then and there 
 
 J Burp V. Stenton, 43 N. Y. 462. ' Grannis v. Clark, 8 Cow. 86. 
 
 S«o. 1927. « Playler V. Cunningham, 21 Cftl. 
 
 ' McGary v. Hastings, 39 Cal. 360. 229. 
 
 * -td. ' Levitzky y. Canning, 38 Cal. 2fc». 
 
§ 1321. EMPLOYMENT. 521 
 
 offered to continue in said service, and perform said agreement 
 
 on his part, to the damage of the plaintiff dollars. 
 
 [Dbmand or Judgment.] 
 
 § 1318. Discharge of Employee. — ^Where no definite 
 period of employment is agreed upon between master and 
 servant, the master has a right to discharge the servant at any- 
 time, and to eject him by force if he refuses to leave after re- 
 ceiving notice to that effect, but no more force than is neces- 
 sary.^ But where a contract for services is made for a fixed 
 period, if the employer discharge the servant without good 
 cause, the servant may recover the stipulated wages. ^ 
 
 § 1319. Entire Contract. — A distinction exists between 
 contracts for specific work and contracts for the hire of clerks, 
 agents, laborers, domestic servants, etc. , for a specified period. 
 In the latter, if the person employed is improperly dismissed 
 before the term of service has expired, he is entitled to recover 
 for the whole term, unless the defendant can show, by way of 
 defense, that the plaintiff was actually engaged in other profit, 
 able service during the term, or that such employment was 
 offered to him and rejected.* A contract to grade a section of 
 a railroad is an entire contract, and a condition in it for pay- 
 ments from time to time, as the work progresses, does not make 
 it severable.^ If the contractor, in such case, is prevented by 
 his employer from completing his whole contract, he is justified 
 in abandoning it, and may recover a fair compensation for the 
 work performed.* 
 
 § 1320. Measure of Damages.— The increase of damages 
 is not the entire contract price, but a just recompense for the 
 actual injury which the party has sustained." 
 
 § 1321. OSer to Perform. — The rejection of the offer to 
 perform services excuses the performance as a condition prece- 
 dent, but does not release the plaintiff from the obligation to 
 perform so long as he insists upon the agreement.'' When the 
 plaintiff has been wrongfully discharged, this averment, coupled 
 with an allegation of readiness to serve, is all that is necessary. 
 He need not aver an offer to serve.s -por if any one is bound to 
 do a thing, he must either do it or offer to do it, and if no ob- 
 jections are made, he must show that he made a tender in a 
 
 1 De Briar v. Minturn, 1 Cal. 450. » Cox v Western Pacific E. K. Co., 
 
 :SS;-.^Mo^ir^'Sson '':|i-v.M.si.lialI.enan. 
 
 Ev. 273; sec. Jol a. „ , „., t> i a- t ra 
 
 « Cox V. W. P. E. E. Co., 47 Cal. 87. Dowl. & L. 60. 
 
522 FORMS OF COMPLAINTS. § 1322. 
 
 regular manner ; but this is not necessary if the other party by 
 his conduct dispenses with a tender, as by a previous refusal to 
 accept.^ 
 
 § 1322. Rescission of Contract. — If the servant willfully 
 desert the employer's service, the employer is not bound to re- 
 ceive him again, and he can not recover for past services.^ 
 Plaintiff agreed to work seven months for defendant, at ten dol- 
 lars per month, unless one or the other should become dissatis- 
 fied. He worked six months and a half, and left, alleging that he 
 had business to attend to : Held, that he could not recover. ^ 
 
 § 1323. The Same— Where the Employment Never 
 took Effect. 
 
 Form No. S5Z. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges: 
 
 I. [As in last form.] 
 
 II. That on the day of , 18 .., at , 
 
 the plaintiff offered to enter upon the service of the defendant, 
 and has ever since been ready and willing so to do. 
 
 III. That the defendant refused to permit the plaintiff to enter 
 upon such services, or to pay him for his services, to the damage 
 of the plaintiff dollars. 
 
 [Demand of Judgmbnt.] 
 § 1324. For Breach of Contract to Serve. 
 
 Fortn No. 353, 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18...., at , the 
 
 plaintiff and defendant mutually agreed that the plaintiff should 
 
 employ the defendant at [a monthly] compensation of 
 
 dollars, and that the defendant should serve the plaintiff [as book- 
 keeper] for the term of [one year]. 
 
 II. That the plaintiff has always been ready and willing to per- 
 form his part of the said agreement [and on the day of , 
 
 18..., offered so to do]. 
 
 III. That the defendant refused to serve the plaintiff as afore- 
 said, to his damage dollars. 
 
 [Demand of Judgment.] 
 
 § 1325. Age of Apprentice. — The master of an apprentice 
 is concluded by the recital in the indentures of the age of the 
 boy.^ And a stranger to the indentures can not take advantage 
 
 • Blight V. Ashley, Pet. C. Ct. 15. s Monell v. Burns, 4 Den. 121. 
 2 Faxon v. Mansfield, 2 Mass. 147 ; * McCutohin v. Jjiniieson, 1 Cranch 
 Lantryv. Parks, 8 0ow. 63. C. Ct. 348. 
 
§ 1331. EMPLOYMEN'T. 523 
 
 of the omission to insert the age of «he apprentice in the inden- 
 tures. ^ 
 
 § 1326. Assignment of Indentures.— A master can not 
 assign the indentures of an apprentice.* And therefore a note 
 g.ven for such an assignment, being based upon a void contract, 
 can not be recovered. ^ 
 
 § 1327. Apprentice's Wages.— The master is entitled to 
 his apprentice's wages when hired by another, whether the per- 
 son hirinof knew or not that he was an apprentice.* The right 
 of the master to the earnings of the apprentice, in the way of 
 his business, or of any other business which is substituted for it, 
 •does not extend to his extraordinary earnings, which do not 
 interfere with the profit which the master may legitimately de- 
 rive from his services. ^ 
 § 1328. By the Master, against the Father of Apprentice. 
 
 [Form M. 3S4.} 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That on the day of 18..., at , one A. 
 
 B., with the consent of the defendant, made an indenture under 
 his hand and seal, a copy of which is hereto annexed. 
 
 II. That at the same time and place, the defendant entered 
 into an agreement, under his hand and seal, a copy of which is 
 also hereto annexed [or state the tenor of these covenants] . 
 
 III. That on the day of , 18..., the said A. B. 
 
 willfully absented himself from the service of the plaintiff, and 
 continues so to do, to his damage dollars. 
 
 [Demand op Judgment.] 
 [Annex copy of indenture.] 
 
 § 1329. Breach, how Alleged. — The allegation that the 
 defendant had not used any endeavors to have the apprentice 
 serve, and refused to do anything, suflSoiently showed a breach.^ 
 
 § 1330. Covenants. — The usual covenants in an appren- 
 tice's indenture are independent, and the plaintiff need not 
 aver performance on his part.'' 
 
 § 1331. Liability of Parent.— That the father of an 
 apprentice m«y be held liable upon the indenture, by reason 
 Of his signature and seal, although there are no express words 
 
 iHelnecke v. Kawlinga, 4 Cranch Munsey v. Goodwin, 8 N. H. 272; 
 
 C Ct. 699 Conant v. Kaymond, 2 Aik. 243. 
 
 '"Handyv. Brown, 1 Cranch O.Ct. * Mason v. The "Blaireau," 2 
 
 610 Cranch, 240. 
 
 3 Walker v. Johnson, 2 Cranch C. « ^an Porn v. Toung, 18 Barb. 286. 
 
 Ct. 203. Phillips V. Clift, 4 Hurl. & Nor. 
 
 * James v. Le Koy, 6 Johns. 274; 167. 
 
524 FOEMS OF COMPLAINTS. § 1332, 
 
 of covenant binding him.^ If a son remains with and per- 
 forms services for his father after attaining his majority, the 
 law will not, ordinarily, imply a promise on the part of the 
 father to pay for his labor ; but if the circumstances show that 
 the expectation of both parties was that he should be com- 
 pensated, the promise will be implied, and he may recover a 
 quantum meruit.^ 
 § 1332. By the Apprentice, against the Maetelr. 
 
 Form No. S55. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 the defendant entered into an agreement with the plaintiff, and 
 his father Benjamin Eider, under his and their hands and seals, a 
 copy of which Is hereto annexed. 
 
 II. That the defendant has not [instructed the plaintiff in 
 
 the business of , or state any other breach], to hia 
 
 damage dollars. 
 
 [Demand op JuBaMBNT.] 
 
 § 1333. Kight of Action. — An apprentice may sue a master 
 for not teaching him his trade, although no indentures were 
 executed, the master having taken him under an order of the 
 court.' 
 
 § 1334. For Breach of Contract to Manufacture Goods. 
 
 Form M. S56. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of .......... 18..., at , the 
 
 defendant promised and agreed with the plaintiff to manufacture 
 and deliver to the plaintiff 400 dozen woolen hose, at the price 
 
 of dollars for each dozen, for which the plaintiff agreed 
 
 to pay the.defendant dollars. 
 
 II. That the plaintiff duly performed all the conditions of said 
 agreement on his part. 
 
 III. The defendant did manufacture said hose under said 
 agreement, but manufactured them in an unskillful and unwork- 
 manlike manner, to the damage of the plaintiff 
 
 dollars. 
 
 [Demand or Judgment.] 
 
 § 1335. For Refusing to Accept Manufactured Goods. 
 
 Form No. 557. 
 [Title.] 
 
 I. That on the day of 18..., at , the 
 
 'Woodrow V. Coleman, 1 Cranch 'Friermuth v.Friermuth, 46C81. 42. 
 C. Ct. 171. » Adams v. Miller, 1 Cranch C. Ct. 5. 
 
^ 1336. EMPLOYMENT. 
 
 525 
 
 ■defendant contracted with the plaintiff to make for him [describe 
 ■what], and agreed to pay for the same, upon delivery thereof, 
 dollars. 
 
 II. That the plaintiff made the said goods, and on the 
 
 <iay of , 18..., offered to deliver the same to the 
 
 defendant, and has ever since been ready and willing to deliver 
 them, and has otherwise duly performed all the conditions of 
 aaid contract on his part. 
 
 III. That the defendant has not accepted or paid for the 
 «ame. 
 
 [DbMAND OJ JtTDQMBKT.] 
 
 [Copy of Contract.] 
 § 1336. On a Promise to Manufacture Raw Material 
 iato Merchantable Goods. 
 
 Form No. 358. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 the plaintiff delivered to the defendant [sides of 
 
 leather], of the value of dollars, to be manufactured 
 
 Into [harness], for a reasonable compensation, to be paid to the 
 defendant by the plaintiff. 
 
 II. That the defendant, in consideration thereof, undertook to 
 manufacture the said [harness], or cause it to be manufactured 
 from the [leather], and to deliver the same to the plaintiff 
 when so manufactured. 
 
 III. That the said [leather] was so manufactured into [har- 
 ness] by the defendant before the day of , 18..., 
 
 on which day the plaintiff demanded the same of the defendant, 
 and then and there offered to pay him a reasonable compensation 
 for manufacturing the same. 
 
 [Or, III. That the defendant did not manufacture said 
 {leather) into (harness), although a reasonable time therefor 
 ■elapsed before this action.] 
 
 IV. That the defendant, then and ever since, refused and 
 neglected to deliver the same, and has converted them to his 
 own use. 
 
 [Or, IV. That the defendant manufactured said (leather) in 
 fluch a negligent .<ind unskillful manner, that the said (harness) 
 was of no value.] 
 
 [DsMANn 07 JCDaMBNT.] 
 
526 FORMS 'OF COMPLAINTS. § 1337. 
 
 CHAPTER V. 
 
 INDEMNITY. 
 
 § 1337. By Retiring Partner, on the Remaining Part- 
 ner's Promise to Indemnify Him against Damage. 
 
 Form No. 359. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18.... at , the 
 
 plaintiff and defendant, being partners in trade under the firm 
 name of A. & B., dissolved the said partnership, and mutually 
 agreed that the defendant should take and keep all the partner- 
 ship property, pay all debts of the firm, and indemnify the 
 plaintiff against all claims that might be made upon him, on 
 account of any indebtedness of the said firm. 
 
 II. That the plaintiff duly performed all the conditions of the 
 said agreement on his part. 
 
 III. That on the day of , 18...., a judgment was 
 
 recovered against the plaintiff and defendant by one John Doe, 
 
 in the court of this state, upon a debt due from the 
 
 said firm to the said Doe, and on the day of , 
 
 18..., the plaintjff paid dollars in satisfaction of the 
 
 same. 
 
 IV. That the defendant has not paid the same to the plaintiff, 
 nor any part thereof. 
 
 [Demand of Judgment.] 
 
 § 1338. Definition. — Indemnity is a contract by which one 
 engages to save another from a legal consequence of the conduct 
 of one of the parties, or of some other person.^ 
 
 § 1339. Essential Averments — Damage— Demand. — In 
 actions upon an ordinary contract to indemnify against loss or 
 damage, the plaintiff must aver actual damage ; and if he has 
 paid under a judgment this should be stated, with the date of 
 the judgment, the court in which it was rendered, and the 
 amount of the judgment ; while on an agreement to save from 
 liability, actual damage need not be averred ;^ but consequential 
 damages must be specially alleged. ^ Thus in an action on a bond 
 of indemnity, the plaintiff must set out wherein he has been 
 damnified. A general averment of loss is insufficient.'* But 
 
 1 Cat. Civil Code, sec. 2772. 2 Johns. Cas. 52 : Holmes v. Weed, 
 
 2 McGoe V. Roen, 4 Abb. Pr. 8. 19 Barb. 128. 
 
 8 Swan's PI. 381. For allegations * Coe v. Eankin, 5 McLean, 354. 
 in such actions, see AUare v. Ouland, 
 
§ 1342. INDEMNITY. 527 
 
 ■where defendant agreed to (indemnify the plaintiff against loss 
 on a sale of stock, on demand, an action for the deficiency may 
 be maintained at any time after the sale, without a previous de- 
 mand.^ So, also, in an action on a bond to indemnify the plaint- 
 iff against damages he might sustain by the levy of an attach- 
 ment, the plaintiff alleged the recovery of a judgment against 
 plaintiff for damages against which he was indemnified, and the 
 payment of said judgment. Th^e. averment of payment was ma- 
 terial to plaintiffs right to recover for the amount of such judg- 
 ment.^ The averment that the plaintiff necessarily incurred ex- 
 penses, is equivalent to the allegation that he incurred necessary 
 expenses. 3 And the complaint must show how and in what man- 
 ner these necessary expenses were incurred, naming the court in 
 the allegation.* But the failure to make such an averment is 
 not fatal ; it is at most but an irregularity. ^ 
 
 § 1340. Attachment — Release from. — Recovery may be 
 had on a bond given to a sheriff, to release property from attach- 
 ment, to the extent of the penalty.^ Such bond is not a statutory 
 undertaking, and is valid at common law. Execution against 
 the judgment debtor is not a condition precedent to suit on the 
 bond, and any mistake in the recital as to the amount for which 
 attachment issued may be explained and corrected by parol.^ 
 It takes effect at the time of its delivery.® Such a bond is for 
 the benefit of the plaintiff who may sue upon it, and if the 
 sheriff takes a sufficient statutory undertaking, he has no further 
 responsibility.* The bond ^ven to release property attached, 
 only releases it from the custody of the sheriff, and is not an 
 actual substitution of security, compelling the plaintiff to pro- 
 ceed upon the bond alone to collect his payment.^" An indem- 
 nity bond to the sheriff to retain property seized under attach- 
 ment, is an instrument necessary to carry the power to sue into 
 
 effect." 
 
 § 1341. Administrator's Bond.— "Where an administrator 
 makes premature payment of a claim, and takes a bond of in- 
 demnity, such a bond would be held legal and binding. ^^ 
 
 § 1342. Execution, Seisure under.— An agreement to in- 
 demnify a sheriff for seizing property under execution is valid, if 
 the parties are in good faith seeking to enforce a legal right.»3 
 
 I Halleck V. Moss, 22 Cal. 266. » Buffendeau v. Brooks 28 0?' 641. 
 
 :|^urv!-Foote: J mnlV - Davidson v. Dallas, 8 Cah2|7 
 
 » T3^i,„«;i ... •fTiii 7 r.n-ar 434 '^ Comstock V. Breed, U Oal. Jaa. 
 
 e S;V•Val^3°c;' 653. - Stark v. Eaney. 18 Cal. 62^ 
 ' Palmer v. Vance. 13 Cal. 553. 
 
528 FORMS OP COMPLA.INTS. § 1343. 
 
 § 1343. Conditions Precedent. — If the obligors undertake 
 to indemnify the sheriff for any damage by reason of any costs, 
 suits, judgments, and executions that shall come or be brought 
 against him, the sheriff can not maintain an action on the bond 
 because judgment has been rendered against him, but must first 
 pay the judgment. *• If the sheriff is indemnified for the act alone, 
 and suit is brought against him and judgment recovered, the 
 sheriff can not afterwards have judgment on the indemnity bond 
 against the sureties upon five days' notice unless he gave the 
 sureties written notice of the action brought against him.^ 
 
 § 1344. Interpretation. — In the interpretation of a con- 
 tract of indemnity the following rules are to be applied, unless 
 a contrary intention appears: 1. Upon an indemnity against 
 liability expressly, or in other equivalent terms, the person 
 indemnified is entitled to recover upon becoming liable; 2. 
 Upon an indemnity against claims, or demands, or damages, or 
 costs, expressly, or in other equivalent terms, the person in- 
 demnified is not entitled to recover without payment thereof; 
 3. An indemnity against claims or demands, or liability, ex- 
 pressly, or in other equivalent terms, embraces the costs of 
 defense against such claims, demands, or liability incurred m 
 good faith, and in the exercise of a reasonable discretion; 4. 
 The person indemnifying is bound, on request of the person 
 indemnified, to defend actions or proceedings brought against 
 the latter in respect to the matters embraced by the indemnity, 
 but the person indemnified has the right to conduct such de- 
 fense if he chooses to do. so ; 5. If, after request, the person 
 indemnifying neglects to defend the person indemnified, a 
 recovery against the latter, suffered by him in good faith, 'is 
 conclusive in his favor agafnst the former; 6. If the person in. 
 demnifying, whether he is a principal or surety in the agree- 
 ment, has not reasonable notice of the action or proceeding 
 against the person indemnified, or is not allowed to control its 
 defense, judgment against the latter is only presumptive evi- 
 dence against the former; 7. A stipulation that a judgment 
 against the person indemnified shall be conclusive upon the 
 person indemnifying, is inapplicable if he had a good defense 
 upon the merits, which by want of ordinary care he failed to 
 establish in the action. ^ An indemnity against the acts of a 
 certain person applies also to those of his agent.* 
 
 ' Lott V, Mitchell, 82 Cal. 23. * California Civil Code, gee. 2775. 
 
 • DenniB v. Packard, 28 Cal. 101 ; See also, as to contracts of indem- 
 
 see Code 0. P., sec. 1055. nity and rules in reference thereto, 
 
 » California Civil Code, sec. 2778. Theobald's Principal and Surety; 
 
§ 1348. INDEMNITY. 629 
 
 § 1345. Injunction. — A bond of indemnity, executed in pur- 
 suance of articles of agreement, may in equity be restrained so 
 as to conform to those articles. But a departure from the articles 
 must be clearly shown. ^ Thus, under an agreement to indem- 
 nify a retiring partner gainst demand upon the concern, and a 
 bond of indemnity reciting that it was agreed to indemnify 
 against debts, including those due from others which had been 
 assumed, it was held, that the bond might be enforced.* 
 
 § 1346. Joint and Several Liability. — One who indem- 
 nifies another against an act to be done by the latter, is liable 
 jointly with the person indemnified, and separately to every 
 person injured by such act.^ 
 
 § 1347. Liability of Sureties. — Where the sheriff, under a 
 writ of attachment, is about to levy upon the property of a firm, 
 and a bond is executed by third parties as sureties, conditioned 
 to keep harmless and indemnify the sheriff against all damages 
 and expense he may be put to by reason of the non-seizure of 
 the property, and "to pay whatever judgment may be rendered 
 against said defendants;" and judgment was obtained against 
 one only of the defendants — plaintiffs failing on the trial to 
 prove the other to be a partner — the sureties are liable on the 
 bond fpr the amount of the judgment; that the bond, though 
 not strictly an undertaking under the statute, conforms sub- 
 stantially to its requirements, and must be read by the light of 
 the statute, and interpreted according to the intention of the 
 parties.'* Such bond will be presumed to have been executed 
 with reference to the provisions of the statute : and will be held 
 such a security, and the fact that judgment was obtained against 
 one only of the defendants, satisfies the condition to "pay 
 whatever judgment may be rendered against said defend- 
 ants."5 
 
 § 1348. Liability, Discharge from. — "Whenever the liabil- 
 ity of the sureties is fixed by the rendition of a judgment in 
 favor of the plaintiff, the sureties have a right to tender the 
 plaintiff the full amount of the judgment, and if he refuses to 
 receive the same, the sureties are discharged from their obliga- 
 tion on the undertaking.6 Such tender is equivalent to payment 
 or release by said plaintiff. The sureties are likewise discharged 
 where the principal tenders to the plaintiff the full amount of 
 
 Chitty , Jr., Cont., 5th Am. ed., 56 ; « Finley v. Ljrnn, 6 Oranoh, 238. 
 
 Stone^ V. Hooker, 9 Cow. 154 ; Whit- « Oal. Civil CTode, sec. 2777 
 
 akerv. Smith, 4 Pick. 83; Chace, * Heynemann v. Eder, 17 Cal. 433. 
 
 Adm'r etc., V. Hinman, 8 Wend. 452. ^ Id. i,- oRri„i ksk 
 
 I Finley v. Lynn, 6 Cranoh, 238. » Hayes v. Josephi, 26 Cal. 636 
 BsTEB, Vol. 1—34. 
 
530 FOEMS OP COMPLAINTS. § 134a. 
 
 his debt and costs, and the plaintiff refuses to receive the ten- 
 der.i 
 
 § 1349. Notice to Sureties. — If an action be brought 
 against a sheriff for an act done by virtue of his office, and he 
 give written notice thereof to the sureties on his bond of in- 
 demnity received by him, the judgment recovered therein shall 
 be conclusive evidence of his right to recover against such sure- 
 ties ; and the court or judge in vacation may, on motion, upon 
 notice of five days, order judgment to be entered up against 
 them for the amount so recovered, including costs.^ The pro- 
 vision of the practice act is founded upon the principle that the 
 action, under such circumstances, is in substance against the 
 indemnifier, the real party in interest, and that he has in that 
 action an opportunity to make any defense that may exist.^ 
 Where, therefore, the indemnifier has been so notified, he can 
 not maintain a bill in equity to set aside the judgment obtained 
 therein, except under such conditions as would have enabled 
 him to maintain it, had he been the nominal as well as real 
 party defendant to the first action.* 
 
 § 1350. Remedy. — "When an indemnity bond is given to a 
 sheriff to hold him harmless, his remedy at law on the bond is 
 clear for the amount of any such judgment, whether he be 
 solvent or not, or whether his official sureties could be held or 
 not.5 
 
 § 1351. Sale under Execution. — A bond given to a sheriff 
 to indemnify him for any loss or damage he may sustain by sell- 
 ing property levied on by him, by virtue of an execution, in 
 violation of an order enjoining its sale, is void, because an un- 
 lawful contract. 8 
 
 § 1352. Trespass. — An agreement to indemnify a party for 
 a willful trespass about to be committed, is void, as against 
 public policy.'' 
 
 § 1353. Void Contract. — An agreement to indemnify a per- 
 son against an act thereafter to be done, is void, if the act be 
 known by such person, at the time of doing it, to be unlawful.^ 
 But an agreement to indemnify against an act already done, is 
 valid, even though the act was known to be wrongful, unless it 
 was a felony .9 
 
 1 Curiae v. Packard, 29 Cal. 194. « Buffendeau v. Brooke, 28 Oal. 
 
 ^ California Code Civ. Proc, sec 641. 
 1055. ^ Stark v. Eaney, 18 Cal. 622. 
 
 8 Dutil V. Pacheco, 21 Cal. 438. » Civil Code, sec. 2773. 
 
 * Id. » Id., sec. 2774. 
 
 » White V. Pratt, 13 Cal. 521. 
 
§ 1354. INDEMNITY. 531 
 
 § 1354. Against Sureties in Partner's Bond of Indemnity 
 against Liability. 
 
 Form No. S60. 
 
 [TlTLI.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18.., the plaintiff 
 
 and one A. B. were copartners in business as merchants, in the 
 city of , under the firm name of A. B. & Co., and there- 
 after on the same day they dissolved their connection as such 
 copartners, and thereupon entered into an agreement in writing, 
 of said date, duly executed and signed by them respectively, 
 whereby it was, among other things, mutually agreed that the 
 said A. B. should retain and keep to his sole and separate use 
 all and singular the partnership property of every name and 
 character, whether in action or possession, and wheresoever 
 situated ; and in consideration thereof, that he should pay and 
 discharge the debts so due by the said firm, to the extent of 
 
 dollars, from his own individual resources, and to the 
 
 like extent hold the plaintiff harmless and indemnified, of and 
 from and by reason of any and all claims or liabilities due by 
 said firm, a copy of which agreement is hereto annexed as a 
 part of this compaint, marked " Exhibit A." 
 
 II. That the defendants, in consideration of said agreement 
 between said A. B. and the plaintiff, and of one dollar to each 
 of them then paid by the plaintiff, entered into an agreement 
 executed and signed by them respectively, a copy whereof is 
 annexed hereto as a part of this complaint, and marked " Ex- 
 hibit B," whereby they severally undertook and bound them- 
 selves to the plaintiff, for the faithful performance by the said 
 A. B. of the covenants in said agreement, to be kept and per- 
 formed on said A. B.'s part. 
 
 III. That -said A. B., under his said agreement with the 
 plaintiff, retained and kept to his sole and separate use all the 
 partnership property of the firm ; but has not, pursuant thereto, 
 paid and discharged the debts due by said firm to the extent 
 aforesaid ; and has failed to hold this plaintiff harmless and in- 
 demnified to the like extent, of and from and by reason of any 
 claims or liabilities due by the said firm. 
 
 IV. That at the time of the dissolution of the partnership, 
 and of the making of the agreement aforesaid, the said firm was 
 
 indebted to firm of R. & Co., of , for merchandise 
 
 sold and delivered, in the sum of dollars, which was 
 
 then due and payable ; which indebtedness formed a part of the 
 dollars, debts of A. B. & Co., and was included 
 
532 FORMS OF COMPLAINTS. § 1355. 
 
 among such debts, to be paid by the said A. B., under his 
 agreement aforesaid with the plaintiff; but the said A. B., al- 
 though requested, would not pay E & Co. their said demand 
 or any part thereof. 
 
 V. That on the day of last, £» action was com- 
 menced by the plaintiff in the [state the court] , to recover upon 
 and by virtue of the aforesaid agreement, from the said A. B., 
 the said amount, with interest, then due by the said A. B. & 
 
 Co. to the said firm of R. & Co., amounting to dollars, 
 
 and interest thereon ; and such proceedings were thereupon 
 had that on the day of , 18...., judgment was ren- 
 dered in such action in favor of the plaintiff against the said 
 
 A. B. for the sum of dollars, including costs; upon 
 
 which judgment execution was at once issued against the said 
 A. B. and returned wholly unsatisfied. 
 
 VI. That the plaintiff has paid dollars, the amount 
 
 of said judgment, and other necessary costs, disbursements, 
 and attorney's fees therein, amounting to dollars. 
 
 VTI. That he has demanded from the defendants payment of 
 the said amounts, but they have not paid the same. 
 [Demand of Judgment.] 
 [Annex copies of agreements, marked Exhibits " A " and " B."] 
 
 § 1355. Notice of Debt. — That the defendants had notice 
 of the debt need not be alleged, as it is matter which lies prop- 
 erly in the knowledge of the defendant, especially if it is 
 averred that the books and papers of the firm were transferred to 
 the defendants.^ 
 
 § 1356. Partnership Indemnity. — "Where a partner, in 
 retiring, covenants to indemnify his successors against all lia- 
 bilities connected with the business in which the parties had 
 before been engaged, the covenant did not apply to the liabil- 
 ities incurred by the plaintiff while he carried on the business 
 on his own account.^ 
 
 § 1357. Surety against Principal, for Indemnity 
 against Liability as Surety. 
 
 Form No. S61 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , in 
 
 consideration that the plaintiff would become surety for him, 
 by executing an undertaking, of which a copy is annexed as a 
 part of this complaint, marked " Exhibit A," agreed with the 
 plaintiff that he would indemnify him, and save him harmless 
 
 1 Clough V. Hoffman, 6 Wend. 499. » Haskell v. Moore, 29 Cal. 487, 
 
§ 1359. INDEMNITY. 533 
 
 from and against all damages, costs, and charges which he might 
 sustain by reason of his becoming surety as aforesaid. 
 
 I»I. That the plaintiff, oonflding in such promise of the de- 
 fendant, executed and delivered such undertaking. 
 
 III. That the defendant did not indemnify the plaintiff, and 
 save him harmless from such damages, 6osts and charges; but, 
 
 on the contrary, the plaintiff, under a judgment, on the 
 
 dayof 18..., rendered against him by the 
 
 court, at , in an action brought against him upon said 
 
 undertaking, paid, on the dayof , dol- 
 lars to , in satisfaction and discharge of said under- 
 taking, and also necessary costs and expenses in said action and 
 
 on account of said undertaking, to the amount of 
 
 dollars. 
 
 IV. That notice thereof was given to the defendant, and that 
 the plaintiff duly performed all the conditions of the said agree- 
 ment on his part. 
 
 V. That the defendant has not paid the same to the plaintiff. 
 
 [Demand of Judombnt.] 
 [Annexcopy of undertaking, marked "Exhibit A."] 
 § 1358. Right of Surety. — Where Jones, for the accom- 
 modation of Smith, indorses a note to Stiles, and Smith delivers 
 an article of property to Jones to indemnify him against his lia- 
 bility on the indorsement. Stiles can in equity avail himself of 
 the security for the satisfaction of the note. Jones merely seeks 
 to indemnif V himself ; he is not to make profit out of the in- 
 dorsement. He is personally liable to pay the whole debt, 
 whether he receives anything from the principal or not, and it 
 ia his duty to pay it ; and as Jones holds property in his hands, 
 belonging to his principal, expressly for his indemnity, if it is 
 applied to the payment of the debt, both the duty of himself 
 and his principal is discharged, and the indemnity at the same 
 
 time satisfied. 
 
 § 1359. When Indemnitor a Surety.— Where one, at the 
 request of another, engages to answer in damages, whether 
 liquidated or unliquidated, for any violation of duty on the part 
 of the latter, he is entitled to be reimbursed in the same man- 
 ner as a surety, for whatever he may pay. 
 
 1 iror, nr^on V Darham 35Cal. 145. 4 Taunt. 464; Straov v. Bank of Eng- 
 A yth^lvhl\oreorer costs paid land, 19 Eng. Com. L. 338 ; Hubbly v. 
 Ab to tl-e right to recover costs p p^own, 16 /ohns. 70 ; Pulton Bank v. 
 
 tI? PorsthiC ed SolICenp^^^^^^ Stafford, 2 Wend. 484; Everingham 
 Jr. Cont., 5th Am. ea., oui i^ave^ P Langton , 2 McCord, 159. 
 
 liTpet'si* HamUtonI! Schoreld, « Caf. Civil Code, sec. 2779. 
 17 Eng. Com. L. 457 ; Jones v. Brooke, 
 
534 FOKMS OF COMPLAINTS. § 1360. 
 
 § 1360. Sub-tenant against his Immediate Lessor. 
 
 Form No. 862. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That at the times hereinafter mentioned, the defendant held 
 certain premises [describe them], as tenant thereof to one A. B., 
 
 at a monthly rent of dollars, payable by the defendant 
 
 to said A. B. on the [state time of payment]. 
 
 II. That on the day of , 18.., in consider- 
 ation that the plaintiff then became the tenant to the defendant 
 
 of said premises, at a monthly rent of dollars, payable 
 
 to him by the plaintiff, the defendant gave to the plaintiff an 
 agreement to indemnify him, of which the following is a copy 
 
 [copy agreement]. 
 
 III. That the defendant, contrary to his agreement, failed to 
 
 pay the rent for the month of , which was during the 
 
 tenancy of the plaintiff under said agreement. 
 
 IV. That by reason thereof, said A. B., on the day of 
 
 , 18..., in the court, commenced proceedings 
 
 to recover possession of said premises, which were then occupied 
 by the plaintiff under said agreement, for the non-payment of 
 
 said rent; and thereby the plaintiff, on the day of , 18.., 
 
 at , was compelled to pay to said A. B., to the use of 
 
 the defendant, the sum of dollars, the amount of said rent, 
 
 together with dollars, the costs, disbursements, and 
 
 attorney's fees therein. 
 
 V. That he has demanded from the defendant payment of the 
 said amounts, but he has not paid the same. 
 
 [Demand op JtrDGMBUT.] 
 
 § 1361. Consequential Damages. — To recover conseqiten- 
 tial damages or costs, the averment must be special. 
 
 § 1362. Eviction by Wrong-doer. — If a tenant is evicted 
 by a wrong-doer, the landlord is not bound to indemnify him.^ 
 
 § 1863. On Agreement of Indemnity to Plaintiff for 
 Defending Action for Surrender of Property. 
 
 Form No. S6S. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on or about the day of » 18. . , one 
 
 A. B. deposited with the plaintiff dollars. 
 
 II. That afterwards, on the day of , 18. . , the 
 
 plaintiff, at the request of the defendant, delivered to him the 
 said sum of money so deposited by A. B. , which money the de- 
 
 1 Schilling v. Holmes, 28 Cal. 227. 
 
§ 1364. INDEMNITY. 535 
 
 fendant claimed ; and that the plaintiff did not know to whom the 
 same belonged. 
 
 III. That afterwards, on the said day of ,■ 
 
 18..., the plaintiff, at the request of the defendant, agreed with 
 the defendant that he would defend any action which the said A. 
 B. should commence against him for the said money ; and the 
 defendant, in consideration of the premises, then promised the 
 plaintiff to indemnify and save him harmless from the conse- 
 quences of such an action. 
 
 IV. That the said A. B., on the day of , 18...., 
 
 commenced an action against the plaintiff in the [state the court] , 
 for the recovery of the said sum of money, of which the defendant 
 then had notice. 
 
 v. That the plaintiff, with the privity of the defendant, and to 
 the best of his ability, defended the said action ; but the said A. 
 
 B., on the day of , 18..., at a general term of said 
 
 court, recovered a judgment against the plaintiff in said action, 
 
 to the amount of dollars; and, afterwards, an execution 
 
 was issued upon the said judgment, against the property of the 
 
 plaintiff, who, on the day of , 18..., paid the said sum 
 
 of dollars, and also the sum of dollars, for officers' 
 
 fees, and other expenses upon the said writ. And the plaintiff 
 was also by means of the premises, compelled to pay other 
 charges and expenses, for costs and disbursements and counsel 
 
 fees, amounting to the sum of dollars, in defending the 
 
 said action. 
 
 VI. That the defendant has not paid the same to the plaintiff. 
 
 [DXMAITD or JUBOMBNT.] 
 
 § 1364, Voluntary Payment. — ^Under a bond conditioned 
 to indemnify the obligee against being compelled by law to pay 
 a second time a sum claimed and paid to the obligor, if the 
 obligee is subsequently sued by two other persons separately 
 claiming the same sum, and interpleads such plaintiffs by 
 suit in chancery, and by leave obtained pays the money into 
 court, this is not a breach of the bond, for it is a voluntary pay- 
 ment.^ 
 
 »Ma8sey v. Sohott, Pet. C, C. 122, 
 
536 POEMS OF COMPLAINTS. § 1365. 
 
 CHAPTER VI. 
 
 PROMISE OF MARRIAGE. 
 § 1365. For Refusal to Marry. 
 
 Form Nc. 364. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That heretofore, to wit, on the day of , 
 
 at , in consideration that the plaintiff, being then sole 
 
 and unmarried, at the request of the said defendant, had then 
 promised the said defendant to marry him, the said defendant, 
 on request, the defendant promised to marry the plaintiff within 
 a reasonable time [or if a time certain was agreed upon, state 
 the time] . 
 
 II. That the plaintiff, confiding in said promise, has always 
 since remained and continued, and still is, sole and unmarried, 
 and has been for and during the time aforesaid, and now is, 
 ready and willing to marry the defendant. 
 
 III. That the defendant refuses to marry the plaintiff, 
 although a reasonable time elapsed before this action [or 
 
 although she, on the day of requested him 
 
 so to do], to her damage in the sum of dollars. 
 
 [Demand of Judgment.] 
 § 1366. When Action Lies — Necessary Averments. — 
 Marriage is a consideration as valuable as money, if bona fide?- 
 And the action on the promise to marry is sustainable only when 
 the contract is mutual.* And though one of the parties be an 
 infant, the contract is binding on the other.3 But an executor 
 can not sue.* A man may maintain an action for breach of 
 promise to marry.* But an action for breach of promise of 
 marriage will not be made to survive by proof that the promisee 
 had a child, born out of wedlock, now living, and that the de- 
 fendant is the father of said child.^ Deceit and injury are 
 presumed from the breach, and need not be alleged.'' Where the 
 promise is special, as " after the death of the defendant's 
 father," it should be so declared on, with proper averments.* 
 
 1 Magniao v. Thompson, 1 Baldw. * Chamberlain, Adm'r etc., v. Will- 
 
 844. iamson, 2 M. & S. 408. 
 
 » 1 Roll. Abr. 2215; Wells v. Pad- ^ Harrison v. Cage, 1 Ld.Raym.386. 
 
 gett, 8 Barb. 323. e Hovey v. Pa^e, 55 Me. 142. 
 
 3 Holt V. Clareucieux, 2 Stra. 937; ' Leopold v. Poppenheimer, 8 Code 
 
 Bae. Abr., Infant; Willardv. Stone, R. 39. 
 
 7 Cow. 22. 8 2 Peake, 103 ; Chit, on Cont. 426, 
 
§ 1370. PROMISE OP MARRIAGE. 537 
 
 But it is not necessary that the time of marriage should be 
 specified.^ But if the promise was to marry on a particular day, 
 it should be so stated.' 
 
 § 1367. Evidence of Promise. — Positive proof of request 
 and refusal is never required ; but they may be inferred from 
 circumstances, and the request may be made by the father or 
 other friend, whose authority may be inferred from existing re- 
 lations. ^ The plaintiff must, however, aver a special request or 
 an offer to perform. A bare allegation of readiness and willing- 
 ness' is not sufHcient.'* In an action for breach of promise of 
 marriage, the declaration of the defendant that he would make 
 a good home for the plaintiff, made at the time, and as part of 
 his conversations with the plaintiff, which are declared on as 
 establishing the promise of marriage, are admissible in connec- 
 tion with the other conversations, as tending to prove the con- 
 tract.^ 
 
 § 1368. Promise, when Void. — An agreement by a man- 
 to marry when a divorce should be decreed between himself and 
 his wife in a suit then pending, is contrary to public policy, and 
 void.® No action can be maintained for a breach of. promise of 
 marriage made in consideration of illicit -sexual intercourse be- 
 • tweenthe parties.'' 
 
 § 1369. Promise After Seduction. — A promise of mamage 
 made after seduction has been effected, and in consequence 
 thereof, is not thereby rendered invalid. It is not liable to the 
 objection that it encourages immorality, because the wrong has 
 been already perpetrated ;S and where a seduction is accom- 
 plished by means of a promise of marriage on the part of the 
 seducer, a consent of the ffemale to marry the seducer, amount- 
 ing to a mutual promise on her part to marry, may be implied.^ 
 
 § 1370. Damages. — Damages for pecuniary loss may be re- 
 covered, as for loss of time in preparing for marriage;" as well 
 as for suffering and injury to prospects in life ;" and seduction 
 will aggravate the breach.^^ Special damages for impaired 
 health may be alleged and proved, if resulting from the breach." 
 
 irartTi 467 ' Steinfeld v. Levy, 16 Abb. Pr. 
 
 2Hoppe v.'Symonds, 2 Chit. 324; (N. S.) 26; Hanks y. Naglee, 54 Cal. 
 
 ¥b\Kt7v!wo';if'M^'p'23r' ''^Hotcbkinsv. Hodge, 38 Barb. 
 
 ;ji^TMS^,^^^iH^:S^--323; 
 
 ^ 6NoicVV. Brown, 38 N. J. L. 228. i^ Bedel v. Powell, 13 Barb. 183. 
 
538 a'ORMS OF COMPLAINTS. § 1371. 
 
 Whatever damages the plaintiff may liave suffered in conse- 
 quence of the defendant's refusal to marry her, she is legiti- 
 mately entitled to recover ; and these damages are to be estimated 
 from the circumstances of the parties, and the situation in 
 ■which the plaintiff is left by the defendant's refusal to perform 
 his contract. '^ The interposition of the defense that the char- 
 acter of the plaintiff is unchaste, even if unsuccessful, ought 
 not, per se, to aggravate the damages, unless it is interposed in 
 bad faith, from malice, wantonness, or recklessness.*^ 
 ' 1371. For Marriage with Another. 
 
 Form No. 365. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. and II. [Same as preceding form] . 
 
 III. That the defendant afterwards married a certain other 
 person, to wit, one A. B., contrary to his said promise to the 
 plaintiff. 
 
 [Or, III. That at the time of making said promise the defend- 
 ant represented to the plaintiff that he was unmarried, whereas, 
 in fact, he was then married to another person, of which fact 
 the plaintiff had no notice.] 
 
 [fiKMAND OF JupOMENT.] 
 
 § 1372. Married Man Liable. — A single woman to whom 
 a man iii fact married represents that he is single, and promises 
 marriage, may maintain an action against him for his breach of 
 promise. ^ 
 
 § 1373. Request. — In case of the marriage of defendant, a 
 request need not be alleged.'' The averment of marriage dis- 
 penses with request. ^ 
 
 § 1374. Statute of Frauds. — A parol contract of marriage 
 that may be performed at any time within three years, and con- 
 sequently within one year, is not within the Indiana statute of 
 frauds ; but if not to be performed within one year, it is within 
 the statute.^ 
 
 t Tubbs V. Van Kleck, 12 111. 449. Stone, 8' Q. B. 358 ; Caines v. Smith, 
 
 2 Powers V. Wheatley, 45 Cal. 113. 15 Mee. &W. 189; compare Lovelock 
 
 8 Wild V. Harris, 7 O. B. 999 ; 1 B. v. Franklyn, 8 Q. B. 371 ; Turner v. 
 
 L. & B. 408 ; Blattmaoher v. Saal, 29 Baskin, 2 W. Law M. 98. 
 
 Barb. 22 ; 7 Abb. Pr. 409. ' Short v. Stone, supra. 
 
 * 1 Parsons on Contr. 544 ; Short v. ' Paris v. Strong, 51 Ind. 889. 
 
639 
 
 § 1376. SALE AND DELIVERY OF CHATTELS. 
 
 CHAPTER VII. 
 
 SALE AND DELIVERY OP CHA.TTELS.* 
 
 § 1375. Seller against Purchaser for Refusing to Re- 
 ceive and Pay for Goods. 
 
 r_, , Form No. S6S. 
 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of 18..., at , the 
 
 plaintiff and defendant entered into an agreement in substance 
 as follows [state the agreement] . 
 
 II. That the plaintiff duly performed all the conditions of 
 
 said contract on his part, and was on the day of 
 
 ^^••■' ^* [the day and place of delivery], ready and 
 
 wUling to deliver said property, and tendered the same to the 
 defendant. 
 
 in. That defendant refused to accept said goods, or pay for 
 them, pursuant to said agreement, to the damage of the plaintiff 
 dollars. 
 
 [DlMAND OP JmXlMENT.] 
 
 § 1376. Delivery— Constructive.— A statement of circum- 
 stances constituting a constructive delivery as equivalent to an 
 actual delivery, should be unequivocal.i A delivery to the 
 purchaser of a city weigher's certificate of sugar lying on the 
 wharf is a sufficient delivery.* The delivery of the export entry 
 is not a delivery of the article sold.s Mere delivery of a bill of 
 parcels is not sufficient.* The delivery ^ of an order on the cus- 
 tom-house, when the buyer fraudulently interids not to pay, 
 knowing his inability to do so, is no delivery.^ The delivery, 
 with indorsement, of a shipping broker's acknowledgment of 
 the receipt of merchandise to be transported, drawn in the f9rm 
 of a bill of lading, but not signed by the carrier, is suffi- 
 cient to constitute a constructive delivery of merchandise to one 
 who made advances upon the faith of it.^ An order on the 
 depositary of goods sold, given by the vendor to the vendee, 
 constitute? a delivery as between themselves. '^ The transfer of 
 warehouse receipts operates as a constructive delivery of the 
 goods. 8 
 
 1 Bailey v. Ogden, 3 .Johns. 399. U. S. 284 ; Bank of Rochester v. 
 
 2 Grlasgow V. Nicholson, 25 Mo. 29. Jones, 4 Uomst. 497 ; Rawls v. Desh. 
 ' Johnson v. Smith, Anth. N. P. 81. ler, 28 How. Pr. 66. 
 
 * Smith V. Mason, Anth. N. P. 225. ' Sigerson v. Harker, 15 Mo 101. 
 » Ives V. Polak, 14 How. Pr. 411. * Burton v. Curyea, 40 111. 320. 
 
 • Keed v. Proprietors etc., 8 How. 
 
540 FORMS OF COMPLAINTS. § 1377. 
 
 § 1377. Delivery of Less Quantity. — If a vendor de- 
 livers a less quantity of goods than he contracted to deliver, 
 the vendee is at liberty to refuse to accept, and if he accepts a 
 part, he m^ return that, and refuse to accept less than the 
 whole, but having received and retained a part, he can not re- 
 fuse to pay for the part received.^ 
 
 § 1378. Delivery — In General.— Selecting goods, and put- 
 ting them aside in the seller's shop, held sufficient delivery." 
 The delivery of the keys of a warehouse in which goods sold are 
 deposited is a sufficient delivery. ^ Merely taking samples does 
 not amount to a delivery."* There can be no delivery so 
 long as any thing remains to be done by the seller to ascertain 
 the quantity or quality of the goods, ^ or so long as anything 
 remains to be done by either party to ascertain the price. ^ 
 Cumbersome and heavy articles may be delivered without actual 
 removal. Delivering a schedule, followed by an agreement on 
 the part of the buyer with the depositary for keeping charge of 
 them, is sufficient.^ 
 
 § 1379. Delivery, how Alleged.— Tender and refusal of 
 goods on the part of the principals is equivalent to delivery, 
 and may be specially averred. 8 A performance of all the con- 
 ditions on his part may be alleged. 
 
 § 1380 Growing Crops, Delivery and Sale of.— A grow- 
 ing crop, until ready for the harvest, can not by itself become 
 the object of a delivery, and can only be delivered into the pos- 
 session of the vendee by delivering to him the possession of the 
 land also of which it is a part.^ Growing crops are not unlike 
 ships and cargoes at sea in respect to their delivery, of which 
 delivery can not be made until they reach port. If delivery be 
 made within a reasonable time after reaching port, the sale is 
 good as against creditors and subsequent purchasers.^" They 
 are' not subject to manual delivery until they are harvested, 
 and therefore until harvested they are not in the possession or 
 under the control of the vendor, within the meaning of the 
 statute of frauds.ii A growing crop, while growing, and until 
 
 1 Polhemus v. Heiman, 45 Gal. 573 ; ' Ward v. Shaw, 7 "Wend 404 
 Shields v. Pettee, 2 Sandf. 262. ' Dixon v. Buck, 42 Barb 70 
 
 2 Brewer v. Salisbury, 9 Barb. 511. « Kemble v. Wallis, 10 Wend. 374, 
 sWiIkos V. Ferns, 5 Johns. 335; « Davis v. HcFarlane, 37 Cal 634. 
 
 Gray v. Davis, 10 N. Y. 285. "> .} oy v. Sears, 9 Pick. 4 ; Portland 
 
 •Johnson v. bmith. Anth. N. P. Bank v. Stacey, 4 Mass. 661 : Bufflne- 
 
 81 ; Carver v. Lane, 4 E. D. Smith, ton v. Curtis, 15 Id. 528. 
 
 ^^^„ . , . ,^ , „ I'Bours v. Webster, 6 Cal. 600; 
 
 5 Cunningham v. Ashbrook, 20 Mo. Visher v. Webster, 13 Id. 58 ; Pacheco 
 
 563; Outwater V.Dodge, 7 Cow. 85, v. Hunsaoker, 14 Id. 120; Bernal v. 
 
 aruthers v. McGarvey, 41 Cal. 15. Hovious, 17 Id. 541 ; Bobbins v. Ola- 
 
§ 1383. SALE AND DELIVERY OF CHATTELS. 641 
 
 ready for the harvest, is also unaffected by the fifteenth section 
 of the statute in relation to the sale of goods and chattels in the 
 possession and under the control of the vendor.^ Contracts for 
 the sale of growing periodical crops are not within the statute 
 of frauds, and therefore need not be made in writing.^ So a 
 contract to deliver corn not yet gathered or husked, as it re- 
 quires labor to be expended on the subject-matter to prepare it 
 for delivery, is not within the statute of frauds. ^ It is not the 
 policy of the law to interdict sales of growing crops by declar- 
 ing them absolutely fraudulent, on the mere ground that the 
 seller retains,, as he must necessarily do, the possession of the 
 property until it shall become susceptible of actual delivery.* 
 
 § 1381. Delivery by and Liability of Carrier. — Upon 
 demand by the vendor, while the right of stoppage in transitu 
 continues, the carrier will become liable for the conversion of the 
 woods, if he decline to redeliver them to the vendor, or delivers 
 them to the vendee. ^ And a notice, without demand, to rede- 
 liver, is sufficient to charge the carrier, if he is clearly informed 
 that it is the intention and desire of the vendor to exercise his 
 rifht of stoppage in transitu.^ And notice to the agent of the 
 carrier, who in the regular course of his agency is in the actual 
 custody of the goods at the time the notice is given, is notice to 
 the carrier.'' 
 
 § 1382. Ship ana Cargo, Delivery of.— If the delivery of 
 a ship and cargo be made within a reasonable time after reach- 
 ing port, the sale ' is good as against creditors and subsequent 
 purchasers. 8 
 
 § 1383. RescissionofContract— Partial Rescission.— To 
 rescind a contract for the sale of a chattel, the property must 
 be returned, unless it be valueless to both parties. » To consti- 
 tute an actual rescission of the contract, a redelivery of the 
 goods is necessary.io Where M. sold B. eight bags of wool, sepa- 
 
 han 5 Duval (Ky.), 28; cited in Davis 43 N. H. 580; Litt v. Cowley, 7 
 
 ^ MrFailne 37Cal 634. Taunt. 169; Whitehead v. Anderson, 
 
 Ss V McParlane, 37 Cal. 634. 9 M. & W. 518 ; Bell v. Moss. 5 Whart. 
 
 = Davis V. McFarlane, 87 Cal. 684; 189. t, -, di «• tr f„i r„ qi 
 
 Pitinp- Marshall v Ferguson, 23 Id. 66. ' Bierce v. Bed Bluff Hotel Co., 31 
 
 ''Echv. Long, 27 Md! 188; see Cal. 160; cited in Jones v. Earl, 87 
 
 «'fG V. K^^lane't Caf 634; "« f y v Sears 9Piclc|;_ Borland 
 
 ^'V"B^eJKBorn\i^tilro^ 
 
 48 N T 580 • Markwald v. His Cred- » Perley v. Balch, 23 Pick. 283 
 
 •. 7 r.l p'lqt TJlackrnan v. Pierce, Christy v. Cummins, 3 McLean, 886 
 
 sf Id 508 .^^O'Ne^ V Garre" 6 HenckW v Hendrickson, 5 Id. 170 
 
 i AorT i „l. Corl ^7 Hftl 630 Garland V. Bowhng, Hempst. aO. 
 
 ^"&fnoidf rB'sfon'etc^B^o^'d; ""^ Miller v. Smitl, 1 mLh. 437. 
 
542 POEMS OF COMPLAINTS. § 1384. 
 
 rately marked and kept as one lot of a particular Mnd, at one dol- 
 lar a pound, by one bill of parcels, B. having first opened some 
 of the bags, but part of the wool in one bag was of a different 
 kind, and B., without returning the bag, sent back the contents 
 which M. refused to receive, it was held that B. could not par- 
 tially rescind the contract, and that a custom in such cases to 
 return the bale found different was inadmissible, the bag not 
 having been returned ; but that B., on proving a warranty and 
 breach, could recoup the difference between the actual value and 
 the value if it had corresponded to the warrant.^ 
 
 § 1384. Sales Defined — Void Sales. — A contract to deliver 
 twenty sheep in four years for ten delivered now, is a sale, and 
 not a bailment.^ The delivery, by a debtor to his creditor, 
 of property, the value of which was to be applied upon the debt 
 in good faith, is a sale. -If a standard or criterion is agreed 
 upon by which the value should be fixed, and the amount real- 
 ized by that criterion was the amount to be applied in part sat- 
 isfaction of the debt, that is fixing the price suflSciently to make 
 the sale valid. ^ To constitute a valid sale of a chattel, so as to 
 change the property therein, an agreement as to price and de- 
 livery of the chattel is requisite, except in case of a vessel at 
 sea, when the transfer is effected by the bill of sale ;* and also 
 of growing crops. A valid sale may be made of personal goods 
 which are out of possession, and the sale will be of the thing 
 itself, and not of a chose in action. ^ A sale in violation of a 
 statutory prohibition is void, and no action can be maintained 
 upon it. So of a sale contravening a license law.^ When the 
 substance of the thing sold is not in existence at the time of the 
 sale, such sale is void.'' * 
 
 § 1385. Statute of Frauds. — ^A contract for the sale of 
 goods, chattels, or things, in action at a price not less than two 
 hundred dollars is invalid, unless the same, or some note or 
 memorandum thereof, be in writing, and subscribed by the party 
 to be charged, or his agent, or unless the buyer accept or re- 
 ceive part of such goods or chattels, or the evidences, or some 
 of them, of such things in action, or pay at the time some part 
 of the purchase money ; but when a sale is made by auction, an 
 entry by the auctioneer in his sale book, at the time of his sale, 
 
 1 Morae v. Braokett, 98 Mass, ♦ Harper v. Dougherty, 2 Cranch 0. 
 
 205. Ot. 284. 
 
 » Bartlett v. Wheeler, 44 Barb. 162. ' The Sarah Ann, 2 Sumo. 206. 
 The distinction between a sale and an ' Best v. Bauder, 29 How. Pr. 489. 
 exchange explained: Preston V. lieene, ' Bertram v. Lyon, 1 Mo All. 58 j 
 
 14 Pet. 133. affirmed, 20 How. U. S. 160. 
 
 s Dixon V. Buck, 42 Barb. 70. 
 
§ 1388. SALE AND DELIVERY OF CHATTELS. 543 
 
 of the kind of property sold, the terms of sale, the price, and 
 the names of the purchaser, and the person on whose account 
 the sale is made, is a sufficient memorandum, i In determining 
 whether the statute of frauds applied to a sale of goods, deliv- 
 ered to one person at the request of another, the true test is 
 whether there is any liability of the vendee to the vendor ; for 
 if there is, then the promise of the guarantor is collateral, and 
 must be in writing. Where the sale was entered on the ven- 
 dor's book as "sold A. B. ; C. D. security," and the bill was 
 made out thus: "A. B. (through C. D.) bought," etc., and it 
 was shown that the vendors had urged C. D. to get security 
 from A. B., and offered to pay him for so doing, it was held 
 that C. D. could not be regarded as the principal debtor.^ 
 
 § 1386. Stoppage in Transitu. — This is a right which the 
 vendor, in goods sold upon credit, has to recall them or retake 
 them upon the discovery of the insolvency of the vendee, before 
 the goods have come into his possession, or any third party has 
 acquired bonajide rights in them. And it continues so long as 
 the carrier remains in the possession and control of the goods, 
 or until there has been an actual or constructive delivery to the 
 vendee, or some third person has acquired a bona fide right to 
 them.^ A consignor of property in transitu has a right to direct 
 a change in its destination, and its delivery to a different con- 
 signee."* A vendor who had constructively delivered iron lying 
 at his furnace, by pointing it out to the vendee and charging it 
 to him in his books, receiving the vendee's notes for the same, 
 may retain the same for the price, if, while it is still in his cus- 
 tody, and said notes are unpaid, the vendee becomes insolvent.^ 
 
 § 1387. Measure of Damages. — In an action against a 
 purchaser for not receiving goods according to contract, the 
 rule of damages is the difference between the contract price and 
 the market value at the time of the breach of the contract. ^ 
 
 § 1388. Tender. — The refusal of a buyer to take the goods 
 which he has contracted to buy, dispenses with any necessity 
 on the part of the seller to make a tender of them.^ Under a 
 contract for the sale and delivery of oats " within thirty days," 
 the obligation to receive is as strong as the obligation to deliver. 
 And the contractor is not bound to deliver after the contract 
 
 1 Cal. Civil Code, sec. 1624. ' Thompson v. Baltimore and Ohio 
 
 »Readv.Ladd,lEdm.lOO. E. K Co., 28 Md. 396. 
 
 3 Jones V. Earl. 37 Cal. 630. Haskell v. McHenry, 4 Cal. 411. 
 
 * Strahorn v. Union Stock Yard etc. ' Calhoun v. Vechio, 3 Wash. C. Ct. 
 
 Co., 43 ni. 424. 165. 
 
544 FORMS OF COMPLAINTS. § 1389. 
 
 has expired, but if he does, it will be at the contract price. i A 
 complaint on a contract in which the defendant agrees to pur- 
 chase a given quantity of hay, then in a stack, from the plaint- 
 iff, and pay a fixed sum therefor at a fixed time, and the bay to 
 be weighed at the stack, should aver, if the hay has not all been 
 delivered, a readiness or offer on the part of the plaintiff to de- 
 liver.2 Before an action can be maintained for defendant's fail- 
 ure to accept and pay for property which he agreed to purchase 
 at a future time, a tender of the property and demand of 
 payment must be made.^ A tender of warehouse receipts for 
 grain issued by responsible parties is a sufficient tender of the 
 grain, in Chicago, unless objected to by the other party at the 
 time.* 
 
 § 1389. Tender Waived. — After a sale at buyer's option, 
 within a certain time, notice by the buyer before the time has 
 expired that he will not accept goods within or at the end of 
 such time, waives a tender by the seller.^ 
 
 § 1390. Tender and Demand. — Under a contract for the 
 purchase of goods, where the right of property is not passed by 
 the contract, the buyer is not bound to accept the articles when 
 tendered, unless they correspond in quality with what was 
 bargained for.^ The contract is entire, and calls for an entire 
 performance.'' 
 
 § 1391. The Same — On Contract made by Broker. 
 
 Form No. 367. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., the plaintiffs and 
 
 defendants entered into an agreement by the handofA. B., a 
 broker duly authorized to make the same, both on behalf of the 
 plaintiffs and of the defendants, of which the following is a 
 copy [copy it]. 
 
 II. That at the time of making said contract, the defendants 
 paid to the plaintiff the sum of dollars stated therein. 
 
 III. That the plaintiffs were at all times, within said 
 
 days, ready and willing to comply with the terms of said con- 
 tract on their part, and within the days mentioned in said 
 
 contract, to wit, on the day of , 18..., at , 
 
 '■ Gibbons v. United States, 2 Ct. of 262 ; Millineer v. Daly, 56 Penn. St. 
 
 Cla. R (Nott & H.) 421. 245. 
 
 'Barron v. Frink, 30 Cal. 486. « Add. on Contr. 238; Eeimers v. 
 
 » Hagar v. King, 38 Barb. 200. Kidner, 17 Abb. Pr. 292. 
 
 * McPherson v. Gale, 40 111. 368. ' Smith v. Brady, 17 N. T. 173 ; 
 
 ^McPherson v.'Walker, 40111. 371; Oatlin v. Tobias, 26 N. T. 217; see 
 
 see White v. Dobson, 17 Gratt. (Va.) also Polhemus v. Heiman, 45 Cal. 573. 
 
§ 1394. SALE AND DELIVERY OF CHATTELS. 545 
 
 they tendered the said property to the defendants and de- 
 manded payment of the balances of the price thereof. 
 
 rV. That the defendants refused to receive said property, or 
 pay the balance of the price therefor. 
 
 V. That they have not paid the same nor any part thereof. 
 [Demaot) of Judgmbnt.] 
 
 § 1392. Acceptance. — There must be an acceptance, as 
 well as a delivery, to take the thing out of the statute ; but the 
 acceptance may be by agent of the buyer.^ But the acceptance 
 of a mere shop-bOy is not sufficient.^ An acceptance of goods 
 bearing a name different from the one used in the sale note by 
 a sub-vendee of part of goods sold, does not conclude the 
 vendee as to the whole contract. 
 
 § 1893. The Same— On Promise to Pay by a Good Bill 
 of Exchange. 
 
 Form No. S68. 
 
 [TlTLI.] 
 
 The plaintiff coinplains, and alleges : 
 
 I. That on the day of , 18..., at ., 
 
 the plaintiff and defendant mutually agreed with each other as 
 follows : The plaintiff agreed to sell and deliver to the def end- 
 
 stnt forty tons of iron, at the price of per hundred 
 
 weight on the day of 18..., at , and 
 
 the defendant then promised the plaintiff to pay him for said iron, 
 by a bill of exchange at three months' date on delivery of said 
 iron, and that such bill shouM be satisfactory to the plaintiff. 
 
 II. That afterwards, on the day of , 18..., at 
 
 , the plaintiff delivered the said quantity of iron to the de- 
 fendant, upon the terms aforesaid, amounting to dollars. 
 
 III. That the plaintiff, on the day of , 18..., at 
 
 , demanded of the defendant payment of the 
 
 price of said iron, by such bill of exchange, and was then, 
 and has been since always ready and willing to take the same. 
 
 IV. That the defendant has not paid the plaintiff the price of 
 the iron by a bill of exchange payable in three months from 
 the date thereof, which was satisfactory to the plaintiff, or 
 otherwise according to said agreement. 
 
 [Demand or Judgment.] 
 § 1394. The Same —For not Returning Goods, or Pay- 
 ing for Them in a Beasonable Time. 
 
 Form No. S69. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 1 Cutwater v. Dodge, 6 Wend. 897. « Smith y. MMon, Anth. N. P. 225. 
 « Flint V. Lyon, 4 Ual. 17. 
 Bbteb, Vol. 1—35. 
 
546 PORMS OF COMPLAINTS. § 1395. 
 
 I. That on the day of , J8 . . , at , 
 
 the plaintiff, at the request of the defendant, delivered to him 
 
 [describe the property] , of the value of dollars, upon 
 
 the condition and consideration that the defendant would pur- 
 chase the same for dollars, or return the same to the 
 
 plaintiff within a reasonable time, which the defendant then 
 and there agreed to do. 
 
 II. That the plaintiff duly performed all the conditions of 
 said agreement on his part. 
 
 III. That a reasonable time for the defendant to purchase 
 and pay for said goods, or to return the same to the plaintiff, 
 has elapsed before the commencement of this action. 
 
 IV. That the defendant has not purchased said goods or 
 paid for them, nor has he returned the same to the plaintiff. 
 
 [Dbmamd of Judg-mint.] 
 
 § 1395. Alternative. — A contract in the alternative should 
 be so set forth, i' And an averment of demand of one of two 
 things, when the option of the defendant was in the alterna- 
 tive, is not sufficient.^ 
 
 § 1396. The Same— For not Giving Security Accord- 
 ing to the Conditions of the Sale at Public Auction, the 
 Credit not having Expired. 
 
 Form No.S70. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18 . . , at 
 
 the plaintiff caused to be put up and exposed for sale by public 
 auction, in lots, certain goods and chattels, one of the said lots 
 being a certain carriage, subject to the following terms, to wit : 
 that the highest bidder should be the purchaser, and that the 
 purchaser should be allowed seven months' credit for the pay- 
 ment of the price, after giving such security as should be ap- 
 proved of by A. B. on the part of the plaintiff ; or that such 
 purchaser should, at his election, pay down the purchase price 
 
 at the time of the sale, and in that event that per cent 
 
 should be deducted', by way of discount, from the amount of 
 the purchase money, of all of which said terms the defendant, 
 at the time of the sale, had notice. 
 
 II. That at the said sale the defendant was the highest bid- 
 der for, and was declared to be the purchaser of the said car- 
 riage, subject to said terms of sale, for dollars. 
 
 1 Hatch V, Adams, 8 Cow. 35; Stone v. Knowlton, 3 Wend. 874; People v 
 Tilton, 13 Id. 597. *^ 
 
 < Lutweller v. Linnell, 12 Barb. 512. 
 
§ 1398. SALE AND DELIVERY OI" CHATTELS. 547 
 
 III. That the plaintiff then delivered the carriage to the de- 
 fendant, as such purchaser, and was then and has since been, 
 always ready and willing to perform the said contract on his 
 part. 
 
 IV. That the defendant has not, although then requested by 
 
 the plaintiffs, paid any part of the said sum of dollars, 
 
 nor has he given any security for the same, according to the said 
 terms of sale. 
 
 [Dbmand of Judgmbnt.] 
 § 1397. For a Deficiency on a Resale. 
 
 Form No. S7U 
 [Title.] 
 
 The paintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 he put up at auction, at the auction house of , city of 
 
 , in this state, sundry [articles of merchandise], sub- 
 ject to the condition that all goods not paid for and removed 
 by the purchaser thereof within [ten days] after the sale, should 
 be resold at auction on his account, of which condition the de- 
 fendant had notice. 
 
 n. That the defendant purchased [two hundred barrels of 
 flour] at the said auction, at the price of dollars. 
 
 III. That the plaintiff was ready aud willing to deliver the 
 same to defendant on the said day, and for [ten days] thereafter, 
 and on [etc.] offered to do so, and demanded payment therefor. 
 
 rV. That the defendant did not take away or otherwise re- 
 ceive the said goods purchased by him, nor pay for them or 
 any of them within [ten days] after the sale, nor afterward. 
 
 V. That on the day of , 18.., at , 
 
 having first given the defendant reasonable notice of the time 
 and place of resale, the plaintiff resold the said [two hundred 
 barrels of flour] , on account of the defendant, by-public auction, 
 for dollars. 
 
 "VT. That the expenses attendant upon such resale amounted 
 
 to dollars. 
 
 VII. That defendant has not paid the deficiency thus arising, 
 
 amounting to dollars. 
 
 [Demand ot Judgment.] 
 § 1398. Conditional Sales. — A vendor of goods, which he 
 delivers, but the title to which is to remain in him until they 
 are paid for, may recover them in the hands of a bona fide pur- 
 chaser from the vendee.^ In a conditional sale, the right of the 
 
 1 Parmlee v. Catherwood, 36 Mo. 479; Putnam v. Lamphier, 36 Oal. 151; 
 Kohler v. Haye8, 41 Id. 455. 
 
548 FORMS OF COMPLAINTS. § 1399, 
 
 seller to take possession after a default and sell the property, 
 may be defeated by performance or an offer or tender of per- 
 formance by the purchaser, and a sufflcient tender gives the 
 buyer a right to the property.^ So he may recover the value of 
 the goods less the amount of purchase money unpaid at the 
 time of the tender, and Uie necessary expenses of the. vendor 
 in removing and taking care of it.* 
 
 § 1399. Rights of Vendor. — If the vendor, upon default 
 of the vendee, may at his option rescind the contract, he may 
 take possession and resell the property; but this involves no 
 forfeiture of the amount already paid. 3 The seller becomes, on 
 refusal to accept, the agent of the buyer, with power to sell.^ 
 
 § 1400. Right of Resale. — "Where the buyer wrongfully 
 refuses to receive and pay for the goods sold, the seller has the 
 right, as soon as he can with due regard to the interest of the 
 buyer, and after giving him notice of his intention to resell, to 
 sell the goods, and to recover the difference between the agreed 
 price and the sum realized at the sale, together with expenses, 
 from the buyer. ^ The buyer is not entitled to specific notice of 
 the time and place of the resale.^ But he must dispose of the 
 goods in good faith.'' 
 
 § 1401. By Manufacturer for Goods Made at Defend- 
 ant's Request and not Accepted. 
 
 Form No. S7S. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , the 
 
 defendant agreed with the plaintiff that the plaintiff should 
 make for him [ten casks], and that defendant should receive for 
 the same, upon delivery thereof dollars. • 
 
 II. That the plaintiff made the said casks, and on the :.. 
 
 day of -..,18.., offered to deliver the same to defendant 
 
 and has ever since been ready and willing to do so. 
 
 III. That defendant has not paid for the same, nor any part 
 
 part thereof. 
 
 [Demand of Jtjdqmbnt.] 
 
 § 1402. Breach of Contract.— If one contracts to make 
 
 merchantable lumber for another, and the other takes away un- 
 
 iHutohingsv. Munger, 41 Barb. Mod. 162; Maclean v. Dunn, 4 Bingh. 
 
 396; Miller v. Steen, 30 Cal. 403; 722; Pollen v. Le Eoy, SON. Y. 549; 
 
 cited in S. C, 34 Id. 144. compare Healy v. Utley, 1 Cow. 845. 
 
 » Miller v. Steen, 34 Cal. 144. « Bogart v. O'Eegan, 1 E. D. Smith, 
 
 8 Miller v. Steen, 30 Cal. 407. 590 ; McBaohron v. Rundalls, 34 Barb. 
 
 * Sanda v. Taylor, 5 Johns. 385. 301. This has been disapproved in 
 
 s 2 Kent's Com. 504 ; Cross v. Bil- Ingram v. Matthieu, 3 Mo. 209. 
 
 lings, 1 Salk. 3 ; Holmes v. Hall, 6 ' Crooks v. Moore, 1 Sandf. 297 
 
§ 1407. SALE AND DELIVERY OF CHATTELS. 549 
 
 merchantable lumber contrary to the wish and orders of the 
 maker, this is not a breach of the contract on the part of the 
 maker. ^ 
 
 § 1403. Manufacturing Goods,— A contract to deliver 
 goods to be manufactured by the party agreeing to deliver, is 
 not an agreement for the sale of goods -vyithin the the statute.^ So 
 flour, contracted to be manufactured and delivered, is not 
 within the statute. ^ 
 
 § 1404. Causes of Action. — Where the person ordering 
 the goods refuses to take them when made, it has been held that 
 the maker may deliver to a third party, with notice to the 
 defendant, and sue for goods sold.'* 
 
 § 1405. Materials Found. ^t has been held that the 
 plaintiff can not, on an account for goods sold, recover merely 
 upon proof of materials found by him, and used in services 
 rendered.^ 
 
 § 1406. Title to Property.— "Where the plaintiff sold a 
 number of bales of drillings to A., for the purpose of making 
 sacks, deliverable to A., as fast as he needed them for manufac- 
 turing, and A. agreed to store the sacks as fast as made, sub- 
 ject to plaintiff's order, with the privilege of retaking them as 
 fast as he should pay, it was held that the title rested in A. , and 
 plaintiff had no lien thereon, or on the sacks, until delivered to 
 him.^ 
 
 § 1407. ForBreachof Promise, by Purchaser of Good 
 Will, not to Carry on Rival Trade. 
 
 Form No. S7S. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That heretofore the defendant carried on the business of 
 
 , at ; and on or about the day of 
 
 ,18..., in consideration that the plaintiff would pur- 
 chase from him his store and goods therein, for the sum of 
 
 dollars, and the good will of the said business for the 
 
 gum of dollars, the defendant agreed with the plaintiff 
 
 that he would not at any time thereafter, by himself, or partner, 
 or agent, or otherwise, either directly or indirectly, set up or 
 
 1 Hale V. Trout, 35 Cal. 229. ' Bronson v. Wiman, 10 Barb. 
 
 s Crookshank V. Burrell, 18 Johns. 406. o ..i. ik w j 
 
 58; Sewall v. Pitch, 8 Oow. 215; * Bement v. Smith, 15 Wend. 
 
 Courtwrightv. Stewart, 19 Barb. 455; 493. « rr * 
 
 Donovanv. Wilson, 26 Id. 138; Par- 5 Cottrell v. Appsey, 6 Taunt 
 
 ker v. Schenck,28Id. 38;Kobertson 322. 
 
 V. Vaughan, 5 Sandf. 1. ° Hewlett v. Flint, 7 Cal. 264 
 
550 FORMS OF COMPLAINTS. . § 1408 
 
 carry on the business of a , at , or at any 
 
 other place within the city of 
 
 II. That the plaintiff accordingly purchased from the defend- 
 ant his said , for the price and at the terms aforesaid, 
 
 and paid said sum of dollars for the said store and goods, 
 
 and the good will of said business. 
 
 III. That the plaintiff duly performed all the conditions of said 
 agreement on his part. 
 
 IV. That the defendant afterwards, to wit, on the day 
 
 of , 18 . . , set up and carried on the business of 
 
 , at 
 
 [Demand or JuDGMBirT.] 
 
 § 1408. Acceptance.— The acceptance of the property pre- 
 cludes an action by the buyer against the seller, for damages, on 
 the ground that the articles actually furnished do not correspond 
 with the contract.^ The buyer, by retaining the property without 
 notice to the seller, waives all remedy upon the contract for any 
 breach of an obligation implied by law, e. g., the obligation to 
 deliver an article of merchantable quality.* 
 
 § 1409. Agent, Purchase from. — An allegation that the 
 goods were purchased of A., the agent, then and there acting for 
 defendant, is suflSciently certain to prevent any misapprehension 
 of its meaning, and is the same as if the allegation was of the 
 purchase from defendant. ^ 
 
 § 1410. Buyer against Seller, for not Delivering 
 Goods Sold. 
 
 Form No. S74- 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. Thatonthe day of , 18..., at .♦., 
 
 the plaintiff and defendant mutually agreed that the defendant 
 should deliver [one hundred saclis of potatoes] to the plaintiff 
 
 [on the day of , 18..J, and that the plaintiff 
 
 should pay therefor dollars on delivery. 
 
 II. That on the said day, the plaintiff was ready and willing, 
 and offered to pay the defendant the said sum, upon delivery of 
 the said goods. 
 
 III. That the defendant has not delivered them. 
 
 [Demand op Judgment.] 
 
 » Eoed V. Randall, 29 N. T. 858 ; v. Pettee, 2 Sandf. 262 ; Howard v. 
 
 Fitch V. Carpenter, 43 Barb. 40. Hoey, 23 Wend. 850; 1 Stark 477- 
 
 2 Fisher v. Samuda, 1 Camp. 190 ; 2 Kent, 480 ; Para, on Cont. 475 j Reed 
 
 Mllner v. Tucker, I Car, & P. 15 ; v. Randall, 29 N. Y. 350. 
 Halliday v. McDougall, 20 Wend. 61 ; « Cochrane v. Goodman, 3 Cal. 244. 
 Hargoua v. Stone, 5 N . Y. 73 j Shields 
 
§-1415. SALE AND DELIVERY OF CHATTELS. 551 
 
 § 1411. Action by Assignee.— Where plaintiff contracted 
 for the delivery of a quantity of lumber after a certain time, and 
 on three days' notice, and assigned the contract to anather, the 
 delivery and payment were concurrent acts.^ In case of an 
 assignment by the buyer, the demand of performance of a con- 
 dition precedent on the part of the vendor must be made upon 
 the vendor, and not alone upon the assignor.^ Where a party 
 who has purchased goods by fraudulent representations, assigns 
 them in payment of a pre-existing debt to one who takes them 
 bona fide, without notice of the fraud, the latter acquires a good 
 title as against the original vendor.^ 
 
 § 1412. Condition Precedent. — ^Where defendants stipu- 
 lated to sell plaintiff certain merchandise " shipped " from 
 Batavia, and the parties agreed that the contract should be 
 binding until the arrival of the ship, its arrival is a condition 
 precedent, which must be shown before either party can maintain 
 an action.^ 
 
 § 1413. Damage. — In an action for not delivering the thing 
 sold, the measure of damages is the value at the time of the 
 breach. 5 
 
 § 1414. Delivexy — Time.— If a contract or order under 
 which goods are to be furnished does not specify any time at 
 which they are to be delivered, the law Implies a contract that 
 they should be delivered in a reasonable time ; and no evidence 
 will be admissible to prove a specific time at which they were 
 to be delivered, for that would be to contradict and vary the 
 legal interpretation of the instrument. ^ 
 
 § 1415. Demand, Averment of. — A complaint, alleging 
 that the defendant sold to plaintiffs a certain share of fruit 
 growing in an orchard, and after the sale executed a guaranty 
 that the share of plaintiffs should be at their disposal, and 
 further alleging a demand for the same and refusal of the 
 defendant to deliver, is demurrable, as it should have contained 
 an assignment of the breach of the contract or guaranty.'' The 
 true point at issue is, whether the defendant undertook to de- 
 liver. From the nature of the sale it operated as a delivery. 
 
 1 Fruit V. Phelps, 4 Cal. 282. Shields v. Pettie 4 N. T. 122 ; Bene- 
 
 SDustan v. MoAndrew, 10 Bosw. diet v. Field, 16 N. Y. 59^ 
 
 ,on 5 Hoplans v. Lee, 6 Wheat 109 ; 
 
 s Butters v. Haughwout, 42 111. 18. Blydenburgh v. Welsh, 1 Bald 331 ; 
 
 But see Bobinson f. Haa^, 40 Cal. 4M. Shepherd v. Hampton. 2 Wheat. 200. 
 
 where it is held that a sale of personal « Cocker v. Franklin Manufacturing 
 
 ™Sp^seVto the purchi^er only Co., 3 Sumn. 530 ; see Terw.ll.ger v. 
 
 such title as the vendor had. Knapp, 2 E. D. Smith. 86. 
 
 * Middleton V. Ballingall. 1 Cal. 446 ; ' Dabovich v. Emeric. 7 Cal. 209. 
 Kussell V, NicoU, 3 Wend. 112: 
 
552 POKMS Of COMPLAINTS. § 1416. 
 
 There was no necessity of a demand on defendant, unless for 
 the purpose of enabling him to comply with his guaranty. ^ 
 
 § 1416; Executory Agreements. — Executory agreements 
 for the sale of goods are within the statute, as well as other 
 contracts.^ A contract for the sale and delivery, if so com- 
 pleted as to be valid in the state where made, will be enforced 
 in Missouri.' 
 
 § 1417. Memorandum. — ^An agreement of sale signed only 
 by the seller, but delivered to and accepted by the buyer, will 
 sustain the buyer's action for non-delivery.'' The memorandum 
 of a clerk of a seller of sales made by him at auction, is suflS- 
 cient to bind the purchaser. ^ The memorandum required of a 
 contract of saTe is not binding upon the seller, unless signed 
 .by the buyer also.^ This, however, was under a statute requir- 
 ing the memorandum to be signefl by the parties to be charged 
 thereby. 
 
 § 1418. Offer to Perform. — The averments in a declaration 
 that the " plaintiff was ready and wiUing " to receive goods, and 
 pay for them on delivery and shipment, is a material one, and 
 necessary to be proved.' 
 
 § 1419. Several Causes of Action. — A complaint which 
 states the facts of the case in ordinary and concise language is 
 .not demurrable because such statement shows that the plaint- 
 iff is entitled to recover upon two different legal grounds. ^ But 
 it has been held that the purchaser of a chattel can not, in the 
 same action, seek delivery of possession of it, and damages for 
 the non-delivery ; the one being an action for a tort, the other 
 upon contract.^ 
 
 § . 1420. Tender — Where a party contracts for a quantity*of 
 wheat to be delivered on demand, and paid for on delivery, in 
 action for non-delivery it is unnecessary for plaintiffs to aver 
 and prove a tender of the purchase money at the time of de- 
 mand or before suit.^" 
 
 § 1421. Warehouseman. — A complaint against a ware- 
 houseman, which does not allege that the goods belonged to 
 the plaintiff, oi that defendant was under an obligation to de- 
 liver them to him, is bad.^^ 
 
 1 Dabovich v. Emeric, 7 Cal. 209, • See Justice v. Lang, 30 How. Pr. 
 
 « Bennett T. Hull, 10 Johns. 364. 425. 
 
 SHoughtaling v. Ball, 20 Mo. 563. ' Robinson v. Tyson, 46 Penn. St. 286. 
 
 * Egerton v. Mathews, 6 East, « Mills v. Barney, 22 Cal. 240. 
 
 807; Tisdale v. Harris, 20 Pick. 9; » Furniss v. Brown, 8 How. Pr. 59 j 
 
 Sievewright v. Archibald, 17 Q. B. Maxwell v. Parnam, 7 Id. 236. 
 
 103. 10 Crosby v. Watkins, 12 Cal. 85. 
 
 ' Frost V. Hill, 8 "Wend. 886. u Thurber v. Jones, 14 Wis. 16. 
 
§ 1425. SALE AND DELIVERY OF CHATTELS. 553 
 
 § 1422. The Same — For not Delivering within a Speci- 
 fied Time. 
 
 Form No. S75. 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , the 
 
 plaintiff agreed with the defendant to buy of him, and the de- 
 fendant then agreed to sell to the plaintiff, and to deliver to 
 
 him on the day of , 18..., at , 
 
 bushels of oats, at the price of cents per bushel, to 
 
 be paid for on the delivery thereof. 
 
 II. That the said time for the delivery of the said oats has 
 elapsed, and that plaintiff has always been ready and willing 
 to receive the said oats, and to pay for them at the price afore- 
 said, on delivery, according to the terms of said a^eement, of 
 all which the defendant had notice. 
 
 III. That the defendant has not delivered the same, nor any 
 part thereof, to the plaintiff, at ....,...., or elsewhere. 
 
 IV. That the plaintiff' has thereby lost profits, and has sus- 
 tained damage to the amount of dollars. 
 
 [Demand or Jtodoment.] 
 
 § 1423. Allegation where neither Time nor Place of 
 Delivery was Fixed. 
 
 Form No. 376. 
 
 That on the day of , 18..., at , the 
 
 .plaintiff was ready and willing, and offered to receive and pay 
 for said flour, and otherwise has duly performed all the condi- 
 tions thereof on his part. 
 
 § 1424. Allegation where both Time and Place were 
 Fixed. 
 
 Form No. S77. 
 
 That the plaintiff was ready at the time and place appointed 
 
 to receive said , and to pay for the same according to 
 
 the agreement, and otherwise has duly performed all the con- 
 ditions of the agreement on his part. 
 
 § 1425. Allegation where the Particular Time of De- 
 livery was not Appointed. 
 
 Form No. 378. 
 That oiv the day of , IS-, at the place ap- 
 pointed, the plaintiff was ready to receive said , and 
 
 pay for the same, according to the agreement, of which the de- 
 fendant had netice, and the plaintiff has otherwise duly per- 
 formed all the conditions thereof on his part.i 
 
 lOn a contract to deliver "on or reasonable t™« ,»"f , Sl^„d%*5 ^'" 
 about" a certain day, the seller has a liver: Kipp v. Wiles, 3 Sandf. 585. 
 
554 FOEMS OF COMPLAINTS. § 1426. 
 
 § 1426. Offer and Tender. — In actions on a contract where- 
 neither time nor place of delivery was fixed, the plaintiff 
 must aver an offer or tender of performance on his part,^ and 
 an offer to pay on delivery.^ "Where goods are to be delivered 
 at one of two places, at the option of the seller, he is bound to 
 give the buyer notice of the place selected. ^ 
 
 § 1427. Time. — Where mo time of payment and no time of 
 delivery are agreed upon, payment and delivery are concurrent 
 acts, and neither can maintain an action without showing a 
 readiness and willingness to perform on his part.'* 
 
 §1428. Place. — In actions on contracts in which both time 
 and place were fixed, it is sufficient to aver a readiness at the 
 place appointed to receive and to pay.^ And such an averment 
 is essential.^ 
 
 § 1429. Tender on Demand. — ^It need not be alleged that a 
 tender was made upon demand. The plaintiff must allege that 
 he was ready and willing to pay for the gopds without a tender,^ 
 even where his obligation depends on an act of the defendant 
 to be done at the same time.^ Beadiness to receive and to pay 
 according to the terms of the agreement, and that defendant 
 had notice of such readiness, is sufficient without tender.^ It 
 is sufficient to aver that he had been at all times ready to receive 
 and to pay.i" 
 
 § 1430.— Tender of Performance. — A tender of performance 
 will be necessary in contracts for the purchase of a thing at a 
 future day named, and at a specified price, and an averment of 
 readiness and willingness will not suffice. ^^ 
 
 § 1431. Allegation of Part Payment. 
 
 Form No. S79. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , it 
 
 was mutually agreed between the plaintiff and the defendant 
 that the defendant should sell and deliver to the plaintiff at 
 
 ., on or before the day of , 18. 
 
 1 Lester V. Jewett, 1 Kern. 453. "Vail v. Eice, 6 N. T. (1 Seld.l 155; 
 
 ! Smith V. "Wright, 1 Abb. Pr. 243. Bronson v. Wiman, 8 N. Y. 182; com- 
 
 ' Rogers v. Van Hoesen, 12 Johns, pare Chapin v. Potter, 1 Hilt. 366. 
 
 221. 8 White v. Demilt, 2 Hail, 436. 
 
 « Coler V. Livanston. 2 Cal. 51. " 2 Oh. PI. 827; Rawson v. John- 
 
 ' "Vail V. Rice, 5 N. Y. (1 Seld.) 155 ; son, 1 East, 203. 
 
 Clarke v. Dales, 20 Barb. 42 ; and see l" Porter v. Rose, 12 Johns. 209. 
 
 Dunham v. Pettee, 8 N. Y. (4 Seld.) "Lester v. Jewett, 11 N. Y. 453; 
 
 508. Smith v. "Wright, 1 Abb. Pr. 248; 
 
 « Clarke v. Dales, 20 Barb. 42. compare Coonley v. Anderson, 1 Hill, 
 
 ' Coonley v. Anderson, 1 Hill, 519 ; 519. 
 
§ 1434. SALE AND DELIVERY OP CHATTELS. 555 
 
 [describe the thing], and that the plaintiff should pay to the de- 
 fendant therefor at the rate of dollars per- 
 
 amounting to dollars, payable as follows: dollars 
 
 at the time of making said agreement, and the residue on the 
 delivery of the , as aforesaid. 
 
 II. That the plaintiff at the time of the contract paid to the 
 defendant the sum of dollars, in pursuance of the agree- 
 ment. 
 
 III. That the plaintiff was ready and willing at the time and 
 place aforesaid, to receive said goods and pay the balance there- 
 for, of all which the defendant had notice ; yet the said defend- 
 ant hath not delivered the same or any part thereof; to plaintiff 's 
 damage dollars. 
 
 [Demand or Judgment.] 
 
 § 1432. Payment. — ^The giving of a promissory note, upon 
 a purchase of goods, is not a sufficient payment to take the con- 
 tract of sale out of the statute of frauds. ^ Part payment, to 
 take the contract of sale out of the statute, must be made at 
 the very time of making the contract. A payment the next 
 day, though accepted on account, will not suffice.^ 
 
 § 1433. Rescission by Vendor. — To enable the vendor to 
 rescind the sale, he must offer to return the notes given for the 
 goods. 3 If the contract be rescinded, the vendee is entitled to 
 recover the money paid. If the contract is not rescinded, the 
 vendees are entitled .to possession on payment of the full amount 
 due.* The party rescinding must put the other party in statu 
 quo.^ Where- A. has made a payment in advance on a contract 
 to purchase stock of B., which B. refuses or fails to deliver, and 
 A. notifies B. that he claims the right to rescind the contract, 
 and claims repayment of the money paid, the notice does not 
 affect his right to maintain an action for damages on the con- 
 tract.* 
 
 § 1434. Against Seller of Stock, for Non-delivery. 
 
 Form No. S80. 
 
 [TiTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 the plaintiff and defendant entered into an agreement sub- 
 scribed by them, whereby it was mutually agreed between 
 
 1 Ireland v. Johnson, 18 Abb. Pr. » Coghill v. Boring, 15 Cal,218. 
 
 392. « Miller v. Steen, 30 Cal. 407. 
 
 'Bissell V. Balcolm, 40 Barb. 98; 'Id. .^ , „ „ , „„ 
 
 Allen v. Aguira, 5 N. Y. Leg. Obs. « Jones v. Post, 6 Cal. 102. 
 380. 
 
556 FORMS OF COMPLAINTS. § 1435. 
 
 them that the defendant should sell and deliver to the plaintiff, 
 
 at such tinie within days thereafter as the plaintiff 
 
 should elect, shares of the capital stock of the 
 
 company, and that the plaintiff should pay him therefor 
 
 dollars. 
 
 II. That on the day of , 18 . . , at , 
 
 the plaintiff tendered to the defendant said sum of 
 
 dollars, and otherwise duly performed all the conditions of 
 said agreement on his part, and demanded of the defendant that 
 he deliver said shares of stock to the plaintiff. 
 
 III. That the defendant has not delivered the same. 
 
 [Demand of Judgment.] 
 
 § 1435. Law of Place. — If a contract for the sale and as- 
 signment of certificates of stock of a corporation is entered into in 
 another State, bi^t the certificates are afterwards delivered in this 
 state, the legality of the sale and assignment is to be tested by the 
 laws of this state.-' 
 
 CHAPTEE VIII. 
 
 FOE SALE OF REAL PROPERTY. 
 
 § 1436. Purchaser against Vendor, for Breach of Agree-, 
 ment to Convey. 
 
 Form No. S81. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of ? 18 . . , at , , the 
 
 plaintiff and defendant entered into an agreement, under their 
 hands and seals, of which the following is a copy [insert copy of 
 contract] . 
 
 II. That on the day of , 18. ., the plaintiff 
 
 demanded the conveyance of the said property from the de- 
 fendant, and tendered [ dollars] to the defendant [or 
 
 was ready and willing, and offered to the defendant to pay 
 
 dollars, and duly to perform all his agreements under 
 
 the said covenants, upon the like performance by the defend- 
 ants]. 
 
 III. That on the day of , 18. . , the plaintiff 
 
 again demanded such conveyance [or that the defendant refused 
 to execute the same] . 
 
 ' Dow v. Gould & Curry S. M. Co., 31 Cal. 629. 
 
§ 14*2. SALE OF EEAL PKOPBETY. 557 
 
 rV. That the defendant has not executed any conveyance of 
 the said property to the plaintiff. 
 
 [Or, IV. That there is a mortgage upon the said property, 
 i^ade by to , for dollars, re- 
 corded in the office of , on the day of , 
 
 18 . ., and still unsatisfied of record ; or any other defect of title.] 
 [Demand or Judqmknt,] 
 
 § 1437. Allegation of Possession.— An allegation in a 
 complaint that the plaintiff " assumed to and did exercise acts 
 of control over and possession of portions" of a tract of land, 
 is not equivalent to an averment that the plaintiff had actual 
 possession of the tract of land, or any part of it.^ 
 
 § 1438. Allegation of Seisin in Fee.— An allegation that 
 the plaintiff "is the owner "of the land sued for, is in sub- 
 stance an allegation of- seisin in fee, in " ordinary " instead oif 
 in technical language.^ 
 
 § 1439. Contract in the Alternative.— "When a contract 
 .is in the alternative, as to pay the purchase price or reconvey 
 the property on a day named, the party who is to perform must 
 make his election on the day named, and if he does not, he loses 
 his right of election. He can not wait till the next day.^ 
 
 § 1440. Demand and ReftlsaL — ^It has been held to be 
 necessary either to tender a deed for signature, or to wait a 
 reasonable time for its preparation by the vendor, and make a 
 second demand.^ But if the vendor, on the first demand, posi- 
 tively refuse to convey, nothing more need be done.^ An aver- 
 ment of demand and tender is necessary.* 
 
 § 1441. Description of Property. — He who sells property 
 on a description given by himself, is bound in equity to make 
 good that description ; and if it be erroneous in a material point, 
 although the variance be occasioned by mistake, he must still 
 remain liable for that variance.'' 
 
 § 1442. Interpretation of Contract. — ^In Iowa, the law will 
 construe a contract to be a mortgage, rather than a conditional 
 sale ; still the intention of the parties to the contract is the true 
 test. 8 
 
 « Brennanv. Ford, 46 Cal. 7. As to cases in which a aemand Is 
 
 "Garwood v. Hastings, 38 Cal. 216, necessary, see Bruce v. Tilson, 25 IS. 
 
 s Rewrick V. Goldstone, 48 Cal. 554. T. 194. o v 1^7 
 
 * Lutweller v. Linnell, 12 Barb. 512 ; » Carpenter v. Brown, 6 Barb. 147 ; 
 
 Hacket V. Huson, 8 Wend. 250; Driggsv. Dwight, 17 Wend. 74. 
 
 Fuller V. Hubbard, 6 Cow. 17; seo, « Beeeher v. Conradt, 13 N. Y. 110; 
 
 however, PearsoUv. Frazer, 14 Barb. Lester v. Jewett, It Id. 453. 
 
 564, where it is asserted that the J McFerran v, Taylor, 3 Cranch, 
 
 above rule is a rule of evidence merely, 270._ «-inT„™o sqk. 
 
 and need not be set forth specially. » Hughes v. Sheaff, 19 Iowa, 335. 
 
558 FOEMS OF COMPLAINTS, § 1443. 
 
 § 1443. Performance of Conditions. — Where A. sold a 
 lot of land to B. and delivered possession and in a written con- 
 tract respecting the same it was stipulated, among other things, 
 that in the event that B, should be dispossessed by legal judg- 
 ment at any time within three years, A. should pay back to B. 
 two thousand dollars ; and should suit be brought against B. 
 for the lot, then B. should notify A. of it, in order to enable 
 him to assist in the defense of the title, it was held that the 
 giving of the notice by B. to A. of the institution of suit against 
 fi. for the lot was indispensable to enable B. to recover of A. 
 on such contract.^ In a suit on such contract, B. should aver 
 that he had been evicted after notice to A. The payment of 
 the money is dependent on this fact.^ 
 
 § 1444. Sale "in Writing." — The party making an allega- 
 tion in a pleading, that the sale of a mhiing claim under which 
 he claims title, was in writing, is not thereby precluded from 
 proving that the sale was a verbal one. 3 
 
 § 1445. Writing, Presumption of.— If a complaint avers 
 that a contract was made fop the sale of real estate, the pre- 
 sumption is that it was in writing.'* A finding of fact in such 
 case need not state that the contract was in writing.* 
 
 § 1446. Performance — Averment of Excuse for Non- 
 performance. 
 
 Form No. SS2. 
 
 That on the .... day of , 18 . . , at , 
 
 and before the time for performance had arrived, the defendant 
 falsely and fraudulently represented to the plaintiff that he had 
 
 sold said to other persons ; and that relying on said 
 
 representation, and solely by reason thereof, the plaintiff was 
 not prepared to receive and pay for the same, as he otherwise 
 would have done.^ 
 
 § 1447. The Same — For Damages for not Executing 
 Conveyance, and for Repayment of Purchase Money. 
 
 Form No. S8S. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18 . . , at , 
 
 the plaintiff and defendant entered into an agreement under 
 their hands and seals, of which the following is a copy [insert 
 copy]. 
 
 1 Bensley v. Atwill, 12 Cal. 281. « McDonald v. Mission View H. A., 
 
 2 Id. 51 Cal. 210. 
 
 3 Patterson v Keystone Mining Co., ^ Id. 
 
 30 Cal. 860. e ciarke v. Crandall, 27 Barb. 73. 
 
§ 1^47. SALE OF REAL PROPERTY. 559 
 
 [Or, I. That on the day of 18.., at , 
 
 the defendant agreed with the plaintiff, that in consideration of 
 the sum of dollars, th^ receipt whereof was acknowl- 
 edged by the defendant in said agreement, in part payment, 
 and of the further sum of dollars, for which defend- 
 ant agreed to take a note secured by a mortgage on the prem- 
 ises hereinafter described, said note and mortgage to be payable 
 
 in one year from the day of , 18. ., and to 
 
 bear interest at ten per cent per annum, the defendant agreed 
 to sell to the plaintiff, and the plaintiff agreed to buy from the 
 defendant, the farm, then the residence of the defendant, in 
 
 the town of , county of , and state of , 
 
 containing acres or thereabouts, for the sum of 
 
 dollars per acre, and that the defendant would, on the said 
 
 day of 18 . . , at the office, in 
 
 city, between the hours of o'clock in the morning and 
 
 o'clock in the evening, on receiving said note and 
 
 mortgage, execute to the plaintiff a good and sufficient con- 
 veyance of the said premises, free from all incumbrances, and 
 he further agreed to pay to this plaintiff, on failure of perform- 
 ance, dollars, liquidated damages. And the plaintiff 
 
 agreed that he would, at the time and place above mentioned, 
 on the execution of said conveyance, make, execute and de- 
 liver to the d-efendant the note and mortgage aforesaid.J 
 
 II. That on the day of , 18.., at 
 
 [day and place agreed] , the plaintiff demanded the conveyance 
 of the said property from the defendant, and tendered to the 
 defendant a note and mortgage made and executed pursuant to 
 the agreement, and was ready and willing, and offered to the 
 defendant, to make and execute the note and mortgage agreed 
 on, and to deliver the same to the defendant, and duly to per- 
 form all his agreements under the said covenant, upon the like 
 performance by the defendant, and otherwise has duly per- 
 formed all the conditions of said agreement on his part. 
 
 III. That on the day of , 18. ., at 
 
 the plaintiff again demanded such conveyance [or that the de- 
 fendant refused to execute the same] . 
 
 IV. That the defendant has not executed any conveyance of 
 the said property to the plaintiff, nor has he repaid to the 
 
 plaintiff the said dollars paid by this plaintiff to the 
 
 defendant in part payment for said property. 
 
 [Demand of Judgmej^t.] 
 
560 FORMS OP COMPLAINTS. 5 1448. 
 
 § 1448. Vendor against Purchaser for Breach of Agree- 
 ment to Purchase. 
 
 Form No. SS4. 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , in 
 
 the county of , and state of , the plaintiff and 
 
 defendant entered into an agreement, under their hands and 
 seals, of which the following is a copy [insert copy] . 
 
 II. That on the day of , 18..., at , 
 
 the plaintiff was the owner in fee simple of the said property, 
 and the same was free from all incumbrances, as was made to 
 appear to the defendant, and at said time and place he ten- 
 dered to the defendant a sufficient deed of conveyance of the 
 same [or was ready and willing, and offered to convey the same 
 to the defendant by a sufficient deed] , on the payment by the 
 defendant of the said sum. 
 
 III. That the defendant has not paid the same. 
 
 [Demand of Judgmbnt.] 
 
 § 1449. Admission. — In assumpsit for the value of land 
 conveyed by plaintiff to defendant, in consideration of an oral 
 promise by the latter to convey other land worth two thousand 
 dollars to the plaintiff, which promise defendant now refuses to 
 perform ; it was held that defendant's agreement, and the value 
 of the land to have been conveyed to him, might be proved as an 
 admission of the value of the land which he received.' 
 
 § 1450. Rescission of Contract. — In order to rescind a 
 contract for the sale of land, on the ground that the vendor 
 can not perform it, having no title, it is necessary to aver and 
 show an outstanding title in another.* 
 
 § 1451. Title. — If the true owner conveys the property by 
 any name, the conveyance as between the grantor and grantee 
 will transfer the title. ^ 
 
 § 1452. Averment of Excuse for Non-performance. 
 
 Form No. S85. 
 
 That on the day of , 18..., and before the 
 
 time for the plaintiff to perform the conditions thereof on his 
 part, the defendant gave notice in writing to the plaintiff that 
 he had determined not to take the land; and the defendant 
 abandoned the agreement, and ever since wholly failed to per- 
 form it, to the plaintiff's damage dollars.'* 
 
 ' Basset v. Basset, 55 Me. 127. 
 » Eiddell v. Blake, 4 Cal. 264. 
 
 • Fallon V. Kehoe, 38 Cal. 44; citing Middleton v. Pindla, 25 Cal. 80. 
 
 * North's Adm'r v. Pepper, 21 Wend. 636. 
 
§ 1455. SALE OF REAL PROPERTY. 561 
 
 A refusal before the time specified, if relied on as an excuse 
 for non-performance, must be alleged to have been addressed to 
 the party alleging. * 
 
 § 1453. The Same — For not Fulfilling Agreement, and 
 for Deficiency on Resale. 
 
 Form No. S8S 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That the plaintiff was the owner of four fifty-vara lots, 
 situated in the western addition of the city and county of 
 
 , to wit, lots 1, 2, 5, and 6, in block No ; that 
 
 he put them up for sale at auction, at the auction rooms of C. 
 
 D. &Co.,No , street, in the city of , on 
 
 the day of , 18..., and announced before the com- 
 mencement of the sale, as a part of the terms of sale, that ten 
 per cent of the purchase money was, on the day of sale, to be 
 paid by the purchaser to the auctioneers C. D. & Co., and that 
 if any purchaser failed to make such payment, the lots would 
 be resold, and the purchaser be charged with the deficiency. 
 
 II. That at the said sale A. B., the defendant, bid for and 
 became the purchaser of each and all of the said lots, for the 
 price of dollars, gold coin, for each lot. 
 
 III. That the said defendant did not, on the day of such sale 
 or at any other time, pay ten per cent, or any part of the 
 price bid, nor the purchase money, nor any part thereof. , 
 
 IV. That in consequence of such neglect of payment, and 
 after notice given to the defendant of the time and place when 
 and where the said lots should be resold on his account, and 
 that he would be charged with the deficiency, the said lots were 
 
 put up to resale, and resold at the price of dollars for 
 
 each lot, making a deficiency of dollars upon the said 
 
 four lots. 
 
 .V. That the defendant has not paid said deficiency. 
 
 [DeMAITD of JuDaMElfT.] 
 
 § 1454. Rights of Vendee.— When the property has been 
 resold, the surplus beyond the purchase money due belongs to 
 the vendee.® 
 
 § 1455, Vendor against Executor of Purchaser. 
 
 Form No. S87. 
 [TrrLB.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 the plaintiff and the said A. B. entered into a contract in writ- 
 1 Traver v. Halstead, 23 Wend. 66. » Gouldin v. Buckelew, 4 Cal. 107. 
 EsTiB, Vol.. I — 36. 
 
562 POKMS OP COMPLAINTS, § 1456. 
 
 ing, under their respective hands, of which the following is a 
 copy [copy agreement] . 
 
 II. That on the day of , 18.., at , 
 
 the said A. B. died, leaving a last will and testament, by which 
 he devised the said property as follows [set forth devise] . 
 
 III. That the defendant was appointed by said will as the 
 executor of said A. B. , and by an order of the probate court 
 
 of the county of , in this state, made on the 
 
 day of , 18.., said will was admitted to probate, and 
 
 the defendant was then appointed and duly qualified as such 
 executor. 
 
 IV. That on the day of , 18.., the plaintiff 
 
 offered to the defendant to convey the premises to him and the 
 said [other devisees] , and fully to perform said contract on his 
 part, and requested the defendant to pay the money for the 
 same, pursuant to the contract. 
 
 V. That the defendant then wholly refused to do so. 
 
 VI. That he has not paid the same, nor any part thereof. 
 
 [Demand oi' Judqmbnt.] 
 § 1456. Vendor against Furchaseir, for Real Property 
 Contracted to be Sold, but not Conveyed. 
 
 Form No. S88. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18.., at , 
 
 the plaintiff and defendant mutually agreed that the plaintiff 
 should sell to the defendant, and that the defendant should 
 
 purchase from the plaintiff [the house and lot No , 
 
 street], for dollars. The following is a copy of said 
 
 agreement [insert copy]. 
 
 II. That on the day of ,18.., at , 
 
 the plaintiff tendered [or was ready and willing, and offered to 
 execute] a sufficient deed of conveyance of the said property to 
 the defendant, on payment of the said sum, and still is ready 
 and willing to execute the same. 
 
 III. That the defendant has not paid the said sum, nor any 
 
 part thereof. 
 
 [Demand of Judgment.] 
 
 §1457. Execute. — "Execute" implies delivery.^ It also 
 implies subscription ^ An allegation of readiness and wiUing- 
 ness is necessary.^ 
 
 1 La Paj-ette Insurance Co. v. Kog- ' Cheney v. Cook, 7 Wis. 418. 
 ers, 30 Barb. 491 ; Hook v. White, 86 » Beecher v. Conradt, 18 N. Y. 110. 
 Cal. 299. 
 
§ U60. LTNDEKTAKINGS, BONDS, ETC. 
 
 663 
 
 CHAPTER IX. 
 
 UPON UNDERTAKINGS, BONDS, ETC. 
 
 § 1458. Short Form— On Undertakings Given in Ac- 
 tions. 
 
 ^ Form No. SS9. 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18.., at , the 
 
 defendant made an undertaking, a copy of which is hereto an- 
 nexed as a part of this complaint, marked " Exhibit A." 
 
 II. That, thereafter, at , judgment was duly given 
 
 in the action therein mentioned against the [plaintiff] therein, 
 for the sum of dollars, no part whereof has been paid. 
 
 III. That on the day of , an execution thereon 
 
 against the property of , was issued to the sheriff 
 
 of said county, which was, on the day of 18.. 
 
 returned wholly unsatisfied. 
 
 [Demand of JxtdgmbntJ 
 [Annex copy of undertaking.] 
 
 § 1459. Action on Undertaking. — If a provisional remedy 
 has been allowed in an action, and the action be dismissed, or a 
 judgment of nonsuit entered, the undertaking must thereupon 
 be delivered by the clerk to the defendant, who may have his 
 action thereon. ^ Upon a bail bond for the appearance of a per- 
 son arrested in proceedings for contempt, if the undertaking be 
 prosecuted, the measure of damages in the action is the extent 
 of the loss or injury sustained by the aggrieved party by reason 
 of the misconduct for which the warrant was issued, and the 
 costs of the proceedings.^ Upon any undertaldng in attachment 
 given in pursuance of section 540 or 555, Cal. Code C. P., suit 
 may be commenced if an execution upon the judgment be re- 
 turned unsatisfied, in whole or in part ; or he may proceed, as 
 in other cases, upon the return of an execution. 
 
 § 1460. Averments. — ^In an action upon an undertaking 
 given on appeal from the judgment of a district court for the 
 possession of real estate, for costs and damages, and for the 
 value of the use and occupation of the premises, it is not neces- 
 sary to aver in the complaint that the district court had juris- 
 
 » See Cal. Code C. P., sec. 581. * Cal. Code C. P., sec 1220. 
 
564 POEMS OP COMPLAINTS. § 1461. 
 
 dition to render the judgment appealed from.^ Nor is It 
 necessary to allege that the undertaking had the effect to stay 
 the execution of the judgment, if it appears therein that pro- 
 ceedings for the execution of the judgment were never taken. ^ 
 If a copy of the undertaking be set out in the body of the com- 
 plaint, it will be taken and considered as a part thereof.^ A 
 complaint, in such case, is not defective because it contains no 
 averment that an execution had been issued and returned un- 
 satisfied, or because no demand for payment is alleged to have 
 been made on the principal.'' Nor is it necessary to allege that 
 the plaintiff in the judgment was entitled to the possession 
 of the premises pending the appeal. ^ A complaint against the 
 obligors in an undertaking given on an arrest under section 
 182, New York code, must show the recovery of a judgment in 
 the action wherein it was given, by the defendant therein. An 
 allegation of the discontinuance of such action is not suffi- 
 cient. ^ 
 
 § 1461. Breaches and Damages. — Taking all our statutes 
 together, the obvious design was to put an undertaking on the 
 same footing as a bond.' Special breaches should be assigned 
 in all cases. 8 Where the condition of a bond is to pay the debt 
 of another, the condition operates merely by way of defeasance. 
 A bond should be sued on, setting out breaches and damages.^ 
 It is in general sufficient to allege the breach iu the terms of the 
 condition of the bond.^" A declaration on a bond given to 
 prosecute with effect a writ of replevin, where the breach assigned 
 is, "that the suit was not prosecuted with effect, is sufficient.^ 
 The non-payment of a judgment obtained against the adminis- 
 trator may be assigned as a breach of the condition of such 
 bond.^^ 
 
 § 1462. Conditions. — Where the bond was not upon the 
 record, and the complaint did not specify the conditions, it was 
 held insufficient. ^3 
 
 § 1463. Cons truction. — An undertaking on an attachment is 
 an original, independent contract on the part of the sureties, 
 
 ' Murdock v. Brooks, 38 Cal. 596. master-general v. Cross. 4 Wash. C. 
 
 2 Id. Ct.326. 
 
 ' I^- " See Berger v. Williams, 4 McLean, 
 
 * Id. 577. 
 
 ' ir* -m- . , ^ ^ " Gorman v. Lenox, Ex'rs,, 15 Pet 
 
 » Moses V. WaterbuiT Button Co., 115. 
 
 87 N. T. Supr. (5 J. & Sp.) 393. »2 People v. Dunlap, 18 Johns. 437. 
 
 ' Canfield v. Bates, 13 Cal. 606. See Frankel v. Stern, 44 Cal. 168, as 
 
 ' Western B'k v. Sherwood, 29 Barb, to measure of damages. 
 
 888. 13 Woods V. Kainey, 15 Mu. 484. 
 
 » Baker v. Cornwall, 4 Cal. 15 ; Post- 
 
§ 1468. UNDERTAKINGS, BONDS, ETC. 565 
 
 and must be construed in connection with tlie statute which author- 
 izes it.^ If a word is omitted by mistake, and by looking at the 
 whole undertaking and the statute it is apparent what word was 
 intended to have been inserted, the omitted word may be supplied, 
 and the contract read as if it had been expressed, without first 
 reforming it by supplying the omitted word.^ 
 
 § 1464. Consideration. — WlTere it appears that the instru- 
 ment was given in pursuance of a statute requirement, in a form 
 prescribed thereby, and in a case within the statute, those facts 
 constitute a sufficient consideration to support it, though it be 
 without seal, and no further averment of consideration is neces- 
 sary. •* The complaint, by averring that it was sealed, imports a 
 consideration ; it is not necessary that it should also show that it 
 was within the statute.'' An undertaking executed by a sheriff 
 before releasing property which he has ascertained to be exempt 
 from execution, is void for want of consideration. ^ 
 
 § 1465. Defective Undertaking. — If an undertaking has 
 been executed to the defendant by a wrong name, the latter has his 
 remedy, and may describe it as given to him, and may show that 
 he was the party intended. ^ Where a mere defective undertak- 
 ing has been horia fide given, and the party will file a good one 
 before the case is submitted, the court should permit him to do 
 
 so.'' 
 
 § 1466. Demand. — ^Demand upon the principal is necessary.^ 
 But a demand upon the defendant is unnecessary.^ But if a 
 demand is necessary by the special terms of the undertaking, it 
 should be averred. 
 
 § 1467. Description of Instrument. — A complaint, in an 
 action upon a statutory undertaking, which contains no other de- 
 scription of the instrument than an allegation that it corresponds 
 with the provisions of a certain section of the practice act, 
 is defective. The defect, however, being of form rather than 
 of substance, objection to it must be taken by demurrer to the 
 
 complaint.-^" 
 
 § 1468. Estoppel.— In an action for use and occupation, 
 upon an undertaking on appeal, the defendants are estopped 
 from denying that the defendant in the judgment was in the pos- 
 session at the time he took his appeal and gave the undertaking, ii 
 
 :^™nkelv. Stern, 44 Cal. 168. ^.^S-ySoS'stdSf ' ""- 
 
 Jh I-aW; M- ^- ''""'' 'SVbXi1oL^."cf -319. 
 
 95 5 ^,: 9" -FwtT 2 Bosw 680 '» Mills v. Gleason, 21 Cal. 274. 
 
 : Kn'i^v'a! fro A. "Murdock v. Brooks. 38 Cal. 596. 
 
 6 Morgan v. Thrift, 2 Cal. 563. 
 
566 FORMS OF COMPLAINTS. § 1469. 
 
 § 1469. Execution Averred. — If execution be issued in a 
 county other than that where judgment was rendered, it may 
 be averred as follows : That on, etc. , a transcript of said judg- 
 ment was duly filed in the office of the clerk of the 
 
 court of the judicial district, in the county of , 
 
 and on the same day an execution thereon was isSued to the 
 sheriff of said county, which has been returned wholly un- 
 satisfied. 
 
 § 1470. Justification. — In all cases where an undertaking 
 with sureties, is required by the provisions of this code, the 
 officer taking the same must require the sureties to accompany 
 it with an affidavit that they are each residents and householders 
 or freeholders within the state, and are each worth the sum 
 specified in the undertaking, over and above all their just debts 
 and liabilities, exclusive of property exempt from execution; 
 but when the amount specified in the undertaking exceeds three 
 thousand dollars, and there are more than two sureties thereon, 
 they may state in their affidavits that they are severally worth 
 amounts less than that expressed in the undertaking, if the 
 whole amount be equivalent to that of two sufficient sureties."- 
 
 § 1471. On an Undertaking for Costs of Appeal. 
 
 Form No. 390. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., judgment was 
 
 rendered by the superior court of the county of , 
 
 state aforesaid, in favor of the above-named plaintiffs, against 
 
 one C. D. for the sum of dollars ; and that on the 
 
 day of , 18..., the said C. D. appealed to the supreme 
 
 court of said state from the said judgment. 
 
 II. That upon said appeal the defendants made and filed with 
 the clerk of said court, for the use of these plaintiffs, their 
 written undertaking and justification therein, of which the fol- 
 lowing is a copy [copy undertaking]. 
 
 III. That OH the day of , 18..., the judgment 
 
 appealed from was by the said supreme court affirmed, and the 
 
 sum of dollars, costs and daniages on the appeal, was 
 
 awarded against the appellant. 
 
 IV. That he has not paid the same, nor any part thereof. 
 
 [Demand or Jutombnt.] 
 § 1472. Action by Assignee —To enable the assignee of a 
 judgment to sue on the appeal bond, he must have an assign- 
 
 1 Cal. Code C. P., sec. 1057. 
 
§ 1479. UNDEETAKINGS, BONDS, ETC. 567 
 
 ment of the bond.^ An assignment which purports to transfer 
 to the assignee all the right, title, and interest of the assignor 
 in the undertaking, " and in the' amount thereby secured," is 
 broad enough to enable the assignee to recover for use and oc- 
 cupation pending the appeal, and costs. ^ 
 
 § 1473. Appeal Dismissed.— Where an appeal is taken to 
 the supreme court from a judgment by filing notice of appeal 
 and undertaking, and the appeal is afterwards dismissed by the 
 supreme court for failure of the appellant to send up a tran- 
 script, the sureties are liable on the undertaking on appeal.* 
 Where an appeal is withdrawn or dismissed by consent of both 
 parties, without being called to a final hearing, no action can 
 be maintained on the appeal bond.* Where an appeal is dis- 
 missed on motion of respondent, based on written consent of 
 the appellant, the dismissal operates as an affirmance of the 
 judgment, and charges the sureties on the undertaking on 
 appeal.^ 
 
 § 1474. Delivery. — In an action on an undertaking on ap- 
 peal, it is a sufficient averment of the delivery of the undertak- 
 ing if the complaint show that it was filed in the clerk's office.' 
 
 § 1475. Execution, Issue of. — An averment in the com- 
 plaint in a suit on an appeal bond that execution had been 
 issued on the judgment and returned unsatisfied is unnecessary. 
 The non-payment of the judgment can be shown without issu- 
 ing an execution.'' 
 
 § 1476. Frivolous Appeal. — Damages for a frivolous ap- 
 peal can not be recovered in an action upon the undertaking on 
 appeal, unless they have been specially awarded by the appel- 
 late court. 8 
 
 § 1477. Final Judgment. — It need not be alleged that the 
 judgment was final. ^ 
 
 § 1478. Judgment Reversed. — Where an appeal bond was 
 conditioned to pay the judgment appealed from, if the same 
 should be affirmed, and it appeared that the judgment appealed 
 from was reversed, the conditions of such bond were not broken, 
 and no action would lie thereon.^" 
 
 § 1479. Judgment Affirmed. — Under the usual undertak- 
 ing on appeal, if the judgment be affirmed, the hability of the 
 
 » Moses V. Thome. 6 Cal. 87. « E"^"^^^ ^.- S?-?' ^^r?*V- ^^\ n i 
 
 2 Murdock v. Brooks, 38 Cal. 596. ' Tissot and Wife v. Darling, 9 Cal. 
 
 s Ellis V. Hull, 23 Oal. 160. ^'^U .u ti • as r i iri 
 
 *08born V. Hendrickson, 6 Cal. . 'f a'^a^^y/" ^^;!"'^^o^,^|i/^c,V 
 wDuu J Sutherland v. Phelps, 22 111. 91. 
 
 5 Chase V. Beraud, 29 Cal. 138. i" Chase v. Kies, 10 Cal. 517. 
 
568 FORMS OB" COMPLAINTS. § 1480. 
 
 surety accrues only after an affirmance upon that appeal of the 
 then existing judgment. An interlocutory order of affirmance 
 reserving leave to answer and litigate further, followed by new 
 pleadings and a new judgment upon the new issue, does not 
 render the sureties liable.^ An undertaking or bond was con- 
 strued to relate only to an action pending against the obligees 
 at the time it was given. ^ 
 
 § 1480. Liability of Sureties. — The sureties on an under- 
 taking are entitled to stand on the precise terms of the contract, 
 and there is no way of extending their liability beyond the 
 stipulation to which they have chosen to bind themselves.* 
 And a judgment against the principal is conclusive against the 
 surety.^ But an undertaking on appeal conditioned for the 
 payment of what the judgment creditor has no legal right to 
 receive, is not, as to such condition, binding upon the sureties. ^ 
 The sureties on an appeal bond can not be sued until the judg- 
 ment against their principal is in a condition to be enforced by 
 execution.^ So long as there is an order of court in force, 
 staying execution on the judgment against a party who had ap- 
 pealed from a lower court, the sureties on the appeal bond can 
 not be sued.'' 
 
 § 1481. Made and Filed. — The averment in the second 
 allegation of the above form, that the defendants made and 
 filed, etc., is sufficient.^ 
 
 § 1482. Parties. — Where defendant executed an undertak- 
 ing on appeal to husband and wife, plaintiffs, an action on the un- 
 dertaking may be maintained in the name of husband and wife.* 
 
 § 1483. Rights of Surety. — "Whenever any surety on an 
 undertaking on appeal, executed to stay proceedings on a 
 money judgment, pays the judgment, either with or without 
 action after affirmation by the appellate courts, he is substi- 
 tuted to the rights of the judgment creditor, and is entitled to 
 control, enforce, and satisfy such judgment in all respects as if 
 he had recovered the same.^" 
 
 § 1484. The Seune— For Costs and Damages on an Ar- 
 rest. 
 
 Form No. S91. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 1 Poppenhusen v. Seeley, 3 Keyes, « Parnell v. Hancock, 48 Cal. 452. 
 150. ' Id. 
 
 2 Beach v.Endress, 51 Barb. 570. ^ Q-ibbons v. Berhard, 8 Bosw. 635; 
 ' Tarpey v. Sehillenberger, 10 Cal. but compare Pevev v. Sleieht, 1 
 
 890. Wend. 518. 
 
 * Pico V. Webster, 14 Cal. 202. » Tissot v. Darling, 9 Cal. 278. 
 
 ' Whitney v. Allen, 21 Cal. 233 »» Cal. Code C. P., sec. 1059. 
 
§ 1485. UNDERTAKINGS, BOMDS, ETC. 569 
 
 I. That heretofore an action was commenced in the superior 
 
 court of the county of , state aforesaid [or otherwise 
 
 state the court] , against this plaintiff, wherein the said A. B. 
 made application to the Hon. C. D., judge of said court, 
 for an order of arrest against this plaintiff, whereupon the de- 
 fendants, on the day of , 18 ..., at , exe- 
 cuted and filed with the clerk of said court, for the benefit of 
 this plaintiff, pursuant to law, a written undertaking, of which 
 the following is a copy [copy undertaking]. 
 
 II. That thereupon, pursuant to said application and under- 
 taking, an order was made by the judge of said court for the 
 arrest of this plaintiff, and thereby the said A. B. required the 
 
 sheriff of county to arrest this plaintiff, and hold him 
 
 to bail in the sum of dollars. 
 
 ni. That this plaintiff was, on the day of , 
 
 18 ..., arrested by the sheriff of the , under said order, 
 
 and was unjustly detained and deprived of his liberty thereun- 
 der for the space of days, to his damage dollars. 
 
 IV. That such proceedings were afterwards had in said ac- 
 tion that this plaintiff, on the day of ,18 .., re- 
 covered a judgment therein, which was rendered by said court 
 
 'against the defendant, A. B., for dollars. 
 
 V. That on the day of , 18 . ., at , 
 
 this plaintiff demanded payment of said judgment and damages 
 from the defendant. 
 
 VI. That he has not paid the same, nor any part thereof. 
 
 [Demand ov Judgmbkt.] 
 § 1485. On an Undertaking, on Release from Arrest. 
 
 Form No. S92. 
 
 [TlTLK.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18 . . , at , 
 
 under an order of arrest duly granted by A. B., a judge of the 
 
 court, against one C. D., in an action brought in the 
 
 said court by the plaintiff herein against the said CD., the 
 said C. D. was arrested by the sheriff of the county of 
 
 II. That on the day of , 18 ..,at , 
 
 the defendants undertook, in the sum of dollars, that 
 
 the said C. D. should, if released, render himself at all times 
 amenable to the process of the court during the pendency of 
 the said action, and to such as might be issued to enforce the 
 judgment therein, a copy of which undertaking is hereto an- 
 nexed, marked " Exhibit A." 
 
670 FORMS OF COMPLAINTS. § I486. 
 
 III. That thereupon the said C. D. was released. 
 
 IV. That on the day of , 18..., judgment 
 
 was rendered for the plaintiff in the said action, for 
 
 dollars. 
 
 V. That on the day of , 18..., execution 
 
 was issued against the property of the said C. D., under the 
 sa;id judgment, but the sheriff has made return that no prop- 
 erty was found . 
 
 VI. That on the day of , 18..., execution was 
 
 issued against the person of the said C. D., under the said 
 judgment, but the sheriff has made return that he could not be 
 found. 
 
 VII. That the said judgment has not been paid, nor any part 
 
 thereof. 
 
 [Demand of Judgment.] 
 
 [Annex copy of undertaking, marked "Exhibit A."] 
 
 § 1486. Attachments. — On a bond given to an officer to be 
 relieved from arrest, on an attachment conditioned to appear 
 at the return day, an allegation of non-appearance is sufficient.^ 
 On an attachment for a contempt the complaint must state 
 plaintiff's connection with the attachment proceedings, and to 
 what extent he was aggrieved by the acts of defendant. ^ That 
 the order for the attachment was duly granted is sufficient.^ 
 
 § 1487. Essential Averment. — A complaint on a recog- 
 nizance in a criminal case should aver that the same was filed 
 in or became a matter of record in the court where it was re- 
 turnable.* 
 
 § 1488. Execution must be Averred. — In an action upon 
 an undertaking given to procure a discharge from arrest, the 
 complaint is bad upon demurrer if it omits to aver the issuing 
 and return of an execution against the property of the debtor 
 arrested, and also the issuing and return of an execution against 
 the person. 5 Execution against property need not be averred.^ 
 
 § 1489. Execution against the Person. — The averment of 
 the recovery of the judgment, and proceedings thereupon had 
 supplementary to execution, and the issuance of attachment for 
 contempt, under which the instrument sued upon was executed, 
 is sufficient.'' 
 
 ' Thomas v. Cameron, 17 Wend. 59 ; ' Gauntley v. Wheeler, 31 How. Pr. 
 
 Hart V. Seixas, 21 Id. 40. 13". 
 
 s Eaynor v. Clark, 7 Barb. 581. « Reniok v. Orser, i Bosw. 384 ; 
 
 = Code C. P. 456. Gregory v. Levy, 12 Barb. 610. 
 
 * Mendocino County v. Lamar, 30 ' Kelly v. McCormick, 2 E. D. 
 
 Cal. 627. Smith, 603. 
 
§ 1492. UNDERTAKINGS, BONDS, ETC. 571 
 
 § 1490. Indictment Found.— Where a bail bond is given 
 to appear and answer an indictment, the complaint must aver 
 that the indictment was found or is pendin<^.i 
 
 § 14:91. Recognizance. — In an action in the district court 
 upon a recognizance of bail given under order of the county 
 ju )ge for the release of a party charged with larceny, the com- 
 plaint need not aver that the recognizance was certified by the 
 court of sessions to the district court, nor that the principal has 
 not satisfied the judgment of forfeiture. The authorities that 
 such certificate and averment are necessary refer to proceedings 
 by scire /acias upon a record of the recognizance to which the 
 accused is a party.^ The complaint alleged substantially that 
 Gr. was indicted for gaming and arrested, and the defendant 
 executed the recognizance which is set out; that G. appeared 
 at the first term of the court thereafter and pleaded not guilty, 
 and case continued to next term, at which time, the case being 
 called for trial, G. did not appear, and the defendants, though 
 "called," did not produce his body; that the court then made 
 an order forfeiting the recognizance, and that the defendants 
 did not produce the body of G. before the final adjom-nment of 
 the court. Ssch a complaint states a cause of action. ^ 
 
 § 1492. On an Undertaking for Costs and Damages on 
 Attachment. 
 
 Form No. S93.' 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That heretofore an action was commenced in this court by 
 the defendant A. B., for the recovery of money, against this 
 plaintiff, wherein the said A. B. made application to the clerk 
 of the said court for a writ of attachment against the property 
 
 of this plaintiff, whereupon the defendant, on the day of 
 
 J 18..., at , executed and filed with the clerk of 
 
 said court, for the benefit of this plaintiff, pursuant to section 
 five hundred and thirty-nine of the code of civil procedure, a 
 written undertaldng, of which the following is a copy [copy of 
 the undertaking] . 
 
 II. That pursuant to said application and undertaking, the 
 clerk of said court issued a writ of attachment, directed to the 
 sheriff of said county, whereby the said sheriff was required to 
 attach and safely keep sufficient property of this plaintiff to sat 
 isfy the demand of the said A. B. in said action, to wit, the sum 
 of dollars, together with costs and expenses. 
 
 1 People V. Smith, 3 Cal. 271. ^ people v. Love, 19 Cal. 676. 
 
 s People V. Smith, 18 Cal. 498. 
 
572 FORMS OP COMPLAINTS. § 1493. 
 
 III. That at the time of the issuing of said attachment, this 
 plaintiff was engaged as a merchant in selling hardware at whole- 
 sale, at No , street, in the city of.. , in said 
 
 county ; that the sheriff of said county, pursuant to said writ of 
 attachment, entered said store and removed the property of this 
 plaintiff, and thereby the business of this plaintiff was utterly 
 broken up, and the goods attached became unmarketable and 
 useless, and this plaintiff's credit became thereby greatly in- 
 jured, to his damage dollars. 
 
 IV. That such proceedings were had in the suit aforesaid that 
 
 this plaintiff, on the day of , 18. . , recovered 
 
 judgment therein, which was rendered by said court against the 
 
 said A. B. , plaintiff therein, for the sum of dollars, 
 
 his costs of defending said action. 
 
 V. That on the day of , 18. . , at , 
 
 this plaintiff demanded payment of the said judgment from said 
 A. B. 
 
 VI. That he has not paid the same, nor any part thereof. 
 
 [Demand of Judgment.] 
 
 § 1493. Principal and Surety. — Where the surety under- 
 takes that his principal shall pay any judgment to be rendered, 
 etc., the judgment against the principal is conclusive against the 
 surety.^ 
 
 § 1494. Statute, how Pleaded. — Reference to statute, as 
 in the above form, is sufficient. The court is bound to take no- 
 tice of a public statute. 2 
 
 § 1495. On an Undertaking Given to Procure the Dis- 
 charge of an Attachment. 
 
 Farm No. S94. 
 [Title.") 
 
 The plaintiff complains, and alleges: 
 
 I. That on the .... day of , 18 . . , an attachment 
 
 against the property of C. D. was issued out of the 
 
 court, by the clerk thereof, in an action commenced by A. B., 
 the plaintiff herein, agianst the said C. D. , the defendant herein, 
 to recover [state what]. 
 
 II. That afterwards, on the .... day of , 18.., at 
 
 , the said CD. appeared in said action, and applied 
 
 for a discharge of said attachment, and that the defendants 
 herein, E. F. and G. H., thereupon executed and delivered to 
 this plaintiff a written undertaking pursuant to law, a copy ol 
 
 » Pico V. Webster, 14 Cal. 202. 
 
 ' Q-oelet V. Cowdrey, 1 Duer, 132 ; Shaw v. Tobias, 3 Oomst. 188. 
 
§ 1496. UNDERTAKINGS, BONDS, ETC. 573 
 
 which is hereto annexed and made a part of this complaint, 
 marked "Exhibit A." 
 
 III. That upon delivery of said undertaking the said attach- 
 ment was discharged and the property was released, and that 
 
 subsequently, on the day of , 18..., said plaintiff 
 
 recovered judgment against the said C. D., which was rendered 
 
 in said action, for dollars, damages and costs, which 
 
 judgment was entered and docketed in the office of the clerk 
 
 of county, on the day of , 18..., and that 
 
 said judgment has not been paid. 
 
 IV. That on the day of , 18..., this plaintiff de- 
 manded of the defendants herein payment of said judgment, 
 which was by each and all of them refused. 
 
 V. That they have not paid the same, nor any part thereof. 
 
 [Demand ov Judgment.] 
 [Annex copy of undertaking, marked " Exhibit A."]i 
 § 1496. Consideration. — ^Where defendant applies to the 
 court for a discharge of the attachment, and an undertaking is 
 executed by D. & R., reciting the fact of the attachment, and 
 that "in consideration of the premises, and in consideration of 
 the release from attachment of the property attached as above 
 mentioned," they undertake to pay whatever judgment plaintiff 
 may recover, etc., and the court makes an order discharging 
 the writ and releasing the property ; in suit against the sureties 
 on the undertaking, the complaint need not aver that the prop- 
 erty was actually released and delivered to the defendant ; that 
 as "the consideration for the undertaking was the release of the 
 propei-tyt and as the complaint avers such release in conse- 
 quence and in consideration of the undertaking, by order of the 
 court, which is set out, the actual release and redehvery of the 
 property to defendant is immaterial, the plaintiff having no 
 claim on it after the undertaking was given and the order of 
 release made^. The recitals in statutory undertakings given in 
 such cases have the same effect and are to be construed in the 
 same way as bonds making the same recitals, and are conclusive 
 of the facts stated.^ And a complaint in an action on an under- 
 taking given under section 540 of the code of civil procedure of Cali- 
 fornia, which alleges that the same was given to release certain 
 property taken under attachment, is sustained by proof of an un- 
 dertaking which recites that the same was given to prevent a levy.* 
 
 iFor a form of complaint in such » McMillan v. Dana. 18 Oal. 339. 
 „„r,.,,it Priivf- V PhilliDS, 7 'McNamara v. Hammersly, 1 
 ?vf '-D''°SnR ^ rnuiips, ^^^^ ^^^^^ ^^p ggp, McOutoheon 
 
 ""» MrMlllan v. Dana. 18 Cal. 339. v. Weston, Id. 850. 
 
574 FORMS OF COMPLAINTS. § 1497. 
 
 § 1497. Averments— Issue of Attachment.. — It need not 
 be alleged that the attachment was duly issued, if it be shown 
 that it was issued from a court of general jurisdiction.! And 
 reciting the fact of a levy of the writ, the complaint need not 
 aver or set out the facts which authorized the issuing of the 
 attachment. The recital of the levy estops defendants from 
 denying it, and the levy is sufficient without averment of the 
 previous proceedings.^ 
 
 § 1498. Released upon Delivery. — The complaint should 
 allege that the property attached was released upon the de- 
 livery of the undertaking.^ A failure to do so is fatal, and the 
 defect may be taken advantage of by demurrer, on the ground 
 that the complaint does not state facts sufficient to constitute a 
 cause of action.* It is necessary also to state the consideration 
 of the undertaking; a mere reference to the condition of the 
 bond itself is insufficient. ^ 
 
 § 1499. On an Undertaking Given in Claim and De- 
 livery. 
 
 Form No. 395. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That heretofore this plaintiff commenced an action in the 
 court, against A. B., to recover possession of specific 
 
 personal property. 
 
 II. That in the course of said action such proceedings of 
 claim and delivery under and pursuant to the statute were had, 
 
 that on the day of , 18.., the defendants 
 
 made and delivered to the sheriff for the use of this plaintiff, 
 pursuant to the statute, their written' undertaking, of which 
 the following is a copy [copy of the undertaking] . 
 
 III. That the personal property referred to in said under- 
 taking was delivered [or released] to the said A. B., defendant 
 in said action, pursuant to said undertaking, and to a requisi- 
 tion of said A. B., defendant in said action, made pursuant to 
 law, and said undertaking was thereupon delivered to this 
 plaintiff. 
 
 IV. That such proceedings were afterwards had, that on the 
 
 day of , 18.., a verdict in the superior court 
 
 of' the county of was rendered against the said A. B., 
 
 wherein the value of the said property was found to be 
 
 dollars, whereupon judgment was rendered against A. JB., the 
 
 1 Cruyt V. Phillips, 7 Abb. Pr. 205. » "Williamson v. Blattan, 9 Cal. 500. 
 'McMillan v. Dana, 18 Cal. 339; 'Id. 
 Gregory v. Levy, 12 Barb. 610. ' Palmer v. Melvin, 6 Cal. 651. 
 
§ 1505. UNDERTAKINGS, BONDS, ETC. 575 
 
 defendant therein, that the plaintiff recover possession of said 
 
 property, or the sum of dollars, in case a delivery could 
 
 not be had. 
 
 V. That the defendant has not returned said property, nor 
 otherwise paid or satisfied said judgment. 
 
 VI. [State demand, where that is necessary.] 
 
 VII. That this plaintiff thereafter caused execution to be is- 
 sued on said jungment against the said defendant, A.'B., which 
 execution has been returned wholly unsatisfied. 
 
 VIII. That the defendant has not paid said judgment, nor any 
 
 part thereof. 
 
 [Demand of Jitdomicnt.] 
 
 § 1500. Action by Assignee. — In an action by the assignee 
 of an undertaking given in proceedings of claim and delivery, it 
 is sufficient, byway of showing plaintiff 's title, to allege that the 
 undertaking was duly assigned, etc., to him, without alleging 
 that the judgment in the action was also assigned. '^ "When the 
 action is brought by the assignees of only a portion of the prom- 
 isees, there is a defect of parties ; all the promisees should be 
 represented.^ "Where a replevin bond substantially conforms to 
 the act, the assignee of the defendants can maintain an action 
 upon it. 3 
 
 § 1501. Consideration. — ^The averment of delivery and re- 
 lease is an averment of consideration, and must be stated, even if 
 the undertaking was under seal.* But if the undertaking recites 
 the performance of the condition, a complaint setting forth the un- 
 dertaking need not also aver performance. ^ 
 
 §1502. Delivery, and Release. — It must be averred that 
 the property was delivered or released. ^ 
 
 § 1503. Demand. — No demand need be averred where judg- 
 ment was returned unsatisfied.'' 
 
 § 1504. Facts Authorizing Issue of Process.— The com- 
 plaint need not aver that it was taken in pursuance of the statute. 
 It is enough that the instrument set forth is in accordance with 
 
 the statute. 8 
 
 § 1505. Interest Awarded.— Upon an undertaking given 
 in an action of claim and delivery, for the payment of a fixed 
 
 iMorange v. Mudge, 6 Abb. Pr. J.-P.'*!'"*' ^•T,wll"'qfd ™ ®^^' 
 „.„ ° Williamson V. Blattan, 9 id. UUU. 
 
 2 Bowdoinv. Coleman, 6Duer,182; .J^owdoinv Coleman 8 Abb. Pr. 
 
 „ i^tI -o,. A-ii 431; Slack V. Heath, 1 Id. 331. 
 
 sw;„„;tpv Rrooko 3Cal 112. 8 McMillan v. Dana, 18 Cal. 339; 
 
 J^Sr-v^^ctifeZ, V cal. ^-.--3.3^^""'^^^^°^^ 
 
 5 McMillan v. Dana, 18 Cal. 339. 
 
676 FOKMS OF COMPLAINTS. § 1506. 
 
 sum, and not conditioned for the return of the goods, interest 
 may be awarded upon the amount of the penalty from the date 
 of judgment in the. original action ; because after the recovery 
 the sureties are in default, and the neglect to pay puts them in 
 the wrong.i 
 
 § 1506. Joint Bond. — "No recovery can be had on a bond 
 purporting to be a joint bond of the principal and sureties, but 
 signed by the latter only." Otherwise, as to undertakings under 
 our system. They are original and independent contracts on 
 the part of the sureties, and do not require the signature of the 
 principal. 3 
 
 § 1507. Judgment in the Alternative. — ^The complaint 
 should show that judgment was rendered in the alternative.* 
 It must be averred that neither had the property been returned 
 nor the specified value thereof, as fixed by the judgment in the 
 original suit paid.^ 
 
 § 1508. Liability of Sureties. — ^Where the plaintiff, in re- 
 plevin gives the statutory undertaking, and takes possession 
 of the property in suit, and is afterwards nonsuited, and judg- 
 ment entered against him for the return of the property and for 
 costs, his sureties are liable for damages sustained by defend- 
 ant, by reason of a failure to return the goods, but not for dam- 
 ages for the original taking and detention — the value of the 
 goods not having been found by the jury." If an undertaking 
 in an action in replevin commenced in a justice's court limits 
 the liability of the persons who execute it to a judgment for the 
 return of the property rendered by the justice, and such judg- 
 ment is not rendered in the justice's court, a recovery can not 
 be had upon the undertaking, even if, on appeal, such judg- 
 ment is rendered by the county court.'' Otherwise, if the statu- 
 tory form of the undertaking is followed. « A judgment in favor 
 of the defendant which does not award him a return of the 
 property, does not impose any liability upon the sureties.^ 
 
 § 1509. Reference to Section of Act.— A complaint upon 
 an undertaking given under the provisions of a statute, which 
 contains no other description of the instrument than an allega- 
 tion that it corresponds with the provisions of such statute, is 
 defective.!" The material portions of the undertaking should be 
 
 1 Emerson v. Booth, 51 Barb. 40. « Ginica v. Atwood, 8 Cal. 446. 
 
 ' City of Sacramento v. Dunlap 14 ' Mitchum v. (Stanton, 49 Cal. 802. 
 
 Cal. 421. 8 Id. 
 
 »W- 'Id. 
 
 * N ipkerson v. Chatterson, 7 Cal. 568. '» Mills v. Gleason, 21 Cal. 274. 
 6 Id. 
 
S 1512. UNDEKTAKINGS, BONDS, ETC. 577 
 
 set forth; but it will be at most only a defect of form, and 
 objection must be taken by demurrer.i 
 
 Jul^m ■ ^A^""^ ofFropeny.-The complaint does not state 
 facts sufficient to constitute a cause of action, unless it aver that 
 the vaue of the property was found by the jury, and that an 
 alternative judgment was rendered. ^ 
 
 § 1511. On a- Undertaking Given in Injunction. 
 
 [Title.] Form No. 396. 
 
 The plaintiff complains, and alleges: 
 
 /■ T^!''^*^^ ^^^ °* ,18.., in an action 
 
 Jn^ff f^^ ^- ^^^^"'* ^"^'^ P^^^°'^«' *» injunction issued 
 out of this court, was served on this plaintiff, enjoinino- him 
 from [state effect of the injunction] . ° 
 
 II. That upon the issuing of the said injunction, the defend- 
 ants gave an undertaking required by section five hundred and 
 twenty-nine of the code of civil procedure [or by law], of which 
 the following is a copy [copy of undertaking]. 
 
 III. That such proceedings were had in the said action that 
 it was finally decided by the court, and thereby adjudged, that 
 the said C. D. was not entitled to the said injunction. 
 
 IV. That the damages sustained by this plaintiff, by reason 
 
 of the said injunction, amounted to the sum of dollars 
 
 and interest thereon from the day of which 
 
 the court on that day awarded to this plaintiff. 
 
 V. That no part thereof has been paid. 
 
 [Demand or Jddgmint.] 
 
 §1512. Damages.— Where an officer is enjoined from pay- 
 ing over money in his hands, legal interest only can be recov- 
 ered as damages for its detention, in an action on the injunction 
 bond.3 To recover damages for the wrongful issuino- of the 
 writ, it was held that the amount paid to counsel as a fee to 
 procure the dissolution of the injunction was properly allowed 
 aspart of the dan*ages.* So held also when an order to show 
 cause why an injunction should not issue was made, though the 
 fee was paid after the return of the order to show cause, pro- 
 vided the retainer was before that date.^ 
 
 1 Milk V. Gleason, 21 Cal.274. As & S. 180; Page v. Earner, 1 Bos. & 
 
 to manner of pleading in such cases, P. 381, n. 
 
 consult Bowdoin v. Coleman, 3 Abb. ' Clary v. Rolland, 24 Cal. 147, 
 
 Pr. 431 ; Slack v. Heath, 1 Id. 331 ; 3 Lally v. Wise, 28 Cal. 539. 
 
 Eavnerv. Clark, 7 Barb. 581; Loomis * Ah Thaie v. Quan Wau etal., 3 
 
 V. "Brown, 16 Id. 325 ; Gregory v. Cal. 216. 
 
 Levy, 12 Id. 610 ; Gould v. Warner, 3 « Pi.ader v. Grim, 18 Cal. 685. 
 Wend. 54 ; Phillips v. Price, 3 Mau. 
 BsTEE, Vol. 1—37. 
 
578 FORMS OP COMPLAINTS. § 1513. 
 
 § 1513. Damages must be Averred. — In the action against 
 the sureties on an injunction bond, the condition of which is that 
 the plaintiffs in the suit for whom the sureties undertook should 
 pay all damages and costs that should be awarded against the 
 plaintiff by virtue of the issuing of said injunction by any 
 competent court, and the complaint did not aver that any damages- 
 had been awarded, it held that such complaint is fatally 
 defective. "^ 
 
 § 1514. Enjoining Payment of Money.— M., a sheriff, 
 had in his hands money belonging to L. , which he had collected,, 
 on an execution in favor of L. & D., against S. W. & C. com- 
 menced an action against M. & L., and others to enjoin M. from 
 paying the money to L., and procured a preliminary injunction, 
 which was served on M. alone, but L. appeared in the action and 
 defended. The injunction bond ran to all the defendants. It 
 was held that L. could maintain an action for damages on the in- 
 junction bond.^ 
 
 § 1515. Obedience to Injunction. — Mere obedience upon 
 notice of issuance of injunction is sufficient, if alleged.' 
 
 § 1516. Service of Injunction. — An allegation that in- 
 junction was served imports a legal service.* 
 
 § 1517. Statement of Trial on Injunction. — It is suffi- 
 cient to allege that an injunction was granted by a court or 
 judge, that issues were joined and judgment rendered. ^ 
 
 § 1518. Who may Join. — All obligees on an injunction 
 bond may join as plaintiffs, whether their several claims be sim- 
 ilar or not.® 
 
 § 1519. On a Bond or Undertaking, Condition only 
 Set Forth. 
 
 Form No. 397. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of 18.., the defendant 
 
 covenanted with the plaintiff, under his hand and seal to pay to 
 the plaintiff the sum of [state the penalty] . 
 
 II. That said obligation was upon the express condition there- 
 under written, that if, etc. [set forth the words of the condition], 
 the said obligation was to be void, otherwise to remain in full 
 force. 
 
 III. [Allege breaches as in other cases.] 
 
 [Demand op Judgment.] 
 
 > Tarpey v. Shillenberger, 10 Gal. Hoffman Steam Coal Co., 15 Abb. Pr. 
 
 390. . 78. 
 
 2 Lally V. Wise, 28 Cal. 539. * Loomis v. Brown, 16 Barb. 825. 
 
 8 Cumberland Coal and Iron Co. v. ' Id. « Id. 
 
§ 1524. UNDERTA-KINGS. BONDS, ETC. 579 
 
 § 1 520. Breach of Condition— The Basis of the Action. 
 The hreaeh of the conditions of a penal bond constitutes, in 
 fact, the basis of the plaintiff's action, and it should be assigned 
 with certainty and particulanty, so as to show the injury.^ In 
 general, it is suflScient to allege the breach in the terms of the 
 condition of the bond.' 
 
 § 1521. Notice. — Notice to the representative and a demand 
 upon him are not always essential. ^ It is not necessary to aver 
 notice to the sureties, nor to state who was the applicant for the 
 order for prosecution.* 
 
 § 1522. Parties. — In an action on a bond or written under- 
 taking, there can be no constructive parties jointly liable with, 
 the proper obligors. ^ 
 
 § 1523. Penal Bonds. — In actions on penal bonds, the com- 
 plaint must specifically assign the breaches for which the action 
 is brought ;* thus, oa a bond conditioned that a party shall pay 
 on a certain contingency or on demand, or for an uncertain 
 sum, breaches must be assigned.'' Also a bond given on a plea 
 of a title before a justice.^ But not a bond payable in money 
 by installments. 9 Nor to bonds payable in money only, which 
 may be brought under actions on written instruments. 
 
 § 1524. On Arbitration Bond— Refasal to Comply with 
 Award. 
 
 Form No. S33. 
 
 [TiTLI.] 
 
 The plaintiff complains, and alleges: 
 
 I. That in consideration of certain questions in diffeirence 
 between plaintiff and defendant, and of a certain bond executed 
 by this plaintiff to the defendant, the defendant, on the .... 
 
 (Jay of , 18..., at , made and delivered to the 
 
 plaintiff an undertaking, conditioned to abide the award of 
 
 upon said question of difference ; a copy of which un- 
 
 undertaking is hereto annexed, marked " Exhibit A." 
 
 II. That said undertook the arbitration thereof on 
 
 the .... day of , 18..., at ....... , and duly published 
 
 their award in writing upon the matter submitted, and delivered 
 
 ''Campbellv. Strong, Hempst. 265; Munro v. Alalre, 2 Cai. 319; Rum?ey 
 
 Dixon V. United States, 1 Brock, v. Matthews, 1 B.bb, 242 ; Burnett 
 
 177; Postmaster-genoral v. Cross, 4 v. Wylie, Hempst 197; and see Ha- 
 
 ■nr ' u r. Ct 326 zel V. Waters, 3 Cranch C. Ct. 682 ; 
 
 2 BeVger v. Williams, 4 McLean, Western Bank v. Sherwood, 29 Barb. 
 577; Gorman V. Lenox, 15 Pet. 115. 383. d * -i k wni 57 
 
 3 People V. Rowland. 5 Barb. 449. Nelson v. Bo^twiok, 5 & 1, 37 
 
 * People y. Falconer, 2 Sandf. 81. » Patterson v. Parker. 2 H.ll. 598. 
 
 " LinSsay v. Flint. 4 Cal. 88. » Harmon v Ped r.ok J? B«rb 1 92; 
 
 •Baker v. Coriiwall, 4 Cal. 15; Spaulding v. Millard. L Wend. 331. 
 
580 FOEMS OF COMPLAINTS. § 1525, 
 
 the same to the parties, and thereby awarded that the defend- 
 ant should [state terms of the award] , a copy of which award is 
 hereto annexed as a pait of this complaint, marked " Exhibit 
 B." 
 
 III. That the plaintiff duly performed all the conditions of 
 said bond and of said award on his part. 
 
 IV. That on the ... . day of , 18..., notice of said 
 
 award was given to the defendant. 
 
 V. That the defendant has not [state the breach]. 
 
 [Demand of Judgmkitt.] 
 [Annex copies of Exhibits "A" and "B".p 
 
 § 1525. Avrard of Payment at a Future Day. — Where 
 the award directs payment at a future day, and, pursuant to 
 authority given in the submission, requires the debtor to givef 
 security for its payment, an action lies upon the arbitration 
 bond, upon the refusal to give security, without waiting till the 
 time of payment.* 
 
 § 1526. Assignment of Breach for Revoking Arbitra- 
 tor's Power. 
 
 Form No. S99. 
 
 That thereafter, and before the matters aforesaid were finally 
 passed upon by said arbitrator, the defendants, by writing un- 
 der their bands and seals, delivered to , revoked 
 
 the powers of the arbitrators, and notified said 
 
 that they would not abide by the award of said- arbitration.' 
 
 § 1527. On a Bond for the Faithful Accounting of an 
 
 Agent. 
 
 Farm No. 400. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of 18..., at !,* 
 
 it was agreed between this plaintiff and. one A. B., that the 
 said A. B. should solicit and collect subscriptions for a [state 
 what] , and that the plaintiff should pay to the said A. B. [state 
 terms of payment] for such service, and that the said A. B. 
 should faithfully account to this plaintiff for all [property] in- 
 trusted to him, and should faithfully pay over all moneys col- 
 lected by him under authority of said agreement. 
 
 II. That in consideration of said agreement, the defendant 
 
 1 For authorities upon forms of arbitrator's powers before the aubmis- 
 complaints in such actions, see Myers sion was actually made a rule of 
 V. Dixon, 2 Hall, 456; M'Kinstry v. court, the plaintiff should assign the 
 Solomons, 2 Johns. 57 ; S. C, 13 Id. revocation as a breach — not the non- 
 27, performance of the award: Frets v. 
 
 2 Bavne v. ?'".rri9, 1 Wall. 97. Frets, 1 Cow. 335; William v. Maden, 
 « Where tlic defendant revoked the 9 Wend. 240. 
 
§ 1530. UNDEBTAKLNGS, BONDS, ETC. 581 
 
 made and delivered to the plaintiff an undertaking in writing, 
 under his hand and seal, conditioned to the faithful perform- 
 ance by said A. B of the terms of said agreement on his part ; 
 a copy of which undertaking is hereto annexed, marked ' ' Ex- 
 hibio A." 
 
 . ITT. That thereafter the said A. B. did solicit, collect, and 
 receive divers sums of money, in the course of his employment 
 under the aforesaid 'agreement, which sums he has failed to 
 render up, account for, or pay over to the plaintiff. 
 
 IV. That on the day of , 18 . . , at , 
 
 the plaintiff requested the said A. B. to account for and pay 
 over to the plaintiff such sums, and thereupon demanded pay- 
 ment from him of the same, according to the terms of said 
 undertaking. 
 
 V. That no part thereof has been paid. 
 
 [Demand op Judgment.] 
 [Annex copy •f " Exhibit A."] 
 
 § 1528. Essential Averments— Request— Sale and Ac- 
 counting. — Request is a condition precedent in a bond to 
 account on request,' and a sale must be averred, with a refusal 
 to account therefor.^ 
 
 § 1529. On a Bond for the Fidelity of a Clerk. 
 
 Form No. 401. 
 [Title.] 
 
 The plaintiff complains, and alleges; 
 
 I. That on the day of , 18.., at , the 
 
 plaintiff being then about to employ one A. B. as a clerk, the 
 defendant covenanted with the plaintiff, under his hand and 
 seal, that if the said A. B. should not faithfully perform his 
 duties as a clerk to the plaintiff, or should fail to account to 
 the plaintiff for all moneys, evidences of debt, or other prop- 
 erty received by him for the use of the plaintiff, the defendant 
 would pay to the plaintiff whatever loss he might sustain by 
 reason thereof, not exceeding dollars. 
 
 n. That between the day of , 18. ., and the 
 
 day of , 18 . . , the said A. B. received moneys 
 
 and'o'ther property, amounting to the value of dollars, 
 
 for the use of the plaintiff, for which he has not accounted to 
 
 him. - 1 
 
 [Demand or Judgment.] 
 
 S 1530 Application of Bond.-Such a bond appUes to the 
 
 honesty of the clerk, and not to his ability, and the sureties are 
 
 1 Davis V. Gary, 15 Q. B. «8; S. C, 69 Eng. Com. L. «6. 
 
 2 Wolfe V. Luyster, 1 Hall, 161. 
 
582 FORMS OF COMPLAINTS. § 1531. 
 
 not responsible for loss arising from a mere mistake ;i unless 
 the clerk conceals deficiencies, and for this purpose makes false 
 entries in the books. ^ 
 
 § 1531. Consideration. — Appointment to o{flce and its emol- 
 uments is a sufficient consideration to support the obligation of 
 sureties for fidelity. 3 
 
 § 1532. Faithful Discharge of Duties. — In a suit on a 
 bond to secure faithful performance of various duties of secre- 
 tary and treasurer to a private association, if the defendant 
 who was a surety (the principal being dead), craved oyer of the 
 bond and conditions, and pleaded general performance, it is 
 sufficient.* Where an inhabitant of a town acted as justice of 
 the peace, and gave a bond with sureties for the faithful dis- 
 charge of his duties as justice, the fact that no law required 
 him to give bond would not affect the validity of the instrument 
 as a common-law obligation.'' 
 
 § 1533. On an Official Bond. 
 
 Form No. 4011. 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges: 
 
 I. That the defendant, on the day of ..". , 18..., 
 
 at , made and delivered his bond or writing obligatory, 
 
 sealed with his seal, of which the following is a copy [copy 
 bond] . 
 
 II. [Set forth breach.] 
 
 [Demand of Judgment.] 
 § 1534. Allegation Of Breach— For Neglect of Sheriff 
 to Levy. 
 
 Form No. 403. 
 
 That said sheriff did not execute said process, but althoijgh 
 there was then within his county real and personal property of 
 which he might have levied the moneys thereby directed to be 
 levied, he neglected and refused so to do, whereby the plaintiff 
 lost his said debt. 
 
 § 1535. Allegation of Breach— For Neglect to Sell 
 after Levy. 
 
 ■ Form No. 404. 
 
 That the said sheriff by virtue thereof on the day of 
 
 , levied on tlie goods of said A. B., of the value of 
 
 dollars ; but he negleq,ted to advertise and sell the 
 
 goods so levied on by him as aforesaid, and no part of the 
 
 ' Union Bank v. Clossey, 10 Johns. « Jackson v. Rundlet, 1 Woodb. & 
 
 S71. M. 381. 
 
 'M. ^Williamson v. Woolf, 87 Ala. 
 
 » United States v. Linn. 15 Pet. 290. 298. 
 
§ 1539. UNDERTAKINGS, BONDS, ETC. , 583 
 
 moneys directed to be collected on the relator's said execution 
 has been received bj' the relator.'- 
 § 1536. Allegation of Breach— For Neglect to Return. 
 
 Form No. 405. 
 
 Who by virtue thereof, on the day of , levied on 
 
 the goods of said A. B., of the value of dollars; but 
 
 although more than sixty days elapsed after its delivery to him 
 and before this action, wholly neglected and failed to make re- 
 turn of said execution, and no part of the moneys directed to be 
 •collected thereby has been received by the relator. 
 
 § 1537. Allegation of Breach of Treasurer's Bond. 
 
 Form No. 406. 
 
 That said treasurer between the ....day of , and 
 
 the .... da}' of , received various sums of money, as 
 
 such treasurer, amounting to about the sum of dollars 
 
 [being a part of the tax raised in his county for the year J, 
 
 and that he fraudulently and in breach of his trust converted and 
 appropriated to his own use said sum.^ 
 
 § 1538. Bond — Official. — In an action upon a sheriff 's bond, 
 the declaration did not charge the sheriff with the breach of his 
 ■duty in the execution of any writ or process in which the real 
 plaintiff was personally interested ; but with a neglect or refusal 
 to preserve the public peace, in consequence of which the plaintiff 
 •suffered great wrong and injury from the unlawful violence of a 
 mob, it was held, on motion in arrest of judgment, that the decla- 
 ration did not show a cause of action. ^ 
 
 § 1539. Breach must be Assigned. — In a declaration upon 
 3, covenant for general performance of duty, if no breach be as- 
 signed, or a breach which is bad, as not being, in point of law, 
 -within the scope of the covenant, the defect is fatal, even 
 after verdict.* Where, in an action upon a sheriff 's bond, the 
 declaration did not charge the sheriff with a breach of his duty 
 in the execution of any writ or process in which the real plaint- 
 iff was personally interested, but with a neglect or refusal to 
 preserve the public peace, in consequence of which the plaint- 
 iff suffered great wrong and injury from the unlawful violence 
 
 1 People V Ten Byok, 13 Wend. 448. condition, though only nominal dam- 
 
 This form may be used where writ was ages could be recovered under it : 
 
 delivered to the deputy. See ? 1543. Albany Dutch Church v. Vedder, 14 
 
 * Where the condition of a treasurer's Wend. 165. -.iqit tt a 
 
 bond was that he " should keep a sep- « South v. Maryland, 18 How. U. S, 
 
 Juch trea°surer"of*an'mte°ys,'^etc!! ''^Minor v. Merchant's Bank of Alex- 
 t was hetd thit a breach mi/hi be as- andria, 1 Pet 46, 67 ; compare Snow 
 signed by negativing the words of the v. Johnson, 1 Mmn. 48. 
 
584 FORMS OF COMPLAINTS^ § 1540. 
 
 of a mob ; the declaration did not set forth a sufficient cause of 
 action against the sheriff and his sureties.^ 
 
 § 1540. Change of Parties on Bond. — "Where the prin- 
 cipal causes his name to be stricken from a bond without their 
 knowledge or consent, it is void as against the sureties.^ But 
 the name of an obligor may be erased and a new obligor in- 
 serted by consent, of all parties, without making the bond void.* 
 
 § 1541. Collector's Bond. — The district attorney of a county 
 has the authority, of his own volition, with or without instruc- 
 tions from the controller of state, county court, or the board of 
 supervisors of a county, to bring an action upon the official 
 bond of the tax collector of a county.^ In an action of cove- 
 nant brought on a penal bond given to account for public 
 moneys, if the breach assigned is the non-performance of the 
 condition, the count will be adjudged bad on demurrer. Th& 
 breach assigned must be the non-payment of the penalty.^ All 
 the money due on a tax collector's bond may be recovered in a 
 single action in the name of the people of the state, although 
 part of the money thus due may belong to the county and part 
 to the state. ^ The complaint in an action on a tax collector's- 
 bond need not aver that the taxes charged on the assessment 
 roll were legally assessed.'' The securities on the official bond 
 of a sheriff and ex offiaio collector of the revenue are liable for- 
 an act of the latter in collecting an assessment of taxes on prop- 
 erty not subject to taxation.^ 
 
 § 1542. Constable. — An action on the official bond of a 
 constable lies primarily upon breach of the condition of the 
 bond, whether the injury for which suit is brought be a trespass 
 or not, the result of the non-feasance or misfeasance of the offlj 
 cer.8 In an action against sureties on a constable's bond, in 
 addition to the allegation that the officer did not levy the 
 amo'int of an execution, to take the body of the defendant, it 
 must be alleged that the defendant had property which might have 
 been levied upon, or that his body could have been found.'" 
 
 § 1543. Constable's Deputy. — In the absence of statutory 
 provisions as to the appointment of deputies by constables, the 
 
 1 South V. State of Maryland, 18 bond, was raised in O'Neale v. Long- 
 How. U. S. 396. 4 Cranoh, 60. 
 
 2 Miller v. Stewart. 9 Wheat. 702 ; * People v. Love, 25 Cal. 520. 
 Hunt V. Adams, 6 Mass. 521 ; Mar- ^ U. S. v. Brown, 1 Paine, 422. 
 tin V. Thomas, 24 How. U. S. 315. « People v. Love, 25 Cal. 520. 
 
 2 Speake v. United States, 9 Cranch, ' Id. 
 
 28. The question whether the addi- ^ State v. Shacklott, 37 Mo, 280. 
 
 tion of a surety, without tha knowl- ' Van Pelt v. Littler, 14 Cal. 194. 
 
 edge of the former surety, avoids the '» Lawton v. Irwin, 9 Wend. 233. 
 
§ 1550. UNDERTAKINGS, BONDS, ETC. 585 
 
 common-law rule applies, and constables may act by deputy, 
 in the exercise of their ministerial functions. i 
 
 § 1544. Copy of Bonds.— If a copy of the bond sued on is 
 set out in the complaint, an answer denying its execution, 
 which is not verified, admits its due execution. ^ 
 
 § 1545. County Assessor.— In suit upon the official bond 
 of a county assessor, who had received a certificate of election, 
 given bond, and entered upon his duties, neitner the principal 
 nor the sureties can deny the official character of the assessor. 
 Thej' are estopped by the bond.^ 
 
 § 1546. Date of Bonds. — Where the date of a surety bond 
 is subsequent to the appointment of the principal to office, the 
 declaration should allege that the money collected by the prin- 
 cipal remained in his hands at the time when the surety bond 
 was executed.* 
 
 § 1547. Defect in Bonds. — If there is a defect in an official 
 bond by the failure of the principal to place a seal opposite his 
 name, the defect will not defeat a recovery thereon as against 
 the sureties, if the defect is suggested in the complaint. ^ 
 
 § 1548. Delivery. — In a suit on a bond, delivery must be al- 
 leged ; but the omission to allege it can only be taken advantage 
 of by demurrer ; it is cured by verdict.^ The production of the 
 bond in court by the obligee, is sufficient evidence of its delivery.^ 
 
 § 1549. Bxecution of Bonds. — If the complaint on an 
 official bond avers the due execution of the same by both prin- 
 cipal and sureties, and the answer takes issue on the averment, 
 and the verdict and judgment are for plaintiff, the judgment 
 will not be disturbed on appeal upon the judgment roll, on the 
 ground that what purports to be a copy of the bond annexed to 
 the complaint does not contain the signature of the principal.* 
 If sureties on an official bond sign with an express understand- 
 ing with the principal in the bond, that certain other persons 
 shall sign as sureties, and that unless such other persons sign, 
 it shall not be delivered, a delivery of the bond to the obligee, 
 without the signature of such other persons, does not render it 
 invalid as to the sureties who do sign.9 
 
 § 1550. For Selling Homestead.— A complaint against a 
 sheriff and his sureties for selling under execution the home- 
 
 1 Jobson V. Fennell, 35 Cal. 711. « Garcia v. De Satrustegui, 4 Cal. 
 
 2 Sacramento Co. V. Bird, 31 Gal. 244. Aor.TRm 
 go ' Tidball V. Halley, 48 Cal. 610. 
 
 s People V. Jenkins, 17 Cal. 500. » Mendocino Co. v. Morris, 32 Cal. 
 
 ^^* United States v. Linn, 1 How. U. 145^.^^^^^ ^_ ^^^^^^^ ^^ ^^^_ ^^^ 
 
 '» Sacramento Co. v. Bird, 81 Cal. 66. 
 
586 FORMS OF COMPLAINTS. § 1551. 
 
 stead of plaintiff, wliich sets out that the sheriff was in pos- 
 session of a certain execution against the plaintiff, Richard Roe, 
 under which he sold the property, and averring damages in the 
 sum of two thousand dollars, the value of the property, is in- 
 sufficient, as the same does not state facts sufficient to consti- 
 tute a cause of action, for the sheriff's deed conveys nothing if 
 the property was a homestead.^ 
 
 § 1551. Judgment. — In an action against the principal and 
 sureties on an official bond, the court should first fix the amount 
 of the defalcation of or recovery from the former, and then 
 proceed with a separate judgment against each of the sureties 
 for the full amount for which he has made himself liable, and 
 that each shall be satisfied by the collection or payment of such 
 defalcation, or recovery and costs.^ A judgment for damages 
 against an officer for official delinquency, which remains unsat- 
 isfied, will not prevent a subsequent action on the official bond.^ 
 
 § 1552. Liabilities of Obligors. — After a bond has been 
 received and acted on by the county officers, the obligors are 
 liable as if it had been approved ; but this liability applies only 
 to the duties properly appertaining to his office as such and not 
 to the duties belonging to a distinct office, with the execution 
 of which he may charged.'* If the penal sum is changed in 
 an official bond after the principal obligor has executed the 
 same, and he then forwards it for approval, he is liable on the 
 bond as approved. ^ The liability is several as well as joint, un- 
 less expressed to be only joint, and the plaintiff may sue one 
 or both sureties.^ The sureties on a sheriff 's bond are not lia- 
 ble for his acts or omissions in the service of a precept which by 
 law he was not authorized to serve.'' 
 
 § 1553. Marshal's Bond. — In an action on a marshal's 
 bond, it is not necessary to aver that the penalty has not been 
 paid. The usual averment of the breach of the condition is 
 sufficient. 8 To an action on a marshal's bond, for taking insuffi- 
 cient security on a replevin bond, a plea in bar that a levy was 
 made on goods, and chattels, lands, and tenements, sufficient to 
 satisfy the judgment, is good." 
 
 § 1554. Ministerial Duties. — It is not only for a breach 
 of his duty in the execution of his ministerial offices, that the 
 
 1 Kendall v. Clark, 10 Cal. 18. ' Dane v. Gillmore, 51 Me. 544. 
 
 2 People V. Rooney, 29 Cal. 642. ^ Sperring v. Taylor, 2 McLean, 
 ' State V. Kruttschnitt, 4 Nev. 178. 862 ; compare Hazle v. Waters, 3 
 « People V. Edwards, 9 Cal. 286. Cranch C. Ot. 420. 
 
 6 People V. Kneeland, 31 Cal. 288. » Sedam v. Taylor, 3 McLean, 547. 
 * Morange v. Mudge, 6 Abb. Pr.243. 
 
§ 1561. UNDERTAKINGS, BONDS, ETC. 587 
 
 sheriff and his sureties are liable upon his bond.* He should 
 not be required to come prepared tc justify his whole ofladal 
 conduct.' 
 
 § 1555. Misjoinder of Causes of Action.— A cause of ac- 
 tion on an official bond agaiist the principal and his sureties can 
 not be united with a cause of action for damages against the prin. 
 -eipal alone. 3 
 
 § 1556. Non-payment of Money. — Declaring on a sheriff's 
 bond for the non-payment of money received by him for military 
 fines, it is not necessary to name who paid the money to him, or 
 issued the warrants on which it was collected ; a reference to the 
 statute makes the breach certain enough.* 
 
 § 1557. Notice. — No averment of notice to the defendant is 
 requisite in the complaint, where the matters assigned as breaches 
 lie as much in the knowledge of one party as the other. ^ 
 
 § 1558. Receiver's Bond. — The sureties on a receiver's 
 bond are only bound from the date of the bond ; and if the bond 
 bears date some months after the official term of the receiver 
 -commenced, the declaration is defective if it omits to show the 
 receipt of the monej' after the date of the bond, and before the 
 expiration of his official term.^ A declaration which charged a 
 receiver of public moneys with not paying over moneys which 
 came into his hands the day after his bond expired, is bad on 
 demurrer.'' 
 
 § 1559. Request or Demand. — "Where a county treasurer 
 •has embezzled and converted money of the county it is not 
 necessary for the supervisors to make a request or demand before 
 a suit on his bond.^ 
 
 § 1560. Retaining Commissions. — In an action on an 
 official bond of a county treasurer, if the complaint avers only a 
 breach by a failure of the treasurer to keep the money in the 
 county safe, and by a withdrawal of the same and conversion to 
 his own use, a recovery can not be had for a failure of the 
 treasurer to pay into the treasury his commissions retained on 
 payments made to the state. « 
 
 § 1561. Retaining Money.— An averment in a complaint 
 on a county treasurer's official bond that he received money be- 
 
 1 South V. Maryland, 18 How. U. S. Tomlinson v. Eowe, Hill & D. Supp. 
 
 -ana 410. 
 
 2 People V. Brush, fi Wend. 464; « U. S. v. Spencer, 2 McLean 405. 
 
 ^r.tt:-v""Klutt'« 4 Nev. J ^'upervisors of Allegany v. Van 
 
 17« Cam Den, 3 Wend. 48. „.,•„, 
 
 * People V. Brush, 6 Wend. 454. » Sacramento County v. Bird, 31 
 
 'People V.Edwards, 9 Cal. 292. See Cal.«6. 
 
588 FOKMS OF COMPLAINTS. § 1562. 
 
 longing to the county and retains it, and refuses to deliver it to 
 his successor in office, is a suflScient averment of a breach of its^ 
 conditions.! 
 
 § 1562. Treasurer's Bond. — A complaint in an action 
 against a treasurer, for a failure to pay his successor money 
 which came into his hands, should allege that it remained in 
 his hands at the expiration of his term.^ And where the treas- 
 urer has paid over to his successor the amount found due 
 against him, he is still liable for all moneys actually received by 
 him as such treasurer, and by mistake not charged to him in 
 such accounting.3 The liability of the sureties continues till 
 he has rendered a just and true account of such moneys.* 
 
 § 1563. Trespass. — A complaint in an action against a 
 sheriff and his sureties, for an alleged trespass of the sheriff, 
 should allege that the bond was the sheriff's official bond, and 
 set out enough of its contents to show that those who signed it 
 were bound to indemnify parties injured by sheriff's mal- 
 feasance. 5 In trespass for talking goods, against a sheriff who 
 justified under a writ of attachment against a third person, he 
 called as a witness his deputy, who stated that he served the at- 
 tachment, and related certain conversation between himself and 
 the plaintiff. On cross-examination, he stated' that "he was 
 deputy sheriff, and under bonds to the sheriff." Whereupon 
 plaintiff moved to stril^e out his testimony on the ground of in- 
 terest; it was held that the motion was properly denied, as 
 from the answer it was not certain that the character of his 
 bonds was such as to malie him interested. ^ If the complaint 
 in an action against a sheriff and his official bondsmen alleges 
 only a cause of action against him as a trespasser, and against 
 his sureties as signers of the bond, and not otherwise, there is a 
 misjoinder of cause of action.' A complaint in an action 
 against a sheriff and his sureties for an alleged trespass of the 
 sheriff, which merely avers that the sureties are the securities on 
 his official bond, and that the same was duly filed, executed, 
 and recorded, does not state a cause of action on the bond.* 
 In an action on a replevin bond the defendant's liability is lim- 
 ited to the damage sustained by a failure to return the prop- 
 erty.8 
 
 1 Mendocino County v. Morris, 32 ^G-hirardelli v. Bourland, 32 Cal.585. 
 
 Cal. 145. 6 Towdy v. Ellis, 22 Cal. 650. 
 
 spickettv. State, 24 Ind. 383. ' Ghirardelli v. Bourland, 32 Cal. 
 
 ' Jefferson County v. Jones, 19 Wis. 685. 
 
 61. 8 Id. 
 
 * Id. » Hunt V. Robinson, 11 Cal. 262. 
 
i 1566. "WAKRANTIES OF CHATTELS. 689 
 
 CHAPTER X. 
 ON WARRANTIES OF CHATTELS. 
 § 1564. Warranty of Title. 
 
 Form No. 407, 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18.., at , the 
 
 ■defendant sold to the plaintiff [state the article sold], for 
 
 <iollars. 
 
 II. That by said contract of sale it was understood by the 
 plaintiff and the defendantto be, and it was a part of the terms and 
 oonsideration of said contract of sale, that the defendant had the 
 lawful right and title io so sell, and to transfer the ownership of 
 said goods to the plaintiff. 
 
 III. That the defendant had, in fact, no right or title to sell or 
 ■dispose of said goods. 
 
 IV. That one E. F. then was the owner of said goods, and 
 
 afterwards, on the day of , 18. ., he demanded pos- 
 
 •session of the same from the plaintiff ; and the plaintiff was com- 
 pelled, and did then deliver them up to E. F., and they were 
 wholly lost to the plaintiff. 
 
 V. That by reason of the premises the plaintiff was misled and 
 injured, to his damage dollars. 
 
 [Dbmand of Judgment.]! 
 
 § 1565. Sales by Auctioneer. — There seems to be a doubt 
 ■whether in an ordinary sale of goods by auction, an auctioneer 
 lias any right or authority to warrant goods sold by him, in the 
 abseRce of any express authority from his principal to do so, and 
 without proof of some known and established usage of trade from 
 which an authority can be implied.^ It may be acceiited gener- 
 rally as the true doctrine that they are special agents having 
 authority to sell, and not to warrant. » 
 
 § 1566. Effect of General Warranty.— A general war- 
 ranty does not extend to defects inconsistent therewith, of which 
 the buyer was then aware, or which were then easily decernible 
 by him without the exercise of peculiar skill, but it extends to all 
 other defects.* 
 
 1 For the Drovisions of the Califor- * The Monte Allegre 9 Wheat. 616, 
 1 j( or the provisions „ ^ 347 gee Dent v. MoGrath, 8 Bush 
 
 nia civil °°de „'^'*V?|o 1777 (Kv.), 174; see also Civil Code Cal., 
 
 chattels, see sees. l7biS-w(o. v"-. ';_„, S-qq 
 
 c.T<S£"55,fS?/i.v •"ii^ifcrc..., .... 1™. 
 
 Gray, 197. 
 
590 FOEMS OP COMPLAINTS. § 1567. 
 
 § 1567. Implied Warranty of Title. — Where the vendor 
 of chattels in his possession gives a written bill of sale contain- 
 ing no covenant of warranty, there is an implied warranty of title. ^ 
 The vendor in possession wai-rants the goods by implication ; un- 
 less at the time he expressly disavows an intent to do so.^ But if 
 out of the possession of the vendor, in the absence of fraud, the 
 buyer takes at his own risk.^ The use of a certain name in a 
 sale note for the goods sold is a warranty that they bear that 
 name.* The complaint need not aver the warranty, for this im- 
 plied warranty is an inference of law.^ 
 
 § 1568. Judicial Sale. — Upon a judicial sale, the only war- 
 ranty implied is that the seller does not know that the sale will 
 not pass a good title to the property.® 
 
 § 1569. Measure of Damages. — In. an action upon an im- 
 plied warranty of title to personal property, where a judgment 
 in trover has been obtained against the purchaser, the measure 
 of damages is the damages and costs recovered by the true 
 owner with interest thereon.' But where the goods are re- 
 plevied of the buyer, their value alone, and not damages for their 
 detention, nor attorneys' fees paid by him for defending the 
 title, is held to be the measure of damages. ^ 
 
 § 1570. Money. — On an' exchange of money, each party 
 thereby warrants the genuineness of the money given by him.* 
 
 § 1571. Skill— Implied Warranty of.— When a skilled 
 laborer, artisan, or artist is employed, there is on his part an 
 implied warranty that he is of skill reasonably competent to the 
 task he undertakes.^* 
 
 § 1572. Waiver of Warranty.— The complaint in an 
 action to recover the price of a machine, sold with a warranty, 
 under an agreement that the continued use of the machine by 
 the vendee should be regarded as a waiver of the warranty, 
 need not allege that the machine corresponded with the war- 
 ranty if it avers the continued use of it by the vendee. ^^ 
 
 § 1573, Warranty of Title.— If the seller has possession 
 of the article, and sells it as his own and not as agent for an- 
 other, and for a fair price, he is understood to warrant the title.^* 
 
 1 Miller v. Van Tassel, 24 Cal. 458 ; ' Blasdale v. Babcoek, 1 Johns. 617 ; 
 
 Gross V. Kierski, 41 Id. 111. Armstrong v. Percy, 5 Wend, 535. 
 
 * Miller V. Van Tassel, 24 Cal. 458; *Id.; but see IJewis v. Peake, 7 
 Eew V. Barber, 8 Cow. 272. Taunt. 152 ; see, also, Polhemus v. 
 
 8 3 Kent (5th ed.), 478 ; McCoy v. Herman, 45 Cal. 573. 
 Artcher, 3 Barb. 823; Edick v. Crim, » Civil Code Cal., sec. 1807 
 10 Id. 445. '» 5 Kobinson's Pr. 707. 
 
 ♦ Flint V. Lyon, 4 Cal. 17. " Brngs: v. Bamberger, 28 Ind. 198. 
 ' Van Santv. on PI. 287. "2 Kent's Com. 478. 
 
 • Civil Code Cal., sec. 1777. 
 
§ 1577, WAREANTIES OF CHATTELS. 591 
 
 In New York, a warranty of title is implied from an unqualified 
 sale.i And it extends to the right to the use of the thing sold, 
 e. g., a patented article.^ But it arises only in cases where the 
 vendor is in possession.^ In every sale of personal property, 
 except a judicial sale, there is implied warranty of tttle or of 
 peaceable possession.* 
 
 § 1574. Warranty by Agent. — An agent, whether general 
 or special, who is authorized to sell personal property, is pre- 
 sumed to possess the power of warranting its quality and con- 
 dition, unless the contrary appear.^ So an agent, employed to 
 sell negotiable paper, may, in the absence of any limitation of 
 his authority, represent it as a business note, and valid. ^ 
 
 § 1575. Wagranty, on Sale of Written Instrument. — One 
 who sells or agrees to sell an instrument purporting to bind any 
 one to the performance of an act, thereby warrants that he has 
 no knowledge of any facts which tend to prove it worthless, 
 such as the insolvency of any of the parties thereto, where that 
 is material, the extinction of its obligations, or its invalidity for 
 any cause.'' 
 
 § 1576. Warranty by Seller. — One who seUs or agrees to 
 sell personal property, knowing that the buyer relies on his 
 advice or judgment, thereby warrants to the buyer that neither 
 the seller nor any agent employed by him in the transaction 
 knows the existence of any fact concerning the thing sold which 
 would, to his knowledge, destroy the buyer's inducement to buy.^ 
 
 § 1577. On Warranty of Quality. 
 
 Form No. 408. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 .1. That on the day of , 18. ., at , the 
 
 defendant warranted a steam engine to be in good order, and 
 thereby induced the plaintiff to purchase the same of him, and 
 
 to pay to him dollars therefor. 
 
 II. That the said steam engine was not then in good order, 
 whereby plaintiff was damaged in the sum of dollars. 
 
 [DbMAITD of JtTDGMBNT.] 
 
 fn^'l Sweetn^an V. Prince. 26 N. lf--::i:^^:i'^fll"''-' ''' 
 ! KT UnuKatet De^ST ; 177= but see Lipscomb v. Kitrell. U 
 EeSiSin?- ''''• « Civil Code Cal., sec. 1767. 
 
592 FORMS OB COMPLAINTS. § 1578. 
 
 § 1578. Assignment of Breach. — The agreement to take 
 back property, sold under a warranty of soundness, but which 
 proved unsound, or whereby defendant agreed to pay a sum of 
 money in consideration of said unsoundness and consequent re- 
 scission of sale, does not require assignment of a special breach, 
 witliinthe meaning of the code.'^ 
 
 § 1579. Averment of Warranty. — A general averment of 
 warranty is sufficient, as that the seller warranted the article to be 
 of good quality. 2 
 
 § 1580. Caveat Emptor. — That the buyer must take care or 
 be on his guard, ^ is a leading maxim of the law relating to the 
 contract of sale ; and its application is not affected by the circum- 
 stances that the price is such as is usually given f||- a sound com- 
 modity.'* If the vendor warrants the quality of the articles he 
 sells, he is bound to deliver them of the stipulated quality, and 
 the examination and selection of some of the articles by the ven- 
 dee when they are delivered, does not amount to a waiver of the 
 ■contract. 3 
 
 § 1581. Damages on Breach. — Under the forms of pleading 
 at common law, the vendee of chattels sold with a warranty of 
 title could, on a breach of the warranty, recover damages in as- 
 sumpsit, or he might sue in an action on the case for deceit, if 
 there had been deceit, as well as warranty of title ; but, in the 
 first case, he must aver specially that the defendant warranted his 
 title to the property, and that a breach of the warranty had oc- 
 curred, and in the latter, that the defendant falsely or fraudu- 
 lently represented himself to be the owner of the property, and 
 that he knew his representations were false.^ 
 
 § 1582. Damages, Measure of. — When the vendor of p«r- 
 sonal property is sued for a failure of title, the measure of dam- 
 ages is the price paid by the plaintiff.'' 
 
 § 1583. Executory Contract. — An executory contract for 
 the sale of corn. requires that it shall be in good and marketable 
 condition, without express words to that effect. ^ A contract to 
 deliver to the defendants, who were manufacturers of barrels 
 and staves, a certain quantity of stave bolts, was held to re- 
 
 ^ Stone V. Watson, 37 Ala. 279. 301. As to warranty on the sale of 
 
 2 Hoe V. !?anburn, 21 N.Y. 552. chattels, see sees 1763-1786, inclu- 
 
 3 Hob. 99; Co. Lit. 106, a; 2 Inst, sivo, Oal. Civil Code. 
 
 7U; Brooni's Max. 605. 6 Miller v. Van Tassel, 24 Oal. 458; 
 
 * i Staph. Com. 826 ; Cro. Jac. 2 ; Polhemus v. Heiman, 44 Id. 573. 
 Har^ous v. Stone, 1 Seld. 88 ; 2 ' Arthur v. Moss, 1 Or. 193. 
 Wood's Lect. 251; 2 Kent's Com. * Peck v. Armstrong, 38 Barb. 215; 
 478 ; 1 Story's Eq. Jur. 212. and see Koop v. Handy, 41 Id. 454. 
 
 * Willings V. Consequa, Pet. C. Ct. 
 
§ 1588. WAERA.NTIES OF CHATTELS. 593 
 
 quire a delivery of bolts of a good merchantable quality, and 
 suitable for the purposes for which they were intended.^ A 
 contract for the sale of " oxalic acid," even when the seller is 
 not the manufacturer, and at the time of contracting expressly 
 declines all responsibility as to the quality, and the buyer has 
 an opportunity of inspecting it, and no fraud exists, is not com- 
 plied with by the delivery of an article which does not in com- 
 mercial language come properly within the description of 
 " oxalic acid. "2 
 
 § 1584. Fraud need not be Alleged. — No averment or 
 knowledge of fraud is necessary to support this action. ^ Such 
 an allegation sounds in tort.* And if inserted in the complaint,5 
 the plaintiff may be compelled to elect on the trial between the 
 two grounds of liability.^ 
 
 § 1585. Implied Warranty. — On a sale of an existing 
 article, there is no implied warranty that the article is suitable 
 for the purpose for which it was purchased.''' In every agree- 
 ment for the future sale of merchandise, there is an implied 
 warranty that it shall be merchantable. ^ So when one sells an 
 article of his own manufacture, there is an implied warranty 
 that the article is free from any defect produced by the manu- 
 facturing process itself ; and where the defect is in the materials 
 employed, the T\:arranty is implied only where he is shown or 
 may be presumed to have known the defect. » 
 
 § 1586. Quality, how Averred. — The unsound condition 
 of the chattel should be averred according to the fact, in direct 
 and positive terms, and if valueless, that it was worth nothing, 
 and was of no value, i" 
 
 § 1587. Sale by Sample.— On a sale by sample there is an 
 implied warranty that the article shall correspond with the sam- 
 ple ; but an examination of samples, when there is an express 
 warranty, is not a waiver of the warranty." The law presumes 
 that the only warranty is that the bulk shall conform to the 
 sample in kind and quality. ^^ 
 
 § 1588. Warranty of Quality.— No particular form of 
 words is essential to constitute a warranty of quality. An asser- 
 
 1 Tr<.toV,MTT, V Wells 19 Wia. 25. ' Milburn v. Belloni, 34 Barb. 607. 
 
 ^fS^-IS^, :a C. B., , -a™iU0^v._O.^ a. Ba.b. 
 
 ^•sHofmarx v. Dord. 12 Barb. 3.36, ^.» Hoe v. Sanborn 21 I^. Y. 552; 
 Wi|mson .. Allison, 2 Bast, 4.6. C.v,l^Code,^s^e. 1;6|.^^^_ ^ ^^^^ ^^_ 
 
 5 Edick V. Crim, 10 Barb. 445. " WiUings v. Oonsequa, Pet. C. Ot. 
 
 Pr* 331 : 
 
 EsTEE, Vol. I — 38. 
 
594 FORMS OF COMPLAINTS. § 1589. 
 
 tion of the vendor, if relied upon by the vendee, and understood 
 by both parties as an absolute assertion and not merely an ex- 
 pression of opinion, will amount to one.^ Where the plaintiff 
 inspects the goods before purchasing, the case is taken from the 
 operation of the rule of implied warranty.^ An advertisement 
 of goods for sale, giving them a higher character than upon ex- 
 amination they turn out to merit, will not amount to warranty, 
 where the purchaser relies upon his own inspection. 3 A mere 
 praise of personal property, such as wool, indulged in by the 
 owner when offering it for sale, does not amount to an implied 
 warranty of its quality or condition, if the buyer has an oppor- 
 tunity to examine it and fails to do so, and no artifice is used 
 by the seller to prevent him from making an examination.* If 
 one party contracts to deliver the other wool '"in good order," 
 and the latter agrees to accept and pay for it, the clause "in 
 good order "is an express warranty. ^ 
 §1589. On Warranty of Soundness, 
 
 Form No. 409. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , 
 
 the defendant sold to the plaintiff a horse, for dollars. 
 
 II. That by the said contract of sale the defendant warranted 
 the said horse to be sound, and thereby induced the plaintiff to 
 purchase the same of him, and to pay him therefor the said 
 price of dollars. 
 
 III. That the said horse was at the time of said sale unsound 
 in this: that [state wherein he was unsound]. 
 
 IV. That the plaintiff was misled and injured thereby, and 
 
 has sustained damages by reason of the premises, to the amount 
 
 of dollars. 
 
 [Demand of Jtjbgment.] 
 
 § 1590. Duty of Purchaser. — A purchaser can not pro- 
 ceed without inquiry or examination to use an article which 
 will damage his business, relying upon a, warranty which only 
 goes to the fact of the nature or character of the article, and 
 not to the effect of using it, and still hold the vendor responsi- 
 ble for the consequences. 8 
 
 1 Polhemus v. Heiman, 45 Cal. 573 ; etc., are implied, considered in Hoe 
 
 Sweet V. Bradley, 24 Barb. 549 ; Chap- v. Sanborn, 21 N". Y. 552. 
 
 man v. Muroh, 19 Johns. 290; Carley ^o^lhoun v. Vechio, 3 "Wash. C. Ct. 
 
 V. Wilkins, 6 Barb. 567 ; Wilbur v. 165 ; McVeigh v. Messersmith, 5 
 
 Cartright, 44 Id. 536. Cranch 0. Ct. 81 6. 
 
 ''■ Moore v. McKinlay, 5 Cal. 471. * Byrne t. Jansen, 50 Cal. 624. 
 
 The grounds and principles upon ^ Polhemus v. Heiman, 50 Oal. 488. 
 
 which warranties of title, of quality, « Milburn v. Belloni, 34 Barb. 607. 
 
§ 1596. WARRANTIES OF CHAtTELS. 595 
 
 § 1591. Measure of Damages.— The plaintiff may recover 
 the difference between the value of the chattel as warranted and 
 as found to be by the court or jury, and special damages for in- 
 juries occasioned by the condition of the chattel.^ Special dam- 
 ages for injuries occasioned by the condition of the chattel must 
 be averred, as the communication of infectious diseases by an 
 animal warranted sound. ^ 
 
 § 1592. That Plaintiff Relied on Warranty.— A com- 
 plaint which alleges that plaintiff purchased of defendant twenty- 
 seven head of hogs ; that defendant represented them to be sound 
 and healthy ; that the plaintiff relied on ^aid representations, 
 having no opportunity by ordinary diligence to discover that the 
 same were not true ; that in fact they were diseased and unhealthy, 
 being then infected with hog cholera, and known to be so by the 
 defendant, and that afterwards twenty-five of them died with 
 that disease, is good on demurrer. ^ 
 
 § 1593. The Plaintiff was Misled.— The complaint must 
 aver that the plaintiff was actually misled by reason of the ■war- 
 ranty.* 
 
 § 1594. Warranty of Soundness. — A general warranty of 
 soundness covers even visible defects of a chattel, unless they are 
 such as could be discerned by an ordinary observer without 
 peculiar skill.* A mere cold controllable by ordinary remedies, 
 not affecting the general health or usefulness of a horse, is not an 
 unsoundness.* A guaranty that the article should pass inspection 
 is nothing more -than the usual warranty of the soundness and 
 quality of the thing sold.'' 
 
 § 1595. Rights in Case of Breach. — The breach of a war- 
 ranty entitles the buyer to rescind an agreement for sale, but 
 not an executed sale, unless the warranty was intended by the 
 parties to operate as a condition. ^ 
 
 § 1596. On a Warranty of Judgment. 
 
 Form No. 410. 
 [Title.] 
 
 The plaintiff complains-, and alleges : 
 
 I. That on the day of , 18..., the defendant, 
 
 for a valuable consideration, assigned to this plaintiff a judg- 
 ment which on the day of , 18.., he recovered 
 
 ' Jeffrey v. Bigelow, 13 Wend. 518. 57; Margetson v. Wright, 20 Erg. C. 
 
 sia. Law, 269; Birdseye.v. Frost, 34Barb. 
 
 « Baker v. McGinniss, 22 Ind. 257. 367. 
 
 «Holman v. Dord, J2 Barb. 336; « Springstepd v. Lawson, 14 Abb. 
 
 Oneida Mfe. Soo. v. Lawrence, 4 Cow. Pr. 328 ; 23 How. Pr. .S02. 
 
 440. ' G-i bson v. Stevens, 8 ITnw. TJ. S. 384. 
 
 »'Chit. Con. 456; Pars. Merc. Law, * Civil Code Oal., sec. ^786. 
 
696 FOKMS OF COMPLAINTS. § 1697. 
 
 in the superior court of the county of , for the sum of 
 
 dollars, in a certain action wherein A. B., defendant 
 
 above named, was the plaintiff, and one C. D. was defendant. 
 
 II. That said assignment contained a covenant on the part of 
 the defendant, of which the following is a copy [copy of the 
 covenant] . 
 
 III. That in truth, at the time of said assignment, said judg- 
 ment had been paid in fall to the defendant, and no part thereof 
 was or now is due thereon. 
 
 IV. That by means of the premises this plaintiff was misled 
 and injured, to his damage dollars. 
 
 [Dbmand of Judgment.] 
 
 § 1597. On a Warranty of a Note. 
 
 Form No. kll. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., the defendant 
 
 offered to pass to the plaintiff, for a valuable consideration, a 
 promissory note, of which the following is a copy [copy of the 
 note], and he then and there warranted the said note to have 
 been made by the said A. B. 
 
 II. That the plaintiff, relying upon said warranty, purchased 
 
 said note of the defendant, and paid therefor the sum of 
 
 dollars. 
 
 III. That said note was not made by said A. B. ; that his 
 name was forged thereto. 
 
 IV. That by reason of the premises the plaintiff was injured 
 and misled, to his damage dollars. 
 
 [Demand or Judgment.] 
 
 CHAPTER XI. 
 
 SEVEHAL CAUSES OF ACTION UNITED. 
 § 1598. Cause of Action under the Money Counts, 
 
 Form No. 412. 
 [Title.] 
 
 The plaintiffs complain, and allege : 
 
 I. That at the times hereinafter mentioned, the plaintiffs 
 were partners, doing business at the city and county of San 
 Francisco, state of California, under the firm name of A. B. & 
 Co., and the defendants were partners doing business at the 
 said city and county of San Francisco, under the firm name of 
 C. D. & Co. 
 
§ 1599. SBVEKAL CAUSES OP ACTION UNITED. 
 
 597 
 
 First. — For a first cause of action, the plaintiffs allege; 
 
 I. That on the day of , 18..., at , at 
 
 the request of the defendants, the plaintiffs deposited with the 
 
 defendants the sum of dollars, gold coin of the United 
 
 States, which sum the defendants promised to pay to the 
 plaintiffs on demand. 
 
 II. That >n the day of , 18.., at , 
 
 the plaintiffs demanded payment of the saine from the defend- 
 ants, but they have not paid the same. 
 
 Second. — And for a second cause of action, the plaintiffs 
 allege : 
 
 I. That on the day of 18 , at , the 
 
 defendants received dollars from one E. F., to be paid 
 
 to the plaintiffs. 
 
 II. That the defendants have not paid the same. 
 
 Third. — ^And for a third cause of action, the' plaaitifls allege : 
 
 I. That on the day of , 18..., at , the 
 
 plaintiffs lent to the defendants dollars. 
 
 n. Th the defendants have not paid the same. 
 [Demand of Tudsmknt.]! 
 
 § 1599. Accounts. — When separate accounts between the 
 same parties are separate causes of action, they may be sepa- 
 rately stated.^ The plaintiff may demand in the same action 
 
 1 The plaintiff may unite several 
 causes of action in the same com- 
 plaint where they all arise out of: 
 1. Contracts, express or implied; 2. 
 Claims to recover specific real prop- 
 erty, with or without damages for 
 the withholding thereof, or for waste 
 committed thereon, and the rents and 
 profits of the same; 3. Claims to re- 
 cover specific personal property, with 
 or without damages for the withhold- 
 ing thereof; 4. Claims against a trustee 
 by virtue of a contract, or by opera- 
 tion of law; 5. Injuries to character; 
 6. Injuries to person; 7. Injuries to 
 property. 
 
 The causes of action must belong 
 to one only of these classes, and must 
 affect all the parties to the action, 
 and not require different places of 
 trial, and must be separately stated ; 
 but an action for malicious arrest 
 and prosecution, or either of them, 
 may be united with an action for 
 either an injuiy to character or to the 
 person: Cal. Code 0. P., sec. 427; N. 
 Y. Code Proc, sec. 484. 'The Ohio 
 code, sec. 80, permits the joinder of 
 
 causes of action for injuries, with or 
 without i^oree, to person and prop- 
 erty, or either. The Wisconsin code, 
 sec. 31, is the same as the Ohio code. 
 The Iowa code, sec. 2630, is as fol- 
 lows : " Causes of action of whatever 
 kind, where each may be prosecuted 
 by the same kind of proceedings, pro- 
 vided that they be by the same party, 
 and against the same party in the 
 same rights, and if suit on all may he 
 brought and tried in that county, may 
 be joined in the same petition; but 
 the court, to prevent confusion there- 
 in, may direct all or any portion of 
 the issues joined therein to be tried 
 separately, and may determine the 
 order thereof." Under this section, 
 tort and contract may be joined : 
 Turner V. First Nat. Bank, 26 Iowa, 
 562. Code of Dakota, sec. 136, is 
 copied from the Ohio Code ; Nevada 
 Code, sec. 64 ; Oregon Code, sec. 91. 
 2 Phillips V. Beriok, 16 Johns. 136 
 Stevens V. liockwood, 13 Wend. 644 
 Staples V. G-oodrich, 21 Barb. 317 
 Secor V. Sturgis, 2 Abb. Pr. 69. 
 
598 FOKMS OF COMPLAINTS. § 1600. 
 
 that defendant account for and refund a proportion of the out- 
 fit and advances made on a joint adventure. i 
 
 § 1600. Causes of Action may be United.— The plaintiff 
 may unite several causes of action in the same complaint 
 ■when they arise from and constitute part of the same transac- 
 tion,^ if such union does not amount to a misjoinder, in which 
 case the objection can be raised only by demurrer.^ But actions 
 so united must affect all the parties to the action, and not re- 
 quire different places of trial ; but the defendants need not be 
 all equally affected.* An action for goods sold and for the 
 price of goods wrongfully taken from a third person and sold, 
 may be joined ; the tort in the latter having been waived by its 
 assignment,^ and must belong to tne same class, ^ and must be 
 consistent with each other. ^ 
 
 § 1601. Claims in Two Capacities. — Claims against trus- 
 tees by virtue of a contract, or by operation of law, may be 
 joined. 8 So, a trust and a vendor's lien may be united in one 
 action. 8 Counts on promises to the testator and to his ex- 
 ecutor in his representative capacity may be joined.^" Counts 
 on promises made by the testator may be joined with counts on 
 promises made by the administrator, as such." After counts 
 by the. plaintiff, as executor, for an excessive distress, and for 
 distraining for more rent than was due, the declaration pro- 
 ceeded thus: " And the plaintiff, as such executor as aforesaid, 
 also sues the defendant for money paid by the plaintiff as such 
 executor as aJEoresaid, for the defendant, at his request, and for 
 money received by the defendant for the use of the plaintiff, 
 and for money found to be due from the defendant to the 
 plaintiff on an account stated between them. And the plaint- 
 iff, as such executor as aforesaid, claims, etc. It was held, on 
 demurrer, that the declaration was bad for misjoinder.^' 
 
 § 1602. Class — Common Counts. — Where the form of the 
 action is the same, and where the same plea may be pleaded 
 and the same judgment given on all the counts, they are well 
 joined. 13 So, the common counts may be united in one com- 
 
 1 Garr v. Redman, 6 Cal. 574. » Burt v. "Wilson, 28 Cal. 632. 
 
 2 Gal. Code C. P., sec. 427. "Brown v. Webber, 6 Cush. 571; 
 
 3 Frilz V. Fritz, 23 Ind. 388. Sullivan v. Holker, 15 Mass. 374. 
 
 * Eavle V. Scott, 60 How. Pr. 506; " Hapgood v. Houghton, 10 Pick. 
 see Van Wagenan v. Hunt, 7 Hun, 154 ; Dixon's Executors t. Ramsay's 
 328; Laddv. James, 10 Ohio St. 437. Administrators. 1 Cranch C. Ct. 472. 
 
 * Hawk V. Thorn, 54 Barb. 164. '^ Davies v. Davies, 1 Hurl. & Colt. 
 
 • Cleveland v. Barrows, 59 Barb. 451. 
 
 364. w Fairfield v. Burt, 11 Pick. 244; 
 
 ' Smith V. Hallock, 8 How. Pr. 73. Worster v. Canal Bridge, 16 Id. 541. 
 
 • Cal. Code C. P., sec. 427. 
 
§ 1605. SEVERAL CAUSES OF ACTION UNITED. 599 
 
 plaint, if separately stated.^ But they cannot be united in one 
 count as one cause of action, without any specification of the 
 sums due upon each several cause. ^ 
 
 § 1603. Contracts. — Causes of action arising from contracts, 
 express or implied, may be united. Thus claims due as dam- 
 ages for delay, and a demand to set aside an award, all growing 
 out of the same contract, may be united in one action. ^ To 
 reform a written contract, and for judgment thereon, when 
 reformed.'* For reformation of a contract, and for damages for 
 breach of it.^ Damages for false representations, and for breach 
 of contract.* Loss of goods by carrier, and also for freight over- 
 paid.'' A cause of action for false representations in inducing 
 the plaintiff to enter into a contract, and a cause of action for a 
 breach of the same contract, may be joined.® On the joinder of 
 ordinary claims in contract with claims for which defendant is 
 arrestable, the plaintiff may waive arrestability in the latter case.' 
 
 § 1604. Contract of Partners. — A complaint, after stating 
 cause of action on a contract against partners, and demanding ' 
 judgment therefor, contained also allegations that the defend- 
 ants were insolvent, and had fraudulently confessed judgment 
 to hinder their creditors, and demanded an injunction and a re- 
 ceiver. Held, that although the last matter might be obnoxious 
 to a motion to strike out, its insertion did not render the com- 
 plaint demurrable. 1" In Massachusetts, a surviving partner may 
 join in the same action a demand due to the firm, and another 
 due to himself in his own right ; or demands due to him as the 
 surviving partner of two firms.^i 
 
 § 1605. Each Cause Complete. — Each separate cause of 
 action, as stated, must be complete in itself, and must stand by 
 itself.^^ And directly, that numerous items of a distinct class 
 should be stated in distinct counts." 
 
 1 Freeborn v Glazer, 10 Oal. 337 ; As to contracts, with allegations of 
 
 DeWittv Porter, 13 Id. 171; Buck- matters of fraud, see Both v. Palmer, 
 
 ingham v.* Waters, Hid. 146; Keller 27 Barb. 652. 
 
 V. Hicks, 22 Id. 457; Birdseyev. s Robmson v. FJint, 7 Abb. Pr. 393, 
 
 «.v,iti, Qo Korh 217 nete; and see also Freer v. Denton, bl 
 
 ^nucktnSamv!waters,14Cal.l46. N.^492. ,,„.„,, 
 
 « See V. Partridge, 2 Duer, 468. ^'^kox v. Pay, 36 Barb. 9-14 
 
 * Story's Eq. J^r., sees. 157-161 ; 2 »° Meyer y. Van CoUem, 7 Abb. Pr. 
 
 Sus^r-gll'jw P;'f^=i ^"""' " ''"Stafford v. Gold, 9Pick. 536. 
 
 ^ Mwell T A^'tor Mut.Ins. Co., 16 " Lattin v McCarty, 17 How. Pr. 
 
 ^•elF V Flint 16 How Pr ^V^"^^' t f^:r^Jfol 
 
 240f7"irb";;.^39B"'sle, Wv^ri 17; Harsen v Bayaud 5 D,er. 65.^; 
 
 w.iio-TT T?a«v-jn 12 How Pr 28. Dorman v. Kellaro, 14 How. fr. l»4. 
 
 ^.''AdaL ffiiUeU. 28 Barb. 382. ^^ Adams v. HoUey, 12 How. Pr. 
 
600 FORMS OF COMPLAINTS. § 1606. 
 
 § 11)06. Injuries to the Person.— Claims for injuries to 
 character, or injuries to character and malicious arrest and prose- 
 cution, may be united. ^ Plaintiff may recover in an action for 
 the combined injury to character and person, when the matters 
 arise from and constitute a part of the same transaction.^ 
 
 § 1607. Injuries to Person and Property. — It seems that 
 negligence and the damage arising therefrom, both to the person 
 an(l property of plaintiff may be united. ^ For one injury, all 
 the acts of negligence should be alleged in one count. ^ Injuries 
 resulting to both person and property, from the same negligent 
 act, constitute but Qne cause of action. ^ 
 
 § 1608. Injuries to Property. — Actions for injuries to 
 property may be united." The union in one count of a com- 
 plaint of an allegation that defendants "have wrongfully built 
 dams and flumes across said Mormon creek * * * so as to 
 turn the water of said creek out of its natural channel," etc., 
 and thus divert it from plaintiff, with an allegation that defend- 
 ants "have constructed gates, etc., in their said dams and 
 flumes, which they * * * hoist for the purpose of clearing 
 out said dams and flumes of slum, stone, and gravel, the accu- 
 mulation of which renders the water useless to plaintiff," does 
 not make the complaint demurrable, on the ground that it 
 unites several distinct causes of action in one count.'' In an 
 action for injuries to a mining claim, a claim for damages to the 
 plaintiff by reason of the breaking away of the defendant's 
 dam, and the consequent washing away of the pay-dirt of the 
 plaintiff, may properly be joined with a claim for damages for 
 preventing plaintiff from working his claim. ^ Detention of 
 property, and injury to it while detained, may be united.* 
 Value of property destroyed, and damages, may be united.^* 
 Allegations for conversion and detention, and prayer for specific 
 delivery, is no misjoinder, being held a demand for only one 
 
 326 ; Hillman v. Hillman, 14 Id. 4-56 ; Wilson v. Smith, 10 WeTid. 828 ; 1 Ch. 
 
 and see also Longworthy v. Knapp, 4 PI. 127; Howe v. Peckham, 6 How. 
 
 Abb. Pr. 115. . Pr. 229. 
 
 1 Cal. Code O.P., sec. 427; Howe v. * Dickens v. N. T. Cent. K. B. Co., 
 Peckham, 6 How. Pr. 229; S. C, 10 13 How. Pr. 228. 
 
 Barb. 656; Hull v. Vreeland, 42 Id. 6 Howe v. Peckham, 10 Barb. 666: 
 
 543 ; 18 Abb. Pr. 182. . S. C, 6 How. Pr. 229. 
 
 2 Jones V. Steamship Cortes, 17 Cal. • Cal. Code C. P., sec 427 : Moore 
 487. Criminal conversation with v. Massini, 32 Cal. 590; Howe v. 
 plaintiff's wife held to be an injury Peckham, 6 How. Pr. 229. 
 
 to the person : Dalamater v. Bus'sell, ' Gale v. Tuol. W. Co., 14 Cal. 25. 
 
 2 Code R. 147. So also is seduction : « praler v. Sears Union Water Co., 
 
 Taylor v. North. 3 Id. 9. 12 Cal. 555. 
 
 ' Williams v. Holland, 10 Bing. 112, » Smith v. Orser. 43 Barb. 187. 
 
 117 ; Blinn v. Campbell, 14 Johns. 433 ; ^ Tendeson v. Marshall, 3 Cal. 440. 
 
§ 1613. SEVERAL CAUSES OF ACTION UNITED. 601 
 
 kind of remedy.^ For violation of agreement, and for injury to 
 personal property.^ Damages and injunction may be joined in 
 an action for threatened injury to property. The owner of land 
 may join in the same complaint a claim for damages, as as-- 
 signee, caused by a trespass on the land, while it was owned 
 by his grantor, acd a claim for an injunction for a threatened 
 injury to the land.* The plaintiff may join in the same com- 
 plaint a cause of action for distinct and independent injuries 
 to property, and the property injured in each cause of action 
 maybe the same or different, and may be either personal or real.* 
 
 § 1609. Jurisdiction. — Where the separate causes of action 
 amount together to more than the sum required to give juris- 
 diction, if joined in one declaration they will give jurisdiction.* 
 
 § 1610. Money Counts and Warranty. — Money counts 
 may be added to a count on the warranty. Or a count for de- 
 ceit may be added to a count on the warranty.^ But a claim 
 in assumpsit for warranty of a horse, and for wrongfully con- 
 cealing his defects, could not be united.'' But when the form 
 of action in tort is adopted, it is not necessary, to enable plaint- 
 iff to recover upon the count for false warranty, that a scienter 
 should be averred.* 
 
 § 1611. Money Had. — A claim for money had and received, 
 and a claim for the delivery of a satisfied promissory note, 
 arising out of the same transaction, may be united.^ 
 
 § 1612. Quantum Meruit. — A quantum meruit or a quan- 
 tum valebat may be joined with counts upon a specialty." 
 
 § 1613. Separate Demands. — Separate demands under one 
 and the same right may likewise properly be joined in the same 
 count.^ Several grounds of liability against the same defend- 
 ant, arising out of the same transaction, may be joined in one 
 action.12 By the same plaintiff, as devisee for rent, and as 
 executrix, for breach of covenant, all arising out of the same 
 lease.i* So also claims against the same defendant in different 
 
 1 Vo^el V. Badcock, 1 Abb. Pr. 176. 279 ; Holman v. Dord, 19 Barb. 336 ; 
 
 SBadeer v. Benedict, 1 Hilt. 414; Schuohardtv. Aliens, 1 Wall. 359. 
 
 4 Abb Pr 176. ' Cahoon v. Bank ot Utica, 7 How. 
 
 sMosre'v. Massini,32Cal.590. Pr- 401. 
 
 ^ muBio ,„ Smith V. First Cong. Meeting- 
 
 ^Kidgwayv. Pancost, 1 Crancb C. house of Lowell, 8 Pick 178; Van 
 pj go ^ •' Deusen v. Blum, 18 Id. 229. 
 
 «' Vail V Strong. 10 Vt. 457 ; Dobbin " Longwortby v. Knapp, 4 Abb. Pr. 
 
 '^Wetv.''I~;?2 How. Pr. "'^"Durant v Gardner. 19 How. Pr. 
 33lfspringstea! v. Lawson, 23 Id. ^4; ^O^Abb. Pr. «.^^^^ ^^ ^^^_ ^^_ 
 
 8 Brown v. Edgington, 2 Man. & G. 7e. 
 
602 FORMS OF COMPLAINTS. § 1614. 
 
 capacities may be united.' For money received on account of 
 an estate, and also for a promissory note which is part of the 
 estate, but paj'able to the executor individually.^ So of claims 
 against various parties, liable to contribute their proportion for 
 repairs, for the general benefit of all.^ Against constable for 
 different breaches of duty, and against his surety, held capable 
 of joinder. "• It would also seem that in New York, a claim by 
 a stockholder, who is also a judgment creditor of a corporation, 
 may in certain cases maintain an action against the corporation, 
 and against its other stockholders, and its other creditors, with 
 a view to ascertain and provide for the rights of all parties.^ 
 
 § 1614. Several Counts. — A complaint which contains a 
 count settmg forth the facts attending the purchase of a county 
 warrant by plaintiff, and charging that defendants are liable 
 upon an implied contract to repay the purchase money, and a 
 second count charging defendants as indorsers of negotiable 
 paper and a third count in the usual form for money had and 
 received, is not demurrable on the ground of a misjoinder of 
 causes of action.* In Iowa, a party may state in one count a 
 cause of action on a note, and in another a cause of action on 
 the consideration of a note.'' 
 
 § 1615. Specific Performance. — A claim for specific per- 
 formance of a contract to convey real estate, and for payment 
 of a reasonable sum for use and occupation, is not setting up 
 two distinct causes of action which can not be united. ^ Grantor 
 with warranty, and holder of an incumbrance, may be joined, 
 to obtain satisfaction of such incumbrance, and a recovery over 
 for any amount found due on it.^ 
 
 § 1616. Specific Personal Property.— Claims for the re- 
 covery of specific personal property, with or without damages 
 for the withholding thereof, may be joined.^" So also replevin 
 and fraud may be united.^' 
 
 § 1617. Specific Real Property.— Claims to recover spe- 
 cific real property, with or without damages for the withhold- 
 ing thereof, or for waste committed thereon, and the rents and 
 profits on the same, maybe united.'* A complaint in ejectment 
 
 'Pugsley V. Aiken, 1 Kern. 494; ^ Spier v. Eobinson, 9 How Pr. 325. 
 
 Lord V. Vreeland, 13 Abb. Pr. 195. ' Wandle v. Turney, 5 Duer 661 
 
 2 Welles V. Webster, 9 How. Pr. i" Cal. Code Civil Proc, sec. 427. 
 251- " Ti-uebody V. Jacobson, 2 Cal. 269. 
 
 3 Denman v. Prince. 40 Barb. 213. 12 Cal. Code C. P., sec. 427 ; Sullivan 
 * Moore v. Smith, 10 How Pr. 361. v. Davis, 4 Cal. 291 ; Hoffman v Tuol 
 6 Geery V. New York & Liverpool Water Co., 10 Id. 413; Gale v Tuol 
 
 S. S. Co., 12 Abb. Pr. 268. Wnter Co.. 14 Id. 25 ; Hotchkiss t 
 
 « Keller v. Hicks, 22 Cal. 457. • Auburn and Eoehester B. K. Co 36 
 ' Camp V. Wilson, 16 Iowa, 225. Baib. 600. <«■ xv. xv. uo., 
 
■§ 1619. SEVERAL CAUSES OP ACTION UNITED. 603 
 
 may be for two separate and distinct pieces of land, but the causes 
 of action must be separately stated, and affect all the parties to 
 the action, and not require different places of trial.' Otherwise 
 it would appear that the old form of declaring in ejectment by 
 separate counts is no longer admissible.^ 
 
 § 1618. Specific Relief. — Claims by a debtor to have obli- 
 gations delivered up and canceled, and an account of the secur- 
 ities pledged for them, and payment of the overplus, is but one 
 cause of action. ^ A cause of action for reformation of mort- 
 gage, and for simultaneous foreclosure, may be united.'' So, suit 
 against indorser for liability on note, and for decree against 
 mortgagor foreclosing the mortgage, may be united;* and a 
 claim to reform an assignment in part, and for accountiagunder 
 it when reformed.^ 
 
 § Trespass. — In Massachusetts, under trespass, the several 
 species of qvMre clausum and de bonis asportatis may be joined.''' 
 Counts in trespass upon the case may be joined with a count in 
 trover.8 So, a cause of action for cutting wood, and also one 
 for the conversion of wood, may be combined.^ 
 
 1 Boles v. Kohen, 15 Cal. 150. » Rollins v. Forbes, 10 Cal. 299; 
 
 a St John v. Pierce, 22 Barb. 362. Eastman v.Turman, 24 Id. 882. 
 
 3 Uahoon v. Bank of Utica, 7 N. T. « Garner v. Wright, 28 How. Pr, 92. 
 
 486 • S C, 7 How. Pr. 401 ; reversing ' Bishop v. Baker, 19 Pick. 517. 
 
 j^ 134. ' Ayer v. Bartlett, 9 Pick. 1^0. 
 
 ♦ Depuyster v. Hasbrouck, 1 Kern. » Eodgers v. Eodgers, 11 Barb. 695. 
 682. 
 
SUBDITISIOI^r FIFTH. 
 
 FOB DAMAGES UPON WfiONGS. 
 
 PART FIRST — FOE IISrjURIES TO THE PERSON. 
 
 CHAPTER I. 
 
 FOR ASSAULT AND BATTERY. 
 
 § 1620. Common Form. 
 
 Form No. 4IS. 
 
 XTlTLE.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., the defendant 
 
 violently assaulted the plaintiff, and struck him [state where] 
 several blows, and also tore the clothes from the plaintiff's per- 
 son [describe the violence used, and its consequences] ; to his 
 damage dollars. 
 
 Wherefore the plaintiff demands judgment for dol- 
 lars, his damages aforesaid. 
 
 § 1621. Abatement of Action. — Action for assault and 
 Ijattery can only be brought in the name of the party immedi- 
 ately injured, and if he dies the remedy determines.^ This is, 
 the rule at common law, but is changed by the statutes of many 
 of the states. And for injuries committed on the wife by bat- 
 tery, husband and wife must join ; and if she die before judg- 
 ment the suit abates. 2 But if the wife dies after judgment, the 
 judgment survives to the husband. ^ 
 
 § 1622. Assault Defined— Instances. — An assault is an 
 unlawful attempt, coupled with a present ability, to commit a 
 violent injury on ttie person of another.* An assault is an offer 
 to strike, beat, or commit an act of violence on the person of 
 another, without actually doing it or touching his person ;* 
 striking at a person with the hand or with a stick, cr by shak- 
 
 » 1 Chit. PI. 60. * Cal. Pen. Code, sec. 240. 
 
 «1 Chit. PI. 73. ^io\iuioa. v. Thompkins, 1 Baldw. 
 
 a 12 Serg. <S R. 76. 571, 600. 
 
 604 
 
§ 1626. FOE ASSAULT AND BATTERY. 605 
 
 ing the fist at him, or presenting a gun or other -weapon within 
 such a distance as that a hurt might be given, or drawing a 
 sword and brandishing it in a menacing manner, provided the 
 act is done with intent to do some corporal hurt.^ The draw- 
 ing of a pistol on another, accompanied by a threat to use it 
 unless the other immediately leave the spot, is an assault, 
 although the pistol is not pointed at the person threatened.^ 
 ■Cocking and raising a gun, and threatening to shoot ft person, 
 when the act indicates an intention to shoot ;3 or raising a club 
 over the head of a woman within striking distance, and threat- 
 ening to strike her if she opens her mouth, are assaults.* So 
 also to double the fist and run it at another, saying: " If you do 
 that again I will knock you down."^ So the mere taking hold 
 of the coat, or laying the hand gently on the person of another, 
 if done in anger, or in a rude and insolent manner, or with a 
 view to hostility, amounts not only to an assault, but to a bat- 
 tery.® 
 
 § 1623. Assault and Slander. — A plaintiff may aver in his 
 complaint all that took place at the time, though a part consti- 
 tute an assault, and part a slander, and recover damages which 
 he has sustained for the compound injury.'' 
 
 § 1624. Avoiding Injury. — To recover damages for an 
 assault and battery,- it is not necessary that the plaintiff should 
 have fled to avoid the injury, if he used ordinary care to pre- 
 vent injury, and it ensued from the wrongful act of the defend- 
 ant.* 
 
 § 1625. Battery Defined.— A battery is any willful and un- 
 lawful use of force or violence upon the person of anocher.^ A 
 battery is the touching or commiss'on of any actual violence on 
 the person of another in a rude and angry manner. i" 
 
 § 1626. Damages. — In cases of aggravated assault,, the 
 jury are permitted to give exemplary or punitive damages." An 
 employer, though not present, and in no manner consenting to 
 or aiding the assault, is liable for the actual damage sustained 
 
 1 United States V. Ortega, 4 Wash. 'Brewer v. Temple, 15 How. Pr. 
 C Gtm; United States v. Hand, 2 286.^^^^^ ^_ ^^^^^ ^ ^^^^ ^^^ 
 
 2 People V. McMakin, 8 Cal. -547. » California Penal Co.de,.aec 242 
 sUnfted States v. Kierman, 8 ^_io Johnson v. Tompkins, 1 Baldw. 
 
 3^i^d^«Ut^v.Me,ers, 1 Cranch ^J^-^^^T^^^^^j^Z 
 ^•. United States v. Ortega. 4 Wash. 36 Id 590 ; Shea v. P. & B. V. B. E. 
 C. Ot 534. ^°-' ** ^^- *^*' 
 
606 POEMS OP COMPLAINTS. § 1627. 
 
 in an assault upon the person, committed by his servants or 
 employees, while in the performance of their duties as such.i 
 
 § 1627. Malice. — The language of the defendant while 
 committing the assault is admissible in evidence, for the pur- 
 pose of characterizing the act as bearing on the question of 
 malice.^ 
 
 § 1628. Assault by Master of Vessel. — A master or 
 commar^er of a vessel is, in general, not liable to an action for 
 assault and battery, for chastisement inflicted upon a seaman 
 or marine, where he acted under a sincere conviction that it 
 was necessary to enforce discipline or compel obedience to 
 orders, and not from passion or revenge. ^ So, where a master, 
 believing there is immediate danger of mutiny, makes use of a 
 dangerous or deadly weapon to reduce a seaman, actually in 
 mutiny, to obedience, he is not liable.* Seamen are generally 
 entitled to recover damages for an assault and battery from 
 the oflScer of a ship- 1. "Where a personal violence is inflicted 
 wantonly, and without provocation or cause ; 2. Where there 
 was provocation or cause, but the punishment was cruel or ex- 
 cessive ; 3. Usually where the punishment is inflicted with a 
 dangerous or deadly weapon.* 
 
 § 1629. Principal. — One who is present and encourages an 
 assault and battery is a principal. ^ 
 
 § 1630. Provocation. — No words of provocation wiU justify 
 an assault, although they may constitute a ground for the re- 
 duction of damages.'' 
 
 § 1631. Where Action Lies. — Assault and battery will lie 
 against a steamboat, for an assault and battery committed by 
 the mate or other officer of the boat, on the person of a passen- 
 ger, while such boat is being navigated on the rivers within or 
 bordering on the state.® Assault and battery lies for injury to 
 the relative, as for beating, wounding and imprisoning a wife 
 or servant, by which the plaintiff has sustained a loss.^ So where 
 
 1 "Wade V. Thayer, 40 Cal. 578. ' Forbes v. Parsons, Crabbe, 283. 
 
 * McDougall V. McGruire, 35 Cal. 274. compare Dinsman v. Wilkes, 12 How. 
 ' Dinsman v. Wilkes, 12 How. U. (U. S.) 390. For the law governing 
 
 S. 390; compare United States v. such liability, see U.S. Eev. Stat, at 
 
 Freeman, 4 Mason, 505 ; Thompson v. L., sec. 5347. ' 
 
 Busch, 4 Wash. C. Ct. 338. « Coats v. Darby, 2 Comst. 517; 5 
 
 * Eoberts V. Eldridge, 1 Sprague, Ohio, 250; United States v. Kicketts, 
 54; United States v. Colby, Id. 119; 1 CranchC. Ct. 164. 
 
 United States v. Lunt, Id. 311. As ' Cushman v. Kyan, 1 Story, 91. 
 
 to what will justify corporal punish- 'l'?y ^- Steamboat etc., 28 111. 412. 
 
 ment of seamen, see M^orris v. Cor- »9 Co. 113; 10 Id. 130; Bland v. 
 
 nell, 1 Sprague, 62 ; Payne v. Allen, Drake, 1 Chit. 167. When not under 
 
 Id. 304 ; Sdendan v. Furbur, 1 Blatohf. the color of process, see 11 Mod. 180; 
 
 & H. 423. Schmeider v. McLane, 36 Barb. 496. 
 
battprvxr>,« ^It . ^"« 's guuty or assault and 
 
 thatZ!. • r *° ''^°*^^^- ^ '^^S to be eaten, knowing 
 
 that,tconta,ns a foreign substance-as cantharideslan. ..n^ 
 
 § 1635. poE ASSAULT AND BATTERY. 607 
 
 but ™7' ^"^"^7™^-^*' «*<=•' ^ere in the first instance lawful, 
 but unnecessary violence was used.i One is guilty of assault and 
 
 ling to be eaten, knowing 
 
 cealing the fact, if the "otheV^n Ig;;":: Tlt^TjX Td 
 IS injured in health^^ Acts n.alaproM,Ua donot bl.ti ' 
 ., unless done wiUf ally and corrnptly. One who drives over 
 another in negligence merely, is not rendered guilty of a crimi- 
 nal assault and battery by the fact that he does so while violating 
 a city ordinance against fast driving. 3 
 
 § 1632. Willful, Malicious.-It is not necessary in an ac 
 tion for a simple assault and battery to charge in terms that it 
 was ' willful " or " malicious," to entitle the plaintiff to maintain 
 his action.'* 
 
 § 1633. The Same— Short Form. 
 
 [T™.] Form No. 414. 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at the , 
 
 the defendant assaulted and beat him, to his damage .' 
 
 dollars. 
 
 [Dbmanb of Judqmbnt.] 
 § 1634. Married Woman, Allegation of Assault by. 
 
 Fo}-m No. 415. 
 
 That on the day of , 18..., the defendant C. 
 
 E., she being then, as now, the wife of the defendant E, F. 
 [continue as in preceding form]. 
 
 § 1635. The Same— With Special Damages. 
 
 Form No. 416. 
 [TlTL?.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18...., at , 
 
 the defendant assaulted and beat the plaintifl until he became 
 insensible. 
 
 II. That the plaintiff was thereby disabled from attending 
 to his busitiess for weeks thereafter, and was compelled to pay 
 
 dollars for medical attendance, and has been ever 
 
 since disabled [from using his left arm ; or otherwise state the 
 damage, as the case may be], to his damage dollars. 
 
 [Demand op Judgmbnt.] 
 
 1 1 Ch. PI. 167 ; Pease V. Burt, 3 Day, * Commonwealth v. Stratton, 114 
 
 485; Elliott V. Brown, 2 Wend. 497; Mass. 303. 
 
 Boles V. Pinkerton, 7 Dana. 453; Han- * Commonwealth v. Adams, 114 Id, 
 
 nen v. Edes, 15 Mass. S47 ; Bennett 323. 
 
 V. Apleton, 25 Wend. 371. * Andrews v. Stone, 10 Minn. 72. 
 
608 POEMS OP COMPLAINTS. § 1636. 
 
 § 1636. Against a Corporation for Damages Caused 
 by an Assault and Forcible Ejection from a Car. 
 
 Form No. U7. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That at the time hereinafter mentioned, the defendant was, 
 and now is a corporation, duly organized under and pursuant to 
 the laws of this state, and was the owner of a certain railroad 
 
 known as the railroad, with the track, cars, and 
 
 other appurtenances thereunto belonging, and was a common 
 carrier of passengers from to 
 
 II. That- on the day of , 18.., at , 
 
 the defendant with unnecessary violence assaulted the plaintiff 
 and forcibly ejected him from one of its cars. 
 
 III. That the plaintiff was thereby disabled from attending 
 
 to his business for weeks thereafter, and has ever since 
 
 been disabled from using [his left foot or otherwise] , and was 
 
 compelled to pay dollars for medical attendance, to the 
 
 damage of the plaintiff dollars. 
 
 [Demand of Judgment.] 
 
 § 1637. Conductor of Car. — The right of a car conductor 
 on a railroad to expel a passenger for non-payment of the fare, 
 must be exercised in such a manner as is consistent with the 
 safety of the passenger's life. He must first stop the car, and if 
 he attempts to eject him without stopping the car, the passenger 
 has the same right to repel the attempt that he has to resist 
 a direct attempt to take his life.^ Although a person may 
 be wrongfully upon the cars, the conductor must use reasonable 
 care and prudence in removing him.^ 
 
 § 1638. Corporation. — An action of trespass for assault and 
 battery will lie against a corporation, if it has power to authorize 
 the act done, and has done so ; and a servant of the company may 
 be joined as a defendant. * 
 
 § 1639. Damages. — In cases of injury to the person from 
 negligence of the conductor of a car, the law does notpr'eseribe any 
 fixed or definite rule of damages, but from necessity leaves their 
 assessment to the goo^ sense and unbiased judgment of the jury.'* 
 
 § 1640. Exemplary Damages. — A railroad company may 
 be charged with exemplary damages for injuries done with force 
 or malice to a passenger by a conductor of said company. ^ 
 
 'See Sanford v. Eighth Avenue B. ♦ Aiarich v. Palmer, 24 Cal..51i3; 
 
 E. Co.. 23 N. Y. 343. cited in Wheaton v. N. B. & M. R. &■ 
 
 ' Kline V. C. P. R. R. Co., 37 Cal. 400. Co.. 36 Id. 590. 
 
 ' Brokaw v. N. J. R. & T. Co., 3 5 Knltimore & Ohio E. K. Co. v. 
 
 Vroom, 328. Blooher, 27 Md. 277. 
 
§ 1644. FOE ASSAULT AND BATTERY. 609 
 
 § 1641. Master and Servant. — The master is liable for the 
 servant, if he acts within the scope of his authority.^ The rela- 
 tion of conductor on a car and the company for whom he is act- 
 ing as conductor is that of master and servant, and the relation 
 being established, all else is mode and manner, and as to that 
 the master is responsible.^ 
 
 § 1642. Forcible Ejection. — If a person be of mature years, 
 the mere words of the driver, ordering him to get off, could not 
 be regarded as a forcible ejection of the plaintiff from the car at 
 a time when it was dangerous to leave it ; but if a child of ten 
 years of age was so ordered, his obedience would be naturally 
 expected, without regard to the risk he might incur, and in 
 respect to a child so young the command would be equivalent 
 to compulsion. 3 
 
 § 1643. Mutual Negligencp. — If the plaintiff be in the 
 wrong, yet if his wrong or negligence is remote — that is, does 
 not immediately accompany the transaction from which his 
 injury resulted — the defendant can not excuse himself on the 
 score of mutuality, nor absolve himself from his obligation to 
 exercise reasonable care and prudence in what he may do.* So 
 the entry on a car, if an accomphshed fact, is only a remote 
 cause of the injury inflicted by a subsequent ejection from the 
 car ; nor did it absolve the conductor from the duty of observ- 
 ing reasonable care and prudence in putting him off the train.s 
 Mutual or co-operating negligence, which deprives one party of 
 any right of action against the other, is when the act which 
 produced the injury would not have occurred but for the com- 
 bined negligence of both. But where the negligence of one 
 party would produce injury in any event, with or without the 
 negligence of the other, then it becomes a mere question of 
 adjustment of damages.^ Where negligence exists on both 
 sides, that of the plaintiff must have contributed to the injury, 
 or it will not excuse the defendant.^ 
 
 § 1644. Removing Trespassers.— A man can not lawfully 
 
 push another off from his land without first requesting him to 
 
 get off. 8 But mechanics in charge of a house which they are 
 
 iT-i- ^ ri P R R Co 37 Cal. son with the belief that it will be em- 
 1 Kline V. O. V. K. a. l.o., oi kj^ii. .^ ^^^^ ^,g j^gj^ jo be the equiva- 
 
 400- , fent of actual force." 
 
 aitett V. Salem & South Danvers ;Kline v. C. P. E. E. Co., 37 Cal. 
 
 E. E Co., 9 Allen (Mass.) 561 ; oted 400 
 
 i" Kline^v. Central McE^aCo^ ^^.^^^^ -Kenyon, 1 Dalv, 132. 
 
 of 6aC37-Cal. 400;whereitgoes- ; ^° " ^ Earie /^O "k: f.lt)^ 
 to state: "We have no doubt that in .^ ;?J,f^„,„„ ^. 'Be„v. 1 Cran 
 
 a show or demonstri 
 
 oient to impress a re 
 
 EsTKB. Vol. I — 39. 
 
 rasri;o;rdernsrt2"orf;;ee ; Thompson v. Berry. 1 C ranch 0. 
 sufficient to impress a reasonable per- Ct, 45. 
 
610 FORMS OF COMPLAINTS. § 1645. 
 
 building have a right to remove gently persons coming into the 
 building without authority, if they will not depart upon re- 
 quest.i The abuse of legal authority which will make a person 
 a trespasser ab initio, is the abuse of some special and particular 
 authority given by law ; and the doctrine does not apply to the 
 case of an agent in a factory who uses improper force in eject- 
 ing a disorderly person emploj'ed there.* 
 § 1645. Assault and False Imprisonment — Short Form. 
 
 Form No. 413. 
 
 [TiTLB.] 
 
 The plaintjff complains, and alleges: 
 
 I. That on the day of , 18..., the defendant 
 
 assaulted and beat the plaintiff, and imprisoned him for 
 
 hours, to his damage , dollars. 
 
 [Demand of Judgment.] 
 
 § 1646. Arrest. — The circumstances of the arrest should 
 not be set out in the complaint. If so set forth, they may be 
 stricken out upon motion.^ 
 
 § 1647. Circumstances. — Allegations of the circumstances 
 in detail on a charge of false imprisonment and assault, in con- 
 nection with an illegal combination and conspiracy, were al- 
 lowed in a great measure to stand.* 
 
 § 1648. The Same— Fuller Form. 
 
 Form No. 419. 
 [Title.] 
 
 The plaintiff coniplains, and alleges: 
 
 I.' That on the day of , 18..., the defendant 
 
 issaulted the plaintiff, and charged him with [state what offense] , 
 md gave him into the custody of a policeman, and forced and 
 compelled him to go to a police station, and there caused hioi 
 ;o be imprisoned, and caused him to be kept in prison for a 
 ong time, until he was afterwards brought in custody before 
 
 )ne of the police magistrates of , and the defendant 
 
 ;hen again charged him with the said offense ; but the said mag- 
 strate dismissed the said charge, and caused him to be dis- 
 iharged out of custody. 
 
 II. That the plaintiff thereby suffered damage in the amount 
 )f dollars. 
 
 [Demand of Judgment.] 
 
 ^ » United States v. Bartle, 1 Cranch 3 Eddy v. Beach, 7 Abb. Pr. 17; 
 J. Ct. 236. Shaw v. Jayne, 4 How. Pr. 119. 
 
 2 Esty v. Wilmot, 16 Gray, 168. * Molony v. Dows, 15 How. Pr. 261. 
 
§ 1655. poK J?ALSE IMPPJSONilENT. 611 
 
 CHAPTER II. 
 
 FOE FALSE liUPRISONMEJST. 
 § 1649. Common Form. 
 
 Form No. 420, 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , the 
 
 defendant imprisoned him for days [or hours, as the 
 
 case may be] , without probable cause [state special damages, 
 
 if any], to the damage of the plaintiff dollars. 
 
 [Demand of Judsmknt.] 
 
 § 1650. Arrest without Proof. — A person who without 
 bad faith or malice has, upon oath, or otherwise, merely stated 
 his case to a magistrate having jurisdiction of the offense sup- 
 posed to have been committed, and of the person accused, is 
 not liable to an action for false imprisonment upon the conse- 
 quent arrest of the accused, although such arrest is not war- 
 ranted by the law or the facts in the case.^ 
 
 § 1651. Circumstances of Arrest. — The particular instru- 
 mentality by which the plaintiff was deprived of his liberty 
 should not be set out in the complaint. If the circumstances 
 of the arrest are set forth, they may be struck out upon motion.^ 
 
 § 1652. Corporation. — A corporation may be sued in tres- 
 pass for false imprisonment.* 
 
 § 1653. Election of Remedy. — A plaintiff has an election 
 of remedy between an action for false imprigonment and mali- 
 cious prosecution, where either form is admissible.* 
 
 § 1654. False Imprisonment Defined. — False imprison- 
 ment is the unlawful violation of the personal liberty of an- 
 other.5 As a crime, false imprisonment is not a felony under the 
 laws of California. 8 
 
 § 1655. False Imprisonment, What It Avoids.— One who 
 obtains possession of personal property by threat of wrongful 
 
 • Von Latham v. Libby, 88 Barb, to what extent such allegations are 
 
 339; citin? Oarrattv. Merely, 1 A. & allowed to stand, see Molony v. Dows, 
 
 E. (N.S.) 18; Barber v. RoUinson, 1 15 Id. 266. 
 
 C &M 330; Westv. Smallwood, 3 M. ' Owsley v. Montsowery & W. P. 
 
 & W. 418 ; 6 Man. G. & S. 365 ; 22 E. K. Co., 37 Ala. 560. 
 
 Wend. 552 ; and disapproving Com- * Von Latham v. Libby et al., 38 
 
 fort V. Fulton, 13 Abb. Pr. 276 ; Liv- Barb. 339 ; 17 Abb. Pr. 237 ; Brown v. 
 
 ineston v. Burroughs, 33 Mich. 511. Chadsey. 39 Barb. 253. 
 
 2 Eddy V. Beach, 7 Abb. Pr. 17 ; " Cal. Pen. Code, sec. 236. 
 
 Shaw V. Jayne. 4 flow. Pr. ] 19. As « People v. Ebner, 23 Cal. 158. 
 
612 FORMS OF COMPLAINTS. § 1656. 
 
 imprisonment acquires no title, and such transaction is void^ 
 Error of judgment on the part of the magistrate will not render 
 the process issued by him void.^ 
 
 § 1656. Malice. — Malice and falsehodd are essential ingre- 
 dients in an action for malicious prosecution, but are not essen- 
 tial to an action for false imprisonment, in which, however, the 
 element of want of probable cause is necessary. ^ 
 
 § 1657. Principal and Agent. — Where .a private person 
 takes any part in the unlawful imprisonment of another, he be- 
 comes a principal in the act, and is liable for the trespass ; but 
 where he merely communicates facts or circumstances of suspi- 
 cion to officers, leaving them to act upon them on their own 
 judgment and responsibility, he is not liable.* A shopkeeper is 
 not liable for the act of his superintendent and clerks, in calling 
 a policeman and causing the arrest and search of a woman sus- 
 pected of stealing goods, if done without his authority, express 
 or implied.^ 
 
 § 1658. SufScient Averment. — In order to sustain a charge 
 for false imprisonment, it is not necessary for the plaintiff to 
 show that the defendant used violence, or laid hands on him, or 
 shut him up in a jail or prison ; but it is sufficient to show that 
 the defendant; at any place or time, in any manner restrained the 
 plaintiff of his liberty, or detained him in any manner from going 
 where he wished, or prevented him from doing what he desired.* 
 
 § 1659. Void Process. — One who procures the arrest and 
 imprisonment of another upon void process, is liable in an ac- 
 tion for false imprisonment ; and mere good faith in making the 
 affidavit by virtue of which the arrest is made, is no defense.''' 
 
 § 1660. Want of Jurisdiction. — 'Where one is arrested, 
 tried, and convicted of an act which, if it were an offense, was 
 one of which the court had no jurisdiction, his imprisonment can 
 not afterwards be justified by showing that the evidence at the 
 trial would have convicted him of another offense which was triable 
 in that court. ^ 
 
 § 1661. 'Where and When Action Lies. — Though the 
 original arrest be warrantable, an action for false imprisonment 
 lies for any subsequent oppression or cruelty.' Action for ma- 
 
 1 Bioliards v. Vanderpoel, 1 Daly, ' Mali v. Lord, 89 N. Y. 381. 
 
 71. 6 Hawk V. Eidgwav, 83 111. 478. 
 
 ' Von Latham v. Libby, 88 Barb. '' Painter v. Ives, 4 Neb. 122 ; Hal- 
 
 339 ; 17 Abb. Pr. 237. lock v. Dominy, 14 N. T. Sup. Ct. 62 ; 
 
 3 Piatt V. Niles, 1 Edm.230. Sheldon v. Hill, 33 Mich. 171. 
 
 * 7 Car. & P. 373 ; Burns v. Erben, ^ Wait v. Green, 5 Park. Cr. 185. 
 
 2B How. Pr. 273; Brown v. Chadsey » 1 T. R. 536: Esp. Dig. 332; Doyle 
 
 39 Barb. 258. y. Russell, 30 Barb. 300. 
 
§ 1664. FOB, FALSE IMPRISONMENT. 613 
 
 lidous prosecution require different rules, both of pleading and 
 evidence, and are essentially distinct.^ Where imprisonment only 
 is complained of, the action is for false imprisonment.^ 
 
 § 1662. Who Liable.— Where a person has been arrested 
 upon a criminal charge, without any competent evidence of his 
 guilt, the magistrate and prosecutor are jointly liable to an action 
 for false imprisonment.^ 
 
 § 1663. The Same— Another Form. 
 
 Form No. 4S1. 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 the defendant, by force, compelled the plaintiff to go with him to 
 the police office [or otherwise], and there imprisoned him, and 
 then and there detained him restrained of his liberty for the space 
 
 of days, without probable cause and without any right 
 
 or authority so to do, and against the will of the plaintiff; 
 whereby the plaintiff was bruised and wounded, and was also in- 
 jured in his credit, and was prevented from attending to his busi- 
 ness during that time, and was compelled to pay dollars 
 
 for costs and counsel fees in obtaining his discharge, to his dam- 
 age dollars. 
 
 [Demand of Judqmbnt.] 
 
 § 1664. Special Damage. — Allegation of special damage by 
 reason of the imprisonment may be inserted in the complaint.* 
 In an action for false imprisonment against a justice of the 
 peace, it was held that the plaintiff could not recover in dam- 
 ages the amount of costs incurred by him in an unsuccessful 
 application for his discharge on a writ of habeas corpus, such 
 costs not having been alleged as special damages in the com- 
 plaint.^ 
 
 1 Brown v. Chadsey, 39 Barb. 253. But in the same case allegations of ag- 
 
 2 Burns v. Brben, 26 How. Pr. 273. gravating circumstances were struck 
 
 3 Comfort V. Pulton, 13 Abb. Pr. out. 
 
 276. But see, for qualiacation of this » Spence v. Neynell, 2 New Mag. 
 
 statement, Von Latham v. Libby, 38 Cas. 19; contra, Williams v. Garrett, 
 
 Barb. 339. 12 How Pr. 456. 
 * Molony V. Dow8, 15 How. Pr. 266. 
 
61i EOKMS OF COMPLAINTa § 1G65. 
 
 CHAPTER in. 
 
 LIBEL AND SLANDER. 
 
 § 1665. For Libel— The Words being Libelous in 
 Thjemselves. 
 
 Form No. 4SS. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , 
 
 the defendant published a newspaper called the [or in 
 
 a letter addressed to C. D.J, the following words of and con- 
 cerning the plaintiff [set forth the words used. j 
 
 II. That the said publication was false and defamatory. 
 
 in. That by means of said false and defamatory publication 
 
 the plaintiff was injured in his reputation, to his damage 
 
 dollars. 
 
 [Demand oe Judgment.] 
 
 § 1666. Allegations Material. — ^The material allegations 
 in an action of libel, where words are defamatory on their face, 
 and in the English language, are: (First) That the defendant with 
 malice or wrongfully (Second) published, (Third) of and con- 
 cerning plaintiff, (Fourth) these false words. In slander, in- 
 stead of alleging, (Second) "published," it is customary to 
 allege " that he spoke in the presence and hearing of divers 
 persons,"! although the word "published" imports exvi termini, 
 a speaking in the presence and hearing of somebody.^ From a 
 libel, damage is always implied by law ; whereas some kinds of 
 slander only are actionable without proof of special damao-e.s 
 
 § 1667. The Same— Concerning the Plaintiff.— In an ac- 
 tion for libel or slander, it is not necessary to state in the com- 
 plaint any extrinsic facts for the purpose of showing the appli- 
 cation to the plaintiff of the defamatory matter out of which the 
 cause of action arose ; but it is sufficient to state generally, that 
 the same was published or spoken concerning the plaintiff ; and 
 if such allegation be controverted, the plaintiff must establish 
 on the trial that it was so published or spoken.* 
 
 1 "Wood V. Gilchrist, 1 Code Re- ' Broom's Com. 513. 
 
 porter, 117 ; Anon., 3 How. Pr. 40B. * Cal. Code C. P., sec. 460 : see also 
 
 2 Duel V. Agiin, 1 Code Reporter, N. Y. Code of 1877, see. 535; Laws of 
 134 ; see also Lettman v. Kitz. 3 Saiidf. Oregon, sec. 88 ; 1 White Pr. 697 • 
 734 ; and Deb ix v. Lehiad, 1 Code Van Santv. 271. ' ' 
 R, N. a, 235. 
 
^ 1669. LIBEL AND SLANDEB. 615 
 
 § 1668. The Sanae — Intent— Motive. — There may or may 
 not be any intent, good or bad; but intent or no intent, tlie 
 liability is for the act and its consequences, not for the intent. 
 The usual ground upon which the liability is placed, is that the 
 law presumes every one to intend the necessary and natural 
 consequences of his acts.^ 
 
 The intent with which the action is done is by no means the 
 test of liability of a party to an action of tirtspass.^ Bona fides 
 will not protect a magistrate who does an il.jgal act.* It is im- 
 material with what motive a man does an unlawful act.* So an 
 assault and battery committed with a purpose to ridicule the 
 plaintiff or bring him into contempt, partakes of the nature of 
 libel ; and in order to recover damages for the injury to reputa- 
 tion, as well as for that to the person, the complaint should be 
 for assault and battery, but should aver intent to defame, and 
 injury to reputation, in addition to the usual averments in ac- 
 tions for assault and battery. ^ Thus, averments of the business 
 of the parties, that the assault was for the purpose of compelling 
 the plaintiff to give up his business, and of bringing him into 
 disgrace and ridicule, and that the assault, etc. , caused him to 
 be ridiculed by, etc., though not essential to a cause of action, 
 are not immaterial. The motives and intent, and the conse- 
 quences resulting, are material on the question of damages. ^ 
 
 § 1669. The Same — Language Set Out.— The complaint 
 should set out the very words published.'' The true term to be 
 used to indicate that the very words are set forth is " tenor.''^ 
 It is not enough to state its purport ; 9 and when the words 
 were published in a foreign language, the foreign words must 
 be set forth in the original,^" together with a translation into 
 English.^ To set forth the foreign words alone, or their trans- 
 lation alone, is not sufflcient.i^ The rule that the exact language 
 
 1 Haire v. Wilson, 9 B. & Cr. 643; 498; Rundel v. Butler, 7 Bart). 260; 
 
 Viele V. Gray. 10 Abb. Pr. 1 ; 1 Esp. Forsyth v. Edmjston 2 Abb. Pr-430; 
 
 T^ p r«^« 22S ■ Root V Kins, 7 Finnerty v. Barker, 7 N. Y. Leg. Obs. 
 
 rA» >iq ' 317; Sullivan V. White, 6 Irish Law 
 
 8 Pnillo .r Rwan 19 Johns. 381; B. 40; Whitaker v. Freeman, 1 Dev. 
 
 plnviw Hickrv 18 Id 25?! Tre- 271 ; LeeV. Kane, 6 Gray (Mass.). 495 ; 
 Percivalv.Hickey, iaicl..o^, xr \ ^ ^ 4 ^y^^t (K j i27; 
 
 sXrd V Wvcoff 1 Hill 11 Commonwealth v. Wrisfht, 1 Uusb.46. 
 
 ^'s^S^tT^! Gf^atrex i NewMag. J Commonwealth v. Wright 1 Cush. 
 
 Ca. 543 ; 7 Law Times, 139. 46 ; vVright v. Clements. 3 B. & Aid. 
 
 * Amiok V. O'Hara, 6 Blackf. (Ind.) 603^^^^ ^ ^^^^^^ ^ ^^^^^ ^^g. g_ 
 
 ^Compare Sheldon v. Carpenter 4 C.. 1 Eng Com Law, 560. 
 
 ■NT T 579 -Watson v. Hazzard, 3 Code ^ Zenobia v. Axtell. 6 T. K. 162. 
 
 Soii 11 Tnwnshend on Slan. and Lib. 412. 
 
 . T, ^ -c ».>, Q TTnw Pr 37 " Warmouth v. Cramer, 3 Wend. 
 
 'wX- BLlfZ^A^^'Pr. 394; Lettman v. Bitz, 3 Sandf. 734; 
 
616 POKMS OP COMPLAINTS. § 1670. 
 
 used should be set out does not render it necessary to set forth 
 the whole of the matter published,^ but an extract of the par- 
 ticular passage complained of.^ 
 
 § 1670. Malice is Presumed.— When the words published 
 are unambiguous, and not capable of being understood in any- 
 other sense than as defamatory to an extent that must neces- 
 sarily expose the plaintiff to contempt and ridicule, they are by 
 implication of law malicious. It is not necessary to allege in 
 the complaint that the publication was false and malicious. 
 Such an allegation, though common and quite proper, is a mere 
 matter of form, the lack of which is no objection to a pleading.' 
 That the words are "libel" is a sufficient allegation of false- 
 bood and malice.* So a general averment of malice is sufficient.* 
 In an action for libel, it is not indispensable to use the word 
 "maliciously" in the declaration. It is sufficient if words of 
 equivalent power or import are used.^ 
 
 § 1671. Malice, how Averred. — Any form of words from^ 
 which malice [absence of excuse] can be inferred, as that the 
 pubhcation was made falsely or wrongfully, will suffice.'' For 
 one meaning of malice is absence of legal excuse.^ And a 
 pleading • may be sufficient without an special averment of 
 malice. 9 So a declaration which charged the publication to be 
 "malicious, injurious, and unlawful" was held sufficient.^* The 
 averments usual in old precedents, that the defendant, well 
 knowing the premises, etc., maliciously intending to injure the 
 plaintiff, etc., and to bring him into great scandal and disgrace, 
 and to cause it to be believed that the plaintiff had been guilty, 
 are superfluous. '^ So, also, that the defendant, on, etc., falsely 
 bind maliciously published, etc., the false, malicious, scandalous 
 ind defamatory matter following, is unnecessary. An allega- 
 iion that the publication was a libel has been held equivalent 
 ;o an allegation that it was false and malicious.^* In all cases 
 where the facts are within the knowledge of the defendant, or 
 ;he statement involved is in itself libelous, a general allegation 
 
 Seenholta v. Becker, 3 Den. 846; 12 Bennett, 5 Sand£54; Viele v. Gray 
 
 :nd. 453 ; Hickley v.Grosjean, 6 Blackf. 18 How. Pr. 550. ' 
 
 151 ; Kahauser v. Schwerger Barth, 3 ^ Purdy v. Carpenter, 6 How. Pr. 
 
 iVatts, 28. 861. 
 
 iDeyo V. Brundage, 13 How. Pr. * White v. Nichols, 3 How. U.S. 266. 
 
 !21 ; Culver V. Van Anden, 4 Abb. Pr. ' Townshend on Slan. and Lib. 410. 
 
 575 ; Eex v. Brereton, 8 Mod. 329. " ^ i|j_ 85_ 
 
 2 Cheatham v. Tillotson, 5 Johns. ' Opdykev. Weed, 18 Abb. Pr. 228, 
 130. notes. 
 
 3 Hunt V. Bennett, 19 N. Y. 173; " Eowe v. Roach, 1 Mau. & S. 804. 
 Snot V. King, 7 Cow. 620. " Coleman v. Southwick, 9 Johns.45. 
 
 ♦ See above authorities, and Fry v. W Hunt v. Bennett, 19 N. Y. 176. 
 
§ 1674. LIBEL A15D SLANDER. 617 
 
 of malice will be sufficient without any statement of facts and 
 oircumstances.i So express malice, or want of probable cause 
 need not be averred.^ 
 
 § 1672. Malice, when not Implied.— Under the statute 
 of New York and other states, in actions against reporters, 
 editors, and proprietors of newspapers for an alleged libel in the 
 report of any judicial, legislative, or other public official pro- 
 ceeding, or of any statement, speech, argument, or debate in 
 the course of the same, malice in publishing the report is not 
 Implied by the publication.' An accurate reporVin a newspaper 
 of a debate in parliament, containing matter disparaging an in- 
 dividual is not actionable. The publication is privileged on 
 the ground that the advantage of publicity to the community 
 outweighs any private injury ; and comments in the newspaper 
 on the debate are so far privileged that they are not actionable 
 so long as they are honest, fair, and justified by the circum- 
 stances disclosed in the debate.* 
 
 § 1673. Proprietor and Publisher, Liability of. — In a 
 complaint for libel it is a sufficient allegation of its publication 
 by the defendant to allege that he was the proprietor of a news- 
 paper in which it was published, without otherwise alleging that 
 he published it, or was concerned in its publication. ^ A receiver 
 of a newspaper concern, pending a suit to settle the partnership 
 accounts of its proprietors, will be personally responsible for 
 any publication therein which is improper, although the order 
 of Ms appointment directs that the defendants may continue to 
 superintend the editorial department.* But the assignee of a 
 newspaper establishment, as a collateral security, is not liable 
 for a libel published in it.'' 
 
 § 1674. Publication, Averment of.— Every communica- 
 tion of language from one to another- is a publication ; but to con- 
 stitute an actionable publication it is essential that there be a 
 publication to a third person, and the husband or wife of either 
 author or publisher, or of the one whom or whose affairs the 
 language concerns, is regarded as a third person.s A statement 
 
 S^t^n f.«s, t f rk 40i: e Marfan v. Van Schaick, 4 Paig. 
 
 ,/, ^nLT;v,n*vP'Gr"elev irAbb! 'A to the general doctrine respect- 
 361 ; Littlejohn .v. Greeley, id add. .^^ ^^^ ^.^^.^.s^ ^^ publishers and pro- 
 
 ^'iih Sandford v. Bennett, 24 N. T. prieto. of newspapers. _ books^elW 
 '°; Wason V. Walter, Law Kep. 4 Q Stark, on Slander, 28-34; 1 Carter 
 i- ^y^=S^nT'^l1fj:Tsp:)i2r"' '' ^'"T^wnshend-s Slan. andLib. 90. 
 
18 POEMS OF COMPLAINTS. § 1675. 
 
 liat the defendant was proprietor of a newspaper, and that the 
 'ords were published therein, is a sufficient averment of publi- 
 ation.i The publication must be alleged, but it need not be 
 et forth in any technical form of words ; ^ but it must be alleged 
 ositively, and not by way of recital. ^ The word " published " 
 I the proper and technical term by which to allege publication,* 
 ut any equivalent allegation will suffice. ^ But to allege that 
 efendant composed, wrote, and delivered a certain libel ad- 
 ressed to the plaintiff, was held insufficient.^ That defendant 
 jnt a letter to plaintiff, which was received and read by him, 
 oes not show a sufficient publication ; '' it is necessary to allege 
 lat it was in fact seen or read (by others). ^ So where the 
 riter reads to a stranger his letter to the plaintiff, before dis- 
 atching it, it is a publication.^ 
 
 § 1675. Libel and Slander— Definition of. — Slander or 
 belis an infringement of the absolute rights of persons, as the 
 laracter of persons is undoubtedly one of their absolute and 
 3rsonal rights.^" A libel is a written or printed slander. ^^ Libel 
 a false and unprivileged publication by writing, printing, 
 icture, efflgy, or other fixed representation to the eye, which 
 sposes any person to hatred, contempt, ridicule, or obloquy, 
 ? which causes him to be shunned or avoided, or which has a 
 indency to injure him in his occupation,^^ Libel is both a 
 ablic wrong or crime, and a private wrong or tort, cognizable 
 y the common law. The remedy for the public wrong is by 
 idictment or criminal information. The remedy for the private 
 rong is a civil action now known as an action or the action of 
 : for libel. 13 The rule is generally laid down that a publication 
 
 libelous when its necessary effect is to diminish the plaintiff 's 
 iputation for respectability, impair his condition, and abridge 
 s comforts, by exposing him to disgrace and ridicule.i* In 
 
 1 Hunt V. Bennett, 4 E. D. Smith, •» Holt on Libel, 15. 
 
 7 ; affirmed 19 N. Y. 173. " 1 Hillard on Torts, u. 7, 32. 
 
 2 Baldwin v.Blphinston, 2 W. Black. i2(jal. Civ. Code, sec. 45; see, also, 
 37. Cal. Pen. Code, sec. 248 ; Gage v. 
 
 8 Donaghe V. Rankin, 4 Munf. 261. Eobinson, 12 Ohio. 250; Fisher v 
 * Stark on Slan. 359. Patterson, 14 Id. 418. 
 
 6 Townshend Slan. and Lib. 408 ; m Townshend on Slander and Libel, 
 
 ildwin V. Elpbinston, 2 W. Black. 22. 
 
 37; Waistedv.Holman, 2Hall, 172; "Hunt v. Bennett, 4 E. D. Smith 
 
 unt V. Bennett, 4 E. D. Smith, 647. 647. For definition of libel, see 
 
 « Waistel v. Holman, 2 Hall, 172. Townshend on Slander and Libel, 81 ; 
 
 ' Lyle v. Clason, 1 Cai. 581. Burr. Law Diet.; 1 Hill on Torts, c 
 
 ' Giles V. The State, 6 Ga. 276. 8, 313 ; Holt on Libel, 213 ; 1 Mence 
 
 » Snyder v. Andrews, 6 Barb. 43; on Libel, 125; Steele v. South wick, 9 
 
 'Combs V. Tuttle, 5 Blackf. 4,S1; Johns. 214; Cooper v. McElrath, 1 
 
 m Cleef v. Lawrence, 2 City Hall Den. 847 ; 3 How. U. S. 266 ; Armen- 
 
 icorder, 41. trout v. Miranda, 8 Blackf. 4:26 ; 4 
 
§ 1677. LIBEL AND SLANDER. 619 
 
 every slander there are two acts, composing and publishing. 
 In every libel there are three acts, composing, writing and pub- 
 lishing. So every publication of language concerning a man or 
 his affairs, whicli as a necessary or natural and proximate conse- ' 
 quence occasions pecuniary loss to another, is prima facie a slan- 
 der, if the publication be oral ; and a libel if it be by writing.^ 
 
 § 1676. Gist of Action. — Pecuniary loss to the plaintiff is 
 the gist of the action for slander or libel.^ If the language 
 published has not occasioned the plaintiff pecuniary loss, actual 
 or implied, no action can be maintained. And actual loss must 
 be shown to have been sustained. ^ Whether or not matter is 
 libelous, so as to be actionable, depends upon the style, scope, 
 spirit, and motive of the publication, taken in its entirety, and 
 the inquiry is into tlie natural effect of it, not only upon the 
 public generally, but upon the neighbors and friends of the 
 person aimed at.'* 
 
 § 1677. Joinder of Causes of Action and Parties. — It 
 would seem that plaintiff may unite in one complaint a cause 
 of action for slander with a cause of action for libel, or for ma- 
 licious prosecution. 5 But a cause of action in a plaintiff singly 
 for slander of him in his partnership business can not be joined 
 with d. cause of action in him and /liis partners jointly. ^ And 
 where a complaint contains several causes of action, each must ' 
 be separately stated and numbered,' and must be complete in 
 itself. 8 Where several are included in the same libel, they may 
 each maintain a separate action for the injury.^ An action of 
 libel lies against two or more, if the act be joint and done by all."> 
 Where a publication affects a class of persons, no individual of 
 that class can maintain an action. ^^ In libel, all who can concur 
 in the publication may be sued together, though the general rule 
 is otherwise as to slander, as words uttered by one are not the 
 words of another. 12 But if one repeats, and another writes, and 
 
 Mas3.n5! ia.l63, 167;McCord, 317; 'Robinson v. Marohant, 7 Q. B. 
 Carey V. Allen, 39 Wis. 482; Hand V. 918. k tt„„ p,. 
 
 Winton, 38 N. J. L. 122; Byers v. ' Pike v. Van Wormer, 5 How. Pr. 
 
 Godtrn 5 ^S; Ik''''' "^""""^ " ''''Helton v. Muzzy, 80 Vt. 365; ^in- 
 
 iTownsheni^^sSlLderandLi^^^^ clair v. Fitch, 3B. 1). Smith, 689 ; see 
 
 s lA K7 p. 395. note 11. 
 
 »BorthwriehonLibels,4. ^ ^^ » Smart v. Blanchard, 42 N. H 137 
 
 * Moffatt V. Oauldwell, 3 Hun, 26; '» Thomas v. Rumsey. 6 Johns. 26; 
 
 <3.„^T^=nn V naldwell 46 N. T. 398. Glass v. Stewart, 10 Serg. & R. 222. 
 
 ^""Sn V. mS"; 8 Abb. Pr. 3 ; ^ " White v. Delavan 17 Wend 49 ; 
 
 Hull V Vreeland, 42 Barb. 543 ; 3 Bing. but see Ryckman v. Delavan. 25 Id. 
 
 Kn^sTMe^rJiKS^Oa^'. "pi ^J^orsytb v. Edmiston, 2 Abb. Pr. 
 Bep. 11^ 
 
 430. 
 
620 FOEMS OF COMPLAINTS. § 1678. 
 
 a third approves what is written, all are liable.^ Partners may 
 sue for libel upon them, in respect to their business, but can re- 
 cover only for injury to their firm.* For a libel on partners, all 
 the partners may sue together.^ 
 
 § 1678. Privileged Communications. — As examples of 
 communications which have held to be privileged are a memorial 
 to the postmaster-general, charging fraud against a successful 
 candidate for a contract.* A physician granting a certificate of 
 lunacy, pursuant to statute^ A charge preferred by one mem- 
 ber of a lodge against another.^ Words spoken or written in a 
 legal proceeding, pertinent and material to the subject of the 
 controversy are privileged.'' A written communication from a 
 banker in the country to a mercantile firm in the city, in respect 
 to the pecuniary responsibility of a party whose note had been 
 forwarded for collection. ^ The withdrawal by an emplo yer of a 
 former recommendation of a discharged employee is privileged, un- 
 less it is shown to be malicious.' The publication of a slander by a 
 murderer at the time of his execution is not privileged.^* So pro- 
 ceedings before a grand jury are not privileged." The comments 
 on privileged communications are not protected, if libelous them- 
 selves.i'' The defendant, in a privileged communication described 
 the plaintiff's conduct as " most disgraceful and dishonest." The 
 •conduct so described was equivocal, and might honestly have been 
 supposed by the defendant to be as he described it ; it was held 
 that the above words were not of themselves evidence of actual 
 malice.^' 
 
 § 1679. Satire. — ^The distinction between the satirist and the 
 libeler is that one speaks of the species, the other of the individ- 
 ual, i* So an action for libel will only lie upon words concern- 
 ing distinguishable persons, and can not be brought upon 
 words which relate to a class or order of men.^^ But it must be 
 
 1 Thomas v.Rumsey, 6 Johns. 26. >2 Edaall v. Brooks, 26 How. Pr. 
 
 s Taylor v. Church, 1 E. D. Smith, 426 ; 17 Abb. Pr. 221. 
 
 279. w Spill V. Maule, L. R. 4 Exeh. 
 
 ' Taylor v. Church, 4 Seld. 452 ; 232. Tor additional communications 
 
 see S.C., 1 E. D. Smith, su^ra. whicli are deemed privileged, see 
 
 * Cook V. Hill, 3 Sandf. 341 ; Bud-' Ackerman v. Jones, 37 N. Y. Supr. (5 
 dington V. Davis, 6 How. Pr. 401. J. &Sp.)42. As to liability of propri- 
 
 ' Perkins v. Mitchell, 81 Barb. 461. etors of a mercantile agency for state- 
 « Streety v. Wood, 15 Barb. 105. ments respecting the financial standing 
 ' Garr V. Seldon, 4 Comst. 91 ; Per- and credit of a merchant, see Surider- 
 kins V. Mitchell, 81 Barb. 461. lin v. Bradstreet, 46 N. T. 188, where 
 ' Lewis V. Chapman, 16 N. T. 369 ; it is held they are liable for a false re- 
 reversing same case, 19 Barb. 252. port, though made in good faith. For 
 
 • Fowles V. Bowen, 30 N. T. 20. a case depending upon special facts, 
 IK Sanford v. Bennett, 24 N. Y. 20. see Klinok v. Colby, 46 N. Y. 427. 
 
 w McCabe v. Cauldwell, 18 Abb. i* Joseph Andrews, vol. 2, p. 5. 
 Pr. 377. K Sumner v. Buell, 12 Johns. 475. 
 
■^ 1684. LIBEL AND SLANDER. 621 
 
 manifest upon the face of the publication that the charges made 
 were intended against a class, profession, or order of men, and 
 can not by possibility impart a personal application tending to 
 private injury.^ 
 
 § 1680. Special Damages.— Those damages which are not 
 the necessary consequence of the language complained of must 
 ■be specially alleged in the complaint.^ But a complaint in an 
 action for words in writing charging insanity need not allege 
 special damage.' So in an action by one of several partners.* 
 An action can not be maintained by an author for a publication 
 disparaging his copyright work, without an allegation of spe- 
 cial damages. 5 
 
 § 1681. Exemplary Damages.— If the injury was willful 
 or intentional, if the express malice is proved, the jury are at 
 liberty to award damages, not only to compensate the actual 
 and pecuniary loss upon the ground of compensation for men- 
 tal suffering, public disgrace, etc., but they may further award 
 •exemplary damages.^ 
 
 § 1682. Names of Customers Lost. — As a general rule, 
 the names of persons who have refused to deal with the plaint- 
 iff must be stated.'' But if it is in the nature of things imprac- 
 ticable for him to know them, he may prove general loss of 
 business.^ It is properly, a question of evidence which can not 
 be settled before the trial. 
 
 § 1683. Corporations. — A corporation aggregate has the 
 capacity to compose and publish a libel, and by reason thereof, 
 when done, becomes liable to an action for damages, by the 
 person of and concerning whom the words are composed and 
 
 published. 3 
 §1684. porLibel— The Words not Being Libelous in 
 
 Themselves. 
 
 Form No. 4^3. 
 [T LB.] 
 The plaintiff complains, and alleges: 
 
 iKvckman v. Delavan, 25 Wend. 'Kobinson v. Marohant, 7 Q. B. 
 186; 'reversing White v. Delavaa, 17 918.^^^^ ^_ ^ ^ ^^^^_ ^^^ 
 
 • c • „ an„lH 14 Wend 159; « Fry v. Bennett, 1 Abb. Pr. 289; 
 
 T^S:T^I |t l^wio^ ;• %Tffi;."riJba^^!i Due. .0. 
 St?"id^29^^' femaf r Bull .Evans v. Harrie. I Hurlst. & N. 
 
 "^/ftkinrv. Mitchell, 31 Barb. 461. 
 
622 FORMS OF COMPLAINTS. § 1685. 
 
 I. That the plaintiff is, and was, on and before the 
 
 day of , 18...., a merchant, doing business in the city 
 
 of 
 
 II. That on the day of 18...., at , 
 
 the defendant published a newspaper called the [or 
 
 in a letter addressed to E. F. , or otherwise show how pub- 
 lished], the following words concerning the plaintiff: ["A. B., 
 of this city, has modestly retired to foreign lands. It is said 
 
 that creditors to the amount of dollars are anxiously 
 
 seeking his address."] 
 
 III. That the defendant meant thereby that [the plaintiff had 
 absconded to avoid his creditors, and with intent to defraud 
 them] . 
 
 IV. That the publication was false. 
 
 [DbMAND of JUDOMINT.P 
 
 § 1685. Ambiguous Article. — It may be averred of an am- 
 biguous article that it was published with a particular intent, 
 and was so understood by its readers, and this averment may 
 be proved on the trial.^ This is more strictly correct than to 
 employ an innuendo for the same purpose. ^ 
 
 § 1686. Capacity must be Averred. — When the words 
 charged bear relation to the plaintiff in his business or ofScial 
 capacity, such capacity should be averred in a traversible form 
 in the complaint ;* and the fact of his being engaged in such 
 business or profession at the time the words were spoken should 
 be alleged.^ In such an action special damages need not be 
 alleged. 8 
 
 § 1687. Construction. — Where the words alleged in a com- 
 plaint for libel are fairly susceptible of a construction which 
 would render them libelous, the complaint will be sustained 
 upon demurrer, although the words may also be interpreted so 
 as to be innocent.^ Where, in an action for libel, the words 
 complained of are not per se libelous, what the defendant in- 
 tended and understood them to mean, by those to whom they 
 were published, constitutes a proper subject of averment in 
 pleading and proof on the trial, and if what was so intended 
 and understood by the defendant, and understood by those to 
 
 1 This form is from the New Tork ' Butler v. Howes, 7 Cal. 87. As 
 Code Commissioners' Book of Forms, to the responsibility of an editor in 
 
 2 Gibson v. Williams, 4 Wend. 320. respect to comments upon the man- 
 8 Blaisdell v. Eaymond, 4 Abb. Pr. ager of a theater, see Fry v. Bennett, 
 
 446. 3 Bosw. 200; Id., 5 Sandf. 54; Id., 
 
 * 2 Greenl. Ev., sec. 412 ; Carroll v. 4 Duer, 247. 
 
 White, 38 Barb. 615. ' Wesley v. Bennett, 5 Abb. Pr. 
 
 s Carroll v. White, 83 Barb. 615. 498. 
 
§ 16S9- LIBEL AND SLANDEE. 623 
 
 whom the words were pulished, was libelous, the words are 
 actionable. 1 
 
 § 1688. Extrinsic Pacts.— Where the actionable quality of 
 language depends upon the capacity of the plaintiff, and the 
 language itself does not disclose that he is in such capacity or 
 occupation, an averment that plaintiff is of such a trade or pro- 
 fession will be sufficient. But where the language is actionable 
 of the plaintiff as an individual also, it is not necessary to allege 
 an inducement.2 When the words used by the defendant do 
 not of themselves convey the meaning which the plaintiff would 
 attribute to them, and such meaning results only from some 
 extrinsic matter or fact, such extrinsic matter or fact must be 
 alleged in the complaint, and proved on the trial. It is there- 
 fore necessary for the plaintiff in such a case distinctly to aver 
 the extrinsic fact upon which he relics to make the publication 
 libelous.3 Where the publication is not defamatory on its /ace, 
 the existence of extrinsic facts rendering it defamatory must be 
 alleged.'* But where it is not essential, such statement would 
 be mere surplusage. ^ By the statute it is no longer necessary 
 to state an inducement. So in New York, and in Missouri.* 
 So also in Massachusetts, where, " a distinct averment in regard 
 to the person spoken of, and a clear reference of the calumnious 
 words to that person, is all that is required." '' 
 
 § 1689. Innuendo. — The office of an innuendo is to explain, 
 not to extend, what has gone before, and it can not enlarge the 
 meaning of words unless it be connected with some matter of 
 fact expressly averred. ^ Nor can it change the ordinary mean- 
 ing of language. 8 Nor introduce new matter.^" It is only a link 
 to attach together facts already known to the court. '^ It can not 
 attribute to words a meaning which renders them actionable,^* 
 without a prefatory averment of extrinsic facts which makes them 
 
 1 Maynard v. Fireman's Fund In- ^ Townshend on Slander and Libel, 
 
 suranceCo., 34Cal.48. 897. , ,„ ,, ^,„ 
 
 » Townshend on Slander and Libel, * Sneber v. Wensel, 19 Mo. 513 ; 
 
 400 : Gaee v. Kobinson, 12 Ohio, and Wisconsin, Van Slyke v. Carpen- 
 
 250 ter, 7 Wis. 173. 
 
 » Caldwell v. Kaymond, 2 Abb. ' Miller v. Parish, 8 Pick. 883 ; 
 
 Pr. 193; see also, Cass v. Anderson, Stark, on Slan. 890. „ „., 
 
 83 Vt. 182 ; Casten v. Andrews, 16 ' Patterson v. Edwards. 2 Gilm. 
 
 Pick 1_ 720; Van Vechten v. Hopkins, 5 
 
 ♦ Pike V. Van Worner, 5 How. Pr. Johns. 211. 
 171 ; S. C, 6 Id. 99 ; Fry v. Bennett, 6 » Hays v. Mitchell, 7 Blackf 117. 
 Sandf. 54; Dias v. Shoi-t, 16 How. Pr. " Nichols v. Packard 16 Vt 83; 
 
 322; Blaisdell v. Raymond, 4 Abb. Weir v. Hoss, 6 Ala. 881. 
 Pr. 446; Carroll v. White, 33 Barb. " Cooke on Defamation 94 
 615; Culver v. Van Anden, 4 Abb. ^ Holton v. Muzzy, 30 Vt. 365. 
 Pr. 375. 
 
624 FOKMS OF COMPLAINTS. § 1690. 
 
 slanderous.' The use of innuendoes is in part retained and in 
 part dispensed with under our system of pleading. If the 
 words used are not libelous per se, but are made so by some 
 extrinsic matter alleged by way of inducement, innuendoes are 
 necessary to show the connection of such words with the intrinsic 
 facts. So, also, where the publication is made libelous by refer- 
 ence to extrinsic matter not necessary to be alleged. In such 
 case, the extrinsic fact should be suggested by an innuendo. 
 Where words are not libelous per se, the extraneous facts must 
 be stated in the introduction or inducement ; as an innuendo can 
 not extend, but only apply the words.''' The employment of the 
 innuendo will be indulged where the convenience of pleading 
 demands it, though in some cases it may not be strictly proper.^ 
 
 § 1690. Innuendoes, when not Essential. — When the lan- 
 guage is not in itself applicable to the plaintiff, no innuendo can 
 make it so.* But if the plaintiff is designated by another name 
 in the libel, his real name may be designated by an innuendo.* 
 Where it is desired to connect the words charged with the col- 
 loquium, or to show the meaning imputed to words libelous per 
 se, we consider that innuendoes may be dispensed with ; and it 
 w-ill always be unsafe to rely on an innuendo, unsupported by a 
 distinct prefatory averment, to show a libelous meaning not 
 evident from the words used.^ 
 
 § 1691. Letter. — A complaint which alleges that defendant 
 sent a letter to plaintiff, and that the same was, by means of 
 such sending thereof, received and read by plaintiff, and thereby 
 published by the plaintiff, is not good ; for the letter is pre- 
 sumed to be sealed, and sending a letter is not publication.' 
 But reading aloud a letter containing libelous matter amounts 
 to publication. 8 
 
 § 1692. Libelous Imputations. — Among imputations which 
 are libelous are an imputation of the receipt of money for pro- 
 curing a public appointment; an imputation of insanity j^ 
 corruption against a member of the legislature ;i'' a statement 
 
 1 Watts V.Greenlee, 2 Dev. 115; 'Townshend's Slan. & Lib. 114, 
 Browu V. Brown, 14 Me. 317; Bes- 426. 
 
 wick V. Chappel, 8 B. Mon. 486; * Hays v. Brierly, 4 "Watts, 892. 
 
 Dottarer v. Bushy, 16 Penn. St. 207; *As to proof of libelous meaning 
 
 2 Bibb, 319. by extraneous evidence, and as to 
 
 2 Nichols v. Packard, 16 Vt. 83 ; suflBciency of innuendo drawn, see 
 Brown v. Brown, 14 Me. 317; Harris Wachter v. Quenzer, 29 N. Y. 547; 
 V. Buriey, 8 N. H. 256 ; Linville v. Butler v. Wood, 10 How. Pr. 222. 
 Early wine, 4 Blackf. 469 ; Tappan v. ' Lyle v. Clason, 1 Cai. 581. 
 Wilson, 7 Ohio, 190, part 1. » Snvder v. Andrews, 6 Barb. 43. 
 
 s See Blaisdell v. Kaymond, 4 Abb. 'Perkins v. Mitchell, 81 Barb. 461. 
 Pr. 446 ; Caldwell v. Kaymond, 2 Id. "> Littleiohn v. Greelev. 18 Abb. 
 193. Pr.41. 
 
S 1696. LrBEL AND SLANDER. 625 
 
 of the keeper of an intelligence oflace reflecting on the business 
 capacity of the partners of a mercantile iirm.'- 
 
 § 1693. Libelous Intent and Meaning.— Where a com- 
 plaint only averred a libelous intent and meaning on the part 
 of the defendant in the composing and publishing of the words, 
 ■without averring that they were so understood by those to whom 
 they were published, a demurrer on the complaint on the ground 
 that the written and published words set forth do not constitute 
 a libel, should be sustained.'' 
 
 § 1694. Special Damage. — ^When the words are in their 
 natural and obvious construction injurious, some damage is to be 
 be presumed, and it is not essential to allege special damage ;3 
 but when the court can discern no injurious meaning in the plain 
 and natural purport of the publication itself, the plaintiff must 
 aver and prove special damage.* 
 
 § 1695. Of and concerning Plaintiff. — Although induce- 
 ment may be necessary to explain the matter alleged to be libel- 
 ous, it is enough to state in the declaration that the publication 
 was " of and concerning " the plaintiff.^ The court assumes the 
 words complained of do in fact refer to the plaintiff. ^ By sec- 
 tion 460, California code civil procedure, the averment that the 
 same was published concerning the plaintiff supphes the place 
 of all averments of extrinsic facts which might otherwise be 
 necessary to show the application of the words charged to the 
 plaintiff. This averment is essential, and can not be supplied by 
 
 an innuendo. 
 
 § 1695. Reputation — Character. — Reputation is the esti- 
 mate in which an individual is held by public fame in the place 
 where he is known ;^ and it is not necessary to prefix the word 
 " general."^ The word " character " and " reputation," though 
 often used synonymously, are in fact not synonymous.^ " Char- 
 acter" is a term ponvertible with common report.'" " General 
 character " is the estimation in which a person is held in the 
 community where he resides.ii it is the result of general con- 
 
 1 Taylor V. Church. 4 Seld. 451; see, « Wesley v. Bennett, 5 Abb. Pr. 
 
 ^"f^''' ^°n%"FTns^' Co '34 CaU 'Cooper v. Greeley, 1 Den. 347. 
 s Maynard v. F. F.lns. 1.0., <s* i.a.. ^ ^^^ h_^ ^^ Millara, 2 Ohio St. 50. 
 
 ^h-^ ■,■ TWt„i,on <?1 Rarb 461 ; » Bucklin v. The State, 20 Ohio, 18; 
 
 ^^Viawell v. Kay^ond 2 Abb Fr. v. Ki.mel, 3 Serg. & E. 337. 
 'iLT:. WioSn.'* l:"df.To: "See Douglass v. Tousey, 2 Wend. 
 
 6 Townshend on Sland. and Lib. 354. 
 406. 
 
 EsTEi, Vol. 1—40 
 
626 FOEMS OP COMPLAINTS. § 1697. 
 
 duct.^ "Chaste character" meafls actual personal virtue,, not 
 actual reputation.* 
 
 § 1697. Words with a Coveit Meaning. — ^Words which 
 oil their face appear to be entirely harmless may under certain 
 circumstances convey a covert meaning wholly different from 
 the ordinary and natural interpretation usually put upon them. 
 To render such words actionable, it is necessary for the pleader 
 to aver that the author of the libel intended them to be under- 
 stood, and that they were in fact understood by those who read 
 them in their covert sense. ^ And when a hidden defamatory 
 meaning is sought to be attributed to words in themselves in- 
 nocent, and on their face containing no such sense, by extrinsic 
 facts outside and independent of the publication itself, the 
 knowledge of such facts must be shown by averment to have 
 existed in the breast of the defendant at the time of the publi- 
 cation.* 
 
 § 1698. The Same— By an Attorney at Law. 
 
 Form No. 4S4, 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That the plaintiff was, on and before the day of 
 
 , 18..., an attorney at law of the several courts of 
 
 record of the state of , duly admitted as such to prac- 
 tice therein, as such attorney, and had practiced, and still con- 
 tinued to practice as such attorney at law, in the several courts 
 of record in said state of , and had always, as such at- 
 torney at law, conducted and demeaned himself with honesty 
 and fidelity, and had never been guilty, or suspected to have 
 been guilty, of any misconduct or malpractice, in his said 
 capacity and profession of an attorney at law. 
 
 II. That on the day of , 18...., at , the 
 
 defendant published in a newspaper called the , the 
 
 following words concerning the said plaintiff, and of and con- 
 cerning him in his said capacity and profession of an attorney 
 at law [set forth the words used] . 
 
 III. That defendant meant thereby that [state innuendo]. 
 
 IV. That said publication was false and defamatory and by 
 means thereof the plaintiff had been and is greatly injured and 
 
 ' Sharp V. Scogin, Holt's N. P. 0. Co., 34 Cal. 48 ; see also Kundell 
 
 541;3Am. Law JT, N. S.. 145. v. Butler, 7 Barb. 260; Wesley v. 
 
 ° Carpenter v. The People, 8 Barb. Bennett, 5 Abb. Pr. 498 ; and Carroll 
 
 603 ; Crozier v. The People, 1 Park. v. White, 33 Barb. 618. 
 Cr. 453; Safford v. The People, Id. * Smith v. Ashley, 11 Met. 867; 
 
 474. Dexter V. Spear, 4 Mason, 115. 
 
 * Maynard v. Fireman's Fund Ins. 
 
S 1700. LIBEL AND SLANDER. 627 
 
 prejudice in his reputation aforesaid, and has also lost and 
 been deprived of great gains and profits, which would other- 
 wise have arisen and accrued to him in his said profession 
 and business, to his damage dollars. 
 
 [DaMANl) OF JUDSMBNT.] 
 
 § 1699. The Same— By a Physician. 
 
 Form No. 4S5. 
 [Title.] 
 
 rtie plaintiff complains, and alleges: 
 
 I. That at the time hereinafter mentioned the plaintiff was a 
 physician, practicing as such at 
 
 II. That on the day of , 18...., the defendant . 
 
 published in a newspaper called the , the following 
 
 words concerning the plaintiff [set forth the words used]. 
 
 III. That said publication was false and defamatory, and by 
 means thereof the plaintiff was injured in his reputation, and 
 in his said good name and credit as a physician, and in his 
 practice as such, to his damage dollars. 
 
 [Demand or Judgment.] 
 
 § 1700. For Libel — Charge of Dishonesty, etc., in Busi- 
 ness. 
 
 Form No. 4SS. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That at the times hereinafter mentioned, the plaintiff was 
 a corporation existing by or under the laws of this state, was 
 
 engaged in business in the city of as a banker 
 
 and stock broker. 
 
 II. That the business of this plaintiff as a has 
 
 always depended largely on the good reputation and credit ol 
 this plaintiff, and on the trust reposed in it, and by their share- 
 holders and the public, in consequence thereof. 
 
 TIT. That the defendant was, at the times hereinafter men- 
 tioned, the publisher and proprietor of the , a news- 
 paper published in the city of 
 
 IV. That the defendant, well knowing the premises, did, on 
 
 ^g (jay of 1 18..., compose and publish in said 
 
 newspaper, concerning the plaintiff, and concerning the prem- 
 ises, the false and defamatory matter following, to wit [here 
 insert the words of libel, innuendoes, etc.] 
 
 V. That by reason of the premises, the plaintiff has been 
 injured in its reputation and credit, to its damage 
 
 dollars. ^ -, 
 
 [Demand ov Judgment.] 
 
628 FORMS OF COMPLAINTS. § 1701, 
 
 § 1701. Corporations— Special Damage. — Ineoi-porated 
 companies established for the purpose of transacting business, 
 e. g., banks, may maintain actions for libel, the same as in- 
 dividuals, for words affecting their business or property, and 
 without alleging special damages. ^ 
 
 § 1702. For Charge of Crime — Words not Libelous 
 on their Face. 
 
 Form No. 4^7. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That at the time hereinafter mentioned, the [dwelling- 
 house I of the defendant had been- burned down, and t was sus- 
 pected that it had been feloniously set on flre. 
 
 II. That on the day of 18..., at , 
 
 the defendant published in a newspaper called , the 
 
 following words concerning the plaintiff: " One A. B. kindled 
 the flre, and I can prove it." 
 
 III. That the defendant meant thereby that the plaintiff had 
 feloniously set fire to said house. 
 
 IV. That the said publication was false and defamatory. 
 
 "V. That plaintiff hath sustained damage by reason of said 
 
 false and defamatory publication in the sum of dollars. 
 
 [Demand of Judgment.] 
 
 § 1703. For Accusing Plaintiff of Perjury in his An- 
 swer to a Complaint, 
 
 Form No. 4S8. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That before the committing of the grievances hereinafter 
 mentioned, the plaintiff had filed his answer in a certain action 
 then pending against him in the superior court of the county of 
 
 1 state of , wherein the defendant herein was 
 
 plaintiff ; and which said answer was verified by this plaintiff. 
 
 II. That on the day of , 18..., at , 
 
 the defendant, well knowing the premises, published and caused 
 
 and procured to be published, in anewspaper called the , 
 
 concerning the plaintiff and his said answer, the following words 
 [here state the libelous matter] ; and in a certain other part of 
 the said libel, the following words [here state libelous matter] . 
 
 III. That said publication was and is false and defamatory, 
 and by reason thereof the plaintiff hath sustained damage in 
 the sum of dollars. 
 
 [Demand or Judgment.] 
 
 1 Shoe and Leather Bank v. Thompson, 23 How. Pr. 253. 
 
§ ^'^^^- LIBEL AND SLANDEK. 629 
 
 § 1704. For Composinga Libel not Directly Accusine 
 the Plaintiff of Perjury. 
 
 _, , Form No. 429, 
 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That before the committing of the gi-ievances by the de- 
 fendant hereinafter mentioned, a certain action had been pend- 
 ing in the superior court of the county of , state of 
 
 ' wherein one A. B. was plaintiff and one C. D. was 
 
 defendant, and which action had been then lately tried in said 
 court, and on such trial the plaintiff herein was examined on 
 oath, and had given his evidence as a witness in behalf of the said 
 A. B. 
 
 II. That on the day of , 18...., at , the 
 
 defendant published in a newspaper called the , the 
 
 following words concerning the plaintiff and the said action, 
 and concerning the evidence given by the said plaintiff upon 
 the said trial as such witness, that is to say: "He" (meaning 
 the plaintiff) "was forsworn on the trial" (meaning the said 
 trial), and that he, the said plaintiff, in giving his evidence as 
 such witness on said trial, had committed willftd and corrupt 
 perjury. 
 
 m. That said publication was and is false and defamatory. 
 IV. That by reason of said false and defamatory publication 
 
 the plaintiff hath been damaged in the sum of dollars. 
 
 [Demand of Judgment.] 
 
 § ] 705. For a Libel not Directly Accusing the PlaintiflF 
 of Larceny. 
 
 Form No. 4S0. 
 [Title] 
 The plaintiff complains, and alleges : 
 
 I. That before the committing of the grievances hereinafter 
 mentioned, a certain horse of the defendant had been feloni- 
 ously stolen by some person or persons [or state that the de- 
 fendant "was possessed of a horse, and had asserted that his 
 horse had been feloniously stolen," or "it had been asserted 
 that his said horse had been feloniously stolen "]. 
 
 II. That on the day of , 18..., at , the 
 
 defendant, well knowing the premises, published in a news- 
 paper, caUed the , the following words concerning the 
 
 plaintiff: " He is the person who took my horse from the field." 
 
 III. That the defendant meant thereby that the plaintiff had 
 feloniously stolen his said horse. 
 
 IV. That the said publication was false and defamatory, and 
 
630 FOKMS OP COMPLAINTS. § 1706. 
 
 by reason of said false and defamatory publication the plaintiff 
 
 hath sustained damage in the sum of dollars. 
 
 [Demand op Judgment.] 
 
 § 1706. For Libel by Signs. 
 
 Form No. 4S1. 
 
 [TiTLB.] 
 
 Theplantiff complains, and alleges: 
 
 I. That on the day of , 18..., at ..., the 
 
 defendant, contriving to injure the plaintiff in his reputation, and 
 to bring him into public contempt, disgrace and ridicule, did, in 
 
 the public street of said , wrongfully and maliciously 
 
 make, and cause to be made, an efflgy or figure intended to rep- 
 resent the person of the plaintiff, and hung up and caused to be 
 hung up the said eflSgy, in the view of the neighbors of the plaint, 
 iff and of the public then and there assembled, by means of which 
 the plaintiff has been greatly injured in his reputation, to his 
 
 damage dollars. 
 
 [Demand ot Judgment.] 
 
 § 1707. For Slander — The Words being Actionable in 
 
 Themselves. 
 
 Form No. 4S2. 
 [Title.] 
 
 Th^ plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at -.. , the 
 
 defendant spoke, in the hearing of A. B. [or sundry persons] , 
 
 of and concerning the plaintiff, the false and scandalous words 
 
 following [he is a thief] , to the damage of the plaintiff ........ 
 
 dollars. 
 
 [Demand of Jitdgmbnt.] 
 
 § 1708. Abatement of Action.— By the common law, ac- 
 tions of tort die with the person, and this rule applies to actions 
 for slander and libel, except in those states where a different rule 
 is prescribed by the statute.^ 
 
 § 1709. Ambiguous Words. — Where words are ambiguous 
 and uncertain in their meaning, the complaint must allege such 
 circumstances as will show that they were uttered with a slander- 
 ous meaning.^ 
 
 § 1710. Averments in Complaint.— The New York code 
 has changed the common-law rule of pleading in actions of 
 slander in one particular: that is, although it may be uncertain 
 
 1 A caricature may be libelous : See v. Dinehart, 5 Cush. 343, 544; Wal- 
 
 Viele V. Gray, 19 How. Pr. 650; 10 ford on Parties, 1392, 1449. 
 
 Abb. Pr. 1. » Pike v. Van Wormer, 5 How. Pr. 
 
 * Townshend on Slander and Libel, 171 ; S. C, 6 Id. 99. 
 389; see 1 W. Saund. 816; Nettleton 
 
S ^'^15- LIBEL AND SLANDER. 631 
 
 to whom the words were intended to apply, it is no longer neces- 
 sary to insert in the complaint any averment showing they were 
 intended to apply to the plaintiff.i A complaint which avers that 
 defendant spoke certain words of and concerning the plaintiff, 
 and setting forth the words which appear actionable per se, suffi- 
 ciently states a cause of action.' 
 
 § 1711. Chastity.— Ordinarily, and in the absence of any 
 statutory provision, words published orally charging a woman 
 with want of chastity are not objectionable per se.3 Want of chas- 
 tity, special damage being averred, as to unmarried female, is 
 actionable;* also as against a man, ' or a married woman.^ In 
 California the common-law rule that charging a want of chastity 
 is not actionable per se, has been changed by the code, whether 
 the words are spoken of a man or woman.'' 
 
 § 1712. Construction.— In a declaration in slander, the 
 words laid as the slanderous charge will be understood by the 
 court in their natural and popular sense.* 
 
 § 1713. Continuando. — In complaint for slander the words 
 spoken should not be alleged with a continuando. Slanderous 
 words spoken at one time constitute one cause of action. The 
 same or other slanderous words spoken at other times constitute 
 other causes of action, but if relied on they should be separately 
 pleaded, in separate paragraphs.* 
 
 § 1714. Counts in Complaint.^It is allowable to include 
 in the same declaration divers distinct words of slander of differ- 
 ent import.^" But a new count for another slander can not be 
 added after the right of action has been barred by the statute of 
 of limitations.il Under the old rule the plaintiff was held to 
 strict proof of the words as charged in the declaration ; and to 
 meet this rule it was necessary to state the words in a variety of 
 counts adapted to the evidence relied on.i* 
 
 § 1715. Damages. — In an action for slander, where words 
 are charged to have been spoken of and concerning a plaintiff as 
 a clerk or tradesman, which it is alleged was his profession, it is 
 unnecessary to allege special damages.^^ 
 
 1 Pike V. V an Wonner, 6 How. Pr. 99. ' Tuttle v. Bishop, 30 Conn. 89. 
 
 2Malonev. Stilwell, 15 Abb. Pr. » Swinney v. Nave 22 Ind. 178. 
 
 421 1° Hall V. Nees, 27 111. 411. 
 
 3 Townshend on Slander and Libel, " Smith v. Smith, 45 Penn. St. 403. 
 
 17K At son " SeeOlmstead v. Miller, 1 Wend. 
 
 * duller V Fenner 16 Barb. 333. 606; Aldricb v. Brown, 11 Id. 596; 
 
 t TerwilUger V mnVn N. Y. 54. Kee'nholtz v. Becker, 3 Den 346 ; Fo:, 
 
 6 WUson v' Goit, 17 N. Y. 442 ; v. Vanderbecl^ 5 Cow. 513 ; Howard 
 
 Olmstead V. Brown! 12 Barb. 667; v. 8ext°n. 4 N. Y. 157; Rundell v. 
 
 Klein V. Hentz, 2 Duer, 633. Butler, 7 Barb. 260. 
 
 » Oal. Civ. Code, sec. 46. " Butler v. Howes, 7 Cal. 87. _ 
 
632 FORMS OP COMPLAINTS. § 171G. 
 
 § 1716. Disease. — ^With respect to the charge of having a 
 disease, it is actionable to charge having certain diseases, but 
 it has been held not actionable to charge one with having had 
 such diseases.^ Thus, that a married woman has (in the pres- 
 ent tense) a venereal disease ;* that a man Las a venereal dis- 
 ease.' 
 
 § 1717. Entire Conversation. — ^A count of a petition in an 
 action for slander, which sets out the entire conversation in 
 which the slander was spoken, contains only one cause of 
 action, although the conversation consists of several parts, each 
 of which is actionable.* A complaint in an action for slander 
 which states that the words contained therein are those which 
 the defendant spoke concerning the plaintiff is good, although 
 the style of such words is unusual for a conversation.^ 
 
 § 171?. Essential Averments. — In an action for slander 
 it should be alleged that the defendant spoke the words in the 
 presence and hearing of divers persons. To allege a speaking 
 merely is not sufficient.* But in Indiana, by statute, it is suffi- 
 cient merely to allege the speaking.'' Or it is sufficient to allege, 
 " in the hearing of certain persons," naming them ;8 or of certain 
 persons named, and divers others, not naming the others. ' 
 
 § 1719. Husband and Wife.— By the statute of New York 
 of 1860 and 1862, a married woman may sue alone and without 
 her husband for slander or libel ; and so in Pennsylvania." But 
 a wife can not sue her husband for slander ;ii but if there be 
 no statutory provision to govern such actions, the action should 
 be brought in the name of both husband and wife.^^ And if the 
 husband dies, the action survives to the wife ; but if the wife 
 ilies before verdict, the action abates. ^^ If the words concern- 
 ing a married woman are actionable because of special damage • 
 to the husband, the husband must sue alone, i* even if the hus- 
 band and wife live apart under a deed of separation. i* So for a 
 
 1 Townshend on Sland. and Lib. '» Fr^ethy v. Freethy, 42 Barb. 641 ■ 
 
 184. Tibbs v. Brown, 2 Grant's Gas. (Penn.) 
 
 « Williams v. Holdredge, 22 Barb. 39. ' 
 
 !96. 13 Stark, on Sland. 849 ; Newton v. 
 
 s Hewitt V. Mason, 24 How. Pr. Eowe, 8 So. L. R. 26 ; Dentate v, 
 
 '66. Gardiner, 4 Mee. & W. 6; Say re, 33: 
 
 ♦ Cracraft v. Cochran, 16 Iowa, 301. Baldwin v. Flower, 3 Mod. 120 ; Long 
 
 5 Hull V. Vreeland, 42 Barb. 543. v. Long, 4 Barr, 29. 
 
 « Style, 70; Stark. Slan. 360. is 12 Serg. & R. 76; see Style, 138. 
 
 ' Guard v. Risk, 11 Ind. 156. " Saville v. Sweeney, 4 Barn. & 
 
 8 Burbank v. Horn, 39 Me. 233. Adol. 514 ; Long v. Lonp-, 4 Barr, 29 ; 
 
 » Bradshaw v. Perdue, 12 Ga. 510 j Stark, on. Slan. 351 ; Fort. 377 ; 1 Lev. 
 
 Wave V. Cartledge, 24 Ala. 622. 140 ; Klein v. Hentz, 2 Duer, 633. 
 
 w Rangier v. Hummell, 37 Penn. St. « Beach v. Ranney, 2 Hill, 309 ; see 
 
 IbO ; see also N. Y. Code, sec. 450. Townshend on Slan. and Lib. 390. 
 
§ 1724. LIBEL AND SLANDER. 633 
 
 charge of joint larceuy, the husband should sue alone. ^ Where 
 the language published concerns both husband and wife, the hus- 
 band may sue alone for the injury to him, and the husband and 
 wife may sue jointly for the injury to the wife.^ For a publica- 
 tion by a married woman, the action must be against her and her 
 husband. 3 
 
 § 1720. Joinder of Actions. — A cause of action against the 
 husband for the wrongful act of his wife can not be joined with 
 a cause of action against him for his own wrongful act. Thus, 
 where the complaint in an action against husband wife 
 stated a cause of action for slanderous words of the wife, and a 
 further cause of action for slanderous words of the husband, 
 it was held that the two causes of action were improperly 
 joined.* 
 
 § 1721. Jurisdiction. — The court has jurisdiction in an ac- 
 tion of slander, although the slanderous words were spoken in 
 another state. ^ 
 
 § 1722. Language in Part Slanderous.— Where the com- 
 plaint sets out language used on a single occasion, a part of 
 which is slanderous and the rest is not, the latter portion will 
 not be stricken out as irrelevaut. Though it may not be nec- 
 essary to allege in the complaint all that was said at the time, it 
 is proper to do so.^ Plaintiff was not bound, however, to prove 
 all the words charged. If he proved some of them, and those 
 proved were actionable, it was enough.'' And different sets of 
 words importing the same charge, and laid as spoken at the same 
 time, might under the former practice be included in the same 
 count.8 If any of the words are actionable judgment must be 
 for the plaintiff.' 
 
 § 1723. Of or concerning Plaintiff.— It is sufficient to aver 
 substantially that the words were spoken of plaintiff. An express 
 averment of the fact is not necessary.^" 
 
 § 1724. Place and Time.— The place" or time of speaking 
 
 1 9n PBnn 159 " Eathbun v. Emish, 6 Wend. 407 ; 
 
 1 20 Penn. l&a. Milligan v. Thorn, Id. 412. 
 
 3 5 Car. & P. 484 ; 2 Wila. 227 ; Style, » Edds v. Waters, 4 Cranch 0. Ot. 
 
 °*^Vx Tj A^^c ia How Pr. Tillotson, Id. 508; Cave v. Shelor, 2 
 
 Deyo V. Brundage, ^ How. Pr. ^ , ^ '^ p^, g i„a. 226 ; 
 
 221 ; Boot V. Lowndes, 6 Hai, 5ia. _ ^ Marsden, 4 Mau. & Sel. 1 64 ; 
 
 Pui^v^ VrtotK. r|nS Baldwin v. HUdreth, 14 Gray (Mass.). 
 ^JrnkScI;Khnsfm • ''"' ujefferiesv.DuncomHnEast,226. 
 
634 rOEMS OF COMPLAINTS. § 1725. 
 
 the words! are not material ; but it must be prior to the com- 
 mencement of the action.^ 
 
 § 1725. Presence and Hearing, Allegation of. — The 
 words used must be alleged as having been spoken of and con- 
 cerning the plaintiff, in the presence and hearing of some per- 
 son or persons.^ Bat the plaintiff may amend on the trial, if de- 
 fendant is not misled.'* It is a sufficient allegation in a complaint 
 in an action for slander, to show that the words were spoken in 
 the presence and hearing of some person or persons ; to state 
 that in certain conversations or discussions defendant did pub- 
 lish, declare, etc., as these words sufficiently imply the presence 
 of hearers, and indicate that the declarations were public and 
 notorious. 5 
 
 § 1726. Presumption of Malice. — Where the occasion 
 upon which the words for which an action of . slander is brought 
 were spoken repels any presumption of malice, and proof of it 
 is necessary to maintain the action, it is sufficient to aver that 
 they were spoken maliciously, without setting forth in the com- 
 plaint the facts and circumstances which show the existence of 
 malice.8 
 
 § 1727. Published. — " Published " ex vi termini, imports a 
 speaking in the presence of a third party.'' And this aver- 
 ment is sufficient, without averring specially in the presence of 
 others. 8 That the words were spoken would be sufficient, if 
 accompanied by an averment implying publication to a third 
 person.* 
 
 § 1728. Several Liability. — As a general rule, an action 
 of slander will not lie against two persons, as every speaker 
 must be sued separately, i" although it seems that where the 
 words are alleged to have been uttered in pursuance of a con- 
 spiracy between two or more defendants, the action may be 
 maintained.!^ 
 
 § 1729. Slander Defined.— Slander is the imputation: 
 1. Of some temporal offense, for which the party may be in- 
 dicted and punished in the temporal courts ; 2. Of an existing 
 contagious disorder, tending to exclude the party from society ; 
 3. Of an unfitness to perform an office or employment of profit, 
 
 "22 Barb. 87. 'Duel v. Agan, 1 Code R 184. 
 
 » Taylor v. Surgingger, 2 Rep. Con. ' Burton v. Burton, 8 Iowa, 816. 
 
 Ot. 867. ' Taylor v. How, Cro. Eliz. 861. 
 
 « Anonymous, 8 How. Pr. 406 ; i» Malone v. Stilwell, 15 Abb. Pr. 
 
 Wood V. Gilchrist, 1 Code R. 117. 421. 
 
 *Id. "Oh. PI. 74; Bull. N. P. 6; For- 
 
 » Hurd V. Moore, 2 Or. 85. Byth v. Edmiston, 2 Abb. Pr, 430. 
 
 6 Viele V. Gray, 10 Abb. Pr. 1. 
 
§ 1732. LIBEL AND SLA.NDEK. 
 
 635 
 
 or want of integrity in an office of honor ; 4. Words prejudic- 
 ing a person in his lucrative profession or trade ; 5. Any untrue 
 words occasioning actual damage ;i slander being an unwritten 
 or unprinted libel.^ It ig also defined to be " the publishing 
 of words in writing or by speaking, by reason of which the per- 
 son to whom they relate becomes liable to suffer some corporal 
 punishment or to sustain some damage. "^ Slander is a private 
 wrong or tort, cognizable by the common law, the remedy for 
 which is a civil action, formerly known as an "action on the 
 case for words," and now as " an action, or the action of or for 
 slander."* 
 
 § 1730. Special Damages.— The loss which ensues as a 
 necessary consequence is termed damage; the loss which en- 
 sues as a natural and proximate consequence is termed special 
 damages.^ Special damages consist in the loss of marriage, loss 
 of consortium of husband and wife, loss of emoluments, profits, 
 customers, employment, or gratuitous hospitality, or by being 
 subjected to any other inconvenience or annoyance occasioning 
 or involving a pecuniary loss.^ Mere apprehension of loss is 
 not such special damage as will maintain an action.'' Mental 
 distress, physical illness, and inability to labor, occasioned by 
 the aspersion of words not in themselves actionable, are no 
 grounds for special damages.^ 
 
 § 1731. Special Damages must be Alleged. — Special 
 damaoes, or those damages which are not the necessary conse- 
 quence of the language complained of, must be specially alleged 
 in the complaint.* A pecuniary loss must be shown to entitle 
 the plaintiff to a remedy.^" The objections that allegations of 
 special damage — e. g., in an action for slander — are not suffi- 
 ciently specific, can not be raised by demurrer, but only by 
 motion to make more specific." 
 
 § 1732. Subsequent Usage.— In slander, allegations of a 
 subsequent usage of the words complained of are inadmissible. 
 A repetition may be proved without such allegation. '^ If 
 
 » 1 HJlliard on Torts, c. 7, p. 33. Wands, 17 N. T. 54 ; Wilson v. Goit, 
 
 » TrI 32 l*^- **2- 
 
 SBacAbr ' » Townshend on Slander and Libel, 
 
 * TownsheAd on Slander and Libel. 428^citing -■- -J^f -,, ,,, , 
 
 "•„,ia Herrick V. Lapham, 10 Johns. 281 ; 
 
 11^227 Hallockv. Miller, 2 Barb. 630; Hersh 
 
 K ^%T°i^rJiJ&:iiT/2!'^^ ^uSfVifr:TfHow. p. 
 
 Ve'^h4Ta°/df St^v.^FeT^eT; II ^>'4ray v. I^ellis. 6 How. Pr. 290. 
 Barb. 333; overruled, Terwilhger v. 
 
636 FOEMS OF COMPLAINTS. § 1733. 
 
 after a recovery has been had in an action for slander or libel, 
 special damage occurs, no action can be maintained therefor. 
 The first recovery is a bar to any subsequent action.^ Ordi- 
 narily, the repetition of language by another than the first pub- 
 lisher is not a natural consequence of the first publication, and 
 therefore, except in certain eases, the loss resulting from such 
 repetition does not constitute special damage.^ 
 
 § 1733. Specific Words. — The specific words in which slan- 
 der is conveyed must be set forth in the petition in an action 
 of slander ; and it is not sufficient to state the effect of the words 
 merely, or to allege that the defendant charged the plaintiff 
 with a particular crime.^ 
 
 § 1734. For Slander — Words Spoken in a Foreign Lan- 
 guage. 
 
 Form No. iSS. 
 [Title,] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , 
 
 the defendant, in the presence and hearing of divers persons 
 who understood the [German] language, spoke concerning the 
 plaintiff the following words in the said [German] language 
 [here set forth the words in the German or foreign language] ; 
 and which said words signified, and were understood to mean, 
 in the English language [here set forth a correct translation of 
 the words in English] ; and the said [German] words were so 
 understood by the said persons in whose presence and hearing 
 they were spoken. 
 
 II. That the defendant meant thereby [set forth innuendo]. 
 
 III. That the said publication was false and defamatory. 
 
 IV. That in consequence [state special damage]. 
 
 V. That by reason of the speaking and publication of the 
 said false and defamatory words the plaintiff hath been injured 
 in his reputation, to his damage dollars. [If special in- 
 jury as to business is alleged, add, after the word " reputation," 
 the words " and business."] 
 
 [Demand op Judgment.] 
 
 § 1735. Foreign Language.— ^here the slanderous words 
 
 were spoken in a foreign tongue, they should be set out in the 
 
 complaint in the original language, accompanied by an averment 
 
 of their meaning in English, and it should also be alleged that 
 
 • Townshend on Slander and Libel, * Townshend on Slander and Libel, 
 231 ; Cooke Defam. 24 ; Fittler v. Veal, 288. 
 Cas. K. B. 542. a Taylor v. iloran, 4 Met. (Ky.) 127. 
 
§ 1737. LIBEL AND SLANDER. 637 
 
 the persons present understood the language used.^ The com- 
 plaint is, however, amendable in this respect upon terms. ^ In 
 the case of foreign words, it mast be alleged that the persons 
 present understood them.* But in Ohio it is held where words 
 are spoken in German, in a German country, it will be presumed 
 that they were understood.* 
 
 § 1736. For Slander — The Words not being Actiona- 
 ble in Themselves. 
 
 Form No. 4S4. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., at , the 
 
 defendant said to one C. D., concerning the plaintiff [" He is a 
 young man of remarkably easy conscience."] 
 
 II. That the plaintiff was then seeking employment as a pri- 
 vate secretary of said C. D., and that the defendant meant by 
 said words that the plaintiff was not trustworthy as a private 
 secretary. 
 
 III. That the said words were false. 
 
 IV. That in consequence of the said words [the said C. D. 
 refused to employ the plaintiff as private secretary], to his 
 
 damage dollars. 
 
 [Demand op Judgment.] 
 
 § 1737. Innuendo. — ^Where the words themselves are am- 
 biguous, and do not necessarily impute a crime, the innuendo 
 can not enlarge the meaning of the words spoken beyond the 
 averment of the intention by which the speaking of the words 
 is introduced.5 it may be averred that the defendant, by means 
 of the words, insinuated and meant to be understood by the 
 hearers as charging the plaintiff with the crime imputed.^ But 
 if the words are unambiguous, such averment is unnecessary.^ 
 And where the innuendo extends the meaning, the excess m 
 meaning may be disregarded.^ 
 
 iKeenhoUs v. Becker 3 Den. 346; |X'^y^^oS-10°Hol.^^'. ^ 
 Wormouthv.Cramer 3Wend^ 394, ^^I'/^t^,^^^. Cheatham. 3 Johns. 56; 
 Lettman v. R.tz, 3 Sax.d| 734; Amann TiUotson^v^^ ^_ ^ ^ _ 
 
 V. Damm, 8 0. B. (^■°-)J^'^„, Lindsev v. Smith, 7 Id. 359 ; Vaughan 
 
 J Lettman v. Eitz, 3 Sandf. 7^ t^ Havens 8 Id. 109 ; Fry v. Bennett, 
 
 « Wormouth V. Cramer, 3 Wend ^- Have"3 a l^^i^^ ^^ Woodm.vn- 
 
 394; Stark. Slan. 360; Ze.g v. Ort 8 5 ^»»g^y*^jf ^^g ; Cornelius v. Van 
 
 Chand. Wise. |6; Amann v. Damm, ^««'^lf 2I iTVO; Croswell v. Weed, 
 
 * ^B^chtel v.'shatleri Wright, 107. ^5 Id. 621 ^^^^ ^^^ 
 
 Mott V. Comstock, 7 Cow. 654; id. 
 
638 FORMS OF COMPLAINTS. § 1738. 
 
 § 1738. Tenor, Import, and Efi'ect. — It is bad pleading to 
 aver in the complaint that defendant uttered " certain false 
 and defamatory words and statements, of the following tenor 
 and import, and to the following effect ; that is to say," etc., 
 though an allegation of their " substance " might be sufficient.* 
 
 § 1739. What Words are Actionable. — Although words 
 spoken of a party do not necessarily import anything injurious 
 in themselves, yet they may when taken in connection with 
 other charges made against the party at the same time. The 
 whole being spoken of the party as a merchant, and with in- 
 tent to affect his credit, have a very different meaning from 
 their ordinary one, and so taken may sustain an action.' 
 
 § 1740. Words of Disgrace. — Mere words of disgrace, un- 
 less written and published, are not actionable. ^ 
 
 § 1741. Words not per se Slanderous. — In actions of 
 slander for words not in themselves actionable, the right to 
 recover depends upon the question whether they caused special 
 damage, and the special damage must be fully and accurately 
 stated.'* 
 
 § 1742, For Slander Respecting PlaintifiF 'a Trade. 
 
 Form No. 4S5. 
 [Tl'rt.K.] 
 The plaintiff complains, and alleges: 
 
 I. That at the time of the commission of the grievances here- 
 inafter mentioned, the plaintiff was engaged in business as mer- 
 chant [or as the case maybe], and had always maintained a 
 good reputation and credit as such [merchant] . 
 
 II. That on the day of , 18..., the defend- 
 ant, in the presence and hearing of a number of persons, ma- 
 liciously, and with intent to cause it to be believed that the 
 plaintiff kept false and fraudulent books of account in his said 
 business, published the following words concerning this plaint- 
 iff, and concerning his said business: "He keeps false accounts, 
 and I can prove it" [or state the words complained of]. 
 
 III. That the said words were false. 
 
 IV. That in consequence of said words, a number of persons, 
 and in particular [name the persons referred to] , who had there- 
 
 ' FoTsyth V. Bdmiston, 2 Abb. Pr. s Johnson vg Brown, i Cranch 0. 
 
 430 ; Maitland v. Goldney, 2 East, Ct. 235. 
 
 42G ; Cook V. Cox, 3 Mau. & Sel. 110. * Linden v. Graham, 1 Duer, 672 ; 
 
 As to the former rules of pleading Hallook v. Miller, 2 Barb. 630; Kvana 
 
 and evidence in actions of slander, v. Harries, 1 Hurlst. &N. 251; Hart- 
 
 and their operation, see Bisbey v. ley v. Herring, 8 T. R. 130 ; Harrison 
 
 Shaw, 2 Kern. 67. v. Pearoe, F. & F. 567. 
 
 2 Beardsley v. Tappan, 1 Blatch. 588. 
 
^ ^'^^^- I-IBEL AND SLANDER. 639 
 
 tof ore been accustomed to deal with the plaintiff in his busi- 
 
 tiie eby deprived of their custom, and of the profits which he 
 would otherwise have made by a continuance of such dealing, 
 and was otherwise Injured in his reputation, to his damage 
 
 dollars. ^ 
 
 [Demand oi' Judgment.] 
 
 § 1743. Clerk or Tradesman.-In an action for slander, 
 where words are charged to have been spoken of and concern- 
 ing a defendant, as a clerk or tradesman, which, it is alleged 
 was his profession, it is unnecessary to allege special damage.^ 
 
 § 1744. Dishone.Sty.-Imputations charging dishonesty 
 against an individual in connection with his business are slan- 
 derous per se.2 
 
 § 1745. Ignorance and Want of SkiU.-Imputations of 
 gross ignorance and want of skill in his profession, as against 
 a physician, are libelous.^ 
 
 § 1746. Insolvency.— An imputation of insolvency against 
 a petty trader is actionable.^ 
 
 § 1747. Mechanical Trade.— Words imputing to a me- 
 chanic want of skill or knowledge in his craft, are actionable, 
 per se, if they are clearly shown to have been spoken with refer- 
 ence to the plaintiff's occupation, and the employment is one 
 requiring peculiar knowledge and skill, s 
 
 § 1748. Physician. — Where words are actionable only be- 
 cause spoken of the plaintiff in /his business or profession, 
 averments by way of inducement and colloquium should be 
 inserted. If a physician brings an action for the speaking of 
 words which are disgraceful to him in his profession, he must 
 aver in his complaint that he was a practicing physician at the 
 time the words were uttered, and that they were spoken of and 
 concerning him in his profession; otherwise it is demurrable. 
 
 § 1749. Special Damages. — In an action for slander for 
 words spoken of the plaintiff in his trade or business, with a 
 general allegation of loss of business, the jury may assess dam- 
 ages for a general loss or decrease of trade. As a general rule, 
 the customers %o lost should be named.'' The loss of a customer 
 
 * Butler V. Howes, 7 Cal. 87. « Carroll v. White, 33 Barb. 615. 
 
 *Fowlesv.Bowen, 30N.Y. 20. ' Mayne on Damages, 278, 317; 2 
 
 » Secor V. Harris, 18 Barb. 425; Phill. Ev. 248 ; Feise v. Linder, 3 Bos. 
 
 Carroll v. White, 33 Id. 615. & Pul. 372 ; Tobias v. Harland, 4 
 
 « Carpenter V.Dennis, 3 Sandf. 305. Wend. 537; Hallocli v. Miller, 2 
 
 » Fitzgerald v. Kedfield, 51 Barb. Barb. 630. 
 484 ; S. C, 36 How. Pr. 97. 
 
640 FORMS OF COMPLAINTS. § 1750, 
 
 is special damage, although if the dealing had taken place the 
 plaintiff would have lost by it.^ 
 § 1750. Special Averment — Discharge from Employ. 
 
 Form No. 436. 
 
 That by reason, 6tc., one A. B., who had theretofore retained 
 
 plaintiff in the capacity of , for , afterwards, 
 
 on , discharged the plaintiff from his employ, 
 
 § 1751. Special Averment — Refusal to Deal. 
 
 Form No. 437. 
 
 That by reason of the committing of the said grievances by 
 the defendant, E. F., G. H. [etc., who had theretofore dealt 
 
 with the plaintiff in his trade of a , by him then and 
 
 since carried on] , afterwards declined to have any dealings with 
 the plaintiff. 
 
 § 1752. Special Averment — Refusal to Employ, 
 
 Form No. 4S8. 
 
 That by reason of said slander, one E. F., who before was 
 about to employ, and would have employed the plaintiff as his 
 servant for certain wages, afterwards, and before the commence- 
 ment of this suit, refused to employ the plaintiff in his service ; 
 and the plaintiff from thence remained out of employment for 
 months. 
 
 § 1753. Special Averment — Refusal to Retain in Em- 
 ploy. 
 
 Form No. 4S9. 
 
 That by reason [etc.], one , who otherwise 
 
 would have retained the plaintiff in the capacity of , 
 
 in his business of , for wages, afterwards declined so 
 
 to do; whereby the plaintiff lost [etc.], which would otherwise 
 have accrued to him [etc.] 
 
 ^ 1754. Special Averment — Refusal to Sell, 
 
 Form No. 440. 
 
 That by reason [etc.], one A. B., who would otherwise have 
 sold to the plaintiff certain goods, to wit [mention goods], on 
 credit, afterwards refused so to do; whereby, etc. 
 
 § 1755. For Slander— Charging a Criminal Offense. 
 
 Form No. 441- 
 
 [TlTLB.] 
 
 The plaintiff complains, and alleges: 
 
 1 Storey V. Challands, 8 Car, & P. 281; Olmstead v. Miller, 1 Wend. 506; 
 
 234. For cases on the subject of Sewall v. Catlin, 8 Id. 291 ; Williams 
 
 averring special damages in actions v. Hall, 1 9 Id. 805 ; Shipman v. Bur- 
 
 of slander, see Hallock v. Miller, 2 rows, 1 Hall, 899 ; Harcourt v. Har- 
 
 Barb. 630 ; Keenholts v. Becker, 8 rison. Id. 474. For averment of spe- 
 
 Denio, 346 ; Beach v. Rannfiy, 2 Hill, cial damages, see Turner v. Foxhall, 
 
 309 ; Herrick v. Lapham, 10 Johns. 2 Cranch C, Ot. 324. 
 
§ 1757. LIBEL AND SLANDEK. C41 
 
 I. That at the time of the commission of the grievances here- 
 inafter mentioned, the plaintiff sustained a good name and 
 character among his neighbors and acquaintances, for moral 
 worth and integrity, and was. never suspected of the crime of 
 forgery. 
 
 II. That on the day of , 18.., the defend- 
 ant, in the presence and hearing of a number of persons, spoke 
 the following words concerning the plaintiff: " He is a forger." 
 
 III. That the said words were false. 
 
 IV. That in consequence of the said speaking of said words 
 the plaintiff has been greatly injured in his good name and 
 reputation, to his damage dollars. 
 
 [Demand of Judgment.] 
 
 § 1756. Actionable Language.— When language imputes 
 a charge which, if true, will subject the party charged to an in- 
 dictment for a crime involving moral turpitude, or subject him 
 to an infamous punishment, it is actionable per se.^ And this 
 rule has been followed in most of the states.^ In some of the 
 states, it seems that all oral language which imputes an indict- 
 able offense, or an offense punishable at law, is actionable per se;^ 
 Or an indictable offense.^ While in some other states, to be 
 actionable they must impute not only an indictable offense, but 
 such for which corporal punishment may be inflicted as the im- 
 mediate penalty. 5 Words which impute trespass, assault, bat- 
 tery, and the like are not actionable per se, and yet those 
 offenses are punishable by indictment. ^ 
 
 § 1757. Words Subjecting Plaintiff to Criminal Prose- 
 cution. — Words imputing to plaintiff an act subjecting him to 
 a criminal prosecution, must also impute moral turpitude, or 
 something infamous or disgraceful, detracting from the character 
 of the offender as a man of good morals.'' 
 
 1 Townshend on Slander and Libel, Wing, 7 Vt. 439; 1 Am. Lead. Cas. 
 
 ]r,2 113, 3d ed. 
 
 > See Brooker v. CoflHn, 5 Johns. 188 ; « Poe v. Grever, 3 Sneed, 666 ; Dun- 
 
 Young v. Miller, 3 Hill, 22; see also nell v. Fiske, 11 Mete. 551 ; Bdgerly 
 
 Wright V. Paige, 36 Barb. 438 ; Van v. Swain, 32 N. H. 481 ; Tenney v. 
 
 Ness v. Hamilton, 19 Johns. 367; 9 Clement, 10 Id^ 57. 
 
 Wend 141; 23 Conn. 585; Andres v. 'Kinney v. Hosea, 3 Harr. 77. 
 
 Konpenheafer, 3 Serg. & E.' 255 ; Todd ^Birch v^.Benton^ 26 Mo. 153 , 
 
 V Rough, lOld. 18,-McOtienv. Lud- Billings v. Wing, 7 Vt. 439. 
 
 him 2 Harrison fN J) 12; Johnson « Smith v. Smith, 2 Sneed, 478; 
 
 I 4vn»^f 1 Duteher 116 • Gage v, Dudley v. Horn, 21 Ala. 379 ; Billings 
 
 V Shields, 1 IJuteher, 110 , «»&« \- .^. J ^ vt.439; see note 49. 
 Shelton, 3 Rioh^ 242 S C L. B . v. Wmg^ / V ^^^^ ^ ^ ^ ^^.^^ 
 Kinney v. Hosea 3 Harr. (l^el^ / / 388 fPike v. Van Wormer, 5 How. Pr. 
 5^2t"Ta%r^.° K7eeiyT« ^^ij Was v Short 16 Id. 322, Weed 
 (Miih:) 67 ; 21 Penn. 622 ; Billings v. v. Bibbins, 32 Barb. 816. 
 
 EsTKB, Vol. 1—41. 
 
642 FORMS OF COMPLAINTS. § 1758. 
 
 § 1758. For Slander— Words Directly Charging a 
 Criminal Offense— Several Causes of Action. 
 
 Form No. 44Z. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That on the day of > 18. ., at , the 
 
 defendant, in a certain discourse which he had with one A. B., 
 in the presence and hearing of divers persons, spoke the follow- 
 ing words concerning the plaintiff [set forth the words] . 
 
 II. That on the day of , 18.., at , 
 
 the defendant, in a certain other discourse which he then had in 
 the presence and hearing of divers other persons, spoke concern- 
 ing the plaintiff the following other words [set forth the words]. 
 
 III. That all said words were false and defamatory. 
 
 rV. That in consequence of the said sjieaking of said words, 
 
 etc. 
 
 [Demand of Judgment.] 
 
 § 1759. Words Charging Offenses.— "Words charging a 
 burning amounting to arson, whether by common law or by stat- 
 ute, are actionable. So of a general charge of forgery. So of 
 a general charge of being a murderer. So of a general charge of 
 being a thief. So of a charge of larceny, or a taking animo fu- 
 randi the personal property of another. Or imputations charg- 
 ing a person with being a receiver of stolen goods.^ So of a direct 
 charge of perjury.^ So of an imputation of willful perjury in a 
 suit pending. 3 
 
 § 1760. Slander— ror Words Directly Charging Per- 
 jury. 
 
 Form No. 443. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , the 
 
 defendant, in a certain discourse which he then had concerning 
 the plaintiff, in the presence and hearing of divers persons, spoke 
 and published concerning the plaintiff the words following: " You 
 perjured yourself." 
 
 II. That said words were false. 
 
 III. That in consequence of the said words the plaintiff is 
 greatly injured in his good name and reputation, and has been 
 
 I Dias V. Short, 16 How. Pr. 822. » See Townshend on Slan. and Lib. 
 
 Ab to the imputation of stealing goods, 166 et seq., and the cases there cited ; 
 
 ■when and where not slanderous per Wilbur v. Ostrom, 1 Abb. Pr. (N. 
 
 se, and to what extent, see Coleman v. S.) 275. 
 
 Playsted, 36 Barb. 26 ; Maybee v. Fiek, » Walrath v. Nellis, 17 How. Pr. 72 ; 
 
 42 Id. 326. Baker v. Williams, 12 Barb. 527. 
 
§ 1763. LIBEL AND SLANDER. 643 
 
 rendered liable to prosecution for perjury, to bis damage 
 
 dollars. 
 
 [Demand or Judgment.] 
 
 § 1761. Construction of Words.— In an action for slander, 
 in charging the plaintiff with perjury, if it appears that the 
 words used to express the charge are such, in the sense in which 
 they would naturally be understood, as to convey to the minds 
 of those to whom they are addressed the impression that the 
 plaintiff had committed perjury, and that the defendant intended 
 to be so understood by those who heard him, such words will of 
 themselves warrant a verdict for the plaintiff, in case the Jury 
 find that they were uttered with the intention above stated, and 
 were so iinderstood ; and it is not necessary to give additional 
 evidence that the suit was in a court of competent jurisdiction, 
 or that the plaintiff swore falsely, with a corrupt intent.^ 
 
 § 1762. Perjury in Another State. — In a declaration for 
 slander, in charging the plaintiff with perjury in another state, 
 it must be averred that by the laws of such other state, perjury 
 is an offense to which is annexed an infamous punishment. ^ 
 
 § 1763. Slander— For Words Charging Perjury and 
 Containing Special Inducements. 
 
 Form No. 444^ 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , a 
 
 certain action was pending before A. B., a iustice of the peace 
 
 in and for the county of , wherein C. D. was plaintiff 
 
 and E. F. was defendant, and in which suit the plaintiff was 
 duly sworn before the said justice, and gave his evidence as a 
 witness, on the trial of said action, and testified that he " did 
 not know that one M. had run away ;" the fact whether the said 
 M. had run away or not being material in' said action. 
 
 II. That on the day of , 18..., at , the 
 
 defendant, in a discourse which he had in the presence and 
 hearing of sundry persons,' spoke and published of and con- 
 cerning the plaintiff, and concerning the said trial and testi- 
 mony of the plaintiff as a witness in relation to said M., the 
 false and scandalous words following: " He swore to a lie at 
 
 , in the suit between C. D. and E. F. ; he said he did 
 
 notknow that M. had run away, and it was a lie for he did 
 
 J Kern v. Towsley, 61 Barb. 885. sponaibility of the aefendan^ see Wil- 
 
 »8p™ V. Maynard, 8 Jones L. bur y. Ostrum, 1 Abb. Pr. (N. S.) 
 
 (N C.} 195. As to the charge of false Zli). 
 
 swearing, and the extent of the re- 
 
644 FORMS OP COMPLAINTS. § 1764. 
 
 know it;" meaning tliat the plaintiff, at the trial of the action 
 aforesaid, had, as a witness, sworn falsely, and committed will- 
 ful and corrupt perjury. 
 III. That in consequence of said speaking of said words, etc. , 
 
 [as in preceding form] . 
 
 [Demand of Judgment.] 
 
 CHAPTER IV. 
 
 MALICIOUS PKOaEOUTION. 
 
 § 1764. Common Form. 
 
 Form No. 4iS. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , the 
 
 defendant obtained a warrant for the arrest of this plaintiff 
 
 from [a police justice of the said city, or as the case 
 
 maybe], on a charge of , and the plaintiff -was arrested 
 
 thereon, and imprisoned for days [or hours], and gave 
 
 bail in the sum of dollars to obtain his release. 
 
 II. That in so doing the defendant acted maliciously and 
 and without probable cause. 
 
 III. That on the day of , 18..., the said justice 
 
 dismissed the complaint of tlie defendant, and acquitted the 
 
 plaintiff [or, the grand jury of the county of ignored 
 
 the bill against the plaintiff, or otherwise show a termination 
 favorable to him] . 
 
 IV. That many persons, whose names are unknown to the 
 plaintiff, hearing of the said arrest, and supposing the plaintiff 
 to be a criminal, have ceased to do business with him [or that in 
 consequence of the said arrest, the plaintiff lost his situation as 
 clerk to one A. B.], and has been otherwise injured in his good 
 name and reputation, and whereby and by means whereof he 
 hath sustained damage in the sum of dollars. 
 
 [Demand or Judgment.] 
 
 § 1765. Causes of Action not Assignable. — Causes of 
 action arising out of personal torts which do not survive to the 
 personal representatives of a party, are not assignable. ^ So a 
 cause of action for a malicious prosecution is not assignable.^ 
 
 I Zabristie v. Smith, 8 Kern. 822 ; Gal. 19 ; Oo.negys v. Vasae, 1 Pet. 
 86 Barb. 270 ; Hoyt v. Thompson, 1 193. 
 Seld. 347 ; Boyd v. Blankman, 29 « Lawrence v. Martin, 22 Oal. 173. 
 
§ 1769. MALICIOUS PKOSEOUTION. 645 
 
 § 1766. Conspiracy. — When two or more persons are sued 
 for a joint wrong done, it may be necessary to prove a previous 
 combination between them in order to secure a joint recovery ; 
 but it is not necessary to aver this previous combination in the 
 complaint, and if averred, it is not to be considered as of the 
 gist of the action.i An allegation that the defendants have 
 fraudulently confederated and conspired together for the pur- 
 pose of harassing the plaintiff, by prosecuting separate suits 
 against him for the same cause, and that such suits have been 
 commenced and are prosecuted in pursuance of such con- 
 spiracy, is not sufficient to sustain an action or uphold an in- 
 junction, when the defendants claim adversely to each other, 
 as well as to the plaintiff, and no direct fraud is charged ; the 
 plaintiff, merely averring his belief of such conspiracy, because 
 the defenilants have brought separate actions for the same cause, 
 and bv the same attorney. Fraud in such a ease is not to be 
 presumed ; and the conspiracy should be distinctly averred.^ 
 
 § 1767. Conspiracy, Averments in Action of. — In an 
 action for a conspiracy the rule is to allow a great latitude in 
 settin<^ out in the complaint the particular acts from which the 
 conspiracy is to be inferred, even so far as to allow the individ- 
 ual acts of the conspirators to be averred.^ So far as the allega- 
 tions of such acts are scandalous, they should be stricken out, 
 unless they appear to relate to the foundation of the plaintiff 's 
 
 action.* 
 
 § 1768. Conviction. — The fact that the plaintiff was con- 
 victed by a jury is conclusive ; and if apparent in the complaint 
 wiU be fatal to the suit for damages.s Nor will a reversal for 
 error of law prevent the application of the rule. The only ex- 
 ception is when fraud in obtaining a conviction, by means which 
 prevented the plaintiff from setting up his defense, is set up 
 and proved. In a complaint of this nature, an averment of 
 matter tending to show the defendant's motive was held not to 
 be irrelevant.6 Nor does suffering default have this effect where 
 Drobable cause existed at the first-^ 
 
 ' § 1769 Corporation.— An action for malicious prosecution 
 will lie against a corporation if it has power to authorize the act 
 done, and has done so.^ 
 1 Herron v. Hughes, 25 Cal. 560 ' Gordon v. Upham. 4 B. D. Smith, 
 
 SMcHenryv.Hazaivi, 45 Barb. 6.57. »-^ ^^^^ ^-^^.^ Railway Co., 8 
 ; 8 Mussina t. Clark, 18 AbD. ri. loo. ^^^^^^ gg^^ g^^ ^-ssault and Battery. 
 
 * Id. ^ o A kT, Pi. 1 That a corporation is not liable to 
 
 sMillerv.Deere, 2 Abb.rr^i^ ^^^^ an action, but maybe sued m 
 
 « Brockleman v. Branat, lu Aut> ^^.^^ f^^ f^i^ imprisonment, see 
 
 Pr. 141. 
 
646 rORMS OF COMPLAINTS. § 1770. 
 
 § 1770. Damages. — The jury are the proper judges of the 
 amount of damages to be allowed in actions for malicious prose- 
 cution.i Evidence of the general bad reputation of the plaintiff 
 is admissible in reduction of damages.® 
 
 § 1771. Defective Complaint. — In an action for malicious 
 issuing and prosecution of a writ of attachment, a defect, if any, 
 in the complaint, is not alleging that it was issued without 
 probable cause, and stating instead that it was issued out of 
 wantonness, is cured by verdict when the defect was not pointed 
 out.' 
 
 § 1772. Essential Averments. — In an action for malicious 
 prosecution the plaintiff must aver and must prove an entire want 
 of probable cause of the accusation, and actual malice of the 
 defendant in preferring it; that is, malice in fact, as distinguished 
 from malice in law.* Both malice and want of probable cause are 
 essential, and must be stated and proved ; also, that the prosecu- 
 tion is at an end, and liow it was concluded. ^ An averment that 
 the prosecution was without probable cause is indispensable, and 
 its omission fatal, ^ the want of probable cause being the primary 
 question in such actions.'' For, though malicious, the defendant 
 is not liable unless there be a want of probable cause. ^ The 
 necessity of the concurrence of all three of the above elements, 
 i. e., want of probable cause, malice in fact, and actual deter- 
 mination in favor of the plaintiff, is maintained in numerous 
 cases.* 
 
 § 1773. Facts Only must be Alleged.— In an action for 
 malicious prosecution, only the substantial matter constituting 
 the action — that is, facts, and not the evidence of facts — need be 
 set out.i" The point of inquiry in such an action is whether there* 
 was in fact probable cause for the prosecution, and not whether 
 the defendant had probable cause to believe there was.^i 
 
 § 1774. Gist of Action.— The action lies against several de- 
 fendants, and the gist of the action is the malicious prosecution.^^ 
 
 Owlsley V. Montgomery R. E. Co., 37 ' Grant v. Moore, 29 Cal. 644. 
 
 Ala. 560. 8 Payson v. Caswell, 9 Sheplev, 
 
 ' Chapman v. Dodd, 10 Minn. 850. 212 ; Wood v. Weir, 5 B. Mon. 544 ; 
 
 2 Fitzgibbon v. Brown, 43 Me. 169 ; Leidig v. Rawson, 1 Scam. 272. 
 
 see also White v. Tucker, 16 Ohio St. » Vanderbilt v. Mathis, 6 Duer, 304 ; 
 
 468. see also as to pleadins;, Davis v. 
 
 8 Levey v. Fargo, 1 Nev. 415. Clough, 8 N. H. 157; Weinberger v. 
 
 * Bulkeley v. Smith. 2 Duer, 261; Shelly, 6 Watts & Serg. 336; Horton 
 
 Besson v. Southard, 6 Seld. 236. v. Smeltzer, 6 Blackf. 428 ; Cole v. 
 
 5 Brown V. Chadsey, 89 Barb. 253 ; Hanks, 8 Mon. 208 ; see also Richard- 
 Hull V. Vreeland, 42 Id. 543 ; S. C, son v. Virtue, 2 Hun, 208. 
 18 Abb. Pr. 182 ; McKown v. Hunter, •» Dreux v. Domec, 18 C:il. 83. 
 80 N. Y. 625. 11 Hickman v. Griffin, 6 Mo. 37. 
 
 « Lohrflnk v. Still, 10 Md. 530. « Dreux v. Domec, 18 Cal. 83. 
 
§ 1779. MALICIOUS PROSECUTION. 647 
 
 § 1775. Indebtedness. — ^The averment of no indebtadnefs 
 may be omitted, and a suit maintained for maliciously suing out 
 an attachment.^ 
 
 § 1776. Joint Agency, Allegation of.— In a suit against 
 three defendants for malicious prosecution, the complaint averred 
 that " defendants, contriving and maliciously intending to injure 
 the plaintiff," etc., falsely, maliciously, and without probable 
 cause, procured him to be indicted for murder, it was held that 
 the complaint sufficiently avers a joint agency on the part of 
 defendants in instituting the prosecution.* 
 
 § 1777. Malice. — Malice and falsehood are essential ingre- 
 dients in an action for malicious prosecution.^ Malice, as well 
 as want of probable cause, is aecessary to sustain an action for 
 malicious prosecution.* Malice, in its legal sense, means a wrong- 
 ful act, done intentionally, without just cause or excuse.^ 
 Malice can not be presumed in a prosecution where the defend- 
 ant has incurred all the moral guilt of the charge, although he 
 may have evaded the penalty of the law.^ Malice, like fraud, 
 is to be inferred from facts and circumstances.'' A petition 
 which omits to state that the prosecution was malicious, and 
 that the plaintiff was acquitted, is insufficient. ^ Public policy 
 and security require that prosecutors should be protected by 
 the law from civil liabilities, except in those cases where the 
 two elements of malice in the prosecutor and want of probable 
 cause for the prosecution both occur. ^ If one person arrests 
 another for the commission of a crime, under the belief that the 
 person arrested has committed the crime, the person making 
 the arrest can not be said to act maliciously, although he may act 
 unlawfully. '» 
 
 § 1778. Motive.— In an action for malicious prosecution, 
 the complaint may aver matter tending to show the defendant's 
 motive; 6. g., a malicious publication by him procured to be 
 made concerning the prosecutor — such as would be proper to 
 prove at the trial as showing special injury. Such averments 
 should not be stricken out on motion, as the plaintiff can not be 
 deemed aggrieved by them.^^ 
 
 § 1779. Probable Cause.— Probable cause may be defined 
 as a suspicion, founded upon circumstances sufficiently strong 
 
 1 Tomlinson v. Warner, 9 Ohio, 103. « Sears v. Hathaway, 12 Cal. 277. 
 s Dreux v. Domec, 18 Cal. 83. ' Lyon v. HHncock 36 Cal 376 
 
 3 Piatt V. Niles, 1 Adm. 230. « M^oney v- Kennett, 19 Mo. 561. 
 
 ''ISt^£llT&'ll Co., 34 ^"BfcHemanv. Brandt. 10 Abb. 
 Cal. 48. i-r. 141. 
 
648 FOKilS OF COMPLAINTS. ' § 1780. 
 
 to warrant a reasonable man in the belief that the. charge is 
 true.i It is a reasonable ground for suspicion, supported by 
 circumstances sufficiently strong in themselves to warrant a 
 cautious man in the belief that the person accused is guilty of 
 the offense charged.^ The question of probable cause does not 
 depend upon whether an offense has been committed, nor 
 upon the guilt or innocence of the accused, but upon the pros- 
 ecutor's belief of the truth of the charge made by him. If 
 circumstances are shown sufficient to warrant a cautious man 
 in the belief of the truth of the charge he makes, it is enough.* 
 And from the want of probable cause, malice may be inferred,* 
 and is a mixed question of law and fact.^ It is a question for 
 the court, but the jury must decide upon the facts. ^ 
 
 § 1780. Probable Cause, when it Exists,— If the defend- 
 ant had a cause of action in the case alleged, although for a 
 much less amount than claimed, there was probable cause, and 
 the court should grant a nonsuit.'' So a judgment against the 
 plaintiff after trial on the merits is sufficient evidence of prob- 
 able cause, though subsequently reversed ; not, however, con- 
 clusive, if impeached for fraud. ^ Where two actions have been 
 abandoned, by the plaintiff's failure to appear at the adjourned 
 day, and a new action has been commenced before another 
 justice for the same demand, which is still pending, the litiga- 
 tion is not terminated, and want of probable cause can not be 
 inferred solely from the discontinuance of the former suits.* A 
 committal to await the action of the grand jury is no conclu- 
 sive evidence of probable cause. i-" 
 
 § 1781. Privileged Charges. — As to the remedy by action 
 for malicious prosecution, for false and malicious charges pre- 
 ferred in legal proceedings and deemed privileged from an 
 action for defamation, see the case cited in the note.i^ 
 
 § 1782. Special Damages. — Expenses of counsel, made 
 necessary by a malicious prosecution, are to be specially al- 
 leged.12 
 
 § 1783. What must be Shown. — To sustain an action for 
 
 1 Potter V. Seale, 8 Cal. 217 ; Hall * Grant v. Moore, 29 Cal. 644. 
 V. Hawkinp, 5 Humph. 357; Faris v. 'Id. 
 
 Starke, 8 B. Mou. 4; Payson v. Oas- ' Brant v. Higgins, 10 Mo. 728. 
 well, 9 Shepley, 212: McLellan v. ' Grant t. Moore, 29 Cal. 644. 
 Cumberland Bank, 11 Id. 566 ; 4 Dana, ' Palmer v. Avery, 41 Barb. 290. 
 120. » Id. 
 
 2 Koss V. Innis, 35 111. 487. " Haupt v. Pohlman, 16 Abb. Pr. 
 'Scanlan v. Cowlev, 2 Hilt. 489; 301. 
 
 Sfe also Foote v. Milbier, 46 How. Pr. " Perkins v. Mitchell, 81 Barb. 461. 
 38; Farnam v. Feeley, 56 N. Y. 451; « Strang v. Whitehead, 12 Wend. 
 Carl V. Ayers, 53 Id. 14. 64. 
 
§ 1786. MALICIOUS PROSECUTION. 649 
 
 malicious prosecution, the plaintiff must show affirmatively that 
 the prosecution was malicious, and without probable c*use, both 
 concurring.^ 
 
 § 1784. When Action will Lie. — An action for a malici- 
 ous prosecution will lie where an affidavit for a search warrant 
 is made before a justice, maliciously, and without probable 
 cause, although the magistrate refuse to issue the warrant.^ 
 
 § 1785. When Action will not Lie. — Such an action 
 does not lie where the alleged malicious suit was founded on a 
 just claim, although such claim was smaller than that for which 
 the suit was brought, when it does not appear that property 
 was attached to a greater value than the amount of such claimi^ 
 
 § 1786. The Same— Fuller Form. 
 
 Form No. 44S. 
 
 [TITLE.J 
 
 The plaintiff complains, and allqges: 
 
 I. That on the day of , 18..., at ,the 
 
 defendant appeared before , a justice of the peace of 
 
 said county [or the police ju.lge of said city], and charged the 
 plaintiff, before said justice, with having feloniously stolen a 
 
 ggrtain , of the defendant; and procured said justice 
 
 to grant a warrant for the arrest of the plaintiff upon said charge. 
 
 II. That in so doing, the defendant acted maliciously and 
 without probable cause. 
 
 III. That the said justice issued said warrant accordingly, and 
 the plaintiff was arrested and imprisoned under the same for 
 
 [days or hours, and gave bail in the sum of 
 
 dollars to obtain his release] . 
 
 IV That on the .... day of , 18..., the plaintiff was 
 
 examined before the said justice for the said supposed crime, 
 and the said justice adjudged him not guilty, and fully acquitted 
 him of the same; and that since that time the defendant has 
 not further prosecuted said complaint, but has abandoned the 
 
 'T That the said charge and the arrest of the .plaintiff there- 
 under were extensively published in several public newspapers 
 under were e j f .^^.^ believea, through 
 
 among others the i ^^ ^ 
 
 thP r>rocurement of the defendant. 
 
 vfThat by means of the premises the plaintiff was injured 
 in h'; person, and prevented from attending to his business, 
 in his person , i ^^^^^^^ ^^^^ .^ defending him- 
 
 and paid "" 
 
 ^ „ anr, fiiq ''' Miller V. Brown, 3 Mo. 127. 
 
 1 Cook V.Walker, 30Ga.«9. ^^^^^^ ^^ ^^^^ ^^^^ 
 
650 FOEMS OF COMPLAINTS. § 1787. 
 
 self, and in obtaining bail; and he lost his situation 
 
 as servaflt of ; and many persons, whose names are 
 
 unknown to the plaintiff, hearing of the said arrest, refused to 
 employ him, and whereby also Iffe has been injured in his good 
 
 name and reputation, to his damage dollars. 
 
 [DnMAND OT Judgment.] 
 
 § 1787. Tor Procuring Plaintiff to be Indicted. 
 
 Form No. 447' 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , the 
 
 defendant caused and procured the said plaintiff to be indicted 
 by 'the grand jury, then and there impaneled and sworn by the 
 
 court, in and for the county of , to inquire of 
 
 crimes within and for the said county, and prosecuted and caused 
 to be prosecuted the said indi?traent against the said plaintiff. 
 
 II. That in so doing, the defendant acted maliciously and with- 
 out probable cause. 
 
 III. That afterwards, to wit, at the term of the said 
 
 court, begun and held on the day of , 
 
 18..., at the court-house in , in the said county of 
 
 , the said plaintiff was in due manner and by due 
 
 course of law acquitted of the said premises in the said indict- 
 ment charged upon him, by a jury of the said county of , 
 
 whereupon it was then and there adjudged by the said court 
 that the said plaintiff go hence thereof without day, and the 
 said plaintiff was then and there discharged of and from the 
 premises in said indictment specified, as by the record and pro- 
 ceeding thereof remaining in said court appears. 
 
 IV. [State special damages.] 
 
 [Demand op Judgment.] 
 § 1788. The Same— For Obtaining Indictment on 
 Which a Nolle Prosequi was Afterwards Entered. 
 
 Form No. 448. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at ;... the 
 
 defendant procured C. D., then the district attorney in and for 
 
 the county of , in this state, to issue subpoenas for the 
 
 purpose of compelling and procuring the attendance of wit- 
 
 c ' ^?''i^S HY °° ,^^^^^,'^''5®°*' ^^* 1 '^oo"' 21 Wend. 281; Williams v. 
 
 Saund. 228 ; Purcell v. Macnamara, 9 Hunter, 8 Hawks, 645 • Dannia v 
 
 East, 361 ; 1 T.R. 493; Anderson v. Byan, 63 Barb. 145. tennis v 
 Buchanan, Wright, 725; Morris v. 
 
§ 1788. MALICIOUS PEOSECTJTIOK 651 
 
 nesses, among others, one A. B., at tlie court held on 
 
 the day last mentioned at , in said county, before the 
 
 grand jury and persons serving as grand jurors at such term of 
 
 tbe court, for the purpose of procuring an indictment 
 
 to be found against the plaintiff, as hereinafter more fully 
 stated. 
 
 II. That in so doing the defendant acted maliciously and 
 without probable cause, and intended thereby to injure the 
 plaintiff in his good name and credit, and to bring him into 
 public disgrace, and to cause him to be imprisoned, and to im- 
 poverish and injure him. 
 
 III. That the defendant at said term of the court, 
 
 complained of the plaintiff before the grand jury, and falsely 
 and maliciously, and without any reasonable or probable cause 
 whatsoever, charged the plaintiff to the grand jury with having 
 [state charge preferred]. 
 
 IV. That said charge was and is wholly false and untrue, 
 which the defendant then and at all times since well knew. 
 
 V. That defendant falsely and maliciously, and without prob- 
 able cause, procured the grand jury aforesaid to find and pre- 
 sent to the said court an indictment against the 
 
 plaintiff for said alleged [state pretended charge] . 
 
 VI. That the defendant falsely and maliciously, and without 
 probable cause, procured a bench warrant, directed to the 
 
 sheriff or any constable of the said county of , for the 
 
 arrest of the plaintiff upon the aforesaid indictment, to answer 
 the charges therein made against him as aforesaid, to be issued 
 lay the court of said county of ; and after- 
 wards, on or about the day of .., 18..., caused the 
 
 plaintiff to be arrested and to be kept in custody, restrained of 
 
 his liberty for the space of months, and to give bail 
 
 in the sum of dollars to obtain his release. 
 
 VII. That the plaintiff did appear at the said term of said 
 
 court, ready and willing to then and there stand trial 
 upon'the afores'aid indictment against him, pursuant to and as 
 required by said bond. Whereupon the aforesaid district attor- 
 ney, after consulting and advising with the defendant, and at 
 his request, and by his instructions, did then and there move 
 the said court that the plaintiff be discharged out of custody, 
 and be fully discharged and acquitted of the said indictment 
 and of the supposed offense therein charged against him, and 
 be no farther prosecuted thereon ; whereupon the said court, 
 bavin- heard and considered all that the said defendant and 
 
.652 '" ~ FORMS OP COMPLAIN'ES. § 1789. 
 
 the people, by the aforesaid district attorney, could say or allege 
 against the plaintiff touching and concerning the said supposed 
 offense, did then and there adjudge, order and determine that the 
 plaintiff be discharged out of custody, and be fully discharged 
 and acquitted of the said indictment, and be not further prose- 
 cuted thereon. 
 
 VIII. That the said indictment, complaint, and prosecution are, 
 and each of them is, wholly ended and determined in favor of this 
 plaintiff. 
 
 IX. [Special damage, if any, as in other cases.] 
 
 [Dkmand of Judgment.] 
 
 § 1789. Dismissal. — An immediate dismissal by a magistrate 
 of a prosecution when commenced, is, it would seem, prima facie 
 proof of the want of probable cause. ^ Entry of nolle prosequi 
 was held insufficient for that purpose.^ 
 
 § 1790. The Same — Where Judgment of Acquittal was 
 Rendered. 
 
 Form No. U9 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , the 
 
 defendant caused and procured to be sued out of the 
 
 court, in and for the county of , a certain writ of at- 
 tachment, in a certain action then and there pending, wherein the 
 said A. B. was plaintiff, and the plaintiff herein was defendant, 
 directed to the sheriff of said county, commanding said sheriff 
 [here state substance of the said writ] , and delivered the same to 
 the said sheriff, and caused and required the said sheriff to levy 
 said writ of attachment on the s^ore of goods, wares, and mer- 
 chandise of the said plaintiff, and took the same into his posses- 
 sion, and the said defendant afterwards applied to the said 
 
 court [or to Hon. C. D., judge of said court], and obtained an 
 order from said court [or judge] for the sale of said goods and 
 merchandise, and caused said sheriff to sell the same at a great 
 sacrifice. 
 
 II. That in so doing the defendant acted maliciously and with- 
 out probable cause, and unjustly contrived and intended to injure 
 the said plaintiff and break up his business — he, the said plaintiff, 
 then being engaged in business of a merchant. 
 
 III. That the said action of the said defendant afterwards 
 
 ' Gould v. Sherman, 10 Abb. Pr. v. Labeman, 12 Gush. (Mass.) 482; 6 
 
 411- Mod. 261 ; contra, Yocum v. Poliv, 1 
 
 2 Bacon v. Townsend, 2 0. R. -51 ; B. Mon. 358. 
 Hall V. Fisher, 20 Barb. 441 ; Biowa 
 
§ 1792. MALICIOUS PROSECUTION, 
 
 653 
 
 came on for trial at the term of said court, 18..., and 
 
 was tried, and a verdict and judgment rendered in favor of the 
 said plaintiff, to the damage of the said plaintiff dol- 
 lars. 
 
 [Dbmakd op Judgment.] 
 
 § 1791. Acquittal Essential.— An action for malicious 
 prosecution can not be maintained until the plaintiff has been 
 acquitted, or the prosecution is finally terminated in his favor. 
 The determination of the prosecuting officer never to bring the 
 indictment to trial, for the reason that he deems the charge en- 
 tirely unsupported, is not sufficient. i The plaintiff's acquittal 
 must be alleged. An allegation that he has been discharged is 
 not sufficient.* It is not enough to aver that the prosecuting 
 officer declared the complaint frivolous, and refused to try it.^ 
 The rule that the prosecution must have terminated favorably 
 to the plaintiff, does not apply in case of an attachment against 
 his property, sued out in his absence, and which he had no op- 
 portunity to defend.* 
 
 § 1792. For Malicious Arrest in a Civil Action. 
 
 Form No. 450. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18..., the defendant, 
 
 maliciously intending to injure the plaintiff, made affidavit, and 
 procured one A. B. to make an affidavit, in an action brought 
 against this plaintiff by , in which he alleged [set 
 
 • forth the grounds of the false arrest] ; and that upon said affi- 
 davits the defendant caused to be issued an order of arrest 
 against this plaintiff, under which the plaintiff was arrested and 
 
 imprisoned for the space of , and compelled to give 
 
 bail in the sum of dollars. 
 
 II. That in so doing the defendant acted maliciously and with- 
 out probable cause. 
 
 III. That on the day of , 18..., said order 
 
 was vacated by said court, upon the ground that [set forth the 
 grounds on which it was vacated] . 
 
 [Or, III. That on the day of :.., 18..., such 
 
 proceedings were had in such action, that it was finally deter- 
 mined in favor of this plaintiff, and judgment was rendered foi 
 him therein.] 
 
 > Grant v. Moore, 29 Cal. 644; > Thomason v. Demotte, 9 Abb. Pr. 
 
 Thomason v. Demotte, 9 Abb. Pr. 242. m w j ii 
 
 242- SC 18 How. Pr. 629. « Bump t. Betts, 19 Wendell, 
 
 2 Morgan T. Hughes, 2 T. K. 225; 421. 
 Bacon v. Townsend. 2 Code E. 51. 
 
654 FORMS OF COMPLAINTS. § 1793. 
 
 IV. [Special damage.] That many persons, whose names are 
 unknown to plaintiff, hearing of the arrest, etc. [as in form 
 
 No. 446], to the damage to the plaintiff dollars. 
 
 [Demand of Judgment.] 
 
 § 1793. Jurisdiction. — But if a complaint shows that the 
 arrest was without jurisdiction, it may be good as alleging a 
 trespass, without averring a determination in favor of plaintiff. ^ 
 
 § 1794. Malice. — If one person arrests another for the com- 
 mission of a crime, under the belief that the person arrested 
 has committed the crime, the person making the arrest can not 
 be said to act maliciously, although he may act unlawfully. ^ 
 
 § 1795. Several Causes of Action United. — An action 
 for malicious arrest and prosecution, or either of them, may be 
 united with an action for either an injury to character or to the 
 person,^ as for libel or slander.* 
 
 § 1796. When Action will Lie. — Where a complaint 
 charged a crime, and the prosecution was instituted before a 
 tribunal having jurisdiction, and a warrant regular upon its 
 face was issued, and the defendant was arrested, an action 
 brought by him for malicious prosecution will be sustained, 
 although the complaint was not signed by the complainant. ^ 
 An action for malicious prosecution will lie against a creditor 
 who effected the arrest and imprisonment of his debtor by al- 
 leging that the demand was greater in amount than it truly was, 
 so as to hinder the debtor from getting bail. It is true that in 
 order to sustain an action for malicious prosecution the law re- 
 quires that the proceedings which form the subject of complaint 
 should have been maliciously instituted, and carried on without 
 any reasonable or probable cause; but there would ordinarily 
 be but little difference in the injury produced to the defendant, 
 whether the unfounded prosecution was carried on without any 
 demand whatever to justify it, or whether it was coupled with 
 a claim of real merit.* 
 
 § 1797. Wlien Action will not Lie.— An action in a case 
 for malicious prosecution will not lie for causing a person to be 
 arrested on a criminal warrant, charging an act which is not a 
 crime, but merely a trespass, as the warrant was void, and the 
 
 1 Steel V. Williams, 18 Ind. (Kerr), ' Chapman v. Dodd, 10 Minn. 850. 
 
 161; Searll v. McOraoken, 16 How. « Phil, on Ev. 261 ; 3 Barn. & Cress. 
 
 Pr. 262. 189 ; Dronefleld v. Archer, 7 Eng. 
 
 ' Lyon v. Hancock, 85 Cal. 872. Com. Law, 177 ; 26 Eng. L. and Eq. 
 
 ' Cal. Code C. P., sec. 427. 200 ; Soramer v. Wilt, 4 Sere. & B. 
 
 •Watson V. Hazzard, 8 Code E. 19; 13 Id. 54; Brown v. Mclntyre, 
 
 218 ; Martin v. Mattison, 8 Abb. Pr. 3. 43 Barb. 344. 
 
§ 1800. PERSONAL INJURY CAUSED BY NEGLIGENCE. 655 
 
 prcper remedy for an arrest on such a warrant is trespass.^ 
 Bona fide acts of a party on advice given by counsel, after a 
 full and fair statement of the facts, is evidence of a probable 
 cause, however erroneous the advice may be.^ 
 
 CHAPTER V. 
 
 FOR PERSONAL INJURY CAUSED BY NEGLIGENCE. 
 
 § 1798. For Injuries Caused by Collision of Vehicle 
 Driven by Servant. 
 
 Form No. 451. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18...., the plaintiff was 
 
 driving along the public highway' of the city of in a 
 
 carriage drawn by one horse. 
 
 II. That the defendant was then the owner of a wagon and 
 two horses, which were then being driven along said highway, 
 in the possession of defendant [or of defendant's servant]. 
 
 III. That the defendant [or that said servants] so carelessly 
 drove and managed said horses and wagon, that by reason of his 
 negligence said wagon struck the plaintiff's carriage and overthrew 
 the same, and threw the plaintiff out of his carriage upon the 
 ground [or describe the accident], whereby the plaintiff was 
 
 bruised and wounded, and was for days prevented from 
 
 attending to his business, and was compelled to expend 
 
 dollars for medical attendance and nursing, and dollars 
 
 for the repair of his said carriage, to his damage dollars. 
 
 [Demand of Jttdqment.] 
 § 1799. Carrier's Contract. — Passenger carriers bind them- 
 selves to carry safely those whom they take into their coaches 
 or ears, as far as human care and foresight will go ; tliat is, for 
 the utmost care and diligence of very cautious persons.3 The 
 words " care, diligence, and foresight" imply a relation to future 
 
 events.* 
 
 § 1800. Damages.— If by the negligent driving of defend- 
 ant's servant his vehicle runs into another which is driven with 
 due care, and causes the horses of the latter to take fright and 
 
 I Cramer v. Lott, 50 Penn. 495 ; but » Story on Bailments sec. 601. 
 
 ^^' K^h^X'nTvK'-Hun. 208; sees. 2100-2104,' inclusive. 
 Eastman v. Keasor, 44 N. H. 518. 
 
656 FORMS or COMPLAINTS. § 1801, 
 
 run away, and said horse runs into the plaintiff 's vehicle and 
 injures him when he is using due care, the damage is not too re- 
 mote to be recovered.^ In a case of simple negligence in which 
 the elements of fraud, malice or oppression do not enter, only- 
 actual damages can be recovered.^ In actions of this character, 
 all the circumstances in the ease may be taken into considera- 
 tion in making up the estimate of damages, and the jury are 
 not confined to the actual damages sustained, and where the 
 stage at the time was driven by the servant or agent, the prin- 
 cipal is liable only for simple negligence, and exemplary dam- 
 ages can not be imposed." The only damages which can be re- 
 covered in such actions are such as are commensurate with the 
 injury alleged to have been sustained, or actual damages.* 
 
 § 1801. Defect of Vehicle. — A carrier of passengers for 
 hire does not warrant that the carriage in which the passenger 
 travels is roadworthy. He is bound to use all vigilance to insure 
 safety, but is not liable for a defect which could not be de- 
 tected, and which arises from no fault of the manufacturer.* 
 
 § 1802. Liability for Negligence. — If a child under four 
 years of age is injured by the negligence of third persons in the 
 street of a city traversed constantly by cajs and other vehicles, 
 his father can not recover for loss of service if he has knowingly 
 suffered such child to be in the street unattended.^ Otherwise 
 of an action by the child itself, although the negligence of a 
 volunteer undertaking to interfere for the child's benefit con- 
 tributed to the injury.'' One who sells gunpowder to a child 
 eight years old, knowing that he is unfit to be trusted with it, 
 is liable if the child, using the care of which he is capable, ex- 
 plodes it, and is burned by the same, and a hcense to sell gun- 
 powder is no defense.8 
 
 § 1803. Master and Servant— General Doctrine.— The 
 general doctrine is maintained that the master or employer is 
 responsible for the act or omission of the servant or employee 
 within the scope or his employment or authority. 9 One whose 
 
 1 McDonald v. Snelling 96 Mass,' ' Eeadhead v. Midland R. R. Co., 
 
 260- L. R., 4 Q. B. 379 ; S. C, 2 Q. B. 412 j 
 
 " Moody V. McDonald, 4 Cal. 297 ; Du Laurans v. St. Paul etc R. R. 
 
 Sedg. on Meas. of Dam. 39; Keene v. Co., 2 Am. R. 107. 
 
 ^'f ^?'' ^,^*: 9; ^- ^^''- ' Glassey v. HestonvUle E, R. Co., 
 
 • The Amiable Nancy, 8 Wheat, 57 Penn. 172. 
 
 546 ; Wardrobe v. Cal. Stage Co., 7 ' North Penn. R. R. Co. v Ma- 
 
 Cal. 120, honey, 57 Penn. 187. 
 
 * Greenl. on Ev., see. 253 ; Whitte- » Carter v. Towne, 98 Mass. 567 
 more v. Cutter, 1 Gall. 478 ; Bateman " N. Y. & N. H. R. E. Oo. v Schuv- 
 V. Goodyear, 12 Conn. 580; Dain v. ler, 34 N. T. 80; Chaoman v N Y 
 Wycoff, 8 Seld. 193. Cent. R. E. Co., 88 Id. "869; Drew v! 
 
§ 1805. PERSONAL IN JURY CAUSED BY NEGLEGENCE. 657 
 
 servant negligently throws a keg out of a window, and injures a 
 person passing through a passage-way below, is liable, although 
 such person was there only by license.^ But the employer is 
 not responsible for a willful injury committed by an employee 
 not within the scope of his employment.^ For iajury by negli- 
 gence, both employer and employee may be sued together.^ A 
 municipal corporation is not liable for negligence of members 
 of its paid Are department.* 
 
 § 1804. Against Common Carriers— For Injuries Caused 
 by Overturning Stage-coach. 
 
 Form No. 45Z. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18.., the defendant 
 
 was a common carrier of passengers for hire by stage-coach 
 between and 
 
 II. That on that day, as such carrier, he received the plaintiff 
 
 upon his coach, to be carried from to , for the 
 
 sum of dollars, which was then and there paid by the 
 
 plaintiff to the defendant. 
 
 III. That while he was such passenger at [or near 
 
 , or between and J, the said coach was, 
 
 by and through the carelessness and negligence of the said de- 
 fendant, overturned and thrown down, with the plaintiff there- 
 in, as aforesaid, by means whereof the said plaintiff was greatly 
 injured, and one of the legs of said plaintiff was broken, and 
 fractured, and bruised, and the said plaintiff was otherwise 
 greatly injured, wounded, and cut, insomuch that the said 
 plaintiff then became sick, lame, and sore, and so continued for 
 
 the space of months thence next ensuing, and was du- 
 
 rino' all that time prevented from attending to his business and 
 carrying on the same ; and the said plaintiff was forced to ex- 
 pend, and did expend, the sum of dollars for medical 
 
 attendance and nursing, to his damage dollars. 
 
 [Demand of Judgment.] 
 § 1805. Essential Averments.— It is only necessary to 
 prove the overturn and the injuries sustained. The presump- 
 tion of law is, that the overturn occurred through the negli- 
 
 ti- i.1. A„ T? TJ Pn 9fi Td 49- Lan- by partial reversal: Merrick v. Van 
 
 n^n V iiW Ga^ LightCo., 46 Barb. sLfvoord, 34 NY. 208: 
 
 264; Crrma^vfMayfr of N. Y. 14 iCorriKan v. Umon Sugar Refinery. 
 
 Auu Pr v\^■ Annett V. Foster, 1 98 Mass. 57/. 
 
 ^^t sna- Me'ver V Second Av.R. ^ Garvey v. Dung, 30 How. Pr. 315. 
 Daly 502 Meyer v becond^.^^ ^_ ^ ^^^^^y ^^ 
 
 Brainarf, 38 Bart.. 574: Not affected « Howard v. S. Francisco, 51 Cal. 52. 
 BsTBB. Vol. 1—42 
 
658 FOKMS OF COMPLAINTS. § 1806. 
 
 gence of the defendant. * In an action on the case for an injury- 
 sustained by the upsetting of a stage-coach, the declaration 
 alleged that the plaintiff, at the special instance and request of 
 the defendants, became a passenger in a certain coach, to be 
 carried safely, and for certain rewards to the defendants ; and 
 that thereupon it was their duty to use due and proper care that 
 the plaintiff should be safely conveyed. The breach was well 
 assigned, showing the neglect and consequent injury sustained ; 
 and it was held that the defect, if any, was cured by section 32 of 
 the judiciary act, which provides that no litigant shall lose his 
 right in law for want of form.'* In an action for an injury sus- 
 tained by the upsetting of defendant's stage-coach, the plaintiff 
 alleged that he paid for his passage the sum of ten dollars ; this 
 was held to be a material allegation. ^ 
 
 § 1806. Overturning Plaintiff's Carriage. — In a case for 
 personal injuries caused by plaintiff's horse being frightened by 
 two loud, sudden, and sharp whistles from defendant's engine, 
 and upsetting his carriage, it was held that whether or not the 
 above was a proper signal in the use of- ordinary care was for 
 the jury. A verdict for the plaintiff was upheld.'* 
 
 § 1807. Paid Fare. — Carriers can not protect themselves 
 from liability for gross negligence, by contract.^ It is otherwise 
 when the passenger is carried free.* 
 
 § 1808. Railroad Company.— An action lies against a city 
 railroad company for the negligence of their driver in respect to 
 stopping the car and assisting young and infirm persons on.'' 
 
 § 1809. Stock Running at Large.— Plaintiff was driving 
 in the highway, using due care, when defendant's hog running 
 at large, contrary to the statute, frightened plaintiff's horse, 
 and his minor daughter was injured jn consequence ; it was held 
 that defendant was liable, although he did not know that the 
 hog was at large. ^ 
 
 § 1810. Who Liable. — ^Where one owning a carriage hires 
 horses and a driver of B., for an injury resulting from the care- 
 lessness of the driver, B. alone is liable.^ ■ A municipal corpora- 
 
 1 Boyce v. Cal. Stage Co., 25 Cal. ' Kinney v. Cent. R, E. Co.. 3 
 
 460. Vi'oom, 407 ; but see Penn. R. E. Co. 
 
 ' Stockton V. Bishop, 4 How. U. S. v. Butler, 57 Penn. 335. 
 
 156; see also Washington v. Ogden, 1 ' Drew v. Sixth Avenue R. R. Co., 
 
 Black, 450. 8 Keyes, 429. 
 
 8 Harris v. Rayner, 8 Pick. 541. « Jewett v. Gage, 55 Me. 588. 
 
 « Hill V. Portland R. R. Co., 55 Me. » Quarman v. Burnett, 6 M. & W. 
 
 438- ,. . ^ 497; Rapson V. Cubitt, 9 Id. 709; 
 
 * Illinois Cent. R. E. Co. v. Adams, Hobbitt v. N. W. R. R. Co., 4 Welsh, 
 
 42 111. 474 ; see Adams Exp. Co. v. Hurlst. & Gord. 254 ; Allen v. Hay- 
 
 Haynes, Id. 89, 93. ward, 7 AdoL & Ellis (N. S.) 960. 
 
§ 1811. PERSOiSAL INJUKY CAUSED BY NEGLIGENCE. 659 
 
 tion is liable for injuries ensuing from neglect of its employees 
 or offlcers.i The fact that the driver of the carriage and horses 
 was their owner was conclusive in establishing that the relation 
 of master and servant did not exist ; and so far as the defend- 
 ant's liability rested upon the existence of such relation he was 
 not responsible for the injury which the plaintiff received 
 through the negligence of the driver.' 
 § 1811. Against a Railroad for Injuries by Collision. 
 
 Form No. 45! . 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18 ..., the defendant was 
 
 a corporation duly incorporated under the laws of this state, 
 
 and was the owner of a certain railroad, known as the 
 
 railroad, together with the track, rolling stock, and other ap- 
 purtenances thereto belonging; and was a common earner of 
 
 passengers thereupon for hire, between and , 
 
 in the state of 
 
 II. That on that day the defendant, in consideration of the 
 sum of dollars, then paid to it by the plaintiff there- 
 for, undertook and agreed, as such common carrier, to trans- 
 port and convey the plaintiff from to ,as a 
 
 passenger, and the plaintiff thereupon entered one of the cars 
 
 of the defendant to be so conveyed as aforesaid from 
 
 to aforesaid. 
 
 m. That while he was such passenger, at [or near 
 
 the station of , or between the stations of and 
 
 ], a collision occurred on the said railroad caused by 
 
 the negligence of the defendant and its servants, whereby the 
 plaintiff was much injured [state the injury according to fact, 
 and the special damage, if any]. 
 
 [Or, III. That the defendant and its servants, in managing 
 s^id cars in which plaintiff was a passenger, were so careless 
 and negligent that it was unsafe for him to remain in one of 
 them ; and that in order to free himself from the danger, he was 
 obliged to leap from the car, and in doing so was injured] [state 
 injury according to the fact.] 
 
 IV. By means whereof the plaintiff hath been damaged in 
 
 the sum of dollars. 
 
 [Demand of Jtjdgmbnt.] 
 
 1 Lloyd V. Mayor ofN. T., 1 Seld. *Bt>"if»=e v. Kelyea, 6 Abb. Pr. 
 369 ; contra, Haward v. San Francisco, (N. b.) 259. 
 51Cal.52. 
 
660 FOEMS OF COMPLAINTS. § 1812. 
 
 § 1812. Degrees of Negligence. — Degrees of negligence 
 are matters of proof and not of averment ; and a general alle- 
 gation of negligence, want of care and skill, etc. , is sufficient 
 in an action for injaries caused by such negligence, whether 
 the defendant is liable for ordinary or gross negligence.' And 
 aa averment of maMce does not. vitiate the pleading.^ 
 
 § 1813. Diligence. — Tlie same diligence is not required 
 from a railroad company toward a stranger as toward a passen- 
 ger. The care required is that which experience has found 
 reasonable and necessary to prevent injury to others in like 
 cases.* A railroad company is not liable for injuries received 
 by a passenger while voluntarily and unnecessarily standing on 
 the platform of a car in motion, although by the express per- 
 mission of the conductor and brakeman.* 
 
 § 1814. General Avermsnt of Negligence. — Ordinarily 
 a general averment of negligence is sufficient to admit proof of 
 the special circumstances constituting it. Thus, in an action 
 against a railroad company for running over a child, evidence 
 is admissible under such a general averment that there were no 
 suitable brakes or guards in .front of the car where the driver 
 was stationed.^ 
 
 § 1815. Negligence Generally, and also Specific Acts. 
 Under a complaint alleging negligence generally, and also spe- 
 cifying particular acts of negligence, evidence of any other 
 kinds of negligence is admissible ; the general allegation being 
 sufficient, the particular charges, being surplusage, should not 
 affect the reception of evidence.^ Negligence is a question of 
 fact, or of mixed law and fact ; and in pleading it is only neces- 
 sary to aver negligence generally, not the specific facts consti- 
 tuting the negligence.'' 
 
 § 1816. Particular Facts. — The complaint in an action 
 against a railroad company, for running over a person with an 
 engine, need not show the particular facts constituting negli- 
 gence on the part of the defendant, if it charges such negligence 
 in a general way. Such complaint must show that there was no 
 fault on the part of the person run over.^ 
 
 ' Nol ton V. "Western R. B. Co., 15 " oidBeld v. New York and Harlem 
 
 N. Y. 444. B. R. Co., 14 N. Y. 310. 
 
 2 Winterson v. Eighth Avenue R. « Edgerton v. New York and Har- 
 
 R. Co., 2 Hilt. 389 ; Robinson v. lem R. K. Co., 35 Barb. 389. 
 
 Wheeler, 25N.Y. 252. ' McCauley v. Davidson, 10 Minn. 
 
 8 Baltimore and Ohio E. E. Co. v. 418. 
 
 Breinig,25Md. 378; see Philadelphia, » Indianapolis etc. E. E. Co. v. 
 
 W. and B.E. E. Co. V.Kerr, Id. 521. Keeley'a Adm'r, 23 Ind. 133; St. 
 
 » Hickey v. Boston and L. E. E. Louis etc. E. W. Co. v. Mathias, 60 
 
 Co., 96 Mass. 429. Id. 65. 
 
§ 1820. PERSONAL INJUEY CAUSED BY NEGLIGENCE. 661 
 
 § 1817. Several Acts of Negligence. — If the plaintiff 
 would rely ou several acts of negligence as the cause of one in- 
 jury, he may allege all the acts of negligence in one count, 
 and aver that they were the cause ; and if he prove upon the 
 trial that any one of them was the cause, his complaint is sus- 
 tained.^ 
 
 § 1818. SufBcient Averment of Negligence. — In an ac- 
 tion against a railroad company for injuries caused by a collision 
 with its cars, a complaint which alleges that the defendant, with 
 carelessness and with gi-oss negligence, caused one of its engines 
 to run upon the track, etc., sufficiently charges negligence.^ 
 
 § 1819. Without the Bounds of the State. — An actian 
 can not be maintained under the statute of a wrongful act caus- 
 ing death, where such act occurred without the bounds of the 
 state. =* 
 
 § 1820. The Same— By Car Running off Track. 
 
 Form No, 4^4' 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. [Same as in preceding form. | 
 
 II. That on that day the defendant received the plaintiff as a 
 passenger in one of the carriages of the defendant on said road, 
 to be transported from to 
 
 III. That while he was such passenger, at , the said de- 
 fendant, not regarding its duty in that behalf, did, by its servants 
 and agents, so carelessly, negligently, and unskillfuUy, conduct 
 the running of said cars and railroad, that, on the day and year 
 aforesaid, by the carelessness, negligence, and default of its said 
 agents and servants, and for want of due care and attention to its 
 duty in that behalf, the said car was run off the track of said 
 railroad, and thrown down the embankment thereof, whereby the 
 said plaintiff was greatly cut, bruised and wounded, so that he, 
 the said plaintiff, became and was sick, lame, and unable to walk, 
 and was wholly unable to attend to the transaction and perform- 
 ance of his usual and necessary business, and so continued from 
 thence hitherto ; and said plaintiff has been put to great expense, 
 
 to wit to the amount of dollars in endeavoring to cure 
 
 his said wounds, bruises, and fractures, to his damage 
 
 dollars. [Tkmand of Jotombnt.] 
 
 XT XT Corit T? R. Cc ' Mahler v. Norwich and New York 
 
 iPiokensv.N Y. Cent.K. B.U), ^^ Nation Company, 45 Barb. 
 
 13 How. Pr. ilo- T^ • o« 99K 
 
 2 Ohio etc. K. Pv. Oo, V. Davis, 28 22fa. 
 
 Ind. 553. 
 
662 rOEMS OP COMPLAINTS. § 1821. 
 
 § 1821. The Same— By Negligently Starting Cars with- 
 out Giving Passenger Opportunity to Get Off. 
 
 Form No. 455. 
 [Title.] 
 The plaintiff complains, and alleges; 
 I. II. [Same as in form No. 453.] 
 
 III. That while plaintiff was such passenger, and at the 
 
 station of said railroad, when in the act of getting out of and 
 off from said car and being still thereon, to wit, on the plat- 
 form thereof, the said car was, through the neglect of the ser- 
 vant of said defendant, suddenly started and put in motion, 
 without allowing said plaintiff sufficient time to safely get off, 
 and in consequence thereof, and in consequence of the defect 
 and insuflBciency of said company's said pUtform, and of the 
 .couplings connecting said car with the other cars of the same 
 train, and of the defective and insufficient guards around said 
 platform, and across the passage-way leading therefrom to the 
 next adjacent car, and in further consequence of the insufficient 
 and imperfect means provided for giving the alarm, preparatory 
 to starting said train, and of the negligence and carelessness of 
 the servants of said defendant, in the running and conducting 
 of said train, the said plaintiff was violently thrown on the track 
 between the cars of said defendant, and sustained great injury, 
 to wit, one of his feet was crushed by a wheel of one of said 
 cars passing over it, S9 that its immediate amputation became 
 necessary, and it was accordingly amputated. 
 
 IV. That in the act of getting off from said c»r, as aforesaid, 
 the plaintiff exercised and observed all due and proper care and 
 precaution. 
 
 v. [Allegation of any special damages.] 
 [Demand of Judqmknt.] 
 
 § 1822. For Injuries Caused by Negligence on a Rail- 
 road, in Omitting to Give Signal. 
 
 Form No. 468. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day of , 18.., the de. 
 
 fendant was a corporation duly incorporated under and pur- 
 suant to the laws of this state, and was the owner of a certain 
 
 raiboad, known as railroad, together with the track, 
 
 rolling stock, and other appurtenances thereto belongincr. 
 
 II. That on that day the plaintiff was traveling in a carriage 
 
 along the public highway, from to which 
 
 public highway crosses the railroad aforesaid, at and 
 
§ 1824. PERSONAL INJURY CAUSED BY NEGLIGENCE. 603 
 
 as the plaintiff liad reached said crossing, the defendants care- 
 lessly and negligently caused one of their locomotives [with a 
 train of cars attached thereto] to approach said crossing, and 
 then and there to pass rapidly over the track of said railroad, 
 and negligently and carelessly omitted their duty while approach- 
 ing said crossing, to give any signal by ringing the bell or 
 sounding the steam- whistle, by reason whereof the plaintiff was 
 unaware of their approach. 
 
 III. That in consequence thereof, the locomotive struck the 
 plaintiff' shorse, and overset the plaintiff's carriage, and plaint- 
 iff was thrown out upon the ground with such force as to frac- 
 ture his left arm [or other injuries]. 
 
 IV. That thereby the plaintiff was put to great pain, and was 
 
 and still is prevented from going on with his business as , 
 
 and is, as he believes, permanently injured, and was otherwise 
 
 greatly injured, and was compelled to expend dollars 
 
 for medical attendance and nursing, to his damage 
 
 dollars. 
 
 [Demand op Judgmbkt.] 
 
 § 1823. Omission of Duty. — The facts which are relied 
 on as raising a duty must be alleged where the negligence con- 
 sists in the omission of a duty.^ An existing duty or obligation 
 is an essential and necessary prerequisite or predicate of an 
 affirmation of neglect or failure to perform.^ Neglect to ring 
 the bell for the entire distance required by law does not neces- 
 sarily make the company liable, if the bell was rung or whistle 
 sounded for such a distance from the crossing as to give the de- 
 ceased timely and sufficient warning of- the approaching train to 
 prevent him from trying to cross the track. ^ 
 
 § 1824. By Steamboat Explosion. 
 
 Form No. 457. 
 [Title.] 
 The plaintiff complains, and alleges : 
 I. That at the time hereinafter mentioned, the defendants 
 
 were common carriers of passengers for hire, between ...... 
 
 and . and were the proprietors of a steamboat, named the 
 
 employed by them in carrying passengers and merchan- 
 
 dVsTon'the river, from to , for hxre. 
 
 1 City of Buffalo v. Holloway, 7 N see MoGinity v. Mayor etc.. 5 Duer, 
 
 I- i' it^-^ Ti'lof v™At!anUc M„t ' 'rEustace v. Jahns, 38 Cal. 3 ; O'Brien 
 Barb. 101; Taylor v. Atlanlic-tiu Qo Dwell, 59 Barb. 497. ^ ^ 
 
 tual Insurance Company, 2 Bosw. '-s^^fX'^' j?. Y. Cent. E. E. Co., 6 
 106 ; Congreve v. Morgan, 4 Duer, C«°k T. ^. x ^^^._^^^^ ^_ ^ ^ 
 
 439: Seymour v. Maddox, 16 Q- i>. i*"A 7^'' m na.\ 410. 
 
 i26; S. C, 71 Eng. Com. L. 826 ; ai,d K. B. Co., 48 Cal. 41U. 
 
664 POEMS OF COMPLAINTS. § 1825. 
 
 II. That on the day of , 18..., the defendants 
 
 received the plaintiff and his wife and daughter into said boat 
 for the purpose of safely conveying them therein as passengers, 
 
 from to , for dollars, paid to them by 
 
 the plaintiff therefor. 
 
 III. That the defendants so negligently and unskillfuUy con- 
 ducted themselves, and so misbehaved in the management of 
 said boat, that, through the negligence and unskillfulness of 
 themselves and their servants, the steam escaped from the 
 boiler and engine, and burned or scalded [otherwise state 
 injury, according to the facts], the plaintiff and his wife and 
 daughter. 
 
 ' IV. That in consequence thereof, the plaintiff and his said 
 wife and daughter became, and for a long time remained ill ; 
 the plaintiff was deprived, and for along time to come will be 
 deprived, of the assistance and services of his wife and daughter, 
 and was compelled to, and did expend '. dollars in at- 
 tempting to cure himself and his wife and daughter, and was for 
 
 months prevented from pursuing his business, and was 
 
 otherwise greatly injured, to his damage dollars. 
 
 [DEMAND OF Judgment.] 
 
 § 1825. Condition of Boiler. — The certiflcate of an in- 
 spector does not discbarge the liability of the owner of a boiler 
 to the party injured by its bursting.^ 
 
 § 1826. Master and Servant. — The owner of water-craft 
 is not liable for the injury willfully committed by the master or 
 pilot running her.^ 
 
 § 1827. Negligent Delay. —A. transportation company is 
 liable to a passenger for injury occasioned by negligent delay.* 
 
 § 1828. Negligence in Navigating Water-craft. — The 
 plaintiff in an action for damages for injuries caused by negli- 
 gence in sailing water-craft, must show that he used ordinary 
 care.'* 
 
 § 1829. Rule of Damages. — Where the collision occurs 
 without negligence of either party, each must bear his own loss.* 
 
 •Swarthout v. New Jersey Steam- Mayor etc., 6 Mo. 230; Simpson v. 
 
 loat Co., 46 Barb. 222. Hand, 6 Whart. 311 ; Steamboat Clip- 
 
 2 Turnpike Co. v. Vanderbilt, 1 per v. Logan, 18 Ohio, 876. 
 
 Hill, 480. 'Stainback v. Kae, 14 How. TJ. S. 
 
 8 Van Buskirk v. Roberts, 31 N. Y. 532 ; Williamson v. Barrett, 13 Id. 
 
 661. 101 ; Halderman v. Beokwith, 4 Mc- 
 
 *Barnesv. Cole, 21 Wend. 188; Lean, 286 ; Barrett v. VVilli»m?on, Id. 
 
 Holderman v. Beokwith, 4 McLean, 589 ; 4 Harring. 228 ; The Brg Ve- 
 
 286; Kathbun v. Payne, 19 Wend, ruma v. Clara, 1 Tex. 80. 
 399; Steamboat United States v. 
 
§ 1831. PERSONAL INJUKY CAUSED BY NEGLIGENCE. 665 
 
 § 1830. Rules of Navigation.— Steam vessels are bound to 
 keep clear of sailing vessels ; they are treated as having wind in 
 their favor.^ 
 
 § 1831. For Injuries to Engineer of a Railroad Com- 
 pany, Caused by a Collision. 
 
 Form No. 548. 
 
 [TlTLK.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., the de- 
 fendant was a corporation, duly incorporated under and pursu- 
 ant to the laws of the state of California, and was owner of a 
 
 certain railroad known as railroad, together with the 
 
 track, cars, and locomotives thereto belonging. 
 
 -II. That one of said locomotives, and the train thereto at- 
 tached, ran from to , and back again, each 
 
 day; and another thereof ran from to said 
 
 and back again, each day; which said locomotives, with their 
 respective trains, were used and accustomed to meet, and safely 
 pass each other, at 
 
 III. That the said plaintiff was employed by the said defend- 
 ant as an engineer upon one of said locomotives, at and for a 
 certain hire and reward agreed upon by the parties in that be- 
 half, and was accustomed to stop the said last mentioned loco- 
 motive at aforesaid, under the instruction by him 
 
 received from the said defendant, and there to pass the said 
 Other locomotive as aforesaid. 
 
 IV. That by reason of the premises it became the duty of the 
 said defendant to give the said plaintiff due notice of any change 
 in the place of meeting and passing of the said locomotives and 
 their respective trains, yet the said defendant, not regarding its 
 
 s^id duty, did, on the day of , 18..., change the 
 
 place of meeting and passing of said locomotives, with their 
 
 respective trains, from said to said , and did 
 
 direct said change to be carried into effect on the day of 
 
 . .., 18... 
 '"'v That the said defendant wholly neglected and failed to 
 mve the said plaintiff notice of said change in the place for 
 The Bassinff of said locomotives with their respective trains, and 
 whilst the said plaintiff was proceeding, in his capacity of 
 Tgneer as aforesaid, on one of said locomotives with the train 
 Seto belonging, according to the directions before that time 
 
 . St. Jo.n V. Paine 10 How U. S. The^^-^ 21^-557; We.eru Belle 
 583; Newton v. Stebbins, 10 id. i>»t.. 
 
;66 FORMS OJF COMPLAINTS. § 1832. 
 
 ;iven to the said plaintiff by the said defendant, between 
 
 and aforesaid, the other locomotive with its train, 
 
 oming from to , ran against it, and violently 
 
 Tushed the same. 
 
 VI. That by reason thereof the plaintiff was severely scalded, 
 
 iruised, burnt, and wounded, and became sick, sore, lame, and 
 
 lisordered, and so remained for the space of months, 
 
 ,nd was compelled to expend the sum of dollars for 
 
 ledical attendance; and was prevented from attending to his 
 
 rdinary business, and lost all the wages he otherwise would 
 
 ave earned, to wit, the sum of dollars, to his damage 
 
 dollars. 
 
 [Dbmand op Judgment.] 
 
 § 1832. Company, when not Liable. — The fact that a 
 ailroad company's servant was of a higher grade than another 
 ervant of said company, injured through his negligence, does 
 ot make the company liable.^ 
 
 § 1833. Employer, when Liable.— If injury to the em- 
 •loyee results from fault or negligence on the part of the 
 mployer, the employer is liable. ^ But if such injury results 
 rom defects in machinery, etc. , notice of such defect must be 
 rought home to the employer.^ An allegation that defendant 
 'negligently provided" such machinery, is held a sufficient 
 verment of knowledge.^ 
 
 § 1834. Joinder of Parties. — Master and servant may be 
 Dined as defendants in an action to recover for the negligence 
 f the servant.* 
 
 § 1835. Mutual Negligence. — ^The rule that the plaintiff 
 an not recover if his own wrong as well as that of the defend- 
 nt conduced to the injury, is confined to cases where Ms 
 rrong or ne_gligence has immediately or approximately cour 
 ributed to the result.^ A slight want of care on the part of 
 tie plaintiff will not excuse gross negligence by the defendant.'' 
 
 § 1836. Want of Ordinary Care.— In Indiana, in an action 
 gainst a railroad company by one of its servants to recover for 
 njuries received through the negligence of another servant, the 
 
 1 Shauok V. Northern Central E. R. * Knaresborough v. Belcher S. M. 
 'o., 25 Md. 462 ; Cumberland Coal Co., 3 Sawj-er, 446. 
 
 nd Iron Co. v. Bcally, 27 Md. 589 ; ^ Montfort v. Hughes, 8 E. D. 
 
 [cLean v. Blue Point Gravel Min, Smith, 591. 
 
 o., 51 Cal.255. « Kline v. O. P. R. R. Co., 87 Cal. 
 
 2 Ryan v. Fowler, 24 N. Y. 410; 400 ; citing Needham v. San Francisco 
 ionnolly v. Poillon, 41 Barb. 866. and S. J. R. E. Co., 87 Id. 409. 
 
 ' Kunz V. Stewart, 1 Daly, 431 ; ' Bequptte v. People's Trans. Co., 
 loonam v. Brockway, 28 How. Pr. 2 Or. 200. 
 72. 
 
§ 1837. PEKSONAL INJURY CAUSED BY NEGLIGENCE. 667 
 
 complaint must allege, either expressly, or by stating facts 
 from which it clearly appears, that the plaintiff did not by bis 
 own fault or negligence contribute to the injury.i Generally, 
 however, it is not necessary for the plaintiff to allege in his 
 complaint that the injury happened without any want of ordi- 
 nary care on his part ; except where the facts alleged are such 
 as to raise a presumption of such fault in him.^ 
 
 § 1837. For Injuries to Engineer of a Railroad Com- 
 pany—Said Company having Used a Condemned Loco- 
 motive. 
 
 ,„ , Form No. 459. 
 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., the defendant was 
 
 a corporation, duly incorporated under and pursuant to the 
 
 laws of the state of , and was the owner of a certain 
 
 railroad, and of a locomotive propelled by steam on said rail- 
 road, and by said defendant used and employed in carrying and 
 conveying passengers and goods [or hauling trains of cars con- 
 taining passengers and goods], upon and over the said railroad 
 of the said defendant, from to 
 
 II. That the said plaintiff on the day and year aforesaid, at 
 
 aforesaid, and at the time of the committing of said 
 
 grievances, was in the employ of the said defendant, as engineer 
 upon said locomotive, so moved and propelled by steam as afore- 
 said ; and that it then and there became and was the duty of the 
 said defendant to procure a good, safe, and secure locomotive, 
 with good, safe, and secure machinery and apparatus, to move 
 and propel the same as aforesaid. 
 
 III. That the said defendant conducted itself so carelessly, 
 negligently, and unskillfully, that, by and through the careless- 
 ness, negligence, and default of the said defendant and its ser- 
 vants, it provided, used, and suffered to be used, an unsafe, 
 defective, and insufficient locomotive, of all which it had no- 
 tice. 
 
 IV. That for want of due care and attention to its duty in 
 
 that behalf, on the said day of , 18..., at , 
 
 aforesaid, and whilst the said locomotive was in the use and 
 
 1 ffvansvilla B E. Co. v. Dexter, Holt v. Whatley, 51 Ala. 569; Texas 
 o/t I AiV & P. R. W. Co. V. Murphy, 46 Texas. 
 
 2 Tnhifflon V Hudson River R. B. 356; Robinson v. W. P. R. R. Co., 48 
 r^ fi nn«r 21- S C 20 N. Y.65; Cal. 409; contra, Louisville etc. R. 
 Wnlfe V SuDer'visorsof Kchmond Co. v. Boland, 53 Ind. 398; see also 
 n fbb Pf. 270rs. C., 19 How. Pr! Chicago & N. W. R. Co. v. Ooss, 73 
 370; Burdick v. Worral, 4 Barb. 596 ; 111. 894. 
 
668 FORMS OP COMPLAINTS. § 1838. 
 
 service of said defendant, upon said railroad, and whilst the 
 said plaintiff was on the same, in the capacity aforesaid, for the 
 said defendant, the boiler connected with the engine of the said 
 locomotive, by reason of the unsafeness, defectiveness, and in- 
 security thereof, exploded ; whereby large quantities of steam 
 and water escaped therefrom, and fell upon the said plaintiff, 
 by which he was greatly scalded, burnt, and wounded, and be- 
 came sick, sore, and disordered, and so remained for the space 
 
 of months, and was compelled to expend the sum of 
 
 dollars for medical attendance, and was prevented from attend- 
 ing to his ordinary business, and lost all the wages he otherwise 
 
 would have earned, to wit, the sum of dollars, to his 
 
 damage dollars. ^ 
 
 [Demand op Judgment.] 
 § 1838. Company Liable for Acts of Servants.— It has 
 been held in a case where men are in the employ of a manufac- 
 turing company, that where an injury is suffered through the 
 gross carelessness of the agent of the company, the company is 
 not liable in damages, where both the injured party and the 
 agent through whose neglect the injury was caused, were en- 
 gaged in their respective duties.^ It has been the opinion in a 
 large number of cases very similar to those referred to, that the 
 inquiry should be made, " Did the accident happen through the 
 fault of the company or the fault of its servants?" and if 
 through the fault of the servants, and without any fault on the 
 part of the company, then it would not be liable. In the case 
 ot Keegan v. Western Railroad Corporation, 4 Seld. 175, it 
 was held that the defendant was liable, on the ground that the 
 Dieglect was that of the corporation, and not of its servants, and 
 30 did not come within the principle established in Coon v. S. 
 &U. R. R. Co., 1 Id. 492. The locomotive in this case had 
 Deen reported as insuflScient by the engineers, but the corpora- 
 iion continued to use it ; hence it was the fault of the corpora- 
 ;ion, and not of its servants. Where the injury was alleged to 
 lave been caused by the neghgence of an engineer who was em- 
 )loyed by a superintendent who had full authority and control 
 )f the work, and employed and discharged the workmen, the 
 
 1 The above form is partially taken court of the state of Ohio, in Little 
 
 rom Nash's Pleadings and Forms, Miami Railroad Co. v. Stevens, 20 
 
 ,nd IS here given, although there are Ohio, 415. But it seems .the court 
 
 ;rave doubts about an action lying in McGlynn v. Brodie, 81 Cal. 876, 
 
 gainst the railroad company in a case holds to a different doctrine. 
 
 if that character. This action was, 2 Albro v. Agawam Canal Co- 6 
 
 lowever, sustained by the Supreme Cush. 75. 
 
§ 1841. PEKSONAL INJURY CAUSED BY NEGLIGENCE. 669 
 
 complaint must also allege that the defendants were negligent 
 in the selection of their superintendent, or it does not state a 
 cause of action against them.^ 
 
 § 1839. Liability of Master.— A master is bound to use 
 reasonable care and diligence to prevent accident or injury to 
 his servant, in the course of his employment, and is responsible 
 in damages for failure to do so.^ A common employer is not 
 reponsible for the injury to one servant, occasioned by the neg- 
 ligence of another, in the course of their common employment, 
 unless be himself was in fault, a A railroad company having 
 employed competent persons to supervise and inspect its road- 
 bed and bridges, is not liable for an injury to one of its servants, 
 caused by the falling of a bridge, in consequence of a latent 
 defect.4 
 
 § 1840. Risk of Employee.— In a California case it is held, 
 that "if an employee works with or near machinery which is 
 unsafe, and from which he is liable to sustain injury, with a 
 knowledge or means of knowing its condition, he takes the risk 
 incident to the employment in which he is thus engaged, and 
 can not maintain an action for injuries sustainad arising out of 
 accident, resulting from such defective condition of the ma- 
 chinery."^ 
 
 § 1841. By Executor or Administrator, against a Rail- 
 road Company, for Injuries Causing Death. 
 
 Form No. 460. 
 [Title.] 
 The plaintiff, as the executor [or administrator] of the estate 
 of A. B. deceased, complains and alleges: 
 
 I. That on the day of , 18.., the defendant was 
 
 a corporation duly organized by [or under] the laws of this state 
 and was a common carrier of passengers for hire, by railroad, 
 between and .: 
 
 II. That on that day said defendant received one A. B. into 
 its cars, for the purpose of conveying him therein as a passenger 
 
 fj-ojji to [for dollars paid to them 
 
 by said A. B.J 
 
 1 Collier v Steinhart, 51 Cal. 116. see McGatrick v. Wason, 4 Ohio St. 
 
 s Hallower v. Henley, 6 Cal. 209. 569; Hayden v. Smithville Mfg. Co., 
 
 8 WrJsht V. N. Y. Central R. K. Co., 29 Conn. 558 ; William v. Clough, 3 
 
 91 TSr T .'i62- Treadwell v. Mayor of Hurlst. & N. 258; Griffiths v. Gidlow, 
 
 New Yorkf 'xV^^ 123 ; Kunz v. Id. 648 ; Dynen v. Leaoh, 40 Eng. L. 
 
 «, Trt TH 4^1 " ^' ' & E. 491 ; Skipp v. Eastern Counties 
 
 "Warne'r v/Erie Railway Co., 39 Railway Co.. 9 Ex. 223; Story on 
 
 N Y. 468; see Cal. Civil Code, sees. Agency, 6th ed., sec. 453, and notes; 
 
 1969-1971, inclusive. Hallower v. Henley, 6 Cal. 209. 
 
 5 McGlvnn v. Brodie, 31 Cal. 376; 
 
670 FOEMS OP COMPLAINTS. § 1842. 
 
 III. That while he was such passenger, at , a station 
 
 on the Hue of the said railroad, by and through the carelessness 
 of the defendant and its servants, a collision occurred by which 
 [the cars of said railroad were thrown from the track, and 
 the car in which the said A. B. then was was precipitated down an 
 embankment, and the said A. B. was thereby killed, or as the 
 case may be]. 
 
 IV. That on the day of , 18..., letters of admin- 
 istration upon the estate of the said A. B. were duly issued by 
 
 the probate court of the county of to the plaintiff, by 
 
 which he was appointed administrator of all the goods and 
 credits belonging to the said A. B. at the time of his death, and 
 he thereupon was qualified and entered upon his duties of such 
 administration. 
 
 "V. That by reason of the premises the plaintiff, as such exec- 
 utor [or administrator], hath sustained damage in the sum of 
 
 dollars. 
 
 [Demand op Jtjdbmbnt.] 
 
 § 1842. By Heirs, against Railroad, for Injuries to 
 Employee Causing Death, Resulting from Defective 
 Machinery. 
 
 Form No. 461. 
 
 [TlTLB.] 
 
 The plaintiffs complain, and allege : 
 
 I. That the plaintiff, Mary Doe, is the widow of John Doe, 
 deceased ; that said plaintiff and said deceased intermarried on 
 the day of , 18... 
 
 II. That the plaintiff, James Doe, is the only child of said 
 John Doe, deceased ; that the plaintiff, James Doe, is an infant, 
 
 less than years of age; that before the commencement 
 
 of this action said Mary Doe, his mother, was by an order of 
 
 the superior court of county, duly made and given, 
 
 appointed guardian ad litem of said infant, for the purpose of 
 appearing for him in this action. 
 
 III. [Allege defendant's corporate existence and business, as 
 in form No. 469. J 
 
 IV. That on or about the day of , 18..., said 
 
 defendant was the owner of, and engaged in running and oper. 
 
 ating a railroad and train of cars in the county of 
 
 state of 
 
 V. That on said day, and at the time of the injuries hereinafter 
 mentioned, said John Doe, deceased, was employed and hired by 
 the defendant as a brakeman on said train, and was then and 
 there acting as and discharging the duties of such brakeman. 
 
§ 1845. ■ PERSONAL INJURY CAUSED BY NEGLIGENCE. 671 
 
 VI. That at the time aforesaid one of the brake wheels and 
 brake machinery on said train, which said John Doe, as such 
 brakeman, was required to operate, was imperfectly constructed, 
 defective, and unsafe ; that said imperfection, defectiveness, in- 
 adequacy, and unsafeness could have been by said defendant 
 discovered and known by the use and exercise by them of 'or- 
 dinary care and diligence, and were at the time aforesaid known 
 to said defendant; but the same were unknown to the said 
 John Doe. 
 
 VIT. That at the time aforesaid, and while said John Doe 
 was employed and engaged in the duties and occupation of 
 brakeman, as aforesaid, said brake wheel and brake machinery, 
 by reason of the imperfection, defectiveness, inadequacy, and 
 unsafeness thereof, broke and gave way, without any negligence 
 or fault of said John- Doe, by reason whereof said John Doe 
 was cast upon the ground, and there crushed and killed by said 
 train. 
 
 VIII. That said plaintiffs were wholly dependent upon said 
 John Doe for subsistence and support, and by reason of his 
 death are left utterly helpless and destitute, and are damaged 
 
 in the sum of dollars. 
 
 [Demand of Jttoqment.] 
 § 1843. Conflict of La-ws — An administrator appointed in 
 one state can not maintain an action there, on the statute of 
 another state, which gives to the personal representatives of a 
 person killed by wrongful act, neglect, or default, a right to 
 maintain an action for damages in respect thereof, notwith- 
 standing the death, for the benefit of the widow or next of kin, 
 against the party that would have been liable if death had not 
 
 ensued.^ 
 
 § 1844. Damages.— Damages ensuing from bodily pam 
 need not be alleged specially in the complaint.i' But funeral 
 expenses are not recoverable, except as special damages, if re- 
 coverable at all, and must be specially pleaded. 3 
 
 § 1845 Liability for Causing Death.— When the death 
 of a person, not being a minor, is caused by the wrongful act or 
 neglect of another, his heirs or personal representatives may 
 mSntain an action for damages against the person causing the 
 
 . Kichardson v New York Cent. K. death of a ^^^^Zlf tl'cZ 
 
 K. Co., 98 Mass. 85. mV Y 252- S C, 24 Id. 471; Mo- 
 
 2 OurtissT. Rochester and Syracuse ^^^-/-^^J'y CeJ. R. R. ci., 43 
 
 ^^92-'« '!i^^''^^«k'''' "^ ffsslArio the rule for pl'ead- 
 
 ^U*vr^Wi^tfr!-34Ca,.153. As ^'special damages, see anU, sec 
 
 to measure of damages In case of the 326. 
 
672 FOUMS OF COMPLAINTS. ' § 1846. 
 
 death ; or if such person be employed by another person who is 
 responsible for his conduct, then also against such other person. 
 In every action under this and the preceding section, such dam- 
 ages may be given as under all the circumstances of the case may 
 be just.i In the case of a minor, the father, or where he is dead 
 or has deserted his family, the mother, or the guardian of a ward 
 may bring the action.^ 
 
 § 1846. Limitation of Action. — In California, every action 
 for the death of a person by wrongful act shall be commenced 
 within two years after the death of such deceased person."' 
 
 § 1847. Negligence. — Where the complaint alleged that a car 
 of the defendant, in charge of their servant and agent, was wrong- 
 fully driven over a child, whereby, etc., and that the defendants, 
 by negligence of themselves and their agents, ran over the child 
 and caused her death, it was held that evidence was admissible 
 of any facts of negligence on the part of the defendants in the 
 construction of the cars, which would have aided in causing such 
 injury.^ 
 
 § 1848. Parties Plaintiff. — ^A father, or in case of his death 
 or desertion of his family, the mother, may maintain an action for 
 the injury or death of a child ; and so may a guardian for the in- 
 jury or death of his ward.^ A parent may recover the expenses 
 of nursing and healing a minor child, even though the child be so 
 young that there is no loss of service. ^ An action may be main- 
 tained by a father as administrator of an unmarried infant son, 
 and it is not indispensable that deceased should leave a widow and 
 next of kin.'' A husband can not maintain an action for the in- 
 stantaneous killing of his wife through the negligence of defend- 
 ant. The well settled common-law rule that no damages can be 
 recovered by action for injuries resulting in immediate death ap- 
 plies to actions brought by a husband for injury to his wife. 
 The loss of society and assistance does not alter the case ; and 
 the New York statute of 1847 has not extended the remedy to 
 such an injury.^ An action in Pennsylvania against a railroad 
 company for negligence in causing the death of a father, is 
 properly brought in the name of all the children. The recovery 
 is for the benefit of all, the amount to be distributed as in case of 
 intestacy. 8 
 
 1 Cal. Code C. P., sec. 877. ' MoMahon v. Mayor of N. T. 33 N. 
 
 2 Id., sec. 876. T. 642. 
 
 ! n1-^« Ti ^^^T^'"^- ^- ^ „ , „ „ ° <^''««" ^- Hudson KiverR. R. Co., 
 ♦Oldfieldv. N. Y and Harlem E. 2Keyea, 294; affirming 28 Barb. 9. 
 I. Co., 3 E. D. Smith, 103. g •kt.-.u t..__ „ ^ s,. _• .°: 
 
 » Cal. Code C. P., sec. 376. 
 • Svkes V. Lawler. 4Q Cnl. 2,<?fi_ 
 
 ""*"'"" '•■•■•• ^r """ jj-aiicui iw .4 .^.o.yBs, i»4 amrming^B Barb. 9. 
 »Cal. Code C. P., sec. 3/6. son, 44 Penn. St. 176. 
 
§ 1852. PERSONAL INJURY CAUSED BY NEGLIGENCE. 673 
 
 § 1849. Parties Defendant.— In New York, a passenger in 
 a vehicle or railroad car, injured by its collision with another 
 vehicle or car, resulting from the concurrent negligence of the 
 owners^ of such vehicles or cars, or their employees, may main- 
 tain a joint action against both.^ 
 
 § 1850. Personal Representatives.— Every action for the 
 death of a person, caused by the wrongful act, neglect, or default 
 of a person or corporation, shall be brought by and in the 
 names of the personal representatives of such deceased person.^ 
 The provision of the Louisiana statute, that the cause of action 
 for the wrongful death of a person shall survive to the personal 
 representatives for the space of one year from the death, is a 
 legal subrogation, in favor of the persons designated to the right 
 of action of the deceased; and in case of a suit under that 
 subrogation, the plaintiff should allege that his cause of 
 action was derived from deceased under the statute, and a 
 neglect to do this will be fatal.3 
 
 § 1851, Special Damage.— In an action for death by the 
 wrongful act of a person, it is not necessary to allege or prove 
 special damage.* 
 
 § 1852. What must be Shown. — To maintain an action 
 for causing by wrongful acts the death of or injury to a person 
 two things must be shown: 1. An obstruction in the road 
 by the fault of the defendant ; 2. No want of ordinary care on 
 the part of the plaintiff or party injured. The gravamen of the 
 action is the negligence of the defendant, and plaintiff can 
 not recover where it appears that the negligence of the de- 
 ceased or person injured contributed in any degree to the death 
 or injury sustained.^ But in cases where the negligence of the 
 defendants is affirmatively shown, and there is no proof of the 
 conduct of the deceased or person injured, the jury are at 
 liberty to infer ordinary care and diligence on his part, taking 
 into consideration his character and habits as proved, and the 
 natural instinct of self-preservation.^ In such actions, if the 
 plaintiff makes a case which does not charge the deceased or 
 the person injured with negligence, the case should be permit- 
 ted to go to the jury, under appropriate instructions.'' 
 
 i/^v,onTn»n V New Haven R. R. • Earhart v. Ne. Orleans etc. R. R. 
 
 Ctiapraa ^^^ Colegrove v. N. Y. Co., 17 La. Ann. 243. 
 
 A i!i h' R R Co., 20 Id. 492; 4 Keller v. New York Cent. R, R. 
 
 wJbiterv' H!B."R.R.Co.,38Id.260; Co., 24 How. Pr. 172; Mclntyre v. 
 
 l:fdi!lm contra in Brown v. N. Y. New York Cent. R. R. Co., 43 Barb. 
 
 ?tr,t R Co. 32 Id. 597; Mooney v. 632. 
 
 Hui^on River R. R. Co., 5 Rob. 548. ^ Gay v. Winter, 34 Cal. 163 
 
 s See notes, «»!!«. ""• 'Id. 
 BsTBB, Vol. I— 43 
 
674 FORMS OF COMPLAINTS. § 1S53. 
 
 § 1853. Widow and Next of Kin. — It was held in the 
 superior court of New York that a complaint of this kind must 
 expressly allege that there is a widow, or next of kin, giving 
 their names, and alleging that they had sustained pecuniary in- 
 jury.i But the doctrine of this case is entirely inconsistent 
 with the later cases. ^ 
 
 § 1854. Against a Municipal Corporation, for Injuries 
 Caused by Leaving the Street in an Insecure State. 
 
 Form No. 4G2. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 I. That the defendant is a municipal corporation, duly organ- 
 ized under the laws of this state. 
 
 II. That, among other things, it is, by its charter, made its 
 duty to keep the streets in said city in good order, and at all 
 times properly to protect any excavations made in said streets, 
 by placing lights and signals thereat to indicate danger. 
 
 III. That a certain street in said city, known as , 
 
 was and is a common thoroughfare, and used by the citizens 
 thereof and others ; and that the duty of said defendant as to 
 said street was, and became at the time hereinafter mentioned, a 
 matter of public and general concern. 
 
 IV. That on or about the day of , 18..., a deep 
 
 and dangerous excavation [hole or trench] was dug in said 
 street [or an obstruction was placed in said street, and negli- 
 gently left therein], and suffered by the defendant, during a 
 night on or about said day, to remain open, exposed, and with- 
 out proper protection, and without any light or signal to indicate 
 danger. 
 
 V. That the plaintiff on the night aforesaid was lawfully 
 traveling on said street, and was wholly unaware of danger, and 
 was accidentally, and without fault or negligence on his part, 
 precipitated into said excavation [hole or trench] , whereby he 
 received great bodily injury, and was made sick and sore, and 
 was thereby kept to his bed, and detained from business for 
 days, and was in consequence thereof compelled to 
 
 • Safford v. Drew, 3 Duer, 627. necessary ; and though the whole doc- 
 
 '^ Chapman v. liothwell, El. Bl. & trine of Safford v. Drew is not over- 
 
 El. 168 ; Quin v. Moore, 15 N. Y. 436 ; ruled in terras, yet it is in effect, and 
 
 Oldfield y. New Tork and Harlem that nominal damages, at least, may 
 
 R. R., 14 Id. 816 ; Dickens v. New be recovered on the above complaint, 
 
 York Central R. E., 28 Barb. 41 ; with liberty to prove actual damage. 
 
 Keller v. New York Central E. E., In California, however, the statute 
 
 17 How. Pr. 102. The first of these especially provides for this class oi 
 
 eases expressly decides that no allega- actions: See Cal. Code C. P., sees, 
 
 tion of damage to the next of kin is 376, 377. 
 
§ 1880. PERSONAL IJSJURY CAUSED BY NEGLIGENCE. 675 
 
 expend dollars for medical attendance and nursing, 
 
 and lias been made permanently lame, to his damage 
 
 dollars. 
 
 [Demand or Judgment.] 
 § 1855. Causs of Death. — ^The responsibility incases of a 
 personal injury from falling through a defective sidewalk is 
 upon him who has the control and management of the work.i 
 
 § 1856. Corporation, Liability of. — A city having the 
 power and duty of lighting its streets is liable for injuries or 
 death caused by a party's falling off a bridge, opened for the 
 passage' of a vessel, in consequence of its being insufficiently 
 lighted.^ It is not liable for negligence of a member of paid fire 
 department. 3 
 
 § 1857. Defect in Highways. — Where plaintiff was injured 
 owing to a defect in a highway, bat would" not have been if the 
 horse had not been vicious — he had never driven the horse be- 
 fore, and did not know of its vLciousness — it was held that 
 plaintiff could recover substantial damages.* 
 
 § 1858. Drover, Liability of.— The law governing the lia- 
 bility of persons for driving cattle through the streets of a city, 
 for damages caused by injuring a person lawfully in the street, 
 without any fault on his part, is the same as that by which the 
 carriers of passengers are governed.* 
 
 § 1859. Dug, Opened, and Made.— In a suit caused by a 
 person's falling into an area in a public sidewalk, a declaration 
 charging that the defendant "dug, opened, and made" the 
 area, is°sustained by proof that he formed it partially by exca- 
 vation, and partially by raising walls. ^ 
 
 § 1860. Foundation of Action.— The foundation of this 
 action is the personal tort of the defendant, and not of hi 
 testators. The defect in the street from which the injury re- 
 sulted to plaintiff is not alleged to have existed anterior to the 
 death of such testator ; hence no obligation was incurred by the 
 testator in his life- time in respect thereto, which could serve as 
 a basis for a valid claim against his estate, or a right of action 
 against the administrator of his estate as such.'' 
 
 iBoawellv. Laird,8Ca1. 469;Pan- City of Brooklyn, 41 Barb. 881; 
 • „ <;I»lBa 29 Id 243 ; followed in Davenport v. Kuckman, 10 Bo3W. 20. 
 Wn Pratt V. Lick, 38 Id. 691 ; see » Howard v. San Francisco, 51 Cal. 
 
 "''."Ctoago' V. -poweV^s'-li lU. 169 ; ""i Daniels v. Town of Saybrook, 34 
 
 as ^^^'^'l^i'T'^Z'^^H ^-iell:;.. Jones. 28 Ca,. 618. ^ ^^ 
 
 bflity of 'corporations for neglect to ^' Bobbins v. Chicago City, 4 Wall, 
 
 omi/j r . j^^ for the U. S. 657. „ , _ 
 
 Sf o? tie pubC see Grant v._ ' Eustace v. Jahns. 38 Cal. 3. 
 
C76 FOKMS OF COMPLAINTS. § 1861. 
 
 § 1861. Non-repair of Premises. — A complaint against 
 tlie owner of premises leased to a third person, to recover dam- 
 ages sustained by plaintiff by the falling of a part of the build- 
 ing through want of repairs, is bad on demurrer, unless it states 
 facts from which the court can say that the owner was bound to 
 beep the premises in repair. A mere general allegation that de- 
 fendant was bound to keep the premises in repair is insufficient.^ 
 
 § 1862. Respondeat Superior. — The responsibility, in 
 cases of personal injuries, is upon him who has the control 
 and management of the work, and the relation of respondeat 
 superior has no application where the relation of master and 
 servant does not exist.^ Where there is no power of selection 
 or direction, there can be no superior, and where a man is em- 
 ployed to do the vork with his own means and by his own 
 servant, he has the power of selection and direction, and he, 
 and not the person for whom the work is principally done, is 
 the superior. 3 
 
 § 1863. Street Contractor — Liabilities. — The responsi- 
 bility in cases of repairs in public streets made by a contractor 
 rests upon him who has control and management of the work. 
 The doctrine of respondeat superior has no application where 
 the relation of master and servant does not exist, but where a 
 man is employed to do the work with his own means and by his 
 own servants, he and not the person for whom the work is 
 being primarily done is the superior.'* The law does not im- 
 pose upon the owner of a lot fronting on a street of an incor- 
 porated city, the duty to repair a defect in the portion of the 
 public street upon which his lot abuts or fronts.* The only 
 duty imposed upon him is the payment of the assessment which 
 shall be lawfully imposed upon his lots or lands. So the owner 
 of property is not liable for the torts of servants employed by 
 the contractor,^ nor for omission or negligence of contractor 
 so employed.'' But the principal contractor is liable for negli- 
 gence of subcontractors and their servants. ^ So of a party 
 
 1 Casey v. Mann, 5 Abb. Pr. 91 ; S. Seales, 29Id. 243 ; and followed in the 
 
 C, sub nam. Corey v. Mann, 14 How. oases of Du Pratt v. Lick, 88 Id. 791 ; 
 
 Pr. 162, see Brown v. Harmon, 21 O'Hale v. Sacramento, 48 Id. 212, and 
 
 Barb. 508. Krause v. Sacramento, Id. 221. 
 
 ' Fanjoy v. Seales, 29 Cal. 243 ; the 6 Eustace v. Jahns, 38 Cal. 8. 
 
 doctrine approved in Du Pratt v. « Van Wert v.Oity of Broolilyn, 28 
 
 Lick, 88 Id. 691. How. Pr. 451; O'Rourke v. Hart, 7 
 
 8 Fanjoy v. Seales, 29 Cal. 243; Bos w. 511; Sohular v. Hudson Eiver 
 
 cited arid followed in Du Pratt v. R. K. Co., 88 Barb. 658. 
 
 Lick, 38 Id. 691. i Fish v. Dodge, 38 Barb. IBS ; Ben- 
 
 * Boswell V. Laird, 8 Cal. 469. The edict v Martin, 36 Id. 288. 
 
 doctrine recognized in Fanjoy v. » Creed v. Hartmat, 29 N. Y. 591. 
 
§ 1866. PERSONAL INJURY CAUSED BY NEaLIGENCE. '677 
 
 obtaining authority to do work in a public street.^ But public 
 officers are not within the rule of employer and employee, and 
 are not responsible for persons employed under them.^ Where 
 a party was injured by falling at night into an excavation made 
 in grading the street of a city, under a city contract, given out 
 in obedience to the law, owing to the failure to put lights or 
 guards about the place, the contractor and not the city is liable." 
 
 § 1864. For Injuries Caused by Rubbish in the Street, 
 Whereby Plaintiff was Thrown from his Carriage. 
 
 Form No. 46S. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That the defendant, on or about the day of , 
 
 18..., wrongfully placed large quantities of lumber and bricks 
 
 in the public highway [known as street], in , 
 
 and negligently left the same therein, obstructing the highway 
 during the night-time, and without proper protection or notice to 
 citizens and travelers against accidents. 
 
 n. That by reason of said negligence and improper conduct 
 of the defendant, in the night-time of that day, the carriage of 
 the plaintiff, with the plaintiff therein, then passing through 
 said street, was accidentally driven against the said lumber and 
 earth, and was thereby overturned; by means whereof the 
 plaintiff was bruised and wounded, and was for days pre- 
 vented from attending to his business, and was compelled to 
 
 expend, and did expend dollars for medical attendance and 
 
 nursing, to his damage dollars. 
 
 [Demand of Judgment.] 
 
 § 1865. Mutual Negligence. — Where a child was killed 
 by the fall of a counter on which he was climbing, and which 
 had been left in the street of a city for two or three weeks, the 
 child beino- six years old, and at the time of his death playing 
 unattended six blocks from' home, it was held that the city was 
 no more negligent than the parents of the child, and was not 
 
 liable.* 
 § 1866. For Injuries Caused by Leaving a Hatchway 
 
 ^'P®"' Form No. 464. 
 [Title.] 
 The plaintiff complains, and alleges: 
 L That on the day of , 18..., the defendant was 
 
 1 McCamus v. Citizens' Gas Light ' James v. San Francisco, City of, 
 
 p 40 Barb 380 6 Cal. 528. 
 
 s'kurphy V. Commissioner* of Im- * Chicago v. Starr, 42 111. 174. 
 nigration, ".7 How. Pr. 41. 
 
678 FOKMS OP COMPLAINTS. § 1867. 
 
 the occupant of the [store No. .., street], and had pos- 
 session and control of the hatchway hereinafter mentioned. 
 
 IT. That on the said day the plaintiff was in the said [store or 
 building], by permission of the defendant, for the purpose of 
 transacting business with him [or in the discharge of his duties 
 as — state what]. 
 
 III. That the hatchway on the [second] story of the said build- 
 ing was then, by the negligence of the defendant, left open, and 
 not in any manner protected. 
 
 IV. That in consequence thereof the plaintiff fell through the 
 said hatchway, and was much injured [state special damage, if 
 any, as] , and was confined to his bed and detained from business 
 for days, was compelled to expend dollars for medi- 
 cal attendance and nursing, and has been made permauently lame, 
 to his damage dollars. 
 
 [Demand or Judgment.] 
 
 § 1867. The Same— Another Form. 
 
 Form No. 465. 
 [Title.] 
 
 The plainti:K complains, and alleges : 
 
 I. That on the day of , 18.., at , the 
 
 defendant was the owner, and had possession and cowtrol of a 
 certain building and premises [describe them] , with the appur- 
 tenances thereto belonging, which building was then occupied 
 by him as [designate the uses of a building, if a public resort]. 
 
 II. That said building was negligently and carelessly built, 
 inasmuch as there was in the public hall in the third story of 
 the same, at the time of its erection and leasing by the defend- 
 ant, as well as at the time hereinbefore mentioned, an unguarded 
 hatchway, opening into the second story. 
 
 III. That the defendant, well knowing the premises, and while 
 the owner and occupant [or while the occupant] of said build- 
 ing, did on the day and year aforesaid, negligently leave the 
 same open and unprotected, by means whereof the plaintiff, who 
 was then lawfully in said building, and in pursuit of his business 
 [or otherwise show for what purpose, and by what right, the 
 plaintiff was there], then and there necessarily and carefully 
 passing along said hall, fell through said hatchway. 
 
 IV. That in consequence thereof the plaintiff was greatly 
 injured, and became sick and lame, and so remained for a long 
 
 time [or so still remains], and was during the space of , 
 
 prevented from attending to his business as , and was 
 
 compelled to expend dollars for medical attendance 
 
§ 1870. PERSONAL INJURY CAUSED BY NEGLIGENCE. -679 
 
 [or otherwise state injuries to plaintiff], to his damage 
 
 dollars. 
 
 [Demand of Judgment.] 
 
 § ises. For Injuries Caused by Vicious Dog. 
 
 Form No. 466. 
 [Title.] 
 
 The plaintiff complains, and alleges: 
 
 I. That on the day of , 18..., at , the 
 
 defendant was the keeper [or owner] of a certain vicious dog, 
 which was accustomed to bite mankind. 
 
 II. That the said defendant, well knowing the premises, did 
 wrongfully and injuriously keep and harbor the said vicious dog, 
 and wrongfully and negligently suffered such dog to go at large, 
 without being properly guarded or confined. 
 
 III. That while so kept as aforesaid, the said dog did bite 
 and greatly wound this plaintiff [state the particulars] , whereby 
 this plaintiff became sick and sore and lame, and so continued 
 for the space of [six months] thence next following; and was 
 
 obliged to pay, and did expend dollars for medical 
 
 attendance consequent thereon, and was prevented during all 
 said months of sickness from attending to his lawful affairs, to 
 his damage dollars. 
 
 [Demand of Judgment.] 
 
 § 1869. Averments Essential. — The averment that he was 
 of a mischievous or ferocious nature is simply an averment that 
 the dog would bite men, that he was accustomed to bite, and 
 this is best evidenced by the fact that he did bite plaintiff. 
 There are three necessary averments : 1. That the dog would bite 
 mankind ; 2. That the owner or keeper knew it ; and, 3. That he 
 did bite plaintiff. When all this is proved, it matters not how 
 carefully the dog was kept ; the owner or keeper has no right to 
 keep such a dog at all.^ Chitty advises counts averring that the 
 dog was of a ferocious and mischievous nature, and also for not 
 keeping the dog properly secured or fed, as the facts may be.^ 
 
 § 1870. Mischievous Animals. — The gist of an action 
 for keeping a mischievous animal, at common law, is the keep- 
 ing of the animal after knowledge of its mischievous propensi- 
 tie°s. And a declaration is sufficient which alleges the ferocity 
 of the animal, and the knowledge of the defendant, without any 
 negligence or want of care.^ 
 
 1 M'fJftakill V. Elliot, 5 Strobh. 196 ; » 2 Chit. PI. 597. 
 
 butfhe cases o'f Jones V. Perry, 2 Esp. » Popple^ell v. Pierce, 10 Cush. 509, 
 
 482, and Cockerham v. Nixon, 11 Ired. and oases there cited. 
 269,' seem to make a distinction. 
 
680 POBMS OF COMPLAINTS. §1871. 
 
 § 1871. Ownership. — It is not necessary, in an action for 
 damages sustained by the bite of a dog, for the plaintiff to 
 prove that the defendant owned the dog. It is suflScient on 
 this point for the plaintiff to prove that the defendant kept the 
 dog.i 
 
 § 1872. Scienter. — The scienter must be alleged and proved.^ 
 
 § 1873. Vicious Horse. — Defendant negligently let his 
 horse go loose and unattended in the street of a city, where the 
 horse kicked the plaintiff; it was held that defendant was liable, 
 without proof that the horse was vicious. ^ 
 
 § 1874. Against Physician for Maltreatment. 
 
 form No. 4S7. 
 [Title.] ' 
 
 The plaintiff complains, and alleges : 
 
 I. That the defendant is, and since the day of 
 
 , 18..., has been a physician, and that the plaintiff, at 
 
 , in the month of , 18..., employed the de- 
 fendant as such, to cure him of a malady from which he then 
 suffered, for compensation to be paid therefor, and for that 
 purpose the defendant undertook, as a physician, to attend and 
 cure the plaintiff. 
 
 II. That the defendant entered upon such employment, but 
 did not use due and proper care or skiU in endeavoring to cure 
 the plaintiff of the said malady, in this : the defendant did not 
 [here state what defendant failed to, do that he should have 
 done, or what he did that he should not have done]. 
 
 III. That by reason of the several premises, the plaintiff was 
 injured in his health and constitution, suffered great pain, was 
 weakened in body, and was obliged to and did expend the sum 
 of dollars, in endeavoring to be cured of the said sick- 
 ness, which was prolonged and increased by the said unskillful 
 and improper conduct of the defendant, to the damage of the 
 plaintiff dollars. 
 
 [Demand or Judgment.] 
 § 1875. Implied Promise.— The employment of a physician 
 in this country raises an implied promise to pay for his services. 
 The plaintiff in an action for malpractice may allege that de- 
 fendant was a physician, and as such was called on by the 
 plaintiff, and undertook as such to administer medicines, etc. 
 
 » Wilkinson v. Parrott, 32 Cal. 102 ; Judge v. Cox, 1 Starkie, 285 ; Black- 
 
 andsee Ficken v. Jones, 28 Cal. 618. man v. Simmons, 8 C. & P, 138; 
 
 MM. & S. 238; Smith v. Pelah, Marsh v. Jones, 21 Vt. 378; Van 
 
 2 Strange, 1264 ; Vrooman v. Lawyer, Leuven v. Lyke, 1 Comst. (N. Y.) 515. 
 
 13 Johns. 339; Jones v. Perry, 2 Esp. » Dickson v. McCoy, 39 N. Y. 400; 
 
 482; Beck v. Dyson, 4 Camp, 198; see also Norris v. Kohler, 41 Id. 42. 
 
§ 1877. VIOLATION OF PERSONAL EIGHTS. 681 
 
 This is sufficient to raise a duty of skill and care on his part.* 
 Evidence of reputed skill is held to be material. ^ 
 § 1876. Against Surgeon, for Malpractice. 
 
 Form No. 468. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That on the day , 18.., the plaintiff by 
 
 accident broke his leg. 
 
 II. That he then employed the defendant, who is a surgeon, 
 as such surgeon, for reasonable reward to be paid therefor, to 
 set and heal the same. 
 
 III. That the defendant so negligently and unskillfuUy con- 
 ducted himself, in attempting to set said leg of the plaintiff, that 
 [here state the consequences, as, inflammation ensued, and the 
 plaintiff was compelled to have his leg amputated]. 
 
 IV. That by reason of said negligence and unskillfulness the 
 
 plaintiff was made sick, and was kept months from 
 
 attending to his business as [engineer] , and was compelled to pay 
 and did pay dollars expense for nursing, and is per- 
 manently a cripple; to his damage dollars. 
 
 [Demand oi' JusaMSNi.] 
 
 CHAPTER VI. 
 
 VIOLATION OF PEBSONAL EIGHTS. 
 
 § 1877. Against Officers of an Election, for Refusing 
 Plaintiff's Vote, 
 
 Form JVo. 469. 
 [Title.] 
 The plaintiff complains, and alleges : 
 
 I. That the defendants were the inspectors and judges of an 
 election duly held at , in and for the pre- 
 cinct, in the city of , on the day of , 
 
 18.. for the purpose of electing [state what officers], and being 
 duly appointed and qualified as such inspectors and judges, the 
 defendants had the polls open for said election at No 
 
 street [or at the school-house] in said town [or city] be- 
 tween the hours of and on the day aforesaid. 
 
 II. That the plaintiff then was, and for the space of 
 
 months had been a citizen of the state of , and then 
 
 was, and for the space of days had been, a resident 
 
 1 Peck V. Martin, 17 Ind. 115. » Carpenter v. Blake, 50 N. Y. 698. 
 
682 FOEMS OF COMPLAINTS. § 1878. 
 
 in said town [or ward, or otherwise, according to the statute], 
 and was a legal elector at said election [or that the plaintiff 
 was registered in the grand register of the city and county of 
 
 , and was enrolled on the poll lists of the said 
 
 precinct]. 
 
 III. That as such elector, the plaintiff, while the polls were 
 so open, duly offered to the defendants his vote or ballot for 
 the election of [insert what officers he offered to vote for, as 
 sheriff, etc.], in and for said town, and requested them to re- 
 ceived the same. 
 
 IV. That the defendants, not regarding their duty, wrong- 
 fully refused to receive or deposit the same, although they and 
 each of them then well knew he was a qualified voter, whereby 
 
 he was deprived of his vote at said election, to his damage 
 
 dollars, 
 
 [DlMAlTD OF JUDOMBNT.] 
 
 § 1878. Facts must be Alleged. — In an action for refus- 
 ing plaintiff 'a vote, the particular facts upon which plaintiff 'a 
 right to vote depends, must be alleged.^ 
 
 § 1879. Malice. — The averment of malice is unnecessary.^ 
 
 § 1880. For Criminal Conversation. 
 
 Form No. 470. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That A. B. is, and at the times hereinafter mentioned was, 
 the wife of the plaintiff. 
 
 II. That on or about the day of , 18... [the day 
 
 or about the day the first act of adultery can be proved] , and on 
 other days after that day, defendant, wrongfully contriving and 
 intending to injure the plaintiff, and to deprive him of the com- 
 fort, society, aid, and assistance of his wife [forcibly and with- 
 out the consent of the said A. B.], wickedly, willfully, and 
 maliciously debauched and carnally knew the said A. B. , with- 
 out the privity or consent of the plaintiff. 
 
 III. That by means of the premises, the affection which the 
 said A. B. therefore had for the plaintiff was alienated and 
 destroyed, and the plaintiff was deprived of the comfort, society, 
 aid, and assistance which he otherwise would have had from 
 the said A. B., and has suffered great distress of body and mind, 
 to his great damage dollars. 
 
 [Demand ot Judombnt.] 
 
 1 Curry V. Oabliss, 37 Mo. 830. v. Hapgood, 11 Mass 350; Cnppn v. 
 
 » Jeffries V. Ankeny, 11 Ohio, 872; Foster, 12 Pick. 485 ; Osgood v. IJiaJ- 
 Thacker v. Hawk, Id. 876; Lincoln ley, 7 ttreenl. 411. 
 
§ 1886. VIOLATION OF PERSONAL EIGHTS. 683 
 
 § 1881. Character of Action.— An action by the husband, 
 for crim. con., is an action for injury to the person.^ 
 
 § 1882. Contriving and Intending.— The intention is ma- 
 terial. * 
 
 § 1883. Marriage. — In an action for criminal conversation, 
 the plaintiff must prove an actual marriage. 3 
 
 § 188i. For Enticing Away Plaintiff's Wife. 
 
 Form No. 471. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That A. B. is, and at the times hereinafter mentioned was, 
 the wife of the plaintiff. 
 
 II. That on or about the day of , 18.., while the 
 
 plaintiff was living and cohabiting with and supporting her, 
 
 at , and while they were living together happily as 
 
 man and wife, the defendant, wrongfully contriving and in- 
 tending to injure the plaintiff, and to deprive him of her com- 
 fort, society, and assistance, maUciously enticed her away from 
 
 the plaintiff's and her then residence in , to a separate 
 
 residence in , and has ever since there detained and 
 
 harbored her, against the consent of the plaintiff. 
 
 III. That by reason of the premises the plaintiff has been 
 and still is wrongfully deprived by the defendant of the com- 
 fort, society, and aid of his said wife, and has suffered great 
 distress of body and mind in consequence thereof, to his dam- 
 age dollars. 
 
 [Demand op JtrDGMBirr.]* 
 
 § 1885. Allegation that Defendant Knew. — ^In an action 
 for debauching a wife or servant, it is not necessary to allege or 
 prove that the defendant knew that the female was the wife or 
 servant of the plaintiff ; though in an action for seducing away 
 or harboring a wife or servant, such allegation and evidence 
 are necessary. ^ 
 
 § 1886. Debauching a Daughter. 
 
 Firrm No. i7S. 
 [Title.] 
 The plaintiff complains, and alleges: 
 
 11 Chitty PI. 137; 2 Id. 265; 2 * For a form nearly similar, see 
 
 TTont T^q- 3 Black. Com. 138; Dela- Scherpf v. Szadeczky, 1 Abb. Pr. 366. 
 
 mater v. Bussell. 4 How. Pr. 234 ; S. ^ Fores v. Wilson, Peake N. P. C. 
 
 ™*2 CodrR. 147. ■ 55; Peake's Law of Evidence, 134; 
 
 2 Hutcheson v. Peck, 5 Johns. 196. Winsmore v. Greenback, Willes, 577 ; 
 
 ' Morris v. Miller, 4 Burr. 2057 ; see 2 Chitty on Pleading, 642, note e ; 
 
 Pete's Law Ev. 300 ; Phil, on Ev., see Hermance v. James, 32 How. Pr. 
 
 7th ed., 206 ; Selw. N. P. 14, 16 ; see 142. 
 also 2 Chit. PI. 643, note £ 
 
684 FOKM.S OP COMPLAINTS. § 1887. 
 
 I. That said defendant, unjustly intending to injure said 
 plaintiff, and to deprive him of the services and assistance of 
 
 the daughter and servant of said plaintiff, did, on the ..... 
 
 day of , 18.., and on divers other days between that 
 
 day and the commencement of this action, debauch and carnally 
 
 know the said , then and there, before and since, 
 
 the daughter and servant of said plaintiff, whereby the said 
 
 became pregnantand sick with child, and so remained 
 
 for a long space of time, to wit, for the space of nine months, 
 thence next following ; at the expiration whereof the said 
 was delivered of the child with which she was preg- 
 nant, as aforesaid. 
 
 II. That by means of the premises, the said , for 
 
 a long space of time, to wit [one year] was unable to do the 
 needful business of the said plaintiff, he, the said plaintiff, so 
 
 beingthe father and master of the said , and the said 
 
 plaintiff lost the services of the said during all that 
 
 time ; and the said plaintiff was put to great expense, and did 
 
 pay out a large sum, to wit, the sum of dollars, in and 
 
 about the nursing and taking care of the said , his 
 
 daughter and servant, and in and about the delivery of said child, 
 to his damage in the sum of dollars. 
 
 [DbmaiJd OB' Judgment.] 
 
 § 1887. Connivance. — The connivance of the father in the 
 act of seduction will wholly bar his action, but where the defense 
 is omitted to be pleaded, it will be waived.' 
 
 § 1888. Daughter Temporarily Absent.— This action is 
 maintainable, though the daughter be temporarily absent at the 
 time of seduction.^ 
 
 § 1889. Debauching and Beating a Daughter. — ^A pa- 
 rent, in that character merely, can not support an action for de- 
 bauching or beating his daughter, which is only sustainable in 
 respect to the supposed loss of service, some slight evidence of 
 which must in general be adduced." 
 
 § 1890. Distress of Body and Mind.— The fact that the 
 plaintiff has suffered great distress of body and nftnd is a good 
 ground of damages.* 
 
 § 1891. Father, Action by. — A father may maintain an 
 action for the seduction of his daughter, under twenty-one years 
 of age, although she was not living with him at the time, if he 
 
 » Travis v. Barger, 24 Barb. 614. PI. 643, note 9 ; White v. Nellis, 31 
 
 2 Lipe V. Eisenlerd, 32 N. Y. 229; N. Y. 405. 
 
 see Gal. Code Civil Proc, sec. 375. * Dain v. Wycoff, 7N. Y. 191. 
 
 3 5 East, 45 ; 5 T. B. 360 ; see 2 Chit. 
 
§ 1897. VIOLATION OF PERSONAL EIGHTS. 685 
 
 has not by his own act destroyed his right to control her serv- 
 ices.i So for that of a daughter over twenty-one, and not Uv- 
 ing with him, if he thereby loses actual services due to him ; 
 and services rendered will be presumed to be due if he continues 
 to exercise authority over her, and she to submit.* 
 
 §• 1892. Female Seduced can not Maintain Action.— At 
 common law the female seduced can not maintain an action for 
 her own seduction.^ But by section 374, California code civil 
 ■procedure, an unmarried female may maintain the action.'' 
 Under a similar statute in Indiana it was held that the com- 
 plaint must allege that the plaintiff was unmarried. ^ A seduc- 
 tion, where it exists, is frequently alleged in a suit for breach 
 of promise of marriage in aggravation of damages, but not as a 
 separate cause of action. It is doubtful if breach of promise 
 of marriage and seduction could be joined as distinct causes of 
 action even under a statute authorizing the female to sue for 
 seduction, as the one arises from contract, and the other from 
 tort. 
 
 § 1893. Fall Age. — ^A father may maintain an action for 
 Reduction of his daughter who resides with hinl, and performs 
 domestic services in return for (support, notwithstanding she is 
 of full age and that no express agreement exists for services.* 
 
 § 1894. Gist of Action. — The loss of service is the gist of 
 the action, and the master can alone sustain the action. If the 
 daiio-hter is not living with her father, he can not sue for seduc- 
 tion.' 
 
 § 1895. Minor. — As regards a minor, it seems that one 
 standing in loco "parentis has a right to maintain an action for 
 
 seduction.^ 
 
 § 1896. Mother, Action by.— Under statutory provision, 
 such action may be maintained by a mother keeping a boarding- 
 house on her separate account, though the father be living at 
 the time, if the father has abandoned his family.9 
 
 S 1897 Nature of Action. — ^The action is not maintainable 
 
 1 Greenwood v. Greenwood, 28 Md. I'^'^J^^'.^^Cow. 412;Lipe y. Eisenlerd 
 
 ^^^Sutton V. Huffman, 3 Vroom, 58; "' Briggs v- Evans. 5 Ired. 16; Hewit 
 
 °""S,-„:' ,„,j qa K T 229. V. Prime, 21 Wend. 79 ; Martin v. 
 
 H^CT^ -iflnl T'nmax^'26Barb.615; Payne, 9 Johns. 387 ; Applegate v. 
 
 ^TaIk VrU2 K"ble, 2 A. K. Marsh. 128 ; (JiUet v. 
 
 ''•.^See tnU, sec^S* \ see also Koenig Mead^7^ Wend. 193 ; Clark v. Fitch, 
 
 '■^^^p^^^^' " i"^- '''■' (4:)!Cj;v.^»iB\ST7k^« 
 
 '"! o^t'^K 16b • ir4 ; Irwin v. Dear- ^ '^Badgley v. Decker. 44 Barb. 577; 
 1 i Wnot 23 • Manvell v. Thorn- see also ante, sec. 157, and sec. 376. 
 Bon"'2 Can & P. 303; Moran v. Gal. Code U. P. 
 
686 FORMS OF COMPLAINTS. § 1898. 
 
 by a parent, as such, but as a master entitled to services of 
 child.i 
 
 § 1898. Step-father. — A step-father can not sue for the 
 
 seduction of his step-daughter while living in the service of 
 another ^ 
 
 § 1899. For Seduction of Plaintiff's Daughter or Ser- 
 vant. 
 
 Form No, 473, 
 [Title,] 
 The plaintiff complains, and alleges: 
 
 I. That at the time hereinafter mentioned, one A. B. was the 
 servant [and daughter] of the plaintiff. 
 
 II. That on the day of , 18. ., at , the 
 
 defendant, well knowing the said A. B. to • be the servant [and 
 daughter] of the plaintiff, and wrongfully contriving and intend- 
 ing to injure the plaintiff, and to deprive him of her assistance 
 and service, did wickedly and maliciously, and without the 
 privity or consent of the plaintiff [forcibly and against the will 
 of the said A. B., abduct her, oi- entice and persuade the said 
 A. B. to leave the residence and service of this plaintiff, and 
 did] then and there debauch and carnally know her. 
 
 III. That by reason of the premises the said A. B. became 
 pregnant and sick with child, and so remained for the space of 
 
 months; that during that time she was unable to attend to 
 
 the duties of her service, and the plaintiff was thereby deprived 
 of her service, and was obliged to, and actually did, expend 
 
 dollars in nursing and taking care of her in her said 
 
 pregnancy and sickness, and was otherwise greatly injured, to 
 
 his damage ^. dollars. ^ 
 
 [Demand or Judgment.] 
 
 § 1900. For Seduction, by Female Seduced. 
 
 Form No. 474. 
 [Title.] 
 
 The plaintiff complains, and alleges : 
 
 I. That at the time of the commission of the grievances here- 
 inafter mentioned, the plaintiff was and still is an unmarried 
 woman, and all times prior thereto had been chaste and vir- 
 tuous. 
 
 II. That on the day of , 18...., at the 
 
 defendant, with force and violence, made an indecent assault 
 upon the plaintiff and then and there wickedly seduced, de- 
 
 » White V, Nellis, 81 N. T. 405. 
 
 2 Bartley v. Richlmeyer, 4 Oomst. 38 ; Bracy v. Kihbe, CI Barb. 273, 
 
 * This is from Abbott's Forms. 
 
§ 1901. VIOLATION OF PERSONAL EIGHTS. 687 
 
 debauched and carnally knew her, whereby she became sick and 
 pregnant with child, and so remained for a long space of time, 
 to wit, for the space of nine months ; at the expiration of 
 
 which time, and on the day of , 18..., she 
 
 was delivered of the child of which she was so pregnant. 
 
 III. That by reason of the premises, and in consequence of 
 the seduction aforesaid, the plaintiff has suffered greatly in 
 her health, and became sick, and was prevented for a long 
 
 space of time, to wit, for the space of months, from 
 
 attending to her ordinary business and affairs, and was greatly 
 afflicted in body and mind, and has been put to great expense 
 for medical attendance and nursing, and has been otherwise 
 
 greatly injured, to her damage dollars. 
 
 [Demaud op Jddoment.] 
 
 § 1901. Statute of Limitations.— The statute of limita- 
 tions does not commence to run against the right of action for 
 the seduction of a minor until she attains her majority.^ 
 
 1 Morrell v. Morgan, 8 "West Coast Kep. 683.