(SnrnpU ICaui ^rJjnnl Slibraty Cornell University Library KF 8840.E79 1879 V.I Estee's Pleadings, practice and forms :i 3 1924 022 239 358 Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022239358 ESTEE'S PLEADiNas, Practice AND Forms, IN ACTIONS BOTH LEGAL AND EQUITABLE UNDER CODES OF CIYIL PROCEDURE. JOEMS IN ACTIONS; IN SPECIAL PROCEEDINGS; IN PEOTISIONAL REME- DIES; AND OF AEPIDAVITS, NOTICES, ETC., ETC. By MOEEIS M. ESTEE, COUNSELOB AT IJi,-Wt— — SECOND EDITION. REVISED AND ADAPTED TO THE LATEST STATUTES AND DECISIONS, By JOHN HAYNES, C0TIN8EL0B AT LAW, IN THREE VOLUMES. Vol. I. SAN FRANCISCO: A. L. BANCROFT AND COMPANY, Law Book Publishebs, Booeseli.ei{s and Stationerb. 1878. Entered according to Act of Congress, in the year 1878, By a. L. BANCROFT & CO., In tlie Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year of our Lord one thousand eight hundred and sixty-nine, by MOEBIS M. ESTEE, In the Clerfe's Office of the District Court of the United States, for the District of California. PREFACE TO SECOND EDITION. MBBRH!5? KING. 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 apparent without reference to its popularity, prohibited any change in its plan in this reyision. Considerable new matter has been introduced, especially in those parts relating to parties, and to pleadings in gen- eral; while new notes and new citations of authorities have been added throughout the work wherever it seemed neces- sary or desirable. The original citations have also been carefully examined, and the errors incident to a new work, corrected. It is im- practicable, in a work of this character, to give a statement of the point decided 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 33 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 with- out giving the name of the State, the codes of California are intended. . While the code of each State, having one, differs in many particulars from that of every other, yet it will be found that all are based upon common principles, and practitioners in IV PREFACE TO SECOND EDITION. other States will readily adapt this work to the peculiarities of their own code; and in States not having a code, the pro- fession will find it of 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 freedom 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. J. H. San Francisco, July, 1, 1878. PREFACE. In the preparation of this work my object has been to present to the profession the chief requisites of good pleading, with forms adapted to the modern practice, ac- companied by numerous authorities sustaining them. With this object 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 prosecution or defense of the same; giving as far as possible within the scope of this work, the law relative to the plead- ings and practice, with the forms necessary for use, to the final disposition of the cause. Although the forms given are specially adapted to the practice in California, Nevada, and Oregon, and the terri- tories 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 alphabeti- cally, 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 England, have been consulted, and brief ex- tracts 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 commence- ment 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 assistance at each stage of the proceedings. VI PEEPACE. The forms have been carefully prepared, and in general will be found correct. Many of them have been tested by the 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. B. CONTENTS. Volume I. PART FIRST. GENilEAL PRINCIPLES, CHAPTEE I. EBMEDIES. PAGE Actions 17 Special proceedings 18 Provisional remedies 21 CHAPTEE II. JURISDICTION. In general 22 At chambers 23 Concurrent jurisdiction 23 Of state courts 25 Constitutional jurisdiction of state courts 26 Supreme court ; 28 Jurisdiction appellate 4 28 Amount in controversey 29 Its original jurisdiction 30 t)istrict courts 31 County courts 35 Terms of court 36 Term of office 37 Probate courts 38 Jurisdiction not exclusive 40 Justices' courts , 40 CHAPTEE III. PLACE OF TEIAii. Where subject matter is situated 42 Where cause of action arose 44 Where parties reside 44 Vm CONTENTS. CHAPTER IV. PARTIES. PAGR In general 46 Cause of action 47 Parties plaintiflf 48 Beal party in interest 48 Common interest 55 Tenants in common, etc 56, 68 Special statutory cases 56 Executors and administrators, 56 Trustees of express trusts 59 Undertakings 62 United States 62 Married women 62 "Wife living separate 64 Infants 65 Seduction 65 For death or injury of minor child 67 Foreclosure ; 71 Forfeiture and penalty , 71 Injury to real property 72 Injury to personal property 72 Partners 73 Policy of insurance 74 Legacy 74 Principal 74 Agent 75 Promissory notes 75 Quo warranto 76 Sheriff 76 State 76 Sureties 77 Assignee 77 Assignment subject to equities 80 What may be assigned 80 Causes of action assigned 81 Choses in action " 84. Claims " '. jjg Creditors' claims " 86 Debts " gg Judgments " 89 Property " 9O Securities " 9 j Parties defendant g2 Annuling patent to .land g2 Assessors 93 Covenants gjj Ejectment gg Executors and administrators 94 CONTENTS. IX Parties Defendants-Continued. page Foreclosure 95 Fraud gg Husband and wife 98 Infant Iqj Infringement of patent. 101 Injunction 101 Injuries caused by negligence 101 Legacy 102 Partners 102 Principal and agent 103 Tenants in common 103 Trespass 103 Trustees lOi Dififerent parties in one action 105 Parties in actions for torts 107 Plaintiffs 107 Husband and wife '. 107 Parent and child 108 Guardian and ward 109 PART SECOND. ANALYSIS OF PLEADINGS. CHAPTER I. OF PLEADINGS IN GENERAL. Definitions 110 Of what pleadings consist , 114 Distinction between pleadings and the action 115 Facts only must be stated 115 Conclusions of law 117 Defendant's pretenses, or facts anticipating a defense 120 Facts independent of the cause of action 121 Implications and presumptions of law 121 Material averments 122 Essential facts only are material 123 Immaterial, irrelevant and redundant matter 124 Facts constituting the cause of action or defense only must be stated. . . 126 What should be omitted 128 Mode of stating facts 129 Logical order of averments 129 By direct averment 131 In ordinary and concise language 132 With sufficient certainty •. 133 Pleadings, how construed 134 Implications and presumptions from facts stated 135 Implied admissions . 138 X CONTENTS. Pleadings— Continued. ^agb What a demurrer admits 138 What a want of verification admits • • ■ 139 Effect of admissions ., 14^0 Variance or defects 140 Between pleadings and proof 141 CHAPTEE II. FORMAL PABTS OT PLEADINGS. Of complaint 144 FOBM No. 1. Title of cause 144 2. Where some of the parties are unknown 146 3. By and against corporations 147 i. By an officer 147 5. Title and commencement 148 6. One suing for himself and others. , 148 7. Conclusion of complaint , 148 8. Complaint complete 148 9. Clerk's certificate to copy of complaint 149 10. Amended complaint — Commencement 149 Defendant's pleadings 149 11. Demurrer — Commencement , 149 12. Answer 150 13. Commencement — Defendant sUed by a wrong name 151 14. By an infant 151 15. By an insane person < 151 16. By husband and wife , 152 17. Separate answer of defendant 152 Of petitions 152 18. To the court 152 19. To a judge 152 Papers used in court proceedings 152 20. Caption of papers used in probate courts 153 21. Of papers used in other courts 153 22. Order of court in an action 153 23. Affidavits, c.nption, commencement and conclusion of 153 24. Certificate of clerk to affidavit , 155 25. Jurat, where deponent is blind or illiterate 156 26. Where deponent is a foreigner , 156 CHAPTEE III. YEBIFICATION OF PLEADINGS. In general 156 27. Verification by sole plaintiff or sole defendant , 159 28. On information or [and] belief 159 29. By one of several plaintiffs or defendants . 160 80. By two parties severally 160 31. By officer of corporation 161 By attorney or agent 161 82. Where the facts are within his personal knowledge 162 CONTENTS. XI Poem: page No. 33. Party absent from the county 162 34. Absent plaintiff a corporation 163 35. Verification of petition 164 PART THIRD. PLEADINGS OF PLAINTIFF, CHAPTEE I. COMPLAINTS IN GENEKAL. First subdivision of complaint 165 ■ Character and capacity averred 165 Second subdivision — Statement of cause of action 167 What facts are to be stated 168 Causes of action united 171 Causes which cannot be united 172 Splitting demands 176 Actions for debt 177 For breach of contract 179 Contract should be clearly shown 179 Promise alleged 182 Consideration 1S3 Performance of conditions 185 Non-performance 187 Concurrent acts 188 Breach must be clearly apparent 190 Special damages averred 191 For injuries resulting from negligence 192 Judgments, how pleaded 194 Statutes, how pleaded 195 Foreign statutes 198 Statute of limitations 198 Third subdivision — Demand for relief 199 FOEMS OF COMPLAINTS.— Subdivision Fiest. Complaints by and Against Paetioulak Pehsons, iNDiviDUALiiT, and in Eepbesentativb Chakagtbe and Oppioial Capacity. CHAPTEE I. COMPLAINTS BY ASSIGNEES AND DEVISEES. FoEM No. 36. By the assignee of a claim 203 37. Where plaintiff is a trustee 206 38. Where plaintiff is a devisee 207 39. By assignees for the benefit of creditors 208 xii CONTENTS. CHAPTEE II. COMPLAINTS BY TENANTS IN COMMON. FOBM P^™ No. 40. By tenants in common ^"^ CHAPTEE III. COMPLAINTS BY AND AGAINST COEPORATIONS. 41. By a foreign corporation 210 42. By or against a domestic corporation 212 43. Against corporation formed under act relative to roads and highways 216 44. By corporation— On stock assessment 216 45. On stock suhscription 217 46. On subscription to expense of a public object 219 47. Against a municipal corporation 220 48 . By a county 222 49. Against trustees of a dissolved corporation for an accounting. . . 223 50. Against director of insurance company, for unlawful acts 225 51. Against directors of a corporation as individuals, for unlawfully declaring dividends, etc., under sec. 309, Gal. Code, 0. P.. . 226 52. Individual creditor against individual stockholder 228 53. The same, shorter form 233 CHAPTEE IV. COMPLAINTS BY AND AGAINST EXECUTOES, ADMINlSTBATOHS, AND TKUSTEES. Ko. 54. By an executor 234 55. By an administrator 236 56. Commencement by one suing in his own right 239 57. Against an administrator 239 CHAPTEE V. COMPLAINTS BY AND AGAINST HUSBAND AND WIFE. 68. Against husband, for necessaries furnished family 242 59. Against husband and wife, for goods sold for her separate estate 243 CO. Against husband and wife, for goods sold to the wife for her separate estate 244 61. Against husband and wife, on note by wife while sole 246 62. By a married woman 247 63. Against a married woman as sole trader , 249 64. On contract generally 25U CHAPTEE VI. COMPLAINT BY AN INFANT. 65. By an infant 250 CONTENTS. xm CHAPTER VII. COMPLAINTS BY AND AGAINST INSANE PEESONS. FOEM PAGE No. 66. By giiurdian of an insane person 253 67. Against the same 254 CHAPTEE VIII. COMPLAINTS BY AND AGAINST PAETNEES. 68 . Title and commencement of complaint by partners 255 69. Against partners — Averring partnership 258 70. By a surviving partner , 258 CHAPTER IX. COMPLAINTS BY AND AGAINST PUBLIC OPFICEES. 71. By or against public officers 260 72. By sheriff suing in aid of attachment 261 73. Against sheriff for not executing process 261 74. For neglecting to return executions 263 75. For neglecting to pay over moneys 265 76. For false return 267 77. For seizing a vessel 268 78. For an escape 269' CHAPTER X. COMPLAINTS BY EECEIVEES. 79. By a receiver appointed pending litigation 272 80. The same — Appointed in supplementary proceedings 276 81. The same — Setting out proceedings at length 277 82. By receiver of dissolved corporation 279 83. By receiver of insurance company, on premium note 279 FORMS. OP COMPLAINTS.— Subdivision Second. In Actions fob Debt. CHAPTER I. COMPLAINTS ON ACCOUNTS. 84. For money due on an account 282 85. By an assignee 284 86. On an account stated 285 87. For a general balance of account 287 88. Upon an account for services 288 89. By an architect 288 90. By broker, for commissions 288 xiv CONTENTS. FoEM Aeoouut for Services — Continued. paoe No. 91. By carrier, against consignor, for freight 289 92. Against consignee 289 93. By editor, for services 290 94. For editing and compiling a worlj 290 95. For services and materials furnished 291 96. For tuition bills 291 CHAPTEE II. COMPLAINTS ON AWAEDS. 97. On an award of arbitrators — Common form 292 98. On an award of an umpire 296 CHAPTEE III. COMPLAINTS ON EXPEESS PEOMISES. 99. On an express promise in consideration of a precedent debt. . . 297 100. Upon compromise of action 298 101. On promise of third person to ^ay money to plaintiff 299 102 . On a promise to pay for the surrender of a lease 300 103. For the purchase-money of lands conveyed 301 CHAPTEE IV. COMPLAINTS FOB GOODS SOLD AND DELIVEEED. 104. Common form — On account 303 105. The same— Short form , 304 106. For goods sold and dflivered, at a fixed price 305 107. At a reasonable price 306 108. On specified price and credit 306 109. By assignee, for stock, fixtures and good will 307 110. By firm with dormant partner — Price being agreed on. ..... 307 111. For goods delivered to a third party — Price fixed 308 112. For goods sold but not delivered — Price fixed 309 CHAPTEE V. COMPLAINT ON GUARANTIES. 113. Against principal and sureties, on contract for work 309 114. On an agreement to bo answerable for the price of goods sold. 312 115. Against guarantor of mortgage, for deficiency after foreclosure. 313 116. On a guaranty of precedent debt 31G 117. Against sureties for payment of rent 31g CHAPTEE VI. COMPLAINTS ON INSUEANCE. 118. On fire policy — By the insured gjg 119. Where plaintiff purchased the property after insurance 321 CONTENTS. XV FoKM Fire Policy — Continued. page No. 120. Another form 321 121. On agreement to insure — Policy not deliYered 322 122. On life policy — ^By executor 32i 123. By a wife, partner or creditor of insured 325 124. By assignee in trust for -wife of insured 326 125. Accidental insurance — Insured against insurer 327 126. Marine insurance — On an open policy 328 127. On cargo lost by fire — Valued policy. 330 128. On freight-Valued policy 332 129. Por a partial loss and contribution 333 OHAPTEE VII. COMPLAINTS ON JUDGMENTS. 130. Generalform 334 131. By leave of court 337 132. By an assignee 337 133. On a foreign judgment of a court of general jurisdiction 338 134. Of an inferior tribunal , 340 CHAPTER VIII. COMPLAINTS ON LIABILITIES OEEATED BY STATUTE. 135. Penalties under the stature — General form 341 136. For selling liquor without a license 346 137. Against a witness for disobeying subpcena 347 138. For violation of ordinance of board of supervisors , . 348 CHAPTER IX. COMPLAINTS POE MONET HAD AND EECEITED TO PLAINTIFP'S USE. 139. Common form ^^^ 140. Against attorney or agent, with demand 351 141. The same— Another form 353 142. For money received by defendant through mistake 354 143. For price of goods sold by a factor , 354 144. Against factor, for price of goods sold on credit 356 145. Against broker, for proceeds of note discounted.- 356 CHAPTER X. COMPLAINTS FOK MONEY LENT. 146. Lender against borrower ^^'^ 147. The same— No time for payment agreed on 359 148. By assignee of lender, against borrower 359 149. Partners, lenders, against partners, borrowers 360 SVl CONTENTS. CHAPTER XI. COMPLAINTS FOR MONET LENT. FOEM PAGE No. 150. For money paid to a third party at defendant's request 361 151. By one having paid the debt of another, to be repaid on demand 362 152. To be repaid on a specified day 362 153. For repayment of money on a reversed judgment 363 154. By broker, for money advanced on account of his principal. . . 364 155. For repayment of deposit on purchase of real estate 365 156. To recover back a wager 367 157. By landlord, against tenant, for repayment of tax 368 158. Against carrier, to recover money paid in excess for freight ... 369 159. To recover back freight on failure of carriage 370 160. By surety, against principal 371 161. For repayment of advances on services 372 CHAPTEE XII. COMPLAINTS EOE SERVICES, WORK AND LABOR. 162. For services, at a fixed price 373 163. At a reasonable price 375 164. By carriers, for freight 376 165. For passage money 376 166. By parent, for services of minor son 377 167. For services and materials at a fixed price 377 168. By an attorney for services and disbursements 378 ] 69. For services and materials at a reasonable price 379 170. By advertising agent, for services and disbursements 379 171. By publisher and proprietor, for advertising 380 172. For stabling horses 380 173. Special contract completely fulfilled 381 174. The same — Contract fulfilled by an assignee 381 CHAPTER XIII. COMPLAINTS FOR USE AND OCCUPATION. 175. On an express contract 3g2 170 . For rent reserved in a lease 333 177. For deficiency after a re-entry 334 178. Against assignee of lessee 334 179 . Grantee of reversion against lessee 38g 180. Assignee of devisee against assignee of lessee 387 181. For use and occupation of pasture 388 182. On an implied contract _ 330 183. For lodging and board ggQ 184. For the hire of personal property 3qq 185. Of piano forte go-. 186. Of furniture 30, CONTENTS. svii CHAPTER XIV. COMPLAINTS FOE SEVERAL CAUSES OP ACTION UNITED. FOKM Pieu No. 187. Causes of action under the money counts 392 FOEMS OF COMPLAINTS— Subdivision Third. Upon Wbitten iNSTEtrMBNis fob the Payment op money only. CHAPTER I. COMPLAINTS on negotiable PAPER, BONDS, ETC. 188. Against maker 398 189. On a bond for the payment of money only 403 190. The same — Pleading its legal effect 403 191. By surviving obligee on joint bond 404 CHAPTER II. complaints on bills of exchange. 192. Foreign bills — Payee against drawer for non-aooeptance 404 193. Payee against acceptor 407 194. Inland bills — Drawer against acceptor, for non-payment 407 195. On bill not negotiated 409 196. Bill returned and taken up 409 197. Acceptor without funds against drawer 410 198. The same — Co-partnership firm against eo-partnership firm 411 199. Payee against drawer for non-acceptance 411 200. The same — Bill payable at specific date 412 201. Partners payees, against partners acceptors 413 202. Payee against acceptor — Short form ....'. 414 203. Pleading the legal effect 415 204. Acceptance varying as to time from the bill 415 205. Where drawer is also acceptor on bill drawn on himself. 416 206. By assignee of bill payable out of a particular fund 416 207. Payee against drawer and acceptor 417 208. On a bill accepted for honor 417 209. Indorsee — First indorsee against acceptor 418 210. Against first indorser 419 211. Against drawer and indorser 419 212. Against all prior parties 420 213. Subsequent indorsee against acceptor 420 214. Against firstindorser , 421 215. Against intermediate indorser 421 216. Against last indorser 421 217. Against all prior parties 422 218. By a bank in its corporate name 422 xviii CONTENTS. FoKM PA**"! No. 219. Checks — Payee against drawer 423 220. Indorsee or bearer against drawer , . . 424 221. Against drawer and indorser 425 222. Against bank drawee, having certified 426 CHAPTEE III. COMPLAINTS ON PKOMISSOEY NOTES AND CERTIFICATES OF DEPOSIT. 223. Maker of accommodation note having paid it 427 224. Joint maker of a note against the other for contribution 428 225. Indorser of note having paid a part 428 226. Payee against maker • 429 227. On two notes, one partly paid 435 228. On several notes given as security 435 229. On a note signed by an agent 436 230. On a note made by partners 437 231. The same, averring partnership 437 232. On a note wrongly dated 438 233. Domestic corporation against a foreign corporation 438 234. Against surviving maker 439 235. Against maker and indorser 440 236; Indorsee — First indorsee against maker 441 237. Against first indorser 4i2 238 . Against maker and first indorser 446 239. Against maker, on note drawn to maker's order 447 240. Subsequent indorsee against maker 447 241. Against first indorser 448 242. Against intermediate indorser 448 243. Against immediate indorser 448 244. Against all prior parties 449 245. Transfers not by indorsement — By assignee 449 246. By treasurer of unincorporated company, on note payable to former treasurer 451 247. On a note payable on a contingency 452 248. On a note payable in chattels 453 249. On guaranties — Against maker and guarantor of note 454 FOEMS OP COMPLAINTS— Subdivision Fourth. Fob, Damages on Beeaoh oi? Contbaot. CHAPTEE I. complaints on builder's contracts. 250. By contractor, on special contract, modified, with claim for extra work 457 251. Against builder for defective workmanship 461 252. For not completing — Special damage for loss of rent 461 CONTENTS. XIX CHAPTEE II. COMPLAINTS ON OHARTEE PABTIES. FOBM PAGE No. 253. Owner against freighter, tor not loading 463 254. Cliarterer against owner, for deviation from contract and aban- donment of voyage 466 255. Ship owner against charterer, for freight 467 CHAPTEE III. COMPLAINTS ON COVENANTS. 256. Warranty of title to real property 467 257. The same— Another form 471 258. By assignee of grantee, against previous grantor 472 259. By heirs of covenantee, against previous grantor 472 260. By devisee of covenantee, against the same 473 261. "Warranty as to quantity 474 262. On covenant against incumbrances on real property 474 263. The same — "Where deed expressed specific incumbrance 477 264. On a covenant of seisin or of power to convey 478 265. Grantee's covenant to build 480 266. On covenant against nuisances — Grantor against grantee 481 267. On a continuing covenant to maintain a fence. 482 268. Lessor against lessee, on covenant to keep premises in repair. 482 269. Lessee against lessor, for not keeping premises in repair 485 270. For not completing building according to agreement 486 271. For breach of covenant of quiet enjoyment 487 CHAPTEE IV. COMPLAINTS ON CONTBACTS OF EMPLOYMENT. 272. For breach of contract to employ 488 273. "Where employment never took effect 489 274. For breach of contract to serve 489 275. By the master, against father of apprentice 490 276. By the apprentice against the master 491 277. For breach of contract to manufacture goods 491 278. For refusal to accept manufactured goods 492 279. On promise to manufacture raw material into merchantable goods 492 CHAPTEE V. COMPLAINTS ON INDEMNITY. 280. By retiring partner, on remaining partner's promise to indem- nify against damage 493 281. Against sureties on partner's bond of indemnity 497 282. Surety against principal, on indemnity against liability 498 283. Sub-tenant against immediate lessor 500 284. On agreement of indemnity to plaintiff, for defense of action for surrender of property 500 XX CONTENTS. CHAPTEE VI. COMPLAINTS ON BREACH OP PROMISE OP MABBLAGE. FOEM PAOB No. 285. For refusal to marry 502 286. For marriage with another 504 CHAPTEE VII. COMPLAINTS ON SALE AND DELIVEEY OP CHATTELS. 287. Seller against purchaser, refusing to receive and pay for goods. 504 288. The same, on contract made by broker , 509 289. The same, on promise to pay by good bill of exchange 509 290. The same for not returning goods or paying for them in a reasonable time 510 291. The same, for not giving security according to conditions of sale at auction 511 292. For a deficiency on a resale 511 293. By manufacturer, for goods made at defendant's request and not accepted 513 294. For breach of promise, by purchaser of good will, not to carry on rival trade 514 295. Buyer against seller for not delivering goods sold 515 296. For not delivering within a specified time 516 297. Allegation of part payment 518 298. Against seller of stock, for non-delivery 519 CHAPTEE VIII. COMPLAINTS POE SALE OP REAL PROPERTY. 299. Purchaser against vendor, for breach of agreement to convey. 520 300. The same, for damage for not executing conveyance 522 301. Vendor against piirehaser, for breach of agreement to purchase. 523 302. The same — For not fulfilling agreement, and for deficiency on resale 524 303. Vendor against executor of purchaser 525 304. Vendor against purchaser, for real property contracted to be sold but not conveyed 525 CHAPTEE IX. COMPLAINTS UPON UNDERTAKINGS, BONDS, ETC. 305. Short form, on undertakings given in actions 526 306. For costs of appeal 529 307. For costs and damages on an arrest 531 308. On release from arrest 531 309. For costs and damages on attachment 533 310. To procure discharge of an attachment 534 311. In claim and delivery 53g 312. In injunction g3g 313. On a bond or undertaking, condition only set forth 539 CONTENTS. XXI FoEM PAGE No. 314. On arbitration bond — Refusal to comply with award 540 For revoking arbitrator's powers 541 315. On a bond for faithful accounting of ail agent , 541 316. For fidelity of a clerk 542 317. On an official bond 543 Allegation for sheriff's neglect to levy 543 Tor neglect to sell after levy , 543 For neglect to return 543 Allegation of breach in treasurer's bond 543 CHAPTER X. COMPLAINTS ON WAEBANTY OF CHATTELS. 318. "Warranty of title 548 319. Of quality , 550 320. Of soundness 552 321. On a warranty of a judgment 553 322. On a warranty of a note 554 FOEMS OF COMPLAINTS— Subdivision Fifth. Foe Damages Upon Wrongs. Part First — For Injuries to the Person. CHAPTER I. FOK ASSAULT AND BATTERY. 323. Common form S55 324. The same, short form 557 325. With special damages 557 326. Against corporation, for damages caused by an assault and forcible ejection from a car 558 327. Assault and false imprisonment 560 328. Fullerform 560 CHAPTER II. FOE FALSE IMPEISONMENT. 329. Common form 561 330. The same, another form 562 Special damages - 683 CHAPTER III. LIBEL AND SLANDER. 331. For libel, the words being libelous in themselves 563 332. The words not being libelous in themselves 569 333. By an attorney at law 573 Xxii ■ CONTENTS. FoBM Libel— Continued. page No. 334. By a pbysioian 573 335. Charge of dishonesty, etc.. in business 574 By corporation 574 336. For charge of crime, words not libelous on their face 574 337. Accusing plaintiflf of perjury in his answer to a complaint. 575 338. For composing a libel not directly accusing the plaintiff of perjury 575 339. For a libel not directly accusing the plaintiff of larceny. . . 576 340. For libel by signs 577 341. For slander, the words being actionable in themselves 577 342. Words spoken in a foreign language 581 343. The words not being actionable in themselves 582 344. Respecting plaintiff's trade 583 345. Charging a criminal offense 585 Actionable language 586 346. The same— Several causes of action 586 347. Slander— For words directly charging perjury 587 348. The same, containing special inducements 588 CHAPTER IV. MALICIOUS PROSECUTION. 349. Common form 589 350. The same, fuller form 593 351. For procuring plaintiff to be indicted 594 352. The same — For obtaining indictment on which a nolle prose- qui was afterwards entered 594 353. Where judgment of acquital was rendered 596 354. For malicious arrest in a civil action 597 CHAPTER V. rOB PBKSONAL INJURY CAUSED BT NEGLIflENCB. 355. For injuries caused by collision of vehicle driven by servant. 599 356. Against common carriers, for overturning stage coach 600 357. Against a railroad for injuries by collision 602 358. The same — By oar running off track 604 359. For injuries caused by negligence on a railroad, in omit- ting to give signal , 605 360. By a steamboat explosion 606 361. For injuries to an engineer of a railroad company, caused by a collision 607 362. Said company having used a condemned locomotive 609 363. By executor or administrator against a railroad company, for injuries causing death 611 364. Against a municipal corporation, for Injuries caused by leav- ing the street in an inseciire state 614 365. For injuries caused by rubbish in the street, whereby plaintiff was thrown from his carriage, 617 CONTENTS. XXlll FOKM , PAGE No. 366. For injuries caused by leaving a hatchway open 617 367. Anotherform 618 368. For injuries caused by vicious dog 619 369. Against physician for maltreatment 620 370. Against surgeon for malpractice 621 CHAPTEE VI. FOB VIOLATION OF PERSONAL RIGHTS. 371. Against officers of an election, for refusing plaintiff's vote 622 372. For criminal conversation 623 373 . For enticing away plaintiff's vrife 623 374. For debauching a daughter 624 375. For seduction of plaintiff's daughter or servant 626 376. For seduction, by female seduced 627 377. For refusal to permit passengers to ride in a car 627 PART FIRST. GENERAL PRINCIPLES. CHAPTEE I. REMEDIES. 1. Eemedies for wrongs are secured by a proper applica- tion to a competent court, by tlie party or parties entitled thereto, in an action or proceeding against the proper parties, in the form prescribed by law. 2. 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. Provisional Bemedies.^ I. OF ACTIONS. 3. An action has been defined to be an ordinary proceed- ing in a court of justice, by which one party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. But in some sense this definition is equally applicable to special proceedings. More accurately, it is- defined to be any judicial proceeding, which, if conducted to a determination, will result in a judgment or decree:: People V. County Judge of Bensselear, 13 How. Pr. 400. The- action is said to terminate at judgment : Coke, Litt. 289 a. 4. Primarily, actions are divided into two classes : Civil and Criminal. The former only will be considered in this 1. Under the Code of Civil Procedure of California, the first and second divisions only are recognized (See sec. 21) in terms, at least; though what are known under other codes as " provisional remedies," exist in California as incidents to an action. 2 in)j 18 OP SPECIAL PEOOEEDINGS. work; and the different classes into which they are divided, and the mode of proceeding therein will be treated of hereafter. II. OE SPECIAL PE0CEEDING3 WHICH AEE NOT ACTIONS. 5. Eemedies pursued by a party which do not result directly in a judgment, but only in establishing a right, or some particular fact, are special proceedings : 3 Wend. 42; 12 Piclj. 572; 29 N. Y. 106. They include proceedings confined to courts of justice, and from which an appeal will lie, 20 How. Pr. 304, such as proceedings instituted for the correction or revision of erroneous acts of a court, or officer appointed by a court, having particular qualifica- tions, or occupying some particular relation to the parties or the subject-matter, and whose acts are in the nature of adjudications upon which the subsequent proceedings rest, however erroneous they may be: Porter y. Pardy, 29 N. Y. 106. 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: Matter of Cooper, 22 N. Y. 67; Matter of the Graduates, 11 Abb. Pr. 301; reversing Matter of the Graduates of the University, 31 Barb. 353; 10 Abb. Pr. 348; 19 How. Pr. 97; Matter of the Graduates of Golunibia, 10 Abb. Pr. 357; 19 How. Pr. 136. 7. Appraisement. — A proceeding by commissioners to appraise compen- sation for lands taken under the general railroad act: N. T. Cent. B. B. Co. V. 3iarom, 1 Kern. 277. 8. Arbitration and A^ward. — A proceeding on arbitration is not an ac- tion: Cal. Code, sees. 1281, 1290. It is an adjudication upon a matter in controversy, by private individuals selected and appointed by the parties : 3 Blaok. Com. 16; 3 Steph. Com. 374; Billings on Awards, 3, 55-65; Rus- sell's Arbitrator, 112. Proceedings on arbitrations are not affected by the Code: N. Y. Code, 836. Such proceedings are, however, regulated by statute. 9. Assessments. — Proceedings to assess damages on laying out a plank road, or under road laws, are not actions: Gen. Laws of Gal. para. 6,451; Lincoln V. Colusa Co., 28 Cal. 662; Grigshy\. Burtneit, 31 Cal. 406; Exparte Ransom, 3 N. Y. Code B. 148; Be Fort Plain and Cooperstoion PI. Boad Co., 3 Code K. 148; see, also, N. T. Cent. B. B. Co, v. Maroni, 11 N. Y. 276. 10. Attachment. In New York, a proceeding to enforce a judgment by attachment, as for contempt, is also a special proceeding: Gray v. Cook, 15 Abb. Pr. 308. 11. Certiorari. Certiorari is simply a writ of review and not an action (Cal. Code, sees. 1067, 1068 ) , and does not lie where there is an appeal or other remedy at law: 1 Hilt. 195; 2 Id. 12: People v. Shepard, 28 Cal. 115; Miliken V. Huber, 21 Cal. 166; Peopley. Bwinelle, 29 Cal. 632; People v. Stillwell, 19 N. OF SPECIAL PEOCJEJfiDINGS. 19 T. 532; Onderdonk v. Supervisors 0/ Queen's, 1 Hill, 195; People v. Overseers of the Poor, 44 Barb. 467; People v. Board of Pilots, 37 Barb. 126. At common law it tries notbing but the jurisdiotioH : People v. Delegates of San Francisco Fire Department, 14 Cal. 479. But tbat our statute is affirmative of the com- mon law: People v. Hester, 6 Cal. 679, was overruled in People v. Board of Delegates, etc., 14 Cal. 479; and was cited as overruled in People v. Provines, 34 Cal. 527. As to power of County Courts to grant writs of certiorari, see Wilcox V. Oakland, 49 Cal. 29, where such power is denied, except in aid of their appellate jurisdiction. It cannot be substituted for appeal: Id. As to where it lies, see Gal. P. B. Go. v. G. P. B. Co. 47 Cal. 528. That Dis- trict Courts and Judges have authority to issue the writ, see Heynolds v. Co. Court of San Joaquin, 47 Cal. 604, and Ctallardo v. Hannah, 49 Cal. 136. 12. Confession of Judgment. — A judgment by confession may be en- tered without action: Cal. Code, 1132; N. Y. Code, sec. 382; Chmter v. Sanchez, 1 Cal. 48; see Gordier\. Schloss, 12 Cal. 143; affirmed in S. 0. 18 Id. 580; and cited in Wilcoxon v. Burton, 27 Id. 235, in which the latter case was approved; Allen tt. Smillie, 1 Abb. Pr. 358; 12 How. Pr. 156; HiiZ v. Northrop, 9 How. Pr. 526. And the statute must be strictly pursued: Ghapin v. Thompson, 20 Cal. 681. So of proceedings on motion, setting aside a, judgment by confession: Belknap v. Waters, 11 N. Y. 497; com- pare Bowery Fxtension Case, 2 Abb. Pr. 368. The purpose and true inter- pretation of the provisions of the Code regulating confessions of judgment are explained in Hopkins v. Nelson, 24 N. Y. 518; Neusbaun v. Kdm, Id. 325, reversing S. C. 1 Hilt. 520; 7 Abb. Pr. 23. 13. Contempt, — Proceedings in punishment for contempts are not ac- tions: Cal. Code, sec. 721. As to contempts by witness, or party for dis- obedience of order of referee: Page v. Randall, 6 Cal. 32; for disobedience of subpena: Cal. Code, sec. 1991; Andrews v. Andrews, Col. and C. Cas. 121; for refusing to testify: Id. 420; Forbes v. Meeker, 3 Edw. 452; for re- fusal to allow inspection of books: Id. 446; for disobeying writ of mandate: Id. 479; McCauley \. Brooks, 16 Cal. 11; for other acts enumerated: Cal. Code, sec. 1209; People v. Dwinelle, 32 Cal. 296; 1 Tidd's Pr. 479-480; 4 Black. Com. 285; 4 Steph. Com. 348; Holstein v. Bice, 15 Abb. Pr. 307; Gray V. Cook, Id. 308. The provisions of the Kevised Statutes concerning con- tempts in New York are not affected by the Code of Procedure. They are to enforce civil remedies and protect the rights of parties: People v. Gompton, 1 Duer, 512; Be Smethurst, 3 Code K. 55; 2 Sandf. 724. 14. Contested Eleotiona. — The act giving jurisdiction over contested elections to the county judge is constitutional. It is one of the "special oases" provided for: Saunders y. Haynes, 13 Cal. 145; approved as to juris- diction in Stones. Flkins, 24 Cal. 126; Dorsey v. Barry, Id. 452; and cited in People v. Days, 15 Cal. 91; and approved as to such being " special cases" in Keller v. Chapman, 34 Cal. 640. 15. Highways. — In New York, an appeal before referees in highway pro- ceedings is not an action; People v. Flake, 14 How. Pr. 527. Nor is a pro- ceeding to open streets: Se The Bowery, 12 How. Pr. 97. 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: Eaviland v. White, 7 How. Pr. 154. 17. Insolvency Cases.— Insolvency cases are "special oases," and it 20 OP SPECIAL PEOCEEDINGS. was an exercise of legitimate power in the legislature to confer jurisdiction in such cases upon both county and district courts: Harper v. Freelon, 6 Cal. 76; approved in McNeil \. Borland, 23 Cal. 148; see, also,' i^'ranfc v. Brady, 8 Cal. 47, and People ex rel. Orow v. Rasborough, 29 Cal. 418. All insolvency- cases, however, have been superseded by the United States Bankruptcy Act. Proceedings in insolvency are not stricti juris either proceedings in law or equity, but a new remedy or proceeding created by statute : Cohen v. Bar- rett, 5 Cal. 195, approved as to jurisdiction in " insolvency oases," in Frank V. Brady, 8 Cal. 47. That cases in insolvency are not equity cases, approved in People ex rel. Orow v. Basborough, 29 Cal. 418. 18. Joint Debtors.— Proceedings against joint debtors after judgment are not actions: Cal. Code, sees. 989-994; N. T. Code, sec. 375. In pro- ceedings 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 similarity to the action of scire fadas, and were no doubt intended as a substitute therefor: Alden v. Clark, 11 How. Pr. 213. Such a proceeding is not a new action, and the party served cannot have the action removed into a federal court: FairchUd v. Durand, 8 Abb. Pr. 305. The remedy by this proceeding is merely cumulative: Bean v. Mdredge, 29 How. Pr. 218. 19. Probate. — Probate proceedings are not civil actions within the mean- ing of the Practice Act: Estate of Scott, 15 Cal. 220. 20. Referees. — A proceeding before referees is not an action: Cal. Code, sec. 636; Plant v. Fleming, 20 Cal. 92; People v. Flake, 14 How. Pr. 527. Our statute concerning referees is in aid of the common law remedy by ar- bitration, and does not alter its principles: Tyson v. Wells, 2 Cal. 122; aflarmed in Realyy. Reed, Id. 325; Grayson v, Gould, 4 Id. 125; Phelps v. Peabody, 7 Id. 53. 21. Revie^w of Assessmeat. — Proceedings to review the acts of assessors appointed to assess the property of the parties benefited by the construction of a sewer, with their proportionate expense, are not actions: Porter v. Purdy, 29 N. Y. 106. A proceeding to vacate a local assessment in the city of New York is not a special proceeding in the sense of the code: Re Dodd, 27N. Y. 629. 22. Specific Performance.— In New York, proceedings to compel a specific performance of contract of ancestor by heirs of deceased are not actions: Hyatt v. Seely, 11 N. Y. 52. 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: Cal. Code, sec. 1138; Crundall v . Amador Co., 20 Cal. 72. Such a proceeding is not an action: Lang v. Ropke, 1 Duer, 702. 24. Supplementary Proceedings.— That proceedings supplementary to execution are special proceedings, see Gould v. Chapin, 4 How. Pr. 185; Davis V. Turner, Id. 190; Contra, Dresser v. Van Pelt, 15 How. Pr, 19. In California they are a substitute for the creditor's suit, and are therefore usually actions. 25. Testimony.— Proceedings to perpetuate testimony are not actions: Cal. Code, sees. 2083-84. OF PEOYISIONAL EEMEDIES. 21 ni. OP PEOTISIONAL REMEDIES. 26. 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 pendency of an appeal, by the appointment of a receiver or other like officer, and, in some cases, the disposition of the property after judg- ment or decree, and also restraining orders or injunctions pending the action, Avhich, though now regulated by statute in most of the States, existed independently of it, as a neces- sary 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 " provisional 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 which is sought to be obtained. Of these, arrest and bail, at- tachment of the defendant's property, and replevin or claim and delivery, are familiar examples. These provisional remedies will be treated of in connection with the actions in which they may be resorted to. 22 JUEISDICTION. CHAPTEE II. JUEISDICTION. 1. Jurisdiction is the power to hear and determine a cause: 6 Peters' XJ. S. 691, 709; 2 How. U. S. 319, 338; G. P. B. B. Co. V. Placer Co., 43 Cal. 365. In a more gen- eral sense the power to make law; the power to legislate or govern; the power or right to exercise authority: 1 Burr. 113. 2. Each branch of government has its functions assigned, and is beyond the control of the other departments of gov- ernment: Parsons v. Tuol. Co. Wat. Co., 5 Gal. 43. Thus, legislative functions cannot be exercised by the judiciary: People V. Town of Nevada, 6 Cal. 143 ; approved in Colton V. Bossi, 9 Id. 599; Stone v. Elhins, 24 Id. 127; People y. Sander-son, 30 Id. 167. Nor can the courts of justice inter- fere with the political powers of the legislature : Nougues v. Douglass, 7 Cal. 65, cited in 31cCaidey v. Brooks, 16 Id. 43; Napa Valley B. B. Co. v. Napa Co. 30 Id. 435. JUEISDICTION IN GENEEAL. 3. The jurisdiction of a court will generally be presumed in the case of superior courts, or courts of general jurisdic- tion, where the want of it does not appear upon the face of the record: Nelson v. Lemon, 10 Cal. 50; Nelson v. Mitchell, Id. 93; Johnson v. Sepulveda, 5 Id. 149; Orewell v. Hender- son, 7 Id. 290; Gray v. Hawes, 8 Id. 562; Carpeniier v. Oakland, 30 Id. 439, approved in Hahn v. Kelly, 34 Id. 391, which authority cites lorbes v. Hyde, 31 Id. 342; Sharp v. Daugney, 33 Id. 505; Clark v. Sawyer, 48 Id. 133. 4. "Where jurisdiction is limited by the constitution or by statute, the consent of parties cannot confer it upon the court: Gray v. Hawes, 8 Cal. 562. But where the limit re- gards certain persons, they may, if competent, waive their privilege, and thus confer jurisdiction. Id. 5. So the agreement of parties cannot operate to divest a court of its jurisdiction: Middrow v. Norris, 2 Cal. 74. Nor confer jurisdiction: Norwood v. Kenfield, 34 Id. 329; Bates V. Gage, 40 Id. 183. CONCUEEENT JUEISDIOTION. 23 6. A decided distinction exists between the want of juris- diction and jurisdiction irregularly acquired. In tlie first ease, the judgment can be attacked in any form directly or collaterally; in the second, only by direct proceeding in the court which rendered it: WMtwell v. Barbier, 7 Cal. 64, ap- proved in Peck V. Strauss, 33 Id. 685. AT CHAMBEES. 7. 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 any of it to be transacted at chambers : Larco v. Casaneuava, 30 Cal. 560, affirmed in Norwood V. Eenfield, 34 Id. 332. 8. A judge at chambers 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: Hegeler v. HencJcell, 27 Cal. 491. Nor to make an order setting aside an execution issued on a judgment, and perpetually staying the enforcement of the same: Bondy. Facheco, 30 Cal. 530, affirmed in Norwood v. Kenfield, 34 Id. 332. Nor to entertain motions to strike out pleadings or parts of pleadings: Larco v. Casaneuava, 30 Id. 560, affirmed in Norwood v. Kenfield, 34 Id. 332. CONCUEEENT JUEISDIOTION. 9. There is nothing in the nature of jurisdiction which renders it exclusive: Delafield v. State of Illinois, 2 Hill. 164. But, on the contrary, it may be concurrent : Ferry v. Ames, 26 Cal. 372, approved in Cariaga v. Dryden, 30 Id. 246; Knoiules v. Yeates, 31 Id. 90; and Courtwright v. B. B. and Auburn Wat. and Min. Go., 30 Id. 585. 10. The legislature cannot confer on one court the func- tions and powers which the constitution has given to an- other, where that jurisdiction is exclusive : Courtwright v. Bear Biv. and Auburn Wat. Co., 30 Cal. 580. 11. 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 consti- tution has conferred on that court : See Ferry v. Ames, 26 Oal. 372; see, also, CourtivrightY. B. B. andAub. Wat. Co., 24 CONCURRENT JURISDICTION. 30 Id. 585. This has been practically demonstrated in American Co. v. Bradford, 27 Oal. 360, cited in Hill v. Smith, 27 Id. 476; 30 Oal. 385; see, also, People t. David- son, 30 Id. 379; Warner v. Steamer Uncle Sam, 9 Cal. 697. 12. 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 jurisdiction in the same cases, does not necessarily deprive other courts of concurrent jurisdiction in such cases: Courtwright v. Bear Biv. and Aub. Wat. and Min. Co., 30 Gal. 573. 13. Jurisdiction in rem may exist in several courts at the same time on the same subject: Averill v. The Hartford, 2 Gal. 309, affirmed in Taylor v. Steamer Columbia, 5 Gal. 272; Meiggs v. Scannell, 7 Id. 408; Fisher \. White, 8 Id. 422. 14. The court whose mesne or final process has made the first actual seizure of the thing, must have exclusive 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 distribu- tion accordingly: Bussell v. Alvarez, 5 Oal. 48. 15. So an action for the non-delivery of freight may exist in the District Gourt of the United States contemporaneously with an action for freight-money in a State court, without fear or danger of any collision or clashing of jurisdiction : Bussell V. Alvarez, 5 Oal. 48. 16. Courts cannot interfere with the judgments or decrees of other courts of concurrent jurisdiction : Anthony v. Dun- lap, 8 Oal. 26, affirmed in Vhlfelder v. Levy, 9 Cal. 614; BevalJe v. Kraem&r, 8 Id. 66. 17. Courts of equity and courts of law have concurrent jurisdiction in enforcing contribution between co-sureties : Chipman v. Morrill, 20 Gal. 130. The "real difference be- tween courts of equity and courts of law is in the modes of proof, trial and relief. It will generally be found that they harmonize as to principles:" Lubes' Equity PI. 6. It is a familiar rule that where a court of law can give an adequate remedy, courts of equity will not entertain jurisdiction. JUEISDICTION OP STATE COUETS. 25 JUEISDICTION OP STATE COUETS. 18. State courts have jurisdiction in the following cases, 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. 19. 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: Armstrong v. Foots, 11 Abb. Pr. 384; but see Dibble v. Clapp, 31 How. Pr. 420. So, State courts have jurisdiction of crimes committed in the United States military reservation of Port Leaven- worth: Clayy. State, 4 Kansas, 49. The act of the legislature, ceding the navy yard at Brooklyn to the United States — which provides that the cession " shall not prevent the operation of the laws of the State " within the same — has the effect of preserving the jurisdiction of the State over offenses com- mitted on board a government ship in the navy yard, and over the person of the offender: People v. Lane, 1 Edm. 116. 20. Contracts. — State courts have jurisdiction over actions for a con- tract made in a foreign country: Skinner v. Tinker, 34 Barb. 333. ' So, in an action on a policy of insurance issued in the State by a resident agent of a foreign insurance company: Burns v. Provincial Insurance Co., 35 Barb. 325; Watson V. Cabot Bank, 5 Sand. 423. 21. Customs and Duties.— Of actions by collectors of United States customs upon receiptor's agreement: Sailly v. Cleveland, 10 "Wend. 156; and of actions on bonds given for duties to the United States: United States v. Dodge, 14 Johns. 95. 22. Foreign Governments may sue and be sued in State courts in their federative names: Bepvblic of Mexico v. Arrangois, 11 How. Pr. 1; 2 Abb. Pr. 437; 3 Id. 470; Manning v. State of Nicaragua, 14 How. Pr. 517; Ddafidd x. State of Illinois, 26 Wend. 192; Burrall v. Jewett, 2 Paige, 134; Gibson v. Woodworth, 8 Id. 132. 23. Foreign Residents. — State courts have jurisdiction in actions against foreign executors or administrators who are residents of the State : Qulick v. Gulick, 33 Barb. 92; 21 How. Pr. 22; Montalvan v. Glover, 32 Barb. 190; Sere V. Coit, 5 Abb. Pr. 482. The courts of New York have no jurisdiction in an action at law against foreign executors or administrators: Metcalfy. Clark, 41 Barb. 45. 24. Habeas Corpus.— To discharge on habeas corpus persons enlisted in the United States army: Re Carlton, 7 Cow. 471; Be Dabb, 12 Abb. Pr. 113; Be Phelan, 9 Id. 286; United States v. Wyngall, 5 Hill, 16; Be Ferguson, 9 Johns. 239. As to jurisdiction by habeas corpus on a commitment by a court of the United States, see Be Barrett, 42 Barb. 479; 1 Johns. Gas. 136; Be Eopson, 40 Barb. 34. 25. Property out of State.— Where jurisdiction of the person is ac- quired, State courts have equitable jurisdiction in actions respecting real estate, even if the property is situated out of the State: Mussina v. Belden, 6 Abb. Pr. 165; Ward v. Arredondo, Hopk. 213; Shattuck v. Cassidy, 3 Ewd. 152; Slaiter v. Carroll, 2 Sandf. Oh. 573; De Klyn v. Watkins, 3 Id. 185; 26 CONSTITUTIONAL JUEISDIOTION. D'lvernois v. Leaviit, 23 Barb. 63. They have jurisdiction in an action for a breach of covenant to convey real property situate in a foreign State : Mott v. Coddington, 1 Abb. Pr. (N. S.) 290; Sailey v. Bider, lON.Y. 363; Gardner v. Ogden, 22 N. Y. 327; Kewton v. Branson, 13 N. Y. 587; Fenner v. Sanborn, 37 Barb. 610. Thus, in the case of Penn v. Lord Baltimore, specific perform- ance of a contract for lands lying in America was decreed in England : 1 Ves. 444. So, in the case of the Marl of EUdare v. Sir Morrice Eustace and Fitzgerald, it was held that a trust in relation to lands lying in Ireland may be enforced in England if the trustee live in England: 1 Vern. 419. So, if the subject of the contract or trust be within the jurisdic- tion, but the parties are not. See, also, Arglass v. Muschamp, 1 Vern. 75; Toller v. Cateret, 2 Id. 494; Massic v. Watts, 2 Cranch, 148; Cleveland v. Burnell, 25 Barb. 523; Newbor v. Branson, 3 Kiern. 587; Bourke v. Mc- Laughlin, Cal. Sup. Ct., Jury T., 1869. But the State courts have no juris- diction of an action for injury to real estate out of that State; Mott v. Ood- dington, 1 Abb. Pr. (N. S.) 290; Watts v. Kinney, 6 Hill. 82. 26. 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 held in New York: Hull v. Vreeland, 18 Abb. Pr. 182; Latourette v. Clark, 45 Barb. 323. So also for a fraudulent conspiracy formed in another State: Mussinav. Belden, 6 Abb. Pr. 165. 27. United States or IT. S. Officers.— The United States or a State may consent to be sued in a State court: The People of Mich. v. Phoenix Bk. 4 Bosw. 382. Or an action may be maintained in a State court against officers of the United States government in certain cases : Bipley v. Gelston, 9 Johns. 201; Be Slacey, 10 Id. 328; Hoyt v. Gelston, 13 Id. 141; Wilson y. McKenzie, 7 Hill. 95; Teal v. Felton, 1 Comst. 537; McButt v. Murray, 10 Abb. Pr. 196. 28. Within the Jurisdiction of the court, means within the State: People V. McCauley, 1 Cal. 380; Stevens v. Irwin, 12 Cal. 306. But whenever the statute prescribes certain specific acts to be done as prerequisites to the acquiring of jurisdiction, such acts must be substantially performed in the manner prescribed: Steel v. Steel, 1 Nev. 27; Paul v. Armstrong, Id. 82. The jurisdiction of State courts extends to hearing and determining cases left pending in the late United States territorial courts: Hastings v. Johnson, 2 Nev. 190. OF THE CONSTITUTIONAL JUEISDIOTION OP COUETS. 29. In the State of California, the jurisdiction of the several courts is fixed by the constitution, which prescribes 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 .Eecorders' and other inferior courts, as the Legislature may establish in any incorporated city or town :" Const, of Cal. Art. VI, sec. 1. And each branch of the judicial de- partment has its functions assigned: Parsons y. Tuol. Co. Wat. andMin. Co., 5 Cal. 42. JURISDICTION OF THE SUPREME COURT. 27 30. Tliat the legislature cannot 'confer other than judicial functions upon any court, was held in Burgoyne v. Super- visors of San Francisco, 5 Cal. 9, which was affirmed in Exline t. Smith, Id. 113; People v. Applegate, Id. 295; Dickey y. Hurlburt, Id. 344; Thompson v. Williams, 6 Id. 89; People v. Town of Nevada, Id. 144; Tuolumne Co. v. Stanilaus Co., Id. 442; Phelan v. San Francisco, Id. 540; Hardenburg v. Kidd, 10 Id. 403; People v. Bircham, 12 Id. 55; Phelan v. 5'an Francisco, 20 Id. 42; People t. Sander- son, 30 Id. 167; but in Peopfe t. Provines, 34 Id. 525, the case of Burgoyne v. Supervisors of San Francisco was com- mented on and overruled {obiter dictum) ; see also People v. 5ms7j, 40 Id. 344. 31. Municipal and inferior courts can only be of inferior, limited, and special jurisdiction: Meyer \. Kalhman, 6 Cal. 582, cited in Kenyon y. Welty, 20 Id. 640; Courtwright t. Bear Biv. and Aub. Wat. and Min. Co., 30 Cal. 579. The term "Municipal Courts " includes Mayors' and Eecorders' courts: Uridias v. Morrill, 22 Id. 473, approved in TJridias V. Buzee, Cal. Sup. Ct., July T. 1863; and cited inPeople v. Provines, 34 Cal. 520. Inferior courts cannot go beyond the power conferred upon them by statute, nor can they assume power by implication : Winter v. Fitzpatriclc, 35 Cal. 269; Morley v. MMns, 37 Id. 454. 32. Where the statute creating a new right and a par- ticular remedy for violation thereof, provides that the remedy must be pursued in a particular court, no other court has jurisdiction: Smith v. Omnibus B. B. Co., 36 Cal. 281. In such case the statute must be strictly pursued : Cohen v. Barrett, 5 Id. 195. The constitution not having defined the jurisdiction of the municipal courts authorized to be established, it is left to be regulated by the legisla- ture under its general powers: Uridias v. Morrill, 22 Id. 473. I. THE SUPREME COURT. 38. It is prescribed by the constitution of the State of California, that the Supreme Court shall consist of a chief justice and four associate justices. The presence of three justices shall be necessary to the transaction of business, except such as may be done at chambers; and the concur- 28 APPELLATE JUBISDICTION. rence of three shall be necessary to pronounce a judgment: Const, of Cal. art. VI, sec. 2; see People v. Wells, 2 Cal. 202. 34. The judges of this court are elected by the qualified electors of the State, at a separate or judicial election, and shall hold ofl5ce for the term of ten years. They are so classified that one justice goes out of office every two years, and each of the justices acts as chief justice for the last two years of his term of office: Const, of Cal., Art. VI, sec. .3; People v. Wells, 2 Cal. 202; People v. Langdon, 8 Id. 16; cited as to term of office in People v. Whitman, 10 Id. 46. JUBISDICTION OF THE SUPREME COUET. 35. The Supreme Court has appellate jurisdiction: 1. In all cases in equity; 2. In all cases at law involving the title or possession of real estate; 3. In all cases afi'ecting the legality of any tax, toll, impost, assessment or municipal fine; 4. In all matters in which the demand, exclusive of interest, exceeds the sum of three hundred dollars; 5. In all cases where the value of the property in dispute exceeds the sum of three hundred dollars; 6. In all cases arising in the probate courts; 7. In all criminal cases amounting to felony, on questions of law alone; 8. The Supreme Court has power to issue writs of mandamus, certiorari, prohibi- tion, and habeas corpus; 9. And, also, all writs necessary for the complete exercise of its appellate jurisdiction : Const, of Cal. art. VI, sec. 4. 36. The Supreme Court is clothed by the constitution with the powers and jurisdiction of the court of King's Bench, in England : Ex parte Attorney-general, 1 Cal. 85. JUEISDICTION APPELLATE. 37. This court has no other than appellate jurisdiction, except in writs of certiorari, mandamus, prohibition and habeas corpus : Caulfield v. Hudson, 3 Cal. 389, affirmed in Reed v. McCormicJe, 4 Id. 342; Parsons v. Tuolumne, 5 Id. 43; Townsend v. Brooks, Id. 52; Zander v. Coe, Id. 230; People V. Applegate, Id. 295; cited in People v. Hester, 6 Id. 681 ; sustained in People v. Fowler, 9 Id. 86. It has appel- late jurisdiction in all cases; provided, that when the sub- AMOUNT IN CONTEOVEBSY. 29 ject-matter is capable of pecuniary compensation, the mat- ter in dispute must exceed in value three hundred dollars, unless the legality of a tax, toll, impost, or municipal fine is in question : Oonant v. Ooncmt, 10 Cal. 249, approved in Perry v. Ames, 26 Id. 386; People v. Boshmvugh, 29 Id. 418; Courtwright v. Bear Biver and Auburn Water and Mining Co., 30 Id. 579, affirmed in Knowles v. Yeates, 31 Id. 84; Bum- phy V. Guindon, 13 Id. 30. So in cases of divorce: Oonant V. Conant, 10 Id. 249. So in cases of contested elections on appeal from county courts: Middleton v. Gould, 5 Id. 190; Knowles v. Yeates, 31 Id. 82, affirmed in Bay v. Jones, Id. 263. On questions of fraud made in petition of insolvent debtor: Fisk v. His Creditors, 12 Id. 281, approved in Peo- ple V. Shepard, 28 Id. 115; People v. Bosborough, 29 Id. 418. As to appellate jurisdiction generally, see 42 Id. 35. 38. The Supreme Court may exercise its appellate juris- diction in criminal cases confined to felony : People v. Ap- plegate, 5 Oal. 295, affirmed in People v. Vich, 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; People v. War, 20 Id. 117; Peoples. Burney, 29 Id. 459; People v. Jones, 31 Id. 576' The question whether the Supreme Court has juris- diction to review criminal cases upon questions of fact, raised, but not decided: People v. Dodge, 30 Id. 455. 39. In actions for damages to real property when the question of title is involved it has appellate jurisdiction, al- though the damages claimed are less than three hundred dollars : Doherty v. Tliayer, 31 Cal. 140. AMOUNT IN CONTEOTEESY. 40. Its appellate jurisdiction extends to all cases in which the demand in controversy in the court below exceeds the sum of three hundred dollars; the amount sued for being the test of the jurisdiction: Maxfield v. Johnson, 30 Cal. 545; Solomon v. Beese, 34 Id. 34; 6 Nev. 162. 41. The words, " matter in dispute," in art. VI. sec. 4 of the Constitution of California, mean the subject of litigation, the matter for which suit is brought : Bumphy v. Guindon, 13 Cal. 28; affirmed in Meeker v. Karris, 23 Id. 286; Bolton v. 30 OEIGINAL JUEISDICTION. Landers, 27 Id. 107; Gillespie v. Bemon, 18 Id. 409; Za- hriskie v. Torrey, 20 Id. 174; Votan v. Reese, 20 Id. 91. 42. If an appeal is taken by the plaintiff from a judgment in his favor, then the amount in dispute is the diflference between the amount of the judgment and the sum claimed by the complaint: SJdllmanY. Lachman, 23 Cal. 198. But if the judgment is for the defendant, the jurisdiction of the Supreme Court is determined by the amount claimed in the complaint. Id. 43. If the appeal is taken by 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 judg- ment, exclusive of costs, and the sum claimed in his counter- claim. The interest due forms no part of the amount in dis- pute; so also costs constitute no part thereof: Dumphy y. Guindon, 13 Cal. 28; Votan v. Reese, 20 Id. 89; Zabriskie v. Torrey, Id. 173; Maxfieldy. Johnson, 30 Id. 545. 44. 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 dol- lars, a motion by plaintiff that defendant's judgment be set off against plaintiff's judgment was denied, from ■v^hich plaintiff appeals : Held, that the Supreme Court had no jur- isdiction, the judgment sought to be set off being less than three hundred dollars: Crandall v. Blen, 15 Cal. 407. The fact that defendant sets up a counter-claim in excess of three hundred dollars does not give jurisdiction on appeal: 3laxfield v. Johnson, 30 Cal. 545. ITS OEIGINAIi JURISDICTION. 45. The Supreme Court has original jurisdiction to issue writs of mandamus, certiorari, prohibition and habeas corpus : Am. Const, of Cal. art. VI. sec. 4; Ex parte Attorney -Gen- eral, 1 Cal. 87; Warner v. Hall, Id. 90, af&rmed in Warner V. Kelly, Id. 91; Tyler v. Houghton, 25 Id. 28, afiirmed in Miller v. Board of Supervisors Sac. Co., Id. 93; People v. LoucJcs, 28 Id. 71; Courtwright y. Bear Riv. and Aub. Wat. and Mill. Co., 30 Id. 585; see, also, Perry v. Ames, 26 Id. 383. It may exercise its appellate jurisdiction by means of the writs of certiorari, mandamus or prohibition : People v. J0EISDIOTION OF THE DISTRICT COURTS. 31 l\irner, 1 Oal. 143; WJiite v. lAghthall, Id. 347; Purcell v. McKune, 14 Id. 230, approved in Flagley v. Hubbard, 22 Id. 38; see, also, Milliken v. Huber, 21 Id. 169; Lewis v. Barclay, 35 Id. 213, approving People v. Weston, 28 Id. 639. But only in cases where there has been an excess of jurisdiction in the court below: Coulter v. Stark, 7 Cal. 244; Miller v. Board Supervisors Sac. Co., 25 Id. 93; People v. Johnson, 30 Id. 98. It may issue all writs necessary or proper for the exercise of its appellate jurisdiction : Adams V. Town, 3 Cal. 247; Cowell v. BucMew, 14 Id. 642. SUPREME COURT. 46. The Legislature cannot take away or impair the ap- pellate jurisdiction of the Supreme Court, but may pre- scribe the mode in which appeals may be taken : Haight v. (ray, 8 Cal. 300. The Supreme Court has jurisdiction to review all cases which the District Courts have jurisdiction to try: Solomon v. Reese, 34 Cal. 28. 47. The Supreme Court loses jurisdiction over a case after the remittitur is issued, and the term at which the judgment was rendered has passed : Davidson v. Dallas, 15 Cal. 75. Or after the remittitur has been filed in the court below: Mateer v. Brown, 1 Cal. 221, affirmed in Blanc v. Boioman, 22 Id. 23; Bowland v. Kreyenhagen, 24 Id. 58; but see Vance v. Pence, 36 Id. 328. 48. The power which the judiciary possesses to declare a law unconstitutional comprehends the necessary author- ity of carrying its judgments into effect: NouguesY. Douglas, 7 Oal. 65; McCauley v. Brooks, 16 Oal. 43, 64, and 65. II. OF THE DISTRICT COURTS. 49. The state of California is now divided into twenty- three judicial districts, in each of which there is a District Court. The judges thereof are elected by the qualified voters of the district at special judicial elections, and hold office for the term of six years. 50. The Legislature of the State has no power to grant a leave of absence from the State to a judicial officer; and any district judge who absents himself from the State for the period of thirty consecutive days, forfeits his office: Const, of Oal. art. VI, sec. 5. 32 juBisDica?ioN OP the disteiot couets. 51. The constitution does not require District Courts to be held at the county seat: TJpham v. Sutter Co., 8 Oal. 378. The district jixdge has power to hold a court in another district : People v. McCauley, 1 Oal. 379, approved in People V. Wells, 2 Cal. 207. 52. The Code of Civil Procedure requires the terms of the District Court to be held at the county seat: see section 75, also, sec. 142. The period for which each term shall be held, adjournments, etc., are provided in sections 76 and 77. 53. The District Courts have original jurisdiction: 1. In all cases in equity; and, 2. In all cases at law which in- volve the title or possession of real property; 3. The legal- ity of any tax, toll, impost, assessment, or municipal fine; 4. In all cases in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars; 5. In all criminal cases where the indictment is for murder or arson; 6. The District Courts and their judges shall have power to issue writs of habeas corpus, on petition by, or in behalf of any person held in actual custody in their respective districts: Const, of Cal., art. yi, sec. 6; Hicks v. Bell, 3 Cal. 219. 64. In actions for the recovery of money the District 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 : Solomon v. Reese, 34 Cal. 28. Where the principal sum sued for is less than two hundred dollars (now three hundred dollars) the Dis- trict Court has no jurisdiction : Arnold v. Van Brunt, 4 Cal. 89. 55. Sec. 6 of art. VI of the constitution gives the Dis- trict Courts jurisdiction in all actions in which the title or possession of real property is an issuable fact in the case. It is not necessary that title or possession be put in issue, but one or the other must be an issuable fact necessary to be averred in the pleadings. And this, regardless of the sum sued for: Cullen v. Langridge, 17 Cal. 67; approved in Henderson v. Allen, 23 Id. 520. 56. The character of the action is to be determined by the prayer of the complaint. If the prayer asks for a money i i J0EISDIOTION OP THE DISTRICT COURTS. 33 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 District Court has no jurisdiction where the amount is less than three hundred dollars, and the ad damnum clause is the test: Maxfield v. Johnson, 30 Oal. 545; Solomon v. Beese, 34 Id. 28. In the latter it has jurisdic- tion, regardless of the amount claimed : People v. Mier, 24 Cal. 61, affirmed in Bell v. Vrippen, 28 Id. 328; Court- wright v. Bear Biver and Aub. Wat. and Min. Co., 30 Id. 581; Maklstadi v. Blanc, 34 Id. 577. 57. The court below loses all power over a cause in which it has rendered judgment upon the adjournment of the term, and cannot disturb its judgments except in cases provided by statute: Suydam v. Pitcher, 4 Cal. 280, af- firmed in Garpentier v. Hart, 5 Id. 407; Shaw v. McGregor, 8 Id. 521; De Castro v. Bichardson, 25 Id. 52; Casement v. Binggold, 28 Id. 338; see also Whipley v. Dewey, 17 Id. 314. 58. District Courts have no appellate jurisdiction: People V. Perolta, 3 Cal. 379; Canfield v. Hudson, Id. 389; Her- nandes v. Simon, Id. 464; Gray v. Schupp, 4 Id. 185; Beed V. McCormicle, Id. 342, affirmed in Parsons v. Tuol. Wat. Co., 5 Cal. 43; Keller v. Franklin, Id. 534; Becket v. Selover, 7 Id. 240; and People v. Fowler, 9 Id. 86; Townsend v. Brooks, 5 Id. 52; Zander v. Coe, 5 Id. 230; People v. Apple- gate, Id. 295, affirmed in People v. Vick, 7 Id. 166; People V. Johnson, 30 Id. 101; People v. Shear, 7 Id. 140; People Apgar, 35 Id. 389. 59. The District Court is a court of general original juris- diction; its process is co-extensive with the State: Beyes v. Sanford, 5 Cal. 117, and the regularity of its proceed- ings is presumed: People y. Bobinson, 17 Id. 363, approved in People v. Bobinson, 27 Id. 67; People v. Judge Tenth Jud. Hist., 9 Id. 19. As to the power of supervision of District Courts over inferior tribunals, see Mililcen v. Huber, 21 Cal.. 166. 60. A district judge while sitting in an equity case is pos- sessed of all the powers of a Court of Chancery : Sanford V. Head, 5 Cal. 297; People v. Davidson, 30 Cal. 380, ap- proved in Courtwright v. B. B. & A. W. dt M. Co., 30 Gal. 585; Mahlstadt v. Blanc, 34 Cal. 577. So in cases of uui- 3 34 JUEISDIOTION OF THE DISTRICT COURTS. sauce : CourtwrigM v. B. B. and Auburn Wat. and Mining Co., 30 Cal. 585; Wright y. Miller, 1 Sandf. Ch. E. 120; Beigal v. Wood, 1 Johns. Ch. E. 401. 61. Criminal Jurisdiction. — The criminal jurisdiction of District Courts is confined to cases of felony: People v. Fowler, 9 Cal. 87. 62. Divorce.— In suit for a divorce, and partition of the property ac- quired during coverture, the jurisdiction of the District Court is not limited as to the amount: Oeuprez v. Beuprez, 5 Cal. 387. District Courts have jurisdiction to decree relief in alimony to the wife, in a separate action, un- connected with a suit for divorce: Galland v. Galland, 33 Cal. 265, citing Purcell V. Purcell, 4 Hen. & Munf. 507; Almond v. Almond, i Hand. 662; Logan v. Logan, 2 B. Monr. 142; Praiher v. Pralher, 4 Desares, 33; Bhame V. Bhame, 1 McCord Ch. K. ; Olover v. Qlwer, 16 Ala. 446. Or, to enforce an agreement for separation and alimony in connection : Galland v. Galland, supra. 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 adjudication must be pronounced that he support her while so living: 2 Story's Eq. Jur. sees. 1422, 1424; Fiscole v. Fiscole, 1 Blackf. 365; Chapman\. Chapman, 13 Ind. 397; Shannon v. Shannon, 2 Gray, 285; Leafe V. Leafe, 4 Foster, 567; Parsons v. Parsons, 9 N. H. 309; Lawson v. Shotwell, 27 Miss. 633; Doyle v. Doyle, 26 Mo. 549; Yule v. Yule, 2 Stock. 143; Covey V. Coney, 3 Id. 400; McGee v. McGee, 10 Geo. 482; Peltier v. Peltier, Harringt. (Mich.) Ch. B. 29. 63. Forcible Entry. — In Nevada, District Courts have jurisdiction in actions of forcible entry and unlawful detainer: Hoopes v. Meyer, 1 Nev. 433. In California that jurisdiction is conferred on the county courts: Const, of Cal., art. vi., sec. 8. 64. Fugitives. — State courts of general original jurisdiction, exercising the usual powers of common law courts, are fully competent to hear and de- termine all matters, and to issue all necessary writs for the arrest and trans- fer of fugitive ;oriminal3 to the authorized agent of the State from which they fled, without any special legislation: In re Bomaine, 23 Cal. 585; 106 Mass. 225. 65. Nuisance. — Under the constitution, District Courts have jurisdiction in cases of nuisance. The grant of the Legislature of jurisdiction in such oases to the County Courts, cannot take away the jurisdiction given to the District Court by the constitution: Fitzgerald v. Urton, 4 Cal. 235; Courtwright V. Dear Biver and Avi. Water and Mining Co., 30 Cal. 573. 66. Partition. — The District Courts have jurisdiction of actions to recover one-half of the value of a partition fence, although the amount sought to be recovered is less than three hundred dollars — such action involving title to land: Holman v. Taylor, 31 Cal. 338. 67 . Probate . — The District Courts have the same control over the persons of minors, as well as their estates, that the Courts of Chancery in England possess. This jurisdiction is conferred by the constitution, and cannot be di- vested by any legislative enactment. The claim of exclusive original juris- diction in the Courts of Probate over the same subject-matter is unfounded: Wilson V. Roach, 4 Cal. 362, approved in Belloc v. Rogers, 9 Cal. 129; Clark v. Perry, 5 Cal. 58; Origgs v. Clark, 3 Cal. 429. The Court of Chancery has JURISDICTION OF COUNTY COURTS. 35 • inherent jurisdiction in an administration suit to appoint trustees, where none have been appointed by the administrator: Dodldn v. Brunt, Law Eep. 6 Eq. 580. This jurisdiction of the District Courts does not, however, apply- to the administration of estates. 68. It is a favorite rule in equity, that when a Court of Chancery gains ju- risdiction of a case for one purpose, it will retain it for others, and not do justice by halves, and thus foster a multiplicity of suits : Belloa v. Rogers, 9 Cal. 129, approved in Hensch v. Porter, 10 Cal. 559; Willis v. Farley, 24 Cal. 499. These decisions are affirmed in Griggs v. Clark, 23 Cal. 429, where it reiterates that " the jurisdiction vested in the Probate Court does not divest the District Courts of their general jurisdiction as Courts of Chancery over certain actions. " ' 69. Taxes in Action of Lavr. — 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 dol- lars, the District Court has no jurisdiction: People v. Mier, 24 Cal. 61, affirmed in Bell v. Crippen, 28 Id. 327; Oourtwright v. Bear River and Aub. Water and Mining Co., 30 Cal. 581; and Mahlstadt v. Blanc, 34 Id. 580. 70. Taxes — In Equity. — If, however, the action is brought undet 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 hun- dred dollars: Bell v. Crippen, 28 Cal. 327. 71. Trespass, Damages for.— District Courts have jurisdiction in all actions to recover damages for trespass upon lands, regardless of the amount of damages claimed. Id. 72. Writs, Issuance of. — District Courts have power to issue writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the exercise of its powers: Cal. Code C. P., sec. 57, subd. 5. ni. OF COUNTY COURTS. 73. There shall be in each of the organized counties of the State a County Court, for each of which a county judge shall be elected by the qualified electors of the county, at the special judicial elections to be held, as provided for the election of justices of the Supreme Court by section 3 of this article. The county judges shall hold their offices for the term of four years from the first day of January next after their election. Said courts shall also have power to issue naturalization papers. In the city and county of San JbVancisco, the Legislature may separate the office of pro- bate judge from that of county judge, and may provide for the election of a probate judge, who shall hold his office for the term of four years: Const, of Cal. art. VI, sec. 7; Code C. P. sec. 83. 36 TEEMS OP COUHT. JUEISDICTION OV COUNTY COUBTS. 74. The jurisdiction of the County Court is both original and appellate. Its original jurisdiction extends: 1. To actions to prevent or abate a nuisance; 2. To actions of forcible entry and detainer; 3. To proceedings in insol- vency; 4. To all special cases or proceedings in which the law giving the remedy, or authorizing the proceedings, con- fers the jurisdiction upon it; 5. To the issuance of writs of habeas corpus, and all writs necessary to the exercise of its power; 6. To inquire, by the intervention of a grand jury, of all public offenses committed or triable in the county; and except in the city and county of San Francisco; 7. To the trial of all indictments, except for treason, misprision of treason, murder and manslaughter. Its appellate jurisdic- tion extends to all cases arising in Justice's or Police Courts : see Code C. P., sees. 84, 85, 86. COUNTY COUBT. 75. The proceedings of this court are construed in the same manner, and with like intendments, as the proceed- ings of courts of general jurisdiction, and to its records, orders, judgments and decrees, there is accorded like force, effect and legal presumptions as to the records, orders, judgments and decrees of District Courts: Code C. P., sec. 87. 76. The true construction of our constitution, art. VI, sec. 9 (now eight), is that the legislature has power to con- fer on County Courts jurisdiction of such specially enu- merated and defined eases, as in its discretion shall be con- fided to those tribunals: Jaclcs v. Day, 15 Cal. 91. TEEMS OF COUET. 77. For the purpose of hearing and determining actions arising under the forcible entry and detainer act of this State, motions for new trials, and the entry of orders and judgments, this court is always open and in session : Code C. P., sec. 89. 78. Where a special term of the County Court was held on the first day of May, upon notice to that effect given on TEEM OP OFFICE. 37 the twenty-fourth of April preceding, the proceedings of the court were irregular, if not void; the statute requiring a notice of not less than ten, nor more than twenty days : Orman v. Biley, 16 Cal. 186. 79. The trial of a cause to determine an election contest had been set for November 20, 1866, in the County Court of Tuolumne county, for which day a special term of court to try said cause had been regularly called. Before that day, on motion of plaintiff founded on affidavit, and on notice to the respondent the judge at chambers granted an order continuing the trial to December 3, 1866; respondent objecting, and excepting thereto. The last named day was not embraced in a regular term of court, nor had any special term been called for that date. On the said twentieth of November the court was not called, but on the third day of December the county judge called the court, and assuming to hold said court, both parties appearing, tried and rendered judgment in said cause: Held, that on said third of December there was no legal term of court, and that trial and judgment were null and void: Norwood V. Kenfield, 34 Cal. 329. 80. It is absolutely essential to the validity of a judg- ment that it be rendered by a court of competent jurisdic- tion, at the time and the place, and in the form prescribed by law. The tribunal before which the trial was had was in no legal sense a court, nor could any consent of parties to the trial confer jurisdiction : Id. TEBM OF OFFICE. 81. The Legislature may fix the commencement of the term, and also the time of election of a county judge, but an act limiting the term to anything less than four years is void ^ro ianlo: Westhrook v. Bosborough, 14 Cal. 180. 82. Where an incumbent resigns before the expiration of his term, there is a vacancy to be filled by the Governor; and his appointee holds till the next general election, and until his successor qualifies: Wesibrook v. Bosborough, 14 Cal. 180. An election to fill such vacancy is a special elec- tion, and the Governor's proclamation is essential to its validity: Id. 38 JURISDICTION OP PEOBATE COUETS. IV. OF PEOBATE COUETS. 83. The Legislature may separate the oflSce of probate judge from that of county judge, and may provide for the election of a probate judge, who shall hold office for the term of four years: art. VI, sec. 7, Const, of Cal. 84. In each county in the State there shall be a Probate Court. The county judge in each county, except in the city and county of San Francisco, shall be judge of the Probate Court. In said city and county, a probate judge shall be elected by the qualified voters thereof, at the time and in the manner provided for the election of the county judge. He shall enter upon the duties of his office on the first day of January next after his election, and shall hold office for the term of four years. He shall be commis- sioned by the Governor, and, before entering upon his du- ties, shall take the constitutional oath of office. And in case of vacancy in the office of probate judge of said city and county, the Governor shall fill the same by granting a commission, which shall continue until the election and qualification of a judge in his place: Laws of 1863, p. 333, sec. 43, OP THE JUEISDICTION OP PEOBATE COURTS. 85. For the jurisdiction of this court, the construction and intendments of its proceedings, and legal presump- tions as to its orders, decrees, etc., see chapter VI of the Code of Civil Procedure. 86. The facts of the death of the intestate, and of his residence within the . county, are foundation facts upon which all the subsequent proceedings of the court must rest: Haynes y. Meeks, 10 Cal. 110, approved in Townsend V. Gordon, 19 Id. 205; Estate of Harlan, 24 Id. 182. 87. Letters of administration upon an estate, granted by the Probate Court, cannot be collaterally attacked by show- ing that the last residence of the deceased was not in that county, and therefore that the court had no jurisdiction: Iriuin V. Scriber, 18 Cal. 499, affirmed; Hallech v. Moss 22 Id. 276. 88. Where S. dies out of the State, leaving property in Santa Clara county, and the Probate Court thereof takes JUBISDICTION OF PBOBATE COURTS. 39 jurisdiction of the estate and grants letters of administra- tion to K. ; the widow subsequently files a petition to re- voke the letters, on the ground that the Probate Court of San Francisco ought to have issued them, whereupon the administrator asks the court to transfer .the cause to that court, representing that the widow and a majority of the witnesses reside there, and that the interest of several per- sons interested in the estate would be advanced by the transfer, to which both parties agreed; the court made an order to transfer. The Probate Court of San Francisco, on the papers being filed therein, refused to take jurisdiction of the cause, and ordered the papers back: Held, that the Probate Court of Santa Clara could not divest itself of ju- risdiction, and vest it in the Probate Court of San Francisco; and that mandamus will not issue to compel the latter court to take jurisdiction: Estate of Scott, 15 Cal. 220. 89. Probate Courts have no jurisdiction to administer ujjon the estates of deceased persons who died prior to the adoption of the constitution : Downer v. Smith, 24 Cal. 114, commented on in Peoplev. Senter, 28 Id. 505, and approved in Coppinger v. Bice, 33 Id. 423. 90. Estates of deceased persons in this 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 adminis- tered on in accordance with the provisions of the probate acts in force. In the following decisions : Clarke v. Perry, 5 Cal. 58; Grimes's Estate v. Norris, 6 Id. 621; Smith v. An- drews, Id. 652; and Haynes v. Meelcs, 10 Id. 110, it was held that Probate Courts were courts of inferior or limited juris- diction, and not invested with plenary powers: Irwin v. Scriher, 18 Cal. 499; Townsendy. Gordon, 19 Id. 189. But the law, in this respect, has been changed. 91. The proceedings of probate courts, within the juris- diction conferred on them by the laws, shall be construed in the same manner and with like intendments, as the proceedings of courts of general jurisdiction; and the records, orders, judgments and decrees of said Probate Courts, shall have accorded to them like force and effect, and legal presumptions as the records, orders, judgments and decrees of the District Courts: Code C. P., sec. 98. 40 JUEISDICTION OF JUSTICES* COUETS. 92. When the Probate Court has jurisdiction of the sub- ject-matter, all intendments are, under the statutes, in favor of the correctness of the action of the court, the same as in other courts of records: Lucas v. Todd, 28 Cal. 182. The same presumptions as to jurisdiction attach to the proceedings of Probate Courts, within the jurisdiction con- ferred on them by law, as in the case of District Courts : Irwin V. Scriber, 18 Cal. 499. JURISDICTION NOT EXCLUSIVE. 93. The District Courts of this State have the same con- trol over the estates and persons of minors that the Courts of Chancery in England possess. This jurisdiction is con- ferred by sec. 6, art. VI of the constitution of California, and cannot be divested by any legislative enactment, and the claim of exclusive original jurisdiction in Probate Courts over the same subject-matter is unfounded : Wilson v. Roach, 4 Cal. 362, approved in Belloc v. Rogers, 9 Id. 129, and Griggs v. aark, 23 Id, 427. 94. But since the adoption of the constitutional amend- ments of 1862, District Courts have no jurisdiction to try issues framed in Probate Courts; and sections twenty and two hundred and ninety-four of the Probate Act have be- come inoperative : Estate of Tomlinson, 35 Cal. 509. 95. In Nevada, the Probate Court has the power to issue the writ of restitution in an action brought before it on certiorari ; Paul v. Armstrong, 1 Nev. 82. V. OE JUSTICES' COURTS. 96. The Legislature shall determine the number of justices of the peace to be elected in each city and township of the State, and fix by law their powers and responsibilities: Const, of Cal., art. VI, sec. 9. 97. The civil jurisdiction of these courts within their re- spective townships or cities extends: 1. To an action on contract, for the recovery of money only, if the sum claimed, exclusive of interest, does not amount to three hundred dollars; 2. To an action for damages for injury to the per- son, or for taking or detaining personal property, or for JURISDICTION OF JUSTICES' COURTS. 41 injuring personal property, or for an injury to real property, where no issue is raised by the answer involving the plaint- iff's title, or possession of the same, if the damages claimed do not amount to three hundred dollars; 3. To an action for a fine, penalty, or forfeiture, not amounting to three hundred dollars, given by statute or the Ordinance of an incorporated city or town ; 4. To an action upon a bond or undertaking conditioned for the payment of money, not amounting to three hundred dollars, though the penalty exceeds that sum; the judgment to be given for the sum actually due. When the payments are to be made by in- stallments, an action may be brought for each installment as it becomes due; 5. To an action to recover the posses- sion of personal property, when the value of such property does not amount to three hundred dollars; 6. To take and enter judgment on the confession of a defendant, when the amount confessed, exclusive of interest, does not amount to three hundred dollars: Code 0. P., sec. 114. Such ju- risdiction shall not extend, however: 1. To a civil action in which the title or possession of real property is put in issue; nor, 2. To an action or proceeding against ships, vessels, or boats, where the suit or proceeding is for the re- covery of seaman's wages for a voyage performed either in whole or in part without the waters of this State : Code C. P., sec. 115. The territorial jurisdiction extends to the limits of the city or township, but mesne and final process of Jus- tices' Courts may be issued to any part of the county in which they are held: Code, C. P., sec. 116. 98. The criminal jurisdiction of Justice's Courts is fixed by section 117 of the Code, C. P. 99. A justice of the peace has no power to vacate or set aside a judgment rendered by him, except upon motion for a new trial: Winter v. Fitzpatrick, 35 Cal. 269. 100. As to organization of Justices' Courts in the city and county of San Francisco, proceedings in, etc., see act of March 26, 1866, Statutes 1865-6, and the subsequent amendments, a concise statement of which, with the rules of said court, may be found in "Harston's Practice," page 56 et seq. 42 WHERE ACTIONS TO BE TRIED. CHAPTEE III. PLACE OF TRIAL. 1. 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 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 the 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. ACTIONS TO BE TRIED WHERE THE SUBJECT-MATTER IS SITUATED. 2. The actions which are to be tried where the subject- matter or some part of it is situated, subject to a change of place of trial are as follows: 1. For the recovery of real property, or an interest therein, etc., or for injuries to real property; 2. For the partition of real property; and, 3. For the foreclosure of a mortgage or other lien on real property. And if such real property be situated in two counties, then in either county which the plaintiff may select: Cal. Code, sec. 392; N. Y. Code, sec. 123; Nash's Ohio PI. p. 16-17; Wash. Terr. sec. 37; Idaho, sec. 18; Arizona, sec. 18. 3. By the laws of Oregon, sec. 41, and of Iowa, sec. 2795, the recovery of personal property is included in this section, and is made a local action; while the laws of Ari- zona include mining claims, but make no provision for the contingency of the property or estate lying in contiguous counties: Code of Arizona, sec. 18. In California, also, mining claims are included under the provisions of this section: Watts y. White, 13 Cal. 321; and while it provides for the trial in certain counties, the situation of the prem- WHEEE ACTIONS TO BE TBIED. 43 ises, not the residence of the parties, determines the county: Doll v. Feller, 16 Cal. 433. 4. This section does not apply to actions for lands lying out of the State: Newton v. Branson, 3 Kern. 687; Mussina V. Belden, 6 Abb. Pr. 166. But to actions for the posses- sion of real property within the State : Mairs v. Ramsen, 3 Code E. 138. Or, for the determination of a right or interest therein: Woody. Hbllister, 3 Abb. Pr. 14; StarJcs v. Bates, 12 How. Pr. 465. Or, for the recovery of title thereto: Bing v. McCoun, 3 Sandf. 524; Wood v. Hollister, 3 Abb. Pr. 14; Newton v. Bronson, 13 N. Y. 587. Or, for the foreclosure of mortgages thereon : Vallejo v. Bandall, 5 Oal. 461; Mlarshy. Loivry, 26 Barb. 197; 16 How. Pr. 41; Wood V. Hollister, 3 Abb. Pr. 14; but see Baws v. Garr, 17 Abb. Pr. 96; StarTcs v. Bates, 12 How. Pr. 465; Ring v. McCoun, 3 Sandf. 524. As to the local jurisdiction of the same tribunal of a controversy affecting property within its limits, see Nichols v. Bomaine, 9 How. Pr. 512. 5. The court may on motion change the place of trial in the following cases: 1. When the county designated in the complaint is not the proper county; 2. When there is reason to believe that an impartial trial cannot be had therein; 3. When the convenience of witnesses and the ends of justice would be promoted by the change; 4. When from any.cause the judge is disqualified from acting: Code, sec. 397. 6. The motion must be made by the defendant to change the place of trial at the time he appears and answers or demurs. He must at the same time file an affidavit of mer- its, and a demand in writing, that the trial be had in the proper county: Code 0. P., sec. 396; see, also, Fearkes v. Freer, 9 Cal. 643; Jones v. Frost, 28 Id. 246, and Make v. Beynolds, 38 Id. 560. An appeal lies from an order grant- ing or denying the motion: Code, sec. 939. As to disqual- ification of judge, see People v. De la Ouerra, 24 Cal . 75. That the plaintiff is also entitled to move for the change of . place of trial, see OreweU v. Walder, 23 Id. 168. The court is not bound of its own motion to change the venue : Watts V. White, 13 Id. 324. The prima facie right of de- fendant to have the place of trial changed to the pkce of his residence may be overcome by the convenience 4A ACTIONS TRIED WHERE PARTIES RESIDE. of witnesses: Jenkins v. Cal. Stage Co., 22 Id. 538. The discretion of the court in cases of conflict will not be dis- turbed unless it has been abused : Hancliett v. Finch, 47 Cal. 192. Mere preponderance in number of witnesses is not conclusive: Id. Names of witnesses must be stated: LoeJir V. Latham, 15 Cal. 418; 6 Cowen, 389. As to change upon the ground that an impartial trial cannot be had, con- sult Sloan V. Smith, 3 Cal. 412; People y. Fisher, 6 Id. 155; Watson V. Whitney, 23 Id. 378. As to the place to which the trial may be changed, see Code 0. P., sec. 398. 7. Suits between counties shall be commenced and tried in any county not a party to such action : Code, sec. 394. And suits against a county in any court of that county, or District Court of the district in which such county is situ- ated: 7c?. ACTIONS WHICH ARE TO BE TRIED WHERE CAUSE OF ACTION AROSE. 8. The following actions shall be tried where the cause of action, or some part thereof arose, subject to a change of the venue: 1. For the recovery of a forfeiture or penalty, except, etc.; 2. Against a public officer for an official act: Cal. Code, sec. 393; N. Y. Code, sec. 124; Oregon, sec. 42; Wash. Terr. sec. 38; Idaho, sec. 19; Arizona, sec. 19. This does not apply to omissions or neglects, but to affirm- ative acts of officers: 9 Cal. 420; 13 Wend. 35. 9. In Ohio and Iowa in addition, "an action on the offi- cial bond of an officer:" Nash's Ohio PL, sec. 47; Iowa Code, sec. 2796; also. Park v, Carnley, 7 How. Pr. 355/ People V. Hayes, 7 How. Pr. 248; Brown v. Smith, 24 Barb. 419; Howland v. Willetls, 5 Sandf. 219, affirmed in 5 Seld. 170; Poiier v. Pillsbury, 11 How. Pr. 240; People v. CooJc, 6 Id. 448; Houck v. Lasher, 17 Id. 520. But this section was held not to apply to officers of the United States: Freeman V. Robinson, 7 Ind. 321. ACTIONS WHICH ARE TO BE TRIED WHERE PARTIES RESIDE. 10. In all other cases the action is to be tried where the defendants or some of them reside at the commencement of the action; or, 1. If residing out of the State, or if about to depart from the State; 2. If the county in which ACTIONS TRIED WHEEE PARTIES RESIDE. 45 tliey reside be unknown, such action may be tried where either of the parties reside, or where service may be had subject to a change of venue: Cal. Code, sec. 395; N. Y. Code, sec. 125; Oregon, sec. 43; Idaho, sec. 20; Arizona, sec. 20. 11. Corporation— Residence of.— The principal place of business of a corporation is its residence: Jenkins v. Cal. Steam iVcm. Co., 22 Cal. 537; Eubbard v. Nat. Pro. Ins. Co., 11 How. P. R. 149; Pond v. Hudson Biv. B. B. Co., 17 How. Pr. 543. As to foreign corporations: see International Co. v. Sweelland, 14 Abb. Pr. 240. 12. Divorce. — A wife living apart from her husband, may bring action of divorce against him in the county in which she resides: 14 Pick. 1S5; 14 Mass. 231; 2 Id. 153, 167; 3 Id. 184; 2 Cow. and H. notes, 879; 9 Greeul. 147; Fence v. Vence, 15 How. Pr. 497; Id. 576. 13. Habeas Corpus. — The writ of habeas corpus should notissiie, to run out of the county, unless for good cause shown: Sx parte Ellis, 11 Cal. 225. 14. Injury to Person. — Actions to recover damages for injuries to person should be brought under this section: Mclvor v. McCabe, 16 Abb. Pr. 319. An action for creating a private nuisance, is an action for an injury to the person: Bay v. Sellers, 1 Duvall (Ky.), 254. 15. Mandamus. — Proceedings for a mandamus to compel the execution of a sheriff's deed to a redemptioner, may be commenced in the county where the relator resides: McMillan v. Bickards, 9 Cal. 420. 16. Quo Warranto.— In quo warranto, the people being a party, their residence extends to every county: Peoples. Cook, 6 How. Pr. 448. 17. Railroad Corporations. — As to the residence of railroad corpora- tions: see Fermont B. B. Co. v. Northern B. B. Co., 6 How. Pr. 106; Sher- wood Y.Saratoga B. B. Co., 15 Barb. 650; Selden v. N. T. & Sari. B. B. Co., 15 How. Pr. 17; People v. Pierce, 31 Barb. 138; Conroe v. Nat. Pro. Ins. Co., 10 How. Pr. 403; Hubbard v. Nat. Pro. Ins. Co., 11 How. Pr. 149; see, how- ever. Pond V. Hudson Biver B. B. Co., 17 How. Pr. 543. 18. Residence in Different Counties. Where the parties reside in different counties the suit shall be commenced in the county where the prin- cipal transaction occurred, or where it appears the largest number of wit- nesses reside: Jordan v. Garrison, 6 How. Pr, 6. " Transaction, " when relating to a contract, includes the whole proceeding, beginning with the negotiation, and ending with the performance : Bobinson t. Flint, 7 Abb. Pr. 393, note. 46 PARTIES TO CIVIL ACTIONS. CHAPTEE III. PARTIES TO CIVIL ACTIONS. 1. 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 plaint- iffs, 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 defendant in error. 2. 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. 3. So far as this general statement is concerned, it ap- plies equally to actions under the common law system, and to actions under a code; but the mode by which the interest which make 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 rendered against them all in a body. The necessity of joining all as plaintiffs in whom was vested the whole legal title, was imperative; but in certain cases the plaintiff had the right to elect whether he would sue all who were liable; but wherever judgment passed against two or more defendants, it was necessarily joint. 4. The suit in equity, however, was hampered by no such arbitrary requirements. Its form was controlled by two general and natural principles: 1. That it should be prose- cuted by the party beneficially interested, instead of the party who had the apparent legal right, and with him CAUSE OF ACTION. 47 might be joined all others who had an interest in the sub- ject-matter, and in obtaining the relief demanded; and, 2. That all persons, whose presence was necessary to a com- plete determination and settlement of the questions in- Tolved, should be parties plaintiff or defendant, so that all their rights and interests, whether joint or several, or how- ever 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. Belief could be granted the defend- ant, or one of several defendants, against the plaintiffs, or against the other defendants. 5. The codes of procedure of the different States, while differing somewhat 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. CAUSE 01" ACTION. 6. 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 infringement of that right by an- other person, the defendant. The expression, "cause of action," includes in its meaning all the facts which together constitute the action, and therefore we cannot conceive of a cause of action apart from the person who alone has the right to maintain it. 7. The right which is violated or is infringed may be one which is created by a contract or agreement, express or implied, or it may be a natural right, or one which exists in favor of the plaintiff as against every other person inde- pendently 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, nat- urally divides civil actions into two primary classes or divisions, viz. : actions ex contractu, for the violation of con- tract rights, and actions ex delicto, for the violation of nat- ural rights. 8. In the case of a written contract wherein A. agrees to sell and deliver certain goods to B., and B. agrees to pay 48 BEAL PARTY IN INTEREST. 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 ac- tion therefor, and against whom it must be brought. The right, as well as the liability, is fixed by the contract, and cannot exist independently of it. But in the case of a tort, as if A. wrongfully imprisons B., the right of B. to his per- sonal liberty exists against all the world; but the right having been -violated only by A., be alone is liable to an ac- tion therefor. This right of personal liberty is absolute; it constantly exists, and does not depend upon any contract or other relation of the parties formed by themselves, while in the other case the right is created by the parties, and cannot exist without it. Upon this difference depends the distinction between actions on contract and action 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 interest 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 dis- cuss in this connection the several kinds of contracts classed as negotiable or non-negotiable, nor the different kinds of torts as affecting the person or property, and the distinc- tions to be taken between them. PARTIES PLAINTIFF. 9. All the States having a well defined 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 in- terest." To this general rule each code names certain ex- ceptions, which will be hereafter noticed. This general rule applies to all actions, whether founded upon a tort or upon a contract. REAL PARTY IN INTEREST. 10. Where codes do not prevail, actions upon contracts must be brought in the name of the party in whom the legal EEAL PARTY IN INTEREST. 49 interest is vested, or whose legal interest has been injuri- ously affected; and the legal interest was held to be vested in him to whom the promise was made, and from 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 contract sued on should be made parties to the suit: Barber v. Gamllis, 30 Cal. 92. 11. 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 judgment in the cause. The interest which warrants making a person a party is not an interest in the question involved merely, but some interest in the subject-matter of litigation : Vallette v. Whitewater Valley Canal Co., 4 McLean, 192; 5 West. Law Jour. 80; see Kerr v. Watts, 6 Wheat. 550. The rule should be restricted to parties whose in- terests are in issue, and are to be affected by the decree : Mechanics' Ble. of Aleooandria v. Seton, 1 Pet. 299; Elmendorf V. laylor, 10 Wheat. 152; Stm-y v. Livingston, 13 Pet. 859; United States v. Parrot, 1 McAll. 271. The interest of the plaintiff must be connected with the subject-matter of the action upoq which the defendant is liable, though it is not necessary that he should be connected to it by a legal title. Hence, in actions ex contractu, the parties must stand re- lated to the contract which forms the basis of the action. 12. Even equity will not make a defendant liable, upon a contract, to a plaintiff who is neither a party to the con- tract, nor the legal or equitable owner of the contract right to the subject-matter of the suit, nor the legal representa- tive of such owner. For example: A. contracts with B. to sell and deliver to him certain goods. B. sells the same goods to 0. and agrees to deliver them to him in the same manner he would if the goods were already in his posses- sion. A. fails to deliver them to B., and B. therefore can- not deliver them to C. In such case 0. cannot maintain an action against A. for the non-delivery of the goods, notwith- standing B. would have delivered to 0. if he had, received them; there being no privity between C. and A., that is, 0. is in no way related to the contract by which A. had 4 50 REAL PAETY IN INTEREST. agreed to deliver them; but it would be otherwise if B. had assigned his contract with A. to 0. Nor would it, in the case above supposed, be any defense to an action brought by B. against A, for the non-delivery, that B. had resold the goods to 0., 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 cre- ated no relation between A. and 0., nor between 0. and the property, for the property never passed from A., because of the non-delivery. 13. 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 main- tain an action against A. concerning it; or, if the goods after the sale to B. had remained 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. and B., is in fact a separate contract from the sale, and im- poses the duty upon A. of delivering the goods to whomso- ever 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 contract must be the basis of the action brought by 0. lu 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. 14. In regard to actions upon promises made for the benefit of third persons, there has been much conflict in the decis- ions of the courts in the different States. In the late case of Frice v. Trusdell, decided at the February term, 1877, and reported in 1 Stewart, 200, the court said: "The doctrine is well settled in this State (New Jersey), that if, by a con- tract not under seal, one person 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 case to which the court referred as settling that doc- trine in that State was Joslin v. The N. J. Car Spring Co., 7 Yr. lil. The facts in the latter case (which was an action at law) were, that the plaintiff was employed as foreman by KEAL PARTY IN INTEREST. 51 Fields & King, manufacturers, at a salary of two thousand dollars a year from February 1, 1870, to October 31, 1871, at which last date the defendants bought Fields & King's stock and assets, assumed their liabilities, and carried on their business. The plaintiff assented to this transfer of lia- bility, and continued to act as foreman up to January, 1872, when he was discharged. This action was brought to recover from the defendants his salary from February 1, 1870, to January, 1872. The jury returned a verdict in his favor, and on a rule to show cause why the verdict should not be set aside, it was held that he was entitled to recover his~ salary for the whole period . The court said: " It is stated in some of the authorities cited, as a result of a reyiew of cases, that this is now well settled as a general rule. It must be borne in mind, however, that this case falls within a special class of cases where the party who makes the promise has received from the party to whom the promise is made, money or property, from or out of which he is to pay creditors of the second party : See Miller v. Whipple, 1 Gray (Mass.) 317, and in this class of cases the right of the creditor, the party for whose benefit the promise was made, to recover, is, we think, sustained by the weight of author- ity:" See, also, Worrnouth v. Hatch, 33 Gal. 121. 15. The action of assumpsit, at common law, could not be maintained upon such promise, unless upon the theory that there was an implied promise to the creditor, for in that form of action 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 con- tract between strangers has passed to the party making the promise. If, however, the action is brought in "case" in- stead of assumpsit, there would be good grounds for the dis- tinction. The case of Price v. Trusdell, supra, was in chancery, and is fully sustained upon equitable principles. Under the code, which not only abolishes the distinctions between actions at law and suits in equity, but requires that every action shall be brought in the name of the real party in interest, there would seem to be little doubt of the right of the party for whose benefit the promise was made to maintain the action: Scott v. Pilldnaton. 15 Abb. Pr. B. 280. 52 BEAL PAETT IN INTEREST. Nor do we think that this conflicts with the rule aboye laid down, that "the plaintiff must stand related to the con- tract, for the test is not the legal but the equitable title, right or interest, and that interest is directly created by the contract." 16. The relation to the contract necessary to enable one to maintain an action upon it may be created in many dif- ferent ways. 1. By the contract itself, as in the case of the original parties to the contract; 2. By transfer or assign- ment; 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 ac- tion pending, or for the enforcement of a judgment ren- dered. 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 in- debted to him, yet the affidavit for the writ and the answer of the garnishee form an issue 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 defendant in the principal case, yet it is more analogous to process of attach- ment against the principal debtor's property, by which a lien is secured upon it in advance of the judgment, since judgment cannot be obtained against the garnishee until the plaintiff has obtained judgment against the principal de- fendant, and the moneys obtained by the proceeding must be appliedto the satisfaction of the principal judgment, and does not otherwise become the property of the plaintiff. 17. The plaintiff must represent the entire interest in the cause of action. The codes usually provide that ' ' all per- sons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided."^ 1. See Code of Nevada, sec. 1075; Code of Oregon, sec. 2543; Code of Iowa, sec. 25i3- Code of Idaho (Bevised Laws, 1S74-5) ; Code of Kentucky, sec. — ; Code of Ohio, sec. 36. EEAL PABTY IN INTEEEST. 53 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.^ 18. The defendant in an action who has made but one con- tract, 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 wher- ever 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 interest of each from the other, or unless the amount to which each is entitled has been determined by the mutual agreement of both par- ties 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 comprehend or involve a contract with either of them sep- arately, as is evident from the well known doctrine that a covenant or promise to two, if proved in an action brought by one of them, sustains a plea which denies the existence of the contract."^ 20. The question as to the joinder of parties, being one of the principal grounds of demurrer, is one of great im- portance and frequent adjudication. It follows from the statement that the plaintiff or plaintiffs must represent the entire cause of action (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." 1. The exceptions -will be found under the head of "Special Cases Eegulated by Stat- ute." •> -arrfheren v. T.amaston. 1 Ex. 844. ner Curiam. 54 EEAL PAETY IN INTEREST. 21. Exceptions to the foregoing general rule existed at common law, and are provided for the codes. The death of one of the persons thus interested, or his refusal to join, have been held sufficient reasons for the failure to make such person a co-plaintiff, the reason appearing in the com- plaint, and, in case of refusal to join, he should be made a defendant: see California Code of Civil Procedure, sec. 382, and Nightingale v. Scannell, 6 Cal. 509, and S. C. 18 Cal. 322; Hays v. Lasaier, 3 Arkansas, 565; Moody v. Bewail, 14 Me. 295. 22. 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 defendant, being both before the court, may have their mutual rights and interests adjusted in the same de- cree or judgment; or if, from a complication of accounts, as between partners, that is inconvenient, the recovery must enter into the accounting between them. The person thus made a defendant is equally with the plaintiff bound by the judgment or decree. 23. Another exception, provided for by the same section of the code, is 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. 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 de- termination. 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 becomes a matter for judicial decision, governed by the spirit of the code and the facts of the particular case. 24. In equity, the rule that all persons materially inter- ested must be made parties, was always dispensed with COMMON INTEREST. 55 where it was impracticable, or very inconvenient, as in the case of a very numerous association in a joint concern, in effect a partnership: Cockburn v. Thompson, 16 Ves. 321; Story's Eq. PI., sec. 135; Gorman v. Bussell, 14 Cal. 540. 25. In Andrews v. 31okelumne Sill Co., 7 Cal. 333, it was held that this section in the former Practice Act was in- tended to apply to suits in equity, and not to actions at law. It is evident that the relief granted in any such case must be equitable; for those not joined could not otherwise be affected by the judgment or decree; but the very fact that it is impossible or very inconvenient to bring in all the parties, necessarily brings the case within the equitable jurisdiction of the court, even though the caixse of action were purely a legal one if all the parties were regularly be- fore the court. In an action at common law the require- ment was imperative that all the parties should be brought in; but its impracticability was always a sufficient reason for invoking the aid of a court of equity, as it had the power to relax the rule, while a court of law had not. We there- fore conclude that the nature of the cause of action, apart from the question of the practicability of bringing in all the parties, has nothing to do, necessarily, with the appli- cation of this provision of the code. But it has been held not to apply to actions of ejectment: see 7 Cal. 330, and 37 Id. 389. COMMON INTEEEST. 26. The test of the unity of interest referred to in this section is that joint connection with, or relation to, the sub- ject-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 con- tractors simply: Jones v. Felch, 3 Bosw. 63; Buchman v. Brett, 35 Barb. 596; Gibbons v. Peralta, 21 Cal. 632, 633. In all these cases the ■ right to assert or to 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 : Beid v. The Eoergreens, 21 How. (N.Y.) 319. The rule which permits the omission of parties, and the filing of a bill by one in behalf of all the 56 EXECUTOES AND ADMINISTRATOBS. others, is founded on necessity, and is established to pre- vent a failure of justice which could not be otherwise avoided: Bouton v. Citt/ of Brooklyn, 15 Barb. 375; Smith v. Lockwood, 13 Barb. 209; Toumer v. Tooley, 38 Barb. 598. TENANTS IN COMMON, ETC. 27. "All persons holding as tenants in common, joint tenants, or coparceners, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party:" Cal. Code C. P., sec. 384. This provision of the code requires no comments. It authorizes one, or any number, to join; but only those who join are affected by the judgment. SPECIAL CASES PEOTEDED EOE BY STATUTE. 28. The provision that every action must be prosecuted in the name of the real party in interest has certain excep- tions, which will be noticed in their order. Section 369 (Cal. Code) provides : ' ' An executor, admin- istrator, 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 :" see, also, N. Y. Code, sec. 113; Nash's Ohio PI., sec. 27; Laws of Iowa, sec. 2758; Oregon, sec. 29; Idaho, sec. 6; Nevada, sec. 6; Ari- zona, sec. 6. EXECUTOES AND ADMINISTEATOES. 29. 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: 9 Co. 37; 1 Chitt. PL 13; 1 Saund. 291; 3 Bac. 32; Toll. 68. Bodle v. Hulse, 5 Wend. 313. By section 1355, Cal. Code, only those who have been appointed by the court should join; "those appointed 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 EXECUTORS AND ADMINISTEATOBS. 57 may sue alone in his own right on a guaranty executed since decedent's death: Packer v. Willson, 15 Wend. 343. 30. The provision that an executor may sue, without join- ing with him the person for whose benefit the action is pros- ecuted, has no application in ease of an action for the con- struction of a will: Hobart College v. Mizhugh, 27 N. T. 130. Executors have the right to institute actions under the gen- eral authority conferred by statute: Curtis v. Sutter, 15 Id. 259; Ealleck v. Mixer, 16 Id. 579; TescJimacher v. Thomp- son, 18 Id. 20. 31. "Actions for the recovery of any property, real or per- sonal, or for the possession thereof, and all actions founded upon_ contracts, may be maintained by and against execu- tors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates:" Cal. Code C. P., sec. 1582. 32. In the foregoing section, actions to quiet title to lands are omitted. By sec. 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." 33. As executors and administrators are required to take, into their possession all the estate of the decedent, real and personal, (sec. 1581), they must have the right to maintain an action for its possession, without being compelled to ob- tain the consent of the heirs or devisees, but it is not clear that the executor 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 execution of the trust that such ac- tion should be brought, he might, if the heirs or devisees refused to join as plaintiffs, make them defendants, under sec. 382 : but see Curtis v. Sutter, 15 Cal. 259. 34. 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 : Arm- strong V. Hall, 17 How. Pr. 76, compare Pugsley v. Aithen, 11 N. Y. 494. In actions upon joint and several contracts, the administrator cannot be joined with the survivor, be- 58 EXECUTOKS AND ADMINISTEATOES, caxise one is de honis testatoris, and the other de bonis propriis: Humphrey v. Crane, 5 Cal. 173; approved in May r. Hanson, 6 Cal. 642; Gray v. Palmer, 9 Cal. 616. 35. An administrator can maintain an action for the wrongful conversion or embezzlement of property of the in- testate: Jahns V. Nolting, 29 Cal. 507; Seckman\. McKay, 14 Id. 250, referred to in James v. Nolting, 29 Cal. 512; Sheldon v. Hoy, 11 How. Pr. 11. Or he may maintain an action in replevin: Hallech v. Mixer, 16 Cal. 575. 36. An administrator may maintain an action for trespass on the real estate of the testator : Haight v. Green, 19 Cal. 118; Bockwell v. Sanders, 19 Barb. 473. Or may foreclose a mortgage: Harioood v. Marye, 8 Cal. 580. Or to set aside fraudulent deeds made by deceased: Code, sec. 1589. 37. An administrator may maintain an action on a note made payable to him as administrator: Corcoran v. Doll, 32 Cal. 82; Cooper v. Kerr, 3 Johns. Cas, 606; Eagle v. Fox, 28 Barb. 473; Bobinson v. Crandall, 9 Wend. 425; Bright v. Currie, 5 Sand. 433; Sierritt v. Seaman, 2 Seld. 168. It was held in Massachusetts that an administrator of a de- ceased promisee, and the surviving promise of a promissory note, cannot join in bringing an action on the note: Smith v. Franklin, 1 Mass. 480. 38. It was held that an administrator de bonis nan, cannot support an action in his own name for the price of goods of his intestate, sold by the previous administrator: Colder v. Pyfer, 2 Cranch C. Ct. 530. On a demand due to the tes- tator before his decease, the executor may sue either in his individual capacity, or in his capacity as executor: Merritt v. Seaman, 6 N. Y. (2 Seld.) 168. So he may sue as administrator, or in his own right, upon a note made or indorsed to him as administrator: Bright -v. Currie, 5 Sandf. 433. 39. In an action for conversion, after the death of the intestate, the administrator may sue in his own name prop- erly, 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 : Sheldon v. Hoy, 11 How. (N. Y.) 11. TRUSTEES OF AN EXPRESS TRUST. 59 40. A foreign executor or administrator cannot sue here in his representative capacity. His authority does not extend beyond the jurisdiction of the government under which he was invested with his authority: Cal. Code C. P., sec. 1913. The objection that a foreign administrator can- not sue must be taken by demurrer: Bobinson^. Wells, 18 •Abb. (N. Y.) 191; S. C. 26 How. 15; 1 Eob. 666. 41. The assignee of a thing in action transferred by such foreign executor or administrator, may sue the debtor resi- dent here. The disability of the representative is personal, and does not effect the subject of the action; and in the ap- plication of this rule, executors and administrators made or appointed under the laws of any other State in the Union are regarded as foreign : Peterson v. Chemical Banle, 32 N. Y. (5 Tiff.) 21. TRUSTEES OF AN EXPRESS TRUST. 78. A trustee of an express trust within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another: Cal. Code C. P., sec. 369 (Cal. Pr. Act, sec. 6; Laws of Cal. 1854, p. 84); N. Y. Code, sec. 113; Ohio Code, sec. 27; Iowa, sec. 2758; Oregon, sec. 29; Nevada, sec. 6 (Compiled Laws, 1069); Idaho, sec. 6; Arizona, sec. 6. Such a trustee may sue without joining with him the person for whose benefit the action is brought. 79. The following are trustees of an express trust: A mercantile factor: OrinneU v. Schmidt, 2 Sand. 706. An agent contracting as agent, without disclosing name of prin- cipal: Morgan v. Beid, 7 Abb. Pr. 215. An auctioneer: Bogart v. O'Began, 1 E. D. Smith, 590; Hulse v. Young, 16 Johns. 1; MinturnY. Main, 3 Seld. 220, affirming Minturn V. Allen, 3 Sand. 50. The managing owner of a vessel: Ward V. Whitney, 3 Sand. 399. A contractor for benefit of third parties: Bowland v. Phalen, 1 Bosw. 43. The out- going trustees of an association : Davis v. Garr, 2 Seld. 124. An agent for a foreign principal: Considerant v. Brisbane, 22 N. Y. 389; HaUchtv. Femberton, 4 Sandf. 657. The officer of a foreign bank: Myers v. Machado, 6 Duer, 678. Or of a foreign government: Feel v. Elliot, 16 How. Pr. 60 TEDSTEES OF AN EXPRESS TRUST. 483; Bepub. of Mex. v. Arrangois, 11 How. Pr. 1. The as- signee of an insurance policy in ttust: St. John v. Am. Mut. L. Ins. Co., 2 Duer, 419. 80. So, also, a trustee for the benefit of creditors is a trustee of an express trust: Mellen v. Hamilton Fire Ins. Co. 5 Duer, 101; Byerss v. Farivell, 9 Barb. 615; Leiois v. Ora- ham, 4 Abb. Pr. 106; Fletcher v. DerricJcson, 3 Bosw. 181. Such trustee may sue individually as holder of a promissory note: Bititerfield v. ilacomber, 22 How. Pr. 150; Ogden v. Prentiss, 33 Barb. 160. Trustees for benefit of creditors must sue jointly: Brinlcerhoff v. JVemple, 1 "Wend. 470. If a debtor assigns his property to trustees to be by them sold, and the proceeds to be divided pro rata among the creditors, a creditor in an action for an enforcement of the trust must join all the creditors as defendants: McPherson V. Parker, 30 Cal. 455. The president or treasurer of an incorporate association is the trustee of an express trust: Tihhets V. Blood, 21 Barb. 650. Or the nominal proprietor of an individual bank: Burhanh v. Beach, 15 Barb. 326. The people, in any case where bond is taken to them for the benefit of individuals, are trustees of an express trust : People V. Norton, 5 Seld. 176; Bos v. Seaman, 2 G. R. 1; People V. Laios, 3 Abb. Pr. 450; People v. Walker, 21 Barb. 030. For a public injury, in New York, the attorney-gen- eral is the proper party to sue: Korffy. Green, 16 How. Pr. 140; BooseveUv. Draper, 16 How. Pr. 137; 23 N. Y. 318; People v. Mayor of N. Y. 19 How. Pr. 155; People v. Albany and Vt. B. B. Co., 19 How. Pr. 523; Female Assn. of N. Y. V. BeeJcman, 21 Barb. 565. 81. It has been held that the priest who appears to have charge of church property is the proper party plaintiff in all actions concerning it: Saiiiillan v. Moses, 1 Cal. 92. This, however, depends entirely upon the fact of in whom the title stands, and whether the society is incorporated and how incorporated. A patentee of land confirmed to the wrong person holds the land in trust for the real parties in interest: Salmon v. Symonds, 30 Cal. 301; see, also, Blud- worth V. Lake, 33 Id. 255. And the court will compel a conveyance by the trustee to the real party in interest: Salmon v. Symonds, 30 Id. 301. One trustee cannot sue TRUSTEES OP AN EXPEESS TRtJST. 61 another, while he remains such, for a breach of trust: Trustees of Meth. Epis. CJh in Pultney v. Steioart, 27 Barb. 653. The cestui que trust is the only proper person to main- tain such an action against the trustee: Female Assn. of N. Y. T. Beehman, 21 Barb. 565; Griffin v. Ford, 1 Bosw. 123. In general a cestui que trust cannot sue his trustee at law: 1 Holt. N. P. 0. 641; 2 Moore, 240; 8 Taunt. 263; see 1 Ghitt. Gen. Pr. 6, 7, 8. 82. A cestui que trust, under a deed of family arrange- ment, settled his share. There were two trustees of the settlement, one of whom was also a trustee of the deed of arrangement. In a suit to administer the trusts of this deed, and make the trustees responsible for breach of trust : Held, that as a trustee of the settlement was an accounting party to the suit, the cestuis que trust under the settlement should be made parties: Payne v. Parker, Law Eep. 1- Bq. 200. In suit against executors of deceased trustee, the cestui que trust is the proper plaintiff, not a surviving trus- tee: Bartlett v. Hatch, 17 Abb. Pr. 461. Where a mortgage is executed by the trustee upon the trust estate, the cestui que trust is a necessary party to a suit for foreclosure, and if the cestui que ti~ust is a feme covert, her husband is also a necessary party: Mavrich v. Greer, 3 Nev. 52. A mere nominal trustee cannot sue in equity in his own name, but the cestui que trust must be joined: Malim, v. 31alin, 2 Johns. 238; Baker v. Devereaux, 8 Paige, 513; Fish v. Howland, 1 Paige, 20; Schenk v. Ellingwood, 3 Edw. 175. The trustee of an express trust is entitled to bring an action in his own name for the benefit of his cestui que trust: Winters v. Bush, 34 Oal. 136. 83. Where one is administrator of a county treasurer who collected moneys as tax collector, he is a trustee de son tort: People v. Houghtaling, 7 Gal. 348, approved in G^ztw- ter T. James, 9 Id. 658. Trustees of religious societies cannot sue as such except by the corporate name or title of the society: Bundy v. Birdsall, 29 Barb. 31. Trustees de facto, though it be not duly incorporated, have possession of the house under color of right, and may sue a trespasser: Green v. Cady, 9 Wend. 414. A mere consignee of goods as agent for the consignors, cannot maintain an action for injury to them during the voyage: Ogden v. Cuddington, 2 62 MAEEIED WOMEN. Smith, 317; Price v. Poiuell, 3 Comst. 322; Bows v. Cobb, 12 Barb. 310. Prima facie, a consignee is presumed owner till presumption is rebutted: Pricey. Powell, 3 Comst. 322; Browefy. Brig Water Witch, 19 How. Pr. 241. As to stop- page in transitu and right to reclaim, see Harris v. Pratt, 17 N. Y. 249. But a mere ordinary merchandise broker, if he has advanced upon the goods sold, or has guaranteed the sale, may sue in his own name : Wliite v. Chouteau, 10 Barb. 202. UNDEETAKINGS. 84. Suit may be brought on a bond given to an officer, state or corporation, on the part of the real party in in- terest: Baker v. Bartol, 7 Cal. 551, approved in Warmouth V. Hatch, 33 Id. 127; Lolly v. Wise, 28 Gal. 539; Curiae v. Packard, 29 Id. 200; Loomis v. Brown, 16 Barb. 325; Bow- doin V. Coleman, 6 Duer. 162; 3 Abb. Pr. 341; Kirk v. Young, 2 Abb. Pr. 453. So also on an injunction bond: Browner v. Davis, 15 Cal. 11. Suit may be brought by one of several obligees, alone: Prader y. Purhett, 13 Cal. 588; see, also, Lally v. Wise, 28 Id. 639. Defendant prevailing in replevin may sue on plaintiffs' undertakings. Becker v. Anderson, 39 Barb. 340. UNITED STATES. 85. The United States of America can sue in that name in chancery, without putting forward any public officer who could be called on to give discovery on a cross-bill. United States of America v. Wagner, Law Eep. 2 Ch. 682. MAERIED WOMEN. 86. " When a married woman is a party, her husband must be joined with her, except: 1. When the action con- cerns 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 agree- MAEKIED WOMEN. 63 ment in writing entered into between them, she may sue or be sued alone." Cal. Code C. P., sec. 369.' 87. The question, whether, in actions respecting the wife's separate property, the husband may be joined with the wife, has been decided both ways. The better opinion, however, seems to be, that the wife should sue alone, unless the hus- band has some legal interest in the subject-matter of the suit coincident with the wife, when he ought to be joined with her: Smith v. Kearny, 9 How. Pr. N. Y. 648; or if his interest is adverse to her, he should be joined as defendant: Ingraham v. Baldwin, 12 Barb. 9. 88. That the husband may join in an action concerning the wife's separate property is distinctly held in Van ilaren V. Johnson, 15 Oal. 308, affirmed in Kays v. Phelan, 19 Id. 128; Calderwoody. Fyser, 31 Id. 333; Corcoran \. Boll, 32 Id. 90. 89. In Calderivoody. Pyser, supra, it was held, "that an action which concerned the separate property of the wife, and in which the husband and wife joined, did not abate in consequence of a divorce; the parties survived the divorce, and the cause of action survived. The husband was joined, not because he owned the property, but because of his re- lation to the other plaintiff. His relation ceased by the divorce, but the right of action continued in the wife, where it was before. But supposing the interest in the action ter- minated as to the husband upon the entry of the judgment for divorce, there was still the same cause of action, in favor of the wife, the real party in interest, which she was enti- 1. Comp. Laws Nev., see. 1070; Rev. and Comp. Laws of Idaho, sec. 7. In Iowa a mar- ried woman may in all cases sue and be sued, without joining lier husband with her, to the same extent as if she were unmarried, and an attachment or judgment shall be en- forced by or against her, as if she were a single woman: Code of Iowa, sec. 2562. The Oregon Code, sec. 30, is the same as sec. 369 of the California Code, except that the third sub-division is omitted, and the clause •' and in no case need she prosecute or defend by a guardian or next friend," is added. Ohio Code, sec. 28, is as follows: *' Where a mar- ried woman is a party, her husband must be joined with her, except, that where the action concerns her separate property, or is between herself and husband, she may sue or be sued alone ; and in every such case, her separate property shall be liable for any judgment rendered therein against her, to the same extent as would the property of her husband, were the judgment rendered against him. But in no case shall she be required to prose- cute or defend by her next friend." Formerly the Code of New York (sec. 114) , was the same as the above section of the Ohio Code, omitting the clause in regard to the liability of her separate property; but the new Code, passed June 2d, 1876, has the following pro- vision, sec. 450: "In an action or special proceeding, a married woman appears, prose- cutes, or defends, alone or joined with other parties, as If she was single. 64 ' -WIPE LIVING SEPARATE, ETC. tied to prosecute in her own name, without joining a per- son whom she afterwards married, and the most that could be said was that there was a misjoinder of parties plaintiff from that time forward; and that objection, not having been taken either by demurrer or answer, was waived." 90. A wife may maintain an action against her husband to recover money due upon a promissory note executed by the husband to the wife before marriage, and which is the separate property of the wife. There is no statutory limita- tion as to the kind of actions that may be maintained by the wife when they concern her separate property, or are against her husband: Wilson v. Wilson, 36 Cal. 447. In a suit by the wife against the husband, the necessity of intro- ducing other parties cannot affect her right: Kashatu v. Kashaiv, 3 Cal. 321. 91. If a promissory note is the separate property of the wife, she may bring the action thereon in her own name, or the husband and wife may sue jointly: Corcoran v. Doll, 32 Cal. 82; Smart v. Comstoch, 24 Barb. 411. That a wife may sue her husband in equity, see Galland v. Galland, 38 Cal. 265. It is no longer necessary under this section for the wife to sue by prochein ami: Kashaw v. Kashaw, 3 Cal. 312. 92. In an action between herself and husband a married woman must sue alone : Kashaw v. Kashaiv, 3 Cal. 312. So in New York, in actions for assault and battery committed upon her: Manny. Marsh, 35 Barb. 68; 21 How. Pr. 372; Weber v. Moritz, 11 Abb. Pr. 113. But she cannot sue her husband for assault and battery: Longendyhe v. Longendyhe, 44 Barb. 366. Nor for libel: Freethy v. Freethy, 42 Barb. 641. Nor for slander: Id. Nor can she sue her husband in ejectment: Gould v. Gould, 29 How. Pr. 441. But she may sue him for alimony, without bringing an action for divorce : Galland v. Galland, 38 Cal. 265. (For additional authorities, see chapter II, Jurisdiction.) WIFE LIVING SEPARATE, ETC. 93. A temporary absence of the wife from her husband does not come within the meaning of the act. There must have been an abandonment on the part ol the husband or SEDUCTION. 65 wife, or a separation which was intended to be final : Tohin V. Galvin, 49 Cal. 36-7. (See Husband and Wife.) INFANTS. 94. " 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. A guardian may be appointed in any case when it is deemed, by the court in which the action is prosecuted, or by a judge thereof, expedient, to represent the infant in the action, notwith- standing he may have a general guardian, and may have appeared by him:" Oal. Code, sec. 372. Under section 373, when a guardian is appointed by the court for an infant plaintiff, it must be on the application of the infant, if he be of the age of fourteen years; or if under that age, upon the application of a relative or friend of the infant. SEDUCTION. 95. Sec. 374, Cal. Code, provides that "an unmarried fe- male may prosecute, as plaintiff, an action for her own se- duction, and may recover therein such damages, pecuniary or exemplary, as are assessed in her favor." 96. Sec. 375 provides that "a father, or in case of his death or desertion of his family, the mother, may prosecute as plaintiff for the seduction of the daughter, and the guar- dian 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." 97. Neither of these sections imposes any restrictions upon the right to maintain the action. The unmarried fe- male, 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 her father or guardian. 98. Some questions as to the measure of damages, and the right to maintain several actions for the same seduction, arise which are not free from diflaculties. If the female who has been seduced be at the time a minor, and living with 5 66 SEDUCTION. her father, the loss of service accrues to him. Can she re- cover for that? May she maintain the action and recover all other damages, and her father maintain a separate ac- tion and recover for the loss of services? If so, can he re- cover anything more unless he has incurred expenses di- rectly caused .by the seduction? If the seduction occurs after she has attained her majority, can the father maintain 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 re- covery by the daughter, bar an action brought by the father? Sec. 3339 of the Civil Code declares, "the damages for se- duction rest in the sound discretion of the jury." Sec. 49 of the Civil Code provides, "the rights of personal relation forbid: 3. The seduction of a wife, daughter, orphan sis- ter, 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:" Dicey on Parties, 330. 99. 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 com- mon law rule that an action based upon a tort cannot be maintained by any one who has not suffered legal damages, is changed by these provisions, is not free from difficulty. 100. It is true that formerly the woman who was seduced could not maintain the action, having (on the ground volenti nonfit injuria) 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 serv- ice. 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 ob- jection that the woman was of age at the time of the seduc- tion; and it has been held, in a case where she lived with her father and acted as his servant, no objection to the ac- tion that she was a married woman: Hooper v. Luffkin, 7 B. & 0. 387. But service of some sort was held to be abso- ACTION FOB INJUEY OK DEATH OF MINOR CHILD. 67 lutely essential. AVliere, therefore, the daughter was living independently, and supporting herself and the family, nei- ther the parent nor any one else could maintain an action for her seduction: Manly v. Field, 29 L. J., 79 0. P., 7 0. B. U. S. 96. 101. Under section 375 of the California Code, it is plain that the "service," which was formerly essential, is dis- pensed with as a foundation of the right of the parent to sue; and we may, therefore, conclude that the parent has the right now, independently of any loss of services, to recover to the same extent as formerly. It 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 sustained) 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 of 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 judgment by the father, mother, or guardian, as prescribed in section 34, shall be a bar to an action by such unmarried female. ACTION FOE INJUEY OE DEATH OF A MINOR CHILD. 102. 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 minor child, and a guardian for the injury or death of his ward, when such injury or death 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 person, who is responsible for his conduct, also against such other person: Cal. Code C. P., sec. 376, effect July 1, 1874. 103. The minor may sue by his guardian and recover for the injuries he has sustained; or, the parent may sue and recover to the same extent. If the minor sue, he cannot recover for the. special damages sustained by the parent; 68 TENANTS IN COMMON, ETC. 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, it is believed the parent cannot, 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 the same damages for the same injury. 104. The guardian may also maintain the action without joining the ward. Where the action is brought for the death of the minor child or ward, there can be no difficulty such as might arise in cases of injury. TENANTS IN COMMON, ETC. 105. " 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 pur- pose of determining such adverse claim, or of establish- ing such common source of title, or declaring the same to be held in trust, or of removing a cloud upon the same :" Code C. P. of Cal., sec. 381, effect July 1, 1874; see, also, sections 384, 738 and 1452. 106. Formerly joint tenants were required to join in an action of ejectment, and the failure to do so was fatal to a recovery: Dewey v. Lambier, 7 Cal. 347. While two or more co-tenants could not join in an action of eject- ment, the interest of each being separate and distinct: De Johnsons. Sepulveda, 5 Cal. 149; ThrocJcmorton v. Burr, 5 Id. 401; Welch v. Sullivan, 8 Id. 187. 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 held by the Supreme Court: Touchard\. Crow, 20 Cal. 150; TENANTS IN COMMON, ETC. 69 Starh V. Barrett, 15 Id. 371; Malioney v. Van WinJcle, 21 Id. 583; Galler v. lelt, 30 Id. 484. 107. Executors and administrators can maintain sucli action jointly with the other tenants in common in all cases where their testators or intestates could have done so until the administration of the estates they represent is closed, or the property distributed under the decree of the Probate Court: Reynolds t. Hosmer, 45 Cal. 631. 108. If an estate should be sold in lots to different pur- chasers, they could not join in exhibiting one bill against the vendor for specific performance; but where there was a contract to convey with but one person, under which the purchaser conveyed his equitable 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: Owen V. Frink, 24 Cal. 177. 109. Tenants in common of wool, who became 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 commis- sion merchant at S. F., to be sold, and that when the wool was sold the proceeds were to be equally divided, cannot maintain replevin against each other, nor can one against the vendee of the other : Hewlett v. Owens, 50 Cal. 474. 110. Tenants in common must join in an action for con- version of chattels: Whitney v. Stark, 8 Cal. 514; Bice v. Eollenheck, 19 Barb. 664; Gock v. Eenneda, 29 Id. 120. 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 : Gilmore v. Wilbur, 12 Pick. 120. One tenant in common may sue another who sells and destroys the common goods : Yamhill Bridge Co. v. Newhy, 1 Or. 173. But for injury to the common interest it seems in New York all must sue: Tanner v. Hills, 44 Barb. 428. One tenant in common may sue a party in possession by adverse claim, and recover possession: Collier v. Corhett, 15 Cal. 183. Or they may sue jointly to recover possession of all their several undivided interests : Ooller v. Fett, 30 Cal. 481. 70 TENANTS IN COMMON, ETC. 111. One of several tenants in common may sue alone for his moiety: Covillaud v. Tanner, 7 Cal. 38. Or in equity may obtain a partition: Tenney v. Stebbins, 28 Barb. 290; Tripp Y.Biley, 15 Id. 333; Beelee\. Griffing, 4 Kern. 235. When one tenant in common sells the right to a stranger to cut timber off the common property, another tenant in com- mon of the same property cannot maintain replevin for the timber after it is cut: Alford v. JBradeen, 1 Nev. 228. After severance of fund held in common, each party may main- tain separate action for his ascertained share : Qen. Mut. Ins. Co. V. Benson, 5 Duer, 168. 112. Joint owners of vessels are tenants in common, and must sue jointly: Buclcman v. Brett, 22 How., Pr. 233; 13 Abb. Pr. 119; see Bishop v. Edmiston, 13 Id. 340. All joint owners of vessels should unite in suit for freight: Merritt v. Walch, 32 N. Y. 685; Donnell v. Walsh 33 Id. 43. So, joint charterers are joint owners p?'o hoc vice: Sherman \. Fream, 30 Barb. 478; Coster v. N. Y. & Erie R. B. Co., 6 Duer, 43; Dennis v. Kennedy, 19 Barb. 517. 113. Actions of ejectment must be prosecuted in the name of the real party in interest: Bitchie v. Borland, 6 Cal. 33. And the person having the legal title to the land, and not the one having an equitable title, is the real party in inter- est: Emeric V. Penniman, 26 Cal. 122; 0' Connelly. Dough- erty, 32 Id. 462. And to entitle him to sue, he must be out of possession : Taylor v. Crane, 15 How. Pr. 358. So, the heir may maintain ejectment where there is no adminis- trator: Updegraf-y. Trash, 18 Cal. 458, approved in Estate of Woodivoorth, 31 Id. 604; Soto v. Kroder, 19 Id. 87. The rule that each of several heirs may sue in ejectment for pay- ment 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 appor- tioned in either case : Cruger v. McCaughry, 51 Barb. 642. 114. The grantee may bring an action to recover lands conveyed while in adverse possession, in the name of the grantor: Lowher v. Kelly, 9 Bosw. 494. But the grantor cannot maintain an action in respect to the title, he having no title left: Toionsendv. Goelet, 11 Abb. Pr. 187. But a trustee of the legal title, holding a quitclaim deed to an FORFEITURE AND PENALTY. 71 undivided portion of the land, may maintain ejectment: Seaward v. Malotte, 15 Cal. 304. 115. The grantee, though seised in fee of only an, undi- vided interest in the particular parcel of land, may recover in ejectment the whole of that parcel, as against all per- sons except the original co-tenants and their grantees: Stark V. Barrett, 15 Cal. 361, approved in Touchard v. Crow, 21 Id. 162; Hart v. Bobertson, 21 Id. 348; Mahoney v. Van Winkle, 21 Id. 583; Beed-v. Spicer, 27 Id. 64; Carpentier \. Webster, 27 Id. 560. (See, also. Tenants in Common.) FOKEGLOSUEE OF MOBTGAGES AND MECHANICS' LIENS. 116. All persons interested in the estate should be made parties. But no person holding an unrecorded mortgage, conveyance or lien, from or under the mortgagor at the commencement of the action need be made a party to an ac- tion to foreclose a mortgage or lien: Code C. P. sec. 726. Material men and mechanics may join in an equitable ac- tion to establish and enforce their liens : Barber v. Beynolds, 33 Cal. 497; Fitch v. Creigliton, 24 How. 159. FOEFEITUEE AND PENALTY. 117. Actions to recover a forfeiture or penalty must in general be brought in the name of the government : Matthews V. Offley, 3 Sumn. C. Ct. 115; but see Cloud v. Hewitt, 3 Cranch. C. Ct. 199; United States v. The Plainer, 1 Newb. S. Ct. 262; United States v. Bougher, 6 McLean, 277; Ter- rett V. Aiwill, 4 N. Y. Leg. Obs. 294. It is however held in actions on a statutory penalty, that the party entitled to the benefit is the proper party plaintiff: Thompson v. Howe, 46 Barb. 287. 118. In general, all persons interested in obtaining an injunction must be made parties to such action. So, differ- ent persons affected by a nuisance may join in suit to re- strain a party for permitting or continuing such nuisance : Peck y. Elder, 3 Sand. 126; Murray v. Hay, 1 Barb. Ch. Kep. 62; Reed v. Gifford, Hopk. 419 ; Brady v. Weelcs, 3 Abb. Pr. 157; contra, Hudson v. Madison, 35 Eng. Ch. E. 352. 72 INJURY TO PERSONAL PROPERTY. INJURY TO REAL PROPERTY. 119. A remainder man in fee may maintain an action for injury. to the inheritance: Van Duesen v. Young, 29 Barb. 9; and may in proper cases enjoin to prevent the erection of a building: Lamport v. Abbott, 12 Abb. Pr. SiO. Or a lessee may sue for injury to the tenement: Vlrich v. Mc- Cabe, 1 Hilt. 251. Several parties cannot, in a joint ac- tion, recover damages for the use and occupation of two or more tracts of land which they own in severalty : Tennant V. Pfister, 51 Cal. 511. 120. The equitable owner of property, in possession, may maintain an action for damage to the freehold: Hood v. N. Y. and Erie JR. B. Co., 18 Barb. 80. Or he may sue for trespass: Houser v. Hammond, 39 Barb. 89; Saff'ordY. Hynds, Id. 625; Pierce v. Hall, 41 Id. 142; Sparks v. Leavy, 19 Abb. Pr. 364. Or the owner, redeeming under sale on execution, may sue for waste intermediate between sale and his redemption: Thomas v. Grofut, 4 Kern. 474. So an ac- tion can be maintained by the mortgagee of real estate to re- cover damages for wrongful and fraudulent injuries done to the mortgaged property, by which security of the mortgage has been impaired : Bobinson v. Bussell, 24 Cal. 472. INJURY TO PERSONAL PROPERTY. 121. In actions for injury to personal property, the per- son in possession is the proper party plaintiff : Triscony \. Orr, 49 Cal. 612; Harrison v. Marshall, 4 Smith, 271. And in actions for injury to the person, or to person and prop- erty, the party sustaining the injury is the proper party plaintiff: Wiggins v. McDonald, 18 Cal. 126; Summers v. Farrish, 10 Id. 347; affirmed in Frader v. Furkett, 13 Id. 591; Browner v. Davis, 15 Id. 11. And by indemnifying the actual plaintiff, an insurance company may bring an action against the wrong-doer in a case of collision and loss. Mut. In^. Go. of Buffalo v. Eaton, 11 Leg. Obs. 140. 122. Joint owners of a chattel should join in an action for injury to it. And the non-joiner can be taken advantage of only by plea in abatement: Dubois v. Glaub, 52 Penn. 238; i>' Wolf V. Harris, 4 Mass. 515. In actions for the conver- sion of personal property, the party having legal title to PARTNEBS AS PLAINTIFFS. 73 the chattel is the proper party plaintiff: Paddon v. Wil- liams, 2 Abb. Pr. (N. S.) 88. Aad the purchaser of a chat- tel may maintain trover in his own name: McGuion v. Warden, 3 E. D. Smith, 355; Hall y. Bobinson, 2 Comst. 293; Kellogg-^. Church, 3 C. E. 53; Cass v. N. Y. and N. Y. B. B. (7o., 1 E. D. Smith, 522; Bobinson v. WeeJcs, 1 0. B. (N. S.) 311; Van Hassel v. Borden, 1 Hilt. 128. PARTNERS AS PLAINTIFFS. 123. In actions for the benefit of the partnership, all partners, whether published or dormant (special partners excepted), must be parties to the action. This is the gen- eral proposition, but in some states this question of practice is changed or modified by statute: Clark y. Miller, 4 Wend. 629; Clarkson v. Carter, 3 Cow. 84; Levech v. Shaftoe, 2 Esp. 468; Slitchell v. Boll, 2 Harr. & Gill. 171. When one partner is a member of two firms, one of which sues the other, he may elect to be either plaintiff or defendant: Cole V. Beynolds, 18 N. T. 76. 124. In New York, a dormant partner is a necessary party plaintiff: Secor v. Keller, 4 Duer, 416; but see Hurl- but V. Post, 1 Bosw. 28; Broion v. Birdsall, 29 Barb. 549; Van Valen v. Bussell, 13 Barb. 590. Although in a limited partnership the general partners alone can sue and be sued, yet in suit by a creditor for a receiver and distribution, the limited partner ought to be joined. Schulten v. Lord, 4 E. D. Smith, 206; Lachaise v. Marks, Id. 610. 125. All partners should be joined in an action for co- partnership debt: Hyde v. Van Valkenburgh, 1 Daly, 416; Bridge v. Payson, 5 Sand. 210; Mayhem v. Bobinson, 10 How. Pr. 162; Briggs v. Briggs, 20 Barb. 477; 15 N. Y. 471; Siueet v. Bradley, 24 Barb. 549., But an agreement to divide the gross earnings of a venture, does not consti- tute the parties to it partners: Wheeler v. Farmer, Cal. Sup. Ct., July T., 1869; citing Patterson v. Blanchard, 1 Seld. 189; Story on Part, sec. 34; and cases there cited in note 3. 126. In actions for the recovery of the price of goods sold by a partnership, all the partners must join. It cannot be maintained in the name of one, although he is the general 74 PEINCIPAL AS PLAINTIFF. agent of the firm. Ealliday t. Doggett, 6 Pick. 359. Part- ners may maintain joint actions against inn-keepers for loss of goods: Needles v. Howard, 1 E. D. Smith, 64. Where two or more are deceived and injured in the purchase of real estate for partnership purposes, they may join in an action to recover damages for the deceit and injury. Med- hury V. Watson, 6 Met. 246. POLICY OF INSUBANCE. 127. The mortgagee of a policy of insurance is the owner, and can alone maintain an action upon it: Ripley v. Astor Ins. Co., 17 How. Pr. 444; Ennis v. Harmony Fire Ins Co., 3 Bosw. 516; but see Bidivell v. N. W. Ins. Co., 19 N. Y. 179; Pooler. Chenango Co. Mut. Ins. Co., 3 Gomst. 53. But the party to whom the loss is made payable in the policy may sue in his own name, if not assigned, sold or mort- gaged before loss: Frinh v. Hampden Ins. Co., 45 Barb. 384. LEGACY. 128. Where a legatee, being a son of a testator, died in the testator's lifetime, leaving children, it was held that all the children must join in an action for the recovery of the legacy: Parks v. Knowllon, 14 Pick. 432; Pray v. Belt, 1 Pet. S. Ct. 670. Where some of several heirs destroy the title deeds of the ancestor, the other heirs may join in an action againt them : Daniels v. Daniels, 1 Mass. 135. PRINCIPAL AS PLAINTIFF. 129. A principal, and not theagent, is the proper party to sue or be sued: Ericlcsony. Compton, 6 How. Pr. 471; Union India Eubber Company v. Tovilinson, 1 E. D. Smith, 364; St. John v. Griffith, 13 How. Pr. 59; Fish v. Wood, 4 E. D. Smith, 327; Haight v. Sahler, 30 Barb. 218; Stanton V. Camp, 4 Barb. 274: Lane v. Columbus Insurance Company, 2 C. R. 65. As to the right of undisclosed principal to sue, see 31organ v. Reed, 7 Abb. Pr. 215; Van Lien. v. Byrnes, 1 Hilt. 133. 130. A principal may sue on a contract made by his agent, but he must show the agency and power of agent to con- tract: Ruiz V. Norton, 4 Oal. 358; Thurn v. Alta Telegraph PBOMISSOEY NOTES. 75 Company, 15 Id. 472; Crosby v. Watkins, 12 Gal. 88. The real owner of the goods may maintain an action in his own name, and parol proof is admissible to show that third per- sons to whom the orders were addressed were merely plaint- iff's agents: Unio)i India Buhber Company \. Tomlinson, 1 E. D. Smith, 364. So a principal may waive the tort against his factor, and bring an action to compel him to account: Lubert v. Chauviieau, 3 Cal. 462. AGENT AS PLAINTIEP. 131. An agent ordinarily cannot sue in his own name in respect to the subject-matter of his agency: Linelcer v. Ayesliford, 1 Cal. 75; Phillips v. Eenshaw, 6 Id. 509. A note sued on payable to plaintiff, as agent, does not take away his right of action thereon: Ordv. McKee, 5 Cal. 515; Con- siderant v. Brisbane, 22 N. Y. 389; Beilly v. CooJc, 22 How. Pr. 93. If the plaintiff have the legal interest in the money sued for, the court will not entertain an objection that other persons for whom he is agent ought to sue : Salmon v. Hoff^- man, 2 Cal. 138; but see Swift v. Sioift, 46 Id. 269. PROMISSOEY NOTES. 132. One having an absolute right to money due on a note is the real party in interest: Cummiiigsv. Morris, 3 Bosw. 560; Selden v. Pringle, 17 Barb. 460; Hastings v. ilc- Kinley, 1 B. D. Smith, 273. So, the bearer may bring an action on a promissory note in his own name: LocJcet v. Davis, 3 McLean, 101. Or the holder may sue: Hoisted \. Lyon, 2 McLean, 226 ; see also Curtis v. Sprague, 51 Cal. 239. In New York it is held, under the Code requiring suits to be prosecuted in the name of the real party in interest, that the mere holder of a promissory note, without any in- terest in it, can no longer maintain an action upon it: Par- ker Y. Totten, 10 How. 233; Clarh v. Philips, 21 How. 87; Prall v. Hinchman, 6 Duer, 351. 133. Possession is prima facie evidence of ownership: McCanny. Lewis, 9 Cal. 246; cited in 32 Id. 88; Price v. Dxmlap, 5 Id. 483; Gushee v. Leavitt, 5 Id. 160; James v. Chalmers, 5 Sand. 52; affirmed 2 Seld. 209; Mottram v. Mills, 76 STATE. 1 Sand. 37; Wiltsie v. Nortliam, 5 Bosw. 428; Farringtony. Park Bk., 39 Barb. 645. The holder of a promissory note is presumed to be the owner, or real party in interest. The fact that the plaintiff has not the actual possession of the note sued upon does not affect his right to recover upon it: Selden t. Pringle, 17 Barb. 468; Eastings v. McKinsey, 1 E. D. Smith, 273. And if plaintiff owns a promissory note, he may sue on it, although it be in possession of defendant: McGlusky v. Gerhauser, 2 Nevada, 47; see also Curtis v. Sprague, 51 Cal. 239. 134. A party holding a promissory note, as trustee for himself and others, may recover: Palmer v. Goodioin, 5 Cal. 458; Hamilton v. McDonald, 18 Id. 128; Fletcher v. Derriclcson, 3 Bosw. 81; but see Parker v. Totten, 10 How. Pr. 233; Whiter. Broiun, 14 How. Pr. 282; Clarke v. Phil- lips, 21 How. Pr. 87. So, abonajlde indorsee may recover: Cummings v. Morris, 3 Bosw. 560; Potter v. Chadsey, 16 Abb. Pr. 146; Himmelman v. Hotaling, 40 Cal. 111. Or the indorsee of a note for a consideration to be paid after col- lection may maintain action : Cummings v. Morris, 25 N. y. 625. As to transferee without consideration, see Kill- 7nore v. Culver, 24 Barb. 656. QUO WARRANTO. 135. The claimant of the office may join with the Peopfe, as plaintiff: People v. Ryder, 12 N. Y. 433; affirmed 2 Kern. 433; People v. Walker, 23 Barb. 304. SHERIFF. 136. A sheriff who levies an attachment, by virtue of the process of attachment cannot maintain an action in his own name for the recovery of the debt: Sublette v. Melhado, 1 Cal. 105. STATE. 137. In the absence of any statute to that effect, the State cannot be sued: People v. Doe G. 1034, 36 Cal. 220. In an action to annul a patent for land, the State, as well as persons having a right to the land, may be joined as plaintiffs : People v. Morrill, 26 Cal. 336 ; approved in Wilson V. Castro, 31 Id. 427. If the State has no interest ASSIGNEE AS PLAINTIFF. 77 in the matter, the action cannot be sustained : People v. Stratton, 25 Id. 244. Actions for the recovery of an auc- tioneer's duty are properly brought in the name of the State. State V. FouUerer, 16 Id. 514; see State v. ConJcling, 19 Id. 509. SUEETIES. 138. A surety on an undertaking, who had paid the amount of his liability, was entitled to recover back the amount: Garr v. Martin, 1 Hilt. 358; see JevKtt v. Crane, 13 Abb. Pr. 97; 35 Barb. 208. Co-sureties, who pay the debt of their principal by giving their joint and several notes therefor, must join in a suit against him for re-im- bursement: Doolittle v. Dwight, 2 Met. 561; see Chandler V. Brainard, 14 Pick. 285; Applelon v. Bascom, 3 Met. 169. 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. Chipman v. Morrill, 20 Cal. 130. ASSIGNEE AS PLAINTIFF. 139. This topic covers the whole question of assignments, so far as it relates to the person by whom an action for a thing assigned must be brought.. The only provisions of the Code of Civil Procedure directly bearing upon the right of the assignee to sue in his own name are sections 367 and 368. The former declares that " every action must be pros- ecuted in the name of the real party in interest, except as provided in section 369." Section 368 is as follows: " In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any set-off, or other defense existing at the time of, or before, notice of the assignment, but this sec- tion does not apply to a negotiable promissory note or bill of exchange, transferred in good faith and upon good con- sideration, before maturity." 140. " A thing in action is a right to recover money or other personal property by a judicial proceeding:" Civil Code, section 953, as amended 1874. 141. " A thing in action," and " chose in action," mean 78 ASSIGNEE AS PLAINTIFF. the same thing; but at common law it was a right to receive or recover a debt, or money, or damages for breach of con- tract, or for a tort connected loith contract, but which could not be enforced without action : Comyns Dig, Biens. It was one of the qualities of a chose in an action that at common law it was not assignable : 10 Coke, 47, 48. But afterwards the assignee was entitled to sue and recover in the name of the assignor, and the debtor was not allowed to avail himself of any payment to or release from the assignor, if made or obtained after notice of the assignment: 4 Term, 340; 1 Hill, N. Y. 483; 10 Gush, 93. If after notice of the assignment the debtor expressly promised the assignee to pay him the debt, the assignee could then, in the United States, sue in his own name : 10 Mass. 316; 5 Peters, 597; 2 Barb. .349, 420; 27 N. H. 269; and this rule applied in equity as well as at law. 142. The provisions of the Codes of Civil Procedure, cited above, have changed this rule, and the Civil Code has also enlarged the application, if not the meaning of the ex- pression "thing in action." Section 954, Civil Code, pro- vides: "A thing in action, arising out of a violation of a right of property, or out of an obligation, may be trans- ferred by the owner. Upon the death of the owner, it passes to his personal representatives, except where, in the cases provided in the Code of Civil Procedure, it passes to his devisees or successor in office." The expression in this section, "arising out of a violation of a right of property," is very comprehensive, and covers all causes of action for torts affecting property: See Morey. Massini, 32 Cal. 592, 694. The succeeding words, "or out of an obligation," are even more comprehensive, as they may include the former, and also all matters arising out of contract, as well as all causes of action for the violation of personal rights (except, perhaps, those which die with the person), whether arising upon contract, or growing out of the requirements of law. An obligation signifies a duty, "a tie which binds us to pay or do something agreeably to the laws and cus- toms of the country in which the obligation is made :" Just. 3, 14. 143. The second classification of obligations made by Justinian had regard to the way in which they arose. They ASSIGNEE MA¥ SUE. 79 were, in this aspect, either ex contractu or quasi ex contractu or ex maleficio or quasi ex maleficio: Just. 2, .3, 13. Obliga- tions arising upon or out of a contract require no comment in this connection. It may be convenient for the student •who is not familiar with the Eoman law to be briefly in- formed in regard to the reni3,ining three divisions of obli- gations. 144. Obligationa Quasi Ex Coatractu.— In the Koman law (as in ours), persons who had not iu fact entered into a contract were sometimes treated as if they had done so. Their legal position in such cases had considerable resemblance to that of the parties to a contract, and was therefore called an obligation quasi ex contractu. Such an obligation was -engendered in the cases of negotiorum gestio, or nnaiithorized agency, of communio incidens, a sort of tenancy in common not originating in contract, of solutio indebiii, or the payment of money to one not entitled to it, of the iuiela and cura, re- sembling the relation of guardian and ward, and many others: Ortolan Just. 1522-1632. 145. Obligations Ex Maleficio or Ex Delicto. — The terms maleficium, delictum, embraced most of the injuries which the common law denominates torts, as well as others which are now considered crimes. This class incluiles furtum, theft, rapiiia, robbery, damnum, or injury to property, whether di- rect or consequential, and injuria, or injury to the person or reputation. All such acts, from the instant of their commission, rendered the perpetrator liable for damages to the party injured, and were therefore considered to originate an obligation: Just. 4, 1-4; Ortolafi Just. sees. 1715-1780. 146. Obligations Quasi Ex Delicto. — This class embraced all torts not coming under the denomination of delicta, and not having a special form of action provided for them by law. They differed widely in character, and at common law would in some cases give rise to an action on the case, in oth- ers, to an action on an implied contract. Ortolan Just. sees. 1781-1792. 147. It is evident that the question as to what may or may not be assigned, depends largely upon the construction that may be given to the word "obligation." The Civil Code, sec. 1427, defines it as follows: " An obligation is a legal duty by which a person is bound to do or not to do a certain thing." Section 1428 declares: "An obligation arises either from : 1. The contract of the parties; or, 2. The operation of law. An obligation arising from opera- tion of law, may be enforced in the manner provided by law, or by civil action or proceeding." ASSIGNEE MAY SUE. 148. To enable the assignee of a thing in action to sue in his own name, the assignment must be antecedent to the 80 WHAT MAT BE ASSIGNED. action: Glarh v. Downing, .1 E. D. Smith, 406; Beach v. Baymond, 2 Id. 495; 31ills v. Fox, 4 Id. 220; St. Jolim v. Amtr. Mut. Life Ins. Co., 3 Kern. 31; Vogel v. Badcock, 1 Abb. Pr. 176; Bichardsonsr. Mead, 27 Barb. 178; Arthur v. Brooks, 14 Id. 533; Eastern Plank B. B. Co. v. Vaughan, 4 Ker. 546. Any interest in property is assignable: Em- mom y. Cairn, 3 Barb. 243; Civil Code, sees.' 1044-1047; but a mere possibility, not coupled with an interest, cannot : sec. 1045. ASSIGNMENT SUBJECT TO EQUITIES. 149. In the case of an assignment of a thing in action, the action by the assignee 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 a negotiable promissory note, or bill of exchange, trans- ferred in good faith and upon good consideration before maturity: Gal. Code C. P. see. 368; N. Y. Code, sec. 112; Nash's Ohio, sec. 26; Laws of Iowa, sec. 2,760; Oregon, sec. 28; Idaho, sec. 5; Arizona, sec. 5. Latent equities of third persons are not contemplated in this section: Mwray T. Lylburn, 2 Johns. Ch. 441; Livingston v. Dean, Id. 479; Bodriguez v. Heffeman, 5 Id. 417; Murray \. Ballon, 1 Id. 566. As to after accruing equities, see Coster y . Griswold, 4 Edw. 364. WHAT MAY BE ASSIGNED. 150. Equity upholds assignments, not only of ehoses in action, but of contingent interests and expectations, and of things which have no actual existence, but rest in possibil- ity; provided they are fairly made, and are not against public policy: Pierce v. Bobinson, 13 Cal. 123; approved in People v. Ruth, 14 Id. 407; Bibend v. L. and L. Fire and lAfe Lis. Co., 30 Id. 86; Hassie v. G. L W. V. Cong., 35 Id. 378. 151. Thus contingent interests and expectant estates may be assigned: Mcoll v. N. Y. & Erie B. B. Co., 12 N. Y. 121; Lawrence v. Bayard, 7 Paige, 70; Field y. Mayor of N. Y., 2 Seld. 179. And when the chose in action rests in expectancy, assignment takes effect when it is subsequently brought into existence: Field v. Mayor, etc., 2 Seld. 179: Lawrence v. Bayard, 7 Paige, 70. CAUSES OP ACTION ASSIGNED. 81 152. A bid at a judicial sale may be assigned : Proctor v. Farnham, 5 Paige, 614. Or a bond for title in Indiana is assignable: Wescott v. Cole, 4 McLean, 79. So a vested interest in remainder in personal property, although liable to be defeated by a future event, may be assigned : Mun- sell V. Leivis, 4 Hill N. T. 635. Or a legacy, if clothed with a trust, may be assigned : Andrew v. N. Y. Bible Society, 4 Sand. 156. 153. But the right of an heir apparent is a mere possi- bility, and not the subject of a grant : Stover v. Eyclesheimer, 46 Barb. 84; though a mere possibility, coupled with an interest, may be assigned: Gomegys v. Vasse, 1 Pet. 193, 213; Lawrence v. Bayard, 7 Paige, 76; Hituikle v. Wanzer, 17 How. U. S. 368; Field v. Mayor of JS/. Y., 2 Seld. 179. How far equity will support assignments of contingent in- terest and expectations, consult Stover v. Eyclesheimer, 3 Keyes, 620; affirming S. C, 46 Barb. 84. An assignment of part only of an entire demand is void at law, unless done with the consent of the debtor, but such assignment is valid in equity without the consent of the debtor : Grain v. Al- drich, 38 Gal. 514. 154. A parol assignment of a chose in action is valid in equity: Hooker v. Eagle Bh., of Eochester, 30 N. Y. 83; Armstraiig v. Cushney, 43 Barb. 340. If conditional and without consideration, it is invalid : Arnold v. Johnson, 28 How. Pr. 249. As no formality is necessary to effect an assignment of a chose in action {Ford v. Stewart, 19 Johns. 95), any transaction which indicates intention to pass the beneficial interest is sufficient: 2 Sto. Eq. 311. CAUSES OF ACTION ASSIGNED. 155. A cause of action for breach of contract may be assigned: Monahan v. Story, 2 E. D. Smith, 393. So a cause of action against common carrier, for not delivering personal property: Merrick v. Brainard, 38 Barb. 574; Foy V. The Troy & Bost. B. B. Co., 24 Barb. 382. Or for loss of baggage: Merrill-v. Grinnell, 30 N. Y. 594; or for injury to goods while in his charge : Merrick v. Fan Santvoord, 34 N. Y. 208. 156. Any contract upon which an action may be main- 6 82 CAUSES OF ACTION ASSIGNED. tained, is assignable. The test of the assignability of a claim or cause of action is whether it would survive. A right that may be transferred by operation of law has the elements of property, and may also be transferred by act of the party: Zoghaum v. Parker, 66 Barb. 341. And the assignee in contract is the proper party to the action: Warner V. Wilson, 4 Gal. 310; Owen v. Fnnh, 24 Id. 177; Weimore v. San Francisco, 44 Id. 294. An action on an express contract must in general be brought against the party who made it, either in person or by agent: 1 Chitt. 33; 8 East. 12; 3 Esp. E. 26; 3 Camp. 354. 157. A defendant is not entitled to compel one who takes an assignment of the cause of action pending the suit, to become a plaintiff without his consent: Hestres v. Brennan, 37 Gal. 385; Paclcardw. Wood, 17 Abb. Pr. 318, disapprov- ing Shearman v. Coman, 22 How. Pr. 517. And an offer of defendant to show that plaintiff has assigned his interest is properly excluded: Boyce v. Brockway, 31 N. Y. 490. 158. Thus the assignee of a covenantee may bring action for breach of covenant: Beach v. Barons, 13 Barb. 305. Or the assignee of an agreement for specific performance, who takes it subject to all the equities: Murray r. Gouvemeur, 2 Johns. Gas. 438. An action for deceit, in the sale of land to which the grantor had no title, should be brought by all the grantees jointly. A conveyance by one of the grantees of his interest in the land, does not assign his cause of action for deceit, so as to enable the assignees to sue for the deceit in their names: Lawrence v. Mo-) itg ornery, 37 Gal. 183. 159. A cause of action for conversion of property may be assigned: Rohimon v. Weeks, 6 How. Pr. 161; 3lcKee v. Judd, 12 N. Y. 622; Genet v. liowland, 30 How. Pr. 360; Ward T. Benson, 31 How. Pr. 411; compare Hoivell v. Kroose, 2 Abb. Pr. 167; Lazardy. Wheeler, 22 Gal. 142. A factor may maintain such action: Gorum v. Carey, 1 Abb. Pr. 285. Or a forwarding merchant: Fitzhugh v. Wiman, 5 Seld. 559. After conversion, owner may sell the chattels, or assign his right of action for conversion : Hall v. Robinson, 2 Gow. 293; Cass v. N. H. B. R. Co., 1 E. D. Smith, 522; McGinn v. Worden, 3 E. D. Smith, 355; Wilson y. Cook, Id. CAUSES OF ACTION ASSIGNED. 83 252; Howell v. Oroose, 4 Id. 357; North v. Turner, 9 Serg. & E. 244; iIicZ"ee v. Judd, 12 N. Y. 622; Hicks v. Cleveland, 39 Barb. 573; Waldron v. M7Zarc?, 17 N. Y. 467; Lamrd v. Wheeler, 22 Cal. 142. A cause of action for false and fraud- ulent representations made by a vendor upon a sale of stock is assignable: Mason v. Baplee, 66 Barb. 180. 160. Assignment of property gives the right to sue in trover for its conversion before assignment: Ward v. Ben- son, 31 How. Pr. 411; Oenet v. Hoiuland, 45 Barb. 560; 30 How. Pr. 360; Sherman v. Elder, 24 N. Y. 381; Boyce v. Brochway, 31 Id. 490. Present possession is sufficient to ground an action for conversion by a stranger : Paddock v. Wing, 16 How. Pr. 547. 161. In New York a cause of action for causing the death of another may be assigned: Qainn v. Moore, 15 N. Y. 432; Doedt v. Wiswall, 15 How. Pr. 128; Hodgman v. Western B. B. Corporation, 7 Id. 492; Purple v. Hudson Biver B. B. Co., 1 Abb. Pr. 33; 4 Duer, 73. Or for slander: Nash v. Hamilton, 3 Abb. Pr. 35. Principle generally stated, in McKee v. Judd, 12 N. Y. 622 ; Butler v. N. Y. and Erie B. B. Co., 22 Barb. 110 ; Bobinson v. Wells, 6 How. Pr. 161. 162. A cause of action for damages to property may be assigned: Fried y. N. Y. Cent. B. B. Co., 25 How. Pr. 285. So for damages to personal property : Butler v. N. Y. and ErieB. B. Co., 22 Barb. 110; loy v. Troy and Boston B. B. Co., 24 Id. 382; Haight v. Hoyt, 19 N. Y. 464. Or to real property, as for negligently setting fire to grass and fences: Fried y. N. Y. Cent. B. B. Co., 25 How. Pr. 285. A right of action for wrongfully and without permission raising ores and minerals from land situate in another State, belonging to another person, and selling and convert- ing them, is assignable, and may be prosecuted in the courts of this State by one to whom the owner has assigned such ores and minerals, and all claim for their wrongful conversion: Hoy y. Smith, 49 ^a,rh. 163. A cause of action for fraudulent misapplication of funds of a corporation may be assigned : Grocers' Nat. Bk. Y. Clarke, 32 How. Pr. 160; Gould y. Gould, 36 Barb. 270. Or for money obtained by fraud: Byxbie v. Wood, 24 N. 84 CHOSES IN ACTION ASSIGNED. T. 607; Ohio Code, sec. 398. Or for false representations: Zabrishie v. Smith, 3 Kern. i'i^;Hyslopv. Eandall, 11 How. Pr. 94; 4 Duer, 660. Or for deceit: Hyslop v. Randall, 4 Duer, 660; Sheldon v. Wood, 2 Bosw. 267. Or a cause of action for damages, for procuring a sale of goods by false representations, is assignable; and the assignees may sue thereon without joining the assignor: Johnston v. Bennett, 5 Abb. Pr. (N. S.) 331; Allen \. Brown, 51 Barb. 86; Mason T. Baplee, 66 Id. 180. CHOSES IN ACTION ASSIGNED. 164. The assignee of a chose in action is in all cases the proper party to sue: Combs v. Bateman, 10 Barb. 673; Swan's Ohio PI. 65; Pate v. Gray, Hempst. 155; Oal. Code, sees. 367, 368. But if the assignment is not absolute,, or if any interest remains in the assignor, as where a mort- gage is assigned as security, or where part of a debt or chose in action is assigned, tke assignor if not united as plaintiff is a necessary party defendant: Christie v. Herriclc, 1 Barb. Ch. 154; Story's Eq. PI. 153. 165. The assignor and assignee of real estate are prop- erly joined in an action to cancel a judgment rendered prior to assignment: Monroe y. Delavan, 26 Barb. 16. Or in suit upon a bond: Western Bank v. Sherwood, 29 Barb. 387. So the assignor of a draft for money may be joined in a suit against the drawer. Thompson v. Payne, 21 Tex. 621. 166. But on an assignment absolute on its face, the as- signor need not be made a party: Gradioohl v. Harris, 29 Oal. 150; Trecothick v. Austin, 4 Mas. 16; Sheldon v. Wood, 2 Bosw. 267; Meeker v. Claghorn, 44 N. Y. 349. In what cases an assignee of a right in action may prosecute it un- der the laws of Minnesota, see St. Anthony Go. t. Vandall, 1 Minn. 246. In that State, an assignee of an instrument in writing, not negotiable, cannot maintain the action in his own name: Spencer \. Woodbury, IMinn. 105. 167. The assignee of a chose in action takes it subject to all equities existing at the time of the assignment: Gal. Code 0. P. sec. 368; Duff v. Hobbs, 19 Cal. 646; Hayward 6 Co. V. Stearns, 39 Id. 58; N. Y. Code Pro. sec, 112- CLAIMS MAY BE ASSIGNED. 85 Cutis V. Guild, 57 N. Y. 229; Waring v. Loder, 53 N. T. 581. This was the rule in equity independent of the stat- ute; but negotiable promissory notes and bills of exchange transferred in good faith and for a good consideration be- fore maturity are excepted from the statute, and are not subject to any equities existing between the original par- ties. CLAIMS MAY BE ASSIGNED. 168. A claim for the conversion of funds intrusted to one as agent may be assigned : Gould v. Gould, 36 Barb. 270; Bank v. Clark, 48 Id. 160. Or a claim against a pub- lic officer, for fees, may be assigned : Piatt v. Stout, 14 Abb. Pr. 178. Or a claim for sheriff's fees : Birkbeck v. Stafford, 23 How. Pr. 236; 14 Abb. Pr. 285. 169. The claim of a foreign executor may be assigned : Peterson v. Chemical Bk., 32 N. Y. 21; Middlebrook v. Mer- chants Bk., 27 How. Pr. 474. Or a claim against a foreign government: Comegys \. Vasse, 1 Pet. 193; Milnor v. Meiz, 16 Id. 221; United States v. Hunter, 5 Mass. 62; McBlair y. Gibbes, 17 How. U. S. 232; Couch v. Delaphine, 2 N. Y. 397. Or a claim under a policy of insurance may be assigned, whether of a foreign or domestic insurance, though the pol- icy contains a clause forbidding the assignment : Carroll v. Charter Oak Ins. Co., 38 Barb. 402; Carroll v. Clmrter Oak Ins. Co., 40 Id. 292. 170. A claim to recover back money may be assigned : Palen v. Johnson, 46 Barb. 21. Or for money lent: West- cott V. Keeler, 4 Bosw. 564. Or against inn-keeper for money stolen at inn: Stanton v. Leland, 4 E. D. Smith, 88. A claim of stockholders against a company may be assigned : Peckham v. S'mith, 9 How. Pr. 436. So, also, a claim ^to allow a tenant certain privileges may be assigned : Munson v. Biley, 2 E. D. Smith, 130. 171. The assignee of a claim for damages for trespass on land may sue: Moore v. Massini, 32 Cal. 590. And in gen- eral, claims for torts which would survive to the personal representatives of a party may be assigned: Zogbaum v. Parker, 66 Barb. 341; Grant v. Ludlow, 8 Ohio St. E. 1. As to the general non-assignable character of claims for un- liquidated damages arising out of torts, see 2 Story Eq. 86 DEBTS MAT BE ASSIGNED. sec. 1,040; Thurmanv. Wells, IS 'Ba.rh. 500; Gardner y. Ad- ams, 12 Wend. 297; Sail v. Robinson, 2 N. Y. 293; Brig "Sarah Ami," 2 Sumn. 211; ZabrisJcie v. Smith, 3 Kern. 322; Whiitle v. SJcinner, 23 Ot. 531; People v. Tioga, C. P., 19 Wend. 77. CEEDITOES. 172. A claim due to assignees, as trustees for the benefit of creditors, cannot be assigned : Small v. Ludlow, 1 Hilt. 189. But see S. C. 20 N. Y. 155. Though such assignee may sue: Bussell v. ClarJc, 7 Cranch. 69, 97; Fitch v. War- ring, 6 N. Y. Leg. Obs. 160. As to necessity of delivery under assignment to creditors for their own benefit: Van Busldrh v. Warren, 2 Keyes, 119. Either member of a part- nership may secure one of its creditors by a transfer of property; and this may be done by an assignment in the nature of a mortgage, with a trust to account for and repay the surplus if any: McClelland t. Bemsen, 5 Abb Pr. (N. S.) 250. 173. Assignment by a creditor does not make assignee joint owner of the whole debt, and he is not a necessary party in a suit for its recovery: Leese v. Sherwood, 21 Cal. 152. The assignee for the benefit of creditors may main- tain an action for the conversion of a promissory note: WhittaJcer v. Merrill, 30 Barb. 389; Westcottr. Keeler, dBosw. 564. And, generally, an action may be brought in the name of the trustee, so long as the assignment remains in force: Ogden v. Prentice, 33 Barb. 160; Lewis y. Graham, 4 Abb. Pr. 106. 174. The assignee for the benefit of the creditors takes subject to all the equities existing at the time of the assign- ment: Curtiss V. Leavitt, 15 N. Y. 195; BeedY. Sands, 37 Barb. 185. But until a demand becomes mature, a set-off may be defeated by the assignment of the claim of the op- posite party, though the latter be insolvent, and his demand has not become payable when assigned: Myers v. Davis, 22 N. Y. 489. DEBTS MAY BE ASSIGNED. 175. An assignment of part only of an entire demand is void at laiv, unless done with the consent of the debtor; but such assignment is valid in equity without the consent of DEBTS MAY BE ASSIGNED. 87 the debtor: Orain v. Aldrich, 38 Oal. 514. So the assign- ment of a debt not in existence is not valid at law, but cre- ates an equity: Hassie v. G. I. W. V. Cong., 35 Cal. 378. An agreement to pay money to a defendant on condition of withdrawing a defense to a suit is assignable: Gray v. Gar- rison, 9 Cal. 325. 176. The assignment of a debt carries with it all the col- lateral securities held by the assignor : Hurt v. Wilson, 38 Cal. 263; Jackson \. Blodgett, 5 Cow. 202; Parmeleev. Dann, 23 Barb. 469; Patlison y. Hull, 9 Cow. 747; Paine v. French, 4 Ohio E. 318. In an assignment of a debt upon a written instrument, delivery of the instrument is in general suffi- cient. Horner Y. Wood, 15 Barb. 371; Ford Y.Stewart, 19 Johns. 342; 16 Id. 51; 11 Id. 534; 6 Wend. 80. It is not' necessary to prove a consideration : Stone v. Frost, 61 N. Y. 614. Nor to state whether assignment was in writing or by parol: Hooker v. Eagle Bank, 30 N. T. 83; Gould y. M- lery, 39 Barb. 163. 177. The assignee of an account may sue on it in his own name: Carpenter v. Johnson, 1 Nev. 322. Accounts may be assigned by parol, and a substituted party may be as- signee: Waldron v. Baker, 4 E. D. Smith, 440. The bal- ance due on an unliquidated account may be assigned, and the 'assignee may sue thereon: Allen v. Smith, 16 N. Y. 415; Westcott v. Potter, 40 Vt. 27. But it is held that book accounts are not assignable at law, though they may be in equity: Anderson y. Tompkins,! Brock. Marsh. 48. 178. A policy of insurance on life may be assigned: St. John Y. Am. Mut. Life Ins. Co., 13 N. Y. 31; MillerY. Ham- ilton Ins. Co., 17 Id. 609; Fulton v. Nat. Loan Fund Life Ins. Co., 20 Id. 32. So of fire insurance policies : BrichtaY. N. Y. Lafayette Ins. Co., 2 Hall, 372; Goit v. Nat. Pro. Ins. Co., 25 Barb. 189; Mellen v. Hamilton, 5 Du6r. 101; CouH- ney v. N. Y. City Ins. Co., 28 Barb. 116; Bergson v. Build- ers' Ins. Co., 38 Cal. 541. The assignor of a policy of in- surance takes it subject to all the equities existing at the time of assignment: Waters y. Allen, 5 Hill, 421; Buffalo Sfm Eng. Works v. Sun Mut. Ins. Co., 17 N. Y. 401. 179. The assignor of a policy of insurance, retaining an interest, may join with assignee in the action: Boynton v. 88 DEBTS MAY BE ASSIGNED. Chilton & Essex Mut. Ins. Co., 16 Barb. 254. Though the assignee may sue in his own name : Fowler v. N. Y. Indem. Ins. Co., 23 Barb. 143. 180. Promissory notes, bills and checks may be assigned, and mere delivery without indorsement or assignment is sufficient transfer to give transferee the right to sue, if in- dorsed in blank or payable to bearer : Loftus v. ClarJc, 1 Hilt. 310. Possession alone is sufficient to give the right to sue: Poorman v. Mills, 35 Cal. 118; James v. Chalmers, 5 Band. 52, affirmed 2 Seld. 209; Gummings v. Morris, SBosw. 560; and see Civil Code, sees. 3101 to 3103. 181. A negotiable chose in action, though fraudulent be- tween the parties to it, cannot be impeached in the hands of an innocent holder. Civil Code, sees. 3122 to 3124: Hayioard & Co. v. Stearns, 39 Cal. 58; Poorman v. Mills, 39 Id. 345; Himmelman v. Hotalirig, 40 Id. 111. That fraud- ulent assignor cannot sue : affirmed in Davis v. Mitchell, 34 Id. 90. The bona fide indorsee of a negotiable instrument who has received it in part payment of an antecedent debt, takes it discharged of antecedent equities of which he had not notice: Swift v. Tyson, 16 Peters, 1; approved in Cecil Bh. V. Heold, 25 Md. 562; May v. Quimhy, 3 Bush, 96. 182. But negotiable paper, after losing its negotiable character, is subject to all the equities: Folsom v. Barilett, 2 Cal. 164; Gwathmey v. McLane, 3 McLean, 371; Dnndasv. Boiuler, Id. 397; Slacom v. Wishart, Id. 517; Rounsavel v. Scholfield, 2 Cranch, 0. Ot. 139. So with negotiable prom- issory note, when transferred as collateral security : Payne V. Bensley, 8 Cal. 260; affirmed in Robinson v. Smith, 14 Id. 94; and Naglee v. Lyman, Id. 450; see, also, Coghlinv. May, 17 Id. 517. 183. The indorsee of a certificate of deposit holds it sub- ject to all the equities between the indorser and indorsee: Poorman v. Mills, 39 Cal. 345. A party taking a check after its presentation for payment, and its dishonor, takes it sub- ject to all defenses to which it was subject in the hands of the original holder: Fuller y. Hutchings, 10 Cal. 623. And an indorsee of non-negotiable paper, or of negotiable paper after it has been dishonored or is overdue, in an action against indorser can recover only the consideration he has JUDGMENTS MAY BE ASSIGNED. 89 actually paid: Goye v. Palmer, 16 Cal. 158, approved in Mills V. Barney, 22 Id. 249. 184. Eents may be assigned, and the assignee of lessor may maintain an action for rent: Main v. Feathers, 21 Barb. 646; Main v. Davis, 32 Id. 461; or in ejectment. Main v. Green, 32 Id. 448; 33 Id. 136. The assignee of a fee farm rent may maintain an action therefor in his own name : Scott V. Lunt, 7 Pet. 596. • Or the assignee of rent under a per- petual lease may sue on the covenant to pay : Van Rensselaer V. Reed, 26 N. Y. 558. Or in ejectment for non-payment: Van Rensselaer v. Slingerland, 26 N. T. 580. Surplus rents and profits, after satisfaction of a mortgage, may be recov- ered by an assignee: Gordon v. Leivis, 2 Sumn. 143. 185. A mere delivery, with intent to transfer, is sufficient to entitle transferee to sue for seamen's wages : Loftus v. Clarh, 1 Hilt. 310. Or for money due upon a subscription list: Van Rensselaer. v. Aihin, 44 Barb. 547. Or for sub- scription money to a corporation : Peckham v. Smith, 9 How. Pr. 436. JUDGMENTS MAT BE ASSIGNED, 186. Judgments are debts, and may be assigned. And a decree, though not assignable at law, is transferable for valuable consideration: Goate v. Muse, 1 Brock. C. Ct. 551; Dunlop v. Stetson, 4 Mas. S. C. 349. The assignment of a judgment void from excess of jurisdiction carries with it the assignment of the debt on which it was obtained : Brown V. Scott, 25 Cal. 194. As to assignment of judgment recov- ered in a cause of action sounding in tort : see King v. Kirhy, 28 Barb. 49. 187. A verdict for personal tort is assignable : Maclcey V. Mackey, 43 Barb. 58; Zogbaum v. Parker, 66 Id. 341. The assignee of a judgment in replevin may sue upon the un- dertakings given therein : Bowdoiny. Goleman, 6 Duer, 182; 3 Abb. Pr. 431. Or the replevin bond may be assigned: Wingate v. Brooks, 3 Cal. 112; Murdock v. BrooJcs, 38 Id. 596; Acker v. Finn, 5 Hill, 293. But to enable the as- signee of a judgment to sue on the appeal bond, he must have an assignment of the bond: Moses v. Thome, 6 Cal. 87. 90 PEOPEETY ASSiaNED. 188i The assignee of a judgment stands in the shoes of the assignor, as to all defenses which existed against the judgment: Brown v. Ayres, 33 Cal. 525; Wright v. Levy, 12 Id. 257; Holhs v. Duff, 23 Id. 626; Livingston \. Hubhs, 2 Johns. Oh. 512; Westfall v. Jones, 23 Barb. 9; Borst y. Bald- win, 17 How. Pr. 285; United States v. Sampergac, Hempst. 118, 142, 149; 7 Peters, 222; Poor v. Gtdlford, 10 N. Y. 273; Douglass v. White, 3 Barb. Oh. 621. The purchaser of a judgment takes the same, subject to all the equities and rights of set-off existing between the parties at the time of the purchase: Wriyht v. Levy, 12 Oal. 257; Reynolds v. Har- ris, 14 Id. 681; 31cCa.be Y. Grey, 20 Id. 509; Northam v. Gor- don, 23 Id. 255; Mitchell y. Hachett, 25 Id. 544; Porter v. Uscom, 22 Id. 430; Hohhs v. Duff, 23 Id. 596; Fore v. Man- love, 18 Id. 436. PKOPEBTY ASSIGNED. 189. Chattels not in possession may be assigned: Cass V. N. Y. and N. H. R. R. Co., I E. D. Smith, 522; Van HasselY. Borden, 1 Hilt. 128; Hall v. Robinson, 2 N. Y. (2 Comst.) 293. Thus, goods to arrive and proceeds thereof may be assigned: Morgan y. Lowe, 5 Cal. 325; D' Wolfe v. Harris, 4 Mas. S. C. 515. So, a bill of lading may be as- signed: Chandler Y. Belden,19iioh.ns. 151. Or the interest in a prize captured at sea may be assigned: The "Brutus," 2 Gall. 526, 551; TJie '•Sally" and Cargo, 1 Id. 401, 409. Personal property generally may be assigned, and the as- signee may sue for its recovery: Lazard v. Wheeler, 22 Cal. 140. So, lottery tickets are assignable: Slmnldand y . Cor- poration of Wash., 5 Pet. S. Ct. 390. Or a trademark: Wal- ton V. Crawley, 3 Blatch. 448. 190. Eights may be assigned; so a copyright may be as- signed: Roberts v. Myers, 13 Mo. Law E. 396; Keane v. Whealley, 9 Am. Law E. 46. Or literary property of any kind: Bartlett v. Crittenden, 5 McLean, 41 ; Civil Code, sec. 982. A ferry right, in Indiana, may be assigned: Bow- man Y. Walker, 2 McLean, 376, 393. So, a license to run a planing machine is assignable : Wilson y. S tolly, 5 Id. 1. Or a patent right maybe assigned, even before it is issued: Anon., 4 Opin. Atty-Genl. 400; Gay v. Cornell, 1 Blatch. 509. The assignee of a right of action for violation of a patent SECDEITIES MAY BE ASSIGNED. 91 takes it subject to all the equities : Parlchurst v. Kinsman, 2 Blatch. 78. 191. A lease, without specifying therein "and to his as- signs," is assignable: Averill v. Taylor, 8 N. Y. 44. Or the interest in a lease may be assigned : Damarest v. Wil- lard, 8 Cow. 206; Willardy. Tilson, 2 Hill, 274; Van Bens- selaer v. Bays, 19 E. Y. 68; SanwY. Ball, Id. 100; affirm- ing Same v. Smith, 27 Barb. 104. Or a right of entry for breach of condition may be assigned: Nicol v. N. Y. dt Erie B. B. Co., 12 N. Y. 121; Gh-atz v. Catlin, 2 Johns. 248; con- tra, Warner v. Bennett, 31 Conn. 468. SEOXJKITIES MAY BE ASSIGNED. 192. Securities may be assigned; thus, a gu.aranty is assignable: Small v. Sloan, 1 Bosw. 352. And, generally, the assignee of a security is subject to the rule that assignee takes subject to all equities: Mlis v. Messerve, 11 Paige, 467; Bvans v. Ullis, 5 Den. 640; L'Amoreuxy. Vandenhiirgh, 7 Paige, 316. So of mortgages assigned: Hubbard v. Turner, 2 McLean, 519; MicJdes v. Townsend, 18 N. Y. 475; which are subject to defeasance: Clute v. Bobinson, 2 Johns. 595; or claim to deduction: Wood v. Chew, 13 How. Pr. 86; or to right of redemption : Sweet v. Van Wyck, 3 Barb. Ch. 647; Covell v. Tradesman's Bank, 1 Paige, 131. 193. A mortgagee, who has transferred by indorsement on the mortgage or otherwise, and not by deed, his interest in the mortgage and note is not a necessary party defend- ant to a petition by the assignee to foreclose the mortgage : McGvffey v. linley, 20 Ohio, 474; Grant r. Ludlow, 8 Ohio St. E. 1. Liens of material men are assignable: The "Boston," Blatch. & H. 309. So a master's lien for freight may be assigned: Everett v. Coffin, 6 Wend. 603; Ecereit v. Salters, 15 Id. 474; affirmed, 20 Id. 267. 194. A legatee of specific securities may sue in his own name to recover them, on obtaining the assent of executor: Sere v. Colt, 5 Abb. Pr. 481. 195. To enforce and carry out an assignment for benefit of creditors, all the creditors should join as plaintiffs: Bank of British N. A. v. Suydam, 6 How. Pr. 380; Waheman v. 92 ANNULLING A PATENT TO LAND. Orover, 4 Paige, 32. So, in an action for an accounting and division of proceeds in the hands of assignees, all the cred- itors should join as parties: LeniieJion t. Moffat, 1 Bdw. 45G; McPherson v. Parker, 30 Cal. 455; Joy v. Wirtz, 1 Wash. C. Ct. 417; Burton v. Smith, 4 Id. 522; Murray v. Hay, 1 Barb. Ch. E. 62; Conro v. Port Henry Iron Co., 12 Barb. 28; Dixv. Briggs, 9 Paige, 595; BrinJeerhoffY. Brown, 6 Johns. Ch. Eep. 151. The joinder of all creditors is qualified by sec. 382 Cal. Code C. P., and sec. 448 N. Y. Code C. P., 1877; see also Petree v. Lansing, 66 Barb. 357; Paff V. Kinney, 5 Sandf. 380. III. PARTIES DEFENDANT. 196. Any person may be made a defendant who has, or who claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete deter- mination of the questions involved, and in an action to de- termine 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: Cal. Code C. P. sec. 379; 1 Van Santv. PI. Eq. Pr. 74; N. Y. Code, 1877, sec. 447; 1 Yan Santv. PL 119; Nash's Ohio PI. sec. 36; Laws of Iowa, sec. 2,762; Oregon, sec. 40; Idaho, sec. 13; Nevada, sec. 13; Arizona, sec. 13. All persons materially interested in the subject- matter of the suit should be made parties, either plaintiffs or defendants: Burton v. Lies, 21 Cal. 87; affirmed in Car- penfier v. Williamson, 25 Id. 161; Wilson v. Castro, 31 Id. 420. And for damages for breach of contract, only the parties to the contract should be joined as defendants: Barber v. Camlis, 30 Cal. 92. In New York; persons sever- ally liable should not be joined in the same action as de- fendants; Le Boy v. Shaw, 2 Duer, 626; Phalen v. Dingee, 4 E. D. Smith, 379; Spencer v. Wheelock, 11 N. Y. Leg. Obs. 329. ANNULLING A PATENT TO LAND. 197. The patentee is a necessary party defendant. His rights cannot be determined or impaired in any side suit between third parties : Boggs v. 3Ierced Mining Company, 14 Cal. 279; approved in Youni v. Howell, 14 Id. 469; Pioche v. Paul, 22 Id. 111. EJECTMENT. 93 ASSESSORS. 198. In Massachusetts, assessors are jointly, as well as severally, liable, for illegally assessing and collecting a tax : Washington v. Eveleth, 7 Pick. 106. COVENANTS. 199. In a suit to enforce a covenant not to carry on a cer- tain trade, the original covenanter is not a proper party if he has parted with all interest and is not in fault: Clements V. Welles, Law Eep. 1 Bq. 200. It is held in Massachusetts that heirs are jointly chargeable, as assigns on a covenant of their ancestor which runs with the land that descends to them : Morse v. Aldrich, 1 Met. 544. So, with guardians severally appointed for different heirs: Donohoe v. Emery, 9 Met. 63. EJECTMENT. 200. 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 maybe in possession through servants and employees : Polach v. Mansfield, 44 Cal. 36; see, also, Valentine v. 31ahoney, 37 Id. 389; where the question is discussed as to the applicability of section 13 of the Practice Act; (Code C. P., sec. 379, first clause,) to the action of ejectment. A mere party in charge, for others, is not an occupant: Hawkins v. Beichert, 28 Cal. 534; People v. Ambrecht, 11 Abb. Pr. 97. A railroad company who have simply laid rails on a public highway are not occupants : Bedfieldv. Utica and Syracuse B. B. Co., 25 Barb. 54. But if the landlord be joined with the tenant as defendant in an action of ejectment, judgment, if for the plaintiff, must be against both: Code C. P., sec. 379. 201. In ejectment against mining claims, it is not neces- sary to include as defendants those holding other undivided interests: Waring v. Croiv, 11 Cal. 366. But a landlord may come in and defend in an action in ejectment, where summons is served on a tenant, by a proper showing, 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 unrea- sonable delay, regarding mere technicalities as obstacles to 94 EXECUTORS AND ADMINISTRATORS DEPENDANTS. be avoided: Roland \. KreyenJiagen, 18 Cal. 455; see, also, Hied V. Galdenuood, 22 Id. 4U5; Barrett v. Graham, 19 Id. 632; affirmed in Bailey v. Taaffe, 29 Id. 424. Alandlord may- defend in the name of the tenant, but not in his own name : Dimick v. Deringer, 32 Cal. 488; see, also, Valentine v. Ma- honey, 37 Id. 393; Hussman v. Wilke, 50 Id. 250; and Gar- ner V. Marshall, 9 Id. 270. 202. Persons renting different apartments in the same house may be joined as defendants in an action of eject- ment : Pearce v. Golden, 8 Barb. 522. When premises are unoccupied, parties claiming title accompanied by acts of ownership may be made defendants : Garner v. Marshall, 9 Cal. 268; TUyhr v. Crane, 15 How. Pr. 358. And any number may be made defendants, subject to their right to answer separately: Winans v. Christy, 4 Cal. 70; approved in Bitchie v. Borland, 6 Id. 33; Bllis Y.Jeans, 7 Id. 417; Cur- tis V. Sutter, 15 Id. 264; same parties, 26 Id. 276; Leese v. Clark, 28 Id. 35; Fosgate v. Herkimer Manfg. and Hydraulic Co., 12 Barb. 352. EXECUTORS AND ADMINISTRATORS DEFENDANTS. 203. "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 respec- tive testators or intestates:" Code C. P., sec. 1582. 204. "Any person, or his personal representatives, may maintain an action against the executor or administrator of any testator or intestate who in his lifetime has wasted, de- stroyed, taken or carried away, or converted to his own use, the goods or chattels of any such person, or commit- ted any trespass on the real estate of such person: Code C. P., sec. 1584. 205. "In actions for or against executors or administra- tors, it is not necessary to join those as parties to whom letters were issued, but who have not qualified:" Code C. P., sec. 1,587. 206. The general right to sue an administrator was taken away by statute, except in case of presentation and rejec- FOKECLOSUEE OF MOETGAGES. 95 tion of the accoimt: Ellison \. Hallech, 6 Cal. 393. And no action lies where daim was not presented : Hentsch v. Porter, 10 Cal. 559; 27 Id. 354; Eustace v. JaJms, 38 Id. 3. If an executor has come into the possession of the trust fund or its substitute, so that the same can be identified, he can be held to account, and charged as trustee, 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: Lathrop y. Bampton, 31 Cal. 17. 207. In suit for specific performance of testator's contract for sale of lands, the executor of deceased should join as plaintiff: Adams y. Green, 34 Barb. 176; see Cal. Code, C. P., sec. 1,582. In an action for specific performance against heirs on their ancestor's contract, and damages are demanded in the alternative, the executors or administrators should be made parties, or no judgment can be taken for such damages: Massie's Heirs v. Donaldson, 8 Ohio R. 377. In Nevada a joint action cannot be maintained against sur- vivor and administrator of deceased maker of a promissory note: Maples v. Gcller, 1 Nevalda, 233. 208. It is a general rule of law that no action will lie against an executor or administrator to which his testator or intestate was not liable: 2 Williams on Executors, p. 1,478; Eustace v. Jahns, 38 Cal. 3. 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 : Craton v. Wensiger, 2 Texas, 202; Able v. Chandler, 12 Id. 92; Eustace v. Jahns, 38 Cal. 3. FORECLOSUBE OP MOETGAGES. 209. All persons materially interested should be joined as defendants: Laning v. Brady, 10 Cal. 265; Montgomery v. Tutt, 11 Id. 307; Tyler v. Yreka Water Co., 14 Id. 212; De Leon v. Higuerra, 15 Id. 483; Goodenow v. Ewer, 16 Id. 461; McDermott v. Burke, Id. 580; Burton y. Lies, 21 Id. 87; Horn v. Jones, 28 Id. 194; Anthony v. Nye, 30 Id. 401; Carpentier v. Brenham, 40 Id. 221; Braiiiardy. Cooper, 96 FOEECLOSUEE OP MOETGAGES. 6 Seld. 356; Peck v. Mallams, Id 509; Welsh y. Rutgers lire Ins. Co., 13 Abb. Pr. 33; Case v. Price, 17 How. Pr. 348; 9 Abb. Pr. 111. It seems that in New York the wife of a mortgagor or of subsequent grantee of equity of redemption must be joined: Denton y. Nanny,, 8 Barb. 618; Dexter r. Arnold, 1 Sumn. 109; Gordon v. Leiois, 2 Id. 143; Wheeler V. Morris, 2 Bosw. 524; Vartie v. Underwood, 18 Barb. 561; Mills V. Van Voorhies, 20 N. Y. 412; Bbjdenburg v. Northrop, 13 How. Pr. 289; Brownsonv. Gifford, 8 Id. 389; Pinlcney V. Wallace, 1 Abb. Pr. 82; Lewis\. Smith. 11 Barb. 152. So, the mortgagee may be joined with mortgagor as defend- ants: 31arvin v. Dennison, 1 Blatcli. S. Ct. 159. In a fore- closure suit, where the defendant dies after commencement of suit, the administrator becomes a necessary party in a petition for decree of sale of mortgaged premises, if it is sought to have a judgment over against the estate for any deficiency : Belloc v. Rogers, 9 Cal. 123 ; see Fallon v. But- ler, 21 Gal. 24. 210. The owner of the equity of redemption is a neces- sary party to a foreclosure suit : Reed v. Marble, 10 Paige, 409; Dexter v. Arnold, 1 Sumn. 109; Gordons. Lewis, 2 Id. 143; Griswoldv. Fowler, 6 Abb. Pr. 120; N. Y. Life Ins. and Trust Co. v. Bailey, 3 Edw. 417; CrooJce v. CHiggins, 14 How. Pr. 154; see Bank of Orleans v. Flagg, 3 Barb. Ch. B. 316; Case v. Price, 9 Abb. Pr. 113. Grantees of mort- gaged property are necessary parties defendant, with mort- gagor : Sldnner v. Buck, 29 Cal. 253 ; Heyman v. Lowell, 23 Id. 106. But where the payment of the mortgage was as- sumed by subsequent grantee as between him and the mort- gagor, though such grantee was a necessary party, the mortgagor was not: Drury v. Clark, 16 How. Pr. 424; Van Nest v. Latson, 19 Barb. 604; Stebiins v. Hall, 39 Id. 524. 211. In general, all incumbrancers must be made parties to a bill of foreclosure : Fineey v. Bank of United States, 11 Wheat. S. Ct. 304; Matcalm v. Smith, 6 McLean, S. Ct. 416; Ellsworth v. Lambert, 4 Johns. Oh. E. 605; Haines v. Beach, 3 Id. 461. But an incumbrancer who becomes such, pending suit, is not entitled to redeem, and therefore need not be made a party: Cook v. Mancius, 5 Johns. Oh. R, FOEECLOSUBE OP MOETGAGES. 97 89; Loomis v. Siuyvesant, 10 Paige, 490; People's BanJe t. Hamilton Manufg. Co., 10 Id. 481; see Bishop of Winchester V. Faine, 11 Ves. 197. And no person holdiag a conveyance from or under the mortgagor of the property mortgaged, or having a lien thereon, which conveyance or lien does not appear of record 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 conveyance or lien as if he had been made a party to the action: CodeC. P., sec. 726. 212. In a foreclosure of mortgage given by trustees the cestuis que trust axe necessary parties: Piatt v. Oliver, 2 Mc- Lean, S. Ct. 267. When an action is brought to foreclose a mortgage securing the payment of a promissory note, the maker and indorser of the note may be joined as defendants : Eastman v. Turman, 24 Cal. 382. A writ of entry to fore- close a mortgage may be maintained against tenant in pos- session: Fales V. Gibbs, 5 Mas. C. Ct. 462. Where in- fants having an equitable vested remainder in fee, liable to be defeated by their dying in the lifetime of the equitable tenant for life, were not made parties, held that they were not bound by the decree : Williamson v. Field, 2 Sand. Ch. 533. And where there are several future and contingent interests, the person who has the first vested estate of inheri- tance, and all other persons having prior rights or interests in the premises, must be made parties; though every per- son having a future or contingent interest is not a neces- sary party: Nodine v. Greenfield, 7 Paige, 544. An as- signee in bankruptcy of a mortgagor is a necessary party, and if not joined may sue to redeem : Winslow v. Clark, 47 N. T. 261; reversing 2 Lansing, 377. But an assignment in bankruptcy pending suit does not make the assignee a necessary party : Cleveland v. Boerum, 24 N. T. 613; Daly V. Burchell, 13 Abb. N. S. 264, Sp. T. If a mortgage is assigned as a security, the assignor is q necessary party: KetUe V. Van Dych, 1 Sand. Ch. 76. So the assignor of a mortgage who guarantees its payment : Bristol v. Morgan, 3 Edw. 142. Otherwise if there is no express covenant 7 98 HUSBAND AND WIFE. to pay, though it forms parb of the purchase-money: Lock- toood V. Benedict, 3 Edw. 472. 213. Suits for the foreclosure of a mechanic's lien are in many respects analogous to those in ordinary foreclos- ure. All parties necessary to enable the court to do com- plete justice should be joined: See Sidlivan v. Decker, 1 E. D. Smith, 699; Lowber v. Ghilds, 2 Id. 577; Foster v. SUdmore, 1 Id. 719; Kaylor v. O'Connor, Id. 672. FRAUD. 214. In an action for relief from fraud in obtaining a judgment, the attorney-at-law charged with being a party to the fraud should be joined with the client: Crane t. Hirschfelder, 17 Cal. 467. So, partners may be jointly sued for fraudulently recommending an insolvent person as wor- thy of credit: Patten v. Gurney., 17 Mass. 182. Or for de- ceit in a sale, if both knowingly make false representation, though only one was interested in the expected fruits of the fraud: Stites v. White, 11 Met. 356. So, in an action to set aside conveyance as made without consideration and in fraud of creditors, the fraudulent grantor is a necessary party defendant : Oaylords v . Kelsliaw, 1 Wall . U . S . 81 . HUSBAND AND WIFE. 215. Where a married woman is a party, her husband must be joined with her, except: 1. When the action con- cerns 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 entered into between them, she may sue or be sued alone: Code 0. P., sec. 370. If a husband and wife be sued together, the wife may defend for her own right, and if the husband neglect to defend, she may defend for his right also: Code C. P., sec. 371; Laws of Iowa, sec. 2774; Idaho, sec. 8; Nevada, sec. 8; Code of Arizona, sec. 8; Ohio, sec. 29; N. Y. Code, 1877, sec. 450. As to what is sep- arate property, see California Civil Code, sees. 162, 163. HUSBAND AND WIPE. 99 216. Between Herself and Her Husband. — The test is simply to ascer- tain if the suit is between her and her husband; and this being found in the affirmative, the necessity of introducing other parties cannot affect her right: Kashaw v. Kashaw, 3 Cal. 321. 217. Living Separate. — A temporary absence does not come within the meaning of the act. There must have been an abandonment on the part of the husband or wife, or a separation which was intended to be final : Tdbin V. Qalvin, 49 Cal. 36-7. 218. Generally. — The wife can appear in and defend an action separately from her husband; she therefore possesses, as defendant, all the rights of a feme sole, and is able to make as binding admissions in writing as other par- ties: Alderson v. Bell, 9 Cal. 321. The statute confers only a privilege which in many instances it may be important for the wife to assert for the protec- tion of her interests, and in the exercise of which the fullest liberty should be accorded to her: Van Maren v. Johnson, 15 Cal. 311. 219. For any fraud or deceit practiced by the defendant, ■whether the injury were wrought through the form of a con- tract or not, affecting the common property, the remedy is by the husband alone: Barrett v. Tewlcsbury, 18 Cal. 336. The husband of a married woman is properly joined with her as a party defendant in an action upon a partnership obligation contracted by the wife and third persons as part- ners previous to the marriage and while she was a. feme sole: Keller t. Hides, 22 Cal. 457. 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 for which was executed to her, but which became common property, and which purchase was afterwards ratified by the husband. There could be no personal judgment against the wife: Althof v. Conheim, 88 Cal. 230. In this State, the wife may appear in and defend an action separately from her husband: Alderson v. Bell, 9 Cal. 315; approved in Leonard v. Townsend, 26 Id. 445. 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: Dewp^-ez v . Beuprez, 5 Cal. 387 . To enable her to defend in her own right, she must possess as defendant the rights of a feme sole: Alderson v. Bell, 9 Cal. 315; Leonard y. Town- send, 26 Id. 445. 220. In an action pertaining to her property as sole trader under the Act of 1852, the husband need not be joined: Outiman v. Scannell, 7 Cal. 455. For other authorities see ilOO HUSBAND AND WIPE. Bunderdale v. Grymes, 16 How. Pr. 195. Eouillier v. Wer- niki, 3 B. D. Smith, 310; Avogadro v. Ball, Id. 385; Free- man \. Orser, 5 Duer, 477. And she must be sued alone: McKune v. McGarvey, 6 Gal. i97; approved in Guttman\. Scannell, 7 Id. 455; and Camden v. Mullen, 29 Id. 564. 221. A married woman is not bound by the subsequent promise of her husband to pay in gold coin, as she is in- capable in law of contracting a personal obligation or bind- ing her estate, except by an instrument in writing, acknowl- edged and certified as required by the statute: Smith v. Greer, 81 Cal. 476; Maclay v. Love, 25 Id. 367; Bowe v. Kohl, 4 Id. 285; Belloc v. Davis, 38 Id. 242; Wood v. Good- fellow, 43 Id. 188. So in slander by husband, he must be sued alone: Malone y. Btillwell, 15 Abb. Pr. 421. But in slander by wife, both husband and wife must be joined: Id. 222. The husband is properly joined with the wife in an action upon an obligation contracted by the wife previous to marriage : Keller v. Hicks, 22 Cal. 457. In a suit to fore- close 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 defendant : Kohner v. Ashenauer, 17 Cal. 579. And in a foreclosure of the husband's mort- gage for the purchase-money of wife's separate estate, both must be joined: Mills v. Van Voorhies, 20 N. T. 412; 10 Abb. Pr. 152; Rusher t. Morris, 9 How. Pr. 266. So, also, where the wife executes a mortgage with her husband : An- thony V. Nye, 30 Cal. 401; Conde v. Shepard, 4 How. Pr. 75; Conde v. Nelson, 2 Code E. 58. So, in partition suits, the wife must be joined with her husband as defendant: Be Uprey v. I)e Uprey, 27 Cal. 329; Bipple v. Gilborn, 8 How. Pr. 460; Tanner v. Niles, 1 Barb. 563. In forcible entry and detainer, also, the husband is properly joined in the action: See Howard v. Valentine, 20 Cal. 282. So, also, where the homestead is involved, the wife must be joined as defendant in certain cases: Sargent v. Wilson, 5 Cal. 504; approved in Moss v. Warner, 10 Id. 297; Bevalk V. Krozmer, 8 Id. 66; Maries v. Marsh, 9 Id. 96; Horn v. Volcano Wat. Co., 13 Id. 70; Anthony v. Nye, 30 Id. 401. INJURIES CAUSED BY NEGLIGENCE. INFANT. 223. When an infant is a party he must appear either ^5y- 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 prosecuted, or by a judge thereof, expedient, to represent t^e infant in the action, notwithstanding he may have a general guardian, and may have appeared by him: Code C. P., sec. 372. 224. 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 any other party to the action, or of a relative or friend of the in- fant: Code C. P., sec. 373, sub-div. 2; N. T. Code, sec. 116; Laws of Oregon, sec. 27. INPEINGEMENT OP PATENT. 225. In selling an article which infringes upon a pat- ent, the agent may be joined with the manufacturer as a party defendant in an action against them as trespassers. Buck V. Cobb, 9 Law Eep. 645; see Boyce v. Dorr, 3 McLean, 582. INJUNCTION. 226. In 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 defendant: Hutchinson v. Burr, 12 Cal. 103 ; affirmed in Patterson v. Yuha Co., Id. 105. In a bill of peace to restrain vexatious liti- gation, although some of the parties be mere accommodation grantees, they have a right to be heard at law in their own defense: Knowles v. Inches, 12 Cal. 212. Where one of the defendants in a joint judgment sues to have the judg- ment perpetually enjoined, his co-defendants should be made parties to the action : Ocdes v. Lane, 44 Cal. 392. ESfJUEIES CAUSED BY NEGLIGENCE. 227. Where damage was done and property of plaintiff destroyed by the freshet caused by the breaking of a dam 102 PARTNERS. built by contractors; the employers exercising no super- vision, giving no directions, furnishing no materials, nor having accepted the work : Held, that the contractors alone were liable: Boswell v. Laird, 8 Oal. 469; see also DuPratt V. Lick, 38 Id. 691; and G'E.ale v. Sacramento, 48 Id. 212. As to liability for injuries caused by defective con- struction after acceptance: see Boswell v. Laird, 8 Id. 469; affirmed in Fanjoy v. Scales, 29 Id. 249. Carriers, for loss of goods, may be sued jointly or severally : Mcintosh, v. En- sign, 28 N. Y. 169. And they are also entitled to sue sev- erally: Merrick v. Gordon, 20 Id. 93. LEGACY. 228. Purchasers of land, in unequal portions, charged with the payment of a legacy, must be joined in an action for the legacy : Stuasey v. Little, 7 Pick. 296. PARTNERS. 229. Partners may be sued by their common name, whether it comprises the names of the persons associated or not: Code C. P., sec. 388; Welch v. Kirkpatriok, 30 Cal.202. But a party can only be bound on a note executed in a firm 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: North V. JBloss, 30 N.Y. 374; Wood v. O'Kelley, 8 Cush. 406; Lord-v. Baldwin, 6 Pick. 352; "see, also, N. Y. Dry Dock Co. V. Treadwell, 19 Wend. 525; Clarkson v. Carter, 3 Cow. 84; Clark v. Miller, 4 Id. 628; Mitchell v. Doll, 2 Har. & Gill. 159; Hurlhut v. Post, 1 Bosw. 28. All partners are liable for fraudulent representations of one, made in the course of the partnership business : Griswold v. Hauens, 25 N. Y. 595. So, a partner is liable to third persons for in- juries occasioned by negligence, if committed in the course of the partnership business : Colter v. Bettner, 1 Bosw. 490. In suit to take an account and dissolve a mining partner- ship, all those owning interests are necessary parties de- fendant: SettembtxY. Putnam, 30 Cal. 490. A partner may be sued at law by his co-partner or one who has been such, where the balance has been ascertained by the act of all TRESPASS. 103 the partners, and agreed to as constituting such balance : Ross V. Cornell, 45 Cal. 133. As to partnerships, general and special, the powers and authority of partners, their mutual obligations and liability, etc., see Civil Code Cal., sees. 2424 to 2520. PEINCIPAL AND AGENT. 230. A principal, though himself innocent, is liable for fraud or misconduct of the agent acting within the scope of his authority : Dwinelley. Henriquez, 1 Cal. 392; Adams v. Cole, 1 Daly, 147; Hunter v. Hudson Biver Iron and Machine Co., 20 Barb. 493; Thomas v. Winchester, 2 Beld. 397. But not in matters beyond that scope : N. Y. Life las. and Trust Co. V. Beebe, 3 Seld. 364; see, also, Mechanics' BaiiJc v. N. 7. and N. H. B. B. Co., 3 Kern. 599; 4 Duer, 570. And where the principal is known, he alone is liable: Conro v. Fort Henry Iron Co., 12 Barb. 27. But an agent may render himself personally liable by not disclosing the name of his principal: Nason t. Cocfe-q/K, 3 Duer, 366; CabreY. Sturgess, 1 Hilt. 16Q; BlaJceman v. 31acJcay, Id. 266. If. on the face of an instrument not under seal, executed by an agent with competent authority, by signing his own name simply, it ap- pears that the agent executed it in behalf of the principal, the principal and not the agent is bound : Haskell v. Cor- nish, 13 Cal. 45; affirmed in Shaver v. Ocean Mining Co., 21 Cal. 45; HallY.Crandall, 29 Id. 571; Love v. S. N. L. W. and M. Co., 32 Cal. 654. Where a party makes a purchase from an innocent agent, who afterwards parts with the money of his principal, and the purchase avails the purchaser noth- ing, no legal right of complaint will lie against the agent : Engels v. Heatly, 5 Id. 136. The principal and agent are jointly liable for an injury caused by negligence of the agent: Phelps v. Wait, 30 N. T. 78; Civil Code, sec. 2338; and generally in relation to Agency, see Title IX, Civil Code. TENANTS IN COMMON. 231. Where defendants are charged in trespass for hold- ing real estate, as joint tenants, or tenants in common, all must be joined : Sumner v. Tileston, 4 Pick. 308. TRESPASS. 232. Joint trespassers may be sued jointly or severally: 104 TEUSTEES. Greedy. Hartman, 29 N. Y. 591; Kasson v. The People, 44 Barb. 347; Woodbridge v. Camor, 49 Me. 353. That they may be sued jointly, see King v. Orser, 4 Duer, 431; Water- bury V. Westervelt, 5 Seld. 598; Herring y. Eoppoch, 8 Duer, 20; Marsh v. Backus, 16 Barb. 483. A justice of the peace ■who issues an execution commanding the arrest of the judg- ment debtor, and the attorney who procures the execution to be issued in a case in which both know that the law pro- hibits an arrest in such action, are jointly liable to the debtor in trespass: Sullivan v. Jones, 2 Gray, 570. Tres- pass lies against a municipal corporation : Allen v. Decatur, 23 111. 332. TEUSTEES. 233. In an action to carry out a trust deed, or against trustee, for breach of trust, all the cestuis que trust are necessary parties: Colgrove v. Tallmadge, 6 Bosw. 289; Bishop V. Houghton, 1 E. D. Smith, 566; Bayik of British N. A. V. Suydam, 6 How. Pr. 379; Johnson v. Snyder, 8 Id. 498. But not in an action to set aside a trust deed : Russell v. Lasher, 4 Barb. 232; Wheeler v. Wheedon, 9 How. Pr. 293; Scudder v. Voorhis, 5 Sandf . 271 ; see, also, Wallace v. Eaton, 5 How. Pr. 99. A party not a trustee may be joined or not, at the option of the plaintiff: Bateman v. Margerison, 6 Hare, 499. In an action by one of several cestuis que trust to de- clare and enforce an implied trust, all who claim to be en- titled to a portion of the trust estate are proper parties defendant: Jenkins y. Frinlc, 30 Oal. 586; West v. Randall, 2 Mass. 181; Armstrong v. Lear, 8 Pet. 52; General Mutual In- surance Company v. Benson, 5 Duer, 168. But when such share is ascertained, each claimant may sue alone: Id.; Smith V. Snow, 3 Madd. 10. Or for breach of trust: Perry V. Knott, 5 Beav. 293, 234. Persons holding funds and who have always dealt with them as if they were trust funds, are liable for losses occasioned by improper investments, though they did not in fact know who the cestuis que trust were : Ex parte Norris, Law Kep. 4 Ch. 280. So, where A. was indebted to plaint- iff, and conveyed his property to B., to be disposed of for his benefit, and had drawn an order in favor of plaintiff" on B., who had accepted it, and B. subsequently conveyed a DIFFERENT PARTIES IN ONE ACTION. 105 portion of the property to A., without consideration: Held, that A. was a proper and necessary party to the action: Lucas y. Payne, 7 Gal. 92; Shaver t. Brainard, 29 Barb. 25. DIFFEEENT PARTIES IN ONE ACTION. 235. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same and separate instruments, may all or any of them be included in the same action, at the option of the plaintiff: Cal. Code C. P., sec. 383j N. T. Code, sec. 120; Iowa, sec. 2,764; Oregon, sec. 36; Idaho, sec. 15; Arizona, Id. This section applies only to written obligations: Spencer v. Whedoclc, 11 Leg. Obs. 329; Tihhits v. Percy, 24 Barb. 39. 236. It applies to bonds, as well as bills of exchange and promissory notes: People v. Hartley, 21 Cal. 585; Peoples. Love, 25 Id. 530; Brainard \. Jones, 11 How. Pr. 569. As to when the bondholders of bonds issued by a county should be made parties defendant in suit against the county, see Hutchinson v. Burr, 12 Cal. 108; Pattersons. Supervisors of Yuba Co., 12 Cal. 106. In Oregon, the sureties on an ex- ecutor's bond cannot be sued until after default in the Pro- bate Court : Hamlin v. Kenney, Laws of Oregon, 1866, p. 55. 237. It applies in cases of joint and several contracts: Humphreys v. Crane, 5 Cal. 173; Stearns v. Aguirre, 6 Id. 176. And persons jointly and severally liable may be sued together or separately, at the option of the plaintiff: Enys V. Donniihorne, 2 Burr. 1,190; Eccleston v. Clipsham, 1 Saund. 153; Alfred y. Watldns, 1 0. E. 343; Kelsey v. Brad- bury, 21 Barb. 531; Parker v. Jackson, 16 Id. 33; Brainard V. Jones, 11 How. Pr. 569; Be Bidder v. Schermerhorn, 10 Barb. 638; Snow v. Howard, 25 Id. 55. But in actions on joint and several obligations, an administrator cannot be joined with the survivor, because one is de bonis testatoris, and the other de bonis propriis: May v. Hanson, 6 Cal. 642. To create a several liability, express words are necessary : Brady v. Reynolds, 13 Cal. 31. 238. In New York, it seems the plaintiff may sue one or all of the obligors of a joint and several bond; but in strict- ness of law, he cannot sue an intermediate number : Leroy 106 DIPPEEENT PARTIES IN ONE ACTION. V. Shaiv, 2 Duer, 626; Minor v. Mechanics' Bk. of Alexandria, 1 Pet. S. Ct. 46; Annis v. Smith, 16 Id. 303; Brainard v. Jones, 11 How. Pr. 569; Loomis v. Brown, 16 Barb. 325; Phalen v. Dingee, 4 E. D. Smith, 879; Allen v. Fosgnte, 11 How. Pr. 218. The practice is, however, different in Cali- fornia, where one or all of any intermediate number may be made defendants, at the option of the plaintiff: Lewis v. ClarJdn, 18 Cal. 400; see, also. People v. Love, 25 Id. 520; Code C. P., sec. 383. So, also, in cases of a promissory note, and mortgage to secure the same. Eastman v. Tar- man, 24 Cal. 379. 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 : Alfred v. Watkins, 1 Code E. (N. S.) 343. Or joint debtors: Kelsey v. Bradbury, 21 Barb. 531; Farmers' Bank v. Blair, 44 Barb. 642. 239. 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, sec. 989 : People v. Fris- hie, 18 Cal. 402; Lewis v. Clarkin, 18 Id. 399. 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: Tayet al. v. Hawley, 39 Cal. 93. So, where joint debtors reside in dif- ferent states, they may be sued separately: Brown v. Birdsall, 29 Barb. 549. 240. It seems that different parties, liable for the same sum, but under different contracts, cannot be joined in the same action: Allen v. Fosgate, 11 How. Pr. 218; Glencoe Mut. Ins. Co. V. Harold, 20 Barb. 298; De Bidder v. Scher- merhorn, 10 Id. 638; see, also, Broion v. Curtis, 2 Comst. 225; Barker v. Cassidy, 16 Barb. 177; White v. Low, 7 Id. 204. So held in New York, as to a guaranty written under a promissory note : Breivsterw. Silence, 4 Seld. 207; affirming S. C. 11 Barb. 144; Kelsey v. Bradbury, 21 Id. 540; Alfred V. Watkins, 1 Code E. (N. S.) 343; Draper v. Snoio, 20 N. Y. 331; Church v. Brown, 29 Barb. 389. And that the guarantor cannot be sued in the same action with the maker : Allen V. Fosgate, 11 How Pr. 218. It was there held, also, that the liability of a purchaser and his guarantor is several: Leroy v. Shaiv, 2 Duer, 626; Spencer v. Wheelock, 11 L. O. 329; but see Cal. Code C. P., sec. 383, and Civil Code, title HUSBAND AND WIPE. 107 "Negotiable Instruments." So, also, of a lessee and his surety: Phalen v. Dinger, 4 E. D. Smith, 379. PARTIES IN ACTIONS FOE T0ET8. 241. Actions in form ex delicto are for injuries to the ab- solute or relative rights of perso7is, or to personal or real prop- erty. The principal changes made by the Code, and by statute in other States, in respect to parties in this class of actions, are those relating to the death or injury to minors caused by the wrongful act or neglect of another; the giving a right of action in certain cases for causing the death of an adult, and in actions for seduction. The Code has also made an important change in regard to parties plaintiff in this class. of actions by permitting assign- ments of causes of action sounding in tort. As these matters have before been considered, we shall only briefly state some general rules regarding parties to this class of actions. PLAINTIPFS. 242. The action for an injury to the absolute rights of persons, as for assaults, batteries, injuries to the health, lib- erty and reputation must be brought by the party immedi- ately injured, and if he die, the remedy determines. 243. With respect to injuries to the relative rights of per- sons, the relations underlying the right to bring an action therefor are those of husband and ivi/e, parent and child, mas- ter and servant, and guardian and ward. HUSBAND AND WIFE. 244. The wife having no legal interest in the person or property of the husband, cannot in general join with him in any action for an injury to them, except in an action for a joint malicious prosecution of both, in which they may join in respect of the injury to both, or the husband may sue alone for the injury to himself and expenses of defense: 1 Chitty's PI. 83: 245. When an injury is committed to the person of the wife during coverture by battery, slander, etc., the wife can- not sue alone in any case; and the husband and wife must 108 PARENT AND CHILD. join if the action be brought for the personal suffering or in- jury to the wife, and in such case the complaint ought to con- clude to their damage and not to that of the husband alone; for the damages will survive to the wife if the husband die before they are recovered. A cause of action for which the husband alone must sue cannot be joined; as if the injury deprive the husband of her company or assistance, or occasion him expense, he must sue alone : 1 Chitty's PI. 83. 246. For criminal conversation with his wife the husband must sue alone, and so for words spoken of the wife, not ac- tionable in themselves, but which occasion some special damage to the husband, he must sue alone. In regard to injuries to the separate property of the wife, real or personal, she may sue alone in the cases named in sec. 370 of the Code. PARENT AND CHILD. 247. At common law the parent had the right to sue in that character for taking away his child, or for an injury to him if it caused loss of service, or in case of injury, for loss of service and medical attention, nursing, etc. He could not sustain an action for debauching his daugh- ters, nor beating his child unless he could allege and prove that he thereby lost service. The right to maintain actions for wrongs whereby the parent has lost services and incurred expenses still remains ; but the Code had added, in the case of seduction, the right of the parent to maintain an action, even though there be no loss of service: Cal. Code C. P., sec. 375. An unmarried female may also prosecute, as plaintiff, an action for her own seduction : Code C. P. 374. 248. 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 minor child, and a guardian for the injury or death of his ward, where such injury or death 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 person who is re- sponsible for his conduct; also against such other person : Code C. P., sec. 376. GUARDIAN AND WARD. 109 249. An action for damages for causing the death of a person not a minor by wrongful act or neglect, can be main- tained by his heirs or personal representatives : Code 0. P. 377. GUARDIAN AND WARD . 250. The special cases in which the guardian may sue, are: 1. For the seduction of his ward, under section 375, CodeO. P.; 2. For the injury or death of his ward caused by the wrongful act or neglect of another, under sec. 376. In all other cases of torts, it is believed, the powers and rights of the guardian are not greater than at common law. PART SECOND. ANALYSIS OF PLEADINGS. CHAPTEE I. OP PLEADINGS IN GENERAL. 1. Pleadings are defined by the Code of Civil Procedure as follows : § 420. The pleadings are the formal allegations by the par- ties of their respective claims and defenses, for the judgment of the court. g 421. 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. g 422. 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, vol. 1, p. 235, is this : " Pleading is the statement in a logical and legal form of the facts which constitute the plaintiffs 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." 2. The object of pleading is the production of a material issue between the parties; 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 . OP PLEADINGS IN GENEBAL. Ill 3. 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 main- tain his action, or that the facts stated in the answer consti- tute a defense; or points out some defect which in law ought to prevent the party whose pleading is demurred to from ob- taining the relief sought in his complaint or answer. As will be seen hereafter, these defects must appear upon the face of the pleading demurred to. 4. 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 de- nied by the plaintiff. The Code of Ohio, and some other States, requires a replication by the plaintiff to new matter set up in the answer. 5. Under our statutes (Cal. Code C. P., see. 307), and under the statutes of other States which have adopted acode of procedure similar to ours, only one form of civil action exists. By this is meant that the formal distinctions between the different common law actions, assumpsit, debt, covenant, trespass, etc., and also between actions at law and in equity are swept away: Miller v. Fan Tassel, 24 Cal. 458. Formerly it was necessary to decide what form of action must be re- sorted 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 "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 be- fore 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 these formal distinctions are taken away, and the pleader is required to state the facts which constitute his cause of ac- tion; and whatever relief those facts, being established, may entitle him to, he will obtain whether legal or equitable, or both, or whether they would have made a case in assumpsit, 112 OF PLEADINGS IN GENERAL. debt case, or other form of common law action . It was held by the Supreme Court of California in the case of Bowen v. Aubrey, 22 Cal. 570, that "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 con- struing that Act we resort to former adjudications, and the old and well established principles of pleading at common law, yet the former distinctions which existed between com- mon law and equity pleadings no longer exist." See, also, Cordier \. Schloss, 12 Cal. 143; Payne \. Treadwell, 16 Id. 243. 6. In the New York Code of Procedure, section 69, the distinction between actions at law and suits in equity is expressly abolished. In Ohio, Iowa, Nevada, Oregon, Idaho, Arizona Territory, and most of the states and terri- tories of the Union, as well as New York and California, "the distinction in the modes of obtaining relief which formerly characterized the proceedings 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 : 1 Whitt. Pr. 553; see, also, 1 Van Santv. PI. 39; Nash's O. P. 2; 2 Till. & Sh. 1; Swan's PI. 21; Stat, of Iowa, sec. 2,608; Traphagen v. Traphagen, 40 Barb. 537; McBuriwy v. Wdl- man, 42 Barb. 390; Bunnell v. Keteltas, 16 Abb. Pr. 205; Van Benssalaer v. Beed, 26 N. Y. 558; Denman v. Brince, 40 Barb. 219. In Cole v. Beynolds, 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 proceed- ing 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 so with refer- ence 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 main- tain an action who could not have maintained it before, bat in no case can such an action be maintained where no action at all could have been maintained before upon the same state of facts. If, under the former system, a given state OP PLEADINGS IN GENEBAL. 113 of facts would have entitled a party to a decree in equity in his favor, the same state of facts now, in an action pros- ecuted 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 judgement, he will, by proceeding as the Code requires, obtain the same judgement." " What was an action at law before the Code, is still an action founded on legal prin- ciples; and what was a bill in equity before the Code, is still a civil action founded on principles of equity:" Nash's PI. & Pr., vol. 1, p. 4; see, also, Cal. Code C. P., sec. 307. 7. In adjudications under the New York Code: Howard V. Tiffany, 3 Sandf. 695; 1 Van Santv. PL 41, it is held that although the forms of actions at law and in equity are abolished, yet that even in the pleadings, or the manner 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:" Rowe v. Chandler, 1 Cal. 167; Dewitt v. Hayes, 2 Id. 463; LahertY. Chauviteau, 3 Id. 467. Smith v. Bowe, 4 Id. 6; Wiggins v. McDonald, 18 Id. 127. 8. 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: Gray et al v. Dougherty, 25 Cal. 266; Moore v. Massini, 32 Id. 590. In the case of TJie Olobe Ins. Co. v. Soyle, 21 Ohio St. 119, it was held that an action might be brought to reform a con- tract, and to recover on said contract so reformed; and if, when reformed, the cause of action would have been a com- mon law action, then the court will first 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: Stevenson v. Buxton, 15 Abb. Pr. 352; Barlow v. Scott, 24 N. Y. 40. 9. For a party may have such relief as is adapted to his 8 114 OF WHAT PLEADINGS CONSIST. case from the proofs: White v. Lyons, 42 Oal. 279; Van Deusen v. Young, 29 N. Y. 29; Denman v. Prince, 40 Barb. 219; Hammonds. Cockle, 2 Han. N. T. 495; Biocbie v. Wood, 24 N. Y. 610; Whits v. Madison, 26 Id. 117. It will there- fore be observed that relief is now administered without reference to the technical and artificial rules of the common law: Rome v. Chandler, 1 Oal. 168; Jones v. Steamship " Cortes," 17 Id. 487 ; White v. Lyons, supra; Grain v. Aldrich, 38 Cal. 514. The prayer of a complaint is not the subject of a demurrer: Althofr. Conheim, 38 Cal. 230; Hale v. Omaha Nat. BL, 49 N. Y. 626. 10. The intention of the legislature was evidently to adopt a "uniform and complete system :" Humiston v. Smith, 21 Cal. 134, whereby the old and cumbersome forms of pleading would be dispensed with. Yet the facts consti- tuting plaintiff's cause of action are required to be stated as fully under the new practice as under the old: Miller \. Van Tassel, 24 Cal. 463; Conaughty v. Nichols, 42 N. Y. 83, 87. OP WHAT PLEADINGS CONSIST. 11. Pleading consists in alleging facts upon the one side and denying them upon the other : Buddington v. Davis, 6 How. Pr. 402. But the facts so alleged always presuppose some rule of law applicable to them : Gould's PI., sees. 2 and 3. 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 princi- ple of law could be predicated in his favor:" Gould's PI. 2. 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. 12. As fictitious issues are by the Code abolished: N. Y. Code, sec. 72; Snell v. LoucJcs, 12 Barb. 385; analogies of the old system of pleading are not in all cases a safe guide under the Code: Bush v. Prosser, 1 Kern. 347. Two promi- nent elements intended in the new system are, that false- hood should not be put upon the record, and that the pleadings should disclose the facts relied on in support or defense of an action. Id. FACTS ONLY MUST BE STATED. 115 DISTINCTION BETWEEN THE PLEADINGS AND THE ACTION. 13. 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 com- plaint and answer: 1 Bur. Law. Diet. 38; while the action is the history of the whole cause, including: 1. The com- plaint, which names the parties, and states the injury suf- fered; 2. The process, which brings the party into court to answer as to these injuries; 3. The answer of defendant, which admits, or denies, or avoids, etc. ; 4. The trial, where- in the nature of the demand and defense are presented 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. 14. It is provided by the Code that " the pleading on the part of. the plaintiff shall be the complaint, and demurrer to defendant's answer; and on the part of the defendant, the demurrer and answer: Cal. Code, sec. 422. 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 subject for further definition. 15. It is also provided by statute that " when a defendant is entitled to relief, as against the plaintiff alone, or against the plaintiff and a co-defendant, he may make a separate statement in his answer, of the necessary facts, and pray for the relief sought, without bringing a distinct cross action;" so that parties litigant may settle all questions of difference between them, so far as is practicable, in one action, and not litigate by piecemeal. Interminable litiga- tion is not favored by our legislature nor by our courts, the decisions being numerous and pointed on this subject. 16. It will be our purpose, therefore, to consider the sub- ject of pleadings herein; reserving the consideration of the action for future chapters, where the various steps will be considered under their appropriate heads. PACTS ONLY MUST BE STATED. 17. In the decision of the Supreme Court in the case of Green v. Palmer, 15 Cal. 411, it is made a rule that "facts only must be stated." See, also, 1 Van Santv. 244; 2 Till. 116 FACTS ONLY MUST BE STATED. & Shear. 8; Hides v. Murray, 43 Gal. 515. The reasons for the existence of these facts are not to be given, but only the naked facts, disrobed of any circumstance connected with or pertaining to them; and this without inferences, or conclusions, arguments, hypothetical statements, or state- ments of the law, or of the pretenses of the opposite party. 18. If A. is indebted to B. in the sum of five hundred 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 deliv- ered, 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. 19. 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 kindred 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 any- thing further than that they were sold to B. at his request, for so much money, and that B. has failed to pay for them. The kind of goods sold and the price or value of each article, are questions of evidence which need hot 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 distinguished from the evidence of the facts, since the latter pertains to the trial and not to the pleadings. 20. Argument is improper in a pleading, and should never be inserted: 1 Van Santv. 355; Steph. PI. 383; as a CONCLUSIONS OF LAW. 117 good pleading should be true, unambiguoTis, consistent and certain to a common intent, as to time, place, person and quantity, and not redundant or argumentative: Boyce v. Brown, 7 Barb. S. C. E. 85; Green v. Palmer, 15 Cal. 414; Gallagher v. Dunlap, 2 Nev. 326; Alderman v. French, 1 Pick. 1; Atwoody. Caswell, 19 Id. 4Qd; Austin y. Parker, 13 Id. 222. CONCLUSIONS OF LAW. 21. An allegation of a legal conclusion is one which gives no fact, but matter of law only: Hatch v. Feet, 23 Barb. 583. Such averments are not tolerated by our practice; the facts from which the conclusions follow must be averred, but not the conclusions: 1 Van Santv. 244; 1 Whitt. Pr. 563; Levinson v. Schwartz, 22 Cal. 229; Lighinery. Menzell, 35 Id. 452; Gantine v. ClarJe, 41 Barb. 629; McGee v. Barber, 14 Pick. 212; White v. Bladison, 26 N.Y. 117; Eaight v. Child, 36 Barb. 186; Commercial Bank of Rochester v. Rochester, 41 Barb. 341; Butler y. Viele, 44 Barb. 166; Carter v. Koezley, 9 Bosw. 583. The following may be regarded as conclusions of law: 22. Arose out of the Transaction. — That an indebtedness arose out of the transaction, is a conclusion ol law: Brown v. Buckingham, 11 Abb. Pr. 387. 23. Assent. — The knowledge and assent of a party is a legal conclu- sion: Moore-v. Westervelt, 2 Duer, 59; 1 Bosw. 357; 21 N. Y. 103. So in the case of a promissory note made by a co-partner: Kenmys v. Richards, 11 Barb. 312. 24. Bona Fide Holder and Owner. — That a party is the holder and owner, as of a promissory note: White v. Brown, 14 How. Pr. 282; but see Solstein v. Bice, 15 Id. 2. 25. Bound. — Whether a carrier is bound to know the contents of a pack- age: Berleyr. Newton, 10 Ho-w-Vi. 490. That the defendant was " bound to repair:" Casey v. Mann, 5 Abb. Pr. 91. That defendant became, or was lawfully bound by the rendition of a judgment against him: People y. Su- pervisors, 27 Cal. 655; Peopley. Commissioners of Fort Edward, 11 How. Pr. 89. 26. Contrary to Law.— That the defendants have acted contrary to the act (statute), is a conclusion of law: Smith y. Lockwood, 13 Barb. 209. 27. Control and Management.— That a defendant, as executrix, controls and manages the estate of the deceased, and is responsible therefor: Phin- ney v. Phinney, 17 How. Pr. 197. 28. Credit. — That the goods were purchased "on credit" and that the "terms of credit" hadnot expired: Lemnson v. Schwartz, 22 Oal. 229. 118 CONCLUSIONS OF LAW. 29. Due.— That a certain amount is due upon a note. IHsch v. Kaler, 21 Cal. 71; McEyring v. Bull, 16 N. Y. 303; Alien v. Patterson, 3 Seld. 480. 30. Due and Owing.— That a sum is " due and owing:" Keieltas v. Mey- ers, 3 E. D. Smith, 83. 31. Duly.— If " duly " has any clear legal signification, it is a question of law to be determined on the facts : Qraham T. Machado, 6 Duer, 517. That the plaintiff was duly appointed chamberlain was held sufBoient: Piatt v. Stout, 14 Abb. Pr. 178. That plaintiff sued by a guardian duly appointed, if the statement is deemed too general, the proper course is to move to make it definite: Ser4 v. Coit, 5 Abb. Pr. 482. That the trustees were duly appointed: Conger v. Solliday, 3 Edw. Ch. 570. That the plaintiff was duly authorized to bring the action: Myers \. Machado, 6 Abb. Pr. 198; 14 How. Pr. 149. That a meeting was duly convened would imply that it was reg- ularly convened: People v. Walker, 23 Barb. 305; 2 Abb. Pr. 422. That the location was duly and properly made according to the provisions of an act: People V. Jackson, 24 Cal. 632. 32. Duty.— That it was or is the " duty " of a party to do or forbear an act, is a conclusion: City of Buffalo v. Eolloway, 3 Seld. 493; Rex v. Everett, 8 B. & 0. 114. 33. Indebted. — That a party is indebted or remains indebted: Curtis v. Richards, 9 Cal. 33; Wells v. McPike, 21 Id. 215; Chamberlain v. Eaylor, 2 E. D. Smith, 139; Hall v. Southmayd, 15 Barb. 32. Or became indebted: CcU. State Tel. Co. v. Patterson, 1 Nev. 151; Lightner v. Menzell, 35 Cal. 452. 34. In Violation. — Schenck v. Naylor, 2 Duer, 678. 35. LawfulHolder.— That one was the "lawful holder:" Beach v. Gallup, 2 N. Y. Code B. 66; but see Taylor v. Corbiere, 8 How. Pr. 387. 36. Lawful Title and unlawfully withholds : lawrmce v. Wright, 2 Duer, 674; see, however, Walter v. Lockwood, 23 Barb. 233; 4 Abb. Pr. 307; En- sign V. Sherman, 13 Id. 35, 37. Liable. — That one is "liable:" JJfic v. Upton-on-Severn, & 0, andP. 133. 38. Nearer of Kin. — That a party is "nearer of kin:" Pub. Admr. v. Watts, 1 Paige, 348. 39. Necessary supplies. — That supplies furnished to a vessel are neces- sary: The '•Gustavia," Blatohf. & H. 189. 40. Obligation.— That he had failed to fulfill his obligations : Van Schaack V. Winne, 16 Barb. 95. 41. Ordinance is Legal. — That an ordinance passed by a municipal cor- poration is legal ; People v. Supervisors, 27 Cal. 655. 42. OTves. — That the defendant owes the plaintiff the sum before men- tioned: Millard v. Balduiin, 3 Gray, 484; Codding v. Mansfield, 7 Id. 272; 13 Id. 392. 43. Owner. — That a party is owner: Adams v. Holley, 12 How. Pr. 330; Thomas v. Desmond, Id. 321; contra, Davis v. Hoppock, 6 Duer, 256; Walter V. Loclcmood, 23 Barb. 233; 4 Abb. Pr. 307; McMurray v. Gifford, 5 How. Pr. 14; Beniley v. Jones, 4 How. Pr. 204. 44. Owner and Holder.— That plaintiff is owner and holder of a note: Poorman y . Mills, 35 Cal. 118; approving Wedderspoon,Y. Rogers, 32 Cal. 569; WUherspOon v. Van Solar, 15 How. Pr; 266. CONCLUSIONS OF LAW. 119 45. Power and Authority.^That a corporation had full power and lawful authority to do a particular act : Brariham v. MoHjor of San Jose, 24 Cal. 585. 46. Promised to Pay. — That defendant promised to pay, in the common counts in assumpsit, is a mere conclusion of law from the facta stated, and need not be averred under the code: Wilkins v. Stidgers, 22 Cal. 232. 47. Release. — That a party "did execute a release in full:" Hatch v. Peet, 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. 48. Repeated Acknowledgments. — Bloodgood v. Bruen, 4 Seld. 366. 49. Right of Possession. — That right of possession was forfeited by non-compliance with rules and customs : Dutch Flat v. Mooney, 12 Cal. 534. 50. Sole Owner. — That a party is sole owner: T/iomos v. Deswiond, 12 How. Pr. 821; see, however, Solstein v.iJJce, 15 Id. 1. 51. Subject to Mortgage. — That defendant took land subject to mort- gage: Warmmdh-i. Hatch, 33 Cal. 121. 52. Title to Money. — That plaintiff is entitled to the sum of money de- manded: Drake v. Gockroft, 1 Abb. Pr. 203. 53. Trust. — That by the laws of the State a trust was created: Throop v. Hatch, 3 Abb. Pr. 25. 54. Undertake to deliver. — "That he did not, by his agreement, under- take to deliver the land from all incumbrances:" Warner v. Hatfield, 4 Blackf. 394. 55. Unjust refusal. — That a refusal is unjust, is a conclusion of law: Be Prime, 1 Barb. 352. 56. Validity. — That a note never had any validity: Burrall v. Bowen, 21 How. Pr. 378. What is the meaning of validity and effect of a contract? Latham v. Weslervelt, 26 Barb. 256; Chapin v. Potter, 1 Hilt. 366. 57. Were discontinued. — That actions were discontinued, is a conclu- sion of law: Hatch v. Peet, 23 Barb. 583. 58. Wrongfully and Unlaw^fully, when used in connection with issu- able facts, are surplusage, and had better be omitted: HaUeck v. Mixer, 16 Cal. 574; Paynev. Treadwell, 16 Cal. 220; Zay\. Neville, 25 Id. 545; People V. Supervisors, 27 Id. 655; Richardson v. Smith, 29 Id. 529; MUes v. McDer- mott, 31 Id. 271 ; People ex rel. Haws v. Walker, 2 Abb. Pr. 421; Fletcher v. Cal- throp, 1 New Mag. Cas. 541; Ensign v. Sherman, 13 How. Pr. 37; Kinsey v. Wallace, 36 Cal. 463; and Feely v. Shirley, 43 Id. 369. 59. Other instances of conclusions of law might be enu- merated, taken from the decisions of the Supreme Court of the State of California, but we do not deem such neces- sary. If counsel were permitted to aver conclusions of law, pleadings might be valuable as briefs, but worthless as statements of facts— the latter being the only object of pleadings. 120 defendant's peetenses, oe pacts anticipating a defense. defendant's peetenses, oe facts anticipating a defense. 60. Defendant's pretenses are improper, as they are not the facts of the plaintiff's case: 1 Whitt. Pr. 582; Steph. PL 349; Oreeyi v. Palmer, 15 Cal. 414; Van Nest -v. Talmadge, 17 Abb. Pr. 99; HotMm v. E. I. Comp., 1 T. E. 638. So, 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 complainant 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 plaint- iff. 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 : Gould's PI. 75; Canfield v. Tobias, 21 Cal. 349; Green v. Palmer, 15 Id. 414; Kerr v. Blodgett, 16 Abb. Pr. 137; Giles v. Betz, 15 Id. 285; Van Demarlc v. Van DemarJc, 13 How. Pr. 372. 61. The above is the general rule, but there are excep- tions; such as where the original indebtedness is counted on, and then the defense of payment anticipated by allegations of matters of fraud in answer: Bracket v. Wilkinson, 13 How. Pr. 102; see, also, Wadey. Busker, 4Bosw. 537; and Tomp- sonY. Minford, 11 How. Pr. 273. 62. An allegation that defendant was of full age when he executed the bond, is the allegation of a fact in anticipation of a defense: Walsingham's Case, Plow. 564; Bovy's Case, 1 Vent. 217; Siowell v. Zouch, Plow. 376. 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 the com- mencement of the suit, an allegation, inserted for the pur- pose of anticipating the defense of the Statute of Limita- tions, that ' ' the defendants have not resided in the State at any time within six years, etc.," was irrelevant and should be stricken out: Butler v. Mason, 5 Abb. Pr. E. 40. But it is otherwise in California: see Keller v. Hicks, 22 Cal. 457; Breman v. Ford, 46 Id. 7; Canfield y. Tobias, 21 Id. 350. IMPLICATIONS AND PKESUMPTIONS OF LAW. 121 FACTS INDEPENDENT OF THE CAUSE OF ACTION. 63. Facts independent of the cause of action and proper to the affidavit, accompanying a pleading, as in cases of arrest, should not be alleged : Sellar v. Sage, 12 How. Pr. 531; 13 Id. 230; Ih-ost v. McCarger, U Id. 131; Secor v. Roome, 2 N. T. Code E. 1; contra, Barber v. Hvhhard, 3 Id. 156. So, of facts in relation to a contemporaneous agree- ment in writing varying the terms of a promissory note : Smalley v. Bristol, 1 Mann. (Mich. K.) 153. IMPLICATIONS AND PRESUMPTIONS OF LAW. 64. Where the law presumes a fact, it need not be stated in a pleading: 1 Chitt. 220; 4 M. & S. 120; 2 "Wils.liT; Steph. on PI. 352; 1 T\Taitt. 591; Fartridge v. Badger, 25 Barb. 146; Tileston v. Neiudl, 13 Mass. 406; Dunning v. Owen, 14 Id. 157; McGee v. Barber, 14 Pick. 212; Marsh v. Bulted, 5 Barn. & Aid. 507; Frets v. Frets, 1 Cow. 335; Allen V. Watson, 16 Johns. 205; Vymor's Case, 8 Eep. 81; Bac. Ab. Pleas, i. 7; 2 Sand. 305; Sheers v. Brooks, 2 H. Bl. 120; Sand/ord v. Palmer, 2 Brod. & Bing. 361; IVilsonv. Hobday, 4 M. & S. 125; Chapman v. Pickersgill, 2 Wils. 147. Or, matters of which the court takes judicial notice need not be alleged: Goulett v. Coudry, 1 Duer, 139. Or notice ex officio: 1 Sandf. 262; Steph. PI. 345. As of a public statute: Goulett v. Coiudi-y, 1 Duer, 139. But not of ordinances of a municipal corporation : Harlcer v. Mayor of If. T., 17 Wend. 199. 65. Agency. — ^That presentation of note by a bank was " as agents " for plaintiff and not as owners, is presumed: Farmers and Mechanics' Bank of Genesee v. Wadsworth, 24 N. Y. 547. 66. Beath of Ancestor. — The allegation that one is heir of A. implies the death of A., for nemo est hceres viveniis: Broom's Leg. Max. 393. Though the term "heir" may denote heir apparent: Lockwood v. Jessup, 9 Conn. K. 372; Cox t. BeUzhoover, 11 Mo. 142. 67. Delivery of a Specialty. — The delivery of a specialty, thongh essential to its validity, need not be stated in a pleading: 1 Chitt. PI. 364; 1 Saond. 291; 10 How. Pr. 274; 12 Id. 452; 15 N. T. 425; Lafayette Ins. Co. v. Rogers, 30 Barb. 491. 68. Incorporation. — In New York, that a business corporation made and delivered its promissory note, sufBciently states a valid contract. A legal consideration may be presumed: Lindsey v. Sbnonds, 2 Abb. Pr. (N. S.) 79; Wood v. WdHngUm, 30 N. Y. -218; Phoenix Bk. of X. T. v. Don- neU, 41 Barb. 571. 122 MATERIAL AVERMENTS. 69. In 'Writing. — Averment of acceptance implies "in writing:" Bank of LowoUle V. Edwards, 11 How. Pr. 216. 70. Jurisdiction. — The jurisdiction of a court of record of a sister State will be presumed. It is sufficient to allege that judgment was duly re- covered: Ealstmd v. Black, 17 Abb. Pr. 227. So, also, of all courts, officers, and boards: Cal. Code, C. P. sec. 456. 71. 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; Soleman v. De Gray, 6 Abb. Pr. 79. In the case of Keteltas \. Meyers, supra, a copy of the note sued on was set out in the complaint, and the fact that the note was due appeared therefrom ; 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:" Eeld, 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 conclusion of law : Roberts v. Treadwell, 50 Cal. 520. 72. OfBcial Capacity of executor is implied: Scranton v. Farmers and Mecliamcs' Bank, 24 N. Y. 424. 73. Ownership, — Possession of negotiable paper indorsed in blank by the payee thereof, is prima facie evidence of ownership : Bedell v. Carll, 33 N. Y. 591; Brainerd v. N. T. & Barlem R. B. Co., 10 Bosw. 332. 74. Promise. — In a great many cases where 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 : Par- kins V. Wollaston, 6 Mod. 131. So, a sale of goods or loan of money neces- sarily imply a promise, and a consideration, and a mutual contract: see notes to Osborne v. Rogers, 1 Saund. 264; Victor v. Dames, 1 M. & W. 758; Emery v. Fett, 2 T. E. 28; Glenny v. Hitchins, 4 How. Pr. 98. And the law makes no distinction between an implied promise and an express promise : Kinder v. Paris, 2 H. Bl. 563; Chitty on Cont. 19. See discussion on this subject of promise in Sail r. Southmayd, 15 Barb. 34-6; see, also, Orop- sey V. Sweeney, 27 Barb. 310; Farron v. Sherwood, 17 N. Y. 230; Berry v. Fernandez, 1 Bing. 338; Burnford y. Messiier, 5 Man. & S. 446. 75. Proportion of Liability of Surety.— The proportion that a surety has to pay is implied: Van Demark v. Van Bemark, 13 How. Pr. 372. 76. Public Officer. — In a suit by a public officer in his name of office, his due appointment thereto is implied. Fowler v. Westervelt, 40 Barb. 874. 77. Statute.— As to implications arising in actions brought under a statute, see Freeman v. Fulton Fire Ins. Co., 38 Barb. 247; Wasliburnv. Franklin, 18 Barb. 27; 7 Abb. Pr. 8; Merwin v. Eamilton, 6 Duer, 248; Peel V. Tellis, 4 Johns. 304. MATERIAL AVERMENTS. 78. A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken ESSENTIA! FACTS ONLY ABE MATERIAL. 123 from the pleading without leaving it insufficient: Gal. Code, sec. 463; Oregon Code, sec. 93. There is no ques- tion 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. 79. The following questions will decide in most cases whether an allegation be material: Can it be made the subject of a material issue? Green t. Palmer, 15 Cal. 414; Martin v. Kanoiise, 2 Abb. Pr. 330; Massina v. Clark, 17 Abb. Pr. 188; Cahill t. Palmer, Id. 196. Or, if it be denied, will the failure to prove it decide the case in whole or in part ? Green v. Palmer, 15 Cal. 414. Such material averment cannot be presumed from the existence of other facts: 1 VanSantv. 773-4; 15 Barb. 34, 35; Van de Sande V. Hall, 13 How. Pr. 458. ESSENTIAL FACTS ONLY AEE MATERIAL. 80. What facts are essential in a pleading is sometimes a question which puzzles the pleader, yet it should not. The following tests will determine whether certain allegations are unnecessary (1 Van Santv. 319, 320): 1. Can the allega- tion be stricken from the pleading without leaving it insuf- ficient? WMtwell V. Thomas, 9 Cal. 499; 2. Can it be stricken from the pleading without impairing any portion of plaint- iffs cause of action? Green v. Palmer, 15 Cal. 414; 3. Can it be stricken from the pleading without an injury to plaintiff or a benefit to defendant, however remote this injury or ben- efit may be ? 81. The essential facts only should be averred; for, should the pleadings be so framed that ev.en the least im- portant essential fact is left out, the cause of action is im- paired. 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 per- mits long pleadings :" Green v. Palmer, 15 Cal. 417. It is 124 IMMATERIAL, lEEELEVANT AND EEDUNDANT MATTER. only ultimate facts that are to be alleged, and not the facts which tend to prove or establish the existence of the ulti- mate 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. IMMATERIAL, IRRELEVANT AND EEDUNDANT MATTER. 82. Irrelevant, immaterial, unessential, redundant, and surplus allegations should be omitted from a pleading: Green v. Palmer, 15 Cal. 414. Such allegations or denials present no issue: 1 Yan Santv. 76; Maretzek v. Caldwell, 19 Abb. Pr. 35. And if such matter be inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby: Cal. Code, sec. 453; Nevada, sec. 57; Idaho, sec. 57; Arizona, 57; N. Y. Code, sec. 160; Oregon, sec. 84; Larco v. Casaneuava, 30 Cal. 560; Boles y. Cohen, 15 Id. 150; Hampshire Manuf. Bank -v. Billings, 17 Pick. 87; Lord v. Tyler, 14 Id. 156; Cahill v. Palmer, 17 Abb. Pr. 196; Moffatt V. Pratl, 12 How. Pr. 48. 83. Irrelevant matter in a pleading is that which has no bearing on the subject-matter of the controversy: jPa6rico though they are applicable here. 10. Real Party. — The complaint shall contain the name of the real party in interest: (Jal. Code, sec. 367; 1 Van Santv. Eq. Pr. 72; see Ante Parties, p. 53. The term "parties " includes all who are directly interested in the subject matter of the action, having a right to make defense, control proceedings, examine and cross-examine witnesses, and appeal from the judgment: Bobbins v. Chicago City, 4 Wallace U. S. 567. For a further definition, see Girand v. Stagg, 4 E. D. Smith, 27. 11. Titles to be Avoided. — In designating the parties to the action, except where suit is brought in an official or representative capacity, no title or other appellation is necessary. If inserted, it will be treated as mere surplusage: Shelden v. Hoy, 11 How. Pr. 15; Root v. Price, 22 How. Pr. 372; Butterfield v. Maeomber, Id. 150. 12. Venue, how Laid. — As a venue is technically necessary to every traversable fact, when it is once properly laid, all matters following refer to it: Cocke v. Kendall, Hempst. 236. It has been held, however, that a venue laid in the body of the complaint is sufficient: Dmght v. Wing, 2 McLean, 580. The proper mode in all oases will be to lay the venue in the title. No.S. ii. Title of Cause where some of the Parties are TJnlmown. [State and Countx.] [CoirKT. ] Andbkw Black, Plaintiff, against Chaeles Dean, John Dob and EicHABD EoK, Defendants. 13. Parties Known and Unknown.— In certain cases the statute authorizes the plaintiff to proceed against parties, 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 com- plaint the reason, that " their true names are unknown." FOEMAL PABTS OF COMPLAINT, 147 14. Parties TTnknowu.— 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: Gal. Code, sec. 474; N. Y. Code, see. 175; Morgan v. TliHft, 2 Cal. 562; see also Rosearantz v. Rogers, 40 Cal. 491; McKinlay v. Tuitle, 42 Cal. 577; Campbell Y. Adams, 50 Cal. 205. But the plaintiff cannot thus use a fictitious name at his discretion; he is restricted to cases where the name of the adverse party is unknown: Crandall v. Beach, 7 How. Pr. 271; People v. Serman, 45 Cal. 692; and must aver in the pleading that the true name of the party is to the plaintiff unknown: Waterbury y. Mather, 16 Wend. 611. Where a defendant is sued as James , service was returned upon John , and judgment was entered against J. : Held to be error, unless there was something in the record to show that the person served was the person sued: Sutter v. Cox, 6 Cal. 415. No.S. iii. Title of Cause. — Corporations. [State and County.] [Court.] The Mono Gold and Selvek Mdiino Gompant, Plaintiff, against The Fobt Tejon Bailsoad Company, Defendant. 15. Corporations. — A corporation cannot sue otherwise than by its corporate name: Curtis v. Murray, 26 Gal. 633; Crawford v. Collins, 30 How. Pr. 398. And a company by its firm name or title: King v. Eandlett, 33 Cal. 318. In New York, a banking association may sue either in its corporate name or in the name of its president: Leonardsville Bank v. Willard, 25 N. Y. 574. This does not, however, take the place of the averments necessary in the body of the complaint, showing their official character. 16. Person. — The word "person" in its legal signification is a generic term, and intended to include artificial as well as natural persons: Douglass V. Pacific M. S. S. Co., 4 Gal. 304. The statute having done away with all distinction between natural aud artificial persons, and the rules of pleading applicable thereto: San Francisco Gas Co. v. Tlie City of San Francisco, 9 Cal. 467; see, also, sec. 17, Political Code of California. No. 4^ iv. Title of Cause. — By an Officer. [Statb and County.] [Couet.] AuDEEW Black, Comptkollek of THE State of Cautoenia, Plaintiff. against Chakles Dean, Defendant. 17. Name of OfBcer. — The action should be brought in the name of the officer, with the title of his office annexed: Paige v. Fazackerly, 36 Barb. 392. 14:8 FOBMAL PAETS OP COMPLAINT. No. 5. Title and Commencemmi. State of California, ) In the District Court of City and County of f the Judicial District. Andeew Black, Plaintiff, against Chaeles Dean, Defendant. The plaintiff complains of the defendant, and alleges : 18. Commencement. — The commencement of pleadinga consists of those formal words of expressions used to introduce the subject-matter. m. 6. Commencement. — By one Suing for himself and others. The plaintiff complains on behalf of himself 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 this action, and alleges : No. 7. Conclusion of Complaint. Wherefore the plaintiff demands judgment, etc. ] E. F., Attorney for Plaintiffs. 19. Conclusion. — The conclusion varies according to the character of the document to -which it is affixed. In a complaint, it consists of the prayer for relief, signature of counsel, and verification; while in an affidavit, the signature and jurat only are required . Where two attorneys, partners, sub- scribe a pleading, they may sign in their firm name : Bank of Geneva v. iJice, 12 "Wend. 424. And the subscription to the verification of a pleading is a sufficient subscription of the pleading: Subbell v. Livingston, 1 Code K. 63. The Practice Act provides that every pleading shall be subscribed by the party or his attorney: Cal. Code, sec. 446; N. Y. Code, sec. 156. But an attorney in fact, who is not an attorney at law, cannot sign his name to the complaint for his principal as " plaintiff's attorney :" Bixey v. Pollock, 8 Cal. 570. No. 8. Form of Complaint, complete. State of California, ) In the District Court, City and County of [ Judicial District. Andeew Black, Plaintifl', ) against v Chaeles Dean, Defendant. | FOEMAL PARTS OF DEFENDANT'S PLEADINGS. 149 The plaintiff complains of the defendant, and alleges: 1. For a first cause of action: I. That, etc. - II. That, etc. III. That, etc. 2. For a second of action : I. That, etc. II. That, etc. III. That, etc. Wherefore the plaintiff demands judgment, etc. B. F., Plaintiff's Attorney. [ Veiijicaiion.2 No. 9. Clerk's Certificate to Copy of Complaint. I hereby certify the foregoing to be a full, true and cor- rect copy of the original complaint on file in my office, 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 187.. A. C, Clerk. By J. S., Deputy Clerk. No. 10. Amended Complaint — Commencement. [Title of Cattsb. ] Plaintiff hj leave of the court [or by stipulation] files this, his amended complaint, and alleges: [State cause of action as before.] FOBMAL PARTS OF DEFENDANT'S PLEADINGS. No. 11. Demurrer — Commencement. [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. II. That, etc. 150 FOBMAIi PARTS OF DEFENDANT'S PLEADINGS. 20. 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, plaintilf may obtain leave of court to file an amended complaint, which will take the place of the orig- inal complaint in the action. No. n. Ansnaer. The defendant, by G. H. his attorney, answers the com- plaint 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 ac- tion, defendant alleges: I. That, etc. 3. For a third defense to said first alleged cause of ac- tion, defendant alleges: [Set forth facts constituting the defense, and if any of them have been alleged above, an express reference to them will suffice.] 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., AUorney for Defendant. [ Verification.'i . 21. By J. M., his Attorney. — This may be omitted where he has served a notice of appearance; and where two attorneys are partners the firm name will suffice: Bank of Geneva v. Rice, 12 Wend. 424. 22. Demand of Relief. — No demand for relief is necessary, unless the de- fendant seeks some affirmative relief against the plaintiff or against a co-de- fendant: Averill v. Taylor, 5 How. Pr. 476. 23. Denials of Several Allegations are but one defense: Oils v. Ross, 8 How. Pr. 193; 11 N.Y. Leg.Obs. 343. So, several demands against the plaint- iff available as a set-off may be pleaded in one defense. Each must, however, be distinctly described: Ramney v. Smith, 6 How. Pr. 420. 24. 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 cau.9e of action, or that part which it professes to answer, either by express allegation or by an express reference to other FORMAL PARTS OP DEFENDANT'S PLEADINGS. 151 parts of the answer: Loosey v. Orser, i Bosw. 391; Ayres v. Covill, 18 Barb. 260. Though a partial defense must be pleaded, and maybe pleaded as a sep- arate defense: Loosey v. Orser, 4 Bosw. 391. 25. First Alleged Cause of Auction. — If the complaint contains more than one cause of action, the answer should indicate to which cause of ac- tion each defense is interposed: Eneedler v. Stemhergh, 10 How. Pr. 67. But if the substance of the defense shows to which cause of action it is addressed it is sufficient on demurrer: Willis v. Taggard, 6 Id. 433. 26. For a First Defense. — Where a number of defenses are pleaded in one answer, they must be separately stated and plainly enumerated, and the denials should be distinctly and specifically stated. 27. For a Second Defense. — There is but one safe rule in stating actions or defenses, and that is to indicate distinctly, 6^ fit and appropriaie words, where it commences and where it concludes: Lippenoott v. Goodwin, 8 How. Pr. 242 ; see Benedict v. Seymour, 6 Id. 298. But no formal commencement or conclusion is prescribed: Bridge t. Payson, 4 Sandf. 210. 28. Subscription. — The signature of counsel must be attached to an an- swer in chancery: Davis y. Davidson, 4 McLean, 136. 29. Verification. — A verified answer is defective if neither the answer nor the verification are subscribed: Laimbeer v. Allen, 2 Sand. 648; 2 CodeK. 15. The subscription of the verification is, however, sufficient: Hubbell v. Livingston, 1 Id. 63. An answer in chancery which does not show the au- thority of the justice of the peace before whom it was sworn, if not within the State, is not sufficiently certified: Addison v. Duckett, 1 Cranch. C. Ct. 349. If the complaint is verified, the answer must be also verified. No. 13. i. Commencement of Answei — Defendant sued by a wrong name. Defendant, C D., in the summons and complaint in this action called L. M., answers the complaint herein, and alleges [or denies] : No. U. ii. By an Infant. Defendant, an infant under the age of years, by N. O., his guardian, answers the complaint herein, and alleges [or denies] : No. 15. iii. By an Insane Person. Defendant, Q. E., an insane person [or a person of un- sound mind, or an idiot], by S. T., his guardian, answers the complaint herein, and alleges [or denies] : 152 PAPERS USED IN COUET PROCEEDINGS. No. 16. iv. By Husband and Wife, [Title.] A. X., one of the above named defendants, and B. X., his wife, for answer to the complaint in this action, allege [or deny] : 30. Construction. — The above must not be understood as an allegation that the parties are husband and wife. No. 17. V. Separate Answer of Defendant. [Title.] The defendant, A. B., answers on his own behalf the complaint herein, and alleges [or denies] : FORMS OP PETITIONS. 31. Petitions to the court or to a judge of any court, and affidavits taken when there is no proceeding pending, should not be entitled: Haiglit v. Turner, 2 Johns. 371; People V. Tioga, 1 Wend. 291; People v. Dikeman, 7 How. Pr. 124; compare Whitney v. Warner, 2 Cow. 499; Nichols V. Cowles, 3 Id. 345; Folger v. Hoogland, 5 Johns. 235; 3Ialier of Bronson, 12 Id. 460. No. 18. Fetiiion to the Court. To the Honorable, the District Court of the Judi- cial District of the State of California [or other court with full designation]. The petition of , of the city of shows : No. 19. Petition to a Judge, To the Honorable , Judge of the District Court of the Judicial District, of the State of California [or other magistrate, giving full official designation]. The petition of, etc. PAPERS USED IN COURT PROCEEDINGS. 32. The caption of certain papers used in a proceeding in the Probate Court may be as follows : PAPEES USED IN COURT PEOCEEDINGS. 153 No. SO. Caption of Papers used in proceedings in Probate Courts. In the Matter of the Estate [ Probate Court, County of of Jolin Doe, deceased. j The petition of, etc. m. n. Of Papers used in other Courts. JOHK Doe, Plaintiff, 1 ^^^^^ ^^^^^ against r n + EiCHABD Bob, Defendant. \ OOUnty. No. SS. Order of a Court in an Action. At a regular term of the District Court of the Judicial District, State of California, held at the City Hall in the city and county of San Francisco, etc. Present, the Honorable Judge. No. 2S. Caption, Commencement, and Conclusion of Affidavits. State of California, ) In the District Court City and County of j Judicial District. Affidavit for John Doe, Plaintiit, against EiCHABD KoE, Defendant. state of California, ) County of j John Doe, of [and if there are two deponents, and James Doe, of , severally], being duly sworn, say [each for himselfj : 1. I am the plaintiff [or other description of the de- ponent]. 2. I have, etc. [State facts sworn to.] [Signature] Subscribed and sworn to ) before me this .... day r of ,187.. 3 E. P., 154 PAPEBS USED IN COURT PROCEEDINGS. 33. Affidavit. — It is entirely useless in the affidavit to a pleading to in- sert the words, "except as to those matters stated on information and be- lief, and as to those matters he believes it to be true," unless the pleading contains some averment on information and belief. But see Truscott -v. Dole, 7 Hovr. Pr. R. 221. 34. Before -whom Taken. — Affidavits to be used before any court, judge, or officer of the State f California), maybe taken before any judge or clerk of any court, justice of the peace or notary public in this State; Gal. Code, sec. 2012 . And an affidavit in which the official character of the justice before whom it is taken does not appear, is good {Ede v. Johnnon, 15 Cal. 53), as courts take judicial notice of the official character of justices of the peace in their om'U 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: Code C. P., sec. 2013. An affidavit taken in a foreign country, to be used in this State, may be taken before an embassador, 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; Id. 2014. When an affidavit is taken before a judge or a court in another State, or in «, foreign country, the genuineness of the signature of the judge, the existence of the court, and the fact that such judge is a mem- ber thereof, must be certified by the clerk of the court, under the seal there- of: Id. 2015. 35. Date. — The jurat should state the day on which it was sworn : Doe, V. Roe, 1 Chitt. E. 228; 18 Eug. Com. L. B. 69. Unless it is shown, when the objection 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: Schoolcraft v. Thompson, 7 How. Pr. 446. 36. Entitling Affidavit. — Of course, when there is no proceeding pend- ing, the affidavit must not be entitled. See Ante, No. 31. Though it has been held that a superfluous title may be disregarded as not affecting the substantial rights of the party: Pindar v. Black, 4 How. Pr. 95. 37. Jurat.— The jurat should be in a special form where deponent is illit- erate: Tidd. Pr. 495; 3 Moult. Ch. Pr. 551. Or blind: Matter of Christie, 5 Paige, 242; see, also. Matter of Cross; 2 Ch. Sent. 3. Otherwise the com- mon form is sufficient: Fryatt v. Lindo, 3 Edw. 239. It, however, seems to be sufficient if a party hears the paper read and swears he knows its con- tents. 38. Names of Deponents.— The names of all the deponents should be mentioned: Anonymous, 2 Chitt. E. 19; 18Eng. Com. Law. E. 235. 39. Place. — The jurat need not specify the place where it was sworn, as the venue sufficiently shows it: 1 Tidd's Pr. 496; Mosherv.Heydrick,i5 Barb. 594; 1 Abb. Pr. N. S. 258; 30 How. Pr. 161; Belden v. Devoe, 12 Wend. 223; Manuf. and Mech. Die. v. Cowden, 3 Hill, 461. 40. Severally Sworn.— The affidavit should show that they were sev- erally sworn: Pardoe v. Terrilt, 5 M. & G. 291; 44 Eng. Com.L. E. 159; Kincald v. Kipp, 1 Duer, 692; 11 N. Y. Leg. Obs. 313. 41. 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, PAPEBS USED IN COUET PEOCEEDINGS. 155 and prima facie evidence of the place where it was taken: Lane v. Morse, 6 How. Pr. 394: Cook v. Staats, 18 Barb. 407; compare Parker \ . JBaker, 8 Paige 428: Barnard v. Darling, 1 Barb. Ch. 218. This certainly cannot be laid down as the rule with all classes of aflSdavits. If by the venue it ap- pears that the affidavit was taken at a place beyond that where the officer was authorized to act, it will not be received by the court : Davis v. Rich, 2 How. Pr. 86; Sandland v. Adams, Id. 127; Snyder v. Omstead, Id. 181. But it is no objection that it does not appear that the affidavit was sworn to with- in the limits of the city for which the commission was appointed. The court will not presume the contrary : Parker v. Baker, 8 Paige, 428. An afSvavit, 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 purpose as if duly entitled, if it intelligibly refer to such action or proceeding :' Cal. Code C. P., sec. 1046. 42. Subscription. — The affidavit should be subscribed by deponent or deponents: 1 Newl. Ch. Pr. 165; Haihway v. Scott, 11 Paige, 173; over- ruling in effect, Ha-ff v. Spicer, 3 Cai. 190; Col. & C. Gas. 495; and Jackson v. Virgil, 3 Johns, 540, which held that if an affidavit begins with the name of the deponent, and appears to have been duly sworn to before a proper magistrate, it is sufficient, without the signature of deponent; see also Ede V. Johnson, 15 Cal. 57. 43. Subscripticn to Jurat. — The jurat must be subscribed by the officer, with his official additioii: Ladow v. Groom, 1 Den. 429; Jackson v. Stiles, 3 Cal. 128. Compare, as to addition. Hunter v. Xe Conte, 6 Cow. 728. An affidavit should show upon its face that it was made before some officer com- petent to take affidavits: Lane v. Morse, 6 How. Pr. 395. 44. That I am, etc. — The description or residence of deponent should be directly alleged, as above: Steinbach v. Leese, 27 Cal. 298: Exp. Bank of Monroe, 7 Hill. 177; Cunningham v. Goelet, 4 Den. 71; Staples y. Fairchild, 3 N. Y. (3 Comst.) 41; Payne v. Young, 8 N. Y. (4 Seld.) 158; compare Peqpie v. Ranson, 2 N. Y. (2 Comst.) 490. iVo. U- Certificate of Clerk to Affidavit. State of ) g County of f I, S. T., clerk of the County Court of said county of , do hereby certify that O. P., before whom the above aflSdavit was taken, 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 for country, district, or 'otherwise], and that he is duly qualified and commissioned as such, and that the subscription to the same is his genuine signature. Witness my hand, and the seal of said court, at , this. . . .day of , 187.. S. T., [sjOAii.] County Clerk. 156 VERIFICATION OF PLEADINGS. No. S5. Jurat, where Deponent is Blind or Illiterate. Sworn before me, this day of , 187. ., 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 understand the same. E. S., JVotor Public. No. S6. Jurat, where Deponent is a Foreigner. Sworn before me, this day of , 187. ., I having first sworn E. M., an interpreter to interpret truly the same to the deponent, who is a foreigner not understanding the language, and he having so interpreted the same to de- ponent. A. C, County Clerk. CHAPTEE III. TEErFICATION OF PLEADINGS. 1. "Every pleading 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 admis- sion of the truth of the complaint might subject the party to a criminal prosecution, or unless an officer of 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 resides, or from some cause un- able 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 reasons why it is not made by one of the parties. When YERIFICATION OF PLEADINGS. 157 a corporation is a party, the verification may be made by any officer thereof:" Gal. Code 0. P., sec. 446. The ob- ject of the verification is to secure good faith in the aver- ments of the party : Palterson v. Ely, 19 Gal. 28. 2. There is nothing in the statute absolutely requiring the complaint to be verified, with the exception of complaints in actions for an injunction: Gal. Gode 0. P., sec. 527. Or in actions brought against steamers, boats and vessels : Gal. Gode G. P., sec. 815. So, also, in proceedings against attorneys, sec. 291, and in applications for the voluntary dis- solution of corporations, sec. 1229, 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 for felony or misdemeanor: Wheeler v. Dixon, 14 N. Y. Gode B. 151; Anable v. Anahle, 24 Id. 92. Unless such prosecution is barred by the statute of limitations: Henry v. Salina Blc, 1 Gomst. 86. 3. And when the court could not see from the pleadings themselves that the admissions of the allegations in the com- plaint would subject the defendant to a criminal prosecution, he might show that fact by affidavit: Scoville v. New, 12 How. Pr. 319; Lynch v. Todd, 13 Id. 547; Wheeler \. Dixon, 14 Id. 151; Anahle v. Anable, 24 Id. 92; Moloney v. Dows, 2 Hilt. 247; Blaisdell v. Raymond, 5 Abbott's Pr. 144. 4. Whenever the defendant would be excused from testify- ing as a witness to the truth of any matter denied by the answer, he need not verify the answer: Drum v. Whiting, 9 Gal 422; Blaisdell v. Raymond, 5 Abb. Pr. 144; Re Tap- pan, 9 How. Pr. 394; Moloney v. Dows, 2 Hilt. 247; People Kelly, 24 How. Pr. 369; Clapper v. FitzpatricJc, 1 Code E. 69. But defendant is not excused from verifying his an- swer when the complaint charges him with fraud in making the assignment: Wolcott v. Winston, 8 Abb. Pr. 425. 5. When the State, or the people of the State, or any State officer is a party, the pleading need not in any case be ver- ified. Nor in actions prosecuted by the Attorney-General on behalf of the State: Gal. Gode G. P., sec. 446. 158 VEBIFICATION OP PLEADINGS. 6. A pleading shall be verified by the affidavit of the party, and if he be absent from the county, then by his at- torney, or other person having a knowledge of the facts : See Cal. Pr. Act, sec. 55; N. Y. Code, sec. 157; Oregon, sec. 79; Nevada, sec. 55; Idaho, Id.; Arizona, Id.; consult also Humphreys v. McCall, 9 Cal. 59; Ely v. Frisbie, 17 Id. 250; Patterson v. Ely, 19 Id. 28. A verification is sufficient if it conform substantially to the statute: 2 Sandf . 647; Ely V. Frisbie, 17 Cal. 250. 7. A defect in verification of a complaint, even when ap- parent upon its face, does not render the complaint irreg- ular, because a verification is no part of a pleading: George y. McAvoy, 6 How. Pr. 200. It only operates to relieve the defendant from the obligation to verify his answer. This, however, cannot be in cases where the complaint is required to be sworn to. If such defect be latent, the rem- edy is by motion : Oilmore v. Hempstead, 4 How. Pr. 153. 8. Before Whom Verified. — The attorney of plaintiff, being a notary public, may take the affidavit verifying the complaint : Kuhland v. Sedgwick, 17 Cal. 123. 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 technical, should be taken in the court below, and cannot be raised for the first time in this (Supreme) court. Id. 9. Effect of Verification. — As to the effect of verification wh«n a written instrumentis embodied in a complaint, consult Cal. Code C. P., sec. 447; Cor- coran V. Boll, 32 Cal. 83; see, also, Seath v. Lent, 1 Id. 411. When embodied in an answer, see Cal. Code C. P., sees. 448-9. 10. Subscription. — The verification must be subscribed by the party making it: Laimbeer v. Allen, 2 Sandf. 648. And such subscription, it hasbeen held, was a sufficient subscription of a pleading : HiMiell v . Livingston, 1 Code K. 63. A verified answer is defective if neither the answer nor the verification are subscribed; Laimbeer v. Allen, 2 Sandf. 648; S. C, 2 Code R. 15. 11. Want of Verification. The objection to the want of verification of a complaint, where verification is required by statute, must be taken either be- fore answer or with the answer. The filing of the answer waives the defect; Greenfield v. Steamer "Ounnell," 6 Cal. 69; Laimbeer \. Allen, 2 Code K. 15; see Cal. Code C. P., see. 434. 12. When Defendant may Verify Answer. — Defendant may be al- lowed to verify his answer before or at the trial : Angier v. Maslerson, 6 Cal. 61; Arrington v. Tupper, 10 Id. 464; Lattimer v. Eyan, 20 Id. 628. If defend- ant omit to verify the answer to a verified complaint, the plaintiff may pro- ceed as if no answer was filed: Stout v. Gurran, 7 How. Pr. 36; Moloney v. Dows, 2 Hilt. 247; Sull v. Ball, 14 How. Pr. 305; MoCullough v. Clark, 41 Cal. TEErFICATION OF PLEADINGS. 159 298; Zittlejolm v. Munn, 3 Paige, 280. Inability of counsel to obtain defend- ant's verification in time cannot avail in resisting a motion to strike out : Drum V. Wliiting, 9 Cal. 422. No. 27. Verification by Sole Plaintiff, or Sole Defendant. State of California, | City and County of [ ®®- 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 of my own knowledge. [SlGNATTJliE.] Subscribed and sworn to j before me, this day >- of , 187.. 3 J. K., County Clerk. 13. Information and Belief. — Where the pleading states nothing on in- formation and belief, the above form is sufficient: Patterson v. Ely, 19 Cal. 28; Kinkaid v. EXpp, 1 Duer, 692; Ross v. Longmuir, 5 Abb. Pr. 326. 14. Of his ow^n Knowledge. — A verification omitting these words was held sufficient in Southworth v. Curtis, 6 How. Pr. 271; but adjudged fatal in WiUiams v. Eiel, 11 How. Pr. 375; Tibballs v. Selfridge, 12 Id. 64. That " the same is true according to the best of his knowledge and belief" is insuf- ficient : Van Rome v. Montgomery, 5 How. Pr. 238. 15. That the same is True. — A verification alleging that "the same is substantially true, " etc., was held insufficient, as containing a qualification that was a material departure from the requirements of the Code : Waggoner V. Brown, 8 How. Pr. 212. No. S8. On Information or [and] Belief. [Ventjb.] A. B., the plaintiff above-named, being duly sworn, says as follows : I have read the foregoing complaint and know the con- tents thereof, and that the same is true of my own knowl- edge, except as to those matters therein stated on infor- mation or [and] belief, and as to those matters I believe it to be true. [SiGKATUEE.] Subscribed and sworn to \ before me, this .... day v of ,187.. j J. K., Notary Public. 160 VERIFICATION OF PLEADINGS. 17. Allegation, Form of. —If the pleader avers matters "upon infor- mation and belief," or " upon information or belief," the verification will be sufficient if his affidavit states that as to the matters thus alleged he believes the pleading to be true: Patterson v. My, 19 Cal. 28; Kirk v. Ehoades, 46 Id. 403. 18. Belief, Meaning of.— The word " belief " is to be taken in its ordi- nary sense, and means the actual conclusion of the party drawn from infor- mation. Positive knowledge and mere belief cannot exist together: Humph- reys V. McCall, 9 Cal. 59. 19. On Information or Belief. — There seems to be no reason why our statute prescribes that the verification shall be " upon inf ormatian or belief," instead of "upon information and belief," yet the former is the statute of this State; in New York, 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 pleading verified. In such case the verification should use the word " or " or " and " to correspond with the pleading. N'o. B9. By one of several Plaintvffs or Defendants. [Venue.] A. B., being duly sworn on liis own behalf, and on be- half of E. 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 con- tents thereof, and that the same is true of my own know- ledge, except as to the matters which are therein stated on information or [and] belief, and as to those matters, I be- lieve it to be true. [Juroi.] [SlGNATUKE.] 20. Husband and Wife, — 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: Toungsy. Seeley, 12 How. Pr. 395; Seed v. Butler, 2 Hilt. 589. 21. When one may Verify. — One of several plaintiffs may verify: Patterson V. ^Zy, 19 Cal. 28; Kelly v. Bowman, Transcript, 18 July, 1861. And in certain cases it has been held that where the action is joint, the parties should unite in the verification: Andrews v. Storms, 5 Sandf. 609; Alfred v. Watkins, 1 Code, E. N. S. 343; Sull v. Ball, 14 How. Pr. 305. m. 30. By two Parties, severally. [Venue.] A. B. and 0. D., the plaintiffs [or defendants] above named, being severally duly sworn, say, each for himself, as follows : BY ATTOENEY OB AGENT. 161 I have read the foregoing complaint [^or answer], and know the contents thereof, and the same is true of my own knowledge [except as to those matters stated therein on in- formation and belief, and as to those matters I believe it to be true] . \_Jurat.] [SiGNAIUBES.] No. 31. By Officer of Corporation. [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 knowledge [except as to those matters which are therein stated on information or [and] belief, and as to those mat- ters I believe it to be true]. [ Jurat. ] [ SiGNATUKE . ] 22. Grounds of Belief— Sources of Knowledge.— It has been held that a yerification made by an officer of a corporation need not state the grounds of belief or sources of knowledge. It is a verification of the cor- poration: GlaubensMee y. Hamburg and American Packet Co., 9 Abb. Pr. 104; compare Van Home y. Montgomery, 5 How. Pr. 238; Anable v. Anable, 24 Id. 92. 23. Managing Agent. — A managing agent of a corporation is an officer of the corporation within the provisions of the Act : &laubensklee y. Hamburg and American Packet Co., 9 Abb. Pr. 104. BY ATTORNEY OB AGENT. 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 : 31ason v. Brown, 6 How. Pr. 484; Treadwell\. Fassett, 10 Id. 184; Wheeler v. Chesley, 14 Abb. Pr. 441 . But in all cases of verification by attor- ney or agent, the reason why the verification is not made by the party must be set forth in the affidavit: Cal. Code 0. P., sec. 446. 11 162 BY ATTOBNEY OB AGENT. No. 3^. By attorney or agent, where the facts are -withiu the per- sonal knowledge of such attorney or agent. [Venue.] A. B., being 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 those matters I believe it to be true. 3. The reason why the verification is not made by the plaintiff [or defisndant], is that the facts stated in said complaint [or answer] are not within his personal knowledge. I Jurat.] [SiGNATUBE.] 24. Forma of Verification. — For examples of sufficient verifications by attorneys, see Wheeler v. Ghelsey, 14 Abb. Pr. 441; Siannard v. Maiiwe, 7 How. Pr. 4; Myers v. Oerritts, 13 Abb. Pr. 106; Oourney y. Wersoland, 3 Duer, 613; Rossy. Longmuir, 24 How. Pr. 49. For examples of insufficient yerifleations by attorneys or agents, see Fitch v. Bigelow, 5 How. Pr. 237; Meads y. Gleason, 13 How. Pr. 313; Tibballs v. Self ridge, 12 How. Pr. 64; Soulier V. Mather, 14 Abb. Pr. 440; Sank of Maine y. Bull, 14 How. Pr. 311. 25. Nature of Agency. — A yerifioation by an agent must disclose the nature of the agency: Boston Locomotive Works v. Wright, 15 How. Pr. 253. But it is not necessary to verify by the agent who knows most about the mat- ter: Drevert y. Apsert, 2 Abb. Pr. 165. 26. Notes in Posseasion. — Stating that the notes were in possession of deponent sufficiently avers that deponent was agent of the plaintiff: Myers V. Gerrilts, 13 How. Pr. 106. And authorized to verify the complaint: Myers y. Gerrilts. Whether plaintiff was within the county or not: Wlieeler v. Chelsey, 14 Abb. Pr. 4il. But in California, possession of the written in- strument or obligation upon which the suit is based does not authorize the attorney or agent to verify the complaint . No. 33. The same, when the Party is absent from the County. [Venue.] A. B., being duly sworn, says as follows: 1. I am the attorney [or one of the attorneys] of the plaintiff [or 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 in- BY ATTOENEY OE AGENT. 163 formation or (and) belief, and as to tliose 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. I Jurat. J [SIQNAT0EB.] 27. Absence from County. — When the party is not \pithin 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: Sumphreys v. McCatt, 9 Cal. 59; Ely v. Frishie, 17 Id. 250; Patterson v. My, 19 Id. 28; Lefever v. Latson, 5 Sandf. 650; Eoscoe v. Maison, 7 How. Pr. 121; Stannard v. Mattice, Id. 4; Smith v. Bosenthall, 11 Id. 442; Wilkin v. Gilman, 13 Id. 225; People v. Atten.U Id. 334; Drevert v. Apsert, 2 Abb. Pr. 165; Myers Gerritts, 13 Id. 106; Goumey v. Wersoland, 3 Duer, 613; Dixwell v. Words- worth, 2 Code K. 1. Although it appears that the client has a resident agent through whom the attorney has obtained his information: Drevert v. Apsert, 2 Abb. Pr. 165. 28. Grounds of Belief. — Where an attorney or agent verifies a complaint the verification should state the grounds of belief, and the reasons why it was not made by the party: Oregon Code, sec. 79; Boston Locom. Works v. Wright, 15 How. Pr. 253; Meads v. Gleason, 13 Id. 309; People v. Alkn, 14 Id. 334. The grounds of knowledge or belief need not be set forth if all the allegations in the pleading are made in the positive form: Ross y . Longmuir, 15 Abb . Pr . 326. Under the Cal. Code it is not necessary that the attorney or agent should state his grounds of belief. 29. Guardian. — The guardian, or attorney for the guardian, of an infant plaintiff may verify: Sill v. Tkacter, 2 Code B. 3; Anable v. Anable, 24 How. Pr. 92 ; Bogers v. Cruger, 8 Johns. 581 . In an action by an infant appearing by a guardian ad litem, the complaint may properly be verified by the guar- dian, and he need not do so as the agent or attorney for the infant, but may as the plaintiff: Anable v. Anable, 24 How. Pr. 92. JVb. 34. Where the absent Plaintiff is a Corporation. [Venue-] A. B. , being first duly sworn, says: I am the attorney of the plaintiff in this action; I have read the foregoing com- plaint, and know the contents thereof, and the same is true of my own knowledge [except, etc.] The reason why the complaint in this cause is not veri- fied 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. \_Jurat.ll [SiGNATtlKE.] 164 BY ATTOBNET OK AGENT. 2^0. 35. Verification of Petition. [ Venue and introduction as in Form No. 23, omitting title preceding the venue> and after description of deponent, 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 infor- mation or (and) belief and as to those matters I believe it to be true]. [iTwraJ.] [SiGNATnEE.] 30. Veiified Petition.— The petition for the perpetuation of testimony must be verified by the applicant therefor: Code 0. P., sec. 2084. PART THIRD. PLEADINGS OF PLAINTIFF. CHAPTBE I. COMPLAINTS IN GENEEAX. 1. The complaint under the California Code is the first pleading in the action, and the foundation for all future proceedings. In modern practice, it is a substitute for the declaration 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 consti- tuting the cause of action, in ordinary and concise language; and, 3. A demand for the relief which the plaintiff claims. FIKST SUBDIVISION OP COMPLAINT. 2. The first subdivision of complaints under the Code, which provides what the complaint shall contain, will be found under the title. Formal Paets op Pleadings, Chapter vii., where the entitling of a cause may be found, with forms and authorities in support thereof. CHAKACTER AND CAPACITY AVERRED. 3. If the plaintiff sue in a representative or official char- acter or capacity, the character must be alleged, as well as stated in the title: Gould v. Glass, 19 Barb. 185; Smith v. 166 CHAEACTEE AND CAPACITY AYEEEED. Levinus, 8 N. T. 447; and other authorities there cited. 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," "0. D., Sheriff." This, however, will not dis- pense with the necessity of the averment of the character in which he sues. Standing alone in the title would be but a mere descriptio personce: Merritt v. Seaman, 6 N. T. 168; Hallett v. narrower, 33 Barb. 537; Barfteldy. Price, 40 Cal. 535; Freeman v. iulton Fire Ins. Co., 14 Abb. Pr. 407; Murray v. Church, 58 N. T. 621; JBonesteel v. Garlinghouse, 60 Barb. 338. 4. Such an averment, and also an averment that the action is brought by him in such capacity, is sufficient to sustain a recovery in that capacity: Foioler v. Westervelt, 40 Barb. 374; 17 Abb. Pr. 59; distinguishing upon this point the decision in Gould v. Glass, 19 Barb. 179. In general a plaintiff cannot sue in two capacities, private and represent- ative in the same action : Yates v. Kimmel, 5 Mo. 87. 5. Agent, — The character of agent of a company must be averred: Tolmie T. Dean, Wash. Terr. 60. But nn agent cannot sue as such, unless specially- authorized by statute. 6. Assignee. — So the character of assignee must be averred vphen plaint- iff sues in that capacity: BuUerjield y . Macomber, 22 How. 150; WheelockY. Lee, 15 Abb. N. S. 24. But the form of the assignment, or the consideration thereof, need not be stated: Fowler v. N. Y. Indem. Ins. Co., 23 Barb. 151; Morange v. Mudge, 6 Abb. Pr. 243. And on an assignment by a corporation, the plaintiff need not aver that the directors were authorized to make it ■' Nelson v. Saion, 16 Abb. Pr. 113. 7. Company.— In an action where a member of a company is plaintiff or defendant, membership must be averred: Tolmie v. Dean, Wash. Terr. 60. And the jurisdiction and a cause of action must be shown : Id. 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 company is a joint stock company or association, consisting of more than seven shareholders or associates : Tiffany v. WiUia7ns, 10 Abb. Pr. 204. But in an action in which the defendants were named Hull & Co., the "& Co." were considered sur- plusage : Mulliken v. Bull, 5 Cal. 245. 8. Copartnership. — A complaint which contains no other designation of the party plaintiff than the name of a copartnership firm, is deemed de- fective: Oilman v. Cosgrove, 22 Cal. 356; Walker v. Farldns, 9 Jur. 665; 14 Law Jour. K. 214, Q. B.; 1 New Pr. Cas. 199; 2 D. & L. 982. 9. Corporations. — In New York, where the plaintiff sues by an appro- priate corporate name, it is not necessary to aver expressly that the plaintiff is a corporation; in such a case there is an implied averment to that effect: 1 SECOND SUBDIVISION OF COMPLAINT. 167 Duer, 707; 13 N. Y. (3 Kern.) 313; PhcBnix Bank of N. T. v. Donnell, 41 Barb. 571. 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 corporation plaint- iff must aver that it is a corporation, the exception being where the defend- ant is estopped from denj'ing the incorporation, as by having contracted with it by its corporate name: Conn. Bank v. Smith, 17 How. Pr. E. 487. Plaint- iff 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 aforesaid, shows,'" etc.: Held, on de- murrer, a suflScient statement of the capacity in which he sued: Smith v. I^evinus, 4 Seld. 472. 10. Incorporation Act. — The Act of Incorporation may be pleaded by reciting the title of the act and the date of its passage: Cal. Code C. P., sec. 459; U. S. Bankv. Saskins, 1 Johns. Cas. 132. But it must be set forth with accuracy: Union Bank v. Dewey, 1 Sandf. 509. But the short mode of pleading permitted by this statute is not intended to relieve corporations from proving their existence: Onondaga Com>ty Bank v. CaiT, 17 Wend. 443; compare Bank of Waterville v. Beltser, 13 How. Pr. 270; Bank of Genesee v, Fatchin Bank, 13 N. ¥. (3 Kern.) 309. Where the original act of plaintiff's incorporation is referred to in the complaint, a vague reference to other gen- eral statutes affecting it does not render the complaint demurrable: Sun Mutual Ins. Co. v. Bwight, 1 Hilt. 50. 11. Fermiasioa to Sue. — There are cases in which by reason of some special character, a party cannot sue or be sued except by permission of the court. In such cases, the obtaining permission to sue should be alleged, stating how, when, and from whom obtained, as in case of a receiver: Angell V. Smith, 9 Ves. 335; 3 Bro. C. Ct. 88; 16 Wend. 410; 19 N. T. 376. A guardian of a habitual drunkard: Hall v. Taylor, 8 How. Pr. 428. Or of a lunatic: Williams v. Cameron, 26 Barb. 172; Graham v. Scripture, 17 How. Pr. 501. SECOND SUBDIVISION OE COMPLAINT — STATEMENT OF CAUSE OP ACTION. 12. 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, argu- ment, or hypothesis cannot be tolerated in a pleading: Joseph V. Holt, 37 Cal. 250, citing Green v. Palmer, 15 Cal. 411. A cause of action being the right a person has to institute and carry through a proceeding : Meyer v. Van Col- lem, 28 Barb. 231. 13. In order to ascertain what is a sufficient statement of a cause of action, it will be necessary to review here a por- tion of the matter contained in "Pleadings in General." 168 WHAT FACTS AEE'TO BE STATED. And as the object of the complaint is to present the facts upon which the action is founded in ordinary and concise language (Cal. Code, C. P., sec. 426), 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. 14. 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: Koenigy. Moit, 8 Abb. Pr. 304; Spencer \. Sogers' Loco. Works, 17 Abb. Pr. 110. It is, however, held that in an action against a foreign corporation, the complaint must allege that the plaintiff is a resident, or that the cause of action was, or the subject of it is situated in this State: House v. Cooper, 16 How. (N. T.) 292. 15. 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 impos- sible, may be regarded as surplusage: Sacramento Co. v. Bird, 31 Cal. 66. 16. An averment at the end of a complaint that the de- fendant owes the plaintiff, is a mere conclusion of law and is not admitted by demurrer: Millard v. Baldiuin, 8 Gray, 484; Codding v. Mansfield, 7 Gray, 272; 13 Gray, 392. 17. The complaint need not be dated, nor need it state the time when the action was commenced : Maynard v. Tal- cott, 11 Barb. 569. But the clerk shall indorse on the com- plaint the day, month, and year the same is filed : Cal. Code, sec. 406; and Codes of Nevada, Idaho, Arizona, etc. WHAT FACTS AEE TO BE STATED. 18. Those facts, and those only, should be stated, which constitute the cause of action: Green v. Palmer, 15 Cal. 413; Wilson v. Cleaveland, 30 Id. 192; JRacouillat v. Bene, 32 Id. 455; Buddington v. Davis, 6 How. Pr. 402. And the kind of relief sought should be explicitly demanded: BanJcstony. Farris, 26 Mo. 175; Biddle v. Boyce, 13 Mo. 532. 19. All the material facts out of which the cause of action arose ought to be stated, and none others : lienlsh v. Porter, WHAT PACTS AEE TO BE STATED. 169 10 Cal. 555; Eiclcs \. Murray-, 43 Cal. 522; Bracleeity. Wil- kinson, 13 How. Pr. 102; Miuoody. Gardner, 45 N. T. 349; Van Nest v. Talmage, 17 Abb. Pr. 99; Wade -v. Rusher, 4, Bosw. 537. And tbey should be stated in an intelligible and issuable form, capable of trial: Boyce t. Broiun, 7 Barb. 81; Los Angeles v. Signoret, 50 Cal. 298; but a de- fective allegation of a fact may be cured by default or ver- dict: Eussell V. Mixer, 4Si Cal. 475; see also il/emer v. Lewis, 39 Cal. 535; and Reynolds v. Hosmer, 45 Cal. 616. Thus, a statement in a complaint that the contract sued on was made payable in a specific kind of money, is an allegation of a material fact: Wallace v. Eldridge, 27 Cal. 498. 20. 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 pro- tect himself from a nonsuit, and show himself entitled to a judgment: 1 Van Santv. 215; 9 Barb. S. C. E. 158; 3 Sandf.437; 4 Id. 665; 4 How. Pr. 98; 5 Id. 390; 1 Code E. 102; 2 Id. 59; 3 Id. 64; 5 Sand. 564; 2 Duer, 670; Green v. Palmer, 15 Cal. 414. And this statement must be made without unnecessary repetition. 2Comst. 253; N. T. Code, 142; Laws of Oregon, sec. 65; Wash. Terr., sec. 53. 21. The statute in this respect is only declaratory of the common law: Goodwin v. Stebhins, 2 Cal. 103. And is ap- plicable as well to every description of pleading under the Code, whether in law or equity; all distinctions in the form of actions having been abolished: Piercy \. Sabin, 10 Cal. 27; Cordier v. Schloss, 12 Id. 147. This rule governs all cases of pleading, legal and equitable: Goodwin v. Ham- mond, 13 Cal. 169; Riddle v. Baker, Id. 302; Payne v. T)-ead- well, 16 Id. 243. 22. A complaint is materially defective, if, to lay the foundation of a recovery, the proof must go further than the allegations it contains: Stanley v. Whipple, 2 McLean, 35. 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 question to be raised or determined upon the trial:" 1 Van Santv. 216. For where a complaint shows no legal cause of action on its face, a judgment by default can no more be 170 WHAT PACTS ABE TO BE STATED. taken than it can be oyer a general demurrer : Abbe v. 31arr, U Cal. 211. 23. If the complaint contains one good count, though the findings of fact are defective, it will be sufficient: Lucas v. Sail Irancisco, 28 Cal. 591; Hayden v. Sample, 10 Mo. 215; State V. Campbell, Id. 724; Marshall v. Bouldin, 8 Id. 244. Since a plaintiff can only recover for such causes of action as are stated in his complaint (Benedict v. Bray, 2 Cal. 256), he must show a good cause of action (Russel v. Ford, 2 Cal. 86; Liiile v. Mercer, 9 Mo. 216), and facts sufficient to con- stitute it : Summers v. Farrish, 10 Cal. 347 ; Maguire v. Vice, 20 Mo. 429. 24. Allegations made upon information and belief should be distinguished by the phrase, "alleges upon information and belief." The decisions on this point have been numer- ous and irreconcilable: See, Truscott v. Dole, 7 How. Pr. 221; and St. John v. Beers, 24 Id. 377. 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 prosecution, 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 respect to a matter, must, for the same purposes, be regarded as an allegation that the person verifying the plead- ing has not such knowledge or information." The differ- ence in the authorities upon this question have 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 etident that a fact may be averred positively, so far as the form of the allegation is concerned, and yet the truth of the allegation rest 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 CAUSES OP ACTION UNITED. 171 defeat, to a great extent, the object to be attained by ver- ification, unless the person verifying shall be held to have made every allegation upon personal knowledge. The propriety and sufficiency of allegations upon informa- tion and belief, otherwise unobjectionable, have not been questioned in this State, unless in injunction cases. See Patterson v. Ely, 19 Cal. 30, 35, 40; Kirh v. Rhodes, 46 Id. 403; N. Y. Marbled Iron Worlcs v. Smith, 4Duer, 362. CAUSES OP ACTION UNITED. 25. Causes of action arising out of the same transaction, 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 character, may in general be united : Varick v. Smith, 5 Paige, 137 ; Joiies V. Steamship "Cortes," 17 Cal. 487. 26. That the plaintiff may by statute unite several causes of action in one complaint, see Cal. Code C. P., sec. 427; and the Codes of Oregon, Nevada, Arizona, Idaho, etc. ; but the practice of setting forth a single cause of action in dif- ferent counts is abolished: Fern v. Vanderbilt, 13 Abb. Pr. E. 72; but compare Mead v. Mali, 15 How. Pr. 347. 27. Thus, an action for damages and also for a penalty, in a suit against a sheriff for a failure to execute process, may be united: Fearkes v. Freer, 9 Cal. G42. So a com- plaint in ejectment may be for two separate and distinct pieces of land, but the two causes of action must be sepa- rately stated, and affect all the parties to the action, and not require different places of trial : JBoles v. Cohen, 15 Cal. 150. 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 : Jones v. Steamship "Cortes," 17 Cal. 487. 28. Each cause of action should be separately and dis- tinctly stated: Boles v. Cohen, 15 Id. 150; Sturges v. Burton, 8 Ohio St. E. 215. And each separate and distinct propo- sition of each cause of action should be separately set forth, and logical order should be observed in the statement of the premises, leaving the conclusions of law deduced there- from to be drawn by the court: See Post. The better 172 CAUSES OP ACTION WHICH CANNOT BE UNITED. practice is to number each cause of action and each propo- sition of each cause of action : Benedict v. Seymour, 6 How. Pr. 298; Blanchard v. Strait, 8 Id. 83. 29. The causes of action required to be separately stated are such as by law entitle the plaintiff to separate actions, or which would be a perfect cause of action in itself: Sturges y. Burton, 8 Ohio St. E. 215. And such statement should begin with appropriate words to designate it as such : Benedict v. Seymour, 8 How. Pr. 298; Lippencott v. Goodwin, Id. 242. 30. Each statement must be complete in itself, or must be made so by express reference to other parts of the plead- ing: Watson V. S. F. dt H. B. B. Co., 41 Gal. 17; Bitchie v. Garrison, 10 Abb. Pr. 246. That reference maybe made to other allegations was the rule at common law : Freeland v. McGuUough, 1 Den. 414; Croolesliank v. Gray, 20 Johns. 344; Gristvoldy. Nat. Bis. Co., 3 Cow, 96; LoomisY. Levich, 3 Wend. 205; Porters. Cummings, 7 Id. 172. 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: Buckingham v. Waters, 14 Cal. 146; Clark v. larly, 3 Duer, 645; and 41 Cal. 17, supra. CAUSES OE ACTION WHICH CANNOT BE UNITED. 31. Causes of action arising under differoit classes, as specified in sec. 427 Cal. Code C. P., cannot be united in one action. So, inconsistent causes of action cannot be united in the same complaint : 1 Van Santv. 54-5 ; Linden V. Hepbui'n, 3 Sandf. 668. 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 repugnant to each other : 1 Van Santv. 55. 32. Thus, an action in ejectment for breach of condition, with damages for breach of covenant, is deemed incom- patible : Underhill v. Saratoga and Washington B. B. Co., 20 Barb. 455. So, an action in ejectment against vendor, and an equitable claim that vendor execute a conveyance, cannot in general be united : Lattin v. 31cCarty, 17 How. Pr. 239 ; 8 Abb. Pr. 225. As to ejectment and equitable relief gen- erally, see Onderdonk v. Mott, 34 Barb. 106. CAUSES OF ACTION WHICH CANNOT BE UNITED. 173 33. A claim for tlie possession of real property, with damages for its detention, cannot be joined in the same complaint, under any system of pleading, with a claim for consequential damages arising from a change of a road, by which a tavern-keeper may have been injured in his busi- ness : Bowles v. Sacramento Turnpike Co., 5 Oal. 224. A complaint which joins an action of "trespass quare clausum /regit," ejectment, and prayer for relief in chancery, will be held bad on demurrer : Bigelow v. Cove, 7 Cal. 133 ; Nevada and Sacramento Canal Co. v. Kidd, 43 Oal. 184 ; Budd v. Bingham, 18 How. Pr. 494 ; Coivenhcfuen v. City of Brook- lyn, 38 Barb. 9; HofchJciss v. Auburn and Rochester B. B. Co., 36 Id. 600. So, claims for injury to personal property, and for its possession, cannot be united : Spalding v. Spal- ding, 1 Code E. 64 ; Smith v. Eallock, 8 How. Pr. 73 . Enforcement of equitable lien, with demand for possession in replevin cannot be united: Otis v. Sill, 8 Barb. 102. 34. A count in assumpsit cannot be joined with a count in tort; and upon trial the plaintiff may be compelled to elect upon which he will proceed : Woble v. Laley, 60 Penn. 281 ; Childs V. Bank of Missouri, 17 Mo. 213; Lackey v. Vanderhilt, 10 How. Pr. 155; see FordY. Mattice, 14 How. Pr. 91; Dun- ning V. TJiomas, 11 How. Pr. 281. 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 cannot be joined with a count for a deceit; and where added after an award of arbitrators, and an appeal therefrom by the defendant, under a declaration containing a count for de- ceit only, it was properly stricken off by the court on the trial : Pennsylvania B. B. Co. v. Zug, 47 Penn. 480. 35. Counts in debt and covenant cannot be joined. Such a declaration is bad on general demurrer : Brumbaugh v. Keith, 31 Penn. 327. A claim on a demand for money had and received cannot be joined with a claim to compel the delivery up of notes : Cahoon v. Banh of Utica, 3 Code E. 110 ; Aleger v. Scoville, 6 How Pr. 131. It seems that the vendor cannot unite in the same action a claim against a broker for damages for fraudulent sale of land with a claim against a purchaser for reconveyance or accounting : Gard- ner V. Ogden, 22 N. Y. 327. So, a landlord cannot demand an injunction against a breach of covenant in the same 174 CAUSES OF ACTION WHICH CANNOT BE UNITED. action in which he demands a forfeiture of the lease. Such reliefs are inconsistent : Linden x. Hepburn, 3 Sandf. 668 ; S. 0., 6 How. Pr. 188 ; 9 N. Y. Leg. Obs. 80. 36. Claim for equitable relief against a corporation and one for damages against individual directors are incapable of joinder: House v. Cooper, 30 Barb. 157; 16 How. Pr. 292. So, where the interests of the defendants are several, as in case of the several purchasers of securities, in an equitable suit to compel their surrender, the causes of action against the several purchasers cannot be united : Lexington and Big Sandy B. B. Co. v. Gbodman, 25 Barb. 469 ; 15 How. Pr. 85; Hess V. TJie Buffalo and Niagara Falls B. B. Co., 29 Barb. 391 ; ClarJe v. Coles, 50 How. Pr. 178 ; Austin v. Monroe, 47 N. Y. 360. 37. An individual and representative claim cannot prop- erly be joined in the same action : Lucas v. N. Y. Cent. B. B. Co., 21 Barb. 245 ; Hall v. Fisher, 20 Barb. 441 ; Voorhis v. Child's Ex\; 17 N. Y. 354 ; Higgins v. Boclcwell, 2 Duer, 650; Tracy v. Suydam, 30 Barb. 110 ; BucknamY. Brett, 22 How. Pr. 233 ; Gridley v. Gridley, 33 Barb. 250. 38. Complainant cannot unite in one bill a demand that defendant account individually for moneys received by him with a demand that he account as administrator or trustee: Warth V. Badde, 28 How. Pr. 230; 18 Abb. Pr. 396; Latling V. Latting, 4 Sandf. Ch. 31; BartlettY. Hatch, 17 Abb. Pr. 461; see, Burt v. Wilson, 28 Cal. 632, 639. So, a claim against surviving partners and executors of deceased part- ners, cannot be united unless the survivor is insolvent : Mc- Vean v. Scott, 46 Barb. 379. 39. Actions on contracts, injury to person, or injury to property, are incompatible and cannot be united, as it is essential that they should all belong to the same class : Hulce v. Thompson, 9 How. Pr. 113; Mayo v. Maden, 4 Cal. 27. Action to recover damages for alleged injuries to the per- son and property of the plaintiff, and for false imprison- ment of the plaintiff's person, for forcibly ejecting him from a house and premises alleged to have been in plaintiff's pos- session, and keeping him out of the possession thereof: Held, improper joinder of causes of action: McCarty v. Fremont, 23 Cal. 197. So, the tort of a husband and sep- CAUSES 01" ACTION WHICH CANNOT BE UNITED. 175 arate tort of wife cannot be united: Malone t. Siilwell, 15 Abb. Pr. 421. A claim for damages for a personal tort cannot be united with a demand properly cognizable in a court of equity in the same action : Mayo v. Madden, 4 Oal. 27. 40. As a rule, personal actions ex contractu and ex delicto cannot be united ( White v. Snell, 5 Pick. 425 ; Boston v. Otis, 20 Id. 41), as the distinction between actions growing out of torts and those growing out of contracts must still be preserved: Knickerhocher v. Hall, 3 Nev. 194; Carson Biver Lumbering Co. v. Basseti, 2 Id. 249. 41. It has been held, however, that a party whose prop- erty has been wrongfully taken, may waive the tort and sue in assumpsit: Eversole v. Moore, 3 Bush, 49; contra, Ladd v. Bogers, 11 Allen, 209. But, whichever ground of recovery the pleader adopts, the substantial allegations of the com- plaint in a given case must be the same under our practice as were required at the common law : Miller v. Van Tassel, 24 Gal. 463. 42. A bill in equity is multifarious when several matters are united against one defendant, which are perfectly dis- tinct and unconnected, or when relief is demanded against several defendants of several matters of a distinct and in- dependent nature: Wilson v. Castro, 31 Cal. 420. So, in an action against trustees of two separate estates : Vial v. Mott, 37 Barb. 208. 43. 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 misjoinder of causes of action: Ghirardelli V. Bourland, 32 Cal. 585. Bo, a lessee and his surety can- not be united in the same suit: Phalen v. Dingee, 4 E. D. Smith, 379; Tibhetts v. Percy, 24 Barb. 39. 44. A husband and wife may join in suit for her services, but when they sue together he cannot join a claim of his own: Avogadro v. Bull, 4 E. D. Smith, 384. A suit by an infant coming of age, seeking to avoid two separate grants to different persons, and to recover possession, cannot be brought in one action: Voorhies v. Voorhies, 24 Barb. 150. 45. Count on contract made by one defendant cannot be 176 CAUSES OF ACTION WHICH CANNOT BE UNITED. joined with one made by all defendants: Moore y. Platte Go., 8 Mo. 467; Doane v. Holly, 25 Mo. 357; Doane v. Holly, 26 Id. 186. Two claims, tlie one against both defendants for recovery of possession of real estate and damages, the other against one only for rents received, no connection existing between the same, cannot be joined: Tompkins y. White, 8 How. Pr. 520. 46. A complaint setting forth a liability on the part of the defendant, partly joint and partly several, is fatally de- fective: Lewis V. Aclcer, 11 How. Pr. 163. Or a claim arising out of joint liability on contract, with claim for joint and several liability sounding in tort: Harris v. ScJiuUz, 40 Barb. 315. Nor can an action be maintained against a de- fendant as sole debtor on one contract and joint debtor on another: Barnes v. Smith, 16 Abb. Pr. 420; Warthx. Radde, 28 How. Pr. 230. 47. A suit on a recognizance given before a justice, for the appearance of the defendant to answer a criminal charge. The complaint, after setting out the cause of action on the recognizance 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 recog- nizance be forfeited, and the sureties 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 prop- erty so applied. It is a misjoinder of causes of action, the trust deed having nothing to do with liability of the sure- ties : The People v. SJddmore, 17 Gal. 260. SPLITTING DEMANDS. 48. 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 several suits: ilarziou V. Pioche, 8 Cal. 536; but see McEwen y. Johnson, 7 Cal. 260 ; and Grain v . Aldrich, 38 Cal . 514, where it is held that such assignment is not good at law without consent of the debtor, but is valid in equity, and that it is not neces- sary to aver consent. So, a promissory note cannot be the foundation of two suits, each for a part of the note : Miller V. Govert, 1 "Wend. 487. ACTIONS FOE DEBT. 177 49. There is no case or dictum requiring a party to join in one action several distinct causes of action. The plaintiii" may elect to sue upon them separately : Phillips v . BeruJc, 16 Johns. 140; Secor v. Sturgis, 16 N. Y. 554; even when they belong to the same family of causes, provided their identity is not the same: Staples v. Goodrich, 21 Barb. 317. 50. An attorney suing for services must include his entire demand in one action: Beekman v. Plainer, 15 Barb. 550. So, a joint cause of action vested in two or more, cannot be split: Coster v. N. Y. & E. B. B. Co., 6 Duer, 46. But any demand may be split with the consent or assent of the defendant: Cornell v. Cooh, 7 Cow. 310; Secor v. Sturgis, 16 N. Y. 559. 51. As to bringing action for one of several demands arising out of the same transaction being a bar to the sub- sequent assertion of others: 16 Johns. 136; 19 Wend. 207; see Hopfv. Meyers, 42 Barb. 270. 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 : Farrington v. Payne, 15 Johns. 432. So, an action for the recovery of one barrel of potatoes was a bar to a suit for the recovery of two bar- rels, all sold at the same time: Smith v. Jones, 15 Johns. 229. So, in case of- sale of hay under a contract, to be delivered in parcels: Bliller v. Covert, 1 Wend. 487. 52. Judgment in an action for a breach of one covenant of a lease, is a bar to a recovery on the breach of another covenant in the same lease, committed before the first suit was commenced: Bendernagle v. Cocks, 19 Wend. 207; Stuyvesant v. Mayor of N. Y., 11 Paige, 414; ACTIONS FOB DEBT. 53. A debt is a sum of money due upon a contract, ex- press or implied: Perry y. Washburne, 20 Cal. 350. Stand- ing alone, the word ' ' debt " is as applicable to a sum of money which has] been promised at a futiire day, as to a sum now due and payable. But a sum of money payable on a contingency does not become a debt till the contingency has happened: People v. Arguello, 37 Cal. 524. So, the wages of a seaman is not a debt till the vessel has arrived: 12 178 ACTIONS FOE DEBT. WeniivortJi v. Whitmore, 1 Mass. 471. So of a contract be- tween shippers and owners, which does not become a debt till the termination of the voyage : Davis v. Ham, 3 Mass. 33; Froihingham v. Haley, Id. 68. So of a covenant to pay- rent quarterly, from which the tenant is liable to be dis- charged by quitting the premises, or by assigning the term, with lessor's consent, or the lessee may be evicted there- from by title paramount: Wood v. Partridge, 11 Mass. 488. But a debt payable in any event, but not yet due, is a debt, debitum in praisenti, solvendum in fuiuro: People v. Arguello, 37 Cal. 524. 54. The action of debt lies to recover a certain specific sum of money, or a sum that can readily be reduced to cer- tainty: 1 Burr. Law Diet. 450; 3 Bl. Com. 154; 3 Steph. Com. 461; Browne on Actions, 338; Smith on Contracts, 297. It is a species of contract whereby a right to a certain sum of money is mutually acquired and lost: 2 Bl. Com. 464. Or, more properly, the result of such contract: 2 Steph. Com. 187. Counts in indebitatus assumpsit, hereto- fore known as the common counts, may be stated separately, or may be all united in the same complaint. It is only necessary to aver an indebtedness, and that said indebted- ness has not been paid. 55. The action of debt is founded upon contract, the action of assumpsit, upon the promise: Metcalfv. Bohinson, 2 McLean, 363. 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 : United Slates v. Lyman, 1 Mass. 482. 66. The action of debt will lie in general where the sum is certain, and it is the duty of the defendant to pay the amount to the plaintiff: Home v. Semple, 3 McLean, 160; Bank of Circleville v. Igleliart, 6 Id. 568. But it may also be brought for a sum capable of being certainly ascertained, though not ascertained at the time of action brought: United States v. Colt, Pet. C. Ct. 145. 57. Indebitatus assumpsit lies to recover the stipulated price due on a contract not under seal, where the contract has been completely performed : Bank of Columbia v. Pat- terson, 7 Cranch. 299; Chesapeake Canal Co. v. Knapp, 9 CONTKACT SHOULD BE CLEAELT SHOWN. 179 Pet. 541; Hyde v. Liverse, 1 Cranch. C. Ct. 408; Brochett v. Hammond, 2 Id. 56; Pipsico v. Bonl^, 2 Id. 425; to the con- trary, Kroiise v. Deblois, 1 Id. 138; Talbot v. Selbtj, Id. 181. 58. Covenant. — The action of eovenant lies where a party claims dam- ages for a breach of covenant, that is, of a promise under seal, as distin- guished from actions of assumpsit or for breach of contracts not under seal: Steph. PI. 18. 59. Judgments and Decrees.— The action of debt lies upon a judgment: Stuart V. Lander, 16 Cal. 372; see, also. Ex parte Prader, 6 Id. 239; Lawrence V. Martin, 22 Id. 173; Pennington v. Gibson, 16 How. U. S. 65. Or on a de- cree: Pennington v. Gibson, Id.; Thompson v. Jameson, 1 Craiich. 282. 60. Note. — Debt lies where indebitatus assumpsit would lie: 1 Salk. 23; Doug. 1; 1 Ld. Kaym. 69. And an indorsee of a note can have debt against the maker: 12 Johns. 90; Willmarth v. Crawford, 10 Wend. 341. Or against a remote iudorser: Onondaga Co. Bank v. Sates, 3 Hill. 53. 61. Penalty. — The action of debt lies on a penalty, whether it be a stat- utory penalty, although uncertain: United States v. Colt, Pet. 0. Ct. 145. If the duty or penalty be capable of being reduced to a certainty: Bullardy. Bell, 1 Mas. 243. Or for the penalty of an agreement: Martin v. Taylor, 1 Wash. 0. Ct. 1. And in the latter case, a sum less than the penalty may be recovered: Id. 62. Rent. — An action of debt lies to recover rent on an expired lease : 1 Saund-233; Woodf. 323; Norton v. Vultee, 1 Hall, 384. And so where there is a demise not under seal, whether against lessee or lessee's assignee, debt for use and occupation will lie: McEeon v. Wldtnet/, 3 Den. 452. DAMAGES FOE BEEACH OF CONTEACTS. 63. The requisites which must carefully be observed in a complaint on contracts are: 1. The existence of the con- tract sued upon, and its terms clearly shown upon the face of the pleading; 2. Performance or readiness 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 spe- cifically and clearly averred. CONTEACT SHOULD BE CLEAELY SHOWN. 64. 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 : Hatch V. Adams, 8 Cow. 35; Stone v. Knowlton, 3 Wend. 374; Lutweller v. Linnell, 12 Barb. 512; Ci-ane v. Maynard, 12 Wend. 408. 180 CONTBACT SHOULD BE CLEABLT SHOWN. 65. If the contract be in writing, it may be pleaded in Jicec verba, or the pleader may set forth its legal effect. The former mode, however, is preferable as being more con- sistent with the present system of pleading. See Stoddard V. Treadwell, 26 Cal. 300; Murdoch v. Broolcs, 38 Cal. 603. The rule which permits the pleader to declare upon a con- tract in hoec verba, must be limited to cases where the in- strument set out contains the formal contract, showing in express terms the promises and undertakings on both sides: Joseph V. Holt, 37 Cal. 253. 66. 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 copy to the complaint {FairbanJcs v. Bloomfield, 2 Duer, 349), the same as in actions upon written instru- ments for the payment of money only : Swan on PL 204. If declared on according 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 set out the contract in licec verba, and demur on the ground of the variance : StofMard V. Treadwell, 26 Cal. 300. 67. It is not necessary that the words of a deed or other written instrument should be given; the substance is suf- ficient. But whatever is pleaded should be truly pleaded : Ferguson v. Harwood, 7 Cranch. 408. For where a pleading purports to recite a deed or record in Jicec verba trifling variances, if material, have been deemed fatal. Id. 68. Eecords and papers cannot be made a part of a plead- ing by merely referring to them, and praying that they may be taken as a part of such pleading, without annexing the originals or copies as exhibits, or incorporating them, so as to form a part of the record in the cause : People v. De la Guerra, 24 Cal. 78. 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 maintain it literally; and this is true where the averment has reference to particulars which need not, as well as to those which must be specifically stated upon the record: 9 East, 160; Whiitaker v. Bramson, 2 Paine, 209. In an action of foreclosure, where the complaint has a copy of the CONTRACT SHOULD BE CLEARLY SHOWN. 181 mortgage annexed, and to which it refers, a correct descrip- tion of tlie land in the mortgage is sufficient for the purpose of the suit: Emeric v. James, 6 Gal. 155. 69. If time is stated, it should be when the debt became due, though time is only material when it is sought to re- cover interest: Lyon v. Clark, 4 Seld. 148. But see Norris V. Elliott, 39 Gal. 74; Toddy. Myers, 40 Gal. 355. In an action on the case for failure to perform a parol contract, the time of making it is not material: Scvll v. Higgins, Hempst. 90; compare McLaughlin v. Turner, 1 Cranch. G. Gt. 476. The plaintiff may in fact allege any time after the debt accrued, and giye evidence of the true time ;• Moffet v. Sachett, 18 N. Y. 522; Tarran v. Shenuood, 17 N. Y. 227; IVetmore v. San Irancisco, 4:4: Gal. 299. 70. If the time of performance is not stated, the law im- ports a reasonable time therefor: licJcett v. Brice, 22 How. Pr. 194. 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 time was given and the ability of the defend- ant: Lonsdale v. Brown, 4 Wash. C. Gt. 148; compare Bice v. Barry, 2 Cranch. G. Gt. 447. 71. Although the form of action of assumpsit and of plead- ings therein have been abolished, yet the distinction be- tween an express and implied asssumpsit remains, and it is only on the theory of an implied assumpsit, " inferred from the conduct, station, or mutual relation of the par- ties," 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 complaint any promise on the part of the defendant; but he must state facts which if true according to well settled principles of law, would have authorized him to allege and the court to infer a promise on the part of the defendant in a case in assumpsit: Swan's PI. 174; Farron v. Sherwood, 17 N. Y. 227; Byod)ie\. Wood, 24 Id. 607. 72. The allegation that the defendant " made his con- tract in writing," imports a delivery: PrindleY. Caruthers, 15 N. Y. 425, and this need not ordinarily be alleged: 182 PKOMISE. BrinkerhofY. Lawrence, 2 Sandf. Ch. 400; Feets t. Bratt, 6 Barb. 660; Tompldns v. Gorwin, 9 Cow. 255. Nor need it be alleged that it was accepted: Gazley v. Price, 16 Johns. 267. Exceptions however exist to this rule, as in case of instru- ments in trust for benefit of others, where delivery should be alleged: Whitlocky. Fiske, 3 Edw. 131. 73. 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 was no privity between the deposi- tory and the grantee. On the death of the grantor, held, that there had been no delivery : Baker v. Haskell, •47 N. H. 479. PEOMISE. 74. 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 im- plied from the other facts alleged, it need not be averred. And in the absence of an express promise, every fact essen- tial 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 cannot recover upon it: Irwin v. Schultz, 46 Penn. 74. 75. A party who has wholly performed a special contract on his part, may count upon the implied agreement of the other party to pay the stipulated price, and is not bound to specially declare upon the agreement: 3 Seld. 476; 19 N. Y. 231; 18 Id. 522; 28 Id. 438; Hosley v. Black, 26 How. Pr. 97. 76. 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: State of Indiana v. Woram, 6 Hill, 33 ; and also in Wakefield V. Greenhood, where it is held that though the contract must be in writing under a statute, yet it is not necessary in the complaint to show that fact. 77. In pleading a contract which the Statute of Frauds CONSIDERATION. 183 requires to be in writing, e. g., a contract relating to lands —it is not necessary to allege the facts relied on to take the case out of the statute. It is sufficient, on demurrer, to allege that a contract was made. Such an allegation is to be understood as intending a real contract — something which the law would recognize as such. There is no rea- son for departing, under the Code, from the former well- settled rules in law and equity : Elting v. Vanderlyn, 4 Johns. 237; Blyers v. Bforse, 15 Id. 425. The existence of a writing in such case is a matter of evidence; "it is not one of the pleadable facts : Livingston t. Smith, 14 How. Pr. 490. CONSIDERATION. 78. The essential element of every contract being the consideration, a proper statement in the complaint becomes a matter of great importance, while an averment of consid- eration in cases where it is implied by law, becomes sur- plusage, and should be avoided. The rule, however, is, that the consideration must appear on the face of the com- plaint, either impliedly, as in cases of sealed instruments, where the seal imports consideration : Willis v. Kempt, 17 Cal. 98; llcCarty v. Beach, 10 Id. 461. Or the particular consideration on which the contract is founded must be ex- pressly stated (1 Ohitt. PI. 298; 2 McCord, 218; Kean v. Mitchell, 13 Mich. 207; and cases there cited), whenever proof of it is necessary to support the action (4 Johns. 280), for in its absence no cause of action can be maintained : 9 Barb. 158. 79. In suit upon an agreement under seal, the complaint setting out the agreement in hceo verba need not aver any consideration for the agreement. The seal imports a con- sideration: Willis V. Kempt, 17 Cal. 99; McCarty v. Beach, 10 Id. 461. But on a simple contract the law of pleading requires the complaint to state the particular consideration for the defendant's, promise declared on : Moore v. Woddle, 84 Cal. 145; Joseph v. Holt, 87 Id. 253. And in all cases when the performance of the consideration is a condition precedent: Moore v. Waddle, 34 Cal. 145. This rule has its exceptions, as in cases of bills of exchange and promissory notes, where the consideration is implied: Id.; 7 N. Y. Leg. 184 CONSIDEBATION. Obs. 149. And in California any written instrument is presumptive evidence of a consideration: Civil Code, sec. 1614; and the burden of showing a want of consideration sufficient to support an instrument lies with the party seek- ing to invalidate or avoid it: Id., sec. 1615. 80. To constitute a valuable consideration it is not neces- sary that money should be paid. It is sufficient that it has been expended on the faith of the contract: King v. Thomp- son, 9 Pet. 204. The acknowledgment of one dollar is suf- ficient, whether actually paid or not: 5 Bing. N. C. 577; Laivrence v. iJcCalmont, 2 How. U. S. 426. That the con- sideration of a written instrument may be inquired into, see Code C. P., sec. 1962, and sec. 1,963, sub. div. 39; see, also. Cravens v. Deicey, 13 Cal. 43; Peck v. Vandenberg, 30 Id. 12; Ingersoll v. Truebody, 40 Id. 110. 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: Kean v. Mitchell, 13 Mich. 207. 81. If part of a consideration be merely void, the con- tract may be supported by the residue, if good per se. But if any part be illegal, it vitiates the whole: 1 Sand. PI. and Ev. 187; Cobb v. Cowdery, 40 Vt. 25. It is no objec- tion that the direct consideration moves to a third person: Townley v. Sumrall, 2 Pet. 170; but compare D'WoI/y. Ba- baud, 1 Id. 476. Nor is it an objection that it moves from a third party to the person who seeks to enforce it : Ray- mond V. Friichard, 24 Ind. 318. 82. The consideration must in all cases be legally suf- ficient to support the promise for the breach of which the action is brought: 1 Chitt. PI. 292; Bristol v. Van Bensselaer and Saratoga B. B. Co., 9 Barb. 158. 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: 2 Add. on Cont. 1,002; Emersony. Slater, 22 How. U. S. 43. The Court will not inquire into the exact pro- portion between the value of the consideration and thai of the thing to be done for it: 1 Pars, on Cont. 362; and authorities there cited. PEEFOEMANCK OF CONDITIONS. 185 83. The recital in a complaint of an executed or past con- sideration is not usually traversable, and requires little certainty either of name, place, person or subject matter: Oebhart v. Francis, 32 Penn. 78. 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 it may be destroyed. If this contingency has already hap- pened at the time, the agreement is without consideration : Allen V. Hammond, 11 Pet. 63. 84. However strong may be one's moral obligation to do that which he agreed to do, it is only promises founded on the performance 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 insufficient, but not an illegal, consideration: Coib v. Cowdery, 40 Yt. 25. 85. In contracts imposing a restraint on one of the parties contracting, there must not only be a consideration for the contract, but some good reason for entering into it, and it must impose no restraint upon one party which is not beneficial to the other: Cal. Steam Nav. Co. v. Wright, 6 Cal. 258. PEEFOEMANCE OP CONDITIONS. 86. 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 : Cal. Code C. P., sec. 457. 87. The purpose of the statute is to avoid prolixity by permitting the plaintiff to aver generally, by grouping all the conditions to be performed by himself in a general averment that he has duly performed them all : Woodbury v. Sachrider, 2 Abb. Pr. 402; Graham v. Machado, 6 Duer, 515; Bolayidy. Phalen, 1 Bosw. 43. And it is a sufficient averment to allege that he had " fully and faithfully" per- formed the said contract on his part: Boivland v. Phalen, 1 Bosw. 44; Griffiths v. Henderson, 49 Cal. 570. 88. This general allegation of performance is confined to 186 PEEFOEMANCE OP CONDITIONS. cases of contracts : Spear v. Downing, 34 Barb. 523, since in all other cases the facts showing a performance must be specifically alleged: People v. Jaclcson, 24 Oal. 632; Hatch V. Feet, 23 Barb. 580; Couch v. Ingersoll, 2 Pick. 292; Kane V. Hood, 13 Id. 281; Pomroy v. Gold, 2 Met. 500. 89. It seems that the word "party," in the provision of the Code that "it may be stated generally that the party duly performed all the conditions ou his part," means the per- son or persons by whom the conditions were to be per- formed, and the plaintiff in the suit is not necessarily the person who is the party to the contract. Upon a liberal construction, the statute means that it may be stated gen- erally that the person or persons by whom the conditions were to be performed, have duly performed, etc. : Rowland V. Phalen, 1 Bosw. 43. 90. In an action on a contract by which the plaintiff had bound himself to do certain acts, and to procure third par- ties to do certain acts, the complaint alleged performance on their part, in the following form: And the plaintiff further says, that he and those on whose behalf the agree- ment was made and entered into by him have fully and faithfully performed and fulfilled all and singular the cov- enants and agreements in the said agreement contained, on the part of the said plaintiff and those on whose behalf the said agreement was made and entered into by him, as afore- said, was held sufficient: Roland v. Phalen, 1 Bosw. 43. Such general averment imports a sufiicient statement of being ready to do all things necessary in the future : "Wil- liams on PI. 117, n. ; Bentley v. Dawes, 9 Exch. 666. 91. Where certain work was to be done by the defendant, for the Government, and certain things were to be done by the plaintiff to enable the defendant to perform his con- tract; the declaration must show that the precedent acts were done by the Government, according to the terms of the contract : United States v. Beard, 5 McLean, 441 ; com- pare Hart V. Hose, Hempst. 238. 92. 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 ■ NON-PEEFOEMANCE. 187 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: Washington v. Ogden, 1 Black. U. S. 450; FreweU v. Vaughn, 21 Ark. 417. 93. In an action of covenant on a contract to deliver mer- chandise at any place, between certain points on a river, to be designated by the party to whom the delivery was to be made, the omission of such party to designate the place did not prevent the other from making a -delivery at any con- venient point he might select. The declaration need not aver that a place of delivery was designated, nor that notice of a place for the delivery of the merchandise was given. An issue formed as to such notice is immaterial : Sartfield v. Patton, Hempst. 268. 94. An averment of performance is always made in the declaration upon contracts containing undertakings; and that averment must be supported by proof : Banh of Columbia v. Hagner, 1 Pet. 455; United States v. Arthar, 5 Cranch. U. S. 257; compare Beale v. Newton, 1 Id. 0. Ct. 404; Savary v. Goe, 3 Wash. C. Ct.'140. In pleading title to land under an act of the legislature which prescribes con- ditions upon the performance of which the title may be recovered, it is necessary to aver a performance of all the acts required by the statute: People v. Jackson, 24 Cal. 632. NON-PEEFOEMANCE. 95. When performance is impracticable, such fact may be shown under an excuse for non-performance: Wolfy. Howes, 24 Barb. 174, 666. As from sickness or death: Id.; Faby v. North, 19 Barb. 341. Or by act of law: Jones v. Judd, 4 Comst. 411. Or by casualty of fire : Lord v. Wheeler, 1 Gray, 282. In such cases, the excuse for non-perform- ance must be shown: Neiocomb v. Bruekett, 16 Mass. 166; Baker v. Fuller, 21 Pick. 318. 96. If performance has been prevented or interrupted by act of the adverse party, or where a waiver thereof may be inferred, an averment of facts constituting the excuse is sufficient: For example, see Clark v. Crandall, 27 Barb. 73; Crist V. Armour, 34 Id. 378; Rhivara v. Ohio, 3 E. D. Smith, 264; Little v. Mercer, 9 Mo. 216. In such cases performance 188 CONCUEEENT ACTS. need not be alleged: Oaldey v. 3Iorton, 1 Kern. 33; HosleijY. Blade, 26 How. Pr. 97; Holmes v. Holmes, 5 Seld. 525. 97. Where the conditions contained in the contract have been modified, or plaintiff has become excused from them, an averment of performance is not proper; the modification or excuse should be stated: Oakley v. Blorton, 11 N. Y. 25. 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: Cal. Code C. P., sees. 472, 478; sec. 173 of the N. Y. Code; Hosley v. Black, 26 How. Pr. 97. Of the rule requiring full performance, except where sufficient excuse is shown, see Wolfe v. Howes, 20 N. Y. 197. And that no recovery can be had for part perform- ance of conditions precedent, consult 14 Wend. 257; 12 Johns. 165; 19 Id. 337; 8 Cow. 63; 1 Kern. 25. CONCUEEENT ACTS. 98. In an action for breach of contract, the performance of a concurrent act, which the contract expressly, or by impli- cation, devolved on the plaintiff, must be averred: Lester v. Jewett, 1 Kern. 453; Cotisiderant v. Brisbane, 14 How. Pr. 487. So, where the contract is executory, a performance, or tender of performance, or a readiness and willingness to perform, on the part of the plaintiff, must be shown in the complaint: Barron v. Brink, 30 Cal. 486; Unglander v. Sogers, 41 Id. 220; Van Schaick v. JVinne, 16 Barb. 94; Beecher v. Gonradt, 3 Kern. 110; Bromon v. IViman, 4 Seld. 188; Tlnney v. Ashley, 15 Pick. 546. 99. A tender of performance, or a readiness and willing- ness to perform, is a substitute for the general allegation of performance in such cases as it may be required. It may also be alleged that the plaintiff offered to perform. See Williams v. Healy, 3 Den. 363; Grandall v. Clark, 7 Barb. 169; Clark v. Crandall 27 Id. 773. In England a general averment of readiness and willingness is sufficient: Rust v. Notlridge, 1 Ellis & Bl. (Q. B.),99; so also in Bentley v. Dawes, 9 Exch. Welsb. H. & G. 666. So also in Ohio: Swan on PI. 206; Nathan v. Lewis, 1 Handy, 242. And OONOUBKENT ACTS. 189 such tender or offer of performance must be proved : Good- win V. Linn, i. Wash. C. Ct. 714. And an offer of perform- ance is of no effect if the person making it is not able and ■willing to perform according to the offer: Civil Code, sec. 1495. 100. In 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: West v. Emmons, 5 Johns. 179. So where there are mutual promises, not dependent on each other, the omission to state in the declaration per- formance of that made by the plaintiff, is cured by the verdict: Corcoran v. Dougherty, 4 Cranch. C. Ct. 205. 101. If mutuality exists at the inception of the contract, or at the time the contingency happens, no subsequent changes can destroy the contract, if the party has performed all the conditions on his part: Sugd. on Yend.194; 1 Yes. 218; 10 Ves. Jr. 315; 1 Schoales & L. 19; Waltonr. Coulson, 1 McLean, 120. In an executory contract for the sale of an article to be paid for on delivery, the obligation of one party to pay, and the other to deliver, are mutual and dependent; and the seller must show that he was ready and offered to deliver the goods: Barron v. Frinh, 30 Cal. 486; Gibbons v. Scott, 15 Cal. 284; 1 Sand. PI & Ev. 190; Englander v. Sogers, 41 Cal. 420; Considerant v. Brisbane, 14 How. Pr. 487; Dunham v. Fettee, 4 E. D. Smith, 500; Fickett v. Brice, 22 How. Pr 194. But where there has been part perform- ance, a special allegation is not necessary: Grant v. John- son, 5 Barb. 161; Wallace v. Warren, 18 Law Jour. Eep. Ex. 449; 14 Law Times, 108; 7 Dowl. & L. 60; 4 Ex. 364. 102. 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 showing perform- ance or tender of performance on his part: 12 Johns. 209; 16 Id. 267; 20 Id. 130; 5 Cow. 404; 11 Wend. 67; 11 N. Y. 453; 15 Barb, 359; 21 Id. 324; 2 Pick. 155; Ficlcett v. Brice, 22 How. Pr. 194; to the same effect, Frey v. Johnson, Id. 316; Englander v. Rogers, 41 Cal. 420. 103. But where the covenants of an agreement are in- dependent, the plaintiff cannot support his action as to 190 THE BREACH MUST BE CLEAKLY ' APPAEENT. them without showing performance of every 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: Webster v. Warren, 2 Wash. C. Ct. 456. 104. Assigment. — 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 defendant, plaintiff in an action to recover the money need not allege performance or offer of performance: Smith V. Bdts, 16 How. Pr. 251 105. Notice. --If notice is necessary to give a right of action, such notice must be specially averred: Bmsley v. Aiwill, 12 Gal. 231; Oolt v. Boot, 17 Mass. 229; Eobart v. Hilliard, 11 Pick. 144. And an averment of facts " which defendant well knew," is not sufficient: Colchester v. Brooks, 7 Q. B. 339; S. C, 53 Eng. Com. L. E. 339. Otherwise if knowledge only is neces- sary to fix the liability; as for keeping mischievous animals (Fairchild v. Bentley; 30 Barb. 147) against a municipal corporation for defect in a grating over an area in a sidewalk, 5 Duer, 674, and other like cases. 106. Request. — "Whenever a request is necessary to give a party a right to sue, it must be specially averred: Ramsey v. Waltham, 1 Mo. 395; Femer V. Williams, 37 Barb. 9. 107. Statute Requirements. — "Where the statute 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 : People v. Jackson, 24 Cal. 632. 108. Tender. — In an action by 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: Main \. Kvng,i'&&rb. 535; Faucher v. Goodman, 29 Id. 316; McKnight v. Dunlop, 4 Id. 36. So, on a contract for wheat to be delivered on demand, it was not necessary to aver a tender: Crosby v. Watkins, 12 Cal. 85. And under an averment of tender, the plaintiff may prove a waiver of it by defendant: Holmes v. Eolmes, 5 Seld. 525. THE BEEACH MUST BE CLEARLY APPAEENT. 109. A complaint for breach of a contract must state a breach in unequivocal language: 1 Van Santv. 222; Moore v. Besse, 3 Cal. 570; Sclienck v. Naylor, 2 Duer, 675; Van Schuick V. Winne, 16 Barb. 89. A general allegation, how- ever, will be sufficient to admit proof, and will only be obnoxious to a motion to render it more certain : Trhnble v. Slilwell, 4 E. D. Smith, 512. 110. Where the covenant describes a specific act, the breach may be averred in the language of the covenant; but if a number 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 : Wolfe v. SPECIAL DAMAGES AVERRED. 191 Luyster, 1 Hall, 146; Brown v. Stehhins, 4 Hill, 154. For ■when a party relies upon any breaches of an agreement as the foundation of an action, he must set forth in his plead- ing sufficient of the agreement to make it appear to the court that the breaches complained of do actually exist, and to what extent: Lynch v. Murray, 21 How. Pr. 154. 111. If the promise contained an exception or proviso, it must be stated: 2 B. & C. 20; 4 B. & C. 446; 4 Camp. 20. And, on a contract containing various undertakings, the plaintiff complaining of the breach of one, thereby waives any right as to the others: CMnn v. Hamilton, Hempst. 438. SPECIAL DAMAGES AYEEEED. 112. For the breach of a contract an action lies, though no actual damages be sustained : McCarty v. Beach, 10 Gal. 461. 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 declaration; but special damages must be specially stated : Bas v. Steele, 3 Wash. C. Ct. 381. 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 : Barher v. Cazalis, 30 Cal. 92. But the omission to aver specially the damages laid in the complaint, is waived by going to trial without objection: Neary v. Bostiuich, 2 Hilt. 514. 113. In action for special damages for injuries, such damages as are the natural, although not the necessary re- sult of the injury, must be specially stated, and the facts out of which they arise must be specially averred in the complaint: Stevenson v. Smith, 28 Cal. 102; Cole v. Swans- ton, 1 Cal. 51; 14 Wend. 159; 12 Id. 64; 1 Chitt. PI. 371; Sedg. on Dam. 67; Say on Dam. 315; Tuolumne Water Co. V. Columbia and Stanislaus Water Co., 10 Cal. 193. Thus, a jury cannot give compensation for loss of time, remuneration for wages paid, etc., unless there is an allegation in the complaint as to these matters: Dahovich v. Emeric, 12 Cal. 171. 114. The want of any averment of special damages can not be reached by demurrer. Such averment is only neces- sary where the right of action itself depends upon the 192 ACTIONS FOE INJUEIES KESULTING FROM NEGLIGENCE. special injury received: McCarty v. Beach, 10 Cal. 461. Matters in aggravation of damages need not be alleged; the quo animo may be proved without being pleaded : Bus- sell V. McQu&ster, 1 Camp. 49; Slack v. McChesney, 2 Yates, 473; WallisY. Blase, 3 Binney, 546: Kan v. McLaiigMan, 2 Serg. & E. 469, and therefore should not be pleaded: Warne V. Croswell, 2 Stark. E. 457; Molony v. Doius, 15 How. Pr. 265; see, however, Boot v. Foster, 9 How. Pr. 37; Brewer T. Temple, 15 Id. 286. ACTIONS FOE INJUEIES EESULTING FBOM NEGLIGENCE. 115. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordi- narily 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 rela- tive to some circumstances of time, place, or person: Bicli- ardson v. Kier, 34 Cal 63. 116. The prudence and propriety of men's actions are not judged by the event, but by circumstances under which they act. If they conduct themselves with reasonable pru- dence and good judgment, they are not to be made respon- sible because the event, from causes which could not be foreseen nor reasonably anticipated, has disappointed their expectations: The "Amethyst," Daveis, 20; 2 N. Y. Leg. Obs. 312. "Where the safety of human life is in question, a very high degree of care is required : Castle v. Duryea, 32 Barb. 480. But a casualty happening without the will and without the negligence or other default of the party, is, as to him, an inevitable casualty: 1 T. E. 27; Hodgson v. Dex- ter, 1 Cranch. C. Ct. 109; The " Lotty," 01c. 329. 117. Ordinary care or common prudence is such a degree of care and caution as will be in due proportion to the in- jury or damage to be avoided: Ernst v. Hudson Biver B. B. Co., 24 How. Pr. 97. Thus, the question of negligence must depend upon the facts of the case, and is not an ab- stract question of law: Baxters. Second Ave. B. B. Co., 30 HowPr. 219: Welling v. Judge, 40 Barb. 193. Hence, it will not be necessary in a complaint to aver the degi-ees of negligence in each case, as they are matters of proof to be ACTIONS FOE INJURIES KESULTING FROM NEGLIGENCE. 193 decided from the facts stated: Nolton v. Western B. B. Co., 15 N. T. 444; 35 Barb. 389. 118. Negligence implies gross as well as ordiHary negli- gence: Id. And a general averment of negligence is all that is required: Oldjield v. N. Y. and Harlem B. B. Co., 4 Kern. 310. If an employment requires skill, failure to exert it is culpable negligence, for which an action lies: The "New World" ^r. King, 16 How. U. S. 469, in which case the theory of the three degrees of negligence is exam- ined. As to what constitutes negligence, see also Needham V. S. F. &. S. J. B. B. Co., 37 Cal. 409; ScMerhold v. N. B. & M. B. B. Co., 40 Id. 447; Karr v. Parks, 40 Id. 188; McCoy V. Cal. P. B. B. Co., 40 Id. 532. 119. In an action for damages caused by negligence, it must appear that the plaintiff's acts or omissions did not contribute in any degree to the result: Wilds v. Hudson Biver B. B. Co., 24 N. Y. 430; 24 How. Pr. 97; 8 Com. Bench (N. S.), 572, 598; Delafield t. Union Ferry Co., 10 Bosw. 216. The rule that, where the injury has been caused by the negligence of the party injured, he has no redress, commented on and qualified, Bichmondy. Sacra- mento Vol. B. B. Co., 18 Cal. 351; where it is also held that the negligence which disables a plaintiff from recovering must be a negligence which directly or by natural conse- quence conduces to the injury. It must have been the proximate cause, that is, negligence at the time the injury happened: Kline v. C. P. B. B. Co., 37 Cal. 400; Needham V. S. F. & S. J. B. B. Co., 37 Id. 409; Flynn v. Same, 40 Id. 14; Maumus v. Champion, 40 Id. 121; Hearne v. S. P. B. B. Co., 50 Id. 482. 120. It is not necessary to allege in the complaint in an action for damages to either person or property that the plaintiff is without fault ( Wolf v. Supervisors of Bichmond, 11 Abb. Pr. 270; 19 How. Pr. 370), as it may fairly be pre- sumed that the plaintiff exercised usuaj care for his own safety: Johnson v. Hudson Biver B. B. Co., 20 N. Y. 65,. 121. The right to recover damages for injuries to the per- son depends upon two concurring facts : 1. The party claimed to have done the injury must be chargeable with some de- gree of negligence, if a natural person; if a corporation, 13 194 JUDGMENTS, HOW PLEADED. ■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 contributed prox- imately to the injury: See cases cited above. 122. Where negligence consists in the omission of a duty, the facts relied on as implying that duty must be alleged : City of Buffalo v. Holloioay, 7 N. Y. 493: Taylor v. Atlantic 31utual Ids. Co., 2 Bosw. 106; Congreve v. Morgan, 4 Duer, 439; Seymour v. Maddox, 16 Q. B. 326; S. C, 71 Eng. Com. L. E. 326; and see McGinily v. Mayor, etc., 5 Duer, 674; and Gregory v. Oaksmiih, 12 How. Pr. 134. . 123. The allegation that the injury continued 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 Avere sustained when the wrongful act was committed, and on divers days between that time and the commencement of the suit: McConnel y. Kibbe, 33111. 175. JUDGMENTS, HOW PLEADED. 124. In pleading a judgment, 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 established on the trial: Cal. Code C. P., sec. 456; N. Y. Code, sec. 161; Nevada Code, sec. 59; Idaho, sec. 59; Arizona, sec. 59; Oregon, sec. 85; Low V. Burroivs, 12 Cal. 181; Hanscom v. Tower, 17 Cal. 518; Hunt v. Butcher, 13 How. Pr. 638. In California, under the section above cited, this rule applies to all judg- ments or other determinations of a court, officer or board. 125. But in pleading the judgment of a court of limited jurisdiction, it is necessary to set forth the facts which give jurisdiction: Smith v. Andrews, 6 Cal. 652, as the law pre- sumes nothing in favor of their jurisdiction : Swain v. Chase, 12 C;d. 283; Botvley v. Hoioard, 23 Cal. 403; McDonald v. Kaiz, 31 Cal. 169. But see Cal. Code C. P., sec. 456. 126. The decisions in New York seem to bear the other way on this point, and would appear to conform more nearly STATUTES, HOW PLEADED. 195 to the language of the statute than the California decisions. There, it seems, it is no longer necessary to state the facts conferring jurisdiction on a court or officer of limited juris- diction : Wheeler v. Dakin, 12 How. Pr. 542. If it be denied, jurisdiction and all jurisdictional facts must be proved: Id. So held in pleading an insolvent discharge: Livingston v. Odicsmith, 13 Abb. Pr. 183; Carter v. Koezley, U Id. 147; per contra, IIcDonald v. Kaiz, 31 Gal. 169. 127. 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 at- tended with no other consequences than in other cases. But in matters of description, the record produced must conform strictly to the plea: Whittaker v. Bramson, 2 Paine, 209; compare Riddle v. Potter, 1 Cranch 0. Ct. 288. 128. But this section does not refer to foreign judgments, and a general averment of jurisdiction of a foreign tribu- nal is not sufficient: Hollister v. Hollister, 10 How. Pr. 539; citing Barnes v. Harris, 3 Barb. 603; Ayres v. Covill, 18 Id. 260; Bement v. Wisner, 1 N. Y. Code. E. (N. S.) 143; and therefore facts showing jurisdiction both of person and sub- ject-matter must be stated: McLaughlin v. Nichols, 13 Abb. Pr. 244. But in Halstead v. Black, 17 Abb. 227, the con- trary is held. 129. But in California, where the transcript of the judg- ment shows the jurisdiction of the court on its face, it is not necessary to aver jurisdiction : Low v. Burrows, 12 Cal 181. A judgment of the Probate Court may be pleaded in the mode prescribed by the statute : Beans v. Emanuelli, 36 Cal. 117. STATUTES, HOW PLEADED. 130. 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 force of the statute in such case made and provided." Reciting a statute is quoting or stating its contents, and either form may be adopted by the pleader: Gould's PI. 46, note. 131. In pleading a private statute, or right derived there- 196 STATUTES, HOW PLEADED, from, it shall be sufficient to refer to sucli statute by its title and the day of its passage, for the court to take judi- cial notice thereof: Gal. Code 0. P., sec. 459; N. T. Code, sec. 530; Idaho, sec. 61; Nevada, sec 61; Arizona; sec. 61; Oregon, see. 87; 1 Van Santv. 270; 5 Sand. 153. An aver- ment that the statute toos passec? is sufficient: WoI/y.Su- perv. of Richmond, 11 Abb. Pr. 270. 132. In pleading an Act of the Legislature, the title, being no part of an Act, need not be recited: -Echsri v. Head, 1 Mo. 593. But where a party refers to an Act merely by the title, he thereby makes the title material, and must recite it correctly: Id. 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: Dye v. Dye, 11 Cal. 163. But see Gimmy v. Doane, 22 Cal. 638, where the application of the rule laid down in Dye v. Dye is doubted. In Bimelman v. Danos, 35 Cal. 448, the distinction is drawn between plead- ing the performance of conditions precedent under a con- tract, and conditions prescribed by a statute, holding that the latter must be alleged specially. See also Tertore v. Wiswell, 16 How. Pr. 8; Brown v. Harmon, 21 Barb. 508; Droivne v. Siiinpson, 2 Mass. 444; Soper v. Harvard College, 1 Pick, 178, and Austin v. Goodrich, 49 N. Y. 286. 133. It is safest to adopt and follow the very words of the law: Ford v. Babcoch, 2 Sandf. 523; Thomas v. People 19 Wend. 480; Cole v. Jessup, 10 How. Pr. 515; overruling loivler V. Hunt, 10 Johns. 464, 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 has his election to sue for a penalty given by a statute, or to bring his action simply for the debt: City of Vtica v. Bichardson, 6 Hill. 300. 134. With reference to acts regulated by the provisions of a statute, as of the Statute of Frauds, it is sufficient to use such certainty 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: Wakefield v. Greenhood, 29 Cai. STATUTES, HOW PLEADED. 197 597 ; Stern v. Drinker, 2 E. D. Smith, 406; EiUiard v. Avs- tin, 17 Barb. 141; Mlivg v. Vanderlyn, 4 Johns. 237. Or, in an action on a contract relating to real estate : Livingston V. Smith, 14 How. Pr. 492; Reynolds v. Dunkirk B. R. Co., 17 Barb. 617; Champlin v. Parish, 11 Paige, 408. 135. If a statute should contain exceptions in the enact- ing clause, the plaintiff must clearly show that the defend- ant is not within the exception: 1 T. E. 144; 6 Id. 659; 1 East. 646; 2 Chitt. E. 622; Bennett v. Eurd, 3 Johns, 438; Teel V. Fonda, 4 Id. 304; Hart v. Cleis, 8 Id. 41; Sheldon v. Clark, 1 Id. 613; Burr v Van Buskirk, 3 Cow. 263; Foster v. Hazen, 12 Barb. 547; First Baptist Church v. Ulica and Schenectady R. R. Co., 6 Id. 313: Williams v. Ins. Co. of N. Am., 9 How. Pr. 365. Unless it be matter of defense, in which case the burden of proof being on the defendant, the plaintiff need not allege it in the complaint, as the plaintiff need not allege anything in anticipation: CavfieldY. Tohias, 21 Cal. 349; RadcliffeY. Roioley, 2. Barb. Ch. 23. 136. Numerous violations of the same subdivision of a section of a statute may be alleged in one count: Lovg- ivorthy Y. Knapp, i Ahh. Tv. 115; People v. McFadden, 13 Wend. 396; Gaffney v. Colvil, 6 Hill, 567; but separate counts must be used for violations of separate subdivisions. Id. 137. In penal actions founded on statutes, facts con- stituting 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: 2 Allen, 321; Pedbodyy. Rayt, 10 Mass. 36; Nichols v. Squire, 5 Pick, 168; Haskell V. Moody, 9 Id. 162; Reed\. Northjield, 13 Id. 99. As a general rule, a scienter need not be averred : Bayard v. Smith, 17 Wend. 88; Gaffney v. Colvil, 6 Hill, 667. 138. In remedial actions founded on statutes, such aver- ments must be made as are necessary to bring the case within the statute: Reedy. Northfield, 13 Pick. 94; Worster V. Canal Bridge, 16 Id. 641; Read v. Chelmsford, 16 Id. 128; Mitchell y. Clapp, 12 Gush. 278; as remedies in derogation of the common law must be strictly pursued : Steel v. Steel, 1 Nev. 27. 198 STATUTE OP LIMITATIONS. POKEIGN STATUTES. 139. 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 : Throop v. Hatch, 3 Abb. Pr. 25; PJdnney v. PMnney, 17 How. Pr. 197; Thatcher v. 31(y)-ris, 11 N. T. 437; Monroe v. Douglass, 1 Seld. 447; Hutchinson v. Patrick, 3 Mo. 65; Euse v. Mutual Benefit Ins. Co., 23 N. Y. 616; Pean v. Briggs, 4 Iowa, 464; Walker v. Maxwell, 1 Mass. 104; and see Andrews v. Herriot, 4 Cow, 510, note. 140. Thus, to plead that a contract is void by foreign iisury laws, the laws should be stated; and the facts which render the contract void according to them should be alleged : Curtis v. Masten, 11 Paige, 15. And the same rule applies to municipal laws and ordinances: Harker v. Mayor ofN. Y., 17 "Wend. 199; People v. Mayor of N. Y., 7 How. Pr. 81. To show due diligence in suing on a foreign debt, the laws of such State regulating the contract must be. averred: Mendenhall v Gately, 18 Ind. 149. 141. Pleading foreign statutes by their titles and dates, or statement of their general provisions and requirements, is insufficient: Throop v. Hatch, 3 Abb. Pr. 23; PMnney y. PMnney, 17 How. Pr. 197; Carey v. Cincinnati, etc., B. B. Co., 5 Clarke (Iowa), 357. But in the courts of the United States, no averment need be made in pleading, in respect to the laws of the several States, which would not be neces- sary within the respective States: Pennington v. Gibson, 16 How. U. S. 65. STATUTE OP LIMITATIONS. 142. Facts taking the case out of the Statute of Limita- tions must be specially set out in the complaint: Wormouth V. Hatch, 33 Cal. 121. A failure to plead it is a waiver of the same: People v. Broadivay Wharf Co., 31 Cal. 33. For 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 stattite, the complaint is defective, and demurrer lies: Smith v. Bichmond, 19 Cal. 476; ChabotT. Tucker, 39 Id. 484. So, if fraud be alleged as committed more than three years before the commencement of the THIED SUBDIVISION — DEMAND FOE EELIEF. 199 action, that period being tte limitation prescribed by our statute, lie must allege discovery at a period bringing him within the exception. It is not, however, in general, neces- sary for plaintiff to allege in his complaint any facts or circumstances to avoid or anticipate the defense of the Statute of Limitations, unless the cause of action appear, upon the face of the complaint, to be barred. 143. Where triple damages are given by a statute, it must be expressly 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: Chipman v. Umeric, 5 Cal. 239; see, also. Bees v. EmericJc, 6 S. & E. 288; Newcomb v. Butterfield, 8 Johns. 342; Liv- ingston V. Plainer, 1 Cow. 175; Benton v. Dalea, Id. 160. Where there are separate statutes, giving a different meas- ure of damages for the same wrongs, it- has been held that the plaintiff must elect upon which he will rely : Sipperly v. Troy and Boston R. B. Co., 9 How. Pr. 83, THIED SUBDIVISION — DEMAND FOE EELIEF. 144. The third subdivision of section 426 of the Califor- nia Code C. P. prescribes that the complaint shalj contain a demand for the relief which the plaintiff claims. This is the most important subdivision of the section, as the relief granted to the plaintiff, if there be no answer, shall not exceed that demanded in the complaint: Cal. Code C..P., sec. 580; N. Y. Code, sec. 275; and Codes of Nevada, Idaho, Arizona, etc.; Baun v. Beynolds, 11 Cal. 19; Gage v. Bogers, 20 Id. 91; Lattimer v. Byan, Id. 628; Lamping v. Hyatt, 27 Id. 102; Gautier v. English, 29 Id. 165; Barrott v. Den, 34 Id. 81; Simonson v. Blahe, 12 Abb. Pr. 331; 20 How. Pr. 484; Walton V. Walton, 32 Barb. 203; and Bondv. Bacheco, 30 Cal. 531. Where it is held that a judgment rendered for a sum greater than that demanded in the prayer, is not void, but erroneous: See, also, Andreivs v. Monilaws, 8 Hun. 65. 145. But in any other case than a default of the defend- ant, as where issue is joined, the court may grant any relief consistent with the case made by the complaint and embraced within the issue : Oal. Code 0. P., sec. 580; Savings and Loan Society v. Thompson, 32 Cal. 347. So that where there 200 THIBD SUBDIVISION — DEMAND FOE RELIEF. is an answer to the complaint, the prayer for relief becomes immaterial: Id.; Marqiiat\. Marquat, 2 Kern. 336; so held in mandamus and quo warranto: People t. Board of Super- visors, 27 Cal. 655. 146. The effect of the prayer of the complaint is discussed and qualified in Savings and Loon Society v. Thompson, 32 Cal. 347; 34 Id. 77; Lajiev. Gluckauf, 28 Id. 289; Gassacia V. Fhcenix Ins. Co., 28 Id. 628; McComb r. Seed, 28 Id. 289; N. C. & S. G. Co. T Kidd, 37 Id. 301; Van Dyke v. Jackson, 1 E. D. Smith, 419; Jones r. Butler, 30 Barb. 641; 20 How. Pr. 189; Emery t. Pease, 20 N. Y. 62; Marquat \. Marquot, 12 Id. 336; reversing S. 0., 7 How. Pr. 417. 147. The theory of the Code seems to require the plaint- iff specifically to demand the relief to which he supposes himself entitled: L'Amoreux v. Atlantic Mut. Ins. Co., 3 Duer, 680; Mills v. Ihursly, 2 Abb. Pr. 432. 148. 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 : People V. Turner, 1 Cal. 152. And if specific relief cannot be granted, such relief as the ease authorizes may be had under the prayer for general relief: People v. lurner, 1 Cal. 152; Truebody v. Jacobson, 2 Id. 269; Rollins y. Forbes, 10 Id. 299; Hemson v. Decker, 29 How. Pr. 385; see 24 N. T. 62. Thus, under the general prayer, the court may allow a deed to be reformed by inserting in it a power of revoca- tion: Grafton y. Bemsen, 16 How. Pr. 32. 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 : Janson v Smith, Cal. Sup. Ct., Jan. T., 1866, not reported. 149. To entitle plaintiff to relief in equity, it must be shown that he is without remedy at law: Lupton v. Lupion, 3 Cal. 120; Par]cer v. Woolen Co., 2 Black. U. S. 545. What averments on the face of a bill in equity entitle plaintiff to relief, see Griffing v. Gibb, 2 Black. U. S. 519. 150. The prayer of a complaint may seek both legal and equitable relief where the matter arises out of the same transaction: Gates v. Kief, 7 Cal. 125; 31arius v. Bicknell, 10 Id. 224; Weaver v. Conger, Id. 237; Bollins v. lorbes, Id. 300; Hill V. Taylor, 22 Id. 191; Eastman v. Turman, 24 Id. THIED SUBDIVISION— DEMAND FOE BELIEF. 201 382; OrayY. Dougherty, 25 Id. 266; Morey. Massini, 32 Id. 595-6; Phalen v. Buslmell, 46 Barb. 24. But tliey must be separately stated ia the complaint: Gates v. Eieff, 7 Cal. 124; Getty v. Huds. River R. R. Co., 6 How. Pr. 269; N. Y. Ice Co. V. N. W. Ins. Co., 23 N. Y. 357; 21 How. Pr. 296; Lamport v. Allott, 12 How. Pr. 340. And the grounds of equitable interposition should be stated subsequently to and distinct from those upon which the judgment at law is sought: Natoma Water and Mining Co. v. ClarUn, 14 Cal. 544. 151. A prayer for an injunction is proper in an action of trespass: Gates v. Kieff, 7 Cal. 125. Or where suit is brought to test the priority of the appropriation of water: Marius v. Bicknell, 10 Cal. 217. Or on foreclosure of a mortgage to restrain waste during the period for redemp- tion: HiU V. Taylor, 22 Cal. 191. 152. But a prayer cannot include a demand for two kinds of relief inconsistent with each other, as for re-delivery of and damages for the detention and conversion of personal ^roT^exij: Maxwell Y. Farnam, 7 How. Pr. 236. Or for gen- eral relief and for judgment in a specified sum for a money demand on contract: Durant v. Gardner, 10 Abb. Pr. 445. But such prayer will not be struck out: HeTUSon v. Decker, 29 How. Pr. 385. And the court will not resort to rules of construction to determine the species of relief demanded: Gates V. Kieff, 7 Cal. 125. But, although the prayer be in- artificially framed, the court will grant relief: People v. Turner, 1 Cal.. 152; Iruebody r. Jacdbson, 2 Id. 269; Stew- art V. Hutchinson, 29 How. Pr. 181. 153. 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 com- plaint, will not preclude the plaintiff from obtaining the relief which the complaint seeks, but which the prayer omits. A party cannot state one set of facts in his com- plaint, pray for the relief which those facts would author- ize, and get judgment upon another set of facts. 154. In general, a demand for judgment in the alternative is improper: Maxioellv. Farnam, 7 How. Pr. 236; Durant V. Gardner, 10 Abb. Pr. 445; 19 How. Pr. 94. But in 202 THIED SUBDIVISION — DEMAND FOE BELIEF. actions for equitable relief, the complaint may be framed with a double aspect where there is doubt as to the partic- ular relief to which the plaintiff is entitled: Young t. Ed- wards, 11 How. Pr. 201; Warwiole v. Mayor of N. Y., 28 Barb. 210; 7 Abb. Pr. 265; People v. Mayor of N. Y., 28 Barb. 240; 8 Abb. Pr. 7; Woodr. Seeley, 32 N. Y. 105. 155. 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: Meek v. McClure, 49 Cal. 627. And 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 follow the prayer of that count: N. G. & ^S". C. Co. v. Kidd, 37 Oal. 283. FOEMS OF COMPLAINTS. Subdivision First. By and against Particular Persons, Individually, and in Bepresentative Character and Official Capacity. GHAPTEE I. ASSIGNEES AND DEVISEES. No. 36. i. By the Assignee of a Claim. [Title.] The plaintiff complains, and alleges : I. [State cause of action accruing to the plaintiff's as- signor.] II. That on the day of , 187.., at , the said assigned the said claim to plaintiff. I Demand of Judgment.} 1. Assignment. — Any act amounting to a rightful appropriation of a debt constitutes an assigninent. In fact, any act wliereby one person's interest in a debt passes, is an assignment: Wiggins v. McDonald, 18 Cal. 126. So, when an order is given for a valuable consideration, 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 : Wheatley v. Strobe, 12 Cal. 92. An order drawn by a creditor on his debtor is an assign- ment of the debt pro ianto: McJSwen y. Johnson, 7 Cal. 258. The indorse- ment of a bill of lading, prima facie, vests the property in the goods in the indorsee: Lineker v. Ayresford, 1 Cal. 76; Harris v. De Wolf, 4 Pet. 147; Bal- derston v. Manro, 2 Cranch. C. Ct. 623. Assignment of instrument under seal may be made by writing, without a seal : Moore v. Waddle, 34 Cal. 145. The mere signing an assignment without delivery is insufficient: Miter v, Stevenson, 7 Cal. 388. 2. Assignment, how Alleged.— Where the plaintiff is an assignee, the complaint should allege the fact of the assignment: Prindle v. Caruthers, 15 N. Y. 426; White v. Brown, 14 How. Pr. 282; Adams v. Eolley, 12 Id. 330. 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: Buntin v. Weddle, 20 Ind. 449. Where a party sets up in his pleadings an assignment to him of a contract made with another, he must allege a positive transfer and the character of it: Stearns v. Martin, 4 Cal. 227. 204 ASSIGNEES AND DEVISEES. 3. Assignment, Sufficient Averment of. — It is not enough merely to allege that " the said plaintiff is now the sole owner of the demand :" Thomas V. Desmond, 12 How. Pr. 321; Russell v. Clapp, 7 Barb. 482; Bentley v. Jones, 4 How. Pr. 202; McAfurray v. Gifford, 5 Id. 14; Farker v. Totten, 10 Id. 233. That A. duly assigned and transferred all his interest in the contract to the plaintiif B., and the plaintiff C. became interested by a sale and assignment to him of a part of B.'s interest, was held sufficient: Earner v. Wood, 15 Barb. 372; Fowler t. N. T. Indem. Ins. Co., 23 Id. 151. 4. Account. — The assignee may sue in his own name on an account as- signed to him: Carpenter v. Johnson, 1 Nev. 331. But where there is no final settlement of partnership accounts, and no balance struck, and no express promise on the part of the individual members to pay their ascertained por- tion of this amount, no action can be maintained therefor in assumpsit, nor can the claim be assigned so that the assignee may sue : Bullard v. Kinney, 10 Cal. 63. The assignee of an account and note given in part payment of it, where the assignment of the two claims were contemporaneous, may sue in his own name: Armstrong v. Cushney, 43 Barb. 340. An assignment of an account by indorsement of the word " assigned " is sufficient: Ryan v. Mad- dux, 6 Cal. 247. And it may be amended on trial by writing above it, "For value received, I hereby assign the within account:" Id. 5. Bonds, Notes, etc. — An assignee of bonds, notes, etc., may maintain an action in his own name: Mandeville v. Riddle, 1 Cranch. 95. The assign- ment of a note to the maker is payment of the same. So of a joint and several note, assigned to one of the makers: Gordon v. Wansey, 21 Cal. 77. The payment by the maker of a non-negotiable note, of the sum due upon an attachment against the payee, without notice of assignment, will bar a suit by the assignee: Weinwick v. Bender, 33 Mo. 80. 6. Consideration. — A promissory note imports a consideration, and none need be pleaded: Winters v. Rush, 34 Cal. 136. No consideration need be averred in the complaint: Martin v. Kenouse, 2 Abb. Pr. 331; Homer v. Wood, 15 Barb. 372. Even for a sealed contract, an averment to that effect imports that the assignment was by a sealed instrument, from which a consideration is to be inferred: Moore v. Waddle, 34 Cal. 145; Fuwler v. New York Indem. Ins. Co., 23 Barb. 143. And consideration need not be stated: Clark V. Downing, 1 E. D. Smith, 406; Burtnetl v. Gwynne, 2 Abb. Pr. 79; Vogel Y. Badeock, 1 Id. 176; Martin v. Kenouse, 2 Id. 330: Richardson v. Mead, 27 Barb. 178. Nor can the defendant aver or prove that the assign- ment was only collateral security for the payment of a debt, if the assign- ment is absolute on its face: Wetmore v. San Francisco, 44 Cal. 294. So, in Kentucky, it is not necessary in a sviit by an assignee of a chose in action, against the assignor, to aver a valuable consideration. It is sufficient to set out the assignment: Holt v. Thompson, 1 Duval, 301. 7. 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: Kennedy v. Cotton, 28 Barb. 59. And the complaint need not aver that the directors were authorized to make it: Nelson v. Eaton, 16 Abb. Pr. 113. 8. Corporation Stock. — An assignment of shares of stock in a corpor- ASSIGNEES AND DEVISEES. 205 ation formed under the Act of 1S53, by delivery of certificates, without trans- fer on the books, is invalid against subsequent purchaser on execution against assignor without notice: NagUiy. Pacific Wharf Qo., 20 Cal. 529; see also, Parrott v. Byers, 40 Cal. 614. But where shares of stock are assigned by mere delivery, notice of such assignment must be given to sub- sequent purchaser: Naglee v. Pacific Wharf Co., 20 Cal. 529. 9. Debt. — The assignee of an order drawn on defendants for an amount due, may recover the same: McJEwen v. Johnson, 7 Cal. 260; Wheatley v. Strobe, 12 Id. 97; Pope v. Hulh, 14 Id. 408. And drawees with notice are liable to payees without an express promise to pay. In Maine, an assign- ment of a debt may be made by parol, or may be inferred from the acts of the parties: Oamseyy. Gardner, 49 Maine, 167. It seems that in New Hamp- shire, claims for property and for torts done to property may be assigned by parol: Jordan y. Gillen, 44 N. H. 424. So 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 liim to recover from a subsequent general assignee: Page -v. Gardner, 20 Mo. 507. 10. Effect of Assignments. — An absolute assignment of a demand ena- bles the assignee to sue for and recover the whole, even though but a part was assigned: Gradwohl v. Harris, 29 Cal. 150. For equity upholds assignments of choses in action, contingent expectations, and things which have no present actual existence but rest in possibility; provided they are fairly made, and not against public policy: Pierce v. BoUnson, 13 Cal. 116; Bibend v. L. and L. F. and L. Ins. Co., 30 Cal. 87. 11. Goods Sold. — Where the vendor of goods is not at the time in pos- session, the transfer is an assignment, and an actual and continued change of possession is required equally as in cases of sale by one in possession. Wdl V. Paul, 22 Cal. 492. Where B. assigned to 0. a contract for the delivery of goods to arrive, and C. after the arrival of the goods tendered payment for the same, A., the vendor, was not entitled to notice of the assignment, but that 0. may enforce the contract against A.: Morgan v. Lowe, 5 Cal. 326. 12. Insurance. — 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: Bibend v. L. and L. F. and L. Ins. Co., 30 Cal. 78; see also Pope v. Huth, 14 Cal, 403; Wheatly v. titrobe, 12 Cal. 92. 13. Judgment. — If a judgment creditor assign the judgment, and the judgment debtor without notice of the assignment afterwards pays the same Tolnntarily to the sheriff, by reason of service of garnishee process upon him, the assignee may still enforce the judgment: Brown v. Ayres, 33 Cal. 525. The assignment of a judgment void because the amount is beyond jurisdiction of the court, carries with it the assignment of the debt: Brown V. ScoU, 25 Cal. 194. A verdict upon an unassignable cause of action is not assignable, but a judgment rendered thereon becomes a debt: Lawrence v. Martin, 22 Cal. 17,3. In suit to enforce a judgment lien on real estate brought by assignees of the judgment, the judgment and the assignment must be set forth: Brookshire v. Lomax, 20 hid. 512. 14. 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: Buntr. Banforth, 2 Curt. C, Ct, 592. 206 ASSIGNEES AND DEVISEES. 15. Mortgage. — A mortgage, independent of the debt it is intended to secure, has no assignable quality: Polhemus v. Trainer, 30 Cal. 685. The assignment of a.debt secured by mortgage, in equity, if not in law, carries the mortgage property with it: Hatch v. White, 2 Gall. 152. So, the equita- ble lien which a vendor of real estate retains upon the property for the unpaid purchase-money is not assignable: Baum v. Origshy, 21 Cal. 172; Lewis V. Cooillaud, 21 Id. 178; Williams v. Younger, Id. 227. But a claim for damages for trespass on land is assignable, and assignee may maintain an action for the same: More v. Massini, 32 Cal. 590. 16. Parties. — Under the California system, an action may be brought in the name of the assignee, as the party beneficially interested: WheaUey v. Strobe, 12 Cal. 98. Where a suit is brought by an equitable assignee, the assignor should be made a party : Nelson v. Johnson, 18 Ind. 329. Where an assignee brings an action in the name of his assignor, the defendant cannot avail himself of the plaintiff's want of interest: La Baume v. Sweeney, 17 Mo. 153. At common law, an assignment of chattels is valid without actual de- livery. But as against creditors, the title is not perfect without delivery of possession: Meeker v. Wilson, 1 Gall. 419. It has been held in an action against assignees who are not partners, to recover possession of specific per- sonal property, that the demand must be made upon each person having an interest in order to maintain a joint action: Jessop v. MiUer, 1 Keyes, 321. 17. Rights of Assignee. — The assignee talres the interest by assignment subject to all equities and offsets which existed against the assignor at the time of the assignment: Cal Code, sec. 368; see McCabe v. Gray, 20 Cal. 509; Northam v. Gordon, 23 Cal. 255; Truebody v. Jacobson, 2 Cal. 269; Olds v. Cummings, 31 111. 188; Fortier v. Darst, 31 111. 212; Shaw v. Shaw, 4 Cranch. C. Ct. 715; Shirrasv. Craig, 7 Cranch. 34; Kinsman v. Parkhurst, 18 How. U. S. 289; Timms v. Shannon, 19 Md. 296. So of bonds assigned under the statutes of Virginia and Indiana: Scott y. Shreeve, 12 Wheat. 605; Bell v. Nimms, 5 McLean, 110. So of mortgages. A mortgagor may claim the same rights against the assignee of the mortgage as against the mortgagee : Hubbard r. ruj-ner, 2 McLean, 519. So of judgments and decrees: United States V. Sampergac, 7 Pet. 222. So of negotiable paper after it has lost its negotiable character: Gwathmey v. McLane, 3 McLean, 371; Bounsavel v. Scliolfield, 2 Cranch. C. Ct. 139. So, the assignee of a partner takes his in- terest subject to all equities: Mehol v. Mumford,i Johns. Ch. 522; Bodriguez V. Uefferman, 5 Id. 417. As to what may be assigned, and that assignee takes subject to all equities, see Parties, chap. iv. 18. Time of Assignment. — One who sues as assignee cannot maintain his title by proof of an assignment made after suit brought: Garrigue v. Loescher, 3 Bosw. 578. A neglect to record an assignment within the statu- tory period fixed therefor, in cases where an assignment must be recorded, does not make it fraudulent: Denzer v. Mundy, 5 Eob. 636. No. 37. ii. The Same, where Plaintiff is Trustee. [Title.] The plaintiff complains as assignee for the benefit of [state whom], and alleges: ASSIGNEES AND DEVISEES. 207 I. [State a cause of action accrued to the assignor.] II. That on the .... day of , 187., the said C. D. assigned all his property, including the said claim, to the plaintiff, in trust, for the purpose of [state the purpose. ] IDemdnd of iTiidgmeiii.] 19. Averment of Agency. — A person suing as trustee should make a positive arid issuable averment of his trust or agency : J'Veemon v. Fulton Fire Ins. Co., 13 Abb. Pr. 407. 20. Express Trusts. — A cestui que trust of an express trust has no right of action until the trust is denied or some act is done by the trustee incon- sistent with the trust; and until then the Statute of Limitations does not be- gin to run: White v. Sheldon, 4 Nev. Kep. 280. 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 demand is made upon him for it : Id. 21. Mode of Appointment. — One claiming a right as a 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: Cruger v. Ealliday, 11 Paige, 314. 22. 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 mem- bers of the firm, and the firm sold the land to their successors in business, some of the original firm being a portion of such successors, the purchasers are chargeable with notice of the trust: Connelly v. Peck, 6 Cal. 348. 23. Trust Deed. — In Nevada, under section 55 of the statute concerning conveyances ((Statutes of 1861j, a declaration 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; 8ime v. Howard, 4 Nev. Kep. 473. 24. Trust Fund. — Where the share of one of several cesiuis que trust in a trust fund is ascertained and known, he may maintain suit for a breach of trust against the trustee, without joining the other cestuis que trust: Pickering V. De Bochemont, 45 N. H. 67. 25. Who may Assign. — An administrator of an estate in New York may assign a Judgment obtained there by intestate against one who has since re- moved to California: Low v. Burrows, 12 Cal. 181. N'o. 38. iii. The Same, where Plaintiff is a Devisee. [Title.] 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 hereinbe- fore mentioned, and that he died on the .... day of , 187 . , at , and by his last will devised the same to this plaintiff. [ Demand of Judgment. ^ 208 ASSIGNEES AND DEVISEES. 26. 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: Siting v. Vanderlyn, 4 Johns. 237. 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: Xewis v. Barling, 16 How. U. S. 1. The above form of alle- gation is sufficient on demurrer: Spur v. Robinson, 9 How. Pr. 325. No. 39. \ iv. By an Assignee for the Benefit of Creditors. [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 , 187.., at , the said assigned all his property, including the said claim, to the plaintiff [in trust for the purpose of pay- ing all his debts]. [Demand of Judgment. 1 27. Assignee as Trustee. — An assignee for the benefit of creditors is a trustee. He must allege in his comijlaint that he sues as such, or the court will not relieve him from payment of costs in ease befalls in the action: Murray v. Eendrickson, 6 Abb. Pr. 96; 1 Bosw, 635. Por any other purpose this allegation is unnecessary, 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: BuUerfield v. Manomber, 22 How. Pr. 150. But an as- signment 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 re- covery: Leese v. Sherwood, 21 Cal. 152. 28. Bankruptcy. — Proceedings in bankruptcy do not affect the previ- ously acquired right of an assignee of a chose in action to sue in the bank- rupt's name: Hayes v. Pike, 17 N. H. 564. In Connecticut, the Insolvent Act of 1853 provides that all the property of the debtor shall be vested in the trustee, and that the trustee may sue in his own name on all choses in action : Hart V. Stom, 30 Conn, 91. 29. Title to Property. — It is irregular to allege that the demand is the property of the assignor, or that the defendant is indebted thereon to the assignor: Falmer v. Smedley, 28 Barb. 468; S. C, 6 Abb. Pr. 205; compare Myers v. Machado, Id. 198; S. C, 14 How. Pr. 149. 30. Who may Assign. — One partner of a firm, sole manager, his co- partners being absent at a great distance, may assign the firm property, iu trust, for the benefit of creditors, if necessary for their protection: Forbes v Scannell, 13 Cal. 242. TENANTS IN COMMON. 209 CHAPTER II. TENANTS m COMMON. No. 40. i. By Tenants in Common. [Title.] The plaintiffs complain, and allege: I. That the property hereinafter mentioned and described is owned in common by the plaintiffs. II. [State cause of action.] [Demand of Judgment.] 1. Association. — Associations, as sucb, are not known in California, as under the laws of this State associations for all purposes are incorporated, and have power to sue and be sued under the corporation laws of California. In New York, however, it appears that associations of persons consisting of seven members and upwards, are invested by law with certain rights and privileges, one of which is the capacity to sue. 2. May Maintain Actions. — Tenants in common may maintain action for the diversion of water: Farke\. Kilham, 8 Cal. 79. Or they may sue jointly to recover possession of their several undivided interests in a mine: Goller V. Fett, 30 Cal. 481. One tenant in common can recover possession of the entire premises against a mere trespasser, without joining his co-ten- ants as plaintiffs: Treat v. Reilly, 35 Cal. 129. 3. Right of Possession. — One tenant in common has a right of enjoy- ment of the common property, and cannot possess in severalty before par- tition: Tevis T. Sicks, 38 Cal. 234. And each and every one of them has a right to enter upon and occupy the whole of the common lands and every part thereof: Tevis v. Hicks, supra; citing Carpentier v. Wehster, 27 Cal. 545. Several persons owning a tract of mining claims, as tenants in common, act- ing under a company name, cannot, in the name of the company, take or hold the interest of any one or more by forfeiture: Wiseman v. McNulty, 25 Cal. 230; Bidch Flat Go. v. Mooney, 12 Id. 534. 4. Services. — A tenant in common of lands, employed as agent by com- mon agreement between himself and co-tenant, to take charge of the land, make sales thereof at certain prices, receiving a commission of five per cent. on sales, may sue his co-tenant for services in respect to the land outside of selling it: Thompson v. Salmon, 18 Cal. 632. 5. Share of Profits of Estate. — 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 com- mon 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 defendant's refusal; and that the rents, issues and profits amount to $84,000, is insufficient to support the action: Pico v. Oolumbet, 12 Cal. 414. The action is a common law action of account; and, viewed in this light, the complaint should aver that the defendant occupied the premises 14 210 COEPOEATIONS, upon an agreement with the plaintiff, as receiver or bailee of his share of the rents and profits. It is essential to a recovery that it be alleged: Pico v. Columbet, 12 Oal. 414. 6. When One may Sue. — One tenant in common may sue a party in possession by adverse olailn, and recover the premises: Collier v. Corbett, 15 Cal. 183; see Stark v. Barrett, 15 Gal. 361. Or he may sue alone for his moiety of the estate: Govillaud v. Tanner, 7 Oal. 38. A tenant in common may maintain a bill in equity against his co-tenant who has exclusively ocou- j)ied a sal', well and works, and a coal mine, the common property, for an aecou 's and profits. The defendant in such case is liable for " re- ceiving more than comes to his just share or proportion," under St. 4 Anne, ch. 16, sec. 27; Marley v. Friend, 16 Gratt. 21; see Parties, Chap. iv. As to trover by tenant in common against his co-tenant, see Hewlett v. Owens, 51 Cal. 570. If two are tenants in common of personal property, and the Sheriff in an action against oue of them attaches his interest in the com- mon property,ihe may take all the property into his possession without being guilty of a conversion of the other tenant's share: Veach v. Adams, 51 Cal. 609. CHAPTEE III. COEPaKATIONS. JN'o 41. i. By a Foreign Corporation. [State AND CotrNTx.] [Couet.] The CoMPANT, Plaintiff, against John Doe, Defendant. 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.] IDemand of Judgment,'] 1 . Capacity. — A foreign corporation must allege its corporate character in the complaint: Waterville Manfg. Co. v. Bryan, 14 Barb. 182; Connedimt Bank v. Smith, 9 Abb. Pr. 175; see, contra, Holyoke Bank v. Haskins, 4 Sandf . 675. It seems that if the plaintiff sues in a corporate name, but neg- lects to allege its corporate character, the complaint is demurrable upon the ground that it shows upon its face that the plaintiff has not legal capacity to sue: Bank of Havana v. Wickham, 7 Abb. Pr. 134. ' But the objection is COEPORATIONS. 211 ■waived if not taken by demurrer: Id. This is not, however, necessary where they are sued on a contract with them in their corporate name: Stein V. Indianapolis, 18 Ind. 237. 2. Existence of Foreign Corporations.— Although a corporate body may carry on business beyond the territorial limits of the State which created it, it has no corporate existence beyond those limits: Day v. Newark India Rubber Co., 1 Blatchf. 628; Bk. of Augusta v. EarU, 13 Pet. 588; Ohio and Miss. R. B. Go. V. Wheeler, 1 Black. 286. Its existence is a question of fact for the jury: Lindamr v. DelavMre Ins. Co., 13 Ark. 461. 3. Foreign and Domestic Corporation. — A corporation owing its cor- porate existence to the laws of several States must be considered as a domes- tic corporation in each of such States: State v. Northern Central Railway Co., 18 Md. 193; see, also, to the same effect, Sprague T. Hartford, etc., R. R. Co. 5 K. I. 233; each charter creating a legal entity to be recognized within its own State: Ohio and Miss. R. B. Co. v. Wheeler, 1 Black. 286. The right of a domestic corporation to act as such cannot be questioned collaterally: Dean v. Davis, 51 Cal. 407. 4. Forms. — For forms of averment of an incorporation, see Mut. Benefit Life Ins. Co. v. Davis, 12 KT. Y. 569; N. Y. Floating Derrick Co. v. N. J. Oil Co., 3 Duer, 648; Elinabethport Manuf. Co. v. Campbell, 13 Abb. Pr. 86; Oswego and Syracuse Flank Boad Co. v. Rust, 5 How. Pr. 390. 5. Local Laws. — When a foreign corporation comes by its officers within the jurisdiction of another' State, to engage in business, it becomes amenable to the laws of the latter State, and cannot escape the consequences of its ille- gal acts by setting up its existence under a foreign government: Austin v. N.T.and ErieR.R.Co., 1 Dutch. 381; People y. Cent. B. B. Go.of ¥. J., iS Barb. 478; Warren Manfg. Co. v. Etna Ins. Co., 2 Paine, 501. 6. Location. — Where defendants are alleged to be a corporation doing business within the State, the court will not presume as a matter of law that it is a foreign corporation: Acome v. American Mineral Co., 11 How. Pr. 24. 7. May Maintain Action. — One foreign corporation may sue another in the courts of New York, upon a cause of action arising in it: Bank of Com- merce v. Butland and Washington R. R. Co., 10 How. Pr. 1. But a complaint against a foreign corporation must either allege that the plaintiffs are resi- dents of that State, or that the cause of action arose, or the subject of action is situated, within the State; and if it does not, it may be dismissed on motion : House v. Cooper, 16 Id. 292. 8. Money Loaned. — In an action by a foreign insurance company to re- cover money loaned, it is not necessary to set out in the complaint in hoee verba, that portion of the plaintiff's chartef which confers the power to loan money : Connecticut Ins. Co. v. Gross, 18 Wis. 109. 9. National Banks. — National banks organized and doing business under the Act 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: Bowen v. First National Bank of Medina, 34 How. Pr. 408; Coolce v. State National Bank of Boston, 3 Abb. Pr. (N. S.) 339. 10. OiScer, Suit by. — An officer of a foreign corporation may sue in his own name on behalf of his company, if his complaint state facts showing 212 COBPOEATIONS. his authority to sue on their behalf. Merely alleging authority is not enough : Myers t. Machado, 6 Abb. Pr. 198. 11. Persons. — Foreign corporations are deemed "persons," within the meaning of the statute relating to taxation, unless a different intent is indi- cated in the statute : British Comm. Life Ins. Go. v. Comrs. of Taxes, 28 How. Pr. 41. 12. Privileges of Foreign Corporations. — A corporation created by the laws of one State, and composed entirely of citizens of that State, is not en- titled to all the privileges and immunities of citizens of every other State: Bk. of Augusta v. Earle, 13 Pet. 519, 586. Nor is it entitled to privileges which by the statutes of the latter are confined to corporations created by the law of that State : Myers v. Manhattan Bk., 20 Ohio, 283. The nature and, extent of State jurisdiction, and the duty of comity towards foreign states, explained in Merick v. Van Santvoord, 34 N. Y. 208. 13. Residence. — In an action in the Supreme Court of the City of New York against a foreign corporation, where the complaint states a cause of ac- tion of which the court has jurisdiction, it is unnecessary to aver that the plaintiff resides within the city of New York: Spencer v. Bogers Locomotive Works, 17 Abb. Pr. 110; S. 0., 8 Bosw. 612. ii. By or against a Domestic Corporation. [Title.] 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 cor- porate name of [insert name of corporation], [or that the defendant is a corporation created by and existing under the laws of this State.] II. [State cause of action, etc.] [Demand of Judgment.] 14. Agents and OESoers.— A corporation is liable for the acts of its agents in delicto as well as in contractu. The officers of a corporation are not proper parties defendant to an action against it to recover a mere money demand, except where the statute authorizes suits against them. Brahe v. Pythagoras Association, 4 Duer, 658. At common law, the officers of a corporation are not liable personally on a promissory note of the corporation: Ball v. Cran- dall, 29 Cal. 567. 15. Cause of Action Alleged.— An obligation-given to a corporation, which is in terms payable to its agents or directors, is properly described in declaring on it, as given to the corporation, by the name and description of the directors, etc.: Bayley v. Onondaga County Mutual Ins. Co., 6 Hill, 476. A note was executed by the defendant, payable to the "Board of Trustees of the Sonoma Academy, or their successors in office," and specified that ' ' no change in the name, character, or management of the said academy " should affect the liability of the payor. The complaint of the " Cumberland College " stated that the plaintiff was a corporation, and the same institution COEPOEATIONS. 213 of learning foimeily known as the "Sonoma Academy;" that the academy ■was, after its establishment, changed to " Cumberland College,'' and that the note was the property of the plaintiff: Held, that this complaint showed a good canse of action in the plaintiff: Cumberland College v. Ish, 22 Cal. 641. 16. Coutracts. — A contract not under seal, signed by agents of a cor- poration, and showing upon its face that the agents intended to contract for the corporation, and not for themselves, may be declared upon as its con- tract: Many v. Beekman Iron Co., 9 Paige, 188. 17. Corporate Name. — A corporation is recognized in law by Its cor- porate name, and must sue and be sued by its corporate name: Curiissy. Murray, 26 Cal. 633. An action can only be maintained against a company by the name under which it transacts its business: King t. Bandlett, 33 Cal. 318. Where the plaintiff sues by an appropriate corporate name, it is not necessary to aver expressly in the complaint that the plaintiff is a corpora- tion: Phxmix Bank of]^. Y. v. Donnell, 41 Barb. 571. 18. Deed, Averment of. — Where a deed is made to a corporation, by a name varying from the true name, they may sue in their true name, and aver that the defendant 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: N. T. African Society v. Varick, 13 Johns. 38. 19. Directors of a Corporation.— The directors of a corporation are its chosen representatives, and constitute the corporation for all purposes of dealing with others: Maynard v. Fireman's Fund Ins. Co., 34 Cal. 48. 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 imputed to the corporation : Id. 20. IncorporatioQ Act. — The title of the act and the date of its passage are sufficient. The substance thereof need not be set forth: Cal. Code C. P., 459; N. y. Code, sec. 163; TI. S. Bank v. Raskins, IJohns. Cas. 132. Where the original act is referred to in the complaint, a vague reference to other general statutes affecting it does not render the complaint demurrable: Sun Mut. Ins. Co. V. Dwighl, 1 Hilt 50; but the title of the act must be set forth with accuracy: Union Bank v. Dewey, 1 Sandf. 509. For form of averment, see N. Y. Floating DerHck Co. v. K J. Oil Co., 3 Duer, 648. 21. Incorporation, Averment of.— In California, the due incorporation of any company claiming in good faith to be a corporation under the Civil Code, and doing business as such, its right to exercise corporate powers cannot be inquired into, collaterally, in any private suit to which such de facto corporation may be a party; but such inquiry may be had at the suit of the State, on information of the Attorney-General: Civil Code, see. 358, and see 0. and V. R. B. Co^v. Plumas Co., 37 Cal. 360. It is stated that this provision of the Civil Code furnishes a rule of evidence, and this evidence may be admitted under an averment that the plaintiff is a corporation. If that averment is not denied, there is no room for the admission of evidence. But if, in fact, no steps have been taken to incorporate, it cannot be claimed that the alleged corporation " claims in good faith to be a corporation," because it has done or attempted to do a single act as a corporation. A domestic corporation plaintiff need not aver or show in the complaint how it was incorporated: Lafayette Ins. Co. v. Eogers, 30 Barb. 491; Mlieabeihport 214 COEPOEATIONS. , Manuf. Co. v. Campbell, 13 Abb. Pr. 86. Nor recite tbe title or date of the act of incorporation: Shoe and Leather Bank v. Brown, 9 Abb. Pr. 218. The complaint must state that the plaintiff is a corporation, except where the defendant is estopped from denying the incorporation, as by having con- tracted with it by its corporate name: Conn. Bank v. Smith, 9 Abb. Pr. 168; S. C, 17 How. Pr. 487; Loaners' Batik t. Jaedby, 10 Hun. 143. In Fhcenix Bank v. Donnell, 40 N. T. 410, it was held that where the plaintiff sues in a name appropriate to a corporate body, it will be intended to be a corporation, and need not so aver. It follows that a complaint against a corporation need not allege its incorporation: Acome v. American Min. Co., 11 How. Pr. 24; Lighte v. Everett Fire Ins. Co., 5 Bosw. 716. Such an omission is cer- tainly no ground for demurrer: Id. But as a question of practice, it is bet- ter always to allege incorporation. 22. Incorporation Inferred.— Where, in an action brought against the directors of a corporation, facts are stated in the complaint which show that the defendants became a body corporate, no special averment to that effect is necessary. The fact of incorporation is an inference of law: Falconer v. Campbell, 2 McLean, 195. And if the defendant uses a corporate name, and as such contracts the obligation, it cannot, when sued bj'.such name, set up that it is not a corporation: People v. Ravenswood Turnpike Co., 20 Barb, 518. 23. Incorporation, Proof of.— Where no such allegation exists, the plaintiff must prove the incorporation by evidence of the charter or general act, organization and user: Watervitte Manf. Co. v. Bryan, 14 Barb. 182; Stoddard v. Onondaga Annual Conference, 12 Id. 573. 24. Individual Banker. — In New York, an individual banker commenc- ing 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 corporate 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: Bank of Havana v. Wickham, 7 Abb. Pr. 134; lialhity. Harrower, 33 Barb. 537. 25. Injunction. — A corporation may be enjoined and the general and ordinary business suspended: Cal. Code C. P., sec. 531; Ballston Spa Bk. v. Marine Bk., 18 Wis. 490. Or it may be proceeded agcynst for the claim of a creditor: Cal. Code C. P., sec. 720. 26. Joint Action. — Where an obligation is executed to two corporations jointly, they may sue thereon jointly: Oathwright v. Calloway Co., 10 Mo. 663. 27. Jurisdictional Pacts. — It is not necessary for the complaint to show that the defendants transact their general business, or keep an office within the city: Corn Exchange Bank v. Western Transportation Co., 15 Abb. Pr. 319, note; Kxnig v. Nott, 2 Hilt. 323; S. C, 8 Abb. J'r. 384. 28. Legal Capacity. — The allegation that a plaintiff is a corporation, organized and existing under the laws of the State, is sufficient to establish the legal capacity to sue: Cal. Steam Nav. Co. v. Wright, 6 Cal. 258. 29. Libel and Slander. — A corporation may maintain an action for libel on it as such, for words affecting their business or property, if special damages be alleged and proved : Shoe and Leather Bank v. Thompson, 18 Abb. Pr. 413. So, also, in California, it is held that a corporation has the power to compose COBPOEATIONS. 215 and publish a libel, and by reason thereof, when done, becomes liable to au action for damages by the person of and concerning whom the words are composed and published: Maynard v. F. F. Ins. Co., 34 Cal. 48. Action, will lie against a corporation for a libel published by its directors in the dis- charge of their office, and their malice is the malice of the corporation: Maynard v. Fireman's Fund Ins. Co., 34 Cal. 48; see, also, Philadelphia, Wilmington and Salt. R. R. Co. v. Quigley, 21 How. U. S. 204. 30. Malicious Prosecution, — An action for malicious prosecution, slander, false imprisonment, or assault and battery, cannot be maintained against a corporation aggregate, but must be brought against the individuals implicated personally. This is the practice in Missouri: ChUds v. Bank of Missouri, 17 Mo. 213. 31. Members as Parties. — Where members of a corporation bring an action on behalf of the corporation, the complaint must allege that the offi- cers whose duty it is to sue have been requested to institute proceedings for that purpose and have refused to do so: Vanderhilt v. Garrison, 3 Abb. Pr. 361; Eouse v. Cooper, 16 How. Pr. 292. 32. Misnomer. — The misnomer of a corporation in a grant, obligation, or other written contract, does not prevent a recovery thereon by or against the corporation in its true name, providing its identity is averred and proved: Melledge v. Boston Iron Co., 5 Oush. 158, 176; Minot v. Curtis, 7 Mass. 444; Medway Cotton Manuf. Co. v. Adams, 10 Mass. 360; Commercial Bk. V. French, 21 Pick. 486; Lowell v. Morse, 1 Met. 473; Charitable Associa- tion V. Baldwin, 1 Met. 359. 33. "Person," Natural and Artificial. — The word "person" in its legal siguiiioation is a generic term, and is intended to include artificial as well as natural persons: Douglass v. P. M. S. S. Co., 4 Cal, 304; Code C. P. sec. 17. Under the laws of California, corporations have a legal existence from the date of filing the certificate of incorporation in the County Clerk's Office: Mokelumne Hill Min. Co. v. Woodbury, 14 Cal. 424; Civil Code, sec. 296. 34. Povirers. — It is not necessary to set forth the specific power of the corporation under which the transaction in qiiestion arose : Reformed Dutch Churchy. Veeder, 4 Wend., 494: Struver v. Ocean Ins. Co., 9 Abb. Pr. 23; Perkins t. Church, 31 Barb. 84; Marine and Fire Ins. Bank v. Jauncey, 1 Id. 486; compare, however, Camden andAmboy B. B. and Transportation Co.\. Bemer, 4 Id. 127; see, also, Bard v. Chaniberlin, 3 Sandf. Ch. 31; where it is said that the power of a foreign corporation to make the contract which is sought to be enforced must be set forth. 35. Promise. — In assumpsit against a bank, an averment ttat the defend- ant "promised through its president and cashier," without alleging their authority, is sufficient. The bank could not have promised, except through agents duly authorized: Bk. of the Metropolis v. Gultchlick, 14 Pet. 19. 36. Right to Act.— The right of a corporation to act cannot be collat- erally inquired into: Denneborg Mining Co. v. Ailment, W Ca\. 286; Civil Code, sec. 358; 0. and V. R. R. Co. v. Plumas Co., 37 Cal. 354; de facto corporation, H. and L. 0. R. Co. v. 8. and G. R. B. Co., 45 Cal. 680. 37. Trustees. — The trustees of a corporation should sue in the corporate name only. 1 Kern. 94; Bundy v. Birdsall, 29 Barb. 31. 216 COEPOEATIONS. 38. Verification. — When a corporation is a party, the verification maybe made by any oflSoer thereof; Cal. Code, see. 446; N. Y. Code, see. 157; Ari- zona, see. 55; Idaho, Id.; by an officer representing it, or by an agent or attorney thereof: Oregon Code, sec. 348; Oregon Decis. 79. No. JiS. iii. Agaiixst Corporation formed under the Act in relation to Roads and Highways. [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 Legislature entitled [title of act in full], passed , 18 .... , and the acts amendatory thereof and supplementary thereto. II. [State a cause of action.] [_ Demand of Judgment.'] 39. Form. — For a form of ayerment of incorporation in such actions, see Oswego and Syracuse Plank Road Co. t. Riist, 5 How. Pr. 390; Sf. T. Floating Derrick Co. v. N. J. Oil Co., 3 Duer, 648. 40. Parties. — The directors of a corporation formed for the construc- tion of plank or turnpike road, are not personally liable, unless the stockholders have adopted by-laws, and the same have been filed in the Recorder's Office, and the contract is made in violation of the by-laws: Sail T. Crandall, 29 Cal. 567. No. 44. iv. Sy Corporation, on Stock Assessments. [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 com- pany was organized 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 busi- ness at the city of II. That on the .... day of , 18 . . , at , the defendant and certain other persons, being desirous of asso- ciating themselves together for the purpose of constructing a toll road [or state the actual purpose] from the village of E. to the village of S., in said county, in consideration thereof, and of the mutual promises each to the other, and COEPOEATIONS. 217 of tlie benefits to be derived from being members of said association, made and subscribed 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 subscrib- ing said agreement, set opposite to his name thereto sub- scribed 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. 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 at the time of the levy of such assessment, defendant was a subscriber to the capital stock of said cor- poration 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 assess- ments defendant has failed to pay,>each as above.] 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.'] 41. Assessments. — Under the laws of California, the stock may be sold to pay assessments, and such sale is authorized to be made without action. 42. Jurisdiction of Corporations. — For rules as to the jurisdiction of municipal corporations to make assessments for local improvements, see Ireland v. City of Bochester, 51 Barb. 414. v. By a Corporation, on a Stock Subscription. [Title.] The plaintiff complains and alleges : I. [Aver incorporation, as in No. 44.] II. That in contemplation of the incorporation of these 218 COEPOEATIONS. plaintiffs, and for the purpose of constructing, owning, and maintaining the [toll road], then contemplated, the defend- ant, with others, on the day of , 187 . . , at , became a subscriber to the stock of the said com- pany by [severally] signing and delivering an agreement in writing, of which the following is a copy: [Copy subscrip- tion paper.] III. That, among other persons, the defendant signed and executed the 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 , 187. . , he subscribed to the articles 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. Y. That the plaintiff by its directors, on the day of , 187 . . , at , required the defendant to pay thereon the sum of , agreeably to said subscription and the charter 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 subscrip- tion, or any part thereof. [_Demand of Judgment.'] 43. Assessment, Averment of. — A complaint on a subscription to be paid as assessed, must aver a proper assessment: Gebhart v. Jundion B. B. Co., 12 Ind. 484. 44. Averment of Corporate Character. — A complaint ■wbioh avers in general terms that the plaintiffs were an incorporated company, organized pursuant to the general act, is sufficient for any purpose : Oswego and Syra- cuse Plank Road Co. v. Bitst, 5 How. Pr. 390; but see Dutchess Cotton Manuf. Co. V. Davis, 14 Johns, 238. But the authority of the latter case is some- what shaken by the criticisms upon it in Welland Canal Co. v. Hathaway, 8 Wend. 480; see also First Baptist Society v. Bapelee, 16 Wend. 605; and Buf- falo and Allegheny K. E. Co., 26 N. Y. 75. 45. Averment of Subscription. — It is sufficiently specific to allege that the party subscribed a sum named, and that the subscription was paid, and that the amounts paid were received by the company : Beckham v . Sm.iih, 9 How. Pr. 436; see, also, Highland Turnpike Co. v. McKean, 11 Johns. 98. 46. Form.— For a form of complaint under the statutes of NewTorls, see COEPOEATIONS. 219 the case of Poughkeepsie Flank Road Co. v. Griffin, 21 Barb. 454; Oswego and Syracuse Plk. Bd. Go. v. Tiust, 5 How. Pr. 390. 47. Parties. — As to whiit parties can maintain an action against a defend- ant, treasurer of a religious corporation, for money received by bim as sub- scriptions and donations for an enterprise not immediately connected witb tbe cburcb corporation, see Rector, etc., of the Church of the Redeemer v. Craw- ford, 5 Eob. 100. 48. Religious Corporations may sue for subscription: Dansville Sem- inary V. Welch, 38 Barb. 221. Trustees of such corporations mustfirst estab- lish their right, before they can use tbe corporate name : North Baptist Church V. Parker, 36 Barb. 171. Before tbe court can take notice of the regulations of particular religious denominations, or their nature or effect, their exist- ence should be properly averred and proved as matter of fact: Young \. Ran- som, 31 Barb. 49. 49. Separate Subscriptions.— Where defendant subscribed in bis own name for fifty shares of railroad stock, and at the same time subscribed for fifty more, signing his own name again, adding thereto tbe letters, "Exr.," to indicate that he took the additional fifty shares for an estate for which he was executor : Held, that these were separate contracts, upon which separate actions would lie; and that the pendency of the action to enforce payment of the first subscription formed no sufficient ground for abating the action to enforce the second subscription: Erie and New York CityR.R. Co. v. Patrick, 2 Keyes, 256. No. 46. vi. On a Subscription to the JSxpense of a Public Object. [Title.] The plaintiff complains, and alleges : I. [Aver incorporation.] II. That the plaintiff, in the month of , 187 . , 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.] IDemand of Judgment.'] 220 COKPOEATIONS. 50. Corporate Name.— An action for money due a church on a verbal contract with the trustees, should be brought in the corporate name, and not in the name of the trustees: .Barnes v. Ferine, 9 Barb. 202; Leftwick y. Thorn- ion, 18 Iowa, 56. 51. Form.— For form under the New York Code, see RichmondvilU Union Seminary, etc. \. Brovmell, 37 Barb. 535; Wayne and Ontario Collegiate In- stitute T. Smith, 36 Id. 576. No. 47. vii. Against a Municipal Corporation. [State and County.] [Coukt.] A. B., Plaintiff, against The County of Defendant. 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 , at , the plaintiff presented the claim or demand hereinbefore seb forth to the Board of Supervisors of the County of , for allowance, and that they failed and refused to allow the same or any part thereof. I^'. That the defendant has not paid the same. [^Demand of Judgment.] 52. Authority to Enact. — The authority to enact may be averred in general terms. Where a corporation is authorized to pass a by-law if they fin,d it necessary, and they pass it, a declaration on the by-law need not aver the necessity: Stuyvesant v. Mayor, etc., of N. Y., 7 Cow. 585. It is suf- ficient in pleading to aver generally, that a contract sought to be enforced is in 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: Beman v. Tugnot, 5 Sandf. 153. 53. Bonds of Corporation. — In suit against a municipal corporation on its bonds, the complaint sets out the bonds; avers the defendant to be a cor- poration; that the corporation made and delivered the bonds on good con- sideration, under an ordinance passed by the proper agents of the corpora- tion, having authority for that purpose, and that defendant has failed to pay. 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 proceed- ings of the corporate agents, or give any further description of the agents of the corporation: Underhill v. Trustees of the City of Sonora, 17 Cal. 172. 54. Contract. — ^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 borrowed money, such consent need not be averred on CORPORATIONS. 221 the plaintiff's part. If with such sanction 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: Gelpoke v. City of Dubuque, 1 Wall. U. S. 221. 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 lowest bidder: Nash t. St. JPaul, 8 Minn. 172. 55. Corporation must be Alleged. — It is an indispensable allegation, in an action brought by a corporation, that it is a corporation, and it results from the logic of pleading that the opposite party may deny the allegation : Oroville and Virginia City BaUroad Company v. The Supervisors of PlumasCounty, 37 Cal. 354. A substantial compliance with the requirements of the statute will be sufficient to show a corporation de jure in an action between the cor- poration and a private person. Id. See ante, par. 37, Domestic Corpora- tions. Acts incorporating cities are public acts: People v. Potter, 35 Cal. 110. 56. Form. — For forms of complaint under the New York Code, see Car- man T. Mayor of N. Y., 14 Abb. Pr. 301; Dooliitle v. Superv. of Broome, 18 N. Y. 155; Roosevelt -v. Draper, 23 Id. 318. 57. Injury by Negligence. — In what cases an action lies against a vil- lage for neglect to maintain sidewalks: See Harrington \. Village of Corning, 51 Barb. 396. 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, embank- ment, or grading, and also the officer or officers through whose official neglect such defect continues, shall be jointly and severally liable: Eustace V. Jahns, 38 Cal. 3. Incorporated cities are not liable for injuries sustained 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: fVinbigler y. City of Los Angeles, io Oa,l. 36. See, also, 0' Sale V. Sacramento, 48 Id. 212; Krause v. Sacramento, 48 Id. 221. 58. Nuisance. — 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: Nevins v. City of Peoria, 41 111. 503. 59. Presentation of Claim. — No action can be maintained against a municipal corporation in New York till such claim has been presented to the Comptroller. Laws of N. Y., 1860, ch. 379, sec. 2; Bussellr. Mayor of N. T., 1 Daly, 263. For somewhat similar statutes as to the necessary demand before a suit against the Cities of Brooklyn and Buffalo, respectively, see Eowell V. City of Buffalo, 15 N. Y. 512; Hart v. City of Brooklyn, 36 Barb. 226. For similar statutes in California, see local acts. In New York, a sec- ond demand on the expiration of twenty days after the rejection of the claim, is required, and under that practice the following allegation is essential: That thereafter, on, etc., and after the expiration of twenty days, he made a second demand, in writing, upon the said , f or the adjustment of the said claim; but the said has hitherto wholly neglected and refused to make an adjustment or payment thereof. See Abb. Forms, No. 184, and authorities there cited. 222 COEPOBATIONS. No. 48. viii. By a County. [Name op Countt.] fConiiT.] The CogNTT of , i Plaintiff, \ against ( A. B., Defendant. ) The plaintiff, a corporation existing by [or under] the laws of this State, complains and alleges: I. [State cause of action.] [^ Demand of Judgment.'] 60. Actions by. — That a county is a corporation, see Smith v. Myers, 15 Cal. 33. Counties are quasi corporations, and can sue and be sued : Price v. Sacramento Co., 6 Cal. 254; People ex rel. Hunt v. Supervisors, 28 Id. 431, But the people of a county are not the corporation: See Political Code, sees. 4000-4003. "Actions against counties may be commenced and tried in any county in the judicial district in which said 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:" Code C. P. sec. 394. 61. Claims Presented.— The claim against a county must first be pre- sented to the Board of Supervisors: Political Code, sees. 4072, 3, 4 and 5. And the complaint must show that the claim has been first presented to the Board of Supervisors, and been by them rejected: McCann v. Sierra County, 7 Cal. 123. The right to sue a county is not limited to cases of tort, mal- feasance, etc. ; but is given in every case of account after presentation to, and rejection by, the Board of Supervisors. The complaint must aver such presentment: Price v. The County of Sacramento, 6 Cal. 254. 62. Complaints. — 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 oases wherein the people of the State were plaintiffs, to the amount of thirty-two hundred dollars, and that de- fendant thereby became and is liable to pay the said sum, does not state facts sufficient to constitute a cause of action against said county: Miner v. Solano County, 26 Cal. 115. A complaint in an action against a county for damages sustained by the location of a public highway 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 to an agreement with the Board of Supervisors as to the amount of damages sustained, and could not agree with the board as to such amount: Lincoln v. Colusa County, 28 Cal. 662. 63. County as Plaintiff. — A suit brought for or against a county shall be by or in the name of such county: Political Code, sec. 4002; Smith v. Myers, 15 Cal. 33; Placer Co. v. Asiin, 8 Cal. 305. So held in an action on a re- cognizance: Mendocino Go. v. Lamar, 30 Id. 627. So, also, in an action for the recovery of money from a defaulting treasurer: Mendocino Co. v. 3f orris, 32 Cal. 145. Or to recover money belonging to the General County Fund: Solano Co. v. Nevill, 27 Cal. 468; Sliarp v. Contra Costa Co., 34 Cal. 284. So, an action may be maintained in the name of the county, upon a note pay- CORPORATIONS. 223 able to the county, to the use of tht State School Fund: Barry County v. McGlothlin, 19 Mo. 307. A county is a corporation, and is the proper party plaintiff to object to a contract made by the Board of Supervisors for building a jail: Smith v. Myers, 15 Gal. 33; see Political Code, sees. 4000 to 4003. 64. County as Defendant.— That counties may be made defendants, see Price T. Sacramento Co., 6 Gal. 254; People v. Supervisors, 28 Id. 431; Waite V. Ortnsby Co., 1 Nev. 370. Proceedings by mandamus against county offi- cers are properly brought in the name of the county: Calaveras Co. v. Brock- way, 30 Gal. 325. A proceeding to compel the supervisors to exercise their discretion in auditing a claim against the county, should not be against the supervisors individually: People v. Supervisors of Cortland, 24 How. Pr. 119. In New York, in actions against counties, suit should be brought against su- pervisors: Wild V. Super, of Columbia Co., 9 How. Pr. 315. 65. Medical Care of Sick. — A complaint 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: Johnson v. Santa Clara Co., 28 Gal. 545. 66. Medical Servlcea.— When in an action against a corporation for the value of medical services rendered its employees, the petition did not allege any promise by the defendant, or any fact by which the law would imply a promise, it was held defective. An allegation 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 defend- ant: Wells v. Pacific Railroad, 35 Mo. 164. 67. Superviaora, Liabilities of.— Boards of Supervisors cannot be sued in their official character, in ordinary common law actions, for claims against the public, county, or village, v^ithout express statutory provision : Bastings v. City and County of San Francisco, 18 Gal. 49. Where the Board of Super- visors consists of three members, at least two must be joined as defendants in an action to enjoin them: Trinity Co. v. McCammon, 25 Gal. 119. 68. Under Ne^v Charter. — 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 incor- poration ia liable for the debts of the old: Lyle v. Common Council of Alex- andria, 1 Granch. 473; see, further, Clearwater v. Meredith, 1 Wall. U. S. 25. No. 49. ix. Against the Trustees of a Dissolved Corporation, for an Accounting. [Title.] The plaintiff, on behalf of himself, as well as of all other creditors of the Company who may come in and contribute to the expenses of this action, complains and alleges: I. That the Company was incorporated on the day of , 187 . , under the "Act" [title of 224 COKPOEATIONS. act] passed , 187., and the acts amending the same. II. [State cause of action.] III. That on the day of , 187 . , the said corporation was dissolved by the judgment of the court on that day duly giyen and made in a certain proceed- ing in said court then pending, wherein the people of the State of California, upon information of the Attorney-Gen- eral 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 pre- ceding the date of the dissolution of said corporation, the (trustees, directors, or managers, etc., according to the fact) of said corporation, and upon its said dissolution be- came 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 in- terest from the day of , 187 . , and costs, out of the funds in possession of the defendants, or which they may collect. 3. That the defendants, without delay, proceed to the discharge of the trusts devolved upon them in the premises. 69. Dissolution by Surrender.— In "Angel & Ames on Corporations " (se^. 772), after announcing that some doubt lias existed in England touch- ing the power of a municipal corporation to surrender its corporate exist- ence, the author concludes that " by far the better opinion is, that where the surrender is duly made and accepted, it is effectual to dissolve a municipal body. In this country the power of a private corporation to dissolve itself by its own assent seems to be assumed by all judges upon the point." The authorities quoted in support are: IlampsMre-v. Franklin, 16 Mass. 86; Mc- Laren V. Pennington, 1 Paige, 107; Enfidd Toll Bridge Go. v. Gonneciimi Rail- road Co., '7 Conn. 45; Sloe v. Blum, 19 John, 456; Canal Co. v. Railroad Co. 4 Gill & J. 1; Trustees, eta. v. ZanesvUle G. and M. Co., 9 Ohio, 203; Penob- scot Boom Go. V. Sampaon, 16 Maine, 224; Mumma v. Potomac Co., 8 Pet, 281; The People of the State of California t. President and Trustees of the Gol lege of California, 38 Cal. 166. COKPOEATIONS. 225 70. lasufEoient Averment. — A complaint against a trustee of a mon- eyed corporation is bad, if it shows that the wrongful acts of the defendant were comuiitted before the corporation incurred any obligation to the- plaint- iff: Ogden v. Rollo, 13 Abb. Pr. 300. 71. Liability of Trustees or Receivers. — Trustees or receivers shall be jointly and severally responsible to the creditors and stockholders, to the extent of its property and effects in their hands: Civil Code, sec. 400. 72. Surrender of Corporate Powers. — Chancellor Kent says: "The better opinion seems to be that a corporation aggregate 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 :' ' 2 Kent's Com. 311; The People of the State of California v. President and Trustees of the College of California, 38 Cal. 16(j; Sullivan v. Triunfo M. Co., 39 Id. 459. 73. Surrender by Trustees.— That the trustees have the power to sur- render 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 property, there being no stockholders or creditors, the personal prop erty of the corporation would vest in the State: 2 Kent. Com. 386; Angel & Ames on Corp. sec. 195 ; People v. President and Trustees of the College of Cali- fornia, 38 Cal. 166. 74. Trustees, Appointment of. — Upon the dissolution of a corporation, unless other persons are appointed by the Legislature or by a court of com- petent authority, the directors or managers of the corporation shall be trustees of the creditors and stockholders: Civil Code, sec. 400. 75. Trustees, Power of. — Such trustees or receivers may sue and re- cover 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: Banlc of Niagaras. Johnson, 8 'WenA. 64:5. So when a receiver is appointed and the assets are assigned to him, even if the corporation is still in being: Bank of Lyons v. Demmon, Hill & D. Supp. 398. No. 50. X. Against Director of Insurance Company— Orounds of Unlawful Dividends and Transfers of Assets. [TiTLI!.] The plaintiff complains, and alleges: I. That from the day of , 186., to the day of , 187 . , the Company was a corporation existing by virtue of the laws of this State, and authorized 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 "Central America;" both of which vessels be- 15 226 COEPOBATIONS. came 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 corporation, at which defendant was present, during the time aforesaid, the defendant with the other trustees made dividends to the stockholders 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 from the business of said corporation. IV. That at a meeting of the board of trustees of said corporation, 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 dollars, as aforesaid, and the defendant then was a trustee of said company. That in consequence of the wrongful acts and violations of law by the defendant, with the other directors of said corporation hereinbefore men- tioned, 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 insolv- ent; that plaintiff has sustained loss by reason thereof in the sum of dollars. \_Demand of Judgment.} Jfo. 51. Against directors of an incorporated company for maJcing un- lawful dividends, and distribution of stock, adapted to section 309 of the Civil Code of California. Naming the defendants as individuals, not as directors. [Title.] The plaintiff complains, and alleges : I. That on the day of , 18 , . , and from that CORPORATIONS. 227 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 cor- porate name. II. That on the day of , 18 . . , said Company made and delivered to the plaintiff its promissory 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 plaintiff thereon the said sum of $ , and interest 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 said corporation on the .... day of , 18. ., and while the said corporation was so indebted to the plaintiff, made and declared a dividend to the stockholders thereof of $ per share, amounting in all to the sum of I , and afterwards paid the divi- dend aforesaid 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 di- rectors of said corporation divided among, and paid to 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 B. 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 payment of said capital stock as aforesaid. VI. That said corporation was, on the .... day of , 18 .., dissolved. [State how.] [Demand of Judgment.'] 76. Essential Averment. — It should appear that the plaintiff was a cretlitor of the corporation at the time the wrongful acts and violation of law complained of are alleged to have been done or committed : Ogden v. Hollo, 13 Abb. Pr. 300. 77. Grounds of Action, — The complaint may set forth several grounds, on either of which the defendants would be liable : Durard v. Gardner, 10 Abb. Pr. 445; S. C. 19 How. Pr. 94. The statutes of the several States differ so much in regard to the acts which make directors or trustees of corporations individually liable to stockholders or creditors, and the grounds under each statute are so numerous, that we can only give the foregoing as suggestions 228 COEPOKATIONS. to the pleader, -who will, in all cases, be required to examine with great eare the statute under which he ia pleading. 78. Statute. — But when two diflFerent statutes seTerally authorize an ac- tion upon a certain state of facts, the arising of such state of facts consti- tutes but one cause of action; and a plaintiff must elect which statute he will proceed under; and cannot complain upon the same facts in two counts, one under each statute: Sipperly v. Troy and Boston B. E. Co., 9 How. Pr. 83. iVo. 5S. xi. Individual Creditor against Individual Stockholder. [Title.] The plaintiff complains and alleges: I. That the Company is now, and since the day of , 187 . , has been a corporation existing under and by virtue of the laws of this State, for the purpose of mining for silver and other precious metals, and that the principal place of business of the said corpora- tion is, and since the said .... day of , 187 . , has been in the city and county of San Francisco, and State of California. II. That the capital stock of said corpora- tion is, and since the said .... day of , 187 . , has been limited to shares, of the par value of dollars per share; making a total capital of dollars. III. That the whole of said capital stock of said corpora- tion 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 , 187 . ; and that the full amount thereof has been paid into said corporation by said stockholders, and that all amounts paid in by said stock- holders have 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 ou the .... day of , 187 . , the said corporation gave its promissory note to one A. B. for the sum of dollars, payable in gold coin, with in- terest at .... per cent, per month, a copy of which is hereto annexed, marked "Exhibit A." V. That said note was afterwards indorsed to the plaintiff by the said A. B. VI. That ou the day of , 187 . , at C0RP0EATI0N3. 229 , 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 corporation, at its special instance and request, and delivered the same to the plaintiff. VII. That on the .... day of , at , the defendant made its certain other acceptance in writing for the sum of dollars, payable to the plaintiff in gold coin, with interest at the rate of .... per cent, per month, from date, payable in gold coin, for supplies and money then and there furnished by the plaintiff to said corporation, at its special instance and request. VIII. That on or aboat the . . day of , in the District Court of the Judicial District, County of , in this State, the plaintiff commenced an action against the said corporation, for the sum of dollars, principal and interest due upon said note and acceptances, and for costs and damages, all in gold coin. IX. That afterwards, on the .... day of , 187., 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 , 187., judgment was rendered in the said action against the said company, 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 , 187., 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 , 187., 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 , 187 . , 230 COEPOEATIONS. 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 incurred by said cor- poration, and the said note given and acceptances made, the defendant was a stockholder 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 corporation is dollars. XY. That the proportion of said indebtedness, for which defendant 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, per month, and payable in gold coin, on dollars of the above amount sued for, and in- terest 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, still defendant has failed, neglected and refused to pay the same, or any part thereof. Wherefore, plaintiff demands judgment against the de- fendant 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 dollars, at the rate of .... per cent, per month, in United States gold coin, and for costs of suit. [Exhibil "A," annexed.'] 79. Action, Joint or Several, — A joint or several action may be brought against stockholders of a corporation for corporate debts: Larrabbee v. Bald- win, 35 Gal. 156, In an action of debt against a stockholder, a general iii- dehUus count before the Code was sufficient, alleging that the company was indebted, etc., for, etc., and payment had been refused, although the debt of the company arose under a special contract : Simonson v. Spencer, ISWend. 548; Civil Code, sec. 322. 80. Discharge of Liability.— Each stockholder of a corporation formed under the act of 1853, is liable for his proportion of corporate debts, and any one creditor whose debt is sufficient, may collect of him the entire amount of his liability oil all the corporate debts, leaving him to seek contribution out of his coatockholders. Wlien such stockholder has paid to any one or more creditors the amount of his entire liability, his liability ceases: Larrabbee v. Saldmn, 35 Cal. 156. CORPORATIONS. 231 81. Enforcing Personal Liability.— An action to enforce the personal liability of stockholders is in many cases to be cousidered as founded on that vestige of the relation of partnership between the members of the company which the charter or general act failed to remove: Corning v. McOuIlough, 1 N. Y. 47: Conant v. VanScluiick, 24 Barb. 87; Bailey v. Banker, 3 Hill, 188. 82. Form. — For a form of complaint against stockholders of a corpora- tion, see lierlcimer Co. Bk. y. Furman, 17 Barb. 116; and Witlierhead v. Allen, 28 Id. 661. 83. Individual and Perscnal Liability.— Each stockholder shall be in- dividually and personally liable for his proportion of all the debts and lia- bilities of the company contracted or incurred during the time that he was a stockholder. Civil Code, sec. 322; French v. Tesehmaker, 24 Cal. 543; Mok. Hill Canal Co. v. Woodbury, 14 Cal. 265. The act of the Legislature making each stockholder liable for the debts of the corporation, corresponds with the requirements of the Constitution, Art. iv. sec. 36: Larrabbee v. Baldwin, 35 Cal. 166. 84. Insolvency. — It is not necessary to aver that the corporation was in- solvent: Perlcins v. Church, 31 liarb. 84. 85. Judgment. — The plaintiff must prove not only a judgment and exe- cution unsatisfied, but also that the judgment was upon a debt for which the corporators were individuall.y liable; Gonant v. Van Sohaick, 24 Barb. 87. It is otherwise in California. See Civil Code, see. 322; see, also. Prince v. Lynch, 38 Cal. 528. As to whether a stockholder is liable for the cost of the judgment against the company; Bailey v. Banker, 3 Hill, 188; Andrews v. Murray, 9 Abb. Pr. 8. 86. Judgment not a Contract. — Though a stockholder is individually liable for debts contracted while he was a stockholder, yet a judgment re- covered against the corporation while he is a stockholder, upon a contract entered into before he became such stockholder, is not a contract within the meaning of the act rendering such stockholder liable: Larrabbee v. Baldwin, 35 Cal. 156. And proof of a judgment against a corporation does not show when the debt was contracted. Id. 87. Liability, Nature of. — The individual liability of a stockholder is a constituent element in the artificial life of the corporation, made so by the author of its creation, and that life can no more exist under the Constitution without this element than a natural person can exist without an element made indispensable to his existence by the laws of his nature: French y. Tesehmaker, 24 Cal. 545. A stockholder is primarily liable. The same identical act which casts the liability on the corporation also casts it on the stockholder: Prince v. Lynch, 38 Cal. 528. 88. Liability, hoTV Pleaded. — In an action against stockholders, the grounds on which they are individually liable must be shown: Geery v. N'.Y. and Liverpool S. S. Co., 12 Abb. Pr. 268. And in pleading the amount of a 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: Cliambers v. Lewis, 16 Abb. Pr. 433. 89. Liability Qualified. — The personal liability of stockholders is an original liability; and an action against them is upon a contract made by them in a qualified corporate capacity; but where the corporate capacity is 232 COEPOEATIONS. not thus qualified, the members or officers 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: Mrd v. Hayden, 2 Abb. Pr. N. S. 61. 90. Liability Regulated by Statute. — The Constitution leaves to the Legislature the power to regulate the liability of stockholders, and to pre- scribe the rule by which each stockholder's proportion of such debts shall be ascertained: Larrabbee \. Baldwin, 35 CaX. 155; citing French v. Teschmaker, 24 Cal. 539. The liability of a stockholder is not contingent upon a recovery against the corporation: Davidson \. Eankin, 34 Cal. 503. Such liability is primary, and is not affected by a suspension of the remedy against the cor- poration: Young v. Eosenbaum, 39 Cal. 646; Princer. Lynch, 38 Id. 528. 91. Measure of Liability, — To determine howmuch anyone stockholder is liable to pay to a corporate creditor, it is necessary to find the -whole amoxint of the indebtedness of the corporation, created while he was a stock- holder; and any one creditor whose demand is large enough, may have judgment for the stockholder's proportion of such corporate debts : Larrabbee T. Baldwin, 35 Gal. 156. 92. Uncanceled Debts. — There is nothing in the Constitution that renders a man who becomes a stockholder, personally liable, by so doing, for his proportion of all the uncanceled debts of the corporation, created before he became a stockholder : Larrabbee v. Baldwin, 35 Cal. 156. 93. Parties in Equity. — A stockholder may sue in equity for an account making (he corporation and trustees alone parties — no objection being taken that all the stockholders were not parties: Neall v. Hill, 16 Cal. 145. One stockholder cannot recover against another a debt due from the company : Bailey v. Banker, 3 Hill. 188. As between the corporation and its stock- holders, the corporate property is the fund primarily liable for the corporate debts; Prince v. Lynch, 38 Cal. 528., 94. Promissory Note.— It is unnecessary for the plaintiff to aver the facts showing for what the note was given: Cfebhard v. Eastman, 7 Minn. 56. 95. Statute Liability. — In an action against stockholders of a corpora- tion, to charge them with a statute liability for a debt of the corporation, the complaint must show that the defendants were such stockholders at the time at which the debt was contracted: Toung v. N. Y. and Liverpool U. S. Mail S. S. Co., 15 Abb. Pr. 69; see, also, Larrabbee v. Baldwin, 35 Cal. 155. It is not necessary to aver that the corporation was insolvent: Perkins v. Church; 31 Barb. 84; 34 Cal. 503. 96. Stockholders, Who are. — One who never accepts, but refuses to accept any stock in a corporation, is not a stockholder, even though the secretary enters his name in the books as such, and the stock-book of the corporation is not admissible in evidence in an action by a creditor of the corporation against one claimed to be a stockholder, for the purpose of prov- ing that he is such stockholder: Mudgett v. Horrell, 33 Cal. 25. A stock- holder in a corporation is a party: 28 Barb. 503. 97. That Defendant was a Stockholder. — The complaint must show that defendant was a stockholder at the time the debt was contracted: Young v. N. Y. and Liverpool Sieamship Co., 15 Abb. Pr. 69. And an aver- ment to this effect in the words of the charter is suf6.oieut: Freeland v. Mc- Cullough, 1 Den. 414. COEPOEATIONS. 233 98. Transfer of Stock.— Transfers of stock whioli have not been en- tered on the books of the company are valid as against all the world, except subsequent purchasers in good faith without notice: Weston v. Bear R. and Aub. Wat. and Min. Co., 5 Cal. 186; S. 0. 6 Id. 425; and Naglee v. Facifio WliarfCo., 20 Cal. 529; construing Stat, of Cal. 1853, p. 87; Peoples. Ml- more, 35 Cal. 653. JVo. S3. xii. The Same; Shorter Form. [TiTLE.l The plaintiff complains, and alleges: I. That at the times hereafter 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 , 187 ., and the acts amending the same, and supplementary thereto. II. That on the .... day of , 187 . , 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 , 187 . , in an action in the District Court of the Judicial District, for the County of , to recover the same from said com- pany, judgment was rendered by said court against said company, in favor of the plaintiff for dollars, be- ing dollars, the amount due thereon, with interest, amounting to dollars, 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 defend- ant was a stockholder of said company, holding stock there- in to the amount of ....;... dollars, being shares of the par value of dollars each ; and that he still is such stockholder therein. [Demand of Judgment.] [Exhibit "A" Annexed.] 99. In California it is not necessary to obtain judgment against the corporation before bringing suit against a stockholder. And if the promissory note was given for a pre-existing debt, it will be necessary to prove that the de- fendant was a stockholder at the time the original liability accrued. See authorities cited in preceding paragraphs. 234 EXECUTORS, ADMINISTRATORS AND TRUSTEES. CHAPTER IV. EXECUTORS, ADMINISTRATORS AND TRUSTEES. No. 54. i. By an Executor. [State and County.] [Coukt.] 1 A. B., Executor of the will of C. D. deceased, Plaintifif, against John Doe, Defendant. The plaintiif, as sucli executor, complains, and alleges: I. [State cause of action.] II. That the said C. D. in his lifetime made and pub- lished his last will, whereby he appointed the plaintiff executor thereof. III. That on the day of , 187.., at , the said C. D. died. lY. That on the day of , 187., at , said will was proved and admitted to probate, in the Probate Court in the County of , in this State. V. That thereupon on the day of , 187 . , letters testamentary were issued on the said will to the plaintiff, by the Probate Judge of said County. VI. That thereupon the plaintiff duly qualified and en- tered upon the discharge of his duties as executor, and that said letters testamentary have not been revoked. [Demand of Judgmenl.'\ 1. Action, hoTW Brought. — As to when an action by an executor should be brought in a representative, and when in an individual capacity, see Lyon V. Marshall, 11 Barb. 241; Merrill v. Seaman, 6 N. T. (2 Seld.) 168; Mowry V. Adams, 14 Mass. 327; Talmadge v. Capel, 16 Id. 73; Biddle v. Wilkins, 1 Pet. 692. 2. Appoiutmeut. — A complaint averring that the plaintiff has been duly appointed and qualified by the Surrogate of New York to act as the " sole executor of A. B., deceased," is not sufficient in an action to recover a demand due to the estate of the plaintiff's testator: Forrest v. Mayor of N.Y., 13 Abb. Pr. 350. A will contained these words: " I leave the sum of one sovereign each to the executor and witness of my will, for their trouble in seeing that everything is justly divided," but did not name any executor. Beneath the signature of the testator, and opposite the names of the attesting witnesses, were the words, " executors and witnesses:" i?eW, that there was no ap- pointment of executors. Woods' Law Kep. 1 P. and D. 556. 3. Appointment, how Alleged.— The allegation that plaintiff was EXECUTORS, ADMINISTEATOBS AND TRUSTEES. 235 " dnly appointed," was held to be not insufficient, but indefinite, in Cheney t. Fisk, 22 How. Pr. 238; People v. Walker, 23 Barb. 305; see, also, 23 Id. 143; People V. Ryder, 2 Kern. 433. The time and mode of appointment were held essentialiu Daj/ion V. Connali, 18 How. Pr. 326; Sheldon y. Hoy, 11 How. Pr. E. 11; Foirest v. Mayor, 13 Abb. Pr. 350; Barfield v. Price, 40 Cal. 535. 4. As Executor.— 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: Henschall v. RoheHs, 5 East. 151, 154. The same rule has been settled in the Court of Appeals. Compare Merr'd v. Seaman, 6 N. Y. (2 Seld.) 168, with Smiih V. Zevinus, 8 N. Y. (4 Seld.) 474; and see, also, Gould v. Glass, 19 Barb. 185; Sheldon v. Eoy, 11 How. Pr. 14; Ogdensburgh Bank v. Van Rens- selaer, 6 Hill, 241. If the plaintiff's character is thus stated in the title, it is not necessary to repeat it, but he may afterwards be called "the plaintiff." See Stanley v. Chappell, 8 Cow. 235. 5. Authority to Sue.— An executor or administrator may bring suit without special authorization of the Probate Court: Salleck v. Mixer, 16 Cal. 579, at any time before a decree ot distribution is made by the Probate Court: Curtis v. Suiter, 15 Cal. 259; Teschemacher v. Thompson, 18 Cal. 20. As all property, real and personal, goes into the hands of the administrator, he is a necessary party to all suits affecting it: Harmood v. Marye, 19 Cal. 87. See, also, sees. 1581 to 1591, Code, C. P. 6. Essential Averments. — The complaint should state : 1, The death of testator; 2. His leaving a last will and testament; 3. The appointment therein of the plaintiffs as executors; 4. The probate of the will; 5. The is- suance of letters testamentary thereon to the plaintiffs: Thomas v. Cameron, 16 Wend. 579, and their qualification an'd entry upon the discharge of their duties as executors: MalleckY. Mixer, 16 Cal. 574: Barfield v. Price, 40 Cal. 535. 7. By ■whom Appointed. — Executors and administrators can sue and be sued as such only in the state in which they are appointed; therefore the averment by whom letters were granted is essential: Morrell v. Dickey, 1 Johns. Ch. K. 156; Williams v. Storrs, 6 Id. 353; Vroom v. De Horn, 10 Paige, 550; Vermilyea v. Beatty, 6 Barb. 429: Warren v. Eddy, 13 Id. 23; Gulick V. Gulick, 21 How. Pr. 22; Robins v. Wells, 26 Id. 15. It would ap- pear that in New York a foreign executor may foreclose a mortgage in that State, without taking out letters there: Averell v. Taylor, 5 How. Pr. 476. 8. Jurisdiction to Appoint. — The Surrogate's (Probate Court) juris- diction is all that need be shown: Emery v. Hildreth, 2 Gray, 228; Bloom v. Burdick, 1 Hill, 134. And this is sufficiently pleaded by the use of the word " duly." The executor's authority to sue depends solely upon the letters testamentary: Thomas v. Cameron, 16 Wend. 580. 9. Parties. The executor, administrator, or trustee may sue without joining the party beneficially interested: Code C. P., sec. 369. So, in ejectment: 18 Cal. 11. Or in foreclosure of mortgage: Burton v. Lies, 21 Cal. 87. So, also, in actions generally. See Parties, ch. 4. 10. Profett of Letters. Eepresentative capacity of the executor or ad- ministrator should be averred: and it is not necessary to make profert of 236 EXECUTORS, ADMINISTRATORS AND TRUSTEES. letters testamentary or of administratiou : Bright -7. Currie, 5 Sand. i33; Wells V. Webster. 9 How. Pr. 251. 11. Promise . Promises made to the testator should not be stated as made to "the plaintiff:" Warden v. Worthington, 2 Barb. 370; Christopher v. Stock- holm, 5 Wend. 36. 12. Proof of Will. — A bill alleging that there was an instrument pur- porting to be the last will and testament of M., deceased, duly executed and attested; that it was admitted to probate as such will; that letters testa- mentary were issued, and that the executors took upon themselves the exe- cution of the instrument, sufficiently shows that the instrument was a will, and had been so adjudged by the Surrogate's Court: Mason\. Jones, 13 Barb. 461. 13. Qualifications. — Before receiving letters testamentary or of ad- ministration, the executor or administrator shall give bonds, etc., unless otherwise expressly provided in the will: Code C. P. 1387-1405. 14. Representative Character. — lu New Tork, a, complaint which de- scribes plaintiff as an executor, and states the cause of action as an indebted- ness due tu the plaintiff as 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 character : Scraniom v. Farmers' and Mechanics' Bank, 33 Barb. 527. 15. Rights and Liabilities. — The executor has constructive possession of decedent's goods from the time of his death. An executor may declare on his own possession, "as executor," though in fact he never has had possession: 2 Saund. 47; 10 East, 293; 2 Taunt. 116. 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 the personal property ; and his duties and liabilities in respect thereto are, therefore, of the same general character: Walls V. Walker, 37 Cal. 424. 16. Use and Occupation. — If the administrator occupies and uses premises belonging to an estate, he becomes 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 in- terest; such is the law of his relation. It in this case the administrator sus- tains a loss, the loss is his; and the hardship is no greater than a like result in the case of any other tenant: Walls v. Walker, supra. No. 55. ii. By an Administrator. [Title.] The plaintiff, as such administrator, complains, and alleges : I. [State a cause of action accruing to the intestate.] II. That on the day of , 187.., at , the said A. B. died intestate. III. That on the day of ,187., letters of administration upon the estate of the said A. B. were issued EXECUTORS, ADMINISTRATORS AND TRUSTEES. 237 by the Probate Court of the County of , in this State, to the plaintiff. IV. That the plaintiff thereupon duly qualified as such administrator, and entered upon the discharge of the duties of his said office. IDemand of Judgment,'] 17. Administrators, Special snd General.— By the Statute of California 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 ne-w one ap- pointed, 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 proceed- ings, and, so far as he is able, must make a similar showing: Haynes v. Meeks, 20 Cal. 288. Administrators in law are deemed but as one person, and the act of any one of two or more co-administrators, in a matter within the sphere of his authority as administrator, is the act of all: Willis v. Farley, 24 Cal. 490. 18. Allegations Essential. — The date, place, and power of appointment must be averred, issuably: Beaoh v. King, 17 Wend. 197; Cfilleii v. FairchUd, 4 Denio, 80; White v. Joy, 3 Kern. 80; Forrest v. Mayor of N. T., 13 Abb. Pr. 3.50. If this is not done, the complaint is bad on demurrer on that ground: Sheldon v. Hoy, 11 How. Pr. 11, But otherwise, if the cause of action is one on which he may sue in his own right: Bright v. Gurrie,5 Sandf. 433. For a form of averment alleging appointment, see Beach v. King, 17 Wend. 197; Gillett v. FairchUd, 4 Den. 80. Section 161, N. Y. Probate Code, and section 1365, Cal. Code C. P., are applicable to the decision of the Surro- gate (Probate Court), in the appointment of an administrator: Anderson v. Potter, 5 Cal. 63; Wheeler v. Dakin, 12 How. Pr. 537. 19. Appointment after Resignation. — In an action brought by an ad- ministrator, who has been appointed after the resignation of a former admin- istrator, 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 appdinted administrator, and qualified, and that letters were issued to him: Lucas v. Todd, 28 Cal. 182. 20. Capacity to Sue . — The capacity of the plaintiff to sue is indepen- dent of the cause of action : Bk. of Lowville v. Edwards, 11 How. Pr. 216 ; Johnson V. Kemp, 11 Id. 186; Bk. of Haoana y.Wickham, 16 Id. 97. 21. Cause of Action. — A petition stating the character in which the plaintiff sued, the indebtedness to the intestate, and the prayer for judgment as administratrix, is a sufficient statement of a cause of action and right to sue: Duncan v. Duncan, 19 Mo. 368. But see paragraphs 3, 5 and 6, ante. 22. Form of Complaint. — For a complaint by an administrator, with the will annexed of a deceased judgment-creditor who was resident of a foreign state, see Wheeler v. Dakin, 12 How. Pr. 537. 23. Indebtedness. — A complaint by an administrator must state an in- debtedness to the intestate, and must refer to the plaintiff in his represen- tative capacity: Christopher y. Stockholm, 5 Wend. 36. 238 EXECUTOES, ADMINISTEATOES AND TRUSTEES. 24. lusui&cient Averment. — A complaint commencing " A. B., Admin- istrator of the goods, etc., of deceased, plaintiff in this action," and containing no other statement of the fact of the plaintiff's appointment as administrator, does not allege that he is administrator, or show (hat he prosecutes in that capacity: Merritt v. Seaman, 6 N. Y. 1C8; Sheldon v. Hoy, 11 How. Pr. 11; Christopher v. Stockholm, 5 Wend. 36; Warden v. Worlhing- ion, 2 Barb. 368. 25. Issuance, Averment of — An averment that letters testamentary, on etc., and not before, were issued to, etc., is sufficient to import that no other or prior letters had been issued: Benjamin v. DeGrotl, 1 Den. 151. 26. Maine. — The plaintiff may maintain a suit in the Circuit Court, as a citizen of Maine, in his character of administrator, if he has taken out let- ters in New Hampshire: Carter v. Treadtoell, 3 Story, C. Ct. 25. 27. Minority of Executor. — Where suit is brought by an administrator during the minority of the executor, his powers are determined when the executor attains full age, and the fact that he has not attained full age must be averred in the complaint: Teuton v. Lynn, 5 Pet. 223. 28. Missouri. — An administrator may sue under the act to simplify pro- ceedings at law: Mo. Kev. Stat. 1825, p. 620; Sailey v. Ormshy, 3 Mo. 580. But to do so he must set out his right to sue as administrator. — MoGill v. Le Sue, 3 Mo. 398. 29. Ne-w Premise. — Whether an executor or administrator can, by a new promise, revive a debt once barred by the Statute of Limitations, depends upon the special statutes of the different States. Where there is no limita- tion upon the power of the executor or administrator imposed by statute, it has been held that a new promise would avoid the statute : See Executors of Niemcewicz v. Bartlttt, 13 Ohio, 271; Brown et al. v. Anderson, Adin., etc., 13 Mass. 201. In some cases, as in Wilson's Admr. v. Wilson, 1 MoMuUan's Eq. K. (South Carolina), 329, it is held that before the bar of the statute is com- plete, the administrator may revive the debt by an acknowledgment or prom- ise. In another case in that State {Fearce v. Exrs. of Zimmerman, Harper's S. C. Kep. 355), 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 it was not barred at the death of the testator. Upon this subject generally consult: Dawes v. Shed, 15 Mass. 6, and note, p. 8; Thompson v. Brown, 16 Id. 171; Ross v. Boss, 6 Hun. 80. In California the allowance of a claim against an estate after it is barred by the statute, is prohibited: Code of C. P., see. U99. 30. Proceedings on Appointment.— 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 of an administrator. The appointment is infieri until appointee has qualified and received his letters: Estate of Hamilton, 34 Cal. 464. 31. Public Administration.— In a suit by the public administrator, the declaration must aver distinctly the decedent's intestacy; and the allegation is equally proper in other cases: Ketchum v. Morrell, 2 N. Y. Leg. Obs. 58. 32. Washington Territory.— In Washington Territory, the complaint must show jurisdiction and a good cause of action: Tolmie v. Dean, Wash. T. 60. EXECUTOES, ADMINISTBATORS AND TRUSTEES. 239 No. 56. iii. Commencement of Complaint by Executor or Administrator Suing in his own Eight. [Title.] The plaiiiti£f complains, as administrator of the estate [or executor of the will] of A. B., deceased, and alleges: I. [State cause of action.] ![ Demand of Judgment. '\ 33. In his O'wn Name. — One in the possession of personal property as administrator, can bring an action in his own name against a wrong-doer, for its wrongful conversion, without setting forth in the complaint his offi- cial and representative capacity. An allegation in the complaint, that the plaintiff sues as administrator, is surplusage. Munch v. Williamson, 24 Cal. 167. No. 67. iv. Against an Administrator, [State and County.] [Cottet.] A. B., Plaintiff, against I C. D., Administrator of the estate i of E. jp., deceased. Defendant. ' The plaintiff complains, and alleges: I. [State a cause of action against the intestate.] II. That thereafter [or on the .... day of , 18 . . ,"] the said E. F. died intestate. III. That on the day of , at , an order of the Probate Court of the County of , State of California, was made, appointing the defendant adminis- trator of the said estate, and that he is now such adminis- trator. IV. That on the ... . day of , 187., at , the claim hereinbefore set forth, verified by the oath of the claimant, and upon which this action is founded, was duly presented in writing by the plaintiff to the defendant, as such administrator, for allowance. And that the same was by him, as such executor, rejected, on the .... day of , 187.. \_Demandof Judgment.'] 34. Adminiatrator ■with Will AnueKed. — If the testator 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 California, 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: EXdwell v. Brummagin, 32 Cal. 436. 240 EXECUTOES, ADMINISTEATOKS AND TKUSTEES. 35. Capacity. — A complaint against executors seeking to charge them in their representative capacity, cannot be sustained on demurrer, if the facts alleged show only a personal liability on their part: Sartlett v. Hatch, 17 Abb. Pr. 461. 36. Claims.— The words " claimant " and " claim " are synonymous with the words "creditor " and "demand;" Gray v. Palmer, 9 Cal. 616. And the term "claims, " as used in the act to regulate the estates of deceased per- sons in California, is broad enough to include! a mortgage: Ellis v. Pol- hemus, 27 Cal. 350; commenting on and questioning a contrary decision in Fallon V. Butler, 21 Cal. 24. By the California Code C. P., sec. 1500, 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 the claim shall have been presented. 37. Claims, Presentment of. — In an action upon a claim against an es- tate, presentation to and rejection by the administrator must be alleged: Ellisen v. IlalhrJe, 6 Cal. 393; Falkner v. Folsom, Id. 412; Eentsch v. Porter, 10 Id. 558. The above cases overruled in i^'aZtod v. Butler, 21 Cal. 24; and the latter decision doubted in Ellis v. Polhemus, 27 Cal. 354; see discussion in 6 Cal. 412; 7 Id. 124; 9 Id. 501; 24 Id. 498; Sichel v. Carrillo, 42 Id. 505. The date of rejection is essential to show that it was rejected within three months before the action thereon: Code C. P., sec. 1498; Benedict v. Hog- gin, 2 Cal. 386. 38. Claims, how Presented. — A claim against a deceased person, due to his executor or administrator, must be presented, duly authenticated, with affidavits, to the Probate Judge for allowance, within ten months, or it will be barred. Estate of Jas. A. Taylor, deceased, 16 Cal. 434; Code C. P., sec. 1510. But this rule applies only to such claims as are debts against the estate, and not to expenses incurred in the administration: Beck v. Gherke, 6 Cal. 666; the object being to prevent estates from being squandered (Id.), or wasted in unnecessary litigation: Ellison \. Halleck, 6 Cal. 386; Fallenery. Folsom's Exrs., 6 Id. 412. Other claims must be presented to the executor or administrator, and bo approved by tlie Probate Judge: Pico v. Be la Quer- ra, 18 Cal. 422; see Code C. P., sees. 1493 to 1496. 39. Claims, when Presented.— Claims may be so presented before publication of notice to creditors: Ricketson v. Bichardson, 19 Cal. 330. And if the creditor be absent, and had no actual notice of the publication, the claim may be presented at any time before the decree of distribution is en- tered: Oullerton v. Mead, 22 Cal. 96; Code C. P., sec. 1493. 40. Claims, Allowance of. — The allowance of a claim by one executor is binding upon all: Willis y. Farley, 24 Cal. 490. The allowance of claims by an administrator and the Probate Judge has the force and effect of a judg- ment. Estate of Martin E. Cook, 14 Id. 129; Beck's Estate v. Gherke, 6 Id. 666; Estate of Hidden, 23 Cal. 363; McKinney v. Bavis, 6 Mo. 501; Kenneily V. Shepley, 15 Mo. 640. But in no other sense than a judicial determination of the estate's indebtedness in the specified sum: Magramv. McGlynn, 26 Cal. 420. And fixes the obligation of the estate: Pico v. Be la Guerra, 18 Cal. 422. But the allowance of a contingent claim does not give validity to it as a judgment against the estate. Id. EXECUTOES, ADMINISTEATORS AND TEUSTEES. 241 41. Claims, Rejection of. — Where the executor neglected to indorse on the claim his allowance or rejection for more than ten days, it was held that it became a rejected claim on the expiration of the ten days: Rice v. Inskeep, 34 Cal. 225. The claimant of a rejected claim in recovering judgment thereon is entitled to interest from the time of presentment: Pico v. Stearns, 18 Cal. 377. Mortgage liens of record form no exception to the rule of claim: Ellisen v. Halleck, 6 Cal. 386. A claim of a surviving partner for advances to the partnership should not be presented till the partnership affairs are wound up: Gleason v. White, 34 Cal. 258. But a claimant of specific property need not present a claim: Ounier v. Janes, 9 Cal. 613. 42. Description of Party. — 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: Peoples. Boughtaling, 7 Cal. 350. 43. Forms of Complaint. — A declaration on a promise made by the de- fendant as administrator, must aver assets, in order to charge him personally de bonis propriis: Adams v, Whiling, 2 Cranoh, C. Ct. 132. As to sufficiency of complaint against executrix, in her own wrong, which did not charge her as such : see //arper V. TFesf, 1 Cranch, 0. Ct. 192. Or of one which did not show by whom the letters are granted: Cawood v. Nichols, 1 Cranch, C. Ct. 180. 44. Legacy. — In an action against executors for a legacy, plaintiff must aver and prove existing assets: Dewilt v. Schoonmaker, 2 Johns. 243. 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: Williams v. Price, 11 Cal. 212. 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. Id. 45. Letters Testamentary. — If letters testamentary have not been issued, the defendant is not an executor: Thomas y. Cameron, W^enA. 579. 46. Louisiana. — In Louisiana, an action was brought by a creditor of a testator, against his executor, charging him with a devastavit, without aver- ring proceedings to compel the defendant to exhibit a table of distribution, cannot Ije maintained: MaOill v. Armour, 11 How. U. S. 142. 47. Non-Presentment.— But the non-presentation of a claim against the estate of a deceased person defeats only the present right to recover: Hentsch V. Porter, 10 Cal. 560. After failure in the District Court on account of 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. Id. 48. Possession of Estate. — In an action against an administrator, where the complaint alleges that he has taken possession of the real estate of the decedent, it will be presumed that it was legal possession: Butt v. Clark, 23, Ind. 548. 49. Presentment, Effect of. — The presentment of a claim to the admin- istrator is the commencement of a suit upon it, and stops the running of the statute : Beclcett v. Selover, 7 Cal. 215. They must be presented within the 16 242 HUSBAND AND WIPE. time allowed, or they will-not constitute a charge against the estate: Fico v. Se la Querra, 18 Cal. 422. And the statute fixes the limit at ten months when the estate exceeds in value ten thousand dollars, and four months when it does not: See Code C. P., sees 1491 and 1493; and this time does not commence running until a claim becomes absolute : Oleason v. White, 34 Cal. 258. 50. Promise. — In an action against executors, plaintiff may, to save the Statute of Limitations, lay the promise as made by the representative: Whit- aker v. Whitaker, 6 Johns. 112; Carter v. Phelps, 8 Id. 440. A complaint which alleges a promise by deceased, and also a promise by his adminis- trators, though informal, is not bad on general demurrer, if it appears that defendants are charged in their representative capacity: Curtis \ . Bowrie, 2 McLean, 374. "Where the complaint did not state that the promises were made in the testator's lifetime, 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: Warden v. Worthington, 2 Barb. 368; see Merritt v. Seaman, 6 N. Y. 168. A complaint which shows only a personal liability cannot be sustained on demurrer: Bartletl v. Hatch, 17 Abb. Pr. 461. 51. 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 diverting a watercourse, etc., when the complaint imputes a tort done to the person or goods of another by the testator or intestate: 3 Williams on Executors, pp. 1728, 1729; People v. Gibbs, 9 Wend. 29; Eustace v. Jahns, 38 Cal. 3. CHAPTBE V. HUSBAND AND WIFE. No. 58. i. Against Susband for Necessaries Furnished to Defendant's Family, without his Express Bequest, at a Beasonable Price. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , he furnished to Mary Smith, the wife of defendant, at her re- quest, sundry articles of [food and clothing], to wit: II. That the same were necessary for her maintenance, and suitable to her station in life. III. That the same were reasonably worth dollars. IV. That defendant has not paid the same. r Demand of Judgment.] HUSBAND AND WrPE. 243 ^1. Husband, when Liable. — If a husband fails or refuses to proyida a support for his wife, the law authorizes her to purchase from others on the credit of her husband, whatever is necessary for her maintenance, and suit- able to her station in life : Galland v. Oalland, 38 Gal . 265. 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 : 2 Kent's Com. 148; Sylces v. JSalstead, 1 Sandf. 483; Civil Code, sec. 174. 2. Husband, ivhen not Liable, — A wife who without cause, and against her husband's will, refuses to live with him, cannot 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: Srown v. Mudgett, 40 Vt. 68; Civil Code, sec. 175. No. S9. ii. Against Busband and Wife for Goods Sold, for her Separate Estate." [Title.] The plaintiff complains, and alleges : I. That between the day of , 187 . , and the .... day of , 187 . , 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 building 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 fol- lows: [Describe 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 prop- erty, and did agree and intend that the same should be paid for out of her separate property. III. That such materials are reasonably worth the said sum of dollars, and that no part thereof has been paid. IV. The plaintiff further alleges, on information and be- lief, that the premises above mentioned and described, were, at and before the day of , 187. [date of mar- riage], 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 * This form ie applicable to New York and some other States. The foUowing, Form No. 60, is adapted to the practice in California. 244 HUSBAND AND WIFE. the payment of the said sum of dollars, with inter- est from , together with the costs of this action. 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. No. 60. iii. Against Husband and Wife for Goods Sold to the Wife for her Separate Estate. [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., 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 defendants for the said sum of dollars, and interest thereon from the .... day of , 18 . . , and costs of suit. 3. Charging Separate Estate.— A complaint under the New York prac- tice, whioli dirtctly alleges that the note was given by her for the express purpose of charging her separate estate with its payment, is sufficient on demurrer: 18 N. Y. 265; Francis v. Ross, 17 How. Pr. 561; Phillips \. Maga- dan, 12 How. Pr. 17. So, it seems a complaint seeking to charge the sepa- rate estate of the wife, is bad, if it does not set forth the property and the nature of her interest: 3 Barb. Ch. 9; 20 Wend. 570; Sexton v. Fleet, 6 Abb. Pr.8. 4. Common and Separate Property Equally Liable.— The separate property of the wife, and the common property of both husband and wife,- are equally liable for the debts of the wife contracted before marriage: Van Maren v. Johnson, 15 Cal. 313. The statute changes the common law rule on this subject: Id. In an action against the husband and wife, on a sole debt of the wife contracted by her before marriage, a judgment may be ren- dered to be collected out of the common property of both husband and wife: Vlantin v. Buvqms, 35 Cal. 214; see Civil Code, cap. 3, Husband and Wife, sees. 158, 167, and 171. 5. Consideration.— If the debt is contracted for the benefit of the wife, or of her estate, no allegation of an intent to charge it on the estate is necessary : See Tale v. Dederer, 18 N, Y. 273, 284, 285. In New York, if the consideration HUSBAND AND WIFE. 245 were not for tlie benefit of the wife or her estate, this allegation is necessary: Tale V. Dederer, 18 N. Y. 281. The agreement must be in writing: S. C, 22 N. Y. 450; but this need not be alleged in the complaint. 6. Coverture. — The fact of coverture has ceased to have any relation to the technical right of maintaining an action by a married woman in respect to her separate property, and the allegation of coverture in the complaint is not necessary: Peters v. Fowler, 41 Barb. 467. 7. Demand of Judgment. — To emon(J of Judgment.] 21. Division of Common Property. — In 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 Bights of Husband and Wife," passed April 17, 1850, must affirmatively state such facts as give her the right to the property under the Act: Dye v. Dye, 11 Cal. 163; see Johison v. Johnson, 11 Id. 200. 22. Marriage, Averment of. — Where the plaintiff averred in her com- plaint, iu a suit brought for her distiributive share of the estate of an alleged 248 HUSBAND AND WIFE. deceased husband, that the deceased made proposals of marriage to her, ■when she accepted, and consented to live with him 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: Eeld, that these were insuflacient averments of the existence of a marriage, and that the facts averred were only prima facie evidence of a marriage: Letters v. Oady, 10 Cal. 533; see People v. An- derson, 26 Id. 129. 23. IVIortgage. — It is immaterial whether a conveyance to the wife was made with or without a fraudulent intent; in either case, it is unavailing against the mortgage, because the inference from the language of the com- plaint that the conveyance 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 : Kohner v. Ashe- nauer, 17 Cal. 578. 24. Mortgage of Separate Property. — Where a wife sought relief by a bill in chancery from a mortgage of her separate property, it was no objec- tion to the bill, as a rule of pleading, that the husband was made a party to it with the wife. He acts only as her prochein ami: Bean v. Heath, 6 How. TJ. S. 228. 25. Separate Property of Wife. — The law of California 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 : Civil Code, sec. 162; Meyer v. Kinzer, 12 Cal. 251; Smith v. Smith, 12 Cal. 224. The law in this respect being similar to that of Texas and Louisiana : Hous- ton V. Civil, 8 Tex. 242; Chapman v. Allen, 15 Tex. 278; Claiborne v. Tanner, 18 Tex. 69; Dominguez v. Lee, 17 La. 290; Fisksr v. Oordy, 2 La. Ann..763; Wehh V. Peclc, 7 La. Ann. 92. A general averment that the property is the separate property of the married woman, is not bad on demurrer: Spies v. Accessory Transit Co., 5 Duer, 662; Lipman v. Petersburgh, 10 Abb. Pr. 254. 26. Services of Wife before Marriage. — The husband is properly joined with the wife in an action for service performed by her, and the ac- tion brought therefor, previous to marriage : Van Maren v. Johnson, 15 Cal. 310. 27. When Husband may Join.— When a married woman is a party, her husband must be joined with her, except in special cases: Code C. P., sec. 370. And even in these special cases, it is not obligatory on the wife to sue alone: Van Maren v. Johnson, 15 Cal. 811. 28. When She may Sue Alone. — In actions concerning her separate estate, she may sue alone, as if she were a feme sole: Code C. P., sec. 370. So in Illinois, under the Act of 1861, p. 24: See 32 111. 493. So, also, in New York, under the Code of Procedure sec. 114. Under the new Code of Procedure in New York, sec. 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: See 13 Penn. 480; 11 Peun. 275; 16 Penn. 134; 5 J. J. Marsh, 230. So, also, under the laws of Texas: 2 Tex. 378; 9 Tex. 297. A married woman may sue alone in actions against her husband: Kashaw v. Kashaw, 3 Cal. 312. 29. When She cannot Sue Alone.— The wife cannot bring suit in HUSBAND AND WIFE. 249 her own name on a contract which the law does not authorize her to make: Snyder v. Webb, 3 Cal. 83. Nor to recover the homestead: Poole y. Gerrard, 6 Cal. 71; Guiod v. Guiod, 14 Id. 506; hnt see Code C. P., sec. 370, subd. 1. Nor for damages for a personal injury: Sheldon v. Uncle Sam, 18 Cal. 526. 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 ap- pear: 2 Bla. 1236. No. 63. T. Against a Married Wormn, as Sole Trader. [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 defendant 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 business as at III. That on the day of , 187., at , the plaintiff sold and delivered to the defendant 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. [Demand of Judgment. "^ 30. Separate Property. — The letters received by a married woman from her first and second husband, before her marriage with the latter, are her separate property — like jewels— and her gift of them to her daughter is valid as against her husband: Grigsby v. Breckinridge, 2 Bush, 480. 31. Sole Trader. — A complaint, in an action to recover a debt from a married woman, which charges that she is a sole trader under the statute, is sufficient, without any averment of facts showing that the debt was contracted in the particular business which she had declared her intention to carry on. Melcher v. Kuhland, 22 Cal. 523. 32. Sole Trader, Averment of. — An averment in the complaint that the defendant, a married woman, who carried on a separate business, repre- sented at the time of making the contract, that it was for the uses of such business, is sufficient on demurrer: Coster y. Isaacs, 16 Abb. Pr. 328. If the contract was not in fact for the use of such business, it should appear by way of defense: Id. For the substance of a complaint against a married woman as sole trader, see Qoulding v. Davidson, 26 N. Y. 604; and, less fully, 25 How. Pr. 483. 250 INFANTS. No. 64. vi. T7je Same, on Contract Generally. [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 ac- quired by her as sole trader, and has ever since been her sole property. IDemand of Judgment.'] 33. Facta 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 re- lating to her separate estate, or relating to trade carried on by her for her own benefit: 21 Barb. 551; Baldwin v. Mmmel, 16 Ab. Pr. 353, CHAPTER VI. INFANTS. No. 65. i. By an Infant. [State and County.] [OotJet.] A. B., an Infant, by C. D., his Guar- dian, Plaintiff, against E. P. , Defendant. The plaintiff complains, and alleges: I. That he is under the age of twenty-one years. II. That on the day of 187 . , at , the above-named 0. D. was duly appointed by the Court of the county, State of Cali- fornia, guardian of the property and person of the plaintiff. III. [State the cause of action.] [Demand of Judgment.'] 1. Actions by or against Infants. — That an infant may appear by guardian, see Cal. Code G. P., sec. 372; N. Y. Code, 1877, sec. 469. 2. Appointment of Guardian, — Where the will appoints a guardian, there is no necessity for any letters of guardianship: Norris v. Harris, 15 Cal. 255. The court has no right to appoint a guardian ad litem, for an in- fant defendant, till the defendant is properly brought before the court: Gray INFANTS. 251 V. Palmer, 9 Cal. 616. But where Ms interests require it, the court ■will ap- point, even though the minor may hare a general guardian : Qronfier v. Puy- mlrol, 19 Cal. 629. The provisions of sees. 9 and 10 of the Cal. Civil Pr. Act (Code, 372-3), 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: Id.; approved in Fox v. Minor, 32 Cal. 119; Spear v. Ward, 20 Id. . 676. 3. Appointment must be Alleged. — Where the plaintiff is an infant suing by guardian, the com plaint shall contain an allegation of the appoint- ment of the guardian, and it should be stated in a traversable form: Hulbert T. Young, 13 How. Pr. 414; Grantman v. Thrall, 44 Barb. 173; see, also, 8 Cow. 235. Where a complaint was entitled " J. G.,by J. G. his Guardian, v. G. T.," and 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 : Held, bad on demurrer, for the reason that while it showed that the plaintiff ap- peared by guardian, it did not show that the guardian was duly appointed, so as to authorize such appearance: 8 Cow. 235; 13 How. Pr. 413; Grantman V. Thrall, 44 Barb. 173. 4. Appointment, how Alleged. — Appointment must be alleged with cer- tainty as to time, place, and power of the appointment: Stanley v. Chappel, 8 Cow. 235; Hulbert v. Young, 13 How. Pr. 413. 5. Disaffirmance of Deed. — Where an infant conveys his land, and after- wards, 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 first deed, or an action cannot be maintained: Bool v. Mix, 17 Wend. 119; DominickY. Michael, 4 Saudf . 420. His act of disaffirmance must ba averred in the pleading, and is necessary to be proved. The want of this allegation makes the complaint fatally defective: Voorhis v. Voorhis, 24 Barb. 150. See, also. Civil Code, sees. 35, 36, and 37. As to what acts will amount to affirmance, see Henry v. Boot, 33 N. Y. 526. 6. Duly Appointed. — That the appointment was made on the plaintiff's application, is implied by the averment that the guardian was " duly ap- pointed:" Polly V. Saratoga and Washington B. B. Co., 9 Barb. 449; People ex rel. Haws v. Walker, 2 Abb. Pr. 421; People ex rel. Crane v. Byder, 12 N. Y. 433. 7. Employment. — 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 em- ployment of the plaintiff was a reasonable and proper expense incurred by the guardian: Caldwell v. Young, 21 Tex. 800. 8. General Averment. — If the. allegation be deemed too general, the objection cannot be taken by demurrer. The remedy is by motion to make it more definite: Sere v. CoU, 5 Abb. Pr. 481. 9. General Guardian. — A general guardian cannot sue in his own name to recover money due the infant. Such actions must be brought in the name of the infant, by his guardian: Spear v. Ward, 20 Cal. 676; Pox v. Minor, 32 Cal. 119. In an action by an infant, a general guardian, designated in the complaint as a guardian ad litem, is of no importance, if the body of the com- plaint shows him to be a general guardian: Spear v. Ward, 20 Cal. 676. 252 INFANTS. 10. Infant Feme Covert. — Under tlie California StRtutes, the disabil- ity 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 eigh- teen, and married with the consent of their parent or guardian, of full and law- ful age: Magee v. Welsh, 18 Cal. 155. This statute is not now in force. As to disaffirmance of deed by, see 5 Ohio, 251. 11. Illinois.— In Illinois minors may bring suits in all cases whatever, by persons they may select as their next friend, who must file a bond for costs that may accrue: Scales, Treat, and Stat. 552. 12. Ohio.— In Ohio, the action must be brought by the guardian or next friend of the infant: Ohio Code, sec. 30, who is liable for all costs: Id. sec. 31. In Hulbert v. Newell, i How. Pr. 93, it was held that in a joint suit by husband of age, and wife a minor, no guardian for the wife was necessary: Cook V. Ramdon, 6 How. Pr. 233. 13. Partition. — Guardians ad litem appointed to represent 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: Waterman v. Lawrence, 19 Cal. 210. They have power to defend for the in- fant solely against the claim set up for partition of the common estate : Id. 14. Promissory Notes. — The promissory note of an infant is voidable, not void: Tmingy. Bell, 1 Cranch C. Ot. 342: Tuckers. Moreland, 10 Pet. U. S. 58. 15. 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 privilegeis confined to the heir alone : Joyce v. McAvoy, 31 Cal. 273. In Ohio it is held that in an action against an infant for the specific performance of an alleged contract with his ancestor, he is entitled to a day in court after coming of age, to show cause against the decree, and if an absolute decree be taken against him, it will be error: Ijong v. Mulford, 17 Ohio St. 485. In the same case, it was held that the right of parol demurrer, or staying pro- ceedings 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 de- murrer. 16. Trover. — Infancy is no bar to an action of trover for conversion of goods:, Vasse v. Smith, 6 Cranch, 226; Fish v. Ferris, 5 Duer, 49; Schumrnan V. Paradise, 46 How. Pr. 426. 17. Wages. — An infant, after the death of his father, cannot recover his wages for services performed in the lifetime of his father, under a contract made with the father: Roby v. Lyndall, 4 Cranch C. Ct. 351. 18. AATronga — Infancy is no defense to an action founded on fraud and falsehood of the party pleading it. Catis v. Plialen, 2 How. Pr. 376; see Cal, Civil Code, sec. 41. INSANE PERSONS. 253 CHAPTEK VII. INSANE PERSONS. No. 66. i. By Guardian of an Insane Person, or Person of Unsound Mind. [State and Couktt.] [Couet.] 0. D., an Insane Person [or Person I of unsound mindl, by A. B., his 1 Guardian^ Plaintiff, y against E. F., Defendant. The plaintiff complains, and alleges: I. [State the cause of action.] II. That on the day of , 187 . , at the county of , the probate judge of said county [or city and county], State of California, upon the petition of , and after due notice and hearing, adjudged the said 0. T>. to be an insane person [or incapable of taking care of himself and managing his property]. III. That afterward on the same day [or on the day of , 187. J, at said county [or city and county], said probate judge [or court], appointed the plaintiff guar- dian 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 0- D., as aforesaid. {_Demand of Judgment.} 1. Appointment of Guardian. — Upon petition under oath, by any rela- tive 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 : Code C. P. sec. 1764. 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: Code C. P. sec. 1769. 2. "Duly Appointed." — The word "duly," as used in the New York forms, may be omitted, as jurisdiction of the probate court will be presumed: See Bloom v. Burdick, 1 Hill, 130. As to presumption of jurisdiction, see "Jurisdiction," chap. 2. 3. Limitations. — The probate of a will shall be conclusive, if not con- tested 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; Code C. P. see. 1333. 4. Powers of Guardians. — As to powers of guardians to represent the 254 INSANE PERSONS. interests of their wards in partition, see Cal. Code C. P., sees. 794, 795; Thomas v. Hatch, 3 Sumn. 170. 5. Letters of Guardianship. — Letters of guardianship of an insane per- son Icannot be questioned in a collateral proceeding, and are admissible in evidence: Warner v. WUson, 4 Cal. 310. No. 67. ii. Against the Chiardian of an Insane Person. [State AND Countt.] [Coubt.] A. B., Plaintiff, against G. T)., Guardian of B. P., an Insane Person [or Person • of unsound mind], Defendant. The plaintiff complains, and alleges : I. [State a cause of action against the insane person.] II. That afterwards [or on the day of , 187.], the said E. F. was adjudged by the Court to be a person of unsound mind. TIT. 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 ., and that he, the defendant, accepted said appointment, and is now such guardian. Wherefore the plaintiff demands judgment for dollars, with interest from , to be paid out of the estate of the said E. F., in the hands of the defendant. 6. Custody of Lunatics, — For a history of the judicial custody of luna- tics, see Brown's Case, 1 Abb. Pr. 108; S. 0., 4. Duer, 613. 7. 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 luna'io's name: Petriev. Shoemaker, 24 Wend. 85. 8. 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 re- fuses to allow the same, he must apply to chancery by petition. He will not be permitted to sue at law except under the sanction of chancery: Matter of Seller, 3 Paige, 199; Brasher v. Van Cortlandt, 2 Johns. Ch. 242; Williams-r. Est. of Cameron, 26 Barb. 172. 9. Habitual Drunkard. — In New York, where, pending a sxiit 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 habiutal drunk- ard, and a committee is appointed of his estate, the court in which the for- mer suit is pending cannot properly proceed to final judgment: 3 Paige, 199; 4 Den. 262; 5 Paige, 489; 19 Wend. 649. The rules of comity always ob- served toward each other by courts of concurrent jurisdiction, would prevent the granting of a decree as prayed for; NUblo v. Barrison, 9 Bosw. 668. PABTNEBS. 255 10. Lunatic. — A suit in equity for the benefit of a lunatic must be brought in his own name: McEilllp v. McEillip, 8 Barb. 552; Lane v. Scher- merhorn, 1 Hill. 97; Felne v. Shoemaker, 24 "Wend. 85; Davis v. Carpenter, 12 How. Pr. 287; Re McLaughlin, Clarke's Ch. K. 113. 11. 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: Hall v. Taylor, 8 How. Pr. 428. 12. Personal Actions. — And there is no distinction between actions con- cerning his realty and those relating to his personal estate, since all actions must be brought in the name of the lunatic: Lane v. Schermerhorn, 1 Hill, 97; McKillip V. McKiUip, 8 Barb. 552. 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: Ux parte Northington, 37 Ala. 496. CHAPTEE VIII. PABTNEBS. No. 68. i. Title and Commencement of Complaint by Partners. [State and County.] ' [Coubt.] A. B. and C. D., Partners, under the firm name of " A. B. &Co.," Plaintiffs, against E. F. and G. H., Partners, under the firm name of "E.P.& Co.," Defendants. A. B. and C. D., the plaintiffs in the above-entitled ac- tion, complain of E. F. and G. H., partners under the firm name of E, E. & Co., and allege: 1. [State cause of action.] [Demand of Judgment.'\ 1. Actions bet'ween Partners. — As a general rule, no action at law can be maintained between partners pending the relation as such : Koningsburgh v. Launitz, 1 E. D. Smith, 215; although a stipulation by one, for the benefit of the others, may be enforced by them or their trustees, as against a limited partner: Robinson v. Mcintosh, 3 E. D. Smith, 221. They cannot sue one another for any of the business or undertakings of the firm : Buckley v. Car- lisle, 2 Cal. 420; Stone v. Fouse, 3 Cal. 292: Bamslead v. Empire Min. Co., 5 Id. 300; Koninghurgh v. Launitz, 1 E. D. Smith, 215; but see Robinson v. Mcintosh, 3 E. D. Smith, 221. They can only ask for a dissolution and an accounting: Id. One partner cannot sustain an action against his co-partner for the de- 256 PAETNEES. livery of personal property belonging to the co-partnership : Buckley v. Car- lisle, 2 Gal. 420. But one partner may sue his co-partner on a note: Van Ness T. Forrest, 8 Cranoh, S. C. 30. Or one partner may sue another at law for damages caused by a premature dissolution on breach of co-partnership articles: Bagky v. Smith, 6 Seld. 489. And after division of a specific fund, he may sue for his allotted portion: Crosby v. Nichols, 3 Bosw. 450; Boss v. Cornell, 45 Cal. 133. So, one partnership firm may sue another, having a mutual partner, for an ascertained balance: Cole v. Reynolds, 18 N. Y. 74; and such mutual partner may elect whether to be plaintiff or defendant in the action. 2. Authority of Partner. — In California, a partner cannot make an as- signment of the partnership property to a creditor, or in trust for creditors, nor dispose of the good-will of the 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 busi- ness of the partnership, nor confess a judgment, nor submit a partnership claim to arbitration, unless his co-partners have wholly abandoned the busi- ness to him, or are incapable of acting: Civil Code, sec. 2430. Nor can one member of a partnership bind his co-partner by a promissory note for a part- nership demand, made after the dissolution of the partnership: Curry y. White, 51 Cal. 530. See, also, Stokes v. Stevens, 40 Id. 391. 3. Arbitration. — In Vermont, it was held that a partner has not author- ity, as such, to submit partnership matters to arbitration so as to make the award binding on the firm: Martin v. Thrasher, 40 Vt. 4(i0. A partner may submit his own interest in the firm to reference, but he cannot thereby bind the other partners: Karthausy. Ferrer, 1 Pet. 222; see, also, Lyle v. Bodgers, 5 Wheat. 394. 4. For an Accounting. — The proper form of complaint for a partnership accounting, in a case similar to the following, should be one alleging that the transaction was a partnership transaction; that the credit of both parties was involved; that the joint names and credits of the two firms, the one as drawers of the bill, and the other as acceptors, were the means by which they procured the moneys by which they bought the goods; that the same were bought on joint account by them as partners in the transaction; that a large amount of the goods, and the proceeds thereof, were on hand; that the joiut indebtedness for these goods was outstanding, and should be paid out of the joint property arising out of the transaction; and that an ac- counting should be between the parties; and that an injunction be granted and a receiver appointed: Davis v. Grove, 27 How. ]?r. 70. 5. Individual Interest. — The interest of a co-partnership cannot be given in evidence on an averment of individual interest; nor an averment of co-partnership interest be supported by a special individual contract: Graves V. Boston Mar. Ins. Co., 2 Cranch, Sup. Ct. 215. 6. Joint Assumpsit. — Where suit is brought on a partnership transac- tion, the complaint stating a contract with the partner sued, evidence may be given of a joint assumpsit: Barry v. Foyles, 1 Pet. U. S. 311. 7. Judgment. — If a complaint in an action against a company by its company name states substantially the conditions mentioned in section 656 of the Practice Act [Code 0. P., sec. 388], and the sheriff returns that he has served the summons on one of the members of the company, and judg- ment by default is entered up against the company by its name, to be en- PAETNEES. 257 forced against the joint property of the members, the judgment is not void, but mrty be enforced by execution against the company property: Welch v. Mrkpatriuk, 30 Cal. 202. Such judgment is not a judgment against the per- son served with process, but against the company. Query. If there is an entire absence of any statement showing the existence of the conditions named in the section, and judgment is rendered against the company by de- fault, is the judgment void, or are the conditions matters to be pleaded in abate- ment, and if not thus pleaded, waived ? Welch v. Eirkpatrick, 30 Cal. 202. 8. Liability of Partners.— The whole of the partners are liable on a war- ranty by one of the members, on sale of firm property: Sweet v. Bradley, 2i Barb. 549. One partner is liable to third parties for injuries ocoasiontd by negligence of another: Cotter v. Bettner, 1 Bosw. 490. All are liable for the fraud of one: Oetty v. Devlin, 54 K. Y. 403. 9. Names of Partners. — A partnership consisting of several persons \ must sue or be sued by their names at length, and not in the name of the \ firm: Bentley v. Smith, 3 Caines, 170; T. E. 508. Such is the common law ' rule; but, " When two or more persons, associated in any business, transact such business under a common name, whether it comprises the names of such persons 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, j in the same manner as if all had been named defendants and had been sued / upon their joint liability:" Code C. P., sec. 388. / 10. Parties. — As to partners as plaintiffs in an action, consult "Parties," ante. As to parties defendant, see ante. 11. Partners may sue in their individual names, but may give the copart-\ nership any name they please: Crawford v. Collins, 30 How. Pr. 398; and \ must show themselves to be the persons composing the firm: McGregor v. Cleveland, 5 Wend. 475; Ord v. Portal, 3 Camp. 239, note; but see Wardell v. Finney, 1 Wend. 217! and cannot sue in the firm name : Gilman v. Cosgrove, 22 Cal. 357. 12. Partnership, what Constitutes.— Actual intention is necessary to constitute a partnership inter se. There must be a joint undertaking to share in the profit and loss. Each party must, by the agreement, in some way par- ticipate in the losses as well as the profits: 2 Kent. Com. 23-28; Hazzard v. Haezard, 1 Story, 373; Denny v. Cabot, 6 Met. 82; Muzzy v. Whitney, 10 Johns. 228; Chapion v. Boslwick, 18 Wend. 181; Smith v. Moynihan, 44 Cal. 53; Wheeler V. Farmer, 38 Id. 203. An agreement to divide the gross earn- ings does not constitute the parties to it partners: 1 Seld. 191; Story on Part., sec. 34, and oases cited in note 3; Wheeler v. Farmer, supra. A partnership may exist as to third persons, when there is no partnership as between the persons thus liable: See Ontario Bank v. Hennessey, 48 N. Y. 545; Manhattan Brass & Manuf. Co. v. Sears, 45 Id. 797; McSiea v. Matthews, 50 Id. 166. 13. Partnership Property.— The plaintiff must recover on the allega- tions in his complaint, if at all, and if the complaint fails to aver that the property was partnership property, the judgment of the court should not find that fact: Sterling v. Hanson, 1 Cal. 480. 14. Special Partner. — In California, the general partners may sue and be sued alone, in the same manner as if there were no special partners : Civil Code, sec. 2492. 17 258 PAETKEES. No. 69. ii. Against Partners— Averring Partnership. [Staie and County.] [Coitet.] John Doe, Pltiintiff, against A. B. and C. T>., Defendants. The plaintiff complains of the defendants, and alleges: I. That at the time hereafter mentioned, the defendants •were co-partners, and doing business as merchants or traders [or otherwise] at the city of , under the firm name of A. B. & Co. II. [State cause of action.] {^Demand of Judgment.'] 15. Allegation of Partnership. — The same allegation will do where the plaintiffs are partners, substituting theword " plaintiffs " for " defendants." Where the partnership is a material fact, it should be alleged : See Parties, ante. 16. Averment of Partnership. — A distinct averment of partnership be- tween the plaintiffs is only necessary when the right of action depends >ipon the partnership: Lopery. Welch, 3 Duer, 644; and see Oechsv. Cook, Id. 161. "When a joint ownership or joint contract will enable them to recover, if is no objection to their complaint that their partnership is not pleaded. For a sufficient, though informal, averment of partnership, see Anable v. Conklin 25 N. Y. 470; Anable v. Steam Engine Co., 16 Abb. Pr. 286. 17. Dormant Partner. — At common law, a dormant partner need not and ought not to be joined in a suit by the firm: 2 Esp. 468; 7 T. K. .361; 2 Taunt. 324; 1 Chitt. PI. 9; 3 Cow. 84; Clark v. Afiller, 4 Wend. 628; K T. Dry Dock Go. v. Treadwell, 19 Wend, 525. But the rule would appear to be otherwise under the Code of New York: See Seoor v. Kelier, 4 Duer, 416; and compare Belshaw v. CoUe, 1 E. D. Smith, 213. Butif adormant partner be unknown in the contract of a lease, it was held that he need not be joined as defendant: Hv/rlbut v. Post, 1 Boaw, 28. They have the right, but are not bound, to sue all under such circumstances; Browny. Birdsall, 29 Barb. 549. Where the name of a dormant jjartner was fraudulently concealed, an in- junction to restrain a levy on partnership property was set aside: Van Valen V. Eussel, 13 Barb. 590. 18. Firm Name, — Partners may be sued by their common name, whether it comprises the names of such persons or not; bat the judgment in such case shall bind only the joint property of the associates : Code C, P., sec. 388. No. 70. iii. By a Surviving Partner. [State and County.] [Coubt.] John Doe, Plaintiff, against EiOHAED KoB, Defendant. PARTNEKS. 259 The plaintiff complains, and alleges: I. That at the time hereinafter mentioned, the plaintiff and one C. D. were partners, doing business as merchants or traders [or otherwise] at the city of , under the firm name of " John Doe & Co." II. [Statement of cause of action.] III. That on the .... day of , 187., at said 0. D. died, leaving the plaintiff the sole survivor of the said firm. [Demand of Judjmen/.] 19. Cause of Action. — This form is necessary only when the cause of action accrued to the partnership. 20. Duties. — -The surviving partner is to wind up the affairs of the part- nership, and pay its debts out of the assets, if sufficient, and divide the resi- due, if any, among those entitled to it: Oleason v. While, 34 Cal. 258. And a claim of the surviving partner against the estate of the deceased partner is contingent, and does not become absolute till the partnership affairs are settled. 21. Partnership Debt. — An action at law does not lie against the per- sonal representative of the deceased partner. It must be brought against the survivor: Grant v. Shurter, 1 Wend. 148. So, when one of two joint cove- nanters dies : Gere v. Clark, 6 Hill, 350. 22. 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: 1 Johns. 36; Tomv. Ooodvioh, 2 Johns. 213. 23. Right of Possession. — A surviving partner has the exclusive right of possession, and the absolute power of disposition of the assets of the part- nership: Allen V. Hill, 16 Oal. 113; see Code C. P. sec. 1585. 24. Services. — He is not entitled to pay for his services in merely wind- ing up the affairs of the concern; Origgs v. Clark, 23 Cal. 427. 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. 25. Survivor, Liabilities of. — The survivor of a partnership may be charged on a debt of the firm, contracted before the death of the other, and without averring the partnership, death, etc. : Goelet v. McKinstry, 1 Johns. Cas. 405; compare Holmes v. X>e Camp, 1 Johns. 34. And the personal rep- resentative of a deceased partner cannot be joined with him, unless survivor be insolvent: Voorhis v. Child, 17 N. Y. 354; Moorehouse v. Ballou, 16 Barb. 289; Higgins v. Freeman, 2 Duer, 650. Where, after the death of one part- ner, on account stated between defendant and the co-partnership, admitting balance due for goods sold in the lifetime of deceased, the survivor may re- cover it on insimul computassent, without averring the death of the other part- ner: Holmes v. De Camp, 1 Johns. 34. 260 PUBLIC OFFICEES. CHAPTEE IX. PUBLIC OFFICEES. No. 71. i. By or Against Public Officers. [State and County.] [Coubt.J A. B. [Comptroller] of the State of California, Plaintiff, against CD., Defendant. The plaintiff complains, and alleges: I. That he is [Comptroller of the State of California]. II. [State the cause of action, etc. J I Demand of Judgment.'] 1. 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, see Sas v. Steele, 3 Wash. 0. Ct. 381. 2. 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 that the acts complained of were committed by his deputy : Poin.teti v. Taylor, 6 Cal. 78; Curtiss v. Fay, 37 Barb. 64. The act of the deputy should be alleged as that of the sheriff; People v. Ten Eyck, 13 Wend. 448; Hirsch v. Band, 39 Cal. 318; Campbell v. Phelps, 17 Mass. 246. 3. Official Character must be Averred. — The official character must be averred in the body of the complaint: Compare Cfould v. Glass,19 Barb. 185, with Smith v. Levinus, 8 N. Y. 472; Ogdensburgh BTc. v. Van Bensselaer, 6 Hill, 240; Delafield v. Kinney, 24 Wend. 345; Fowler v. Wesiervell, 17 Abb. Pr. 59; 40 Barb. 374. A very short averment, if clear in its terms, is suffi- cient: Smith v. Levinus, 4 Seld. 472; Root v. Price, 22 How. Pr. 372; Hallett V. narrower, 33 Barb. 537. Though a special authority must be averred with fullness sufficient to make it clearly apparent: Id. But a sheriff suing as such need not state in his complaint how he acquired his office. It is enough to show that he is sheriff in fact: Kelly v. Breusing, 33 Barb. 123; affirming S. C, 32 Id. 601. 4. 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: Kelly v. Breusing, 32 Barb. 601; affirmed in 33 Barb. 123. Where the title gives the names of the plaintiffs with the description " commission- ers of highways," and in the body of the complaint it is averred " that the plaintiffs, commissioners of highways, complain," the character in which they complain is sufficiently indicated: Fowler v. Westervelt, 40 Barb. 374. 5. Title. — A party suing as a public officer should sue in his own name with the addition of his name of office: Paige v. Fasackerly, 36 Barb. 392; PUBLIC OFPICEES. 261 Trustees Fire Department of SrooJclyn t. Acker, 26 Ho-w. Pr. 263; Fowler v. Westervett, 40 Barb. 874; 17 Abb. Pr. 59. The words in brackets in the above form may be substituted by any others which will properly designate the title and jurisdiction of the officer. No. n. ii. By Sheriff Suing in Aid of Attachment. [TiTLS.] The plaintiff complains, and alleges : I. That he is the Sheriff of the [city and] county of , dulj' elected, qualified, and acting as such. II. That on the day of , 187 . , a war- rant of attachment 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 . , , 187., 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 dol- lars, which the defendant refuses to pay over to the plaintiff, or to account to him therefor; to his damage dollars. I Demand of Judgment.'} 6. Form. — This form with slight changes, from Abbott's excellent work on forms, is not applicable under the Califoruia statute; but being an ap- proved form under the statute of the State of New York, is deemed of value here: See Kelly y. Sreusing, 33 Barb. 123; affirming S. C, 32 Id. COl. 7. Right of Action. — The sheriff who levies an attachment has not the right of property in the debt, and cannot maintain an action in his own name for the recovery thereof: Sublette v. Melhado, 1 Cal. '105. An indem- nity bond to the sheriff to retain property seized under attachment, is an instrument necessary to carry the power to sue into effect. Davidson v. Dal- las, 8 Cal. 227. No. 73. iii. Against Sheriff for not Executing Process. [Title.] The plaintiff complains, and alleges: I. That at the time of issuing the execution hereinafter 262 PUBLIC OFPICEBS. mentioned, the defendant was the sheriff of the county of Sacramento, in this State. II. That on the .. . day of ,187., at , judgment was duly given and made in an action in the Court, in favor of the plaintiff, against one E. F., for [one thousand] dollars. III. That on the day of , 187 . , an exe- cution 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 quan- tity 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 de- fendant 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 of Judgment.'] 8. Arrest, Neglecting to Ezzecute Order of. — That before the return of said order, to wit, on, etc., notice was given to the defendant that said E. P. 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. P., by virtue of said order; but the defendant, disregard- ing his duty, did not arrest the said E. P., and willfully neglected the execu- tion of said order: Dininny v. Fay, 38 Barb. 18. 9. Averment of Ofiicial Capacity .—That defendant was sheriff, or acted as such, is a suflScient averment of capacity: Poller v. I/uther, 3 Johns. 431; Dean v. Gridky, 10 Wend. 255; and see Hall v. Luther, 13 Id. 491; compare Curtis V. Fay, 37 Barb. 64. 10. Breach of Duty.— That although defendant could have levied, of goods of the execution-debtor within his bailiwick, the moneys indorsed on the writ, yet defendant, disregarding 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 : Mullelt v. Ohallis, 16 Q. B. 239; 20 Law J. B. (N. S.) Q. B. 161; 15 Jur. 243; Political Code, sec. 4180. 11. Illinois. — The action lies where the officer so delays in making a proper levy that the rights of third parties intervene: 31 111. 120. The dam. ages on failure to collect an execution are such as the plaintiff shall actually suffer by the sheriff's neglect: 30 111. 339. Where the sheriff accepts an as- PUBLIC OPPICEES. 263 signment of a chattel mortgage, the plaintiff in execution, being ignorant thereof, is not bound by his acts: 28 111. 48. 12. Notice. — The allegation of notice, though usual, seenas unnecessary. Tomlinson v. Bowe, Hill & D. Snpp. 410. 13. Omission of Duty 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 first : Whitney v. Butterfield, 13 Cal. 335. 14. 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 i^laiutiff a deed to certain premises purchased by plaintiff at sher- iff's sale, when there is no allegation in the complaint of title, nor any aver- ment that in case the deed had been executed, plaintiff would have been able to recover possession of the premises, or the rents and profits: Seld, that such complaint is insufficient: Knight v. Fair, Sheriff, 12 Cal. 296. 15. Replevin. — For the proper mode of declaring in a complaint against a sheriff for not taking sufficient security in replevin, or in executing a writ in replevin, see Gibbs v. Bull, 18 Johns. 435; Wesieoelt v. Bell, 19 Wend. 531. "Where defendant had a right to replevy, a complaint which avers that the marshal neglected to make the money, is bad: Bispham v. Taylor, 2 McLean, 355. 16. Selling Homesteed. — 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 $2,000, the value of the property, is insufficient, as the same does not state facts sufficient to constitute a cause ot 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: Kendall and Wife V. Clark, 10 Cal. 17. 17. Terms of Execution. — It is not necessary to state the terms of the execution. The Court takes judicial notice of its own forms of proceeding: N. Y. Code Commrs. No. 74. iv. Against Sheriff for Neglecting to Return Execution. [Title.] The plaintiff complains, and alleges : I. That at the time of the issuing of the execution here- inafter mentioned, the defendant was the Sheriff of the County of .in this State. II. That on the .... day of , 187 . , in an action in the District Court of the Judicial District, County of , in this State [or other court], wherein this plaintiff was plaintiff, and one A. B. was defendant, the 264 PUBLIC OPFICEES. plaintiff recovered a judgment duly given by said court, against the said A. B., for dollars. III. That on the day of , 187 . , an execu- tion against the property of said A. B. was issued on said judgment, and directed and then delivered to the defendant, as Sheriff of the county of , of which execution the following is a copy : [Copy the execution and indorse- ment.] IV. That although [more than] days elapsed after delivery of said execution to the defndant, 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. ^Demand of Judgment.'] Note.— The Political Code of California provides as follows: "If the Sheriff does not return a notice or process in his possession, 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 :" Political Code, sec. 4179. Under this statute, add to the above form the following: And wherebj', 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 defendant for the said sum of two hundred dollars, un- der the provisions of the statute aforesaid, and the further sum of dollars, his damages so as aforesaid sus- tained, and for costs of suit. 18. Issue of Process. — It is sufiScient, after showing jurisdiction to issue process, to allege that it was issued: French v. Wilktt, i Bosw. 649; S. C, 10 Abb. Pr. 99. 19. Property. — In an action for not returning an execution, the com- plaint need not aver that defendant had property out of which the money might have been levied. The gist of the action is the neglect to return: Pardee v. lioberison, 6 Hill, 550. It is not necessary to allege or prove special damages: Ledyardy. Jones, 7 N. Y. 550. 20. Remedy. — Plaintiff may proceed by attachment, or may sue for the neglect: Bark v. CampMl, 15 Johns. 456; Bank of Rome v. Curliss, 1 Hill, 275. This action lies, although the sheriff has not been ordered to make return: BurkY. Campbell, 15 Johns. 456; Bank of Borne y. Curtiss, 1 Hill, 275; Pardee v. Robertson, 6 Id. 550. 21. Request. — A request to return execution need not be alleged : Corn- ing V. Southland, 3 Hill, 552; Fisher v. Pond, 2 Id. 338; Howden v. Siannish, 6 0. B. 504; S. C, 60 Eng. Com. L. K. 503. PUBLIC OFFICERS. 265 No. 7R. T. Against Sheriff, for Neglecting to Fay over Moneys Collected on Execution. [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 , ]87.., at , an execution, then duly issued, in form and effect as re- quired by law, against the property of one A. B., and in favor of the plaintiff, upon a judgment for the sum of dollars theretofore duly given in favor of the plaintiff against said A. B., in the District Court of the Judicial District, 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, col- lected and received upon said execution, 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 such sheriff, failed to pay over to the plaintiff the amount so collected. \_Demand of Judgment.'] Note. — " If he neglects or refuses to pay over on demand, to the person entitled thereto, any money -which may come into his hands by virtue of his of&ce (after deducting 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:" Political Code, sec. 4181. 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 suflficient for the recovery of the money received 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 the Code, omit Part IV in the above form, and insert the following: lY. On the .... day of , 18. ., the plaintiff demanded of the defendant that he pay over to him the moneys so received by him upon said execution, as afore- said, less his lawful fees thereon, yet he has, in violation 266 PUBLIC OFFICEBS. 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. thereof, as damages for the non-payment thereof, and inter- est 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 defendant for the said sum of dollars, and inter- est thereon at the rate of ten per cent, per month from the .... 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. 22. Against Deputy. To render a deputy liable, an express promise must be shown. Tuttle v. Love, 7 Johns. 470; Paddock v. Cameron, 8 Cow. 212; and see Oolvin v. Ilolbrook, 2 N. Y. 126; affirming S. C, 3 Barb. 475. 23. Delivery of Execution. It is enough to show the delivery of the execution, without proving the judgment: Mliolt v. Gronk, 13 Wend. 35; and see 1 Cow. Tr. 322. 24. Demand. In an action against a sheriff to recover property seized under process, or its value by the owner, it is necessary that the plaintiff should show affirmatively notice and demand before bringing suit; other- wise he cannot recover in such action: Killey v. Scannell, 12 Cal. 73; Boul- ware v. Graddock, 30 Cal. 190. The rule of the common law is correctly stated in Ledley v. Hays, 1 Cal. 160, and the correctness of that decision is impliedly recognized in Daumiely. Oorhani, 6 Cal. 44; see, also, Godman v. Freeman, 3 Gush. 314; and AckeeY. Campbell, 23 Wend. 371; Brewstery. Van Ness, 18 Johns. 133; Dygert v. Grane, 1 Wend. 534; and see Shepard v. Hoit, 7 Hill, 198. 25. Money Paid Over. Where it is averred in the complaint that the money has been collected, and that defendant has failed to return the execu- tion, it will not be presumed that the money has not been paid over. An averment to this effect is essential: Hoag v. Warden, 37 Cal. 522. 26. Obligation to Pay. So, to say that plaintiff has been obliged 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 demurer; Sughes v. Smith, 5 Johns. 168; even if process is voidable: Walden v. Da- vison, 15 Wend. 575; Bacon v. Cropsey, 7 N. Y. 195; and see Ontario Bank V. Eallett, 8 Cow. 192; Orosvenor v. Hunt, 11 How. Pr. 355; Ginochio v. Orser, 1 Abb. Pr. 433. 27. Remedy. — An action on the case, or an action for money had and re. ceived, may be maintained, at the option of the plaintiff: Dygert v. Crane, 1 Wend. 534; Shepard v. Hoit, 7 Hill, 198. PUBLIC OFFICERS. 267 28. Statute Penalties. — Whereasheriff fails to pay over money collected on execution, the action should be for a false return: Egery v. Buchanan, 5 Gal. 54. The statute penalties against sheriffs, for the non-paj'ment of moneys collected on execution, are only recoverable when the sheriff by his return admits the collection of the money, but refuses to pay it over : Id. 6 Cal. 196; 2 Nev. 378; U Cal. 143. 29. SufBoient Averment. — It is enough to say generally that the de- fendant had collected or embezzled, etc., such a sum, vifhich he had refused, etc., without setting forth the particular items, which would lead to prolix- ity: Fostmaster-Oeneral v. Cochran, 2 Johns. 413; Hughes v. Smith, 5 Id. 168. No. 76. vi. Against Sheriff, for False Eetum. [ Title.] The plaintiff complains, and alleges: I. That at the time of issuing the execution hereinafter mentioned, the defendant was the sheriff of the county of , in this State. II. That on the day of . . ., 187., 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 , 187 . , 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. IV. That the defendant afterward, and during the life thereof, levied, under the said execution, on property of the said W. [of the value of ten thousand dollars; or suf- ficient to satisfy the said judgment, with all the expenses of the execution; or state particulars of property on which he might have levied.] 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 property 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 of Judgment.'] 268 PUBLIC OFFICEES. 30. Allegation for not Levying -when there was an Opportunity, and falsely returning Nulla Bona. — 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. 31. Another Form of Allegation. — That the defendant, so being Sheriff as aforesaid, and having the said order in his hands to execute, and know- ing that the said Gt. 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. 32. 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: Michaels v. Shaw, 12 Wend. 587. An officer who should refuse to proceed upon a second exe- cution would be liable for a false return: 26 111. 221; 31 111.. 120: 15 Ind. 43. See Howe v. While, id Cal. 658. A "fee bill" is a process, and governed by the same rule as executions: 2 Gilm. 678; 5 Id. 96; 17 111. 344; 24 Tex. 12. 33. Measure of Damages. — The plaintiff is entitled, prima /aci'e, to the face of the execution: Ledyard v. Jones, 3 Seld. 550; Rome v. Gurtiss, IHill, 275; 6 Id. 550; 9 Johns. 300; 10 Mass. 474. And in case of loss of property by negligence, the damages are the value of the property lost : Morgan v. Myers, 14 Ohio, 538; Smith v. Fuller, 14 Ohio, 545. 34. Special Damages. — It is not essential to aver any special damage. The amount due on the judgment is, prima facie, the measure of damages : Led- yard V. Jones, 7 N. Y. 550; affirming S. C, 4 Saudf. 67; Pardee v. Boberison, 6 Hill, 550; Bank of Borne v. Curtiss, 1 Id. 275; and see Bacon v. Cropsey, 7 N. Y.195. 35. That Return was False. — The complaint should show that the re- turn was false, and that the respect in which it was false is material: Kidzie T. Sackrider, 14 Johns. 195 ; Houghton v. Swarlhout, 1 Den. 589. 36. Valid Judgment. — In such action, plaintiff must pro ve a valid j iidg- ment: McDonald y.Bunn, 3 Den. 45. No. 77. vii. For Seizing a Vessel. [Title.] The plaintiff complains, and alleges: I. That the plaintiff is, and at the time hereinafter men- tioned 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 dollars per week. II. That when said vessel was at , on her voyage aforesaid, and in the possession of 0. D., her master, ap- PUBLIC OFFICEES. 269 pointed Ijy the plaintiff, the defendant, on or about the day of ,187., 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. '\ No. 78. viii. For an Escape. [Title.] The plaintiff complains, and alleges : I. That at the time of issuing the execution and of the escape hereinafter mentioned, the defendant was the Sheriff of the county of , in this State. II. That on the day of , 187 . , in an action in the [District Court of the Judicial District, county of , in this State], brought by this plaintiff against one A. B. for embezzlement [or other cause authorizing arrest], this plaintiff recovered judgment, duly given by said Court, against said A. B., for dollars. III. That on the day of 187 . , an exe- cution against the property of said A. B. was duly issued by the Clerk of said Court on said judgment, and thereafter duly returned wholly unsatisfied. IV. That thereafter, on the .... day of , 187., an order of arrest was issued by the Judge of the said Court [or by the County Judge], against the person of said A. B., and then directed and delivered 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 exe- cution, and order of arrest. VI. That thereupon the plaintiff entered into an under- 270 PUBLIC OFFICEES. 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 deposit for this purpose]. VII. That in violation of his duty as such sheriff, he has since, to wit, on the .... day of , 187 . , 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 defendant, according to tlie statute, for the debt [or for damage, or sum of money] for wliich such prisoner was committed, to wit, dollars, with interst from, etc. NoTB.^" The Political Code provides, sec. 4182: A. Sheriff who suffers the escape of a person in a civil action, without the consent or connivance of the person in whose behalf the arrest or imprisonment was made, is liable as follows: "1. When the arrest is upon an order to hold to bail or upon surrender in exoneration of bail before judgment, he is liable to the plaintiff as bail; " 2. When the arrest is upon an execution or commitment to enforce the payment of money, he is liable in the amount expressed in the execution or commitment; " 3. When the arrest is on an execution or commitment other than to en- force the payment of money, he is liable for the aetaal damages sustained; " i. Upon being sued for damages for an escape or rescue he may intro- duce evidence in mitigation and exculpation." Sec. 4183. " He is liable for a rescue of a person arrested in a civil action, equally as for an escape." Sec. 4184. "An action cannot be maintained against the Sheriff for a rescue, or for an escape of the person arrested upon an execution or commitment, if after his rescue or escape and before the commencement of the action, the prisoner returns to jail, or is retaken by the Sheriff." 37. 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 es- cape; and an answer which avers that such person may have "wrongfully and privily, and without the knowledge, permission, or consent of this de- fendant, escaped," etc., and that "it he did so escape, he afterwards" returned into custody, etc., is insufficient as a pleading, as it does not deny, either generally or specifically, the allegation that the sheriff permitted the prisoner to escape: Loosey v. Orser, 4 Bosw. 391. 38. 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: Kellogg v. Gilbert, 10 Johns. 220. 39. Committed.— That he had arrested the debtor and detained him in PUBLIC OPFIOEKS. 271 custody in execution, sufficiently imports commitment to jail: Ames v. Wdi- bers, 8 Wend. 545. 40. Damages. — The measure of damages is only prima facie the amount of the debt: Ginochio v. Orser, 1 Abb. Pr. 433; PoUery. Lansing, 1 Johns. 215; Russell V. Turner, 7 Id. 189; Thomas v. Weed, 14 Id. 255; Liltlefield v. Brown, 1 Wend. 398; Patterson v. Westervelt, 17 Id. 543; Fairchlld v. Case, 24 Id. 381; 8 Id. -545; flutchinsmi v. Brand, 9 K. Y. 208. 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: Benick v. Orser, 4 Bosw. 384; McCreery v. Willelt, Id. 643. 41. Escape, Definition of.— If a person admitted 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 Eev. Stat. 437, sec. 63; although that sec- tion 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 another against whom the law gives a remedy: Allen on Sheriffs, 231; 4 Mass. 361; 10 Id. 206. The act of the law, as well as the act of God or of the public enemies, will excuse the sheriff in an action for escape: WUkem,s v. Willett, 1 Keyes, 521, affirming S. 0., sub nom. Wiukelhausen v. Willett, 12 Abb. Pr. 319; 21 How. Pr. 40. 42. Excuse. — Nothing but the act of God or public enemies will excuse the sheriff for an escape; Fairchild v. Coxe, 24 Wend. 381; Baineyy. Dun- ning, 2 Murph. 386. In California the sheriff is liable for a rescue equally as for an escape: Political Code, sec. 4183; but an action cannot be main- tained for either after the prisoner returns to jail, or is recaptured by the sheriff: Id. 4184. 43. Form of Allegation in Debt.— That thereupon, the judgment re- maining wholly unpaid, the defendant became indebted to the plaintiff in the sum of dollars, the amount of said judgment: Barnes v. Willett, 11 Abb. Pr. 225; S. G. 19 How. Pr. 564; so in Benick v. Orser, 4 Bosw. 384; and McCreery v. Willelt, Id. 6i3. This form is equivalent to a declaration in debt. 44. Indorsement. — The indorsement on the execution or writ need not be set out: Jones v. Cook, 1 Cow. 309. 45. 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 de- fendant 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: Political Code, sec. 4182, subd. 1. Whether a judgment-creditor, injured by the escape of his debtor from arrest, elects to sue the sheriff at common law for an escape, or under sec. 201 of the Code of Procedure of New York, as bail, is manifested by the complaint. 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 judgment. If he elects to prosecute for an escape, the complaint will contain the same mat- ters, but all allegations as to the character of the defendant as bail should be omitted, as wholly irrelevant to a cause of action for an escape, A com- plaint in such a case, which makes no mention of the defendant as bail, and 272 EECEIVEES. contains nothing manifesting an intention or election to hold him liable in that character, is to bH treated as intending an action for an escape: Smith V. Knapp, 30 N. T. 581. 46. Negligence. — An officer who negligently permits an escape is liable to the person inji7red by his neglect of duty: 1 Wend. 115; 37 111. 257. And an escape from a deputy may be declared on as an escape from the sheriff: 9 N. H. 204. 47. Voluntary.— A complaint which allee;es that "the sheriff suffered and permitted such person to escape and goat large," states a voluntary and not a negligent escape: Loosey v. Orser, i Bosw. 391. Under the averment that he voluntarily suffered the party to escape, a negligent escape may be proved: 2 T. E. 126; 5 Burr. 2814; 1 Saund. 35. And evidence of a negli- gent escape supports an action for a voluntary one: Skinner v. White, 9 N. H. 204. OHAPTEE X. EECEIVEES. No. 79. i. By a Receiver Appointed Fending Litigation. [State and County.] [Couiit.] A. B., Eeceiver of thd Property of CD., Plaintiff against E. F., Defendant. The plaintiff, as receiver of the property of C. D., com- plains, and alleges: I. [State cause of action.] II. That on the day of , 187 . , at the city and county of San Francisco, and State of California, in an action then pending in the District Court of the Judicial District of said State, 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 prop- erty of the said C. D. hereinafter described, to wit: [De- scribe 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 said order, as such receiver, approved by the said Judge, which EEOEIVEBS. 273 bond, -with such approval, is on file in the said Court, and were so filed prior to the commencement of this action. [Demand of Judgment,] 1. 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: White v. Low, 7 Barb. 204; CKUett v. Fairchild, 4 Den. 80; Bangs v. Mcintosh, 23 Barb. 591; 6 Duer, 672; 7 Barb. 206; Dayton v. Connah, 18 How. Pr. 326. Where a re- ceiver would make title to a chose in action, he must set forth the facts show- ing his appdintment. It will not be sufScient to aver that he was duly ap- pointed: GUlett V. Fairchild, i Den. 80; White y. Joy, 3 Kern. 86; Stuart y. £eel)e, 28 Barb. 84; Tuckerman v. Brovm, 11 Abb. Pr. 389. 2. Appointment of Receiver.— A receiver may be appointed by the court in which the action is pending, or by a judge thereof, before judgment provisionally, or after judgment; to dispose of the property according to the judgment, or preserve it pending an appeal; and in such other cases as are in accordance with the practice of courts of equity: Cal. Code, sec. 564- 569: N. Y. Code, sec. 244; Ohio Code, sec. 253. A receiver is appointed on behalf of all the parties who may establish rights in the cause, and the money in his hands is in oustodia legis. Adams v. Woods, 8 Cal. 306. The appoint- ment of a receiver is not a special proceeding within the meaning of sec. 336 of the Practice Act, nor can it, when detached from the proceedings in an action, be treated as a final judgment from which an appeal can be taken. Adams v. Woods, 21 Cal. 165; Corey v. Long, 43 How. Pr. 492. 3. Appointment Pending Litigation.— When either party establishes a prima facie right to the property, or to an interest in the property, the sub- ject 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 in- jured or impaired, the court or a judge thereof may appoint a receiver: Cal. Code, sec. 564. In a foreclosure suit, the plaintiff has no right to have a re- ceiver of rents and profits of the mortgaged property appointed pending a litigation: Guy v. Ide, 6 Cal. 101; Meyer v. Seebald, 11 Abb. (N. S.) 326, n. 4. 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 case are such as warrant it. If the defendant in possession is receiv- ing 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 : Whitney v. Buck- man, 26 Cal. 447; see Code C. P., sec. 564. , 5. Bound by Order of Court. — Eeceivers, or other 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 co-relatively entitled to the protection of the Court against loss for disbiirse- ments which were necessary and proper, and such as a reasonable and pru- dent man, acting as receiver, would have been justified in expending : Adams v. Haskell, 6 Cal. 475; Guardian Savings Inst. v. Bowling Green 8. I., 65 Barb. 275. IS 274 EECEITEES. 6. County Judge. — Under the statute, the County Judge may grant an injunction in cases in the District Court, but he cannot appoint a receiver; at least, not as a thing distinct from the injunction : Buthrauff t. Kresz, 13 Cal. 639. 7. Courts of Equity. — Courts of equity have the power to appoint re- ceivers, and to order them to take possession of the property in controversy, ■whether in the 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: Ex parte Cohen, 5 Cal. 494. But they cannot appoint a receiver, and decree a sale of the property and affairs of a corporation : Neall v . Sail, 16 Cal. 148. Such a decree would necessarily result in a dissolution of the corporation: Id. Under subdivision 5, sec. 564, Cal. Code C. P., a receiver may be appointed when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights. AVhere 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 intimately ac- quainted with all of the affairs of the concern and placing it in the hands of another, who may not be equally competent to manage the busioess. Wil- liamson V. Monroe, 3 Cal. 383. 8. Describing Himself. — Describing himself as " having been duly ap- pointed receiver of, etc., and bringing this suit by order of the Supreme Court," is insufficient on demurrer: See authorities cited above, note 1; see, also, Dayton v. Connah, 18 How. Pr. 326. 9. Disbursements of Receiver. — An order of Court directing a referee ' ' to ascertain and report the amount of disbursements 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 nancow to do him jus- tice, and should be so enlarged as to allow for all reasonable and proper expenses incident to the receivership: Adams v. Haskell, 6 Cal. 475. And this, although the claim is for disbursements, incurred by the custodian of the fund, under an appointment as assignee in a proceeding in insolvency, which was afterward held to be void: See, also, O'Mahoney v. lielmord, 37 N. y. 223. 10. Discretion of Court. — The appointment of a receiver rests in the sound discretion of the Court upon a view of all the facts; one of which is, that the party asking the appointment 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: Copper Hill Min. Co. V. Spencer, 25 Gal. 15. 11. Leave of Court. — Leave to sue need not be averred, as it is not one of the facts constituting the cause of action: Finch v. Carpenter, 5 Abb. Pr. 225; see Code 0. P. sec. 568; 20 Ohio St. 137. 12. Liability of. — A receiver is iiersonally liable to persons sustaining loss or injury by or through his own neglect or misconduct; but for the neg- lect or misconduct of those employed by him in performance of the duties of his trust, he is liable only in his official capacity, and the judgment against him, if any, must be made payable out of the funds in his hands as receiver: Camp V. Barney, i Hun. 373; see, also, Miller v. Loeb, 64 Barb. 454; Potter v. EECEIVEES. 275 Sunnell, 20 Ohio St. 151; Meara v. Bolhrook, Id. 137. In this ease 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 against him as such, for injuries sustained, and that it is no defense in such action that the receiver was a public officer, or that he was an agent or trustee. 13. Mining Claims. — The purchaser at a judicial sale of a mining claim, may, where the judgment debtor remains in possession, working the claims, and is insolvent, have a receiver appointed to take charge of the pro- ceeds, during the period allowed by the statute for redemption : Bill v. Tay- lor, 22 Cal. 191. 14. On Application for Injunction. — If notice is given of an applica- tion for an injunction, and the petition piays 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 objection is made on the ground of want of notice of the application: Whitney v. Bucleman, 26 Cal. 447. 15. Pleadings. — Of the proper mode of complaining in an action by a receiver, of departure from the complaint in the reply, and of the proper mode of seeking relief where the reply departs from the complaint, see White v. Joy, 3 Kern. 83; reversing S. C. 11 How. Pr. 36; 2 Abb. Pr. 548. 16. Povirers and Duties of Receiver. — A receiver may employ counsel: Adams v. Woods, 8 Cal. 315. 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: Adams v. Sackeit, 7 Cal. 187. A receiver can pay out nothing, except on an order of the court; but there are exceptions to the rule; nor will he be denied reimbursements in every case in which he neglects to obtain the order, es- pecially in a court of equity: Adams y. Woods, 15 Cal. 207; Adams v. Haskell, C Cal. 475. 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; Whitney^. Buckman, 26 Cal. 451. 17. Receiver in his oTvn Name. — As to the cases in which a receiver may sue in his own name and without averring his appointment, see Wldte V. Joy, 13 N. Y. 83; Bank of Niagara v. Johnson, 8 Wend. 645; Haxtun v. Bishop, 3 Id. 13. 18. Receiver of Insurance Company. — Where a plaintiff 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 differ- ent 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 company of which he has been appointed receiver: Byalt v. MoMaJion, 25 Barb. 457. 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. 19. Setting aside Assignment. — Where a receiver brings an action to set aside an assignment, he must state in his complaint 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 main- 276 BECEIVERS. tain an action which the parties or the estate which he represents could not maintain: Coope v. Bowles, 42 Barb. 87; S. 0. 18 Abb. Pr. 442; and 28 How. Pr. 10. And he must show a cause of action existing in those parties. Id, 20. Suit against. — A suit cannot be brought against a receiver when the judgment would disturb the receiver's possession 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 litigation. Spinning v. Ohio Life Ins. and Trust Co., 2 Dis, 336. 21. Su£Bcient Averment.— Alleging that plaintiff is receiver of, etc., appointed by the Supreme Court by 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: Stewart v. Beebe, 28 Barb. 34; compare Orowell V. Church, 7 Abb. Pr. 205, note. 22. Transfer to Receiver. — 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 cred- itors: Naglm v. Lyman, 14 Cal. 450. Where it appears that the partners, parties to the suit for a dissolution, held a judgment against a third party which was never reduced to the possession nor under the control of the re- ceiver, the appointment of the receiver would not operate as an assignment or transfer of any property not so reduced to possession within a reasonable time: Adams v. Haskell, 6 Cal. 113. 23. Vacating Order of Appointment, — The pendency of a motion for a new trial does not operate as a stay of proceedings, so as to deprive the Court of the power of vacating an order appointing a receiver made before the trial: Copper Hill Min. Co. v. Spencer, 25 Oal. 15; Wilson v. Barney, 5 Hun. 257. The Court which first acquires jurisdiction and appoints a re- ceiver of a fund, has the whole jurisdiction thereof, and is bound to ad- minister it: O'Mahoney v. Belmont, 37 IT. Y. 380. No. 80. ii. The Same — Appointed in Supplementary Proceedings'. [Title.] The plaintiff, as receiver of the property of C. D., com- plains, and alleges: I. [State cause of action.] II. That on the day of 187., at , upon an application made by L. M., a judg- ment creditor of said 0. D., in proceedings supplementary to execution, and by an order or determination then duly made by the Hon. G. H., Judge of the District Court of the Judicial District of the State of California, the plaintiff was appointed receiver of the property of said C, D. EEOEIVEBS. 277 III. That thereafter, and before the commencement of this action, he gave his bond required by said order, etc. [as in preceding form.] [Demand of Judgment. 2 24. Fund in Hands of Trustees.— 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 in- terest to the execution debtor during his life; that the defendants had col- lected interest since the appointment of the plaintiff as receiver, but refused to pay the same over to the plaintiff. It did not aver that any part of the interest was in the hands of the defendants, as a surplus above what was necessary for the debtor's support: Held, that the complaint did not state facts sufficient to constitute a cause of action: Oraff v. Bonneit, 31 N: Y. 9. 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 cannot infer that such a surplus exists. It is theduty of the pleader to show by proper averments that such facts exist. Id. 25. Supplementary Proceedings. — In proceeding supplementary to execution,.the Court may appoint a receiver when it has all the parties be- fore it: Hathaway v. Brady, 26 Cal. 586. No. 81. iii. Another Form — Setting out Proceedings at Length. [Title.] The plaintiff, as receiver of the property of 0. D., com- plains, and alleges : I. That E. F. and G. H., of San Francisco, State of Cali- fornia, survivors of C. D., deceased, in an action brought by them in the District Court of the Judicial Dis- trict of this State, against J. K., obtained judgment against the defendant in that action, on, etc., for the sum of, etc., which judgment was entered 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 him to make said, etc., with interest from, etc., and make return of his doings in the premises; that said Sheriff afterwards, and on, etc., returned said execution to the office of the Clerk of the County of , with his return thereon indorsed, showing the execution wholly unsatisfied. III. That afterwards, and on, etc., the plaintiff in said 278 EEOEIVEBS. 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 remained wholly unsatisfied, and presented the same to Hon. J. D., Judge of the District Court of the Judicial District, on the same day, who thereupon, and on, etc., made an order requiring said judgment debtor to appear before L. M., Esq., referee thereby appointed, at the office of the said L. M., in, etc., on, etc., at o'clock in the noon, to testify con- cerning his property; and said N. O., by said order was further forbidden to transfer, or in any manner dispose of, or interfere with any property, moneys, or things in action belonging to him until further order in the premises. IV. That said order was personally served on said de- fendant on the same day, and said defendant appeared be- fore said referee at the time and place in said order speci- fied, and severally 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 plaint- iff, receiver of all the debts, property, effects, equitable in- terests, and things in action of said C. D., and further or- dered that this plaintiff, before entering upon the execution of his trust, execute to the Clerk* of this Court a bond, with sufficient sureties, to be by said Judge approved, in the penal sum of , conditioned for the faithful per- formance and discharge of the duties of such trust, and that this plaintiff, upon filing such bond in the office 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 disposition of, or interfering with his property, equit- able interests, things in action, or any of them, except in obedience to said order, until further order in the prem- ises. V. That on, etc., he executed a bond, with sureties, as required by said order and the rules and practice of this * Under sec. 567, Cal. Code 0, P., the undertaking must be made to such person, and in such sum as the coui-t or judge may direct. The allegation of the making and filing of the bond should follow the order of the court or judge directing the bond to be given. BECEIVERS. 279 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.] IDemand of Judgment.'\ 26. Form. — The above form is substantially from McCall's Forms, 270. See Cal. Code, sec. 564, subd. 3; N. Y. Code, see. 244, subd. 6. No. 8S. iv. By Reoiimr of Dissolved Corporation. ITlTLE.] The plaintiff, as receiver of the Company, com- plains, and alleges: I. [State a cause of action accruing to the corporation.] II. That on the day of , 187 . , 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 District Court of the Judicial District, 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 as in Form No. 79.] IBemand of Judgment.'] 27. Occasion of Dissolution. — The occasion of the dissolution should be shown: OUlet v. Fairchild, i Den. 80; see Tuekerman v. Brown, H Abb. Pr. 389. JVo. 83. V. By Receiver of Mutual Insurance Company on Premium Note. [Title.] The plaintiff, as receiver of the Company, com- plains, and alleges : 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 Legislature 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 , 187 . , at the general term of the District Court, of the Judicial District, in and for the County of , State of California, this 280 EECEITEKS. 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 , 187 . , the plaintiff gave the requisite security as said re- ceiver, and filed the same in the Clerk's Office of the said County of , and thereupon entered upon the duties of his office 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 fol- lowing 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 cap- ital stock of said Company, and which said policy of insur- ance was issued and delivered to the said defendant at the date mentioned in the said note, and thereby the said de- fendant 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 re- ceiver, 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 , 187., did settle and determine the sums to be paid by the several members of said Company, as their respective portions of such losses and liabilities, 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 there- after 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 newspaper published in the County of , once in each week for days, commencing on the.... day of EEOErVEES. 281 , 187 . , and that previous to the .... day of , 187 . , 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 per- son 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 special term of the District Court of the Judicial District, held at the court-house, in the City and County of San Francisco, on the . . . .day of , 187 . , the aforesaid assessment, so made by said receiver on the premium notes of the members of the said company, was ratified and confirmed, and the said receiver authorized and directed by said court to bring suits against the several members of said company, 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 men- tioned were in full force and effect. X. That the defendant has not paid the said assessment, or any part thereof. [_ Demand of Judgment.'] Note. — Such a complaint must show tlie liabilities of the company: Thomas v. Phalon, 31 Barb. 172. COMPLAINTS— Subdivision Second. In Actions for Debt. CHAPTEE L ACCOUNTS. No. 84. i. For Money Due on an Account. [Title.] 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 for goods sold and delivered by the plaintiff to the defendant, at , between the day of and the day of ; 187.. II. That the same became due and payable on the day of , 187 . , but the defendant has not paid the same, nor any part thereof [if there have been payments, add " except the sum of dollars"]. [Demand of Judgment,.} 1. Averments. — An averment of request is not necessary: Acorn v. American Mineral Co., 11 How. Pr. 2i. The allegation of value is material: Gregory v. Wright, 11 Abbott's Pr. 417. An implied promise to pay is matter of law, and should not be pleaded: Farron v. Sherwood, 17 N. Y. 227. Where a demand would be necessary if the plaintiff sued for damages for conversion, he must aver a demand where he sues upon the implied con- tract, waiving the tort: Spoor v. Newell, 3 Hill, 307. A contract to pay gen- erally, 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 : Lake Ontario, etc., R. JR. Co. V. Mason, 16 N. Y. 451. On an agreement to pay on request, though no request is necessary if the promisor be the principal debtor, it is neces- sary if he is a surety: Nelson v. Hostwick, 5 Hill, 37. 2. Assignment. — In an action by the assignee of an aoooant, the cause of action accruing to the assignor, and the assignment to the plaintiff, must be averred. 3. Due.— That defendant is indebted to plaintiff in the sum, etc., for goods sold and delivered on, etc., and that there was then due to the plaintiff from the defendant said sum, implies a contract, a promise to pay, and that the period when the same was promised to be paid had exj)ired, and con- stitutes a good indebitatus count in debt: 1 Chitt. PI. 345; 2 Chitt. PI. 142; ACCOUNTS. 283 Emery V. Fell, 2 Term. 28; Allen v. Patterson, 7 N. T. 479; see, also, Hughes V. Woosley, 15 Mo. 492, as to form of complaint on an account. 4. Guardian and Ward. — A ward on coming of age may maintain an action of account against his guardian: Co. Xiitt. 89; 2 Kent's Com. 188; Bertine v. Varian, 1 Edw. Ch. K. 343. As to limitation of accounts between guardian and ward: Id. 5. Items of Account. — "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:" CodeC. P., sec. 454; Conner v. Hutchinson, 17 Cal. 281 ; P. Tool Go. v. Prader, 32 Cal . 638 ; Goodrich V. James, 1 Wend. 289. 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 exclusion should be obtained previous to the trial: Kellogg v. Paine, 8 How. Pr. 329. A count for the value of the use and occupation of plaintiff's land does not prevent a claim upon which a bill of particulars can be required: Moore v. Bates, 46 Cal. 30. 6. Joint Adventure. — A bill for an account is the proper remedy for the settlement of the proceeds of a joint adventure, 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 speculations of every kind for a cetain period of time, although the parties may not have been technically partners : Garry. Redman, 6 Cal. 574. 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 the same contract : Id. 7. Many Items of Account. — In an action to recover many items of demand claimed by one and the same right, the items maybe, for the sake of brevity and convenience, thrown into one count : Longvoorthy v. Knapp, 4 Abb. Pr. 115. If the action be in fact for an accounting, it may be treated as one cause of action of an equitable nature, and stated accordingly: Adams v. Holley, 12 How. Pr. 326. 8. Mutual Accounts. — Where one party is selling to the other party goods from time to time, and charging the same, and the other gives him 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: Adams -v . Patterson, 35 Cal. 122. But where the defendants delivered to the plaintiffs an article of personal property, for which the latter gave the former credit at a specified valuation, a mutual account was created: Norton v. Laroo, 30 Cal. 132. In Nevada, it was decided that such a credit would not constitute a mutual account con- sisting of reciprocal demands, but it would create a mutual account if de- livered without any understanding that it should be applied as payment: Warren v. Sweeney, 4 Nev. Eep. 101. 9. Mutual, Open, and Current Accounts. — A "mutual, open, and current account, where there have been reciprocal demands," within the meaning of section 17 of the Statute of Limitations, is one consisting of demands upon which each party respectively might maintain an action: 284 ACCOUNTS. Warren v. Sweeney, i Nev. Eep. 101. If all the items on one side Of an ac- count 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 : Id. 10. Mutual Accounts — Set-off. — Mutual accounts are made up of mat- ters 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 mu- tual debts shall be satisfied or set off, pro tanto: Norton v. Larco, 30 Cal. 126. A payment made on an account, and not intended as a set-off, pro tanto, does not make a mutual account: Id. Striking a balance converts the set-off into a payment : Id. And until such balance is struck, a mutual ac- count exists: Id. 11. Partners. — An action of account at law may be brought by one part- ner against another : Co. Litt. 171; 1 Montag. on P. 45: Dunoam. Lyon, 3 Johns. Ch. 351; Atwater v. Fowler, 1 Edw. 417; Ogden v. Astor, 4 Sandf. 313. In any business: see 18 Pick. 299, overruling dicta in McMurray v. Rawson, 3 Hill, 59; see, also, Kelly v. Kelly, 3 Barb. 419. 12. Running Accounts. — In suits on a running account, the whole should be included in a single action: Guernsey v. Carver, 8 Wend. 492; Bon- sey V. Wordsworth, 36 Eng. Law&Eq. E. 283; 18 C. B. 325; Wood v. Perry, 3 Exch. K. 442. Various items of an account, though accrued at different times, maybe united: Sows v. HotchJciss, 10 N. Y. Leg. Obs. 281; Adams v. Solley, 12How.Pr. 326. 13. Separate Accounts. — As to when separate accounts between the same parties are separate causes of action, and therefore must be separately stated: see Phillips v. Perick, 16 Johns. 136; Stevens v. Loclcwood, 13 Wend. 644; Staples \. Goodrich, 21 Barb. 317; and Longworthy y . Knapp, 4 Abb. Pr. 115. 14. When Action Lies. — The action of account lies between merchants, between ■v^hom there is a privity: 2 Greenl. Ev. 35; 1 Com. Dig. Ac. A. B. Against an attorney for money received from his client: 4 Watts, 420; 3 Chitt. 383. By a cestui que trust, against trustee appointed by will for an ac- count: 2 Watts. 95. By receiver against his deputy: 1 Roll. 118-120; 1 Com. Dig. 191. So, by a sheriff against his deputy: Id. Against a receiver ap- pointed to receive rents and debts of another: 1 Com. Dig. 190; 1 Boll. 116; 6 Mod. 92. JVo. 85. ii. By an Assignee on an Account. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at the city of , the defendant was indebted to one E. F. 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 the use of said defend- ant, 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. r Unmrnnd nf .Tudnvrt.efni. ^ ACCOUNTS. 285 No. 86. iii. On an Account Stated. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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. III. That he has not paid the same, [Demand of Judgment.^ 15. Averments. — The material allegations are: 1. That plaintiff and defendant came to an accounting together; 2. On such accounting defend- ant was found indebted to the plaintiff in a specified sum ; 3. Which defend- ant promised to pay; 4. And has not paid. What constitutes an account stated is a question of law: Zockwood v. Thorn, 11 N. Y. 170. 16. Account Stated. — 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: Toland v. Sprague, 12 Pet. 300. An account in writing showing a balance, or that there is none, does not require a signature to make it a stated account : Baker v. Biddle, Baldw. 394. And it is not affected by its balance being introduced into a subse- quent account. Id. 17. Acquiescence in Account. — The complaint must show a demand in favor of the plaintiff acceded to by the defendant: Terry v. Sickles, 13 Cal. 427, 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: Towsley v. Denison, 45 Barb,- 490. 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 ob- jection, it becomes an account stated: Freeland v. Serron, 7 Cranch. 147. Long acquiescence makes an account, an account stated : 1 Story Eq. Jur. sec. 526; Schettler v. Smith, 34 N. Y. (2 J. & Sp.) 17; Stenton v. Jerome, 54 N. Y. 480. The statement of an account is not conclusive, but throws upon the party claiming error the burden of proving it: Mass. Life Ins. Co.y. Carpenter, 49 N. Y. 668. But if there have been mutual compromises, it will operate as an estoppel in pais: Kock v. Bonitz, 4 Daly (N. Y.), 117. 18. Audited and Approved. — Where accounts bear upon their face "audited and approved," and "certified to be correct," they become in- struments of writing within the meaning of the statute, and are not barred by that portion of the Statute of Limitations applying to accounts: Sanniclcson V. Brown, 5 Cal. 57. 19. Averment. — An averment that one party made a statement of au ac- count and delivered 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 conclusively, an account stated: 286 ACCOUNTS. Emery v. Pease, 20 N. Y. 62. Where, after the death of one partner, an ao- oonnt is stated between . defendant and the copartnership, admitting a balance due by him for goods sold in .the lifetime of the deceased, the sur- viving partner may recover without averring the death of the other partner, and the survivorship: Holmes v. DeGamp, 1 Johns. 34. 20. Corporations. — The rule in matters of account is applicable to a private corporate body, engaged in trade, and conducting its affairs by of- ficers and agents: Bradley v. Richardson, 2 Blatchf. 3i3. 21. Erasure. — An erasure in a settled account, not shown to have been made before its settlement, is sufficient to avoid it: Prevost v. Gi-aiz, Pet. C. Ct. 364. The presumption is that the alteration was made after execution: Id.; but compare Malarin v. United States, 1 Wall. U. S. 282. 22. "Errors Excepted." — An account in writing, examined and signed, will be deemed a stated account, notwithstanding it contains the phrase, " errors excepted:" Branger v. Chevalier, 9 Gal. 353; Troup v. Saight, Hopk. 272. 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: Branger v. Chevalier, 9 Gal. 353; Bagery. Thomson, 1 Black. 80. And when a party goes into particulars, he is confined to those items improperly charged, and the remainder of the account must stand: Branger V. Glievalier, 9 Gal. 353; Perkins v. Mart, 11 Wheat. 237. 23. Form. — The above form is from Graham v. Gammon, 13 How. Pr. 361. 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 defendant to plaintiffs on an account then stated between them ; and the said defendant being so indebted to 'the plaintiffs, afterwards, to wit, on the day and year aforesaid, at the place aforesaid, undertook and faithfully promised the plaintiffs to pay the same, etc., and that said sum is due and unpaid, sufficiently states a cause of action: De Witty. Porter, 13 Gal. 171. 24. Indebtedness, Allegation of.— A complaint is sufficient which states that defendant was indebted for a certain sum of money, ascertained to be due upon a statement of account, and which defendant promised to pay: DeWiit v. Porter, 13 Gal. 172. Where a creditor claims a larger sum to be due him than the debtor admits, but finally yields to the debtor's claim, and takes a promissory note for the lesser amount, he will be bound by the settlement: Powell v. Jones, ii Barb. 521. 25. Merchants. — An account between merchant and merchant, closed by cessation of mutual dealings, does not therefore become an account stated: Mandevilley. Wilson, 5 Granch. S. Ct. 15. 26. Nature of Claim. — A complaint, although it refers to an account, should indicate the nature and character of the claim, and the period within which it arose: Farcy v. Lee, 10 Abb. Pr. 143. 27. New Promise.— An account stated alters the nature of the original indebtedness, and has the effect of a new promise : Carey v. P. and C. Petro- leum Co., 33 Cal. 094; Holmesy. DeCamp, 1 Johns. 34; Allen v. Stevens, 1 N. Y. Leg. Obs. 359. ACCOUNTS. 287 28. Opening an Account Stated.— The practice of opening accounts stated is not encouraged, and should only be done on clear proof of error or mistake: Wilde v. Jenkins, i Paige, 481; Zockwood v. Thome, 11 N. Y. 170. But fraud is a sufficient ground to open an account stated: 2 Dan. Gh. Pr. 764. The effect of surcharging and falsifying an account, is to leave it an account. stated, except so far as it can be impugned: 2 Ves. Sen. 565; 11 Wheat. 237; Sto. £q. PI., sec. 801; 1 Story's Eq. Jur., sec. 523; Bruen v. Bone, 2 Barb. 586; Bullock v. Boyd, 2 Edw. 293; Phillips v. Belden, 2 Edw. 1. An account cannot be reopened by one of the parties without proof of the items, and that some one or more of them ought not to have been allowed : Sutphen v. Oushman, 35 111. 186. 29. Overcharge. — If the complaint is verified, and the answer does not charge fraud or mistake, evidence of overcharge is not admissible : Phillips v. Belden, 2 Edw. 1. 30. Parties. — When an account is settled by the parties themselves, their adjustment is final and conclusive : Hager v. Thomson, 1 Black, 80 ; even as to the guarantor: Bullock v. Boyd, 2 Edw. 293. It is not at all important that the account be made out by one party against the other. When a con- signor rendered an account to the consignee, it was a stated account from the time the consignor demanded payment of the balance : Toland v. Sprague, 12 Pet. 300. So, where the agent presented the account: 2 Atk. 251; 2 Ves. Sen. 239; Murray v. Toland, 8 Johns. Oh. 569. 31. Presumption. — When an account between 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: Carroll v. Paul, 16 Mo. ■226. An account against the State, certified by the auditor, is conclusive on him only as to the correctness of the statements therein contained: State v. Sinkson, 7 Mo. 353. No. 87. iv. For a General Balance of Account. [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 defend- ant 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 , 187 . , and the . . . .day of , 187. . 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. [Demand of Judgment.'] 288 ACCOUNTS. JSTo. 88. V. Upon an Account for Services. [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 re- quest of the defendant at , between the day of , 187 . , and .... day of , 187 . . II. That he has not paid the same, nor any part thereof. IDemand of Judgment. '\ 32. Form. — This form is sustained by Mojfet v. Sackett, 18 N. Y. 522. 33. Services. — A petition (complaint) on an account for services rendered a third person charging an original liability is sufficient: Wing y. CampMl, 15 Mo. 275. 34. Time. — In order to be sufficiently definite and certain, the complaint should show the nature and character of the claim, and the period within which it arose: Farcy v. Lee, 10 Abbott's Pr. 143. No. 88. vi. The Same, l>y an Architect. [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 services, 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 Eow, in street, in the City and County of San Francisco, performed at the request of the defendant between the day of ..: , 187., and the.... day of , 187.. II. That the defendant has not paid the same, nor any • part thereof. ^Demand of Judgmenfi No. 90. vii. The Same, by a Broker for Oommissicns. [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, negotiable securities, real estate, personal property, or otherwise], performed at the request of the ACCOUNTS. 289 defendant, at the City and County of San Francisco, be- tween the day of , 187 . , and the day of ,187. II. That the defendant has not paid the same, nor any part thereof. [Demand of Judgment. 2 No. 91. viii. By Carrier, against Consignor, for Freight. [Title.] 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 , 187., and the .... day of , 187. . II. That the defendant has not paid the same, nor any part thereof. IDemand of Judgment. 2 No. 9S. ix. The Same, against Consignee. [Title.] 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 , which were consigned to the defendant and delivered by plaintiff at to the defendant and by him accepted, between the .... day of , 187 . , and the r day of , 187 . . II. That the defendant has not paid the same, nor any part thereof. [Demand of Judgment.'] 35. Interest. — Freight does not bear interest till after demand: Schure- man v. Withers, Anth. N. P. 230. 19 290 ACCOUNTS. No. 9S. X. By Mditor for Services. [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 known 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, be- tween the .... day of ; . . . , 187 . , and the .... day of , 187.. II. That the defendant has not paid the same, nor any part thereof. [Demand of Judgment.'] 36. 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 authorities under the next form. No. 94. xi. Allegation for Editing and Compiling a Book. [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 services, in compiling and editing a certain book, enti- tled "The ," and in preparing the same for the press, and revising and correcting the proofs of the same, performed at the request of the defendant, at the City and County of San Francisco, between the .... day of , 187., and the .... day of , 187. . II. That the defendant has not paid the same, nor any part thereof. IBemand of Judgment.} 37. 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. See, as to the rights of the author with- out copyright, in Donaldson v. Becket, 17 Pari. Hist 990; judgment reported in 4 Burr. 2408; Thurlow arg. in Tonson v. Collins, 1 W. Blackst. 306; Yates arg. Id. 333. This ease was never decided. Beckford v. Hood, 7 T. K. 620; and see 627; Vhappell v. Birdy, 14 Mees. & W. 303; Jeffreys v. Boosey, 30 Eng. L. & E. K. 1; Wheaton v. Peters, 8 Pet. 591; S. C. 11 Curtis' Decis. 223. We cannot, however, see any reason why a stronger case is required to raise an implied promise to pay on the part of publishers, for services rendered them, than for any other class of persons. ACCOUNTS. 291 No. 95. xii. For Services and Materials Furnished. [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 services of the plaintiff, performed at the request of the de- fendant, in [insert nature of work], and for materials fur- nished by the plaintiff in and about the said work, on the like request, between the day of , 187 . , and the day of , 187 . , at the City and County of San Francisco. , II. That he has not paid the same, nor any part thereof. I Demand of Judgment.^ No. 96. xiii. Allegation for Tuition Bills. [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 performed at the request of the defendant, in instructing his children in various useful branches of learn- ing, and for books, papers, and other necessary things fur- nished by this plaintiff in and about said work, at the like request, and for the board, lodging, and other necessaries for said children, provided by the plaintiff during said time, at the like request, between the .... day of , 187 . , and the .... day of , 187 . , in the sum of dollars, II. That the defendant has not paid the same, nor any part thereof [except, etc.] \_Demand of Judgment.'i 292 ON AWAEDS. CHAPTEE II. ON AWAEDS. No. 97. i. On an Award of Arbitrators — Common Form. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , disputes and differences existed between the plaintiff and defendant concerning [a demand of the plaintiff for labor and service jrendered by him for the defendant at his re- quest], and thereupon, on the day last aforesaid, the plaint- iff 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 an- nexed, marked "Exhibit A," and made part hereof. II. That thereafter the said A. B. duly qualified as such arbitrator, and heard the plaintiff and the defendant touch- ing their said matters of dispute, and thereafter, on the day of , 187 . , at , duly made and published his award, in writing, of and concerning the mat- ters so referred, and thereby said arbitrator awarded and declared, that after due appearance before him on behalf of this plaintiff and said defendant, he found that the said de- fendant was justly indebted to this plaintiff in the sum of dollars, for the services aforesaid [or otherwise, ac- cording to the fact] ; a copy of which 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 day of , 187 . , at , gave notice of said award to the defendant, and demanded of him pay- ment 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 plaintiff thereon the sum of dollars, with interest from the day of , 187 . . [Demand of Judgment.} ON AWAEDS. 293 1. Submission must be in Writing.— See Code C. P., sees. 1281 to 1290. Under section 1282 the submission must be in -writing. It may be stipulated in the submission that it be entered as an order of the County Court or District Court. When so entered it cannot 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 : Sec. 1283. The clerk must be authorized by the stipulation to make 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 : Pierait v. Kennedy, 43 Cal. 395; Eyan v. Dougherty, 30 Cal. 218. A stipulation that judgment in the District Court of, etc., may be rendered upon the award made in pursu- ance of the submission without a stipulation that the submission shall be entered as a rule of the Court, is not sufficient: FaircMld v. Boten, 42 Cal. 128. If the submission is not made a rule of Court, an action may be main- tained 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 at- tending the arbitration: Code C. P., see. 1290. In New York an action may be maintained upon the award: Gope v. Gilbert, 4 Den. 347; Dddrick v. Richky, 2 Hill, 271; Hays v. Says, 23 Wend. 363. 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: French v. New, 28 N. Y. 147. 2. Appeal. — A stipulation that neither party shall appeal from an award is not binding: Muldrow v. Norris, 2 Cal. 74. 3. Attorney's Povrer to Submit. — It is the practice throughout the tTnion for suits to be referred by consent of counsel, without special author- ity: Holker v. Parker, 7 Crauch. 436; Alexandria Canal Co.\. Swann, 5 How. (XJ. S.) 83; and see Green v. Darling, 5 Mass. 201. 4. Concurrent Acts — Tender. — 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 re- lease as provided by the award is not a condition precedent to the right to try an action to recover the money: Dudley v. Thomas, 23 Cal. 365. 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: Id.; Cole v. Munt, 2 Bosw. 116. But where matters awarded to be done are independ- ent, tender or demand before suit need not be averred: Nichols v. Eensselaer Co., 22 Wend. 125. 5. Conditions Precedent.— 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: McKinstry v. Solomons, 2 Johns. 57; Diblee ■ST. Best, 11 Id. 103. But under the Code, performance of the conditions of an award must be pleaded, as well as in the case of a contract: Cole v. Slunt, 2 Bosw. 116. 6. Conforming to Submissions. — A complaint on an award must show that the arbitrators conformed to the submission, and the powers of the arbi- 294 ON AWAKDS. trators: Gear \. Bracken, Bum. (Wis.) 88; Mathews -v. Mathews, 2 Curt. C. Ct. 105. 7. Delivery. — Where the award was required to be delivered to the par- ties, alleging that it was ready to be, and was, delivered to the plaintiff, it is bad: Pratt v. Sackett, 6 Johns. 11. 8. Election of Remedy. — Where the submission is by bond, the plaint- iff has his election to sue on the bond or on the award, if it is merely for the payment of money; but if a collateral thing is awarded, the suit must be on the bond, as debt will lie for money only: 2 Saund. 62. 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: 1 Lord Kaym. 115. It seems that a clause in a contract providing 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 con- tract: Binssee v. Paige, 38 N. T. 87. 9. Judgment upon Award. — Judgment may be entered on an award without an order of the Court: Oarsley v. Lindsay, 14 Cal. 390. But the award shall be in writing, signed by the arbitrators, or a majority of them, and be delivered to the parties: Cal. Code, sec. 1286. 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: Tyson v. Wells, 2 Cal. 122; over- ruled as to the report of a referee, in Oappe v. Brizzalara, 19 Cal. 607. 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 cannot afterwards question its validity on the ground that it was irregularly entered: Soogs v. Morse, 31 Cal. 128. 10. Jurisdiction. — Where the Court has no jurisdiction of a subject matter, the arbitrators can have none : Williams -•}, ■pTaHon, 9 Cal. 142. 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: Muldrow v. Norris, 12 Cal. Cal. 331. A court of equity may decree specific performance of an award: Whitney v. Stone, 23 Cal. 275. This does not apply to real estate, as no arbi- tration or award can be made affecting the title to real property in Cali- fornia: Spencer v. Winselman, 42 Cal. 479. 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 arbitrators : Hoogs v. Morse, 31 Cal. 128. But a submission to arbitration of title to real estate, being pro- hibited by statute, is not merely voidable, but is void and incapable of ratification: Wiles v. Peck, 26 N. Y. 42. 11. Notice. — Notice of the award and demand need not be alleged, un- less required by the terms of the submission : 2 Saund. 62 ; Rowe v. Young, 2 Brod. & B. 233. This is not, however, the law in California. There no- tice must be served on the opposite .party before judgment is entered: See sec. 1286, Code C. P. 12. Objection to Avirard. — Where an award is objected to on the ground that it embraces matters not in fact submitted, it lies with the object- ing party to show affirmatively in what the arbitrators have exceeded their duty: Blair v. Wallace, 21 Cal. 317. An award may be good in part and bad in part; WUlvms v. Walton, 9 Id. 146; 13 Johns. 364. ON AWARDS. 295 13. Parties. — Any person capable of contracting may submit to arbitra- tion any controversy, except a question of title to real property, in fee, or for life: Cal. Code, sec. 1281. This statute is but an afiSrmance of the com- mon 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 : Muldrow V. Norris, 2 Cal. 74; re-affirmed in Peachy v. Ritchie, 4 Cal. 205. 14. Partition. — 'Where, under an agreement in -writing, parties submit matters o f difference relative to the partition of lands to the award of arbi- trators, and an award is made thereunder, a specific performance of the award will be decreed: Whitney v. Stone, 23 Cal. 275. So in New York as to disputed boundaries : Stout v. Woodward, 5 Hun. 340; and Ohio, Sunt v. Guilford, 4 Ohio, 310. 15. Partners. — One partner cannot bind his copartner by a submission of partnership matters, but such submission would be good against him: Jones V. Bailey, 5 Cal. 345. Whenever parties may by their non-act transfer real property, or exercise any act of ownership, they may refer disputes con- cerning it to the decision of arbitrators, as at common law: Blair v. Wallace, 21 Cal. 317. 16. Power of Arbitrators.^ — As to the statutory provision, see Cal. Code, sec. 1284. The arbitrator must make his award within the time limited in the agreement: iJ.i/an v. Dougherty, 30 Cal. 218. An allegation that an award was made, imports that it was ready to be delivered ; Munroe V. Allaire, 2 Cai. 320. They may select an umpire either before or after in- vestigation: Dudley v. Thomas, 23 Cal. 365. And may award costs: Id. But after an award has been once made and delivered, they cannot amend the same without consent of the parties: Id. They shall be sworn, and a majority may determine any question: Cal. Code, sec. 1285. Arbitrators have no common-law powers when appointed in the mode provided by stat- ute : Williams v. WaUon, 9 Cal. 145. 17 . Favrer to Act. — Where there are three arbitrators, all shall meet, but two of them may do any act which might be done by all: Cal. Code, sec, 1285. 18. Publication. — The arbitrator cannot " award " without " publishing " his award, and ' ' publishing " is a technical phrase merely implying that the arbitrator has finally disposed of the case: Brooke v. Mitchell, 6 M. & W. 473. And when published, any alteration whatever, without consent of the par- ties, will vitiate it: Porter v. Scott, 7 Cal. 312. Notice of the award need not be averred, unless required by the terms of the submission : 2 Saund. 62 ; 6 M. & W. 474. No demand need be alleged unless expressly required: Rowe V. Toung, 2 Brod. & B. 233. 19. Revocation. — An agreement to submit a matter to common-law arbi- tration is, both at law and in equity, revocable before the award is given : 8 Co. K. 81; 7 East. 607; 1 Bing. 89; 5 Taunt. 452. And it cannot be made irrevocable by any agreement of the parties: Tobey v. The County of Bristol, 3 Story C. Ct. 800. Otherwise it seems, of a submission by rule of court: Masterson v. Kidwell, 2 Cranch. C. Ct. 669. After the arbitrators have been sworn, neither of the parties has the right to revoke the submission: Com- missioners Montgomery Co. v. Casey, 1 Ohio St. 463; 4 Dall. 222; 12 Mass. 47. 20. Submission. — To constitute a submission to arbitration under the statute, so as give the award the effect of a judgment, the statute must be 296 ON AWARDS. pursued in the manner in which the submission is filed with the clerk: Ees- lep V. San Francisco, i Oal. 1; Carsley y. Lindsay, 14 Id. 390. And the clerk may enter judgment on the award in due time, without any order of the court: See, also, Ryan v. Dougherty, 30 Cal. 218. And by the statutes of California, the submission to arbitration shall be in writing, and may be to one or more persons: Oal. Code C. P., sec. 1282. 21. Vacation of Avrard. — The Court may, on motion, vacate an award: 1. Where it was procured by fraud or corruption; 2. Where the arbitrators were guilty of misconduct; 3. Where the arbitrators exceeded their powers: Cal. Code C. P., sec. 1287; 58 N.Y. 667. Or it may modify or correct an award : 1. Where there is a miscalculation in figures; 2. When part of the award is on matters not submitted; 3. When, if it had been the verdict of a jury, it could have been amended, or the imperfection disregarded: Cal. Code C. P., sec. 1288. As, where the object of the submission is to make an end of liti^ gation, and the award is uncertain and incomplete upon its face, it defeats the object of the submission and must be set aside: Fierson v. Norman, 2 Cal. 599; Jacoi v. Ketchum, 37 Id. 197. 22. Valid Avraxda. — The rule is that arbitrators must pass upon all matters submitted: Muldrow v. Norris, 12 Cal. 331; Porter y. Scott, 7 Gal. 312. It seems that in New York, "that an arbitrator made an award," means a qualified arbitrator, and sufficiently imports that he was duly sworn, where an oath is required : Browning w. Wheeler, 24 Wend. 258. An award rendered upon fair arbitration, and for a long time concurred in, must be held to be conclusive: Jarvis v. Fountain Water Co., 5 Cal. 179. No award, implies no valid award; 14 M. & W. 822. An award settles forever all mat- ters fairly within the meaning and intention of the submission: 12 N. Y. 15;" Zowenstein v. Mcintosh, 37 Barb. 251. An award bad in part, may be en- forced for the part that is good, if not attacked for fraud, and the matter is divisible: Muldrow v. Norris, 2 Gal. 74. It must be certain and decisive as to the matters submitted, and thus avoid all further litigation: Jaco6 v. Ketchum, 37 Id. 197. Unless it is final and conclusive as to the matters sub- mitted, it is not admissible in evidence: Id. [Title.] No. 98. ii. On an Award of an Umpire. The plaintiff complains, and alleges : I. [Allegation as in Form No. 97.] II. That said A. B., before they proceeded upon the said arbitration, on the day of , 187 . , by writing under their hands, appointed one E. F. to be umpire in the matter so submitted; and the said arbitrators, after hearing the plaintiff and defendant, and not being agreed concern- ing the matters submitted to them, the said B. F. after- wards undertook said arbitration, and heard the plaintiff and defendant, and on the day , 187 . , the ON EXPEESS PKOMISES, 297 said arbitrators made their award, in writing, that the de- fendant should [pay the plaintiff dollars]. in. That he has not paid the same. [Demand of Judgment. ] 23. Allegation of an Enlargement of the Time.— That on the day of , 187., the plaintiff and defendant, by agreement [in writing, of which a copy is hereto annexed], extended the time for making the award until the day of 187. . 24. Appointment. — An umpire may be appointed by parol, unless the submission require the appointment to be in writing : Elmendorf v. Harris, 5 Wend. 516. 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: Vnderhill v. Van Gortlandt, 2 Johns. Ch. 339; Butler v. Mayor of N. T., 1 Hill, 489; Mayor of JV. Y. v. Butler, IBarb. 325. 25. 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 : Tomp- kins v. Corwin, 9 Cow. 255. 26. Form of Action. — The above form of complaint does not apply under the practice in this State. The report of a referee, and the award of an arbitrator, are in all essentials the same; Grayson v. Guild, 4 Cal. 122. 27. Power to ATvard. — 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 char- acter may be set up in the answer: Lyon v. Blossom, i Duer, ,318. OHAPTEB III. ON EXPEESS PEOMISES. No. 99. i. On an Express Promise in Consideration of a Precedent Debt. [Title.] The plaintiff complains, and alleges : I. That on the day of , ] 87 . . , at , the defendant then was 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. mand of Judgment.'] 298 ON EXPBESS PROMISES. 1. Consideration. — In every action upon a promise to pay, a considera- tion must be stated: Sailey v. Freeman, 4 Johns. 280. Sucli a consideration is an essential fact to be proved, and unless proved the plaintiff cannot re- cover: Gyle V. Shoenbar, 23 Cal. 538. In an action upon a promise to pay money, if the complaint contains no averment of consideration or of indebt- edness, except by way of recital, it is insuflSoient: Shafer v. Bear River and Aub. W. and M. Co., 4 Cal. 295. 2. Consideration, in Purchase of Land. — Defendant, upon the pur- chase of certain land from B., agreed in writing as part of the considera- tion, 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 the Statute of Frauds, and plaintiff may recover the debt from defendant: McLaren v. Hutchinson, 22 Cal. 187. A promise or agreement to convey lands in consideration of the purchaser's paying for them out of the profits, is void, as having no consideration: Dorseyv. Paekwood, 12 How. U. S. 126. A promise made under mistake, as to liability, is void: Offut v. ParroU, 1 Cranch, 154. 3. Consideration — Married Woman. — The advance of money to the son of a married woman is not a sufficient consideration for her subsequent promise to repay: Watson v. Dunlap, 2 Cranch, 14. 4. 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 plaintiff, although the latter was not privy to the consideration. And a creditor can maintain an action against a person who had received money from his debtor, upon a promise to pay the amount to the creditor: Secor v. Lord, 3 Eeyes, 525. "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 consideration to support such promise :(-Bamngerv. Warden, 12 Cal. 311. m. 100. ii. Vpon Compromise of an Action. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , sin action was pending in the Court, brought by the plaintiff to recover from the defendant the sum of dol- lars, for goods sold by plaintiff to the defendant. II. That on the .... day of , at , in consideration 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 no part of said sum has been paid. [Demand of Judgment. 1 ON EXPBESS PEOMISES. 299 5. Claims must be Shown. — A complaint on " promise in considera- tion of a compromise, should show that there was some shadow of a claim: Solcher v. Fry, 37 Barb. 152; though it need not show that the plaintiff had a valid claim: Palmer v. North, 35 Id. 282. 6. Consideration. — An agreement to compromise, not unconscientious or unreasonable, must be executed, without regard to the merits of the dispute Sargent v. Lamed, 2 Curt. 340. 7. Covenant not 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: Rowland v. Marvin, 5 Cal. 501. A covenant not to sue made to a portion only of joint debtors, does not release any of them : Matthey v. Oally, 4 Cal. 62. 8. Discontinuance of Action.— It must also aver that the litigation was discontinued according to the compromise: Dolcher v. Fry, 37 Barb. 152. m. 101. iii. Promise of a Third Person to Pay Money to Plaintiff. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , one A. B. was, and ever 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], and then indorsed and de- livered the same to the defendantj in consideration of which the defendant then and there promised A. B. that he would endeavor to collect 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. I Demand of Judgment.'] 9. Condition Precedent. — On a promise to pay money when collected, collection is a condition precedent, and must be averred: Dodge v. Codding- ton, 3 Johns. 146. 10. Form. — This form is supported by Delaware and Budson Canal Co. v. Westchester County Bank, 4 Den. 97. We have, however, changed it by add- ing to and striking out portions. Money received by a third person, 6n promise to pay creditor's debt, may be recovered: Goddard v. Mockhee, 5 Cranch, 666. 11. Refusal to Pay. — In an action for a breach of an agreement to pay money to A. for the benefit of B., it is not necessary to aver that the defend- ant has refused to pay to B., as well as to the plaintiff: Bowland v. Fhalen 1 Bosw. 43. 300 ON EXPEESS PEOMISES. 12. Vendor of Lauds. — Defendant, 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.: Held, that this agreement was not within the Statute of Frauds, and gave plaintiff a right of action against defendant for the debt: McLarens. Sutchinson, 22 Gal. 188. Whether the assent was neces- sary to fix defendant's liability: See Lewis v. Covillaud, 21 Id. 178. 13. 'When Action Lies. — AssumpsU 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: LawrasoriY. Mason, 3 Cranch, 492. 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 0. may maintain an action for the debt •in his own name against A.: Lewis v. Covillaud, 21 Cal. 178; McLaren v. Hutchinson, 22 Id. 187. Defendant being indebted to E. M. & Co., and they to plaintiff, all parties agreed that defendant should pay the amount of his indebtedness 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: Wiggins v. McDonald, 18 Cal. 126. Ifo. lOS. iv. On a Promise to Pay for the Surrender of a Lease. [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 , 187 . , and ending on the .... day of , 187 . , under which he was entitled to the possession of said house and lot. II. That on the .... day of , 187 , the defendant promised the plaintiff that in consideration that he, the plaintiff, 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 unex- jrired term of said lease, and the possession of said land, to the defendant. IV. That no part of said sum has been paid. [^Demand of Judgment. 2 ON EXPBES8 PEOMISES. 301 No. 103. V. For the Purchase Money of Land Conveyed. [Title.] The plaintiff complains, and alleges : T. That on the .... day of , 187., 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 doUars for the said [house and lot]. III. That he has not paid the same. IDemand of Judgmenf} 14. Consideration of Deed.— In New York, an action will lie for the consideration of a deed, although there was no valid contract under the Statute of Frauds: Thomas \. Dicldnson, 12 N. Y. 364; even when the deed contains a receipt for the consideration: Shephard v. Little, 14 Johns. 210; Thomas v. Dickinson, 12 N. Y. 364. 15. Delivery. — Under a verbal contract of sale of real estate, the de- livery of the title deeds is equivalent to a symbolical delivery of and admis- sion into the possession of the property, as between vendor and vendee: Tohler v. Folsom, 1 Cal. 207, and note. 16. Request is implied by the word " sold:" 1 Saund. 264, note 1; Gom- stock V. Smith, 7 Johns. 87; Parker v. Crane, 6 Wend. 647. 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 contract, as the vendor may enforce the pay- ment at any time after it is due: Gouldin v. Buckelew, 4 Cal. 107. 17. Allegation of New Promise.— 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 indebtedness. 18. Conditional New Promise.— When the new promise is coupled with a condition, it should be so alleged, and performance must be averred: Wait V. Morris, 6 Wend. 394. 19. Consideration.— It is well settled with reference to actions for moneys due on contracts, that the statute does not discharge the debt, or in any way extinguish the right or destroy the obligation, but only takes away a remedy. The debt remains unsatisfied and unextinguished. It is a sufficient consideration to support a new promise: Tovmsend v. Jemison, 9 How. U. S. 413; Bulger v. Roche, 11 Pick. 37; Lincoln v. Baiielle, 6 Wend. 485; Ang. on Lim. p. 268, sec. 213; Chahot v. Tucker, 39 Oal. 434. 20. Election. — 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: Lonsdale v. Brown, 4 Wash. C. Ct. 148. Where a debtor promises to pay when able, and the creditor does not wait, but proceeds immediately on the original ob- ligation before defendant is able to pay, he cannot afterwards resort to an action of assumpsit on the new promise. In Iowa, the new promise must be alleged. Id. 302 ON EXPBESS PEOMISES. 21. Missouri.— Under the statute of 1845, and in revision of 1855, the promise or acknowledgment must be in writing, or it is of no effect: Black- burn v. Jaclcson, 26 Mo. 308. 22. New York Practice.— 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 allegation: Esselstyn v. Weeks, 12 N. Y. 635; Clark v. Atkinson, 2 E. D. Smith, 112. And the same rule applies after a discharge in bankruptcy or insolvency: Shippey v. Henderson, 14 Johns. 178; Depuyr. Swart, 3 Wend. 135. 23. Ohio.— 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 writ- ing as the cause of action. Sturges v. Burton, 8 Ohio St. 215. 24. Promise in Writing. — Where a promise to pay a debt is relied on to take a case out of the Statute of Limitations, it is not necessary, in plead- ing, to allege that it was in writing, signed by the party : Xs/nc7i v. Musgrave, Hayes & Jones, 821. It is otherwise in California: Porter v. Elam, 25 Cal. 291. 25. 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 positive averment. Supervisors of Allegany v. Van Campen, 3 Wend. 48. 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 requested" is not enough: Bush v. Stevens, 24 Wend. 256. 26. Statute of Iiimitatious. — It is held in California that where the ac- knowledgment is made while the contract is a subsisting liability, 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 remedy. That, therefore, when the creditor sues after the statute has barred the original contract, his cause of action is not upon the original con- tract, 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 eonscieniiw: McCormack v. Brown, 36 Cal. 180; Ghabot v. Tucker, 39 Id. 438. That the statute acts only on the remedy, and does not raise a pre- sumption of payment: See Johnson v. Albany, etc. E. B. Co., 54 N. Y. 416. 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 ob- ligation: Van Alen v. Felt^, 9 Abb. Pr. 277; Sands v. St. John, 23 How. Pr. 140. 27. Time to be Averred.— The time of such new promise must be defi- nitely averred. An averment of repeated acknowledgments will not suffice: Bloodgood v. Bruen, 8 N. Y. 362. The acknowledgment must be a direct, distinct, unqualified, and unconditional admission of the debt which the party is liable and willing to pay: McCormack v. Brown, 36 Cal. 185, and cases there cited. GOODS SOLD AND DELIVEEED, 303 CHAPTEE IV. GOODS SOLD AND DELIVEEED. No. 104. i. Common Porm on Account, [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . [or between two dates, naming them], at , the defendant was indebted to the plaintiff in the sum of dol- lars, on an account for goods [describe the property sold briefly, at least as to its general character,] sold and deliv- ered 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.'] 1. Amount Due. — The failure to state the amounts due, severally, for goods and for money, in a confession of iudgment, would be fatal: Cordier T. ScUoss, 18 Oal. 576. 2. At his Request. — The averment, " at his request," is not requisite: Acome v. Avier. Min. Co., 11 How. Pr. 24; Glenny v. Hitchins, i Id. 98; Victors y. Davis, 1 Dowl. & L. 986. 3. Cause of Action. — 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, states a cause of action : Abadie v . Car- rillo, 32 Cal. 172. 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 de- murrer: Phillips v. Barilett, 9 Bosw. 678. 4. Description of Goods. — A party must be presumed to know what was intended by his account, and therefore where a bill of sale is set forth in hcBC verba, it remedies a defect in the description of the quantity of goods sold: Cochran y. Goodman, 3 Cal. 24;4. 5. Implied Promise. — The implied promise to pay is matter of law, and should not be pleaded: Parron v. Sherwood, 17 N, Y. 227. 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, as he may waive the tort and sue for goods sold; Harpen- ding v. Shoemaker, 37 Barb. 270. 6. Indebitatus Assumpsit, — A count in the ordinary form of counts in 304 GOODS SOLD AND DELIVEKED. indebitatus assumpsit for goods sold and delivered, is sufficient: Freeborn v. Glazier, 10 Cal. 337. 7. Insuffloient Allegations. — A declaration is insufficient which alleges an indebtedness and sets forth an account, but does not allege the sale or de- livery of the articles to the defendant, nor show in what place or what man- ner the indebtedness accrued, whether on account of the defendant or that of another: Mershon v. Randall, 4 Cal. 324. 8. Partnership.— In a complaint in an action by several plaintiffs to re- cover for goods sold and delivered, an allegation of partnership is not neces- sary, and an allegation of sale and delivery sufficiently implies that the goods belong to the plaintiff: PhiUips v. Bartlett, 9 Bosw. 678. 9. Quantity. — That the plaintiff had purchased a quantity of goods 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: Cochran v. Goodman, 3 Cal. 244. Where the complaint sets forth in hceo verba the bill of sale, it was held to remedy a defect in the description of the quantity of goods sold: Id. No. 105. ii. The Same — Short Form. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . [or betweeb certain dates, naming them], 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 de- fendant at II. That he has not paid the same. [Demand of Judgment.'] 10. Balance of Account for Goods Sold.— The complaint stated a cause of action for goods sold, and, in addition, with a view to meet a prob- able defense of payment based upon the giving of certain notes by defend- ant, and a receipt in full by plaintiff, stated the making of the notes and re- ceipt, and alleged facts attending the transaction which, if true, avoided its effect as payment, by reason of fraud and misrepresentation on the part of defendant: Eeld, that the allegations of the complaint in reference to the transaction claimed to operate as payment, were not material allegations re- quiring a denial, and were not therefore admitted by the failure of defendant to deny them: Ganfield v. Tobias, 21 Cal. 349. 11. Form.— This form is supported by Allen v. Patterson, 7 N Y. 476- Adams y. Eolky, 12 How. Pr. 326; Cudlip v. Whipple, 4 Duer, 610; GraharL V. Camman, 5 Duer, 697; Chamberlain v. Kaylor, 2 E. D. Smith, 134. 12. Nature of Claim.-The complaint should indicate the nature and character of the claim, and the period within which it arose: Farcy v Lee, 10 Abb. Pr. 143. GOODS SOLD AND DELIVERED. 305 No. 106. iii. For Goods Sold and Delivered at a Fixed Price. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , he sold and delivered to the defendant [fifty casks of sugar, or other goods, describing them] . II. That the defendant promised then to pay dol- lars for the said goods [in gold coin of the United States]. m. That he has not paid the same. [_Demand of Judgment.'] 13. Debt, ■when Due. — It is not necessary to specify any time at which the debt was to be paid: Peets v. Bratt, 6 Barb. 662; Gihbs v. Southam, 5 Barn & Adol. 911. A general promise is to be construed as a promise to pay immediately: Id. And if the promise was to pay at a certain time not yet elapsed, it is matter of defense: Smith v. Bolmes, 19 N. Y. 271. But if a day was fixed, it will, if stated, furnish a date for the commencement of interest: Van Bensselaer v. Jewett, 2 N. T. 140. 14. Demand. — No demand is necessary: Gibbs v. Southam, 5 Barn. & Adol. 911; Lake Ontario B. B. Co. v. Mason, 16 N. Y. 451. On an agreement to pay on request, though no request is necessary, a demand is necessary if the promisor be a surety : Nelson v. Sostwick, 5 Hill. 37 ; Douglass v. Bath- bone, Id. 143. But upon a state of facts in whiclj a demand would be neces- sary if the plaintiff sued for damages for conversion, it is equally necessary where he sues upon the implied contract, waiving the tort: Spoor v. Newell, 3 Hill . 307. The averment of the demand is proper, to fix the time of in- terest: Beers v. Beynolds, 1 Kern. 97. 15. 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: Meyer v. Kohn, 29 Cal. 278; see Gal. Code C. P., sec. 667. 16. Haec Verba.^ — When the complaint sets forth in hcBC verba the bill of the articles purchased, it is sufficient to inform the defendant with what he is charged, for he is presumed to know what is intended by his own ac- count: Cochran v. Goodman, 3 Cal. 245. And it was held to remedy a defect in the description of the quantity of goods sold: Id. 20 306 GOODS SOLD AND" DELIVERED. No. 107. iv. The Same, at a Reasonable Price. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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. IDemand of Judgment.^ 17. Debt Due. — It is not necessary to show that the debt was due be- fore the commencement of the action, nor even at the date of the complaint : Smith V. Holmes, 19 N. Y. 271. 18. Promise. — The promise to pay alleged in the common 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: WUkins v. Stedger, 22 Cal. 232. From the indebtedness admitted, the law implies a promise to pay, and the denial of any express promise raises no issue: Levinson v. Schwartz, 22 Cal. 229. The law implies a promise to pay so much as the goods are reasonably worth. This is, however, a matter of law, and should not be pleaded: Farron v. Sherwood, 17 N. Y. 230. 19. Value, Allegation of. — The allegation of value is material: Gregory V. Wright, 11 Abb. Pr. 417. 2fo. 108. V. The Same, on Specified Pi-ice and Credit. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187., at , the plaintiff sold and delivered to the defendant at his re- quest [describe articles], for the sum of dollars. II. That the defendant promised to pay therefor to the plaintiff the said sum of dollars, on or before the day of , 187.. III. That he has not paid the same. \_Demand of Judgment.'} 20, Demand, Averment of.— The object of averring a demand is simply to can-y interest. It has been held in New York that where goods are pur- chased at a ijrice fixed, and without fixing any term of credit, if, after rea- sonable time elapses, the account is presented, and impliedly admitted, in- terest is properly chargeable from the time of the demand: Beers v. Eeynolds, 11 N. Y. 97-102; affirming S. 0., 12 Barb. 288. GOODS SOLD AND DELIVERED. 307 N'o. 109. vi. The Same, by Assignee for Price of Stock and Fixtures of Store and Good Will, Payable by Installments. [Title. ] The plaintiff complains, and alleges : I. That on the .... clay of , 187 . , 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 relinquished to the defendant the good will of the busi- ness theretofore carried on there by said A. B. II. That the defendailt promised to pay to the said A. B. therefor the sum of dollars, in five equal monthly installments, the first installment to be paid on the . . . day of , 187 . , and the remaining installments to be paid on the .... day of each succeeding month, until all shall be paid. III. That the defendant has not paid the same, nor any part thereof. IV. [Allege assignment to plaintiff.] \_Demand of Judgment.^ 21. Good 'Will. — Good will of a trade is the probability that the business ■will continue in the future as in the past, adding to the profits of the con- cern, 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 part of the partner- ship property, and adds to the value of property and stock, and will accom- pany the sale: Bell v. Ellis, 33 Gal. 620. Plaintiff having bought certain horses of defendant, as also the "good will " of a mercantile house in the matter of drayage, cannot sue to recover back the purchase money on the ground that such "good will" is not vendible: Buckingliam y. Waters, 14 Cal. 146. No. 110. vii. The Same, by a Firm i,n which there is a Dormant Partner, the Price being Agreed upon. [State and Coitntt.] [Cotjkt.] A. B., J. H., and J. C. J., Plaintiffs, against John Doe, Defendant. J 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. 0. J., is a dormant partner in said firm. GOODS SOLD AND DELITEEED. II. Tha.- on or about the. . . .day of , 187., the said plaintiffs, in their firm name, sold' and delivered to de- fendant 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, marked "Exhibit A," and made part of this complaint, amounting to the sum of dollars. III. That defendant promised to pay the same at the ex- piration of four months from the said date of sale. IV. That said time has elapsed, the said defendant has not paid the same or any part thereof, and said amount is due. \^Demand of Judgment.'] 22. Partners as Plaintiffs. — A dormant partner is a necessary party- plaintiff: See Secor v. Keller, 4 Duer, 416; compare Selshaw 7. Colie, 1 E. D. Smith, 213; see, further, "Parties," ante. No. 111. Tiii. For Goods Delivered to a Third Party at Defendant's Bequest, ai a Fixed Price. [Title. ] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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. IDemand of Judgment. 1 23. Delivery. — When goods sold are delivered to a third person for the exclusive use of such person, the plaintiff, in an action against the pur- chaser, 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: Smith v. Leland, 2 Duer, 497. But a variance in this respect may be disregarded if the defendant does not appear to have been misled: Rogers v. Verona, 1 Bosw. 417; JBriggs v. Evans, 1 E. D. Smith, 192. 24. Who Liable.— That person is liable to whom the creditor at the time gave the credit: Storr v. Scott, 6 Carr. & P. 241; Chitt. on Cont. 226; Story on Agency, 213, sec. 263; Smith's Merc. L. 212. But if the credit is not given to the person making such agreement, his undertaking is collateral, and must be in writing: Dixon v. Frazee, 1 E. D. Smith, 32; BriggsY. Evans, Id. 192. ON GUABANTEES. 309 2^0. lis. ix. For Goods Sold, hut not Delivered, Price Fixed. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , he sold to the defendant [all the potatoes then growing on his farm in ]. II. That defendant promised to pay plaintiff dol- lars for the same. III. That he has not paid the same. [_Demand of Judgment.'] OHAPTEE V. ON GUABANTEES. No. US. i. Against Principal and Sureties on Contract for Work. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , certain articles of agreement were made and entered into between the plaintiff and the defendants under their respective hands and seals, and bearing date the day of , 187 . , 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 , 187 . , and that on that day he was entitled to have and re- ceive from the said defendants, upon the said contract, for the said work, mentioned in the said agreement, a large sum of money, viz., a sum of dollars. III. That the said defendants have wholly failed to per- form the said contract on their parts. IV. That they have not paid the same. • IDemand of Judgment. 1 310 ON GUABANTEES. 1. Absolute Guaranty.— In cases of a clear and absolute guaranty, de- mand on the principal and notice to the guarantor is not necessary: Allen v. Bighimsre, 20 Johns. 365; Mann v. Eclcford, 15 Wend. 502; Kemble v. Wallis, 10 Id. 374; Rushmore v. Miller, 4 Edw. 84; Van Bensselaer v. Miller, Hill & D. Supp. 237; McKenzie v. Farrell, 4 Bosw. 192; but compare Mechanics' Fire Ins. Co. V. Ogden, 1 Wend. 137; 11 Wend. 100. 2. Acceptance of Guaranty. — A mere offer to guarantee is not binding, until notice of its acceptance is communicated by the guarantee to the guar- antor, but an absolute guarantee is binding upon the guarantor, without notice of acceptance: Civil Code, sec. 2795. 3. Conditional Guaranty. — 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 : Douglass v. Bowland, 24 Wend. 35. 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: Morris v. WadswoHh, 17 Wend. 103; but see Cooke v. Nathan, 16 Barb._342; see, also, Prentiss y. Garland, 64 Me. 155. 4. Condition Precedent. — Where one guarantees the debt of another in consideration 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: Smith v. Compton, 6 Gal. 24. Upon a guaranty that the judgment is collectable, proceedings for the collection in due course of law is a condition precedent, and its performance must be shown, or excuse for its non-performance: Mains v. Saight, 14 Barb. 76. 5. Consideration. — A guaranty must be in writing, but the consideration need not be stated: Packard v. Richardson, 17 Mass. 122. And it is con- fined to the person or persons to whom addressed to give a credit on it: Taylor t. Wetmore, 10 Ohio, 490. 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 contract takes the guaranty out of the Statute of Frauds: Jones v. Post, 6 Cal. 102; see Civil Code. sec. 2792; Ellenwood v. Fults, 63 Barb. 321. 6. Construction. — 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: Crist v. Bur- lingame, 62 Barb. 351. In case of ambiguity, the language is to be construed most strongly against the guarantor: Id. 7. Continuing. — 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 continu- ance of the undertaking, the presumption is in favor of a limited liability as to time, whether the amount is limited or not: Crist v. Burlingaine, 62 Barb. 351; Doscherv. Shaw, 52 N. Y. 602; Sickle v. Marsh, 44 How. Pr. 91. As to liability of guarantors, generally, see Civil Code, sees. 2806-2815. 8. Demand.— If the guarantor is to pay, in case the principal fails to pay on demand, a demand is necessary, and must be averred and proved: Doug- lass V. Ralhhone, 5 Hill, 143; Dank of N. Y. v. Livingstone, 2 Johns. Gas. 409; Nelson v. Bostwick, 5 Hill, 37. If one guaranties a debt to be collected by ON GUABANTEES. 311 himself, demand on the principal debtor need not be shown ; otherwise on a demand against one ^yho merely g^uaranties a debt where the creditor is to collect : Milliken v. Byerly, 6 How. Pr. 214. 9. Demand and Notice.— In an action where the plaintiff guarantied that certain certificates 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: Hank y. Criilenden, 2 McLean, 557. 10. General Guaranty. — On 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: Clark v. Burdett, 2 Hall, 197; Union Bank V. Coster, 3 Comst. 203. So where demand would be useless, as where principal debtor is insolvent: Morris v. Wadsworth, 11 "Wend. 100; see, also, Cooke V. Nathan, 16 Barb. 342. 11. Guaranty on Charter-Party. — 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: Eazeltine v. Larco, 7 Cal. 32. The charter-party referred to in the guaranty becomes part thereof. But if the guaranty were executed subsequently, it would fail for want of consid- eration, or of the expression of consideration: Id. 12. 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 remittance of the proceeds: Civil Code, sec. 2029. 13. 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: Allen v. Fosgate, 11 How. Pr. 218; overruling Enosy. Thomas, i Id. 48. So a claim against a debtor on a sealed contract, and one against a guarantor by another sealed instrument in the paper, cannot be united {De Bidder v. Schermerhorn, 10 Barb. 638), as the original liability and the guaranty are separate contracts: Brewster v. Silence, 4 Seld. 207; overruling Enos v. Thomas, 4 How. Pr. 48. But they may be joined when they engage by one instrument: Carman v. Plass, 23 N. Y. 286. In Iowa, under a similar statute, the contrary is held: Marion v. Adamson, 11 Iowa, 371. In California they may be joined whether the liability is created by the same or separate instruments: Code C. P., sec. 383. 14. Promise in Writing. — It need not be alleged in the complaint that the promise of the guarantor was in writing: 1 Chitt. PI. 270; Wakefield v. Greenhood, 29 Cal. 597. A parol guaranty of the payment or collection of a note, given on its transfer in payment for property purchased, or debt due by the guarantor, is not within the Statute of Frauds, but may be enforced: Losses V. Williams, 6 Lans. 228. An agent authorized to sell a note, and not limited by instructions, can bind his principal by a guarantee that it is good or collectible : Id. As to the sufficiency and validity of parol promises, as original and independent contracts, to exclude the operation of the Statute of Frauds, determined in cases depending on particular facts: see Clifford 312 ON GUAEANTEES. V. Zuhring, 69 111. 401; Bunting v. JDarbyshire, 75 Id. 408; Earn y. Bray, 55 Md. 555; WiUs v. Brown, 118 Mass. 137; Wallar v. Hill, 119 Id. 249; Booth T. Eighmie, 60 N. Y. 238; Townsend v. Long, 77 Pa. St. 143. 15. Promissory Note. — For action against principal and sureties on promissory note, and against guarantors thereon, see " Promissory Notes," post, chap. 3. 16. Request. — Where the guaranty is to pay the debt on request, request should be specifically averred: Bush v. Stevens, 24 Wend. 256; Nelson v. Bost- wiek, 5 Hill, 87; Douglass v. Bathbone, Id. 143. No. lU. ii. On an Agreement to be Answerable for the Price of Goods Sold. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , in consideration that the plaintiff, at the request of the de- fendant, would sell to one A. B., on a credit of .... months, such goods as said A. B. should desire to buy of this plaint- iff, the defendant 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 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 , 187., at , payment of the same was demanded by the plaintiff from the defendant. VI. That the defendant has not paid the same. [_ Demand of Judgment. ] 17. 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 guaranty. Motchlciss v. Barnes, 34 Conn. 27. 18. Growing Fruit.— Where a vendor of shares of fruit, growing in an orchard, guarantied the vendee that he should collect the fruit without dis- turbance 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: Dabovich v. Emerio, 12 Cal. 171. ON GUARANTEES. 313 19. 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 de- mand is collectible by the usual legal proceedings, if taken with reasonable diligence: CiTil Code, sec. 2800. 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: Id., sec. 2801. 20. Liability, Limitation of. — ^Where one guaranties in writing the debt of another for goodf? sold and delivered, by the guaranty the defendant be- comes the debtor of plaintiff, and no limitation could defeat the action, ex- cept that prescribed for indebtedness evidenced by the written guaranty : Whiting v. Clark, 17 Cal, 407. ' 21. Misjoinder of Causes of Action. — A separate guaranty for goods sold, in connection with an action against purchaser, cannot be united : Le Hoy V. Shaw, 2 Duer, 626; Spencer v. Wheelock, 11 L. O. 329. 22. Notice. — Where the guaranty relates to a bill of goods, the guarantor must be immediately notified of the acceptance of the guaranty: Taylor -v. Wetmore, 10 Ohio, 490; to be given in a reasonable time: Mussey v. Baynor, 22 Pick. 223; Norton v. Mastman, 4 Greenl. Rep. 521; Tuckerman v. Freneh, 7 Id. 115; Bahcocky. Bryant, 12 Pick. 133; Beeknian v. Hale, 17 Johns. 134. In some of the States, the guarantor is entitled to notice that his guaranty has been accepted: Oaks v. Weller, 13 Vt. 106; Hawk v. Crittenden, 2 Mc- Lean, 557; How v. Nichols, 9 Shepley, 175; Eillv. Colvin, i How. (Miss.) 231. 23. Notice, Limitations. — A delay of three years in giving notice that & guaranty in similar terms has become operative, discharges the guarantor: Whiting v. Stacy, 15 Gray, 270. No. 115. iii. Against Chmrantor of Mortgage, to Recover Deficiency afte/r Foreclosure. [Title.] The plaintiff complains, and alleges : I. That on or about the day of , 187 . , the defendants entered into an agreement with the plaintiff, under their hands and seals, in the words and figures fol- lowing: [Copy agreement.] II. That the principal sum secured by the note and mort- gage referred to in the said agreement, became due and payable on the day of , 187 . , and that on or about, etc., the plaintiff commenced an action in the Dis- trict Court of the Judicial District, County of , in this State, for the foreclosure of the said mortgage; and such proceedings were thereupon had; that on the day of , 187 . , 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 314 ON GUARANTEES. should be insufficient to pay the amount reported due to the plaintiff, with interest and costs, the amount of such defi- ciency 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 purchaser 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 , 187., a judgment was ren- dered in said Court against W. in favor of the plaintiff, for the said sum of, etc., with interest from , 187 . , 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 deficiency, and at the same time tendered to them an assign- ment 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 the 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 of Judgment.'] 24. Form. — This form is from "Abbott's Forms," vol. i, p. 295, and is sustained by Qoldsmiih v. Brown, 35 Barb. 485, but the recovery is limited by the sum actually paid. 25. Action may be on the Note. — Because a mortgage given to se- cure the payment of several notes falling due at different times, provides for payment at times or in modes different from the notes, is no objection to suit on the notes at their maturity. The mortgage is no part of the contract of indebtedness: Robinson v. Smith, 14 Gal. 95. 26. Action by Administrator. — In California, in an action against an administrator to foreclose a mortgage executed by the intestate, no judgment can be entered up for any deficiency which may remain after the application of the proceeds of the sale of the mortgage debt : Pichaud v . Binquet, 21 Cal. 76 ; thus doing away altogether with the necessity of any action for the de- floieuoy. 27. Covenant in Bond. — For a form of a complaint in an action upon a covenant of guarantee, by which the covenantor becomes surety for the punctual payment of the bond of other persons, and undertakes that, if ,de- ON GUAEANTEES. 315 fault shall be made by them, he will pay and fully satisfy the mortgage mentioned in the bond; See Farnham v. Mallory, 5 Abb. Pr. (N. S.) 380. 28. Demand of Judgment.— If the sheriff returns the amount due, and the plaintiff has not been fully paid by the 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: Zevision v. Swan, 33 Cal. 480. 29. Interest. — Where the assignee of a mortgage agreed to waive his lien in favor of one who had agreed to advance money to replace buildings de- stroyed by fire, but no agreement at the time was made as to interest, the guaranty of the assignee extended no further than the contract, and as this was silentas to the interest, a higher rate of interest than the law allowed could not be collected: Godfrey v. Caldwell, 3 Cal. 101. 30. Letter of Credit.— " Let M." (the writer's brother) "have what goods he may want, on four months, and he will pay as usual:" Held, to be merely an expression of confidence, and not a guaranty: Eaton v. Mayo, 118 Mass. 141. 31. Mortgage as Security. — This form of action would not apply under the statutes of California, and we here append the following notes and au- thorities as to the practice in this State. It will be seen by the current of authorities that the action must be upon the original indebtedness, and that the mortgage is considered as a mere security: McMillan v. Richards, 9 Cal. 365. A mortgage is therefore a mere security for the debt, and does not pass the fee, nor give a right of entry: Id.; Baffley v Maier, 13 Cal. 13; Fogarty V. Sawyer, 17 Cal. 589. A mortgage in this State, then, does not confer a right to the possession of real property, except as a result of foreclosure and sale: Kidd v. Teeple, 22 Cal. 255. And the vendee of the mortgagor cannot be ousted by a purchaser under the decree of foreclosure and sale, unless such vendee was made a party to the foreclosure suit : Baffley v. Maier, 13 Cal. 13. 32. Mortgage not a Conveyance. — It shall not be deemed a convey- ance, whatever its terms, so as to enable the owner of the mortgage to re- cover possession of the real property, without a foreclosure and sale: Cal. Pr. Act, sec. 260; Code C. P., sec. 744. Kestricting the mortgage to the mere purposes of security: McMillan v. Richards, 9 Cal. 365; Graitan v. Wiggins, 23 Cal. 16; Button v. Warschauer, 21 Cal. 609; Skinner v. Buck, 29 Cal. 253. The words " whatever its terms," do not relate to stipulations for possession or sale: Fogarty v. Sawyer, 17 Cal. 589. 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 laud at public auction, and execute to the purchaser a gpod and sufficient deed of the same, upon default in paying the note or iuteuest, 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: Koch v. Briggs, 14 Cal. 256. 33. Necessary Averment. — The plaintiffs held certain security on real estate for the payment of an indebtedness of 'M. to them, but gave up and canceled such security upon B. executing a bond in their favor, the condi- tion of which was that B. should pay to the plaintiffs such amount, not ex- ceeding $4,000, as should be found due to them from M. after sale of certain 316 ON GUARANTEES. goods, and tlie winding up of the acoounts of M. with the plaintiffs, the pay- ment of which bond was guarantied hy the defendant under the same con- ditions expressed therein: Held, in an action on the defendant's guaranty, that the want of an averment in the complaint of the winding up of the ac- counts of the plaintiffs withM., or any averment equivalent thereto, ren- dered the complaint substantially defective, and judgment was given for the defendant on demurrer to the complaint: Mickle v. Sanchez, 1 Cal. 200. 34. Parol Evidence. — Parol evidence of previous agreement to give a guaranty, or of knowledge of the relations between the principal parties, is inadmissible to make that a continuing guaranty which is not so upon its face: Boston, etc.. Glass Go. v. Moore, 119 Mass. 435. So to charge one as guarantor who is not embraced in the writing: 33 Mich. 520. No. 116. iv. On a Quaraniy of a Precedent Debt. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , at , one A. B. was indebted to this plaintiff in the sum of .... .... dollars. II. That on the .... day of , 187., at , the defendant made and subscribed a memorandum in writing, of which the following is a copy: [copy of the guaranty], and delivered the same to the plaintiff, whereby he promised to the plaintiff to answer to him for said debt. III. That the plaintiff duly performed all the conditions thereof on his part. IV. That the defendant has not paid the same. \_Bemand of Judgment.'] No. 117. V. Against Sureties for Payment of Bent. [Title.] The plaintiff complains, and alleges : I. That on.... day of , 187., at , one W. B. hired from the plaintiff for the term of years the [house No , street, city of , at the an- nual rent of dollars, payable monthly]. II. That [at the same time and place] the defendant agreed, 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 ON GUABANTEES. 317 day of , 187 . , amounting to dollars, has not been paid. [If by the terms of the agreement notice is required to be given to the surety, add:] IV. That on the.... day of , 187 . , 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. [_Demand of Judgment.'] 35. Consideration. — The second count is a sufficient statement of con- sideration: Caballero v. Slater, 14 0. B. 303. 36. Leases. — At the time of the execution of a lease from A. to B., 0. 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: £!voy v. Tewksbury, 5 Cal. 285. 37. Guaranty to be in 'Writing. — The following provisions of the Civil Code of California cover so many disputed questions, that it is thought best to insert them here : Sec. 2793. Except as prescribed by the next section, a guaranty must bo 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 re- ceived 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 consideration 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 per- son 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 prom- ise as a substitute therefor; or upon the consideration that the party receiv- ing it release the property of another from a levy, or his person from impris- onment under an execution on a judgment obtained upon the antecedent obligation; or upon a consideration beneficial to the promisor, whether mov- ing from either party to the antecedent obligation, or from another person; 4. Where a factor undertakes, 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. 318 INSURANCE. CHAPTBE VI. INSUKANCE. No. 118. i. On Fire Policy — By the Insured. [Title.] The plaintiff complains, and alleges: I. That the defendants are a corporation dnly created by and under the laws of this State [or the State of, etc.], or- ganized pursuant to an act of the Legislature [of said State] entitled [title of the act], passed [date of passage], and the acts amending the same. II. That the plaintiff [was the owner of, or] had an in- terest in a [dwelling-house, known as No. 200 street, in the city of , j at the time of its insur- ance and destruction [or injury] by fire as hereinafter men- tioned. III. That on the day of , 187., at , in consideration of the payment by the plaintiff to the defendants of the premium of dollars, the defendants by their agents duly authorized thereto, made their policy of insurance in writing, a copy of which is annexed hereto, and made part of this complaint. IV. That on the day of , 187., said dwelling-house and furniture were totally destroyed [or greatly damaged, and in part destroyed] by fire. V. That the plaintiff's loss thereby was dollars. VI. That on the day of , 187 . , he furnished the defendant with proof of his said loss and in- terest, and otherwise performed all the conditions of said policy on his part. VII. That the defendant has not paid the said loss. \_Demand of Judgment.'] [Annex a Copy of Policy. '\ 1. Action by Mortgagor. — In an action by the mortgagor on a policy issued to him, but on terms payable to mortgagee, the complaint must aver " that the mortgage has been paid,'' or must join the mortgagee as a party: Ennis v. Harmony Fire Ins. Co., 3 Bosw. 516. Where a policy contained the provision that " if the property" insured "shall be sold," a delivery of the said properly to a mortgagee, with the assent of the insurers, does not avoid INSUEANOE. 319 the policy: Washington Ins. Go. v. Hayes, 17 Ohio St-. 432. When a policy is avoided as to removed goods, see Id. 2. Agent.— An agent, to effect an insurance, who retains the policy, has the authority to collect it in case of loss, and the presumption is that he did retain it, especially as he proceeded to collect the money: De Ro v. Cordes, 4 Gal. 117. 3. Double Insurance.— A policy forfeitable if the assured shall make any other insurance upon the property is not forfeited hy his taking a second but invalid policy thereon: Thomas v. Builders' Mutual Fire Ins. Co., 119 Mass. 121; see Oal. Civil Code, sees. 2641-2642. 4. Exceptions in Policy.— A provision in a policy of fire insurance exon- erating the company from loss by fire which should happen by explosion, must be taken to include an explosion of a steam-engine, insured by the policy, as well as any external explosion : Bayward y.Lioerpool and London Fire and Life Ins. Co., 5 Abb. Pr. (N. S.) 142; Brenner t. Insurance Co., 51 Cal. 101. 5. Interest of Insured.— The interest of the insured is one of the facts constituting the cause of action: 2 Greenl. on Ev., sees. 376, 378-381. 6. Interest, Averment of.— Alleging that the defendants, in considera- tion, 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 in- sured, is a sufficient averment of interest, at least on demurrer. If the aver- ment is too general, the defendant's remedy is by motion: Fowler v. N. T. Indemnity Insurance Co., 23 Barb. 143. 7. Insurable Interest. — A legal or equitable title is not necessary to give an insurable interest in property. If one has a right which may be enforced against the property, and which is so connected with it that injury thereto will necessarily result in loss to him, he has an insurable interest: Mohrback V. Oermania Fire Ins. Co., 62 N. Y. 47; see, also, Cal. Civil Code, sees. 2546- 2558. 8. Negativing Possible Defenses.— It is not necessary to state that the fire was not caused by invasion, riot, etc. That is a matter of defense : Louns- bury V. Pro. Ins. Co., 8 Conn. 466; Rucker v. Oreen, 15 East. 290; Hunt v. Huds. Riu. Ins. Co., 2 Duer, 487; CatlinY. Springfield Fire Ins. Co., 1 Sumn. 439. The plaintifif is not bound to negative all possible defenses: See above authorities. 9. Pleading the Policy. — Formerly it was customary 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 : Fairbanks v. Bloomfield, 2 Duer, 349. 10. Policy, how^ Construed. — An insurance policy being a contract of the insurer's dictation, must be construed most strongly against them : Bryan V. Pedbody Ins. Co., 8 "W. Va. 605. Policies of insurance are written con- tracts to be interpreted by the same rules which apply to other contracts, and to be enforced according to the intention of the parties, and are to be construed liberally in favor of the assured: Wells, Fargo & Co. v. Pacifio Ins. Co., 44 Cal. 397; Foote v. JEtna Life Ins. Co., 61 N. Y. 571. 11. Premium, Payment of. — The payment of the premium is a condi- tion precedent to the right to recover for a loss: Bergson v. Builders' Ins. Co., 320 INSURANCE. 38 Cal. 541. The acknowledgment of the receipt of the premium in the policy may be contradicted: Id.; Per contra, see Teutonia Life Ins. Co. v. Anderson, 77 111. 384; Same v. Muller, Id. 22. 12. Parol. — In the absence of a statutory prohibition, a policy of insur- ance may be made or changed by parol, and the fact that a policy is written does not prevent its change or enlargement or continuance by subsequent parol agreement: Westchester Fire Ins. Go. v. Marie, 33 Mich. 143. 13. Representations. — A representation is a statement in regard to a material fact made by the applicant for insurance to the insurer, with refer- ence to a proposed contract of insurance. They are not part of the contract, but merely collateral to it. It is sufficient if representations are substan- tially true, while warranties must be strictly complied with : Buford v. N.Y. Life Ins. Co., 5 Oregon, 334; Higbee v. Guardian, etc., Ins. Co., 66 Barb. 462. 14. Re-insurance. — There is no privity between the one originally in- sured and the re-insurer; and the liability over of the re-insurer is solely to the re-insured: Strong v. Phosnix Ins. Co., 62 Mo. 289. 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-insurer, the latter will be bound by the judgment, and for the costs and expenses incurred in the defense: Id.; see Cal. Civil Code, sees. 2646-2649. 15. Renewal — Allegation where Insurance is. — That on the day of , 187 . , at the defendants by their agents duly authorized thereto, in consideration of dollars to them paid by this plaintiff, executed and delivered to this plaintiff their certificate of re- newal of said policy, of which the following is a copy annexed, as a part of this complaint. 16. Steamer. — A steamer insured against loss by fire was run into by another vessel, which caused her to fill with water, which forced the fire from her furnaces, and the fire burned so much of her woodwork that she sank, which she would not have done but for the fire: Held, that the insur- ers were liable for the loss except the immediate results of the collision: Norwich and N. Y. T. Co. v. Western Mass. Ins. Co., 34 Conn. 561. 17. Warranties, Misrepresentation, Concealment, etc. — Under the provisions of the Georgia Code, application for insurance must not only be made in the utmost good 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 varia- tion 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 they are or are not willfully and fraudulently made: Southern Life Ins. Go. v. Wilkinson, 53 Ga. 535; see, also, Cal. Civ. Code, sec. 2561, et seq.; also, sec. 2603, et seq.; Highbee v. Guar- dian, etc., Ins. Co., 66 Barb. 462. 18. Wagering Policies — Policies executed by way of gaming or wager- ing, or where the policy stipulates for the payment 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; Cal. Civil Code, see, 2558. Insurance of lottery, or lottery prize, is unauthorized: Id., sec. 2532. INSUEANCE. 321 No. 119. ii. The Same, where Plaintiff Purchased the Property after Insurance. [Title.] I. [Allege incorporation as in last form. J II. That [name of original insurer] was the owner of, or had an interest in, etc., etc. III. [The same as in last form, substituting the names of the original insurers, instead of the words "the plaintiff."] IV. That on the day of , 187., 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 plaintiff, his interest in the said [property] and in the said policy of insurance. . [Continue as in last form.] [Demand of Judgment.'] 19. Interest. — As to the form of averment of an assignee's interest in the subject insured, see Gfranger v. Howard Ins. Co., 5 Wend. 200. No. ISO. iii. Another Form. [ Title.] The plaintiff complains and alleges: I. That he was the owner of a [match factory, and the machinery therein], in the town of , county of , at the time of its insurance and destruction by fire, as here- inafter mentioned. II. That on the day of , 187., 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 ,187., 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 , 187., he furnished the defendant with proof of his said loss and interest, and otherwise duly performed all the conditions of the said policy on his part. VI. That the defendant has not paid the said loss. [Demand of Judgment.li [Annex " Exhibit A."} 21 322 INSUEANCE. JSTo. im. iv. By Insured, on Agreement to Insure, Policy not Delivered. [Title.] The plaintiff complains, and alleges : I. [Incorporation of defendants, as in Form No. 119.] II. That on and before the day of , 187 . , the plaintiff applied to A. B., who was then and there the duly authorized agent of 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 town of And the defendants, by their said agent, then and there agreed to become an in- surer to the plaintiff on the said stock for three months from that day, for doUars, 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 de- fendant 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 con- venient 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 premium, and to continue for the said term of three 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 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 there- to, and within the said term of three months, for which the INSUBANCE. 323 said plaintiff was so insured, to wit, on the .... day of , 187 . , the said stock of mercliandise in the said building mentioned and intended to be go 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 commencement of this action, to wit, on the .... day of , 187 . , at , he gave to the defendants due notice and proof of the loss as aforesaid, and demanded payment of the said sum of dol- lars. VIII. That the defendant has not paid the same. [_Demand of Judgment.'] 20. Assignee. — In an action on a policy of fire Insurance, the interest of the assignee must be stated in the complaint, to make out a cause of action : 5 Wend. 202. A complaint by the assignee of a fire policy averred an in- surance 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: Seld, bad on general demurrer, as not show- ing any interest of the plaintiff or his assignor in the subject insured: Fowler V. N. y. Indem. Ins. Co., 22 N. Y. 422. The assignee of a policy of insur- apce takes it subject to all equities: 113 Mass. 514. 21. Assignment. — 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 oc- curs: Bibmd V. L. F. and L. Ins. Co., 30 Cal. 78. 22. Executory Agreement to Insure. — Of the proper form of action to recover on an executory agreement to issue an insurance policy, see Post V. j^tna Ins. Co., 43 Barb. 351. 23. Form. — For a form of complaint, see Rockwell v. Hartford Fire Ins. Co., 4 Abb. Pr. 179. 24. 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: Hovey v. Amer- ican Mut. Ins. Co., 'it Duer, 554. As to when the insurer is exonerated by failure to give notice of loss, preliminary proofs, etc., see Oal. Civil Code, sec. 2633-2637. 324 INSURANCE. No. XSS. T. By Executor, on Life Policy. [Title.] The plaintiff complains, and alleges : I. [Allege incorporation as in Form No. 118.] II. Thaton tlie....day of. ,187., at , 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. III. That on the dayof , 187., at , the said A. B. died. IV. That on the day of , 187. , at , said A. B. left a will, by which the plaintiff was appointed the sole executor thereof [or this plaintiff and CD. were appointed executors thereof]. V. That on the day of 187., 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 office. VI. Thaton the dayof ,187., the plaintiff furnished the defendant with proof of the death of the said A. B., and that said A. B. and the plaintiff each duly per- formed 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. I Demand of Judgment. 2 25. 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 application or a part of the application ; and that state- ments 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 : Hig- bee V. Guardian, etc. , Ins. Co., 66 Barb. 462 . Incorrect statements by the appli- cant 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, msuEANCE. 325 and not the statements of the applicant himself, were relied upon by the company: Id. As to when the application will be held to be a part of the policy, and what constitutes a warranty, see same case. 26. Conflict of Lawrs.— A policy of life insurance was made by a New York company, with a condition that it should not become valid until coun- tersigned by their agent at Chicago, and the premium paid, and the condi- tion complied with in Chicago : Eeld, 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: Fomeroy v. Manhattan Life Ins. Co., 40 111. 398. 27. Construction of Instruments and Statutes.— A policy of insur- ance on the life of a husband was made payable 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 insurance, and protected it from his creditors. The wife assigned the policy for value, and died before her husband: Held, that the policy was payable to the children, not to the assignee, in the event which had hap- pened: Connecticut Mut. Life Ins. Co. v. Burroughs, 34 Conn. 305. 28. Suicide — A life insurance policy contained a proviso that, in case the insured should " die by his own hand or act, the policy should be void. " The insured committed suicide by hanging. An action was brought on the policy: Held, 1. That this proviso would not prevent arecovery if the insured killed himself in a fit of insanity, which overpowered his conscious- ness, reason and will; 2. That it was 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 suflBcient; 3. That insanity could not be inferred from the fact that the insured destroyed his own life: Knickerbocker lAfe Ins. Co. v. Peters, 42 Md. 414; see Merritt v. Cotton States Life Ins. Co., 55 Ga. 103; Hathaway v. Nat. Life Ins. Co., 48 Vt. 335. No. ISS. vi. By a Wife, Partner or Creditor of the Insured. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant, in consideration of the [annual, or other- wise] payment to it of dollars, executed to the plaint- iff 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. III. That on the.... day of , 187., at , the said A. B. died. IV. That on the.... day of , 187., the plaintiff 326 INSUBANCE. 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. Y. That the defendant has not paid the said sum. ^Demand of Judgment.^ \_Annex a Copy of Policy, marked "Exhibit A."1 No. m. ■vii. By Assignee ire Trust for Wife of Insured. [Title.] The plaintiff complains, and alleges : I. [Allege incorporation as in No. 118.] II. [Same as in Form No. 122.] III. That on the. . . .day of , 187., the said A. B. [with the written consent of the defendants, or other- wise, according to the terms of the policy], assigned said policy of insurance to this plaintiff, in trust for E. B., his wife. IV. That up to the time of the death of A. B., all pre- miums accrued upon said policy were fully paid. V. That on the.... day of , 187., at , said A. B. died. YI. 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 , 187 . , 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. YII. That the defendant has not paid the same. IDemand of Judgment.'] 29. Assigned.— That a policy was duly assigned and transferred, indi- cates that the assignment was by a sealed instrument, and a consideration is inferred: Fowler v. N. Y. Indem. Ins. Co., 23 Barb. 143; Morange v. Mudge, 6 Abb. Pr. 243. In California all written instruments import a considera- tion: Civil Code, sec. 1614. INSUEANCE. 327 No. IZS. viii. Accidental Insurance — Insured against Insurer. [Title.] The plaintiff complains, and alleges : I. That defendant is a corporation, organized under the laws of the State of New York. II. That on the. . . .day of , 187., at the City of San Francisco and State of California, in consideration of the payment 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 Cali- fornia, a copy of which is annexed to this complaint, and marked "Exhibit A," and is made part hereof; and thereby insured the life of said , in the sum of dol- lars [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 , 187 . . III. That afterwards, to wit, on the .... day of , 187 . , 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 ves- sel during the continuance of the said policy of insurance, without prejudice to said policy, a copy of which consent is hereto annexed as a part of this complaint, and marked "Exhibit B." IV. That between the .... day of , 187 . , and the .... day of , 187 . , and as plaintiff is informed and believes and avers, on or about , 187 . , 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 of 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 port of San Francisco in said State, to the Aleutian Islands in the North Pacific Ocean, and back to 328 INSUEANCE. 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 commencement of this action, to wit, on or about the day of , gave to the defendant due notice and proof of the death of said , as aforesaid, and de- manded payment of the sum of dollars [gold coin], but no part thereof has been paid. Wherefore plaintiff prays judgment against defendant for dollars [gold coin], and interest on the same, and costs of suit. • I Jurat. 1 Att'ys for Plaintiff. No. 1S6. ix. Marine Insurance — On an Open Policy. [Title.] The plaintiff complains, and alleges : I. [Allege incorporation as in Form 118.] II. That the plaintiff was the owner of [or had an inter- est in] the ship [name of ship], at the time of its insur- ance and loss, as hereinafter mentioned. III. That on the day of , 187., 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 to him by reason of the destruction or injury of the said ship, during its next voyage from to , whether by perils of the sea, or by fire, or by other causes therein mentioned, not exceeding dollars]. IV. That the said vessel, while proceeding on the voyage mentioned in the said policy, was, on the day of INSURANCE. 329 , 187 . , totally lost by the perils of the sea [or otherwise]. V. That the plaintiff's loss thereby was dollars. VI. That on the day of , 187., 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. [Demand of Judgment. '\ [Annex Copy of Policy.'] 30. Abandonment. — It is not neeestiary, in an action of covenant on a policy, tliat the declaration should aver that the plaintiff had abandoned to the underwriters: Hodgson v. Marine Ins. Co., 5 Cranch, 100; and see Colum- bian Ins. Co. V. Caileti, 12 "Wheat. 383; Snow y. Union Mut., etc., Ins. Co., 119 Mass. 592. 31. Agent. — Where the agent of an insurance company was fully author- ized 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 premium note, a policy duly executed by the officers of the company, filled up and counter- signed by himself under his general authority, and having every element of a perfect and valid contract, 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 ap- proved: Ins. Co. V. Webster, 6 Wall. U. S. 129. 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 policy, the party in- sured was held entitled to recover for a loss, the agent having neither returned the note nor canceled the policy: Id.; Amer. Law Eeg. July, 1868. 32. Form. — For a sufficient form of complaint, consult Page v. Fry, 2 Bos. & Pul. 240; Crawford v. Eunter, 8 T. K. 23. 33. Interest of Insured in Lost Property. — The interest of the in- sured is one of the facts constituting the cause of action: 2 Greenl. Ev., sees. 376, 378-81. And the averment that he gave the defendant due proof of loss and of interest, cannot be construed as an averment that the plaintiff had an insurable interest: Williams v. Ins. Co. of North America, 9 How. Pr. 365. It is the safest practice to aver the interest, when it does not distinctly appear in the policy as set forth or annexed: Phil, on Ins. 612; Ellis on Fire Ins. 175. 34. Interest, How Alleged. — 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 insurance, an interest at the commencement of the risk is suffi- cient (2 Greenl. on Ev. 381; 2 Phil, on Ins. 614); or that the plaintiff wag interested in the vessel at the time of the loss, to the extent of the policy : 330 INSUBANOE. Eenshaw v. Mutual Safety Ins. Co., 2 Blatchf. 99. The nature or extent of the trust upon which the interest was held need not be set forth, they being matters of evidence: Id. "Where the property is admitted to have been owned by the plaintiff when the policy was issued, the burden of proof is upou the defendants to show a subsequent alienation of the property: Orrell T. Hampden Ins. Co., 13 Gray, 431. 35. Mutuality of Agreement In an action on an open policy, pro- viding 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 mutu- ally agreed upon, and indorsed upon the policy: Crane v. Evansville Ins. Co., 13 Ind. 446. 36. Nature of the Loss. — The complaint must show a loss of a nature intended to be covered by the insurance: Ellis on Fire Ins. 176; Phil, on Ins. 618. But not to negative possible defenses. And the loss of a vessel iusui'cd should be deemed effectual and certain, from the time the vessel was so injured that her destruction became Inevitable, and the claim for dam- age must be deemed to have then attached, although she was kept afloat for some time after such injury: Duncan v. Onat Western Bis. Co., 5 Abb. Pr. (N. S.) 173; Pardo v. Osgood, 5 Bob. 348; reversing S. C, 2 Abb. Pr. (N. S.) 365. 37. Parties. — Those who had an interest in a 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 afttion; Duncan v. Great Western Ins. Co., 5 Abb. Pr. (N. S.) 173. 38. Premium, hoTV Alleged. — The complaint must aver payment, or a liability to pay the premium : 2 Greenl. Ev. sees. 376-381; Phil, on Ins. 611. 39. 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 com- pany was liable : The Merchants' Ins. Co. v. Edmund, 17 Grat. (Va.) 138. 40. Terms. — As to the terms of an insurance policy, whether it be by a marine insurance or by a fire insurance, designated in the usual terms of policies, see Eureka Ins. Co. v. HoUnson, 56 Penn. St. 256; also, American Horse Ins. Go. v. Patterson, 28 Ind. 17. 41. That the Ship Sailed.— The inception of the risk is an essential fact to be proved: 2 Greenl. Ev. sec. 382. No. m. X. On Cargo Lost by Fire — Valued Policy. [Title.] The plaintiff complains, and alleges : I. [Allege incorporation, as in Form 118. J II. The plaintiff was the owner of [or had an interest inj [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. INSTJKAKCE. 331 III. That on the day of ,187., 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 "Exhibit A," and made part of this complaint [or whereby it promised to pay to the plaintiff dollars in case of the total loss, by fire or other causes mentioned, of the said goods, before their landing at , or, in case of partial damage, such loss as the plaintiff might sustain thereby, provided the same should exceed per centum of the whole value of the goods]. IV. That on the .... day of , 187., at , while proceeding on the voyage mentioned in the said policy, the said goods were totally destroyed by fire. V. That the plaintiff's loss thereby was dollars. VI. That on the .... day of , 187., 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. [Demand of Judgment.'] [_Annex Copy of Policy, marked " Exhibit A."] 42. Goods — If the msuranoe was upon the goods to be laden, state that they were laden, and their loss: Marsh on Ins. (3 ed.) 244-5, 278, 724. 43. Interest, how Alleged. — In a declaration upon a policy of insur- ance 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 suf6oient 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 neces- sary to aver actual payment: Van Natla v. Mutual Security Ins. Co., 2 Sandf. 490; and see Be Forest v. Fulton Fire Ins. Co., 1 Hall, 84. 44. Time Policy.— As to manner of pleading a want of seaworthiness to an action on a time policy, see Jones v. The Insurance Company, 2 Wall. Jr. C. Ct. 278. 45. Valued Policy, Allegation of.— That on, etc., at, etc., in consid- eration 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 332 INSUBANOE. ., then lying in the harbor of for a voyage from to , against the perils of the seas, and other perils in the policy mentioned. No. 1Z8. xi. On Freight — Valued Policy. [Title.] The plaintiff complains, and alleges : I. [Allege incorporation as in Form 118.] 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 herein- after mentioned, and that a large quantity of goods were shipped upon freight in her at that time. III. That on the .... day of 187., at , 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 a voyage from 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 J, was [or state said goods, the freight whereof was insured, were], on the .... day of , 187 . , 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 dol- lars. VII. That on the ... . day of , 187 . , 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 has not paid the said loss. IDemand of Judgment.] [Annex Copy of Policy, marked " Exhibit A."] INSTJBANCE. 333 46. Averment of Loss by Collision That on the day of 187., -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. 47. Averment of Waiver of a Condition That afterwards, and on the .... day of 187 . , at 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 performance thereof [or, and consented that the plaintiffs should, etc., ac- cording to the facts]. No. 1S9. xii. For a Partial Loss and Contribution. [Title.] The plaintiff complains, and alleges : I. [Allege incorporation as in Form 118. ] II. That on the day of ,187., at , in consideration of the premium of dollars, then and there paid by the plaintiff to the defendant, the defendants, by their agents duly authorized thereto, made their policy of insurance in writing, of which a copy is annexed as a part of this complaint, and marked "Exhibit A," and there- by 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 occasioned the loss]. III. That said ship did, on the day of , sail on the said voyage, and while proceeding thereon was, by the perils 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 occcasioned by said throwing over of part of said cargo. V. That on the .... day of , 187 . , at , he gave to the defendant due notice and proof of the loss as 334 ON JUDGMENTS. 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. IDemand of Judgment.'] [_ Annex Copy of Policy, marked " Exhibit A."] 48. Allegation for a Particular Average Loss 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. 49. Contribution. — The owner of a vessel is not entitled to contribution on general average, for damage sustained, or expense incurred, by reason of the perils of the seas, if the vessel was unseaworthy when she left port, although from a latent defect: Wilson v. Cross, 33 Cal. 60. 50. Jettison. — A vessel fell in with a ship in a sinking condition. To save the lives of the ship's passengers and crew, 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 insurers for a contribution to general average, for the above jettison: Held, that he could not recover: Dabney v. New England Mutual Iiis. Co., U. Allen (Mass.) 300. 51. 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: Beld, that the insurers were liable for the goods lost: Pierce v. Columbia Ins. Co., 14 Allen (Mass.) 320. CHAPTEE VII. ON JUDGMENTS. No. ISO. i. General Form. [Title.] The plaintiff complains, and alleges: I. That on the .... day of , 187., in the [Dis- trict Court] of the Judicial District, in and for 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 ON JUDGMENTS. 335 dollars [if the judgndent provided for a special rate of in- terest, add], which said judgment bears interest from the date thereof at per centum per annum. II. That said judgment remains wholly unpaid. [Demand of Judgment. 2 1. Action Lies on a Judgment — Where a court of competent jurisdic- tion 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 en- force the judgment may be maintained. It is in this way that judgments of foreign courts are enforced, and the rule applies equally whether they be courts of record or not: WUliams v. Jones, 13 M. & W. 633. 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 : Cole v. JDreshell, 1 Blaekf. 16. 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: Newcomb v. Drummond, 4 Leigh. 57. An action lies upon an unpaid judgment, although the execution has not been returned: Linton v. Hurley, 114 Mass. 76. It is not necessary to allege an unsuccessful effort to collect the judgment: Sing v. Mood, 41 Cal. 314. 2. Action Liea on a Decree. ^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 implied from a decree: See Carpenter v. Thornton, 2 Barn. & Aid. 52. It is now established, both in England and the United States, that an action will lie on such decree: Eenderson v. Henderson, 51 Eng. Com. Lia,w. B. 288; Pennington v. GKbson, 16 How. (U. S.) 76. 3. Against Counties. — A judgment against a county, under the act au- thorizing counties to sue and be sued, has the effect of converting a demand into an audited claim: Sharp v. Contra Costa Co., 34 Cal. 284. 4. Date of Entry. — 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 appeared that judgment was signed September 26, 1856 : 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: Lazier y.Wesloott, 26 N. Y. 146. 5. Enforcement of Judgment. — A judgment unreversed and not sus- pended, may be enforced: Baun v. Reynolds, 18 Cal. 276. But it need not be averred in the complaint that it was unreversed: 1 Chitt. PI. 321. 6. Federal Courts. — A declaration was sufficient which averred that " at a general term of the Supreme Court in equity, for the State of New Tork, " etc. ; being thus averred to be a court of general jurisdiction, no aver- ment was necessary that the subject-matter in question was within its juris- diction, and the courts of the United States, will take notice of the judicial decisions in the several States, in the sam e manner as the courts of those States: Pennington v. &ibson, 16 How. (U.S.) 65. 336 ON JUDGMENTS. 7. Form. — The above form of complaint is sufficient on a judgment of any domestic court, or on a judgment of a Circuit Court of the United States, for the jurisdiction of such courts is presumed: Bement \.Wisner, 1 Code E. (N. S.) 143; Griswoldv. Sedgwick, 1 Wend. 126. 8. How Set Out. — 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 original suit; but only to allege gen- erally, that the plaintiff, by the consideration and judgment of the Court re- covered the sum mentioned therein; the original cause of judgment having passed in remjudieaiam: Biddle v. Wilkins, 1 Pet. 686. 9. 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 judg- ment was rendered, the amount for which it was rendered was unpaid and due: Denver \. Burton, 28 Cal. 549. 10. Judgments, how Pleaded. — In pleading a judgment or award, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made : Cal. Code C. P., sec. 456; N. Y. Code, sec. 532; Ohio Code, sec. 120; Wheeler v. DaHn, 12 How. Pr. 542. It is said, in great measure obiter, in Hollisler v. Bollister, 10 How. Pr. 532, that this section does not apply to foreign judgments, and that a general averment of jurisdiction would not be sufficient; but in Balsteud v. Black, 17 Abb. Pr. 227, the contrary is held. This applies, however, to judgments of courts of general jurisdiction. In suing on a judgment of a foreign court of inferior jurisdiction, facts must be stated showing jurisdic- tion of the person and the subject-matter: McLaughlin v. Nichols, 13 Abb. Pr. 244. 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: Memphis Medical College y. Newton, 2 Handy, 163. 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 averment that the judgment or de- cision was duly given or made is equivalent to an averment that the justice had jarisdictiouof the person and subject-matter: Crake v. Crake, 18 Ind. 156; 17 Abb. Pr. 227. 11. Justice's Judgment — The law presumes nothing in favor of Jus- tices' Courts. A complaint on a judgment of a justice must affirmatively show every fact coiiferring jurisdiction: Swain v. Chase, 12 Cal. 283; Rowley V. Howard, 23 Cal. 401; see Code, sec. 456, and 36 Cal. 117; Wheeler v. Bakin, 12 How. Pr. 537. 12. Pleadings.— Where defendant relies in defense upon an agi-eement 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 avail- able as a bar: Haldeman v. United States, 91 U. S. (1 Otto) 584. The plea of nil debit is an insufficient answer to an action on a judgment: Indianapolis B. & W. Railway Co. v. Risky, 50 Ind. 60. 13. Probate Court.— In pleading the judgment of a Probate Court, in ON JUDGMENTS. 337 California, it was formerly necessary to set forth the facts -which give juris- diction: Smith V. Andrews, 6 Cal. 652; Townsendr. Gordon, 19 Id. 189. This, however, has been changed by the Code, sec. 456, and judgments of that court are now pleaded as other judgments of courts of general jurisdiction : 36 Cal. 117. JVo. J31. ii. On a Judgment by Leave of Court. [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.] [_Bemand of Judgment.'] 14. Necessary Averment. — In New York, in a complaint on a judg- ment rendered in any court of that State, it is necessary to aver that leave to prosecute the action has been obtained: N. X. Code, sec. 71. And if this averment is not made, it does not state a sufficient cause of action : Graliam V. Scripture, 26 How. Pr. 501. The practice in California is, however, dif- ferent, as there 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. No. 13S. iii. The Same, by an Assignee. [Title.] The plaintiff complains, and alleges : I . That on the day of , 187 . , in the [District Court] of the Judicial District, in and for the County of , in this State, a judgment 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 pend- ing, wherein said CD. was plaintiff, and the said E. F. was defendant, for the sum of dollars. II. That on the day of , 187., at , the said C. D. assigned said judgment to this plaintiff. III. That the defendant has not paid the same. IDemand of Judgment.} 15. Demand. — It is not necessaiy to aver any demand of payment by the assignee, or any refusal to pay by the debtor: Moss v. Shannon, 1 Hilt, 175. 22 338 ON JUDGMENTS. No. 13S. iv. On a Foreign Judgment of a Court of general Jurisdiction. [Title.] The plaintiff complaiDS, and alleges: I. That at the times hereinafter mentioned, the Court of Common Pleas, in and for the 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 of ...:... , 187 . , the plaintiff commenced 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 defendant [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 , 187 . , a judgment for the sum of dollars was duly given and made by said court, in favor of the plaintiff and against the defendant. III. That no part thereof has been paid [except, etc.] [^Demand of Judg7nent.'\ 16. Allegations Essential. — In pleading the judgment of a sister State, it is sufficient to allege that it was duly recovered. Pacts conferring juris- diction need not be stated; overruling dictum, 10 How. Pr. 532; 18 Barb. 260; Halslead v. Black, 17 Abb. Pr. 227. 17. Appearance, how Alleged. — Alleging that defendant was duly- notified, but not saying of what; or that he had personal notice of the com- mencement of the suit, without saying from whom, is bad: Long v. Long, 1 Hill, 597. 18. 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: Wheeler v. liaymond, 8 Cow. 311. 19. Courts of General Jurisdiction.— It is necessary to allege jurisdic- tion only in the case of a court whose title indicates that it may be one of limited jurisdiction. In such u, case it is better to aver that the court had a general jurisdiction. This was held necessary in an action on the judg- ment of a county Circuit Court of another State, in McLaughlin v. Nichols, 13 Abb. Pr. 244. 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. Compare, also, Frees v. Ford, 6 N. Y. 176; Eiandolf-^. Thalheimer, 17 Barb. 506. 20. Exemplification of Judgment.— A certificate of exemplification of a judgment rendered in another State, attested by the clerk under the seal ON JUDGMENTS. 339 of the court, and when the presiding judge of the court certifies that the attestation is in due form of law, is suf&oient to sustain an action in another State: Thompson v. Manrow, 1 Gal. 428. It is only necessary that the certi- ficate 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 jurisdiction: Low v. Burrows, 12 Cal. 181. A certificate of the pro- ceedings 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 Surrogate 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 trae copy of all the proceedings; and that the certificate is in due form of law; in testimony whereof he sets his hand and affixes his seal of ofBce — is sufficient: Id. 21. 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 : MUls V. Duryee, 7 Cranoh, 481; Hampton v. McConnell, 3"Wheaton, 234; May- hew V. Thatcher, 6 Id. 129; Armstrong v. Carson, 2 Dall. 302; Green v. Sar- miento, 3 Washington C. C. 17; Borden v. Fitch, 15 Johns. K. 121; Shumway v. StUlman, i Cowen, 293. An action on a judgment of a court of compe- tent 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: Taylor v. Shew, 39 Cal. 536. 22. Indiana. — In Indiana the record of the judgment or a transcript of it must be set forth: Brady v. Murphy, 19 Ind. 258; Adkins v. Hudson, Id. 392. It should not be in New York: Harlow v. Hamilton, 6 How. Pr. 475. 23. Jurisdiction. — In actions on judgment- obtained in another State, where the transcript shows the jurisdiction of the court on its face, it is not necessary to aver jurisdiction: Zow v. Burrows, 12 Cal. 181. How such a complaint should state the transcript, see Richardson v. Hickman, 22 Ind. 244. 24. Ohio. — If the judgment was recovered in Ohio against the company by an erroneous name, but the suit upon the judgment was brought in Indi- ana 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: Lafayette Ins. Go. v. French, 18 How. U. S. 404. In Ohio it is held that a transcript of a record showing the recovery of a judgment is not "an instrument for the uncon- ditional payment of money only," and cannot be made a part of the com- plaint by reference: Memphis Medical College v. Newton, 2 Handy, 163. 25. Kansas. — 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: Butcher v. Bank of Brownsville, 2 Kansas, 70. 340 ON JUDGMENTS. No. m. V. On a Foreign Judgment of an Inferior Tribunal. [Title.] The plaintiff complains, and alleges : I. That at the time hereinafter mentioned, J. P. was a Jus- tice of the Peace, in and for the town of , in the county of , and State of , having author- ity under and by virtue of an act of said State, entitled [title of act], passed on the day of , 187., to hold court, and having jurisdiction as such over actions of [state jurisdiction to include the cause of action]. II. That on the day of , 187 . , 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. That on the day of , 187 . , in said action, the plaintiff recovered judgment, which was duly given by said Justice against the defendaint, 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. [Demand of Judgment. '\ 26. Action. — It appears that the action of indebitatus assumpsit lies on a judgment of a justice of the peace: Green v. Fry, 1 Cranoh 0. Ct. 137. 27. Before the Said Justice.— The appropriate mode of pleading a judgment of a justice of the peace, is to allege that it was recovered "be- fore him," not " in his court:" McCarthy v. Noble, 5 N. Y. Leg. Obs. 380. 28. Costs — This should be inserted in the third allegation, if it would not otherwise appear that the amount of the debt did not exceed the juris- diction: Smith V. Mumford, 9 Cow. 26. 29. Designation of Office.— It is necessary, under sec. 456, Cal. Code C. P., as well as in New York (N. Y. Code, sec. 532), in pleading the deter- mination of an officer of special jurisdiction, to designate the officer; an averment that such determination was duly made is insufficient: Carters. Kaezloy, li Abb. Pr. 147. 30. Duly Given.— The form of allegation, " recovered judgment, which was duly given," is suggested by the court in Qrake v. Orake, 18 Ind. 156. As to how far other words may be deemed equivalent to " duly given," com- pare Willis V. Eavemeyer, 5 Duer, 447; Huntx. Butcher, 13 How. Pr. 538. LIABILITIES CKEATED BY STATUTE. 341 31. Duly Adjudged. — If the judgment was rendered in a justice's court, "duly" must be inserted: Thomas v. Robinson, 3 Wend. 268; Keys v. Qran- nis, 3 Nev. 548. 32. Jurisdiction of Person. — To show that jurisdiction over the person had been acquired, it is necessary to aver, either that the party appeared, or that process was sued out and duly served on him : Gornell v. Barnes, 7 Hill, 35; Qaivey v. Baker, 37 Gal. 465. 33. Justices' Courts. — The authority under which the judgment was rendered should be set forth: Stiles v. Stewart, 12 Wend. 473. A general al- legation that the justice had jurisdiction is not enough. The statute giviiig jurisdiction should be pleaded: Sheldon v. Hopldns, 7 Wend. 435; Stiles \. Stewart, 12 Id. 473. A judgment against the plaintiff for costs of a non-suit only, is an exception to this rule: Turner v. Bohy, 3 N. Y. 193. 34. Jurisdictional Facts. — 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: Barnes v. Harris, 4 N. Y. 375; 3 Barb. 603. 35. Such Proceedings ■were Had. — After stating the facts on which jurisdiction depends, it is sufficient, without setting out the proceedings, to say, "such proceedings were had," that plaintiff recovered, etc.: Turner v. Boby, 3N. Y. 193. CHAPTBE YIII. LIABILITIES CEEATBD BY STATUTE. No. 1S5. i. Penalties under the Statute — General Form. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the defendant [here state acts constituting a violation of the statute, either following the words of the statute, or setting forth the facts more specifically] against the form of the statute [or statutes, as the case may be], in such case made and provided. [See paragraph No. 6, below.] II. That thereby 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 accord- ing to the provisions of [describing the statute in such terms as the case may require]. [Demand of Judgment. "] 342 LIABILITIES CEEATED BY STATUTE. 1. Action Determined. — The repeal of a law imposing a penalty deter- mines the action: People ex rel. Cook v. Board of Police, 40 Barb. 626; 16 Abb. Pr. 473. 2. Against the Form of the Statute.— A declaration for a statute pen- alty which concluded against the form of the statutes, when the suit is founded on a single statute : Held good on error : Kenrich v. United States, 1 Gall. 268. Where the conclusion is " against the law in such case made and provided," it is not a conclusion against the form of a statute, and is bad on error: Smith v. United States, 1 Gall. 261. So, also, in a debt for a penalty, an averment, " whereby, and by force of the laws and statutes of the United States, an action hath accrued," is bad on error: Cross v. United States, 1 Gall. 26. The insertion of the words " contrary to the statute," at the end of a declaration or indictment, does not, as a general rule, relate to the last preceding averments alone, but to the whole subject-matter alleged to con- stitute the offense: Jones v. Van Zandi, 5 How. U. S. 215; see, also, par. No. 6, " Conclusions." 3. Attorney Practicing ■without License. — An attorney practicing without a license may be punished as in other cases of contempt. The right to practice is not "property," nor in any sense u, "contract," within the constitutional meaning of those terms: Cohen y. Wriyht, 22 Cal. 293. The right to practice is not a constitutional right, but a statutory privilege: Id. But the authority of an attorney to appear will be presumed where nothing to the contrary appears: Hayes v. Shattuck, 21 Cal. 51; Wilson v. Oleaveland, 30 Cal. 192; Holmes y. Rogers, 13 Id. 191; Turner v. Caruthers, 17 Id. 431. 4. Allegations. — In a statute action, the complaint must show that every requisite to the cause of action exists: Austin v. Goodrich, 49 N. Y. 286. Where the statute giving the cause of action prescribes what the plaintiff shall state in his complaint, and requires a reference to be made to the stat- ute, the requirement must be complied with, or the plaintiff cannot recover: Sehroeppel v. Corning, 2 N. Y. 132; and see Avery v. Slack, 17 Wend. 85. 5. Codes. — As to mode of pleading private statutes: see Cal. Code, C.P., sec. 459; N. Y. Code, sec. 530; Ohio, sec. 123. 6. Conclusion. — Where an offense existed previously at common law, and the statute gives a new remedy, the acts need not be alleged as done " against the form of the statute," but the penalty should be claimed as "by force of the statute:" Fuller v. Fuller, 4 Vt. 123. 7. 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 demurrer: Ferrettv. Atwill, 1 Blatchf. 151. 8. Debt Lies.— When a penalty is given by statute, and no remedy is provided, debt will lie : Jacob v. United States, 1 Brock. Marsh'. 520. And this although it is uncertain: Corporation of Washington v. Faton, 4 Cranch C. Ct. 352. In an action for debt, brought to recover several penalties (under section 1 of the act of 1790), against the master of a vessel for shipping sea- men without articles, a single count for all the penalties is sufacient: 13 Wend. 396; Wolverton v. Lacy, 8 Law K. (N. S.) 672. 9. Defense.— If a statute gives a new defense, or authorizes the intro- duction of evidence not previously admissible, the def.ndant muy so shape his pleas as to avail himself of the beueats of the new law, and the old rules of pleading must yield to the statute: Cutis v. Hardee, 38 Ga. 350. LIABILITIES CREATED BY STATUTE. 343 10. Facts Alleged In an action on a statute, the party prosecuting must allege every fact necessary to make out Ms title and his competency to sue: Fleming v. Bailey, 5 East. 313; 4 Johns. 193; 13 Id. 428; 2 N. H. 105; Ferrett y. Atwill, 1 Blatchf. 151. 11. 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: Mmball v. Gaarhart, 12 Cal. 27. Where forfeiture is claimed under a mining regulation or custom, this regulation or custom will be most strictly construed under the claim of forfeiture: Colman T. Clements, 23 Cal. 245; Wiseman v. McNulty, 25 Cal. 230. 12. Perries and Toll Bridges. — In an action brought to recorer dam- ages 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 defendant 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 per- sonal use or that of his family, and that the omission of these allegations was fatal: Hanson v. Webb, 3 Cal. 236. 13. Forfeiture under Statute. — When a forfeiture is purely the crea- tion of statute, no other process or procedure can be made use of to enforce the forfeiture than that which the statute prescribes: Eeed v. Omnibus B. B. Co., 33 Cal. 212. In an action to enforce a penalty or forfeiture imposed by statute, the claim is to be strictly construed: Askew v. Ebherts, 22 Cal. 263. If there be any rule requiring the payment of a debt, that rule cannot apply to the case of a judgment rendered for a penalty under the penal statute: Chester v. Miller, 13 Cal. 558. An action founded on a statute to recover a penalty, where no penalty is imposed, cannot be sustained: Board of Health V. P. M. 3. S. Co., 1 Cal. 197. In order to have a forfeiture take place, there must be some person who is entitled to receive the benefit of the forfeit- ure: Wiseman v. McNulty, 25 Cal. 230. 14. Forfeiture in Rem. — How far the strict rules of the common law, as to pleading in criminal cases, are applicable to informations for forfeit- ures in rem, considered: The Palmyra, 12 Wheat. 1. 15. Forfeiture of 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 parties who have, at the same time, or suc- cessively, .an interest in the estate upon which the condition is reserved: Wiseman v. McNulty, 25 Cal. 230. No forfeiture accrues to a title otherwise good, by failure to present it to the Board of Land Commissioners: Gregory V. MoPherson, 13 Cal. 562. The United States, after the treaty of Guada- lupe Hidalgo, did not become vested with any authority to prosecute a claim for forfeiture or escheat that had accrued in California to the Mexican gov- ernment: People V. Folsom, 5 Cal. 373. 16. Form of Allegation That the statute may be pleaded by express reference, by reciting the statute, or by stating the facts which bring the case within it, as in the above form, see " Complaints in General," p. 195, note 130; see, also, People v. Bennett, 5 Abb. Pr. 384; overruling Moreliome V. Crilley, 8 How. Pr. 431. It is not necessary to conclude "against the form of the statute:" People v. Bartow, 6 Cow. 290; and see Lee v. Clarke, 2 East. 333. Where a number of penalties are incurred in one act, they may all be included in one count. In an action against an officer to recover a 344 LIABILITIES CREATED BY STATUTE. penalty imposed by a general statute 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: Morris v. People, 3 Den. 381. For exacting excessiTe fare on railroad r Nellis v. N. Y. C. H. B. Co., 30 N. Y. 505. Complaint against railway company for not ringing bell on approaching a crossing: See Wilson v. Moch. & Syr. R. B. Go., 16 Barb. 167. 17. Gaining — An allegation in a complaint that the parties kept a saloon for the purpose of gaming, and selling liqutJrs 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 gam^, as billiards, etc. : Whipley v. Fowler, 6 Cal. 632. 18. Intent. — 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: Sturges v. Mailland, Anth. N. P. 208. 19. Lotteries. — For penalties under the act concerning lotteries, gift enterprises, etc., see Chapter 9, Penal Code. A "gift sale," viz., of en- velopes, at twenty-five cents each, containing songs, etc., and a ticket entitling the holder to purchase for the further price of a dollar a specified article out of a large stock, such article being worth in some cases much more, and in many cases less, than a dollar, is a lottery: Dunn v. People, 40 111, 465. Under New York statute, see Roediger v. Simmons, 14 Abb. Pr. N. S. 256. 20. Marks and Brands.— That in an action for a penalty for altering the inspector's marks on barrels of flour, it is necessary to set out the marks, and the manner of the alteration, see Cloud v. Hewitt, 3 Cranoh C. Ct. 199. 21. Municipal Ordinances.— For requisites of complaint on a muni- cipal ordinance in the State of New York, see City of Ogdensburg v. I/yon, 7 Lans. 215. 22. Office and Officers. — In an action against an oflScer to recover a penalty imposed by a general statute, it is suflacient to refer to such statute, though the particular duty in question was created by a subsequent statute: Morris v. People, 3 Den. 381. 23. Ohio — -In Ohio, an action lies against school directors, for refusal to permit children to attend public school: Zane v. Baker, 12 Ohio, 237. 24. Parties Liable.— Where two or more concur in the act of aiding, and but one penalty attaches, they may be sued together: Cro. Eliz. 480; F. Moore, 453; Cowp. 610; 2 East. 569; Warren v. Doolittle, 5 Cow. 678; com- pare Marsh v. Shute, 1 Den. 230; Ingersoll v. Sldnner, Id. 540; Mayor of N. T. V. Ordremn, 12 Johns. 122; see, also, Palmer v. Conly, 4 Den. 374. 25. Penal Actions — In penal actions founded on a statute, a reference to the statute is usually, but not necessarily, made (Brown v. Barman, 21 Barb. 510), for the purpose of informing the defendant distinctly of the nature and character of the offense: Shaw v. Tobias, 3 Coinst. 190. And in oases where no general form of complaint is given, the plaintiff must set forth the particular acts or omissions which constitute the cause of action: 17 Wend. 86; People v. Brooks, 4 Den. 469; Bigelow v. Johnson, 13 Johns. 428. But omitting to refer to the statute is a defect of form only: 0' Malley V. Reese, 6 Barb. 658. 26. Penal Statute — In declaring on a penal statute, it is sufficient to LABILITIES OEEATED BY STATUTE. 345 pursue the words of the statute, and not essential to conclude "against the form of the statute:" People v. Bartow, 6 Cow. 290; Lee v. Clarke, 2 East. 333. That the declaration must aver that the act complained of was done contrary to the statute : Parker v. Saworth, 4 McLean, 373. A declaraflon founded exclusively upon a statute, and not maintainable at common law, must conclude "against the form of the statute:" Chitty on Plead. 246 405; 1 Gall. 257; Id. 261; 1 Saund. 135, n,; Jones v. Van Zandt, 2 McLean 611. That it is essential, see Sears v. United States, 1 Gall. 257. A declara- tion, if founded on an amendatory act, which refers to and contains a for mer one, should conclude "against the statute," and not "statutes Falconer y. Campbell,' 2 McLean, 195. That a declaration on a penal stat- ute need not aver the uses to which the forfeiture is to be applied, see Sears V. United States, 1 Gall. 257; see, also, par. 6, "Conclusion." 27. Penalty Defined.— Penalty implies a prohibition: Story on Cont. 614; 1 Pars, on Cont. 381; 3 Den. 226; Best v. Bander, 29 How. Pr. 489. The words "penalty" and "forfeit "in a statute, used interchangeably: Commissioners of Saratoga v. Doherty, 16 How. Pr. 46. A penalty is not liquidated damages: People v. love, 19 Cal. 681. 28. Penalty in Agreement. — If an agreement contain a penalty, the plaintiff may bring debt for the same, and for no more, or covenant, and re- cover more or less damages than the penalty: Martin v. Taylor, 1 Wash. C. Ot. 1. 29. Pleading. — It is a general rule, that in pleading under a statute, it is sufficient to use the language of the statute, and though there are excep- tions requiring speoiiio 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 com- mon law indictment: Jarvis v. Hamilton, 16 Wis. 574. 30. Provisos and Exceptions. — When a pleading is filed under a statute, where there is an exception in the enacting clause, it must negative the exception; but where there is no exception to the enacting clause, but an exemption in the proviso thereto, or in a subsequent section of the act, it is matter of defense, and must be shown by the defendant : Washburn v. Franklin, 28 Barb. 27; Great Western E. B. Co. v. Eanles, 36 111. 281; Lynch V. People, 16 Mich. 472; Faribault v. Eulett, 10 Minn. 30; Clough v. Shepherd, 31 N. H. 490; McGlone v. Prosser, 21 Wis. 273; but see Farwell v. Smith, 16 N. J. L. (1 Harr.) 133. 31. Railroad Companies — Excessive Pare. — ^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; Tarbell v. G. P. B. B. Co., 34 Cal. 616. It is suffi- cient to allege that plaintiff was ready and willing, and offered to pay such sum of money as the defendant was legally entitled to charge. The trans- portation and payment of the fare are contemporaneous acts: Id. In an action against the New York Central Railroad Co., to recover a statutory penalty for exacting an excessive fare: HeW, that it was not necessary that the complaint should set out the various enactments consolidating the sev- eral companies which make up the New York Central Eailroad Company, so as to show that the latter company is restricted to a fare of two cents per 346 LIABILITIES CREATED BY STATUTE. mile for each passenger; but that it was enough to allege that the defendants 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: Nellis v. N. T. Gent. E. B. Co., 30 N. Y. 505. 32. Remedy. — Where a remedy is given by statute, and does not exist at common law, the declaration must be special upon the statute: Smith v. Woodman, 28 N. H. 520; Thorpe v. Bankin, 19 N. J. L. 36. 33. Several Penalties. — For several penalties incurred in one act, plaintiffs may declare generally in one count: People v. McFadden, 13 Wend. 396. Only one penalty can be enforced for the same act: Drislcill v. I^arrish, ■3 McLean, 631. Under an ordinance forbidding both the sale of a thing and its exposure to sale, a single act of selling cannot be separated so as to im- pose therefor two penalties. In ease of an actual sale, the exposure to sale is merged in the sale: City of Brooklyn t. Toynbee, 31 Barb. 282, 34. Statutes.— 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: McHarg v. Eastman, Y Eobt. 137; S. C. 35 How. Pr. 205; Bretz v. Mayor, 35 Id. 130; S. C. 4 Abb. Pr. (N. S.) 258; reversing 3 Abb. Pr. (N. S.)478. 35. Statutes, ho-w Proved. — As to whether an act is passed by the requisite vote, the printed statutes are presumptively correct, and the origi- nal on file conclusive: People ex rel. v. Com. of Highways, 54 N. Y. 276; Peo- ple V. Devlin, 33 N. Y. 269. 36. Telegraph Messages. — Where the telegraph company fails to transmit a message, upon compliance by the person contracting with it with the conditions required by law, an action lies for the penalty : Thurn v. Alta Tel. Co., 15 Cal. 472. And the party who contracts is entitled to the pen- alty: Id. 37. Theatrical Exhibitions. — A complaint which charges that the de- fendant " did willfully and unlawfully, on the first day of the weelr, com- monly called Sunday, to wit, on the Sabbath day, get up, and in getting up and opening of a theater, ' ' contains a sufficient statement of the facts con- stituting the offense of getting up a theater on the Sabbath day: People v. Maguire, 26 Cal. 635; for complaint, see People v. Koll, 3 Keyes, 236. 38. Venue. — 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: Cal. Code C. P., sec. 393. 39. Within the Statute. — Such a declaration must bring the off'ense charged within the statute clearly; whether looking to its language or spirit: Jones V. Van Zandt, 5 How. U. S. 215; affirming S. C. 2 McLean, 611. No. 136. ii. For Selling Liquor without a License. [Title.] • The plaintiff complains, and alleges : I. That on the .... day of , 187 . , at , the defendant sold to one A. B. [or to divers persons] strong liquors [or spirituous liquors, or wines], in quantities less LIABILITIES CEEATED BY STATUTE. 347 than by the bottle [or otherwise, according to the terms of the ordinance or statute]. II. That the defendant had not then a license to sell liquors, as required by the act entitled "An Act, etc. [giv- ing 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 provisions 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]. [^Demand of Judgment.'] 40. Form. — For another form, see People v. Bennett, 5 Abb. Pr. 384. To follow the words of the act is sufficient: See Cole v. Jestsup, 10 N. Y. 96; 10 How. Pr. 515. No. 1S7. iii. Against a Witness, for Disobeying Suipena. [Title.] I. That on the . . . day of , 187 . , at , the plaintiff caused the defendant to be duly served with a sub- pena commanding him to attend as a witness in Court, in and for the County of , in this State, on the .... day of , 187 . , there to give testimony on be- half of the plaintiff in an action in said Court pending, wherein this plaintiff was the plaintiff, and one CD. 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 the 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 [describe the statute]. IV. That by reason of the premises, the defendant for- feited to the plaintiff the sum of dollars. [If special damages are claimed add :] V. And for a sec- ond 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 348 LIABILITIES CHEATED BY STATUTE. was called for trial, was compelled, for want of the testi- mony 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; and the said Court did continue the same, and the plaintiff was compelled to pay 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. IDemand of Judgment.'] 41. Witness Refusing to Answer. — An action lies at common law against a witness refusing to answer or attend under a subpena: Dongl. Kep. 561; Peake, 60; Warner v. Lucas, 10 Ohio, 336. The complaint must aver that the witness fees were paid or tendered to him : McKeon v. Lane, 1 Hall, 319. It would seem that a general allegation that he was legally subpenaed is insufficient: Id. No. 138. iy. For Violation of Ordinance of Board of Supervisors. [Title.] The plaintiff complains, and alleges : I. That on or about the day of , 187 . , the Board of Supervisors of the County of , in pur- suance of the power in them vested by law, passed a law entitled "An order, regulation, or ordinance," etc. [giv- ing 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 , 187 . , the defendant [here state fully wherein the defendant had disobeyed the order], contrary to the provisions of the said ordinance above mentioned. III. That by reason of the premises, the defendant for- feited to the plaintiff the sum of dollars. [Demand of Judgment.] 42. Authority to Enact — The authority to enact may be averred in general terms: Stuyvesant v. Mayor of li. T., 7 Cow. 603. 43. Form — This is substantially the form of the complaint in Smith v. Levinus, 8 N. Y. 472. 44. Indiana. — In Indiana, a copy of the by-law or ordinance should be made a part of the complaint: Oreen v. Indianapolis, 22 Ind. 192. 45. Ordinance Averred.— 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: Wile, on Mun. Corp. pt. 1, sec. 430; Barker v. Mayor, etc., of N. Y., 17 Wend. 199; People V. Mayor, etc., of N. T., 7 How. Pr. 81. FOB MONEY EECEIVED TO PLAINTIFF'S USE. 349 CHAPTER IX. FOR MONET HAD AND EECEIVED TO PLAINTIFF'S USE. No. 139.. i. Common Form. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at [or at sundry times between the day of , 187., and the day of , 187., at J, the defendant received the sum of dollars from one A. B., to and for the use of the plaintiff. II. That thereafter, on the day of , 187 . [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 [except, etc.] . [Demand of Judgmmi.'\ Note. — In those cases where demand is not necessary, the second para- graph may be omitted. Where a demand is necessary to charge the defend- ant with interest, the date of the demand should be inserted. 1. Defendants, ho^w Charged. — Where the complaint charges that A., being indebted to the plaintiff in a sum of money, it was agreed between the plaintiff and defendant that A. should pay the same to plaintiff at the re- quest of plaintiff, and thereafter A. paid to defendant said sum in gold coin of the United States and for the use and benefit of plaintiff, that defendant refused to pay the same to the plaintiff upon request duly made, an action to recover said sum in gold coin is an action for money had and received, and defendant is not charged as a bailee: Wendt v. Moss, 33 Cal. 6-50. 2. 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: Stacy v. Gra- ham, li N. X. 492; Howard v. France, 43 N. Y. 593. No demand is neces- sary before action brought to recover back an illegal tax: Newman v. Super- visors of Zivingston Co., 45 N. Y. 676. So of moneys collected by sheriff: Nelson v. Kerr, 59 N. Y. 224. 3. "For Plaintiff's Use." — The common allegation that the defendant received money "for the use of the plaintiff," is open to objection on the ground of its indefiniteness. In Lienan v. Lincoln, 2 Duer, 670, it was held bad on demurrer. A complaint which avers "that the defendant received a sum of dollars, belonging to or on account of the plaintiff, and which is now due him," states facts sufficient to constitute a cause of action: Setts V. Bache, U Abb. Pr. 279. 4. Involuntary Payments.— The influence exerted by the provisions of the statutes of the United States, requiring stamps to be placed on passage 350 FOE MONEY KECEIVED TO PLAINTIFFS USE. 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: Garrison v. Tillinghast, 18 Cal. 404. Generally, to constitute compulsion or coercion, so as to render a payment involuntary, there must be some actual or threatened exercise of power, pos- sessed or supposed to be possessed by the party exacting or receiving the money: Brumagim v. Tillinghast, 18 Cal. 265. 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 : Id. 5. Money Extorted by Duress. — A complaint in an action to recover money wrongfully obtained, under color of judicial proceedings, must con- tain such averments as will exclude the idea that the money could have been lawfully obtained: Funkhouser v. Eow, 17 Mo. 225; Chandler v. Sanger, 114 Mass. 364. The complaint 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: Commercial Bank v. Rochester, 41 Barb. 341. It is not sufficient to allege compulsion in a general way. Money extorted by duress of goods may be recovered: 2 Strange, 915; 3 Johns. Cas. 238; 4 T. B. 485; Id. 561; 7 Greenlf. 134; 4 Harr. & J. 54; 3 N. H. 508; Tutt v. Ide, 3 Blatchf. 249; Mc- Millan V. Richards, 9 Cal. 365. 6. Money not Credited. — Where money was not credited on an account upon which judgment by default was rendered, it may be recovered back: 16 Mass. 306; 6 Id. 14; 17 Id. 394; 4 Pick. 228; 11 Johns. 441; 8 Id. 470; Phil. onEv.; Cow. & H. 832; contra, 1 N. H. 33; 11 Ala. 695; Rinck v. Wood, 43 Barb. 315. 7. Money Paid Under Protest. — 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: Brumagim v. Tillinghast, 18 Cal. 265; Kansas & Fac. B. R. Co. v. Wyandotte Co., 16 Kan. 587. 8. Nature of the Action. — There need be no privity of contract be- tween the parties, in order to support this action, except that which results from one man's having another's money, which he has not a right conscien- tiously to retain: Mason v. Waite, 17 Mass. 563; Buelv. Boughton, 2 Den. 91; Lockwood V. Kelsea, 41 N. H. 185. 9. Promise Implied. — When a person recovers the money of another, and applies it to his own use, the law implies a promise to repay it: Burnond v. Carpenter, 3 Johns. 183. 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 express promise to pay the same, and the latter may maintain an ac- tion for money had and received: 12 Johns. 276; 2 Hilt. 1 ; 4 Den. 97. But see Seaman v. Whitney, 24 Wend. 260; Turk v. Ridge, 41 N. Y. 201; and 14 East. 590, where distinctions are taken. And no consideration need be shown: 17 How. Pr. 289; Berry v. Mayhem, 1 Daly, 54. Where one receives the money of another, and has not the right conscientiously to retain it, a privity between the true owner and the receiver will be implied, as well as a promise to repay it: Caussidiere v. Beers, 2 Keyes, 198. 10. Promise need not be Alleged.— The implied promise to pay is a fiction which need not be alleged: Byxbie v. Wood, 24 N. Y. 607. FOE MONEY RECEIVED TO PLAINTIFF'S USE. 351 11. Special Contract. — 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: Chesapeake and Ohio Canal Go. v. Knapp, 9 Pet. 541. 12. 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: Keller v. Sicks, 22 Gal. 457. 13. Voluntary Payment. —Money voluntarily paid upon a claim of right with full knowledge of all the facts, cannot be recovered back merely because the party at the time of payment was ignorant of or mistook the law as to his liability: Brumagim v. TUlinghast, 18 Gal. 265. Money volun- tarily paid cannot be recovered back, even though it could not have been enforced by law: Corkle v. Maxwell, 3 Blatehf. 413; Commercial Bank v. Bochester, 42 Barb. 488. So money advanced on part performance of an agreement cannot be recovered back: Hansbrough v. Peck, 5 Wall. U. S. 497. 14. 'When Action Lies. — 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: Cary v. Curtis, 3 How. U. S. 236. The general rule is, that an action for money received lies, whenever money has been received by the defendant, which ex equo et bono belongs to the plaintiff: Tutt v. Ide, 3 Blatehf. 249. Or which in equity and conscience he has no right to retain {Kreutz v. Livingston, 15 Gal. 344), whether there be any privity between the parties or not. 15. When it ■wUl not Lie. — The simple facts that A., owing money to B., chose to pay it to G., under the impression that G. was entitled to con- trol 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: Murphy v. Ball, 38 Barb. 262. Under a count for money had and received, a surety cannot recover of his principal for money paid by the surety on account of his liability as such: Child v. Eureka, etc., Works, 44 N. H. 354. To sustain a count for money had and received, it must appear that the de- fendant 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: Hatten v. Robinson, 4 Blackf, (Ind.) 479; Mason v. Waiie, 17 Mass. 66; Ainslie v. Wilson, 7 Gow. 662. No. UO. ii. Same, against Attorney or Agent, with Demand. [Title.] The plaintiff complains, and alleges : I. That on-the day of , 187., 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. 352 FOE MONEY BECEIVED TO PLAINTITE'S USE. II. That thereafter, and before this action, the said plaintiff demanded payment thereof from the said defend- ant. in. That the defendant has not paid the same. IDemand of Judgment.} 16. Action against Agent.— Either one of several joint owners of claims against a third person, they not appearing to be partners, may main- tain an action against an agent to recover his share of money had and re- ceived by the latter from the debtor: Allen v. Brown, 51 Barb. 86. 17. Assignee.— An assignee to recover a surplus collected by a creditor, or of the assignor, must give notice of the assignment, and make a demand: Sears v. Patrick, 23 Wend. 528. 18. Attorney's Liability. — An attorney is not liable for moneys col- lected until after a demand, or instructions to remit: Beardsley v. Root, 11 Johns. 464; Stafford v. Richardson, 15 Wend. 302; Taylor v. Bates, 5 Cow. 376; Walradt v. Maynard, 3 Barb. 584. But the right to a demand may he waived. And where an attorney set up a claim against his client to a larger amount, it was held a waiver of a demand: Id.; and see Satterlee v. Frazer, 2 Sandf. 141. Attorneys as partners are liable, although it was paid to one of them, and has been demanded from him only: McFarland v. Orary, 6 Wend. 297; compare Ayrault v. Chamberlin, 26 Barb. 83. 19. Corporation. — In an action by a corporation to recover funds re- ceiver by the treasurer thereof, if the complaint shows the relation of the parties, and gives a statement of the moneys received by him, and that de- fendant is indebted, it is sufficient. A demand will be inferred, and if none were made, defendant should pay the debt but not the costs: Second Avenue R. R. Co. V. Coleman, 24 Barb. 300. 20. Demand Essential. — But a count in a complaint in such an action is bad when it is not alleged that demand had been made on defendant; as a party receiving money for the use of another is rightfully in possession till the same is demanded: Reina v. Cross, 6 Gal. 31; Greenfield v. Sir, "Grinnell," Id. 68. 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: Walrath v. Thompson, 6 Hill. 540. As where a bank receives money, it cannot be sued until after it has been drawn for: Downes v. Phx- nix Bank, 6 Hill. 297. But a deposit with a stakeholder, or an illegal wager, may be sued for without a previoiis demand, where the money has been paid over before the action: Ruckman v. Pitcher, 1 N. Y. 392; see Johnston V. Russell, 37 Gal. 670. 21. Other Parties. — 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: Ilickok v. Eickok, 13 Barb. 632. 22. Sub-Agents. — Money collected by a sub-agent may be recovered: Wilson V. Smith, 3 How. U. S. 763. Or money paid to an agent, if before it be paid to the principal, notice be served upon the agent that it will be re- claimed: Wood V. United States, Dev. 55. 23. Sufficient Allegations.— A complaint which alleges that the defend- FOE MONET EECEIVED TO PLAINTIFF'S USE. 353 aut was employed as plaintiff's agent for the purchase of stock, that in set- tlement between the seller and defendant, the former was found to be in- debted 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 suflaoient cause of action: Bates v. Cobb, 5 Bosw. 29. A complaint against an agent for money received, who pretends to have been robbed thereof, may prop- erly allege simply that the defendant being in possession of the plaintiff's property as his agent, converted the same to his own use: Frost v. McCarger, 29 Barb. 617. That defendant, as such agent, had collected from divers per- sons divers sums, either stating the aggregate or asking an accounting, is sufacient: West v. Brewster, 1 Duer, 647. 24. Who may Recover.— Where an agent or servant applies money of his employer, in his hands, to discharge the debt of a third person, the em- ployer may recover it from the payee as money received to his use, if the payee received it with a knowledge of the facts: Amidon v. Wheeler, 3 Hill, 137. 25. When Action lies. — 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: Stan- wood V. Sage, 22 Gal, 517. No. Ul. iii. The Same, Another Form. [Title.] The plaintiff complains, and alleges : I. That between the day of , 187 . , and the day of , 187 . ., the defendant was the agent of the plaintiff in [stating generally the em- ployment], that he collected and receiTcd 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 , 187 . , at , the plaintiff demanded payment of the same from the defendant. III. That he has not paid the same. [Demand of Judgment.'] 26. Notes Received. — Under a complaint in an action against an agent for money had and received, the plaintiff may recover where it ap- pears that the defendant received notes which were good and collectible, and by his transactions he released the debtor and deprived his principal of all remedy except against himself: 6 Cow. 183, note; 3 Mass. 403; 11 John. 464; Allen v. Brovm, 51 Barb. 86. 23 354 FOE MONEY EECEIVED TO PLAINTIFF'S USE. N'o. US. iv. For Money Received liy Defendant, through Mistake. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187., at , the defendant presented to the plaintiff an account of mutual dealings 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. III. That in fact said account was not correctly stated, but that it overcharged the plaintiff with the sum of dollars by an error in adding up the items thereof [or other- wise, specifying the error] . IV. That defendant has not paid the said sum of ....... dollars to the plaintiff, though requested so to do. IDemand of Judgment. 2 27. Demand. — Where money is paid by mistake, notice of the mistake, and demand of repayment before suit to recover it back, are not necessary. The party receiving the money under such circumstances is not a bailee or trustee. But such a demand may affect the question of interest : Utica Bank V. VanGieson, 18 Johns. 485. 28. Mistake of Law. — Money paid by mistake of law cannot be recov- ered back, there being no difference between money paid in ignorance of law and money paid by mistake of law: Schlesiiiger v. United States, 1 Nott. & H. 16; Elliot v. Swartwout, 10 Pet. 137. 29. ■When the Action Lies.— That money paid under a mutual mis- take of facts may be recovered back, see Burr v. Veeder, 3 Wend. 412; Wheadon v. Olds, 20 Id. 174; Canal Bank v. Bank of Albany, 1 Hill, 287; Bank of Commerce v. Union Bank, 3 N. Y. 230; Duncan v. Berlin, 60 N. Y. 151; Manchester v. Burns, 45 N. H. 482. No. lift. T. lor Price of Goods Sold hy a Factor. [Title.] The plaintiff complains, and alleges : I. That on the .... day of 187., at , he delivered to defendant [fifty barrels of flour], for sale upon commission. II. That on the day of , 187 . [or on some other day unknown to the plaintiff, before the day of FOE MONEY BECEIVED TO PLAINTIFF'S USE. 355 , 187.], the defendant sold the said merchandise for dollars. [III. That the commissions and expenses of the defend- ant thereon amount to dollars.] IV. That on the day of ,187., the plaint- iff demanded from the defendant the proceeds of the said merchandise. V. That he has not paid the same. [_Demand of Judgment.^ 30. Demand. — In an action against an agent for not accounting, etc., a request to account and pay over must be alleged and proved: Bushnell v. Mc- Gauley, 7 Cal. 421. The distinction, in respect to the necessity of proving a demand, between an action for not accounting, and an action for not paying over, discussed in Cooley v. Beits, 24 Wend. 203. 31. Demand should be AUeged. — An express demand should be al- leged: Baird T.Walker, 12 Barb. 298; Ealden v. CrafU, 4 E. D. Smith, 490. In an action against a factor for the proceeds of goods sold, of which he ap- prised his principal, a demand 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: Cooley V. Betts, 24 Wend. 203; Ferris v. Paris, 10 Johns. 285; Salden v. Crafts, i E. D. Smith, 490. 32. Election of Remedy. — 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 by him, and the receipt of the money, and waiver of the tort, and sue for the money had and received, or for the value of the property, as for goods sold and deliv- ered. 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: 1 Hill, 234, 240, note a.; 2 Seld. 112; 27 Barb. 652. 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: 12 How. Pr. 326; 3 Seld. 476; Earpending v. Shoemaker, 37 Barb. 270; compare ByxMe v. Wood, 24 N. Y. 607. 33. Form of Action. — This form is drawn on the presumption that the factor has not accounted. If he has accounted, but not paid, the better form is on an "account stated." If he has not accounted, it is improbable that the plaintiff will know the precise amount of his expenses, and it is not necessary to credit him with them in the complaint: N. Y. Code Comm'rs, note. The third allegation is not essential, but may prevent any answer set- ting up his claim. 34. Goods Sent on Commission. — 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: Elbourne v. Upjohn, 1 0. & P. 572. 356 FOE MONET EECETVED TO PLAINTrPE'S USE. No. lU- Ti. Against Factor, for Price of Goods Sold on Credit. [Title.] The plaintiif complains, and alleges : I. That on the day of , 187 . , the plaintiff employed the defendant to sell certain goods and mer- chandise, of the value of dollars, upon commission, and delivered the same to the defendant, who then promised to sell them, and be responsible to the plaintiff for the price thereof. II. That on the day of , 187., 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 ex- pired before the commencement of this action. III. That the commission and expenses of the defendant thereon amount to dollars. IV. That plaintiff further alleges, on information and be- lief, that the sum of dollars is the price of said goods and merchandise, after deducting said charges. V. That on the day of , 187 . , at , the plaintiff demanded of the defendant payment of the said sum of dollars. VI. That he has not paid the same. ^Demand of Judgment.'] 35. Default of Purchaser.— It is unnecessary for the plaintiff to aver that the purchaser was in default, nor is it necessary to aver a demand on him, though it might he otherwise if the factors guarantied the payment of a price to be collected by the principal: 1 Pars, on Cont. 78; Milliken v. JByerly, 6 How. Pr. 214. 36. Demand. — The rule is settled in New York, that a foreign 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 in- structions to remit: Walden v. Crafts, 2 Abb. Pr. 301; Balden v. Crafts, 4 E. D, Smith, 490; Ferris v. Paris, 10 Johns. 285; Lillie v. Hoyt, 5 Hill, 395. No. 146. vii, Against Broker for Proceeds of Note Discounted. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the plaintiff employed the defendant to negotiate a promis- sory note, the property of the plaintiff, made by one A. B. FOE MONET LENT. 357 [describe tlie note], and thereupon he delivered the same to the defendant, who undertook to negotiate the same for a reasonable commission, and to pay the proceeds over to the plaintiff. II. The plaintiff further alleges, on information and belief, that on the day of , 187 . , 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 , 187., 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. [DeTnand of Judgment.'\ 37. Unauthorized Sale. — For selling without authority stock which the broker had purchased for the plaintiff, if this fact he 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 : Clark v. Mugs, 13 Abb. Pr. 467. CHAPTER X. FOR MONEY LENT. So. 146. i. Lender against Sorrower. The plaintiff complains, and alleges : I. That on the .... day of , 187., at , he lent to the defendant dollars. II. That the defendant has not paid the same. Wherefore the plaintiff demands judgment for dollars, with interest from the .... day of 187 . . 1. Averments. — Every material fact must be alleged with certainty; and all those facts which are necessary to distinguish the transaction in question from every other like transaction are material. These details are often im- 358 FOB MONEY LENT. material, in the sense that no issue can be made upon them, yet are material as matter of description. For instance: if to the plaintiff's allegation that "at San Francisco, he lent," etc., the defendant should answer that he never borrowed any money from the plaintiff at San Francisco, the answer would be frivolous. Time is not ordinarily material, except the order of occurrences, and to fix the date when interest began. When no time is fixed for the re- payment of the loan, the presumption is that it was to be paid immediately: Feels V. Bratt, 6 Barb. 662. Nor is it necessary to show that the debt had become payable at the commencement of the action, as that is matter of de- fense to be set up in the answer: Smith v. Holmes, 19 N. Y. 271; Maynard v. Talcott, 11 Barb. 569. But whenever time is material, as in case of demand and notice to charge an indorser, it must be directly and truly stated: Castro V. Wetmore, 16 Cal. 379. 2. At his Request. — This may be omitted, upon the authority of the case of Victors v. Davis, 1 Dowl. & L. 984. Although it is necessary to prove a request in order to constitute a loan: See Brownv. Gamier, 6 Taunt. 389. But, in general, a request in such case will be implied: See Victors v. Davis, 1 Dowl. & L. 984; see, also, in this connection, Brown v. Gamier, 6 Taunt. 389; S. C. 1 Eng. Com. L. K. 421, where it was held that "hired " implies a request. Where a special request is necessary to be averred, the general allegation of "though often requested " is not sufSoient: Bush v. Stevens, 24 "Wend. 256; Whitton v. Whitton, 38 N. H. 127. The defect, how- ever, is cured by verdict: Leffingwell v. White, 1 Johns. Gas. 99. 3. Debt, ho'w Contracted. — In an action to recover money loaned, if the complaint charges the indebtedness, the manner in which it accrued, the promise to pay, and the refusal, it is sufficient: Williams v. Glasgow, 1 Nev. 533. 4. Debt, ■when Due. — It is not necessary to state when the debt was to be repaid, except for the purpose of fixing a date for interest. The pre- sumption of law is, that it was to be paid immediately: Peets v. Bratt, 6 Barb. 662, Nor is it necessary to show that the debt was due at the com- mencement of the action. If it was not, that is matter of defense, to be set up in the answer: Smith v. Holmes, 19 N. T. 271. 5. Demand. — "Where the count, in an action for money lent and ad- vanced, 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: Mill v. Bank of the United States, 11 "Wheat. 431, at p. 440. 6. Non-Payment. — It may [be doubted whether the allegation of non- payment is necessary: See Lanning v. Carpenter, 20 N. Y. 458; McKyring v. Bull, 16 Id. 297. 7. Payments Made on Account. — The plaintiff need not state pay- ments made on account, as this is matter of defense. But where the com- plaint is verified, there is a necessity to do so; and in such case he should briefly state what amount has been paid: Van DemarlcY. Van Demark, 13 How. Pr. 372; Giles v. Bets, 15 Abb. Pr. 285. As any payments must be pleaded, it is certain that the most general form of averring non-payment is sufacient. It is not necessary to add " or any part thereof." Although not necessary, it is highly proper to credit the defendant with any payments. FOB MONET LENT. 359 8. What must be Shown.— The declaration set out a draft drawn by- defendants on a house in Boston, which it avers was drawn with the under- standing that plaintiff should pay the same, but did not aver that after pay- ing the draft, he canceled it, and dehvered it up to the defendant: Held, that the defects were fatal in this form of action: Lambert v. Slade, 3 Cal. 330. No. U7. a. The Same, no Time for Payment Agreed on. [XiTLE.] The plaintiff complains, and alleges : I. That on the day of , 187., he loaned the defendant, for his accommodation, and at his request, and without any time being agreed on for repayment, the sum of dollars. II. That he has demanded payment of the same, but the defendant has not paid said sum of dollars, nor any part thereof. [ Demand of Judgment. ] Jfo. 148. iii. By Assignee of Lender against Borrower. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187., 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 defendant. II. That on the .... day of , 187., 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. I Demand of Judgment. 2 9. Form of Action. — This form of complaint should only be employed in cases where the items of the claim are embraced in an account: Allen v. Patterson, 7 N. Y. 476. For authorities in support of the above form, con- sult Freeborn v. Glazier, 10 Cal. 337; De Witt v. Porter, 13 Id. 171; Beelcman V. Plainer, 15 Barb. 550; Second Avenue B. B. Co. v. Coleman, 24 Barb. 300. 10. Where Suit is not on an Account. — Where the action is not on an account, this complaint may be obnoxious to a motion to make it more definite and certain, if defendant is prejudiced by its want of particularity: Eno V. Woodward, 4 N. Y. 249; see; also, 9 How. Pr. 78; Ghesborough v. JT. T. and Erie B. B, Co., 13 Id. 557; Hall v. Southmayd, 15 Barb. 32. But not necessarily so: Adams v. Holley, 12 How, Pr. 326. 360 FOB MONEY LENT. 11. When Action Lies.-Where money was borrowed by an executor, without authority, and the estate had received the benefit of it, the creditor may recover the amount loaned from the estate with interest: Beery v. Hamil- ton, 41 Iowa, 16. For case depending on other facts, see Gurrkr v. Davis, 111 Mass. 480; Marsion v. Boynton, 6 Met. (Mass.) 127. No. U9. iv. Partners Lenders, against Partners Sorrowers. [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 69. j II. That on the day of , 187 . , at , the plaintiffs loaned to the defendants the sum of five hun- dred dollars, on condition that it should be repaid on de- mand, with interest from that date, at per cent. per month. III. That plaintiffs have demanded payment thereof. IV. 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 plaint- iffs allege : I. That on the .... day of , 187 . , at , the plaintiffs, at the special instance and request of the said defendants, paid, laid out, and expended for the said de- fendants, and to and for their use and benefit, the sum of five hundred dollars; in consideration whereof, the said de- fendants promised the said plaintiffs to pay unto the said plaintiffs the sum of five hundred dollars on demand, to- gether with interest thereon. II. That on the .... day of , 187., at , the plaintiffs demanded payment thereof. V. That defendants, or either of them, have not paid the same, the interest, or any part thereof; except, etc. [_State briefly the total payments.] IBemand of Judgment. ] FOE MONEY PAID. 361 CHAPTER XI, FOE MONEY PAID. No. 160. i. For Money Paid to a Third Party at Defendant's Request. ■ [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., 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 , 187., the plaintiff demanded payment of the same from the defendant, but he has not paid the same, IDemand of Judgment.^ 1. Action for, when it Lies. — In this action there may be a recovery of money which an acceptor has paid for the drawer: Whitwell v. Brigham, 19 Pick. 121. Or which a surety has been obliged to pay for his principal: Ward V. Henry, 5 Conn. 598. In general it lies upon an implied engage- ment by the defendant to repay: Grissell v. BoUnson, 32 Eng. C. L. 10. But the objection that there was a special agreement cannot defeat the action for money paid, when the written contract produced contained nothing more than what the law would imply: Gibbs v. Bryant, 1 Pick. 121. 2. Amount Stated.— 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 the petition, though it contains a statement of the amount advanced: Allen v. Shoriridge, 1 Duvall (Ky.) 34. 3. Demand. — 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. 4. Praud.^ — In an action to recover back money received by the defendant from the plaintiff, words in the complaint charging fraud may be regarded as matter of inducement. The fraud need not be proved: Harpending v. Shoemaker, 37 Barb. 270. Money fraudulently received from a bank may be sued for before the note given to the bank becomes due : Gibson v, Stevens, 3 McLean, 551. Or money received on a prize drawn by fraudulent means in a lottery: Cutis v. Phalen, 2 How. U. S. 376. 5. Promise. — This allegation is not absolutely necessary, as the law will imply a promise; but as an express promise is almost always made in such cases, it is better to state it. If no express promise is made, none should be pleaded! See.ParronY. Sherwood, 17N'.Y.227; see, aiao, Berry y. Fernandes, 1 Bing. 338. 6. Promise in Writing.— The Statute of Frauds prescribes that "every 362 FOE MONEY PAID. special promise to answer for the debt, default, or miscarriage of another," is void if not in writing. But it need not be alleged in the complaint that the promise was "in writing:" See p. 182, par. 76. Money paid upon a contract which is invalid under the Statute of Frauds, cannot be recovered back so long aa the other party is ready and willing to perform on his part: Allis V. Bead, 45 N. Y. 142. 7. Trustee of Express Trust. — 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: Priest v. Price, 3 Keyes, 222. No. 151. ii. By one having Paid Debt of Another, to be Eepaid on Demand. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , 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]. [II. That the plaintiff, on the day of , 187 . , at demanded payment of the same from the defendant.] III. That defendant has not paid the same. [_Demand of Judgment.] 8. Demand. — The allegation of demand is not in general necessary, ex- cept for the purpose of fixing the time for interest thereon. 9. Request. — An averment of request is necessary in a complaint for money paid: 2 Greenl. Ev. 93. But it may be either express or impUed; and if implied, the facts raising it must be alleged: See Durnford v. Messiter, 5 Maule & Sel. 446. No. 15Z. iii. The Same — To be JRepaid on a Specified Day. [Title.] The plaintiff complains, and alleges : I. That on the day of 187., at , he paid to the use of the defendant, and at his request, the sum of dollars, to one A. B., the amount of a promissory note made by the defendant. FOR MONEY PAID. 363 II. That defendant promised to repay said sum, witli in- terest, to this plaintiff, on the day of , 187.. III. That he has not paid the same. \_Demand of Judgmenf] 10. Legal Liability. — The defendant's legal liability to pay the debt ■which plaintiff has paid, is an essential fact in an action to recover the money paid, unless there be an express promise by defendant to repay the the plaintiff: 2 Greenl. on Ev. 103, sec. 114, u. But a party who pays an illegal claim, without duress of person or of goods, or fraud on the part of the claimant, although he makes such payment under protest, cannot main- tain an action to recover back the money so paid : Flower v. Lance, 59 N. T. 603, No. 15S. iv. For Bepayment of Money paid on a Bexjersed Judgment. [Title.] The plaintiff complains, and alleges: I. That on or about the day of , 187 . , judgment was rendered against this plaintiff in the ;District 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 , 187., at , the plaintiff paid to the defendant the sum of dollars, in satisfaction thereof. III. That afterwards, on the day of , 187 . , by the judgment of the Supreme Court of the State of California, said first mentioned judgment was reversed; but that no part of the said sum paid in satisfaction thereof has been repaid to this plaintiff. ■ [Demand of Judgment."] 11. Action. — That money paid on a reversed or suspended judgment may be recovered back, see Baun v. Reynolds, 18 Gal. 276. 12. Judgment Reversed. — It must be shown that the judgment was reversed; it cannot be stated as erroneous: Bank of Washington v. Sank of U. S., i Cranoh, 86; compare McDaniel v. Biggs, 3 Cranch, 167; Bank of Washington v. Neale, 4 Cranch, 627; White v. Ward, 9 Johns. 232; Both v. Schloss, 6 Barb. 308. 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: Sturgis v. Allis, 10 Wend. 355. An action lies to recover back money paid under the award of a public officer, when such award was obtained by fraud and imposition, and where the payment was made before discovering the fraud: Michigan v. Phxenia Bank, 33 N. Y. 9; modifying same case, 7 Bosw.'20. 364 FOB MONET PAH). No. 154. T. By Broker, for Money Advanced on Account of his Principal. [Title.] 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 .... . , 187 . , they purchased for and on account of the defendant, and at his request, the following goods, wares and mer- chandise [designate them] — said goods, wares and mer- chandise to be paid for by the defendant at the expiration of days from the day of purchase, with the right to the defendant to pay for said goods, wares, etc., at any time before the expiration of said days. III. That it is the custom of brokers in such cases to purchase the goods in their own names, without disclosing the name of their principal, and in case of the failure of the principal to pay for the same, to re-sell the goods on ac- count of the principal. IV. That on the day. of ,187 , at , plaintiffs offered to deliver said goods, wares and merchan- dise to the defendant, and demanded of him payment for the same. V. That on or about the day of , 187 . , the defendant paid to the plaintiffs, on account of the said purchase of goods, wares, etc., dollars. yi. That at the expiration of the said days, the defendant failed to pay the balance due for said goods, and the plaintiffs paid for the same, and to reimburse themselves, afterwards, oh the day of , 187 . , sold the same on his account, at [state the price]. 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 Judgment,'] 13. Custom of Brokers.— It is well to set forth the custom of brokers in such transactions: Whitehouse v. Moore, 13 Abb. Pr. 142. A custom of insurance brokers to take dividends declared by mutual companies in lieu of all other compensation, is bad: Minnesota 0. B. B. Go. v. Morgan, 52 Barb. 217. 14. Demand.— The plaintiff must aver that he demanded payment of the price, nnd offered to deliver the goods: Merwin v. Hamilton. 6 Duer. 244. FOR MONEY PAID. 365 No. 155. vi. For Bepayment of Deposit on Purchase of Real Estate. [Title.] The plaintiff complains, and alleges : I. That on the day of ; . , 187 . , the plaintiff and the defendant made their contract in writing, subscribed by them, whereby it was mutually agreed that the said de- fendant 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 , 187 . ; and that the plaintiff should thereupon pay to the said defendants the said purchase money. II. That the plaintiff, as a security, as well for the per- formance of said agreement on his part, as to secure a per- formance 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 purchase 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. 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 , 187 . , 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 , 187 . , 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 , 187., he de- manded of the defendant payment of the sum of dollars, deposited with him as aforesaid. VI. That defendant has not paid the same. IDemand of Judgment.l 366 FOE MONEY PAID. 15. City Property. — Where the sale of the city's property was -without authority, the plaintiff is not required to surrender the property before bringing an action for recovery back of the purchase money: McCracken v. San Francisco, 16 Cal. 591. He is not required to transfer either the prop- erty or the possession to the corporation before the commencement of the action: Serzo \. San Francisco, 33 Cal. 134. 16. Demand of Judgment. — The plaintiff may recover interest on the deposit money recovered, from the time of demand : Farquhar v. Farley, 7 Taunt. 592. And on money in his hands lying idle, ready to complete the contract: Sherry v. Oke, 3 Dowl. Pr. 0. 349. 17. Fraudulent Sale.— Where plaintiff bought a lot and paid taxes thereon, and afterwards discovered that the defendant had previously sold it, and the 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 purchase money and in- terest: Alvarez Y. Brannan, 7 Cal. 503. 18. Offer to Perform. — An offer to perform is necessary; mere readi- ness is not suflacient: Lester v. Jeioeti, 11 N. Y. 453; Williams v. Sealey, 3 Den. 363; Johnson v. Wygant, 11 Wend. 48. 19. Performance. — It is necessary for the plaintiff to aver his readiness and willingness to fulfill at the time and place agreed: Porter v. Bose, 12 Johns. 209. But the purchaser is not bound to make an absolute tender of performance; a, conditional offer to perform is sufficient; Bobb v. Mont- gomery, 20 Johns. 15; West v. Emmons, 5 Id. 179; Topping v. Boot, 5 Cow. 404; Bawson v. Johnson, 1 East. 203; Bellinger v. Kilts, 6 Barb. 273. 20. Purchase Money — To recover back purchase money on the ground of a breach of covenant, the complaint must allege a breach of covenant: Wills V. Frim, 21 Tex. 380. 21. Purchase from Agent — 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: Engels v. Seaily, 5 Cal. 135. 22. Reasonable Time.— The bringing of the action is not, however, a sufScieut demand. A conveyance should be demanded and refused, and a reasonable time allowed for its execution: Fuller v. Hubbard, 6 Cow. 13; Hackett v. Suson, 3 Wend. 249; Foote v. West, 1 Den. 544; Sutweller v. Lin- nell, 12 Barb. 512; to the contrary are: Briggs v. Bwight, 17 Wend. 71; Flynn V. McKeon, 6 Duer, 203. 23. Rescission by Vendee.— Upon failure of the vendor to be ready with the deed, and convey a good title, on the day agreed, the vendee may rescind the contract, and recover back the deposit: 11 Johns. 525; Sugd. on Vendors, 359; Van Benthuysen v. Crapser, 8 Johns. 257; Dominiakv. Michael, 3 Sandf. 374. And a demand of the deposit is a rescission: Id. And if on demand the vendor positively refuses, no further demand is necessary: Blood v. Goodrich, 9 Wend. 68. But if by the laches of the vendee of land, the remedy at law is barred, and the right to a specific performance is for- feited, there can be no recovery of what has been paid on the contract: Finch V. Parker, 49 N. Y. 1. * 24. Sale by Auction.— Upon a sale by auction, if the vendor fails to FOR MONEY PAID. 367 complete the contract, the deposit may be reooyered from the auctioneer as stakeholder: iee v. Munn, 1 Moore, 481; Curling'^. ShuUleworth, 6Bing.l21. And if he fail to disclose his principal, he is liable for damages as well: Sanson-7. Eohardeau, Peake's N. P. 0. 120; Kent's Comm. 630, 631; Mauri V. Befferman, 13 Johns. 58; Bank of Rochester v. Mordeath, 1 Den. 402; Mills T. Hunt, 20 Wend. 431. 25. When Action ■will not Lie.— 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 : Boggs v. Hargrave, 16 Gal. 559. No. 156. vii. To Becover Back a Wager. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , at , the plaintiff deposited in the hands of the defendant, as stake- holder, dollars, which was to abide the event of a wager made between the plaintiff and one A. B., on the re- sult of [here state what, as election, race, or othewise]. II. That such wager was in violation of the statute en- titled "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]. IV. That thereby an action accrued to plaintiff, accord- ing to the provisions of said act. \_Demand of Judgment.'^ 26. Actions. — There seems to be no satisfactory reason for the distinc- tion, 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 stake- holder, if one has been employed: Johnston v. Bussell, 37 Cal. 670. An action to recover back money lost at play, is not an action for a penalty or forfeit- ure: Arriettay. Morrissey, 1 Abb. Pr. (N. S.) 439. The complaint in such action must be special, setting out the facts, and bringing the plaintiff within the statute by force of which he claims to recover: 15 Johns. 5; Moran v. Morrissey, 18 Abb. Pr. 131. Where an act makes wagers on horse races and the holding of stakes criminal offenses, one who has deposited money with a stakeholder cannot recover it, although the race has not come off: Sutphin V. Grozer, 3 Vroom, 462; see BybeeY. Burhank, 2 Oregon, 295. 27. Demand. — An action against a stakeholder, to recover money de- posited on an illegal wager, may be maintained without previous demand, when the money has been paid over before the action: Ruckman v. Pitcher, 1 N. Y. 392. In such an action interest is recoverable from the time of de- mand, e.g., from the commencement of the action: Buckman v. Pitcher, 20 N. Y. 9; and 13 Barb. SS6. 368 FOR MONEY PAID. 28. Facts must be Averred.— The complaint is obnoxious to a mo- tion that it be made more definite and certain, unless it states the facts nec- essary to show clearly under which section of the statute the action is brought: Arrietta v. Morrissey, 1 Abb. Pr. (N. S.) 439. As the remedy in such action is given by statute, he must by his complaint bring himself within its provisions: Langworthy v. BroomUy, 29 How. Pr. 92. The count in a complaint stating that, on a day named, the defendant 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 suflfioient to constitute a cause of action: Beiis v. Bache, 9 Bosw. 614. 29. Form.— For another form, consult O'Maley v. Beese, 6 Barb. 658; Betts v. Bache, 14 Abb. Pr. 279. 30. Kansas. — In Kansas, money placed in the hands of a stakeholder, on an illegal bet on elections, may be recovered by the depositor, on de- mand, at any time before it is paid over to the winning party : Beynolds v. McKinney, 4 Kansas, 94; Jennings v. Reynolds, 4 Id. 110. 31. Iiimitation of Right to Recover. — If the parties to an illegal wager repent, and desire to withdraw before the wager has been decided, let them be encouraged to do so, by allowing them to recover their stakes from each other or from the stakeholder. But persons who allow their stakes to remain until the bet has been decided, are entitled to no such consideration : Johnston v. Russell, 37 Oal. 670. After the money has been lost and won, neither party ought to be heard in a court of justice : Id. 32. Michigan. — In Michigan, money lost at play or on a horse race, may be recovered as money had and received: Grant v. Bamilton, 3 McLean, 100. 33. Necessary Averments. — In an action to recover money lost at play, since the statute gives the action only for losses exceeding twenty-five 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 payment. It is not sufSoient that these facts might be called forth by requiring a bill of particulars: Arrietta v. Morrissey, 1 Abb. Pr. (N. S. ) 439. No. 157. viii. By Landlord, against Tenant, for Repayment of Tax. [Title.] The plaintiff complains, and alleges : I. That on the .... day of ,187., at , the plaintiff and the defendant entered into an agreement of which the following is a copy [set forth lease or agree- ment]. II. That there was duly levied and assessed upon said premises for the year 187 . , and while the covenants of the aforesaid agreement were in full force, and the defendant in FOR MONEY PAID. 369 possession of the premises by virtue thereof, a tax of dollars, which the defendant neglected to pay. III. That by reason thereof, the plaintiff was, on the . . . day of , 187 . , compelled to pay the said sum of dollars, with dollars arrearages of in- terest, and per cent., amounting in the whole to dollars. IV. That defendant has repaid no part thereof to the plaintiff. [Demand of Judgment.} 34. Demand — The lessor's right of action is perfect without a previous demand of the tenant: Gamer v. Hannah, 6 Duer, 262. 35. Illegal Taxes. — In an action to recover back illegal taxes, it is not sufficient to aver that the valuation of the property is "unjust, dispropor- tioned, and unequal." The complaint must state specifically v^herein it is so : Ouy v. Washiwm, 23 C4l. Ill ; see, also, Dietrich v. Mayor of N. Y., 5 Hun. 421; Dewey v. Soard of Sup., etc., 2 Id. 392. No. 158. ix. Against Carrier, to Recove/r Money in Excess for Freight. [Title.]- The plaintiff complains, and alleges : I. That on the day of , 187 . , 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. II. That the said sum of dollars was a reason- able 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 de- manded said goods of the defendant, and was ready and willing, and offered to pay to the defendants for transport- ing 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 , 187., 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 370 FOE MONET PAID. otherwise performed all the conditions of said agreement on his part. VII. That defendant has not repaid the same. [Demand of Judgment.'] 36. Concurrent Acts. — Delivery of freight by the carrier, and payment of freight money by the owners, are concurrent acts, and neither party is bound to perform his part of the shipping contract unless the other is ready to perform the correlative act: FrotMngham v. Jenkins, 1 Cal. 43. No. 1B9. X. To Recover Back Freight on Failure of Carriage. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , 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. II. That on the day of , 187 . , the plaintiff paid to the defendant the sum of '. . dollars, 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 , 187., at , the plaintiff demanded of the defendant repayment of said sum of dollars advanced. V. That he has not repaid the same. [Demand of Judgment] 37. Advanced Freight — Freight paid in advance for transportation of goods is to be repaid in the event of their not being carried, unless there be a special agreement to the contrary: 5 Saudf. 578; Griggs v. Austin, 3 Pick. 20; Harris v. Hand, 4 N. H. 259, 555; 3 Kent's Com. 226. This rule is not suVijeot to any usage to the contrary: Emery v. Dunbar, 1 Daly, 408. Ad- vanced freight can be recovered back by the charterer, in case of the loss of the ship, or non-performance of the voyage, whether by fault of the master or not: Zawson v. Worms, 6 Cal. 365. 38. Contract Generally.— Contracts for carrying freight form no ex- ception to the general law, that where money is paid for an act to be dona by another, and the act is not done, the money may be recovered back: Reina V. Cross, 6 Cal. 29. 39. Non-Performance — Where money is paid by one person in consid- eration of an act to be done by another, and the act is not ijerformed, the money so paid may be recovered back: Reina v. Cross, 6 Cal. 31; see Taylor V. Beavers, 4 E. D. Smith, 215. [Title.] FOB MONEY PAID. 371 iVo. 160. xi. By Surety, against Prinoipal. The plaintiff complains, and alleges : I. That on the .... day of , 387 . . , at , a judgment was duly given and made in the Court of , against the defendant, in favor of one , for [dollars], from which the said defendant ap- pealed. II. That on the .... day of ,187., at the request of defendant, the plaintiff executed an undertaking, a copy of which is hereto annexed. III. That on the .... day of , 187., the said judgment was affirmed by the Supreme Court of this State, with dollars costs and damages. V. That on the .... day of ,187., the plaintiff paid dollars, upon the said undertaking, to the said VI. That the defendant has not paid the same to plaintiff. [_Demand of Judgment.^ [_Copy of the Vhdertalcing.2 40. Legad Liability — Unless there is a special promise, the defendant's legal liability to pay is an essential fact: 2 Greenl. Ev. 103. 41. Rights of Surety. — The rights of sureties, as against principals and co-sureties are discussed in 1 Parsons on Contracts, 33; Pars. Mer. Law, 39; Baker v. Martin, 3 Barb. 634. 42. Surety, Action by.— 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 com- plaint: Barker Y. Glidewell, 23 Ind. 219. 43. Undertaking. — Where a defendant undertook to pay any judgment which M. might recover against L., and the plaintiff undertook to save him harmless from such payment to the extent of five hundred dollars, which sum he deposited with the defendant for that purpose, the relation of prin- cipal 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 pay- ment or release of the judgment: Solomon v. Beese, 34 Cal. 35. 372 FOB MONET PAID. J^o. 161. xii. For Bepayment of Advances on Services. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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 consideration of the sum of dollars, to be paid therefor by the plaintiff. II. That on the .... day of , 187., 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 services. IV. That the defendant has not repaid the same. [Demand of Judgment.] 44. Acceptance of Order. — The aoeeptance of an order to pay money, to be deducted from a payment to become due under a contract for work to be performed, is a promise to the payee, and the payee may recover thereon under the common money counts: 1 Hill, 84; 12 Johns. 278; 17 Wend. 206; McClelland. Anthony, 1 Edm. 184. 45. Non-Performance. — The plaintiff must allege and prove non-per- formance: Wheeler y. Board, 12 Johns. 363. And if the defendant has re- scinded, plaintiff need not prove readiness to pay the whole contract price: Main v. King, 8 Barb. 535. 46. Rescinded Contract — Where an agreement has been rescinded on a contract for services, or performance so neglected as to entitle the plaintiff to rescind, a demand is not necessary to enable plaintiff to recover back ad- vances: Raymond y. Beamard, 12 Johns. 274; and see Utica Bank v. Van meson, IS Id. 485. 47. Sufficient Allegations. — In a complaint for money expended and * services performed, technical words, the meaning of which is long estab- lished, rather than phrases of doubtful import, should be used. The com- plaint 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 per- formance of labor : Huguet v. Owen, 1 Nev. 464. 48. Void Contract. — 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 circumstances, disaffirm such contract, and maintain his action at law to recover back money so paid, or the value of services so rendered : King V. Brown, 2 Hill, 485; Baldwin v. Palmer, 10 N. T. 234; Fuller v. Reed, 38 Cal. 99. FOB SEETICES, WOBK AND LABOB. 373 CHAPTEE XII. FOB SERVICES, WOEK, AND LABOB. No. IGS. i. For Services, at a Fixed Price. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187. , at , the defendant hired him as [clerk, or other- wise], at a salary of dollars per month. II. That from the said day of , 187 . , until the day of , 187 ., the plaintiff served the defendant as [his clerk]. III. That the defendant has not paid the said salary [or that no part of said salary has been paid, except, etc.] IBemand of Judgment.^ 1. Demand. — No demand is necessary. Bringing the action is a suffi- 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 de- mand of payment is required: Lake Ontario B. E. Co. v. Mason, 16 N. Y. 451; Ernst v. Barile, 1 Johns. Cas. 319. 2. Effect of Special Contract. — 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 performed 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 price: Bobbins v. Higgins, 78 111. 440. 3. 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 cannot break off at his own pleasure, and sue upon the contract for the "work so far as he has gone: Hutchinson v. Wetmore, 2 Cal. 311. In such a case, performance is a condition precedent to payment : Id. In a suit to re- cover 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 apportion the contract and allow plaintiff to recover : Eogany. Titlow, 14 Cal. 255; see further, "Employment," subd. four, chap. 4. A contract maybe 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: Sutchinson v. Weimore, 2 Cal. 311. Where one is employed by another under a contract, at a stated salary, pay- able monthly or at a stated time, as clerk or business agent, and the em- ployee neglects his business, the employer is not precluded from suing for damages for neglect, by payment in full of employee's wages, or by not set- ting up a counter claim in an action by employee for his wages: Stoddard v. 374 FOE SERYieES,WOBK AND LABOK. Treadwell, 26 Cal. 294. Where a party contracts for a consideration in money, to find a purchaser for certain lands, it is a contract of employment, and not a contract for the sale of land within the meaning of the Statute of Frauds: Seyn v. Phillips, 37 Cal. 529. But where a part of the remunera- tion 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 he enforced : Crawford v. Morrill, 8 John. 255; Van Alstiney. Wimple, 5 Conn. 164. But if services have been performed on such a void contract, the injured party may disaf- firm the contract, and maintain his action at law for services rendered: King v. Srown, 2 Hill, 4:85; Saldwln v. Paliiwr, 10 N. Y. 232; Fuller v. Beed, 38 Cal. 99. 4. Extra Pay. — An express agreement for extra pay must be shown where a party works for a monthly salary: Cany v. Halleck, 9 Cal. 198. 5. Form of Complaint, — A declaration for labor done or services per- formed generally, without specifying them in particular, is good: Edwards v. Nichols, 3 Day, 16; compare Willamette Falls Transportation Co. v. Smith, 1 Or. 171. 6. 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 ex- penses thus incurred: Conner v. Hutchinson, 12 Cal. 126. 7. Jurisdiction — A British seaman on board a British vessel of which a British subject is master, may, when discharged 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: Pugh v. Oillam, 1 Cal. 485. 8. Performance of Conditions If the contract contains special pro- visions as to the mode of performance, the proper mode of declaring is still on the contract 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 : Adams v. Mayor, etc., ofN.Y., 4 Duer, 295; Atkinson v. Collins, 30 Barb. 430; S. C. 9 Abb. Pr. 353; Brown v. Oolie, 1 E. D. Smith, 265; Wyckoff v. Myers, 44 N. Y. 143. 9. Services of a Substitute. — The plaintiff may recover for work and services done by his substitute under a contract made by defendant with him, provided that the services of a particular person were not contracted for, and thilt no other person could, under the contract, fill the place of the em- ployee : Zeet v. Wilson, 24 Cal. 398. Under a general complaint for work and labor, the plaintiff may recover on proof of a special contract fully com- pleted: Hwst V. Litchfield, 39 N. Y. 377. 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: Marshally. Baltimore and Ohio E. B. Co., 16 How. (U.S.) 314. 10. 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: Anderson v. Bd. Com., 25 Ohio St. 13. 11. Sufaciency of Complaint. — 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 defend- ant, without demurring, put in an answer denying indebtedness, admitting FOK SEEYICES, WORK AND LABOE. 375 services performed, and setting up payment in full, and there was a verdict for plaintiff; whateyer the defects of the complaint may be, they were cured by defendant's pleading and by the verdict: McManus v. Ophir S. M. Co., 4 Nev. Kep. 15. 12. 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 express agreement, and allege performance: Farron v. Sherwood, 17 N. X. 227. Or excuse for non-performauce, and allege part performance: Wolfe V. Eowes, 20 N. Y. 197. 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: Farro7iY. Sherwood, 17 N. Y. 227; Wolfe v. Howes, 20 Id. 197. Where, however, there has been a written contract, it must be produced on the trial, or its absence accounted for : Clark y. Smith, 14 Johns. 326, and cases there cited; 18 Johns. 169; 19 Id. 205; 1 Sandf. 206; 24 Wend. 60; 22 Barb. 239; 4 Duer, 295. STo. 163. ii. For Services at a Reasonable Price. [Title.] The plaintiff complains, and alleges : I. That between the .... day of , 187 . , and the .... day of , 187 . , at , he [made sundry re- pairs 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.'^ 13. Presumption. — A person enjoying the benefit of the services of another, is presumed to be bound to pay therefor what they are reasonably worth: Moulin y. Columbet, 22 Cal. 509. But this presumption maybe re- butted by proof of agreement at a fixed amount: Id. 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 cannot recover on a quantum meruit: Nicholson v. Patchin, 5 Cal. 475. 14. Promise Implied. — The general rule of law is, while a special con- tract remains open or unperformed, the party whose part of it has not been done cannot sue in indebitatus assumpsit, to recover a compensation for what he has done, until the whole shall be completed. But the exceptions from that rule are cases in which something has been done under a special con- tract, 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 376 FOE SERVICES, WOKE AMD LABOE. indebitatus assumpsit ia mamtamahle: Dermott v. Jones, 23 How. U. S. 220. The servioes must have been rendered in pursuance of an agreement, ex- press or implied, that they were to be paid for: 12 Barb. 473; 5 Cow. 531; 3 N. T. 312. 15. Quantum Meruit The complaint alleging no special contract, plaintiff can recover only what his services are worth: Crole v. Thomas, 19 Mo. 70. In an action on a quantum meruit, for services rendered, excuses for not performing the contract need not be set up: Wolfe v. Bowes, 20 N. T. 197. The complaint in an action against a guardian, to recover from his ward's estate for services rendered them, must allege that the employment of the plaintiff was a reasonable and proper expense incurred by the guardian : Caldwell v. Toung, 21 Tex. 800. 16. 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: Angulo v. Sunol, 14 Cal. 402. 17. Subsequent Promise Where a promise to pay is made subse- quent to the completion of the services, it must be shown that the services were rendered at the defendant's request : Bartholomew v. Jackson, 20 Johns. 28; Frear v. Hardenbergh, 5 Id. 272; Parker v. Crane, 6 Wend. 647; see, also, 1 Smith's Lead. Gas. H. & W. Notes, 222; see, also, Hewitt \. Branson, 5 Daly (N. Y.) 1. No. 164. iii. By Carriers, for Freight. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , he trans- ported [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 transportation was reasonably worth dollars]. III. That defendant has not paid the same. IBemand of Judgment.'] No. 165. iv. For Passage Money. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , he conveyed defendant in his steamer called the , from to , at his request. II. That defendant promised to pay plaintiff dollars therefor [or that the said passage was reasonably worth dollars]. III. That defendant has not paid the same. [Demand of Judgment.'] FOB SERVICES, WOEK AND LABOE. 377 No. 186. T. By Parent, for Services of Minor Son. [Title.] The plaintiff complains, and alleges: I. That one A. B. rendered services [as clerk] to the de- fendant, at his request, in his store at , from the day of , 187 . , to the day of , 187.. II. That such services were reasonably worth dollars [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. [^Demand of Judgment.'] 18. Interest of Parent, — Legal interest vests in a parent for the work, labor and services of his child, where there is no express agreement: Shute V. Dorr, 5 Wend. 204, But under an express agreement, or where circum- stances warrant the conclusion that it was understood that the child might receive his earnings, payment to such child will be good: Id.; 2 Mass. 115; 8 Co w. 84. So, where the father gives his implied consent : Whiting v, Marie, 3 Pick. 201; see 7 Cow. 92; 3 Greenl. 77; 12 Pick. llS: So, the father in the above instances cannot sue for such services, even though he give notice not to pay said son his wages: Morse v. Welton, 6 Conn. 547; Z7. S. v. Mertz, 2 Watts. 406; Oale v. Parrott, 1 N. H. 28; Evhanlcs v. Peak, 2 Bailey, 497; Chase v. Smith, 5 Vt. 556. A father cannot 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: Mears v. Bickford, 55 Me. 528; see, also, Simpson v. Buck, 5 Lans. (N. Y.) 337. No. 167. vi. For Services and Materials, at a Fixed Price. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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.] 19. Cause of Action. — In an action for services and materials fur- nished, where both items go to constitute a single cause of action, it must be made so to appear in the complaint. 20. Demand. — Bringing the action is sufficient demand: Feeter v. Heath, 11 "Wend. 479. 378 FOK SEEVIOES, WOBK AND LABOE. No. 168. vii. By an Attorney for Services and Disbursements. [Title.] The plaintiff complains, and alleges : I. That defendant is indebted to the plaintiff on an ac- count, in the sum of dollars, for services as the attorney of the defendant, rendered upon his retainer, be- tween the day of , 187 . , and the day of , 187 . , in prosecuting and defending cer- tain suits; and for like services at his request, in drawing and engrossing various instruments in writing, and in coun- selling and advising the defendant, and for attendance in and about the business of said defendant, at his request; and for money paid out and expended by this plaintiff for the defendant, at his request, in and about said suits and business. II. That the defendant has not paid the same. [Demand of Judgment. ] 21. Contingent Counsel Fees, when Suit Compromised — An in- struction in a suit on a quantum meruit, to recover 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 seryioes were worth," does not incorrectly state the law: Quint v. Ophir S. M. Co., 4 Nev. 304. 22. Counsel Fees, what to be Taken into Account. — To ascertain what may be a reasonable compensation for services rendered by an attorney, the amount involved and the character of the business transacted by him must be taken into account, and the time employed; not the time immedi- ately devoted to the business alone, but the time which he must lose from other business in attending to it: Quint v. Ophir S. M. Co., i Nev. 304. 23. Counsel Fees, Traveling Expenses, and Time Lost. — An in- struction 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 Fjanciseo to Aurora, and there was no special agreement as to the amount to be paid, they can only recover the value of the services ren- dered at the place where they were rendered, with the addition of reason- able traveling expenses; and if the traveling expenses were paid by defend- ant, then they cannot be recovered by jilaintiffs :" Held, clearly erroneous, and proj)erly refused: Quint v. Ophir 8. M. Co., 4 Nev. 314. 24. Money and Services. — Complaint for money expended, and ser- vices performed should state, for the use and benefit of defendant, and at his instance and request. So in regard to performance of labor: Huguet v. Owen, 1 Nev. 464. 25. Professional Services. — A complaint which avers substantially that the defendant was, at a certain time, indebted to the plaintiff in a certain rOB SERVICES, -WOEK AND LABOR. 379 sum, for professional services rendered at the special instance and request of tlie defendant, is sufficient, without stating in terms the value of the services, or that the defendant promised to pay: Wilkins v. Stidger, 22 Cal. 232. 26. Retainer. — 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 were rendered: Eotch- Idss V. Leroy, 9 Johns. 142; jBurghart v. Gardner, 3 Barb. 6i. It is not nec- essary to show a written retainer, a parol employment will suffice ; 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: Harper v. Williamson, 1 MoCord, 156; Owen v. Ord, 3 Carr. & P. 349; Wiggins v. Peppin, 3 Beav. 340; see, also, Allen v. Jiane, 4 Id. 494. 27. Services for Third Party If the services were rendered as attor- ney of another person than the defendant, facts shovring the defendant's liability therefor must be alleged: Merritt v. Millard, 5 Bosw. 645. No. 169. viii. For Services and Material, at a BeasonaUe Price. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , he built a house known as No , street, in said city, and furnished the materials therefor, for the defend- ant, at his request. II. That the said work and materials were reasonably worth dollars. III. That the defendant has not paid the same. IDemand of Judgment.'] No. 170. ix. By Advertising Agents, for Services and Disbursements. [Title. ] The plaintiff complains, and alleges: I. That between the day of , 187., and the day of , 187 . , at'. , the plaintiff rendered services to the defendant, at his request, in causing the defendant's advertisements of his business to be inserted in the following named newspapers and periodicals [names of newspapers]. II. That the plaintiff paid out, at the request of the de- fendant, for such insertions for the use of the defendant, and at his request, dollars. 380 FOB SERVICES, WOEK AND LABOR. I III. That the defendant promised to pay said amount, together with a reasonable sum for said services. IV. That said services were reasonably worth dollars. V. That he has not paid said amounts, or either of them. [Demand of Judgment. 2 No. 171. X. By Publisher and Proprietor, for Advertising, [Title.] 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. II. That between the day of , 187 . , and the day of , 187 . , the plaintiff published insertions in the said newspaper, of the advertise- ments of the defendant. III. That such services and publication were reasonably worth dollars. IV. That the defendant has not paid the same. [Demand of Judgment.'} [Title.] No. m. xi. For Stabling Horses. 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 , 187., to the .....day of , 187.. II. That such keeping and finding of said horse was reasonably worth dollars. III. That he has not paid the same. \_I)emxxnd of Judgment. "] FOR SEEVICES, WOEE AND LABOE. 381 No. 113. xii. (Special Contract, Completely Fulfilled. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187., 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 condi- tions thereof on his part. III. That on the .... day of , 187 . , 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. \_Bem,and of Judgment.'] 28. Partnership. — Where partners employed plaintiff, on condition that a certain portion of his wages should be retained till a certain sum had ac- cumulated, when plaintiff should become a partner, and during the accumu- lation the firm dissolved, the plaintiff may sue on the special contract, or for wort and labor : Adams v. Fugh, 7 Cal. 150. 29. Performance. — If the plaintiff undertakes to aver performance by setting out the facts showing performance, he may be held to aver them with certainty : Hatch v. Feet, 23 Barb. 575. As to averment of performance on a modified contract, see SmUh v. Brown, 17 Barb. 431. No. 174. xiii. The Same, where the Contract was Fulfilled by an Assignee. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , defendants, in consideration of , executed and de- livered in writing, under their hands and seals, a contract with one A. B., of which the following is a copy, and marked "Exhibit A." II. 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. 382 FOE USE AND OCCUPATION. IV. That on the day of , 187., 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. \_Bemand of Judgment.} I Annex Copy of Contract, marked " Exhibit A."] 30. Performance, lions' Alleged. — One suing on a contract assigned to him may allege performance by saying that up to the time of the assignment the assignor had performed, on his part, all the covenants of the contract, and that afterwards the plaintiff fully performed the conditions imposed by the contract on the assignor: California Steam Navigation Co. v. Wright, 6 Gal. 258. Where plaintiff has bound himself to procure certain acts to be done by third parties, adding that those on whose behalf he acted have also performed, is unnecessary: Rowland v. Phalen, 1 Bosw. 43. 31. Relatives. — For cases of services rendered to relatives: see Thornton y. Grange, 66 Barb. 507; and Neal v. Gilmore, 79 Pa. St. 421. CHAPTBE XIII. FOR USE AND OCCUPATION. No. 175. 1. On an Express Contract. / [Title.] The plaintiff complains, and alleges: I. That on the day of , 187., at , the plaintiff rented to the defendant, and the defendant hired from the plaintiff [the office No , street] , at the rent of dollars, payable [monthly], on the first day of each [month] . II. That defendant occupied the said premises from the ....day of , 187., to the! .. .day of , 187.. III. That defendant has not paid dollars, being the [part of said] rent due on the .... day of , 187 . . \_Demand of Judgment.} 1. Action. — It seems that where a landlord elects to terminate a lease for non-payment of rent, and commences summary proceedings to recover pos- session, he is not entitled to recover for use and occupation from the time be terminated the lease until he obtained possession : Powers v. Witty, ii How. Pr. 352; S. 0. 4 Daly, 552. 2. Occupancy. — Actual continued occupancy is not necessary to be shown: Little v. Martin, 3 Wend. 220; Westlake v. De Oraw, 25 Id. 669; Hoff- man V. Delilmnty, 13 Abb. Pr. 388. FOE USE AND OCCUPATION. 383 No. 178. ii. For Rent Reserved in a Lease. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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 , 187 . , amount- ing to dollars. [^Demand of Judgment.'] [Annex Copy of Lease, marked "Exhibit A."'\ 3. Designation of Premises. — The premises may be designated by a simple reference to the lease, as in the above form: Sundas v. Lord Way- mouth, Cowp. 665; Van Rensselaer v. Bradley, 3 Den. 135. 4. Forfeiture. — The tenant cannot 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 land- lord would be defeated by a tenant showing his own default at a prior period, which made the lease void: Doe dem'. Bryan v. Banks, 4 Barn. & Aid. 409; Stuyvesant Y. Davis, 9 Paige, 427; Ganfieldv. Westcoii, 5 Cow. 270. At com- mon law, there was no forfeiture of an estate for years, for the non-payment of rent: Chipman v. Mmeric, 3 Cal. 273. By failure to pay rent when de- manded, the contract under the lease is determined, and possession from, that time is tortious: Treat v. Liddell, 10 Oal. 302. But the mere failure to pay will not make a forfeiture; a formal demand on the day it becomes due, is necessary: GaskiU v. Trainer, 3 Cal. 334. Where the record shows no demand of rent, there can be no forfeiture: Chipman v. Emeric, Id. 273. 5. Liability of Tenant. — The tenant is liable to payment 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: Schilling v. Holmes, 23 Cal. 227. 6. Term of Lease. — If the tenant takes a receipt from his landlord, speci- fying 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 tenancy by implication arises in such cases: Bhimen- berg v. Myres, 32 Cal. 93. H. served upon his tenant B., who was occupy- ing under him certain premises, under a rent of two hundred and fifty dol- lars per month, a notice to quit. Before the time at which, by the effect of the notice, the tenancy would have terminated, B., through a third person, proposed to H. to continue his occupancy, at a rent of three hundred dollars, with which proposal H. expressed himself satisfied, but did not in terms 384 FOE USE AND OCCUPATION. notify B. of Ha acceptance of it. B. continued to occupy tlie premises: Held, in an action by H. for rent at the rate of three hundred dollars per month, that it must be inferred that the subsequent occupation of B. was with the consent of H., on the basis of the proposal, rather than as a tres- passer, and that plaintiff was entitled to recover: Hoff-v. JBaum, 21 Cal. 120. No. 177. iii. For Deficiency after a Re-entry. [Title.] The plaintiff complains, and alleges : I. That by a lease made between the plaintiff and the defendant, on the .... day of , 187 . , at , the defendant rented from the plaintiff, and the plaintiff demised and leased to the defendant the premises therein mentioned, at the monthly rent of dollars, gold coin, payable monthly in advance, on the .... day of each and every month, and that said indenture contained a cov- enant of which the following is a copy [copy covenant] . II. The 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 re-let 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 ^Demand of Judgment.'] 7. Surrender of Premises.— One of the most important duties of the tenant is to peaceably surrender the premises as soon as the tenancy has ex- pired: Schilling v. Holmes, 23 Oal. 227. The surrender of a leasehold estate is the merger of the fee, but this will not defeat the rights of a third party intervening before the merger took effect: GasJdll v. Trainer, 3 Cal. 334. 8. Waiver of Forfeiture.— The subsequent receipt of the rent by the lessor is a waiver of the forfeiture, unless the covenant was a continuing covenant, or the lessor was ignorant of the breach : McGlynn v. Moore, 25 Cal. 384. The forfeiture of a lease is not waived by the lessor allowing the tenant to hold over without notice to quit, unless circumstances show a new term created: Calderwood y. Brooks, 28 Cal. 151. No. 178. iv. Against Assignee of Lessee. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., 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 FOB USE AND OCCUPATION. 385 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 , 187 . , for the term of then next ensuing, for the [monthly] I'ent of dollars, payable to this plaintiff on the [state days of payment], which rent said A. B. did thereby, for himself and his assigns, covenant to pay to the plaintiff accordingly. II. That thereafter, and during said term, to wit : on the day of , 187 . [naming a day before the 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 thereupon 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 , 187 . , the sum of dollars of said rent, for the month end- ing on that day [or otherwise], became due to the plaintiff from the defendant. IV. That he has not paid the same. \_ Demand of Judgment.} 9. Assignment. — In such oases the assignment need not be more specifically alleged: Van Rensselaer v. Bradley, 3 Den. 135; Norton v. Vultee, 1 Hall, 384. 10. Liability. — The liability of an assignee is confined to the term during ■which he holds the premises, by himself, or his immediate tenants: Astor v. Lamoreaux, 4 Sandf . 524. As to liability of one in possession without a valid assignment, see Carter v. Eammett, 12 Barb. 253 ; Byerss v. Farwell, 9 Id. 615. The assignee of a lease may discharge himself from all liability under the covenants of a lease, by assigning over; and the assignment over may be to a beggar, a, feme covert, or a person on the eve of quitting the coun- try forever, provided the assignment be executed before his departure, and even though a premium is given as an inducement to accept the transfer: Johnson v. Sherman, 15 Cal. 287; citing 2 Piatt on Leases, 416. 11. Non-Paynxent. — It is sufficient to aver that the defendant has not paid the same: Dubois v. Van Orden, 6 Johns. 105; Van Bensselaer v. Brad- ley, 3 Den. 135; Bolsman v. De Gray, 6 Abb. Pr. 79. 25 386 FOB USE AMD OCCUPATION. No. 179. V. Qranke of Reversion, against Lessee. tTlTLE.] The plaintiff complains, and alleges : I. That one A. B., was the owner in fee of certain prem- ises [describe them], and on the day of , 187 . , by a lease made between him and the defendant, un- der the hand and seal of the defendant, a copy of which is annexed and made part of this complaint, marked "Exhibit A," he leased to the defendant said premises, from the day of , 187 . , for the term of then next ensuing, for the [monthly or yearly] rent of dollars, payable to said A. B., his heirs and as- signs, on the [state days of payment], which rent the de- fendant did thereby covenant to pay to said A. B., his heirs and assigns, accordingly. II. That thereafter, on the day of , 187. ., at , said A. B., by his deed, under his hand and seal, sold and conveyed to this plaintiff the de- mised premises. III. That notice thereof was given to this defendant. IV. That thereafter, to wit, on the day of of , 187 . , 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. \_Demand of Judgment.'\ 12. Allegation of Assignment That on the day of 187,, at , the said 'A. B. assigned to the plaintiff said lease and covenants, and all his right to the rent therein secured. 13. Allegation by Heir of Reversioner. — That the said A. B. was on the day of 187 , , seised of the reversion in said demised premises. That afterwards, and during the said term, on the day of , 187., A. B. died so seised; whereupon the said reversion then de- scended to the plaintiff as his son and heir; and thereby plaintiff then be- came seised thereof in fee. 14. 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: BeardsUy v. Knight, 4 Vt. 471. It should be alleged distinctly that there was a lease, that the defend- ant was lessee, and is sued for the rent: Willard v. Tillman, 2 Hill, 274 FOB USE AND OCCXJPATION. 387 No. 180. vi. Assignee of Devisee, against Assignee of Lessee. [Title.] The plaintiff complains, and alleges : I. That one A. B. was in his lifetime the owner in fee of certain premises [describe them], and that on the. . . .day of , 187., 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 , 187 . , at , the said CD. assigned all his right, title, and interest in the demised premises to the defendant. IV. That on the.... day of 187., 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 , 187 . , the said A. B. devised the reversion and rent to one E. F. VI. That on the.... day of , 187., at , the said E. F. assigned the said reversion and rent to the plaintiff. VII. That after the said E. F. so assigned the said rever- sion and rent to the plaintiff, the sum of dollars ac- crued as the rent of said premises for the [month or quarter] ending on the day of , 187 . , under and accord- ing to the terms of said lease. VIII. That the defendant has not paid the same. {^Demand of Judgment.'] ' I Annex Copy of Lease marked "Exhibit A."] 15. EzecutOT 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 prop- erty embraced in the lease: Armstrong v. Hall, 17 How. Pr. 76. 16. Form.— It is not expected that this form will be of special use to the profession in California, but instances may present themselves where it may be of utility, and it is therefore inserted. 388 FOE USE AND OCCUPATION. No. 181. yii. For Use and Occupation of Pasture. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , at , the defendant hired from the plaintiff, and the plaintiff 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. n. That defendant occupied said lot by permission of the plaintiff, and as his tenant, under said agreement, for the grazing of his sheep [or cattle], from the day of , 187., to the.... day of , 187.. III. That the defendant has not paid the rent for the months of and [Demand of Judgment.^ 17. Request and Permission. — The allegation that the use and occu- pation 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: Sampson v. Shaeffer, 3 Gal. 201. 18. Terms Stated. — If a plaintiff in an action on a contract 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: Seale v. Emerson, 25 Cal. 293. JVo. 18S. ■nil. For Use and Ooaupation — Implied Contract. [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 , 187 . , until the day of , 187.. II. That the use of the said premises for the said period was reasonably worth dollars. III. That defendant has not paid the same. [Demand of Judgment.'\ 19. Sstoppel — In an action for use and occupation upon an undertak- ing on appeal, the defendants are estopped from denying that the defendant in the judgment was in possession at the time he took his appeal and gave the undertaking: Murdock t. Brooks, 38 Gal. 596. FOB USE AND OCCUPATION. 389 20. Foundation of the Action — No action for use and occupation will lie where possession is adverse and tortious, for there can no implication of a contract: Sampson v. Schaeffer, 3 Gal. 196; Bamirez v. Murray, 5 Cal. 222. The right to recover for use and occupation is founded alone upon contract: O'Connor v. Corbitt, 3 Cal. 370; Espy v. Fanton, 5 Or. 423; Lank- ford V. Oreen, 52 Ala. 103. Or an agreement by which the tenant, with per- mission of the owner, occupied the premises: 52 Eng. Com. L. E. 653; Sel- bey v. Browne, 7 Q. B. 620; 53 Eng. Com. L. K. 620. But in certain cases a contract may be implied: Osgood v. Dewey, 13 Johns. 240; Abeel v. Bad- cliff, Id. 297; Porter v. Bleiler, 17 Barb. 149; Byerss v. Farwell, 9 Id. 615. 21. Implied Demise — The plaintiff need not set forth an implied de- mise, but may declare for use and occupation, and recover on the special facts shown: Morris v. Mies, 12 Abb. Pr. 103; Waters v. Clark, 22 How. Pr. 104. No tenancy can be implied under a party who has not the legal estate : Morgell v. Paul, 2 Mann. & E. 303. But it would appear that one occupy- ing and paying rent to an apparent proprietor as his landlord, cannot, when sued, allege that he has only the equitable estate: Dolby v. lies, 11 Ad. & E. 335. 22. Improvements. — A defendant who entered under a bond for a deed from the plaintiff, cannot set off his improvements against the damages for tjse and occupation: EMmrn v. Ritchie, 2 Cal. 146. 23. Indebtedness. — An averment of use and occupation as tenant is a sufficient averment of indebtedness : Walker v. Manroe, 18 Mo. 564. 24. Interest. — Interest may be recovered on a claim for use and oc- cupation, after demand: Ten Eyck v. Houghtaling, 12 How. Pr. 523. 25. Parties. — The grantee of demised premises, on the reversion thereof, is the proper party to bring suit for the recovery of rent which accrued and became due before, and, a fortiori, after the conveyance to him. After such conveyance, an action by the grantor for rent cannot be sustained: Ander- sons. Treadwell, 1 Edm. 201. Tenants in common may join in an action for use and occupation without showing a joint demise: Porter v. Bleiler, 17 Barb. 149. So, in England, an infant can also maintain this action although he has a general guardian: Id.; and see Fitzmaurice v. Waugh, 3 Dowl. & E. 273; 16 Eng. Com. L.E. 169. 26. Permission Shovrn. — The plaintiff must show that the defendant used and occupied the premises by the permission of the plaintiff: Sampson v. Schaeffer, 3 Cal. 196; Hathaway v. Byan, 35 Id. 188. 27. Possession, -when Adverse. — If the occupation was contrary to the owner's will, his action must be for damages: Smith v. Stewart, 6 Johns. 46; Bancroft v. Wardwell, 13 Id. 489; Hall v. Southmayd, 15 Barb. 32. If the complaint shows that the occupation was a trespass, it is of course bad on demurrer: Hurd v. Miller, 2 Hilt. 540. Authorities upon this point are hardly necessary. 28. Separate Demands. — In New York in an action for use and occu- pation, demands for rent which accrued in the lifetime 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; Pugsley v. Aiken, 11 N. X. 494. 29. Tenant at Will.— If a party enters upon laud which he has con- 390 FOR USE AND OCCUPATION. tracted to purchase, witli tlie 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 : Woodbury y. Woodbury, 47 N. H. 11. After the determination of a tenancy at will by notice, assumpsit for use and occupation lies against the tenant, if he holds over: Eogsdt v. Ellis, 17 Mich. 351; 3 Am. Law Kev. 757, 758. 30. Title It seems that in this action plaintiff need not aver title, and the defendant cannot object to his title: Vernam v. Smith, 15 N. Y. 329. Jfo. 183. ix. For Lodging and Board. [Title.] The plaintiff complains, and alleges : I. That from the day of ,187., until the day of , 187 . , 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 prom- ised to pay [or the same was reasonably worth] the sum of dollars. III. That defendant has not paid the same. ^ [ Demand of Judgment. ] 31. Allegation for Lodging. — That the defendant occupied rooms in, and part of the house of the plaintiff, at [and if furnished, add, to- gether with furniture, linen, and other household necessaries, of the plaint- iff, which were therein], by the plaintiff's permission, as his tenant, from, etc. No. ISJf. X. For the Hire of Personal Property. [Title.] The plaintiff complains, and alleges : I. That between the day of , 187 . , and the day of , 187 . , the defendant hired from the plaintiff [horses, carriages, etc.], for which he owes the plaintiff, on an account thereof, the sum of dollars, which was payable on the day of , 187 . . 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 of Judgment.'} 32. Facts. — Facts on which the amount of compensation depends must be set forth: Eelyea v. Drew, 1 Den. 561. 33. Hired, implies a request: Emery v. Fell, 2 T. K. 28. FOR USE AND OCCUPATION. 391 JV^o. 185. xi. Hire of a Piano-forte, with Damages for not Returning it. [Title.] The plaintiff complains, and alleges : First. — For a first cause of action : I. That on the day of , 187 . , at , the defendant hired from the plaintiff one piano-forte, the property of the plaintiff, for the space of [six] months then next ensuing, to be returned to this plaintiff at the expira- tion of said time in good condition, reasonable wear ex- cepted, 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 de- fendant, as above alleged, was dollars, and that the defendant, in violation of his agreement, has not returned the same, although he was, on the day of , 187 . , at , requested by the plaintiff so to do; to the damage of the plaintiff dollars. [Demand of Judgment.l No. 186. xii. Hire of Furniture, etc., with Damages for Ill-v^e. [Title. J The plaintiff complains, and alleges : First. — For a first cause of action: I. That on the .... day of , 187 . , 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. II. That he promised to pay the plaintiff for the use thereof dollars [in equal quarterly payments, on the ...... days of thereafter]. in. That no part thereof has been paid. 392 SEVEBAL CAUSES OF ACTION UNITED. Second. — For a second cause of action : I. The plaintiff further alleges, that the value of the property so hired by the defendant, as above alleged, was dollars. II. 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 became broken, defaced and injured beyond the reasonable wear thereof, and in that condition were returned to the plaintiff, to his damage dollars. [Hemond of Judgment,'] CHAPTEE XIV. SETEEAL CAUSES OF ACTION UNITED. No. 187. i. Cause of Action under the Money Counts. [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. First. — For a first cause of action, the plaintiffs allege : I. That on the day of , 187., 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 on the .... day of , 187., at , the plaintiffs demanded payment of the same from the de- fendants, but they have not paid the same. Second — And for a second cause of action, the plaintiffs allege : I. That on the. .. .day of ,187., at , SEVEEAL CAUSES OF ACTION UNITED, 393 the defendants received dollars from one E. F., to be paid to tlie plaintiffs. II. That the defendants have not paid the same. Third. — And for a third cause of action, the plaintiffs allege : I. That on .... day of , 187., at ......... the plaintiffs lent to the defendants dollars. II. That the defendants have not paid the same. [Demand of Judgment.l Codes. — 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 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. In- juries 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 prose- cution, or either of them, may be united with an action for either an in- jury to character or to the person: Cal. Code C. 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 force, to person and property, or either. The Wisconsin Code, sec. 31, is the same as the Ohio Code. The Iowa Code, sec. 2630, is as follows: "Causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, provided that they be by the same party, and against the same party in the same rights, and if suit on all may be brought and tried in that county, may be joined in the same petition; but the court, to prevent confusion therein, 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. Bk., 26 Iowa, 562. Code of Dakota, sec. 136, is copied from the Ohio Code; Nevada Code, sec. 64; Oregon Code, sec. 91. 1. Accounts. — As to when separate accounts between the same parties are separate causes of action, and may be separately stated, see Phillips v. Beirick, 16 Johns. 136; Steoens v. Lockwood, 13 Wend. 644; Staples v. &ood- rioh, 21 Barb. 317; Secor v. Sturgis, 2 Abb. Pr. 69. 2. Accounting and Refunding. — The plaintiff may demand in the same action that defendant account for, and refund a proportion of the out- fit and advances made on a joint adventure: Garr v. Bedman, 6 Cal. 574. 3. 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 transaction: Cal. Code C. P. sec. 427. If such union does not amount to a misjoinder, in which case the objection can be raised only by demurrer: Fritz v. Frits, 23 Ind. 388. But actions so united must affect all the parties to the action, and not require different places of trial; but the 394 SEVERAL CATJSES OF ACTION UNITED. defendants need not be all equally affected: EarU v. Scott, 50 How. Pr. 506; see Van Wageman v. Bunt, 7 Hun. 328; Ladd v. James, 10 Ohio St. 437. 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: Hawk v. Thorn, 54 Barb. 164; and must belong to the same class : Cleveland v. Barrows, 59 Barb. 364 ; and must be consist- ent with each other: Smith v. Sallock, 8 How. Pr. 73; see p. 172, ante. 4. Claims in tiwo Capacities. — Claims against trustees, by virtue of a contract, or by operation of law, may be joined: Oal. Code 0. P., sec. 427. So, a trust and a vendor's lien may be united in one action: Burt v. WUson, 28 Gal. 632. 5. Counts on Promises to the testator and to his executor in his repre- sentative capacity may be joined : Brown v. Webber, 6 Oush. 571 ; Sullivan v. Hollcer, 15 Mass. 374. Counts on promises made iby the testator may be joined with counts on promises made by the administrator, as such: Bapgood V. Boughton, 10 Pick. 154; Bixon v. Ramsay, 1 Cranch C. Ct. 472. After counts by the plaintiff, as executor, for an excessive distress, and for distraining for more rent than was due, the declaration proceeded thus : "And the plaintiff, as such executor as aforesaid, also sues the defendant for money paid by the plaintiff as such executor as aforesaid, for the de- fendant, 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 plaintiflf'on an account stated between them. And the plaintiff, as such executor as aforesaid, claims, etc. : Held, on demurrer, that the declaration was bad for misjoinder; Davies v. Bavies, 1 Hurl. & Colt. 451; see ante, p. 174, para. 37 and 38. 6. Class — 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: Fairfidd v. Burt, 11 Pick. 244; Worster v. Canal Bridge, 16 Pick. 541. 7. Common Counts. — So, the common counts may be united in one complaint, if separately stated: Freeborn v. Glazier, 10 Gal. 337; Be Witt v. Porter, 13 Id. 171; Buckingham v. Walers, 14 Id. 146; Keller v. Bicks, 22 Id. 457; Birdseye v. Smith, 32 Barb. 217. But they cannot be united in one count as one cause of action, without any specification of the sums due upon each several cause: BucJcingham v . Waters, 14 Gal. 146. 8. Contracts. — Contracts, express or implied, may be united. For sums due in damages for delay, and a demand to set aside an award, all growing out of the same contract, may be united in one action: ;See v. Partridge, 2 Duer, 463. To reform a written contract, and for judgment thereon, when reformed: Story's Eq. Jur. sec. 157-161; 2 Johns. Ch. 585; 4 Id. 144; Good- ing V. McAlister, 9 How. Pr. 123. For reformation of a contract, and for damages for breach of it: Bidwell v. Astor Mut. Ins. Co., 16 N. Y. 263. Dam- ages for false representatiqns, and for breach of contract: Robinson v. Flint, 16 How. Pr. 240; 7 Abb. Pr. 393; see, however. Waller v. Raskan, 12 How. Pr. 28. Loss of goods by carrier, and also for freight overpaid: Adams v. Bissell, 28 Barb. 382. As to contracts, with allegations of matters of fraud: Roth v. Palmer, 27 Barb. 652. A cause of action for false repre- sentations in inducing the plaintiff to enter into a contract, and a cause of action for a breach of the same contract, may be joined: Robinson v. Flint, SE7EBAL CAUSES OP ACTION UNITED. 395 7 Abb. Pr. 393, note; and see, also, Freer v. Benion, 61 N. Y. 492. On the joinder of ordinary claims in contract with claims for which defendant is arrestable, the plaintiff may waive arrestability in the latter case : Bickox v. Fay, 36 Barb. 9-14. 9. Contract of Partners. — A complaint, after stating cause of action on a contract against partners, and demanding judgment therefor, contained also allegations that the defendants were insolvent, and had fraudulently confessed judgment to hinder their creditors, and demanded aniojunotiou and a receiver: Held, that although the last matter might be obnoxious to a motion to strike out, its insertion did not render the complaint demurrable ; Meyer v. Van Collem, 7 Abb. Pr. 222. 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: Stafford v. Gold, 9 Pick. 533. 10. Each Cause Complete. — Each separate cause of action, as stated, must be complete in itself, and must stand by itself: Latiin v. McCarty, 17 How. Pr. 239; 8 Abb. Pr. 225; see, also, 41 Cal. 17; Earsen v . Bayaud, 5 Duer, 656; DormanY. Kellam, 14 How. Pr. 184; and directly, that numerous items of a distinct class should be stated in distinct cOTints : Adams v. Molley, 12 How. Pr. 326; Billman v. Eillman, 14 Id. 456; and see, also, LoTigworthy V. Enapp, 4 Abb. Pr. 115; see anie, p. 172, pars. 29 and 30. 11. Injuries to the Person. — Claims for injuries to character, or in- juries to character and malicious arrest and prosecution, maybe untted: Oal. Code C. P., sec. 427; 6 How. Pr. 229; 10 Barb. 656; Bully. Vreeland, 42 Barb. 543; 18 Abb. Pr. 182. Plaintiff may recover in an action for the com- bined injury to character and person, when the matters arise from and con- stitute a part of the same transaction: Jones v. Steamship " Cortes," 17 Cal. 487. Criminal conversation with plaintiff's wife, held to be an injury to the person: De la Mater v. Bussell, 2 Code K. 147. So, also, is seduction: Tay- lor v. North, 3 Code E. 9. 12. Injuries to Person and Property It seems that negligence and the damage arising therefrom, both to the person and property of plaintiff, may be united: 10 Bing. 112, 117; 14 Johns. 433; 10 Wend. 328; 1 Chitt. PI. 127; Eowe v. Peckham, 6 How. Pr. 229. For one injury, all the acts of neg- ligence should be alleged in one count: Dickens v. N. Y. Cent. B. M. Co., 13 How. Pr. 228. Injuries resulting to both person and property, from the same negligent act, constitute but one cause of action : Howe v. Peckham, 10 Barb. 656; 6 How. Pr. 229. 13. Injuries to Property. — Actions for injuries to property may be united: Cal. Code C. P., sec. 427; Moore v. Massini, 32 Cal. 590; Howe v. Peckham, 6 How. Pr. 229. The union in one count of a complaint 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 defendants " 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 accumulation 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: Cfaley. Tuolumne Water Co., 14 Cal. 25. In an action for injuries to a mining claim, a claim for damages to the plaintiff by reason of the breaking away of the 396 SEYEBAL CAUSES OP ACTION UNITED. defendant's dam, and the consequent washing away of the pay-dirt of the plaintiff, may properly be joined with a claim for damages in the preventing plaintiff from working his claim: FraUr v. /Sears Union Water Co., 12 Cal. 555. Detention of property, and injury to it while detained, may be united: Smilh V. Orser, 43 Barb. 187. Value of property destroyed, and damages, may be united: Tendeson v. Marshall, 3 Cal. 440. Allegations for conver- sion and detention, and prayer for specific delivery, is no misjoinder, being held a demand for only one kind of remedy: Vogel v. Badaock, 1 Abb. Pr. 176. For violation of agreement, and for injury to personal property : Badger v. Benedict, 1 Hilt. 414; 4 Abb. Pr. 176. Damages and injunction maybe joined in an action for threatened injury to property. The owner of land may join in the same complaint a claim for damages, as assignee, caused by a trespass on the land, while it was owned by his grantor, and a claim for au injunction for a threatened injury to the land: Moore v. Massini, 32 Cal. 590. The plaintiff may join in the same complaint a cause of action for distinct and independent injuries to property, and the property injured in each cause of action may be the same or different, and may be either personal or real: Id. 14. Jurisdiction. — Where the separate causes of action amount together to more than the sum required to give jurisdiction, if joined in one declara- tion they will give jurisdiction: Ridgeway v. Pancoast, 1 Oranch C. Ct. 88. 15. Money Counts and Warranty. — Money counts may be added to a count on the warranty. Or a count for deceit may be added to a count on the warranty: 10 Vt. 457; BohUn v. Foyles, 2 Cranch C. Ct.65. But a claim in assumpsit for warranty of a horse, and for wrongfully concealing his de- fects, could not be united: Sweet v. Ingerson, 12 How. Pr. 331; SpringsteadT. Zawson, 23 How. Pr. 302. But when the form of action in tort is adopted, it is not necessary, to enable plaintiff to recover upon the count for false war" ranty, that a scienter should be averred: 2 Mann. & G. 279; 12 Barb. 336; Schuchardt v. Aliens, 1 Wall. (U. S.) 359. 16. 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 transac- tion, may be united: Cahoon v. Bank of JJtica, 7 How. Pr. 401. 17. Quantum Meruit. — A quantum meruit or a quantum valebant, may be joined with counts upon a specialty: Bmith v. Lowell, 8 Pick. 178; Van Dunsen v. Blum, 18 Id. 229. 18. Separate Demands Separate demands under one and the same right, may likewise properly be joined in the same count: Longworthy v. Knapp, 4 Abb. Pr. 115. Several grounds of liability against the same de- fendant, arising out of the same transaction, may be joined in one action: Burant v. Gardner, 19 How. Pr. 94; 10 Abb. Pr. 445. By the same plaintifi', as devisee for rent, and as executrix, for breach of covenant, all arising out of the same lease : Armstrong v. Hall, 17 How. Pr. 76 . So, also, claims against the same defendant in different capacities may be united : Pugsley v. Aiken, 1 Kern. 494; Lord v. Vreeland, 13 Abb. Pr. 195. For money received on ac- count of an estate, and also for a promissory note which is part of the estate, but payable to executor individually: Wdlsy. TFeftsier, 9 How. Pr. 251. So of claims against various parties, liable to contribute their proportion for re- pairs, for the general benefit of all: Benman-v. Prince, 40 Barb. 213. Against constable for different breaches of duty, and against his surety, held capable of joinder: Moore \. Smith, 10 How. Pr. 361. It would also seem that in SEVERAL CAUSES OF ACTION UNITED, 397 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: Qeery v. N. Y. & Liverpool S. S. Co., 12 Abb. Pr. 268; see, also, "Complaints," p. 172. 19. Several Counts. — A complaint which contains a count setting forth the facts attending the purchase of a county warrant by plaintiff, and charg- ing 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 : Keller v. Sicks, 22 Gal. 457. In Iowa, a party may state in one count a cause of ac- tion on a note, and in another a cause of action on the consideration of a note: Camp v. Wilson, 16 Iowa, 225. 21. Specific Performance. — A claim for specific performance of a con- tract 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 cannot be united: Spier v. Robinson, 9 How. Pr. 325. Grantor with warranty, and holder of an incumbrance, may be joined, to obtain satisfaction of such in- cumbrance, and a recovery over for any amount found due on it: Wandle v. Tumey, 5 Duer, 661. 22. Specific Personal Property. — Claims for the recovery of specific personal property, with or without damages for the withholding thereof: Cal. Code C. P., sec. 427. Beplevin and fraud may be united: Truehody y. Jacohson, 2 Cal. 269. 23. Specific Real Property.— Claims to recover specific real property, with or without damages for the withholding thereof, or for waste comrnitted thereon, and the rents and profits on the same, may be united: Cal. Code C. P., sec. 427; Sullivan v. Davis, 4 Cal. 291; Eoffman v. Tuol. Water Co., 10 Id. 413; Gale v. Tuol. Water Co., 14 Id. 25; HotchHss v. Auburn and Rochester S. B. Co., 36 Barb. 600. A complaint in ejectment 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: Boles v. Eohen, 15 Cal. 150. Otherwise it would appear that the old form of declaring in ejectment by separate counts is no longer admis- sible: St. John V. Pierce, 22 Barb. 362. 24. Specific Relief. — Claims by a debtor to have obligations delivered up and canceled, and an account of the securities pledged for them, and payment of the overplus, is but one cause of action: Cahoon v. Bank of Utica, 7 N. Y. 486; S. C, 7 How. Pr. 401; reversing Id. 134. A cause of action for reformation of mortgage, and for simultaneous foreclosure, may be united: Depuyster v. Sasbrouck, 1 Kern, 582. So, suit against indorser for liability on note, and for decree against mortgagor foreclosing the mort- gage, may be united: Rollins v. Forbes, 10 Cal. 299; Eastman v. Turman, 24 Cal. 382. Claim to reform assignment in part, and for accounting under it when reformed: Gamer v. Wright, 28 How. Pr. 92. 25. Trespass. — In Massachusetts, under trespass, the several species of quare elausum and de bonis a^orfatis, may be joined: Bishop v. Baker, 19 Pick. 517. Counts in trespass upon the case may be joined with a count in trover: Ayer v. Bartletl, 9 Pick. 160. So, a cause of action for cutting wood, and also one for the conversion of the wood, may be combined: Bodgers v. Bodaers. 11 Barb. 595. COMPLAINTS— Subdivision Third. Upon Written Instruments for the Payment of Money only. CHAPTEE I. NEGOTIABLE PAPEE, BONDS, ETC. No. 188. i. Against Maker. [Title.] The plaintiff complains, and alleges : I. That the defendant made a certain instrument in writ- ing, 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 fully performed all the condi- tions thereof on his part. IV. That defendant has not paid the same. [_Demand of Judgment.'] 1. Altered Instrument — Onus Proband!. — A party wlio claims under an instrument whioh appearsupon 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: United States v. Linn, 1 How. U. S. 104. 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 anhseqaent bona fide holder for value without notice: Common- wealth V. Emigrant Industrial Savings Bank, 98 Mass. 12. 2. Consideration. Allegation of. — Where a copy of the instrument de- clared on is set out in the complaint, and it purports to be for value received, that is a sufficient allegation of a consideration : Jerome v. Whitney, 7 Johns. 321;. Waldrad v. Fetrie, i "Wend. 575; Prindle v. Caruthers, 15 N. Y. 425. In California, a written instrument is presumptive evidence of a consideration: Civil Code, sec. 1614. In declaring upon such instrument, it may be un- necessary 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. 3. Consideration, Averment of.— That the defendant made the same for value received [or made the same in consideration of goods theretofore NEGOTIABLE PAPEB, BONDS, ETC. 399 sold and delivered to Mm by the plaintiff, or of services theretofore rendered to him by the plaintiff, at his request, or otherwise state its nature]. 4. Consideration, when Averred. — Where the instrument neither ex- presses a consideration, nor, as in the case of a sealed instrument or nego- tiable paper, imports one, a consideration should be averred : Spear v. Down- ing, 12 Abb. Pr. 437. Where the instrument requires a consideration to support it, the consideration must be averred in the complaint: Prindle v. Oaruthers, 10 How. Pr. 33; Joseph v. Holt, 37 Cal. 250. 5. Consideration, -when not Averred. — In an action on a vrritten in- strument, it is not necessary to set out the consideration : Sloan v. Gibson, 4 Mo. 32; Caples v. Branham, 20 Mo. 244. In Iowa and Indiana, an agree- ment in writing imports a consideration: Tousley^r. Olds, 6 Clark, 526. In a sealed instrument, the seal imports consideration: McCartyy. Beach, 10 Cal. 461; Willis v. Kempt, 17 Id. 98; Clark y. Thorpe, 2 Bosw. 680. So, in an undertaking to answer for the debt of another: Bushy. Stevens, 24 Wend. 256. 6. Construction. — In construing written instruments, the circumstances under which they were written, and the subsequent conduct of the parties, may be consulted: McNeil y. Shirley, 33 Cal. 202. Under the Code, the re- citals 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: Slack v. Heath, 1 Abb. Pr. 331. 7. Construction Falsely Stated — 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 construction on its terms, the allegation repugnant to its terms should be regarded as surplusage: Love v. S. N. Z. W. and M. Co., 32 Cal. 639; Stoddard v. Treadwell, 26 Cal. 300. 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 : Wilson v. Codman, 3 Cranch, 193. 8. Corporation Stock.— ^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 company, and when the certificates should have been issued, a certain 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 amount of the stock of the company at a specified valuation, and collect payment therefor, a declaration in an ac- tion 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; Murdook y. Cald- ■ well, 8 Allen (Mass.) 309. 9. Date of an Instrument. — In pleading a written instrument, 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: Kellogg v. Baker, 15 Abb. Pr. 286. 10. 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: Cro. Eliz. 178; Cro. Jao. 420; 2 Ld. Baym. 1538; Tompldns v. Oorwin, 9 Cow. 255; Brinker- hoff y. Lawrence, 2 Sandf. Oh. 400. That an instrument was executed, im- 400 NEGOTIABLE PAPEE, BONDS, ETC. ports a delivery; Bnnkerhoff y. Zawrenee, 2 Sandf. Oh. 400. The delivery of a promissory note is sufficiently averred by implication, and indorsement is unnecessary to transfer the title: Perdy v. Vermilyea, 8 N. Y. 346. 11. E:seouted Implies Subscribed. — An averment that an agreement was " executed," amounts to an averment that it was " subscribed " by the party to be charged: Cheney v. Gook, 7 Wis. 413. If, in pleading a deed executed by a married woman, the pleader states that it was executed by at- torney, he must also state the facts which make the case one in which such mode of execution is valid, or his pleading is demurrable: Johnson v. Taylor, 15 Abb. Pr. 339. 12. Foreign Language. — If the instrument is in a foreign language it is sufficient on demurrer to set it forth in that language : Nourny v. Dvhosly, 12 Abb. Pr. 128. But it is better to plead it according to its legal effect. 13. Genuineness Deemed Admitted. — When an action is brought upon a wiitten instrument, and the complaint contains a copy of such instru- ment, 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 verified: Cal. Code C. P., sec. 447. This section extends only to those parties who are alleged to have "signed " the instrument: Heath v. Lent, 1 Cal. 411. Therefore if the action is against an administrator, the the genuineness of the signature must be proved: Id. 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: People v. Hastings, 29 Cal. 449. 14. 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 pre- sumed the same person: Marshall v. Rockwood, 12 How. Pr. 452. 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 : Butchers' and Drovers' Bank v. Jackson, 15 Abb. Pr. 218; S. C, 24 How. Pr. 204. 15. Indebtedness of Defendant.— If a complaint should only allege that defendant was indebted to plaintiff in a named sum, which defendant re- fused to pay, it would be insufficient. It must allege the facts which consti- tute the indebtedness: Piercy v. Sabin, 10 Cal. 28. 16. Indorsement of Sealed Instrument. — Assumpsit may be brought on the unsealed indorsement of a sealed writing: Campbell v. Jordan, Hempst. 534. 17. Interest of Parties.— Where the covenant purported 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 covenant 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 first part to sue alone; because the covenant inured to the benefit of those who were parties to it: Phil. W. and B. E. M. Co. v. Howard, 13 How. U. S. 308. 18. Issue of Warrant.— Averring the issue of a warrant imports a seal, if the case is one in which a seal is necessary: Beekman v. Traver, 20 Wend. 67. NEGOTIABLE PAPEB, BONDS, ETC. 401 19. Iiegal Effect — The legal effect of written documents offered in evi- dence is a question for the court, and not for the jury: Garpentier v. Thirston, 24 Cal. 268. 20. Lost Instrument. — A party need not plead loss of an instrument, unless it be a negotiable instrument properly indorsed: McGlusky v. Ger- houser, 2 Nev. 47. A motion to make a pleading more definite and certain, by setting forth the contents of a written instrument relied on by the pleader, should not pi-evail where it appears that the instrument is lost, and the pleading apprises the adverse party of the nature and effect of the instru- ment: Kellogg v. Baker, 15 Abb. Pr. 286. 21. Missouri. — In actions on written instrument, plaintiff must set out its legal effect: Moore v. Flatte County, 8 Mo. 467. Under the Practice Act of 1849, in Missouri, the instrument does not become part of the complaint, nor is it necessary that it should be included in the copy of the complaint : Hadwen v. Home Mut. Ins. Co., 13 Mo. 473. 22. Nevr Promise, when to be Alleged. — 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 contract, should be alleged: Smith v. Richmond, 19 Cal. 481. 23. Ohio. — In Ohio, this provision under the statute extends to accounts and other instruments "for the unconditional payment of money only." But a judgment cannot be so pleaded: Memphis Med. College v. Newton, 2 Handy, 163. 24. Promissory Notes. — When a copy of the promissory note is an- nexed, and the answer is not verified, the due execution and genuineness of the note is admitted: Burnett v. Stearns, 33 Cal. 468; Horn v. Volcano Wat. Co., 13 Cal. 62; Kinney v. Osborne, 14 Cal. 112. 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 ia admissible in evidence without proof of the genuineness of the signature: Corcoran v. Boll, 32 Cal. 83; Horn v. Volcano Wat. Co., 13 Id. 62; Sacra- mento Courtly v. Bird, 13 Id. 66; Burnett v. Stearns, 33 Cal. 468. 25. Proof of Execution.— An instrument in writing, executed and at- tested by a subscribing witness in a foreign country, or beyond the jurisdic- tion of the court, can be proved by evidence of the handwriting of the party who executed it: McMinn v. Whelan, 27 Cal. 300. 26. Proof of Written Instrument 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 ad- missions are to be taken as modifications of the instrument: Zee v. Evans, 8 Cal. 424; as no proof is required of facts admitted or not denied: Patterson V. Ely, 19 Cal. 28; Landers v. Bolton, 26 Id. 416. 27. Reference to Counts. — 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 already on file with the former, the latter will be sufficient: Peck V. Hensley, 21 Ind. 344. 28. Sealed Contract. — 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 26 402 NEGOTIABLE PAPEK, BONDS, ETC. 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 un- sealed instruments: 5 Johns. 239; 12 Id. 198; 1 Den. 376; 4 Cow. 508; 4 Kent. 451; 8 Pet. 362; Story's Confl. of L. 47; 3 Gill. & J. 234; 6 N. H. 150. An impression 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; Emdee v. Pinlcerton, 14 Allen (Mass.) 381. 29. Specialty. — In declaring on a specialty, it must be averred that it was sealed by the defendant. 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: 1 Saund. 291; 1 Chitt. PI. 109; Van Sardnoord v. Sandford, 12 Johns. 197; Ilacomb v. Thompson, 14 Id. 207. To much the same effect: iSianion V. Camp, 4 Barb. 274. Although "indenture," "deed," "writing obligatory," were held to import a seal: Cabell v. Vaughan, 1 Saund. 291; Fhillips V. Clift, i Hurlst. & N. 168. 30. Specialty, Delivery of. — The delivery of a specialty, though es- sential to its validity, need not be stated in a pleading. It is enough to allege that it was made by the defendant, as that implies delivery: 1 Chitt. PI. 348; 1 Saund. 291; 12 How. Pr. 452; Lafayette Insurance Co. v. Sogers, 30 Barb. 491. 31. Subscription — The word "agent," appended to the signature of the agent, is not mere descripHo personce. It is the designation of the capacity in which he acted: Sayre v. Nichols, 7 Gal. 535; see Tolmie v. Dean, Wash. Terr. 60. That "executed" implies "subscribed:" See Cheney v. Cook, 7 Wis. 413. Where a contract purported upon its face to have been made by an agent, and it is set forth in full in the complaint, it must be alleged that the agency was duly constituted: Regents v. Detroit Society, 12 Mich. 138. 32. Terms, how Construea. — 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 : Burnett v. Stearns, 33 Cal. 468. 33. Under Seal. — Where the law requires an instrument 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 production of a written instrument, either with or without a seal attached: Jenkins v. Fell, 20 Wend. 450. In California all distinctions be- tween sealed and unsealed instruments are abolished: Civil Code, sec. 1629. 34. Varying Terms.— Parol evidence is admissible to vary the terms of a written contract: Lennard v. Vischer, 2 Cal. 37. 35. "Writing Implied — An award set forth, "as in the form following," and with a date, may be presumed to have been in writing: Munro v. Alaire, 2 Cai. 320. When the terms and conditions of an agreement are set out in a complaint, and the violation of that agreement is charged against the defendant, if it is such an instrument as the law requires to be in writing, and the complaint is silent whether it was oral or in writing, courts will pre- sume it was a lawful written instrument, until the contrary appears: Van Dornv. Tjader, 1 Nev. 380. NEGOTIABLE PAPER, BONDS, ETC. 403 No. 189. ii. On a Bond for the Payment of Money only. [Title.] The plaintiff complains, and alleges : I. That on the daj' of , 187., at , the defendant covenanted with the plaintiff, under his hand and seal, to pay to the plaintiff the sum of dollars. II. That he has not paid the same. IBemand of Judgment.] 36. Breach, hovr Alleged — It is not alone suffloient to show a techni- cal breach of the literal terms of. a covenant in a bond; but upon a reason- able interpretation of the intent and meaning of the covenant, to be ascer- tained from all its terms, it must likewise appear that some substantial right guarantied thereby has been infringed, or some of its purposes defeated: Zevitsky v. Johnson, 35 Cal. 41. It is suggested that specific breaches should be assigned, even on a mere money bond: Western Bank v. Sherwood, 29 Barb. 383. 37. Gold Coin, — In California, where the contract or bond was for pay- ment in gold coin, it must be averred, and judgment demanded accordingly. 38. Guarantor. — What averments on a bond are sufficient to charge a guarantor, see Tappan v. Cleveland B. B. Co., 4 West. Law Month. 67. 39. Mutilated Bond. — If the obligee tear oflf the seal or cancel a bond, in consequence of fraud and imposition practiced by the obligor, he may de- clare on such mutilated bond as the deed of the party, making a proper aver- ment of the special facts: 3 Durnf. & E. 153; United States v. Spalding, 2 Mason Cir. Ct. 478. 40. What Written Obligation Imports. — The term " written obliga- tion " imports a sealed instrument: Clark v. Phillips, Hempst. 294. Under the statutes of California, bonds are on the same footing as undertakings : Ganfield v. Bates, 13 Cal. 606. No. 190. iii. On a Bond — Pleading it according to Us Legal Effect. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , 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, according to the condition]. II. That he has not paid the same. • [Demand of Judgment.'] 404 BILLS OP EXCHANGE. No. 191. iv. By a Surviving Obligee, on a Joint Bond. [Title.] The plaintiff complains, and alleges: I. Thatonthe day of ,187., at , the defendant made and sealed his certain bond, of which the following is a copy [copy the bond], and thereby cov- enanted with the plaintiff and one K. N. to pay them the sum of dollars [on, etc., stating when it became payable]. II. Thatonthe dayof ,187., at , said E. N. died. III. That no part thereof has been paid. [Demand of Judgment.'] 41. Averment of Death of Joint Obligee One of two joint obligees cannot sue, unless lie 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 : JEhle v. Furdy, 6 Wend. 629. 42. 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: Sacramento v. Dunlap, 14 Cal. 421. 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 : Id. Where a complaint is against two or three obligors, it must aver that all three have failed to pay the debt: BoWns V. Pope, Hempst. 219. Under the statute of Indiana, the representa- tives of a deceased joint obligor may be sued on a joint and several obliga- tion : Curtis v. Bowrie, 2 McLean, 374. A declaration in an action of debt against the obligor, setting forth a joint and several bon d, cannot be annulled by adding a new count, setting forth a bond by the defendant and another person: Postmaster-General Y. Bidgeway, Gilp. 135. CHAPTEE II. BILLS OP EXCHANGE. No. 19S. i. Foreign Bills — Payee against Drawer for Non- Acceptance. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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] : BILLS OF EXCHANGE. 405 II. That on the day of , 187 . , 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 are currently sold, was dollars. Wherefore the plaintiff demands judgment against the defendant for the sum of dollars [the amount named in the bill], and dollars damages, and in- terest on said sums from the.... day of , 187. [date of protest], and costs of suit. Note. — The fifth paragraph above is drawn under section 3238 of the Oivij Code. 1. Definition. — A hill of exchange drawn in one State npon a person in another, is a foreign bill: Sickens y . JBeal, 10 Pet. 572; Bucknery. Finley, 2 Id. 586; Bank of Untied States v. Daniel, 12 Id. 32. And such bills are, by the custom of merchants, protested if dishonored: Townsleyy. Sumrall, 2 Pet. 170. 2. 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 : Langenberger v. Kroeger, 48 Cal. 147; see, also, Flint v. Craig, 59 Barb. 819. An alteration is material and vitiating, which, in any event, may alter the promisor's liability, if made without his consent at the time, unless subsequently approved by him : Id. Erasing the words "to order of," and inserting " or bearer " instead, is ma- terial, and avoids the note: Booth v. Powers, 56 N. Y. 22. In such case it matters not whether the alteration was with fraudulent intent or not, except as such intention affects the right to resort to the original indebtedness: Id.; see, also, Meyer v. Iluncke, 55 N. Y. 412; reversing S. C, 65 Barb. 304; Seihel v. Vaughan, 69 111. 257; Beale v. Roberts, 113 Mass. 525; Evans v. Foreman, 60 Mo. 449; Ooodspeed v. Gutter, 75 111. 534. 3. Damages on Foreign Bills, Protested. — In California, damages are allowed, as a full compensation for interest accrued before notice of dis- honor, 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 hundred 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 Eocky Mountains, five dollars upon each one hundred; 3. If drawn upon any person in any of the United States east of the Kocky Mountains, ten dollars upon each one hundred; 4. If drawn upon ariy person in any foreign country, fifteen dollars upon each 406 BILLS OF EXCHANGE. one hundred: Civil Code, sees. 3234, 8235; see, also, Fratalongo v. Larco, 47 Cal. 378, as to who is the holder in the sense of the statute. 4. Demand. — If a draft does not specify the kind of money in which it is made payable, a demand of payment 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 drait: Langenbergerv. Kroeger, 48 Cal. 147. In the absence of evidence to the contrary, the presumption is that the notary demands payment in the kind of money on which it appears on its face to be made payable. Id. 5. Dishonor. — " A bill of exchange, payable a certain time after sight, which is not accepted within ten days after its date, in addition to the time which would suffice, with ordinary diligence, to forward it for acceptance, is presumed to have been dishonored:" Civil Code (Cal.), sec. 3133. "A negotiable [instrument is dishonored when it is either not paid, or not ac- cepted, according to its tenor, on presentment for that purpose, or without presentment, where that is excused:" Civil Code, sec. 3141. 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 presumptive dishonor, notice of the previous actual dis- honor must be brought home to him, or he holds it free from the taint of dis- honor: Himmelmann v. Hotaling, 40 Cal. 111. 6. Difference of Exchange.— On a bill of exchange, payable at a par- ticular place, it seems that the difference of exchange 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 : Weed v. Miller, 1 McLean, 423. 75 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 : Brown v. Barry, 3 Ball. 365. 8. 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: Civil Code, sec. 3142. For ser- vice of notice see Id., sees. 3144-3151. As to what will excuse presentment and notice, see Id., sees. 3155-3160; see, also, Himmelmann y. Hotaling, 40 Cal. 111. 9. Omission of Demand and Notice.— The omission of demand and notice, when it cannot 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: Smith v. Miller, 52 N. Y. .545. 10. Protest, when Necessary.— Protest of a domestic note is unnec- essai^: Brennan v. Lowry, 4 Daly, 253. A bill of exchange drawn in one State upon a citizen in another state, ia a foreign bill, and protest is neces- sary to charge the indorser: Commercial Bank of Kentucky v. Varnum, 49 N . Y. 269. BILLS OF EXCHANGE. 407 11. 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 irregularities in presenting or demanding the same, and even of presentment and demand itself: Meyer v. Hibsher, 47 N. T. 265; Bichard v. Boiler, 51 How. Pr. 371. 12. 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: Orr v. Lacy, 4 McLean, 243. No. 193. ii. Payee against Acceptor. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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 ,187., at , the defendant accepted the said bill. III. That he has not paid the same. \_Demand of Judgment. 1 Note. — To recover statutory damages, see Form No. 192. 13. Acceptance. — In an action against B., as sole acceptor of a bill of exchange, the plaintiffs were entitled to recover under a count in the declara- tion, 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: Oity Bank of Columbus v. Beach, 1 Blatchf. 438; compare Lapeyre v. Gales, 2 Cranch C. Ct. 291. 14. Letter of Credit. — A letter of credit, promising unconditionally to a,ccept 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: Naglee v. Lyman, 14 Cal. 450. 15. 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 indorse- ment is required no action can be maintained: 16 Johns. 67; Stockbridge v. Schoonmaker, 45 Barb. 100. N'o. 194. iii. On Inland Bills — Drawer against Acceptor for Non-Payment. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , 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 of the bill]. 408 BILLS OF EXCHANGE. II. That the defendant thereafter accepted the said bill. III. That he has not paid the same. [^Demand of Judgment.} 16. 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: Wake- field V. Greenhood, 29 Cal. 597. An unconditional promise, in writing, to ac- cept a bill of eschange, 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: Civil Code, sec. 3197. As to how acceptance is made, who entitled to, what sufficient, acceptance by separate instrument, what accept- ance admits, and cancellation of acceptance, see Civil Code (Cal.), sec. 3193, and following. 17. Acceptance, Date of. — If the bill is payable at a certain time after " sight," the date of acceptance should be stated; otherwise it is not neces- sary. 18. 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: Kelly r. Lynch, 22 Cal. 661. The loss of the acceptance by the drawee is a sufficient consideration for the acceptance by the third per- son: Id. 19. "After Sight." — A bill drawn payable so many days after sight, means after presentment for acceptance: Mitohell v. Degrand, 1 Mason, 175. 20. Corporations. — Where a draft is drawn by the president and secre- tary of a corporation upon its treasurer, no notice of presentation and non- payment is necessary to hold the corporation: Dennis y. Table MourdainWater Co., 10 Cal. 369. The burden of proof is on the corporation to show that the drawee was provided with funds and ready to pay at maturity, in order to exempt them from damages and costs: 17 Johns. 248; FaircMld v. Ogdens- lurgh, Clayton and Rome R. B. Co., 15 N. Y. 337. 21. Equities between Parties.— Where a creditor takes a bill before maturity, as collateral security for an antecedent 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: Naglee v. Ly- man, 14 Cal. 450; Bobinson v. Smith, Id. 95. 22. Form of Bill — The following written order possesses all the requi- sites of an inland bill of exchange: " Mr : Please pay the bearer of these hues dollars, and charge the same to my account:" Wheat- ley v. Strobe, 12 Cal. 92. The following document is a negotiable bill of ex- change : " July 15, 1865. On first of August next, please pay to A., or order, £600, on account of moneys advanced by me to the S. Company. To Mr. W., Official Liquidator of the Company:" Oriffin v. Weatherby, Law Kep., 3 Q. B. 735. 23. "Or Order," " Or Bearer. "—The words " or order, "" or bearer, " in notes, bills, and checks, are words of negotiability, and the use of either of them makes the paper negotiiible, although impersonal words are used in place of naming a payee: Mechanics' Bank v. Steaiton, 5 Abb. Pr. (N. S.) 11. 24. "Please."— The insertion of the word "please" does not alter the character of the instrument: Wheatley v. Strobe, 12 Cal. 92. "Value re- BILLS OP EXCHANGE. 409 oeived" is not necessary to show a consideration: Benjamin-^. TiUman, 2 McLean, 213. 25. 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 : Brown v. Cronise, 21 Gal. 386. 26. "Who may Recover. — A bill indorsed to the treasurer of the United States may be sued and declared on in the name of the United States, and an averment that it was indorsed immediately to them is good: United States V. Barker, 1 Paine U. S. 156. 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 re- cover: City Bank of Columbus v. Beach, 1 Blatchf. 438; compare Lapeyre v. Gales, 2 Cranch 0. Ct. 291. No. 195. iv. The Same — On a Bill Payable to Drawer's own Order, and not Negotiated. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the plaintiffs [under their firm name of A. B. C. & Co.], 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 com- plaint. II. That on the day of , 187 . , the defendant accepted the bill. m. That he has not paid the same. IDemand of Judgment.] No. 196. V. The Same — Bill Returned and Taken up. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , 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 accept- ance thereon indorsed, is hereto attached and made part of this complaint. II. That on the day of , 187., at , the defendants, upon sight thereof, accepted the same for value received. 410 BILLS OP EXCHANGE. III. That at maturity the same was presented for pay- ment, but was not paid. IV. That on the day of , 187 . , 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. IDemand of Judgment.'] 27. Payable to Third Persons. — When the drawer sues on a bill pay- able to a third person, it is necessary to state that it was dishonored, taken up, and paid by the plaintiff: 2 Chitt. PI. 148. 28. SufiHcient 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 sufBoient money to pay the bill, which they had agreed to pay, ' is sufacient: Mittenbeyer v. Atwood, 18 How. Pr. 330. No. 197. vi. By Acceptor, without Funds, against Drawer. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the defendant became indebted to him for money advanced by him, and paid by him, upon a certain draft drawn by the defendant, bearing date on the day of , 187 . , 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 , 187 . , at , the plaintiff accepted said draft, and paid it. [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. IV. That defendant has not paid the same. [_Demand of Judgment,'] BILLS OP EXCHANGE. 411 No. 198. vii. The Same — By a Co-partnership Firm against another Firm, on a Draft Accepted and Faid by Flainiiffs. [Title.] The plaintiffs complain, and allege : I. That on the clay of , 187 . , the defend- ants, then composing the firm of C. D. & Co., drew their cer- tain bill of exchange, in said co-partnership 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 defendants 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 accepted, 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 plaintiffs have had no funds of said defendants at any time in their hands to pay the same. [_Demand of Judgment. '\ No. 199. viii. Payee against Drawer, for Non-Acceptance. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., 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 , 187., the same was duly presented to the said C. D. for acceptance, but was not accepted. III. That due notice thereof was given to the defendant. IV. That he has not paid the same. [Demand of Judgment.'] 29. Allegation Setting out Copy of Bill. — That on the day of , 187 . , at , the defendants made and deliirered to the plaintiff their bill of exchange, of which the following is a copy [copy of bill! . 412 BILLS OP EXCHANGE. 30. Allegation of Demand and Notice Excused by Waiver. — 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. 31. Allegation of I!j:cuse for Non-Presentment — Bill Counter- manded.— That on or about the day of , 187 . , said bill not then having been presented for acceptance [or for payment], the defend- ant countermanded the same by instructions to the said [drawee] not to ac- cept or pay [or, if payable at sight, not to pay] the same; wherefore it was not presented. 32. Allegation of Excuse for Non-Presentment — Dra-wee not Found. — 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. 33. Averment of Protest.— That said bill was duly protested at ma- turity, is sufficient to admit evidence of demand, neglect to pay, and notice of non-payment : Woodbury \. Sackrider, 2 Abb. Pr. 405. 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: Mason v. Franklin, 3 Johns. 202. 34. 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: Shultz v. Dupuy, 3 Abb. Pr. 252. No. SOO. ix. The Same— Form of Allegation where Bill was Payable at a Specific Date. [TlTlE.] The plaintiff complains, and alleges : I. That on the .... day of , 187., at , the defendant made and delivered to the plaintiff his bill of exchange, directed to B. ¥., and required said E. F. to pay to the plaintiff dollars, on the day of , 187. [or at sight, or days after date thereof, or after sight thereof], for value received. II. That the same was presented to B. F. for payment, but was not paid. III. [If a foreign bill.] That the same was duly pro- tested for non-payment. IV. That notice thereof was given to the defendant. V. That the defendant has not paid the same. [Demand of Judgment.'] BILLS OF EXCHANGE. 413 No. SOI. X. By Partners Payees against Partners Acceptors. [Title.] A. B. and C. D., the plaintiffs in the above-entitled ac- tion, 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 de- fendants were partners, doing business at , under the firm name of "E. F. & Co." II. That on the day , 187., at , L. M. and N. O., partners, doing business under the firm name of " L. M. & Co.," under their said firm name, made their certain bill of exchange in writing, payable in 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 , 187., 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. \^Demand of Judgment. '\ 35. Acceptance.— It is not necessary to copy the acceptance, nor even to aver that it was in writing. It is enough to aver its acceptance : Homer v. Wood, 15 Barb. 371; Bank of Jjowville v. Edwards, 11 How. Pr. 216; Fowler v. N. T. Indem. Ins. Co., 23 Barb. 150; Gibbs v. Nash, i Barb. 449; WasKburnY. Franklin, 28 Id. 27; 7 Abb. Pr. 8; and see dicta, contra, Thurman v. Stevens, 2 Duer, 609; Le Hoy v. Shaw, 2 Duer, 628; Merwin v. Eamilion, 6 Duer, 248; as the acoeptiince of a bill of exchange must be in writing : Civil Code Cal. , sees. 3193, 3194; WheaUey v. Strobe, 12 Cal. 92. Where a draft is accepted conditionally to be paid upon the happening of a contingency, the question whether it has happened is a question of fact : Nagle v. Homer, 8 Cal. 353. 36. Copy of Bill.^The holder must sue on that one of the set which was dishonored: JDovmes v. Church, 13 Pet. 205; Wells v. Whitehead, 15 Wend. 527. Where a second of exchange was dishonored, and the first was subse- quently paid previous to suit brought, the drawer was released from dam- ages for the dishonor: Page v. Warner, 4 Cal. 395. 37. Drafts on Appropriation. — A draft payable in terms out of an "ap- propriation," for work done by the acceptor, becomes due on payment for the work by government: i^agle v. Homer, 8 Cal. 353. 38. Gold Coin. — Under the statute of California, if the written instru- ment provided for payment in gold coin, the complaint and demand for 414 BILLS OF EXCHANGE. judgment should- be for gold coin, and judgment will thereupon be entered up accordingly. 39. Non-Acoeptance, Effect of. — The want of acceptance does not affect the right of the payee, only as to his mode of enforcing payment: Wheatley v. Strobe, 12 Gal. 92. 40. Notice — Notice may be given to the indorser, or others entitled to notice, immediately after presentment to the maker or acceptor, and the re- fusal of the same to pay: McFarland v. Pico, 8 Gal. 626. Any notice is suf- ficient, if it informs the party of the fact: Id.; see Minium v. Fisher, 7 Gal. 573. 41. Part Payment — Where 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: Bassett v. Haines, 9 Cal. 260. It is evidence that the drawee owed that amount and paid it: Id. The acceptance of a note of a third party by the creditor, is accompanied with the condition that -the note shall be paid at maturity: Griffith v. Cfrogan, 12 Cal. 317. 42. 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 : Mont- gomery v. Tult, 11 Cal. 307. Case in which the evidence shows sufficient diligence in presenting draft for payment: 50 Id. 162. No. mn. xi. Payee against Acceptor — Short Form. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., the de- fendant accepted a bill of exchange made [or purporting to have been made] by one C. D., on the day of , 187 . , at , requiring the defendant to pay to the plaintiff dollars, after sight thereof. A copy of said bill of exchange is hereto at- tached, marked "A," and made part of this complaint. II. That he has not paid the same. [Demand of Judgment.'] 43. Allegation, Setting out Copy of Bill.— That on the day of , 187 . , at , the defendant A. B. accepted and de- livered to the plaintiff a bill of exchange, of which the following is a copy [copy bill and acceptance]: Andrews y. Astor Bank, 2 Duer, 629; Levy v. Ley, 6 Abb. Pr. 89. 44. Corporation. —Where defendant is a corporation, ahd the bill is ac- cepted by the president thereof as such, an averment that he was president, and as such authorized to accept, is not necessary: Partridge v. Badger, 25 Barb. 146; Andrews v. Astor Bank, 2 Duer, 629; Price v. MeClare, 6 Id. 544. 45. 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: Summit Co. Bank v. Smith, 1 Handy, 575. BILLS OF EXCHANGE. 415 No. SOS. xli. The Same — Pleading the Legal Effect. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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 ,187., 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. [Demand of Judgment. ~\ 46. Consideration on Acceptance A -written agreement to accept amounts to an acceptance, and no consideration need be shown: Ontario Bk. V. Worthington, 12 Wend. 593. 47. 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 "de- livered the said draft to W. B. Storm, cashier of said Camden Bank, for the said bank," and that " the said draft 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 : Cam,- den Bank v. Badgers, 4 How. Pr. 63. 48. Presentment. — Against the acceptor, it is not necessary to aver or prove presentment at the place where the bill was made payable: Wolcoit v. Van Santvoord, 17 Johns. 248; Caldwell v. Cassidy, 8 Cow. 271; Haxlon v. Bishop, 3 VCeud.l3. 49. 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 : Wakefield v. Greenhood, 29 Cal. 597; Bank of Lowville v. Edwards, 11 How. Pr. 216. JSfo. mi. xiii. The Same — Acceptance Varying as to Time from the Bill. [Title.] I. [Allege making of bill as in preceding form.] II. That on the day of , 187., 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 416 BILLS OF EXCHANGE. day of acceptance]. 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. IDemand of Judgment.} No. $05. xiv. Where Drawer is also Acceptor, on Bill Drawn on Himself. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the defendant made and accepted, and delivered to the plaintiff, his bill of exchange in writing, of which the fol- lowing is a copy [copy of the bill and acceptance] . II. That he has not paid the same. [Demand of Judgment.} No. S06. XV. By Assignee of a Bill Payable out of a Particular Fund. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , 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 C. D., out of the proceeds of [state fund as in the bill] dollars, days after the date thereof, and delivered it to said C. D. II. That on the day of , 187., at , upon sight thereof, the defendant accepted the same, pay- able, when in funds, from the proceeds of [etc., as' in acceptance]. III. That on the day of , 187., at , said CD. assigned said bill to this plaintiff. The follow- ing is a copy of said bill of exchange, and of the said acceptance and assignment thereof [copy same]. IV. That on the day of , 187 . , the defendant had funds of the said A. B., proceeds of, etc. V. That on the day of , 187 . , at , the plaintiff demanded payment thereof from the defendant. VI. That he has not paid the same. [Demand of Judgment.} BILLS OP EXCHANGE. 417 50. That Defendant Accepted. — An acceptance generally -without ■words of restriction to a fund or contingency, will in some cases bind the acceptor absolutely: Atkinson v. Manks, 1 Cow. 691; Mabe v. Massias, 2 W. Blackst. 1072; Lent v. Hodgman, 15 Barb. 274. No. SS07. xn. Payee against Drawer and Acceptor — On a BiH Accepted by the Drawee. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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 , 187 . , the defendant, C. D., upon sight thereof, accepted said bill. The fol- lowing is a copy of said bill and of said acceptance [insert copy]. III. That at maturity the same was presented to the de- fendant, Q. D., for payment, but was not paid. IV. That notice thereof was given to the defendant, A. B. V. That no part of the same has been paid. [_Deimand of Judgment.l JVo. «05. xvii. Sy Payee, on a Bill Accepted for Honor. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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 said bill of exchange, and of all acceptances thereon [insert copy of same]. II. That on the day of , 187., 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 187., at , the defendant, E. F. [acceptor for honor], upon sight thereof, accepted said bill for the honor of said A. B. 27 418 BILLS OF EXCHANGE. V. That at maturity the same was presented for payment to said CD., 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, but 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 of Judgment. '\ 51. Accommodation Acceptor. — The aoeommodation acceptor who pays without funds, can recover fi'om the drawer, not upon the bill, but for money paid: Griffith v. Reed, 21 Wend. 502; Suydam v. Westfall, i Hill, 211. 52. 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 : Williams v. Oer- manie, 7 Barnw. & 0. 468; Schofield v Bayard, 3 Wend. 488. It is not neces- sary 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 (N. Y.) has dispensed with the necessity of pleading the facts which constitute the per- formance of a condition precedent: Gay y. Paine, 5 How. Pr. 107; Wood- bury v. Sackrider, 2 Abb. Pr. 402; to the contrary, Graham v. Machado, 6 Duer, 515. The later case of Ferner v. Williams, 37 Barb. 9, follows, and approves Gay v. Poijie. No. W9. xviii. By Indorsee — First Indorsee against Acceptor. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , the defendant accepted a bill of exchange, made by one A. B., on the day of , 187 . , at , requiring the defendant to pay to the order of one 0. D., dollars after sight thereof, of which the follow- ing is a copy [insert copy]. II. That the said 0. D. indorsed the same to the plaintiff. III. That the defendant has not paid the same. [Demand of Judgment.} BILLS OF EXCHAJJGE. 419 No. ZIO. xix. First Indorsee against First Indorser. [Title.] The plaintiff complains, and alleges : I. That the defendant indorsed to the plaintiff a bill of exchange, made by one A. B., on the day of , 187. ., at , requiring one 0. 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 0. D. on the day of , 187 . , at The following is a copy of said bill of exchange, and of said indorsement and acceptance [insert copy]. II. That on the day of , 187., at , the same was presented to the said , for payment, but it was not paid. III. That due notice thereof was given to the defendant. IV. That he has not paid the same. I Demand of Judgment.} No.ni. XX. First Indorsee against Drawer and Indorser— for Non-Acceptance. [Title.] The plaintiff complains, and alleges : I. That on the day of 187 . , at , the defendant, by his bill of exchange, required one CD. to pay to the order of one B. F dollars days after the date thereof [or otherwise]. II. That the said A. B. then and there delivered the same to the defendant E. F., who then and there indorsed it to the defendant G. H. III. That on the day of , 187., 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 0. D. for acceptance, but was not accepted [if a foreign bill, add, and was there- upon 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. IDemandof JudgmenW] 420 . BILLS OF EXCHANGE. 53. Delivery.— The plaintiff, as indorsee of a bill of exchange, sued the acceptor, declaring under the statute of N. Y., 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. Delivery was sufficiently averred by implication, that indorsement was not necessary to pass title, and that the bill was therefore admissible upon the trial of the cause : Purdy v. Vermilyea, 4 Seld. 346. 54. Form — For authority for a longer but similar form, see Phelpsy. Ferguson, 9 Abb. Pr. 206; Greenbury v. WUkrns, Id. note. No. 2n. xxi. Pir^ Indorsee againt all Prior Parties— for Ncm-Paymmt. [Title.] The plaintiff complains, and alleges : I. That on the .... day of ,187., at , the defendant A. B., by his bill of. exchange, requested C. D., to pay to the order of the defendant B. 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 de- fendant G. H. III. That on the .... day of , 187., at , the said G. H. indorsed the same to the plaintiff for value. IV. That on the.... day of , 187., at , the defendant 0. D., upon sight thereof, accepted said bill. V. That at maturity the same was presented to the de- fendant C. D. for payment, but was not paid [if a foreign bill, add, and was thereupon duly protested for non-pay- ment], 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. \_Demand of Judgment.'] No. SIS. xxii. A SvJiseguent Indorsee against Acceptor. [TlTlE.] I. [Allege acceptance of bill, as in Form 209. J 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. IDemand of Judgment.] BILLS OF EXCHANGE. 421 xxiii. SubseqiKni Indorsee against First Indorser — Indorsement Special. [Title.] The plaintiff complains, and alleges : I. That the defendant indorsed to one 0. D. a bill of ex- change, made by one A, B., on the .... day of , 187 . , at requiring E. F. to pay to the order of the defendant dollars, day after sight thereof [or otherwise], and accepted by the said E. F. on the .... day of '...., 187 . , at II. That the same was by the indorsement of the said C. T>., transferred to the plaintiff. III. That on the .... day of , 187., at , the same was presented to the said E. F. for payment, but it was not paid. IV. That notice thereof was given to the defendant. V. That he has not paid the same. [_Demand of Judgment.'] No. S15. xxiv. Subsequent Indorsee against Intermediate Indorser. [Title.] The plaintiff complains, and alleges : I. That a bill of exchange made by one A. B. on the .... day of , 187 . , at , requiring one C. D. to pay to the order of one E. F., dollars, days after sight thereof [or otherwise], [accepted by said 0. D. ], and indorsed by the said E. F. to the defendant, was, by the indorsement of the defendant [and others], transferred to the plaintiff. [Allege presentment, notice, and non-payment as in Form 210.] [_Demand of Judgment] No. S16, XXV. Subsequent Indorsee against Lad Indorser. [Title.] The plaintiff complains, and alleges : 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 , 187 . , at , requiring 422 BILLS OF EXCHANGE. one C. D. to pay to the order of one E. ¥., dol- lars, days after sight thereof [or otherwise], [ac- cepted by the said 0. D.J, and indorsed by the said E. F. to the defendant. II. That on the..... '.day of , 187., at , the same was presented to the said CD. for payment, but it was not paid. III. That due notice thereof was given to the defendant. IV. That he has not paid the same. IDemand of Judgment.'} No. m. xxvi. Svbsiqmni Indorsee against all Prior Parties — Short Form. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant A. B., by his bill of exchange, required the defendant CD. to pay to the order of the defendant E. F., dollars, days after sight thereof. II. That on the day of , 187., the said 0. D. accepted the same. III. That the said E. P. indorsed the same to the plaintiff. IV. That on the day of , 187 . ,the same was presented to the said CD. for payment, but was not paid. V. That due notice thereof was given to the other de- fendants, and each of them. VI.- That they have not, nor has either of them, paid the same. [Demand of Judgment.} No. 218. xxvii. The Same by a Sank in its Corporate Name. [State and Countt.] [Coukt.] "1 The Bank of against A. B., C. X>., and E. P The plaintiff, a corporation, duly organized and incorpo- rated under the laws of the State of , complains, and alleges [allegations same as in last form]. [Demand of Judgment.} BILLS OF EXCHANGE. 423 No. n9. xxTiii. Checks — Payee against Drawer. [Title.] The plaintiff complains, and alleges : I. That at the times hereinafter mentioned, the said de- fendants were partners, doing business as merchants at , under the firm name of C. D. & Co. II. That on the day of , 187., at , the defendants, under their said firm name of 0. 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 , 187 . , 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. I Demand of Judgment."] 55. After Dishonor. — 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: Fuller v. Hutchings, lOCal.523; but see 40 Cal. 511. 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 : Smith v. Sarper, 5 Cal. 330. The surrender of the note is prima facie evidence of its payment: Id. 56. Checks. — Checks are on the same footing as bills of exchange, ex- cepting the difference which may arise from the custom of merchants : Miro- turn T. Fisher, 4 Cal. 35. The legal presumption is that a check is drawn for money due from the drawer: Headley v. Beed, 2 Cal. 322. 57. Consideration. — 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: Fuller v. Hutchings, 10 Cal. 523. 58. Consideration Void. — A check given for a gaming debt is void in the hands of all persons, except a bona fide holder without notice: Fuller v. Hutchings, 10 Cal. 523. • 59. Grace. — In California days of grace are not allowed: Civil Code, sec. 3181. 60. Lost Paper. — ^Where a check had 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: Survey v. Wells, Fargo Co., 5 Cal. 124. 61. Non-Negotiable Draft. — A non-negotiable draft, rendered so by the absence of any flyed amount, may be rendered negotiable by an indorse- 424 BILLS OF EXCHANGE. ment, "balance due dollars," and signed by indorser, who is estopped thereby from setting np against it any antecedent matter, and is liable for the full amount: Garwood v. Simpson, 8 Gal. 101. No right of action can accrue upon a draft till payment: Wakeman v. VanderbiU, 3 Cal. 380. 62. Notice. — In general, presentment and notice of non-payment are necessary to charge the drawer of a check: Barker v. Anderson, 21 Wend. 372; Shult!: v. Dupuy, 3 Abb. Pr. 252; but compare Ontger v. Armstrong, 3 Johns. Cas. 5; Conroy v. Warren, Id. 259. 63. Presentment. — As against the drawer, presentment at any time be- fore suit brought is sufficient, unless it appear that he has been prejudiced by unreasonable delay: Little v. Fhcmix Bank, 2 Hill, 425; Harbeck v. Craft, i Duer, 122. By the law merchant, it is sufficient if a check drawn upon one day be presented for payment in the usual banking hours on the next suc- ceeding day: BUchie t. Bradshaw, 5 Cal. 228. The payee, to hold the drawer, is bound to use reasonable diligence : Id. 64. Payment Stopped. — The complaint alleged demand, refusal, and notice to defendants of non-payment, and also that beiore the demand the defendant had stopped its payment by notice to the officers of the bank not to pay it. 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 its payment having been stopped, the plaintiffs had notice before they took the check : Beld, that the allega- tion 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 ex- cused the want of notice : JPurchase v. Mattison, 6 Duer, 587. 65. To Bearer.— A check payable to the order of a fictitious person, e. g., of a firm long since dissolved (Stevens v. Strang, 2 Sandf. 138), or "to the order of bills payable" {Willets v. Phoenix Bank, 2 Duer, 121), is to be deemed payable to bearer, if negotiated by the maker. 66. When Due. — When no time of payment is mentioned, the check or note is payable immediately, and complaint should not state a time of pay- ment: Serrick v. Bennett, 8 Johns. 374; Pearsol v. Frazer, 14 Barb. 564; Thompson v. Ketchum, 8 Johns. 189. No. gSO. xxix. Indorsee or Bearer of Check, against Drawer. [Title.] The plaintiflf complains, and alleges : I. That on the day of , 187., 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. II. That the defendant then and there indorsed the same to this plaintiff. III. That on the .... day of , 187., at , BILLS OP EXCHANGE. 425 the same was presented to said bank of A. B. for payment, but was not paid. IV. That due notice thereof was given to the defendant. V. That he has not paid the same. ^Demand of Judgment] 67. Allegation of Excuse for Failure to Give Not4ce. — That on the day of 187 . , the same was presented to said [drawee] for payment, but the defendant had no funds with said drawee. 68. Allegation of Excuse— Want of Funds. — Want of funds in the drawee's hands excuses the omission to give notice of non-payment. As to whether it excuses non-presentment, see Cruger \. Armstrong, 3 Johns. Gas. 5; Id. 259; Fitch v. Bedding, 4 Sandf. 130; Franklin v. Vanderpool, 1 Hall, 78. But where- it is intended to rely upon want of funds as excusing de- mand or notice, that fact. must be averred: Shulii v. Dupuy, 3 Abb. Pr. 252; Oarvey v. Fowler, i Sandf. 665; Franklin v. Vanderpool, 1 Hall, 78. 69. Allegation of Excuse from Insolvency of Dra'vree. — That on the .. .day of 187., at , said [drawee] was insolvent [or had stopped payment], 70. Time. — The time should be stated, that it may appear whether it was such as to excuse the holder from a demand: 1 Ohitt. PI. 289. 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: Skillman v. Titiis, 3 Vroom, 96. 71. Was Insolvent. — As against drawer, these facts dispense vrith pre- sentment and notice: Lovett v. Cornwell, 6 Wend. 369. No. m. XXX. Indorsee or Bearer, against Drawer and Indorser. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant, A. B., made his check, and directed the same to the bank of C. D., andthereby required said C. D. to pay to the defendant, E. F.', or order [or bearer], dol- lars, for value received, and delivered it to the defendant, E. E. II. That thereupon said defendant, E. ¥., indorsed the same to this plainiff 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. ^Demand of Judgment.] 426 BILLS OF EXCHANGE. xxxi. Agaxnst Bank Drawee, having Certified. [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 Legislature entitled "An Act to Authorize the Business of Banking," passed , and the acts amending the same. II. That on the.... day of , 187., at , one A. B. made his check, and directed it to the defend- ants, and thereby required them to pay to this plaintiff, or order [or bearer], dollars, for value received; and delivered the same to this plaintiff [or, if payable to third party, state accordingly]. III. That on the. . , day of , 187., at , the defendant, by its agent duly authorized thereto, in writ- ing, 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.'^ 72. Note. — In California we have no banking act, nor banking system nor can paper money be issued by any bank within the State ; certified checks are, however, issued by banks, as elsewhere. 73. Authority to Certify As to authority of bank officers to accept and certify, see Willets ■/. PhoRnix Bank, 2 Duer, 121; Farmers' Bank v. Butchers' and Drovers' Bank, 4 Id. 219;Claflin v. Farmers' and Citisens' Bank, 25 N. Y. 293; S. C, 24 How Pr. 1. 74. Raised Check Certified. — A bank by certifying a cheek 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: Marine National Bank v. The Na- tional Oity Bank, 59 N. Y. 67. Where a raised check had been certified and afterwards paid, the bank certifying and paying could recover back as for money paid by mistake : Id. ; and Security Bank v. National Bank, 67 N. Y. 458. 75. Certified Check. — The certifying of a check as "good " transfers the sum drawn for to the holder, and imports a promise to pay to him on demand. But the drawee cannot set off a claim on the holder against the amount bo transferred, and the maker of the cheek is not discharged : Bi'own v. Leckie, 43 111. 497; Bickford v. First National Bank of Chicago, 42 111. 238; Rounds v. Smith, Id. 245. A check dated January 10, 1866, was certified by the assistant cashier of defendant'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 their books. The drawer of the check had not funds with defendants to meet it, either when it was certified, or when it was pre- sented: 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.: Clarke Nat. Bk. v. Bk. of Albion, 52 Barb. 592. ON PEOMISSOEY NOTES AND CEETIFIOATES OF DEPOSIT. 427 OHAPTEE III. ON PEOMISSOEY NOTES, AND CEETIFIOATES OP DEPOSIT. No. S2S. i. Maker of Accommodation Note, having Paid it. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , at , the plaintiff made his promissory note, of which the follow- ing 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 defendant thereafter and before its maturity negotiated it for value. I"V. That the defendant failed to pay the same at ma- turity, and the plaintiff paid it. V. That defendant has not repaid the same. {Demand of Judgment.'] 1. Accommodation Maker as Flaintiff. — An accommodation maker or iudorser is a surety and may sue as such to recover payments made by him: Bakery. Martin, 3 Barb. 634; Neass v. Mercer, 15 Id. 318. For a form of complaint by accommodation maker, see Osgood v. Whittlesey, 10 Abb. Pr. 134. 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:" Packard v. Bill, 7 Cow. 442. And may recover the costs of suit: Baker v. Martin, 3 Barb. 634. But see Holmes v. Weed, 24 Barb. 546, which limits it to costs of default. 2. Coupons. — Interest coupons to railroad bonds, payable 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 pur- chaser in good fath, before maturity, from one who has stolen them acquires a valid title : Everston v, INational Bank, 66 N. Y. 14. 3. Contingent Order.— A contingent order is not negotiable: Kenny v. Hinds, a How. Pr. 7. 4. Consideration. — A complaint upon a promissory note need not aver that it was given for a consideration : Pinney v. Emg, 21 Minn. 514. Section 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 consideration, before the maturity of the in- strument, and in the ordinary course of business." 428 ON PKOMISSOEY NOTES AND CERTIFICATES OF DEPOSIT. 5. Date. — A negotiable instrttment may be with or without date, and with or without designation of the time or place of payment: Civil Code, sec. 3091. 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 noininal date: Id. sec. 3094. 6. Filling Blanks " One who makes himself a party to an instrument intended 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:" Civil Code, sec. 3125, JVo. 2U- ii. Joint Maker of a Note, having Paid it, against the Other, for Contribution. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , at , this plaintiff and the defendant made their joint [or joint and several] promissory note in writing, of which the fol- lowing is a copy [copy note]. II. That at the maturity of said note, the plaintiff was compelled to pay, and did pay the same. III. That no part thereof has been repaid to him. \_Demand of Judgment.'] Hfo. SS5. iii. By Indorser of Note, having Paid a Part. [Title.] The plaintiff complains, and alleges : ' I. That on the day of , 187., at , the defendant made his promissory note, whereby he promised to pay to the order of the plaintiff, days after date, 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. in. 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. lY. That on the day of , 187., 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 of Judgmiemt. ] ON PEOMISSOEY NOTES AND CEETIFIOATES OF DEPOSIT. 429 7. Accommodation Indorsers, Co-sureties. — In an action by an in- dorser of a promissoiy note, •who has paid the same, against a prior indorser, it is competent for defendant to prove by ^arol that all the indorsers were accommodation indorsers, and by agreement they were, as between them- selves, co-sureties: Easterly v. Barber, 66 N. Y. 433. 8. Legal Owner Where an indorsfer has paid the whole of a note, and become the legal owner of it, he may sue directly on the note : Baker v. Martin, 3 Baih. &3i; Wright v. Butler, 6'Weiid,2Q0. 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: Wright v. Butleri Id. 284; Pownal v. Fer- rand, 6 Barn. & C. 439; Dygert v. Gfross, 9 Barb. 506. 9. Separate Indorsers But separate prior indorsers cannot be joined as defendants in such an action; Barker v. Cassidy, 16 Barb. 177. No. SS6. iv. Payee against Maker. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the defendant made and delivered to the plaint- iff 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 , 187.] . [^Demand of Judgment,'] Note. — It is always advisable in pleading under a code to set out the in- strument sued upon in the body of the complaint, as thereby any mistake as to the legal effect of the instrument will be avoided, and besides it will then . not be necessary to prove the execution of the instrument, unless the execu- tion is specifically denied under oath. The following allegation, however, is good, and may be substituted for the first paragraph in the above form : I. That on the day of , 187., at , the defend- ant made and delivered to the plaintiff his promissory note of that date, and thereby promised to pay to the plaintiff, or his order, in .... days after date, the sum of dollars. 10. Certificate of Deposit.— A certificate of deposit is on the same footing as a promissory note: Welton v. Adams, 40al. 37; Brummagimir. TaUant, 29 Id. 503. It changes the character from a custodian of the funds to that of a debtor: Naglee v. Palmer, 7 Oal. 543; and the brokers become liable to pay to the holder of the certificate on its presentation : McMillan v. Bichards, 9 Cal. 365; see Civil Code, sec. 3095. In an action by an indorsee on a certificate of deposit, presentation and demand must be alleged in the complaint: Bellows Falls Bank v. Butland Co. Bank, 40 Vt. 377. 11. Consideration. — ^In a complaint on a promissory note, it is not neces- sary that a consideration should be specially alleged. If there is no considn eration, the defendant should set up the want of it as a defense: Winters v. Bush, 34 Cal. 136. Every note imports consideration: Bank of Troy v. Top- 430 ON PEOMISSOBT NOTES AND CEETIFICATES OP DEPOSIT. ping, 13 Wend. 557; Goshen Turnpike Oo. v. Hurlin, 9 Johns. 217; Prindle v. Caruthers, 15 N. Y. 425. An oral promise to convey laud, in aocordauoe with which the land is subsequently conveyed, is a sufficient consideration for a promissory note : Eratz v. Stocke, 42 Mo. 351. 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 payable: Soly v. Rhodes, 2 Cranch, 245; Lane's Adm'r v. Dyer, Id. 349. But paying part of a note when all is due, is no consideration for an agreement to extend the time of payment: Lim- ing V. Gould, 13 Gal. 598. 12. Consideration, ■when Set Out. — Though the holder of a promis- sory note which proves to be void, may in a proper case recover on the con- sideration for which the note was intended to be given, he cannot do so un- less the pleading set out such consideration: Waymaid v. Terreyson, 4 Nev. 124. "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 evidence of performance on seller's part, so as to constitute a considera- tion for the note: Weightman v. Caldwell, 4 Wheat. 85. 13. 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 frsm 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: Prindle V. Caruthers, 15 N. Y. 425 ; Continental Bank v. Bramhall, 10 Bosw. 595 ; Eaynor Y.Eoagland, 39 N. Y. 11. 14. Date. — It is of no consequence whether the date of ■» promissory note be at the beginning or end of it: Sheppard v. Graves, 14 How. U. S. 505. But as a variance would be immaterial {Bentzing v. Scott, 4 Carr. & P. 24), the plaintiff may transfer the allegation of time and place into one of date thus: That the defendant, by his promissory note, dated on , at promised, etc. 15. Date, Variance. — A variance of one month in the time of a note described, was disregarded as immaterial, the defendant not having been misled: Trowbridge v. Didier, 4 Duer, 448. Where no time of payment is named, the note is due immediately; 8 Johns. 189; 15 Wend. 308; 6 Barb. 662; Bell v. Sackett, 38 Gal. 407; and interest runs from date, and without demand. On such a note a count stating no time of payment is good: JBer- riak v. Bennett, 8 Johns. 374; consult note 167, p. 142. ' 16. Delivery. — It is not necessary to add an averment of delivery where the plaintiff is the payee. " Made " imports delivery: Churchill v. Gardner, 7 T. E. 596; Russell v. Wliipple, 2 Cow. 536; Prindle v. Caruthers, 15 N. Y. 425; Keteltas v. Myers, 19 Id. 231. Indorsement likewise imports delivery; see ante, p. 181, note 72. 17. Demand. — No previous demand is necessary to maintain an action on a note payable on demand: Zeil v. I)ukes,12 Gal. 482; Story on Prom. Notes, sec. 29. The action itself is a sufficient demand, and if there were no days of grace allowed, the note would be payable immediately after delivery: Bell V. Sackett, 38 Cal. 407. But an indorser after maturity is entitled to demand and notice of non-payment before he is liable to pay: Beebe v. BrooJcs, 12 Cal. 308. ON PEOMISSOEY NOTES AND CEETIFIOATES OP DEPOSIT. 431 18. Demand — Place. — As against a maker or acceptor of a note drawn payable at a particular bank or place, it is not necessary to aver that a de- mand was made at the place specified: Silver v. Henderson, 3 McLean, 165; Payson v. Whiicomh, 15 Pick. 212. But with the indorser the rule is different: United States Bank v. Smith, 11 Wheat. 171. 19. Demand — Time. — Where a note is payable in installments due at different times, and demand on the maker is not made till the last install- ment falls due, and then demand is made for the whole amount, the de- mand is good for the purpose of charging the indorser for the last install- ment: Eastman v. Turman, 24 Oal. 379. 20. 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 insolvency of the maker, and if such insolvency be shown no allegation of demand or notice is neces- sary: Offut V. Hall, 1 Cranch, 504; Id. 572. A parol agreement between two indorsers at the time of indorsement, 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: Phillips v. Preston, 5 How. U. S. 278. Payment of a note by an indorser after protest, is a good consideration for an assumpsit on the part of the maker, for the note, with cost of protest : Morgan v. Beinteel, 7 Cranch, 273. 21. 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, unless the party shall annex to his plea an affidavit that the note was not executed by him : MUls v. Bank of United States, 11 Wheat. 431; see Cal. Code C. P., sec. 447. 22. Foreign Coin Note. — Where a note is payable in foreign coin, the value of such coin must be averred: United States v. Hardyman, 13 Pet. 176; see sec. 3238, Civil Code. For pleading note in a foreign language, see note 12, p. 400. 23. Forms of Notes. — A written promise to pay to "A. B.," without adding " or order," or "or bearer," is a promissory note within the statute: Burchellv. Slocock, 2 Ld. Kaym. 1S45; Smith v. Kendall, 6 T. E. 123; Down- ing V. Blackenstoes, 3 Cai. 137; Cfoshen & Minisink Turnpike Co. v. Eurtin, 9 Johns. 217; but is not negotiable under the Civil Code of California. An instrument in the following form: " Troy, August 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: Spear v. Downing, 12 Abb. Pr. 437. Such an instrument expresses no con- sideration, since it affords no presumption that the services referred to were rendered in pursuance of a previous request of the promisor, or that they were beneficial to him: Id. On a promise to pay " as soon as able, " a judg- ment and execution are the best test of defendant's ability to pay: Ceoil v. Welch, 2 Bush. (Ky.) 168. 24. Indebtedness. — The statute makes a promissory note prima fade evidence of indebtedness, though no consideration be expressed: Stewart v. Street, 10 Cal. 372. And it is not necessary to add an averment that the de- fendant is indebted: Connecticut Bank v. Smith, 9 Abb. Pr. 168. 25. Interest. — If the holder of a promissory note fill in the rate of inter- est left blank by the maker, he can collect only legal interest; but an inno- 432 ON PEOraSSOBY NOTES AND CEETEPICATES OP DEPOSIT. cent holder from him may collect the interest as filled in: Visher v. Dennis, 6 Cal. 577. Interest need not be averred. It can be recovered as damages: CUnn V. HamiUon, Hempst. 438. The filling of a blank with the rate of interest does not thereby vitiate the note: Fishery. Dmnis, 6 Cal. 577; Vislier v. Webster, 8 Id. 109; see Humphreys v. Crane, 5 Id. 173; see ante, Bills of Exchange, note 2. If the original note offered in evidence contains an abbreviation for the word "administratrix," and specifies the rate of in- terest 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 im- material: Corcoran v. Doll, 32 Cal. 82. 26. Legal Eflfect.— A note maybe set out according to its legal effect : Drake v. FisJur, 2 McLean, 69; Spaulding v. Evans, Id. 139; compare Tur- ner V. White, i Cranch C. Ct. 465. The difference between a note payable on a certain day, and one payable on or before such a day, is material when described according to its legal effect: Kilcindaly. Mitchell, 2 McLean, 402. A complaint pleading a note according to its legal effect must state a payee, otherwise it seems it is demurrable: White v. Joy, 13 N. Y. 83; see note 19, p. 401. 27. Liability of Maker. — The mater is bound by the contract which he signs, whatever his motive or purpose in signing it may be, and cannot vary the legal effect of his obligation by parol: Aud v. Magruder, 10 Cal. 282. A promissory note is neither an account, unliquidated demand, nor a thing in action not arising out of contract: Priest v. Bounds, 25 Cal. 188. 28. Lost Paper. — In case of the loss or destruction of negotiable paper, as a note or certificate of deposit, the plaintiff cannot maintain an action without first indemnifying the mater against all future claims upon it : Wel- tony. Adams, 4 Cal. 37; Pricey. Dunlap, 5 Id. 483. 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: Randolph v. Harris, 28 Cal. 561; but see Wright y. Wright, 54 N. Y. 437. 29. Maturity. — It is not necessary to show that the note was due before the commencement of the action: Smith v. Holmes, 19 N. Y. 271; Maynard V. Talcott, 11 Barb. 569. Nor that the time for payment has elapsed: Peets V. Bratt, 6 Barb. 662; Maynard v. TalcoU, 11 Id. 569; Smith v. Holmes, 19 N. Y.271; Keieltasy. Myers, Id. 231. An allegation that a note was given to provide for payment: Held, not to mean a present payment, but a provision for a future payment: Bates v. Rosenlaans, 23 How. Pr. 98. 30. New Promise. — Where the creditor sues after the Statute of Lim- itations 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: McOormich v. Brown, 36 Cal. 180, and Chabot v. Tucker, 39 Id. 434; overruling Smith v. iJic/rniond, 19 Id. 476. 31. Non-Payment In a complaint upon a promissory note, an allega- tion of its non-payment is material, and, if omitted, the complaint is demur- rable. The averment that there is a certain amount due upon the note is insufficient, being a statement of a mere conclusion of law: Frisch v. Caler, 21 Cal. 71. An allegation in the complaint that " no part of said note, prin- ON PKOMISSOKY NOTES AND CERTIFICATES OF DEPOSIT, 433 cipal or interest, has been paid," is a sufficient averment of a breach: Jones V. Frost, 28 Oal. 245. 32. Note Held Adversely. — A party who claims to be the owner of a promissory note, which is at the time in the possession of another claiming title thereto, cannot maintain an action thereon ; the maker being entitled to have it dehvered up, and canceled upon paying it. The title to the note could not be settled in such suit: Crandall v. Schroeppel, 1 Hun, 557. 33. Negotiability See Civil Code Cal., sec. 3087. In Indiana, a promissory note made payable at a bank in that State having an actual exist- ence, is negotiable; if not so payable, it is assignable, but is not commercial paper: King v. Vance, 46 Ind. 246. And in an action brought thereon by a 6ojio fide holder, the maker' is not estopped from showing that there was no such bank in existence: First Nat. Bk. v. Grindstaff, 45 Id. 158. A promis- sory note providing that it may be paid at any time before maturity, and that interest at eighteen per cent, per annum shall be deducted till due: Seld, not to be negotiable: Way v. Smith, 111 Mass. 523. A note may be negotia- ble if payable certainly at a fixed time, although subject to a contingency under which it may become due earlier: Ernst v. Steckman, 74 Pa. St. 13. The current rate of exchange must be proved by extrinsic evidence ; there- fore, a promise to pay a sum certain with . the current rate of exchange added, is not a negotiable note: Lowe v. SHks, 24 111. 168; Eill v. Todd, 29 111. 101. 34. Oregon. — For the sufficiency of a complaint against the maker of a note under the practice in Oregon, see Moss v. Gully, 1 Or. 147; WUliams v. Knighton, Id. 234. 35. 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: Bollins v. Forbes, 10 Cal. 300. That defendant made his promissory note in writing, and thereby " promised to pay plaintiff," is suf- ficient to show that plaintiff is owner of the note: Moss v. Cully, 1 Oregon, 147. The averment that the plaintiff was the 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: Poorman v. Mills, 35 Oal. 118; ap- proving Wedderspoon v. Rogers, 32 Cal. 569; see, also, 9 How. Pr. 216; 11 Id. 217; 12 Id. 460; 19 N. Y. 231; 24 N. Y. 547; 7 Abb. Pr. 447; 13 Id. 249; 1 Handy, 31. For the plaintiff may recover without being the holder, as where the note has been destroyed or lost: Supervisors v. White, 30 Barb. 72; Des Artes v. Leggett, 16 N. Y. 582. Or, as when the note is in possession of defendant: Smith v. McClure, 5 East, 476; Selden v. Pringle, 17 Barb. 468. In such oases he may sue if he is the real party in interest, trustee of an ex- press trust, or person authorized by statute: Boot v. Price, 22 How. Pr. 372: Mutterfield v. McComber, Id. 150; see, on this subject, "Pleadings," pp. 117, 118, notes 24, 35, 43, 44. 36. Parties. — Persons severally liable upon the" same obligation or in- strument, 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: Cal. Code P. sec. 383. 2i 434 ON PEOMISSOKI NOTES AND CERTIPIOATES OF DEPOSIT. 37. Place. — Omission to state the place where a note is payable is a fatal defect: Sebree v. Dorr, 9 Wheat. 558; Covington v. Comstoek, 14 Pet. 43. 38. Presentment. — In an action against the maker of a note, or the ac- ceptor 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 : Montgomery V. Tutt, 11 Cal. 307. But the averment of presentment and demand of note at the place specified, is necessary to charge an indorser: Gay v. Faine, 5 How. Pr. 108; Fermr v. Williams, 14 Abb. Pr. 215; 11 Wheat. 171; 19 Johns. 419. 39. Real Party in Interest. — If the holder of a promissory 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 entitled to a participation in its proceeds : Williams v. Brown, 2 Keyes, 486; consult "Parties," p. 75. 40. 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 contract: Buckingkouse\. Gregg, 19 Ind. (Kerr.) 401. 41. 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 defendant 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: Winsted Bank v. Webb, 39 N. Y. 325. 42. Value Received. — The legal effect of a promissory note is the same with or without the words "value received:" People\. McDermott, 8 Cal. 288. 43. Verbal Conditions.— In Potter v. Earnest, 45 Ind. 416, it was held that a verbal condition could not be annexed to a promissory note; but in Benton v. Martin, 52 N. Y. 570, it was held that a bill or note may be deliv- ered to the person beneficially interested therein, upon conditions the ob- servance of which is essential to its validity; and the annexing of such con- ditions to the delivery is not an oral contradiction to the written obligation, though negotiable, as between the parties to it or others having notice. 44. Void Notes. — Notes given for a gaming consideration are valid in the hands of a bona fide indorsee: Haight v. Joyce, 2 Cal. 64. A negotiable note, the consideration of which is against public policy, becomes valid in the hands of an innocent holder before maturity : Thome v. Yontz, 4 Cal. 321. 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 : C. B. L. Co. v. Patterson, 33 Cal. 334. 45. When Due — When days of grace are allowed, the day on which the note became due is excluded from the computation: Story on Prom. Notes, sec. 217; Chitt. on Bills, 403; Bayley on Bills, 245. 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: Wileombe v. Bodge, 3 Cal. 2G0; see Bavis V. Eppinger, 18 Cal. 381; Bell v. Sackett, 38 Cal. 407. A promissory note payable generally, without specifying any time, is due immediately: Holmes V. West, 17 Cal. 623; see ante, "Bills of Exchange," note 66. ON PEOMISSOKY NOTES AND CEETIFICATES OF DEPOSIT. 435 V. TAe /Same— On Two Notes, one being Partly Paid. [TiTlE.] The plaintiff complains, and alleges : Mrst. — For a first cause of action: I. That on the day of , 187., at , the defendant made and delivered to the plaintiff his prom- issory note, of which the following is a copy [insert copy of note]. II. That he has not paid the same [except dol- lars, paid on the day of , 187."]. Second. — For a second cause of action : I. That on the day of , 187., at , the defendant made and delivered to the plaint- iff his promissory note, of which the following is a copy [insert copy of the note]. II. That he has not paid the same. Wherefore the plaintiff demands judgment against the defendant for the sum of [aggregate principal], with in- terest on dollars thereof from the day of , and with interest on dollars thereof, from the day of , and costs of suit. 46. Causes of Action. — It would seem that several notes are several causes of action, and must be separately stated: Van Names v. Peoble, 9 How. Pr. 198: Soman v. SMlam, 4 Abb. Pr. 202. But it appears the con- trary is held in Iowa: Merritt v. Nihart, 11 Iowa, 57. 47. HoTJir Alleged — If preferred, and in fact it is the better practice, a copy of the notes may be set out, as in Form No . 188, in pleading on written instruments. By doing so, the genuineness and due execution of the instrument are deemed admitted, unless the answer denying the same be verified : Cal . Code C. P. sec. 447. No. SS8. vi. Several Notes given as Security. [Title.] The plaintiff complains, and alleges : I. That upon the day of , 187 . , the de- fendants were indebted to the plaintiffs in the sum of dollars. II. That to secure the payment of that sum, the defend- ants made their promissory notes, copies of which are hereto annexed, marked Exhibits "A," "B,"and "0." III. That at the same time the defendants agreed with 436 ON PEOMISSOEY NOTES AND CERTIFICATES OF DEPOSIT.. the plaintiffs, in writing, that in case of default in the pay- ment 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 plaintiffs, become at once due and payable. IV. That the first of said notes became due and payable on the day of , 187 . . V. That defendants have not paid the same. \_Demancl of Judgment.'] [Annex Copies of Notes, marked Exhibits "A," " JB," and "C."] 48. Made their Promissory Notes It is not necessary to allege " agreed to deliver, and did make and deliver to the plaintiffs," because the copies are annexed, showing possession in the plaintiff of the said notes, and because ■" made" implies delivery: See ante, Note 16 under Form No. 226; see Brown v. South. Mich. B. B. Co., 6 Abb. Pr. 237. m. ^Z9. vii. On a Note Signed by an. Agent. [Title.] * The plaintiff complains, and alleges: I. That on the day of , 187., at , the defendant, by his agent [or attorney in fact], duly au- thorized 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 , 187 . ]. \_Demand of Judgment."] 49. Agent. ^A complaint averring that the principal, by his agent, made a promissory note, is good: Childress v. Emory, 8 Wheat. 64:2; Sherman v. Comstock, 2 McLean, 19; compare Wilson v. Porter, 2 Cranoh C. Ct. 458. 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: Sherman v. N. T. Central B. B. Co., 22 Barb. 239. 50. "Duly Authorized."— Where the pleading shows, by setting out a copy of the instrument, that the act was by an agent, his authority should be averred: MoGullough v. Moss, 5 Den. 567. 51. Ratification of Principals — The ratification by a principal, of an unauthorized act of an agent, has a retroactive efficacy, and being equiva- lent to an original authority, an allegation of due authority is sustained by proof of such ratification: Eoyt v. Thompson, 19 N. T. 207. ON PEOmSSOEX NOTES AND CERTIFICATES OF DEPOSIT. 437 No. SSO. yiii. On a Note made by Partners. [TlTliE.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the defendants, under their firm name of A. B. & Co., made and delivered to the plaintiff, their promissory note of which the following is a copy [insert copy Of note]. II. That they have not paid the same. [Demand of Judgm,ent.'\ 52. How Alleged. — ^Signature of a note, in tlie 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: Manhattan Co. v. Ledyard, 1 Cai. 192; Vallett V. Parker, 6 Wend. 615; see Bass v. Clive, i Campb. 78. 53. Joint Makers. — All the joint makers of a promissory note are prin- cipals : Shriver v. Lovejoy, 3'2 Gal. 574. And suit must be brought against all: Woodworih v. Spafford, 2 McLean, 168; Keller v. Blasdel, 1 Nev. 491. No. $31. ix. Another Form, Averring Partnership. [Title.] The plaintiff complains, and alleges : I. That at the time of making 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 , 187., at , the defendants, under their said firm name, made their promissory note, and thereby promised to pay the plaintiff dollars, months after said date. in. That they have not paid the same. [^Demand of Judgment.'] 54. Allegation by Payee as Receiver against Partners That here- tofore the defendants, under their firm name of A. B. & Co., made their promissory note, and thereby promised to pay to the plaintiff, as such re- ceiver [or to his order], dollars, on the day of , 187. . 55. As such Receiver. — The act should be averred as that of the party as such receiver: Mertitt v. Seaman, 6 N. Y. 168; and cases there cited. This clause was contained in the complaint in Smith v. Levinv,s, 8 N. Y. 472 ; and see Gould v. Glass, 19 Barb. 179; Sheldon v. Soy, 11 How. Pr. 11. Where, however, the plaintiff's character is once sufficiently stated, the word "plaintiff " in subsequent parts of the pleading requires no addition to the description. 56. Partnership.— An averment that the note was indorsed by the de- fendants, under a certain name and description, is sufficient: Kendall v. 438 ON PEOMISSOEY NOTES AND CEETIPICATES OP DEPOSIT. Freeman, 2 McLean, 189; Davis v. Abhott, Id. 29. Where the fact of part- ■ nership is likely to be drawn in question, it is better to aver the fact dis- tinctly: Oechs V. Cook, 3 Duer, 161. The denial of the co-partnership of the plaintiffs is immaterial, unless the defendant denies the execution of the note: Whitwell v. Thomas, 9 Cal. 499. 57. Sight Note, Allegation of. — That on the day of , 187., at , said note was duly presented to the defendant [maker], with notice that payment was required according to the terms thereof. Sight is a condition precedent: 2 Chitt. Fl. 234. No. SSS. X. On a Note Wrongly Dated. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant made and delivered to the plaintiff his cer- tain promissory note, of which the following is a copy [in- sert 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. \_ Demand of Judgment.] No. S33. xi. Domestic Corporation, Payee, against a Foreign Corporation. [Title.] The plaintiff complains, and alleges : I. [Allege incorporation of plaintiff under the Act, as in Form No. 42.] II. That the defendant is a corporation, chartered by and under 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. That on the.... day of , 187., at , the defendant, as such corporation, by one A. B., its agent [or attorney 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 attached, marked "Exhibit A," and made part of this complaint. IV. That the same has not been paid. ^Demand of Judgment.'] ON PEOMISSOEY NOTES AND CEETIFICATES OP DEPOSIT. 439 58. Form of Note.— "The President, by the order of the Board of the A. B. Co., promises to pay," etc., signed " C. D., Pres., E. F.," et ah, binds the individuals signing, and not the corporation : Caphart v. Dodd, 3 Bush. 584. "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: Towell v. Dodd, 3 Bush. 581. 59. Insurance Company. — In an action by the indorsees against the maker of a note, of which an insurance company were the payees and in- dorsers, 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. It did not expressly aver that the transfer was made pursuant to a resolution of the board of directors : Held, suflScient on demurrer. If such resolution were necessary, it was im- plied 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: Nelson v. Eaton, 15 How. Pr. 305. 60. PoTwer 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: Motty. Sicks, 1 Cow. 513, and page . 532; Moss v. Oakley, 2 Hill, 265; Attorney-General v. Life and Fire Insurance Co., 9 Paige, 470: Kelley v. Mayor, etc. of Brooklyn, 4 Hill, 263; McCullough T. Moss, 5 Den. 567. Prima facie, a corporation has power to take a promis- sory note : Mutual Benefit Life Insurance Co. v. Davis, 12 N. Y. 569. 61. Presumption of its Legality. — Where there is nothing on the face of the note to show that it was issued contrary to law, or that the consid- eration or the purpose was illegal, the presumption is that it was given for a lawful purpose: Safford v. Wyckoff, i Hill, 442; Barker v. Mechanics' Fire Insurance Co., 3 Wend. 94. 62. Sufficient Allegation See N. Y. Floating Derrick Co. v. N. J. Oil Co., 3 Duer, 648. No. ^34. xii. Payee against Surviving Maker. [Title.] The plaintiff complains, and alleges : I. That at the time of the making the note hereinafter mentioned, the defendant and one A. B. were partners, doing business under the firm name of A. B. & Co. II. That on the day of ,187., 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 , 187., at , said A. B. died, leaving the defendant the sole surviving partner of said firm. lY. That said note has not been paid. [Demand of Jitdgment.} 440 ON PEOMISSOEY NOTES AND CEETIFICATES OF DEPOSIT. 63. Joint Actions. — A joint action at law cannot be maintained against survivor and administrator of deceased maker of a promissory note : Maples V. Geller, 1 Nev. 233. The rule in equity lias been that the estate of a de- ceased joint obligor could only be reached when survivor was bankrupt or insolvent: Id. 64. Non-Payment. — 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: Silver v. Senderson, 3 McLean, 165; but see Winter v. Simonton, 3 Cranch C. Ot. 62. No. ^36. xiii. Payee against Maker and Indorser, on Note Taken on the Faith of the Indorsement. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant, A. B., made his promissory note, and thereby promised 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 the plaintiff. III. 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 indorsed by the defendant CD., for the purpose of paying for [state what], on the credit of such indorsement; that the defendant 0. 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 indorsed by the defendant with his privity, to the plaintiff, in payment for [state what]. V. That no part thereof has been paid. \_Demand of JudgmenW] 65. Form. — See, as to the authorities sustaining a form similar to this: Moore v. Gross, 19 N. Y. 227. For a complaint on instrument for payment of money only: Held, sufficient against makers, and insufficient against in- dorsers: Gonkling \. Qandall, 1 Keyes, 228. ON PEOMISSOEY NOTES AND CEKTIFICATES OF DEPOSIT. 441 No. SS6. xiv. First Indorsee against Maker. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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. III. That defendant has not paid the same. [Demand of Judgmtni.'\ 66. Consideration When the consideration passing between the in- dorsee 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: Ooye v. Palmer, 16 Cal. 158. The indorsement, as well as the making of a note, imports a consideration : Hughes v. Wheeler, 8 Cow. 77 ; Cruger v. Armstrong, 3 Johns. Cas. 5; Cfonroy v. Warren, Id. 259; Safford v. Wyckoff, 4 Hill, 442; Nelson v. CoKiinff, 6Id. 336; Wheeler v. Guild, 20 Pick. 550; Collins T. Martin, 1 Bos. & P. 648. The phrase, in a declaration on a note, that the plaintiff received it "before maturity, bonafide, and in due course of trade," means that he took it for value: Miller v. Mayfield, 37 Miss. 688. 67. Indorsement by a Firm.— An indorsement or 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: Manhattan Co. V. Ledyard, 1 Cai. 192; S. C, Col. & C. Cas. 226; Vallett v. Parker, 6 Wend. 615; Bass v. Clive, 4 Camp. 78. So, also, of joint makers not alleged to he partners: Mack v. Spencer, 4 Wend. 411. It is sufficient in such cases to al- lege, generally, that M. N. & Co. indorsed it: Cochran v. Scott, 3 Wend. 229; Bacon v. Cook, 1 Sandf. 77. 68. Owner. — The holder of negotiable paper indorsed before maturity, is supposed to be the bona fide owner of the same, and all intendments are in his favor: Palmer v. Goodwin, 5 Cal. 458; Eimmelmann v. Sotaling, 40 Id. 111. Nor is it necessary that he should show how he became possessed of the note: Id. His right to maintain the action cannot be questioned on the ground that the note belongs to a third party, except defendant pleads pay- ment to or offset against that party: Price v. Dunlap, 5 Cal. 483. So, it has been decided that the possession obtained before or after maturity, is prima /acie evidence of ownership: McCann v. Lewis, 9 Cal. 246. It is no objec- tion to a recovery that title be shown out of the payee by special indorse- ments, without any re-transfer from the last indorsee if there be proof that the indorsees had no interest in it: Naglee v. Zyman, 14 Cal. 450. An alle- gation that the plaintiff (indorsee) is owner, or owner and holder is unnec- essary: See ante, note 35. Since, when title is shown, a denial that he is the lawful owner and holder is frivolous : Catlin v. Gunter, 1 Duer, 253 ; Fleury v. Boget, 5 Sandf. 646; Poorman v. Mills, 35 Cal. 118; Fetch v. Beaudry, 40 Cal. 439. 442 ON PEOMISSOET NOTES AND CEETEPICATES OP DEPOSIT. No. SS7. XT. The Same, against First Indorser. [Title.] The plaintiff complains, and alleges : I. That the defendant indorsed to the plaintiff a promis- sory note, made [or purporting to have been made] by one A. B., on the .... day of , 187 . , at , to the order of the defendant, for the sum of dollars. II. That on the day of , 187 . , 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. [_Demand of Judgment.'] 69. Accommodation Indorsement. — A. promissory note was indorsed by a third person before delivery to the payee : 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 : Clarke v. Smith, 2 Cal. 605. Where a promissory note made payable to S., and previous to its delivery to payee was indorsed for the accommodation of the 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: Brady v. Beynolds, 13 Cal. 31. To create a several lia- bility, express words are necessary : Id. 70. Demand, how Made — Payment of the note mus,t be first properly demanded of the makers, and due notice given to the indorser, before any legal liability attaches to the latter; and it is incumbent upon the pleader to state these facts: Conkling v. Oandall, 1 Keyes, 228. That as against the in- dorser, an averment of demand at the place designated is deemed necessary: Bank of United States v. Smith, 11 Wheat. 171; see Civil Code, sec. 3131. 71. Demand, when Made.— If there are stated business hours at the place where it is made payable, presentment and demand must be made within those hours: McFarland v. Pico, 8 Cal. 626. " 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 exon- erated, unless such presentment is excused:" Cal. Civil Code, sec. 3248; but if payable at sight or on demand with interest, mere delay in presenting does not exonerate any party thereto: Id. sees. 3214, 3247. 72. Demand, Effect of Failure of. — The failure to make presentment and demand would not discharge the debt, but would only affect the ques- tion of costs and damages: Montgomery v. Tutt, 11 Cal. 307. 73. Demand, how Alleged. — In an action against the indorser of a bill or note, an allegation of a demand in general terms, *' although often re- quested," etc., is good after verdict : Leffingwell v. White, 1 Johns. Cas. 99. But if the note was made payable at a particular place, an allegation as in preceding forms will be sufficiently specific averment of demand and notice. ON PEOMISSOEY NOTES AND CEETIPIOATES OP DEPOSIT. 443 74. Demand and Notice The contract of the indorser of a promis- sory note is a written one, and his liability a conditional one, to pay upon a proper demand and notice: Goldman v. Davis, 23 Cal. 256. 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: Keyes v. Fenstermaker, 24 Cal. 329. And the contract cannot be changed from a conditional to an absolute contract by parol evidence: Goldman v. Davis, 23 Cal. 256. 75. Demand and Notice, Allegation of Excuse for Omission of. — An express waiver of notice of non-payment, is sufficient excuse of de- mand and notice of non-payment: Maithey v. Gaily, 4 Cal. 62; Minium v. Fisher, 7 Id. 573, And this may be done by an agent of the indorser, and a verbal waiver of demand, or of demand and notice, maybe proved: See Mills V. Beard, 19 Cal. 158; see, also, Drinkwater v. Tebbeits, 17 Me. 16, where notice was waived in writing. 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: Olendorf v. Swartz, 5 Cal. 480. Where payment by the maker to the in- dorser is relied upon as an excuse, it must be payment directly and specific- ally for the note, not as security for transactions in the aggregate: Van Nor- den V. Buckley, 5 Cal. 283. 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 de- mand and notice: Holmes v. Holmes, 9 N. Y. 525; Coddington v. Davis, 1 N. Y. 186; see Civil Code, sec. 3156. 76. Indorsement, Averment of. — An averment in the declaration that the note was indorsed by the defendants under a certain name and descrip- tion, is sufficient. Where a contract shows a joint liability, it is unnecessary to allege a partnership: Kendall v. Freeman, 2 McLean, 189; Davis v. Abbott, Id. 29. The fact of the indorsement only need be pleaded to show title in the plaintiff, and an averment (hat the plaintiff is the owner and holder is a conclu- sion of law, and need not be pleaded: Pooj-manv. MMs, 35 0al. 118. Where an indorsement upon a promissory note was made, not by the payee but by per- sons who did not appear to be otherwise 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 guarantying the note, was properly overruled: Bey v. Simpson, 22 How. U. S. 341. 77. Indorsement, Effect of. — The presumption is that the indorser of a promissory note is the holder thereof for value : Poorman f. Mills, 35 Cal . 118. 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 ; Id. An un- lawful 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 de- fendant: Bice V. Isham, 1 Keyes, 44. An agent who has received a promis- sory note by indorsement, holds the title as against all persons thereto, ex- cept the principal, and may maintain an action thereon in his own name: Poorman v. Mills, 35 Cal. 118. 78. Indorsement by Corporation. — In action against corporation as indorsers, it need not be averred that the note was indorsed by the defend- ants in the course of their legitimate business: Mechanics' Banking Associa- 444 ON PBOMISSOET NOTES AND CEKTEPIOATES OP DEPOSIT. Hon V. Spring Valley Shot and Lead Co., 25 Barb. 419; Nelson v. Eaton, 15 How. Pr. 305. 79. Notice to Charge Indorser. — Notice of demand, as well as of non- payment, should be alleged: Fahquioque Bank v. Martin, 11 Abb. Pr. 291. A general averment of notice of all the premises is stif&cient : Boot v. Frank- lin, 3 Johns. 207. 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: Toothaker v. Cornwall, 3 Cal. 144. "Whenever any act of a secular nature, 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:" Civil Code Cal., sec. 11. If much time intervenes between demand and notice, in trans- fers after maturity, the question may arise whether the delay has not re- leased the indorser: Thompson v. WUliams, 14 Cal. 160. When demand of payment is made upon the maker of a note payable on demand, notice of demand and non-payment must be given to the indorser within the same time which is required in the case of a bill made payable at a particular day: Keyes v. Fenstermaker, 24 Cal. 329. And it should be made on the day fol- lowing the demand, unless good reason exists for not doing so : Id. An in- dorser who signs his name under the words, " holden on the within note," is entitled to notice of demand and non-payment: Vance v. Collins, 6 Cal. 435. 80. Notice, how Given. — Notice should be personally served, if in- dorser resides in the same city, and in such case service through the post- of&oe is not sufficient: Vance v. Collins, 6 Cal. 435. But see Civil Code, see. 3144. 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: Garver v. Downie, 33 Cal. 176. 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 : Klockenbaum v. Pierson, 16 Cal. 375. If the notary in good faith use due diligence, and acts upon information 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: Oarver v. Downie, 33 Cal. 176. Notice of protest of a note was 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. His domicile was in the district he represented, and his Washington house was occupied by strangers, by his permission, who did not pay rent: Eeld, that notice was not sufficient: Bayly v. Chutib, 16 Grat. (Va.) 284. As to service of notice under the Civil Code of California, see sec. 3144. 81. Notice, SufBcienoy of. — A notice is sufficient, if from it it can be reasonably inferred that the note was presented and dishonored : Stoughton V. Swm, 4 Cal. 213; Cal. Civil Code, sec. 3143. But if it state that the de- mand was made on a day subsequent to maturity, it will not bind the in- dorsers: Tevis v. Wood, 5 Cal. 393. 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: McFarland v. Pico, 8 Cal. 626. Whether verbal or written, and even without description of the note, if at the time of receiving notice he knew the paper- referred to, it is sufficient: Thompson v. Williams, 14 Cal. 160. Where notes are indorsed before maturity, the notice ON PROMISSOEY NOTES AND CERTIFICATES OF DEPOSIT. 445 must state the time of tlte demand and dishonor; but it is otherwise where the note was indorsed after maturity: Id. A notice by the holder that he had "demanded payment of that note," implies a demand of the maker; and the declaration that he intended to look to the indorser for payment, implies non-payment: Id. 82. Notice of Demand, Refusal, and Non-Payment. — ■" That the note, on the day it matured, was presented 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, re- fusal, and non-payment, to charge the indorser: Eastman v. Turman, 2i Gal. 379. 83. Notice, Hcwr 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 protest was given, it is sufficient, without averring notice of demand also: Spencer v. Rogers Locomotive Works, 17 Abb. Pr. 110. A general averment of due notice is sufficient to charge an indorser: 8 Barn. & C. 387; 2 Mann. & B. 359; Bwight v. Wing, 2 McLean, 580. 84. Notice — ^AUegation of Notice to Indorser 'Waived That the defendant [indorserj thereafter waived the laches of the plaintiff in not giving him notice thereof, and promised to pay said note. 85. Presentment. — An averment that at maturity the notes were duly presented for payment to the makers, upon demurrer held a sufficient aver- ment of a presentment at the place specified in the notes : FemerY. Williams, 37 Barb. 9; 14 Abb. Pr. 215. Nor need it be shown by whom it was pre- sented: Boehm v. Campbell, Gow. 55; S. 0., 5 Eng. Com. L. B. 459; and see Eunt V. Mayhee, 7 N. Y. 266. An allegation of presentment by a bank does not imply ownership, but at most a holding as agent for another: Farmers and Mechanics' Bank v. Wadsworth, 24 N. Y. 547. It was alleged in a decla- ration that a note when due was presented to the bank for payment, to wit, twenty-third of July, 1841: Held, that the statement of the date, being in- consistent with the allegation that the note was presented when due, should be rejected as surplusage: Eyslop v. Jones, 3 McLean, 96. 86. Presentment and Demand. — After presentment and demand, the liabilities of the parties become fixed: McFarland v. Pico, 8 Gal. 626. But the presentment and demand must be made in reasonable hours, and reason- able hours depend upon the question whether or not the bill is payable at a bank or elsewhere: Id. And when a promissory note is protested, the pro- test must be attended with all the incidents of a foreign bill of exchange : Tevis V. Bandall, 6 Gal. 632. 87. Presentment — Allegation of Excuse for Non-Presentment — Maker not Pound 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.] Of course the allegation depends upon the facts in each case. As to sufficiency of this form, see 2 Ghitt. PI. 134. 88. Promise to Pay There is a distinction between a promise by the indorser to pay, proved as presumptive evidence of actual notice, and «, promise proved as evidence of a waiver. The former should not be alleged; the latter should; Thornton y. Wynn, 12 Wheat. 183; Leonard v. Qary, 10 446 ON PEOMISSOEY NOTES AND CEBTIFIOATES OF DEPOSIT. Wend. 504; TebMts v. Dowd, 23 Wend. 379; Miller v. EackUy, 5 Johns. 375; Ouryee v. Denison, Id. 248; James v. O'Brien, 26 Bng. L. & Eq. B. 283. 89. Protest. — There is no necessity of protesting a promissory note. A demand of payment and refusal, and notice to the ndorser, are all that is required: 1 Pars, on Cont. 238; Edw. on Bills, 268; 1 N. Y. 186; McFarland T. JPico, 8 Cal. 626; Cole v. Jessup, 10 How. Pr. 515. It is but a form of evi- dence of demand and notice. A simple averment of presentment and refusal to pay is sufficient: Price v. McGlam, 6 Duer, 544. 90. Protest, Averment of. — An averment of protest does not imply a proper demand: Gfraham v. Machado, 6 Duer, 515; Price v. McClave, Id. 544. An averment that a note was protested, is not equivalent to an averment that it was duly presented for payment to the maker, and payment was re- fused: Price V. McClave, 3 Abb. Pr. 253. 91. Reasonable Time. — To charge an indorser of a note payable on demand, presentment must be made within a reasonable time, and what con- stitutes a reasonable time depends upon the facts of each particular case : Keyes v. Fenstermaker, 24 Cal. 329. If delay has occurred, the holder must aver and prove the circumstances excusing the delay : Id. A delay of thir- teen months was held unreasonable: Jerome v. Stehbins, 14 Cal. 457. No. SS8. xvi. The Same— Against Maker and First Indorser. [Title.] The plaintiff complains, and alleges : I. That on the .... day of ,187., at , the defendant, A. B., by his promissory note, promised to pay to the defendant, C. D., dollars, months after date. II. That the said CD. indorsed the same to the plaintiff. III. That on the day of , 187., 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 CD. V. That they have not paid the same. [Demand of Judgment. ~\ 92. Change of Indebtedness.— Giving a note payable at a future time does not discharge the debt: Brewster v. Bours, 8 Cal. 502; Smith v. Owens, 21 Id. 11. So, when a note is given for an account: Higgins v. Wortell, 18 Cal. 330. The substitution of a new security will discharge the indorser: Smith V. Barper, 5 Cal. 329. Where a person sued on a note which had two indorsements, signed by the payee, the first a receipt for the amount due, and the second in the words, "without recourse to me," there was no pre- sumption that the indorsements were made at different times, or that pay- ment was voluntary and unconditional: Frank v. Brady, 8 Cal. 47. 93. Indorsement. -^That the allegation of indorsement to the plaintiff ON PEOMISSOBY NOTES AND CEETIPIOATES OP DEPOSIT. 447 is essential, consult Montague \, Beineger, 11 Iowa, 503; Benneit v. Crowell, 7 Minn. 385. 94. Joint and Several Liability. — The assignor and maker of non-nego- tiable paper cannot be joined in an action thereon by the assignee: White v. Zow, 7 Barb. 204; and see Allen v. Fosgate, 11 How. Pr. 218. No. SS9. vrii. Indorsee against Maker, on Note Drawn to Maker's own Order. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187., at , the defendant, by his promissory note, promised to pay to bearer [or to his own order], dollars, months after date [or on demand], II. That the same was by the indorsement of the defend- ant transferred to the plaintiff. III. That defendant has not paid the same. [Demand of Judgment. ] 95. 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: Macferson v. Thoytes, Peake's N. P. C. 20; Bosanquet v. Anderson, 6 Esp. B. 43; Smith v. Lusher, 5 Cow. 688. But in New York it is provided otherwise by statute: 2 Kev. Stat. N. Y. 53; and see Plets v. Johnson, 3 Hill, 112; Masters v. Barrets, 2 Carr. & K. 715; S. C, 61 Eng. Com. L. B. 714. No. SJfO. xviii. Subsequent Indorsee against Maker. [Title.] The plaintiff' complains, and alleges : I. [Allege making of note.] , II. That 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. [Demand of Judgmeni.'] 96. And Others. — The use of the words "and others " will perhaps ob- viate the necessity of proving 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: Smithy. Schanck, 18 Barb. 344; James v. Chalmers, 2 Seld. 209. Nor to allege genuineness of indorsements: Pentz v. Winter- bottom, 5 Den. 51.' 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: 1 Duer, 309; 23 Barb. 18; 2 Dougl. 633; 4 Sandf. 97; 1 Mees. & W. 425; 9 Barnw. & C. 208; 2 Campb. 5; 1 Burr. 452; 3 Id. 1516. 448 ON PEOmSSOBT NOTES AND CEETIFICATES OF DEPOSIT. No. m- xix. The Same— Against First Indorser—Indorsemeni Special. [Title.] The plaintiff complains, and alleges : I. That the defendant indorsed to one A. B. a promis- sory note made by one C. D., on the .... day of , ]87 . . , 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. in- dorsed the same to the plaintiff]. [Demand of Judgment.'] No. m. XX. The Same — Against Intermediate Indorser. [Title.] The plaintiff complains, and alleges : I. That a promissory note, made by one A. B., on the .... day of , 187 . , at , to the order of one C. D., for the sum of dollars [payable days after date], and indorsed by the said 0. D. to the de- fendant, was, by the indorsement of the defendant, trans- ferred to the plaintiff. II. Ill and IV. [Same as in 237.] [Demand of Judgment.] No. m. xxi. ThA Same — Against his Immediate Indorskr. [Title.] The plaintiff complains, and alleges: I. That that the defendant indorsed to him a promissory note, made by one A. B., on the day of , 187., at , to the order of one C. D., for the sum of dollars, payable days after date, and indorsed by the said C. D. to the defendant. II. Ill and IV. [As in Form No. 237.] [Demand of Judgment.] ON PEOMISSOEY NOTES AND CERTIFICATES OF DEPOSIT. 449 No. SU- ixii. TM Same — Against all Prior Parties. [Title.] The plaintiff complains, and alleges: I. That on the day of , 187., at , the defendant, A. B., by his promissory note, promised to pay to the order of the defendant CD., , dollars, months after date. II. That the said C. D. indorsed the same to the de- fendant E. F., who indorsed it to the plaintiff. III. That on the day of , 187 . , 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 CD. and E. P. V. That the same has not been paid. [_ Demand of Judgment.'] No. S4S. xxiii. Transfers not by Indorsement — By Assignee of Note. [Title.] The plaintiff complains, and alleges : I. That on the.... day of , 187., 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 pay- able]. III. That the defendant has not paid the same. \_Demand of Judgment. ] 97. Assessment and Apportionment. — The assessment or apportion- ment ia a condition precedent, and must be averred and proved on the trial : Devendorfy. Beardsley, 23 Barb. 656; Williams v. Babaock, 25 Id. 109; Surl- but \. Moot, 12 How. Pr. 511; WiUiamsY. Lakey, 15 Id. 206. And under what by-lavrs, and when, and how, it was ordered to be paid: Atlantic Ins. Co. v. Toung, 38 N. H. 451. An indorsee of negotiable paper, issued by a corpora- tion, in violation of the public laws of the State forbidding corporations to issue paper, cannot recover on the paper against the indorser. The contract being void, its contents cannot be received in evidence to support an action on it: 19 Johns. 6; 8 Oow. 20; Root v. Wallace, i McLean, 8; Boot v. Q-o- dard, 3 Id. 102; Davis v. Bk. of Biver Eaisin, 4 Id. 387. 98. Assignment. — ^An averment that the note was assigned on the day 29 450 ON PEOMISSOEY NOTES AND CERTIFICATES OF DEPOSIT. or at the time of its execution, is sufficient: SUver v. Henderson, 3 McLean, 165; compare Earhart t. Campbell, Hempst. 49. But consideration need not be averred: Wilson ^r. Godman, 3 Cranoh, 193. 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: Savage v. Bevier, 12 How. Pr. 166; Hastings m. McKinley, 1 E. D. Smith, 273. 99. Assignee's Note. — Under the common law, if it appeared from the declaration that the note was not yet payable, a demurrer would lie : Waring V. Tales, 10 Johns. 119; Lowry v. Lawrence, 1 Cai. 69. 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 assignment: Hastings v. Dollarhide, 18 Cal. 391. 100. Bearer. — In an action against the maker of negotiable paper pay- able to bearer, it is sufficient, after alleging that the defendants drewit, 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 is the owner: Mechanics' Bank v. Straiion, 5 Abb. Pr. (N. S.) 11. The allegation on a note payable to bearer is sufficient, if it allege that it is his property, and that the amount is due: Babney v. Beed, 12 Iowa, 315. 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 to bearer: Minet v. Gibson, 1 H. Blackst. 569; Fletsv. Johnson, 3 Hill, 112. 101. "Before Maturity," "for Value." — The words " before its ma- turity,'' 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: Finkerion v. Bailey, 8 Wend. 600; Pratt v. Adams, 7 Paige, 615; Nelson v. Cowing, 6 Hill, 336; Case v. Mechanics' Banking Association, 4 N. Y. 166; and see James v. Clialmers, 6 N. T. 209. 102. " Information and Belief." — In an action upon promissory notes assigned to the plaintiff, and for goods sold : Held, that the plaintiff might 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," was therefore denied: St. John v. Beers, 24 How. Pr. 377. 103. Laiw of Place. — An assignment of a negotiable instrument, as be- tween the parties to that assignment, is subject to the law of the place where the assignment is made ; and if by such law the assignment is void, as against law, the assignee can exercise no right under such assignment: 5 East. 123; 12 Johns. 142; 3 Mass. 77; McClintick v. Cummins, 3 McLean, 158; Dundas V. Bowler, 3 McLean, 397. 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: Van Eeimsdyk v. Kane, 1 Gall. 371. 104. Note with 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 de- livery, 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 ON PEOMISSOEY NOTES AND CERTrPICATES OP DEPOSIT, 451 persona unknown, for a consideration from them received, and as having thereafter come lawfully into plaintiff's possession, and that he is the owner thereof: Huhbard v. N. T. and Harlem B. R. Co., 14 Abb. Pr. 275. There must be two parties to every promissory note, a maker and a payee J if the payee named is not in esse, there is no note: Wayman v. Terreyson, 4 Nev. Eep. 124. 105. Partnership and Individual Liability.— A complaint would seem to be bad which shows a partnership note as a cause of action against an in- dividual. 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." indicate a firm. The defendant may have been a member of that firm, and yet never have made the note, nor have had any 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 face, show an individual liability on the part of "A. B.": Price v. McClave, 6 Duer, 544; afarming S. C, 5 Id. 670. 106. Plaintiff's Title — In an allegation on a note payable to a third person, the right of plaintiff should be alleged: Montague v. Reineger, H Iowa, 503; Bennett v. Crowell, 7 Minn. 385. And if the answer does not deny the allegation, defendant cannot prove that payee had no capacity to transfer: Rdbbins v. Richardson, 2 Bosw. 248. 107. Sufficient Allegation. — 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 prefixed to the name of the makers, and the word "indorsed" was prefixed to the names of the in- dorsers in the copy; but there 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: Held, on demurrer, that the making and indorsement should be deemed sufficiently alleged: Pkelpsr. Ferguson, 9 Abb. Pr. 206; Lee v. Ainslie, 4 Abb. Pr. 463; Bank of Cfeneva v. Gulick, 8 How. Pr. 51. 108. Transfer — An allegation that a corporation indorsed and transferred and delivered to the plaintiffs the note sued on, sufficiently implies that the transfer was made pursuant to a resolution of the board of directors, if such resolution is necessary. So an allegation, that after the transfer the com- pany became insolvent and was dissolved, is an indirect statement that it was solvent when the transfer was made: Nelson v. Eaton, 15 How. Pr. 305; Taylor v. Corbiere, 8 How. Pr. 385; but see Montague v. King, 37 Miss. (8 George) 441. Yet all necessary allegations should be directly made. No. m- xxiv. By the Treasurer of an Unincorporated Company, on a Note Payable to the Former Treasurer. [Title.] The plaintiff complains, and alleges : I. That the Mountain View Homestead Association is an association consisting of persons, in the city of , in this State. 452 ON PKOMISSOBY NOTES AND CEETIPICATES OP DEPOSIT. n. That at the time hereinafter mentioned, one A.B. was the treasurer thereof. III. That on the day of , 187 . , the defendant made his promissory note, of which the following is a copy [copy of note] — 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 asso- ciation, 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 asso- ciation, and, as such, is the lawful holder of said note on and for their behalf. VI. That the defendant has not paid the same. \^ Demand of Judgment.] 109. Homestead Associations. — Such associations, under the Statutes of California, are incorporated pursuant to the statute. Hence the above form is not strictly applicable in this State. No. UT- XXV. On a Note Payable on a Contingency . [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant made and delivered to the plaintiff his prom- issory note, in writing, of which the following is a copy: $300. Shasta, 1st January, 1869. For value received, I promise to pay to A. B., one year after date, three hundred dollars, in case the proceeds of the newspaper route I have this day bought of him shall ex- ceed the sum of one thousand dollars. 0. D. II. That the proceeds of said newspaper route did, before the expiration of said year, exceed the sum of one thou- sand dollars. III. That no part of the said note has been paid. [ Demand of Judgment. ] 110. Condition Precedent. — Where a note was made payable on the con- tingency of the confirmation of a grant of land, the confirmation was a con- dition precedent to the payment of the note: Sanders v. Whitesides, 10 Cal. 88. 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 of the payor, such payment is a condition precedent to plaintiffs right to recover on the note, and must be averred in the com- plaint to have been made: Rogers v. Cody, 8 Cal. 324. ON PEOMISSOBY NOTES AND CERTIFICATES OF DEPOSIT. 453 JSTo. S4S. xxTi. On Bote Payable in Chattels. [Title.] The plaintiff complains, and alleges: I. That on the .... day of , 187 . , at , the defendant, for value received [or, where the considera- tion 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; the 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. CD. January 1, 1869. II. 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 per- formed all the conditions of the same on his part] . III. That no part has been paid. [^Demand of Judgment. '\ 111. Consideration. — Consideration in such complaints may be specially get out: Ward v. Sackrider, 3 Cai. 263. And if so stated, must be proved as laid: Jerome v. Whitney, 7 Jolins. 321. It must be averred, when the instru- ment itself does not import a consideration: Spear v. Downing, 34 Barb. 522. In case the consideration be subject to transfer on demand of pay- ment, the plaintiff must allege a transfer or tender of transfer : Gonsiderant v. Brisbane, 14 Hove. Pr. 487. 112. Demand. —The demand should be made at the place of business of the maker of the note, vrhen the note is payable in chattels : Vance v. Bloomer, 20 Wend. 196; Bice v. Churchill, 2 Den. 145. But if the day of delivery of chattels be defined in the note, as "on or before " a day named, no demand is necessary, unless the holder exercises an election as to choice of goods: Johnson v. Seymour, 19 Ind. 24. The payee of a note of forty dollars, pay- able 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 sum- mer (the peeling season), and delivered the next winter, which the maker agreed to do. The bark was not delivered: Held, that the demand was ap- propriate to the note, and that on defendant's failure to furnish the bark the payee could recover on the money counts: Read v. Sturtevant, 40 Vt. 521. 113. Effect 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: Seymour v. Van Slyok, 8 Wend. 403; affirmed, sub nom., Stone t. Seymour, 15 Id.fl9. 4:54: ON PBOMISSOBY NOTES AND CEETIFIOATES OP DEPOSIT. 114. Maturity. — It seems sucii notes are generally due on demand, and a special demand is necessary: Lobdell v. Sopkins, 5 Cow. 516; but see Bams V. Graham, 4 Id. 452. 115. Measure of Damages. — Upon suoli notes, the measure of dam- ages is the sum of money named: Finney v. Gleason, 5 Wend. 393; Bockwell V. Bockmll, i Hill, 164; and see Gilbert v. Danforth, 6 N. Y. (2 Seld.) 585. 116. Non-Payment. — The allegation of non-payment of the money is alone sufficient : Bockwell v. Bockwell, 4 Hill, 164. N'o. U9. ixvii. On Guaranties — Against Maker and Guarantor of a Promissory Note. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , at , the defendant A. B., and C. D. as his security, by their promissory note promised to pay to the order of one E. P., dollars. [ days after date]. II. That the said E. F. indorsed the same to the plaintiff. III. That on the day of , 187 . , 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 the said C. D. Y. That the defendants have not paid the same. \_Demand of Judgment.'^ 117. Certificate of Deposit.— Where the indorsee, on payment to him of the amount, guaranties the genuineness of the signature, which is after- wards found to be a forgery, and the payee recovers from the makers the amount of certificate and costs, the maker may recover from the indorsee and guarantor the costs of the former action: Mills v. Barney, 22 Cal. 240. 118. Demand and 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 responsible without requiring notice," it is a waiver of demand on the maker: Backus v. Shipherd, 11 Wend. 629. A note indorsed " I guarantee the collection of the within note when due," contem- poraneous with the signing of the note, constitutes a guaranty, and the party is entitled to legal notice of non-payment before he can be charged on his contract: Reeves -v . Howe, 16Cal. 152. A complaint is insufficient which treats the maker and guarantor of a note as joint makers, and contains no allega- tion of demand and notice: Lightstone y.Laurencel, 4 Cal. 277. "I assigu- the within to K., for value received, and bind myself to pay it promptly after maturity," indorsed upon a note, is a guaranty, and demand and notice are not necessary to fix the guarantor's liability, on failure of the makers to pay at maturity: Baker v. Kelly, 41 Miss. 696. So, in case of a lease: Volts v. Harris, 40 111. 15S. 119 Discharge of Surety.— Mere extension of time to the maker is ON PKOMISSOET NOTES AND CEETrFIOATES OF DEPOSIT. 455 not sufficient to discharge a surety or indorser, unless it will be such as will suspend the right of action against the maker: Williams v. Covillaud, 10 Cal. 419; Draper v. Bomeyn, 18 Barb. 166. The failure of a holder of a note to sue, when requested by the surety, does not in general operate to dis- charge the liability of the latter: Bartman v. Burlingame, 9 Cal. 557. If the surety desires to protect himself, he must pay the note, and proceed against the principal: Id. 120. Guarantor, ■who is. — One who puts his name upon a promissory note, out of the usual course of regular negotiability, is a guarantor, whether inscription is in blank or accompanied by the words, "I guarantee," etc.; Biggsy. Waldo, 2 Cal. 485; Ghitt. on Cont. 397; 3 Kent's Com. 121. 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: Ford v. Hen- dricks, 34 Cal. 673; see, also, Brady v. Beynolds, 13 Cal. 31; Story on Prom. Notes, sec. 434; Fell's Law of Guar. & Sur. 1; Hall v. Farmer, 5 Den. 484; Miller v. Gasten, 2 Hill, 191; 2 "Wend. 630. 121. Guarantor and Surety. — 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 guar- anty wag taken for the benefit of the maker, or that it extended to him the time of payment: Williams v. Covillaud, 10 Cal. 419. 122. Joint Liability, — Each one who writes his name upon a promis- sory note is a party to it, and each party an original undertaker: Biggs v. Waldo, 2 Cal. 485. As the note itself imports consideration: Id. Where a party signs a joint and several note, he is not entitled to notice of non-pay- ment, though in fact he signed as surety: Harlman v. Burlingame, 9 Cal. 557; Buane v. Corduan, 24 Id. 157. 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 cannot setup that he was a surety only : Kritzer v. MiUs, 9 Cal. 21. Where, in the body of the note, one party signs as principal, and one as surety, both are liable: Humphreys v. Crane, 5 Cal. 173. 123. Liability of Guarantor. — The liability of an indorser is a guaranty that he will pay, if the maker does not, upon presentment, if he receive notice. And the liability of a guarantor is the same, and he is entitled to all his rights stricti juris: Biggs v. Waldo, 2 Cal. 485; Ford v. Hendricks, 34 Cal. 673; Pierce Y. Kennedy, 5 Cal. 138. 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. It was delivered without such other signature, but the payee did not know of such condition, and there was nothing on the face of the note to put him on inquiry : Held, that defendant was liable : Merriam v. Bockwood, 47 N. H. 81; see Hoboken City Bank v. Phelps, 34 Conn. 92. 124. Nature of Contract A guaranty is an independent contract, which does not suspend any right of action of the holder of the note against its maker: Williams v. Covillaud, 10 Cal. 419. An indorsement, or a guar- antee of a note, is an agreement of itself, a new contract undertaken for another: Aud v. Magruder, 10 Cal. 282. The contract of indorsement is primarily that of transfer; the contract of guaranty is that of security: Brady v. Beynolds, 13 Cal. 31. 456 ON PEOMISSOKY NOTES AND CEETIFIOATKS OF DEPOSIT. 125. Notice of Protest. — A notice of protest is as essential to charge a guarantor as an indorser: Riggs v. Waldo, 2 Cal. 485. As the liability of the guarantor is the same as that of the indorser, and he is entitled to all his lights stricti juris: Id.; Geiger v. Clark, 13 Cal. 580. "I hereby -waive de- mand, notice of non-payment and protest, Q. K." indorsed on a note by a third party before it is delivered by the maker, is a guaranty, and not within the Statute of Frauds: Ford v. Hendricks, 34 Cal. 673. 126. 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: Aud v, Magruder, 10 Cal. 282. When, in consideration of a con- veyance, a party agrees to pay an outstanding note of his vendor, and writes his name on the back of the note as a memorandum of said agreement, he is primarily liable for the note : Palmer v. Tripp, 8 Cal. 95. 127. Surety — Security As to the effect of the word " surety" or " se- curity, ' ' added to the name of the indorser of a note, see Bradford v. Corey, 5 Barb. 461; 10 Cal. 282. The word " surety" does not in any way control the words of the note, as between the payor and payee : Aud v. Magruder, 10 Cal. 282. Where three parties purchased property together, one taking an undivided one-half, and each of the others taking an undivided fourth, aud for the purchase money executed their joint note, the purchaser of the one-half interest was a principal and co-surety with the others for their in- terests: Chipman v. Morrill, 20 Cal. 130. Where a promissory note was made jointly by A. and B., and delivered to C, the consideration being de- livered to A. alone, and as between A. and B. , the latter signed as surety for A., who had deposited 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: Damon V. Fardow, 34 Cal, 278. 128. Trustee. — Where a party signs a promissory note, with the addition to his name of the word " trustee," he is personally liable: Conner v. Clark, 12 Cal. 168. 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 qualiiication by two persons having authority, is a note of the association : Easkell v. Cornish, 13 Cal. 45. 129. What Contract Imports — The difference between a maker and indorser or guarantor, is that the contract of the first imports an uncon- ditional obligation, that of the last a conditional obligation: Aud v. Magru- der, 10 Cal. 282. 130. When Action lAea. — 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 ■ deficiency : Donahue v. Gift, 7 Cal. 242; but see, also. Gross V. Farroti, 16 Cal. 143. 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, aud then sue the principal, or file a bill to compel the creditor to sue: Whiting v. Clark, 17 Cal. 407. COMPLAINTS— Subdivision Fourth. For Damages on Breach of Contract. CHAPTEE I. BUILDEBS' CONTKACTS. No. S50. i. By Contractor, .on Special Contract, Modified, with a Claim for Extra Work. [Title.] The plaintiff complains, and alleges : First. — For a first cause of action: I. That on the .... day of , 187., 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 reason- able sum, in addition to the price named in the contract. That by the consent of the defendant, the time for complet- ing said work was extended for one month beyond the time fixed by the contract, to wit : to the .... day of , 187.. III. That the plaintiff, on his part, duly performed all the conditions 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 the day of . .• , 187., at , the plaintiff demand 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. Second. — For a second cause of action: I. That between the day of , 187 . , and 458 builders' conteaots. the day of , 187 . , at . . . , the plaint- iff rendered further services, and furnished materials to the defendant, at his request, in [here state extra work 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. \_I)emand of Judgment.'] 1. Abandonment of Contract If the contract for the erection and completion of a building is entire, and the contractor abandons the work before it is completed, he loses the right which he would have had to the full compensation agreed on: Blythe v. Poultney, 31 Oal. 233. 2. Acceptance by Architect. — Where a contract for alterations and repairs to a building was to be performed in a certain manner, particularly specified, "subject to acceptance or rejection by E. W., architect," and pay- ment only to be made when the work was completely done and accepted: Seld, that the provision for acceptance was only an additional safeguard 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 owner of the building to pay for them : Glacius V. Black, 50 N. Y. 145. The architect's approval, or disapproval, must be' based upon the the requirements of the contract : Doyle v. lialpin, 33 N. Y. Sup. (1 J. & Sp.) 3.52. For cases depending on special facts, see KUlip v. Metzen, 50 N. Y. 658; Slmte v. Eamilton, 3 Daly, 462; see, also, Blethm v. Blake, 44 Cal. 117. 3. Acceptance of 'Work. — "Where the work has been accepted and ap- proved 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: Smery v. Bradford, 29 Cal. 75; Taylor v. Palmer, 31 Cal. 248; Beaudry v. Valdez, 32 Cal. 278. That the defendants demanded possession, which the plaintiff delivered up to them, is not a sufficient averment of ac- ceptance on the part of the plaintiff: Smith v. Brown, 17 Barb. 431. "Where the work was to be done to the satisfaction of the defendant, it is not neces- sary 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 satisfac- tion of third persons, the plaintiff must aver that it was done to their satis- faction: Butler V. Tucker, 24 Wend. 447. 4. Averments Essential.— Under the rules of pleading established by the Code, the party to a written contract for the erection of a building, who has performed his part of it by the erection of the same, cannot 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 con- tract, 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 sus- tained: O'Connor ^r. Dinghy, 26 Cal. 11. 5. Contract set forth.— The contract should be set forth in the com- plaint, together with the necessary allegations of deviations, performance, etc., which the plaintiff must prove, instead of the general allegation that BUrLDEES' CONTEACTS. 459 the defendant ia indebted for work and labor, etc. : O'Connor v. Dingley, 26 Cal. 21. 6. Corporation Work. —On a written contract to build certain bridges for a railroad company, to be paid for, one fourtb in cash, and the rest in stock, no time and place of payment stated, the payment oonld not be re- quired until the terms of the contract were complied with, or at least that payment on any bridge was not due until such bridge was completed. And where no time or place is fixed by the agreement, express or implied, a demand is essential to base an action upon : Boody v. Butland and Burlington B. B. Co., 3 Blatchf. 25. But after performance in such a contract, an action will lie without proof of the demand of the stock: Hallihan v. Corpor- ation of Washington, i Cranch C. Ct. 304. 7. Enlargement of Time. — The time of performing a simple written contract may be enlarged by parol: 12 Barb. 366; Meehan v. Williams, 36 How. Pr. 73. But not unless the parol contract be upon sufficient consid- eration: Tinker v. Geraghiy, 1 E. D. Smith, 687. And the extension is not an alteration necessarily material to the cause of action : Crane v. Maynard, 12 Wend. 408. But after a contract is modified, the declaration must not be upon the original contract alone: Freeman v. Adams, 9 Johns. 115. 8. Extra 'Work. — It was held that the contractor cannot 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: Collyer v. Collins, 17 Abb. Pr. 469. The employer is bound to pay the contractor for extra work and materials, in a, deviation from the contract, upon an oral order: Smith v. Gugerty, 4 Barb. 614. For a case where the contract provided for the contingency of extra work, see Alger V. Vanderpool, 34 N. T. 161. 9. Omission to Fix Time and Manner.— When a contract for the con- struction 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 mea- surement made in the ordinary way. 10. Order of Averments. — 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 conditions thereof on his part;" or, 2. He may set forth the contract in hoec 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 ful- filled it according to the modifications: Smith v. Brown, 17 Barb. 431; see also. Batch v. Feet, 23 Id. 575. 11. 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 specifications," the giving of a cer- tificate to that effect must be averred and proved: Smith v. Briggs, 3 Den. 73; Wyckoffy. Meyers, 44 N. T. 143. 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 per- formed: Towsley v. Olds, 6 Clark (Iowa) 526. 12. Performance must be Complete.— In a contract for the erection of a building upon the laud of another, if performance is to precede pay- ment, and is the condition thereof, the builder having substantially failed to 460 BUILDEKS' CONTBAOTS. perform according to the specification of the contract on his part, can recover nothing for his labor and materials, notwithstanding the owner has chosen to occupy and enjoy the erection: 3 Taunt. 52; 4Comst. 360; Smith r. Brady, 17 N. Y. 173; compare, to the contrary, Hayward v. Leonard, 7 Pick. 181; Smit V. Goiigregaiional Meeting House, 8 Id. 178; Britton v. Turner, 6N.H. 487; which were disapproved in the cases first cited. 13. Performance — Literal Compliance. — Building contracts need not he literally complied with in every punctilio, as a condition to recovery: Smith V. Ougerty, 4 Barb. 614. Where there, was a special contract to build a house by a certain day, which was not fulfilled, owing to various circum- stances, 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: Dermott v. Jones, 23 How. U. S. 220. 14. Performance, how Averred. — The pleader may aver performance which he wishes to aver, and state excuses and causes for non-performance of other conditions. For the rules on the subject of averment of perform- ance of conditions precedent, see "Complaints in General," p. 185; see, also, 1 Chitt. PI. 283; Hatch v. Feet, 23 Barb. 575. 15. Public Works.— Contracts for the construction of public works are not necessarily illegal because for an amount exceeding the sums appro- priated by law: Cook v. Hamilton Co., 6 McLean, 112. So a contract for the performance of certain public work, not authorized by law, provided the Legislature shall sanction it, is not void as against public policy: Id.; see, also, to similar effect, Colunibus M. B. Co. v. Indianapolis and BeUefontaine B. B. Co., 5 McLean, 450. 16. Separate Counts. — 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. The answer denied the allegations of the first two counts, but failed to deny the allegations of the third: Held, that the third count should be considered as denied: EalJcman v. Baylis, 23 Cal. 303. 17. Substitute. — An agreement to find work and materials for building a house, entitles the party to recover upon the completion of the work, al- though he procured it to be done by other parties: Blakeney v. Evans, 2 Craneh, 185. If a new contract was substituted, the original should not be pleaded: Chesbrough v. N. T. and Erie B. B. Co., 26 Barb. 9. 18. Terms of Contract. — Upon a compliance on the part of a sub-con- tractor, 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 determined by the terms of the original contract, and they are presumed to have notice of the existence and terms of such contract: Shaver v. Murdoch, 36 Cal. 293. And in the absence of fraud or misrepre- sentations by the owner, this presumption is conclusive against them : Henley V. Wadsworth, 38 Cal. 356. 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 BUILDEBS' CONTRACTS. 461 against him is his failure to execute the note: O'Connor t. Dinghy, 26 Cal. 11. 19. Variation of Terms. — 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; O'Connor v. Dinghy, 26 Cal. 11. No. 251. ii. Against a Builder, for Defective Worhmariship. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the plaintiff and defendant intered into an agreement, of which a copy is hereto annexed [or state the terms of the contract]. II. That the plaintiff duly performed all the conditions of the said agreement on his part. III. That the defendant built [the bridge] referred to, in a bad and unworkmanlike manner [specifying wherein the work was not properly done], to the damage of the plaintiff dollars. [Demand of Judgment.'\ No. BSZ iii. Against a Builder, for not Comphting, with Special Damage for Loss of Bent. [Title.] The plaintiff complains, and alleges : I. That on the . . . : day of , 187., at , the plaintiff and the defendant entered into an agreement, under their hands and seals, of which a copy is annexed as apart 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 said building ex- pired before the commencement of this action, he neglects and refuses to complete the same. IV. That the plaintiff, on the ... .day of , 187 , at , made an agreement with one A. B., whereby he agreed to let, and said A. B. agreed to hire, the said build- 462 BUILDEBS' CONTKAOTS. ing for montlis, from the day of , 187 . , to the. . . .day of , 187., 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 deprived of the profits of said lease, to his damage dollars, gold coin. IDemand of Judgment.'] \_Annex Agreement, marked "Exhibit A."'] 20. Change in Form of Structure. — 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 arbitrarily annul the contract: Clark -v. Mayor of New York, i N. Y. 338. 21. Covenant -with Penalty. — A covenant in a contract to erect and complete a building by a certain day, under a penalty of $30 for every day the same should remain unfinished, ia not an absolute covenant to finish it on that day: Farnham v. Moss, 2 Hall. 167. 22. Damages by Recoupment 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: Barber v. Rose, 5 Hill, 76. 23. Destruction by Fire. — One who has agreed to build a house on the land of another, and has substantially performed his contract, but has not completely finished the house, nor delivered it, when it is destroyed by fire, is liable in an action for money advanced upon the contract, and damages for its non -performance: 11 N. Y. 35; 1 Taunt. 218; 7 Johns. 473; 19 Pick. 275; 12 N. Y. 99; 25 Conn. 530; 3 Dutch. 514; Tompkins v. Dudley, 25 N. Y. 272. 24. Excusable Delay.— 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 cannot be held liable for a breach of his contract, nor forfeit his right to recover for what he has done: Stewart v. Keteltas, 9 Bosw. 261. 25. Furnishing Materials — A written contract to furnish articles for a building, mentioning no time for performance, is to be performed in a rea- sonable time, and oral evidence that a certain time was agreed on by the par- ties is not admissible: Strange v. Wilson, 17 Mich. 342. 26. Plan and Specifications.— If a contract to do work provides that the work shall be done according to certain specifications, which are annexed to it, the specifications are a part of the contract: Taylor v. Palmer, 31 Cal. 241. It 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 averment of the breach, in what particular the con- tract was broken: Cooney v. Winants, 19 Wend. 504. An averment may be made sufficiently certain by introducing and referring to diagrams showing form and dimensions, etc.: Booker v. Bay, 17 Ind. 522. 27. Refusal to Perform.— The unqualified refusal of a contractor, for ON CHABTEE PARTIES. 463 a part of the work on a building in actual progress of erection, is in itself a breach of the contract: Thompson v. Laing, 8 Bosw. 482, 28. Substitution of Work. — 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 contractor: Held, that by fail- ing to complete, the contractor forfeited only so much as the owner was obliged to pay to finish the building: Foley v. Oough, 4 E. D. Smith, 724. CHAPTEE II. ON CHARTER PARTIES. No. Z5S. i. Owner against Freighter, for not Loading. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the plaintiff and defendant entered into an agreement, a copy of which is hereto annexed. [Or, I. That on the day of 187., at , the plaintiff and defendant agreed by charter party, that the defendant should deliver to the plaintiff's ship "Flying Scud," at , on the day of ., 187., 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.] II. That at the time fixed by the said agreement, the plaintiff was ready and willing, and offered to receive the said merchandise [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 dollars for demurrage, and dollars additional for damages. 1. Charter Patty Defined. — A charter party is a contract, by which the owner lets his vessel to another, for freight: Spring v. Gray, 6 Pet. 151, 164 464 ON CHARTER PARTIES. Any contract founded on an illegal voyage partakes of the character of that voyage, and stands or falls with it: Colquhoun v. N. Y. Fireman's Ins. Co., 15 Johns. 352. 2. Damages. — The measure of damages against a charterer who refuses to furnish a cargo according to his contract, is the stipulated price, deduct- ing the net earnings of the vessel during the time she has been occupied on the voyage, at an average passage, and including the lay days: Ashbumer v. Balchen, 7 N. Y. 262. If the freighter only partially fulfills his contract, the owner may recover for the dead freight his contract price; but the owner is bound to take other freight if offered, though at a less price, and can recover only the difference in price: Abb. on Shipping, 428; Heckscher v. McCrea, 24 Wend. 304. 3. Demurrage, Allegation for. — That the defendant detained the ship days beyond the periods so agreed on for loading, discharging, de- murrage, as aforesaid, whereby the plaintiff, during all that time, was deprived of the use of the ship, and incurred dollars expense in keep- ing the same and maintaining the crew thereof. 4. 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: Abb. on Shipping, 304; Glendaniel v. Tuckerman, 17 Barb. 184. 5. Demurrage, Liability for. — It is the duty of the charterer to restore the ship at the end of the period allowed for the demurrage, but they are not responsible for an unreasonable delay by the master : Bobbins v. Codman, 4 E. D. Smith, 315. One who purchases goods arriving in bond, is not liable for demurrage of the vessel, for detention occurring before the seller obtains a legal permit for the delivery: Gillespie v. Durund, 3 E. D. Smith, 531. No demurrage can be recovered by an owner for a detention occasioned 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: Eooe v. Groverman, 1 Oraneh, 214. 6. Distinction betiveen Contracts of Hiring and Affreightment. — An agreement to hire a vessel in any legal trade, for a specified period, with covenants for her seaworthiness, and that the hirer should pay by the time, and not by the carrying of goods on the voyage, is a hiring of the ves- sel, and not a contract of freight: Winter v. Simonton, 3 Cranch C. Ct. 104; see, also, Donahoe v. Ketiell, 1 Cliff. 135; Husten v. Bicliards, 44 Me. 182. 7. Duties of Master. — Where a charter party allows a charterer a num- ber 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 the expiration of the lay days, but he is not bound to sell before the expiration of the lay days: Bobbins v. Codman, i E. D. Smith, 315. 8. Interpretation of Contract.— In the construction of charter parties, it must be remembered that they are often informal, and must have a liberal consti-uction, in furtherance of the real intention of the parties and the usage of the trade: Abb. on Shipping (Story's ed.) 188; 3 Kent's Com. 201, elseq.;l Paine, 358; 1 Siimn. 551; 2 Id. 589; 8 Wheat. 605, 634; Baymond v. Tyson, 17 How. U. S. 53.) And though the owner of a ship, of which the charterer is ON CHARTER PARTIES. 465 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 lieu may be considered as waived, without express words to that effect, if there are stipulations in the charter party inconsistent with the exercise of the lien, or when it can fairly be inferred that the owner meant to trust to the personal responsibility of the charterer: Paine, 363; 18 Johns. 157, 162; Abb. on Shipping, 178; i Bing. 729; 16 Ves. 275; 5 Maule & S. 180; i Barn. & Aid. 52; Raymond v. Tyson, 17 How. U. S. 53. As to the construction of charter parties in pecu- liar eases, see Ogden v. Parsons, 37 Hunt's Merchants' Mag. (Dec. 1857) 710; Belmont Y. Tyson, 36 Id. (Feb. 1857) 202; Freeman -v. A Cargo of Salt, 40 Id. (Apr. 1859) 457. 9. Mode of Stcwage — 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 therefrom: lamb v. Parkman, Sprague, 343. 10. 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: 1 Pars. Mar. L. 262; Howe v. Smith, 10 Bosw. 268. 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:'' Seld, that if the master 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 guarantying to have the vessel ready 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 vessel is ready to re- ceive the carso: Weisser v. Maitland, 3 Sandf . 318; Where no "lay days" are provided in the charter party or bill of lading, and there is no express stipulation as to the time of unloading, the consignee is not liable for delays occurring without his fault: The Glover, 1 Brown Adm. 166. 11. 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 ordinary use and wear," he is not liable as an in- surer against the perils of the sea or risks of navigation : Story on Bailm. sec. 35; Brown's Leg. Max. 187; Ames v. Belden, 17 Barb. 514. 12. Negligence — Liability for. — If persons charter a steamboat gener- ally, 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: Sher- man V. Fream, 80 Barb. 478. 13. Ovrner 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: 8 Wheat. 632; 8 Granch, 39; Abb. on S. (Eng. ed.) 57, note 1; Id. 288-9; 1 Sumn. 566-7; 2 Gall. 75; Hill v. TU Golden Gate, 1 Newb. 308; Winter v. Simonion, 3 Granch G. Ct. 104. A charter party examined, and held not to have had the effect of transferring the ownership and possession from the general owers: Glarkson v. Edes, 4 Cow. 470; Maotaggart v. Henry, 3 E. D. 30 466 ON OHARTEK PARTIES. Smith, 390; Holmes y. Pavenstedt, 5 Sandf. 97. And the charterers' right of possession may be lost by a voluntary surrender to the owners : Bergen v. Tamined, 40 Hunt's Meroh. Mag. 708. 14. Po-wer 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: Surry v. Hurry, 2 Wash. C. Ct. 145. 15. Refusal to Overload. — Although the charter party lets the entire capacity of the vessel, if the goods put on board are heavy articles, and be- fore 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: Weston v. Minot, 3 Woodb. & Mo. 436. 16. Repairs of Vessel. — A breach of a clause in the charter party, bind- ing the charterer to keep the vessel in repairs, should be alleged in the com- plaint in an action by owners of a vessel against charterer: Coster v. N. Y. and Erie R. B. Co., 3 Abb. Pr. 332. 17. Rescission. — Two persons chartered a vessel for six months, and after a part of the time had passed, the owner agreed with one of the char- terers, in writing, that the charter party was to be deemed to have expired: Held, a valid rescission of the contract: Wheeler v. Cartis, 11 Wend. 653. 18. Runniug Days. — A provision in the charter party for running days, is in effect a positive stipulation by the freighter that he will load and un- load within the time mentioned, and inevitable accident does not excuse him : Field V. Chase, Hill. & D. Supp. 50. No. £54. ii. Charterer against Owner, for Deviation from Contract, and Abandonmxni of Voyage. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the plaintiff and defendant agreed, by charter party, that the defendant's ship, called the , then at , should sail 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 payment 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 convenielit speed, sail to , or so near thereto as she could safely get; but that the defendant caused the said ship to deviate from her said voyage, and abandon the same, to the plaintiff's damage dollars. [Demand of Judgment.'] ON CHAETEE PARTIES. 467 19. Assent of Charterer. — Where a chartered vessel met another vessel in distress in the course of her voyage, and one of the char- terers, 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 contract respecting the freight: Mason \. The Blaireau, 2 Cranch, 240. 20. Deviation. — On a voyage from South America to Boston, stopping at New York may be such a deviation as would render 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 re- tain cargo for freight, though the charterer has become insolvent: Lander v. Clark, 1 Hall, 355. 21. Negative Allegations. — If there are exceptions in the charter party, allegations tending to negative the same are not necessary: Wheeler v. Bavidge, 9 Exch. 668; S. C, Eng. Law & Eq. E. 541. No. SS5. iii. Ship Owner against Charterer, for Freight. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the plaintiff and defendant agreed, by charter party, that the plaintiff's ship called , should, with all con- venient 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 , aforesaid, 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 per- formed all the conditions of said contract on his part. III. That said freight amounted in the whole to the sum of dollars. IV. That defendant has not paid the same. [Demand of Judgment. J 22. Allegation against Assignee of Cargo. — That thereafter the said A. B. assigned the cargo to the defendant, who thereupon became the owner thereof, and entitled to receive the same. 23. Allegation of a Charter.— The plaintiff's alleged in their complaint that their assignors having chartered a vessel, earned freight, which the de- fendants, the consignees of the vessel, had collected and refused to pay over. 468 COVENANTS. Tlie defendants, in their answer, denied that the plaintiffs 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 contingent on the freight exceeding $25,000: jHeid, that this put in issue plaintiff's allegation of a charter, and that the plaintiffs must prove, either an unconditional charter, or that under the charter alleged by defendants the freight had ex- ceeded $25,000: Patrick v. Metcalf, 9 Bosw. 483. 24. 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 : Abb. on Sh.pt. 3, 0. i. sec. 7, p. 177; The Volunteer, 1 Sumn. 551. Nor can char- terers, with the consent of the master abroad, make any agreement exonerat- ing the goods from freight, and defeating the lien of the owners: Grade v. Palmer, 8 Wheat. 605; reversing 4 Wash. C. Ct. 110. Nor can the master enter into such agreements, and such agreements would give no rights to a person who entered into them with the knowledge of the charter party : The Salem's Cargo, Sprague, 389. But the master, notwithstanding the inter- ference of the charterer, may retain the goods until his lien shall be satisfied, or may sue the consignee after delivery of the goods : 8 Wheat. 39, 605 ; 3 Kent. (3 Ed.) 138, 210, 220; Abb. on Sh. 286-8; Smith Merc. Law, 187; Shaw V. Thompson, 01c. 144. 25. 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 constitute the ship a storehouse, and the charterer was not liable for demurrage, beyond a reasonable time for diBcharging after the first sale: Bobbins v. Codman, 4 E. D. Smith, 315. CHAPTEE III. COVENANTS. No. SBe. i. Warraniy of Title to Beal Property. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the defendant, in consideration of dollars to him paid, granted to the plaintiff, by deed [here insert descrip- tion], 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. II. 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, 187 . , the said A. B. law- OOTENANTS. 469 fully evicted the plaintiff from the same, and still withholds . the possession thereof from him. \_Demand of Judgment.'] 1. Action ou Covenant.— lu order to enable one to maintain an action on a covenant, there must not only be a breacli of the covenant, but some loss or damage to the covenantee: Swall v. Clark, 51 Cal. 227. 2. Assignment of Breacb.— The covenant of quiet enjoyment, and of general warranty, require the breach to show an eviction : Biakert v. Snyder, 9 Wend. 416; Marston v. Bobbs, 2 Mass. 433. 3. Covenants, hovr Considered. — Covenants are to be considered de- pendent or independent, according to the intention of the parties, which is to be deduced from the whole instrument: Philadelphia B. R. Co. v. Howard, 13 How. U. S. 307, 339. Where covenants are dependent, an action cannot be maintained without showing a performance on plaintiff's part of every affirmative covenant: Webster y. Warren, 2 Wash. C. Ct. 456. 4. Covenant, what it Imports. — That a party covenanted by indenture imports that a covenant was under seal: Cabell \. Vaughan, 1 Saund. 291; Phillips V. Clift, 4Hurlst. & N. 168; and an averment of execution imports de- livery; Brinckerhoff TT. Lawrence, 2 Sandf. Ch. 400. 5. Covenant by Grantee. — The grantee in a deed-poll is bound by the cov- enants 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: Atlantic Dock Go. v. Leavitt, 54 N. X. 35. 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 : Id. 6. Eviction — Allegation of. — 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 jjremises by a paramount title, and afterwards, in an action brought by him in the District Court of the Judicial Dis- trict, held at the County of State aforesaid, in which said U. D. was plaintiff, and this plaintiff was defendant, the said C. D., on the day of 187 . , recovered judgment, which was duly given by said Court against this plaintiff, for his seisin and possession of the premises, and on the. . . .day of , 187., lawfully entered the premises, and ousted the plaintiff therefrom, and still lawfully holds the plaintiff out of the possession thereof. 7. Eviction by Process of Law. — Eviction by process of law is not necessary to enable an action to be maintained on the covenant: McOary v. Eastings, 39 Cal. 360. And an averment that the vendor had not a good and sufficient title to the said tract of land, and by reason thereof the said plaint- iffs were ousted and dispossessed of the said premises by due course of law: Held, sufficient: Day v. Chism, 10 Wheat. 449. 8. Eviction by Title Paramount In a declaration upon a covenant of warranty, it is necessary to allege substantially an eviction by title para- mount; but no formal terms are prescribed in which the averment is to be made: Bickert v. Snyder, 9 Wend. 416; Day v. Chism, 10 Wheat. 449. 9. Eviction Necessary A purchaser in possession cannot reclaim the 470 COVENANTS. pnrcbase money on aooount of defect in the title, unless he has been evioted 'or disturbed: Salmon v. Eoffman, 2 Cal. 138. Nor on the ground that the title existed elsewhere than in the grantor: Fowler v. Smith, 2 Cal. 44. 10. General Covenant of Warranty. — If a deed contains 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 cov- enant: Vance v. Pena, 33 Cal. 631. Where land is sold v^ith covenant of warranty, accompanied with delivery of possession, and the purchaser gave a note in payment, the warranty and the promise to pay are independent covenants: Norton v. Jackson, 5 Cal. 263. A covenant of the grantor, war- ranting the title of the land sold as ' ' indisputable and satisfactory, ' ' is not broken if the title is good and vaUd: Winter v. Stock, 29 Cal. 407. 11. Inducement. — Where matter in a deed is stated as inducement only, and the party suing is neither a party nor privy to the deed, a profert is un- necessary: Duvall V. Graig, 2 Wheat. 45. Under the common law, it was sufficient in a declaration for a breach of a covenant to state that the de- fendant conveyed to the plaintiff certain land or premises in the said deed particularly mentioned and specified, making profert, without any further description: 1 Saund. 233, n. 2; 2 Chit. PI. 192, n. 1; Dunham v. Pratt, 1, Johns. 372. 12. Insufficient Averment. — 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 : Blydenburgh v. Cotheal, 1 Duer, 176. 13. Judgment Covenants. — Where the parties to a deed covenanted sev- erally against their own acts and incumbrances, and also to warrant and de- fend against their own acts and those of all other persons, with an indemnity in land of an equivalent value, in case of eviction : Held, that these covenants were independent, and that it was unnecessary to allege in the declaration any eviction, or any demand, and refusal to indemnify with other lands; but that it was sufficient to allege a prior incumbrance by the acts of the grantors, etc.; and that the action might be sustained on the first covenant for the recovery of pecuniary damages: Duvall v. Craig, 2 Wheat. 45. 14. Iiiability. — The covenant of warranty runs with the land, and the vendor is liable directly to the person evicted: Blackwell v. Atkinson, 14 Cal. 470. 15. Limitation. — 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 covenant will not lie till the five years have expired : MUls V. Sherwood, 33 Cal. 474. 16. Non-claim Covenant. — A covenant of non-claim in a deed amounts to a covenant of warranty, and operates equally as an estoppel: Gee v. Moore, 14 Cal. 472. 17. Notice of Action.— Verbal notice is sufficient: See Kelly y. Dutch Church of Schenectady, 2 Hill, 105. If the covenantor has notice of the ac- tion, the covenantee is not bound to defend: Jackson v. Marsh, 5 Wend. 44. COVENANTS. 471 The proceedings will be conclusive against the covenantor in this action: Cooper T. Watson, 10 Id. 202. 18. Possession — Where the covenantee is held out of possession by one in actual possession under a paramount title, the covenant is broken : Whity V. Sightower, 12 Smed. & M. 478. 19. 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 upon failure of title is confined to them: Feabody v. Phelps, 9 Cal. 213. 20. Eight of Way.— The use of a right of way by the party entitled to it, is an eviction of the owner of the servient estate, within a covenant of war- ranty against "all lawful claims, "for which the latter may sue as assignee of the covenantee: Buss v. Steele, 40 Vt. 310. 21. Special Damages — Allegation of. — 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 recov- ery thereof, and the sum of dollars, for his own costs, charges, and counsel fees in defending said action. No. S57. ii. The Same — Another Form. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , at , the defendant, by his deed of that date, duly executed, in consideration of dollars, sold and conveyed in fee simple, to the plaintiff, certain land [describe it]. 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 execu- tion of said deed, a good and sufficient title to said prem- ises; and by reason thereof, on the day of , 187 . , at , the plaintiff was ousted and dispos- sessed of the said premises by due course of law. [Or, III. That one G. H., at the time of the execution of the said deed and from thence, had lawful right and para- mount title to the said premises, and by virtue thereof, af- ter the execution of said deed, on the day of , 187 . , entered 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 472 COVENANTS. charges sustained by the said G. H. in prosecuting a cer- tain action in the Court, in County, for the recovery of said premises, which amounted to dollars, and to pay out the additional sum of dol- lars in endeavoring to defend such action. [^Demand of Judgment,'\ No. S58. iii. By Assignee of Grantee against Previous Grantor. [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 , 187 . , at , by deed duly executed, in consideration of the sum of dollars, conveyed T;he said premises to one E. F., his heirs and assigns; and the said E. F. afterwards, on the .... day of , 187 . , at , by his deed of that date, duly executed, in consideration of the sum of dollars, conveyed the same premises to the plaintiff. IV. That the plaintiff afterwards, on the .... day of .... , 187 . , at , entered into and was possessed of said premises. V. That the defendant had not at the time of the execu- tion of his said deed, nor has he since had a good and suffi- cient title to the said premises; by reason whereof, the plaintiff was afterwards, on the .... day of , 187 . , ousted and dispossessed of the said premises by due course of law. IDemand of Judgment.'] No. B59. iv. By Heirs of Covenantee, against Previous Grantor. [Title.] The plaintiff complains, and alleges : I. [Allege sale as in preceding forms.] II. [Allege and set out copy of covenant.] III. That the said CD., afterwards, and on the same day, entered into and was possessed of said premises, and tate therein, descended to the plaintiffs, as children and COVENANTS. 473 afterwards, on the day of , 187 . , at . , said 0. D. died, whereupon the said premises, and his es- co-heirs of the said CD., deceased; and that they after- wards, on the same day, entered into and were possessed of said premises, until ousted and dispossessed, as hereinafter mentioned. [Here set forth the breach, etc., as in the preceding forms.] [D&mand of Judgment,'] No. S60. V. By Devisee of Covenantee, against Previous Grantor. [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 afterwards, on the day of , 187 . , at , made his last will and testament, in writing, and thereby, amongst other things, devised the said premises to the plaintiff; and afterwards, on the day of , 187 . , at , the said E. F. died, leaving such will. IV. That on the day of 187., the said will was proved and admitted to probate in the Probate Court of, etc., and by order of said court, letters testamentary were issued. [If the property is situated in a county other than the one where the will was admitted to probate, add : That afterwards, on the day of , 187 . , 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 pro- bate 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 dispossessed as hereinafter mentioned. [Set forth breach, etc., as in preceding forms.] [Demand of Judgment.] 474 COVENANTS. No. S6X. vi. Warranty as to Quantity. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant warranted a certain farm in township, county, State of , to contain acres of land, and thereby induced the plaintiff to purchase the same from him, and to pay him dollars therefor. II. That the said farm contained only acres, in- stead of acres, the quantity sold to plaintiff by defendant. III. That plaintiff was damaged thereby in the amount of dollars. I Demand of Judgment.^ No. sen. vii. On Govenani against Incumbrances on Eeal Property. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , 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 designate the property]. II. That said deed contained a covenant on the part of the defendant, of which the following is a cbpy [copy of covenant]. 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 , 187 . , at , by deed in the nature of a mortgage, duly executed, had mortgaged the said premises to one E. S., to secure the payment of dollars, with interest. ly. And for a further breach, the plaintiff alleges, that on the day of , 187 . , in the court of the judicial district, of county, in this State, judgment was rendered against the defendant for the sum of dollars, in an action in which the said [incum- brancer] was plaintiff, and the defendant herein was de- COVENANTS. 475 fendant, which judgment was on the day of. ... . . . , 187 . , docketed in said county of [where premises are situ- ated], and which judgment, at the time of the execution and delivery of the deed in the nature of a mortgage, re- mained 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 , 187 . , the sum of dollars in extinguishing the [here state what, whether the judg- ment, lien, tax, or other incumbrance, or all of them} aforesaid, to his damage dollars. IDemand of Judgment.'] 22. Assignment of Breach. — A breacli of covenant is sufficiently as- signed by negativing the words of the covenant: McGeehan v. McLaughlin, 1 Hall, 33. If the special facts to negative a covenant are necessarily in- cluded in the general averment of the breach, a distinct and substantive averment of them is not necessary: Randall v. G. & D. Canal Co., 1 Harr. 151; 3 Bibb, 330. A general covenant against incumbrances is broken by the existence of an incumbrance at the making of the deed. The breach must set out the particular incumbrance relied on: Shelton v. Pease, 10 Mo. 473; Juliand v.BurgoU, 11 Johns. 6; Thomas v. Van Ness, AWeud. 549; com- pare People V. Russell, Id. 570. 23. Condition Precedent. — Tyhere a deed contains a covenant, that in case the grantees 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 pay- ment of the purchase money was a condition precedent to vesting the estate : Mesick v. Sunderland, 6 Cal. 297. 24. Covenant in Mortgage If the mortgagor covenants to pay and dis- charge all legal mortgages and incumbrances, 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 perform- ance of the covenant: Racouillat v. Sansevain, 32 Cal. 376. It does not put the purchaser from the mortgagor upon any inquiry as to any mortgages or incumbrances not of record: Racouillat v. Rene, 32 Cal. 450. 25. Damages Sustained. — A party having been defeated in a suit against him for damages for having interfered with an easement on his land, 476 COVENANTS. may recover of his warrantor the damage he haa sustained in consequence of the breach of the coTenant against incumbrances, and such costs and expenses as he has fairly and in good faith incurred in attempting to main- tain and defend his title: Smith v. Sprague, 40 Vt. 43. He was not bound to follow the advice of his warrantor, by suing the party who claimed the easement and entered upon the premises: Id. " There is," says Lord Mans- field, in Lowe v. Peers, " a difference between covenants in general and cov- enants 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 cannot resort to the covenant; or, if he does not choose to go for the penalty, he can proceed upon the covenant, and recover more or less than the penalty toties quoties:" Sedg. on Dam. 424; see 4 Burr. 2225; also, Bird v. Randall, 1 W. Black. 373, 387; Winter y. Trim- mer, 1 Id. 395; Harrison v. Wright, 13 East, 343. The use and meaning of the terms " penalty " and "liquidated damages " in agreements, commented on, in People v. Love, 19 Cal. 677. 26. Description of Land Conveyed.— A brief description will be suf- ficient with profert of conveyance: 1 Saund. 233, n. 2; 2 Chitt. PI. 192, n. i; Dunham v. Pratt, 14 Johns. 372. 27. Estoppel.— One who has covenanted with executors, as such, that third persons should satisfy and discharge a mortgage, is thereby estopped from denying the right of executors to sue on such covenant in their repre- sentative capacity: Farnlmm v. Mallory, 5 Abb. Pr. (N. S.) 380. But a sub- sequent grantee may maintain an action against the grantor on a covenant : Colby V. Osgood, 29 Barb. 339. " 28. Incumbrances. — The term " incumbrances " includes taxes, assess- ments, and all liens upon property: Civil Code (Cal.) sec. 1114. 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 : Dowdney v. Mayor, etc., 54 N. Y. 186; see Le Peyster v. Murphy, 39 N. T. Supr. (7 J & Sp.) 255. Only nominal damages can be recovered until after actual pay- ment of the incumbrance: Beading v. Gray, 37 Id. 79; see, also, Blyihe-v. Oately, 51 Cal. 236, as to when taxes become a lien. 29. Judgment Liens. — That certain persons recovered judgment against the' owner, which were liens and iucuinbrances, is sufficient, without stating the fact of docketing said judgment, or its legal effect; Cady v. Allen, 22 Barb. 388; see, also. Chamberlain v. Oorham, 20 Johns. 746; reversing S. C, Id. 144. 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: Bennett v. Buchan, 5 Abb. Pr. (N. S.) 412. 30. Legal Effect When an action is brought on the breach of a cove- nant 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 (Swan on PI. 198); thus combining the two systems of pleading for the sake of brevity. This method will be desirable when the contract is of great length. So, in a covenant to pay certain accounts, it is not necessary to set out the accounts so paid, thereby producing great pro- lixity: Jonea v. Surbaugh, 5 N. J. Leg. Obs. 19. COVENANTS. 477 31. Payment Without the averment of payment of the incumbrance, plaintiff can recover only nominal damages : Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 Id. 105; Stanard v. Eldridge, 16 Id. 254. Except in the case of a covenantee who bought for the purpose of a re-sale, with notice to the covenantor at the time of sale: Bachelder v. Sturgis, 3 Gush. 201. 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: De Forest v. Leete, 16 Johns. 122. 32. Purchase after Breach. — A purchaser of a mill, after breach of covenant by a railroad company, with its former owner, to dig a new chan- nel, etc., for the mill stream, cannot sue on said covenant: Junction E.B. Co. V. Sayers, 28 Ind. 318. Defendant made a valid agreement with three partners not to do business in a certain place. Two of said partners sold out to a third, and left said place. The third re-sold to defendant, and re- leased said agreement: Held, that the other two partners could not sue for a breach, as the agreement was incident only to the business: Oompers v. Bochester, 56 Penn. St. 194. 33. SufBcient Averments. — Where a complaint avers a sale and con- veyance, the existence of the mortgage, the execution of the bond, the fail- ure of the defendant to comply with its conditions, and consequent sale of the premises under the mortgage, and their loss to the plaintiff, it was held sufficient on demurrer : McCariy ■v. Beach, 10 Gal. 461. And consideration need not be alleged, as in pleading on a sealed instrument the seal imports consideration. 34. To -what Covenant Attaches. — Every covenant relating to the thing demised attaches to the land, and runs with it : Laffan v. Naglee, 9 Cal. 662. But where the warranty 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 in- terest conveyed, and not to the land itself: Kimball v. Simple, 25 Cal. 440. 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 covenant: Schofield v. The Homestead Co., 32 Iowa, 317. Where the cove- nantee, in a deed of land, takes possession and conveys, a covenant of war- ranty in the deed to him will pass to his grantee, although the covenantor was not in posses.sion at the time of his conveyance : Weed v. LarHn, 54 III. 489. A covenant to convey, contained in a lease, runs with the land and may be assigned: Hagar v. Buck, 44 Vt. 285. When covenant to make and maintain fence runs with the land, see Bronson v. Coffin, 108 Mass. 175. No. ^63. viil. Tlie Sam£, where the Deed Expressed a Specific Incumbrance. [Title.] The plaintiff complains, and alleges : I. [As in preceding Form.] II. That by said deed the . premises conveyed were de- scribed as being subject, nevertheless, to the payment of a certain mortgage recorded in the recorder's office at , 478 COVENANTS. on the .... day of , 187 . , in Book A of mort- gages [or other incumbrance, describing it], and no other incumbrances were mentioned or specified in said deed, as existing upon, or affecting, 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 cov- enant]. 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 con- trary [here set out any or all other incumbrances as breaches, and conclude as in preceding Form]. [ Demand of Judgment. ] 35. 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 against the same, the general covenant implied by the words, "grant, bargain and sell," is restrained by the special covenant: Shelton v. Fease, 10 Mo. 473. And the special covenant is not a covenant to pay the mortgage. 36. Mortgage. —When premises are described in the granting part of a deed as subject to a mortgage, such mortgage will not be in the covenant against incumbrances: Freeman v. Foster, 55 Mo. 508. A covenant by a vendor of real estate, that neither he nor his assigns will sell any marl from the adjoining premises, will not be enforced in equity against the alienee of the land intended to be burdened with the covenant: Brewn v. llarshall, 4 C. E. Green, 537. No. S64. ix. On a Covenant of Seisin, or of Power to Convey. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 ., the de- fendant, 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 right- ful 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 damage in the sum of dollars. IDemand of Judgmmt.l COVENANTS. 479 37. Covenants not Implied.^ — Where there are no covenants of seisin, etc., in the deed, the law will not imply other covenants than those for quiet possession: Fowler y . Smith, 2 Cal. 39. 38. Breach and Eviction must be Alleged. — An action cannot be maintained on u covenant of seisin, unless a breach and an eviction be alleged: EoUnson v. Neil, 3 Ohio, 525; King v. Eerr's Adm'r, 5 Ohio, 155. When there has not been an eviction, something equivalent must be averred: Id.; McGary v. Eastings, 39 Cal. 360. 39. Damages, Measure of. — Where the grantor, in a deed containing a covenant of seisin, has no title to the land, the covenant is broken the in- stant it is made: Nichols v. Nichols, 5 Hun. 108. Such a covenant is an as- surance to the purchaser tliat the grantor has the estate both in quantity and quality: Pecare v. Chouteau, 13 Mo. 527. 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: JfJeese v. Smith, 12 Mo. 3ii; Bircher v. WatJdns, 13 Mo. 521; Mosely v. Hunter, 15 Mo. 322; see, also, Cowdery v. Coit, 44 N. Y. 382. The rule of damages, where there has been an actual loss of the premises, is the purchase money and interest. Where the plaintiff has purchased the paramount title, it is the sum actually and in good faith paid for the paramount title, and the amount expended in de- fending his possession ; provided such damages shall in no case exceed the purchase money and interest: McQ-ary v. Hastings, 39 Cal. 360. 40. Death of Covenantor.— Where the covenantor dies before the dis- covery of the defect of title, and his personal representatives procure a good title, and tender a deed to the covenantee, a court of equity will com- pel him to accept such conveyance, and enjoin a judgment at law for a breach of the covenant: Reese v. Smith, 12 Mo. 344. 41. Essential Averments. — In an action of covenant, it must appeal in the complaint with whom the covenant was made, the performanee or readiness to perform, or the excuse for non-performance of a condition pre- cedent, at the place and within the time specified: Keailey v. McLaugheriy, 4 Id. 221. 42. Implied Covenants. — A deed containing the words "grant, bar- gain, sell, and enfeoff," is operative as a deed of feoffment, and livery of seisin is not necessary: Perry y.' Price, 1 Mo. 553. And under the statute of Missouri, it was held that they are separate and independent of each other: Alexander v. Schreiber, 10 Mo. 46. In Illinois, the words "grant, bargain, and sell," express covenants that the grantor is seised of an inde- feasible estate in fee-simple, free from incumbrances done or suffered by the grantor, as also for quiet enjoyment against the grantor, his heirs and as- signs: Mosely y. Hunter, 15 Mo. 322. It embraces such incumbrances only as the vendor has control of, and not an outstanding mortgage created by his grantor: Armstrong v. Darby, 26 Mo. 517. In California, the Civil Code provides that ' ' from the use of the word grant in any conveyance 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 480 COVENANTS. estate is at the time of the execution of such conveyance free from in- cumbrances 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 conveyance:" Sec. 1113. 43. Negative the Words of the Covenant. — It is sufficient to nega- tive the words of the covenant: i Kent's Com. 479; Rickert v. Snyder, 9 "Wend. 416. It is not necessary that a breach of a covenant should be as- signed in the very words of the covenant. It is sufficient to aver what is substantially a breach: Fletcher v. Peck, 6 Cranch, 87. No. S65. X. Grantee's Covenant to BuUd. [Title.] The plaintiff complains, and alleges : I. That in consideration that the plaintiff would sell and convey to the defendant a lot of land [describe it], for the sum of dollars, the defendant, on the day of , 187 . , 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 build- ing 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 defend- ant 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 valu- able to the plaintiff, as they would otherwise have become, and has injuriously affected their condition, and hindered the plaintiff from selling them; to his damage dollars. \_Demand of Judgment.'] 44. Covenant to Build Party Wall. — A covenant between A. andB., 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: Block v. Isham, 28 Ind. 37. 45, Covenant to Remove Buildings A covenant entered into be- tween owners of adjoining city lots, for themselves and all claiming under them, to the effect that all buildings erected on such lots shall be set back a specified distance from the line of the street on which the lots front, is a covenant 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: Eoberis v. Levy, 3 Abb. Pr. (N. S.) 311. COVENANTS. 481 46. Special Damages. — In an action to recover damages for the breach of a contract, if the damages do not necessarily arise from the breach com- plained of, so as to be implied by law, the plaintiff must specify in his dec- laration the particular damage he has sustained, or he will not be permitted to give evidence of it: Bogert\. Burkhalter, 2 Barb. 525. 47. Stipulation to Build. — Where the lessee stipulated to build a wharf , but specified no particular time, the lessor, before the expiration of the term, could have no legitimate cause of complaint: Chipman v. Mmeric, 5 Cal. 49. If the lessee covenants to build on the demised premises within a given time, the covenant is not a continuing covenant, and if he fails to build, the re- ceipt of rent by the lessor accruing after the end of the time given is a waiver of the forfeiture: McQlynn v. Moore, 25 Cal. 384. 48. Removal of Buildings. — 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 re- move buildings erected by him on the lot, even if there be evidence of an oral agreement to that effect: Jungerman v. Bovee, 19 Gal. 355. No. S66. xi. On Covenant against Nuisances — Bj) Qranior against Grantee. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the plaintiff, by his deed, conveyed to the defendant, for a valuable consideration, as well as in consideration of the covenant 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. IV. That the defendant has erected, and suffered and permitted to be erected, on said premises, a building occu- pied and used as a slaughter-house. V. That the offal and blood in and carried out from said slaughter-house, 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. IDemand of Judgrmnt.] 49. Alleged Nuisance. — In such an action, it must be shown what the alleged nuisance is, and how it has injured the complainant: Bogerty. Burk- halter, 2 Barb. 525. 31 482 COVENANTS. No. £67. xii. On a Continuing Covenant to Maintain a Fence. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , the plaintiff and defendant then were the owners of lands adjoining, and then made an agreement in writing, under their hands and seals, of which the following is a copy [copy agree- ment]. II. That the plaintiff has duly performed all the condi- tions thereof on his part. III. 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 , 187., he suffered the same to become dilapidated and broken down, and to remain in that condition from that time until the day of , 187.. 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 fence, in order to protect his land from the damage caused by said cattle; to the damage of the plaintiff dollars. IBemand of Judgmmi.2 50. Damages on Former Suit — ^ Where damages have been recovered in a former aition on the same cause, it is proper to allege that fact, and that damages now sued for accrued since the commencement of the former action; Beckinth v. OHswold, 29 Barb. 291. 51. Special Damages. — As to the right to recover damages for result- ing injury and for necessary repairs combined, see Beach v. Crain, 2 Comst. 8G. No. ges. xiii. Lessor against Lessee, on Covenant to Keep Premises in Repair. [TlIIiE.] The plaintiff complains, and alleges : I. That on the day of , 187 , 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 frpm said date, at a monthly rent of COVENANTS. 483 ) a certain dwelling-house in , in the county of , the property of the plaintiff. II. That said lease contained a covenant on the part of the defendant, of which the following is a copy [copy of the covenant]. 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 premises otherwise injured by reason of the neglect of the defend- ant to keep them in good repair, to the damage of the plaintiff dollars. I Demand of Judgment. 2 52. Assigning Breach — In a declaration upon an agreement, by which the lessor stipulated to let a farm, from January 1, 1820; to remove the for- mer 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 defendant 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: Held, sufficient: Carroll v. Feake, 1 Pet. 18. To aver plaintiff's readiness and offer, as made on the first day of January, was suf- ficient. 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: Id. 53. Copy of Covenant. — The entire lease need not be set out, only such covenants as relate to the breaches assigned: Sandford v. Halsey, 2 Den. 235. 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: City of Buffalo v. Eolloway, 7 N. Y. 493; S. C, 14 Barb. 101; Congreve v. Morgan, i Duer, 439; Seymour \. Maddox, 16 Q. B. 326; S. C, 71 Eng. Com. L. B. 326. 54. Covenants in Leases. — A covenant in a lease to be renewed indefi- nitely is in effect the creation of a perpetuity, and is against the policy of law: Morrison v. Rossignol, 5 Cal. 65. 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: Civil Code, sees. 717, 718. Where a lease contains a covenant against assignment, and the restriction is once removed, it operates as a removal forever: Chipman v. Emeria, 5 Cal. 49. A covenant that if the lessor shall sell or dispose of the demised premises, the lessee is to be entitled to the refusal pf the same, is a covenant running with the land: Laffan v. Naglee, 9 Cal. 662. A description 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 484: COVENANTS. the hotel shall remain on the lot during the term: Branger-v. Manciet, 30 Cal. 624. 55. 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 : Polackv. Pioche, 35 Cal. 416. Damages "by the elements," are damages by the act of God: Id. 56. 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 com- plaint need not notice the exception: Trustees of New Castle Common v. Stevenson, 1 Houst. (Del.) 451. 57. Forfeiture. — If the landlord, after default, accepts the rent, he thereby waives the forfeiture, and cannot afterwards insist upon it, and much less can the tenant be allowed to say that he is discharged from his covenants by his own default in the payment of rent: Belloc v. Davis, 38 Cal. 250. In relation to leases for years, as well as those for life, the hap- pening 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: Clarke v. Jones, 1 Den. 519; Reade v. Farr, 6 M. & 8. 125; Belloe v. Davis, supra. The tenant cannot insist that his own act amounted to a forfeiture. If he could, the consequences would be, that in every iastance of an action on the covenant for rent, brought on a covenant with a proviso of forfeiture for non-perform- ance, the landlord would be defeated by the tenant showing his own default at a prior period: Doe dem Bryan v. Banks, 4 Barn. & Aid. 409; cited in Bel- loc V. Davis, supra, referring also to Stuyvesant v. Davis, 9 Paige, 427; Can- field r.Westcoft, 5 Cow. 270; and the distinction drawn between these cases and the case of Hemp v. Garland, 4 Q. B. 519; 3 Gale & Davidson, 402; 45 Eng. Com. Law K. 519; see, also, vol. ii, "Landlord and Tenant." 58. Interpretation of Covenants. — 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: Wood v. Partridge, 11 Mass. 488; cited in People v. Arguello, 37 Cal. 524. 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: Beach v. Farish, i Cal. 339. 59. 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: Civil Code, sec. 1624. In New York, the plaintiff may introduce in evidence a lease not under seal, to prove that the relation of landlord and tenant existed, and what was the rent agreed upon: Williams v. Sherman, 7 Wend. 109. 60. ITnder-Lease.— One who takes an under-lease is bound by all the covenants in the original lease: Fielden v. Slater, L. E. 7 Eq. 523. 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:" Id. An under-lease of a whole term amounts to an assign- ment: Beardman v. Wilson, Law. Kep. 4 C. P. 57. 61. 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: Folsem v. Perrin, 2 Cal. 603. "Wherp a clause of renewal in a lease discloses COVENANTS. 485 no certain basis for ascertaining the rent to be paid, snch clause is void for uncertainty : Morrison ▼. Bosslgnol, 5 Cal. 65. So, a covenant "to let the lessor bave what land he and his brothers might want for cultivation, "is void for uncertainty: Oldpman v. Emeric, 5 Cal. 49, No. S69. liv. Lessee against Lessor, for not Keeping Premises in liepair- [TlTLE.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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 defendant, of which the following is a copy : [Copy of cove- nant to keep in repair.] III. That the plaintiff entered ii^to possession of said premises under said lease, and used the same as a ware- house 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. IDemand of Judgment.'] 62. General Covenant to Repair — If the embankment of a natural reservoir, which is filled with water by unusual rain, is broken by a stranger, so that the demised premises 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 cov- enant: Polack V. Pioche, 35 Cal. 416. A general covenant to repair is bind- ing upon the tenant under all circumstances, even if the injury is from the act of God or a stranger; Id. 63. Implied Obligation Defendant entered upon, occupied, and paid rent 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: Seld, 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: Ecclesiastical Commissioners V. Meiral L. E., 4 Exch. 162. 64. Joint Lessors. — Where u. 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 iu 486 COVENANTS. good repair, and surrender them in like repair, this covenant was joint as respects the lessors, and one of them (or two representing one interest) can- not maintain an action for the breach of it by the lessee : Calvert v. Bradley, 16 How. tr. S. 580. No. 210. XV. Lessee against Lessor, for not Completing Building according to Agreement. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the plaintiffs, under the firm name of A. B. & Co., and the defendants, under the firm name of 0. D. & Co., entered into an agreement in writing, of which agreement the fol- lowing is a copy [copy agreement to complete unfinished store, similar to adjoining store]. II. That after the making of said agreement, and on the day of , 187 . , the defendants delivered, and the plaintiffs took possession of said building, under and in pursuance of said agreement, and upon the faith and assurance of the defendants, and the full belief thereof, that the said premises were finished in the same manner as the adjoining store, and in accordance 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 agreement, but, on the contrary [allege specifically the dif- ference]. IV. [Allege special damages], to the damage of the plaintiff dollars. \_Demand of Judgment.'^ . No. S71. xvi. For Breach of Covenant of Quiet Enjoyment — Against Landlord. [Tri'LE.] The plaintiff complains, and alleges : I. That on the day of , 187., 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. OOYENANTS. 487 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 con- tinuing the business of [merchandising] at the said place, and was compelled to expend dollars in moving, and lost the custom of C. D., E. F., and G. H., and divers other persons, by such removal. I Demand of Judgment.^ 65. Covenant Defined.— The breach of the covenant for quiet enjoy- ment is an actual disturbance of possession by reason of some adverse right existing at the time of the making the covenant: 2 G-reenl. on Ev. 239. Not a tortious disturbance, nor a lawful disturbance by an adverse right subse- quently acquired: Greenby v. Wilcox, 2 Johns. 1; Cfrannis v. Clark, 8 Cow. 36. As to an entry by the landlord, see Sedgwick v. Hollenback, 7 Johns. 376. 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 to enjoyment will be im- plied: Burr V. Sienton, 43 N. Y. 462. Under the Civil Code of California a covenant for quiet enjoyment against all persons lawfully claiming the same, is implied in all letting for hire: Sec. 1927. 66. 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: McGary v. Eastings, 39 Cal. 360. The covenant is broken whenever there has been an involuntary loss of possession by reason of the hostile assertion of an irresistible paramount title: Id. 67. 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 : Grannis v. Clark, 8 Cow. 36. 68. Responsibility of Landlord. — 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 the lease: Flayter\. Cunningham, 21 Cal. 229. In such a covenant, no set formula is required. Any language which ex- presses the intent is sufl&cieut: Leuitzky v. Canning, 33 Cal. 299. 488 EMPLOYMENT. OHAPTEE IV. EMPLOYMENT. No. $7Z i. For Breach of Contract to Employ. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the plaintiff and defendant mutually agreed that the plaint- iff 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 187., 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. IV. That on the day of , 187., the defendant wrongfully discharged the plaintiff, and refused to permit him to serve as aforesaid, though the plaintiff then and there offered to continue in said service, and per- form said agreement on his part, to the damage of the plaintiff dollars. \^I>emand of Judgment. ] 1. Discharge of Employee. — Where no definite period of employment is agreed upon between master and servant, the master has a right to dis- charge the servant at any time, and to eject him by force if he refuses to leave after receiving notice to that effect, but no more force than is necessary: DeBriar v. Minium, 1 Cal. 450. But where a contract for services is made for a fixed period, if the employer discharge the servant vrithout good cause, the servant may recover the stipulated wages: Wdister v. Wade, 19 Cal. 291. 2. Entire Contract.. — A distinction exists between contracts for specific work and contracts for the hire of clerks, agents, laborors, domestic servants, etc., for a specified period. In the latter, if the person employed is improp- erly 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 profitable service during the term, or that such employment was offered to him and rejected: Oostigan v. Mo- hawk and Hudson River M. B. Co., 2 Den. 609; 2 Greenl. Ev., 273, sec. 261a. A contract to grade a section of a railroad is an entire contract, and a con- dition in it for payments from time to time, as the work progresses, does not make it severable: Cox v. Western Pacific B. B. Co., 47 Cal. 87. If the con- EMPLOYMENT. 489 tractor, in such case, is preyented by his employer from completing his ■whole contract, he is justified in abandoning it, and may recover a fair com- pensation for the work performed : Id. 3. Measure of Damages The measure of damages is not the entire contract price, but a just recompense for the actual injury which the party has sustained; Clark v. Marsiglia, 1 Den. 317. 4. Offer to Perform.— The rejection of the offer to perform services ex- cuses the performance as a condition precedent, but does not release the plaintiff from his obligation to perform so long as he insists upon the agree- ment: Cooper-'!. Pena, 21 Cal.403. When the plaintiff has been wrongfully dis- charged, this averment, coupled with an allegation of readiness to serve, is all that is necessary. He need not aver an offer to serve : Wallis v. Warren, 4 Exch. 364; 7 Dowl. & L. 60. For if any one is bound to do a thing, he must either do it or offer to do it, and if no objections are made, he must show that he made a tender in a 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: Blight v. AsUey, Pet. C. Ct. 15. 5. Rescission of Contract. — If the servant willfully desert the employ- er's service, the employer is not bound to receive him again, and he cannot recover for past services; 2 Mass. 147; Lantry v. Parks, 8 Cow. 63. Plaintiff agreed to work seven months for defendant, at ten dollars per month, un- less one or the other should beooiie dissatisfied. . He worked six months and a half, and left, alleging that he had business to attend to; Seld, that he could not recover: Monell v. Bums, 4 Den. 121. No. S73. ii. Tlie Same^where the Smployment never took Effect. [Title.] The plaintiff complains, and alleges : I. [As in last form.] II. That on the.... day of , 187., 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 Judgment.'} No. m- iii. For Breach of Contract to Serve. [Tetlid.] The plaintiff complains, and alleges : I. That on the day of , 187., 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 bookkeeper] for the term of [one year]. 490 EMPLOYMENT. II. That the plaintiff has always been ready and willing to perform his part of the said agreement [and on the .... day of , 187 . , offered so to do]. III. That the defendant refused to serve the plaintiff as aforesaid, to his damage dollars. [^Demand of Judgment. '\ 6. Age of Apprentice. — That the master of an apprentice is concluded by the recital in the indentures of the age of the boy: MeOutchin-v. Jamieson, 1 Cranoh C. Ct. 348. And that a stranger to the indentures cannot take ad- vantage of the omission to insert the age of the apprentice in the indentures : Seineeke v. Eawlings, 4 Cranch 0. Ct. 699. 7. Assignment of Indentures A master cannot assign the indentures of an apprentice: Handy -v. Brown, 1 Cranch 0. Ct. 610. And therefore a note given for such an assignment, being based upon avoid contract, cannot be recovered: Walker v. Johnson, 2 Cranch C. Ct. 203. 8. Apprentice's 'Wages.— The master is entitled to his apprentice's wages when hired by another, whether the person hiring knew or not that he was an apprentice: James v. Zeroy, 6 J. K. 274; Munseyv. Goodwin, 3 N. H. 272; Conant v. Raymond, 2 Aik. 243. The right of the master to the earnings of the apprentice, in the way of his business, or of any other busi- ness which is substituted for it, does not extend to his extraordinary earn- ings, which do not interfere with the profit which the master may legiti- mately derive from his services: Mason v. The " Blaireau," 2 Cranch, 240. No. 375. iv. By the Master, against the Father of Apprentice. [Title.] The plaintiff complains, and alleges: I. That on the day of > 187 . , at , one A. B., with the consent of the defendant, made an in- denture under his hand and seal, a copy of which is hereto annexed. II. That at the same time and place, the defendant en- tered 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 , 187 . , the said A. B. willfully absented himself from the service of the plaintiff, and continues so to do, to his damage dollars. \^ Demand of Judgment.'] lAnnex Copy of Indenture.] 9. Breach, how Alleged The allegation that the defendant had not used any endeavors to have the apprentice serve, and refused to do anything, sufficiently showed a breach: Van Dam v. Young, 13 Barb, 286. EMPLOYMENT. 491 10. Covenants. — The usnal covenants in an apprentice's indenture are independent, and the plaintiff need not aver performance on his part: Phil- lips V. Glift, 4 Hurl. & Nor. 167. 11. Liability of Parent. — That the father of an apprentice may be held liable upon the indenture, by reason of his signature and seal, although there are no express words of covenant binding him: Woodrow v. Coleman, 1 Cranoh 0. Ct. 171. If a son remains vpith and performs services for his father after attaining his majority, the law will not, ordinarily, imply a prom- ise on the part of the father to pay for bis labor; but if the circumstances show that the expectation of both parties was that he should be compen- sated, the promise will be implied, and he may recover a quantum meruit: Friermuth v. Friermuth, 4.6 Cal. 42. No. S76. V. By the Apprentice, against the Master. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant entered into an agreement with the plaintiff, and his father Benjamin Bider, 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 his damage dollars. [^Demand of Judgment.'] 12. Sight of Action. — An apprentice may sue a master for not teach- ing him his trade, although no indentures were executed, the master having taken him under an order of the court: Adams v. Miller, 1 Cranch C. Ct. 5. No. 2Tr. vi. For Breach of Contract to Manufacture Goods. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , at , the defendant promised and agreed with the plaintiff to manu- facture 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. That defendant did manufacture said hose, under said agreement, but manufactured them in an unskillful and unworkmanlike manner, to the damage of the plaintiff dollars. lOemand of Judgment.'] 492 EMPLOYMENT. No. S78. ■vii. For Befusing to Accept Manufactured Goods. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant contracted with the plaintiff to make for him [describe what], and agreed to pay for the same, upon de- livery thereof, dollars. II. That the plaintiff made the said goods, and on the .... day of , 187 . , offered to deliver the same to the defendant, and has ever since been ready and will- ing to deliver them, and has otherwise duly performed all the conditions of said contract on his part. III. That the defendant has not accepted or paid for the same. [Demand of Judgment. ] [Copy of Contract.'] No. 279. viii. On a Promise to Manufacture Eiw Material into Merchantable Goods. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the plaintiff delivered to the defendant [sides of leather], of the value of dollars, to be manu- factured into [harness], for a reasonable compensation, to be paid to the defendant by the plaintiff. II. That the defendant, in consideration thereof, under- took 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 [harness] by the defendant before the .... day of , 187 . , 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 there- for 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. INDEMNITY. 493 [Or, ly. That the defendant manufactured said (leather) in such a negligent and unskillful manner, that the said (harness) was of no value.] IDemand of Judgment.'] OHA.PTEE V. INDEMNITY. No. 280. i. By Retiring Partner, on the Remaining Partner's Promise to Indemnify him against Damage. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , 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 partnership 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 , 187 . , 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 , 187 . , the plaintiff paid dollars in satisfaction of the same. IV. That the defendant has not paid the same to the plaintiff. [^Demand of Judgment.] 1. 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: Civil Code, see. 2772. 2. Actual Damage. — In actions upon an ordinary contract to indem- nify 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 judg- ment, 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 aver- red (McGee v. Roen i Abb. Pr. 8) ; but consequential damages must be spe- 494 INDEMNITY. cially alleged: Swan's PI. 381. For allegations in such actions, see Allaire v. Ouland, 2 Johns. Cas. 52; Holmes y.Weed, 19 Barb. 128. 3. Administrator's Bond. — Where an administrator makes premature payment of a claim, and takes a bond of indemnity, such a bond would be held legal and binding: Comstock v. Breed, 12 Cat. 289. 4. Attachment — Release from Recovery may be had on a bond given to a sheriff, to release property from attachment, to the extent of the penalty : Palmer V. Vance, 13 Cal. 553. Such bond is not a statutory undertaking, and is valid at common law. Execution against the judgment debtor is not a con- dition 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: Id. It takes effect at the time of its delivery: Buffendeau v. Brooks, 28 Cal. Gil. 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 : Curiae v. Packard, 29 Cal. 194. The bond given to re- lease property attached, only releases it from the custody of the sheriff, and is not an actual substitution of security, compelling the plaintiff to proceed upon the bond alone to collect his payment: Zow v. Adams, 6 Cal. 277. An indemnity bond to the sheriff to retain property seized under attachment, is an instrument necessary to carry the power to sue into effect : Davidson v. Dallas, 8 Cal. 227. 5. Conditions Precedent If the obligors undertake to indemnify the sheriff for any damage by reason of any costs, suits, judgments, and execu- tions that shall come or be brought against him, the sheriff cannot maintain an action on the bond because judgment has been rendered against him, but must first pay the judgment: ZoU v. Mitchell, 32 Gal. 23. If the sheriff is in- demnified for the act alone, and a suit is brought against him and judgment recovered, the sheriff cannot 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: Dennis v. Packard, 28 Cal. 101; see sec. 1055, Code C. P. 6. Contracts of Indemnity.— As to contracts of indemnity, and rules in reference thereto, see Theobald's Principal and Surety; Chitty, Jr. Contr. (5 Am. Ed.) 56; 9 Cow. 154; 4 Pick. 83; 8 Wend. 452. 7. Damage must be Shown.— In an action on a bond of indemnity, the plaintiff must set out wherein he has been damnified. A general aver- ment of loss is insufficient : Coe v. Eankin, 5 McLean, 354. 8. Demand.— 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 demand: Hallecky. Moss, 22 Cal. 266. 9. Extends to Act of Agent — An indemnity against the acts of a cer- tain person applies also to those of his agent: Civil Code, see. 2775. 10. Execution, Seizure Under.— An agreement to indemnify a sheriff for seizing property under execution is valid, if the parties are in good faith seeking to enforce a legal right: Stark v. Tkiney, 18 Cal. 622. 11. Interpretation.— In the interpretation of a contract 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 INDEMNITY. 495 terms, the person indemnified is entitled to recover upon becoming liable; 2. Upon n,n indemnity against claims, or demands, or damages, or costs, expressly, or in other equivalent terms, the person indemnified is not en- titled to recover without payment thereof; 3. An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion; i. The person in- demnifying 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 defense if he chooses to do so ; 5. If, after request, the person indemnifying neglects to defend the person indemnified, a recovery against the latter suf- fered by him in good faith, is conclusive in his favor against the former; 6. If the person indemnifying, 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 evidence 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: Civil Code, sec. 2778. 12. Injunction A bond of indemnity, executed in pursuance 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 : Finley v. Lynn, 6 Craneh, 238. Thus, under an agreement to indemnify a retiring partner against 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: Held, that the bond might be enforced; Id. 13. J oint and Several Liability. — One who indemnifies 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: Civil Code, sec. 2777. 14. Iiiability of Sureties. — Where the sheriff, under a writ of attach- ment, 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 ren- dered 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 for the amount of the judg- ment; that the bond, though not strictly an undertaking under the statute, conforms substantially to its requirements, and must be read by the light of the statute, and interpreted according to the intention of the parties: Seyne- mann v. Eder, 17 Cal. 433. Such bond will be presumed to have been exe- cuted 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 ren- dered against said defendants:" Id. 15. Liability, Discharge from. — Whenever the liability 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 496 INDEMNITY. he refuses to receive the same, the sureties are discharged from their obliga- tion on the undertaking: Hayes v. Josephi, 26 Oal. 535. 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 his debt and costs, and the plaintiff refuses to receive the tender : Curiae v. Pack- ard, 29 Cal. 194. 16. Material Averment. — In an action on a bond to indemnify the plaintiff against damages he might sustain by the levy of an attachment, the plaintiff alleged the recovery of u, judgment against plaintiff for damages against which he was indemnified, and the payment of said judgment. The averment of payment was material to plaintiff's right to recover for the amount of such judgment: Roussin v. Stewart, 33 Cal. 208. 17. Necessary Expenses. — The averment that the plaintiff necessarily incurred expenses, is equivalent to the allegation that he incurred necessary expenses: Glover v Tuck, 1 Hill, 66. And the complaint must showhowand in what manner these necessary expenses were incurred, naming the court in the allegation : Patton v. Foote, 1 Wend. 207. But the failure to make such an averment is not fatal; it is at most but an irregularity: Packard v. mil, 7 Cow. 434. 18. 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 any bond of indemnity 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 re- covered, including costs : Cal. Code Civ. Proced., sec. 1055. The provision 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: Dutil v. Pacheco, 21 Cal. 438. Where, therefore, the indem- nifier has been so notified, he cannot 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 de- fendant to the first action: Id. 19. Remedy. — Where 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 bould be held or not: White v. Frati, 13 Cal. 521. 20. Sale under Execution.— A bond given to a sheriff to indemnify him for any loss or damage he may sustain by selling property levied on by him, by virtue of an execution, in violation of an order enjoining its sale, is void, 'because an unlawful contract: Buffendeau v. Brooks, 28 Cal. 641. 21. Trespass.— An agreement to indemnify a party for a willful trespass about to be committed, is void, as against public policy : Stark v. Eaney 18 Cal. 622. 22. Void.— An agreement to indemnify a person 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: Civil Code, see. 2773. 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: Id., sec. 2774. INDEMNITY. 497 No. S81. ii. Against Sureties in Partner's Bond of Indemniiy against Liahility. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , 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 thereafter on the same day they dissolved their connection as such copartners, and thereupon entered into an agree- ment 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 considera- tion 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 rea- son of any and all claims or liabilities due by said firm, a copy of which agreement is hereto annexed as a part of this complaint, marked "Exhibit A." II. That the defendants, in consideration of said agree- ment between said A. B. and the plaintiff, and of one dol- lar 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 "Exhibit "B," whereby they severally under- took and bound themselves to the plaintiff, for the faithful performance by the said A. B. of the covenants in said agreement, to be kept and performed on said A. B.'s part. III. That said A. B., under his said agreement with the plaintiff, retained aud 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 indemnified 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 the firm of E. & Co., of , for mer- 32 498 INDEMNITY. chandise 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 among such debts, to be paid by the said A. B., under his agreement aforesaid with the plaintiff; but the said A. B., although requested, would not pay E. & Co. their said demand, or any part thereof. V. That on the day of last, an action was commenced 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 E. & Co., amounting to dollars, and interest thereon; and such proceed- ings were thereupon had, that on the day of , 187 . , judgment was rendered in such action in favor of the plaintiff against the said A. B., for the sum of dol- lars, 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 attorneys' fees therein, amounting to dollars. YII. That he has demanded from the defendants payment of the said amounts, but they have not paid the same. [Demand of Judg'm,ent.'\ lAnnex Copies of Agreements, marked Exhibits "A" and "JB."] 23. Notice of Debt — That the defendants had notice of the debt need not be alleged, as it is matter ■which lies properly in the knowledge of the defendant, especially if it is averred that the books and papers of the firm were transferred to the defendants: Clough v. Soffman, 5 Wend. 499. 24. Partnership Indemnity.— Where a partner, in retiring, covenants to indemnify his successors against all liabilities connected with the busi- ness in which the parties had before been engaged, the covenant did not apply to the liabilities incurred by the plaintiff while he carried on the busi- ness on his own account: Haskell v. Moore, 29 Cal. 437. No. 2SZ. iii. Surety against Principal, for Indemnity against Liability as Surety. [TiTLK.] The plaintiff complains, and alleges : I. That on the day of , 187., at , in consideration that the plaintiff would become surety for him, by executing an undertaking, of which a copy is an- INDEMNITY. 499 nexed as a part of this complaint, marked "Exhibit A," agreed with the plaintiff that he would indemnify him, and save him harmless from and against all damages, costs, and charges which he might sustain by reason of his becoming surety as aforesaid. II. That the plaintiff, confiding in such promise of the defendant, executed and delivered such undertaking. III. That the defendant did not indemnify the plaintiff, and save him harmless from such damages, costs, and charges; but, on the contrary, the plaintiff, under a judg- ment, on the .... day of , 187., rendered against him by the Court, at , in an action brought against him upon said undertaking, paid, on the day of , dollars to , in satis- faction and discharge of said undertaking, and also neces- sary 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 agreement on his part. V. That the defendant has not paid the same to the plaintiff. {Demand of Judgment.'] {_Annex Copy of Undertaking, marked "Exhibit A."] 25. Costs. — As to the right to recover costs paid and incurred by the surety, see Chitt. Jr. Contr. (5 Am. Ed.) 504; 6 Johns. 131; 1 Pet. 350; 17 Eng. C, L. Kep. 457; 4 Taunt. 464; 19 Eng. C. L. Eep. 338; 16 Johns. 70; 2 Wend. 484; 2 MoCord, 159. 26. Right of Surety. — Where Jones, for the accommodation of Smith, indorses a note to Stiles, and Smith delivers an article of property to Jones to indemnify him against his liability on the indorsement, Stiles can in equity avail himself of the security for the satisfaction of the note. Jones merely seeks to indemnify himself; he is not to make profit out of the in- dorsement. He is personally liable to pay the whole debt, whether he re- ceives anything from the principal or not, and it is 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 : Van Orden v. Durham, 35 Cal . 145. 27. When Indemnitor a Surety. — Where one, at the request of an- anotber, 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 reim- bursed in the same manner as a surety, for whatever he may pay: Civil Code, sec. 2779. 500 INDEMNITY. JVo. S8S. iv. SvJi-Tenani against his Immediate Lessor. [Title.] 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 pay- ment.] II. That on the day of , 187 . , in consid- eration that the plaintiff then became the tenant to the de- fendant 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 , 187., in the Court, commenced pro- ceedings 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 187 . , at , was compelled to pay to said A. B., to the use of the defendant, the sum of dollars, the amount of said rent, to- gether with dollars, the costs, disbursements, and attorneys' fees therein. V. That he has demanded from the defendant payment of the said amounts, but, he has not paid the same. {^Demand of Judgment.] 28. Consequential Damages .--To recover consequential damages or costs, the averment must be special. 29. Eviction by Wrong Doer.— If a tenant is evicted by a wrong doer, the landlord is not bound to indemnify him : Schilling v. Holmes, 23 Cal. 227. No. $8Jf. V. On Agreement of Indemnity to Plaintiff for Defending Action for Surrender of Property. [Title.] The plaintiff complains, and alleges: I. That on or about the day of 187 . , one A. B. deposited with the plaintiff dollars. INDEMNITY. 601 II. That afterwards, on the day of , 187 . , the plaintiff, at the request of the defendant, delivered to him the said sum of money so deposited by A. B., which money the defendant claimed; and that the plaintiff did not know to whom the same belonged. III. That afterwards, on the said day of , 187 . , 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 prem- ises, then promised the plaintiff to indemnify and save him harmless from the consequences of such an action. IV. That the said A. B., on the day of , 187., 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 , 187., at a general term of said court, recovered a judgment against the plaintiff in said action, to the amount of dollars; and, afterwards, kn execution was issued upon the said judgment, against the property of the plaintiff, who, on the .... day of , 187 , , 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 de- fending the said action. VI. That the defendant has not paid the same to the plaintiff. IDemand of Judgment.^ 30. Voluntary Payment. — Under a bond conditioned to indemnify the obligee against being compelled by law to pay a second time a sum claimed by 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 payment : Massey v. 8choU, Pet. C. Ct. 132. 502 PBOMISE OF MAEBIAGE. CHAPTEE VI. PEOMISE OP MAEKIAGE. No. S85. i. For Refusal to Marry. [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. [_I>emand of Judgment.'i 1. Action. — That a man may maintain an action for breaoli of promise to marry, see Harrison v. Gage, 1 Ld. Kaym. 386. 2. Birth of Child. — An action for breach of promise of marriage wiU not be made to survive by proof that the promisee had a child, born out of wedlock, now living, and that the defendant is the father of said child: JSovey T. Page, 55 Me. 142. 3. Consideration. — Marriage is a consideration as valuable as money, if bona fide: Magniac v. Thompson, 1 Bald. 344. 4. Contract Mutual. — The action on a promise to marry is sustainable only when the contract is mutual: 1 Kol. Ab. 2215; Wells v. Padgett, S Barb. 323. And though one of the parties be an infant, the contract is binding on the other: 2 Stra. 937; Bac. Abr. Infant, 7 Cow. 22. But an executor can- not sue: 2 M. & S. 408; see, also, Hovey v. Carter, supra. 5. Damages. — Damages for pecuniary loss may be recovered, as for loss of time in preparing for marriage: Smith v. Sherman, 4 Gush. 408. As well as for suffering and injury to prospects in life: 1 Pars, on Oontr. 543. And seduction will aggravate the breach: Wells v. Padgett, 8 Barb. 323; Leavitt v. Cutler, 37 "Wis. 46. Special damages for impaired health may be alleged and proved, if resulting from the breach: Bevell v. Powell, 13 Barb. 183. What- ever damages the plaintiff may have suffered in consequence of the defend- ant's refusal to marry her, she is legitimately entitled to recover; and these PROMISE OF MAEEIAGE. 503 damages are to be estimated from the oireumstanoea of the parties, and the situation In which the plaintiff is left by the defendant's refusal to perform ' his contract: Tiibhs v. Van Eleelc, 12 111. 449. The- interposition of the de- fense that the character 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: Powers v. Wheatley, 45 Cal. 113. 6. Deceit and Injury. — Deceit and injury are presumed from the breach, and need not be alleged: Leopold v. Poppenheimer, 3 Code K. 39. 7. Declaration of Defendant. — In an action for breach of promise of marriage, the declaration of the defendant that he would make a good home for the jjlaintiflf, 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 connection with the other conversations, as tending to prove the contract: Button v. McGauley, 5 Abb. Pr. (N. S.) 29. 8. Promise, ivhen Void. — An agreement by a man to marry when a divorce should be decreed between himself and his wife in a suit then pend- ing, is contrary to public policy, and void: Noice v. Srown, 38 N. J. L. 228. No action can be maintained for a breach of promise of marriage made in consideration of illicit sexual intercourse between the parties: Steinfield v. levy, 16 Abb. Pr. (N. S.) 26. 9. Promise Implied, — That a promise of marriage may be implied from circumstances, see HotchMns v. Hodge, 38 Barb. 117. 10. Promise after Seduction. — A promise of marriage made after se- duction has been effeefted, and in consequence thereof, is not thereby ren- dered invalid. It is not liable to the objection that it encourages immorality, , because the wrong has been already perpetrated : Hotchkins v. Hodge, 38 Barb. 117. 11. Request. — 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 relations: 32 111. 312. The plaintiff must, however, aver a special request or an offer to perform. A bare allegation of readiness and willingness is not BufiScient: 1 Littell (Ky.; 234; Greenup \. Stoker, 3 Gilm. 212; but see par. 15, post. 12. Seduction Where a seduction is accomplished by means of aproin- ise of marriage on the part of the seducer, a consent of the female to marry the seducer, amounting to a mutual promise on her part to marry, may be implied : People v. Kenyon, 5 Park. Or. 254. 13. Time Alleged Where the promise is special, as "after the death of the defendant's father," it should be so declared on, with proper aver- ments: 2 Peake, 103; Chitt. on Oontr. 426. But it is not necessary that the time of marriage should be specified: Garth. 467. But if the promise was to marry on a particular day, it should be so stated: 2 Chitt. 324; see 1 Chitt. 409; 1 M. & P. 239. 504 SALE AND DELIVEKY OF CHATTELS. m. B86. ii. For Marriage with Another. [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 prom- ise to the plaintiff. [Or, III. That at the time of making said promise, the defendant represented to the plaintiff' that he was unmar- ried, whereas, in fact, he was then married to another per- son, of which fact the plaintiff had no notice.] [Demand of Judgment.'] 14. Married Man Iiiable. — A single woman, to whom a man, in fact married, represents that he is single, and promises marriage, may maintain an action against him for his breach of promise: 7 C. B. 999; 1 E. L. & E. 408; Mattmacher v. Saal, 29 Barb. 22; 7 Abb. Pr. 409. 15. Request. — In case of the marriage of defendant, a request need not be alleged: 1 Pars, on Cont. 544: Short y . Stone, 8Q. B.358; Caines v. Smith, 15 Mees. & W. 189; compare Lovelock v. Franldyn, 8 Q. B. 371; Turner v. Baskin, 2 W.Law M. 98. The averment of marriage dispenses with request: Short V. Stone, supra. 16. Statute of Frauds. — A parol contract of marriage that may be per- formed at any time within three years, and consequently within one year is not within the Indiana Statute of Frauds ;butifnottobe performed within one year, it is within the statute : Paris v. Strong, 51 Ind. 339. CHAPTEE VII. SALE AND DELITEEY OF CHATTELS. No. 28T. i. Seller against Fur chaser, for Refusing to Beceive and Pay for Goods. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., 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 , 187 . , at [the day and place of de- livery], ready and willing to deliver said property, and ten- dered the same to the defendant. SALE AND DELIVERY OP CHATTELS. 505 III. That defendant refused to accept said goods, or pay for them, pursuant to said agreement, to the damage of the plaintiff dollars. [Demand of Judgment. ] 1. Constructive Delivery. — A statement of oiroumstanoes constituting a constructive delivery as equivalent to an actual delivery, should be un- eqaivooal : Bailey v. Ogden, 3 Johns. 399 . A delivery to the purchaser of a city weigher's certificate of sugar lying on the vfharf, is a sufficient delivery: Olasgow v. Nicholson, '25 Mo. 29. The delivery of the export entry is not a delivery of the article sold: Johnson v. Smith, Anth. N. P. 81. Mere delivery of a bill of parcels is not sufficient: Smith v. Mason, Anth. N. P. 225. The delivery of au order on the custom house, when the buyer fraudulently in- tends not to pay, knowing his inability to do so, is no delivery: Ives v. Polak, 14 How. Pr. 411. The delivery, with indorsement, of a shipping broker's acknowledgment of the receipt of merchandise to be transported, drawn in the form of a bill of lading, but not signed by the carrier, is sufficient to con- stitute a constructive delivery of merchandise to one who made advances upon the faith of it: 8 How. TJ. S. 281; 4 Comst. 497; EowIsy. Deshler, 28 How. Pr. 66. An order on the depositary of goods sold, given by the vendor to the vendee, constitutes a delivery as between themselves: Sigerson v. Harker, 15 Mo. 101. The transfer of warehouse receipts operates as a constructive delivery of the goods: Burton v. Curyea, 40 111. 320. 2. Delivery of Less Quantity. — If the vendor delivers 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 may return that, and refuse to accept less than the whole, but having received and retained a part, he cannot refuse to pay for the part received : Polliemus v. Heiman, 45 Cal. 573 ; Shields v. Pettee, 2 Sandf. 262. 3. Delivery. — Selecting goods, and putting them aside in the seller's shop, held sufficient delivery: Brewer v. Salisbury, 9 Barb. 511. The de- livery of the keys of a warehouse in which goods sold are deposited is a suf- ficient delivery: Wilkes v. Ferris, 5 Johns. 335; Gray v. Davis, 10 N. Y. 285. Merely taking samples does not amount to a delivery : Johnson v. Smith, Anth. N. P. 81; Carver v. Lane, 4 E. D. Smith, 168. There can be no de- livery so long as anything remains to be done by the seller to ascertain the quantity or quality of the goods: Cunningham v. Ashbrook, 20 Mo. 553; Out- water V. Dodge, 7 Cow. 85; Caruthers v. McGarvey, 41 Cal. 15. Or so long as anything remains to be done by either party to ascertain the price : Ward v. Shaw, 7 Wend. 404. Cumbersome and heavy articles may be delivered with- out actual removal. Delivering a schedule, followed by an agreement on the part of the buyer with the depositary for keeping charge of them, is suffi- cient: Diocon V. Buck, 42 Barb. 70. 4. Delivery, how Alleged Tender and refusal of goods on the part of the principals is equivalent to delivery, and may be specially averred: Kemble v. Wallis, 10 Wend. 374. A performance of all the conditions on his part may be alleged. 5. Growing Crops. —A growing crop, until ready for the harvest, can- not by itself become the object of a delivery, and can only be delivered into the possession of the vendee by delivering to him the possession of the land 506 SALE AND DELIYEEY OE CHATTELS. also of which it is a part: Davis y. McFarlane, 37 Oal. 634. Growing crops are not unlike ships and cargoes at sea in respect to their delivery, of which delivery cannot 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: Joy v. Sears, 9 Pick, i; Portland Bank v. Stacey, 4 Mass. 661; Buffington v. Curtis, 15 Id. 528. 6. Growing Crops, Delivery of.— They are not subject to manual de- livery 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: Bours v. Webster, 6 Gal. 660; Visherv. Webster, 13 Id. 58; Pacheao v. Hunsaker, 14 Id. 120; Bernal v. Sovious, 17 Id. 541; Rob- bins V. Olalian, 5 Duval (Ky.) 28; cited in Davis v. McFarlane, 37 Oal. 634. 7. Growing Crops not Affected by Statute. — A growing crop, while growing, and until 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: Davis v. McFarlane, 37 Gal. 634. 8. Growing Crops, Sale of.— Gontracts for the sale of growing period- ical crops are not within the Statute of Frauds, and therefore need not be made in writing: Davis v. McFarlane, 37 Gal. 634; citing Marshall v. Fergu- son, 23 Cal. 66. So, a contract to deliver corn not yet gathered or husked, as it requires labor to be expended on the subject matter to prepare it for delivery, is not within the Statute of Frauds: Eentch v. Long, 27 Md. 188; see Stephens v. Santee, 51 Barb. 532. It is not the policy of the law to inter- dict sales of growing crops by declaring them absolutely fraudulent, on the mere ground that the seller retains, as he must necessarily do, the posses- sion of the propertj' until it shall become susceptible of actual delivery: Davis V. McFarlane, 37 Cal. 634; citing Whipple v. Foot, 2 Johns. 418. 9. Liability of Carrier.— Upon demand by the vendor, while tjie right of stoppage in transitu continues, the carrier will become liable for a con- version of the goods, if he decline to re-deliver them to the vendor, or de- livers them to the vendee: Reynolds v. Railroad, 43 N. H. 580; Markwald v. Bis Creditors, 7 Gal. 213; Blaclanan v. Pierce, 23 Id. 508; O'Neil v. Garrett, 6 Iowa, 480; Jones v. Earl, 47 Cal. 630. And a notice, without demand, to re-deliver, is sufficient to charge the carrier, if he is clearly informed that it is the intention and desire of the vendor to exercise his right of stoppage in transitu: Reynolds v. Railroad. 43 N. H. 580; Litt v. Cowley, 7 Taunt. 169; Whitehead v. Anderson, 9 M. & W. 518; Bell v. Moss, 5 Whart. 189. 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: Brier v. Red Bluff Hotel Co., 31 Gal. 160; cited in Jones v. Earl, 37 Cal. 630. 10. Measure of Damages. — In an action against a purchaser for not re- ceiving 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: Haskell^. Henry, 4 Cal. 411. 11. Partial Rescission. — M. sold B. eight bags of wool, separately marked and kept as one lot of a particular kind, at one dollar a pound, by one bill of parcels, B. having first opened some of the bags. Part of the SALE AND DELIVERY OF CHATTELS. 507 wool in one bag was of a different kind, and B. without returning tlie bag, sent back the contents, which M. refused to receive: Eeld, that B. could not partially 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 war- ranty: Morse v. Brakett, 98 Mass. 205. 12. Rescission of Contract. — -To rescind a contract for the sale of a chattel, the property must be returned, unless it be valueless to both parties : 23 Pick. 283; Christy v. Cummins, 3 McLean, 386; Eenekley v. Sendrickson, 5 Id. 170; Garland v. Bowling, Hempst. 710. To constitute an actual rescis- sion of the contract, a re-delivering of the goods is necessary : Miller v. Smith, 1 Mason, 437. 13. Ship and Cargo, Delivery of .—If the delivery of a ship and cargo be make within a reasonable time after reaching port, the sale is good as against creditors and subsequent purchasers: Joy v. Sears, 9 Pick. 4; Port- land Bk. v. Stacy, 4 Mass. 661; Buffington v. Curtis, 15 Id. 528. 14. Sales Defined. — A contract to deliver twenty sheep in four years for ten delivered now, is a sale, and not a bailment: Bartleit v. Wheeler, 44 Barb. 162. The distinction between a sale and an exchange explained: Pres- ton V. Keene, 14 Pet. 133. The delivery, by a debtor to his creditor, of prop- erty, 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 realized by that criterion was the amount to be applied in part satisfaction of the debt, that is fixing the price sufficiently to make the sale valid: Dixon v. Buck, 42 Barb. 70. 15. 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 un- less the same, or some note or memorandum thereof, be in writing, and sub- scribed by the party to be charged, or his agent, or unless the buyer accept or receive 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 aiiction, an entry by the auctioneer in his sale book, at the time of his sale, 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: Civil Code, sec. 1624. In determining whether the Statute of Frauds applied to a sale of goods, delivered 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 vendor's book, as " sold A. B. ; CD. se- curity," 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: Held, that C. D. could not be regarded as the principal debtor: Read v. Ladd, 1 Edm. 100. 16. 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 posses- sion, or any third party has acquired bona fide rights in them. And it con- tinues 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 ven- 508 SALE AND DELITEKT OF CHATTELS. dee, or some third person has acquired a ionafide right to them : Jones v. Earl, 37 Cal. 630. A consignor of property in transitu has a right to direct a change in its destination, and its delivery to a different consignee : Strahorn V. Union Stock Yard, etc., Co., 43111. 424. 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 custody, and said notes are unpaid, the vendee becomes insolvent: Thompson v. Baltimore and OhioB.B. Oo., 28Md. 396. 17. Tender. — The refusal of a buyer to take the goods which he has con • tracted to buy, dispenses with any necessity on the part of the seller to make a tender of them: Calhoun v. Vechio, 3 Wash. C. Ct. 165. Under a contract for the sale and delivery of oats " within thirty days," the obligation to re- ceive is as strong as the obligation to deliver. And the contractor is not bound to deliver after the contract has expired, but if he does it will be at the contract price: Gibbons v. United /States, 2 Ct. of Cla. K. (Nott & H.) 421. A complaint on a contract in which the defendant agrees to purchase a given quantity of hay, then in a stack, from the plaintiff, and pay a fixed sum therefor at a fixed time, and the hay to be weighed at the stack, should aver, if the hay has not all been delivered, a readiness or off'er on the part of the plaintiff to deliver: Barron v. Frink, 30 Cal. 486. Before an action can be maintained for defendant's failure 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: Hagar f. King, 38 Barb. 200. A tender of ware- house 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: Mc- Fherson v. Gale, 40 111. 368. 18. 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; Mc- Pherson v. Walker, 40 111. 371; see White v. Dobson, 17 Grat. (Va.) 262; 210- lingar v. Daly, 56 Penn. St. 245. 19. 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 quantity with what was bargained for: Add. on Contr. 238; Eeimersv. Eid- ner, 17 Abb. Pr. 292. The contract is entire, and calls for an entire perform- ance: 17 N. Y. 173; Gatlin v. Tobias, 26 N. Y. 217; see, also, Polhemus v. Heiman, 45 Cal. 573. 20. Valid Sale To constitute a valid sale of a chattel, so as to change the property therein, an agreement as to price and delivery of the chattel is requisite, except in case of a vessel at sea, when the transfer is effected by the bill of sale: Harper v. Dougherty, 2 Oranch C. Ct. 284. And also of growing crops: Sec ante, notes 5-8. 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: .The "Sarah Ann," 2 Sumn. 206. 21. Void Sale. — 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; Best v. Bauder, 29 How. Pr. 489. When the substance of the thing sold is not in existence at the time of the sale, such sale is void: Ber- tram V. Lyon, 1 MoAU. 53: affirmed 20 How. U. S. 150. SALE AND DELIVERY OP CHATTELS. 509 No. S88. ii. The Same — on Contract made by Broker. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187., the plaintiffs and defendants entered into an agreement, by the hand of A. 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 defend- ants paid to the plaintiffs 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 contract on their part, and within the days men- tioned in said contract, to wit, on the .... day of , 187., at , they tendered the said property to the defendants, and demanded payment of the balance of the price thereof. IV. That the defendants refused to receive said property, or pay the balance of the price therefor. V. That they have not paid the same. I Demand of Judgment.'] 22. 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: Outwater v. Dodge, 6 Wend. 397. But the acceptance of a mere shop- boy is not sufficient : Smith v. Mason, Anth. N. P. 225. 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: Flint v. Lyon, 4 Cal. 17. No. SS9. iii. TTie Same — On Promise to Pay by a Good Bill of Exchange. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , at , the plaintiff and defendant mutually agreed with each other as follows : The plaintiff agreed to sell and deliver to the defendant forty tons of iron, at the price of per hundred weight, on the .... day of , 187 . , at , and the defendant then promised the plaintiff to pay him for said iron, by a bill of exchange at three months' date, 510 SALE AND DELIYEBY OF CHATTELS. on delivery of said iron, and that such bill should be satis- factory to the plaintiff. II. That afterwards, on the ... day of , 187 . , at , the plaintiff delivered the said quantity of iron to the defendant, upon the terms aforesaid, amounting to dollars. III. That the plaintiff, on the day of , 187., at , demanded of the defendant payment of the price of the 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. ISemand of Judgment.'] No. S90. iv. The Same — For not Returning Goods, or Paying for them in a BeasonaUe Time. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the plaintiff, at the request of the defendant, delivered to him [describe the property], of the value of dol- lars, upon the condition and consideration that the defend- ant would purchase the same for dollars, or re- turn 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 pur- chase 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. [Demand of Judgment.'] 23. Alternative, — A contract in the alternative should be so set forth: Batch V. Adams, 8 Cow. 35; Stone v. Knowlton, 3 Wend. 374; People v. Til- ton, 13 Id. 597. And an averment of demand of one of two things, when the option of the defendant was in the alternative, is not sufficient: Lutweller v. Linnell, 12 Barb. 512. SALE AND DELIVEEY OP CHATTELS. 511 No. S91. V. The Same — For not Giving Security According to the Conditions of the Sale at Public Auction, the Credit not having Expired. [Title.] The plain tiJSf complains, and alleges: I. That on the day of , 187 . , at , the plaintiff caused to be put up and exposed to sale by public auction, in lots, certain goods and chattels, one of the said lots being a certain carriage, subject to the follow- ing terms, to wit: that the highest bidder should be the purchaser, and that the purchaser should be allowed seven months' credit for the payment of the price, after giving such security as should be approved 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 de- ducted, by way of discount, from the amount of the pur- chase 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 bidder for, and was declared to be the purchaser of the said carriage, subject to said terms of sale, for dollars. III. That the plaintiff then delivered the carriage to the defendant, 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, accord- ing to the said terms of sale. [Demand of Judgment.~\ No. SOS. vi. For a Deficiency on a Mesale. [Title.] The plaintiff . complains, and alleges: I. That on the day of , 187., at , he put up at auction, at the auction house of city of , in this State, sundry [articles of merchandise], subject to the condition that all goods not paid for and removed by the purchaser thereof within [ten days] after 512 SALE AND DELIVKEY OF CHATTELS. the sale, should be resold at auction on his account, of ■which condition the defendant had notice . II. That the defendant purchased [two hundred barrels of flour] at the said auction, at the price of dollars. III. That the plaintiff was ready and 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. IV. That the defendant did not take away nor otherwise receive the said goods purchased by him, nor pay for them or any of them within [ten days] after the sale, nor after- ward. V. That on the day of , 187., 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. VI. That the expenses attendant upon such resale amounted to dollars. VII. That defendant has not paid the deficiency thus arising, amounting to dollars. [ Demand of Judgmeni.'] 24. Conditioual Sales. — A vendor of goods, whioli he delivers, but the title in which is to remain in him until they are paid for, may recover them in the hands of a bona fide purchaser from the vendee: PamiUe v. Cather- wood, 36 Mo. 479; Putnam v. Lamphier, 36 Cal. 151; Kohler v. Hayes, 41 Id. 455. In a conditional sale, the right of the seller to take possession after a default, and sell the property, may be defeated by performance or an offer or tender of performance by the purchaser, and a sufficient tender gives the buyer a right to the property: Sutchings v. Munger, 41 Barb. 396; Miller v. Steen, 30 Cal. 403; cited in S. C, 34 Cal. 144. So he may recover the value of the goods, less the amount of purchase money unpaid at the time of the tender, and the necessary expenses of the vendor in removing and taking care of it: Miller v. Steen, 34 Cal. 144. 25. 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: Miller V. Steen, 30 Cal. 407. The seller becomes, on refusal to accept, the agent of the buyer, with power to sell: Sands v. Taylor, 5 Johns. 395. 26. 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 in- tention 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: 2 Kent's Com. 504; 1 Salk. 3; 6 Mod. 162; 119 Barn. & C. 145; SALE AND DELIYEKY OP CHATTELS. 513 4 Bingh. 722; Pollen v. Le Boy, 30 N. Y. 519; compare Bealy t. Vttey, 1 Cow. 345. The buyer is not entitled to specific notice of the time and place of the resale: Mgart v. O'Began, 1 E. D. Smith, 590; 34 Barb. 301; this has been disapproved in Ingram v. Matthiew, 3 Mo. 209. But he must dispose of the goods in good faith: Crooks v. Moore, 1 Saudf. 297. No. S93. Tii. By Manufacturer, for Goods made at Defendant's Bequest, and not Accepted. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., 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, dol- lars. II. That the plaintiff made the said casks, and on the day of , 187 . , offered to deliver the same to defendant, and has ever since been ready and willing to do so. m. That defendant has not paid for the same. [ Demand of Judgment. ] 27. Breach of Contract. — If one contracts to make merchantable lum- ber for another, and the other takes away unmerchantable lumber, contrary to the wish and orders of the maker, this is not a breach of the contract on the part of the maker: Sale v. Trout, 35 Cal. 229. 28. Manufacturing Goods. — A contract to deliver goods to be manu- factured by the party agreeing to deliver, is not an agreement for the sale of goods within the statute: Grookskanlc v. Burrell, 18 Johns. 58; Sewall v. Fitch, 8 Cow. 215; Courtwright v. Stewart, 19 Barb. 455; Donovan v. Wilson, 26 Id. 138; Parker v. Schenck, 28 Id. 38; Bobertson v. Vaughn, 5 Sandf. 1. So flour contracted to be manufactured and delivered, is not within the statute: Branson v. Wiman, 10 Barb. 406. 29. 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: Bement v. Smith, 15 Wend. 493. 30. Materials Found — It has been held, that the plaintiff cannot, on an account for goods sold, recover merely upon proof of materials found by him, and used in services rendered : CottereU v. Appsey, 6 Taunt. 322. 31. 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 manufacturing, and A. agreed to store the sacks, as fast as made, subject to plaintiff's order, with the privilege of retaking them as fast as he should pay: Held, that the title rested in A., and plaintiff had no lien thereon, or on the sacks, until delivered to him : Hewlett v. Flint, 7 Cal. 264. 33 514 SALE AND DELIYERY OF CHATTELS. No. SU. viii. For Breach of Prorrme, by Purchaser of Good Will, not to Carry on nival Trade. [TnxE.] The plaintiff complains, and alleges : I. That heretofore the defendant carried on the business of , at ; and on or about the day of , 187 . , in consideration that the plaintiff would purchase from him his store and goods therein, for the sum of dollars, and the good will of the said business for the sum of dollars, the defendant agreed with the plaintiff that he would not at any time there- after, by himself, or partner, or agent, or otherwise, either directly or indirectly, set up or carry on the business of a , at . , , or at any other place within the city of II. That the plaintiff accordingly purchased from the de- fendant 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 , 187 . , set up and carried on the business of , at [ Demand of Judgment. ] 32. Acceptance.. — The aoeeptauoe of tbe property precludes an action by the buyer against the seller, for damages, on the ground that the articles actually furnished do not correspond with the contract: Beed v. Randall, 29 N. Y. 358; Fitch v. Carpenter, 43 Barb. 40. The buyer, by retaining the prop- erty 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: 1 Campb. 190; 1 Cair. & P. 15; 20 Wend. 61; 5 N. Y. 73; 2 Sandf. 262; 23 Wend. 350; 1 Stark. 477; 2 Kent, 480; Pars, on Cont. 475; Reed v. Randall, 29 N. Y. 358. 33. Agent, Purchase from. — An allegation that the goods were pur- chased of A., the agent, then and there acting for defendant, is sufficiently certain to prevent any misapprehension of its meaning, and is the same as if the allegation was of the purchase from defendant: Cochrane v. Goodman, 3 Cal. 244. SALE AND DELIVERY OF CHATTELS. 515 No. S95. is. Buyer against Seller, for not Delivering Goods Sold. [Title.] The plaintifif complains, and alleges : I. That on the.... day of , 187., at the plaintiff and defendant mutually agreed that the defend- ant should deliver [one hundred sacks of potatoes] to the plaintiff [on the day of , 187.], and that the plaintiff should pay therefor . . : dollars on de- livery. 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. IDemand of Judgment.'] 34. 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 another, the delivery and payment were concurrent acts: Fruit v. Phelps, i Gal. 282. In case of an assignment by the buyer, the demand of performance of a condition precedent on the part of the vendor must be made upon the vendor, and not alone upon the assignor: Dustan v. McAn- drew, 10 Bosw. 130. 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: Butters v. Haughwout, 43 111. 18; but see Robinson v. Haas, 40 Cal. 474, where it is held that a sale of personal prop- erty passes to the purchaser only such title as the vendor had. 35. Condition Precedent.— Where defendants stipulated 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: Middleton v. Ballingall, 1 Cal. 446; Russell v. Nicoll, 3 Wend. 112; Shields v. Pettie, 4 N. Y. 122; Benedict v. Field, 16 N. Y. 595. 36. Damage. — In an action for not delivering the thing sold,, the measure of damages is the value at the time of the breach : Hopki^is v. Lee, 6 Wheat. 109; Blydenhurghy. Welsh, Bald. 331 ; S/iepAerd v. Hampton, 3 Wheat. 200. 37. Delivery — 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 interpreta- tion of the instrument: Cocker v. Franklin Manufacturing Co., 3 Sumn.530; see Terwilliger v. Knapp, 2 E. D. Smith, 86. 38. Demand, Averment of. — A complaint, alleging that the defendant sold to plaintiffs a, certain share of fruit growingin an orchard, and after the sale executed a guaranty that the share of plaintiffs should be at their die- 516 SALE AND DELIVEBT OF CHATTELS. posal, and further alleging a demand for the same and the refusal of the de- fendant to deliver, is demurrable, as it should have contained an assignment of the breach of the contract or guaranty: JDabovich v. Emeric, 7 Cal. 209. The true point at issue is, whether the defendant undertook to deliver. From the nature of the sale it operated as a delivery. There was no neces- sitj' of a demand on defendant, unless for the purpose of enabling him to comply with his guaranty : Id. 39- Executory Agreements. — Executory agreements for the sale of goods are within the statute, as well as other contracts: Bennett' y. Sill, 10 Johns. 364. A contract for the sale and delivery, if so completed as to be valid in the State where made, will be enforced in this State (Missouri) : Eoughtcding v. Ball, 20 Mo. 563. 40. 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: Egerion v. Mathews, 6 East, 307; 20 Pick. 9; 17 Q. B. 103. The memorandum of a clerk of the seller, of sales by him at auction, is suf- ficient to bind the purchaser: Frost v. Hill, 3 Wend. 386. The memorandum required of a contract of sale is not binding upon the seller, unless signed by the buyer also : See Justice v. Lang, 30 How. Pr. 425. This, however, was under a statute requiring the memorandum to be signed by the parties to be charged thereby. 41. Offer to Perform. — The averments in a declaration that the "plaint- iff was ready and willing " to receive goods, and pay for them on delivery and shipment, is a material one, and necessary to be proved: BoMnson'v. Ty- son, 46 Penn. 286. 42. 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 plaintiff is entitled to recover upon two different legal grounds: Mills v. Barney, 22 Cal. 240. But it has been held that the purchaser of a chattel cannot, in the same action, seek delivery of posses- sion of it, and damages for the non-delivery; the one being an action for a tort, the other upon contract: Furniss v. Brown, 8 How. Pr. 59; Maxwell v. Farnam, 7 Id. 236. 43. Tender. — "Where a party contracts for a quantity of wheat, to be de- livered 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 demand or before suit: Crosby v. Watkins, 12 Cal. 85. 44. "Warehouseman — A complaint against a warehouseman, which does not allege that the goods belonged to the plaintiff, or that defendant was under an obligation to deliver them to him, is bad: Thurber v. Jones, 14 "Wis. 16. li'o. ^96. X. The Same — For not Delivering within a Specified Time. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the plaintiff agreed ■with the defendant to buy of him, and the defendant then agreed to sell to the plaintiff, and to de- SALE AND DELIVEEY OF CHATTELS. 517 liver to him on the day of , 187 . , 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 aforesaid, on delivery, according to the terms of said agreement, 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 sustained damage, to the amount of dollars. [Demand of Judgment.] 45. Tender of Performance. — A tender of performance will be neces- sary 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 : Zester v. Jewett, H N. Y. 453 ; Smith v . Wright, 1 Abb. Pr. 243 ; compare Coonley T. Anderson, 1 Hill, 519. 46. Allegation -where neither Time nor Place of Delivery ■was Fixed. — That on the day of , 187 . , at the plaint- iff was ready and willing, and offered to receive and pay for said flour, and otherwise has duly performed all the conditions thereof on his part. 47. 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 [Lester v. Jewett, 1 Kern. 453), and an offer to pay on delivery: Smith v. Wright, 1 Abb. Pr. 243. Where goods are to be deliv- ered at one of two places, at the option of the seller, he is bound to give the buyer notice of the place selected: Sogers v. Van Boesen, 12 Johns. 221. 48. Time. — Where no time of payment and no time of delivery are agreed upon, payment and delivery are concurrent acts, and neither can main- tain an action without showing a readiness and willingness to perform on his part: Coler v. Livanston, 2 Cal. 51. 49. Allegation "Where both Time and Place were Fixed. — 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 conditions of the agreement on his part. 50. 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: Vail v. Rice, 5 N. Y. (1 Seld.) 155; Clarke v. Dales, 20 Barb. 42; and see Dunham v. Petiee, S N. Y. (4 Seld>.) 508. And such an averment is essen- tial: Clark M. Dales, 20 Barb. 42. 51. Tender on Demand. — It need not be alleged that a tender was made upon demand. He must allege that he was ready and willing to pay for the goods without a tender {Coonley v. Anderson, 1 Hill, 519; Vail v. Bice, 5 N. Y. (1 Seld.) 155; Branson v. Wiman, 8 N. Y. 182; compare Chapin v. Potter, 1 Hilt, 366), even where plaintiff's obligation depends on an act of 518 SALE AND DELIVERY OP CHATTELS. the defendant to be done at the same time: White v. Demilt, 2 Hall, 405. Eeadiness to receive and to pay according to the terms of the agreement, and that defendant had notice of such readiness, is sufficient without tender: 2 Chitt. PI. 327; Eawson v. Johnson, 1 East. 203. It is sufficient to aver that he had been at-all times ready to receive and to pay: Porkr\. Bose, 12 Johns. 209. 52. Allegation -where the Particular Time of Delivery was not Appointed. — That on the day of 187 . , at the place appointed, the plaintiff was ready to receive said , and pay for the same, ac- cording to the agreement, of which the defendant had notice; and the plaintiff has otherwise duly performed all the conditions thereof on his part. On a contract to deliver "on or about" a certain day, the seller has a reasonable time after the day to deliver: Bipp v, Wiles, 3 Sandf. 585. J^o. S97. xi. Allegation of Part Payment. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187., at , it was mutually agreed between the plaintiff and the de- fendant that the defendant should sell and deliver to the plaintiff, at , on or before the day of , 187 . . [describe the thing], and that the plaintiff should pay to the defendant therefor at the rate of dollars per , amounting to dollars, payable as fol- lows : dollars at the time of making said agree- ment, 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 agreement. III. That the plaintiff was ready and willing at the time and place aforesaid, to receive said goods and pay the bal- ance therefor, of all which the defendant had notice; yet the said defendant hath not delivered the same or any part thereof; to plaintiff's damage dollars. \_Demand of Judgment] 53. Payment.— The giving of a promissory note, upon a purchase of goods, is not a sufficient payment to take the contract of sale out of the Statute of Frauds: Ireland v. Johnson, 18 Abb. Pr. 392. 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: Bissell v. Balcom, 40 Barb. 98; Allen v. Ayuira, 5 N. Y. Leg. Obs. 380. 54. Rescission by Vendor — To enable the vendor to rescind the sale, SALE AND DELIVERY OE CHATTELS. 519 he must offer to return the notes given for the goods: CoghUl v. Soring, 15 Cal. 213. 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: MiUer v. Steen, 30 Cal. 407. The party rescinding must put the other party in statu qm.-.lA. 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 contract: Jones V. Fast, 6 Cal. 102. JVo. S98. xii. Against Seller of Stock, for Non-Delivery. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the plaintiff and defendant entered into an agreement sub- scribed by them, whereby it was mutually agreed between them that the defendant should sell and deliver to the plaintiff, at such time 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 , 187 . , 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 defend- ant that he deliver said shares of stock to the plaintiff. III. That the defendant has not delivered the same. I Demand of Judgment.^ 55. Laiv of Place — If a contract for the sale and assignment of certifi- cates of stock of a corporation is entered into in another State, but the cer- tificates are afterwards delivered in this State, the legality of the sale and assignment is to be tested by the laws of this State : Dow v. Gould & Gurry a. M. Co., 31 Oal. 629. 520 FOE SALE OP EEAL PEOPEBTY. CHAPTEE YIII. FOE SALE OF EEAL PEOPEETY. m. B99. i. Purchaser against Vendor, for Breach of Agreement to Convey. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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 , 187 . , 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 agree- ments under the said covenants, upon the like performance by the defendants]. III. That on the day of , 187 . , the plaintiff again demanded such conveyance [or that the defendant re- fused to execute the same]. IV. 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 prop- erty, made by to , for dollars, recorded in the office of , on the day of , 187., and still unsatisfied of record; or any other defect of title.] [Demand of Judgment. '\ 1. 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 plaint- iff had actual possession of the tract of land, or any part of it : Brennan v. Ford, 46 Cal. 7. 2. Allegation of Seisin in Fee An allegation that the plaintiff "is the owner" of the laud sued for, is in substance an allegation of seisin in fee, in "ordinary" instead of in technical language: Garwood v. Hastings, 38 Cal. 216. 3. Contract in the Alternative — When a contract is in the alterna- tive, as to pay the purchase price or reoonvey the property, on a day named, the party who is to perform must make his election on the day named, and FOE SALE OF REAL PKOPEETY. 521 if he does not, he loses his right of election. He cannot wait till the next day: Revyrick v. Goldstone, 48 Gal. 554. 4. Demand and Kefusal — 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: Lutweller v. Mnnell, 12 Barb. 512; Eaakett v. Euson, 3 Wend. 250; Fuller v. Hubbard, 6 Cow. 17; see, how- ever, FearsoU v. Frazer, 14 Barb. 564; where it is asserted that the above rule is a rule of evidence merely, and need not be set forth specially . As to cases in which a demand is necessary, see Bruce v. Tilson, 25 N. Y. 194. But if the vendor, on the first demand, positively refuse to convey, nothing more need be done: Carpenter v. Brown, 6 Barb. 147; Briggs v. Bwight, 17 Wend. 74. That an averment of demand and tender is necessary, see Beecher v. Conradt, 13 N. ¥. 110; Lester v. Jewett. 11 N. Y. 453. 5. 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 : McFerran v. Taylor, 3 Craneh, 270. 6. Interpretation of Contract In Iowa, the law will construe a con- tract to be a mortgage, rather than a conditional sale ; still the intention of the parties to the contract is the true test: Hughes v. Sheaff, 19 Iowa, 335. 7. Performance of Conditions. — Where A. sold a lot of land to B. and delivered possession, and in a written contract respecting the same it was stipulated, among other things, that in the event that B. should be dispos- sessed by legal judgment at any time within three years, A. should pay back toB. $2,000; 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 : Held, that the giving of the notice by B. to A. of the institution of suit against B. for the lot, was indispensable to enable B. to recover of A. on such contract: Bensley v. Atwill, 12 Cal. 231. 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: Id. 8. Performance ^ Averment of Excuse for Non-Performance. — That on .... day of , 187 . , 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 representations, and solely by reason thereof, the plaintiff was not prepared to receive and pay for the same, as he otherwise would have done: Clarke v. Crandall, 27 Barb. 73. 9. Sale " in Writing." — The party making an allegation in a pleading, that the sale of a mining claim, under which he claims title, was in writing, is not thereby precluded from proving that the sale was a verbal one: Patter- son V. Keystone Mining Co., 30 Cal. 360. 10. Writing — Presumption of. — If a complaint avers that a contract was made for the sale of real estate, the presumption is that it was in writ- ing; McDonald y. Mission View E. A., 51 Cal. 210. A finding of fact in such case need not state that the contract was in writing: Id. 522 FOB SALE OF REAL PEOPEETY. Mo. SOO. ii. The Same — Por Damage for not Sxecuting Conveyance, and for Repay- ment of Purchase Money, [Title.] The plaintiff complains, and alleges : I. Thatonthe day of ,,187., at , the plaintiff and defendant entered into an agreement under their hands and seals, of which the following is a copy [insert copy]. [Or, I. That on the day of , 187., at , the defendant agreed with the plaintiff, that in considera- tion of the sum of dollars, the receipt whereof was acknowledged by the defendant in said agreement, in part payment, and of the further sum of dollars, for which defendant agreed to take a note secured by a mortgage on the premises hereinafter described, said note and mortgage to be payable in one year from the day of , 187 . , and to bear interest at ten per cent, per annum, the defend- ant 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 de- fendant would, on the said day of , 187 . , 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 conveyance of the said premises, free from all incumbrances, and he further agreed to pay to this plaintiff, on failure of performance, dollars, liqui- dated damages. And the plaintiff agreed that he would, at the time and place above mentioned, on the execution of said conveyence, make, execute, and deliver to the defend- ant the note and mortgage aforesaid.] II. That on the day of , 187., at [day and place agreed], the plaintiff demanded the convey- ance 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 defend- FOR SALE OP BEAL PBOPEETY. 523 ant, and duly to perform all his agreements under the said covenant, upon the like performance by the defendant, and otherwise has duly performed all the conditions of said agreement on his part. III. That on the.... day of , 187., 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 0/ Judgment.'] No. 301. iii. Vendor against Purchaser for Breach of Agreement to Purchase. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , 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 [in- sert copy]. II. That on the ... day of , 187., at , the plaintiff was the owner in fee-simple of the said prop- erty, and the same was free from all incumbrances, as was made to appear to the defendant, and at said time and place he tendered to the defendant a sufficient deed of convey- ance 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. IDemand of Judgment.'] 11. Admission — Assumpsit for the value of laud conveyed by plaintiff to defendant, in consideration of an oral promise by the latter to convey other land worth $2,000 to the plaintiff, -which promise defendant now refuses to perform: Held, that defendant's agreement, and the value of the land to have been conveyed by him, might be proved as an admission of the value of the land which he received: Bassett v. Basselt, 55 Me. 127. 12. Averment of Excuse for Non-Performance. — That on the day of , 187., 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 524 FOE SALE OP KEAL PEOPEBTY. abandoned the agreement, and ever since wholly failed to perform it, to the plaintiff's damage dollars: North v. Pepper, 21 Wend. 636. A refusal before the time specified, if relied on as an excuse for non-perform- ance, must be alleged to have been addressed to the party alleging: Traver V. misted, 23 "Wend. 66. 13. Rescission of Contract. — In order to rescind a contract for the sale of land, on the ground that the vendor cannot perform it, having no title, it is necessary to aver and show an outstanding title in another: Riddell V. Blake, 4 Cal. 264. 14. Title.— If the true owner conveys the property by any name, the con- veyance as between the grantor and grantee will transfer the title: Fallon v. Kehoe, 38 Cal. 44; citing Middleton v. Findla, 25 Cal. 80. No. SOS. iv. The Same— For not Fulfilling Agreement, and for Deficiency on Resale. [Title.] The plaintiff complains, and alleges : I. That this 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 , 187 . , and announced before the commencement 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., nor 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 ac- count, 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. ^Demand of Judgmeni.] FOB SALE OP BEAL PBOPEBTY. 525 15. Rights of Vendee. — "When the property has been resold, the sur- plus beyond the purchase money due belongs to the vendee : Gouldin v. Buclc- elew, 4 Cal. ]07. No. SOS. T. Vendor against Executor of Purchaser. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the plaintiff and the said A. B. entered into a contract in writing, under their respective hands, of which the following is a copy [copy agreement]. II. That on the .... day of , 187 , , at , the said A. B. died, leaving a last will and testament, by which he devised the said property as follows [set forth de- vise]. III. That the defendant was appointed by said will as the executor of the said A. B., and by an order of the Probate Court of the county of , in this State, made on the .... day of , 187 , said will was admitted to probate, and the defendant was then appointed and duly qualified as such executor. IV. That on the day of 187. , the plaintiff offered to the defendant to convey the premises to hini 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. \_Bemand of Judgment.'] No. 304. vi. Vendor against Purchaser, for Real Property Contracted to be sold, hut not Conveyed, [TiTIiB.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the plaintiff and defendant mutually agreed that the plaintiff should sell to the defendant, and that the defend- ant 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 , 187., at , the plaintiff tendered [or was ready and willing, and offered 526 UPON UNDERTAKINGS, BONDS, ETC. 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. IBemand of Judgment.'] 16. Execute.— " Execute " implies delivery: Lafayette Insurance Co. v. Bogers, 30 Barb. 491; Book v. White, 36 Gal. 299. It also implies subscrip- tion: Cheney v. Cook, 7 Wis. 413. That an allegation of readiness and -will- ingness is necessary, see Beecher v. Conradt, 13 N. Y. 110. CHAPTEE IX. UPON UNDEKTAKINaS, BONDS, ETC. No. 305. i. Short Form— On Undertakings given in Actions. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the defendant made an undertaking, a copy of which is hereto annexed as a part of this complaint, marked "Ex- hibit 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 execu- tion thereon against the property of was issued to the Sheriff of said county, which was, on the day of , 187 . , returned wholly unsatisfied. \_Demand of Judgment.'] \_Annex Copy of Undertaking.'] 1. 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; See Code C. P., sec. 581. Upon a, bail bond for the appearance of a person arrested in prooeeedings 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 proceeding: Code 0. P., sec. 1220. Upon any undertaking in attachment given in pursuance f section 540 or 555, Code 0. P., suit may be commenced UPON UNDEETAKINGS, BONDS, ETC. . 527 if an execTition upon the judgment be returned unsatisfied, in wliole or in part; or he may proceed, as in other oases, upon the return of an execution. 2. 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 necessary to aver in the complaint that the district court had juris- diction to render the judgment appealed from : Murdoch v. Brookn, 38 Cal. 596. Nor is it necessary to allege that the undertaking had the effect to stay the execution of the judgment, if it appears therein that proceedings for the execution of the judgment were never taken: Id. If a copy o£ the un- dertaking be set out in the body of the complaint, it will be taken and con- sidered as a part thereof: Id. A complaint, in such case, is not defective because it contains no averment that an execution had been issued and re- turned unsatisfied, or because no demand for payment is alleged to have been made ou the principal: Id. Nor is it necessary to allege that the plaintiff in the judgment was entitled to the possession of the premises pend- ing the appeal : Id. A complaint against the obligors in an undertaking given on an arrest under section 182, N. Y. 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 sufficient : Moses v. Waierbury Button Co., 37 N. Y. Supr. (5 J. & Sp.) 393. 3. Breaches and Damages Taking all our statutes together, the ob- vious design was to put an undertaking on the same footing as a bond : Canfield v. Bates, 13 Cal. 606. Special breaches should be assigned in all oases: Western Bk. v. Sherwood, 29 Barb. 383. 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: Baker v. Cornwall, 4 Cal. 15; Postmaster-Oeneral v. Cross, 4 Wash. G, Ct. 326. It is in general sufficient to allege the breach in the terms of the condition of the bond: See Berger v. Williams, 4 McLean, 577. A declaration on a bond given to prosecute with effect a writ of replevin, where the breach as- signed is, " that the suit was not prosecuted with effect," is sufficient: Gor- man v. Lenox, 15 Pet. 115. The non-payment of a judgment obtained against the administrator, may be assigned as a breach of the condition of such bond: People v. Dunlap, 13 Johns. 437; see Frankel v. Stem, 44 Cal. 168, as to measure of damages. 4. Conditions. — Where the bond was not upon the record, and the com- plaint did not specify the conditions, it was held insufficient: Woods v. Bainey, 15 Mo. 484. 5. Construction.— An undertaking on attachment is an original, inde- pendent contract on the part of the sureties, and must be construed in con- nection with the statute which authorizes it : Frankel v. Stern, 44 Cal. 168. 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: Id. 6. Consideration.— Where it appears that the instrument 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 oonsidera- 528 UPON UNDERTAKINGS, BONDS, ETC. tion is necessary: Slack v. Heath, i E. D. Smith, 95; S. C, 1 Abb. Pr. 331. 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: Clark V. Thorp, 2 Bosw. 680. An undertaking executed by a sheriff before releasing property which he has ascertained to be exempt from execution, is void for want of consideration: Servanti -r.lMslc, 43 Oal. 238. 7. 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: Morgan v. Thrift, 2 Cal. 563. Where a mere defective undertaking has been bona fide given, and the party will file a good one before the case is submitted, the court should permit him to do so: Coulter v. Stark, 7 Cal. 244; Cunningham v. Hopkins, 8 Id. 33. 8. Demand.— Demand upon the principal is necessary: Nelson v. Bost- wick, 5 Hill, 37. But a demand upon the defendant is unnecessary: Ernst V. Bartle, 1 Johns, Gas. 319. But if a demand is necessary by the special terms of the undertaking, it should be averred. 9. Description of Instrument. — A complaint, in an action upon a stat- utory undertaking, which contains no other description of the instrument than an allegation that it corresponds with the provisions of a certain sec- tion 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: Mills v. Gleason, 21 Cal. 274. 10. Estoppel. — In an action for use and occupation, upon an undertak- ing on appeal, the defendants are estopped from denying that the defendant in the judgment was in the possession at the time he took his appeal and gave the undertaking: Murdock v. Brooks, 38 Cal. 596. 11. 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 judgment was duly filed in the ofSce of the clerk of the District 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 unsatisfied. 12. Justification. — " In all oases 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 dol- lars, and there are more than two sureties thereon, they may state in their affidavits that they are severally worth amounts less than that ex- pressed in the undertaking, if the whole amount be equivalent to that of two sufficient sureties:" Code 0. P., sec. 1057. UPON UNDERTAKINGS, BONDS, ETC. 529 JVo. 306. ii. On an Undertaking for Costs of Appeal. [Title.] The plaintiff complains, and alleges: I. That on the day of , 187 . , judgment was rendered by the District Court of the Judicial District, of the City and County of , State afore- said, in favor of the above-named plaintiffs, against one C. D., for the sum of dollars; and that on the day of , 187 . , the said CD. appealed to the Su- preme 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 following is a copy [copy undertaking]. III. That on the day of , 187., the judgment appealed from was by the said Supreme Court affirmed, and the sum of dollars, costs and dam- ages on the appeal, was awarded against the appellant. IV. That he has not paid the same. [^Demand of JudgmenW] 13. Action by Assignee. — To enable the assignee of a judgment to sue on the appeal bond, he must have an assignment of the bond: Moses v. Thome, 6 Cal. 87. 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 re- cover for use and occupation, pending the appeal, and costs: Murdoch v. Brooks, 38 Cal. 596. 14. 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 ap- pellant to send up a transcript, the sureties are liable on the undertaking on appeal: Ellis v. Mull, 23 Cal. 160. Where an appeal is withdrawn or dis- . missed by consent of both parties, without being called to a final hearing, no action can be maintained on the appeal bond : Osborn v. Hendrickson, 6 Cal. 175. Where an appeal is dismissed on motion of respondent, based on written consent of the appellant, the dismissal operates as an afBrmanoe of the judgment, and charges the sureties ou the undertaking on appeal: Chase V. Beraud, 29 Cal. 138. 15. Delivery. — In an action on an undertaking on appeal, it is a suffi- cient averment of the delivery of the undertaking, if the complaint show that it was filed in the clerk's office: Holmes v. Ohm, 23 Cal. 268. 16. Execution, Issue of. — An averment in the complaint in a suit on an appeal bond, that execution had been issued on the judgment and re- 34 530 UPON UNDEETAKINGS, BONDS, ETC. turned unsatisfied, is unnecessary. The non-payment of the judgment can be shown without issuing an execution: Tissot and Wife v. Darling, 9 Cal. 278. 17. Frivolous Appeal. — Damages for a frivolous appeal cannot be re- covered in an action upon the undertaking on appeal, unless they have been specially awarded by the appellate court: Hathaway v. Davis, 33 Cal. 161. 18. Judgment.— It need not be alleged that the judgment was final: Sutherland v. Fhelps, 22 111. 91. 19. Judgment Reversed — Where an appeal bond was conditioned to pay the judgment appealed from, if the same should be affirmed, and it ap- peared that the judgment appealed from was reversed, the conditions of such bond were not broken, and no action would lie thereon : Chase v. Ries, 10 Cal. 517. 20. Judgment Affirmed — Under the usual undertaking on appeal, if the judgment be affirmed, the liability of the 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^leadings and a new judgment upon the new issue, does not render the sureties liable: Poppenhiiseny. Seeley, 3 Keyes, 1-50. An undertaking or bond was construed to relate only to an action pending against the obligees at the time when it was given: Beach v. Endress, 51 Barb. 570. 21. Liability of Sureties — The sureties on an undertaking are entitled to stand oil the precise terms of the contract, and there is no way of extend- ing their liability beyond the stipulation to which they have chosen to bind themselves: Tarpey v. Schillenberger, 10 Cal. 390. And a judgment against the principal is conclusive against the surety: Pico -v. Webster, 14 Cal. 202. But an undertaking on appeal conditioned for the payment of what thejudg- meut creditor has no legal right to receive, is not, as to such condition, bind- ing upon the sureties: WItitney -v. Allen, 21 Cal. 233. The sureties on an appeal bond cannot be sued until the judgment against their principal is in a condition to be enforced by execution: Pamell v. Hancock, 48 Cal. 452. So long as there is an order of court in force, staying execution on the judg- ment, against a party who had appealed from a lower court, the sureties on the appeal bond cannot be sued: Id. 22. Made and Filed. — That the averment in the second allegation of the above form, that the defendants made and filed, etc., is sufficient: Gib- bons V. Berhard, 3 Bosw. 635; but compare Pevey v. Sleight, 1 Wend. 518. 23. Parties. — Where defendant executed an undertaking on appeal, to husband and wife plaintiffs, an action on the undertaking may be maintained in the name of husband and wife: Tissot v. Darling, 9 Cal. 278, 24. Rights of Surety.— Whenever any surety on an undertaking on ap- peal, executed to stay proceedings on a money judgment, pays the judg- ment, either with or without action, after its afiirmatiou by the appellate court, he is substituted to the rights of the judgment creditor, and is en- titled to control, enforce, and satisfy such judgment in all respects as if he had recovered the same: Code C. P., sec. 1059, UPON UNDERTAKINGS, BONDS, ETC. 531 No. S07. iii. Thi Same — For Costs and Damages on an Arrest. [Title.] The plaintiff complains, and alleges : I. That heretofore an action was commenced in the Dis- trict Court of the Judicial District, 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 defendants, on the . . . day of 187 . , at , executed 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 under- taking]. II. That thereupon, pursuant to said application and un- dertaking, 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. III. That this plaintiff was, on the . . . ;day of , 187., arrested by the Sheriff of the , under said order, and was unjustly detained and deprived of his lib- erty thereunder for the space of days, to his dam- age dollars. IV. That such proceedings were afterwards had in said action, that this plaintiff, on the .... day of , 187 . , recovered a judgment therein, which was rendered by said Court against the defendant, A. B., for dollars. V. That on the .... day of , 187., at , this plaintiff demanded payment of said judgment and dam- ages, from the defendant. VI. That he has not paid the same. [_ Demand of Judgment."] No. 308. iv. On an Undertaking, on Release from Arrest. [Title. ] The plaintiff complains, and alleges: I. That on the day of , 187 . , 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 C. 532 UPON UNDERTAKINGS, BONDS, ETC. D., the said 0. D. was arrested by the Sheriff of the county of II. That on the day of , 187., at , the defendants undertook, in the sum of dollars, that the said C. D. should, if released, render him- self at all times amenable to the process of the Court dur- ing the pendency of the said action, and to such as might be issued to enfore the judgment therein, a copy of which undertaking is hereto annexed, marked "Exhibit A." III. That thereupon the said C. D. was released. IV. That on the day of , 187 . , judgment was rendered for the plaintiff in the said action, for dollars. V. That on the day of , 187 . , execution was issued against the property of the said CD., under the said judgment, but the sheriff has made return that no property was found. VI. That on the day of , 187 . , 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. [Demand of Judgment. ] [Annex Copy of Undertaking, marked " ExhiMt A,"'i 25. Attachments. — On a bond given to an officer to be relieved from arrest, ou an attachment conditioned to appear at the return day, an allega- tion of non-appearance is sufficient: Thomas v. Cameron, 17 Wend. 59; Eart V. Seixas, 21 Id. 40. On an attachment for a contempt, the complaint must state plaintiff's connection with the attachment proceedings, and to what ex- tent he was aggrieved by the acts of defendant : Rayner v. Clark, 7 Barb. 581. That the order for the attachment was duly granted, is sufficient: Code . C. P. 456. 26. Essential Averment. — A complaint on a recognizance in a crimi- nal ease should aver that the same was filed in or became a matter of record in the court where it was returnable: Mendocino County v. Lamar, 30 Oal. 627. 27. Execution must be Averred. — In an action upon an undertaking given to procure a discharge from arrest, the complaint is bad upon demur- rer if it omits to aver the issuing and return of an execution against the prop- erty of the debtor arrested, and also the issuing and return of an execution against the person: Gauntley v. Wheeler, 31 How. Pr. 137. That execution against property need not be averred, see Eenick y. Orser, 4 Bosw. 384; Gregory v. Levy, 12 Barb. 610. UPON UNDERTAKINGS, BONDS, ETC. 533 28. Execution against the Person. —The averment of the recovery of the judgment, and proceedings thei-eupou had supplementary to execu- tion, and the issuance of attachment for contempt, under which the instru- ment sued upon was executed, is sufficient: Kelly v. McCorviiclc, 2 E. D. Smith, 503. 29. 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 pending: People v. Smith, 3 Cal. 271. 30. Recognizance. — In an action in the District Court upon a recogni- zance of bail given under order of the County Judge for the release of a party charged with larceny, the complaint need not aver that the recognizance was certified by the Court of Sessions to the District Court, nor that the princi- pal has not satisfied the judgment of forfeiture. The authorities that such certificate and averment are necessary refer to proceedings by scire facias upon a record of the recognizance to which the accused is a party: People v. Love, 19 Cal, 676. The complaint alleged substantially that G. 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 for- feiting the recognizance, and that the defendants did not produce the body of G. before the final adjournment of the Court, Such a complaint states u cause of action: People v. Smith, 18 Cal. 498. No. S09. y. On an Undertaking for Costs and Damages on Attachment. [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 , 187 . , at , executed and filed with the clerk of said coart, for the benefit of this plaintiff, pursuant to section five hundred and thirty-nine of the Code of Civil Procedure, a written undertaking, 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 satisfy the demand of the said A. B. in said action, to wit, the sum of dollars, together with costs and expenses. 534 UPON UNDEETAKINGS, BONDS, ETC. III. That at the time of the issuing of said attachment, this plaintiff was engaged as a merchant in selling hardware at wholesale, 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 busi- ness of this plaintiff was utterly broken up, and the goods attached became unmarketable and useless, and this plaint- iff's credit became thereby greatly injured, to his damage dollars. IV. That such proceedings were had in the suit aforesaid that this plaintiff, on the .... day of , 187., re- covered 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 , 187., at , this plaintiff demanded payment of the said judgment from said A. B. VI. That he has not paid the same. \_Demand of Judgment.'] 31. Principal and Surety — Where the surety undertakes that his prin- cipal shall pay any judgment to be rendered, etc., the judgment against the principal is conclusive against the surety: Pico t. IVebster, 14 Cal. 202. 32. Statute, ho'W Pleaded. — Beference to statute, as in the above form, is sufficient. The court is bound to take notice of a public statute : Goelet V. Cowdrey, 1 Duer, 132; Skaw v. Tobias, 3 Comst. 188. No. 310. vi. On an Undertaking Given to Procure the Discharge of an Attachment. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., an attach- ment against the property of 0. D. was issued out of the Court, by the Clerk thereof, in an action com- menced by A. B., the plaintiff herein, against the said C. D., the defendant herein, to recover [state what]. II. That afterwards, on the day of 187 at , the said C. D. 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 pur- UPON UNDERTAKINGS, BONDS, ETC. 535 suaut to law, a copy of which is hereto annexed and made a part of this complaint, marked "Exhibit A." III. That upon delivery of said undertaking the said at- tachment was discharged and the property was released, and that subsequently, on the day of ■ • • , 187 . , said plaintiff recovered judgment against the said 0. 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 , 187 . , and that said judgment has not been paid. IV. That on the day of ,187., this plaintiff demanded 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. [Demand of Judgmenl.1 lAnnex Copy of Undertaking, marked "Exhibit A."2 33. Consideration. — ^Whexe defendant applies to the court for a dis- charge of the attachment, and an undertaking is executed by D. & E., recit- ing the fact of the attachment, and that " in consideration of the premises, and in consideration of the release from attachment of the property at- tached 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 properly; in suit against the sureties on the under- taking, the complaint need not aver that the property was actually released and delivered to the defendant; that as the consideration for the undertaking •was the release of the property, and as the complaint avers such release in consequence and in consideration of the undertaking, by order of the court, which is set out, the actual release and redelivery of the property to de- fendant is immaterial, the plaintiff having no claim on it after the under- taking was given and the order of release made: McMillan v. Dana, 18 Cal. 339. 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. Id. 34. Form. — For a form of complaint in such cases, consult Cruyt v. Phillips, 7 Abb. Pr. 205. 35. Issue of Attachment. — It need not be alleged that the attachment was duly issued, if it be shown that it was issued from u, court of general jurisdiction: Cruyt v. Phillips, 7 Abb. Pr. 205. And reciting the fact of a levy of the writ, the complaint need not aver or set out the facts which au- thorized the issuing of the attachment. The recital of the levy estops de- fendants from denying it, and the levy is snfBcient without averment of the previous proceedings: McMillan v. Dana, 18 Cal. 339; Gregory v. Levy, 12 Barb. 610. 36. Released upon Delivery. — The complaint should allege that the 536 TJPON UNDERTAKINGS, BONDS, ETC. property attached was released upon the delivery of the undertaking: Will- iamson V. Blattan, 9 Cal. 500. 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: Id. 37. That Property was Released. — The complaint should state that the property was released upon the execution and delivery of the bond. It is necessary to state the consideration of the undertaking; a mere reference to the condition of the bond itself is insufficient: Palmer v. Melvin, 6 Cal. 631. No. 311. vii. On an Xfnderialdng Given in Claim and Delivery, [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 , 187 . , 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., de- fendant in said action, pursuant to said undertaking, and to a requisition 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 , 187., a verdict in the District Court of the Judicial District, county, 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. B., the defendant there- in, 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 issued on said judgment against the said defendant, UPON UNDERTAKINGS, BONDS, ETC. 537 A. B., which execution has been returned wholly unsat- isfied. VIII. That the defendant has not paid said judgment. [Demand of Judgment.'^ 33. Action by Assignee. — In an action by the assignee of an undertak- ing given in proceedings of claim and delivery, it is sufficient, by way of showing the plaintiff's title, to allege that the undertaking was duly as- signed, etc., to him, without alleging that the judgment in the action was also assigned: Morange y. Mudge, 6 Abb. Pr. 243. When the action is brought by the assignees of only a portion of the promisees, there is a de- fect of parties; all the promisees should be represented: Bowdoin v. Coleman. 6 Duer, 182; 3 Abb. Pr. 431. Where a replevin bond substantially conforms to the act, the assignee of the defendants can maintain an action upon it : Wlngate v. Brooks, 3 Cal. 112. 39. Consideration. — The averment of delivery and release is an aver- ment of consideration, and must be stated, even if the undertaking was under seal: Nickerson v. Chatterton, 7 Cal. 568. But if the undertaking re- cites the performance of the condition, a complaint setting forth the under- taking need not also aver performance: McMillan v. Dana, 18 Cal. 339. 40. Delivery and Release.— It must be averred that the property was delivered or released: Palmer v. Melvin, 6 Cal. 651; Williamson v. Blattan, 9 Id. 500. 41. Demand — No demand need be averred where judgment was returned unsatisfied: Bowdoin v. Coleman, 3 Abb. Pr. 431; Slacks. Heath, 1 Id. 331. 42. Facts Authorizing Issue of Process. — The complaint need not aver that it was taken in pursuance of the statute. It is enough that the in- strument set forth is in accordance with the statute : McMillan v. Dana, 18 Cal. 339; Skaw v. Tobias, 3 N. Y. 188; Gregory v. Levy, 12 Barb. 610. 43. Interest A^varded. — Upon an undertaking given in an action of claim and delivery, for the payment of a fixed 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: Emerson v. Booth, 51 Barb. 40. 44. 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: City of Sacramento v. Dunlap, 14 Cal. 421. 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: Id. 45. Judgment in the Alternative. — The complaint should show that judgment was rendered in the alternative: Nickerson v. Chalterton, 7 Cal, 568. 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: Id. 46. Liability of Sureties.— Where the plaintiff, in replevin, gives the statutory undertaking, and takes possession of the property in suit, and is afterwards nonsuited, and judgment entered against him for the return of the property and for costs : Held, that his sureties are liable for damages sus- tained by defendant, by reason of a failure to return the goods, but not for 538 UPON UNDEKTAKINGS, BONDS, ETC. damages for the original taking and detention — the value of the goods not having been found by the jury: Ginica v. Atwood, 8 Gal. 446. If an under- taking in an action in replevin commenced in a justice's court limits the lia- bility of the persons who execute it to a judgment for the return of the prop- erty rendered by the justice, and such judgment is not rendered in the justice's court, a recovery cannot be had upon the undertaking, even if, on appeal, such judgment is rendered by the county court: Mitchum v. Stanton, 49 Cal. 302. Otherwise, if the statutory form of the undertaking is followed: Id. A judgment in favor of the defendant which does not award him » re- turn of the property, does not impose any liability upon the sureties: Id. 47. 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 allegation that it corresponds with the provisions of such statute, is defective : Mills v. Gleason, 21 Cal. 274. The material por- tions of the undertaking should be Set forth; but it will be at most only a defect of form, and objection must be taken by demurrer: Id. As to man- ner of pleading iu such oases, consult Bowdoin v. Coleman, 3 Abb. Pr. 431; Slack V. Heath, 1 Id. 331; Rayner v. Clark, 7 Barb. 581; Loomis v. Brown, 16 Id. 325; Gregory v. Levy, 12 Id. 610; Gould v. Warner, 3 Wend. 54; Phillips V. Price, 3 Maule & S. 180; 1 Bos. & P. 381, n. 48. Value of Property. — The complaint does not state facts sufficient to constitute a cause of action, unless it aver that the value of the property was found by the jury, and that an alternative judgment was rendered: Clary v. Holland, 24 Cal. 147. No. SIZ. viii. On an Undertalcing Given in Injunction. [Title. J The plaintiff complains, and alleges : I. That on the day of , 187., in an action brought by C. D. against this plaintiff, an injunction, issued out of this Court, was served on this plaintiff, enjoining him from [state effect of the injunction]. II. That upon the issuing of the said injunction, the de- fendants gave an undertaking required by section five hun- dred and twenty-nine of the Code of Civil Procedure [or by law], of which the following is a copy [copy of under- taking]. III. That such proceedings were had in the said action that it was finally decided by the Court, and thereby ad- judged, that the said CD. was not entitled to the said in- junction. IV. That the damages sustained by this plaintiff, by rea- son 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 of JudgmenW] UPON UNDERTAKINGS, BONDS, ETC. 539 49. Damages. — Where an ofSoer is enjoined from paying over money in his hands, legal interest only can be recovered as damages for its detention, in an action on the injunction bond: Lally v.Wise, 28 Cal. 539. To recover damages for the wrongful issuing 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 as part of the damages: Thaie v. Quan, 3 Cal. 216. So held also when an order to show cause why injunction should not issue was made, though the fee was paid after the return of the order to show cause, provided the retainer was before that date: Prader v. Onm, 13 Cal. 585. 50. 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 in- junction by any competent court, and the complaint did not aver that any damages had been awarded: Beld, that such complaint is fatally defective : Tarpey v. Shiilenberger, 10 Cal. 390. 51. 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. commenced an action against H,, L. and others to enjoin M. from paying the money to L., and procured a prelimi- nary injunction, which was served on M. alone, but L. appeared in the ac- tion and defended. The injunction bond ran to all the defendants: Eeld, thatL. could maintain an action for damages on the injunction bond: Lally T. Wise, 28 Cal. 539. 52. Obedience to Injunction. — Mere obedience upon notice of issu- ance of injunction, is sufficient, if alleged: Cumberland Coal and Iron Co. v. Hoffman Steam Coal Co., 15 Abb. Pr. 78. 53. Service of Injunction. — An allegation that injunction was served imports a legal service: Loomis v. Brown, 16 Barb. 325. 54. Statement of Tried on Injunction It is sufficient to allege that an injunction was granted by a court or judge, that issues were joined and judgment rendered: Loomis t. Brovn%, 16 Barb. 325. 55. "Who may Join. — All obligees on an injunction bond may join as plaintiffs, whether their several claims be similar or not : Loomis v. Brovm, 16 Barb. 325. No. SIS. ix. On a Bond or Undertaking, Co7idition only Set Forth. ' [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., the de- fendant 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 thereunder 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 of Judgment.'] 540 UP.ON UNDERTAKINGS, BONDS, ETC. 56. Breach of Condition — The Basis of the Action — The breach of the conditions of a penal bond constitutes, in fact, the basis of the plaint- iff's action, and it should be assigned with certainty and particularity, so as to show the injury: Campbell v. Strong, Hempst. 265; Dixon v. United States, 1 Brook. Marsh. 177; Postmaster-Oeneral v. Cross, 4 Wash. C. Ct. 326. In gen- eral, it is sufficient to allege the breach in the terms of the condition of the bond: Berger v. Williams, 4 McLean, 577; Gorman v. Lenox, 15 Pet. 115; see note 59. 57. Notice — Notice to the representative and a demand upon him, are not always essential: People v. Bowland, 5 Barb. 449. It is not necessary to aver notice to the sureties, nor to state who was the applicant for the order for prosecution: People v. Falconer, 2 Sandf. 81. 58. Parties. — In an action on a bond or written undertaking, there can be no constructive parties jointly liable with the proper obligors: Lindsay v. Flint, 4 Cal. 88. 59. Penal Bonds In actions on penal bonds, the complaint must spe- cifically assign the breaches for which tbe action is brought: Baker v. Corn- wall, 4 Cal. 15; Munro v. Alaire, 2 Cai. 319; 1 Bibb. 242; Burnett v. Wylie, Hempst. 197; and see Hazel v. Waters, 3 CranchC. Ct. 682; Western Bank v. Sherwood, 29 Barb. 383: e. g., on a bond conditioned that a third party shall pay on a certain contingency or on demand, or for an uncertain sum, breaches must be assigned: Nelson v. Bostwick, 5 Hill, 37. Also a bond given on a plea of title before a j ustice : Patterson v. Parker, 2 Id. 598. But not a bond payable in money by installments: Harmon v. Dedrick, 3 Barb. 192; Spaulding v. Millard, 17 Wend. 331. Nor to bonds payable in money only, which may be brought under actions on written instruments. No. 314. X. On Arbitration Bond — Refusal to Comply with Award. [Title.] The plaintiff complains, and alleges : I. That in consideration of certain questions in difference between plaintiff and defendant, and of a certain bond exe- cuted by this plaintiff to the defendant, the defendant, on the .... day of , 187 . , at , made and delivered to the plaintiff an undertaking, conditioned to abide the award of upon said question of dif- ference; a copy of which undertaking is hereto annexed, marked "Exhibit A." II. That said undertook the arbitration thereof, on the .... day of , 187 . , at , and duly published their award in writing upon the matter submitted, and delivered the same to the parties, and thereby awarded that the defendant should [state terms of the award], a copy of which award is hereto annexed as a part of this complaint, marked "Exhibit B." UPON UNDERTAKINGS, BONDS, ETC. 541 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 ,187., notice of said award was given to the defendant. V. That the defendant has not [state the breach]. [_Demand of Judgment.^ [_Annex Copies of Exhibits "A" and "5."] 60. Assignment of Breach for Revoking Arbitrator's Fewer. — That thereafter, and before the matters aforesaid were finally passed upon by said arbitrator, the defendants, by ■writing under their hands and seals, delivered to revoked the powers of the arbitrators, and notified said that they would not abide by the award of said arbitration. Where defendant revoked the arbitrator's powers before the submission was actually made a rule of court, the plaintiff should assign the revocation as a breach — not the non-performance of the award: Frets v. Frets, 1 Cow. 335; William v. Maden, 9 Wend. 2i0. 61. Award 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 give security for its payment, an action lies upon the arbitration bond, upon the refusal to give security, without waiting till the time of payment: Bayne v. Morris, 1 Wall. 97. 62. Form. — For authorities upon forms of complaints in such actions, see Myers v. DUeon, 2 Hall, 456; McEinsiry v. Solomons, 2 Johns. 57; 13 Id. 27. No. S15. si. On a Bond for the Faithful Accounting of an Agent. [Title.] The plaintiff complains, and alleges: I. That on the day of , 187 . , 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] intrusted to him, and should faithfully pay over all moneys collected by him under the authority of said agreement. II. That in consideration of said agreement, the defend- ant made and delivered to the plaintiff an undertaking in writing, under his hand and seal, conditioned to the faith- ful performance by said A. B. of the terms of said agree- ment on his part; a copy of which undertaking is hereto annexed, marked "Exhibit A." III. That thereafter the said A. B. did solicit, collect, 542 UPON UNDERTAKINGS, BONDS, ETC, and receive divers sums of money, in the course of his em- ployment 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 , 187., at , the plaintiff requested the said A. B. to account for and pay over to this plaintiff such sums, and thereupon demanded payment from him of the same, according to the terms of said undertaking. V. That no part thereof has been paid. \_Deinand of Judgment.'] \_Annex copy of "Exhibit A."] 63. Request. — Request is a condition precedent in a bond to account on request: Davis v. Gary, 15 Q. B. 418; S. 0. 69 Eng. Com. L. E. 416. 64. Sale and Accounting. — A sale must be averred, with a refusal to account therefor : Wolfe v. Luyster, 1 Hall, 146. No. 316. xii. On a Bond for the Fidelity of a Clerk. [Title.] The plaintiff complains, and alleges: I. That on the day of , 187 . , 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 property 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. II. That between the day of , 187., and the day of , 187 . , the said A. B. received moneys and other property, amounting to the value of . . . . dollars, for the use of the plaintiff, for which he has not accounted to him. IDemand of Judgment.'] 65. Application of Bond — Such a bond applies to the honesty of the clerk, and not to his ability, and the sureties are not responsible for loss arising from a mere mistake: Union Bankv. Olossey, 10 Johns. 271; imless the clerk conceals deficieneieii, and for this purpose makes false entries in the books: Id. 66. Consideration. — Appointment to ofSoe and its emoluments is a suffi- UPON UNDERTAKINGS, BONDS, ETC. 543 oient consideration to suppoH the obligation of sureties for fidelity : United States V. Livn, 15 Pel. 290. 67. Faithful Discharge of Duties In a suit on a bond to secure faith- ful performance of various duties of secretary 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 : Held, sufacient: Jaclcson v. Rundktt, 1 Woodb. & M. 381. Where an inhab- itant of a town acted as justice of the peace, and gave a bond with sureties for the faithful discharge of his duties as justice, the fact that no law re- quired him to give bond would not affect the validity of the instrument as a common law obligation: WiUiamson v. Woolf, 37 Ala. 298. No. 317. xiii. On an Official Bond. [Title.] The plaintiff complains, and alleges: I. That the defendant, on the day of , 187 . , at , made and delivered his bond or writing obliga- tory, sealed with his seal, of which the following is a copy [copy bond]. II. [Set forth breach.] l^Semand of Judgment. "[ 68. Allegation of Breach — for Neglect of Sheriff to Levy That said sheriff did not execute said process, but although 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. 69. Allegation of Breach— for Neglect to sell after Levy. — That the said sheriff, by virtue thereof, on the day of levied on the goods of said A. B., of the value of dollars; but he neglected to ad- vertise and sell the goods so levied on by him as aforesaid, and no part of the moneys directed to be collected on the relator's said execution has been received by the relator: People v. Ten Eyck, 13 Wend. 448. This form may be used where writ was delivered to the deputy: See post, note 77. 70. Allegation of Breach— for Neglect to Return 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 return of said execution, and no part of the moneys directed to be collected thereby has been received by the relator. 71. Allegation of Breach of Treasurer's Bond. — That said treasurer, between the day of , and the day 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 ], and that he fraudulently, and in breach of his trust, converted and appropriated to his own use said sum. Where the condition of a treasurer's bond was, that he "should keep a separate account in the bank of A., as such treasurer, of all moneys," etc. : Held, that a breach might be assigned by negativing the 544 UPON UNDERTAKINGS, BONDS, ETC. words of the condition, though only nominal damages could be recovered under it; Albany Dutch Church v. Vedder, 14 Wend. 165. 72. Bond OfBcial. — 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 vio- lence of amob: Held, on motion in arrest of judgment, that the delaration did not show a cause of action: South v. Maryland, 18 How. U. S. 396. 73. Breach must be Assigned. — In a declaration upon a covenant for general performance of duty, if no breach be assigned, or a breach which is bad, as not being, in point of law, within the scope of the covenant, the de- fect is fatal, even after verdict: Minor v. Mechanics' Bank of Alexandria, 1 Pet. 46, 67; compare Snow v. Johnson, 1 Minn. 48. 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 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; the declaration did not set forth a sufficient cause of action against the sheriff and his sureties: South V. State of Maryland, 18 How. U. S. 396. 74. Change of Parties on Bond. —Where the principal causes his name to be stricken from a bond without their knowledge or consent, it is void as against the sureties: 9 Wheat. 702; 6 Mass. 521; Martiny. Thomas, 24 How. U. S. 315. But the name of an obligor may be erased and a new obligor inserted, by consent of all parties, without making the bond void: Speak V. United States, 9 Cranch, 28. The question whether the addition of a surety, without the knowledge of the former surety, avoids the bond, was raised in O'Neal v. Long, 4 Cranch, 60. 75. Collector's Bond.— The district attorney of a county has the au- thority, of his own volition, with or without instructions 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: People v. Love, 25 Cal. 520. In an action of covenant 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. The breach assigned must be the non-payment of the penalty : United States v. Brown, 1 Paine, 422. All the money due on a tax collector's bond may be recov- ered 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 : People V. Love, 25 Cal. 520. 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: Id. The securities on the official bond of a sheriff and ex officio collector of the revenue are liable for an act of the latter in collecting an assessment of taxes on property not subject to taxation: Stale v. Sliacklett, 37 Mo. 280. 76. Constable An action on the official bond of a constable lies prima- rily 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 nonfeasance or misfeas- ance of the officer: Van Felt v. Littler, 14 Cal. 194. In an action against UPON UNDEBTAKINGS, BONDS, ETO. 645 siTreties on a constable's bond, in addition to the allegation that the officer did not leyy the amount of an execution, or take the body of the defendant, it must be alleged that defendant had property which might have been levied upon, or that his body could have been found: Lawton v. Irwin, 9 Wend. 233. 77. Constable's Deputy. — In the absence of statutory provisions as to the appointment of deputies by constables, the common law rule applies, and constables may act by deputy, in the exercise of their ministerial func- tions: Jdbson V. Fennell, 35 Gal. 711. . 78. 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: Sacramento Go. v. Bird, 31 Gal. 66. 79. County Assessor. — In suit upon the official bond of a County As- sessor, who had received a certificate of election, given bond, and entered upon his duties, neither the principal nor the sureties can deny the official character of the assessor. They are estopped by the bond : People v . Jen- kins, 17 Gal. 500. 80. 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 principal remained in his hands at the time when the surety bond was executed: Uniied States v. Zinn, I How. U. S. 104. 81. 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: Sacramento Co. v. Bird, 31 Gal. 66. 82. Delivery In suit on a bond, delivery [must be alleged; but the omission to allege it can only be taken advantage of by demurrer; it is cured by verdict: Garcia v. Satrustegui, 4 Gal. 244. The production of the bond in coui't by the obligee, is sufficient evidence of its delivery: Tidball v. Hal- ley, 48 Gal. 610. 83. Sseoutiou of Bonds.— If the complaint on an official bond avers the due execution of the same by both principal 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 : Mendocino Co, v. Morris, 32 Gal. 145. If sureties on an official bond sign with an express understanding with the principal in the bond, that certain other persons shall sign as sure- ties, and that unless such other persons sign, it shall not be delivered, a de- livery of the bond to the obligee, without the signature of such other per- sons, does not render it invalid as to the sureties who do sign : Tidball v. Sal- Uy, 48 Gal. 610. 84. For Selling Homestead. — A complaint againt u, sheriff and his sureties for selling under execution the homestead of plaintiff, which sets out that the sheriff was in possession of a certain execution against the plaint- iff, Kichard Koe, under which he sold the property, and averring damages in the sum of $2,000, the value of the property, is insufficient, as the same does not state facts sufficient to constitute a cause of action, for the sheriff's deed 33 546 UPON UNDERTAKINGS, BONBS, ETC. conveys nothing if the property was a homestead: Kendall v. Clark, 10 Cal. 18. 85. 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 defalca- tion or of recovery and costs: People v. Booney, 29 Cal. 642. A judgment for damages against an officer for official delinquency which remains unsatisfied will not prevent a subsequent action on the official bond: State v. Krutt- schnitt, i Nev. Rep. 178. 86. Liabilities of Obligors. — After a bond has been received and acted on by the county offi cers, 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 new duties belonging to a distinct office, with the execution of which he may be charged: People v. Edwards, 9 Cal. 286. 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: People v. Kneeland, 31 Cal. 288. The liability is several as well as joint, unless expressed to be only joint, and the plaintiff may sue one or both sureties: Morange v. Mudge, 6 Abb. Pr. 243. The sureties on a sheriff's bond are not liable for his acts or omissions in the service of a precept which by law he was not authorized to serve: Dane v. Gillmore, 51 Me. 544. 87. Marshal's Bond. — In an action on a marshal's bond, it is not neces- sary to aver that the penalty has not been paid. The usual averment of the breach of the condition is sufficient: Sperringy. Taylor, 2 McLean, 362; com- pare Hazle V. Waters, 3 Craneh, C. Ct. 420. To an action on a marshal's bond, for taking insufficient security on a replevin bond, a plea in bar that a levy was made ou goods, and chattels, lands and tenements, sufficient to sat- isfy the judgment, is good: Sedam v. Taylor, 3 McLean, 547. 88. Ministerial Duties. — It is only for a breach of his duty in the exe- cution of his ministerial offices, that the sheriff and his sureties are liable upon his bond : South v. Maryland, 18 How. V. S. 396. He should not bo required to come prepared to justify his whole official conduct: Peoples. Brush, 6 Wend. 454; People v. Russell, 4 Id. 570. 89. Misjoinder of Causes of Action. — A cause of action on an offi- cial bond against the principal and his sureties, cannot be united with a cause of action for damages against the principal alone: State v. Eruttschnitt, 4 Nev. Eep. 178. 90. 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 : People V. Brush, 6 Wend. 454. 91. Notice — No averment of notice to the defendant is requisite in the complaint, where the matters assigned as breaches lie as much in the knowl- edge of one party as the other : People v. Edwards, 9 Cal. 292 ; see Tomlinson v. Eowe, Hill & D. Hupp. 410. 92. 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 UPON UNDEETAKINGS, BONDS, ETC. 547 omits to show the receipt of the money after the date of the bond, and be- fore the expiration of his official term: United States v. Spencer, 2 McLean, 405. A declaration which charged a rooeiTer of public moneys with not pay- ing over moneys which came into his hands the day after his bond expired: Held, bad on demurrer: Id. 93. 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: Supervisors of Allegany V. Van Campen, 3 Wend. 48. 94. 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 cannot be had for a failure of the treasurer to pay into the treasury his commissions retained on pay- ments made to the State: Sacramento County v. Bird, 31 Cal. 66. 95. Retaining Money. — An averment in a complaint on » county treas- urer's official bond that he received money belonging to the county and re- tains it, and refuses to deliver it to his successor in office, is a sufficient aver- ment of a breach of its conditions: Mendocino County v. Morris, 32 Cal. 145. 96. Treasurer's Bond. — A complaint in an action against a treasurer, for a failure to pay to his successor money which came into his hands, should allege that it remained in his hands at the expiration of his term : Pickett v. State, 24 Ind. 366. And where the treasurer 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: Jefferson County v. Jones, 19 Wis. 51. The liability of the sureties continues till he has rendered a just and true account of such mon- eys: Id. 97 . Trespass . — A complaint in an action against a sheriff and his sure- ties, 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 the sheriff's malfeasance: Ghirardelli v. Bowland, 32 Cal. 585. In trespass for taking 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 attachment, 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. " Whereuppn plaintiff moved to strike out his testimony on the ground of interest : Seld, that the motion was properly de- nied, as from the answer it was not certain that the character of his bonds was such as to make him interested: Towdy v. Ellis, 22 Cal. 650. 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 causes of action: Ghirardelli v. Bourland, 32 Cal. 585. 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: Id. In an action on a replevin bond, the defendant's liability is limited to the damage sustained by a failure to return the property: Runt v. liobinson, 11 Cal. 262. 548 ON WABBANTIES OF CHATTELS. CHAPTEE X. ON WABBANTIES OF CHATTELS. No. S18. i. Warranty of Title. [TiTlE.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant sold to the plaintiff [state the articles sold], for dollars. II. That by said contract of sale it was understood by the plaintiff and defendant to be, and it was a part of the terms and consideration of said contract of sale, that the defend- ant had the lawful right and title to 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 B. F. then was the owner of said goods, and afterwards, on the day of , 187 . , he demanded possession of the same from the plaintiff; and the plaintiff was compelled, 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 mis- led and inj ared, to his damage dollars. [Demand of Judgment.'] Note. — For the provisions of the Civil Code relating to warranty of chattels, see sees. 1763-1778. 1. Auctioneer. — There seems to be a doubt whether in an ordinary sale of goods by auction, an auctioneer has any right or authority to warrant goods sold by him, in the absence of any express authority from his prin- cipal to do so, and without proof of some known and established usage of trade from which an authority can be implied : See Upton v. Suffolk Co. Mills, XX Cush. (Mass.) 589; Blood v. Frenoh, 9 Gray, 197. It may be accepted generally as the tme doctrine that they are special agents having authority only to sell, and not to warrant: The Monte Allegre, 9 Wheat. 616, 647; see Vent T. McCfrath, 3 Bush. (Ky.) 174; see, also, Civil Code Oal., sees. 1765 and 1798. 2. Effect of General Warranty.— A general warranty does not extend to defects inconsistent therewith, of which the buyer was then aware, or which were then easily discernible by him without the exercise of peculiar skill, but it extends to all other defects: Civil Code Oal., sec. 1778. 3. Implied Warranty of Title. — Where the vendor of chattels in his possession gives a written bill of sale containing no covenant of warranty, ON WAEEANTIES OF CHATTELS. 549 there is an implied warranty of title: MiUer v. Van Tassel, 24 Cal. 458; Gross 9. Kierski, 41 Id. 111. The vendor in possession warrants the goods by im- plication; unless at the time he expressly disavows an intent to do so: Miller V. Van Tassel, supra; Bew v. Barber, 3 Cow. 272. But if out of the posses- sion of the vendor, in the absence of fraud, the buyer takes at his own risk : 3 Kent (5 Ed.) 478; McCoys. Artcher, 3 Barb. 323; Bdick v. Cnm, 10 Id. 445. The use of a certain name in a sale note for the goods sold, is a war- ranty that they bear that name: Flint v. Lyon, 4 Cal. 17. The complaint need not aver the warranty, for this implied warranty is an inference of law: Van Santv. on PI. 287. 4. Judicial Sale. — Upon a judicial sale, the only warranty implied is that the seller does not know that the sale will not pass a good title to the property: Civil Code Cal., sec. 1777. 5. Measure of Damages. — In an action upon an implied 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 re- covered by the true owner with interest thereon: Blasdale v. Saboook, 1 Johns. 517; Armstrong v. Percy, 5 Wend. 535. But where the goods are re- plevied of the buyer, its value alone, and not damages for its detention, nor attorneys' fees paid by him for defending the title, is held to be the measure of damages: Id.; but see Lewis v. Peake, 7 Taunt. 152; see, also, Polhemiis V. Herman, 45 Cal. 573. 6. Money. — On an exchange of money, each party thereby warrants the genuineness of the money given by him: Civil Code Cal. sec. 1807. 7. Skill — Implied 'Warranty of. — When u 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: 5 Kobinson's Pr. 707. 8. Waiver of Warranty The complaint in an action to recover the price of a machine, sold with a warranty, under an agreement that the con- tinued 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 : Bragg v. Bamberger, 23 Ind. 198. 9. Warranty of Title. — If the seller has possession of the article, and sells it as bis own and not as agent for another, and for a fair price, he is understood to warrant the title: 2 Kent's Com. 478. In New York, a war- ranty of title is implied from an unqualified sale: Carman v. Trude, 25 How. Pr. 44'0; Scranton r. Clark, 39 Barb. 273; and see Sweetman v. Prince, 26 N. Y. 224. And it extends to the right to the use of the thing sold, e. g,, a patented article: Carman y. Trude, 25 How. Pr. 440. But it arises only in cases where the vendor is in possession: Scranton v. Clark, 39 Barb. 273. In every sale of personal property, except a judicial sale, there is implied war- ranty of title or of peaceable possession: Porte v. United States, Dev. 57; see Puckett V. United States, Id. 103; see Civil Code, sec. 1765; Choss v. Kierski, 41 Cal. 111. 10. 'Warranty by Agent. — An agent, whether general or special, who is authorized to sell personal property, is presumed to possess the power of warranting its quality and condition, unless the contrary appear: Nelson v. Cowing, 6 Hill, 336; Tice v. Gallop, 5 N. Y. (S. C.) 51; Palmer v. Batch, 46 Mo. 585; see Bryant v. Moore, 26 Me. 84. So an agent, employed to sell 550 ON WAEBANTIES OF CHATTELS. negotiable paper, may, in the absence of any limitation of his authority, represent it as a business note and valid: Ferguson ^r. Hamilton, 35 Barb. 427, 4i2; Fenn v. Harrison, i T. K. 177; but see Lipscomb v. Mttrell, 11 Humph. 256. 11. Warranty, 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 there- to, where that is material, the extinction of its obligations, or its invalidity for any cause: Civil Code Cal., sec. 1774. 12. Warranty by Seller. — One who sells 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: Civil Code Cal., sec. 1707. Jfo. 319. ii. On Warranty of Quality. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , 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. [_ Demand Of Judgment. J 13. 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 unsound- ness and consequent rescission of sale, does not require assignment of a special breach, within the meaning of the code : Stone v. Watson, 37 Ala. 279. 14. Averment of Warranty. — A general averment of warranty is suffi- cient, as that the seller warranted the article to be of good quality: Hoe v. Sanborn, 21 N. Y. 552. 15. Caveat emptor. — That the buyer must take care or be on his guard (Hob. 99; Co. Litt. 106, a; 2 lust. 714; Broom's Max. 605), is a lead- ing maxim of the law relating to the contract of sale; and its application is not affected by the circumstance that the price is such as is usually given for a sound commodity: 2 Steph. Com. 326; Cro. Jao. 2; 1 Seld. 88; 2 Wood's Lect. 251; 2 Kent's Com. 478; 1 Story's Eq. Jur. 212. 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 vendee when they are delivered, does not amount to a waiver of the contract: Willings v. Consequa, Pet. C. Ct. 301. As to warranty on the sale of chattels, see sees. 1763-1786, inclusive. Civ. Code Cal. ON WARRANTIES OP CHATTELS. 551 16. 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 assumpsit, 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 occurred, and in the latter, that the defendant falsely or fraudulently represented him- self to be the owner of the property, and that he knew his representations were false: Miller v. Van Tassel, 24 Gal. 458; Polhemus v. Berman, 45 Id. 573. 17. Damages, Measure of.— When the vendor of personal prbperty is sued for a failure of title, the measure of damages is the price paid by the plaintiff: Arthur v. Moss, 1 Or. 193. 18. 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: PeckY. Armstrong, 38 Barb. 215; and see Rook v. Handy, 41 Id. 454. A contract to deliver to the defendants, who were manufacturers of barrels and staves, a certain quality of stave bolts, was held to require a delivery of bolts of a good merchantable quality, and suitable for the pur- poses for which they were intended: Ketchum v. Wells, 19 Wis. 25. A con- tract for the sale of ' ' oxalic acid, ' ' even when the seller is not the manufac- turer, 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 complied with by the delivery of an article which does not in commercial language come properly within the description of " oxalic acid:" Josling v. Kingsford, 13 C. B. (N. S.) 447. 19. Fraud need not be Alleged. — No averment of knowledge of fraud is necessary to support this action: Molman v. Dord, 12 Barb. 336; William- son V. Allison, 2 East, 446. Such an allegation sounds in tort: Id. And if inserted in the complaint {Edick v. Crim, 10 Barb. 445), the plaintiff may be compelled to elect on the trial between the two grounds of liability : Spring- steed v. Lawson, 14 Abb. Pr. 328; Sweet v. Ingerson, 12 How. Pr. 331. 20. 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: MUburn v. Belloni, 34 Barb. 607. In every agreement for the future sale of merchandise, there is an implied warranty that it shall be mer- chantable: Hamilton v. Ganyard, 34 Barb. 204; Civ. Code, sec. 1768. So, when one sells an article of his own manufacture, there is an implied war- ranty that the article is free from any defect produced by the manufacturing process itself; and where the defect is in the materials employed, the war- ranty is implied only where he is shown or may be presumed to have known the defect: Eoe v. Sanborn, 21 N. Y. 552; Civ. Code, sec. 1769. 21. 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: Deifendorf v. Oage, 7 Barb. 18. 22. Sale by Sample.— On a sale by sample there is an implied warranty that the article shall correspond with the sample; but an examination of samples, when there is an express warranty, is not a waiver of the warranty: WUHngs v. Consequa, Pet. C. Ct. 301. The law presumes that the only war- 552 ON WAEBANTIES OF CHATTELS. ranty is that the bulk shall conform to the sample in kind and quality: Bams- dell V. United States, 2 Ct. of C. E. (Nott & H.) 508. 23. Warranty of Quality. — No particular form of words is essential to constitute a warranty of quality. An assertion of the vendor, if relied upon by the vendee, and understood by both parties as an absolute assertion and not merely an expression of opinion, will amount to one: Pollwrnus v. Ber- man, 45 Gal. 573; 24 Barb. 549; 19 Johns. 290; 6 Barb. 557; Wilbur v. Cart- right, 44 Id. 536. Where the plaintiflf inspects the goods before purchasing, the case is taken from the operation of the rule of implied warranty: Moore V. McSlnlay, 5 Gal. 471. The grounds and principles upon which warranties of title, of quality, etc., are implied, considered in Boe v. Sanborn, 21 N. Y. 552. An advertisement of goods for sale, giving them a higher character than upon examination they turn out to merit, will not amount to a war- ranty, where the purchaser relies upon his own inspection: Calhoun v. Vechio, 3 Wash. C. Gt. 165; McVeigh y. Messersmith, 5 Cranch C. Ct. 316. 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 opportunity to examine it and fails to do so, and no artiiiee is used by the seller to prevent him from making an exam- ination: Byrne \. Jansen, 50 Gal. 624. If one party contracts to deliver to 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: Polhemus v. Beiman, 50 Cal. 438. m. SSO. iii. On Warranty of Soundness. [TlTLK.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant sold to the plaintiff a horse, for dollars. II. That by the said contract of sale the defendant war- ranted th« said horse to be sound, and thereby induced the plaintiff to purchase the same of him, and to pay him there- for the said price of dollars. III. That the said horse was at the time of said sale un- sound 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 Judgment.'] 24. Duty of Purchaser. — A purchaser cannot proceed withotit inquiry or examination, and 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 respon- sible for the consequences: Milburn v. Belloni, 34 Barb. 607. 25. Measure of Damages. — The plaintiff may recover the difference be- tween the value of the chattel as warranted and as found to be by the court or jury, and special damages for injuries occasioned by the condition of the chattel: Jeffrey v. Bigelow, 13 Wend. 518. ON WAEEANTIES OF CHATTELS. 553 26. Special Damages. — Special damages for injurie.'! occasioned by the condition of the chattel must be averred, as the communication of infectious diseases by an animal warranted sound: Jeffrey v. Bigelow, 13 Wend. 518. 27. That Plaintiff Kelied on Warranty A complaint which alleges that plaintiff purchased of defendant twenty-seven he.id of hogs; that de- fendant represented them to be sound and healthy; that the plaintiff relied upon said representations, having no opportunity by ordinary diligence to discover that the same were not true ; that in fact they were diseased and un- healthy, being then infected with hog cholera, and known to be so by the de- fendant, and that afterwards twenty-five of them died of that disease, is good on demurrer: Baker v. McGinniss, 22 Ind. 257. 28. That Plain tifi ■was Misled. — The complaint must aver that the plaintiff was actually misled by reason of the warranty: Holman v. Dord, 12 Barb. 336; Oneida Manufacturing Society v. Lawrence, 4 Cow. 440. 29. 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: Chitt. on Contr. 456; Pars. Merc. Law, 57; 20 Eng. C. L. K. 269; Birdseye v. Frost, 34 Barb. 367. A mere cold controllable by ordinary remedies, not affecting the general health or usefulness of a horse, is not an unsoundness: Springsteed v. Lawson, 14 Abb. Pr. 328; 23 How. Pr. 302. A guaranty that the article should pass in- spection is nothing more than the usual warranty of the soundness and quality of the thing sold: Gibson v. Stevens, 8 How. TJ. S. 384. 30. Rights in Case of Breach. — The breach of a warranty 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 : Civil Code Cal., sec. 1786. 2^0. sn. iv. On a Warranty of a Judgment. [Title. ] Tlie plaintiff complains, and alleges : I. That on the day of , 187 . , the defendant, for a valuable consideration, assigned to this plaintiff a judgment which on the .... day of , 187 . , he re- covered in the District Court of the Judicial District, 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 judgment had been paid in full to the defendant, and no part thereof was or now is due thereon. IV. That by means of the premises this plaintiff was mis- led and injured, to his damage dollars. ^Demand of Judgment.'] 554 ON WARRANTIES OF CHATTELS. No. sn. V. On a Warranty of a Note. [TlTlE.] The plaintiff complains, and alleges : I. That on the day of , 187., the de- fendant offered to pass to the plaintiff, for a valuable con- sideration, 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, pur- chased 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 reson of the premises the plaintiff was in- jured and misled, to his damage dollars. [Demand of Judgmeni.} COMPLAINTS— Subdivision Fifth. For Damages upon Wrongs. PART FIRST— FOR INJURIES TO THE PERSON. CHAPTEE I. FOB ASSAULT AND BATTERY. No. SS3. i. Common Form. [Title.] The plaintiff complains, and alleges : I. That on the day of 187., the defend- ant violently assaulted the plaintiff, and struck him [state where] several blows, and also tore the clothes from the plaintiff's person [describe the violence used, and its con- sequences] ; to his damage dollars. Wherefore the plaintiff demands judgment for dollars, his damages aforesaid. 1. Abatement of Action Actions for assault and battery can only be brought in the name of the party immediately injured, and if he die the remedy determines: 1 Chitt. PI. 60. This is the rule at common law, but is changed by the statutes of many of the States. And for injuries commit- ted on the wife by battery, husband and wife must join ; and if she die before judgment the suit abates: 1 Chitt. 73. But if the wife dies after judgment, the judgment survives to the husband: 12 Serg. & Eawle, 76. 2. Assault Defined. — An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another: Pen. Code, sec. 240. 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: Johnson v. Tompldns, 1 Bald. 571, 600. 3. Assault — Instances. — Striking at a person with the hand or with a stick, or by shaking 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: United States v. Ortega, i Wash. C. Ct. 534; United States v. Band, 2 Wash. 0. Ot. 435. The drawing 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: People v. MeMaHn, 8 Cal. 547. Cocking and raising a gun, and threatening to shoot a person, when the act indicates an intention to shoot: United States v. EMrman, 3 Cranoh, 0. Ct. 435. Or raising 556 FOR ASSAULT AND BATTERY. a club over the head of « woman within striking distance, and threat- ening to strike her if she opens her mouth, are assaults: United States T. Richardson, 5 Cranch C. Ct. 348. To double the fistjandrun it at another, saying: "If you do that again I will knock you down:" United States v. Myers, 1 Cranch C. Ct. 310. 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 battery: United States v. Ortega, 4 Wash. C. Ct. 534. 4. Assault and Slander. — A plaintiff may aver in his complaint all that took place at the time, though a part constitute an assault, and part a slander, and recover damages which he has sustained, for the compound injury: Brewer v. Temple, 15 How. Pr. 286. 5. 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 prevent injury, and it ensued from the wrongful act of the defendant: Heady v. Woocf, 6 Ind. 82. 6. Battery Defined. — A battery is any willful and unlawful use of force or violence upon the person of another: Pen. Code, sec. 242. A battery is the touching or commission of any actual violence on the person of another in a rude and angry manner: Johnson v. Tompkins, 1 Bald. 571, 600. 7. Damages. — In cases of aggravated assaults, the jury are permitted to give exemplary or punitive damages; Drohn v. Brewer, 77 111. 280; 33 Mich. 49; WUsony. Middleton, 2 Cal. 54; Wade v. Thayer, 40 Id. 578; see, also, 36 Id. 590; 44 Id. 414. An employer, though not present, and in no manner consenting to or aiding the assault, is liable for the actual damage sustained in an assault upon the person, committed by his servants or employees, while in the performance of their duties as such: Wade v. Thayer, 40 Cal. 578. 8. Malice — The language of the defendant while committing the assault is admissible in evidence, for the purpose of characterizing the act as bear- ing on the question of malice: McDougall v. Maguire, 35 Cal. 274. 9. Married Woman, Allegation of Assault by. — That on the day of 187., the defendant, C. E., she being then, as now, the wife of the defendant E. F. [continue as in preceding form]. 10. Master of Vessel. — A master or commander 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: Dinsman v. Wilkes, 12 How. TJ. S. 390; compare United States V. Freeman, 4 Mason, 505; Thompson v. Busch, 4 Wash. C. Ct. 338. 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: Roberts v. Eldridge, Sprague, 54; United States V. Colby, Id. 119; United States v. Lent, Id. 311. As to what will jus- tify corporal punishment of seamen, see Morris v. Cornell, 1 Sprague, 62; Fayne v. Allen, Id. 304; Sheridan v. Purbur, 1 Blatchf . & H. 423. 11. Master, -when Liable. — Seamen are generally entitled to recover damages from an assault and battery from the ofSoer of a ship: First. Where a personal violence is inflicted wantonly, and without provocation or cause ; FOB ASSAULT AND BATTERY. 557 Second. Where there was provocation or cause, but the punishment was cruel or excessive; Third. Usually where the punishment is inflicted with a dangerous or deadly weapon: Forbes v. Parsons, Crabbe, 283: compare Dinsman v. WUkes, 12 How. Pr. 390. For' the law governing such liability, see U. S. Kev. Stat, at L., sec. 5347. 12. Principal. — One who is present and encourages an assault and bat- tery is a principal: 2 Comst. 517; 5 Ohio, 250; TJnited States v. Biokets, 1 Cranch C. Ot. 164. 13. Provocation. — No words of provocation will justify an assault, al- though they may constitute a ground for the reduction of damages: Cushman Y. Byan, 1 Story, 91, 14. 'Where Action Lies — Assault and battery will lie against a steam- boat, for an assault and battery committed by the mate or other officer of the boat, on the person of a passenger, while such boat is being navigated on the rivers within or bordering on the State: 28 111. 412. Assault and battery lies for injury to the relative, as for beating, wounding, and impris- oning a wife or servant, by which the plaintiff has sustained a loss: 9 Co. 113; 10 Oo. 130; 1 Chitt. 167. 'When not under the color of process: 11 Mod. 180; 36 Barb. 495. So where the battery, imprisonment, etc., were in the first instance lawful, but unnecessary violence was used: 1 Chitt. PI. 167; 3 Day, 485; 2 Wend. 497; 7 Dana, 453; 15 Mass. 347; 25 Wend. 371. One is guilty of assault and battery who delivers to another a thing to be eaten, knowing that it contains a foreign substance — as here, cantharides — and concealing the fact, if the other, in ignorance of the fact, eats it and is injured in health : Commonwealth v. Siratlon, 114 Mass . 303 . Acts mala pro- hibita do not become mala ire se, unless done willfully and corruptly. One who drives over another in negligence merely, is not rendered guilty of a criminal assault and battery by the fact that he does so while violating a city ordinance against fast driving: Commonwealth v. Adams, 114 Id. 323., 15. 'Willful, Malicious. ^It is not necessary in an action for a simple assault and battery to charge in terms that it was "willful" or "malicious," to entitle the plaintiff to maintain his action: Andrews v. Stone, 10 Minn. 72; see ante, p. 128, note 99. No. SU- ii. The Same — Short Form. [TiaxE.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the defendant assaulted and beat him, to his damage dollars. \_Demand of Judgment.} No. 325. iii. The Same — With Special Damages. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the defendant assaulted and beat the plaintiff until he be- came insensible. 558 FOR ASSAULT AND BATTEEY. II. That tlie plaintiff was thereby disabled from attend- ing to his business 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. XDemand of Judgment.'} No. 3S6. iv. Against a Corporation, for Damages Caused by an Assault and forcible Sjedion from a Car. [Title.] The plaintiff complains, and alleges : I. That at the times hereinafter mentioned, the defend- ant 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 belong- ing, and was a common carrier of passengers from to II. That on the day of , 187., 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 attend- ing to his business for weeks thereafter, and has ever since been disabled from using [his left foot or other- wise], and was compelled to pay dollars for med- ical attendance, to the damage of the plaintiff dollars. [Demand of Judgment.'} 16. Conductor of Car. — The right of a car conductor on a railroad to expel a passenger for non-payment of the fare, muet he 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' ear, the passenger has the same right to repel the attempt that he has to resist a direct attempt to take his life: See Sanford v. Eighth Avenue B. B. Co., 23 N. Y. 343. Although a person may be wrongfully upon the cars, the conductor must use reasonable care and prudence in remoTing him: Kline v. C. P. B. E. Co., 37 Cal. 400. 17. Corporations 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 defendant: Brokaw v. N. J. B. & T. Co., 3 Vroom, 328. 18. Damages In cases of injury to the person from negligence of the conductor of a car, the law does not prescribe any fixed or definite rule of damages, but from necessity leaves their assessment to the good sense and FOB ASSAULT AND BATTEEY. 559 unbiased judgment of the jury: Aldrich v. Palmer, 24 Cal. 513; cited in Wkeaton v. N. B. & M. R. B. Co., 36 Id. 590. 19. Exemplary Damages. — A railroad company may be charged with exemplary damages for injuries done with force or malice to a passenger by » conductor of said company: Baltimore and Ohio E. B. Co., v. Blocker, 27 Md. 277. 20. Master and Servant.— The master is liable for the servant, if he acts within the scope of his authority: Kline v. G. P. B. B. Co., 37 Cal. 400. The relation of conductor on a oar and the company for whom he is acting as conductor is that of master and servant, and the relation being es- tablished, all else is mode and manner, and as to that the master is respon- sible: Klim T. G. P. B. B. Co., Id. 21. 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 : Lovetf Y. Salem and South Danvers B. B. Co., 9 All. (Mass.) 561; cited in Kline v. Central Pacific B. B. Co. of Cal., 37 Cal. 400; where it goes on to state: "We have no doubt that in case a show or demonstration of force sufficient to impress a reasonable person with the belief that it will be employed, must be held to be the equivalent of actual force:" Kline v. C. P. B. B. Co., Id. 22. Mutual Negligence. — 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 cannot excuse himself on the score of mutuality, nor absolve himself from his obligation to exercise reasonable care and prudence in what he may do: KliTie v. C. P. B. B. Co., 37 Cal. 400. So, the entry on a car, if an accomplished 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 observing reasonable care and prudence in putting him off the train: Id. 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 combined 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: Thomas T. Kenyan, 1 Daly, 132. Where negligence exists on both sides, that of the plaintiff must have contributed to the injury, or it will not excuse the de- fendant: Haley v. Earle, 30 N. Y. 208. 23. Removing Trespassers. — A man cannot lawfully push another off from his land, without first requesting him to get off: Thompson v. Berry, 1 Cranch C. Ct. 45. But mechanics in charge of a house which they are building have a right to remove gently persons coming into the building with- out authority, if they will not depart upon request: United Staten v. Bartle, 1 Cranch C. Ct. 236. 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 ejecting a disorderly person employed there: Jisty x. Wilmot, 15 Gray, 168. 560 FOB ASSAULT AND BATTERY. No. 527. V. Assault and False Imprisonment — Short Form. [Title.] The plaintiff complains, and alleges: I. That on the day of , 187 . , the defendant assaulted and beat the plaintiff, and imprisoned him for hours, to his damage dollars. ^Demand of Judgment.'] 24. Arrest. — The oircumstanoes of the arrest should not be set out in the complaint. If so set forth, they may be stricken out upon motion : Sddy V. Beach, 7 Abb. Pr. 17; Sham v. Jayne, i How. Pr. 119. 25. Circumstances. — Allegations of the circumstances in detail on a charge of false imprisonment and assault, in connection with an illegal com- bination and conspiracy, were allowed in a great measure to stand : Molony V. Dows, 15 How. Pr. 261. No. SB8. vi. The Same — Fuller Form. [Title.] The plaintiff complains, and alleges: I. That on the day of , 187., the defendant assaulted the plaintiff, and charged him with [state what offense], and gave him into the custody of a policeman, and forced and compelled him to go to a police-station, and there caused him to be imprisoned, and caused him to be kept in prison for a long time, until he was afterwards brought in custody before one of the police magistrates of , and the defendant then again charged him with the said offense; but the said mag- istrate dismissed the said charge, and caused him to be dis- charged out of custody. II, That the plaintiff thereby suffered damage in the amount of dollars. [ Demand of Judgment. ] FOR FALSE IMPRISONMENT. 561 CHAPTEE II. FOB FALSE IMPRISONMENT. No. 3B9. i. Common Form. [Title.] The plaintiff complains, and alleges : I. That on the day of ,187., at , the defendant imprisoned him for days [or hours, as the case may be], without probable cause. [State spe- cial damages, if any], to the damage of the plaintiff dollars. [Demand of Judgment.'] 1. 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 supposed to have been committed, and of the per- son accused, is not liable to an action for false imprisonment upon the con- sequent arrest of the accused, although such arrest is not warranted by the law or the facts in the case: Von Latham v. Libby, 38 Barb. 339; citing 1 A. & E. (N. S.) 18; 1 C. & M. 330, 3 M. & W. 418; 6 Mann. G. & S. 365; 22 Wend. 552 ; and disapproving 13 Abb. Pr. 276 ; Livingston v. Burroughs, 33 Mich. 511. 2. Circumstances of Arrest. — The particular instrumentality by which the plaintiff was deprived of his liberty should not be set out in the com- plaint. If the circumstances of the arrest are set forth, they may be struck cut upon motion: Eddy v. Beach, 7 Abb. Pr. 17; Shaw v. Jayne, i How. Pr. 119; as to what extent such allegations are allowed to stand, see Molony v. Dows, 15 How. Pr. 266. 3. Corporation. — A corporation may be sued in trespass for false im- prisonment: Owsley V. Montgomery & W. P. R. B. Co., 37 Ala. 560. 4. Election of Remedy — As to the election of remedy between an ac- tion for false imprisonment and malicious prosecution, where either form is admissible, see Von Latham y. Libby, 38 Barb. 339; 17 Abb. Pr. 237; Brown V. Chadsey, 39 Barb. 253. 5. False Imprisonment Defined — False imprisonment is the unlawful violation of the personal liberty of another: Pen. Code, sec. 236. As a crime, false impiisonment is not a felony under the l^ws of California: Peo- ple V. Elmer, 23 Cal. 158. 6. False Imprisonment, what it Avoids.— One who obtains posses- sion of personal property by threat of wrongful imprisonment acquires no title, and such transaction is void: Richards v. Vanderpoel, 1 Daly, 71. Error of judgment on the part of the magistrate will not render the process issued by him void: Von Latham v. Libby, 38 Barb. 339; 17 Abb. Pr. 237. 7. Malice. — Malice and falsehood are essential ingredients in an action for malicious prosecution, but are not essential to an action for false impris- 36 562 FOE FALSE IMPBISONMENT. onment, in whicli, however, the element of want of probable cause is neces- sary: Piatt V. Niks, 1 Edm. 230. 8. Principal and Agent. — Where a private person takes any part in an unlawful imprisonment of another, he becomes a principal in the act, and is liable for the trespass; but where he merely communicates facts or circum- stances of suspicion to officers, leaving them to act upon them on their own judgment and responsibility, he is not liable: 7 C. & P. 373; Burns v. Erber, 26 How. Pr. 273; Brown v. Ghadsey, 39 Barb. 253. 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 suspected of stealing goods, if done without his authority, express or implied: Mali v. Lord, 39 N. Y. 381. 9. SufBcient Averment. — In order to sustain a charge for false impris- onment, 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 : Eatvk V. Bidgway, 33 111. 473. 10. Void Process. — One who procures the arrest and imprisonment of another, upon void process, is liable in an action for false imprisonment; and mere good faith in making the affidavit, by virtue of which the arrest is made, is no defense: Painter v. Ives, 4 Neb. 122; Sallock v. Dominy, 14 N. Y. Sup. Ct. 52; Sheldon v. Hill, 33 Mich. 171. 11. Want of Jurisdiction — Where one is arrested, tried, and convicted for an act which, if it were an offense, was one of which the court had no jurisdiction, his imprisonment cannot afterward be justified by showing that the evidence at the trial would have convicted him of another offense which was triable in that court: Wait v. Green, 5 Park. Cr. 185. 12. 'Where Action Lies.— Though the original arrest be warrantable, an action for false imprisonment lies for any subsequent oppression or cruelty : 1 T. K. 536; Esp. Dig. 332; Boyle v. Bussell, 30 Barb. 300. 13. When Action Lies. — Though the original arrest be warrantable, an action for false imprisonment lies for any subsequent oppression or cruelty: Boyle v. Bussdl, 30 Barb. 300. Actions for malicious prosecution require different rules both of pleading and evidence, and are essentially dis- tinct: Brown v. Chadsey, 39 Barb. 253. Where imprisonment only is com- plained of, the action is for false imprisonment: Bums v. Erben, 26 How. Pr. 273. 14. Who Liable. — Where a person has been arrested upon a criminal charge, without any competent evidence of his guilt, the magistrate and pro- secutor are jointly liable to an action for false imprisonment: Comfort v. Fulton, 13 Abb. Pr. 276, But see, for qualification of this statement. Von Zatham v. Libby, 38 Barb. 339. Mo. 330. ii. Tlie Same — Another Form. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant, by force, compelled the plaintiff to go with .LIBEL AND SLANDER. 663 him to the police office [or otherwise], and there impris- oned him, and then and there detained him restrained of his liberty for the space of days, without proba- ble 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 injured in his credit, and was prevented from attending to his business during that time, and was compelled to pay dollars for costs and counsel fees in obtaining his discharge, to his damage dollars. [Demand! of Judgmerd. ] 15. Special Damage. — Allegation of special damage by reason of the imprisonment may be inserted in the complaint: Molony v. Dows, 15 How. Pr. 266. But in the same case allegations of aggravating circumstances were struck out. In an action for false imprisonment against a justice of the peace, it was held that the plaintiff could not recover in damages 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 dam- ages in the complaint: Spmce v. Neynell,i New. Mag. Cas. 19; contra, WUliams V. Oarrett, 12 How. Pr. 456. OHAPTEE III. LIBEL AND SLANDER. No. SSI. i. For Libel — The Words being Libelous in Themselves. [Title.] The plaintiff complains, and alleges : I. That on the day of 187., at , the defendant published in a newspaper called the [or in a letter addressed to 0. D.], the fol- lowing words of and concerning the plaintiff [set forth the words used]. II. That the said publication was false and defamatory. m. That by means of said false and defamatory publica- tion the plaintiff was injured in his reputation, to his dam- age dollars. IDemand of Judgment.'] 1. 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 defendant with malice or wrongfully (Second) published, (Third) of and concerning plaintiff, (Fourth) these false words. In slan • 564 LIBEL AND SLANDEB. der, instead of alleging, (Second) " published, " it is customary to allege, " That he spoke in the presence and hearing of divers persona," Wood v. Gilchrist, 1 Code Reporter, 117; Anon. 3 How. Pr. 406; although the word " published " imports ex vi termini, a speaking in the presence and hearing of somebody: Duel v. Agan, 1 Code Reporter, 134; see, also, Lettman v. Eitz, 3 Sandf. 734; and Debaix v. Lenhind, 1 Code E.. 235. From a libel, damage is always implied by law; whereas some kinds of slander only, are actionable without proof of special damage: Broom's Com. 513. 2. Concerning the Plaintiff, — In an action for libel or slander, it is not necessary to state in the complaint any extrinsic facts for the purpose of showing the application 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 oonoerning the plaintiff; and if such allega- tion be controverted, the plaintiff must establish on the trial that it was so published or spoken: Cal. Code C. P. sec. 460; see, also, N. Y. Code of 1877, sec. 535; Laws of Oregon, sec. 88; 1 Whitt. Pr. 697; Van Santv. 271. 3. 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: Maynard v. Fireman's Fund Ins. Co., 34 Cal. 48. 4. Definitions of Libel. — A libel is a written or printed slander: 1 Bill- iard on Torts, ch. vii, 32. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation: Cal. Civ. Code, sec. 45; see, also, sec. 248 Cal. Pen. Code; Oage v. Robinson, 12 Ohio, 250; Fisher v. Paterson, 14 Id. 418. Libel is both a public wrong or crime, and a private wrong or tort, cognizable by the common law. The remedy for the public wrong is by indictment or criminal information. The remedy for the private wrong is a civil action now known as an action or the action of or for libel : Townshend on Slander and Libel, 22. The rule is generally laid down that a publication is libelous when its necessary effect is to diminish the plaintiff 's reputation for respect- ability, impair his condition, and abridge his comforts, by exposing him to disgrace and ridicule: Hunt v. Bennett, 4 E. D. Smith, 647. For definition of libel: See Townshend on Slander and Libel, 31; Burr. Law Diet,; 1 Hill, on Torts, ch. viii, 313; Holt on Lib. 213; 1 Mence on Lib. 125; 9 Johns. 214; 1 Den. 317; 3 How. U. S. 266; 8 Blackf. 426; 4 Mass. 115; 4 Mass. 163, 167: McCord, 317; Carey v. Allen, 39 Wis. 482; Hand v. Winton, 38 N. J. L. 122; Byers v. MaHin, 2 Col. T. 605; Williams v. Godldn, 5 Daly, 499. 5. Exemplary Damages. — If the injury was willful or intentional, if 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 compensa- tion for mental suffering, public disgrace, etc., but they may further award exemplary damages: Fryy. Bennett, 1 Abb. Pr. 289; Huntv. Bennett, 19 N. Y. 173; but see 2 Greenl. Ev. sec. 253; and Dain v. Wycoff, 7 N. Y. 191. 6. Gist of Action. — Pecuniary loss to the plaintiff is the gist of the ac- tion for slander or libel: Townshend on Slan. and Lib. 57. 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 : Borthwricb on Libels, 4. LIBEL AND SLANDER. 565 7. Intent. — There may or may not be any intent, good or bad; but intent or no intent, the liability is for the act and its consequences, not for the in- tent. 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: Saire v. Wilson, 9 B. & Cr. 643; Viele v. Gray, 10 Abb. Pr. 1; lEsp. N. P. Cases, 226; Boot v. King, 7 Cow. 613. 8. Intent — Motive The intent with which an action is done is by no means the test of liability of a party to an action of trespass : Guitte v. Swan, 19 Johns. 381; Percival v. Sickey, 18 Id. 257; Tremain v. Cohoes Co., 2 Comst. 161; Safford v. Wyaoff, 1 Hill, 11. Bona fides will not protect a magistrate who does an illegal act: Prickelt v. Greatrex, 1 New. Mag. Cas. 543; 7 Law Times, 139. It is immaterial with what motive a man does an unlawful act: Amick v. O'Sara, 6 Blackf. (Ind.) 258. 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 reputation, 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 actions for assault and battery: Compare Sheldon v. Carpenter, 4 N. Y. 579; Watson v. Bazzard, 3 Code K. 218. 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 : Moot v. Foster, 9 How. Pr. 37. 9. Joinder. — 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 malicious prosecution: 8 Abb. Pr. 3; 42 Barb. 543; 3 Bing. (N. C.) 950. Or for slander of title: 16 Up. Can. C. P. Eep. 114. But a cause of action in a plaintiff singly for slander of him in his partnership business, cannot be joined with a cause of action in him and his partners jointly: Bobinson v. Marchant, 7 Q. B. 918. And where a complaint contains several causes of action, each must be separately stated and numbered: 5 How. Pr. 171. And must be complete in itself: HoUon v. Muzzy, 30 Vt. 365; Sinclair v. Mtch, 3E. D. Smith, 689; see p. 395, note 11. Where several are included in the same libel, tliey may each maintain a separate action for the injury: Smart v. Blanchard, 42 N. H. 137. An action of libel lies against two or more, if the act be joint and done by all: 6 Johns. 26; 10 Serg. & B,. 222. Where a publication affects a class of persons, no individual of that class can main- tain an action: Whiie v. Delavan, 17 Wend. 49; but see Byckman v. Dela- van, 25 Id. 186. 10. Language Set Out. — The complaint should set out the very words published: Wesley v. Bennett, 5 Abb. Pr. 498; Bundel v. Butler, 7 Barb. 260; Forsyth v. Edmiston, 2 Abb. Pr. 430; Finnerty v. Barker, 7 N. Y. Leg. Obs. 317; Sullivan v. White, 6 Irish Law E. 40; Whitaker v. Freeman, 1 Dev. 271; Lee V. Kane, 6 Gray (Mass.) 495; Taylor y. Moran, 4 Met. (Ky.) 127; Com- monwealth V. Wright, 1 Gush. 46. The true term to be used to indicate that the very words are set forth is "tenor:" 1 Cush. 46; Wright v. Clements, 3 B. & Aid. 503. It is not enough to state its purport: Wood v. Brown, 6 Taunt. 169; 1 Eng. Com. Law B. 560. And when the words were published 566 LIBEL AND SLANDEE. in a foreign language, the foreign words must be set forth in the original: ZerwUa v. AxteU, 6 T. B. 162. Together with a translation into English: Townshend on Slau. and Lib. 412. To set forth the foreign words alone, or their translation alone, would not be sufficient: 3 "Wend. 394; 3 Sandf. 734; 3 Den. 346; 12 Ind. 453; 6 Blaokf. 351; 3 Watts, 28. The rule that the exact language used should be set out does not render it necessary to set forth the whole of the matter published: Deyo v. Brundage, 13 How. Pr. 221; Culver V. Van Anden, 4 Abb. Pr. 375; Rex v. Brereton, 8 Mod. 329. But an extract of the particular passage complained of: Oheetham v. Tilloison, 5 Johns. 430. 11. Libel and Slander. — In every slander there are two acts, composing and publishing. In every libel there are three acts, composing, writing, and publishing. So every publication of language concerning a man or his affairs, which as a necessary or natural and proximate consequence occasions pecuniary loss to another, is prima facie a slander, if the publication be oral; and a libel if it be by writing: Townshend's Slan. and Lib. 68. 12. Malice is Presumed. — When the words published are unambigu- ous, and not capable of being understood in any other sense than as defama- tory to an extent that must necessarily 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: Hunt v. Bennett, 19 N. Y. 173; Boot V. King, 7 Cow. 620. That the words are "a libel " is a sufficient allegation of falsehood and malice : See above authorities, and Ry v. Bennett, 5 Sandf. 54; Viele v. Oray, 18 How. Pr. 550. So a general averment of malice is sufficient : Purdy v. Carpenter, 6 How. Pr. 361. In an action for libel, it is not indispensable to use the word "maliciously" in the declara- tion. It is sufficient if words of equivalent power or import are used: White V. Nichols, 3 How. U. S. 266. 13. Malice, hovsr Averred. — Any form of words from which malice [absence of excuse] can be inferred, as that the publication was made falsely or wrongfully, will suffice: Townshend on Slan. and Lib. 410. For one meaning of malice is absence of legal excuse : Townshend on Slan. and Lib. 85. And a pleading may be sufficient without an especial averment of malice: Opdyke v. Weed, 18 Abb. Pr. 223, notes. So a declaration which charged the publication to be "malicious, injurious, and unlawful," was held suffi- cient: 7?owejv. Eoach, 1 M. & Sel. 304. The averments usual in the old pre- cedents, that the defendant, well knowing the premise?, etc., maliciously in- tending 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: Colenian-v. Southwlck, 9 Johns. 45. So, also, that the defend- ant, on, etc., falsely and maliciously published, etc., the false, malicious, scandalous, and defamatory matter following, is unnecessary.' 14. Malice, Allegations of. — An allegation that the publication was a libel: Held, equivalent to an allegation that it was false and malicious: Hunt V. Bennett, 19 N. Y. 176. In all oases where the facts are within the knowledge oi the defendant, or the statement involved is in itself libelous, a general allegation of malice will be sufficient, without any statement of facts and circumstances: Viele v. Gray, 10 Abb. Pr. 1; Howard v. Sexton, 4 Comst. 157; Buddington v. Davis, 6 How. Pr. 401. So, express malice, or LIBEL AND SLANDER. 567 want of probable cause, need not be averred: Purdy v. Carpenter, 6 How. Pr. 361; IMUejohny. Greeley, 13 Abb. Pr. 41. 15. Malice, -when not Implied. — Under the statutes of New York and of other States, in actions against reporters, editors, or proprietors of news- papers, for an alleged libel in the report of any judicial, legislative, or other public official proceeding, 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: See Sandford v. Bennett, 24 N. Y. 20. An accurate report in a newspaper ot a debate in parliament, containing matter disparaging an individual, is not actionable. The publication is privileged on the ground that the advantage of publicity to the community outweighs any private in- jury; 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 circumstances disclosed in the debate: Wason v. Walter, Law Kep. 4 Q. B. 73; see, also, Ackerman v. Jones, 37 N. Y. Supr. (5 J. & Sp.) 421. 16. Names of Customers Lost. — As a general rule, the names of per- sons who have refused to deal with the plaintiff must be stated: Linden v. Graham, 1 Duer, 670. But if it is in the nature of things impracticable for him to know them, he may prove general loss of business: Evans v. Harries, 1 Hurl. & N. 251. It is properly u, question of evidence which cannot be settled before the trial. 17. Parties. — In libel, all who 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: Forsyth v. Edmiston, 2 Abb. Pr. 430. B>it if one repeats, and another writes, and a third approves what is written, all are liable: Thomas v. Rumsey, 6 Johns. 26. Partners may sue for a libel upon them, iu respect of their business, but can recover only for injury to their firm: Taylor v. Church, 1 E. D. Smith, 279. For a libel on part- nei-s, all the partners may sue together: Taylor v. Church, 4 Seld. 452; see S. C, 1 E. D. Smith, supra. 18. Privileged Communications Communications which have been held to be privileged— a memorial to the postmaster-general, charging fraud against a successful candidate for a contract: Cook v. Hill, 3 Sandt. 341; Buddington v. Davis, 6 How. Pr. 401. A physician granting a certificate of lunacy pursuant to statate: Perkins v. Mitchell, 31 Barb. 461. A charge preferred by one member of a lodge against another: Street v. Wood, 15 Barb. 105. Words spoken or written in a legal proceeding, pertinent and material to the subject of the controversy, are privileged: Garr v. Selden, 4 Comst. 91; Perkins v. Mitchell, 31 Barb. 461. 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: Lewis v. Chapman, 16 N. Y. 369; reversing same case, 19 Barb. 252. The withdrawal by employer of former recommendation of discharged employee is privileged, unless it is shown to be malicious: Fowles v. Bowen, 30 N. Y. 20. The publication of a slander by a murderer at the time of his execution is not privileged: Sandford v. Bennett, 24 N. Y. 20. So, proceed- ings before a grand jury are not privileged: McCabe v. Gauldwell, 18 Abb. Pr. 377. The comments on privileged communications are not protected, if libelous themselves: Edsall v. Brooks, 26 How. Pr. 426; 17 Abb. Pr. 221. The defendant, in a privileged communication, described the plaintiff's con- duct as " most disgraceful and dishonest." The conduct so described was equivocal, and might honestly have been supposed by the defendant to be 568 LIBEL AND SLANDER. as he described it: Seli, that the above words were not of themselves evi- dence of actual malice: Spill v. MauU, L. B. 4 Exeh. 232. For additional communications which are deemed privileged, see " Answers;" Aclcerman v. Jones, 37 N. X. Supr. (5 J. & Sp.) 42. As to liability of proprietors of a mercantile agency for statements respecting the financial standing and credit of a merchant, see Sunderlin v. Bradstreet, 46 N. Y. 148, where it is held they are liable for a false report, though made in good faith. For a case depend- ing upon special facts, see Klinck v. Volby, 46 N. T. 427. 19. 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 newspaper in which it was published, without otherwise alleging that he published it, or was concerned in its publication : Bunt V. Bennett, 19 N. Y. 173; affirming S. C, 4 E. D. Smith, 647. A re- ceiver of a newspaper concern, pending a suit to settle the partnership ac- counts of its proprietors, will be personally responsible for any publication therein which is improper, although the order of his appointment directs that the defendants may continue to superintend the editorial department : Marten v. Van Schaick, 4 Paige, 479. But the assignee of a newspaper es- tablishment, as a collateral security, is not liable for a libel published in it. As to the general doctrine respecting the liability of publishers and pro- prietors of newspapers, booksellers, etc., see 2 Greeul. Ev., sec. 416; 2 Star- kie on Slander, 28-34; 1 Carter, Ind. 344. 20. Publication. — Every communication of language from one to another is a publication; but to constitute 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 lan- guage concerns, is regarded as a third person: Townshend's Slan. and Lib. 90. 21. Publication, Averment of. — A statement that the defendant was proprietor of a newspaper, and that the words were published therein, is a sufficient averment of publication: Iluiit v. Bennett, 4 E. D. Smith, 647; affirmed 19 N. Y. 173. 22. Publication, how Alleged.— The publication must be alleged, but it need not be set forth in any technical form of words: 2 W. Black. 1037; but it must be alleged positively, and not by way of recital: Donage v. Ban- kin, 4 Munf. 261. The word " published" is the proper and technical term by which to allege publication: Stark, on Slan. 359. But any equivalent allegation will suffice: Townshend Slan. and Lib. 408; 2 W. Black. 1037; 2 Hall, 172; 4 E. D. Smith, 647. But to allege that defendant composed, wrote, and delivered a certain libel addressed to the plaintiff, was held in- sufficient: Wdisted v. Eolman, 2 Hall, 172. That defendant sent a letter to plaintiff, which was received and read by him, does not show a sufficient publication: LyU v. Clason, 1 Cai. 581. It is necessary to allege that it was in fact seen or read' (by others): Giles v. The Slate, 6 Geo. 276. So where the writer reads to a stranger his letter to the plaintiff, before dispatching it, it is a publication : Snyder y. Andrews, 6 Barb. 43; McVomhs v. Tuttle, 5 Blatchf. 431; Van Gleef v. Lawrence, 2 City Hall Recorder, 41. 23. Satire — -The distinction between the satirist and the libeler is that the one speaks of the species, the other of the individual: Joseph Andrews, vol. ii, p. 5. So an action for libel will only lie upon words concerning dis- tinguishable persons, and cannot be brought upon words which relate to LIBEL AND SLANDEE. 569 a class or order of men: Sumner v. Buell, 12 Johns. 475. But it must be manifest upon the face of the publication that the charges made were in- tended against a class, profession, or order of men, and cannot by possi- bility impart a personal application tending to private injury: Rycleman\. Ddavan, 25 Wend. 186; reversing White v. Ddavan, 17 Id. 50. 24. Special Damages.— Those damages which are not the necessary consequence of the language complained of must be specially alleged in the complaint: Squier v. Cfould, 14 Wend. 159; Birch v. Benton, 26 Mo. 155; Johnson v. Robertson, 8 Port. 486; Barnes v. Trundy, 31 Me. 321; Bostwick v. Nicholson, Kirby, 65; Bostwick v. Hawley, Id. 290; Shipmm v. Burrows, 1 Hall, 399; Harcourl -v. Harrison, Id. 474; WUsony. JJunyore, Wright, 651. But a complaint in an action for words in writing charging insanity need not allege special damage; Perkins v. Mitchell, 31 Barb. 461. So in an ac- tion by one of several partners: Bdbinson v. Marchant, 7 Q. B. 918. An ac- tion cannot be maintained by an author for a publication disparaging his copyright work, without an allegation of special damage: Swan v. Tappan, 5 Cush. (Mass.) 104. 25. Wrongs— Remedies. — Slander or libel is an infringement of the absolute rights of persons. And the character of persons is undoubtedly one of their absolute and personal rights: Holt on Lib. 15. 26. What Actionable Whether or not matter is libelous, so as to be actionable, depends upon the style, scope, spirit and motive of the publica- tion, taken in its entirety, and the inquiry is into the natural effect of it, not only upon the public generally, but upon the neighbors and friends of the person aimed at: Moffatt v. Gauldwell, 3 Hun. 26; Sanderson v. Caldwell, 45 N. y. 398. No. SS2. ii. For Libel — The Words not being Libelous in Themselves. [Title.] The plaintiff complainSj and alleges : I. That the plaintiff is, and was, on and before the day of , 187 . , a merchant, doing business in the city of II. That on the .... day of , 187 . , at , the defendant published in a newspaper called the [or in a letter addressed to B. 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 mesmt thereby that [the plaintiff had absconded to avoid his creditors, and with intent to defraud them]. IV. That the publication was false. ^Demand of Judgment.] FoBM.— This form is from the New York Code Commissioners' Boot of Forms. 570 LIBEL AND SLAKDEK. 27. Ambiguous Article. — It may be averred of an ambiguous 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: Q-ibson v. Williams, 4 Weud. 320. This is more strictly correct than to employ an innuendo for the same purpose, as was permitted in Blaisdell v. Raymond, 4 Abb. Pr. 446, 28. Capacity must be Averred When the words charged bear rela- tion to the plaintiff in his business or official capacity, such capacity should be averred in a traversable form in the complaint: 2 Greenl. Ev., sec. 412; Carroll v. White, 33 Barb. 615. And the fact of his being engaged in such business or profession at the time the words were spoken should be alleged: Carroll v. White, 33 Barb. 615. In such an action special damages need not be alleged: Butler v. Howes, 7 Cal. 87. As to the responsibility of an editor in respect to comments upon the manager of a theater, see Fry v. Bennett, 3 Bosw. 200; Id., 5 Sandf. 54; Id., 4 Duer, 247. 29. Construction. — Where the words alleged in a complaint 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: Wesley v. Bennett, 5 Abb. Pr. 498. Where, in an action for libel, the words complained of are not per se libelous, what the defendant intended 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 whom the words were published, was libelous, the words are actionable : Maynard v. Fireman's Fund Insurance Co., 34 Cal. 48. 30. Extrinsic Facts. — Where the actionable quality of language de- pends upon the capacity of the plaintiff, and the language itself does not dis- close that he is in such capacity or occupation, an averment that plaintiff' is of such a trade or profession will be sufficient. But where the language is actionable of the plaintiff as an individual also, it is not necessary to allege an inducement: Townshend on Slander and Libel, 400; Gage v. Hobinson, 12 Ohio, 250. 31. Extrinsic Matter. — 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 therefore necessary for the plaintiff in such a case dis- tinctly to aver the extrinsic fact upon which he relies to make the publication libelous: Caldwell v. Raymond, 2 Abb. Pr. 193; see, also, 33 Vt. 182; 16 Pick. 1. Where the publication is not defamatory on its face, the existence of ex- trinsic facts rendering it defamatory must be alleged : Pike v. Van Worner, 5 How. Pr. 171; 6 Id. 99; Fry v. Bennett, 5 Sand. 54; Dias v. Short, 16 How. Pr. 322; Blaisdell v. Raymond, 4 Abb. Pr. 446; Carroll v. WJiite, 33 Barb. 615; Culver v. Van Anden, i Ahh. Pr. 375. But where it is not essential, such statement would be mere surplusage: Townshend on Slander and Libel, 397. By the statute, it is no longer necessary to state an inducement. So in New York: Ante, note 13. So in Missouri: Strieber v. Wensel, 19 Mo. 513; and Wisconsin: Van Slyke v. Carpenter, 7 Wis. 173. 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:" MUkr V. Parish, 8 Pick. 383; Stark, on Slan. 390. LIBEL AND SLANBEB. 571 32. Innuendo. — The office of an inmiendo is to explain, not to extend, what has gone before; and it canuot enlarge the meaning of words unless it be connected with some mutter of fact expressly averred: 2 Gilm. 720; 5 Johns. 211. Nor can it change^ the ordinary meaning of language: Hays v. Mitchell, 7 BJackf. 117. Nor introduce new matter: 16 Vt. 83; 6 Ala. 881. It is only a link to attach together facts already known to the Court: Cooke ou Defamation, 94. It cannot attribute to words a meaning which renders them actionable {HoUon v. Muzzy, 30 Vt. 365), without a prefatory averment of extrinsic facts which makes them slanderous: 2 Dev. 115; 2 Shep. 317; 8 N. H. 256; 8 B. Monr. 486; 16 Penn. 204; 2 Bibb. 319. 33. Innuendo, Office of. — The use of innuendoes is in part retained and in part dispensed with under our system of pleading. If the words used are not libelousper 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 libel- ous by reference 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 introduc- tion or inducement; as an innijendo cannot extend, but only apply the words: Nichols Y. Packard, 16 Vt. 83; Brown v. Brown, 2 Shepley, 317; Harris v. Burley, 8 N. H. 256; Linville v. Earlywine, 4 BUckf. 469; Tappan v. Wilson, 7 Ohio, 190, Part 1. 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: See Blaisdell v. Raymond, 4 Abb. Pr. 446; Caldwell v. Raymond, 2 Id. 193. 34. Innuendoes, -when not Essential. — When the language is not in itself applicable to the plaintiff, no innuendo can make it so: Townshend's Slan. and Lib. 114, 426. But if the plaintiff is designated by another name in the libel, his real name may be designated by an innuendo : Haysw. Brierly, 4 Watts, 392. Where it is desired to connect the words charged with the colloquium, or to show the meaning imputed to words libelous, per se, we consider that innuendoes may be dispensed with ; and it will always be un- safe to rely on an innuendo, unsupported by a distinct prefatory averment, to show a libeous meaning not evident from the words used. As to proof of libelous meaning by extraneous evidence, and as to sufficiency of innuendo drawn, see Wachler v. Q;uenzer, 29 N. Y. 547; Butler v. Wood, 10 How. Pr. 222. - 35. 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 presumed to be sealed, and sending a letter is not publication : LyU V. Clason, 1 Cai. 581. But reading aloud a letter containing libelous matter amounts to publication : Snyder v. Andrews, 6 Barb. 43. 36. Libelous Imputations. — Imputations which are libelous — an im- putation of the receipt of money for procuring a public appointment is said to be libelous. An imputation of insanity: Perkins v. Mitchell, 31 Barb. 461. Corruption against a member of the Legislature: lAitlejohnv. Greeley, 13 Abb. Pr. 41. A statement of the keeper of an intelligence of&ce, reflecting on the business capacity of the partners of a mercantile firm: Taylor v. Church, 4 Seld. 452; see, further, Towushend on Slan. and Lib. 572 LIBEL AND SLANDER. 37. Libelous Intent and Meaning Where a complaint only averred a libelous intent and meaning on the part of the defendant, in the compos- ing and publishing of the words, without averring that they were so tinder- stood by those to whom they were published: Held, that a demurrer to the complaint, on the ground that the written and published words set forth do not constitute a libel, was properly sustained: Maynard v. F. F. Ins. Co., 34 Cal. 48. 38. Special Damage. — When the words are, in the natural and obvious construction, injurious, some damage is to be presumed, and it is not essential to allege special damage {Perldnsv. Mitchell, 21 Barb. 461; Eicks v. Walker, 2 Greene (Iowa) 440), 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: Caldwell v. Raymond, 2 Abb. Pr. 193; atone V. Cooper, 2 Den. 299; Bennett v. Williamson, 4 Sandf. 60. 39. Of and Concerning Plaintiff. — Although inducement may be nec- essary to explain the matter alleged to be libelous, it is enough to state in the declaration that the publication was " of and concerning " the plaintiff: Townshend Sland. and Lib. 406. The court assumes the words complained of do in fact refer to the plaintiff; Wesley v. Bennett, 5 Abb. Pr. 498. By section 460, Code G. P. Cal., the averment Ihat the same was published concerning the plaintiff supplies 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 cannot be supplied by an innuendo: See ante, note 31. 40. Reputation— Character. — Eeputation is the estimate in which an individual is held by public fame in the place where he is known : Cooper v. Greeley, IDen. 347. And it is not necessary to prefix the word general: French v. Millard, 2 Ohio St. B. 50. The words " character" and " reputa- tion," though often used synonymously, are in fact not synonymous: 20 Ohio, 18; 2 Ohio St. B. 50. That they are the same, see 3 Serg. & B. 337. That character is a term convertible with common report: Id. And that general character is the estimation in which a person is held in the com- munity where he resides, see Douglass v. Tousey, 2 Wend. 354. It is the result of general conduct: Sharp v. Scogin, Holt's N. P. C. 541; 3 Am. Law J. (N. S.) 145. While "chaste character" means actual personal virtue — not mere reputation: Carpenter v. The People, 8 Barb. 603; Crazier y. The People, 1 Park. Cr. 453; Safford v. The People, Id. 474. 41. Words with a Covert Meaning. — Words which on 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 un- derstood, and that thej' were in fact understood by those who read them in their covert sense: Maynard v. Fireman's Fund Ins. Co., 34 Cal. 48; see, also, 7 Barb. 260; 5 Abb. Pr. 498; and Carroll v. White, 33 Barb. 618. And when a hidden defamatory meaning is sought to be attributed to words in them- selves innocent, 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 publication: Smith v. Ashley, 11 Met. 367; Dex- ter V. Spear, 4 Mason, 115. LIBEL AND SLANDER. 573 No. 333. iii. The Same — Sy an Attorney at Law. [Title.] The plaintiff complains, and alleges: I. That the plaintiff was, on and before the day of , 187 . , 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 continued to practice as such attorney at law, in the several courts of record in said State of , and had always, as such attorney at law, conducted and demeaned himself with honesty and fidelity, and had never been guilty, or sus- pected to have been guilty, of any misconduct or mal- practice, in his said capacity and profession of an attorney at law. II. That on the day of , 187., at , the defendant published in a newspaper called the , the following words concerning the said plaintiff, and of and concerning him in his said capacity and profession of an attorney at law [set forth the words used] . III. That the defendant meant thereby that [state in- nuendo] . IV. That said publication was false and defamatory, and by means thereof the plaintiff hath been and is greatly in- jured and prejudiced in his reputation aforesaid, and has also lost and been deprived of great gains and profits, which would otherwise have arisen and accrued to him in his said profession and business, to his damage dollars. \_Demand of Judgment.'] No. 334. vr. The Same — by a Physician. [Title.] The 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 , 187., the de- fendant 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, 574 LIBEL AND SLANDEE. and in his said good name and credit as a physician, and in his practice as such, to his damage dollars. [^Demand of Judgment.'\ JSTo. SS5. V. For Libel — Charge of Dishonesty, etc., in Business. [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 of this plaintiff, and on the trust reposed in it, and by their shareholders and the public, in consequence thereof. III. That the defendant was, at the times hereinafter mentioned, the publisher and proprietor of the , a newspaper published in the city of IV. That the defendant, well knowing the premises, did, on the .... day of , 187 . , compose and publish in said newspaper, concerning the plaintiff, and concerning the premises, the false and defamatory matter following, to wit [here insert words of libel, innuendoes, etc.J. V. That by reason of the premises, the plaintiff has been injured in its reputation and credit, to its damage dollars. [Demand of Judgment.] 42. Corporations — Special Damage Incorporated companies estab- lished for tlie purpose of transacting business, e. g., banks, may maintain actions for libel, the same as individuals, for words affecting their business or property, and without alleging special damages : Slioe and Leather Bank V. Thompson, 23 How. Pr. 253. No. 336. vi. For Charge of Grime— Words not Libelous on their 'Face. [Title.] The plaintiff complains, and alleges : I. That at the time hereinafter mentioned, the [dwelling- house] of the defendant had been burned down, and it was suspected that it had been feloniously set on fire. II. That on the .... day of , 187., at , LIBEL AND SLANDER. 575 the defendant published in a newspaper called the , the following words concerning the plaintiff: "One A. B. kindled the fire, 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 siistained damage by reason of said false and defamatory publication in the sum of dollars. I Demand of Judgment.^ No. 337. Tii. For Accusing Plaintiff of Perjury in his Answer to a Complaint. [Title.] The plaintiff complains, and alleges : I. That before the committing of the grievances herein- after mentioned, the plaintiff had filed his answer in a cer- tain action then pending against him in the District Court of the Judicial District of the State of , wherein the defendant herein was plaintiff; and which said answer was verified by this plaintiff. II. That on the day of ,187., at , the defendant, well knowing the premises, published, and caused and procured to be published, in a newspaper 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 defama- tory, and by reason thereof the plaintiff hath sustained damage in the sum of dollars. {_Demand of Judgment.'] No. 338. viii. For Composing a Libel not Directly Accusing the Plaintiff of Perjury. [Title.] The plaintiff complains, and alleges : I. That before the committing of the grievances by the defendant hereinafter mentioned, a certain action had been pending in the District Court of the Judicial Dis- trict of the 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 576 LIBEL AND SLANDER. 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 , 187., 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 com- mitted willful and corrupt perjury. III. That said publication was and is false and defamatory . IV. That by reason of said false and defamatory publica- tion the plaintiff hath been damaged in the sum of dollars. {_Demand of Judgment.} No. 339. ix. For a Libel not Directly Accusing the Plaintiff of Larceny. [Title.] The plaintiff complains, and alleges : I. That before the committing of the grievances herein- after mentioned, a certain horse of the defendant had been feloniously stolen by some person or persons [or state that the defendant "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 , 187., at , the defendant, well knowing the premises, published in a newspaper called the , the following words con- cerning 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 by reason of said false and defamatory publication the plaintiff hath sustained damage in the sum of dollars. [Demand of Judgment.'] LIBEL AND SLANDEE. 577 ^0. 340. X. For Libel by Signs. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant, contriving to injure the plaintiff in his rep- putation, 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 effigy or figure intended to represent the person of the plaintiff, and hung up and caused to be hung up the said effigy, in the view of the neighbors of the plaintiff 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 of Judgment.'] Note. — A caricature may be libelous: See Viele v. Gray, 18 How. Pr. 550; 10 Abb. Pr. 1. No. 341. xi. For Slander — The Words being Aclionable in Themselves. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., 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 Judgment.'] 43. Statement of Action. — By the common law actions 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 : Townshend on Slander and Libel, 389; see 1 W. Saund. 316; 5 Gush. 543, 544; Walford on Parties, 1392, 1449. 44. 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 slanderous meaning: Pilcey. 'VanWormer, 5 How. Pr. 171; 6 Id. 99. 45. 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 to whom the words were intended to apply, it is no longer necessary to insert in the complaint any averment showing they were intended to apply to the plaintiff: Pike v. Van Wormer, 6 How. Pr. 99. A complaint which avers that defendant spoke certain words of and ooncern- 37 678 LIBEL AND SLAMDEB. ing the plaintiff, and setting forth the words whiohappear actionable, per se, sufSciently states a cause of action: Malone v. Siilwell, 15 Abb. Pr. 421. 46. Chastity. — Ordinarily, and in the absence of any statutory provision, •words published orally charging a woman with want of chastity are not ac- tionable per se: Townshend on Slan. and Lib. 175, et seq. "Want of chastity, special damage being averred, as to unmarried female: Fuller y. Fenner, 16 Barb. 333. As against a man: Terwilleger v. Wands, 17 N. Y. 54. Or a mar- ried woman: Wilson V. Cfoit, 17 N. Y. M2; Olmsted v. Srown, 12 Barb. 657; Klein V. Eentz, 2 Duer, 633. 47. Construction. — In a declaration in slander, the words laid as the slanderous charge will be understood by the Court in their natural and pop- ular sense: Tuttle\. Bishop, 30 Conn. 80. 48. Continuando. — In complaint for slander, the words spoken should not be alleged with a continuando. Slanderous words spoken at one time con- stitute 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: Swinney v. Nave, 22 Ind. 178. 49. Counts in Complaint. — It is allowable to include in the same decla- ration divers distinct words of slander of different import : Hall v. Nees, 27 111. 411. But a new count for another slander cannot be added after the right of action has been barred by the Statute of Limitations: Smith v. Smith, 45 Penn. St. K. 403. 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 evi- dence relied on: See Olmstedy. Miller, 1 Wend. 506; Aldrich v. Brown, 11 Id. 596; Keenholts v. Becker, 3 Den. 346; Fox v. Vanderheck, 5 Cow. 513; Howard V. Sexton, 4 N. Y. 157; Bundell v. Butler, 7 Barb. 260. 50. Damages In an action for slander, where words are charged to have been spoken of and concerning a plaintiff aa a clerk or tradesman, which it is alleged was his profession, it is unnecessary to allege special damages: Butler v. Howes, 7 Cal. 87. 51. Disease With respect to the charge of having a disease, it is ac- tionable to charge having certain diseases, but it has been held not actionable to charge one with having had su-ch diseases : Townshend on Sland. and Lib. 184. That a married woman has (in the present tense) a venereal disease: Williams v. Holdredge, 22 Barb. 396 : That a man has a venereal disease : Hewitt v. Mason, 24 How. Pr. 366. 52. Entire Conversation A count of a petition in an action for slan- der, which sets out the entire conversation in which the slander was spoken, contains only one cause of action, although the conversation consists of sev- eral parts, each of which is actionable: Cracraft v. Cochran, 16 Iowa, 301. A complaint in an action tor 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; Hull v. Vree- land, 42 Barb. 543. 53. Essential Averments. — In an action for slander, it should be al- leged that the defendant spoke the words in the presence and hearing of di- vers persons. To allege a speaking merely is not sufficient: Style, 70; Stark. Slan. 360. But in Indiana, by statute, it is sufficient merely to allege tha LIBEL AND SLANBEE. 579 speaking: Guard v. Bish, 11 Ind. 156. Or it is sufficient to allege, " in the hearing of certain persons," naming them {BurbanJc y. Horn, 39 Me. 233), or of certain persons named, and divers others, not naming the others: Bradshaw v. Perdue, 17 Ga. 510; Ware v. Gariledge, 24 Ala. 622. 54. 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: Rangier v. Hummell, 37 Penn. 130; see, also, sec. 450 K. Y. Code. But that a wife cannot sue her husband for Blander, see Freethy v. Freeihy, 42 Barb. 641 ; Tibbs v. Brown, 2 Grant's Cas. (Penn.) 39; but if there be no statutory provision to govern such actions, the action should be brought in the name of both husband and wife: Stark. on Sland. 349; 8 So. N. K.26; 4 M. & W. 5: Sayre, 33; 3 Mod. 120; 4 Barr, 29. And if the husband dies, the action survives to the wife; but if the wife dies before verdict, the action abates: 12 S. & E. 76; see Style, 138. If the words concerning a married woman are actionable, because of special damage to the husband, the husband must sue alone: 4 B. & Adol. 514; 4 Barr, 29; Stark. Slan. 351; Fort. 377; 1 Lev. 140; 2 Duer, 633; even if the husband and wife live apart under a deed of separation: 2 Hill, 309; see Townshend on Slan. and Lib. 390. So, for a charge of joint larceny, the husband should sue alone: 20 Penn. 159. Where the language published concerns both husband and wife, the husband may sue alone for the injury to him, and the husband and wife may sue jointly for the injury to the wife : Id. For a publication by a married woman, the action must be against her and her husband: 5 Carr. & P. 484; 2 Wils. 227; Style, 349; 2 W. Saund. 117. 55. Joinder of Actions. — A cause of action against the husband for the wrongful act of his wife cannot be joined with a cause of action against him for his own wrongful act. Thus, the complaint in an action against husband and wife stated a cause of action for slanderous words of the wife, and a fur- ther cause of action for slanderous words of the husband : Meld, that the two causes of action were improperly joined: Malone v. Stilwell, 15 Abb. Pr. 421. 56. Jurisdiction. — The Court has jurisdiction in an action of slander, although the slanderous words were spoken in another State: Hull v. Vree- land, 42 Barb. 543. 57. Language in Part Slanderous. — Where the complaint sets out lan- guage 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 irrelevant. Though it may not be necessary to allege in the complaint all that was said at ths time, it is proper to do so: Deyo v. Brundage, 13 How. Pr. 221; Root v. Lowndes, 6 Hill, 518. Plaintiff was not bound, however, to prove all the words chargejJ. If he proved some of them, and those proved were action- able, it was enough: Loomis v. Swick, 3 Wend. 205; Purple v. Horton, 13 Id. 9; compare, also, Dioyt v. Tanner, 20 Id. 190; Genet v. MUcfiell, 7 Johns. 120. 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: Bathbun v. Emigh, 6 Wend. 407; Milligan v. Thome, Id. 412. If any of the words are actionable, judgment must be for plaintiff: Mds v. Waters, 4 Cranch C. Ot. 170. 58. Of or concerning Plaintiff.— It is sufficient to aver substantially that the words were spoken of plaintiff. An express averment of the fact 580 LIBEL AND SLANDER. is not necessary: Brown v. Zaniberton, 2 Binn. 34; Brashen v. Shepherd, Ky. Deo. 249; Nestle v. Van Slyck, 2 Hill, 282; but see Titus v. Follett, 2 Hill, 318; Tyler v. Tillotson, 2 Hill, 508; Cave v. S7ie2or, 2 Munf. 193; Sarper v. .DeZp, 3 lud. 225; Bex v. ifarsden, 4 M. & S. 164; ^aZdioire v. Eildreth, 14 Gray (Mass.) 221. 59. Place and Time. — The place (11 East. 226) or time of speaking the ■words (22 Barb. 87) are not material; but it must be prior to the commence- ment of the action: Taylor v. Burgingger, 2 Kep. Con. Ct. 367. 60. Presence and Hearing The words used must be alleged as hav- ing been spoken of and concerning the plaintiff, in the presence and hearing of some person or persons : Anonymous, 3 How . Pr. 406 ; Wood v. Gilchrist, 1 Code E. 117. But plaintiff may amend on the trial, if defendant is not misled: Id. 61. Presence and Hearing — Hotv Alleged. — It is a sufficient allega- tion, 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 publish, declare, etc., as these words sufficiently imply the presence of hearers, and indicate that the declarations were public and notorious : Murd v. Moore, 2 Oregon Hep. 85. 62. 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 complaint the facts and circumstances which show the existence of malice: Viele v. Gray, 10 Abb. Pr. 1. 63. Published. — "Published" ex vi termini, imports a speaking in the presence of a third party: Duel v. Agan, 1 Code R. 134. And this averment held sufficient, without averring specially in the presence of others : Burton v. Burton, 3 Iowa, 316. That the words were spoken would be sufficient, if accompanied by an averment implying publication to a third person: Taylor V. Bom, Cro. Eliz. 8S1. 64. Several Liability. — As a general rule, an action of slander will not lie against two persons ; as every speaker must be sued separately : Malone v. Stilwell, 15 Abb. Pr. 421; although it seems that where the words are alleged to have been uttered in pursuance of a conspiracy between two or more de- fendants, the action maybe maintained: Chitty's Pleading, 74; Bui. N. P. 5; Forsyth v. Mmiston, 2 Abb. Pr. 430. 65. Slander Defined — Slander is the imputation: First. Of some tem- poral offense, for which the party may be indicted and punished in the tem- poral courts; Second. Of an existing contagious disorder, tending to ex- clude the party from society; Third. Of an unfitness to perform an office or employment of profit, or want of integrity in an office of honor; Fourth. Words prejudicing a person in his lucrative profession or trade; Fifth. Any untrue words occasioning actual damage : 1 Hilliard on Torts, ch. vii, 33; slander being an unwritten or unprinted libel: Id. 32. It is also defined to be "the publishing of words in writing or by speaking, by reason of which the person to whom they relate becomes liable to suffer some corporal pun- ishment or to sustain some damage:" Bac. Abr. 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:" Towushend on Slander and Libel, 22. LIBEL AND SLANDER. 581 66. Special Bamages. — The loss which ensues as a necessary conse- quence is termed damage ; the loss which ensues as a natural and proximate consequence is termed special damages: Townshend on Slander and Libel, 148. 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 : Id. 227. Mere appre- hension of loss is not such special damage as will maintain an action: Id. 230; Tervnlliger v. Wands, 17 N. ¥. 54; Wilson v. Goit, Id. 442. Mental dis- tress, physical illness and inability to labor, occasioned by the aspersion of words not in themselves actionable, are no grounds for special damages. The case of Bradi v. Towsley, 13 Wend. 253; and Fuller v. Fenner, 16 Barb. 333; overruled, Terwilliger v. Wands, 17 N. Y. 54; Wilsonv. Goit, Id. 442; see post, note 45 . 67. Special Damages must be Alleged. — Special damages or those damages which are not the necessary consequence of the language com- plained of, must be specially alleged in the complaint: Townshend on Slan- der and Libel, 428, citing various authorities. A pecuniary loss must be shown to entitle the plaintiff to a remedy: Beach v. Eanney, 2 Hill, 309; Eer- rick V. Lapham, 10 Johns. 281; Bollock v. Miller, 2 Barb. 630; Hershy. Bing- wali, 3 Yeates, 508. The objections that allegations of special damage — e. g., in an action for slander — are not sufficiently specific, cannot be raised by de- murrer, but only by motion to make more specific: Hewitt v. Mason, 24 How. Pr. 366. 68. Subsequent Usage. — In slander, allegations of a subsequent usage of the words complained of are inadmissible. A repetition may be proved without such allegation: Gray v. Nellis, 6 How. Pr. 290. If, 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 subse- quent action: Townshend on Slander and Libel, 231; Cooke Defam. 24; FitHer v. Veal, Gas. K. B. 542. Ordinarily, the repetition of language by another than the first publisher is not a natural consequence of the first pub- lication, and therefore, except in certain cases, the loss resulting from such repetition does not constitute special damage: Townshend on Slander and Libel, 233. 69. Specific 'Words. — The specific words in which slander is conveyed must be set forth in the petition in an action of slander; and it is not suffi- cient to state the effect of the words merely, or to allege that the defend- ant charged the plaintiff with a particular crime : Taylor v. Moran, 4 Met. (Ky.) 127. 1^0. S4S. xii. For Slander— Words Spoken in a Foreign Language. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., at , the defendant, in the presence and hearing of divers persons who understood the [German] language, spoke con- cerning the plaintiff the following words in the said [Ger- man] language [Here set forth the words in the German or 582 LIBEL AND SLANDER. 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 in- nuendo]. 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 in- jured in his reputation, to his damage dollars. [If special injury as to business is alleged, add, after the word reputation, the words "and business."] IDemand of Judgment.'] 70. Foreign Tongue. — Where the slanderous words were spoken in a foreign tongue, they should be set out in the complaint in the original lan- guage, accompanied by an averment of their meaning in English, and it should also be alleged that the persons present understood the language used: KeenhoUs v. Becker, 3 Den. 346; Wormouih v. Cramer, 3 Wend. 394; Lettman t. Mitz, 3 Sandf. 734; Amann v. Bamm, 8 C. B. (N. S.) 597. The complaint is, however, amendable in this respect, upon terms: 3 Sandf. 734. 71. Foreign 'Words. — In the case of foreign words, it must be alleged that the persons present understood them: Wormouth v. Cramer, 3 Wend. 394; Stark. Slan. 360; Zeig v. Ort, 3 Chand. 26; Amann v. Damm, 8 Com. B. (N. S.) 597. But in Ohio, it is held where words are spoken in German in a German county, it will be presumed they were understood: Bechtell v. Shailer, Wright, 107. N'o. 343. xiii. For Slander — The Words not being Actionable in Themselves. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant said to one CD., concerning the plaintiff ["He is a young man of remarkably easy conscience"]. II. That the plaintiff was then seeking employment as a private secretary to the said CD., and the defendant meant by the 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 of Judgment '] EIBEL AND SLANDEB. 583 72. Innuendo. — Where tlie words themselves are ambiguous, aBd do not necessarily impute a crime, the innuendo cannot enlarge the meaning of the words spoken beyond the averment of the intention by which the speaking of the words is introduced : Weed v. BibUns, 35 Barb. 315 ; and see Fry v. Bennett, 5 Sandf. 54. As to the office of the innuendo as employed prior to the code, consult Mott v. Comstock, 7 Cow. C. 54; Id. 658; Tyler y. Tillotson, 2 Hill, 507; Butler v. Wood, 10 How. Pr. 222; Tillotson v. Cheatham, 3 Johns. 56; Van Vechten v. Hopkins, 5 Id. 211; Zindsey v. Smith, 7 Id. 359; Vaughan T. Havens, 8 Id. 109; Fry v. Bennett, 5 Sandf. 54; Andrews v. Woodmansee, 15 Wend. 232; Cornelius v. Van Slyck, 21 Id. 70; Croswell v. Weed, 25 Id. 621. It may be averred that the defendant, by means of the words, insinu- ated and meant to be understood by the hearers as charging the plaintiff with the crime imputed: Eundell v. Butler, 7 Barb. 260. But if the words are un- ambiguous, such averment is unnecessary: Walrath v. NeUis, 17 How. Pr. 72. And where the innuendo extends the meaning, the excess in meaning may be disregarded: Carroll v. White, 33 Barb. 615; Weed v. Bibhins, 32 Id. 315. 73. Tenor, Import and Effect It is bad pleading to aver in the com- plaint that defendant uttered " certain false and defamatory words and state- ments, 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: Forsyth v. Edmiston, 2 Abb. Pr. 430; Maitland v. Goldney, 2 East, 426; Cook v. Cox, 3 Mau. & S. 110. Of the former rules of pleading and evidence in actions of slander, and their operation : Bishey v. Shaw, 2 Kern. 67. 74. 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 intent to affect his credit, have a very different meaning from their ordi- nary one, and so taken may sustain an action: Beardsley v. Tappan, 1 Blatch. 588. 75. Words of Disgrace. — Mere words of disgrace, unless written and published, are not actionable: Johnson v. Brown, 4 Cranch C. Ct. 235. 76. 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: Linden v. Graham, 1 Duer, 672; Hallock v. Miller, 2 Barb. 630; Fvans T. Harries, 1 H. & N. 251: Hartley v. Herring, 8 T. B. 130; Harrison v. Fearce, F. & F. 567. No. SU- xiv. For Slander Respecting Plaintiff's Trade. [Title.] The plaintiff complains, and alleges : I. That at the time of the commission of the grievances hereinafter mentioned, the plaintiff was engaged in busi- ness as merchant [or as the case may be], and had always maintained a good reputation and credit as such [mer- chant]. 584 LIBEL AND SLANDEE. II. That on the day of , 187., the defendant, in the presence and hearing of a number of per- sons, maliciously, and with intent to cause it to be believed that the plaintiif kept false and fraudulent books of account in his said business, published the following words con- cerning this plaintiff, and concerning his said business: "He keeps false accounts, and I can proye it" [or state the words complained of]. III. That the said words were false. IV. That in consequence of said words, a number of per- sons, and in particular [name the persons referred to], who had theretofore been accustomed to deal with the plaintiff in his business aforesaid, ceased to deal with him, and the plaintiff was thereby deprived of their custom, and of the profits which he would otherwise have made by a continu- ance of such dealing, and was otherwise injured in his reputation, to his damage dollars. l_Demand of Judgment.'] 77. Clerk or Tradesman.— lu an action for slander, where words are charged to have been spoken of and concerning a defendant, as a clerk or tradesman, which, it is alleged, was his profession, it is nnneoessary to allege special damage: Butler v. Howes, 7 Cal. 87. 78. Dishonesty. — Imputations charging dishonesty against an individ- ual in connection with his business are slanderous per se : Powles v. Bovsen, 30 N. Y. 20. 79. Ignorance and Want of Skill. — Gross ignorance and want of skill in his profession, as against a physician: Becor y. Harris, 18 Barb. 425; Carroll v. While, 33 Barb. 615. 80. Insolvency. — An imputation of insolvency against a petty trader is actionable: Carpenter y. Dennis, 3 Sandf. 305. 81. Mechanical Trade.— Words imputing to a mechanic want of skill or knowledge in his craft, are actionable, per se, if they are clearly shown to have been spoken with reference to the plaintiff's occupation, and the em- ployment is one requiring peouhar knowledge and skill: Fitzgerald v. Bed- field, 51 Barb. 484; S. C. 36 How. Pr. 97. 82. Physician. — Where words are actionable only because 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: Carroll^. White, 33 Barb. 615. 83. Special Averment — Discharge from Employ. — That by reason, etc., one A, B., who had theretofore retained plaintiff in the capacity of LIBEL AND SLANDER. , 585 , for afterwards, on , discharged the plaintiff from his employ. 84. Special Averment — Refusal to Deal That by reason of the com- mitting 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, 85. Special Averment — Refusal to Employ. — 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 commencement of this suit, refused to employ the plaintiff in his service; and the plaintiff from thence remained out of employment for months. 86. Special Averment — Refusal to Retain in Employ. — That by reason [etc.], one , who otherwise would have re- tained 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.] 87. Special Averment — Refusal to Sell. — 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. 88. 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 busi- ness, jury may assess damages for a general loss or decrease of trade. As a general rule, the customers so lost should be named: Mayne on Damages, 278, 317; 2 Phil, on Ev. 248; Feise v. Under, 3 B. & P. 372; Tobias v. Ear- land, i Wend. 537; Salloek v. Miller, 2 Barb. 630. The loss of a customer is special damage, although if the dealing had taken place, the plaintiff would have lost by it: Storey v. Challands, 8 C. & P. 234. For cases on the subject of averring special damages in actions of slander, see Sallock v. Millei', 2 Barb. 630; KeenholisT. Becker, 3 Den. 346; Beach v. Eanney, 2 Hill, 309; Serrick v. lapham, 10 Johns. 281; Olmsted v. Miller, 1 Wend. 506; Sewall v. Catlin, 3 Id. 291; Williams v. Hill, 19 Id. 305; ShipmauY. Burrows, 1 Hall, 399; Harcourt v. Harrison, Id. 474. For averment of special damages, see Turner v. Foxhall, 2 Cranch, 0. Ct. 324; see ante, note 24. No. S45. XV. For Slander — Cliarging a Criminal Offense, [Title.] The plaintiff complains, and alleges : I. That at the time of the commission of the grievances hereinafter mentioned, the plaintiff sustained a good name and character among his neighbors and acquaint"&.nces, for moral worth and integrity, and was never suspected of the crime of forgery. II. That on the day of , 187., the de- fendant, in the presence and hearing of a number of 586 _ LIBEL AND SLANDEB. 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.'\ 89. Actionable Language. — When language imputes a charge which, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, it is actionable per se: Townshend on Slan. and Lib. 152. And this rule has been followed in most of the States: See Brooker v. Coffin, 5 Johns. 188; Young v. Miller, 3 Hill, 22; see, also, 36 Barb. 438; 19 Johns. 367; 9 Wend. 141; 23 Conn. 585; 3 Serg. & K. 255; 10 Serg. & E. 18; 2 Harrison (N. J.) 12; 1 Dutcher, 116; 3 Kich. 242; 3 Harr. 77; 9 Porter, 525; 1 Doug. (Mich.) 67; 21 Penn. 522;' 7 Vt. 439; 1 Am. Lead. Cas. 113 (3d Ed.) In some of the States it seems that all oral language which imputes an indictable offense, or an offense punishable at law, is actionable per se: Foe v. Grever, 3 Sneed, 666; Dunnell v. Fiske, 11 Metcf. 551; Edgerley v. Swain, 32 N. H. 481; Tenney v. Clement, 10 N. H. 57. Or an indictable offense: Kinney v. Sosea, 3 Harr. 77. 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 immediate penalty: Sirch v. Benton, 26 Mo. 153; Billings v. Wing, 7 Vt. 439. Words which impute trespass, assault, battery, and the like are not actionable per se, and yet those offenses are punishable by indictment : Smith V. Smith, 2 Sneed, 478; Dudley v. Horn, 21 Ala. 379; Billings v. Wing, 7 Vt. 439; see note 49. 90. >A7'ords subjecting Plaintiff to Crirainal Prosecution.— Words imputing to plaintiff an act subjecting him to a criminal prosecution, must also impute moral turpitude, or something infamous or disgraceful, detract- ing from the character of the offender as a man of good morals: Quinn v. O'Oara, 2 E. D. Smith, 388; jPike v. Van Warmer, 5 How. Pr. 171; Dias v. Short, 16 How. Pr. 322; Weed v. Bibbins, 32 Barb. 315. No. 346. xvi. For Slander — Words Directly Charging a Criminal Offense — Several Causes of Action. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187., at , the defendant, in a certain discourse which he had with one A. B., in the presence and hearing of divers persons, spoke the following words concerning the plaintiff' [set forth the words]. II. That on the day of , 187., at , the defendant, in a certain other discourse which he then had LIBEL AND SLANDER. 587 in the presence and hearing of divers other persons, spoke concerning the plaintiff the following other words [set forth the words]. III. That all said words were false and defamatory. IV. That in consequence of the said speaking of said words, etc. IDemand of Judgment.'] 91. Words Charging Offenses. — ^Words charging a burning amounting to arson, -whether by common law or by statute, 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 furandi, the personal property of another. Or imputations charging a person with being a receiver of stolen goods : Dias v. Short, 16 How. Pr. 322. As to the imputation of stealing goods, when and where not slander- ous per se, and to what extent, see Coleman v. Playsted, 36 Barb. 26 ; Maybee v. Fisk, 42 Barb. 326. So of a direct charge of perjury: See Townshend on Slan. and Lib. 165, et seg., and the cases there cited, Wilbur v. Ostrom, 1 Abb. Pr. (N. S.) 275. So of an imputation of willful perjury in a suit pending: Walrath v. Nellis, 17 How. Pr. 72; Baker v. Williams, 12 Barb. 527. No. 34.7. xvii. Slander — For Words Directly Charging Perjury. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , 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 rendered liable to prosecution for perjury, to his dam- age dollars. I Demand of Judgment.] 92. 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 war- rant a verdict for the plaintiff, in case the jury find that they were uttered with the intention above stated, and were so understood; and it is not neces- sary to give additional evidence that the suit was in a court of competent ju- risdiction, or that the plaintiff swore falsely, with a corrupt intent: Sern v. Towsley, 51 Barb. 385. 588 LIBEL AND SLANDEE. 93. Perjury in Another State. — In a declaration for slander, in charg- ing 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: Sparrow v. Maynard, 8 Jones L. (N. C.) 195. As to the charge of false swearing, and the extent of the responsibility of the de- fendant, see Wilbur v. Ostrwn, 1 Abb. Pr. (N. S.) 275. No. 348. xviii. Slandir — Por Words Gharcjing Perjury, and Containing Special Inducements, [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , a certain action was pending before A. B., a Justice of the Peace in and for the county of , wherein CD. was plaintiff and E. F. was defendant, and in which suit the plaintiff was duly sworn before the said justice, and gaye 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 , 187., at , the defendant, in a discourse which he had in the presence and hearing of sundry persons, spoke and published of and concerning the plaintiff, and concerning the said trial and testimony 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 B. F.; he said he did not know that M. had run away, and it was a lie, for he did know it;" meaning that the plaintiff, at the trial of the action aforesaid, had, as a witness, sworn falsely, and committed willful and corrupt perjury. III. That in consequence of said speaking of said words, etc. [as in preceding form.] IDemand of Judgment.'] MALICIOUS PROSECUTION, 689 CHAPTEE IV. MALICIOUS PROSECUTION. No. 349. i. Common Form. [Title.] The plaintiff complains, and alleges: I. That on the.... day of , 187., at , the defendant obtained a warrant for the arrest of this plaintiff from [a police justice of the said city, or as the case may be], on a charge of , andthe 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 without probable cause. III. That on the day of , 187., the said justice dismissed the complaint of the defendant, and ac- quitted the plaintiff [or the grand jury of the county of ignored the bill against the plaintiff, or other- wise show a termination favorable to him]. lY. 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 other- wise injured in his good name and reputation, and whereby and by means whereof he hath sustained damage in the sum of dollars. {_ Demand of Judgment. 1 1. Causes of Action not Assignable. — Causes of action arising otit of personal torts which do not survive to the perRonal representatives of a party, are not assignable: 3 Kern. 322; 36 Barb. 270; 1 Seld. 347; Boyd v. JSlankman, 29 Cal. 19; Comegys v. Vasse, 1 Pet. 193. So a cause of action for a malicious prosecution is not assignable: Lawrence -v. Martin, 22 Cal. 173. 2. 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: Herron v. Hughes, 25 Cal. 560. An allegation that the defendants have fraudulently confederated and conspired together for the purpose of harassing the plaintiff, by prosecuting separate suits against him for the same cause, and that such suits have been commenced, and are 590 MALICIOUS PBOSECUTION. prosecuted in pursuance of such conspiracy, is not sufScient to sustain an action, or uphold an injunction, 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 defend- ants have brought separate actions for the same cause, and by the same attorney. Fraud in such a case is not to be presumed; and the conspiracy should be distinctly averred: McHenry v. Hazard, 45 Barb. 657. . 3. Conspiracy, Averments in Action of. — In an action for a con- spiracy, the rule is to allow a great latitude in setting out in the complaint the particular acts from which the conspiracy is to be inferred, even so far as to allow the individual acts of the conspirators to be averred : Mussina v. Clark, 17 Abb. Pr. 188. So far as the allegations of such acts are scandal- ous, they should he stricken out, unless they appear to relate to the founda- tion of the plaintiff's action : Id. 4. Conviction — The fact that the plaintiff was convicted by a jury is conclusive; and, if apparent in the complaint, will be fatal to the suit for damages: Miller v. Deere, 2 Abb. Pr. 1. Nor will a reversal, for error of law, prevent the application of the rule. The only exception is when fraud in obtaining a conviction, by means which prevented the plaintiff from set- ting up bis 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, in Brockleman v. JBrandl, 10 Abb. Pr. 141 . Nor does suffering default have this effect, where probable cause existed at the first: Oordon v. ITpliam, i E. D. Smith, 9. 5. Corporation. — An action for malicious prosecution will lie against a corporation, if it has power to authorize the act done, and has done so: Vance v. Erie Railway Co., 3 Vroom, 334; see "Assault and Battery," note 18. That a corporation is not liable to such an action, but may be sued in trespass for false imprisonment, see Owlsley v. Montgomery H. R. Co., 37 Ala. 560; see ante, note 30, p. 215. 6. Damages — The jury are the proper judges of the amount of damages to he allowed in actions for malicious prosecution: Chapman v. Bodd, 10 Minn. 350. Evidence of the general bad reputation of the plaintiff is admis- sible in reduction of damages: Fitzgihhon y . Brown, 43 Me. 169; see, also, WhiU V. Tuclcer, 16 Ohio St. 468. 7. Defective Complaint. — In an action for a malicious issuing and prosecution of a writ of attachment, a defect, if any, in the complaint, in 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: Levey v. Fargo, 1 Nev. 415. 8. Essential Averments.— In an action for malicious prosecution, the plaintiff must aver and must prove an entire want of probable cause for the accusation, and actual malice of the defendant in preferring itn-that is, malice in fact, as distinguished from malice in law; Bulkeley v. Smith, 2 Diier, 261; 11 L. Q. 200; Besson v. Southard, 6 Seld. 236. Both malice and want of probable cause are essential, and must be stated and proved; also, that the prosecution is at an end, and how it was concluded: Brown v. Chadsey, 39 Barb. 253; Hull v. Vreeland, 42 Barb. 543; 18 Abb. Pr. 182; MoKown V. Emter, 30 N. Y. 625. An averment that the prosecution was MALICIOUS PEOSECUTION. 591 without probable cause is indispensable, and its omission fatal: Zohrfink v. Still, 10 Md. 530. The want of probable cause being the primary question in such actions: Grant v. Moore, 29 Gal. 644. For, though malicious, the de- fendant is not liable unless there be a want of probable cause: Payson t. Caswell, 9 Shepley, 212; Wood v. Weir, 5 B. Monr. 544; Leidig v. Eawson, 1 Scam. 272. The necessity of the concurrence of all three of the above ele- ments, i. e., want of probable cause, malice in fact, and actual determina- tion in favor of the plaintiff, is maintained in VanderUU v. Mathis, 5 Duer, 304; see, also, as to pleading, 8 N. H. 157; 6 Watts & Serg. 336; 5 Blackf. 428; 3 Monr. 208; see, also, Bichardson v. Virtue, 2 Hun, 208. 9. Facts only must be Alleged.— In an action for malicious prose- cution, only the substantial matter constituting the action, that is, facts, and not the evidence of facts, need be set out: Dreux v. Borneo, 18 Cal. 83. 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: Hickman v. Griffin, 6 Mo. 37. 10. G-ist of Action. — The action lies against several defendants, and the gist of the action is the malicious prosecution: Dreux v. Somec, 18 Cal. 83. 11. Indebtedness. — The averment of no indebtedness may be omitted, and a suit maintained for maliciously suing out an attachment : TonUinson V. Warner, 9 Ohio, 103. 12. Joint Agency, Allegation of. — In suit against three defendants for malicious prosecution, the complaint averred that "defendants, contriv- ing and maliciously intending to injure the plaintiff," etc., falsely, mali- ciously, and without probable cause, procured him to be indicted for murder: Meld, that the complaint snfdciently avers a joint agency on the part of de- fendants in instituting the prosecution: Dreux v. Domec, 18 Cal. 83. 13. Malice — Malice and falsehood are essential ingredients in an action for malicious prosecution: Flali y. Nilea, 1 Adm. 230. Malice, as well as want of probable cause, is necessary to sustain an action for malicious prose- cution: Riney v. Vanlandingham, 9 Mo. 807; Frissellv. Selfe, Id. 849. Malice, in its legal sense, means a wrongful act, done intentionally, without just cause or excuse: Maynard v. Fi. Fund Ins. Co., 34 Cal. 48. Malice cannot be presumed in a prosecution where the defendant has incurred all the moral guilt of the charge, although he may have evaded the penalty of the law: Sears v. Hathaway, 12 Cal. 277. Malice, like fraud, is to be inferred from facts and circumstances: Zyon v. Hancock, 35 Cal. 376. A petition which omits to state that the prosecution was malicious, and that the plaintiff was acquitted, is insufficient: Mooney v. Kennett, 19 Mo. 551. Public policy and security require that prosecutors should be protected by the law from the 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 : Potter V. Seale, 8 Cal. 217. 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 cannot be said to act maliciously, although he may act unlawfully; Lyon v. Hancock, 35 Cal. 372. 14. Motive In an action for malicious prosecution, the complaint may aver matter tending to show the defendant's motive— e. g., a malicious pub- 592 MALICIOUS PROSECUTION. lioation by him procured to be made concerning the prosecutor — suoh aa would be proper to prove at the trial as showing special injury. Such aver- ments should not be stricken out on motion, as the plaintiff cannot be deemed aggrieved by them: BrockUman v. Brandt, 10 Abb. Pr. 141. 15. Probable Cause. — Probable cause may be defined as a suspicion, founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true: Potter v. SeaU, 8 Gal. 217; Hall v. Saw- kins, 5 Humph. 357; Faris v. Starke, 3 B. Monr. 4; 9 Shepley, 212; 11 Id. 566; 4 Dana, 120. 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: Boss v. Iimis. 35 111. 487. 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 prosecutor'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 : Scanlan v . Gowiey, 2 Hilt. 489; see, also, FooU v. Milbier, 46 How. Pr. 38; Farnliam v. Feeley, 56 N. Y. 451 ; Carl v. Ayers, 53 N. T. 14. And from the want of probable cause, malice maybe inferred: Grant y. Moore, 29 Gal. 644; and is a mixed ques- tion of law and fact: Id. It is a question for the court, but the jury must decide upon the facts: Brard v. Biggins, 10 Mo. 728. 16. Probable Cause, vrhen it Exists If the defendant 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: Qrant v. Moore, 29 Gal. 644. So, a judgment against the plaintiff after trial on the merits, is sufficient evidence of probable cause, though subsequently re- versed— not however conclusive, if impeached for fraud: Palmer v. Avery, 41 Barb. 290. Where two actions have been abandoned, by the plaintiff's failure to appear at the adjourned day, and a new action has been com- menced before another justice for the same demand, which is still pending, the litigation is not terminated, and want of probable cause cannot be in- ferred solely from the discontinuance of the former suits: Id. A committal to await the action of the grand jury is not conclusive evidence of probable cause: Ilaupiy. Pohlman, 16 Abb. Pr. 301. 17. Privileged Charges. — As to the remedy by action for malicious prosecution, for false and malicious charges preferred in legal proceedings and deemed privileged from an action for defamation, see Perkins v. MitcheU, 31 Barb. 461. 18. Special Damages. — Expenses of counsel, made necessary by a ma- licious prosecution, are to be specially alleged: Strang v. Whitehead, 12 "Wend. 64. 19. Vigilance Committee For a complaint in an action against a vigi- lance committee, see Moloney v. Bows, 2 Hilt. 247. 20. What must be Shown. — To sustain an action for malicious prose- cution, the plaintiff must show affirmatively that the prosecution was ma- licious, and without probable cause, both concurring: Cooky. Walker, 30 Ga. 519. 21. When Action will Lie — An action for a malicious 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: Miller v. Brown, 3 Mo. 127. MALICIOUS PEOSEODTION. 593 22. When Action ■will not Lie. — Such an action does not lie ■vrhere 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 ap- pear that property was attached to a greater value than the amount of such claim: Grcmt v. Moore, 29 Cal. 644. No. S60. ii. The Same — Fuller Form. [Title.] The plaintiff complains, and alleges : I. That on the clay of , 187., at , the defendant appeared before , a Justice of the - Peace of said county [or the Police Judge of said city], and charged the plaintiff, before said justice, with having [feloniously stolen a certain 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 187., 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 same. V. That the said charge and the arrest of the plaintiff thereunder were extensively published in several public newspapers, among others the , as the plaintiff believes, through the procurement of the defendant. VI. That by means of the premises the plaintiff was in- jured in his person, and prevented from attending to his business, and paid dollars costs, counsel fees in defending himself, and in obtaining bail; and he lost his situation as servant of ; and many persons, whose names are unknown to the plaintiff, hearing of the said arrest, refused to employ him, and whereby also he has been injured in his good name and reputation, to his damage dollars. IDemund of Judgmenfi 39 694 MALICIOUS PEOSECUTION. No. 351. iii. For Procuring Plaintiff to be Indicted. [Title.] The plaintiff complains, and alleges : I. That on the .... day of , 187 . , 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 indictment against the said plaintiff. II. That in so doing, the defendant acted maliciously and without probable cause. III. That afterwards, to wit, at the term of the said court, begun and held on the day of , 187 . , 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 indictment 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 proceeding thereof remaining in said court appears. IV. [State special damages.] [Demand! of Judgment.'] 23. For Procuring Plaintiff to be Indicted. — For the law on this subject, see 1 Saund. 228; 9 East, 361; 1 T. K. 493; Anderson v. Buchanan, Wright, 725; Morris y. Scott, 21 Wend. 281; Williams y. Munter, 3 Hawks, . 545; Dennis v. Ryan, 63 Barb. 145. m. S52. iv. The Same — Por Obtaining Indictment on which a Nolle Prosequi was Afterwards Entered. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant procured 0. D., then the District Attorney in and for the county of , in this State, to issue sub- penas for the purpose of compelling and procuring the attendance of witnesses, among others, one A. B., at the court, held on the day last mentioned at , MALICIOUS PROSECUTION. 595 in said county, before the grand jury and persons serving as grand jurors at such term of the 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 impoverish 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 probable cause, procured the grand jury aforesaid to find and present to the said court an indictment against the plaintiff for said alleged [state pretended charge]. VT. That the defendant falsely and maliciously, and without probable cause, procured a bench warrant, di- rected 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 by the court of said county of ; and afterwards, on or about the day of , 187 . , 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 aforesaid indictment against him, pur- suant to and as required by said bond. Whereupon the aforesaid District Attorney, after consulting and advising with the defendant, and at his request, and by his instruc- tions, did then and there move the said Court that the plaintiff be discharged out of custody, and be fully dis- charged and acquitted of the said indictment and of the supposed offense therein charged against him, and be no 596 MALICIOUS PROSECUTION. further prosecuted thereon; whereupon the said Court, hav- ing heard and considered all that the said defendant and 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 indict- ment, and be not further prosecuted thereon. yill. That the said indictment, complaint, and prosecu- tion, are, and each of them is wholly ended and determined in favor of this plaintiff. IX. [Special damage, if any, as in other cases.] [_Demand of Judgment.'] 24. Dismissal. — An immediate dismissal by a magistrate of a prosecu- tion when commenced, is, it would seem, prima /acie proof of the want of probable cause: Oould v. Sherman, 10 Abb. Pr. 441. 25. Nolle Prosequi Entry of nolle prosequi was held insufficient for that purpose: Bacon v. Townsend, 2 C. R, 51; Hall v. Fisher, 20 Barb. 441; Brown v. Lakeman, 12 Gush. (Mass.) 482; 6 Mod. 261; contra, Yocum v. Polly, 1 B. Men. 358; 6 Blackf. (Ind.) 5Q4. No. 353. V. The Same — Where Judgmevi of Acquittal was Bendered. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , at , the defendant caused and procured to be sued out of the Court, in and for the County of , a certain writ of attachment, 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 store of goods, wares and merchandise of the said plaintiff, and took the same into his possession, and the said defendant afterward applied to the said Court [or to Hon. C. D., Judge of said Court], and ob- tained 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 MALICIOUS PEOSECUTION. 597 without probable cause, and unjustly contrived and in- tended to injure the said plaintiff and break up his busi- ness — he, the said plaintiff, then being engaged in the busi- ness of a merchant. III. That the said action of the said defendant afterward came on for trial at the term of said Court, 187 ., and was tried, and a verdict and judgment rendered in favor of the said plaintiff, to the damage of the said plaintiff dollars. \_Demand of Judgment."] 26. Acquittal Essential An action for malicious prosecution cannot 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 entirely unsupported, is not sufficient: Grant v. Moore, 29 Gal. 644; Thom- asony. Demoite, 9 Abb. Pr. 242; 18 How. Pr. 529. The plaintiff's acquittal must be alleged. An allegation that he has been discharged is not sufficient. Morgan v. Sughes, 2 T. E. 225; Bacon v. Townsend, 2 Code E. 51. It is not enough to aver that the prosecuting officer declared the complaint frivolous, and refused to try it: Thomason v. Demotte, 9 Abb. Pr. 242. The rule that the prosecution must have terminated favorably to the plaintiff, does not ap- ply in case of an attachment against, his property, sued out in his absence, and which lie had no opportunity to defend: Bump v. Betts, 19 Wend. 421. No. 354. vi. For Malicious Arrest in a Civil Action. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , the defend- ant, maliciously intending to injure the plaintiff, made affi- davit, 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 affidavits 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 without probable cause. III. That on the day of ,187., said order was vacated by said Court, upon the ground that [set forth the grounds on which it was vacated]. [Or, in. That on the day of , 187., such pro- 598 MALICIOUS PKOSECXJTION. ceedings were had in such action, that it was finally deter- mined in favor of this plaintiff, and judgment was rendered for him therein.] IV. [Special Damage.] That many persons, whose names are unknown to plaintiff, hearing of the arrest, etc. [as in Form No. 349], to the damage of the plaintiff dol- lars. [Demund of Judgment.l 27. Jurisdiction. — But if a complaint shows that the arrest was without ■ jurisdiction, it may be good as alleging a trespass, without averring a deter- mination in favor of plaintiff: Steely. Williams, 18 Ind. (Kerr.) 161; Searll V. McCracken, 16 How. Pr. 262. 28. Malice. — 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 cannot be said to act maliciously, although he may act unlawfully: Lyon v. Hancock, 35 Cal. 372. 29. 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: Cal. Code C. P., sec. 427; as for libel or slander: Watson v. Hazsard, 3 Code K. 218; Maiiin v. Maitison, 8 Abb. Pr. 3. 30. When Action w^ill 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: Chapman v. Dodd, 10 Minn. 350. An action for malicious prosecution will lie against a creditor who effected the arrest and imprisonment of his debtor by alleging 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 requires 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: Phil, on Ev. 261; 3 Barn. & Cress. 139; 7 Eng. Com. Law, 177; 26 Eng. L. and Eq. K. 200; 4 Serg. & K. 19; 13 Id. 64; Browny. Mclntyre, 43 Barb. 344. 31. When 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 war- rant, charging an act which is not a crime, but merely a trespass, as the war- rant was void, and the proper remedy for an arrest on such a warrant is trespass : Kramer v. Lott, 50 Penn. 495 ; but see Dennis v. Ryan, 63 Barb. 145; Newfield v. CoppermMi, 47 How. Pr. 87. Bona fide acts of a party, on advice given by counsel, after a full and fair statement of the facts, is evi- dence of probable cause, however erroneous the advice maybe: Richardson v. Virtue, 2 Hun, 208; Eastman v. Keasor, 44 N. H. 514. FOE PEESONAL INJUEY CAUSED BY NEGLIGENCE. 599 CHAPTEK V. , FOE PEESONAL INJUEY CAUSED BY NEGLIGENCE. No. 355. i. For Injuries Caused by Collision of Vehicle Driven Try Servant. [TiTM.] The plaintiff complains, and alleges : I. That on the day of , 187., the plaintiff was driving along the public highway, in 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 high- way, in the possession of defendant [or of defendant's ser- vant]. III. That defendant [or that said servant] 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 attend- ance and nursing, and dollars for the repair of his said carriage, to his damage dollars. I Demand of Judgment.'} 1. Carrier's Contract. — Passenger carriers bind themselves to carry- safely those whom they take into their coaches or cars, as far as human care and foresight will go; that is, for the utmost care and diligence of very cautious persons: Story on Bailments, sec. 601. The words " care, dili- gence and foresight, ' ' imply a relation to future events : Wlieaton v. N. B, and M. B. B. Co., 36 Cal. 590; see Civil Code Cal., sec. 2100-2104, in- clusive. 2. Damages.— If by the negligent driving of defendant's servant his vehicle runs into another which is driven with due care, and causes the horse of the latter to take fright and run away, and said horse runs into the plaint- iff's vehicle and injures him when he is using due care, the damage is not too remote to be recovered: McDonald v. Snelling, 14 All. 290. In a case ot simple negligence in which the elements of fraud, malice, or oppression do not enter, only actual damages can be reeovered: Moody v. McDonald, 4 Cal. 297; Sedg. on Measure of Dam. 39; .Keeue v. Xuardi, 8 La. Kep. 0. S. 390. In actions of this character, all the circumstnuces in the case may he taken into consideration 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 principal is liable only for 600 FOE PEESONAL INJUEY CAUSED BY NEGLIGENCE. simple negligence, and exemplary damages cannot be imposed: Citing 3 "Wheat. 546; Wardrohe v. Cal. Stage Co., 7 Cal. 120. The only damage which can be recovered in such actions are such as are commensurate with the injury alleged to have been sustained, or actual damages: Greenl. on Ev. sec. 253; Whittemore v. Cutter, 1 Gall. 438; Bateman y. Goodyear, 12 Conn. 580; Dain v. Wycoff, 3 Seld. 193. 3. 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 detected, and which arises from no fault of the manufacture : Eead- head Y. Midland B. B. Co., L. K. 4 Q. B. 379; 2 Q. B. 412; 2 Am. Law E. 107. 4. Liability for Negligence If a child under four years of age is in- jured by the negligence of third persons in the street of a city traversed con- stantly by cars and other vehicles, his father cannot recover for loss of ser- vice if he has knowingly suffered such child to be in the street unattended: Glassey v. Sestonville B. R. Co., 57 Penn. 172. Otherwise of an action by the child itself, although the negligence of a volunteer undertaking to inter- fere for the child's benefit contributed to the injury: North Penn. B. B. Go. V. Mahoney, 57 Penn. 187. 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, explodes it, and is burned by the same, and a license to sell gunpowder is no defense: Carter v. Towne, 98 Mass. 576. As to what constitutes negligence, see ante, p. 192, et seq. 5. Master and Servant— General Doctrine.— The general doctrine maintained that the master or employer is responsible for act or omission of servant or employee within scope of his employment or authority : If. Y. & if. H. B. B. Go. V. Schuyler, 34 N. Y. 30; Chapman v. N. T. Cent. B. B. Co., 33 Id. 369; Brew v. Sixth Av. B. B. Co., 26 Id. 49; Lannen v. Albany Gas Light Co., 46 Barb. 264; Carman -v. Mayor of N. T., 14 Abb. Pr. 301; Annett T. Foster, 1 Daly, 502; Meyerv. Second Av. B. B. Co., 8 Bosw. 305; Merrick v. Brainard, 38 Barb. 574; not affected by partial reversal: 34 N. Y. 208. One whose servant negligently throws a keg out of a window, and injures a person passing through a passageway below, is liable, although such person was there only by license: Corrigan v. Union Sugar Befinery, 98 Mass. 577. But the employer held not responsible for willful injury committed by em- ployee: Garvey v. Bung, 30 How. Pr. 315. For injury by negligence, both employer and employee may be sued together: Phelps v. Wait, 30 N. Y. 78. Municipal corporation not liable for negligence of members of its paid fire department: Boward v. San Francisco, 51 Cal. 52. No. 356. ii. Against Common Carriers — For Injuries Caused by Overturning Stage Coach, [Title.] The plaintiff complains, and alleges : I. That on the day of , 187., the de- f endfint was a common carrier of passengers for hire by stage coach between and II. That on that day, as such carrier, he received the FOE PEBSONAL INJDBY CAUSED BY NEGLIGENCE. 601 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 ], the said coach was, by and through the carelessness and negligence of the said defendant, overturned and thrown down, with the plaintiff therein, 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 during all that "time pre- vented from attending to his business and carrying on the same; and the said plaintiff was forced to expend, and did expend, the sum of dollars for medical attendance and nursing, to his damage dollars. \_I)emand of Judgrmnt.] 6. Essential Averments — It is only necessary to prove the overturn and the injuries sustained. The presumption of law is that the overturn occurred through the negligence of the defendant: Boyce v. Cal. Stage Co., 25 Cal. 460. 7. Form — In an action on the case for an injury sustained by the upset- ting 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: 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 : Stockion v. Bishop, 4 How. TJ. S.- 155; see, also, Washington v. Ogden, 1 Black, 450. 8. Material Averments. — In an action for an injury sustained by the oversetting of defendant's stage coach, plaintiff alleged that he paid for his passage the sum of ten dollars: Held, to be a material allegation: Sarris v. Bayner, 8 Pick. 541. 9. Overturning Plaintiff's Carriage 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: 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 : Hill v. Portland M. B. Co., 55 Me. 438. 10. Paid Fare Carriers cannot protect themselves from liability for gross negligence, by contract: lUinois Cent. B. B. Co. v. Adams, 42 111. 474; 602 POK PERSONAL INJURY CAUSED BY NEGLIGENCE. see Adams Exp. Co. v. Haynes, Id. 89, 93. Otherwise when the passenger is carried free: Kinney v. Cent. B. B. Co., 3 Vroom, 407; but see Penn. B. B. Co. V. Builer, 57 Penn. 335. 11. 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: Drew v. Sixth Avenue B. B. Co., 3 Keyes, 429. 12. 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 in consequence: Held, that defendant was liable, although he did not know that the hog was at large : Jewett v. Cage, 55 Me. 538. 13. "Who Liable. — Where one owning a carriage hires horses and driver of B., for an injury resulting from the carelessness of the driver, B. alone is liable: Quarman v. Burnett, 6 M. & W. 497; Bapson v. Cubitt, 9 Id. 709; SobMtt V. N. W. B. B. Co., 4 Welsh, Hurlst. & Gord. 254; Allen v. Hayward, 7 Adol. & Ellis (N. S.) 960. A municipal corporation is liable for injuries ensuing from neglect of its employees or officers: Lloyd v. Mayor of N. T., 1 Seld. 369; contra, Howard v. San Francisco, 51 Gal. 52. The fact that the driver of the carriage and horses was their owner was conclusive in estab- lishing that the relation of master and servant did not exist; and so far as the defendant's liability rested upon the existence of such relation he was not responsible for the injury which the plaintiff received through the negli- gence of the driver: Boniface v. Belyea, 5 Abb. Pr. (N. S.) 259; see, further, ante, note 1, at the head of this chapter. No. 357. iii. Against a Bailroad for Injuries hy Collision. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 . , the defendant was a corporation duly incorporated under the laws of this State, and was the owner of a certain railroad, known as the Bailroad, together with the track, rolling stock, and other appurtenances thereto belonging; and was a common carrier 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 plaint- iff therefor, undertook and agreed, as such common carrier, to transport and convey the plaintiff from to , as a passenger, and the plaintiff thereupon en- tered one of the cars of the defendant to be so conveyed as aforesaid from to aforesaid. III. That while he was such passenger, at [or near the station of , or between the stations of and J, a collision occurred on the said FOE PERSONAL INJTTEY CAUSED BY NEGLIGENCE. 603 railroad caused by the negligence of the defendant and its servants, whereby the plaintiff was much injured [state the injury according to the fact, and the special damage, if any]. [Or, III. That the defendant and its servants, in manag- ing said ears 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 Judgment. ] 14. Degrees of Negligence. — Degrees of negligence are matters of proof and not of averment; and a general allegation of negligence, want of care and skill, etc., is sufScient in an action for injuries caused by such neg- ligence, whether the defendant is liable for ordinary or gross negligence : Ifolton V. Western B. R. Go., 15 N. Y. 444. And an averment of malice does not vitiate the pleading: Winterson v. Mghth Avenue B. JR. Co., 2 Hilt. 389; Robinson y. Wheeler, 25 N. Y. 252. 15. Diligence. — The same diligence is not required from a railroad com- pany toward a stranger as toward a passenger. The care required is that which experience has found reasonable and necessary to prevent injury to others in like cases: Baltimore and Ohio B. B. Go. v. Breiiiig, 25 Md. 378; see Philadelphia W. and B. R. B. Go. v. Kerr, Id. 521. A railroad company is not liable for injuries received by a passenger while voluntarily and unnec- essarily standing on the platform of a car in motion although by the express permission of the conductor and brakeman : Rickey v. Boston and L. B. B. Co., 14 All. 429. 16. General Averment of Negligence. — Ordinarily a general aver- ment of negligence is sufScient 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 oar where the driver was stationed: Oldfleld v. N. Y. and Harlem B. R. Co., 14 N. Y. 310. 17. Negligence Generally, and also Specific Acts. — Under a complaint alleging negligence generally, and also specifying 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: Edgerton v. JV. Y. and Earlem R. R. Co., 35 Barb. 389. Negligence is a question of fact, or mixed of law and fact; and in pleading it is only necessary to aver negligence generally, not the specific facts constituting the negligence: McCauley v. Davidson, 10 Minn. 418. 18. Particular Facts The complaint in an action against a railroad company, for running over a person with an engine, need not show the par- ticular facts constituting negligence on the part of the defendant, if it charges such negligence in a general way. Such complaint must show that there 604 FOE PERSONAL INJURY CAUSED BY NEGLIGENCE. , was no fault on the part of the person run over: Indianapolis, etc., E. B. Co. T. Keeley's Adm'r, 23 lud. 133; St. Louis, etc., R. W. Co., y. Mathias, 50 Id. 65; see, also, note 34, post. 19. Several Acts of Negligence.— If the plaintiff would rely on several acts of negligence as the cause of one injury, he may allege all the acts of negligence in one count, and aver that they were thg cause; and if he prove upon the trial that any one of them was the cause, his complaint is sus- tained: Diclcms V. N.Y. Central B.B. Co., 13 How. Pr. 228. 20. SufBcient Averment of Negligence. — In an action againsf a rail- road company for injuries caused by a collision with its cars, a complaint which alleges thatthe defendant, with carelessness and with gross negligence, caused one of its engines to run upon the track, etc., sufficiently charges negligence: Ohio, etc., B. B. Co. v. Davis, 23 Ind. 553. 21. 'Without the Bounds of the State. — An action cannot be main- tained under the statute for a wrongful act causing death, where such act occurred without the bounds of the State: Mahler v. Norwich and N. Y. Trans. Co., 45 Barb. 226. No. 358. iv. The Same — By Car Bunning off Track . [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 defendant, 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 rail- road, that, on the day and year aforesaid, by the careless- ness, 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 un- able to walk, and was wholly unable to attend to the trans- action and performance 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. [Demand of JudgmenW} FOE PEBSONAL INJURY CAUSED BY NEGLIGENCE. 605 No. 359. V. For Injuries Caused iy Negligence on a Bailroad, in Omitting to give Signal. [Title.] The plaintiff complains, and alleges : I. That on the day of , 187 ., the de- fendant was a corporation duly incorporated under and pursuant to the laws of this State, and was the owner of a certain railroad, known as Bailroad, together with the track, rolling stock, and other appurtenances thereto , belonging. II. That on that day the plaintiff was traveling in a car- riage along the public highway, from to , which public highway crosses the railroad aforesaid, at , and as the plaintiff had reached said crossing, the defendants carelessly 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 care- lessly omitted their duty while approaching 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's horse, and overset the plaintiff's carriage, and plaintiff was thrown out upon the ground with such force as to fracture 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 nurs- ing, to his damage dollars. IDemand of Judgment.] 22. Omission of Duty. — The facts which are relied on as raising a duty must be alleged where the negligence consists in the omission of a duty: CUy of Buffalo v. Solloway, 7 N. X. (3 Seld.) 393; afBrming S. C, U Barb. 101; Taylor v. Atl. Mat. Ins. Co., 2 Bosw. 106; Congreve t. Morgan, i Duer, 439; Seymour v. Maddox, 16 Q. B. 326; S. 0., 71 Eng. Com. L. E. 326; and see McGinity v. Mayor, etc., 5 Duer, 674. An existing duty or obligation is an essential and necessary prerequisite or predicate of an affirmation of neglect or failure to perform: Eustace T. Jahns, 38 Cal. 3; O'Briens. Capwell, S0 Barb. 497. Neglect to ring the bell for the entire distance required by 60(') FOE PEESONAL INJUEY CAUSED BY NEGLIGENCE. law does not necessarily make the company liable, if the bell was rung or whistle sounded for such a distance from the crossing as to give the deceased timely and sufficient warning of the approaching train to prevent him from trying to cross the track: Cook v. N. T. Cent. B. E. Co., 5 Lans. 401. But see Robinson v. W. F. B. E. Co., 48 Gal. 410. STo. 360. vi. By Steamboat Explosion. [Title. ] The plaintiff complains, and alleges : I. That at the time hereinafter mentioned, the defend- ants 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 merchandise on the river, from to , for hire. II. That on the ' day of , 187., the de- fendants 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 conducted themselves, and so misbehaved in the manage- ment of said boat, that, through the negligence and unskill- fulness of themselves and their servants, the steam escaped from the boiler and engine, and burned and scalded [or 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 a long time to come will be deprived, of the assistances and services of his wife and daughter, and was compelled to, and did expend .... .... dollars in attempting to cure himself and his wife and daughter, and was for months prevented from pur- suing his business, and was otherwise greatly injured to his damage dollars. [Demand of Judgment. 1 23. Condition of Boiler.— The certificate of an Inspector does not dis- charge the liability of the owner of a boiler to the party injured by its burst- ing: Swarthout v. New Jersey Steamboat Co., 46 Barb. 222. 24. Master and Servant. — The owner of water craft is not liable for the injury willfully committed by the master or pilot running her: Turnpike Co, V. Vandermt, 1 HiU, 480. FOR PEESONAL INJURY CAUSED BY NEGLIGENCE. 607 25. Negligent Delay. — As to liability of a transportation company to passenger for injury occasioned by negligent delay, see Van Buskirk v. Eob- erts, 31 K. Y. 661. 26. Negligence in Navigating Water Craft.— The plaintiff in an action for damages for injuries caused by negligence in sailing water craft, must show that he used ordinary care: Barnes v. Cole, 21 Wend. 188; i Mc- Lean, 286; Bathbumv. Payne, 19 Wend. 399; United States y. Mayor, 5 Mo. 230; Simpson v. Band, 6 Whart. 311; Logan v. 8. B. Clipper, 18 Ohio, 375. 27. Rule of Damages. — Where the collision occurs without negligence of either party, each must bear his own loss: Stainbaek v. Eae, 14 How. tJ. S. 532; WUliamsmiY. Barrett, 13 Id. 101; HaldermanY. Beekwith, 4 McLean, 286; Barrett v. Williamson, Id. 589; 4 Harring. Bep. 228; 1 Tex. 30. 28. Rules of Navigation.— Steam vessels are bound to keep clear of sailing vessels; they are treated as having wind in their favor: St. John v. Paine, 10 How. U. S. 583; Newton v. StebUns, 10 Id. 586; Tlie "Suropa," 2 Id. 557; " Western Belle" v. Wagner, 11 Mo. 30. No. 361. vii. For Injuries to Engineer of a Railroad Company, Caused by a Collision. [Title.] The plaintiff complains, and alleges : T. That on the day of .« , 187 . , the de- fendant was a corporation, duly incorporated under and pursuant to the laws of the State of California, and was owner of a certain railroad known as Eailrdad, to- gether with the track, cars and locomotives thereto belonging. II. That one of said locomotives, and the train thereto attached, 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 de- fendant as an engineer upon one of said locomotives, at and for a certain hire and reward agreed upon by the parties in that behalf, and was accustomed to stop the said last men- tioned locomotive at aforesaid, under the instruc- tion 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 said duty, did, on the day 608 FOE PEBSONAL INJUEY CAUSED BY NEGLIGENCE. of , 187., 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 , 187 . . V. That the said defendant -wholly neglected and failed to give the said plaintiff notice of the said change in the place for the passing of said locomotives with their re- spective trains, and whilst the said plaintiff was proceeding, in his capacity of engineer as aforesaid, on one of said loco- motives, with the train thereto belonging, according to the directions before that time given to the said plaintiff by the said defendant, between and aforesaid, the other locomotive with its train, coming from to , ran against it, and violently crushed the same. YI. That by reason thereof the plaintiff was severely scalded, bruised, burnt and wounded, and became sick, sore, lame 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 attending 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 of Judgment. ^ 29. Company, when not Liable — The fact that a railroad company's servant was of a higher grade than another servant of said company, injured through his negligence, does not make the company liable : Shauok v. North- em Central B. R. Co., 25 Md. 462; Cumberland Coal and Iron Co. v. Scatty, 27 Md. 589; McLean v. Blue Point Gravel Min. Co., 51 Cal. 255. 30. Employer, when Liable,— If injury to the employee results from fault or negligence on the part of the employer, the employer is liable: Ryan V. Fowler, 24 N. Y. 410; Connolly v. Poillon, 41 Barb. 366. But if such in- jury results from defects in machinery, etc., notice of such defect must be brought home to the employer: Kunz v. Stewart, 1 Daly, 431; Loonam v. Broclcway, 28 How. Pr. 472. An allegation that defendant "negligently pro- vided " such machinery held sufficient avermentof knowledge: .Enaresftor- ough V. Belcher S. Min. Co., 3 Sawyer, 446. 31. Joinder of Parties.— Master and servant may be joined as defend- ants in an action to recover for the negligence of the servant: Montford v. Bughes, 3 E. D. Smith, 591. 32. Mutual Negligence — The rule that the plaintiff cannot recover if his own wrong as well as that of the defendant conduced to the injury, is confined to oases where his wrong or negligence has immediately or approx- imately contributed to the result: Kline v. C. P. B. B. Co., 37 Cal. 400; cit- FOB, PERSONAL INJUEY CAUSED BY NEGLIGENCE. 609 ing Needham v. San Francisco and S. J. E. J?. Co., 37 Oal. 409. A slight ■waut of care on the part of the phuntiff will not excuse gross negligence by the defendant: Beqmtte v. PtopU's Trans. Co., 2 Or. 200. 33. That Plaintifr did not Contribute to Injury. — In an action against a railroad company by one of its servants to reeoTer for injuries re- ceived through the negligence of anqther servant; the complaint must allege, either expressly, or by stating facts from which it clearly appears, that the plaintiff did not by his own fault or negligence contribute to the injury: Evansmlle R. R. Co. v. Dexter, 24 Ind. 411. 34. "Want of Ordinary Care.— It is not necessary fo'r 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: Johnson v. Hudson River R. R. Co., 5 Duer, 21; 20 N. T. 65; Wolfe v. Supervisors of Richmond, 11 Abb. Pr. 270; S. C, 19 How. Pr. 370; Burdickv. Worral, 4 Barb. 596; Holt v. Whailey, 51 Ala. 569; Texas & P. R. W. Co. v. Murphy, 46 Texas, 356; Robinson v. W. P. R. R. Co., 48 Cal. 409; contra, Zouisville, etc., R. Co. v. Roland, 53 Ind. 398; see, also, Chicago & N. W. R. Co. v. Coss, 73 111. 394. No. 36S. Tiii. For Injuries to Engineer of a Railroad Company — Said Company having Used a Condemned Locomotive. [Title.] The plaintiff complains, and alleges: I. That on the day of , 187 . , the defend- ant was a corporation, duly incorporated under and pursu- ant to the laws of the State of , and was the owner of a certain railroad, and of a locomotive propelled by steam on said railroad, and by said defendant used and employed in carrying and conveying passengers and goods [or haul- ing trains of cars containing 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 aforesaid; 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 care- lessly, negligently and unskillfully, that, by and through the carelessness, negligence and default of the said defend- 39 610 FOE PEESONAL INJURY CAUSED BY NEGLIGENCE. ant and its servants, it provided, used, and suffered to be used, an unsafe, defective, and insufficient locomotive, of all wliicli iji had notice. ly. That for want of due care and attention to its duty in that behalf, on the said day of , 187 . , at aforesaid, and whilst the said locomotive was in the use and service of the said defendant, upon said rail- road, and whilst the said plaintiff was on the same, in the capacity aforesaid, for the said defendant, the boiler con- nected with the engine of the said locomotive, by reason of the unsafeness, defectiveness, and insecurity thereof, ex- ploded; 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 became 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 attending to his ordinary business, and lost all his wages he otherwise would have earned, to wit, the sum of dollars, to his damage dollars. [_Demand of Judgment.'^ 35. Company Liable for Acts of Servants. — It has also been held in a case where men are in the employ of a manufacturing 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 respeotiTe duties: Albro v. Agawam Canal Co., 6 Cush. 75. It has been the opinion in a large number of cases very similar to those above referred to, that the inq^uiry should be made, " Did the accident hap- pen 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 of Keegan v. Western Railroad Corporation, 4 Seld. Kep. 175, it was held that the defendant was liable, on the ground that the neglect was that of the corporation, and not of its servants, and so did not come within the principle established in Coon V. -8. & U. B. B. Co., 1 Seld. Kep. 492. The locomotive in this case had been reported as msuf&oient by the engineers, but the corporation continued to use it; hence it was the fault of the corporation, and not of its servants. Where the injury was alleged to have been caused by the negligence of an engineer who was employed by a superintendent who had full authority and control of the work, and employed and discharged the workmen, the com- plaint 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 : Collier v. Steinhart, 51 Cal. 116. 36. Form. — The above form is partially taken from Nash's Pleadings and FOR PERSONAL INJURY CAUSED BY NEGLIGENCE. 611 Forms, and is here given, although, as stated in the last above note, there are many of the profession who entertain grave doubts about an action lying against the railroad company in a case of that character. This action was, however, sustained by the Supreme Court of the State of Ohio, in LUlle Miami Railroad Co. v. Stevens, 20 Ohio E. 415. But it seems our own Su- preme Court in McQlynn v. Brodie, 31 Cal. 376, holds to a different doctrine. 37. 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: Eallower V. Henley, 6 Cal. 209. A common employer is not responsible for the injury to one servant, occasioned by the negligence of another, in the course of their common employment, unless he himself was in fault: Wright v. if. Y. Central R. M. Co., 25 N. Y. 562; Treadwell v. Mayor of New York, 1 Daly, 123; Kunz v. Stuart, Id. 431. A railroad company having employed compe- tent persons to supervise and inspect itsj road, bed and bridges, is not liable for an injury to one of its servants, caused by the falling of a bridge, in con- sequence of a latent defect: Warner v. Erie Railway Co., 39 N. Y. 468; see Civil Code Cal., sees. 1969 to 1971, inclusive. 38. Risk of Employee. — In the recent case of McGlynn v. Brodie, 31 Cal. 376, 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 knowl- edge or means of knowing of its condition, he takes the risk incident to the employment in which he is thus engaged, and cannot maintain an action for injuries sustained arising out of accident, resulting from such defective con- dition of the machinery:" See McGatriak v. Wason, 4 Ohio St. K. 569; Hay- den V. Smithville Manufacturing Co., 29 Conn. 558; William v. Clough, 3 Hurl. & Norm. 258; Griffiths v. Gidlow, Id. 648; Dynen v. Leach, 40 Eng. L. & E. 491; SMpp X.- Eastern Counties Railway Co., 9 Ex. 223; 6 Ed. of Story on Agency, sec. 458, and notes; Hallower v. Henley, 6 Cal. 209. No. ses. ix. By Executor or Administrator, against a Railroad Company, for Injuries Causing Death. [Title.] The plaintiff, as the executor [or administrator] of the estate of A. B., deceased, complains, and alleges: I. That on the .... day of , 187 . , 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 ^f conveying him therein as a passenger from to [for . dollars paid to them by said A. B.] III. That while he was such passenger, at. . ; , a sta- tion on the line of the said railroad, by and through the carelessness of the defendant and its servants, a collision 612 FOE PERSONAL INJUET CAUSED BY NEGLIGENCE. occurred, by which [the cars of the 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 , 187 . , letters of ad- ministration 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 en- tered upon his duties of such administration. V. That by reason of the premises the plaintiff, as such executor [or administrator], hath sustained damage in the sum of dollars. IDemand of Judgment.^ 39. Conflict of La^ws.-^An administrator appointed in one State cannot maintain an action there, on the statute of another State, which gives to the personal representatives of a person killed by wron gf ul act, neglect or default, a right to maintain an action for damages in respect thereof, notwithstand- ing the death, for the benefit of the wid