QJnrupU Hatu ^rl^nnl Hibtary „__ Corneir University Library KFO 535.5.N25 1864 3 1924 024 701 645 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024701645 PLEADING AND PRACTICE UNSEB THE CIVIL CODE. BY SIMEON NASH. THIRD EDITION, REVISED AND ENLARGED. CINCINNATI: BOBBRT CLARKE & CO., LAW PUBLISHERS, ^ 1864. Entered according to Act of OongresB, in the year 1856, BY SIMEON NASH, In the Cleric's Office of the Uaitea States District Court for the District of Ohio. PHEF^OE. The following work seemed'to the author called for by the neces- sities of the profession. The Code is varioTisly construed, and hence the utmost confusion prevails in the pleading and practice under it. The judicial experience of the author' has also shown him the imperious necessity for some work, which should be the mean of introducing somewhat of uniformity and certainty in pleadings, so that courts and juries might understand what were the issues, pre- sented in a case. Under the present practice the same facts are never presented in any two cases alike, each pleader following his own peculiar notions of the Code; and hence, presenting his case- according to those notions, and not according to any well settled form. The Code abolished forms, but not principles ; hence the state- ment of a case must depend upon these principles ; and, upon the application of these principles, has the following work been prepared. ■These principles required the statement of facts, and not evidence ; so does the Code ; hence I resorted to the old forms to ascertain what were facts, and what evidence, and have substantially followed them in this respect, leaving ont all that was mere form, and much that was superfluous ; thereby very mr eh abbreviating the old fonns while shaping them to the requirements of the Code. In this I have fol- lowed, I believe, the prevailing impression of the profession as to the Code. How far I have succeeded in these forms, time alone can determine ; but; they wiJJ at least serve as a mean of leading to (iii) IV PEEFAOE. Bome sort; of nniformity, and this will be no small service to the bench and bar. ThQ constraction of the Code gives origin to numerous debateable questions, on which I have not hesitated to express my own opinions ; opinions formed, however, on the bench, and after much reading and reflection. These viows, too, I may be permitted to add, have re- ceived the approbation of a portion of the profession. These opin- ions will at least serve as hints, out of which some uniformity of views may ultimately arise. I have occasionally pointed out defects and changes in the Code ; this is necessary, if the Code is to be successfully adapted to our judicial system. There are ^.Iso provisions liable to grave constitu- tional objections ; these too have been pointed out and briefly dis- cussed. Our codifiers were copyists, and that, too, without fully understanding many of the provisions of the code fromVhich they copied. The judicial system of New York is wholly unlike our own, and hence provisions adapted to that system will work badly, or not at all, in connection with ours. There arp many difficulties arising from this source, which can not be got rid of, except by legislation. There is a difficulty which ought to be got rid pf, either by con- struction or legislation ; and this relates to an answer in cases founded upon principles of equity. As the Code is, the pleading in such a case is cramped down to all the strictness of a common law plea ; this is, however, impossible, and must be changed. The Code in this respect is wholly disregarded in practice. The swearing to pleadings is no aid to the administration of jus- tice. Experience has settled this, both here and in New York. In actions on contracts for the payment of money only, the defendant might be required to swear to his answer, in case the plaintiff swore to his petition. This is as far as there can be any use in it, unless perjury is a thing to be .encouraged. The forms for sheriff's returns, and entries for clerks, etc., have been drawn from a cai-eful examination of the Code ; and, it is pre- sumed, will greatly facilitate iiniformity in this part of practice, I PREFACE. T have endeavored to include all that I could suppose to be essential, and- sometimes more than I deemed so, lest others should take a dif- ferent view of the Code. It will be seen that my own mind has undergone some change of views during the progress of the work. This arose from following, in the first place, popular views, rather than my own; on a mora careful examination of the whole Code, I have seen reason to modify these views. I have, therefore, been compelled to add a few notes, at the close of the volume, modifying slightly some opinions expi-essed in the earlier part of the work. These addenda must be consulted and noted. In printing the work the headings to the forms have been omitted, as a matter of economy to the purchaser. This will be of no conse- quence in petitions, answers, etc., but may lead to some mistakes in regard to entries made out of court, and orders to be issued to offi- cers. In a note, I have, therefore, pointed out the various headings necessary in the difierent forms. The work is submitted to the profession with diffidence ; but in the hope that, though not perfect, it may be found useful ; perfection is a result which time and judicial construction can alone secure. The author would be glad to receive a note of such judicial decisions as should point out any defect^, so that in a new edition, if called for, he might have the benefit of the views of the courts. There is needed in Ohio some publication which shall embody the decisions on the Code. If the judges would make brief notes of such decisions, and furnish them to the author, he might be dis- posed to publish one volume by way of experiment. The hint is here thrown out for the consideration of the bench and bar. SIMEON* NASH. Gallipolis, Jan. 1, 1856. NOTICE TO SECOND EDITION, ' A new edition of this work having been called for, 1 have made such alterations as the changes in the code have rendered necessary. There are some other changes that I might have made, had it not been, under the circumstances, inexpedient. The work has been stereotyped, and hence would We great expense incurred by the publisher if extensive alterations were made. I have added several notes, rather than break up the arrange- ment of the original edition. A reference will be found to them in the body of the work, so that little inconvenience can arise from having the matter added in this form rather than inserted in the body of the work. The book has been, on the whole, favorably received — as much so as could have been expected. It is gradually working its way into general use, and is aiding in securing that certainty and uniformity so essential to the due administration of justice. It has ■ been supposed by some that I had made an attack on the codOv This is a strange mistake : my work assumes the code as a fixed fact, and the value of this work depends upon its so remaining. I pointed out some defects, as I supposed, in the code, and called attention to some strange constructions upon its provisions, but only for the pui'pose of bringing out more clearly what was manifestly its true constructionF*' In doing this I designed to give oflFense to no one. Some have supposed that I paid tpo much respect to prior practice atid precedent. I have only followed them where they followed principles which the code recognized ; and in practice it will be found that the forms contained in this work are shorter than those in daily use. Pleading under section 122 is an enormous wrong in many cases. In looking over the complete recordajl have seen page after page of mere accounts, thus swell- ing the costs in a case ten and twenty dollars for makiqg up a useless record, when a petition framed with the common counts would not have occupied a half page. Too much brevity is as objectionable as too much difl'useness. There is one way of doing a thing, which looks neat, ship- shape, as the sailors say, and another, which looks awkward, slovenly, dis- jointed. I have endeavored to avoid both extremes, and yet secure that (vii) Viii NOTICE TO SECOND EDITION. neatness and order which shall make a record appear complete and con« nected. I add here all the changes made in the code since the publication of Swan's Statutes: Section 84, St. 1867, p. 91 ; sec. 101, St. 1867, p. 92; sec. 102, St. 1866, p. 14; sec. 105, St. 1867, p. 23; sec. 127, St. 1857, p. 92; sec. 200, St. 1856, p. 23; sec. 228, St. 1857, p. 29; sec. 236, St, 1867, p. 29; sec. 239, St. 1858, p. 6; sec. 260, St. 1867, p. 139; sec. 306, St. 1868, p. 26; sec. 313, St. 1868, p. 79; sec. 314, St. 1866, p. 213; St. 1868, p. 80; sec. 360, St. 1857, p.'23 ; sec. 489—490, St. 1866, p. 46 ; sec. 491, St. 1867, p. 21. I believe these constitute all the changes made since the printed volume of the Statutes was issued. Gratified for the kind reception the work has received, and for its grad- ual adoption into use, I again submit it to a high-minded and honorable profession as an earnest and sincere effort on my part to render the code permanent, by giving to it the only construction which will render its use tolerable, and by pointing out those defects which injure its success. The swearing to pleadings ought to be abolished. A dishonest man never hesitates to swear to what his lawyer deems necessary ; an honest man will hesitate even when he has a good defense. I knew a party to lose a good case and some five hundred dollars because he was unwilling to swear to the fraudulent intent which the law implied from the facts he stated. Many honest men hesitate to swear to what the law calls the facta, but are willing to avouch the truth of the testimony which go to prove these facts. I have seen answers duly sworn to, which contained defenses directly in conflict with each other, whereby the party was made to swear two ways at the same time. The swearing is a hindrance to the adminis- tration of justice ; it gives the dishonest altogether the advantage over thtt honest man in a court of justice. -^ SIMEON NASH. Gallipolis.'O., Nov., 1868. PREFACE TO THIRD EDITION. A NEW edition of this work being called for, I have made such changes as the present condition of the code and the decisions require. The favor with which the work has been received by the profession, has induced me to render it as complete and perfect as possible. The forms I still believe will be found to be as hrief as the nature of each case will admit. I know that they are briefer than most of the pe- titions and answers found in practice, since the latter usually contain a statement of the evidence, rather than of the facts. Nor has there been much progress n^de in practice under the code in the intelligent forma- tion of the issues in a case. Each lawyer relies upon his own skill in framing these, and hence they are as various and uncertain as the men who frame them. The code is not to be blamed for this ; it is the fault of the lawyers, who practice under it. Since the decision in Ladd v. James, 7 0. St. Eep. 437, and Hanmond v. Deaver, 2 We^t. Law Month. 591, the effect of the code is to declare all common law actions to be actions on the case, while petitions in equity are substantially what they were before the code, excluding all that part of a bill in chancery which sought a discovery. Hence, if we follow in a petition the substance of a common law declara- tion applicable to the case, we know we are right, since these declarations were formed on the principle recognized in the code, of stating the facts on which the right of action depends. The same is true of answers and replications. It will be found that it is well to regard the wisdom of our predecessors ; and that even a system of pleading is not the invention of a day, or of one person. Experience is the great source of all practical knowledge. I have added at page 220, some new forms against railroad corporations and individuals under the statute, authorizing administrators to sue for the death of the intestate, caused by negligence, etc. These forms will be found useful. I have, at page 622, added some forms for orders of sale, to be issued to sheriff or master commissioner, on a judgment of sale, in cases founded (ix) PKEFACE TO THIRD EDITION. on principles of equity. This has been added at the request of soma clerks, and will be found convenient for them. There has been some dispute as to the statement made in this work, that a publication to absent defendants, is complete on the i&y of last publication. The code in this respect, copies the language of the prior act, regulating the practice in chancery. The old Supreme Court and Courts of Common Pleas held under that act that the publication was completed on the day of the sixth publication. I had supposed, there- fore, that no cases need be cited to a construction so well known. I have now, however, added some direct authorities in support of that constrac- tion. It is important to maintain the old construction, because titles havo been vested under it. There was a diversity of practice* as to the time for answer after an amendment of the petition. At first, the defendant was required to answer an amended petition forthwith, but on argument and maturer re- flection, it was held that the defendant had his fifteen days to answer the amended petition. Nor on default can a plaintiff amend his petition and take judgment at same time ; there is no default until the expiration of fifteen days after such amendment. This seems to be the true construc- tion of the code. If the plaintiff could amend and insist on a judgment at the same time, there would have been no need for see. 134 and see. 135. The Supreme Court, in Treadwell v. Com'rs, 11 0. St. Kep. 183, have removed one difficulty introduced by the code. It is thefe held, that a party may deny a fact, when he is ignorant of its truth. A defendant, say the court, may deny the truth of an averment, which he does not know to be true. This strained decision only shows the impolicy of re- quiring pleadings to be sworn to. The code says a party must swear that he believes the pleading to he true, and the court say he can safely swear that he believes it to be true, if he has no belief that it is not true. A denial is now allowed where there is no belief. It is not necessary in the pleading to state the fact of ignorance. In construing the code, its true nature is often lost sight of. The object of the code is to provide remedies, not to create rights. It is a code of civil procedure, not a code establishing rights. Hence the code is not to be consulted to ascertain rights; nor should it be so construed as to change old or create new rights. It leaves the law of rights just where it found it. And yet we see many lawyers claiming that certain provisions of the code have changed the law itself. Nothing but infinite confusion and uncertainty can result from such a construction of the code. The code, too, is to be construed like other statutes. If it embodies, as it does, language which had received a definite meaning, it must be held PREFACE TO THIRD EDITION. xi to have adopted the same meaning in the code, unless we are to involve the whole subject in uncertainty. The code, too, like treatises on pleading, provides first for pleading'in general, and then for pleadings in certain specified actions. The system of pleading in personal actions has always been separate from that in real actions. The code follows out this distinction. It devotes a separate chapter to real actions, and points out what the petition and the answer in a real action must contain, and furthermore, declares that these two brief denials shall be sufficient in a real action. If they are sufficient, and the code so declares, then any defense which can be set up in a real action, can be set up under these two issues : 1st, That plaintiff has .not such an estate in the land as he avers. 2d, That tlie defendant does not wrongfully keep the defendant out of possession. These two issues are de- clared to be a sufficient answer in a real action ; and yet, notwithstanding this peremptory language, we see special pleading introduced into real actions; sometimes, we see them converted in petitions in equity for the specific performance of contracts, and in one case, I saw, it ended in a reference to a master to settle a partnership account. A real action by the code, was never intended for any such purpose ; the code does not suppose that there can be a real action, when equity said there ought not to be one. To get rid of special pleadings in real actions at common law, so great were the difficulties attending the practiccj courts had to invent the action of ejectment with its simple and broad issue of not guilty ; and the the one hundred and sixtieth section of "an act to provide for the settlement of the estates of deceased persons," passed March twenty-third, one thousand eight hundred and forty; and the second section of "an act to give addi tional security to land titles in this State," passed March twenty-second, one thousand eight hundred and forty-nine; are hereby repealed. Sbc. 8. Civil actions can only be commenced within the . periods pre- scribed in this title, after the cause of action shall have accrued, but where, ih special cases, a different limitation is prescribed by statute, the action may be commenced accordingly. U. Action fok tee Recoyeby of Real Trofskty . Sbc. 9. An action for the recovery of the title, or possession of lands, tenements, or hereditaments, can only be brought within twenty-one years after the cause of such action shall have accrued. Sec. 10. If a person entitled to commence any action for the recovery of the title or possession of any lands, tenements, or hereditaments, be at the time his right or title shall first descend, or accrue, within the age of twenty-one years, a married woman, insane, or imprisoned, every such per- son may, after the expiration of twenty-one years from the time his right or title first descended, or accrued, bring such action within ten years after such disability is removed, and at no time thereafter. Skc. 11. An action for the forcible entry, and detention, or forcible detention only, of real property, can only be brought within two years after the cause of such action shall have accrued. III. Actions other than for the Recoveet of Real Feopertt. Sbc. 12. Civil actions other than for the recovery of real property, can only be brought within the following periods after the cause of action shall have accrued. Sec. 13. Within ^f teen years; An action upon a speciality, or any agreement, contract, or promise in writing. Sec. 14. WitMn six years; An action upon a contract not in writing, express or implied. An action upon a liability created by statute, other than a forfeiture or penalty. Sec. 1 5.- WitMn four years; An action for trespass upon real property. 6 TIME OF OOMMENCma CIVIL ACTIONS. [cHAF. Actions not for Kecovery of Real Property. General Prorisions. An action for taking, detaining or injuring personal property, includbg actions for the specific recovery of personal property. An action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated. An action for relief on the ground of fraud; the cause of action in such case shall not be deemed to have accrued, until the discovery of the fraud. Sec. 16. Within one year; An action for libel, slander, assault, battery, malicious prosecution, or false imprisonment. An action upon a statute for a penalty or forfeiture; but where the statute giving such action, prescribes a different limitation, the action may be brought within the period so-limited. Sec. 17. An action upon the official bond or undertaking of ah execu- tor, administrator, guardian, sheriff, or any other officer; or upon the bond or undertaking given in attachment, injunction, arrest, or in any case what- ever required by statute, can only be brought within ten years after the cause of action shall have accrued; but this section shall be subject to th« qualification in section eight. Sec. 18. An action for relief, not hereinbefore provided for, can only be brought within ten years after the cause of action shall have accrued. Sec. 19. If a person, entitled to bring any action mentioned in this chapter, except for a penalty, or forfeiture, be, at the time the cause of action accrued, within the age of twenty-one years, a married woman, insane, or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this chapter, after such disa- bility shall be removed. IV. General PaoviaioNS. Sec. 20. An action shall be deemed commenced within the meaning of this title, as to each defendant, at the date of the summons which is served on him, or on a co-defendant who is a joint contractor, or otherwise united in interest with him: where service by publication is proper, the action shall be deemed commenced at the date of the first publication, which pub- lication must be regularly made. An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this title, when the party faithfully, properly, and diligently, endeavors to procure a service: but «uoh attempt must be followed by service within sixty days. IV.J PAETIES. 7 General Frorisions. Parties. Sxo. 21. I£, when a cause of action accrues against a person, he be out of the State, or have-absconded, or concealed himself, the period, limited for the commencement of the action shall not begin to run, until he comes into the State, or while he is so absconded or concealed; and if after the cause of action accrues, he depart from the State, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought. Sec. 22. Where the cause of action has arisen in another State or country between non-residents of this State, and by the laws of the State or country where the cause of action arose, an action can not be maintained thereon by reason of lapse of time, no actipn can be maintained thereon in this State. Sec. 23. If an action be commenced within due time, and a judgment therein for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives may commence a new action, within one year after such reversal or failure. Sec. 24. In any case founded on contract, when any part of the prin- cipal or interest shall have been paid, or an acknowledgement of an existing liability, debt, or claim, or any promise to pay the same, shall have been made, an action may be brought on such case within the period prescribed for the same, after such payment, acknowledgement, or promise; but such acknowledgement or promise must be in writing, signed by the party to be charged thereby. CHAPTER IV. PARTIES. This title is full of confusion and uncertainty, growing out of the effort to provide for distinct classes of cases under the same language. It must be borne in mind, that the code provides for parties in cases at law, and also in equity. The rules which regulate the parties in the two classes are very distinct, and must be kept before the niind in any effort to educe PARTIES. [chap. Who must be Flaintiffls. system out of this title. This title, like many other parts o€ the code, first fixes positive rules as to the parties to a case, and then, by a sweeping clause, leaves it to the discretion of the court to say who shall or shall .not be necessary parties in a cause. We will first consider who must be plain- tiffs, and then who may or may not be; and we will then pursue the same course as to defendants. I. Who must be Plaintiffs. The following are the sections of the code oa this head: Sbo. 25. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 27. Sec. 26. 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 now allowed ; but this section shall not apply to negotiable bonds, promissory notes, or bills of exchange, transferred in good faith and upon good consideration before due. Sbo. 27. An executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action, with- out joining with him the person for whose benefit it is prosecuted, and o£Scial bonds may be sued upon in the same way. This last clause is contrary to sec- tion 506. Bush ». Lathrop, 22 N. Y. 535; Stillwell v. Hurlburt, 18 N. Y. 374; People V. Norton, 5 Selden, 176 ; Meech v. Stoner, 19 N. Y. 26 ; Masury v. Southworth, 9 O. St. Kep. 340; Hunter v. Com'rs, 10 0. St Rep. 515; 2 West Law Month. 474; Allen o. MiUer, 11 O. St Rep. 374. The above are the sections relating to the person who must be the plain- ilifife. The real party in interest must be the plaintiff. Before undertaking to settle what this language means, we may as well ascertain to what classes of cases it does not apply. 1 . It does not apply to executors, administrators, or guardians. The law as to these classes remains as it ever was, and needs no illustration. 2. Trustee of an express trust. It is somewhat difficult to define the exact meaning of these words. What is an express trust? Is it a trust created by written contract, or may it be proved by parol? Must the trust appear on the face of the contract, or may it be proved aliunde the contract? Suppose a note is made payable to A, while in fact it is made for the benefit of B. Can the written contract of the parties be varied by parol? Can the defendant defeat the right of A to recover, by showing that the money to be recovered really belongs to B? It would seem that in such cases there was an express trust, and that the cestui qui trust need not be a party. He has a right in equity to sue both the trustee and the party indebted; the reason of this is, because he has a right to protect his IV.j PASTIES. Who must be Plaintiffs. own interest; but in such a case the trustee is a necessary party. In Grin- nell V. Schmidt, 3 Coie R. 19, 2 Sand. S. 0. R. 706, it was held that mercantile factors or agents doing business for others, but in their own names, were trustees of an express trust. It may be found necessary to limit this clause to trustees, in the strict technical sense of that term, since other clauses provide for numerous other implied trusts, and trusts to be proved by parol. 3. A person with whom, or in whose name a contract is made for the benefit of anotJier. This clause almost nullifies the whole extent of section 25. Here the person with whom, or in whose name, the contract is made may sue on the contract alone. This, of course, covers the great proportion of suits on contracts, and leaves the law just where it always has been, and where common sense would leave it, and where the contract of the parties placed the right to sue. Hence all suits on promissory notes, bills of exchange, and negotiable bonds, may be prosecuted in the name of the payee, or indorsee, without any regard to the person to whom the money may belong. The contract of the parties shall in all such cases goveiii. So it would seem that a suit on a non-negotiable instrument may be prose- cuted as formerly in the name of the payee, though an equitable assignee may be entitled to the money. Unless such is the fact, then this single section has changed the whole law regulating negotiable instruments. That such was not the intention of the Legislature is manifest from the fact that the law regulating negotiable instruments is left unrepealed. 4. A person expressly authorized by statute to sue need join no one else. This needs no explanation. 6. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued on in the same way. It is said the exception proves the rule; here the exceptions emphatic- ally annihilate the rule, or at least leave very few cases to which a rule so pompously stated can apply. To what cases can it then apply? It authorizes the recti party in interest in all cases to do what he had in equity an undoubted right to do — ^to prosecute a suit against the person owing the debt or holding the property — and the party in whom the legal title to sue is vested, to enforce against both his equitable rights; while it leaves the party having the legal title to sue, to do it, it does not permit the defend- ant to defeat the action by showing an equitable title in another. Unless such a construction is given to the section, infinite confusion must ensue. May all choses in action be held to be legally assignable, so as to vest the legal title in a third person? If such had been the intention, why not say so openly, and do directly what would be done indirectly — repeal all laws regulating the negotiability of written instniments? Can it be possible that 10 PAETIES. [chap Who must be Plaintiffs. a right of action resting in parol, a right of action for seduction, or assault and battery, or slander, can be assigned so as to vest in the assignee a legal right to sue? The title in regard to the abatement and survivors' of actions shows that such can not be the case. Section 398 recognizes the common law as •: the survivor of the causes of actions, and as to the abatement of them, with a slight modification. Section 399 declares that no action pending shall abate by the death of either or both the parties, except an action for libel, slander, etc., (2 S.& C.St. 1058.) Here it is the parties to the action, whose death will not abate certain actions, except an action of slander, libel, malicious prosecution, assault, etc., which shall abate by the death of the defendant. If an action is not pending, then the common law- applies, and the death of either party will prevent a suit. At common law all personal actions died with the party. Wilbur v. Gilmore, 21 Pick. Reps. 260. In actions, ex delicto, where the wrong doer acquired no gain, though the other party had suffered a loss, the death of either party destroyed the right of action. Middleton v. Robinson, 1 Bay. R. 68; Pitts v. Hale, 3 Mass. Eeps. 321; Millen v. Baldwin, 4 do. 480; Stetson v. Kempton, 13 doi 272; M'Evers v. Pitkin, 1 Root Rep. 216; Franklin v. Low, 1 Johns. Rep. 396; Hambly v. Trott, Adm'r., Cowp. 372; Holmes v. Moore, 5 Pick. Rep. 257. Can it therefore be possible that the Legislature intended to make negotiable a cause of action which must be extinguished even by the death of the assignor? The statute .speaks of the death of the person entitled to such action as abating the same. Now, if it is negotiable, the death of the assignee after assignment would extinguish the right of action, as he would then be the person entitled to the action. This whole chapter goes upon the assumption that such rights of action are to be prosecuted in the name of the person injured: In Hodgman v. The Western Railroad Corporation, 7 Pr. Rep. 492, Harris, J., uses the following emphatic language: "At common law no mere right of action was so assignable as to pass the legal right to the assignee." The only change made by the code, in this respect, is to transfer, with the beneficial interest, the right of action also, in those cases where before the court would recognize and protect the rights of the assignee. No new right of action is created; no authority is given to assign a right of action which before was not assignable. When the right of action is of such a nature as not to be the subject of a contract, as in the case of a violation of personal or relative rights, it can not be assigned. The action can only be maintained by the party who has been injured, and when "he dies, the right of action also dies. Every right of action involving life, health, or reputation, belongs to this class. So a right of action, founded upon tha breach of a promise of IV.J PABTEES. 11 Who must be Flamtiffs. marriage, being in its nature a personal injury, can not be transferred. On the other hand where the injury affects the estate ra:ther than the person, where the action is brought for damage to the estate, and not for personal suffering, * the right of action may be bought and sold. Such a right of action upon the death, bankruptcy, or insolvency of the party injured, passes to the executor, or assignee, as a part of his assets; because it affects his estate, and not his personal or relative rights. Of course, such a right of action is assignable, and under the provisions of the code, the assignee is the proper party to maintain the action upon it. The People v. Tioga Com. Pleas, 19 Wend. 73; 1 Chitty's PI. 68; Chamberlain v. Williamson, 2 M. ■ — ~ — ~~ ~"" Wlien Indorsement on Writ required. Actual Service of Summons. the amount of damages are not to be taken as true by a failure to controvert them. Section 1 12 says that the verification of pleadings does not apply to the amount claimed, except in actions founded on contracts, express or implied, for the payment of money only. No indorsement, then, is neces- sary, except in cases where, in case of a default, a judgment would be , rendered for a specific sum claimed, with interest as claimed. If evidence of value is necessary to ascertain the amount of recovery, then it would not seem to be a contract for the payment of money alone. There will be great difficulty in all cases in settling what does and what dSes not come within the meaning of this rule.* INDOKSEMBNT ON THE WEXT.t The plaintiff in this case claims judgment for the sum of $ , together with interest thereon from the day of A. D. 18 . Attest, , W S, Clerk. The clerk makes this indorsement from the statement in the precipe. Hence the clerk need only indorse the writ, when the party has stated in his precipe a sum for which he claims judgment, with the dat-e for interest. Writs may be sent to any county in the State, when the court in which it is brought has acquired jurisdiction of the cause. The summons must state the day when the defendant must answer. The time for answer is on or before the third Saturday after the return day, section 103. The summons must be made returnable on the second Mon- flay after its date, unless a summons has to be issued to another county. In that case it may be made returnable on the third or fourth Monday, as the party shall elect in his precipe. When a summons has been returned not summoned, other writs may be issued until service is obtained. Writs may be sent at the same time to different counties, where the defendants reside in different counties.J SERVICE OF SUMMONS. Actual Sertioe. £i/ whom made. — The summons shall be served by the officer to whom it is directed. This, of course, includes all his duly appointed deputies. It may also be served by a private person, not a party to the action, to be appointed by the officer to whom it is directed. The authority must be in writing on the writ. It may be in this form. The court, or a judge * See note B, p. 797. f See note C, p. 7y8. t See note D, p. 79», VI.] COMMENCEMENT OF ACTIONS. 21 How Service of Summons to be made. Service on Corporations. tUereof, may also, under certain eircumstauoes, appoint one to serve pro- cess. Sec. 583. AUTHOKrry to a private person to serve summons. I, A B, sheriff of said county of hereby appoint and authorize C D to serve the within writ of summons. Dated this day of ,18. A B, Sheriff. How service to be made.— The service must be made by delivering a copy of the summons to the defendant nersonally, or by leaving one at his Visual place of residence, at any time before the return day of the writ. The only difficulty in the service is sometimes to ascertain the place of residence of a party. Where a party has a family with whom he is living, there can be no difficulty; but where one has a family living in the State, which he has left, not for a temporary purpose, but for the purpose of being absent an indefinite time, no service can be made on him by leaving a copy of the writ with his family. This is true of such as are or have been absent in California. Their residence is, for this purpose, no longer here. The language of our statute is, at his usual place of residence. The word usual place of residence means the place of abode at the time of the ser- vice. Gadsden v. Johnson, 1 Nott & M'Cord Eep. 89. The true criterion is, whether the defendant had or had not abandoned the domicil at which the copy was left. Frean v. Cruikshanks, 3 M'Cord B«p. 84. If the party is out of the State only for a temporary purpose, expecting to return in a definite time, then his residence is still here, and service may be made by copy at his usital place of residence. Ibid. Where the defendant is a single man, there is often more difficulty. To justify the leaving of a copy at his boarding house, he must be actually boarding at the place at the time. If he has left the place, the service is not good. A defendant may write on the summons that he acknowledges service, and this may be done without the summons being in the hands of an officer. Service on Corporations. A summons on a corporation may be served upon the president, mayor, chairman of the board of directors or trustees, or other officer. By the words other officer, is meant its chief officer — some officer of the same character as those enumerated. Or, if its chief officer is not found in the county, it may be served upon its cashier, treasurer, secretary, clerk, or managing agent. 22 COMMENCEMENT OF ACTIONS. [CHAF. Service on Insurance Companies — ^Foreign Corporations — Infants. Eetums. Or, if none of the aforesaid officers can be found, the service may be made by a copy left at the office or usual place of business of such corpora- tion, with the person having charge thereof. No service by copy can be made, unless it is left ■with some one having charge of the office or usual place of business of the corporation. If the corporation has more than one place of doing business, the service must be made at its principal place of business.* On Insurance Companies. — Service here may be made on an agent, when the suit is properly brought in a county where the company has no other place of business. Foreign Corporations. — The service in such cases may be on its Kianaging agent, if it has one in the State. A managing agent is one whose agency extends to all the transactions of the corporation, in distinc-. tion from one who manages only a particular branch of its business. Brew- ster V. M. Cen. E. R. Co., 5 Pr. Rep. 183. Service on Infants. On persons under fourteen years. — The service Must be on him or her, and also upon his or her guardian or father; if neither of these can be found, then upen the mother, or person having control of the infant, or with whom he or she lives. If neither of these can be found, then upon the minor alone. On persons over fourteen years. — The service may be on the minor as on an adult. Forms of Returns. DBPDTATION OF A PRIVATE PERSON TO SERVE A WRVt. I, A B, sheriff of said county of do hereby appoint G D to serve the within writ. Given under my hand this day of A. D. 18 . A B, Sheriff. I, the above named C D, being first duly sworn, depose and say thai ( Etre slate the service as in return by sheriff, ) and further he saith not. OD. » See note E, p. 799 VI.] COMMENCEMENT OF ACTIONS. 23 Forms of Returns. Sworn to and subscribed before the undersigned,, justice of the peace, (judge, or in open court, as the case maybe,) this day of A. D. 18 . E F, Justice of the Peace. The return in such a case must be under oath. Sec. 61. RETURN OP PERSONAL eBKVICB. As commanded by this writ, I summoned the within named on the day of 18 , by delivering to each of said defendants a certified copy of the within summons, and of the indorsement thereon. Dated A B, Sheriff. Note. — 'Where the parties are not all served on the same day, the retnrn must show tha day each was served with a copy. In such a case, the return might be as above to tho names inclusive; then adding: By delivering a certified copy of said summons and the indorsement thereon to the said L, on the day of , to the said M on the day of etc. 'WHERE PART ARE NOT POUND. Add to the last, inserting in it tine names of those summoned: And the said are not found in this county. SERVICE ON A MINOR UNDER FOURTEEN TEARS. As commanded by this writ, I summoned the said E F, a minor under fourteen years of age, by delivering to him on the day of A. D. 18 , a certified copy of the within writ, and of the indorsement thereon, {^if there is an indorsement, ) and at the same time I also delivered to the guardian (or father) of said minor another certified copy of said writ and indorsement. Or, and at the same time, I also delivered a certified copy, etc., to , the mother of said E F. Or, to ., the person with whom said E F was living, not being able to find in my county any guardian or father of said E F. ANOTHER FORM. Follow the last to the close of the service on the minor, then proceed: And not being able to find any guardian or father of said minor in my county, I, at the same time, delivered a certified copy of the said writ and indorsement to , the mother of said E F, (or to , the person with whom said E F lives.) 24 COMMENCEMENT OF ACTIONS. [CHAP. Forms of lletums.. If none of these persons can he found the return must be: And I could not find in my county any guardian, or father, or mother of said E F, or any person having control of him, or with whom said E F lives. SBEVIOB ON COEPOR ATION. As commanded by this writ,- I have summoned the within named defendant, (^here give the corporate name,) by delivering to E F, the presi- dent of the said,(«ffl»ie of corporation,) [or to , the mayor of the {name of corporation,) or to , chairman of the board of directors, or trustees, of the (name of corporation,) or to , the chief officer of the said (name of corporation, ) ] on the day of , A. D. 18 , a certified copy of the within writ, and of the indorsement thereon. Dated, etc. NoTB. — This form embraces all the persons named; of course, only one is necessary te a service, and the officer will copy that part of the form which applies to the case. If nona of these can be found, the return will be as follows: As commanded by this writ, and not being able to find in my county any president, mayor, chairman of any board of directors or trustees, or other chief officer of the said (here give name of corporation, ) I summoned said defendant by delivering, on the day of , A. D. 18 , to the cashier [or to the treasurer, or to the secretary, or to the clerk, or to " the managing agent] of the said (here insert name of corporaiion,) a certified copy of the said writ and the indorsement thereon. Bated, etc. Note. — When none of these (ficers can le/mmd the last return will le/ollawed to the utords, "I summoned," and then, add; or any cashier, treasurer, secretary, clerk, or managing agent of the said {here insert corporate name,) I left a certified copy of said writ and the indorse- ment thereon at the office [or at (.a named place) the usual place of business] of the said (.name of eorporaUan) with one E F, he the said E F having charge of said office (or said ■usual place of Immiess.) Dated, etc. SBEVIOB ON AGENT OP INSUKANCE COMPANY. As commanded by this writ, I summoned the within named defendant by delivering on the day of , A. D. 18 , to E F, the chief officer of the agency of said company in this county, a certified copy of the within writ and the indorsement thereon. Dated, etc. VI.] COMMENCEMENT OF ACTIONS. 2S Forms. Service by Publication. SBETICB ON A FOREIGN CORPOKAHON. As commanded by this writ, I have summoned the within named defendant (Aere insert corporate name, if no other defendant is named in the writ,) by delivering, on the day of , A. D. 18 , to E F, a certified copy of this writ and the indorsement thereon, the said E F being the managing agent of the (mawe of corporation) in this State. Dated, etc. Sec. 70. Service may be made by publication in either of the following cases: In actions brought to establish or set aside a will, where any or all the defendants reside out of the State. In actions brought under the forty-fifth and forty-sixth sections of this code, where any or all the defendants reside out of the State. In actions brought against a non-resident of this State, or a foreign corporation, having in this State' property or debts owing to them, sought to be taken by any of the provisional remedies, or to be appropriated in any way. In actions which relate to, or the subject of which is, real or personal property in this State, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of the State or a foreign corporation. And in all actions, where the defendant, being a resident of the State, has departed therefrom, or from the county of his residence, with intent to delay or defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent. Sec. 71. Before service can be made by publication, an affidavit must be filed, that service of a summons can not 'be made within this State, on the defendant or defendants to be served by publication, and that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication. Sec. 72. The publication must be made six consecutive weeks, in some newspaper printed in the county where the petition is filed, if there be any printed in such county; and if there be not, in some newspaper printed in this State, of general circulation in that county. It must contain a sum- mary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons thus to be served, when they are required to answer. Sec. 73. Service by publication shall be deemed complete, when it shall have been made in the manner and for the time prescribed in the 26 COMMENCEMENT OF ACTIONS. [cHAP. Service by Publication. preceding section; and such service shall be proved by the affidavit of the printer, or his foreman, or principal clerk, or other person knowing the same. Sec. 74. In all oases where service may be made by publication, per- sonal service of a copy of the summons and complaint may be made out of the State. APPIDAVIT THAT SUMMONS CAN NOT BE MADE. A B, plaintiff, 1 Cmml!y, ss., V. y C D, E F, G H, L M and N 0, defendants.) Court of Common Pleas. And the said A B, plaintiff in the above case, being first duly sworn, de- poseth and saith, that on"the day of ,A. D. 18 , he filed, in the said Court of Common Pleas, a petition against the said C D, E J", Q H, L Mand N 0, defendants, praying that (here set forth the ohject of the suit so as to show it is one of the cases where publication can be had, as for instance) certain lands, situate in said county, may be decreed to be sold, to satisfy a mortgage given by the said C D to the said plaintiff, to secure the payment of a certain sum of money therein named, and the said C D has since conveyed said premises to the said other defendants; and the said plaintiff further saith, that the said C D has removed from the State of Ohio, and now lives in the State of Iowa; and that the service cf a sum- mons can not be made on the said C D within this State; and the said plain- tiff wishes to obtain a service on the said C D by publication; and further he saith not. A B. Sworn to and sul^cribed before the undersigned, a justice of the peace, (or judge or clerk of said court,) this day of , A. D. 18 . Justice of the Peace. NOTICE. CD, of , in the State of Iowa, will take notice that A B, of the county of , in the State of , did, on the day of , A. D. 18 , file his petition in the Court of Common Pleas within and for the county of , in said State of Ohio, against the said C D and E F, 0- H, L M and N 0, defendants, setting forth (here insert the sttistance of the petition, as for example,) that the said C D gave a mortgage to the said A B on the S W qr. of Sec. No. 2, T. 7, R. IS, in said county of , to secure the payment of .1 according to cer- tain notes.referred to in said mortgage, and that, since the giving of the said mortgage, the other defendants claim some interest in said lands under the said C D, and praying that said C D may pay said sum now claimed to be n.] COMMENCEMENT OF ACTIONS. 27 Service by Publication. Forms. due, with interest, amounting to $ , or that said premises may he sold to pay the same; and the said C D is notified that he is required to appear and answer said petition, on or before the third Saturday after the day of next. Dated , A. D. 18 . A B by E F, his Attorney. Note. — The serrice will be completed on the day of the last or sixth publieation, and the time to answer will be the third Saturday after that day. So held in Olcott v. Bob- inson, 21 N. Y. 150 ; Sheldon v. Wright, 7 Barb. Bep. 39, S. C, 1 Selden, 497 ; Bache- lor V. Bachelor, 1 Mass. Bep. 255. AFFIDAVIT OP PUBLICATION. G H, being first duly sworn, deposeth and saith that he is the printer of the , a newspaper printed and published in the said county of , and that the annexed notice was published in said paper for six consecutive weeks, the last publication being on Thursday, (or other day,) July , A. D. 18 , and further he saith not. Sworn to and subscribed in open court this day of , A. D. 18 . Attest, J D, Clerk. Note. — The affidavit may be sworn to before a justice or other officer authorized to administer oaths generally. AFFIDAVIT ATTACHED TO A PETITION OP UNKNOWN HEIRS. The said A B, plaintiff, being first duly sworn, deposeth and saith that the names and residence of the heirs of the said , named in said petition, are unknown to him the said A B, and further he saith not. AB. Sworn to and subscribed before me the clerk of said court this day of ,A. D.18 . J D, Clerk. OEDEK OP PUBLICATION. On motion of the said A B, by E F, his attorney, and it appearing to the court by the affidavit of the said A B, attached to his petition, that the names and residences of the heirs of the said L M are unknown to the said plaintiff, it is therefore ordered that the said plaintiff cause a notice con- taining the substance and prayer of said petition, and of the pendency of this action to be published for six consecutive weeks in the , a newspaper printed in , in this county, informing the said un- known heirs of the said L M. that they must appear and answer said peti- tion, on or before the third Saturday next after the day of the last or sixth publication. 28 APPEAEANCE. [cHAP. Unknown Heirs. Proceeding without Service on all. Appearance. The following is the section in regard to unknown heirs: Sbo. 76. In actions where it shall be necessary to iqake the heirs or devisees of any deceased person, defendants, and it shall appear by the affidavit of the plaintiflf, annexed to his petition, that the names of such heirs or devisees, or any of them, and their residence, are unknown to the plaintiff, proceedings may be had against such unknown heirs or devisees, without naming them; and the court shall make such order respecting ser- vice as may be deemed proper. If service by publication be ordered, the publication shall not be less than six weeks. When may proceed vnihout Service on all. 1 . K the action be against defendants jointly indebted upon contracl, the plaintiff may proceed against the defendants served, unless the court otherwise direct. 2. If the action be against defendants severally liable, the plaintiff may, without prejudice to his rights against those not served, proceed against the defendants served, in the same manner as if they were the only defendants. CHAPTER VII. APPEAEANCE. After the filing of the petition and the service of the summons, the next step is the appearance of the defendant. Every defendant has a right to appear in person or by attorney, except- ing married women, infants, and persons non compos mentis. Married Women. Married women must appear with their husband, or by their next friend. When the interest of husband and wife is joint, then they may appear and answer together. Still the wife may defend and answer separately; but it Vn.]- , APPEARANCE. 29 Infants. Insane Persons. requires an order of the court to enable her to do it. Where the wife is sued on her separate property, she must defend by her next friend, and can do this without any aipplication to the court. Ivfwnis. Infants must defend by their guardian. Before an answer can be put ■in by, or a judgment taken against, an infant, the guardian for the suit must be appointed. If the infant is of the age of fourteen years, the appointment, if made within twenty days after the return of the summons, must be made on the application of the infant himself; but, if the infant is under fourteen, or does not apply within the twenty days, the appoint- ment may be made on the application of a friend of the infant, or of the plaintiff in the action. The entry of the appointment should show on whose application it is made, as well as the person appointed guardian. No judgment can be taken against an infant until a guardian is appointed; and if taken, it will be set aside on motion. Kellog v. Klook, 2 Code R. 28. It would seem from section 100, that a 'guardian, when appointed, must answer, and that a judgment taken without such answer, woidd be irregular and erroneous. 2 8. & 0. St. 981. The guardian may be appointed by the court, by a judge of the court, or by a probate judge of the county in which the action is pending. The appointment, if made out of court, must be ^made in writing, and signed by the judge making it ; and be also filed with the clerk of the court. Orders made out of court are required to be entered in the journal of the court. Sec. 510 ; 2 S. & C. St. 1099. This is a motion, of course, and does not require any notice to be given to the adverse party, under section 505. 2 S. & C. St. 1098. Insane Persons. There seems to be nothing in the code as to them. The law regulating that subject, 1 S. & C. St. 848, authorizes the guardian to bring suit, but does not provide for a suit being prosecuted against an insane person. The guardian of a minor, as such, has no authority to defend #suit; the guar- dian to defend must be appointed by the court; hence the reference to the laws relating to guardiansof minors, etc., section 34, 1 S. & C. St. 848, does not seem to remove the difficulty. In Harrison v. Rowan, 4 Wash. C. 0, Bep. 202, it is held that a lunatic, whose interests are sought to be affected by a decree, must be made a party to the suit, and, if a defendant, must answer by a committee appointed for that purpose by the court ; and if he has no committee, the court will appoint a guardian to defend the suit and 30 APPEAEANCE. [CHAP. Insane Persons. Forms. answer for the lunatic. In L'Armaureux v. Crosby, 2 Paige C. E. 422, the court says that the proper course is to apply to the court of chancery by petition, and that a proceeding by bill is improper, except under direc- tion of the court. This authority is derived from the general powers of a court of chancery in England; 'the chancellor having charge of minors and insane persons. It is doubtful whether, in Ohio, we have any means by which a lunatic, or person non compos mentis, can be sued. His guardian is authorized to sue; and hence the person having a claim .must present it to the guardian, and, if disputed, allow it to be passed upon by the probate court on a settlement of the guardian's accounts. This would seem to be all that can be done in Ohio, in regard to a suit wherein an insane person is interested as a defendant. Forms. PERMISSION FOE WIFE 10 DEPEND SEPARATE PROM HER HUSBAND. J A B, plaintiff, V. y Petition. C D and wife, defendants. On motion of the said , wife of the said and it appearing to the court that the interests of the said , (wife) require a separate defense by her, it is therefore ordered that the said (wife) is hereby empowered, authorized, and permitted to defend the said suit, separate and apart from her said husband, and by her next friend. And thereupon came the said , by E F, her next friend, and filed her separate answer to the petition of the said plaintiflF. OR IN THIS FORM. On motion of the said , wife of the said , and it appearing to the court that the said , has neglected and does neglect to defend this suit, it is therefore ordered that the said (wife) be permitted to defend said action alone and separate from her said husband, and by her next friend. APPOINTMENT OP GUARDIAN TO THE SUIT. A B, plaintiff, ) V. y Petition. C D, defendant. ) On motion of the said , and it appearing to the court that the said defendant is of the age of fourteen years, it is ordered that be and he is hereby appointed guardian for the suit for the said VH.] APPEAEANCE. 31 Forms. , and thereupon, came the said , guardian for the suit, and accepted said appointment. On motion of , a friend of the said , a minor, and it appearing to the court that said is under the age of fourteen years, it is ordered that be and the same is hereby appointed guardian for the suit for the said ; and thereupon came the said and accepted the said appointment. On motion of the said , (plaintiflF or a friend, ) and it ap pearing to the court that said is of the age of fourteen years, and has neglected to apply in person for the appointment of a guardian for the suit for more than twenty days after the return of the summons, it is, therefore, ordered that be and the same is hereby, etc., as in last form. A B, plamtiff, J County, ss. V. y C D, defendant. ) Court Common Pleas. The said , a minor, of the age of fourteen years, having this day applied to me, , a judge of the said court of Com- mon Pleas (or probate judge for said county of ,.) and it ap- pearing to me that the summons in this case has been served, and that said is of the age of fourteen years, it is, therefore, by me the said , judge, as aforesaid, ordered that be and the same is hereby appointed guardian for the suit for the said Given under my hand this day of , A. D. 18 . S N, Judge. ANOTHER FORM. E F, a friend of the said , a minor of the age of fourteen years, (or the plaintiflF in said cause, ) having this day applied to me, E S, a judge of said court of Common Pleas (or probate judge of said county of , ) and it being made to appear to me that the said is of the age of fourteen years, and that he has neglected for more than twenty days after the service of the summons in this case, to apply for the appointment of a guardian for this suit for himself, the said , it is, therefore, by me, the said , judge, as aforesaid, ordered that be and the same is hereby appointed guardian for the suit for the said Given under my hand this day of , A. D. 1 8 . S N, Judge. 32 JODTDEE OF AC1'I0N3. [OHAP Fonns. Actions in General. POK MINORS UNDBE POtrKTKEIT. E F, a friend of the said , a minor under the age of four- teen years, (or ther plaintiff in said suit, as the case may be, ) having this day applied to me , a judge of said court of Common Pleas, (or probate judge of said county of ,) and it being made appear to me that the said is a minor under the age of fourteen years, and that the summons in this case has been duly served, it is, therefore, by me, the said , judge as aforesaid, ordered that be and the same is hereby appointed guardian for the suit for the said Given under my hand this day of , A. D. 18 . S N, Judge. CHAPTER VIII. JOINDER OF ACTIONS. The code contains the following provisions as to the right to join several actions in one suit: Sec. 80. The plaintiff may unite several causes of action in the same petition, ivhether they be such as have heretofore been denominated legal or equitable, or both, when they are included in either one of the following classes : 1. The same transaction; or transactions connected with the same subject of action. 2. Contracts, express or implied. 3. Injuries, with or without force, to person and property, or either. 4. Injuries to character. 6. Claims to recover the possession of personal property, with or without damages for the withholding thereof. 6. Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same. 7. Claims against a trustee, by virtue of a contract or by operation of law. Vni.j JODTDEE OF ACTIONS. 33 Actions for Torts on Contracts — Legal and Equitable. S£0. 81.' The causes of action so united must affect all the parties to the action, and not require different places of trial. Ladd v. James, 10 0. St. Kep. 437; 2 W. Law Monthly, 591, Hanmond v. Deaver. 1. The first general remark on these sections is that actions for torts and on contracts can not be joined. Subdivision 2 piovides for cases aris- ing out of contract, and 3 and 4 for cases arising out of torts. And so it has been held in New York. In Furniss v. Brown, 8 Pr. R. 59, Ed- munds, J., held that an action to recover specific personal property, could not be joined with a count claiming damages for a breach of a contract of sale of the same property. The same doctrine is maintained in Burdick v. McAmbly, 9 Pr. R. 117. The distinction between actions ex contractu and actions ex delicto is still important, as a test of what can or can not be now joined. See Adenda, No. 7, p. 786. 2. The next gefleral remark relates to the joinder of causes of action heretofore denominated leffol and equitable. Our code is somewhat obscure; but the history of this clause in the New York code will aid us in under- standing our own. Does subdivision 1 control all the others? Does this subdivision fix the limits within which legal and equitable causes of action may be joined? Unless such a construction be given to this section, all causes of action growing out of contract may be joined under the second subdivision. Hence a count on a note or bill of exchange, or a contract to pay money might be joined to a count for the specific performance of a contract, the foreclosure of a mortgage, or the enforpement of a lien, for purchase money. It is true that the concluding clause of the section sars that the causes of action so united must all belong to one of these classeis; but, if we are to give a literal construction to these words, it would follow that no two causes could be joined unless they grew out of the same tranu- action. ^Jence counts upon several notes or bills of exchange could not be joined unless they all arose out of the same contract or transaction. Nor could two separate trespasses be joined. This would be to narrow the right to join separate causes of action, instead of enlarging it, and compel separate suits in innumerable cases where heretofore a single suit was allowed. No longer could a petition be sustained to foreclose two separate mortgages, or for the specific execution of separate contracts. The first New York code did not contain the words as to joining legal and equitable causes of action, nor the subdivision 1. The courts held that a claim on a demand for money had and received could not be joined with a claim which, under the former practice, would have been the foun- dation of a bill in chancery, to compel the delivery up of certain notes. Cahoon v. Pres. of Bank or Utica, 3 Code R. 110, S. C. 7 Pr. R. 134; Aleger v Scoville, 6 Pr. Rep. 131. These cases maintain the doctrine, 3 34 JODfDEE OF ACTIONS. [OHAP. Actions Legal and Equitable. even where the two different 'grounds for relief grew out of the same transaction. The code was amended in 1852, and these words were then inserted with the manifest intent of authorizing a joinder of legal and equitable causes of action, where they arose from the same transaction. The reason of this is clear. By the law, as formerly administered, under the double aspect of law and equity, a party was often entitled to bring either a suit at law, or to file a bill in chancery. He had two remedies; but he must elect at once which he would choose to enforce, and his elec- tion was made by the bringing of his suit; if he sued at law, he elected to insist on his legal rights; if he filed a bill in equity, he elected to insist upon his rights in equity. As all distinctions between suits at law and in equity were abolished, it seemed necessary that a party should have the right to count in the same action upon the double aspect of his cause; oth- erwise, if he mistook his remedy or rights in the first instance, he might be barrgd the bringing of another suit; if not, he would be put to double costs for no benefit to any one. Hence the amendment provided for the joining of causes' of action, whether such as had heretofore been denom- inated legal or equitable, or both, when they grew out' of the same transaction, or transactions connected with the same subject of action. Legal and equitable causes of action may then be joined: I.— 1. When they both aeisk out of the saIie Tbansaction. 2. When thet aeise out of Teansaotions connected with the same Subject of Action. 1. The first class depends upon the origin of the two claims. The facts, out of which they arise, must be the same, and must, under the former practice, have given to the party a right to sue either at law, or in equity. In these cases, the plaintiff may, in one petition, present the double aspect of his case, and recover according to his rights as ascertained apon the trial. We may instance the case where a party has paid or received money on a contract for the purchase of real estate, and one of the parties fails to comply. The vendor can tender back the money paid, and rescind; or tender a deed, and insist on the payment of the purchase money. The vendee, if the vendor refuses to convey, has a right to I'escind and recover back the money paid, or to tender the purchase money in full and claim a conveyance. In such cases, however, as the remedies are inconsistent, the plaintiff must demand his relief in the alternative; and, if entitled to both, he must, at the hearing, elfect which kind of judg- ment or relief he will demand. Where the remedies are consistent, he may demand both; as, where he a.sks for the execution of a written contract for the conveyance of reai estate, and the recovery of possession, in addition. Vm.] JOINDEE OF ACTIONS. 35 Actions Legal and Equitable. So, also, on a petition on a note and mortgage, the plaintiff would be enti- tled to a judgment on the note, and an order to sell the real estate covered by the mortgage. So in Spier et al. v. Eobinson et al., 9 Pr. Eep. 326, it was held that a claim for specific performance of a contract to convey real estate, and for the payment of a reasonable sum for the use and possession thereof, is not the setting up of two distinct causes of action, which can not be legally united. The plaintiff in this case was the vendee, and his claim for use and occupation was for the occupation and use of the land sold between the time when possession should have been given and of the decree. The whole matter was then the subject of an ordinary suit in chancery, as there was at law no right to recover for this occupation. So a suit may be maintained to reform a contract, and enforce the collection of a sum of money due on such contract, when so reformed. Gooding v. McAlister, 9 Pr. Bep. 123. It was a matter of equity of jurisdiction, and contained, in fact, but one cause of action. 2. The second class depends upon the subject matter of the suit, where the transactions are connected with the same subject of action. Here are two things upon which the right to join depends : Mrst, Upon the one sub- ject of action; Secondly, Upon transactions connected with it. We mav remark first, that tort and contract can not be joined, though they are con- nected with the same subject of action. Actions to be joined must belong to the same class. Enos v. Thomas, 4 Pr. R. 48; Furniss v. Brown, 8 Pr. B. 69, So, too, they must be consistent with each other. Smith v. Hal- lock, 8 Pr. R. 73. Hence it was held that the plaintiff could not join a claim to recover land, as the owner thereof, and damages for obstructing him in the use of it, to a greater extent than is authorized by a lease held by the defendant. The first claim, says Strong, J., 8 Pr. R. 74, is founded on the supposition that the defendant has no right whatever to the enjoyment of the land; and the second, upon an admission that he has a limited right to occupy it. There is a discrepancy between the grounds of the two claims, which is contrary to the rules of pleading; and which, in my opinion, is not sanctioned by the provisions on the subject, in the last addition to the code of procedure. The one hundred and sixty-seventh section, as amended by the act of April 16, 1862, provides (subd. 1,) that the plaintiff may unite, in the same complaint, several causes of action, "where they all arise out of the same transaction, or transactions connected with the same subject of action." This has reference to such causes of action as are consistent with each other; not surely to those which are con- tradictory. The latter can not spring from the same transaction, nor can all of them be connected with the same subject matter, for the palpable reason that they can not co-exist. Besides, the fifth subdivision retains the 36 JOINDEE OF ACTIONS. [CHAP Actions LegEi^ and Equitable. provision in the code previously enacted, authorizing the junction of claims to recover real property, with or without damages for withholding thereof, and the rents andprofits of the same, i That would indicate that the union, in such cases, should not go further. • In Hulce v. Thompson, 9 Pr. K. 113, Crippen, J,, uses the following language in reference to this part of the code: " The allegations in the complaint make the house, and door-yard one subject of action. The plain- tiff seeks to recover possession of this, portion of the property involved 'in the action; it. is a distinct claim or cause of action; it has no connection with the claim of damages for the trespasses alleged to have been commit- ted by the defendant on other portions of the farm. It is true that both claims or causes of action set up in the complaint, arise from wrongful acts of the defendant; he unlawfully withholds possession of the house and door-yard; he also unlawfully cut the grass, and destroyed the fences, and committed other acts of trespass on the plaintiff'sfarm, irrespective of the house and yard in question. . Yet the difficulty remains, that withholding the possession oAhe house and yard, and the committing of the. trespasses, do not proceed from the same transactions; neither are they connected with the same subject of action within the meaning of subdivision 1 of section 167 of the code. It is clear from the case, as set forth in the complaint, that the claim in ejectment arises from the defendant refusing to surrender to the plaintiff the possession of the house and door-yard. This,, then, as a transaction, has no connection whatever with the trespasses of the defendant in cutting the plain- tiff's grass, destroying his fences, etc.; theseare entirely distinct and uncon- neoted transactions, having no affinity or relation to each other. Neither am I able to discover, by any fair course of reasoning, in what way the different claims set up are connected with the same subject of action. It is manifest that one subject of the action is the house and door-yard; the other is the trespasses committed by the defendant on plaintiff's farm, in cut- ting the grass, burning fences, etc. It is true that the house and yard are situated on the same farm whereoni the grass was cut by the defendant, and other trespasses committed by him; yet the farm is not made the subject of (tction by the complaint, within the spirit and meaning of subdivision 1 of section 167. Such are the decisions in New York on this singular clause in the code, from which we can hardly infer what will be its final construction. The suit must be about the same sulked of action. , This clause may be illustrated by the practice prevailing in courts of equity. The thing in dispute is made the test; and the rights of all persons, which attach to this subject or thing in dispute, may be adjusted in the single suit; as where there are several liens or mortgages on the same subject or matter in dispute. In Vm.} JOINDEB OF ACTIONS. 37 Actions Iiegal and Equitable. this Tiew, it only requires what the chancery law requiTed — that all parties in interest should be before the court, and all rights which affect the title to the property should be passed upon in a single suit. It would seem that all the rights or causes of action must cover, or be connected with, the identical property, or subject; that, if one cause of action is connected with only a portion of the subject of the suit that the other relates to, they can not be joined; and yet this construction can not be applied to equitable rights; as where there are different liens on different parcels of real estate, arid liens on the whole of it; Here there must be a joinder of all in order to make a clear title to the real estate; and the chapter on parties requires that such a joinder should be made. In conclusion, it seems to us that this subdivision ( 1 ) must be held to limit the right to join legal and equitable causes of action, and can not be applied beyond that. The other subdivisions must be construed as they would have been, had this clause never been inserted, except so far as the right to unite legal and equitable causes of actions, coming within the seveml classes of cases, must be limited and fixed by this subdivision (1). Under the other clauses, no causes of a legal and equitable character can be united, unless they come within the terms of the first clause. The remark, in the last clause, that the cause of actions so joined must affect all the parties to tlie action, can not be construed literally in cases of equitable rights, connected with real estate, and sometimes with person- alty. Parties have often different liens on different parts of the same property; and yet the cause of action of one can not affect all the parties, since others may have no lien on the identical property on which his lien attaches; and yet the liens may be such that, in order to make a clear title to the land or property, it is necessary that the rights of all should be adjusted in the same suit. In such cases, the code must be construed to require all parties interested in the subject matter of the suit to be before the court, before a decree can be rendered. In Title III, section 40, which relates to parties, the court is required to bring other parties in, when a determination of the controversy can not be had without them. In section 40, any person, having an interest in real or personal property, may, on his application, be made a party. We must construe the code, not on isolated titles, or sections, but by a careful survey of the whole; other- wise, innumerable conflicts will arise, and confusion become absolutely confounding. In regard to the other subdivisions, it may be remarked that the causes which can be united must all belong to a single subdivision. The causes of action which may be united in the same action must all belong to one of the classes contained in the above quoted section of the code. 38 JOINDEK OF ACTIONS. [OHAP. Actions Legal and Equitable. Contracts, Express or Implied, may be united Sec. 167. Each subdivision, it is fair to presume, was intended to provide for a class of cases not included in the other. Per Crippen, J., Hulce v. Thompson, 9 Pr. E. 113; Burdick v. McAmbly, 9 do. 117. In this case the judge says: "It is unnecessary to state the absurdity of uniting in one complaint, an action upon a promissory note, another for the conversion of real property, another for seduction, and another for fraud in the sale of personal chattels. The objection is obvious to every member of the legal profession." The same doctrine is stated by Edmunds, J., in Furniss v. Brown, 8 Pr. Rep. 59, 62; 7 do. 134; Cahoon v. Bank of Utica. It would be impossible to try such various causes of action by a jury. The number of issues would introduce such confusion, and so distract the minds of a jury, that "justice would become more the sport of uncertainty than now. II. CoNTEAOTS, Express or Implied, mat be united. This subdivision embraces all contracts, from which a legal liability arises. Can two causes of action, however, arising out of contract, always be joined? They may be inconsistent and limited by subdivision 1. And it is doubtful whether two causes can be united, which require diflferent tribuals for their trial. The code, section 263, (2 S. & 0. St. 1020,) provides that "issues of fact arising in actions for the recovery of money, or of spe- cific, real, or personal property, shall be tried by a jury, unless," etc. Section 264 provides that "all other issues shall be tried by the court," etc. Issues of law must first be tried by the court; but if issues of fact, the one to a jury, and another to the court, can be raised in the same action, which shall be first tried? These issues of fact to be tried by a jury are issues in actions for the recovery of money, or specific, real, or personal property, not issues on which a recovery in money, etc., can be had. The action must be for the recovery of money, etc. It is the action to which reference is had, not the character, of the issue. If the action is for the recovery of money, etc., then the issues in such an action are to be tried by a jury. The word action includes all the causes of action stated or prosecuted in it. Hence all these causes of action must be for the recovery of money, etc., or the action can not be said to be an action for the recov- ery of money, or specific, real, or personal property. In Gaboon v. Bank of Utica, 7 Pr. Rep. 134, it was held that causes of action requiring differ- ent trials could not be joined. This subdivision (2) is broad enough to justify the joinder of causes requiring different trials; but as no provision is made for the trial of such mongrel actions, it must be held that such a joinder can not take place. •Vni.J JOINDEE OF ACTIONS. 3& Injuries to Person and Property — Cliaracter. Claims to Recover Personal Property. III. Injdbibs with oe ■without Foece, to Person and Pkopertt, or either. The section provides for the joinder of actions of trespass, as hereto- fore classed, whether to the person or to property, or to either, and also actions on the case for nuisances, or other incidental injuries. It is clear, from the other subdivisions, that all cases heretofore known as trespass, and trespass on the case, are provided for under this subdivision. Hence what were actions on the case and trespass may be joined. Trespass, too, to real estate comes under this head. Criminal conversation with plaintiff's wife was held to be an injury to the person. Delamater v. Russell, 2 Code Rep. 147; S. C. 4 Pr. R. 234. So also of an action of seduction. Tay- lor V. North, 3 Code Rep. 9. Claims, however, for injuries to personal property, and for its possession, are different causes of action. Spalding V. Spalding, 1 Code Rep. 64; S. C. 3 P;-. Rep. 297. Cases for conversion of property will also come under this head, unless they can be so presented as to come under subdivision 5. IV. Injuries to Chabaoter. Under this class are- included all actions for verbal and written slander, actions for slander or libel. In Watson v. Hazzard, 3 Code Rep. 218, it is said that a cause of action for a malicious prosecution may be joined with one for slander. This can hardly be so, since a malicious prosecution is an injury to the person, certainly as much as seduction or criminal conversa- tion. It can not be said to be an injury to character, since character is not its object; arrest and imprisonment is its object, and character is only incidentally affected, if affected at all. V. Claius to Recotee the Possession of Peksonal Phopeett with ok without dam- AGES FOE THE WITHHOLDING THEREOF. This section is equivalent to the old action of replevin, and will lie where that action would have laid. Title VIII, chapter II, section 174, (2 S. & C. St, 996.) clearly shows that such is the meaning of this subdi- vision. That section says that, in an action to recover the possession of spe- cific personal property, the plaintiff may claim the immediate delivery, etc. A party may, however, claim to recover the specific property without resorting to his replevin; he may demand his property or damages for its loss. Still, in order to maintain such a suit, he must be entitled to the " immediate possession. There is possibly a class of cases, once included in the action of trover, where this form of action may be resorted to if the petition is properly framed. 4.0 JOINDEE OF ACTIONS. [oHAP. VOT. Claims to Becorer Beal Fropei-ty — ^Against a Trustee. VI. Claims to KEOOVEa Eeal Pbopeett with ob wiihodt damages foe the with- holding THEREOF, AND THE BeNIS AND PROFITS OF THE SAME. This class embraces the old action of ejectment, authorizing, however, an additional remedy in the same action for damages, vrhich were formerly recovered in an action of trespass for mesne profits.. So also injuries to the real estate, waste or destruction, may be included in a single action. The mesne profits — the rents and profits during the dispossession of the plaintiffs — are the only rents and profits to which it has reference. 8 Pr. R. 520, VII. Claims against a Trustee, bt virtue op a Contract, or bt Opeeatioh o» Law. This section authorizes the joinder of express and implied trusts. Effect of Non-Joinder. A question will arise, whether, if not demanded in the suit to recover specific, real, or personal property, a second suit can be prosecuted to recover the damages sustained by the withholding of the property. It is submitted that a failure to demand the damages, or rents and profits, in the action to recover possession, will be a bar to a subsequent suit to recover what is a mere incident to the first suit. Clearly, in a case of replevin, no second suit could be prosecuted to recover damages for the unlawful deten- tion, and it would seem that the same reasoning should now be applied to a suit to recover real estate. Again: If a party has both a legal and equitable claim, arising out of the same transaction, can he bring a suit on his legal claim, and a second on his equitable one? Must not a party who holds a note and mortgage, demand his whole rights in one suit? Can he obtain judgment on his note, and then afterward proceed on his mortgage? It would seem that a party should be compelled to set forth his whole claim, growing out of the same (transaction. There are other similar cases, in which, to prevent multi- plicity of actions, a party should be required to set forth his whole claiw in a single action. CHAPTER IX. JURISDICTION OF THE COURTS. ,? The code does not undertake to settle or fix the jurisdiction of the 30urts. It assumes that the Court of Common Fleas has original juris- diction both in suits at common law and in chancery. The jurisdiction of the courts is fixed by the act of March 14, 1853. 1 S. & C. St. 382, and the acts amendatory thereto. Sec. 5 of the orig- inal act, amended April 29, 1854, (1 S. & C. St. 386, Sec. 33,) provides that the Court of Common Fleas shall have original jurisdiction in all civil cases, where the sum or matter in dispute exceeds the jurisdiction of jus- tices of the peace. By section 1 of the act of May 1, 1854, (1 S. & C. St. 770,) justices have exclusive original jurisdiction of any sum not ex- ceeding one hundred dollars, and concurrent jurisdiction in any sum ov^r one hundred dollars, and not exceeding three hundred dollars. These sections can not apply to matters heretofore the subject of chan- cisry jurisdiction. That jurisdiction has never been held to be conferred under such terms; it has always required express legislation for that purpose. Sach has been the history of our former legislation, as may be seen by refer- ence to our former practice, under acts regulating the jurisdiction and practice in chancery. Unless this construction is given to these acts, then justices oil the peace possess chancery jurisdiction, where the amount in dispute does not exceed three hundred dollars, and can entertain a petition to adjust a partnership account, compel the specific performance of a contract to convey land, etc. In the latter case, it is not the title to real estate that comes in issue, but the execution of a personal contract. The chancery jurisdiction must be found in section 6 of the act of March 14, 1853, (1 S. & 0. St. 383, Sec. 23.) This section provides that all processes and remedies, authorized by the laws of this State, when the present Constitution took efieot, not hereinbefore provided for, may be had and resorted to, in the courts of the proper jurisdiction, under the present Constitution; and all laws regulating the practice of, and imposing duties on, or granting powers to the Supreme Court, or any judge thereof, and the Courts of Common Pleas, or any judge thereof, respectively, under the former Constitution, in regard to matters not hereinbefore provided for, ex- cept as to matters of probate jurisdiction, in force when the present Con- stitution took eflfect, shall govern the practice of, and impose like duties (41) 42 JUEISDIOTION OF THE CODKTS. [CHAP. IX. Actions in Qeneral. upon, the District Courts and Courts of Common Pleas, and the judges thereof, respectively created by the present Constitution, so far as such processes, remedies, and laws shall be applicable to said courts, respect- ively, and to the judges thereof, and not inconsistent with the act entitled "an act to establish a code of civil procedure," nor with the laws passed since the present Constitution took effect, and which are still in force. The language of the section is somewhat obscure, and the whole extent of its meaning it may be difficult to define. But on this point it is clear; the code gives no jurisdiction; and acts in force when this Constitution was adopted, did give Courts of Common Pleas jurisdiction, in all cases properly cognizable by a court of chancery, in which plain, adequate, and complete remedy can not be had at law. . There is nothing in the code inconsistent with this; and hence it must be in force, for the purpose of giving jurisdiction; otherwise, there is no jurisdiction vested in our courts to administer the law of a court of chancery. It can not be given under the words "in all civil cases," without giving the same jurisdiction to jus- tices of the peace, where the sum does not exceed three hundred dollars. It is, then, an admitted fact that our Courts of Common Pleas have juris- diction of all eases, whether they were formerly considered' matters of common law or equity jurisdiction. All rights heretofore recognized, whether by the common law, or by the law as administered in a court of chancery, can still be enforced in the courts of this State. The whole change the code has made is to call the proceedings in both cases a civU action, and the document setting forth the facts of each class of cases, a petition. Law and equity are still as distinct as ever, and must be admin- istered and enforced according to the distinctive character of the respective codes of law. A proceeding to compel the specific performance of a con- tract, or to set aside a contract for fraud, must be, in its nature, unlike a proceeding to enforce the payment of a note or bill of exchange, or a ,claim for trespass on real estate. A change of names can never change the nature of the things named. To know, then, what can be done in a court of justice, we must find what are the rights of individuals; and we can learn these only by going back to the fountains of all rights, recognizable in a court of justice; to the common law, and to the law as administered in a court of equity. What- ever facts would heretofore sustain a suit at law or a bill in chancery, will now sustain a civil action, and may be prosecuted by petition. CHAPTER X PLEADINGS The only pleadings allowed are: 1. The petition of the plaintiff. 2. The answer or demurrer by the defendant. 3. The demurrer or reply by the plaintiflf. 4. The demurrer to the reply by the defendant.* I. Pbtixiost. The petition must contain. 1. The name of the court, and the county in whioh the action ia brought, and the names of the parties, plaintiff and defendant, followed by the word "petition." This whole clause, under the New York code, is a mere rule of court; but under our code these veriest matters of form have been declared to be matters of substance. There was no necessity for this provision. Under our law, a case must be tried in the county and court where the suit is brought. Hence all questions of court and venue are settled independent of any statement in the pleadings. The commencement of the suit in court settles both the court and the county where it must be tried. Hence the English doctrine of venue never had any existence in Ohio; the venue, here, was fixed by the bringing of the suit; while in England, suit being brought in a court having jurisdiction over the whole of England, an aver- ment of venue was material, to show in what county the case occurred; because in that county, the law said, the case must be tried, if tried by a jury. Hence, in its origin, venue in England was a matter of substance, and not of form, while in Ohio we never had any such law, out of which grew the English doctrine of venue. In England, the place of trial was fixed by the averment of the venue; in Ohio, it is fixed by the bringing of the suit. The code has, however, enacted that these trifles are now matters of positive liiw, and hence they must be complied with. 2. The petition must contain a statement of the facts constituting tho cause of action, in ordinary and concise language, and without repetition. Before proceeding to discuss the effect of the operative portion of this clause, we will get rid of what has no legal effect whatever. The words following the word "action" are of this character. The facts are to be * See Addenda, H o. U , p. 790. ( 43 ) 44 PLEADINGS. [chap. Hov Facts to be Stated. stated, and, if stated, then they must be stated in appropriate language, and without unnecessary prolixity. When pleadings were unnecessarily prolix, courts have always exercised the power of striking out unnecessary matter; since to insert it was an abuse of the privileges of the court — a mean of merely increasing costs. " In ordinary and concise language." What these words mean, it is somewhat difficult to say. If they mean that the facts shall be stated in appropriate language, then they are useless; because facts must always have been so stated. The science of law, like all other sciences, has its fixed and well defined nomenclature; and facts, when stated in this legal lan- guage, were always well stated — so stated that every lawyer knew the exact import of the statement. But, if, by ordinary language, is meant the language of common life, then the clause is absurd; because the language of ordinary life is not conversant with such subjects, and hence has no appropriate language in which to embody such facts. Ordinary men inva- riably state the evidence, by which faiots in legal contemplation are to be proved, and not the facts themselves. These words can have no legal operation on the balance of the clause; by it the facts, constituting the cause of action, are to be stated, and nothing more, and certainly nothing less. ^How, then, are these facts to be stated? This question gives origin to another. The code, under this. language,- provides for cases arising under the law as adftiinistered in a court of law, and in a court of equity. Here are two distinct classes of rights, arising under two distinct systems of law, and two distinct systems of relief. Are the facts in both classes of cases to be stated alike? Or are they to be severally stated, according to the respective natures of the two difierent systems of law, and the two different systems of relief? In New York, this question has given origin to infinite confusion, and to a multitude of conflicting decisions. The cases there are all at sixes and fours, as may be seen by consulting the following cases: Knowles v. Gee, 3 Code Eep. 31; Rochester City?;. Suydam, 6 Pr. E. 216; Hill v. McCarthy, 3 Code Rep. 49; Floyd v. Dearborn, 2 Code Rep. 17; Carpen- ter V. West, 6 Pr. R. 63; Burget v. BisSel, 5 do. 192; Le Roy v. Marehall et al., 8 Pr. Rep. 373. These cases recognize the existence of a difference in the manner of stating the facts in a case of equity and in a case at law. Other cases seem to recognize a contrary doctrine. Williams v. Hayes, 1 Code R. N. S. 148; Milligan v. Carey, 3 Code Rep 250; Clark v. Harwood et al.,8 Pr. R. 470. The weight of authority is in favor of the existence of this difference in the two systems. But there ought to have been no difficulty about this question. Every civil action is now an action on the case; and the pleadings must, therefore, X.J PLEADINGS. 45 Cases Depending on Iiegal Eights — On .Equitable Rights. conform to the. nature of each case. The plaintiff claims he has a right of action against ithe defendant, and in his 'petition he must state the facts on which he grounds his right of action; How the facts shall be stated will depend upon the nature of the facts themselves, and the kind of judg- ment he seeks to obtain. A case, therefore, predicated upon the principles of equity law can not be stated like a case founded on a promissory note, a bond, or a covenant, or for an injury arising from torts. Legal and equitable proceedings are essentially different from each other in their origin, nature, and object. In a common law action, the plaintiff presents an absolute right to relief, in the most concise and" expressive language. He states his title, and nothing more. But in a suit in equity, none of this rigid logic prevails. An equitable claim may be composed of numerous independent facts, all of which, or only a portion, may be required to satisfy the court. A legal claim is a single proposition, which must stand in all its parts or fall. The one is a chain which is worthless if a single link fail, the other a rope, composed of numerous strands, some of which may give way, and yst enough remain to secure some relief. Vide opinions of Barculo, J., in le Eoy V. Marshall, 8 Pr. R. 373, and of Selden, J., in Rochester City Bank V. Suydam^ 5 do. 216, and Wooden v. Waifle, 6 do. 146. The question, then, is presented in a double form, and we will so con- sider it: 1. As to cases depending on one's legal rights. 2. As to those depending on one's equitable rights. 18 N. Y. 76 ; 17 do. 354 ; 22 N. Y. 228. And first, as to the petition in cases arising out of legai rights. ].n these cases, the facts constituting the right of action are to be stated. Evi- dence is not to be stated, but ordy facts. The distinction between /acfe arjd the evidence of facts, is well defined in all works on common law pleading. Hence, if we are to ascertain what facts must necessarily be stated, to show a right to recover, we must go to the works on pleading, and to the law on which such works are founded. The declaration contains a statement of those facts on which the plaintiff founds his right of recovery, and must, of course, allege all that is essential to his right of action. Gould PI. 172, Sec. 7. This language is identical with that of the code; and a statute, containing language having a clear, definite legal meaning, must be con- strued according to that meaning. Ex parte Hall, 1 Pick. Rep. 261; Mer- chant's Bank v. Cook, 4 Pick. Rep. 405; Snell v. Bridgewater Man. Co., 24 Pick. Rep. 296. Such, too, is the prevailing opinion in New York. Facts must be still set forth according to their legal effect and operation, and not the mere evidence of those facts, nor arguments, nor inferences. 46 PLEADINGS. [chap. Cases Depending on Legal Principlce. nor matter of law only. Nor should pleadings be hypothetical. Hand, J. Pattison v. Taylor, 1 Code E. N. S., 175; Buddlngtbn v. Davis, 6 Pr. Rep. 402; Williams v. Hayes, 6 Pr. E. 473; Howard v. Tiffany, 3 Sand. S. C. E. 696. In Stone v. De Paya, 4, Sand. S. C. R. 681, Oakley C. J., and Sandford, Duer and Mason, J. J., held that the rule of pleading in actions for a legal remedy is the same as formerly in this — that facts, and not the evidence of facts, must be pleaded. The facts, then, must be stated sub- stantially, as they were formerly in a declaration. Howard v. Tiffany, supra, Buddington v. Davis, 6 Pr. Eep. 402; Wooden v. WafHe, 6 Pr. E. 145; Dows v. Hotchkiss, New York Code, 1862, 144, note; Eoot v. Fos- ter, 9 Pr. R. 37. In this case, Welles, J., says : "I think the complaint in this case conforms, in principle, with the common law rules of pleading, which, in most cases, are the best criteria by which to judge of pleadings under the code." One thing is, however, very clear; if the pleader embodies in his petition the substance of a common law declaration, he is sure to have a good petition; if he adopts any other form, he will never be certain that he has a good petition, until he has the decision of a court of final resort upon its sufficiency. Every cause of action must now be specially stated. If the cause of action is founded on a note, bond, bill, etc., the petition must count on such note, bond or bill. There are no longer any common counts, save in cases coming literally within the letter of such counts. In the case of an action against the makers and indorsers of a note, or the drawers, indorsers and acceptors of a bill, the petition must state facts enough against the maker to show his liability to pay, and enough against the drawers and indorsers to show their liability to pay; not only the making of the note, but a demand and notice according to its terms. Spellman v. Weider, 5 Pr. E. 5. It has been a question in New York, whether the common counts could now be used. Eno v. Woodworth, 4 Comst. Rep. 249; Blanchard v. Strait, 8 Pr. R. 83. But it seems there can be no valid objection to these counts, in cases coming under their very terms. In such cases, as of goods sold, money had and received, money paid by one for another, and on an account stated, the common counts are a statement of the facts of the case, and any more detailed statement must necessarily run into the evidence by which , the facts are to be proved. This form of pleading must be allowed, or the petition must go on and state each particular item of a long account of goods sold, etc. This would be an -outrage on common sense, and render pleadings in such cases interminable. This question has, however, been settled by the New York Court of Appeals, jn the case of Allen & Carpenter v. Patterson, 3 Selden Rep, 476. The common indebitatus count, in the ,old action of debt, was there held X.] PLEADINGS. 47 Cases Depending on Legal Frinciples. good. The court say: " The code requires that a complaint shall con- tain a plain and concise statement of the facts constituting the cause of action." Every fact which the plaintiff must prove to enable him to main- tain his suit, must be distinctly averred or stated. The rule of pleading in an action for a legal remedy is the same as formerly in this, that facts, and not the evidence of facts pust be pleaded. 1 Chitty PI. 216; Read v. Brookman, 3 Term Rep. 169; Eno v. Woodworth, 4 Comst. Rep. 249. It (the complaint) contains every statement of fact necessary to constitute a good indebitatus count in debt, according to the mode of pleading before the code. 2 Chitty PI. 142; Emery v. Fell, 2 T. R. 28; 1 Chitty PI. 345. The same view of the code had been taken by Hand, J., in Stewart v. Travis et al., 10 Pr. Rep. 148, before the case of Allen v. Patterson had been reported. "My own impressions," he says, "have been that the common counts, perhaps with some variations, are still good. A direct allegation of the cause of indebtedness, as the loan of money, the sale of goods, or performance of work and labor, etc., may be preferable to the former recital of indebtedness; but certainly, it must be enough for the plaintiflf to state facts sufficient to create a legal obligation upon the part of the defendant, and such violation of that obligation as creates a cause of action; and I think this statement may be according to the legal eflFect of those facts. I do not see how such pleading can be demurrable, and the objection of variance would not prevail, unless we mean to give an illiberal construction to the code. With few exceptions, there is nothing in this statute that compels us to invent new modes of expressing the same legal proposition. If the pleader in a case, not of equitable jurisdiction, (for that distinction is not, nor can it be, abolished by the Legislature, ) must now state all the evidence, and give a minute and voluminous history, and •all the details, of the rise and progress of a cause of action or defense; much of it may be pleasant as gossip, but such pleading must necessarily be a slow and pei-plexing mode of coming at the truth, especially by a trial ^y jui'y-" The sensible, and the only sensible rule, therefore, to adopt in regard to the code is, that, while it has abolished the distinction in actions at law, and requires a declaration and a bill in chancery to be called by the same name, "a petition," it has left each separate case to be stated according to the law governing that particular case. Whal; does the law require to bs stated in this case to constitute a good cause of action? To answer, this question, one must resort to Chitty and the cases; and he will there find, and there only, what is necessary to be stated. Is it a case founded upon equitable principles? Then you must resort to Mfdford, and Cooper, and Story, if you would learn what facts are necessary to be stated, in order to 4:8 PLEADINGS. [cHAP. Cases Depending on Legal Principles. make a good cause of action on paper. The code does not settle this ques- tion of what is to be stated, only that a cause of action must be set forth in the petition; and, if we can not resort to acknowledged rules of pleading, to ascertain what facts make out a cause of action^ and in what language they are' properly stated, where are we to go, to ascertain this important matter, to answer this important question? Does a petition set forth a cause of action? The pleader must resort to either the one or the other of these classes of works; and he can not go elsewhere, as his case is founded either upon legal or equitahle principles, to obtain an answer to his inquiry. The forms are evidence of what the law is; they show what facts the courts have held to constitute a cause of action, whether those facts constitute a case at law or one in equity. The New York courts, after seven years of uncertainty and confusion, are rapidly coming round to th's common sense view of the matter, as the only way up to light, out of the darkness that has for so long a time enveloped their pathway. They ha-ve found that even reform, almighty and universal as it claims to be, in these ' days of boasted enlightenment, can not change the inflexible laws of nature and of mind. The mind will, nay, must classify its knowledge, and no legislation, short of a statute of Omnipotence, can prevent it. Hence causes of action will invariably arrange themselves into classes, in spite of the effort of the code to get rid of all classification, and mingle the whole into one indistinguishable mass of confusion. Order will grow up again; arrangement will gradually take place amongst this mass of facts; and a lan- guage, suitable to embody these facts, to express these classifications, will be formed; while common language will be left to express the ideas and things with which it is conversant, and withdraw from an undertaking to express matters, and things, and notions, and ideas, with which common language has nothing to do. Every science must have its own facts and ideas, and a scientific language adapted to express them; and what more absurd than to require an Agassiz to express the results of his profound studies in common language? No less absurd is it to require the facts and notions of legal science to be expressed in common language. There are some rules stated in the code, by which the pleader should be governed. Section 129 provides that neither presumptions of law, nor matters of which the courts will take judicial notice, need be stated. This is only a declaration of what the law of pleading already was. It is unneces- sary,' says Gould, (PI. 63.) to allege matter of law. It is only necessary to allege the facts; of the law the court will take notice; so little necessary or proper is it to put on paper a fact which the court is bound to know. There is, then, nothing new in this; nothing which in the least innovates upon the old established ways. X.J PLEADINGS. 49 Cases Depending on Legal Principles. i ~ : - Sec. 123. This section may not be as harmless as the other. It must have been introduced in utter ig^norance of the decision of our own courts. In New York it had a meaning, and was a change for the better; in Ohio it has no meaning, or it is a change for the worse. In New York, as in England, private acts had to be pleaded, set out in full, or so much of them as would show the right of the party to what he claimed. The code, there, substituted for this a mere reference to the act. In Ohio, it had been decided that, as all our statutes, private as well as public, were published by authority, the court WQuld take judicial notice of the former as well as of the latter. In England, private acts were never published; hence neither the courts nor others could know their contents, unless they were set forfih in pleading. Brown v. The State, 11 Ohio Eep. 276, 280. Under the law, in Ohio, it was never ' necessary to recite either the body or title to Si private act. The facts needed only to be stated, which showed the right under the act, and the court took judicial notice of what were the contents of the act. This section, then, has no meaning here, or it so far changes the law for the worse as to require the absurdity of referring to the title of an act of which thecourt will take notice. The rule of our court is right, or the English one is. Either the court must take judicial notice of a pri- vate act, or it should be set out; otherwise the court has no means of deter- mining whether a good cause of action is set out or not. This New York rule is an absurdity. Our court showed good sense in' saying that whtsn the reason of a rule had ceased, the rule ceased with it. The reason of the rule was that such acts were never published by authority, as the gen- eral laws were; hence the judges could not take judicial notice of the one, as they did of the other. In Ohio, this reason never did exist; all laws were published in the same volume, with the same authority, and stamped with the same authenticity. And why not, then, take notice of the one as well as the other? The court answered this question like sensible men, not in the habit of sticking in the bark. But now comes the code. What effect has this upon the well settled law of Ohio? The code is not manda- tory; it is permissive; it shall be sufficient to refer to such statute by its title. But as it was never necessary, in Ohio, to refer to such a statute at all, it will be undoubtedly sufficient to refer to its title, on the ground that surplusage never vitiates; though it might be stricken out, on motion, by another section of the code, as redundant, or impertinent matter. We may, then, consider this section (123) as a blunder; as a permission to do what no sensible man will be guilty of doing; and so, in Ohio, a work wholly superogatory. By this construction, we at least render it harmless;, which we should not do by a different interpretation. 50 PLEADINGS. [CHAI'. Cases Depending on Legal Principles. Sec. 124. This section is also adopted from the code of New York; it was introduced there, to get rid of an absurd decision in the case of^ Miller v. Maxwell, 16 Wend. Rep. 9 — a decision which, it is believed, wa^. never followed in Ohio. By that decision, it was held that where it was uncertain, from the libel itself, whether it referred to the plaintiff, the facts which showed that the plaintiff was referred to must be stated; that it was not enough to say they were published of the plaintiflf. An inducement is only necessary, when the words are actionable only in virtue of some ex- trinsic fact; then that fact must be set out. Towle v. Bobbins, 12 Mass. Rep. 498; Bloss v. Tobey, 2 Pick. Rep. 320; Carter v. Andrews, 16 Pick. Rep. 1; 13 do. 198; 15 do. 321; 8 Mass. Rep. 122; 2 Dev. Rep. 115; 14 Maine Rep. 317; 8 N. Hamp. R. 256. And this section has, in New York, been limited to the single purpose of overruling the case of Millier w. Maxwell. "Hence," says Duer, J., in Fry v. Bennett, 1 Code Rep. N. S. 247, "where the meaning of the words is so ambiguous that extrinsic facts are necessary to be proved, to show them to be actionable at all, the necessity of stating these facts by an explicit averment, is precisely the same as it has always been. As these facts must be proved, to enable the plaintiff to maintain his suit, they are material and issuable in their nature; and a change in the rules of pleading that would have relieved the plaintiff from the obligation of stating them in his complaint, and thus have taken from the defendant the opportunity of controverting them in his answer, would have been highly inexpedient." This section, says WiUard, J., merely dis- pensed with the allegation of extrinsic facts, shovnng the application of the ■words to the plaintiff, in order to obviate the difficulty which was supposed \o have been occasioned by the decision of the Supreme Court, in Miller v. Maxwell, (16 Wend. 9.) It does not dispense with the necessity of an averment of innuendo, when it becomes necessary to show the meaning of the words themselves. In these respects, the rules of pleading remain unaltered. 5 Pr. Rep. 171. The same view is taken of this section by Harris, J., in Pike v. Wormer, 6 Pr. Rep. 99. This section, then, is another which, it is believed, has no application in Ohio; since the rule laid' down in Miller v. Maxwell never was recognized here as law. Hence the section leaves the law of declaring in libel and slander unchanged in Ohio, and with but a very slight modification in New York. Sec. 122. This section was introduced for the benefit of ignorance; but had, in New York, received such a construction before the adoption of our code, as should have induced the commissioners to have left it oit alto- gether, as being in no whit an aid to the meritorious class for whom it X.] PLEADINGS. 51 Cases depending on Legal Principles. was intended. Our commissioners, too, reported an absurd form from the New York code, after it had. been held bad by the courts of that State. In Eanney v. Smith, 6 Pr. Rep. 423, Marvin, J., says: "If it is intended by this section to dispense with a statement of facts constituting the cause of action, or new matter constituting a defense, it is a wide departure from the system of pleading, as previously established by the code. How are issues to be formed? May a complaint contain simply a copy of the note, followed by the allegation that there is due to the plain- tiff a certain sum, and that be claims such sum? If so, upon what is the defendant to take issue?" "My opinion is," says Welles, J., "in Bank of Geneva v. Gulick et al., 8 Pr. Rep. 61, "that it was not the intention of the Legislature by section 162, (section 122 of our code,) to dispense with any of the requirements of section 142, (section 86 of our code.) The last mentioned section lays down and establishes the rule in general terms, as to what a complaint must contain; and section 162 is designed to relieve the party from setting out the written instrument according to its legal eflfect. It could not have been intended, I apprehend, to excuse him from stating his interest in, or title to it, or from alleging such other facts, outside of the instrument, as were necessary to enable him to recover upon it." The same doctrine is maintained by Bacon, J., in Prindle v. Carruthers, 10 Pr. Rep. 33, and by Strong, J., in Chappell v. Bissell, 10 do. 276. The decisions in New York have been uniform as to the effect of this section, and as it requires, really, just as much as the other seetions of the code, no forms are given of declaring under it. This Dook is meant for lawyers; it is supposed that section 122 was meant for another class of men, for whose benefit we do not concern ourselves. Sbc. 121. This section provides that in pleading performance of con- ditions precedent in a contract, it shall be suffioifent to state that the party has duly performed all the conditions on his part. This may be done in cases where there is no dispute as to the performance; but where there is a real dispute, the plaintiff will gain by specifically alleging it, as the defendant must then deny the specific allegation; whereas many a defendant will deny this averment of general performance, who will not that of the specific fact constituting the performance. In the one case, it may be a conclusion of law he is answering to, instead of a denial of the real fact; and so you would be compelled to try a case, in order to raise a legal question, which would have been raised on the record, if the plea had averred performance spe- cifically. In all disputed cases, therefore, it is best to follow the common sense view of putting on record the facts of your case.* * See Addenda, No. 4, p. 782. 52 PLEADINGS. [chap. Cases depending on Principles in Equity. Several Counts. Under the old practice, a party could state his case in various forms, and under various aspects. But under the code all fictions are abolished, and parties are required to state the facts of their cases. A /act is defined to be a ihinff done; a reality, not a supposition; an action, a deed. All of these defi- nitions call, and some of them emphatically,'for the truth. The first edition of the code contained the same requisition, that the complaint should set forth a statement of the facts constituting the cause of action; and it also required that it should be verified; of course that statute called for a true statement; and the same phraseology used in a subsequent statute must have the same interpretation. Indeed, the principal, and I am constrained to say, almost, the only beneficial object of the Legislature in adopt- ing the code, was to abolish the use of fictitious allegations in our written pleadings; which had a tendency to mislead the parties, and embarrass those to whom the administration of the law was confided. 'Sow, as there can be but one substantially true statement of a single cause of action, the practice of setting it forth in different counts is necessarily abolished. Per S. B. Strong, 10 Pr. R«p. 166. Cases depending upon Principles in Equity. The code changes the form of a bill to some extent. Discovery ceases to be any longer one of the objects of a court of equity; this object is now obtained by a direct examinaition of the parties to a suit. Hence this part of a petition must be omitted. With this must be omitted the exhibition, with the petition, of all papers, documents, and facts, which tend merely to prove the legal fact, or facts, on which the plaintiff's right to relief depends. The petition will, therefore, contain only the facts on which the right to relief ' depends. It will be what the stating portion of an old bill in chancery was; but the petition must sometimes go farther, and anticipate a defense, by showing facts which are an answer to such defense. On a parol contract to convey land, the petition must anticipate a plea of the statute of frauds, by showing acts amounting to a part performance. So, also, the petition must anticipate a defense growing out of a lapse of time, and probably one founded on the positive provisions of the statute of limita- tions. So, also, a defense of infancy must be anticipated, and the petition must show the facts that avoid it. In other words, the whole case must be stated. If an account has been stated, a petition for an account will not lie; a plea of the account stated will be a bar. The stated account must be the basis of the petition; it must state that as a fact, and proceed to show that it was obtained bv fraud, or that there are mistakes in it, by X,] PLEADINGS. 58 Demand for Belief. including what ought not to have been included, or by omitting what ought to have be6n included. So, if a release has been", given, it should be attacked and got rid of in the petition, so that the way will be left open for relief on the cause of action so released. These are familiar principles in pleadings in equity, and the code has not interfered wfth them. The case is still to be stated, and how shall it be done, except in the method here- tofore held necessary? These are the facts which the law requires to be stated, and they must be stated now just as clearly as before. The code says that each cau^e of action must be separately stated. This can not apply to pleadings in chancery. There may be several grounds of relief growing out of the same facts. Has every one to be stated sepa- rately, in a separate count, as is the. case in an action. at law? Then there will be no end to chancery pleadings, if all the facts have to be re-stated just as often as there are separate grounds for relief. The thing is absurd; call the bill a petition if you will, but in heaven's name exercise common sense, in stating your case in such a form as the wisdom of a large expe- rience has devised to be the most appropriate. The ease must still be stated, as it ever was, all in one single statement; and Midford, Cooper, and Story must be your guides in learning when the thing is-right, and when not. There is no other method by which the pleader can be 'certain that he is right, and there is no other method by which the statement can be made as briefly and intelligently. The Prayer or Demand for Relief. If the demand be for money only, the amount thereof should be stated; and if interest thereon is claimed, the time from which it is to be computed must also be stated. In actions, then, for the recovery of money, there are two classes; one, where a sum certain, with interest, is demanded; and the other, where the sum is uncertaih, to be found by tlie court or a jury. In the first class is embraced all those cases where the aflSdavit goes to the truth of the amount demanded.* The verification applies to the sum stated, only in actions founded on contracts, express or implied, for the payment of money only. The cause of action, then, must be founded on contract, and not only on contract, but on a contract for the payment of money only. This language is substantially the same as that employed in section 122. What, then, is a contract for the payment of money only ? We sup- pose it is one, where an averment of the non-payment of the money is all the' breach that is necessary to show a right to recover. If the petition must contain any statement, except those of a legal liability to pay a sum of money, and the non-payment of it, then it is not a contract for the pay- ment of money only. An action on a warranty in a deed, for the loss of 54 PLEADDiTGS. [CHAP Demand for Belief. Duplicity. goods by common carrier, for the recovery of money on the rescission of a contract, can not be included in this class; for though the rule of damages is certain, still it has to be assessed as damages. The exact sum, then, must be stated in all cases, where an indebitatus count in debt would lie, on all notes, bills, etc., whereby itjhe maker binds himself to pay a sum certain of money. In these cases, the prayer must state the exact sum due, and the exact time from which interest is payable. In other words, he must state the facts, so that, on a default for answer, the court can, by an inspection of his peti- tion, calculate the amount for which judgment is to be rendered; as in such case the plaintiff is entitled without evidence to the sum and inter- est thereon, as he demands. In all other cases the sum to be stated may be any sum which will be sufficient to cover what the plaintiff claims. In other words, in these cases, the amount claimed should be stated as damages; in the other as a debt. It is very important to keep up this distinction; otherwise, parties may be making oaths to sums, to the exact truth of which they-*iever dreamed of affirming on oath; or, in other cases, parties may be in difficulty in lay- ing their damages too low, through fear of being sworn to the truth of the amount. In real actions the prayer will be for the recovery of the land and damages if they are claimed. So in replevin, the prayer must be for a return of the properfy and damages for its detention. In cases founded on principles of ^equity, the prayer must demand the specific relief the party is entitled to. There is here no general prayer broad enough to cover any relief the case will justify; the plaintiff must forecast his relief, and be sure to do it right, unless he can be sure of leare to amend; and that hangs upon the discretion of a judge. The statement of more than one cause of action. Each cause of action must be separately stated. This rule precludes duplicity. Each count must be complete and distinct; and, if two causes of action, in a case at law, are blended in one statement, it is bad on demurrer under our code, which has itself required this distinct statement to be made. Duplicity is a direct violation of the code; such a complaint presents an illegal look on its face, and hence must be held bad by the court. And such are the last decisions in New York, though there has been much conflict in the cases. Van Namee v. Peoble, 9 Pr. Rep. 198; Straus V. Parker, 9 Pr. Rep. 342. Some courts in that State hold it must be reached on motion; but the Court of Appeals, in Gaboon v. Bank of Utica. 3 Selden Rep. 486, recognized this practice; the question in that X.j ' PLEADINGS. 55 Statement of more than one Cause of Action, case was one of duplicity, raised on demurrer; and no objection being taken to the practice, the court proceeded to decide the case, afiSrming the judgment below. Whereas, if the question could not have been raised on demurrer, then the demurrer was a nullity, and the judgment one by default; thus presenting no question for the Court of Appeals. But the court proceeded to decide the case, on the ground that the judgment must be reversed, if the petition contained two causes of action in a single count. The dissenting opinion of Jewett, J., shows this to have been tlie under- standing of the court. The necessity of having each stated by itself in a different count is as imperative, under the code, as under the former prac- tice. By stating each separately, confusion is avoided, a definite issue can be framed on each cause of action, and it can be more conveniently tried There should be as many separate statements as there are causes of action Such is the language of Jewett, J., in which the majority of the court mus"'. have agreed, since they were forced to hold that there was in fact but on*, cause of action stated in the petition, and that was a cause of action founded on principles of equity. This case, therefore, seems to settle what is good sense, that a petition drafted right in the teeth of the code should be held bad on demurrer. The other cases on this question will be found under the head of demurrer. The old rules of pleading as to duplicity are just as important, then, as ever. The separate statement of a cause of action, says Jewett, J., and the separate counts of a declaration, are equivalent expressions. We must go, then, to the works on pleading in common law actions, and to similar works on pleadings in chancery, to ascertain what is or what is not du- plicity. Duplicity at law is dififerent from what it is in chancery. At law there may be two causes of action growing out of the same facts, yet each must be separately stated; while in equity the whole case maybe stated, and each of the grounds of recovery, and if either or all are found to be proved, the plaintiff is entitled to recover. This is not duplicity or multifarious- ness in equity pleading. There is here but one case, though a recovery may be predicated on various grounds. As where a deed is sought to be set aside, the plaintiff may allege that he was an infant at the time, that it was obtained by misrepresentation, was without consideration, though one was supposed to have been received. In other words the deed is the thing in question, and he may state all the grounds, however numerous, on which lie rests his claim to relief. At law he would have to state each of these grounds in a separate count, as each of them would constitute a separate cause of action; and unless cases depending upon equitable principles are to be governed as heretofore in courts of equity, each of these grounds must be separately stat«d, since, abstractly and strictly considered, each one 56 DEMUEEEE. [(3HAP: Duplicity. Actions in General. of them constitutes a cause of action. But it is supposed that cases depend- ing on principles of equity are to be tested by Midford, Cooper, and Story, and not by Chitty, and Gould, and Stevens. Unless this is the case it will be impossible to administer the law as recognized in courts of equity under the code. Fully aware of this difficulty, from a two years' experi- ence under the code, as well as from the evidence of its workings in the de- cisions of New York, we have all through claimed that this distinction must be kept up; facts in each class of cases must be stated according to the law formerly governing the jurisdiction to which they respectively appertained. Such, too, we believe, is the general opinion with the intelli- gent portion of the profession. CHAPTER XI. DEMUEREK. Sec. 87. The defendant may demur to the petition only when it appears on its face, either: 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action. 2. That the plaintiff has not legal capacity to sue. 3. That there is another action pending between the same parties for the same cause. 4. That there is a defect of parties, plaintiff or defendant. 6. That several causes of action are improperly joined. 6. That the petition does not state facts sufficient to constitute a cause of action. Sec. 88. The demurrer shall specify distinctly the grounds of objection to the petition. Unless it do so, it shall be regarded as objecting only, that the petition does not state facts sufficient to constitute a cause of action. Sec. 89. When any of the defects enumerated in section eighty-seven do not appear upon the face of the petition, the objection may be taken by XI.] DEM0BEEK. 57 Actions in General, answer; and if no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objec- tion to the jurisdiction of the court, and that the petition does not state facts suflSeient to constitute a cause of action. Sko. 90. When a demurrer is sustained on the ground of misjoinder of several causes of action, the court, on motion of the plaintiff, shall allow him, with or without costs, in its discretion, to file several petitions, each including such of said causes of action as might have been joined; and an action shall be docketed for each of said petitions, and the same shall be proceeded in without further service. Sec. 91. The defendant may demur to one or more of the several causes of action stated in the petition, and answer as to residue. 2 S. & C. St, 973; 6 0. St. Rep. 473, 607, 611 ; 7 do. 239. The above are the provisions of the code in regard to demurrers to the petition. The grounds of demurrer are pointed out in the various subdi- visions of section 87. But it is first to be remarked, that all the defects here enumerated must appear on the face of the petition, in order that the objection can be made by demurrer; as is manifest by the oflSce of a de- murrer, and also . from tlje language of section 89. Burrows v. Miller, 6 Pr. R. 51. If the objection does not appear on the face of the petition, the fact necessary to raise the question may be set up in the answer. Hornfager v. Homfager, 1 Code Rep. N. S. 412. The next observation of a general character is, that every demurrer must be special, and set out some one of the causes enumerated in the said section 87. Every objection, save that of jurisdiction, is waived unless specifically stated in the demurrer. Such is the purport of section 88; for it provides that all general demurrers shall be considered as demurrers only for the cause stated in subdivision 6, that the petition does not state facts sufficient to constitute a cause of action. Hind v. Tweddle et al. 7 Pr. R. 278. The specification is. definite enough, if it states one of the causes enu- merated in the section and in the language of the subdivisipji. On this point, there has been some conflict of opinion in New York, though the weight of authority is in favor of this view of the code. Swift v. De Witt 3 Pr. R. 280-284; Durkee v. Saratoga & Wash. R. R. Co., 4 Pr. Rep. 226; Hyde v. Conrad, 5 Pr. R. 112; Noxon v. Bentley, 7 Pr. R. 316. Hand, J., says: "I know it has been doubted whether a general demurrer is now available; but where no valid cause of action is alleged, I have no doubt it is fatal in every stage of thd proceeding in which the question can properly arise." Our code, in section 88, provides, in fact, for a general demurrer. 58 DEMDBEEE. [OHAP Actions in General. on the ground stated in subdivision 6. In this respect it differs from the New York Code. A demurrer may be to the whole petition, or to any one of the causes of action stated in it. Sec. 91. And if the demurrer be to the whole of a petition, containing several causes of action, it must be overruled, if either one of the causes of action is sufficient. Cooper v. Clason, 1 Code Kep. N. S. 347; 1 Denio, 414. The demurrer must state to what part of the petition it is intended to object, where the petition contains more than one count; so it may be filed to a part of the causes of action stated, while an answer may be put in as to the other; but both a demurrer and an answer can not be put in to the same matter. The answer would be held to overrule the demurrer.. Subdivisions 1 and 2. — The grounds here stated need no illustration as a question of pleading or practice. In New York it has been decided that where one sues as administrator he need not make proferts of his letters of administration; it is enough that his representative character is stated in his petition. Willis Ex. v. Webster, 9 Pr. R. 261. Stcbdivision 3. — The pendency of one action in one State has been held to be no bar to a subsequent action for the same cause in another State. Burrows v. Miller, 6 Pr. R. 61; Brown v. Joy, 9 J. R. 221; Walch v. Dur- kin, 12 J. R. 99. The pendency of an attachment in one State, whereby a lien on property is acquired, has. been held a bar to a second suit in another State, on the ground of a satisfaction created by the lien acquired. A levy on goods, while undisposed of, has been held satisfaction of a judg- ment. Embree v. Hanna, 5 J. R. 101; Wheeler v. Raymond, 8 Cowen R. 311. This is, however, an. objection which can very seldom appear on the face of the petition. • Subdivision 4. — The defect of parties must be settled by the code reg- ulating parties. A demurrer for non-joinder of parties is well taken, where it appears that the court can not determine the controversy before it with- out prejudice to the rights of others, nor by saving those rights. Wallace V. Eaton, 5 Pr. R. 99. If persons are made plaintiffs who ought not to have been, this is good grovmd for demurrer; as where husband was joined with his wife, in a case where she ought to have sued without her husband, and by her next friend. Brownson and wife v. Gifford et al.; 8 Pr. R. 389. The joinder of unnecessary parties as defendants is no ground of demurrer on the part of any one but the party himself. ♦ The other defendants are not injured by his presence. Ibid; Story's Eq. PL, Sees. 609 and 544. xl] demukrek. 69 Actions in General. The failure to make a person a defeadant, who is a necessary party to the suit, is, however, a ground of demurrer. Ibid. The defendant can not be called upon to answer until all persons necessary to a complete and final determination of the case are before the court. ■ Subdivision, 5. — The improper joinder of causes of action is also a ground of demurrer. The misjoinder of causes of action in the same peti- iion, which can be reached on demurrer, is the union of causes of action, which by section 80 can not be joined in the same complaint; but it is no ground of demurrer that separate causes of action, which may be united in the same petition, are all stated in one count, and not separately as required by the code. In Gooding v. McAlister, 9 Pr. R. 123, Welles, J., says: "Several causes of action may be united in one complaint, and although not separately stated, still they are properly ^united in the com- plaint; that is_to say, it is no objection that they are united in-the same complaint, but the objection is that they are not separately stated. They may be properly united but improperly stated. What I mean by a mis- joinder, is the union in one complaint of causes of action not allowed by section 167, (sec. 80, Ohio Code.) As for example, a cause of action upon a contract with one for an injury to the person." The same view is taken of the code by Marvin, J., in Eobinson v. Judd, 9 Pr. Rep. 378, and by- Selden, J., in Benedict v. Seymour, 6 Pr. R. 298; while Willard, J., in Durkee v. S. & W. R. R. Co., 4 Pr. R. 226; S. P. Pike v. Van Wormer, 5 Pr. R. 171, and Harris, J., in Getty v. Hudson Eiver R. R. Co., 8 Pr. R. 179, held that mere duplicity is a good ground of demurrer. The former would appear to be the better opinion; misjoinder and duplicity are cer- tainly very diflFerent. Duplicity, which is the union of two or more causes of action in one count properly joined, so far as the several- causes of action are concerned, can be reached on a motion to strike out all but one as redundant, under section 118 of the code. Such is held to, be the true practice in New York, as will be seen by the cases above cited. And this is the view of the law as heretefore expounded. It is thus stated in Gould's PI., chap, iv, sees. 98 and 99. In connection with this last rule it is proper to remark that misjoinder of causes of action, or counts, which is a radical fault, is essentially different from duplicity which is but matter of form. Misjoinder of causes of action, or counts, consists in joining in different counts in one declaration several different demands which the law does not ji^irmit to be joined; to enforce geveral distinct, substantive rights of recov- ery; as where a declaration joins a count' in trespass with another in case for distinct wrongs — or one count in tort with another in contract. 60 DEMDEEEE, [CHAP. XT. Actions in General. Seo. 99. Duplicity in a declaration consists in joining, in one and the same count, different grounds of action, of different natures, or of the same nature, to enforce only a single right of recovery. The code speaks of causes of action improperly united; now this neces- sarily implies causes of action improperly united in the language of the code; and by section 80 of the code, we learn what causes of action may be joined, and hence what causes can be improperltf joined. The defend- ant may demur to the petition when several causes of action are improperly joined; but several causes of action, which may be joined in the same petition, are not improperly joined, because they are all stated in one count; they are improperly stated, not improperly Joined. The opinion of Jewett, J., in Gaboon v. Bank of Utica, 3 Selden's Bep. 486, is to the contrary, holding that duplicity is also good ground for a demurrer. Subdivision 6. — This clause is equivalent to what was called a general demurrer at common law. Does the petition state facts which show a right of recovery against the party demurring? This question must be answered either affirmatively or negatively on the decision of every demurrer under this subdivision of the code; and it must be answered by applying the law to the facts stated, and in that way testing their sufficiency. . It is suffi- cient, as we have seen, to state the objection in the words of this subdi- vision, that the petition does not state facts sufficient to constitute a cause of action. Where there are more than one cause of action set forth, the suffi- ciency of each count, or cause of action, must be tested by the facts con- tained in the count; one bad count can not be helped out by facts contained in another, unless there is such a reference in the one to the other as makes the facts referred to in the other count, a part of the count containing the reference. This may be done in the petition, as it formerly could in a declaration, and to the same extent. Such seem to be the only grounds on which a demurrer to the petition can be founded; every other objection must be taken by motion under the provisions of section 118 of the code. By that section redundant and irrelevant matter may be stricken out on motion; while pleadings, which are too indefinite and uncertain to indicate the precise nature of the charge, may be required to be made specific, precise, definite, and certain. This motion, however, implies that facts enough are stated to show a liability; but that they are loosely and confusedly stated. If they are so uncertain that the court can give no meaning to them, then the petition is substantially defective and open to a demurrer. CHAPTER XII. ANSWER. The following are the provisions of the code on this subject: Sec. 92. The answer shall contain: 1. A general or specific denial of each material allegation of the petition controverted by the defendant. 2. A statement of any new matter constituting a defense, counter- claim, or set-off, in ordinary and concise language, and without repetition. Sec. 93. The defendant may set forth, in his answer, as many grounds of defense, counterclaim, and set-off, as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. Each must be separately stated and numbered, as they must refer in an intelligible manner to the causes of action which they are intended to answer. Sec. 94. The counterclaim, mentioned in the last section, must he one existing in favor of a defendant, and against a plaintiff, between whom a severa. judgment might be had in the , action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim or connected with the subject of- the action. Sec. 95. If the defendant omit to set up the counterclaim or set-off, he can not recover costs against the plaintiff in any subsequent action thereon; but this section shall not apply to causes of action which are stricken out of or withdrawn from the answer, as provided in sections ninety-six and one hundred and nineteen. Sec. 96. When it appears that a new party is necessary to a final de- cision upon the counterclaim, the court may either permit the. new party, to be made by a summons, to reply to the counterclaim, or may direct the counterclaim to be stricken out of the answer, and made the subject of a separate action. Sec. 97. A set-off can only he pleaded in actions founded on contract; and must be a cause of action arising upon contract or ascertained by the decision of the court. Sec. 98. When it appears that a new party is necessary to a final de- cision upon the set-off, the court shall permit the new party to be made, if it also appear that, owing to the insolvency or non-residence of the plaintiff, or other cause, the defendant will be in danger of losing his claim, unless permitted to use it as a set-off. (61) 62 ANSWER. [chap. Actions in Oeneral. Denial. Sec. 99. When cross demands have existed between persons under such circumstances, that if one had brought an action against the other, a coun- terclaim or set-off could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other, but the two demands must be deemed compensated, so far as they equal each other. Sec. 100. The guardian of an infant or person of an unsound mind, or attorney for a person in prison, shall deny, in the answer, all the mate- rial allegations of the petition prejudicial to such defendant. The subject of answers divides itself naturally into two great classes: 1 . A denial of what is contained in the petition. 2. ■ The sfatemerii of new matter constituting a defense, etc. This is the old distinction at common law, and it is one founded in the very nature of a legal proceeding by action whether at law or in chancery. THE DENIAL. A denial may be either general or special; a general or specific denial ' each material allegation of the petition, controverted by the defendant. Jhe answer is to be a denied, not an admission, of the facts set up in the petition. It would seem, therefore, that an answer admitting the facts of the petition ought to be stricken out as frivolous because it is unnecessary. Every allegation not denied, is admitted; it is, therefore, only encumbering the record, to put on file an answer admitting just what the law would have taken for granted and as true for the purposes of the trial. Where, therefore, a party can not deny he must remain silent and let judgment go by default. In actions -pending on damages that are uncertain, the de- fendant contests the amount on an inquiry of damages. Thus, in an ac- tion of slander, if he can not deny the speaking of the words he can put in no answer; he must go to a jury on an inquiry of damages, and in that way contest the amount of the recovery. The same is true of every action where the amount to be recovered is uncertain, to be estimated by a jury, or a court upon evidence. Van Santvoord's PI. 249 ; Lewis v. Coulter, 10 0. St. Eep. 451 ; 18 N. Y. 121. I. Of a General Denial. A general denial is one which meets all the material allegations of the petition with a negative and compels the plaintiff to prove them in order to recover. It is equivalent to the general issue of nil debit, in debt; non assumpsit, in that action, and not guilty, in an action of trespass, as these issues have been limited by the new rules in England. They deny all the material allegations of the petition, put them in issue, and nothing more. Xn.J ANSWEE. 63. General; Denial. The. simple inquiry is, has the plaintiff proved what he has alleged in his petition? Under such an issue nothing can be given in evidence which does not t«nd to prove or disprove the facts stated in the petition; every othei defense must be specially pleaded as new matter. Under the issue of not indebted nothing is in issue but the truth of the plaintiflf 's claim; pay- ment, set-off, and every other new matter must be specially set up under the second division of the subjects of answer. The old general issues are as well calculated as any that can be substi- tuted to meet the wants or demands of a general denial. In actions founded on torts no good reason can be seen why the plea of general de- nial should not be substantially a plea of not guilty. That plea puts in issue all the material facts in the declaration. Although in its terms it is said, "the defendant is not guilty of the said supposed grievances above laid to his charge, or any or either of them, or any part thereof, in manner and form as the plaintiff hath above thereof complained against him," it was construed not merely to deny the actual form and. manner of the charge, but to controvert the subiftance of every cause of action contained in the declaration. Per Barciilo, J., Saliilger v. Lusk, 7 Pr. Rep. 430. " The wit of man," says the same judge in that case, " has never yet devised, and it may well be doubted whether the present generation, with all its labors, will ever bring forth any formula equal to the old general issue for the purposes of a general denial. It united the great elements of all good pleading — ^brevity, simplicity, and comprehensiveness. And if the principle of a general denial is to be reinstated, of which we have all the encouragement derivable from the fact that it has stood firmly as the law of the land sinc'e the sixth day of May last, notwithstanding its previous unsteadiness, I see no reason why the courts should not sanction the old form of pleading — the general issue — and thus put an end to this vexatious and useless course of litigation." Nor can we see any reason why this general denial should not assume some fixed form; and what form better than the old? It is all important to have some common form; otherwise the court must settle the meaning and extent of the denial in each case; whereas an agreed_/orm becomes settled, its meaning vs, fixed; so that in making use of it one knows exactly what is in issue, and what is to be proved on the one side and to be disproved on the other. The parties know what evidence such an issue calls fqr and vrhat evidence is admissible under it. Nor will parties be taken by sur- prise by the court's taking a different view of the issue and of its extent from what counsel have. Where, therefore, the plaintiff claims that the defendant is indebted to him in a certain sum for goods sold, labor performed, money had and 64 ANSWEE. [chap. General Denial. received, money paid, or on an account stated, the defendant should be permitted to aver that he is not indebted to the said plaintiff in the said sum, nor any part thereof, as the said plaintiff hath in his said petition alleged. This covers the whole of the plaintiff 's claim, and puts in issue the truth of it and of every part thereof. If the defendant admits the cor- rectness of what the plaintiff claims, he must set up as new matter any facts which defeat this apparent right of recovery. So where the plaintiff declares on a promissory note, why should not the defendant be permitted to make his general denial, by. averring that he did not promise in manner and form as the said plaintiff hath thereof declared against him in his said petition? If the plaintiff complains of a tort in its various forms, whether with or without force, what better general denial than that of " not guilty?" Unless some such method is adopted for a general denial, infinite conflicts and difficulties must arise in endeavoring to ascertain whether a denial is general or special; and if general, does it deny what is immaterial as well as what is material? To an allegation that the defendant "assaulted the plaintiff, and seized him by the collar and shook him violently," the defendant "denied that he did assault the said plaintiff, and seize him by his collar and shake him violently." The court held the answer bad. " The defendant," said Bar- culo, J., "has grouped three of the charges, and denied them on oath in such a manner that, if he should be guilty of two, and not guilty of the other one, his answer would not be literally untrue." Hopkins v. Everett, 3 Code Rep. 160. In this case the assault was the gist of the dispute; the other facts were mere facts of aggravation. In Kellogg v. Church, 4 Pr. R. 339, it was held a sufficient general denial of an allegation of the taking of sundry articles of personal property, to say that the defendant " denies each and every allegation alleged in said complaint." (Cady, J.) "I think such an answer will do. It would be intolerable to require specific denials of an entire complaint in other terms. I will not aid in establishing the intricate and voluminous system of pleading under the code, which seems to be growing up in practice; I can not believe that it was the design of the code-makers; and until my position is overruled by the Supreme Court in bench, I shall hold such a denial as this good." So in Dennison v. Den- nison, 9 Pr. R. 246, an answer which denied each and every allegation of the complaint, seems to have been considered sufficient as a general denial. These cases show what is meant by the term general denial; it is a denial which meets all the averments of the petition, without going, over them in detail, and in that way making the answer but a copy of the peti- tion with a negation added to it. This serves only to increase the length of the record without advantage to any one. Xn.] ANSWER. 65 Specific Denial. II. Or A Specific Denial. A specific denial is where the defendant takes issue on some mate- rial averment of the petition. It may be illustrated in the pleadings in covenant under the former system. The defendant could deny the execu- tion of the covenant, or the breach of a condition, or any other material averment contained in the declaration. The effect of such a denial was to have every other matter admitted, and to confine the evidence to that par- ticular issue. So under the code, the defendant may confine his denial to a single fact; as in an action to recover specific personal property, the defendant may deny the property of the plaintiff in the article demanded, or he may deny that he did detain the possession of said property from the plaintiff. So in an action against indorsers, on a note or hill, the defendant may deny specifically the making of the note or bill, the indorsement of it, the demand and non-payment, or the notice thereof.' Either one of theiie facts is material to be proved, and a failure to prove either will defeat tlie right to recover. In an action to recover real estate, where the plaintiff claims title thereto, the defendant may specially deny this allegation, thereby admitting all other material averments, as his own. possession, or he may deny the withholding of the possess'ion from the plaintiff, thereby admit- ting his title. Corwin v. Corwin, 9 Barb. 8. C. E. 219; Van Sant- voord's PI. 249. The defense must be either general or special; it can not be both. The general denial puts in issue every allegation of the petition, as fully as the special denial could. The specific denials are, therefore, in such a case unnecessary and redundant. Dennison v. Dennison, 9 Pr. Kep. 246. So the denial must not be in alternative form; the denial must be general or specific. 8 Pr. Rep. 193. Where the denial is specific, and takes issue on an immaterial matter, the plaintiff may either ask for a judgment, notwithstanding the answer, or move to strike out the answer, as frivolous and redundant. Generally, where the answer is insufficient — that is, where, admitting it to be true, the plaintiff is still entitled to recover — he may apply for judgment on the ground of the insuflSciency of the answer; but the answer must, of course, be palpably so; otherwise, the objection should be made in some other form. G Pr. E. 355; Van Santvoord's PI. 251. It is a very important question to be settled, how far these^ general denials extend. By the old rules of pleading, defenses could not, in many cases, be set up unless specially pleaded;., such as coverture. But it would now seem that, under the code, the defendant has a right to deny every material allegation of the petition; and hence that he has a right to dis- prove the truth of that allegation. For instance: Where the suit is on a 5 66 AN»WEK. [otUT. Specific Denial. note, the defendant denies the making of the note, can not the defendant prove any fact wi&h goes to show that such note was a void note in its inception? Does not the issue raise that very question? If the note was void it never had any validity; and in legal contemplation the defend- ant never did promise to pay the amount thereof. So take the case of trespass to lands. The plaintiff avers that the defendant broke and entered his close; the defendant denies generally. This puts in issue the possession of the plaintiff, and the defendant may disprove that posses- sion; but if he wishes to show title out of the plaintiff, he must plead it specially. Within the principle laid down, that whatever goes directly to controvert or disprove a material allegation in the plaintiff's complaint, may be given in evidence under a general or specific denial of such allegation, it is pre- sumed that any fact, going to show the contract actually void, may be given in evidence under such denial. Thus, for example, a contract for the sale of lands, unless in writing, is void, by the statute of frauds. In an action on such a contract, the defendant may deny generally the plaintiff's case as made in the petition, or he may -specifically deny thait he entered into or made such a contract; and on this isstie the plaintiff must be held to prove a legal contract, a binding contract, and hence a contract in writing. So if a contract is obtained by duress, can not this fact be investigated under a general or special denial of the making of such a cortract? This ev'- dence shows that in law there never was such a contract; a contract which in law bound the defendant. But where the contract is only voidable, like those of in/ants, lunatics, etc., the objection must be made by the answer, or it will not be open to evidence on the trial. Fraud in the execution of an agreement, whether by parol, or under seal, renders it void; as where one agreement is fraudulently substituted for another, or fraudulently mis-read. So, also, are all contracts made to com- pound a criminal prosecution, or where the consideration is illegal; the facts constituting the fraud, or the illegality of the consideration, or other matters going to show the contract or cause of action void in its incep- tion, may, in all cases, be properly alleged in the answer; but it is sub- mitted that it is also competent for the defendant to show the facts, on a general or specific denial, that such a contract was ever made. This, of course, would not apply in cases of negotiable paper, when indorsed; because the indorsee has prima fade a right to recover against the maker, unless he can prove notice to the indorsee of the facts rendering the instru- ment void. Hence notice is an additional element not involved in the issue on the execution of the contract. xn.] AuswEK. 67 , statement of TSew Matter. Such, too, is the view of the law taken by Mr. Van Santvoord in his work on pleading. Van Santvoord' s PI. 262, et seq. Vide also MoMurry V. GiflFord, 5 Pr. Rep. 14. The true rule, then, would seem to be that under the general or special denial any matter may be given in evidence, which shows that the plaintiff never had any right to recover or maintain an action against the defendant. This rule, of course, applies to those special denials which deny the very gravamen of the plaintiff's cause of action; a general denial, of course, does this. THE STATEMENT OK NEW MATTER. The statement of new matter must be predicated upon the existence, at some time, of a valid cause of action. In actions on contracts, it mus# admit its ex«cution and its original validity, or to speak more accurately, that it was not, in its inception, void; because a voidable contract is valid until avoided. So in actions for torts, it must admit the trespass, the conver- sion, the libel, the slander, or other wrong set up. Having admitted the once legal existence of the plaintiff's cause of action, the answer proceeds to state such new matter as shows that, at the commencement of the suit, the plaintiff had no right to recover against the defendant on this once existing cause of action. The code in this respect requires special plead- ing beyond what the old practice did. Many defenses, which formerly could be proved under the general issues of non assumpsit, nil debet, and not guilty, must now be set up specially in the answer. All matters which assume the existence of a legal cause of action at some prior time, but insist upon facts which show no present right to recover, must be set up in the answer. Thus, in an action arising on contract, all matters which admit that a sufficient contract was made, or that there was once a cause of action, but avoided by subsequent matter — as release, parol discharge, alteration in the terms of the contract without consent, non-performance by the plain- tiff of a condition subsequent, contract become illegal or impossible to perform, insolvent discharge of defendant, accord and satisfaction, tender, arbitrament, former recovery, higher security given, statute of limitations, set-off, payment, performance, infancy, must be set up in the answer; also, in an action for a wrong or injury, all matters which admit the com- mission, but justify or excifse the act, as in trespass, distress for doing damage, license, right of way, inevitable necessity, title in a third person, and all matters showing a discharge, must be so set up. So also must the facts which show that plaintiff has no legal capacity to sue, that the court has no jurisdiction of the action, that another action is pending, where these facts do not appear on the face of the plaintiff's petition. Or to state the rule in brief terms, whenever the defendant can not deny the facts, or some §S ANSWER. [OHAP. Statement of New Matter. material one of them, which the plaintiff alleges in his petition, he can defend only by new facts to be by him set tip in his answer. What, then, must be the legal effect of these new facts, of this new matter, which the defendant can set up in his answer? We at present lay out of consideration the subjects of set-off and counterclaim, as they are not legitimately defenses, in the strict technical meaning of that term as used in the code. They are strictly cross actions, and justify a finding for both parties, and a judgment in favor of the one to whom an excess is found due. They do not defeat the plaintiff's cause of action; they meet the plaintiff's claim by one in favor of the defendant against the plaintiff, and ask that both causes may be tried at the same time, and judgment be •given only for the party to whom any balance may be found coming. But the new matter we now are to treat of is such matter as shows that the plaintiff has no right to recover on the cause of action stated in his own petition. " It contains no new cause of action in favor of the defendant agftinst the plaintiff; it goes directly to defeat the" case made by the plain* tiff. M. Kyring v. Bull, 16 N. Y. 297. The code divides the new matter into three classes: 1. Svxh as constitutes a defense. 2. Slick as constitutes a counterclaim. 3. Such as constitutes a set-off. And we will consider these in their order. 1 . Under this head it is not every matter that can be set up in an answer; the matter set up must constitute a defense to the plaintiff's cause of action. Admitting it to be true, it must show that the plaintiff has no right to recover in this action against the defendant. In the language of the books, it must be such matter as will bar the right of the plaintiff to recover for so much as the answar covers. Marvin, P. J., in Houghton v. Townsend, 8 Pr. Rep. 441, says: "It is quite clear that the word defense in the code is not used in its legal, technical sense, (he had shown this to be denial.') It has no application to that part of the answer which contains denial only of the facts stated in the complaint; but it is used in reference to the state- ment of new, matter; and it must be such new matter as constitutes a de- fense; and the question is, must it be matter which constitutes a complete bar to the action? In common parlance the word defense is used as appli- cable to any facts which defeat the action wholly or in part. These new facts, then, can not be set up unless in law they are an answer to the plain- tiff's cause of action, and a bar to it." Graham v. Stone, 6 Pr. R. 15; Smith V. Wait, 7 Pr. R. 227. Must the facts cover the whole cause of action? or can they be set up if they show only a partial bar to the same? We suppose that the answer Xn.J ANSWER. C.7 Statement of New Matter constituting a Defense. must cover the whole cause of action; but it may do it by one set of facts as to a part, and by another as to the residue. For instance: The plaintiff de- clares for a sum of money; the defendant can plead payment as to a part, and tender as to the residue; or a payment of part and a release of. the balance. So he may plead payment as to a part, tender as to another part, and not indebted beyond the sums so paid and tendered. ' In such cases the answer covers the whole cause of action, and shows that the plaintiff has no right of recovery. The answer, however, must be special, averring that, as to such a portion of the sum demanded, he has paid it; that as to such a part of it, he has tendered it before suit brought; and that as to the residue thereof,-, he does not owe the same to the said plaintiff. This view of the code is taken in the case of Houghton v. Townsend, 8 Pr. E. 441. "I do not understand," says Marvin, P. J., in that case, "that pay- ment or set-off can now be shown, when the answer is simply a denial of the complaint. A partial payment or set-off is, in common parlance) a defense yro tanto; and how is the defendant, by his pleading, to avail himself of s)i.ch defense? In the present case the plaintiff argues that the defendant sliould have pleaded payment as formerly, that is full payment, thus stating facts which would bar the action; and he refers to authorities to show that UJider such pleadings, if the defendant, on the trial, proved the payment of any sum, he would succeed upon the issue, unless the plaintiff proved a larger sum due, and that he would then only recover the balance. (See ■ S Hill, 290; Ibid 393. ) But is this the system of the code? Was this the design? The commissioners say: 'We propose that the plaintiff shall state his case according to the facts, etc.; that the defendant shall by his answer point out his defense distinctly.' It was also an important part of the sys- tian. of the commissioners, that pleadings should be verified. Could it have been intended, in a case where, the defendant owed the plaintiff a thousand dollars, and had only paid him on account of such debt one hundred dollars, that he should when sued (the whole $1000 being claimed) be compelled to answer and state generally, as new matter, that he had paid the debt or demand, and then swear to the truth of his answer, when he knew that he still owed the plaintiff $900 of the original de- mand? I do not think such was the intention." It would seem that there could be no doubt as to the absolute necessity of such a mode of defense uTffter a code which requires all pleadings to be under oath. So a party may plead payment as to part, and offer judgment as to the residue. Where the petition contains more than one count or cause of .action, the defendant may plead to the whole action, or he can plead to each count separately. In so doing his pleas must be an answer to all he undertakes to answer. If they are an answer -to one count, and not to another, they 70 ANSWER. [chap. y New Matter constituting a Defense. will be bad if the answer assumes to answer the whole action. Where the same defense lies to all the causes of action, the answer may cover the , whole action by a single plea, or statement of facts constituting a defense; but vhere separate and distinct defenses lie against the several causes of action, there the answer must limit and confine each plea or statement to the particular count to which it applies. • What is tike New Matter? We do not propose to go into the various defenses which may be set up. Where tihe action is founded on a common law right, all defenses which could have been specialty pleaded at common law, can and must be so pleaded undfer the code. Hence so far as such causes of action are con- cerned, a reference to Chitty's Pleading will give all the information required. It would extend the plan of this work too far, to undertake to write a treatise on the legal rights of parties, and to point out what does or does not amount to a bar to a cause of action once existing. But the code introduces a new feature into the defense of a legal action; the defendant may set up an equitable defense to a legal claim. Where the plaintiff's claim is one of an equitable character, there such a defense was always admissible, as well as any legal defense which might exist. It is only where the claim of the plaintiff is a legal one, that any mistake can be made as to the purport of this new species of defense. Let us then con- sider the subject in this single aspect at present. The equitable matters to be set up must constitute grounds of defense. They must go to defeat the plaintiff's right to recover on that cause of action. It is not, therefore, every equitable claim which the defendant has against the plaintiff that can be set up; it is only such an equitable claim as will defeat the plaintiff's recovery. It may be illustrated by reference to the old practice. A brought a suit on a note against B and C, on which C was surety. C was compelled to go into equity to obtain an injunction against the plaintiff, if he wished to obtain the benefit of acts which in equity released him. Now he can plead these facts directly to the action, and if found true they will prevent a recovery. The rule may be thus stated : Central Ins. Co. v. Nat. Prot. Ins. Co., 14 N. Y. 85, 90. In all cases where, upon the facts to be stated, a court of equity would have granted a perpetual injunction against the collection of the plaintiff's claim, the defendant may set up such facts as a defense to the action itself. But unless the new equitable matter goes to defeat the plaintiff's right to recover, in part or in whole, il can not be set up as an equitable matter in defense; because it is no bar to any part of the plaintiff's claim. It must be some matter which shows that in equity the plaintiff had no right to nr.] AN8WEE. 71 ISew Matter constituting a Defense. bring his action. If the matter sought to be set up presupposes an exist- ing right of action inthe plaintiff, and seeks to get rid of it by some equit- able clatm which the defendant has against the plaintiff, it can not be set up as a matter of defense; whether it can as matter of counterclaim, or not, is a question hereafter to be examined and need not be discussed here. If the new matter set up requires the action of the cpurt affirmatively, in behalf of the defendant, to render it available in the action, then it can not be matter of defense, as that term has already been expounded and defined. It may be a counterclaim; but it is no matter of defense. As where an action is brought to recover real estate which the defendant has made a contract to purchase. Here, if he has not the title, he can not defend the ■ action; though he may have a cause of action against the plaintiff to com- pel him specifically to execute the agreement. In such a case the defend- ant must become an actor, he must obtain a judgment against the plaintiff on his equitable demand, before it will avail him as any defense to the plaintiff's action. This may be a counterclaim; it is no new matter consti- tuting an equitable defense. To this extent an equitable defense may be made available to defeat an action founded on a legal right and no further. This distinction between equitable matter which constitutes a deferise, and that which constitutes a claim for relief, which relief, when obtained, may involve as a part of it a perpetual injunction against an action, is very important; as upon this distinction rests all clearness in expounding the code, and in administering the law under it. Unless this distinction is observed, and that rigidly, nothing but confusion can follow, as we know from experience. Where the new equitable matter is a defense, as that term 'has been defined, it is to be tried as the main case is by a jury; but where the equitable matter is such as constitutes grounds for a relief, which may involve a prohibition against the plaintiff's proceeding in his action, the answer, if it can be raised in that shape, becomes a new petition for relief, which admits the plaintiff's cause of action, and hence puts an end to that; and a new case grows up out of the first, which is a case for equi- table relief, not a defense to the plaintiff's action. And how is this new case to be tried? By a jury, because it is attached to or rather issues out of an action founded upon principles of strict law, or by the court, because the whole case in dispute is one entirely of equi- table jurisdiction? This is a contingency the code has made no provision for, and hence would seem to be a contingency never contemplated by its authors. The truth is, the code only looks to equitable matters which con-, stitute.a defense; it no where contemplates or provides for the case of set- ting up in an answer grounds for affirmative relief; though that relief when obtained, may as a result put an end to the plaintiff 's further prosecution » See note F, p. 799 7'^ AN6WEE. [OHAF Xew Matter constituting a Defense — Counterclaim- of his action. How would stand such a mongrel case? Here would be the plaintiff with his legal claim, entitled to a trial by jury; on the other hand would be the defendant with his case in. equity, with which, a jury had nothing to do. All issues of facts arising in actions for the recovery of money, or specific, real, or personal property, must be tried by a jury. Any issue of fact, tjierefore, arising in such a case, would have to be tried by a jury; because the action is for the recovery of money, or specific, real, or personal property. And then this absurdity follows — that the case would be tried by the court or a jury, just as the one or the other party first com- menced his action. For example: A sells real estate to B, retaining the legal title; a dispute arises as to its execution; if A brings an action to recover the possession of the land on his legal title, and B sets up his con- tract, the case must be tried by a jury, as the issues arise in an action to recover specific, real property; but if B commences an action for the execu- tion of the contract, then it will be tried by the court; as the issues of fact will not arise in an action for the recovery of money, or specific, real, or personal property. Is it possible that the learned codifiers designed or contemplated any such absurdity? This aspect of the case shows pi«tty clearly, that all that was meant by this equitable matter, whether as a defense or counterclaim, was such matter as defeated the plaintiff's action, and appertained for trial to the same forum as the action itself. If such is not the constmction to be given to the code, then we would like those learned improvers to tell us what they did mean. Our own impression is, that copying as they did from others, they .would be as much in the fog,. as U.I the real import and meaning of this provision of the code, as those of us who are honestly laboring to work out something practicable from it. Were it not that the code implies more than it enacts, it would be impossible to gBt along a step with it; it implies that a law of pleading already exists, to •which reference can be had, and by. which language is to be interpreted. The code only abolishes the forms of pleading,. not principles. Kneedler V. Sternbergh, 10 Pr. R. 67. And it is this system of truth, and logic, and common sense, which underlies the code that is our only safe-guide in expounding and construing it. The code is to be construed as a whole, supposed to be consistent in all its parts; and where no provision is made for the trial of an action in a particular form, it is to be presumed that an action in that form was never contemplated, and hence is not nermitted. 71. CotlNTEKCLAIM. This is a new term translated into our legal vocabulary by the codifiers; jrior to their existence it had scarcely any existence at all. The Ohio Xn.] ANSWER. 73 'Sew Matter constituting a Counterclaim. code is not quite as comprehensive as the New York code. The counter- claim must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action. This term counterclaim is defined, or an effort is made to define it, by Crippen, J., in Silliman v. Eddy, 8 Pr. E. 122: " It may be, and no doubt is, many times difficult to determine whether the matter set up in an answer is a counterclaim or not. "The word 'counter' is defined to be 'contrary to,' 'contrary way,' 'opposition to,' etc. The word 'claim' is defined to mean 'the demand oi any thing that is in the possession of another,' 'to demand,' 'to v< quire,' etc. " The compound ' counterclaim,' as used in the code, must be regarded, and in my judgment construed, to mean an opposition claim, or demand of something due; a demand of something whiph of right belongs to the de- fendant in opposition to the right of the plaintiff. It has been found diffi- cult to apply the term 'counterclaim' to the various actions which are diily arising in our courts; and I very much doubt whether a more per- plexing, undefinable, impracticable combination of words could have been joined together in the English language, than those selected in this particu- lar by the modem reformers, who claim to stand as sponsors to the present code. "It will be seen .that in this very section the Legislature are made to require of the lawyers, by a positive enactment, as a matter of law, ' that ordinary and concise language, without repetition,' shall be employed in a reply to an answer containing a counterclaim, when in the same section a compound is used so extraordinary and uncommon as not to be found in any dictionary extant. It has been said that 'consistency is a jewel.' It is not, however, to be found in the Code of Procedure." Barculo, J., in Eoscoe, Ex. v. Mason, 7 Pr. K. 121, says of this term: "It is unnecessary to attempt to define the precise meaning of this unfor- tunate compound, which has been pressed by our modern Solons into the service of the fourth, and it is to be hoped the last edition of the code. It requires, however, but little knowledge of the past to foresee that this superfluous interpolation, which is not found in our best dictionaries, and has been hitherto unknown to our statutes, will furnish a new source of litigation, and contribute its share toward unsettling what remains of good pleading." Such is the character of the word employed — a, word undefined either at law or in equity. Or in the English language — a term coined by some one. 74 ANSWEE. [CHAl New Matter constituting a Counterclaim — As to the Parties. for some purpose not yet known, and employed in a sense not yet ascer- tained. There are, however, two conditions attached to the introduction of this counterclaim, whatever it may mean — it must be matter in fanor of a defendant and against a plaintiff, between whom a several judgment might be had in the action. 1 . As to the parties. It must be between a plaintiff and a defendant. If there is but one plaintiff and one defendant there is no difficulty in ex- pounding the words. But it is a plaintiff and o defendant, seeming to single out one plaintiff or one defendant from others associated with him. Where the claim is in favor of all the defendants against all the plaintiffs, there is no difficulty in applying the law to it, and agbrding the appropriate remedy. But suppose one of several defendants has a claim against all or a part of the plaintiffs, can he set it up? We are inclined to think only to a very limited extent. The case on the part of the plaintiff must, however, be such that a several judgment could be rendered between the parties in the action. A defendant can not set up a counterclaim against a part of the plaintiffs, unless the claim declared on is such an one that that plaintiff can recover in his favor a separate judgment against that defendant; then that defendant may meet that several claim of that plaintiff against him by a claim which he (the defendant) has against that plaintiff. So where all the plaintiffs are entitled to a several judgment against any single defendant, that defendant may meet that claim by any counterclaim due from the plaintiffs to him alone. So if all the defendants have a joint claim against one of several plaintiffs, they can set it up only in case the action is such that a single plaintiff would be entitled to recover a judgment in his favor against all of said defendants. The claims, therefore, to be the sub- ject of a claim and counterclaim, must be mutual claims and between the same pai-ties. The claim of A and B against C can not be met by a coun- terclaim of C against B, because the action is not such that B can recover any several judgment against C. So where several sue on a joint claim, any claim which can be the subject of a counterclaim in behalf o£ a defend- ant, must be a joint claim against all. the plaintiffs. Unless such is the meaning of the code, then you must enable one defendant to compel all the plaintiffs to pay a debt due to him from one of them; or you must go fur- ther and adjust the rights between the plaintiffs, and ascertain if any thing is due to this particular plaintiff out of this money when recovered. This, in partnership cases, would involve the settling up of the partnership accounts, before it could be known whether the partner owing the defendant a several debt had any several property wherewith to pay his several debt to the defendant. If such be the meaning of the code, partners had best Xn.J ANSWEE. 75 New Matter constituting a Oottnterelaim — As to the Parties. consider well before bringing a suit, lest they find themselves stopped in their business, and broken up by some petty claim set up by a creditor of the firm against one of its members. Such, of course, can not be the meaning, of the code. The counterclaim must, in nearly all cases, therefore, exist mutually between the parties to the suit, unless there is some claim iu the action on ■which a several judg- ment can be rendered between the parties to the counterclaim. This provision was iutroduced as an uncertainty, to meet the uncertainty of who may be parties, and what may be the subject matters of an action. There may be such a case, but we veiy much doubt it. 2. The claim set up must have arisen out of the contract or transac- tion set forth in the petition, as the foundation of the plaintiff's claim, or be connected with the subject of the action. This is the same language as is used in pointing out what legal and equitable claims may be joined in the same action, and we would refer the reader to what is there said. It is clear that wherever, if the cause of action had existed in favor of the plaintiff, he could have joined it in his complaint, the defendant can set it up in his answer, if the right of action is in his favor. Without underta- king to define this language with more care, we may illustrate its meaning by examples coming clearly within its scope. And first: As to actions founded on legal rights. Where a party sues for work and labor, the defendant may show that the work is of an- inferior quality, when it was to have been of the best. So where a suit is brought to recover the value and price of a horse, the defendant may set up a war- ranty and a breach of it, or a fraudulent sale, and claim damages for that. So on a sale of a steamboat with warranty, there arises double rights be- tween the parties — to the vendor a right to the purchase money, and to the vendee for damages on a breach of the warranty; and if either party sues, the other can set up his claim by way of counterclaim. If a suit is brought on the warranty, the vendor may set up, by way of counterclaim, that the plaintiff is indebted to him for the purchase money; and in this way no judgment will be rendered, but in favor of him for whom a final balance is found due. So also to an action to recover the price and value of real estate sold, any facts, showing that, the defendant ought not to be required to pay the full price, may be interposed by way of a counterclaim or recoupment. There is another class of cases to which the same reasoning will ap£ly, and where the counterc/aim becomes a veritable suit of itself. It embraces all those cases where, heretofore, in chancery, the defendant, wanting some affirmative action in his favor, was compelled to file a cross-bill. Now be probably may set it up by way of counterclaim. Thus in an action founded 76 ANSWER. [chap. Kew Matter constituting a Counterclaim. on a legal title to recover the possession of land, the defendant may now set up an equitable right to a conveyance from the plaintiff; and if he prove himself equitably the owner with right of possession, and entitled to the conveyance from the plaintiff, he will not only, defeat the action, but may obtain his afilrmative relief. Van Santvoord's PI. 307. In such a case the answer is a veritable cross-bill, and must state all that would have been necessary to be stated in such a-bill, and must ask judgment for the relief the defendant insists he is entitled to, upon all the facts in issue be- tween the parties. Whatever facts which would have entitled a defendant to have resorted to chancery, to enjoin the collection of the whole or a por- tion of the claim at law, or would have justified a defendant in equity in filing a cross-bill, will probably now lay the ground for a counterclaim. The same object will be reached by a legal paper called an answer, instead of by another heretofore called a bill in chancery. Whatever, however, the thing may be called, the remedy and the relief must be substantially the same. The answer will become the bill, and the reply the answer, and on that answer and reply will just the same relief be granted as formerly would have been upon the bill and answer; so that the whole change results in little more than a change of names. These illustrations will serve to show what is probably meant by tlie strange word, "counterclaim," and what sorts of defenses may be made under it. The New York code gives a much wider latitude, where the counter- claim originates in a contract; but our code admits set-off by name, while under the parent code it comes in under this word counterclaim. Since the above views were written, we have obtained the tenth volume of the Pr. Eep. of New York, in which there are cases in which this ques- tion of counterclaim is more fully discussed than in any previous case; and as these views are somewhat different from those expressed above, we feel bound to refer to them. Before doing this, however, we may as well refer to one other matter, which presents a veritable difficulty in one class of cases; and it is this: What is to be done with a Qase where the action is one founded on legal principles, and in which the parties are entitled to a trial by jury, when the counterclaim set up is an equity, which, admitting the plaintiff's right to recover at law, seeks to prevent him from enforcing that right by a prayer for affirmative relief ? We may refer to what we have already said on this suWect. There is here such a difficulty as would seem to preclude such a matter from being set up as a counterclaim in an answer, unless the court can treat this answer as a new action, to be tried as though presented as original matter, and in a petition. Under the former practice in chancery, where such a case was raised by bill in that fomm, the complainant was Xn.] ANSWER. 77 New Matter constituting a Counterclaim. compelled to consent to a judgment in the action at law, because he admit- ted the right; and then the injunction restrained only the issue of the writ of possession. Upon the principles, then, as administered in a court of equity, a party in such a case had no defense to such an action; as a con- dition to relief he had to consent that that action should be decided against him. Can he have any more or other right under the code? It would seem not. In equity and by the law of equity he has no right to stop the plaintiff at law; his right to set up his equity depends upon his consenting to a judgment at law; if he refused to do this, then he could have no injunction in equity against the suit at law. Ham v. Schuyler, 2 John. Ch. Rep. 140.' If then the law of equitable relief is to be administered, this defense must now be sought as formerly, by an original petition; that petition may be treated as a cross-petition, so that no new service need be made — as a cross-bill was treated in equity; though in that case a subpoena and service was required in the cross-suit. This difficulty may be escaped from under the provisions of section 119. That section allows a counterclaim to be turned into a separate action; this, however, depends upon the voli- tion of the party pleading it. How this diflSculty is to be avoided we know not, except by holding that such matter can not be set up as a counter- claim, since the right to interfere with the action at law depends upon putting an end to it. The right is not a right to stay the action, but to prevent its execution by a writ of possession. But without dwelling longer on this matter, we will proceed to the cases referred to above. The first is the case of Kneedlert;. Sternbergh, 10 Pr. Kep. 67, decided by Hand, J., in June, 1854. "The meaning of the word -'counterclaim,' " says the Judge, "has already been a subject of some discussion, (Whitta- ker Pr. 506-7. ) Not being a technical word, nor found in our dictionaries, its definition, as usual in the code,' is not perfectly clear. It does not, however, owe its paternity to the code. Although seldom used, it has been, occasionally, by the profession. (Williams and Patterson, J. J., in Mee v. Tomlinson, 4 Ad. and El. 262; Wilde, C. J., in Collander v. Howard, 10 Com. B. 262; Sedg. on Dam. Ch. 17.) Like some other rather inelegant compounds — as 'counter-demand,' (6 Ves. 141,) 'counter-letter,' (11 Peters' Rep. 361,) 'counter-paper,' and 'counter-security,' (Chittyon Bills, 711,) 'counter-action,' (5 Exch. R. 356,) — it may sometimes be met with in our law books; but most generally, before the code, I believe it had reference to a set-off. The word 'claim' has been considered 'a word of art,' and long since was defined by C. J. Dyer to be 'a challenge by a man of the prop- erty or ownership of a thing which he has not in possession, but is wrong- fully detained from him.' (Plowden, 369.) And its popular signification and use would hardly include recoupment in every case. Recoupment is 78 ANSWEE. [cHAP, Wew Matter constituting a Counterclaim. not always a subsisting claim. Suppose a disseizor erects permanent im- provements; when called upon to respond in damages he may recoupe what he has so expended. (Coulter's case, 6 Coke 131; 8 Vin. 666; Sedg. on Dam. Ch. 17.) And yet he has no cause of action therefor. Its early use was in this sense; but I do riot understand this would be a counterclaim within the code. Indeed the examples of recoupment given in Viner are under the head of discount. A counterclaim must be a cause of action, a cross-demand, (Sec. 94 Ohio, and Sec. 160 New York code.) The defend- ant can have no claim, properly speaking, arising solely out of the plain- tiff's cause of action. Where the defense rests in the mere right of deduction, or diminution of the plaintiff's damages, the law, before the code, gave and enforced that right. The claim of the plaintiff may no"w be met by independent causes of action arising upon the same or other contract; but this is quite another thing. In this case, if the original con- tract of purchase had been between these parties, and the defendant had set up a warranty by the plaintiff, and damages claimed by breach thereof, should be allowed, that would have been a counterclaim. But when a vendee; who has paid nothing in an action for the purchase money, seeks merely to reduce the amount of the recovery by showing a partial failure of consideration, or even defeat a recovery by showing a total failure, it is not easy to see how such a defense can be deemed to be a cause of action on his part. Besides, as to a partial failure, with all respect for those who may think differently, I find no rule in the code, by which eithei' a partial defense or matter in mitigation can be pleaded alone any more than for- merly, especially where the action or defense does not belong to equitable jurisdiction. " But the same reason for requiring the defendant in his plea to meet the whole of the declaration or count, by*a denial or other matter in avoidance, or by opposing claims, or by confession, or by some or all of these defenses combined, still exists. The code only abolishes the forms of pleading, not principles. It seems to me that the old rule, that such matters may be given in evidence, still prevails." This is all very well where the defendant is not bound to make oath to his answer; but where he must swear to it, he must state the truth, and that truth must admit a part to be due, and a failure as to the balance. He can not deny under oath the whole debt; and hence, unless he can admit a part and set up the failure or want of consideration to the residue, he must pay the whole claim. What Judge Hand here says is probably true; but are men to be swindled by the absurdities of the code? It is better to en- large or- restrain its language as justice may require. Indeed, unless that is done, the sooner it is repealed the better. The code itself requires courts Xn,] ANSWER. 79 ^ew lllatter constituting a Counterclaim. thus to deal witli it, as may be seen by looking at section 2. It is to be liberally construed to assist parties in obtaining justice. The other case referred to is that of Drake v. Cookroft, 10 Pr. Rep. .'?77. The action was brought to recover rent due upon a lease. The de- fendant set up by way, of counterclaim that the landlord, or plaintiff, in the absence of the defendant, broke open the stable and willfully took and re- moved the personal property of the defendant therefrom, and that the same was injured, destroyed, or lost to the plaintiff. It is not claimed, says WoodruflF, J., in delivering the opinion of the court, that such a trespass could be set up, before the adoption of our code, as a defense to an action by the landlord for the rent. After reciting the provisions of the code, he proceeds: "A trespass upon real or personal property is not a cause of action arising on a contract. The second clause, then, (providing for cases arising on contract, ) clearly does not authorize such a defense in an action upon a contract, and the present is an action upon the contract of hiring. "Does the first definition or explanation of the term counterclaim em- brace the matter set up in this answer? "Obviously it does not, unless the cause of action set up in 'the answer arises out of the contract set forth in the plaintiff's complaint, or is con- nected with the subject of the plaintiff's action. "The answer sets up a trespass by the landlord upon the demised premises, and the destruction of the defendant's goods. It does not even claim damages for the entry, or for any injury to the possession, but only to the personal property destroyed. The contract set forth by the plaintiff is a letting and hiring, and an- agreement by the* defendant to pay rent. " The trespass averred does not arise out of any contract. The liability of the plaintiff for th.e trespass (k)es not result from that contract, nor is it affected by it. " As a cause of action it is wholly independent of that contract; and the liability therefore exists to the same extent, and is neither less nor greater than if the trespass had been committed upftn any other premises in the occupation of the defendant. The landlord is no more liable for tho trespass than for the like trespass committed' elsewhere. " Nor is the trespass connected with the subject of the action. ' The sub- ject of the action is rent, or money due upon the contract of hiring — the compensation for the use and occiiipation of the land. The use and occu- pation have not been interfered with. They have continued without inter- ruption. An interference wjth the possession, an eviction, total or partial, an unlawful injury to the premises, in violation of the agreement of letting, would have given the defendant a claim for damages which, upon a liberal 80 ANSWEK. [chap New Matter constituting a Counterclaim — Set-off. construction of the language of the code, might have been connected with the subject of the action so as to constitute a counterclaim. But a mere trespass is no more connected with the subject of an action brought for the rent, than an assault and battery of the tenant by the landlord would be. " I can find no more ground for saying that such a trespass can be set np as a defense to an action for rent now, than before the code was enacted. The provisions of the code above referred to were designed to affirm the right of a defendant to recover damages in those cases in which a recoup- ment was proper before the code was enacted. (See Keab v. McAllister, 8 Wend. 109; Batterman v. Pierce, 3 Hill 191.) If the code extends the right to any other cases not within the law of set-off, (which 1 doubt,) they are not such as are exhibited by the answer now in question." Here are two judges widely disagreeing as to the effect qf this provision of the code — Judge Hand thinking that certain cases of recoupment, as that word is rightly defined, do not come within this counterclaim; while Judjje Woodniff thinks it meets cases of recoupment and no other. So much for the perspicuity of the learned codifiers, who require every body else to use ordinary and concise language, without repetition! They have mani- festly failed in the end of all language — that of making themselves understood, Mr. Justice Woodruff seems to imply that' if the landlord had disturbed the tenant's possession, then he might have set it up as a counterclaim. This can not be correct. It could be done only on the ground of its being connected with the subject of the action. The subject of the action is the rent; and on that two questions arise — First, Is any rent due? Secondly, How much? Now no act of the landlord on the premises can be connected with the subject of this action — the rent — ^unless it is such as to defeat th'e right to recover the rent, in part or whole. But a trespass does not do that, nor is a trespass connected with the subject of rent. It is a wholly independent matter. They are no more connected than two separate assaults would be, siJhply because they happened on the same inclosure. The rent is due for the use of the land; the trespass is an injury to the right of the tenant in the land; but how the one can be said to be connected with the'subjeet of the other, is more than we can understand.* Blair v. Olaxton, 18 N. Y. 529 ; Edgerton v. Page, 20 N. Y. 281 ; 12 0. St. Rep. 34'4, 622 ; 3 do. 333 ; 4 do. 680 ; 5 do. 520 ; 6 do. 207 ; 7 do. 95 ; 10 do. 327. III. Set-off. Sec. 97. A set-off can only be pleaded in an action founded on a con- tract, and must be a cause of action arising upon a contract, or ascertained by the decision of the court. . Xn.J ANSWER. 81 Kew Matter constituting a Set-off. Tt will thus b'e seen that set-off remains as it always was, with the single exception of a claim or cause of action, ascertained by the decision of the court. Judgments under prior statutes were not the subject of a set-off. If the judgment was one of the same court, a set-off, after judgment, might be made by the order of the court, on motion, by applying the one judgment against the other. This section would seem to authorize a defendant to set-off a judgment which he may have in another court against the plain- tiff, and thus avoid the expense of the second suit. It is true the code says, " ascei-tained by the decision of the comW," which would seem to restrict it to judgments remaining in the court where the suit is pending. This is surely too narrow a construction to give to the section, since it would render it almost nugatory. If the language had been of a court, then there could have been no room for controversy; nor could there have been if the word judgmerd had been used. In the effort of the law-makers to ignore well settled legal terms, they have repeatedly left their meaning open to debate. If the judgment must be a judgment of the court where the suit is pending, then no really new remedy is afforded; substantially the same thing could have been done before; and it would be imputing abso- lute fatuity to the commissioners whose work this code is, to suppose that they designed to restrict it in any such manner. A judgment ought to be the subject of set-off as well as a promissory note, bond, bill, etc.; and if it ought to be allowed to be a set-off in one court, so equally ought it to be if it is remaining on record in any other court. A judgment is the highest evidence of iftdebtedness, and surely if a claim for goods sold ought to be applied to cancel a debt due from one to another, a judgment ought to be so applied. We hold, therefore, that the code allows judgments generally to be the subject of a set-off. A set-off not replied to is admitted; and if it shows a sum due the defendant, after satisfying the plaintiff's claim, he is entitled to a judgment for that sum. Potter v. Smith, 9 Pr. R. 262. So the defendant may include in a siTigle statement of set-off, as many different items of set-off as he may have. " This," says the judge, in the case of Ilanney w. Smith, 6 Pr. R. 420, "was admissible in a plea under the system superseded, although a declaration formed in the same way would have been bad for duplicity. The general rule was that, in point of form, the plea of set-off should contain all the requisites essential to the validity of other plea§ in law. (1 Chit. PI. 495; Barb, on Set-off, 79.) Duplicity, however, in a plea of set-off, was not a cause of demurrer; in other words, a defendant was permitted to include in the plea any and all debts or demands, which by law he was allowed set-off. (Barb, on Set-off, 83; 1 Chit. PI. 457; 1 East. R. 369.) It was not objectionable to state in the 6 82 ANSWER. [OHAP. New MatteFr-How to be Pleaded. same plea of set-off, any nuaiber of debts or demands which the law allowed to be set off. Nor is there now any objection to it under the code. Again: (Ibid, 422;) When two or more notes, . judgments or bonds, or other distinct demands are intended to be set-oflF, each of them should be sepa- rately and particularly described, with all the allegations or averments neces- sary to sh<5w the liability of the plaintiff, and so as to enable, him in his reply to take issue, by denying any of the material: allegations pertaining, to each note, judgment or bond, or other particular demand; or to .ayoid. the same by alleging; new matter. But all demands constituting the set-off may be contained in the same statement of new maiter in the answer; each demand, which, in a complaint^ should be stated separately, as constituting by itself a cause of action, being separately described or stated, with the necessary averments, and constituting the defense of set-off." There would seem to be no room to doubt that this is a correct view of the pleading in relation to a set-off. Stanbery v. Smyth, 13 0. St. Bepi495; 4 do. 586 ^ 5 do. 59, 66. How Rew Matter is to he Pleaded. Little is necessary to be added on this point to what was said under the head of petition. The character of the answer must, like the petition, depend upon the nature of the case — whether it is one founded on legal or equitable rights. There must, from the very nature of things, be a differ- ence between an answer to a case of equity and one to a case at law. We will first consider the question as it relates to a case at law. The object of the answer here is to bring the dispute between the parties to an issue — ^to an affirmation on the one side, and a denial on the other. This is necessary to enable the court to know clearly what is the issue to try, and the jury to respond understandingly and distinctly to this issue. A jury still being the tribunal to pass upon the facts, definiteness and clear- ness in the issues are just as important as ever. In cases, then, at law, all of wtich are to be tried by a jury, if either party requires it, the answer must be substantially what a plea was under the old system. The facts relied upon as a defense must be clearly, distinctly, and methodically stated, so as to present a siri^le point or issue, which if found for the defendant, will enable the court to render a judgment in his favor. Hence an answer which sets up a payment, Render, release, accord and satisfaction, statute of limitation, former recovery, etc., must be substantialLy what a plea setting up those defenses was. Of course, it need not have all the same formality, but it must contain the substance of a plea. Nothing less than that will contain all that is necessary to constitute a defense. Nor can anything be briefer than the form of these old pleas as they have been used in Ohio, stripped as they have been of all unnecessary verbiage. And experience Xn.] ANSWER. S3 New Matter — 'H.aw to be Pleaded. has demonstrated that, where they have not been substantially followed, pleadings have been doubled and trebled in length. If this course be fol- lowed the pleader may be sure he is right; if he undertakes in each case to improvise foivas, he can never be certain he is right until the court has passed upon it; and the court may construe his language very difiFerently from what he, did himself, and thus he may find himself out of court on a simple misunderstanding; whereas, if forms are used which have acquired a fixed legal meaning, there is no room for misunderstandings; the court and the bar know exactly what, that formula means. Who ever heard of any dis- pute as to the meaning of a plea of release,' payment, former recovery, statute of limitation, etc.? The language in which they are expressed has been defined so clearly, that no one can misunderstand or misconceive what they must mean. The same is true whenever an equitable defense is to be put in as an answer to a suit at law. The facts must be briefly and methodically stated, and nothing but the facts must be stated. This is a matter of some diffi- culty, unless the pleader distinctly comprehends the distinction between the facts which constitute the defense, and the evidence by which those facts are to be proved. Experience under the code shows that evidence is much oftener stated in the pleadings than the facts; and hence the pleadings are confused and of unnecessary length. The answer setting up an equitable defense, must not be like an answer or bill in chancery in a similar case; because in equity pleading both facts and evidence were generally stated, in order to obtain an admission from the adverse party of the truth of the evidence. Equity pleading also allowed the pleader to go into a detailed statement of the facts and evidence, which is inconsistent with pleadings at law, in cases to be tried by a jury. Let us take an instance: A defend- ant claims he is a surety, and has been released by the conduct of the plaintiff. What are the facts in such a case? That he is a surety — that the plaintiff knew it — ^and that he, for a valuable consideration, ag^reed with the principal, without the consent of the defendant, to extend the time of payment from such a time to such a time. Here are the facts, and all the facts; the evidence to prove them may be very various and voluminous. In cases depending upon principles of equity, the answer, like the peti- tion, must 'be varied somewhat from the naked forms of a legal plea. The code, however, has varied very' much the law regulating answers in equity cases. In chancery, the defendant had to answer the whole bill, as nothing was admitted by an omission to answer; now, every averment not denied is admitted, and need not therefore be answered to. Where, therefore, the answer looks simply to a denial, it need take no notice of any averments, save those which the defendant intends to deny. If the case stated in the 84 ANSWER. [CBAP. New Matter — How to be Pleaded. petition is incorrectly stated, the defendant may deny generally the allega- tions contained in the petition. If, when the case is heard, there is a rariance between the case made in the petition and the case proved, the petition must be dismissed or amended at the costs of the plaintiff. Under the practice in chancery, the defendant was bound to set up what were the facts or conti'act, as understood by him, and in that way notify the plaintiff if he claimed a different case from that stated in the bill. The plaintiff could then amend or not, as he claimed the facts to be. Under the code, it would seem, nothing of this kind is required of the defendant. AH discovery is discarded, and the answer is now a mere pleading; and, as such pleading, it must either deny the case made, or set up new matter constituting a defense. If the defendant has made- a con- tract, but one different from that stated in the petition, he meets the case made by a simple denial; an answer that he had made a different contract would be of no value or validity. Unless preceded by a denial of the one set out; and after that denial, the balance of the answer would be redun- dant and immaterial. The issue must be on the denial, and not on any case stated in the answer and not set up in the petition. If the code is to be construed literally, then the answer in an equity case is cramped'down to all the strictness of pleadings at law. The answer must either be a denial, or the statement of new matter constituting a de- fense, etc.; and each new mat.ter amounting to a defense must be stated separately. If then a party has several distinct grounds of defense to the same cause of action, he must state each one separately, and in such a form that each statement will constitute a perfect bar to the suit; and he can not, as heretofore, by giving in his answer a history of the case, propound to- gether all the defenses which the detailed facts of the case will justify. There were no objections to this kind of pleading in a case triable by the court; but there are insuperable ones in a case triable by a jury. Unless the code can receive a very liberal construction, answers in equity cases must be bound down to all the certainty, and point, and separation, of pleas at law; which will probably be found very inconvenient in practice. There is more difficulty in giving this construction to the language of the code which describes and limits the answer, than in that which describes the petition, Still it may be held, without absolute legislation, that each class of cases is to be stated according to its characterj and that, on this ground, the nature of a case in equity requires the facts to be stated differently, in an answer, from what is required in a case at law. Still it is very difficult thus to limit, or rather to extend, the language of the code, so as to permit an answer even in an equity case to be shaped in any other manner than in that in which pleadings at law are required to be shaped. The learned XII.J ANSWER. 85 Uew Matter. Number of Defenses — Inconsistent ones. S -' codifiers have followed the language of a court of law in defining an an- swer, instead of that of a court of equity. If such is to be the construction given to the code, then the court in a case in equity must respond to all the issues made, as distinctly as the verdict of a jury to the issues in a case at law. Otherwise parties will be concluded by facts which were never found against them. Several pleas are interposed' to a case in equity; a general finding for the defendant would be a finding that all these separate defenses had been proved, when in point of fact only a single one of them might have been proved; and these issues thus found on the record might con- clude the parties in subsequent suits; because a matter once distinctly put in issue, and found, concludes the parties by estoppel in any other suit where the same matter is put in issue. Dame v. Wingate, 12 N. H. Kep. 291; Arnold v. Arnold, 17 Pick. Rep. 9; Nash Digest, 316, Sec. 15; 9 W. L. J., 11. Hence the court must in every case pass directly on each issue made, aflirming or negativing it as the proof may require. There is no other safe course for either the parties or the court. Otherwise the court will be finding falsehoods, and the parties be concluded in their rights with- out knowing it. It would therefore appear reasonable, when a party went into new matter, in an answer to a case in equity, that he should be per- mitted to state the whole of his new matter together, since the whole of it constitutes a defense. Still it is a matter involved in doubt, and parties must frame their pleadings in view of this uncertainty. The Number of Defenses, and Inconsistent ones. The code provides that the defendant may set forth as many defenses, counterclaims, and set-offs, as he may have. In this language there is no limitation on the right of the defendant in setting up his defenses, whether they are consistent or inconsistent. In Lansinghi;. Parker etal., 9 Pr. R. 288, it was held that pleas which were not inconsistent under the former practice of the courts will not be held inconsistent as answers under the code. Hence the following defenses were held to be well joined in a case for an assault and battery: 1. General denial; 2. That plaintiff committed the first assault, etc. ; 3. That plaintiff was at defendant's inn, making great noise, etc.; was requested to leave, and refusing, the deferidant laid hands gently on him to remove him, etc. A contrary opinion had been expressed by Crippen, J., in Roe v. Rogers, 8 Pr. R. 366. In Stiles v. Comstpck, 9 Pr. R. 48, the same doctrine was maintained as in the first case — that the code did not limit the defendant to consistent answers. Such too is the plain language of the- code; and yet the provision, which requires all pleading to be sworn to, practically deprives him of this plain right; because he can not make oath to inconsistent defenses without swearing two ways at once. A plea ANSWEE. [CHA'P Number of Defenses. Sham Answers. Matter in Abatement. of not guilty and a justification to an action of trespass can not both be true. If there was no trespass then there is nothing to justify. And yet in many cases both of these pleas may be absolutely necessary to the full protection of the rights of a defendant. In equity a defendant might set up by answer as many defenses as he might have; but not inconsistent defenses. In a verified answer it was held that he could not set up two defenses that could not both be true in fact. ] 1 Paige C. R. 46; 11 do. 49. Where the defenses, however, both or all of them may be true, though entirely different in their nature, they are not inconsistent. Thus, in Buddington v. Davis, 6 Pr. Rep. 401, it was said that the defendant might deny all the allegations of the complaint, (being for libel, ) and then by a separate statement in the answer allege the truth of the publication; and then again aver, by another plea, that the publica- tion was privileged. All these several defenses might be true, and proof of one would defeat the action. But in an action for trespass, if the de- fendant should deny that he committed the trespass, and allege matter in avoidance, "as a former recovery for the same trespass, it is manifest that both can not be true, and the latter is utterly inconsistent with the former. Van Santvoord's PL 286. Inconsistent pleas in an answer will, of course, be stricken out on motion, or the defendant compelled to elect on which one he wiU rest his case. It will thus be seen that, while in one section it grants the defendant a right to make any and all defenses, yet in another section it limits such several defenses to those that are not inconsistent. The effect of this state of the law is to obstruct parties in making 'their defenses; and to compel them in all doubtful cases to select between several doubtful and inconsistent de- fenses; and it may turn out on the trial that he has omitted the only one the jury would have found for him. Sham Answers. Where answers are sworn to, there can be no such thing as a sham answer. An answer, to be a sham one; must set up new matter; and such new matter, being known to be false, constituted the plea or answer a sham plea or answer. When sworn to, it is to be taken as true; and the only objection that can then lie to it is its legal insufficiency as a defense, coun- terclaim, or set-off. Bennedict v. Tanner, 10 Pr. Rep. 455; Sherman v. Bushnell, 7 do. 171. Matter in Abatement. Matter in abatement, as understood under the former system of plead- ing, may now be joined with matter in bar. It may be "remarked that Xn.] ANSWER. 87 Matter in Abatement. Miecellaneoas Matter. unless matter in abatement constitutes a defense, there is no authority for pleading it. The only authority for pleading any matter other than denial, is that it is new matter constituting a defense. There is no authority for but one answer; and the authority to set forth in that answer all the de- fenses the defendant has, is. clear aftd explicit. Per Marvin, P. J., in Mahew V. Robinson, 10 Pr. Rep. 162. Miscellaneous Matter. Sec. 125. This section provides that in actions for libel or slander, the defendant may allege the truth of the matter charged as defamatory, and may prove the same, and any mitigating circumstances, or either. This is another of those provisions introduced into the New York code to wet rid of some absurd decision of their late court for the correction of errors. In Root v. King, 7 Cowen Rep. 613, it had been held that where a defendant pleaded a justification in libel or slander, and failed on the triai to sustain it, he could not then go into evidence tending to mitigate the damages. This absurd decision has never been followed, we believe, else- . where. In Ohio, the law is well settled that evidence in mitigation may be received as well where there is, as where there is not, a plea of justifi- eation. De Witt v. Greenfield, 6 Ohio Rep. 225. Hence this section has DO application to our law, unless it is to make it infinitely worse. Does the section have the effect of precluding such evidence, unless it is stated on the record? It' is presumed not, sincaits terms are not mandatory, but permissive. A pleader may spread on the record his facts in mitigation; if he has, however, the folly to do it, he can not on the trial prove any fact not embraced in his statement. An answer setting up a justification in libel or slander, must confess the speaking of the words. Annibal v. Hunter, 6 Pr. Rep. 255; 1 Code Rep. N. S. 40.3; Sayles v. Woden, 6. Pr. Rep. 84; Buddington v. Davis, 6 Pr. Rep. 401; Porter v. MoCready, 1 Code Rep. N. S. 88; Lewis v. Kendall, 6 Pr. Rep. 69. An answer merely sta;ting that the words spoken are true, is insufficient as a justification; it should stat« the facts which go to constitute the crime or offense imputed, so that an issue either of law or fact may be framed; or as it is_ betteir expressed in Fry v. Rennet, 1 Code Rep. N. S. 265, where an alleged libel consists of a charge general in its character, a justi- fication on the ground of the truth of -the charge must state the facts which show the charge to be true. In Annibal, w. Hunter, 6 Pr. Rep. 256, Willard, J., says: "I am aware that the schedule of forms annexed to the 88 ANswEE. [chap. xn. Miscellaneous Matter, first report of the comroissioners on practice and pleading, gives counte- nance to such an answer as the present. These foiTas were never adopted by the Legislature; and the one for a justification in libel or slander is utterly inconsistent with the code. The code requires that an answer shall contain, in respect to each allegation of the complaint controverted by the defendant, a general or specific denial thereof, or a statement of any new matter constituting a defense. In this case the defendant does not deny the speaking of the words, but says they are true. In other words, he charges the plaintiff with the crime of perjury. His answer should con- tain a statement of the facts which constitutes that crime. The plaintiff is well entitled to reply, controverting those facts, and thus have an issue framed which can be tried. This answer, as drawn, states no facts, nor times, nor circumstances when and where the alleged perjury was committed. In anonymous libel, (3 Pr. Hep. 406,) an answer like this was overruled as bad. The same question' has repeatedly been decided in the same way. Vide also 7 Pr. Eep. 227; 9 do. 282; 10 do. 79. These cases settle that, under the code, the law of pleading is in Ohio just what it was before, and that this section has here no effect whatever. Sec. 120. This section also has no meaning in Ohio. It never was necessary here to set out facts to show jurisdiction. Our courts are courts of general jurisdiction, of the organization and jurisdiction of which the courts will take notice. No one has deemed it necessary in counting on the judgment of a mayor, to set forth that both parties were resident of the jurisdiction. If the party was served, then he is concluded by the judg- ment; if he was not served, then, of course, the judgment is void. We presume, therefore, that this section will be treated as a nullity in Ohio, where the law never required any more than this section of the code requires. Sko. 1 1 7. This section provides for filing copies in actions' founded on an account, note, bill, or other written instrument, as evidence of indebted- ness. This section does not apply to actions founded on principles of equity, as action on note and mortgage ; nor does it apply to all common-law ac- tions ; where the action sounds in damages, as in covenant, etc., no copy need be filed ; a copy is only necessary in cases, where the plaintiff demands judgment for a sum certain with interest from a fixed time. Such was the decision of District Court, in Scioto County, at its May Term, 1858. See Addenda, No. 8. page 787, and note G. page 799. CHAPTER XIII REPLY. 1 . The plaintiff may demur or .reply to the answer of the defendant. 2. Sec. 101. The plaintiff may demuy to one or more defenses set up in the answer, stating in his demurrer the grounds thereof ; and where the answer contains new matter, the plaintiff may reply to such new matter, denying, generally or specifically, each allegation controverted by him ; and he may allege, in ordinary and concise language, and without repeti- tion, any new matter not inconsistent with the petition, constituting an an- swer in law to such new matter. To this reply the defendant may demur. 3. Sec. 127. Every material allegation of the petition not controverted by the answer, and every material allegation of new matter contained in the answer not controverted by the reply, shall, for the purposes of the action, be taken as true ; but the allegation of new matter in the reply shall be deemed controverted by the adverse party, as upon a direct denial or avoidance. Allegations of value, or of amount of damage, shall not be considered as true by failure to controvert them. It will be seen that the code has been essentially changed in reference to the reply since the publication of the first edition of this work. Several disputed propositions there discussed are by this change resolved in con- formity to suggestions there submitted. It was there denied that a defend- ant could demur to new matter in the answer ; but I then claimed that a fair interpretation of sections 101 and 102 of the code allowed the defend- ant to test the legal sufficiency of the new matter on a demurrer. The present section, as above cited, now expressly authorizes such demurrer, and so resolves all doubt. I also suggested certaia difficulties to which parties might be subjected by reason of requiring no reply to an answer, and setting up new matter by way of defense. This section changes the original code, and requires an answer setting up new matter, to be replied to either by a general or special denial, or by the statement of new matter, which in law shall constitute an answer to this defense. To this reply no other rejoinder than a demurrer can be interposed by the defendant. (89) 90 EKPLT, [OHAP Demurrer to Answer. The code, as it now stands, allows the plainti£f — 1. to demur to the an- swer, whether the same consists of new matter, constituting a defense, or counter-claim or set-off ; 2. requires him to generally or specially deny the material allegations contained in the answer, whether the same be new matter constituting a defense, or a counter-claim or set-off; or, 3. to set up such new facts as in law will be an answer or bar to the new matter, counter-claim or set-off. We will speak of each of these in their order. I. Dbmtjrbbkto Answer. The plaintiff can now test, by demurrer, the legal sufficiency of any new matter set up as defense, as well' as that of a counter-claim or set-off. The nature and foiTO of this demurrer will be the same as a demurrer to a petition, and should point out the particular objection which the pleader brings against the matter demurred to. The only substantial grounds for a demurrer must be that the new matter set up is not sufficient in law to bar the plaintiff's right to recover. Where the demurrer is interposed to a counter-claim or set-off,, the reason alleged must be that the answer does not state facts sufficient to constitute a cause of action. A counter-claim or set-off must state all the facts necessary to show that the defendant has a right of action against the plaintiff, and the right to set it up in that par- ticular action. If the answer does not show that the counter-claim is in law connected with the same transaction out of which arises the plaintiff's cause of action, it is bad, and must be ruled out on demuri-er. The same is true of a set-off. Where the plaintiff's claim has come to him by assign- ment, the answer must set forth all the facts necessary to show a right in the defendant to set up bis counter-claim or set-off against the assignee, the plaintiff in the action ; unless it does this the answer is defective, and must be ruled out on demurrer. 1. ijBMDKBBE TO NeW MaTTEB. A B, Plaintiff, ) V. > Demurrer. C D, Defendant, ) And now comes tlie said A B, plaintiff, and says that the several mat- ters set up in the answer (or in the first count or second count of the an- swer) of the said C D, defendant, are not sufficient in law to bar the action of the said plaintiff ; whereupon he prays judgment". G H, Attorney for plaintiff. Xni.] BBPLT. 91 Demurrer to Answer.— Denials. 2 Dbmubrer to Cotjntbr-olaim or Set-off. And ' now comes the said A B, plaintifiF/ and says that the answer (or the first, second^ die, count of the answer) of the said C D, defendant, does not state facts sufficient to constitute a cause of actioH in favor of said de- fendant and against said plaintiff ; wherefore he prays judgment. The demurrer to a rep^y may be in the following form : 3. Deiittrrer to a Beflt. And now comes the said C D, defendant, and says that the several mat- ters set up by the said A B, plaintiff, in his reply, are not in law suffi- cient to enablt him, the said plaintiff, to maintain his aforesaid action against this defendant ; wherefore the said defendant prays judgment. II. Reply to New Matter in the Answer. The answer of new matter is now to be taken as admitted, unless de nied ; and hence must be met with a denial, or with a reply setting up new matter by way of avoidance. This change in the code, so far as common-law actions are concerned, restores the course of pleadings as they were at common law. Denials. — Nothing need be added to what has already been said, under the head of Answer, as to the nature and form of a denial in a replyf It may be either general — a denial of all the facts set up in the answer — or special — a denial of some one material allegation contained in the answer. 1. General Denial to Answer,, Setting up Matter of Defense. And now comes the said A B, plaintiff, and says that he ought not to be barred of his said action, because he saith that the several matters set up in said answer of said C D, defendant, are not true as therein set forth. Or as follows : Because he saith that he denies the truth of all and singular the averments contained in the answer (or first, second, dc, count of the answer) of the said C D, defendant. 2. Special Denial. A special denial must of course contain a negation of some material averment in the answer ; and hence its form is simply a denial of the aver- ment substantially in its words. Its form will be like the above to the words because he saith, and will then proceed as follows : that the said de- fendant did not pay said sum of , as he hath in his said answer alleged ; that the said plaintiff had not notice of the existence of said defense now set up in said answer at the time of the transfer of said note, or ac- count, (tc, hy the said to the said plaintiff, dc. What has been 92 REPLY. [chap Reply of New Matter. said as to special denials,' under the head of Answer, is strictly applicable to such denials in a reply ; hence it is unnecessary to enlarge upon their nature here. III. Eeplf of New Mattee — Constituting a Defense. As the defense set up in the answer, unless it can be denied, is to be taken as true, the plaintiff must set up new matter by way of avoidance. This is a return to the course of common-law pleading; and whatever was a good reply under the law of pleading, as then understood, is a good reply now under the code. The reply must, in the first place, not be inconsistent with the petition ; or, in common-law language, it must not be a departure from the course of action set up in the petition ; it must uphold that course of action, must show a right to recover on that cause of action. A departure in pleading is the dereliction of an antecedent ground of complaint for a new one, and not fortifying the former. Gould's PI. 463. It is the allegation of new matter not tending to fortify traversed matter. Paine v. Fox, J 6 Mass. Rep. 129. Dar- ling V. Chapman, 14 do. 101. Holey v. M'Phereon, 3 Heernysh R. 104. M'Aden v. Gibson, 5 Alol. R. 341. Kilgore v. Powers, 6 Black R. 22. Yeatman v. Cullen, fi Black Rep. 240. The following cases in Ohio refer to this subject of replication. Richmond v. Patterson, 3 Ohio Rep. 368. Double replications are bad on demurrer. Several replications may be filed. Coller V. Doty, 5 Ohio Rep. 593. ' The replication of de injuria to a plea of jus- tification in trespass will put in issue only the authority set up in the plea. If the party relies upon a new trespass, excess of authority, ^excessive beat- ing etc., he must reply the fact specially. Parish v. Rigdon, 12 Ohio Rep. 191. Where the statute of limitations is pleaded, a new promise cannot be replied ; the petition must be founded on the new promise. Hill v. Henry, 17 Ohio Rep. 9. Drouillard v. White, 10 W. L. J. 386. Matters in estoppel may be replied. ^East Rep. 348 ; 1 Saund. Rep. 267 ; 6 T. R. 62 ; 2 John. Rep. 24 ; 4 Day Rep, 431 ; 6 N. H. Rep. 393 ; 17 Pick. Rep. 9 ; 12 N. H. Rep. 291 ; 18 Pick. Rep. 664 ; 8 Blackly Rep. 175 , 4 Gill & John. 346. So to a plea of infancy, the plaintiff may reply that the goods were necessaries, or a new promise after coming of age. 3 Chitty's Pleading, 1 146 ; 1 M. & S. 724 ; 3 do. 480 ; 2 B. & C. 826. So to a plea of tender, plaintiff may reply a demand and refusal after tender made. 6 Barn & Aid. 630 ; 3 Chitty's PI. 1165. To a plea of release, that it was obtained by fraud or duress. 3 Chitty's PI. 1 1 58. To a plea of licence, a counter mand. 3 Chitty's PI. 1209 ; 11 East Rep. 461. To a plea of escape througl a defect of fences, that defendant turned cattle in, that defendant's cattle are unruly, etc. 3 Chitty's PI. 1209. To a justification under process, a new XIII.J BEPLT. 93 Eeply of New Matter. assignment of an imprisonment before issuing of process. 3 Chitty's PI. 1214. To a plea justifying removal of cart, etc., under a right of -way, new- assignment extra viam. 10 East Kep. 73 ; 3 Chitty's PI. 1216. There can probably now be no new assignment in trespass to real estate, since the petition ought to identify the locus in quo. To a plea of a right of way, plaintiff may reply unnecessary damage, or that defendant went beyond the boundaries of the way. 3 Chitty's PI. 1217. There are of course numer- ous other matters, which may be set up to avoid the effect of a bar contained in an answer ; what these are must be determined from the facts of each case and from the law governing the case. The forms found in 3 Chitty's PI. render it unnecessary to insert any in this work. The language of our code is slightly different from that of New York ; and for us, these questions must be settled by the language of our own code. . As preliminary it may be well to remark that, unless the method of testing the suflBciency of a defense is justified by the code, there is no way pro- vided by which it can be done. Section 1 1 8 provides for striking out on motion redundant or irrelevant matter from any pleading. This lan- guage does not look to striking out an answer, as it must if the answer contains but one defense. The answer would in that case have to be stricken out, and not the redundant or irrelevant matter contained in it. These words both imply that the plea or answer, or the statement of any matter, is more prolix than is necessary ; that it contains language which only serves to incumber the record and increase its length. This section applies as well to petitions as to answers ; hence, if the one plea of an answer can be stricken out for insufficiency, then can also a count in the petition. But this cannot be done as to a petition, as the code expressly provides that such an objection can only be taken by demurrer. This shows what mean- ing the codifiers attached to these words, redundant and irrelevant — that they meant a pleading, containing facts enough to make out a cause of ac- tion, or defense, but also containing other matters having nothing to do with a correct and brief statement of the cause of action, or matter constituting a defense ; and that when this redundant or irrelevant matter was stricken out, there would still remain a sufficient cause of action, or new matter constituting a defense in law. This seems to us clearly the meaning and scope of this section 118 ; and if it is so, then it gives no authority to the court to t^&in this way the legal sufficiency of a pleading, which does not in fact contain .redundant or irrelevant matter. If the sufficiency of a count in a petition cannot be so tested, how can the sufficiency of a statement of new matter in defense be so tested ? If an insufficient count is not redun- dant «r irrelevant matter, how can a plea or the statement of new matter in defense be so considered ? The code does not, then, provide for raising this question on motion. 8^ EEPLT. [chap. To Counter-claim and Set-off. If it cannot be raised by demurrer or on motion, there is but one other way it can be raised, and that is to move the court, on the trial, to reject all evidence under such a statement in an answer. And such is said to be the practice in New York ; so that a party never knows of any legal objec- tion to his defense till it is sprung upon him at the trial, and that too after all the costs of a trial have been incurred. That is certainly strange practice which requires the parties to incur the expense of a jury trial to raise a question already apparent on the record, and which question could have been settled on a demurrer with little or no expense to the parties,, and under such circumstances that full consideration could be given to the ques- tion — which never can be done in the hurry of a jury trial. Eeply to Codnteeclaim and Set-off. Little need be said on this head. The counterclaim and set -off are new suits, in which the answer takes the place of a petition, and the reply the place of an answer. Hence the plaintiff can, in his reply, set up any defense he could have set up in case suit had been instituted on the coun- terclaim or set-off. The lules, therefore, which govern the answer to the petition will govern the reply to the counterclaim and set-off. It was held, in Ranney v. Smith, 6 Pr. R. 420, that several claims might be included in a single count of set-off in the answer. " It is argued," says the judge, " that each note constitutes a defense to the extent it may reduce the plain- tiff's demand, and that therefore each note should be stated in a separate statement of new matter in the answer. This does not follow. We are to have a regard to the nature of the defense; and here all the notes constitute a set-off. I am not now considering how these notes should be described -)T set out in the answer; but it is not objectionable to include all the set- off in the same statement of new matter. This was admissible in a plea under the system superseded, although a declaration formed in the same way would have been bad for duplicity. The general rule was, that in point of form, the plea of set-off should contain all the requisites essential to the validity of other pleas in bar. (1 Chit. PI. 495; Barb, on Set-Off, 79. ) Duplicity, however, in a plea of set-off, was not a cause of demur- rer; in other words, a defendant was permitted to include iu^.e plea any and all debts or demands which by law he was allowed to set-off. * * * It was not objectionable to state in the same plea of set-off any number of debts or demands which the law allowed to be set off. Nor is there now any objection under the code." There can be no doubt that this is good law. The answer of set-off should begin by stating that the plaintiff is indebted to the defendant in a certain amount, and proceed to set forth the Xm.J EBPLT. 93 To Counterclaim and Set-off. several grounds of the set-off, and conclude by claiming judgment for so much, to be applied, as far as necessary, toward satisfying any demand the plaintiff may have against the defendant. Hence the reply must be framed tc meet such a claim of set-off, and may be several to the several matters set up by way of set-off, if it is necessary for the defense of the plaintiff to the same. In Miller v. Losee, 9 Pr. E. 356, it was held that where the defendant in his answer sets forth a cause of action arising on contract other than that which constitutes a set-off, the plaintiff^ may reply any facts which would have constituted a defense, had the defendant sued the plaintiff for such cause of action. It was further held in the same case that the plaintiff to a set-off set up by the defendant in his answer, might reply any other cause of action which he had against the defendant, and had not embraced in liis petition, as a set-off to the defendant's set-off, if the claim was such as to be the subject of a set-ofi'. This is pressing the doctrine of set-off to a very lib- eral extent; because, if the plaintiff may reply by a set-off, the defendant must be permitted to answer over to it, a thing for which the code has made no provision. And what should prevent the defendant from bringing for- ward a second item of set-off to meet this of the plaintiff? Whatever may be the construction of the New York code, we think ours will not permit it. Bj our code the plaintiff may allege new matter constituting a defense. This word as used in our code never includes set-off or counterclaim. The plaintiff may deny generally or specially, and set up any new matter con- stituting a defense. This is the language applied to an answer, omitting the additional words counterclaim or set-off. The reply, therefore, must be limited to a denial of the facts stated in the set-off or counterclaim, or to such new matter as constitutes a defense to the claims set up, whether by way of set-off or counterclaim. And hence no new claim by way of set- off can be introduced by the plaintiff. The only remedy the plaintiff has is to include the matter in his petition, on leave obtained from the court, where the defendant's set-off has really been extinguished in equity by other claims of the plaintiff, not included in the plaintiff's petition. Unless this can be done a plaintiff must be sure to include all his demands in his action, lest he be thrown out of court by a set-off which may be can- celed by a claim he has not sued upon. We have known such an amendment allowed in an appeal case, where the set-off was first set up in the court of Common Pleas. Still it is doubtful whether such an amendment can be made. CHAPTER XIV. VERIFICATION OF PLEADINGS, Sec. 105. Every pleading in a court of record must be subscribed by the party or his attorney. Sec. 106. Every pleading of fact must be verified by the affidavit of the party, his agent, or attorney. When a corporation is a party, the verification inay be made by an officer thereof, its agent, or attorney. When the State, or any officer thereof in its behalf, is a party, the veri- fication may be made by any person acquainted with the facts; the attor- ney prosecuting or defending the action, the prosecuting attorney, or the attorney general. A pleading thus verified shall not be used against a party in any crim- inal prosecution, or action, or proceeding for a penalty or forfeiture, as proof of a fact admitted or alleged in such pleading. Such verification shall not make other or greater proof necessary on the side of the adverse party. When mot to be Veeified. No verification shall be required to the answer of a guardian defending for an infant, or person of unsound mind, or a person imprisoned. Nor in any case where the admission of the truth of a fact stated in the pleading might subject the party to a criminal or penal prosecution. Springstead v. Robinson, 8 Pr. Rep. 41 . How TO BE Verified. If there are several persons united in interest and pleading together, the affidavit may be made by any one of such parties. The affidavit is sufficient, if it state that the affiant believes the facts stated in the pleading to be true. Note. — The verification is no part of the pleading. George t. MoAvoy, 1 Code Eep, N. S. 318. Where the several parties to a bill or note are sued in one action, and they make a joint answer, it must be verified by or on beh BT AGENT OR ATTORNEY. A B, being first duly sworn, deposeth and saith, that he is the attorney of record (or agent) of the paid , plaintiff in the aforesaid action, and * that the facts set forth in said petition are within his own personal knowledge; [ Or, that the said plaintiff is an infant; Or, that the said plaintiff is of unsound mind ; Or, that the said plaintiff is imprisoned; Or, that the said petition is founded on a written instrument for the payment of money only, and that such written, instrument is in the posses- sion of this affiant, as the attorney of said plaintiff; Or, that the said plaintiff is not a resident of said county of ;* Or, that the said plaintiff is now absent from the said county of ;] And this affiant further saith, that the several matters and things con- tained in said petition are, according to the best of his knowledge, informa- tion and belief, true in substance and in fact; and further he saith not. Note.— The various grounds which justify an attorney in making an affidavit are stated one after the other. Copy the affidavit to the *; then insert one of the causes stated, and conclude with what follows after the brackets. AFFIDAVIT TO ANSWER. The said C D, defendant in the above action, being first duly sworn, deposeth and saith, that the several matters and things contained in tha * See Note H, p. fW". XIV.] THE TEKIFICATION OF PLEADINGS. 99 Before whom Sworn. foregoing answer are, according to the best of his knowledge, information and belief, true in substance and in fact; and further he saith not. C D. Signed in my presence, and sworn to before me, this day of , A. D. 18 . Note. — The other affidavits to answers are substantially the same as to the petition, with the exception of substituting the word defendant for flainUff, and the word anewer for In verification of b reply to set-off or counterclaim the same change can be made; the only further change being to substitute reply for petition, the party still being the plaint^. Befoee whoh Swonir. It may be sworn to before any person authorized to take depositions. Still he must not be a party to the suit, nor the attorney of the party, Gilmore v. Hempstead, 4 Pr. Kep. 153; 12 J. R. 339; 3 T. R. 403; 2 Paige Ch. Rep. 326; 5 Paige Ch. Rep. 630; 15 J. R. 631; 17 do. 2; 6 Cowen Rep. 687. Depositions may be taken before a judge or clerk of the Supreme Court, a judge or clerk of the Court of Common Pleas, or a judge of the Probate Court; before a justice of the peace, notary public, mayor, or chief magis- trate of any city or town corporate, or before a master commissioner; and. hence these affidavits may be sworn to before any of these officers. The officer must state his official character; and if he does, no other evidence of that fact is required, nor of his handwriting to the affidavit. His certificate proves itself. Defects in Affidavits. — What and how taken advantage of. The code seems to require that the certificate shall contain a statement that the party signed it in his presence and swore to it before him ; and the above forms have been framed on this construction. In some districts, the following form has been held sufficient, and in others not sufficient. Sworn to and subscriied before me, or subscribed and sworn to before me. It is easy to follow the language of the code, and there is no sufficient reason, why a loose practice should be tolerated, which is a seeming departure from the code. A defective juvat or affidavit may be taken advantage of by motion to strike the pleading from the files. Where the petition is stricken from the files, the action is out of court, and the party must begin anew ; since the Bummons depends upon the petition. Where the oath has been properly administered, but the juvat is defect- ive, there the officer may.be permitted to amend, by stating the feet as it was ; but where the affidavit is insufficient, or the oath was not properly ad- ministered, no amendment can be permitted. The summons fallo with the petition, since, unless a petition properly verified has been filed, the clerk has no authority to issue a summons. CHAPTER XV. TIME TO ANSWER. I. When the Aiis'vrEB and Beplt shall be Filed. Sec. 103. The answer or demurrer of the defendant must be filed on or before the third Saturday, and the reply or demurrer of the plaintiff on or before the fifth Saturday after the return day of the summons or service by publication. The service by publication is completed on the day of the last publica- tion of the notice; hence the defendant is bound to answer on the third Saturday next after the day of the last publication of the notice. ExtensUm of time to Answer or Reply. Sec. 104. The court, or a judge thereof, in vacation, for good cause shown, may extend the time for filing an answer or a reply, upon such terms as may be just. This power of extending time to answer ought not to be exercised with- out notice, where it will operate as a continuance of the cause. Where there will still be time to prepare the case for trial after the expiration of the extended time, there can be little objection in granting the order almost of course. The unexpected absence of a party or counsel at the time when the answer must be filed, would be good ground for extending the time. So where a party cap not answer without certain papers, which can not yet be obtained, an extension should be granted. This extension can be granted in court, or by a judge out of court. When granted in court, the order must be entered on the journal of the sourt. While the court is in session, no order can be granted by a judge out of court. So when one judge was authorized to take bail in vacation, it was held that a bail-bond taken by a single judge during term was void. Sargeant v. The State, 16 Ohio Rep. 267. FOBM OF ORDER. A. B, plaintiff, 1 V. > Petition. C D, defendant.) On motion of the Jijid C D, by E F, his attorney, and upon good cause therefor being sho^n it is ordered that the time for the said C D to answer rioo) CJHAP. XV.] TIME TO ANSWEK. 101 Extension after Default. the petition of the said A B, (or, to reply, as the aiseisj,) be extended until the day of next. ORSBR IN YAOATION. A B, plaintiff, J bounty, ss. C D, defendant.) Court of Common Pleas. On application made to the undersigned, one of the judges of the said Court of Common Pleas, by the said C D, and upon good cause therefor being shown, it is ordered that the time for the said C D to answer the petition of the said A B, be extended until the day of next. Given under my hand this day of , A. D. 18 . S N, Judge of said Court. II. Answer aftee a Default. 4, Where a defendant omits to answer within the time prescribed, the court has power to let the defendant in to make a defense. Lynd v. Verity, 1 Code Kep. 97; Allen v. Ackley, 4 Pr. Eep. 5. Will the court limit the defendant in what defense he shall make on setting aside a judgment by default? We think not. The code now requires all pleadings to be sworn to, and defaults should therefore be set aside as of course, the party being simply required to answer immediately, so that the plaintiff will suffer no delay. In Grant v. McCaughin et al., 4 Pr. Bep. 216, Parker, J., refused to impose any condition as to the nature of the defense. He said so long as the statute made the taking of usury a defense, it was entitled to be treated like every other legal defense, and he would make no discrimination in imposing terms. In Ward v. Wood, 10 West. L. Journal, 606, it was held that the statute of limitations could be pleaded after a default. Mr. Justice Nash, in his opinion, reviews all the cases, and comes to the conclusion that, until the dicta in Ohio, there was not any such rule, and for a court to establish such an one is an act incon- sistent with the plainest principles of law — is to administer a moral instead of a leffal code. The same doctrine is found asserted in Eucker v. Hanny, 3 T. R. 124; Ham v. Goodwin, 1' Brevard Eep. 461; 6 N. Hamp. Rep. 124, 235. There is now no necessity for an affidavit of a meritorious defense, since the defendant can interpose no defense to the truth of which he does not pledge his oath. A default, therefore, should be set aside as of course, and the defendant be permitted to answer instanter. This condition is necessary to prevent delays. 102 TIME TO ANSWEB. [OHAF. Extension after Demurrer. How Pleadings are to he RegardtA. Every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer not controvertej by the reply, are to be taken as true, or admitted ; but new matter in a reply is to be taken as controverted without a rejoinder, as upon a direct denial, or avoidance. A court then has only to ascertain what is asserted on the one side and denied on the other, to know what is in dispute, and necessary to be proved ; all else, so &r as the petition and answer are concerned, is admitted ; the new matter in the reply is alone to be proved without a denial. A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken out without leaving it insufficient. Only those allegations in a complaint are to be deemed material, in the sense of the code, which the plaintiff must prove upon the trial in order to maintain his action. It is upon these only that an is?ue can properly be taken; and it is of these only that the truth is admitted by the omission in the answer of a specific denial. Per Duer, J., in Fry v. Bennett, 1 Code Rep. N. S; 245; Newman v. Otto, 4 Sand. S. C. R. 668; Harcourt v. Ham- ilton, 6 Pr. Rep. 475. • These admissions can not operate as estoppels. They conclude the party only in that case. Estoppels must be found by a jury or be specific- ally admitted on the record. Outram v. Morewood, 3 East. Rep. 363; Manny v. Harris, 2 J. R. 24; Rymer v. Atwater, 4 Day Rep. 431; Whitte- more v. Shaw, 8 N. Hamp. Rep. 393: Arnold v. Arnold, 17 Pick. Rep. 9; Dame v. Wingate, 12 N. Hamp. JElep. 291; vide also 2 Pick. Rep. 20; 3 do. 2?,8; 18 do. 564; 8 Blackf. Rep. 175; 4 Gill, and John. 345; 4 Conn. Rep. 276; 2 Barr. Pa. Rep. 492. These cases show that there can be no estoppel by implication. Where damages or the mere value of articles are alleged, they are not admitted by an omission to deny them. They may be denied, but they need not be. The verification of a pleading does not apply to the amount claimed, except in actions founded on contracts, express or implied, for the payment of money only. Hence, unless the contract is such that a breach can be assigned in the mere non-payment* of money, the verification does not relate to it, and a failure to deny its correctness does not admit it. The amount must still be proved on a failure to answer. [II. Answer or Replt after a Demurrer. Sec. 136. Upon a demurrer being overruled, the party who demurred may answer or reply, if the court is satisfied' that he has a meritorious claim or defense, and did not demur for delay. XV. J- TIME TO AUSWBE. 108 Extension after Demurrer. It will be seen by this section, that the court must be satisfied of two things before it has power to permit an answer upon overruling a demurrer, wliether to the petition or answer: 1. That the demurrant has a meritorious defense. 2. That the party did -not demur for delay. 1. What then is a meritorious defense? The law settles what facts constitute a defense, and any defense which the law allows must, therefore, be meritorious, unless courts hold that the law allows defenses wholly desti- tute of merit— a conclusion which will hardly be adopted by a court whose duty it is to enforce the law. A defense which depends not upon the real dispute between the parties, but upon some mistake in preparing the case or the pleadings, is' not meritorious. Hence the court would not allow one to answer in order to set up a variance, an informal defect in the pleadings, or any other matter aside from the case as the law regards it. In order to protect itself and parties against delay, the court should require the answer to be drawn up and presented to the court, on the mo- tion for leave to answer over. The court will then be able to judge of the character of the defense, and whether it ought to be let in at that late hour. 2. That the party did not demur for delay. When a plainly frivolous demurrer is interposed, for the purpose of rendering a continuance neces- sary on leave being given to answer over, the party ought not to be permit- > ted to answer over, as it is an abuse of the practice of the court. Hence a demurrer must be shown to possess some plausibility, and not be on its face a mere pretence — a palpable sham. The party is bound to present his real defense at the earliest moment permitted by the practice of the court. He can not be permitted to file pleadings which on their face present no legal question, as a mere vexation or a means of delay; and if counsel will take such a course in a case, their clients must suffer for their malprac- tice. Neither the interests of parties nor the administration of justice is promoted by such sharp practice. It is generally adopted by knavish law- yers to increase the fees to be charged in a case, since some charge accord- ing to the number of pleadings filed and continuances obtained. The court can readily judge of the character of the demurrer; and if it a^^ears frivolous — such an one as no fair lawyer could have filed with any expectation that there was any real question raised by it, the court should hold it to have been filed for delay, since no other reason can be given for filing it, and no further answer or reply should be permitted, save in a case where it is perfectly clear that the client has a good defense, and is being sacrificed to the ignorance or knavery of his lawyer. CHAPTER XVI. SUPPLEMENTAL PETITIONS AND ANSWERS. Sec. 142. Either party maybe allowed on notice, and on such terms as to costs, as the, court may prescribe, to give a supplemental petition, answer, or reply, alleging facts material to the. case, occurring after the former peti- tion, answer or reply. This section provides a supplemental pleading only in case of facts occurring after the filing of the former pleading. Matter which existed at the time of the filing of the original pleading must be introduced by amend- ment. Such was the rule in chancery^ with a limited exception, that a bill could not be amended after issue joined. Under the code, amend- ments may be made at any time before judgment. Story Eq. PI. 682, 269. In Drought v. Curtis et al., 8 Pr. Rep. 66, Gridley, J. says: "The supple- mental answer under the code is a substitute for the old plea jMits darien con- tinuance; but it differs from that plea in this respect, that the supplemental answer may be allowed on motion, whenever the facts farming the ground of •the answer have occurred since the answer was put in; whereas the plea of puis darien continuance could strictly be pleaded only before or at the next con- tinuance after the facts transpired. Where the facts asked to be incorporated and pleaded in a supplemental answer, go to divest the plaintiff of the right to maintain the action, and transfer the cause to another who has received satisfaction for the demand involved in it, it is the duty of the court to grant the motion. The word may in such a case means must, and it will make no difference whether the motion be made at the earlie&t day or not." A supplemental complaint is not an addition to the original complaint, but has the nature of another original complaint, which in its consequences may draw to itself the advantage of the proceedings on the former complaint. Per Edmonds, J., in Furniss v. Brown, N. York Code, 1852, 199, note; Hornfager v. Hornfager, 1 Code Rep. N. S. 180; Radley v. Houtaling, 4 Pr. Rep. 261. The New York code also applies to matters which were unknown to a party at the time of filing his original complaint, answer, or reply. The Ohio code is restricted to matters which have occurred since that time. A matter which occurs between the filing of the petition and the answer may be set up in the answer. (104) CaAP. XVI.] SUPPLEMENTAL AUSWEES. 105 Forms. This supplemental petition, or answer, or reply, must be filed on motion to the court, and on notice to the other party. The notice need only show that the party will apply to the court for leave to fila.a supplemental peti- tion, etc., at a named time. The motion must be supported by, the aflBdavit of the party, showing the facts which he wishes to set up in his supple- uiental pleading. FORM OF NOTICE. A B; plaintiff, 1 • 'bounty, ss. C D, defendant.) Court of Common Pleas. The said A B, plaintiff, will take notice that the said C D, defendant, will apply to the said court on the first day of its next term, (or, if court is in session, on to-morrow, ) or as soon thereafter as he can be heard, for leave to file a supplemental answer in the above case, at which time you can be present and object, if you see proper. Dated, etc. CD. By E F, Attorney. AFFIDAVIT IN SUPPOET OJP THE MOTION. A B, plaintiff, 1 County, ss. C D, defendant.) Court of Common Pleas. And the said C D, being first duly sworn, deposeth and saith that since the commencement of this suit, the said A B has transferred and assigned all his right, title and interest in the claim sought by him to be enforced in this action, to one N 0, and that this defendant has, since said transfer and since the filing of his former answer, paid to said N $ , in full satisfaction and discharge of the sum of money sought to be recovered in this action, and the said defendant saith that he wishes to set up said facts in bar of the present action; and further he saith not. CD. Signed in my presence, and sworn to before me, this 'day of ',A. D. 18 . Justice of the Peace. On motion of the said C D, by N 0, his attorney, and on presenta- tion of his affidavit, it is ordered that the said C D be permitted, within days, to file a supplemental answer, setting up by way of defense, the facts stated in his affidavit exhibited on the hearing of this motion. 106 AMENDMENTS. [OHAP. Supplemental Answers — Forms. Amendments without Leave of Oourt. MOTION FOE LEAVE TO PILE SUPPLEMENTAL ANSWER. A B, pkintiflf, l Couray.ss. C D, defendant.) ^^"'^ °^ Common Pleas. Th^ said* C'D, defendant, now comes and moves the court here for leave to file a supplemental answer to the petition of the said A B, setting up by way of defense, that since the filing of the former answer in this case By said defendant, the said plaintiff has assigned all his interest in the claim sought to bo recovered in this action to one N 0, to whom this, defendant has paid said claim. cb, . By E F, his Attorney. Note. — It is doubtful whether this motion need contain a statement of what the facts are. They will appear to the oourt in the affidavit and on the record, when the answer is filed. It wonld seem, therefore, that no facts need be stated in the motion put on file. If any are stated, it need only be very briefly, so as to show that they will constitute a defense to the action. CHAPTER XVII, AMENDMENTS. I. Amendments without leave of Coukt. Sec. 134. The plaintiff may amend his petition without, leave at any time before the answer is filed, without prejudice to the proceeding; but notice of such amendment shall be served upon the defendant or his attor- ney, and the defendant shall have the same time to answer or demur thereto as to the original petition. Under our practice there is no use in requiring the notice to be given. The party might, often as well begin anew, as it will cost as much to serve the notice as to dismiss the first and commence a new action. In XVn. I AMENDMENIB. 107 Ameadiuents without Leave of Court. New York these notices are necessaiy, since 1^ its practice the papers in a ease are not filed in court, but retained by the attorney until he wishes to liave his judgment entered, or his case tried. He serves copies of his peti- ti;n on the opposite party; and hence if he alter his petition he must notify liis adversary of it; otherwise his adversary has the right to presume that the case is to be tried on the petition as served on him. In Ohio all plead- ings are filed in court, are open to the inspection of both parties, and if altered or amended before answer, the other party, when he comes to an- swer, must know it, and know also when by law he is rec[Uired to answer. Still here again is an absurd provision copied from the practice of anothei State, which practice is wholly unlike our own, and the effect of which is to render this right of amendment almost useless. Sec. 135. So at any time within ten days after a demurrer has been filed, a party may amend the pleading demurred to; but he must again give notice of it to the adverse party and pay the costs. Under our practice there are no costs save the mere pittance for filing the demurrer; while in New York, under their mischievous fee bill, this payment of costs has a very different meaning; it there means the fees of the attorney for drawing and filing the demurrer — a fee fixed by .law. Under these provisions' a party has no right to amend his complaint, by striking out the name or names of one or more parties, without leave of the court. Russell v. Spear, 3 Code Eep. 189. Section 137 provides for amendments by striking out or inserting the names of parties, and that can be done only on leave of the court. Hence this is not one of those amend- ments that can be made of course. Nor will the plaintiff be allowed, under the form of an amendment, to introduce in effect a new bill or answer. Verplanck v. Merch'ts. Ins. Co., 4 Edw. Rep. 46; Dodd v. Astor, 2 Barb. Ch. Rep. 395; 18 J. R. 310; 2 Wend. Rep. 269. If such an amendment is made, the defendant can not treat it as a new action. McGrath v. Van Wyck, 2 Sandf. S. C. Rep. 651. In Russell v. Spear, 5 Pr. Rep. 142, the court says: "There is no part of the code which permits a plaintiff to change the parties in the cause without leave of the court. This section of the code applies only to such amendments as will not create an action between other parties." So where the action was commenced in the nature of a replevin for goods, and the plaintiff amended before answer so as to make it an action on a promise to pay for- the same goods, the court held that the amendment was irregular and should be set aside, and that an answer which had been filed to the amended complaint, as to a new action, was also irregular; be- cause, though the amendment was improper, it was not the commencement 108 ^ AMENDMENTS. [CHAP Without leave of Oourb'— By leave of Court after Demurrer. of a new action, nor could* the defendant make it such by his answer. McGrath v. Van Wyck, 2 Sandf. S. C. Eep. 661. The amendments then which are amendments of course, are only such as supply some omission in the original pleading, without working a change of parties or of the cause of action. "If a second answer is filed, which in its legal eflfect is the same as the first, it is not an amended but a new answer, and will be striken out on motion. Snyder v. White, 6 Pr. Rep. 321. The word amendment implies that there is an action existing which in to be amended. Hence never can a new action be commenced, or a- new cause of action inserted, under the pretense of an amendment. This is no amendment of an existing action or cause of action, but the commence- ment of a new action; the insertion of a new ground of recovery. Neither a party nor the court has any power to do this, under the false pretense of an amendment. The rule is thus stated in Field v. Morse, 8 Pr. Rep. 47, by Welles, J.: "It is not allowable to a party, under the privilege given to amend of course, to substitute a new and different cause of action or defense in the amended pleading; but he may change the manner of stating the same, may leave out redundant or irrelevant matter, or add facts in support of the cause of action or defense stated in the original pleading." The same view of the question is taken by Strong, J., in Hollister v. Livingston, 9 Pr. Rep. 140, where it is said that the amendment must te confined to the matter of the original pleading, and can not introdiice new causes of action. 11. Amendments bt leave of Court after a Dbmueeer has been sdstained. Sec. 139. If a demurrer is sustained to any pleading, the adverse party may be permitted to amend, if the defect in the pleading can be remedied by amendment; and this leave to amend may be with or without costs, at the discretion of the court. This section does not authorize the introduction of a new cause of ac- tion. No amendment can be permitted, save to improve the statement of a cause of action already in the complaint. Where the action is one of a legal character, the parties can not be changed; but where the petition is a proceeding in rem, there the material thing is the subject matter of the suit, and parties are a mere incident to this, and hence new parties can be added if necessary. So a person who appears in such a case to have no interest in the subject of the action or bill, might demur, and the bill be at once dismissed as to him. The same rule would now undoubtedly be applied in similar cases. But to change XVn.J' AMENDMENTS. 10& By Leave of Court generally. the parties in an action on a legal claim, is to commence a new suit on a new cause of action. III. Amendments by Leate of Coubt generally. Sbc. 137. The oourf may, before or after judgment, in the furtherance of justice, and on such terms as may be proper, amend any pleading, pro- cess or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conform- ing the pleading or proceeding to the facts proved. And whenever any proceeding, taken by a party, fails to conform in any respect to the provis- ions of this code, the court may permit the same to be made conformable thereto by an amendment. Walter v. Bennett, 16 N. Y. 250 ; 1 0. St. Rep. 409; 6 do. 61, 8 do. 201, 322; 9 do. 519, 526; 10 do. =620. This is a strange section. It is the law of the Autocrat of Russia, and might by him be rendered obligatory on his courts when he was anxious unjustly to obtain the conviction of an innocent man. It in eflfect repeals nearly all the code, by declaring that parties who disregard its strictest requirements, are in the sarne condition as those who comply with them. It also creates a perfectly irresponsible despotism in the court. The court is literally authorized to make a case on the record, if there was none there before; and this even after the case is out of court, by the performance of its final act — the rendition of the judgment. Taken in its comprehensive and plain meaning, it would authorize a suit to be commenced by A against B, tried by C against D, judgment rendered in favor of E against F, and F proving insolvent, an execution might be issued against any ffood man in the State, whose name the court might see fit to insert in the record. Is it not strange that lawyers, who are said to hate every mere exercise of will, and claim to be governed by a known rule, instead of arbitrary will, should have inserted in a code, full of stringent details, such a broad and sweeping clause, vesting an unlimited discretion in the court to amend parties put of their legal rights. This whole power is discretionary, £>nd therefore not subject to the revision of a higher court. Error does not lie for what is matter of discre- tion in the court below. French v. Stanley, 21 Maine Rep. 612; Emerson V, Paine, 9 Ver. Rep. 271; Jenkins v. Brown, 21 Wend. Rep. 454; P. and M. Bank v. Willis, 5 Ala. Rep. 770; Roberts v.*Austin, 6 Whart. Rep. 313; Evans «. St. Johns, 9 Port. Rep. 186; Anderson v. Hamer, 6 How. Miss. Rep. 626. A motion to strike out a plea is addressed, to the discre- tion of the court, and is not revisable in error. Townson v. Moore, 9 Port. 110 AMENDMENTS. [cHAP. By Leave of Court generally. Rep. 136. Matters of practice in courts below are not the subject of revi- sion by writ of error. Sisco v. Harmon, 9 'V'er. Eep. 1 29. So where the mode of examining a witness is a matter of discretion, allowing leading ques- tions, and permitting a witness to be recalled to restate his testimony, etc., the decision ban not be revised on error. Mattocks v. Stearns, 9 Ver. Rep. 326; Hopkinson v. Steel, 12 do. 682; The People v. Recttfr, 19 Wend. Rep. 669; Sanders v. Johnson, 6 Blackf. Rep. 60. So a motion to con- tinue, granted or refused, can not be revised. Small v. Anderson, 2 Monroe Rep. 56. So a motion to amend is one of discretion and can not be revised. Warren v. McHatten, 2 Seam. Rep. 32; 7 Mo. Rep. 667; 14 "Ver. Rep. 169; 4 Dana Rep. 264; 5 Hampsh. Rep. 105; 1 Watts and Serg. 240. This section, then, vests in a single judge an absolute, unconditional power to do with the pleadings and record of a case just as he pleases, and on just suet terms as he may think proper. He may commit as many errors as he pleases, and then amend the party out of the benefit of them. The only limitation on his discretion is in conforming the pleading or pro- ceeding to the facts proved, when this amendment does not substantially change the claim or defense. And sijch is the construction given to this section in New York, by Harris, J., in Beardsley w. Stover,"? Pr. Rep. 294. "Before the recent amendments of the code," says the judge, "there wuuld have been some difficulty in allowing the proposed defense to be inserted in the answer. By the terms of section 173, the court could only allow such amendments as would not change substantially the claim or de- fense. But by a very slight change in the language of the section, this restriction, which before was general, is now limited to those cases in which amendnients are allowed for the purpose of conforming the pleading to the facts proved. In all other cases I understand the court to be invested with the power, in its discretion, to allow any allegations matei-ial to the case to be inserted in the pleading, even though the eifect may be to change entirely the cause of action or defense." This opinion is in conformity with the literal language of the code, and unless there are some other restrictions upon the will of the court than what the code contains, we verily have the strange anomaly of a court of law without any law, so far as this important subject is -concerned, but its own unbridled will. It can grant to one what it denies to another, and its action can not be controlled. But is it true that a court can be endowed with any such discretion? That men's rights and remedies can thus be tam- pered with by a judge, ^ven with the sanction of law? We think not. The Constitution secures to all the right of enjoying and defending life and liberty, acquiring, possessing and protecting property, and seeking and XVn.] AMENDMENTS. Ill By Leave of Court generally. obtaining happiness and safety; Const. Art. I., sec. 1; anil all courts shall be open, and every person, for an injury done him in his lands, goods, per- son or reputation, shall have remedy by dv£ course of law, and justice administered vrithout delay. Const., Art. I. Sec. 16.. Nor shall any power 01 suspending laws ever be exercised except by the General Assem- bly. Sec. 18. These clauses are the great guarantees of the Constitution in favor of individual rights and liberty against legislative and judicial discretion. It will be admitted, it is presumed, that no judgment can be rendered against a person in an action to which he is not a party; and yet the code author- izes the court to strike out and insert names after judgment. ' Is it possible that, under a government of law, any court can be empowered to exercise any such discretion? Every party must have his day in court, his right to answer any claim that may be set up against him; but if he can be made a party to a judgment already rendered, because he ought originally to have been made a party to thevaetion, then he is concluded as to the amount by a trial with which he had no right to interfere, and in which he could not be heard. There is, then, no possible case where the name of a person can be inserted in a record after the rendition of a judgment, without vio- lating the plainest principles of common justice, and the well settled consti- tutional law of the land. The party has a right to be heard upon every question arising in the progress of a case, by a decision of which he is in any wise to be affected. In D'Arcy v. Ketchum et al., 11 How. U. 8. Rep. 165, a judgment rendered against one not served with process was held void. By the general law of the land, no court is authorized to render a judgment or decree against any one, or his estate, until after due notice by service of process, to appear and defend. This principle is dictated by natural justice, and is only to be departed from in cases expressly warranted by law and excepted out of the general rule. Hollingsworth v. Barbour, 4 Peters Rep 466; 6 J. R. 37; 3 Wils. Rep. 297; 9 East. Rep. 192; 8 J. R. 86. No more can a name be stricken out after judgment; because the plaintiff's rights are then settled by the judgment, and they can not be changed, except by some process known to the law. On error a judgment can be reversed, but if there is no error in the record, what right or powei has a court to deprive the plaintiff of a judgment against one party to it? . Indeed the jurisdiction of the court over the case is gone before such an amendment can be made. On the rendition of the judgment the case is at an end, and out of court, and so also are the parties. There seems to be no principle on which the right to any such power can rest. Our own courts have recognized all this as law. In Kellar v. Com. Pick. Co., 1 112 AMENDMENTS. [OHAP. By Leave of Court generally. Ohio Eep. 375, the court held Ihat a judgment could not be amended save in mere matters of form. : An error clearly clerical may be amended. Hamner v. McConnell, 2 Ohio Rep. 31. Where service was liad only on one, and the clerk by mistake entered up judgment against both, this can be corrected. Ebid; Torbet v. CofiBn, 6 Ohio Eep. 274. The whole extent of the power of the court to amend a record was limited to cases where the whole record showed wha^ the error was, and that it was a mere clerical one. State v. Smith, 1 Nott and MoCord, 16; Gay v. Caldwell, Hardin Rep. 64; 6 Monroe Rep. 341; 7 Cowen Rep. 344; 3 do. 43, note; 1 Pick. Rep. 361. Nor can such an amendment be made without notice to the adversa party. 6 How. Miss. Rep. 173; 1 Smede and Marsh, 391; Reynolds?;, Stansbury et al., 20 Ohio Rep. 344; 15 J. R. 638. This section, therefore, must be held to confer no other power than the courts before possessed as to amendment of records, either in changing parties,' or in any other particular changing the record. There is another limitation to be placed upon this power. The parties to the action can not be changed so as to get rid of the original plaintiffs or defendants. Section 116 provides that the title of a cause shall not be changed in any of its stages. Surely if parties can be changed without limitation, il is absurd to retain the title of a cause which no longer indi- cates its real parties. This section clearly shows that the Legislature never supposed that the parties to an action could be substantially changed. The subject matter, and the original parties to an action, should never be so changed as in substance to make it a new action. In actions at law, the parties and the contract or right settle the charac- ter of the action. If the plaintiffs aver that they made a contract with certain defendants, can they be permitted so to change the action as to bring in new plaintiffs or new defendants? If so, this is to make a new action; to set forth a new contract. Where the defendants are a firm, and plead in abatement that another made the contract with them, then a sum- mons may issue for that party and he be brought in; because it is a plea in abatement and admits the contract as that of a firm, but avers that there has been a mistake as to its members. It does not contradict the case originally made in the petition. But to permit a plaintiff to aver a con- tract made with himself, and then to amend it into a conti-act made with himself and others, is to permit him to commence a new action on a .new contract. The word amend implies that something exists to amend; and that the amendment is an improvement of something already existing. Here is an action founded upon a cause of action; that is the existing matter, and thsrf XVn.] AMENDMENTS. 113 By Leave of Oourt generally. . may be improved by an amendment; but that which is equiraibnt to dea- ling a new action is no amendment; it is the creation of a new action. It is necessary to keep this idea in view; otherwise, under the name of an amendment, new actions will be commenced. This view of the code at first became impressed upon some minds from the sweeping language of this section. A married woman, in the absence of her husband in California, brought suit in her own name; it was appealed to the court of Common Pleas, and a motion was there made to substitute the name of the husband for that of the wife; and this was gravely urged as an amendment. But what was this but the beiginning of a new suit? Here was a mistake as to the person who ought to be plaintiff. Can such a mistake be corrected by an amendment? If so, there is no necessity to be particular as to who are plaintiffs; as, if the person vho brings the suit has no cause of action, he may find some other one who has, and bring him in by amendment. Is this giving one a remedy by due course of law? There is no law about it; it is the pure discretion of a judge. Again: It is a grave question whether the Legislature can authorize a court to suspend the law. This code points out how a suit must be com- menced; how the -cause of action and the defense miist be stated; and is it possible that the Legislature designed to repeal all this, or to allow a judge to suspend its application to such cases as he may choose? Is this the due administration of justice? This certainly can not be extended so far as to enable one, under the pretense of an amendment, to commence a new action? Where the subject of the sujt is the matter of jurisdiction, and the court are called upon to make a title to it to a purchaser under its decree, in such a case the court will refuse to act until all p irties interested in the property are before the court. The plaintiff must make all others interested defendants; he can not make them plaintiffs against their consent. In these proceedings in rem, the rule in chancery must prevail; but this rule is not applicable to personal actions for the recovery of money, whether as a debt or damages. In such actions there is no subject to be disposed of; no property the title of which is to be transferred. The plaintiff has brought his action, and stated the grounds of it, and can he depart from it without in effect commencing a new action? The very last clause, where the discretion is limited, looks to this con- struction. The pleadings can not be made to conform to the proof, if in so doing the claim or defense is substantially changed. Why should there be a distinction here, if the Legislature intended to give any such un- limited discretion over the pleadings and the record? When the parties have alleged one case and proved another, why not amend them mt* 8 114 AMENDMENTS. [CHAP. By Leave of Court generally. harmony, if you can by amendment wliolly change the cause of action and . the parties? We conclude, therefore, that the identity of the action can not be changed by an amendment, whether in regard to the cause of the action or the parties to it. Where the action is founded on a legal right, this rule must be strictly applied; in chancery cases the rule heretofore prevailing in courts of equity will still prevail, and be liberally applied to cases in rem or in equity.' N"o other construction can be given to the sectibn without unsettling all certainty in the administration of justice, and all uniformity in the practice of courts; since such practice will be but the individual dis- cretion of the court or judge; whereas a court must have rules even for the exercise of its discretion, so that it may mete out to all the same admin- istration of the law. Section 139 seems to recognize this principle of limitation. After a demurrer has been sustained, the adverse party may be permitted to amend, if the defect can be remedied by woy of amendment. If a new case could be introduced by an amendment, there would be no difiSoulty in remedying almost any defect; so the phrase, 5y way of amendment, seems to imply that this way of amendment is not a way in which everything can be done; that it is not a way to commence new suits or introduce new causes of action. This section seems to have been framed under the vague notion that the power of amendment should be made just as comprehensive as it could be made; but the court still has to construe it in relation to its own powers and the other provisions of the code. The very words, in furtherance of justice, convey an insinuation that this section must not be taken too liter- ally; that it must be limited to cases where it is in furtherance of justice. These words either mean something or they mean nothing. They mean nothing if the opinion of the judge is to be the sole standard whether the amendment is in furtherance of justice or not. Such is the opinion of Mr. Justice Harris, in Beardsley v. Sto^'er, 7 Pr. Rep. 294. His language is: "In this case, I think it may be in furtherance of justice to allow the defendant to amend," etc. In his view, what he thinks is in furtherance of justice, is so. With this view of the law there is no rule as to amend- ments, save the whim of each judge on each case as it may arise. We all know that in such a state of the law, there never can be any uniformity or certainty. But it is believed that these words, in furtherance of justice, mean something. They are not to be disregarded as meaningless, unless no meaning can be given to them. The statute does not say that a court may amend at its discretion. That is Judge Harris' construction of it. What then do these terms mean? XVn.] ' AMENDMENTS. 115 By Leave of Oourt geueridly. The courts had already recognized certain rules upon which amend- ments might be made, and these rules are evidence of what amendments are in furtherance of justice. A writissued without a seal is not amend- able. Witherell v. Randall, 30 Maine Rep. 168; Bailey «. Smith, 12 do. 196; Tibbets v. Shaw, 19 do. 204. Th« reason is plain — ^the writ is void. Boal's Leasee ii^ King et al., 6 Ohio Rep. 11; Bailey v. Smith, 12 Maine R«p.^496; Hall v. Jones, 9 Pick. Rep. 446. To amend a void proceeding into a valid one can never be in furtherance of jzMtiee, until law is con- sidered no longer obligatory; and the law regulating the practice of the courts is just as obligatory as any other law. ' So it has been always held that a new cause of action can not be ' intro- duced by way of amendment.- Thompson v. Phelon, 2 Foster N. H. Rep. 339. So it was held that a declaration containing a count for work and labor coidd not be amended, by inserting counts for use and occupa-. tion, and for goods sold and delivered. Ibid. A count on a note for spe- cific articles can not be admitted as an amendment to a dechration containing only a count for money had and received. French v. Gerrish, 2 Foster K H. Rep. 97. In Lawrence v. Langley, 14 N. H. Rep. 70, the court says; " The amendment in question was improperly admitted. By it a new and different cause of action was introduced into the declaration. In the original count the ground of action is the liability of the defendant as the indorser of a note, while the promise alleged in the amended count fs based upor the sale of the stage property to the defendant. The con- tracts set forth in the two counts are therefore not the same." In Butter- field V. Harvell, 3 N. H. Rep. 201, the following language is held: "Not- withstanding the liberal construction given by courts, in modern times, to statutes of amendments, and the general provisions of our statute, (IN. H. Laws, 99, ) that courts may grant amendments, ' where the person or case may be rightly understood or intended,' it is a well settled principle, that no amendment of a declaration inconsistent with the nature of that declaration, or which changes the cause of action, comes within the pro- vision of the statute, or can be admitted." So a note having been received as payment of an account, and an action having been brought for the goods sold, the court held that the note, being a new cause of action, could not be introduced into the declaration by way of amendment. Newall v. Hussey, 18 Maine Rep. 249. Amendments may be permitted when they do not introduce a new cause of action. In Stevenson v. Mudgett, 10 N. H. Rep. 338, the rule is thus stated: " An amendment which changes the alleged date of a contract, or the sum to be paid, or any particular of the matter to be performed, or the time or manner of performance, changes in one sense the cause of action; 116 AMENDMENTS. [OHAP By Leave of Court generally. but it is not in this sense that the rule is to be understood. Amendments of that character, so long as the identity of the matter upon which the ac- tion is founded is preserved, are admissible; the alteration being made, not to enable the plaintiff to recover for another matter than that for which he originally brought his action, but to cure an imperfect or erroneous state- ment of the subject matter, upon which the action was in fact founded, So long as the court can see that the identity of the cause of action is preserved, the particular allegations of the declaration may be changed and others superadded in order to cure imperfections and mistakes in the man- ner of stating the plaintiff's case." The same doctrine is also asserted by the same court in Merrill v. Russell, 12 N. H. Rep. 74. The court there says: "And the rule prohibiting amendments only prohibits such as would allow a party to recover for a cause of action other than that for which the party brought his action, and not such as constitute merely a more perfect and complete statement of the particulars of the matter constituting the cause of action originally set out." So a new count for the assertion of a right, 01 the enforcement of a claim, growing out of the same transaction, act, agreement, or contract, upon which the original declaration is founded, is not for a new cause of action, and may be inserted as an amendment, however different the form of liability may be. Smith v. Palmer, 6 Cush. Rep. 513. Vide also Cobarga v. Seeger, 17 Penn. State Rep. 514; Loring V. Proctor, 26 Maine Rep. 18; 30 Maine Rep. 30. The basis of this rule is plain; it is not just to the defendant to petmit a party who, can not recover for what he sues, to recover by means of a new cause of action, surreptitiously, slipped in under the pretence of an amendment. Such an amendment can not be in furtherance of justice. Justice is the application of the law to a case. The law points out how actions shall be commenced; requires a petition stating the facts of the case, and other proceedings specifically provided for in the code. This whole law is got rid of, if a party can commence a suit for one thing, and try his case tor another. There can be no justice in such a proceeding. . Penny 0. Parham, 1 La. Ann. Rep.- 274. A party may be permitted to amend by diminishing the amount of what he claims. In Smith v. Brown, 1 4 N. H. Rep. 67, a plaintiff in an action of trover ■rfas permitted to strike out the name of a defendant. The reason is obvious — a verdict might have been found in his favor without discharging tjie others. Fitch v. Stevens, 2 Metcalf Rep. 605. So a count may be struck out, of which the court has no jurisdiction. Pollard v. Barnes, 2 Cush. Rep. 191; 29 Maine Rep. 123; "Wight v. Stiles, 29 do. 164. So amendments may be made, supplying certain mere formal deficien- cies. A complaint may be amended in the amount claimed in an action on XVII.] AMENDMENTS. 117 By Leave of Court generally. a contract for money. Merchant v. N. York Life Ins. Co., 2 Sandf. S. C. Rep. 669. So where in a real action the plaintiflf proves title to a less quan- tity than he has claimed, he may amend and recover according to his proof. Kellogg V. Kellogg, 6 Barb. S. C. R. 116. A writ may be amended, where there is sufiScient expressed to determine with certainty the nature and. object of the process. Dean v. Swift, 1 1 Vermt. Rep. 331; Bartholomew v. Chatauque Bank, 19 Wend. Rep. 99; Fitzgerald v. Garvin, T. U. P. Charlton Rep. 281. The name of the State may be inserted if it has been omitted. Harris v. Jenks, 2 Scam. Rep. 475.>:- iThe State is clearly shown by the court from which the writ issues. But the amendment of an execution will not be permitted, when such amendment will prejudice the xights of third persons. Cape Fear Bank v. Williamson, 2 Iredell Rep. 147. And, if amended, the court will disre- gard it in its retroactive effect, where the rights of others are to be affected. Ohio Life. Ins. and T. Co., v. Urb. Life Ins. Co., 13 Ohio Rep. 220. The true test seems to be this — Is the writ void? If it is, it can not be amended. Wood v. Hill, 6 N. Hamp. Rep. 229; Bell v. Austin, 13 Pick. Kep. 90; Cmmer v. Van Alstyne, 9 Jh. Rep. 386; Kyler- v. Ford, 2 Rand. Rep. 1; S. P. 2 Pen. Rep. 632; 1 Monr. Rep. 146; Hall v. Jones, 9 Pick. Rep. 446; Chandler v. Bricknell, 4 Cowen Rep. 49; Burk v. Barnard, 4 John. Rep. 309; 4 Cowen Rep. 548; 2 J. R. 190. But where the writ is only voidable there it may be amended. Jones v. Cook, 1 Cowen Rep. 309; Vandeusen v. Brower, 6 Cowen Rep. 50; 16 J. R. 145. A record may be amended after the case is out of court, if there is any thing to amend by — Hardin's Rep. 64 — as a mistake in transposing parties' names; Bowman v. Green, 6 Monr. Rep. 341; 2 Penn. Rep. 1012; or a mistake in the party for whom judgment is rendered. Marsh v. Perry, 7 Cowen Rep. 344; 3 do. 43, note; 4 Conn. Rep. 71. The judge can not do it from his own knowledge of the facts; State v. Smith, 1 Nott and McCord, 16; Peck. Rep. 140. Nor by the minutes of the judge; Dick- son V. Hoff, 3 How. Mis. Rep. 165. The errors must be mere clerical errors, a.nd appear to be such from an inspection of the balance of the record, or they can not be amended. The solemn record of a court can not be changed on any evidence whatever outside of the record. This is the rule universally recognized. Smith v. Branch Bank, 5 Ala. Rep. 26; I Scam. Rep. 122; 4 Humph. Rep. 43; Armstrong v. Robertson, 2 Ala. Rep. 164; 1 Story Rep. 310; 9 Port. Rep. 252, 186; 4 Leigh Rep. 308; 6 Blackf. Rep. 246; 1 Penn. St. Rep. 320; Green v. Dodge, 3 Ohio Rep. 486; 1 do. 375; 2 Virg. Cases, 527; Hull v. Williams, 10 Maine Rep. 278; 1 Dev. and Bat. 374; 6 Call. Rep. 12; 5 Watts Rep. 186. On error for that the person having the legal interest is not made plaintiff, the record 118 AMENDMENTS. foHAP" By Leave of Court generally. Correction of Mistakes. Variance. can not be corrected by way of amendment. Frankem v. Trimble, 5 Barr. Rep. 620. These various rules regulating judicial discretion in matters of amend- ment, are all founded on the principles of justice and law. A judgmen( can not be amended so as to change its character; because it is the highest evidence of a fact known to the law; hence it is not legally capable of being proved to be incorrect. The other rules are equally founded inprin- ciples of justice, and can not be violated without being agaiust the fur- therance of justice, and, therefore, against the very wording cf the statute. Those words do mean something, and do limit the discretion of the cotirt by those plain rules of common honesty, and justice, and law, which pro- hibit a judge from' acting arbitrarily in any case. What amendments are in furtherance of justice must be settled by the practice of the courts, and can be settled in no other way. IV. COEEKCTION OF MISTAKES. Sec. 137. The court in every stage of an action must disregard any error or defect in the pleadings or proceeding's, which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. Where an affidavit to obtain an order of arrest was entitled ' in the cause,* before the action was commenced, it was held to be a defect not aflfecting the substantial rights of the adverse party, and might be disregarded! Pin- dar V. Black, 4 Pr. Rep. 95. An answer was entitled ' in the Supreme Court ' instead of 'the Superior Court.' The error could be disregarded. William v. Sholto, "4 Sand. S. C. Rep. 641. Where a demurrer was stricken out as frivolous, and judgment entered as on a default, and no entry had been made of the motion and judgment, the court held that it would dis- regard this clerical error. Whitehead v. Pecare et al., 9 Pr. Rep. 35. " V. Vakiance. Sec. 131. No variance between the allegation in a pleading, and the proof, is to be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense on the merits. 2. 0. St. Rep. 131, 562, 569 ; 4 do. 542 ; 7 do. 310 ; 10 do. 621. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respects he has been misled. XVn.] AJIENDMENTS. 119 Vaiiance. The court may thereupon order the pleading to be amended upon such terms as may be just. This definition of a variance is anything but definite, and is open to the same objection that so much of the code is open to — ^that of vesting unlimUed discretion; the codifiers, in fact, did not seem to know whether their code would work well or ill. Hence, after the most exact details, the whole is rendered inoperative by a provision which permits the judge to insist upon the provisions of the code or not, as he sees fit — a discretion with which no good judge would wish to be clothed. The test seems to be one of fact, not of principle. Was the adverse party milled, and that to his prejudice? The code here, therefore, pro- vides for a quarrel between counsel and the court on an incidental ques- tion of fact, arising during the trial. What is a variance in law is easily deternfined; whether a party has been misled is not so easy to determine. The court must, however, have some rule in regard to the matter, if it wishes to administer the same law to all parties. And this rule must be this: If the defendant shall make a£Sdavit, or if his counsel ^hall file hi? professional statement that he has been misled to the prejudice of the adverse party, the court must take such to be the fact. It wiU never answer to permit an inquiry upon evidence to ascertain the fact; such a course w^ould lead to endless confusion. There may be cases so plain that BO one could be misled by the variance; in that case the court would, as a matter of law, decide that no one could be misled by such a variance; but in all other cases, the fact must he ascertained in the way above indicated. The prayer for relief, it seems, would be a variance not calculated to mis- lead one. Getty v. H. E. E. Co., 6 Pr. Eep. 270. Where the variance is material, the court must give leave to amend upon such terms as may be just. These terms must be on the payment of costs, if the amendment works a continuance of the case. It would not be just to burden the other party with the costs of two trials, for a fault of the party guilty of the mispleading. Sbc. 132. When the variance is not material, within the meaning of section 131, the court may direct the fact to be found according to the evidence, and order the immediate amendment, so as to make the pleading conform to the proof, without costs. This section undertakes to qualify section 131. When, however the allegation of the clajm or defense, to vhich the proof is directed, is unproved, not iii some particular or particulars only, but in its general scope and 120 AMENDMENTS. [cHAP Variance. Redundant and Irrelevant Matter. meaning, it is not deemed a case of variance within the last two sections, but a failure of proof. In this latter case, it would seem that no amendment could be made. The two preceding sections provide when and how variances disclosed on a trial may be amended. This section declares that the class here mentioned can not be amended under those two sections, and if not amendable under those, they are not of course amendable at all. This section also throws light on the extent of the general powers of amendment under section 137. The case provided for in section 133 is the case where one cajise of action is stated, and another proved; and in these cases no amendment can be had. And why? Because it would be to sub- stitute' one cause of action for another, and thus to commence a new action under the false pretense of an amendment. This the code does not permit; because if it intended to permit it to be done before a trial, there is the same reason for permitting it to be done after a trial. The amendments are to be limited to cases where the amendment does not change the cause of action, but only supplies imperfections and omissions in setting it out. , Where the statement is larger than the proof, that constitutes a varianee; but where the proof exceeds the statement, it is no variance. Marryat arguendo in Mountstephen i;. Brook, 1 B. and Ad. 265. The proper time to raise the question of variance is when the party has rested his case. 15 G. Rep. 210; 3 Hill E«p. 2.S7; 5 Wend. Rep. 301. In an action on a contract, there is no variance between the allegation of a sole liability and proof of a joint undertaking by the defendant and another. Carter v. Hope, 10 Barb. S. C. Rep. 1 80. The defendant must plead the non-joinder in abatement, otherwise he can not take advantage of it. Such has been the law since Ld. Mansfield's time. Fay v. Grimstead 10 Barb. S. C. Rep. 321. Redundant and Iseelevant Matter. Sec. 118. If redundant or irrelevant matter be inserted in any pleadinf, it may be stricken out on motion of the party prejudiced thereby. 1. What is redundant and irrelevant matter? By redundant matter must be meant averments, which, though they relate to the subject matter of the action, are not yet necessary to the plaintiff's right to recover. Irrelevant matter must be such as has no relation to the case made; and is what in chancery would have been called impertinent or frivolous. The redundant matter must be such as can be stricken out, and yet leave a complete cause of action. The same is also true of impertinent matter; because, if after the matter objected to is stricken out there is not left a XVn.J • AMENDMENTS. 121 Reduudaat and Irreleyant Hatter. good cause of action, the remedy is by demurrer. 8 Pr. Rep. 149; Fabri- eolti V. Launity, 1 Code Rep. N. S. 121. An entire complaint can not be stricken out as irrelevant or redundant. Benedict v. Bake, 6 Pr. Rep. 362. If the matter in an answer can have any influence upon the decision of .the, cause, it is not impertinent. 4 Paige Ch. Rep. 174. The same rule will apply here. " The motion to strike out redundant or irrelevant matter is analogous to a demurrer, and should, I think, be decided on the same principles. If the matter can not be made the subject of a material issue, it has no business in the pleading, and ought not to be left there to embar- rass the opposite party and the court. Any matter, which upon exceptions for impertinence under the chancery practice would be struck out as unnec- essary or impertinent, should, on motion, be struck out as redundant or irrelevant." Per Harris, J., R. & W. Plank R. Co. v. Wetsel, 6 Pr. Rep. 68. Matter is irrelevant in a pleading which has no bearing on the subject matter of the controversy, and can not affect the decision of the court. ' Fabricolti v. Launity, 1 Code Rep. N. S. 121. Irrelevant or redundant matter must be such as cannot be reached by demurrer. White v. Kidd, 4 Pr. Rep. 68; Esmond v. Van Benschoten, 5 Pr. Rep. 44; Hull v. Smith, 8 Pr. Rep. 149. By irrelevant or redundant in the code, I take it, is meant what is usually understood as impertinent; for a pleading in equity is im- f eitinent when it is stuffed with long recitals or long digressions, which are altogether unnecessary and totally immaterial to the matter in hand. 1 Barb. Ch. Pr. 41; Woods v. Mond, 1 John. Ch. Rep. 106. It is surplus- age at law. According . to Webster, redundant means superfluous, more than is necessary, superabundant; and irrevelant, not applicable, or perti- nent, not serving to support. Both, therefore, may probably come under the head of impertinence. Prolixity may become redundance, and Ld. Eldon held that needless prolixity was in itself impertinence. See 4 Edw. Ch. Rep. 426. Per Hand, J., Carpenter v. West, 6 Pr. Rep. 53. Vide also Averill v. Taylor, 5 Pr. Rep. 476; 8 do. 149. It has been made a question whether the code authorizes the striking out every redundant or irrelevant matter. Hynds v. Griswold, 4 Pi, Rep. 69; White v. Kidd, 4 do. 68; But Hand, J., in Carpenter v. West, 5 Pr. Rep. 63, doubts the propriety of such a restriction. "It has been thought," he says, "irrelevant and redundant matter should not be- stricken out unless a party is aggrieved or prejudiced thereby. With deference, I doubt that this is so to the fullest extent. As to scandalous matter, it is not clear that a person not a party to the record may not move to strike it out. ( Cofiin p. -Cooper, 6 Ves. Jr. 614; Williams v. Douglass, 6 Beavan Rep. 82; Ex pai-te Simpson, 16 Ves. Jr. 447; 6 do. 666, note.) And the court, it 122 AMENDMENTS. [OHAP. Redundant and IrTelevant Matter. seema, will do it without application of any one. And impertinence in an answer was- always exceptional. My own impressions are, that as to scan- dalous and impertinent, irrelevant and redundant matter, the code has not in any respect changed the former practice in equity cases. (See Shaw v. Jayne, 4 Pr. Eep. 119; Knowles v. Otee, do. 317.) Its effect on what before the code would have been a case at law is now under consideration. If this view is correct, the adverse party may always be.«considered ag- grieved by scandalous, irrelevant, impertinent and redundant matter in pleading-. I think one may be considered aggrieved by the interpolation of matter foreign to the cause into the pleadings in a cause in which he is a party; and he always had a right to have the record expurgated for that reason, without reference to the question of costs. (St. John v. St. John, 11 Ves. Jr., 526.) Ai few unnecessary words will not make a pleading impertinent. (Del. Port v. De Tastel, 1 Tur. and Eusi 486; Des Places v. Garris, 1 Edw. Ch. Rep. 360.) And courts should be liberal, especially until our novel system .of pleading shall have become better settled and understood. Every fact, direct or collateral, tending to sustain the general allegations of the bill, may be inserted, if done in a proper manner. (Haw- ley V. Wolvertoui 6 Paige Gh. Rep. 622; Perry v. Perry, 1 Barb. Gh. Rep. 619.)" This opinion is undoubtedly the better law. Neither party has a right to swell the record with irrelevant and redundant matter at the ex- pense of some one else.. Nor has a party a right to introduce immaterial issues to the confusion of the opposite party. He has a right to a naked case, and he is bound to answer nothing more. Indeed, the code assumes that siich matter is to be stricken out on the motion of the party prejudiced thereby. It is not that such redundant and irrelevant matter as prejudices one may be stricken out; but it is to be stricken out by the prejudiced party. 2. When the motion must be made. — The motion must be made at the first opportunity; before the answer, if it is contained in the petition, and before a reply, if contained in the answer. Isham v. Williamson, 7 Leg. Obs. 340; Korlies v. Delaplaine, 2 Sandf. S. G. Rep. 680. So where a party obtains further time to answer or reply, he has waived his right to object for impertinence. Ibid. So noticing a case for trial is a waiver. Esmond v. Van Benschoten, 5 Pr. Rep. 44. 3. ffow it must be made. — The motion should state specifically the matter objected to. Whitmarsh v. Campbell, 1 Paige Gh. Rep. 645. Nor should it include any passage which is not impertinent; if it does, it must be overruled in whole. Ibid; Buloid ii. Miller, 4 Paige Ch. Eep. 473 Yet where the impertinent matter is so blended with matter that is arrn.} AwtiasDMENTs. 123 • Redundant and Irreliavani Matter, Indefinite and Uncertain Pleadings. pertinent that it is impossiWe to separate them, the whole may be excepted to and struck out for impertinence. Norton v. Woods, 5 Paige Ch. Kep. 260. , The exception must be in ; writing and . referred to a master to ex- amine and report on. Woods v. Morell, 1 John- Ch. Rep. 103; 5 Blackf. Rep. 439; 2 HfyRep. 407;,Mason v. Mason, 4 Hen. and Munf. 414. FORM OF MOTION. A B, plaintiff, ) Cmnly, ss. V. V C D, defendant. ) Court of Common Pleas. And the said C D, defendant, now comes and moves the court here to strike out of the petition (or answer) in this cause, as redundant and irrele- vant matter, the following words, to-wit: (Bere add the words claimed to be redundant and irrelevant, talcing care to include only those wished to be stricken out. ) G D, By E F, his Attorney. Note.— A change of names wilt be all that is required to change the above form so as to render it applicable to an answer. VII. iNnEFINITE AND ^NOERTAIN PlEADIXGS. Sec. 118. And when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment. In Otis V. Ross, 8 Pr. Rep. 193, Shankland, J., was inclined to think this clause did . not apply to mere denials, but to new matter contained in an answer. So where a petition contained two causes of action without any distinct separation of them, it was held that the pleading was indefinite and uncertain, and should be corrected on motion, and not demurred to. Wood V. Anthony, 9 Pr. Rep. 79; Robinson v. Judd, 9 Pr. Rep. 378. .The case of Cahoon v. Bank of Utica, 3 Selden Rep. 486, seems to throw doubt on these cases, so far as they decide that duplicity can not be taken advantage of on demurrer. Jewett, J., says: "I think that the complaint is bad, because it unites two causes of action without stating them sepa- rately, and because they do not belong to any one class as specified in sec- tion 167, of which there are seven. The separate statement of a cause of action, and the separate counts of a declaration, are equivalent terms. The necessity of having each stated by itself in a different count, is as impera- tive under the code as under the former mode of pleading." The majority 124 AMENDMENTS. [OHAP. Indefinite and TTncertain Pleadings. of ihe court thought there was but one cause of action stated in the peti- tion, and hence must have agreed with Jewett, J., on his proposition. This part of section 118 would seem to give the court power to act on its own motion, in order to compel parties to make their pleadings so definite, that a distinct issue may be presented to the court and the jury. ' If the petition states no cause of action, because it is is too indefinite to say what it means, then it will be open to a demurrer. It would seem that, since duplicity can be raised on demurrer, this clause can seldom be of any use as between parties, but may be so to the courts, where the parties are disposed, as they often are, to try cases with- out any definite issue being made up in the case. FOKM OF MOTION. A B, plaintiff, | County, ss. C D, defendant.) Court of Common Pleas. And the said A B, plaintiff, now comes and moves the court here to order the said C D to make his pleadings and issues in this petition defi* nite and certain within a reasonable time; or, on failure to do so, that the answer of the said defendant may be stricken out. Dated, etc. AB. By , his Attorney. ANOTHER FORM BY DEPENDANT. And the said C D, defendant, now comes and moves the court here to order the said plaintiff to make his said petition definite and certain, by separately stating his said causes of action, (or, by setting forth his said cause of action distinctly and methodically, ) and so as to permit a distinct issue to be raised on each material fact constituting his c&use of action. CD, By , his Attorney. ORDER, A B, plaintiff, 1 V. V Petition. C D, defendant.) And now came the said parties by their attorneys, and thereupon the motion of the said C D, defendant, (or, the said A B, plaintiff,) came on to be heard, and was argued by counsel; on consideration whereof the court find that the said plaintiff has included in his said petition several causes ivn.] AMENDMENTS. 125 Consolidation of Actions. of action in a single statement or count, (or, that the said plaintiff hath so loosely stated his said cause of action, that it is difficult for the court to understand its precise meaning and extent;) it is therefore ordered that the said plaintiff correct his said petition within days, (or, instanter,) by separately stating his said causes of action; (or, by more definitely and clearly stating the facts constituting his cause of action.) VIII. Consolidation of Actions. Sec. 143. Whenever two or more actions are pending in the same court, which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated; and if no such cause be ^hown, the said several actions shall be consolidated. Sec. 144. The order for consolidation may be made by the court, or by a judge thereof in vacation. 1 . The parties to the actions must be the same. Brewster v. Stewart, 3 Wend. Kep. 44; 2 Nott and McCord, 440; People v. McDonald, 1 Cowen Rep. 189. 2. The actions must be such as might have been joined. Hence the cause of action in the second suit must have accrued at the time the first action was brought, otherwise they could not have been joined; though in Dunning v. Bank of Auburn, 19 Wend. Rep. 23, a consolidation was Didered, though one suit was commenced before the cause of action in the other suit had accrued. This is, however, against the whole current of authority. 3. Still it is a matter of discretion with the court whether, where these facts exist, the consolida|ion will be ordered. It is a motion addressed to the discretion of the court. McRae v. Boast, 3 Rand. Rep. 481; Scott w. Brown, 1 Nott and. McCord, 417, note; Powell v. Gray, 1 Ala. Rep. 77; Cecil V. Briggs, 2 D. and E., 639; 1 Tid. Pr. 566. The rule is thus sta- ted in Thompson v. Shepherd, 9 Jo. R. 262. The motion for this rule must be denied. The notes are of different dates, different sums, and paya- ble af. different times; and for any thing that appears, different defenses may be set up in the several suits. To compel a consolidation under such circumstances would be going further than is the usual practice in this court, or the K. B. in England, (1 Caine's Rep. 114,) though the case of Cecil V. Briggs, 2 T. R. 639, would seem to extend the consolidation rule to all actions between the same parties, and brought at the same time, where the causes of action might be comprised in the same declaration. A liberal extension of this rule is well calculated to prevent oppression by 126 AMENDMENTS. [CHAP. Oonsolidation of Actions. an unnecessary accumulation -of costs, and we should be inclined to say, that where separate suits are brought upon notes or contracts made at the same time, and which miffht have been uniied in one action, and when the defense is the same in all, a consolidation rule ought to be granted. So where the defendant proposes to make no' defense, -the actions ought to be consolidated, to save the defendant costs, provided in other respects they come within the rule. Wilkinson v. Jones, 4 Hill Eep. 46. The consolidation is made for the benefit of the defendant; and hence, if he objects, no consolidation can take place. Graff v. Musser, 3 8. and R., 262; 1 Overt Rep. 396. NOTICE. A B, plaintiff. County ss. V. C D, defendant.) Court of Common Pleas. The said A B, plaintiff, will hereby take notice that he is required to show cause, on the first day of the next term of said court, or as soon thereafter as the motion can be heard, why the four several actions now depending in said court in favor of the said plaintiff, and against this de- fendant, should not be- consolidated into one; at which time and place you can appear and object, if you see fit. Dated, etc. C D, By E F, his Attorney. Note. — If the application is to be made to a judge, the notice must Bpecifically state the time, place, and jndge before whom the application is, to be heard. These words can be inserted after the word " defendant:" " Will apply to the Hon. , jvdge of said conrt, at his residence, in the town of , at one o'clock on the day of , A. D. 18 ," — ^in lieu of those referring to time and conrt. AcUons between Sam^ Parties. MOTION. A B, plaintiff, 1 County, as. V. > C D, defendant,) Court of Common Pleas. And now comes the said C D, defendant, and moves the court here, (or, the Hon. , [one of the judges of said court] ) to consoli- date into one the four several actions now depending in this court, in each XVn.] AMENDMENTS. 127 Consolidation of Actions. of which the said A B is plaintiflf, and the said C D is defendant, and which actions could all have been joined in one action. Dated, etc. CD, . By E F, his Attorney. Actions between Same Parties,. A B, plaintiflf, ) V. I C D, defendant.) On motion of the said CD, by E F, his attorney, and on proof of no- tice to the said plaintiff having been given, and no suflBcient cause to the contrary being shown by the said A B, it is hereby ordered that the said four several actions be consolidated into one action, and all the said several causes of action be included in one and the same petition; and it is further ordered that the said plaintiif within days file such a petition in this case, being the first on the docket, including all the said several causes of action sued for in all of said four several actions; and it is further ordered that the said A B pay all the costs incurred in all of said actions but this, and is not allowed to tax the same'to the defendant, the said C D. Note.— ;This form will need but a slight alteration to make it answer for one by n jndge: "On application of the said C D, etc., to me, S N, one of the judges of said court, and no," etc. Where the pleading or an averment is too indefinite, the defect can only be reached by motion to make it more definite, and not by a de- murrer. Lewis V. Coulter, 10 0. St. Rep. 451 . Where causes of action are not stated separately, the defect can only be rea<^ed on motion. Hartford v. Bennett, 10 0. St. Bep, 441. CHAPTER XVIII. FORMS OF PETITIONS. Beoinninss of Petitiows. County, ss., Court of Common Pleas. A B, plaintiff, 1 V. > Petition. C D, defendant.) The said A B, plaintiff, complains of the said C D, defendant, foi that, etc. ' BY PARTNERS T. PARTNERS. County, as*.. Court of Common Pleas. A B, C D, and E F, doing business under the name of A B & Co., plaintiffs, V. V Petition. G H & IJ, doing business under the name of H (fe J, defendants. The said A B, CD, and E F, partners, doing business under the nama of A B (fc Co., plaintiffs, complain of G H and I J, partners, doiag busi- ness under the name of H & J, defendants, for that, etc. BY IITPAST. County, ss., Court of Common Pleas. A. B, an infant, "] By E F, his next friend, plaintiff, I p .... V. > e 1 on. C D, defendant. J The said A B, by E F, who is admitted by the court here to prosecute for the said A B, who is an infant under the age of twenty-one years, (if a male; eighteen years, if a female;) as the next friend of the said A B, plaintiff, complains of the said C D, defendant, for that, etc. azs) CHAP.,XVin.] FOBMS OF PETITIONS. 129 Beginnings of Petitions — By and against Ezecutm-s and Administrators. J?y and against Executors and Administrators. EXEOUTOE y. EXEOUTOR. A B, executor of E F, plaintiflF, 1 V. . V Petition. C D, executor of G H, defendant.) The said A B, executor of the last -will and testament of E F, deceased, plaintifiF, complains of C D, executor of the last will and testament of G H, deceased, for that, etc. ADMINISTKATOR v. AD MI N IS T R AT O K. A B, administrator of E F, plaintiff, ) V. > Petition. C D, administrator of G H, defendant. ) The said A B, administrator of the 'estate of E F, deceased, plaintiff, complains of C D, administrator of the estate of G H, deceased, defend- ant, for that, etc. ADMINISTRATOR WITH WILL ANNEXED. The said A B, administrator, with the last will and testament of G C, deceased, annexed, of the estate which was of the said G C, deceased, plaintiff, complains of C D, defendant, for that, etc. SURVIVING PARTNER v. SURVIVINO PARTNER. A B, plaintiff, ) V. y Petition. C D, defendant.) The said A B, survivor of E F, doing business under the name of A B & Co., plaintiff, complains of C D," survivor of H S and N 0, doing busi- ness under the name of D H & Co., defendants, for that, etc.* WHERE THERE ARE SEVERAL CAUSES OP ACTION IN THE SAME PETITION. The said A B, plaintiff, complains of the said C D, defendant: First, For that the said, {here state the first cause of action;) Secondly, And also for that, {here state the second cause of action;) Thirdly, And also for that, (he)'e state the third cause of action;) And the said plaintiff saith that said defendant hath not paid said several sums of money, or either of them, or any part thereof to the said plaintiff. Wherefore the said plaintiff prays judgment against said defendant for the said several sums of money, amounting to $ , together with interest thereon from the day of , A. D. 18 . 9 ♦ For the other forms, see note H, p. 800. • 130 FORMS OF PETITIONS. [OHAP. Common Counts. ( Or, if the interest on the various sums does not date- from same time, then say:) together with interest on $ from day of ; on $ from such a day; on $ from such a_ day, etc. The matter of interest should be so stated, that the court can calculate it on a default, from the statements in the petition. COMMON COUNTS. Note. — We here insert the counts heretofore known as the common counts, substantially as they were stated in an action of debt. The count avers an indebtedness, for what that indebtedness was incurred, that it was due, and that it had not been paid. Without authority, these counts would seem as applicable under the code as under the old system of pleading. They contain all the facts which show the plaintiff's right to recover. In the third subdivision of the seventh district, it was constantly held that these counts were sufficient, where th^y correctly described the state of facts. It is believed that the same ruling prevailed in the other portions of the district. In New York one or two judges at first doubted whether this form of declaring was sufficient. The first doubt may have been started in Eno v. Woodworth, 4 Comst. Rep. 249, by Judge Bronsbn, and it was followed by some other judges. Blanchard v. Strait, 8 Pr. Rep. 83; Wood V. Anthony, 9 Pr. Rep. 78. But in Glenny v. Hitchins et al., 4 Pr. Rep. 98, Sill, J., had held such a count to be good, and that no promise to pay need be stated as in the old forms in assumpsit. The count in that case may have been bad, for not averring that the debt was then due and payable. This question was, however, finally settled in New York, by the Court of Appeals, in the case of Allen et al. v. Patterson, 3 Selden.Rep. 476. The petition in that case was in these words: "The plaintiffs com- plain against the defendant for that the defendant is indebted to the plain- tiffs in the sum of $371 Ot, for goods sold and delivered by the plaintiffs to the defendant, at his request, on the first day of May, 1849, at the city of Buffalo, in said county. And the plaintiffs say that the items in their account exceed twenty in number. And the plaintiffs say that there is now due them from the defendant the sum of $371 01, for which sum the plaintiffs demand judgment against the defendant, with interest from the twentieth day of October, 1849, besides costs." To this complaint a demurrer was interposed for the following reasons: " The complaint does not state facts sufficient to constitute a cause of action in this; 1. There is po allegation in the complaint of a contract by the defendant. XVnI.] FOEMS OF PETITIONS. 131 Common Coaiits. 2. The plaintiffs have alleged no breach of any contract by the defendant. 3. There are no facts stated in the complaint showing that the defend- ant, at the time of the commencement of said action, was indebted to said plaintiffs. 4. There are no facts stated in the complaint, showing that anything was due and payable from the defendant to the plaintiflFs at the commence- ment of this action." Jewett, J., says: " The code requires that a complaint shall contain a plain and concise statement of the facts constituting the cause of action. Every fact which the plaintiflf must prove, to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred or stated. This rule of pleading, in an action for a legal remedy, is the same as formerly in this — ^that facts and not the em- dence of facts must be pleaded. (1 Chitty PI. 215; Reed v. Brookman, 3 T. R. 159, per Butler, J.; Eno v. Woodworth, 4 Com. 249.) " The plaintiffs in their complaint in this action state that the defendant is indebted to the plaintiffs in the sum of $371 01, for goods sold and de- livered by the plaintiffs to the defendant at his request, on the first day of May, 1849, etc., and that there is now due them from the defendant the Eium of $371 01, for which they demand judgment, etc. In substance, stating that on the first day of May, etc., the plaintiffs, at the request of the defendant, sold and delivered to him goods, for which he then owed or was bound to pay the plaintiffs the sum of $371 01, and further averring that there was then due them from the defendant the sum <5f $371 01, (that is, that the time when said money for said goods was promised to be paid had expired,) for which sum the plaintiffs demand judgment, etc. The question is, then, are there facts enough stated to constitute a cause of action? I think there are. " The words that the defendant is indebted to the plaintiffs in the sum of $371 01, for goods sold and delivered by them to him at his request, and that there was then due the plaintiffs from the defendant that sum, clearly imply that a contract ha'd been made between the plaintiflfe and defendant, by which the former sold and delivered the latter goods at his request, for which he promised to pay the plaintiffs the sum of $371 01; and that the period in which the same was promised to be paid had expired. It contains every statement of fact necessary to constitute a good indebitatus count in debt, according to the mode of pleading before the code. (2 Chitty PI. 142; Emery v. Fell 2 T. R. 28; 1 Chitty PI. 345.)" The judge then proceeds to show that the word due imports a debt dtte and payable, and not simply the fact of a mere indebtedness. The judg- ment below for the plaintiffs was therefore affirmed. 132 FORMS OF PEtmON. - rCHAP. Common Counts. Eespecting Beal Property . This case disti-flctly affirms that what was, under the old practice, a good indebitatus count in 'debt, is now a good count under the code. There never was any ground to doubt it. Such a count states all the facts of the case; that the plaintiffs sold and delivered goods to the defendant at his re- quest, and the value of them. This is a contract; the law implies a prom- ise to pay from the fa:ct stated, and legal coriclusicms are never to be stated. Swan's St. 640, Sec. 129. This is all there can be in a sale of goods. It will be seen that the following forms obviate the only real difficulty in such cases, by the averment that the ^um stated was then due and paya- ble. The time stated should be the time when the account or debt became payable, and the averment that the sum is then due and payable will cor- respond; .though", as time is not material, an error in this particular can probably make no difference, provided the date from which interest is to run is correctly stated. Vide Lyon v. Clark, 4 Selden Eep. 148. An alle- gation that plaintiff paid certain judgtaents on a named day does not con- fine the plaintiff to that day. The time, as a matter of pleading, was immaterial. The plaintiff might allege any time after the judgments had been obtained against him, and give in evidence the true time. Per Willard, J., Ibid, 157. Moffet v. Sacket, 18 N. T. 522 ; Farran v. Sher- wood, 17 N. Y. 227. I. Respectinq Beal Peofeeiy. 1. FOE REAL ESTATE SOLD. The said A B, plaintiff', complains of the said C D, defendant, for thst the said defendant, on the day of , A. D. 18 , {this should he the ^aie of the debts becoming due, so as after that to carry interest, ) was indebted to the said plaintiff in the sum of $ , [tUs should be the true amount claimed without interest, ) for certain real estate before that time bar- gained, sold, and conveyed [if it has been conveyed or a deed tendered) by the said plaintiff to the said defendant at his special instance and request, and • which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, though often requested, has not paid said sum of money, nor any part thereof. Wherefore the said plaintiff prays judgment against the said defendant for ss^id sum of $ , together with interest thereon from the said day of , A. D. 18 , {tlie day the indebtedness became payaMe.) a. FOE LEASEHOLD ESTATE. IJhe said A B, plaintiff, complains of the said D, defendant, for that the said defendant on the day of ■ , A. D. 18 , was in- debted to the said plaintiff in the sum of $ .* for certain leasehold premises with the appurtenances, before that time bargained, sold, and XVin.] FOKMS OF PETITION. 133 Common Counts. KeBpecting Real. Property. assigned by the said pliiintiff tQ the said defendant, at his special instance and request, for the remainder of a certain term of years then to come and unexpired therein, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, though often requested, has not paid said sum of money, nor any part thereof. Wherefore the said pfaintiff prays judgment against the said defend- ant foy the said sum of $ , together with interest thereon 'from the said day of , A. D., 18 . 3. FOB GOOD WILL OF A BUSINESS. (Pollow the last- to *, then add:) for certain good will of a certain trade and business of the said plaintiff, before then relinquished and given up by the said plaintiff to and in favor of the said defendant, and ^ his special instance and request, and which said sum of money the said plaintiff avers was then due and payable; yet thte said defendant, etc., (as in the last.) 4. FOB GOOD WILL OF A PTTBLIC HOUSE. (Follow 2 to *, then proceed:) for the good will of a certain public house, commonly called or known by the name or sign of , and the trade and business of him, the said plaintiff, of a publican therein, be- fore that time relinquished and given up by the said plaintiff to and in favor of the said defendant, and at his special instance and request, and' which said sum of money the said plaintiff avers was then due and payable; yet " the said defendant, etc., (as in \.) 5. FOB FIXTUEBS LEFT ON A PLACE. (Follow 2 to *, then proceed:) for so much money before that tim§ and then due and payable from the said defendant to_ said plaintiff, for the relin- quishing and giving up of certain buildings, erections, and improvements, before then made by the said plaintiff upon certain lands, by the said plain- tiff before that time quitted and given up to and in favor of the said defendant, at his special instance and jeqiiest, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 1.) 6. FOB USE AND OCCUPATION. (Follow 2 to *, Jhen proceed:) for the use and occupation of certain real estate, with the improvements thereon of the said plaintiff, -by the said de- fendant and at his special instance and request, and by the sufferance and permission of the said plaintiff, for a long space of time before then elapsed. 134 FOEMS OF PBTTTION. [OHAP. Common Counts. Respecting Beal Property. had, held, used, and occupied, and which said sum of money the plaintiff avers was then due and payable; and yet the said defendant, etc., (asm 1.) Note. — It is unnecessary to state where the premises lie, or the term of the demise. The obligation to pay arises from the occupation with plain- tiff's sufferance. 6 East. Rep. 248; 8 T. R. 327; 16 East. Rep. 33; 2 B. and A. 119. To authorize this general form of declaring, the facts must show ex- pressly or impliedly that the defendant occupies as tenant of the plaintiff; for if he occupies adversely to the plaintiff, there is no liability or contract to pay rent. The remedy is trespass or a suit to obtain possession. Butler V. Cowles, 4 Ohio Rep. 206; Sinnard v. McBride, 3 do. 264. As to rights of landlord and tenant in Ohio, vide Case v. Harte, 11 Ohio Rep. 364; Foote i). Cincinnati, 11 Ohio Rep. 408; Boyd's Lessee v. Talbert, 12 Ohio Rep. 212; Bridgman v. Wells, 13 Ohio Rep. 43. r. USE OP PASIUEB, ETC. (Follov) 2 to *, then proceed:) for the use of certain pasture land of the said plaintiff, and the eatage of the grass thereon growing, by him, the said plaintiff, before that time let to the said defendant at his special instance and request, and by the said defendant, according to such letting, had and uged in and for the depasturing of cattle, horses, sheep, and other animals, for a long, time before then elapsed, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 1.) 8. UNFUENISHED L0DOIN6S. [Follow 2 to *, then proceed:) for the use and occupation of certain rooms and apartments of the said plaintiff, in and a parcel of a certain dwelling house, by the said defendant, and at his special instance and request, and by the sufferance and permission of the said plaintiff, for a long space of time before then elapsed-, and which said sum of money the said plaintiff avers was then due and payable; and yet the said deTendant, etc., (a« in\.) 9. FtTKN^SHED LODGINGS. [Follow 2 to *, then proceed:) for the use and occupation of certam rooms and apartments of the said plaintiff in and a parcel of a certain dwel- ling house, by the said defendant, and at his special instance and request, and by the sufferance of the said plaintiff, for a long space of time before then elapsed, had, held, used, and occupied, together with certain household XMn.] FOEMS OF PETITION. 135 Common Counts. Respecting Real Fropertj. fumiture, liueu, and other necessaries, goods and chattels of the said plaintiff therein being, and which said sum of money the said plaintiff avers was then due and payable; and yet the said defendant, etc., (as in 1.) Note. — The sfime form can easily be adapted for use of ofSces and rooms in otlier buildings. 10. FURNISHED LODGINGS WITH BOARD. (Follow 2 to *, then proceed:) for the use and .occupation of certain rooms, apartments and furniture of the said plaintiff, before that time used and enjoyed by the said defendant, at his special instance and request, and by the permission of the said plaintiff, and for certain meat,, drink, fire, candles, attendance, chattels and other necessaries, by the said plaintiff be- fore that time found and provided for the said defendant, at his special instance ajid request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 1.) 11. FOR WAREHOUSING GOODS. (Follow 2 to *, then proceed:) for warehouse room by the said plain- tiff before that time found and provided, for the storing and keeping of certain goods and chattels before then stowed in certain warehouses and premises of the plaintiff, for the said defendant, and at his special instance and request, and which said sum of money the ^aid plaintiff avers was then due and payable; and yet the said defendant, etc., (as in 1.) la. FOE MOORAGE OP SHIPS. (Follow 2 to *, then proceed:) for the mooring and fastening of a certain ship (or, steamboat, or, flatboat, etc.,) called the • , to a certain wharf and landing of the said plaintiff, at , on the bank of the Ohio river, for a long space of time then elapsed, by the said de- fendant, at his special instance and request, and by the permission of the said plaintiff, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 1.) 13. FOE TOLLS FOE USB OP MARKET. (Follow 2 to *, then proceed:) for divers reasonable tolls before that time and then due, and of right payable by and from the said defendant to the said plaintiff, as proprietor of a certain market, situate in the said town, (or, city,) of which the said defendant incurred and became liable to pay to the said plaintiff, by reason of his said defendant's having occupied, with the permission of said plaintiff, a stall therein, and brought into the 136 F0EM3 OF PETITION. [cHAP. Common .Counts. Respecting Personal Property. eame and sold therein various goods and chattels of his, the said defendant, and which said sum of money the said plaintiff avers was then due and pay- able; yet the said defendant, etc., (as in 1.) II. Respecting Peksonal Property. 14. FOE GOODS SOiD AND DBLIVEBED. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , was indebted to the said plaintiff in the sum of $ ,* for divers goods, wares, merchandise, and chattels, (or, when for live animals, horses, mares, geldings, 'bulls, cows, oxen, shefep, hogs, cattle, etc., as the case may he,) by the said plaintiff before that time sold and delivered to the said defend- ant, at his special instance and request, and which said sum of money the said plaintiff avers was then due and payable; and yet the said defendant, though often requested, has not paid said sum of money, nor any part thereof. Wherefore the said plaintiff prays judgment against»the said defendant for the said sum of $ , together with interest thereon from the said day of , A. D. 18 . 15. FOR GOODS SOLD TO DBFENDiNT, AND DELIVBKED TO A THIED PERSON. (Follow 14 to *, then proceed:) for divers goods, wares, and merchan- dise (or, horses, etc. ) by the said plaintiff, before that time bargained and sold to the said defendant, and under and by virtue of such bargain and sale delivered to one E F, at the special instance and request of the said defendant, and which said sum of money the said plaintiff avers was then due and payable; and yet the said defendant, etc., (as' in 14.) 16. FOR A CROP OP GRASS, ETC. (Follow 14 to *, then proceed:) for a certain crop of grass (or, wheat, corn, turnips, potatoes, etc.,) of the said plaintiff, before that time bargained and sold by the said plaintiff to the said defendant, and at his special instance and request, and by the said defendant befofe that time accepted, cut down, and carried away, (or, if turnips, potatoes, apples, etc., gathered, for cut down, ) and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 14.) IT. POK NEOES.S ARIES FOR DEPENDANT. (Follow 14 to *, then proceed:) for meat, drink, washing, lodging, and other necessaries, by the said plaintiff before that time found and provided XVni.] FOEMS OF PETITION. 137 Common Counts. Bespectiog Personal Property. for the said defendant, at his special instance and request, and which said sum of money the. said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 14.) IS. FOB NEOESSABIGS FOB X THIBD PERSON. (Follow 14 to *, then proceed:) for meat, drink, washing, lodgmg, and other necessaries, by the said plaintiff before that time found and provided, at the request of the said defendant, for one E F, (and divers other per- sons, if more than one, ) and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 14.) 19. FOB HOBSE FEED AND STABLINQ. (Follow. 14 to *, then proceed:) for horse feed, stabling, care and attend- ance by the said plaintiff, before that time found, and provided, and bestowed, for the feeding and keieping of divers horses, (or, if cattle, de- scribe them, ) of and for the said defendant, at his request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 14.) so. FOB PASTURING OATTLB, ETC. (Follow 14 to *, then proceed:) for the agisting, depasturing, and feed- ' mg of divers cattle (or, horses, sheep, etc.,) by the said plaintiff before that time agisted, depastured, and fed, in certain pastures and premises of the said plaintiff for the said defendant, at his request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 14.) ai. FOB HIEB OP GOODS. HOBSES, SHIPS, ETC. (Follow 14 to *, then proceed : ) for the use and hire of divers horses, (or, oxen, cows, wagons, carriages, boats, skiffs, steamboats, vessels, fur- niture, plate, etc.,) goods and chattels, by the said plaintiff before that time let to hire and delivered to the said defendant, at his request, and by the said defendant, under said letting to hire, before then had and used, and which said sum of money the said plaintiff avers was then due and pay- able; yet the said defendant, etc., (as in 14.) S3. FOB OOVEBINO MARES. (Follow 14 to *, then proceed:) for the use of the stallion of the said plaintiff, before that time had and used, by the permission of the said plain- tiff, in and for covering a certain mare, (or, certain mares,) of and for the 188 FOEMS OF PETITION. [ciIAI' Common Counts. Respecting Personal Property. ~ ■ J — __^ said defendant, and at his request, and which said sum of money the said plaintiff avers was then due and payable; and yet the said defendant, etc., (as in 14.) Note. — The above form will answer for putting defendant's cow to plaintiff's bull, by oiilv substituting iuU for etalUon, and cmo for mare. 23. FOR FBEIOBT. (Follow 14 to *, then proceed:) for certain freight before that time and then due and payable from the said defendant to the said plaintiff, for the carriage and conveyance of certain goods, wares, merchandise, and chattels by the said plaintiff, before that time carried and conveyed in and upon the vessel, (or, vessels, steamboats, etc.,) from divers ports and places to divers other ports and places, and there, at the latter places and ports, delivered by the said plaintiff, for the said defendant, at his request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., {as in 14.) 34. FOB PASSAQE ON BOABD SHIP, ETO. (Follow 14 to *, then proceed:) For the passage of the said defendant (or, of divers seamen, boatmen, before then carried and conveyed by the said plaintiff,) in and on board of a certain ship or vessel, (or, steamboat, or, steamship, ) whereof the said plaintiff was master and commander, from divers ports and places to divers other pdrts and places, and at the request of the said defendant, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 14.) III. RssPECTiNa Feesonal Sekyices. 25. FOB WAGES. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , was in- debted to the said plaintiff in the sum of $ ,* for the wages or salary of the said plaintiff, before that time and then due and payable from the said defendant to the said plaintiff, for the services of the said plaintiff, by him before then performed, as the hired servant of and for the said defendant, and at his request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, though often requested, hath not paid said sum of money, nor any part thereof. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , together with interest thereon from the said day of , A. D. 18 . XVriX.] F0EM3 OF PETrTION. 139 Common Oounts. Kespecting Personal Services. 36. FOR WAGES A3 A SAILOR V.' MASTER. {Follow 25 to *, then proceed;) for the wages of the said plaintiff, be- fore that time and then due and payable from the said defendant to the said plaintiff, for the service of the said plaintiff, before then performed, at the request of the said defendant, as a mariner of and belon^ng to a certain vessel or ship, [or, steamboat,) whereof the said defendant, during the time of such service was master and commander, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., [as in 25.) 27. FOR WAGES AS MASTER. [Follow 25 to *, then proceed:) for the wages of the said plaintiff, due and owing for his service, before then performed by him, the said plaintiff, as master and commander of a certain ship or vessel, [or, steamboat, ) for the said defendant, and at his request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., [as in 25.) 38. FOR SERVICES AS ATTORNEY. [Follow 26 to *, then proceed:) for the work, labor, care, diligence, and attendance of the said plaintiff, by the said plaintiff before that time per- formed and bestowed, as the attorney and solicitor of and for the said defend- ant, and upon his request, in and about prosecuting and defending certain actions, and performing other business as such attorney and solicitor for the said defendant at his like request; and also for his said plaintiff's services as attorney in drawing certain deeds, contracts, and other writings, and ad- vice and counsel given by the said plaintiff, as such attorney to and for the said defendant and about his business, and at his like request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc. [as in 25.) 39. FOR SERVICES IN GENERAL. [Follow 25 to *, then proceed:) for the work and labor, care and dili- gence of the said plaintiff, by the said plaintiff, before that time performed and bestowed, about the business of the said defendant,. and for the said de- fendant, and at his request; and also for divers materials, and other neces- sary things, by the said plaintiff, before that time found and provided, in and about that work and labor for the said defendant, and at his like request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., [as in 26.) 1^0 FORMS OF PETITION. [cHAP. Ooinmon Counts. Respecting Personal SeiTiees. 30i FOE WORK WITH HOUSES, ETC. {Follow ZS to *, then proceed:) for the work and labor, care and dili- gence of the said plaintiff, before that time perfonned and bestowed, by the said plaintiff and his servants, and with horses, carts, and carriages, (or, lighters, boats, or other vessel,) goods and chattels, in and about the busi- ness of the said defendant, and .for the said defendant, and At his request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 26.) 31. FOE CAEEIAGE OF GOODS BY LAND. (Follow 25 to *, then proceed:) for the carriage and conveyance of divers goods, wares, merchandise, and chattels, by tHe said plaintiff, before that time carried and conveyed, in certain carts, wagons, and ether car- riages, for the' said defendant, and at his request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 25.) 32. AS AGENT AND FOE OOMUISSION. (Follow 26 to *, then proceed:) for the work and la.bor, care and dili- gence, and journeys of the said plaintiff, by the said plaintiff before that time performed and bestowed, as the agent of and for the said defendant, and on his retainer, and for a certain commission and reward due and pay- able from the said defendant to the said plaintiff, in respect thereof, and which said sum of money the said plainljff avers was then due and payable; yet the said defendant, etc., (as in 26.) 33. AS. A FAOTOE. (Follow 25 to *, then proceed:) for the work and labor, care and dili- gence, journeys and attendance of the said plaintiff, by him the said plain- tiff, before that time performed and bestowed, as the factor and agent of the said defendant, in and about the selling and disposing of divers goods, merchandise, and chattels, and in and about other business of the said defendant, and for the said defendant, and at his request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 26.) 34. AS AN INSUEANOE BEOEEB. (Follow 26 to *, then proceed:) for the work and labor, care and dili- gence of the said plaintiff, by him before that time performed and bestowed, in and about the writing, drawing, and making out of divers policies of XVin.] FOEMS OF PETITION. 141 Common Counts. Respecting Personal Services. insurance of di.vers ships, vessels, steamboats, goods, merchandise, and chattels, before that time written, drawn, and made out by the sajd plaintiff, as an insurance broker, and in' and about the causing and procuring divors persons to insure divers sums of money upon tljie said ships, vessels, and steamboats, goods, merchandise and chattels, at the request of the said defendant, and for divers sums of money before that time advanced and paid by the said plaintiff for the said defendant, at his like request, to divers persons, as and for premiums and rewards for the underwriting and subscribing the said policies of insurance of the said ships, vessels and steamboats, goods, merchandise and chattels, during the voyages under- taken by said ships, vessels and steamboats, and for the trouble, care, and diligence of the said plaintiff in that behalf, at the like request of the said defendant, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 25.) 35. AS AN AUCTIONEEK. (Follow 25 to *, then proceed:) for the work and labor, care, diligence and attention of the said plaintiff, by the said plaintiff before that time per- formed and bestowed, as an auctioneer and appraiser, in and about the sell- ing and disposing of, and endeavoring to sell and dispose of, by auction and otherwise, divers goods, chattels and effects, for the said defendant, and at his request,' and in and about the appraising and valuing of divers other goods, chattels and effects, for the said defendant, at his like request, and whish said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 25.) 36. FOE SBEVICBS AS S OHO OL M AS TB E; FOE BOOKS. BTO. (Follow 25 to *, then proceed:) for the work and labor, care, diligence, and attendance of the said plaintiff, by him, the said plaintiff, and his serv- ants and teachers, before that time performed and bestowed /or the said defendant, as a schoolmaster, in and about the teaching and instructing the children of the said defendant in the various branches of education, at the request of the said defendant, and. for divers books, pens, paper, chattels, and other necessary things, by Ihe said plaintiff before that time found and provided for, and used by, the said children of the said defendant about that work and labor for the said defendant, and at his like request; and also for meat, diink, washing, lodging, attendance, and other necessaries, by the said plaihtiff before that time found and provided for the said children of the said defendant, and at his like request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 25.) 142 FORMS OF PETITION. [OHAP. Common Oouats. Respecting Personal Services — ^Moneys. 3T. AS SCReEON AND PHTglOIAN. , (Jfollow 25 to *, then proceed:) for the work and labor, care, diligence, journeys and attendance of the said plaintiflF, by the said plaintiflF, before that time performed and bestowed, as a surgeon for the said defendant, and at his request, in and about the healing, and curing of the said defendant, and of other persons, of various maladies and diseases under which the said persons respectively labored; and for divers medicines and other chat- tels before that time found and provided, administered, and delivered in that behalf, by the said plaintiff, for the said defendant, and' at his like request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 26.) 38. AS AN UNDERTAKEE OP PUNBEAtS. (Follow 25 to *, then proceed:) for the work and labor, care, diligence, and attendance of the said plaintiff, as an undertaker of funerals, before that time performed and bestowed by the said plaintiff and his servants in and about the funeral of one EF, (or, a certain person deceased,) on the . retainer and at the request of the said defendant, and for the hearse, horses, carriages and other chattels, used and applied in and about the furnishing and conducting of the said funeral, by the said plaintiff before that time ■ found and provided for the said defendant, at his like request, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 26.) IV. Respecting Moneys. 39. FOR MONET LENT. The said A B, plaintiff, complains 6f the said C D, defendant, for that the said defendant on the day of ,A. D. 18 , was indebted to the said plaintiff in the sum of $ ,* for so much money, before that time by the said plaintiff lent and advanced to the said defendant, at bis request, and'which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, though often requested, has not paid said sum of money, nor any part thereof. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , together with interest thereon from the said day of , A. D. 18 . 40. FOR MONEY, PAID. (Follolo 39 to *, then proceed:) for so much money, by the said plain- tiff before that time paid, laid out and expended, to and for the use of the said XVm.J FOKMS OF PETITION. 143 Common Counts. Respecting Moneys — Character of Suitors. defendant, at his request, and which said sum of money the said plaintiflf avers was then due and payable; yet the said defendant, etc., (as in 39.) 41. FOK MONEY HAD AND RECEIVED. (Follow 39 to*, then proceed:) for so much money, by the said defend- ant before that time had and received, to and for the use of the said plain- tiflf, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 39.) 4a. FOR INTEREST. (Follow 39 iq *, then proceed:) for so much money, before that time and then due and payable from the said defendant to the said plaintiif, for interest upon and for the forbearance of divers latge sums of money before that time due, and owing from the said defendant to the said plaintiff, and by the said plaintiff forborne for a long space of time before then elapsed, at the request of the said ^defendant, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 39.) 43. ON AN AOOOTTNT STATED. (Follow 39 to *, then proceed:) on an account before that time stated, between the said plaintiff and the said defendant, touching divers moneys, goods, dealings and sales between said parties, and which said sum of money the said plaintiff avers was then due and payable; yet the said defendant, etc., (as in 39. ) V. Relating to the character in which Persons Sde or are Sued. 44. SURVIVINO PARTNER. The said A B, survivor of E F, plaintiff, complains of C D, survivor of G H, defendant, for that the said C D and G H, in his lifetime, wer« partners, doing business under the name of D & Co., and as such part- ners were on the day of , A. D. 18 , indebted to the said A B and E F, in his lifetime partners, doing business under, the name of A B • indorsed and delivered the said promissory note to the said plaintiff, (or to any other indorsee. ) ' ( The balance of the petition will be as in 67. ) S9. ON A NOTE PATABLE TO BBAREB. ' The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , at (place of date if it has any, ) made his certain promissory note in writing of that date, and then and there delivered the same to one E F, and thereby prom- ised to pay to the said E F, or bearer, the sum of $ , in days from the date thereof, and the said E F then and there, for a valuable con- sideration, delivered the said promissory note to the said plaintiff, vrhereby the said plaintiff then and there became the lawful holder of the said prom- issory note, and entitled to demand the money due thereon of the said defendant; yet the said defendant did not pay said sum of money to the said E F, while he was the law/ul holder of the said promissory note, nor hath he paid the same to the said plaintiff since he so became entitled to receive the sum due thereon. Wherefore he prays judgment against the said defendant, for the said sum of $ > , together with' interest thereon from the said day of , A. D. 18 . ■ ' 00. INDOBSEE T. INDOBSEB. The said A B, plaintiff, complains of the said C D, defendant, for that one E F, on the day of , A. D. 18 , at (place of date,) made his certain promissory note in writing of that date, and then and there delivered the same to the said defendant, and thereby promised to pay to the said defendant, or order, the sum of $ , in days after the date thereof; and the said defendant did afterward then and there in- dorse and deliver the said promissory note to the said plaintiff, (or, if last indorser, state indorsement to one Q- H, and then aver indorsement by him to plaintiff, as in 57;) and the said plaintiff further saith that afterward, to-wit, on the day of », A. D. 18 , when said note became due, the said promissory note was duly presented to the said E F, and payment thereof duly required, according to the tenor and effect of said promissory note, and the skid E F then and there refused to pay the said sum of money ; of all which tlfe said -defendant afterward, on the day and year last aforesaid, had due and legal notice ; yet neither the said defendant, nor the said E F, has paid said sum of money, or any part thereof, to the said plaintiff. Wherefore he prays judgment, etc. 152 FOEMS OF PETTTIOlir. [OHAP. Special Counts. On Promissory Notes. 61. AN AVEKMENT OF WANT OP FUNDS TO EXCUSE A NOTICE OP NON-PAYMENT. ■{Proceed as in tJie last up to the end of_ the averment of a demand, and in lieu of the averment of notice insert:') and the said plaintiff saith that, at the time of making said promissory note as aforesaid, and from thence until, and at the time when, the same was presented to the said E F for payment thereof, the said E F had not in his hands any effects of the said defendant, nor had the said E F received any consideration from the said defendant for the making or payment of the said promissory note; but, on the con- trary, the said E F made said promissory note for the accommodation and at the request of the said defendant, and the said defendant has not sus- tained any damage for the want of a notice of the non-payment by said E F of the sum of money in the said promissory note stated; yet the said ■ defendant, etc., (as in 60.) 62. AN AVEKMENT THAT THE MAKEB OOULp NOT BE FOUND. (Proceed as in 60 to the close of the averment of indorsement, then add:) and the said plaintiff saith that afterward, when the said promissory note became due and payable, to-wit, on the day of , A. D. 18 , (the day it hecainedue,) diligent search and inquiry was made after the said E F, at , aforesaid, (the place where the note is payable/ and this is the place of its date, if no other place is specified in the same,) and elsewhere, in order that the said promissory note might be presented to the said E F for payment thereof, but the said E "9 could not on such search and inquiry be found, nor did the said E F then, or at any time before or since, pay or cause to be paid the said sum of money, in said promissory note specified, or any part thereof, but hath wholly failed so to do; of all which the said defendant afterward had notice; yet the said defendant hath not paid said sum of money, nor any part thereof, to the said plaintiff. Wherefore he prays judgment, ete. 63. SURVIVING PAYEE T. MAKER. The said A B,. plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , at (place of date,) made his certain promissorj' note in writing of that date, and then and there delivered the same to the said plaintiff and one E F, he, the said E F, then being in full life, and thereby promised 'to pay to the said plaintiff and the said E F, then in full life, or their order, the sum of $ , in days after the date thereof, and the said plaintiff avers that the said E F has, since the making of said promissory note, and -before the XVin.] FOKMS OF PETniON. 163 Special Counts. On Promissory Notes. commencement of this action, departed this life, leaving the said plaintiff his survivor; yet the said defendant has not paid said sum of money, nor any part thereof, to the said E F in his lifetime, or to the said' pls^in tiff. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $, ,. together with interest thereon from the said day of , A. D. 18 . 64. PAYEE V. SURVIVING MAKER. The said A B, plaintiff, complains of the said D, defendant, for that the said defendant and one E F, who has since deceased, on the day of , A. D. 18 , at (place of date,) made their certain prom- issory note in writing of that date, and then and there delivered the same to the said plaintiff, and thereby promised to pay the said plaintiff, or order; the sum of $ , in days after the date thereof; and the said plaintiff avers that the said E.F, after the making of said promissory note, and before the commencement of this action, departed this life, leaving the said defendant surviving him; yet the said E F did not in his lifetime pay said sum, nor hath the said defendant paid said sum of money, nor any part thereof, to the said plaintiff. Wherefore he prays judgment against the said defendant.for the said sum of $ , together with interest thereon from the day of A. D.18 . 6 6 . HUSBAND AND WIFE ON NOTE PAYABLE TO HER WHILE SOLE. The said A B, and E his wife,- plaintiffs, complain of the said CD, de- fendant, for that th§ said C D, on the day of , A. D. 18 , at (place of date,) made his certain promissory note in writing of that date, and then and there delivered the same to the said E, then being sole, but now the wife of the said A B, and thereby promised to pay to the said E, by her then name of E F, or order, the sum of $ , in after the date thereof; yet the said defendant has not paid said sura of money to the said plaintiffs, or either of them, nor any part thereof. Wherefore the said plaintiffs pray judgment, etc. 6 6. BY HUSBAND ON NOTE OIVEN THE WIPE DURING OOVERTUEB The said A B, plaintiff, complains of the said Qf), defendant, for that the said defendant, on the day of " , A. D. 18 , at (place of date, ) made his certain promissory note in writing of that date, and then and there delivered the same to E, then and there and still being the wife of the said plaintiff, and for the use and benefit of the said plaintiff, and 154 FOKMS OF PETITION. [CHAP. Special Couute. On Promissoiy Kotes. thereby promised to pay to the said E, so being the wife of said plaintiff, or order, the sum of $ , in after the date thereof, which period has now elapsed; yet the said defendant hath not paid said sum of money, or any part thereof, to the said E or to the said plaintiff. Wherefore the said plaintiff prays judgmept against the said defendant for the said sum of $ , together with interest thereon from the day of , A. D. 18 . . 67. ASAINST HUSBAND AND WIFE ON NOTE BY WIFE WHILE SOLE. The said A B, plaintiff, complains of the said C D and E, his wife, for that the said E heretofore, whilst she was sole and unmarried, on the day of , A. D. 18 , at (place of date,) made her certain promissory note in writing of that date, and then and there delivered the same to the said plaintiff, and thereby promised, by her then name of E F, to pay to the said plaintiff, or order, the sum -of $ , in after the date thereof; .and the said E F has since intermarried with the said C D; yet the said defendants have not, nor hath either of them, paid the said sum of money, or any part thereof, to the said plaintiff. Wherefore the said plaintiff prays judgment against the said defendants for the said sum of $ , together with interest thereon from the day of , A. D. 18 . 68. EXEOUTOB OE ADMINISTKATOK OF PAYEE v. MAKEK. The said A B, executor (or, administrator, ) of E F, deceased, complains of the said C D, defendant, for that the said C D, in the lifetime of the said E F, on the day of , A. D. 18 , at (place of date,) made his certain promissory note in writing of that date, and then and there delivered the same to the said E F, then being in full life, and thereby promised to pay to the said E F, or order, the sum of $ , in after the date thereof; and the plaintiff says that the said E F hath, since the making of said promissory note and before the commencement of this action, departed this life, and the said plaintiff hath been duly appointed executor (or, administrator,) of the estate of the said E F; of all which the said defendant had notice; yet the said defendant did riot pay said sum of money to the said E F in his lifetime, nor hath he paid the same to the said plaintiff since the decade of the said E F. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ together with interest thereon from day of , A. D. 18 . XVin.J FOEMS OF PETmON. 155 Special Counts. On Promissory Notes — Bankers' Checks. 69. PAYEE >. EXECITTOB OR AD M I K I S !r B A T E OF MAKER. The said A B, plaintiff, complains of the said C D, executor of the last will and testament (or, administrator of the estate,) of the said E F, defend- ant, for that the said E F, in his lifetime, on the day of , A. D. 18 , at (place of date;) made his certain promissory note in writing, and then and there delivered the same to the said plaintiff, and thereby promised to pay to the said plaintiff, or order, the sum of $ , in after the date thereof, which period has since elapsed; and the said plaintiff saith that, after the making of said promissory note and before the commencement of this action, the said E F departed thts life testate, and that the said defendant was duly appointed executor (or, administrator,) of the estate of the said E F; yet the said E F did not in his lifetime pay, nor hath the said plaintiff since his decease paid said sum of money, or any part thereof, to the said plaintiff. Wherefore the said plaintiff prays judgment against the said defendant, as such executor, (or, administrator,) for the said sum of $ , to- gether with interest thereon from the day of , A. D. 18 , to be levied and paid out of the estate of the said E F, in the hands of the said defendant to be administered! II. Orf Bankees' Checks. rO. .HOLDER V. DRAWER. The said A B, plaintiff, complains of C D, defendant, for that the said defendant, on the day of , A. D. 18 , at (place of date,) made his certain draft or order in writing of that date, and then and there directed the said draft or order to , of , and thereby then and there required the said to pay to the said plaintiff, or bearer, the sum of $ , and then-and there delivered the said draft or order to th» said plaintiff; and the said plaintiff avers that, after the making of the said draft or order, and before any payment of the said sum of money therein specified, the said draft or order was presented on the day of , A. D. 18 , to the said , for payment thereof, and he was then and there requested to pay the said sum, according to the tenor and effect thereof; but the said did not, nor would at the presentation of said draft or order for payment as aforesaid, or at any time after,ward, pay the said sum of money therein specified, or any part thereof, but has wholly refused so to do; whereof the said defendant then and there had due and legal notice; yet the said defendant hath not paid said sum of money, or any part thereof, to the said plaintiff. * 1S6 FOEMs OF PETrnoisr. [chap. Special Counts, On Bills of Exchange. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , together with interest thereon from the said day of , A. D. 18 . NoTK. — Interest becomes due from time of demand and notice of non-payment. III. Bills of Exohanob. 71. DRAWEE V. AOOEPTOR. The said A B, plaintiff, complains of the said G D, defendant, for that the said plaintiff, on the day of , A. D. 18 , at (place of date,) made his certain bill of exchange in writing of that date, and then and there directed the same to the said defendant, and thereby re- quested the said defendant, after the date thereof, to pay to the said plaintiff, or order, the sum of $ , which said bill of exchange the said defendant afterward, on the day of , A. D. 18 , -upon sight thereof accepted; yet the said defendant, though said' period has long since elapsed for the payment of said bill of exchange, has not paid said sum of money, or any part thereof, to the said plaintiff. Wherefore he prays judgment against the said defendant for the said sum of $ ^ • together with interest thereon from the day of A. D. 18 . 7a. DRAWER T. AOOEPTOR OP BILL PAYABLE AT A PARTICULAR PLACE. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, on the day of , A. D. 18 , at (place of date,) made his certain bill of exchange in writing of that date, and then and there djreeted the same to the said defendant, and thereby re- quested the said defendant, after date thereof, tb pay to the said plaintiff, or order, the sum of $ ; which said bill of exchange the said defendant afterward, on the day of , A. D. 18 , upon sight thereof accepted, payable at the banking house of , in , and the said plaintiff avers that afterward, and when said bill of exchange became due and payable, on the day of , A. D. 18 , at the said banking house of the said in , , the said bill of" exchange was duly presented for payment thereof, and payment thereof then and there required; yet the said defendant, nor any one for him, did not, npr would, when said bill of exchange was so presented for payment, nor at any time before or since, pay the said sum of money therein specified, or any part thereof, to the said plaintiff, but hitherto hath wholly refused so to do; of all which the said defendant then and there had due notice. xvjn.] F0EM8 OP" PETrrioK. 157 Special Counts, On Bills of Exchange. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , together with interest from the day of , A. D. 18 . 73. DRAWER T. AOOEPTOR ON A RBTURNBD BILL. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, on the day of , A. D. 18 , at {^ place of date,) drew his certain bill of exchange of that date, and then and there directed the same to the said defendants, and thereby requested the said defendants, after the date thereof, to pay to one E F, or order, the sum of $ - , and then and there delivered the said bill of exchange to the said E F, which said bill of exchange the said defendant afterward, and before the same became due, upon sight accepted; and the said plain- tiff avers that afterward, and when said bill of exchange became due a;nd payable, the said bill of exchange, so accepted as aforesaid, was presented to the said defendant for payment thereof, and the said defendant was then and there requested .to pay said sum of money therein specified; but the said defendant did not, nor would, at said time when so presented for pay- ment, or at any time since, pay the said sum of money therein specified, or any part thereof; and, thereupon on the day of , A. D. 18 , the said bill of exchange was returned to the said plaintiff for non- payment thereof; and the said plaintiff was then called upon and did pay to the said E F the said sum of $ , in said bill specified, together with $ , costs of protest, and $ , damages for the non-payment thereof; of all which the said defendant had due notice; yet the said de- fendant, though often requested, has not paid said several sums of money, or either of them, or any part thereof. Wherefore the said plaintiff prays judgment against said defendant for the said sum of $ , together with interest thereon from the day of , A. D. IB , and the said sum of $ , costs, and the said sum of $ , damages, so as aforesaid paid, together with interest thereon from the day of A. D. 1 8 . On a bill drawn on a person out of the State, the holder is entitled to six per cent, damages on its being protested for non-payment. Hence he is entitled to recover from the acceptor what he 'has been compelled to pay by reason of 'the failure of the acceptor to pay. For the law in Ohio, see Case v. Heffner, 10 Ohio Rep. 180. The bill must be protested to en- title the holder to the statutory damages. A bill drawn in the State on one therein need not be protested. Demand and notice may be proved by other evidence than the protest. 158 FORMS OF PETTTION. [CHAP, ^^^^___^^ t ^ ^^^^____^_— ^ Special Counts. On Bills of Exchange. 74. PAYEE V. AOOEPTOE. The said A B, plaintiflf, complains of the said C D, defendant, for that one E F, on the day of , A. D. 18 , at (place of date,) drew his certain bill of exchange in writing of that date, and then and there delivered the same to the said plaintiff, and thereby requested the said defendant to pay to the said plaintiff, or order, the sum of $ , in ■ after date thereof; which said bill of exchange the said defendant on the day of , A. D. 18 , (or, then and there,) upon sight thereof accepted; and yet the said defendant, although said period has long since elapsed, has not paid said sum of money therein specified, or any part thereof; to the e^ii plaintiff, though often requested so to do. Wherefore the sdid plaintiff prays judgment against the said defendant for the said sum of $ ' , together with interest thereon from the day of ' A. D. 18 . Where a bill is drawn or indorsed in the name of a firm, it is un- necessary to state the names composing the firm. 2 Cow. Rep. 604; 4 do. 68. The bill may be described as drawn by A B & Co., and indorsed by A B & Co. It is necessary, however, to state the names of a firm on a bill, when the firm is a plaintiff or defendant. Cochran v. Scott, 5 Wend. Rep. 229. So where a bill is accepted by an agent, it is suflScient to say that A B by C D, drew, indorsed, or accepted the bill. It is unnecessary to aver that the agent had authority. Sherman v. Comstock, 2 McLean Rep. 19. As to a firm: that A B & Co. drew a certain bill of exchange, and that A B & Co. indorsed the said bill of exchange. As to bill by agent: that A B, by D, drew his certain bill, etc.; that C D, by E F, upon sight accepted; that G H, by I, indorsed said bill of exchange. 75. PATEE V. ACdBPTOK AT A PAETIOULAE PLACE. The said A B, plaintiff, complains of C D, defendant, for that one E F & Co., on the day of , A. D. 18 , at (place of date, ) drew their certain bill of exchange in writing of that date, and then and there delivered the same to the said plaintiff, and thereby requested the said defendant, months after the date thereof, to pay to the said plaintiff, or order, the sum of $ ; which said bill of exchange the said defendant, then and there upon sight thereof, accepted, payable at the banking house of , in ; and the said plaintiff avers that afterward, and when the said bill of exchange became due and payable, according to XVm.j FORMS OF PETITION. ' 159 Special Counts, On Bills of Exchange. its tenor and effect, the said bill of exchange was duly presented for pay- ment at the said banking house of . in said , and pay- ment of the said sum therein specified duly required; but neither the said C D, nor any other person on behalf of the said defendant, did or would pay the said sum of money in said bill specified, or at any time before or after- ward; but wholly neglected so to do. Wherefore the said plaintiff prays, etc. Note. — There is no necessity to aver or prove notice of dishonor of the bill in an action V. acceptor. 3 Cow. Kep. 261. 76. ^INDOESBE V. AOOBPTOB. The said A B, plaintiff, complains of the said C D, defendant, for that one E F, on the day of , A. D. 18 , at (place of date,) made his certain bill of exchange of that date, and then and there delivered the said bill to one G H, and, thereby requested the said defendant, months after date thereof, to pay to the said G H, or order, the sum of $ , which said bill of exchange the said defendant afterward, upon sight thereof, accepted; and the said G H afterward, and before the- said bill became due, indorsed and delivered the same to one L M, and the said L M then and there indorsed and delivered the same to one N 0, and the said N then and there indorsed and delivered the same to the said plain- tiff; yet the said defendant, although said period has elapsed, has not paid said sum of money, nor any part thereof, although often requested so to do. Wherefore the said plaintiff prays judgment, etc. 7 7 . PAYEE V. DRAWEE ON DEFATJLT OF ACOEPTANOB. The said A B, plaintiff, complains of the said C D, defendant, for that the said C D, on the day of A. D. 18 , at (place of date,) made his certain bill of exchange in writing of that date, and then and there delivered the same to the said plaintiff, and thereby requested one E F to pay to the said plaintiff, or order, the sum of $ , in days (or months,) after the date thereof; and the said plaintiff avers that, after the making of said bill of exchange and before the same became due and payable, the said bill of exchange was presented to the said Jl F for his acceptance thereof, and the said E F was then and there requested to accept the same; but the said E F did not, nor would, at the said presentation of said bill, nor at any time since, accept the same, or pay said money therein specified, but wholly neglected so to do; of all which said premises the 160 • FOKMS OF PEimON. [OIIAP. Special Counts. On Bills of Exchange. said defendant then had due and legal notice; yet the said defendant has not paid the said sum of money, nor any part thereof, to the said plaintiff. Wherefore the said plaintiff prays judgment, etc. 7 8 . WHERE DRAWEE HAD NO EFFECTS OF DRAWER, TO EXCUSE MOTICE. (Follow the last to the averment of notice, 'and be/ore that insert:) and the said plaintiff avers that, at the time of the making of the said bill of exchange, and from thence and until and at the time when the same was presented for acceptance to the said E F, he, the said E F, had no eflfects of the said defendant, nor had he received any consideration from the said defendant for the acceptance or payment by him, the said E F, of the said bill of exchange; of all which said several premises he, the said defendant, then had due and legal notice; yet, etc., (as in the last preceding.) 79. PAYEE v. DRAWER ON DEFAULT OF PATMBNT. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , at (place of date, ) made his certain bill of exchange of that date, and then and there delivered the same to the said plaintiff, and thereby requested one E F to pay to the said plaintiff, or order, in after the date thereof, the sum of $ , which said bill of exchange the said E F afterward, and before the same became due, upon sight thereof accepted; and the said plaintiff avers that afterward, on the day when the said bill of exchange became due and payable, according to the tenor and effect thereof, the said bill of exchange was presented to the said E F for the payment thereof, and the said E F was then requested to pay the said sum of money in said bill specified, but the said E F did not, nor would, at the said presentation thereof, or at any time afterward, pay the said sum of money therein speci- fied, but wholly neglected so to do; of all which the said defendant then had due and legal notice; yet the said defendant, although often requested, has not paid said sum of money, nor any part thereof, to the said plaintiff. Wherefore he prays judgment, etc. 80. PAYEE v. DRAWER OP. BILI, PAYABLE AT A PLACE CERTAIN. The said A B, plaintiff, complains of the said C D, defendant, for that the said C D, on the day of , A. D. 18 , at (place of date,) made his certain bill of exchange of that date, and then and there delivered the same to the said plaintiff, and thereby requested one E F to pay to the said plaintiff, or order, in after the date thereof, the sum XVra.] FORMS OF PETinON. 161 Special Oounts. On Bills of Exchange. of $ , which said bill of exchange the said E F afterward, and before the same became due and payable, accepted, payable at the banking 'house of , in , and the said plaintiff avers that afterward, and on the day when said bill of exchange became due and payable, the said bill of exchange was duly presented at th? banking house of the said , in , for payment thereof, and pay- ment thereof then and there requested, but neither the said (the bankers) nor said defendant, nor any person on behalf of the said E F, did or would, on the presentation of said bill for payment, or at any time since, pay the said sum of money in said bill of exchange specified, or any part thereof; of all which said several premises the said defendant had then due and legal notice. Wherefore the said plajntiff prays judgment, etc. 81. AN AVERMENT THAT DRAWEE COULD NOT BE FOtTND, TO EXCUSE DEMAND. (Follow the last until the averment of acceptance, then proceed:) and the said plaintiff avers that afterward, and before the payment of the money in said bill specified, to-wit, on the day of , A. D. 18 , and on various other days between that day and the time when said bill of exchange became due, and also on the day when the said bill of exchange became due, diligent search and inquiry was made after the said E F at, (if any plUce of residence is stated in the hill,) and elsewhere, in order that the said bill of exchange might be presented to the said E F, for his ac- ceptance and payment thereof; but the said E F could not on such search and inquiry be found, nor hath he, at any time since the making of said bill of exchange, hitherto accepted the same, or paid the money therein specified; of all which the said defendant afterward had due and legal no- tice; yet the said defendant hath not paid said sum of money, or any part thereof, although often requested so to do. Wherefore the said plaintiff prays judgment, etc. 83. AVERMENT OP WAIVER OP DEMAND AND NOTICE. (In lieu of the demand of payment, etc, insert:) and the said plaintiff avers that the said defendant, before the said bill of exchange became due, requested the said plaintiff not to present the same to the said E F for pay- ment thereof, and wholly dispensed with and discharged the said plaintiff from the presentment of the said bill of exchange to the said E F for pay- ment thereof, and that therefore he did not present the same to the said E F for payment thereof; (conclude with averment of non-payment and prayer for judgiment, etc.) •• / 11 162 FOEMS OF PETITION. [OHAP. Special Counts. On Bills of Exchange. These forms will be suflScient to enable the pleader to frame any other. Where the suit is by an indorsee against the maker, all the aver- ments are like those v. acceptor as to drawing, indorsing, and presenting the bill, with the exception that it is averred that the defendant drew the bill. One more may be given as a specimen of suit by indorsee. 83. INDOBSBE v. INDOBBEB. The said A B, plainti£f, complains of the said C D, defendant, for that one E F, on the day of , A. D. 18 , at (place of date,) made his certain bill of exchange of that date, and then and there delivered the same to one G H, and thereby requested one L M to pay to the said Q H, or order, the sum of $ , in days after the date thereof; which said bill of exchange afterward, and before the same became due, the said L M upon sight thereof accepted; and the said G H then and there indorsed and delivered the said bill of exchange to the said plaintifiF, (or, to one N who then and there indorsed the same to the said plaintiff, ) and the said plaintiff avers that afterward, and on the day when the said bill of exchange became due, the said bill of exchange was presented to the said L M, and the said L M then was requested to pay the sum of money therein specified; but the said L M refused so to do, nor hath he, nor any one else on his behalf, nor hath the said E F, nor any one on behalf of the said E F, paid said sum of money, or any .part thereof; of all which premises the said defendant then had due and legal notice; yet the said defendant hath not paid said sum of money, or any part thereof, to the said plaintiff. Wherefore he prays judgment, etc. IV. Actions against the several Parties to a IfoTE or Bill. 84. INDORSEE v. MAEEB AND IlfDOBSEBS. The said A B, plaintiff, complains of the said C D, E F, G H, L M, and N 0, defendants, for that the said D, on the day of , A. D. 18 , at (place of date,) made his certain promissory note in writ- ing of that date, and then and there delivered the said note to the said E F, and thereby promised to pay to the said E F, or order, $ , in days after the date thereof; and the said E F then and there indorsed and delivered the same to the said G H, and the, said G H then and there indorsed and delivered the same to the said L M, and the said L M then and there indorsed and delivered the same to the said N 0, and the said N then and there indorsed and delivered the same to the said plaintiff; and the said plaintiff further avers that he, the said plaintiff, on the day when the said promissory note was due and payable, presented the same to Xyni.] FORMS OF PETITION. 163 Common Counts. Actions against Parties to a Kote or Bill. the said C D, and then and there requested the said C D to pay the said sum of money therein stated; but that the said C D neglected and refused, on such request, to pay the said sum of money therein stated; of all which the said E F, G H, L M and N severally had due and legal notice; yet •the said defendants, or either of them, have not paid said sum of money, or any part thereof, to the said plaintiff. Wherefore the said plaintiff prays judgment against the said defendants for the sum of $ , together with interest thereon from the day of , A. D. 18 . Note. — ^The code allows an action to be brought by a remote indorsee against the maker and all prior iudorsers. 85. INDOESBB V. AOOBPTOB, DEA-VTBE AND INDOESBRS. The said A B, plaintiff, complains of the said C D, E F, G- H, L M, and N 0, defendants, for that the said E F, on the day of , A. D. 18 , at (place of date,) made his certain bill of exchange in writing of that date, and then and there delivered the same to the said Q H, and •. thereby requested the said C D to pay to the said G H, or order, in days after the date thereof, the sum of $ ; which said bill of exchange the said C D afterward, upon sight thereof, accepted; and the said G H, then and there indorsed and delivered the same to the said L M, and the said L M then and there indorsed and delivered the same to the said N 0, and the said N O then and there indorsed and delivered the same to the said plaintiff; and the said plaintiff avers that, on the day when the said bill of exchange was due and payable, the same was presented and shown to the said C D for payment thereof, and the said C D was then and there requested to pay the said sum of money therein specified; but the said C D did not, nor would at the said time when said bill of exchange was so presented for payment, nor at any time afterward, pay the said sum of money, or any part thereof, but wholly neglected and refused so to do; of all which said several premises the said E F, G H, L M and N 0, afterward had due and legal notice; yet the said defendants, or either of them, have not paid to the said plaintiff the said sum of money, or any part thereof. Wherefore the said plaintiff, etc. ISwan St. 630, Sec. 38. While this section allows all the parties to be joined, it does not change the nature of their liability; the maker is still the principal debtor, and the others are sureties in the order of their being indor?ers. Alfred v. Watkins, 1 Code Rep. N. S. 343; New York Code, 1862, 96, section 120, note. The petition must show that the per- sons 'iu»d are parties to the instrument, and that the legal steps have been 164 FOEMS OF PETiriOH. [OHAP. Special Coonts. Policies of Insurance. taken tc charge them. Hence the petition must aver a demand of the maker on the day the note was due, and notice to the indorsers, and this is necessary even if the petition is filed under section 122 of the code. Swan's St. 640, Sec. 122. Soheld expressly in Bank of Geneva v. Quliok et al., 8 Pr. Rep. 61, by Welles, J.; and very decidedly intimated by Mar- vin, J., in Ranney v. Smith, 6 Pr. Rep. 420; and implied very clearly from the case of Lord v. Cheesebrough, 4 Sandf. Sup. C. Rep. 696. The same rule applies to bills of exchange; ,&e petition must show all the facts necessary to show the liability of the parties to the suit. V. PoLIOIES OF InSDRANCE. 86. ON SEA POLIOT. The said A B, plaintiff, complains of the said ^tna Insurance Com- pany, defendant, for that the said defendant, on the day of , A. D. 18 , at (place where policy bears •date,) caused to be made a cer- tain policy" of insurance of that date, whereby the said defendant, in con- sideration of a certain premium then paid by the said plaintiff to the said defendant, then and there caused the said plaintiff to be insured, lost or not lost, in the sum of $ , (here set out the policy in the exact terms of it down to the '' In toitness.") And the said plaintiff saith that he did ship on board of the said , Hlo said goods and merchandise in the said policy mentioned, io-wit, (here describe them as near as conveniently, or as described in the policy, ) of the value of $ , to be carried and con- veyed therein from the said port of to the said port of , as is in the said policy stated; and the said plaintiff avers that he was the owner of said goods and merchandise at the time of the making of the said policy of insurance, and from thence hitherto, until the loss thereof, as hereinafter set forth, and that the said goods and merchandise were of a greater value than the sum mentioned in said policy; and the said plaintiff further saith that said vessel, (or, steamboat,) did, on the day of, , A. D. 18 , with the said goods and merchandise on board thereof, depart and set sail from aforesaid, on her said voy- age toward the port of aforesaid; and that afterward, and while said vessel (or, steamboat) was proceeding on her said voyage and before her arrival at the said port of , to-wit, on the day of , A. D. 18 , the said vessel (or, steamboat) was, with the said goo^s and merchandise of the said plaintiff on board, by the perils and dangers of the seas, (or lake, or river, as the case may be,) wholly lost, and the said goods and merchandise of the said olaintiff, on board thereof, became and were sunk and wholly lost tc XVin.J FORMS OF PETITION. 165 Special Counts. Folicies of Insurance. the said plaintiff, and never did arrive at aforesaid; of all which the said defendant, afterward, on the day of , A. D. 18 , had notice, and was then requested by the said plaintiff to pay him the said sum of $ , so as aforesaid by said defendant insured on said goods and merchandise; yet the said defendant hath not paid sarid sum of $ , or any part thereof, to the said plaintiff, to the damage of the said plaintiff of $ Wherefore the said plaintiff • prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 87. LOSS BY BEINO RUN INTO. (Jfbllow 86 to the averment _of loi», then proceed:) and the said plaintiff avers that, whilst the said ship or vessel id said policy named, with the said goods and merchandise on board thereof, was proceeding on her said voy- age, and before her arrival at her said port of destination in the said policy of insurance mentioned, a certain other vessel (or, steamboat,) with great force and violence was carried against and ran foul of the said ship in said policy named, and the same thereby then became and was sunk and lost, with the said goods and merchandise of the said plaintiff so shipped thereon, and said goods and merchandise thereby became and were wholly lost to the said plaintiff; of all which said several premises the said defendant, etc., (as in 86.) 88. ON FIBE POLICY. The said A B, plaintiff, complains of the said ^tna Insurance Com- pany, defendant, for that the said defendant, in consideration of a certain premium, by and between the said plaintiff and defendant agreed upon, and by the said plaintiff then paid, to-wit, the sum of # , on the day of , A. D. 18 , at , did, by a certain policy of insurance of that date, duly executed, insure the said plaintiff against loss or damage by fire to the amount of $ , (here copy the whole policy, Twtmclvding the attestation and signing;) and the said plain- tiff further saith that, at the time of the date of said policy of insurance, the said plaintiff was the owner of the said dwelling house and the said furniture, etc., {as stated in policy,) and so continued from thence up and until the time of the said loss hereinafter mentioned; and the said plaintiff further saith that he has duly kept, observed and performed all the require- ments and conditions contained in said policy, and in the schedule thereto ' attached, by. him, the said plaintiff, to be kept, observed, and performed in that behalf; and the plaintiff further avers that afterward, on the day 166 FORMS OF PETITION. [CHAP. Special Counts. Policies of Insurance. of , A. D. 18 , the said dwelling house and the said furniture, (or, goods, as in policy,) named in said policy, became and were consumed and wholly destroyed by fire; of all which the said defendant afterward, to-wit, on the day of , A. D. 18 , had due and legal notice; and, the said plaintiff further saith that he has been damaged by the burning of the said dwelling house and furniture, to the amount of the said sum of $ , and over; yet the said defendant, although the said plaintiff has duly done and performed, all and singular, the requirementa and conditions by said policy and the schedule thereto attached required to be done and performed by the said plaintiff, to entitle him to the payment of said amount of loss so sustained by said plaintiff, and to render the said defendant liable to pay the same, not regarding his said duty in the prem- ises, did not, nor would pay the said sum of $ , nor any part thereof, to the said plaintiff, but hitherto and still refuses so to do, to the damage of the said plaintiff of $ Wherefore the said plaintiff prays judgment against the said de- fendant for the said sum of $ , his damages so as aforesaid sustained. The general averment of the performance of conditions is suffi- cient under the code. Swan's St. 640, Sec. 121. "In pleading the per- formance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part." The defendant can then take issue on the performance of any of the conditions stated in the contract. Hence all the conditions must be set forth, and in this case not only the policy, but the schedule attached to the policy, should be set out in the petition. Where a policy has a condition that the insured, in case of a loss, shall give immediate notice thereof, and within three calendar months deliver, under his hand, accounts exhibiting the loss sustained, etc., the insured is not entitled to recover unless he has so made out the accounts within the three months. Mason v. Harvey, 20 Eng. L. and Eq. Rep. 541. So where he was to get the certificate of a minister as to the loss, he can not recover unless he can obtain such certificate. Worsley v. Wood, 6 T. R. 710; S. C. 2 H. Bl. 574. The same doctrine is recognized in Moore v. Protection Ins. Co., 29 Maine Rep. 97. But if the party has once submit- ted to an examination, where that is required, he has fulfilled the condition,, even if he refuses to be further examined. Ibid. This defense, in 20 Eng. L. and Eq.R. 641, was set up by a plea set- tinir forth the condition; hence it seems it need not be stated in the declaration. XVJU.J FOEMS OF PEirTION. 167 Special Counts. Oa Awards. VI. Oh AwABoa. 89. ON PAROL SUBMISSION. The said A B, plaintifif, complains of the saiil C D, defendant, for that, before the making of the promises of the said defendant hereinafter men- tioned, certain differences and disputes had arisen and were depending between the said plaintiff and the said defendant, touching and concerning certain dealings before that time had by and between the said parties; and thereupon, for the putting an end to said differences and disputes, the said plaintiff and the said defendant, on the day of , A. D. 18 , respectively submitted themselves to the award of one E F, to be made between them of and concerning the said differences and disputes; and in consideration thereof, and that the said plaintiff, at the request of the said defendant, had then and there promised the said defendant to per- form the award of the said E F, to be so made between the said plaintiff and the said defendant, of and concerning the said differences and dis- putes, in all things therein contained, on. the said plaintiff's part in that behalf to be performed, he, the said defendant, promised the said plaintiff to perform the said award in all things therein contained, on the behalf of said defendant to be performed.' And the said plaintiff saith that the said E F, having taken upon himself the burden of the said arbitrament, did, on the day of , A. D. 18 , (date of the award,) make his certain award between the said plaintiff and the said defendant, of and concerning the said differences and disputes, and did thereby award that, (here set forth the award in words, or according to its legal effect, and then aver a non-performance of his part; if there are any acts to he done hy the plaintiff before he has a right to recover what he sues for, a performance of all such acts must be averred preceding an averment of the drfault of the defendant, ) the said defendant should, on the day of , A. D. 18 , pay to the said plaintiff the sum of $ , in full satisfac- tion and discharge of the said matters in difference and dispute; of which said award the said defendant then and there had notice; and the said plaintiff saith that, on the said day of , A. D. 18 , he, the said plaintiff, requested the said defendant to pay him, the said plaintiff, the said sum of $ , according to the tenor and effect of said award; yet the said defendant did not, nor would, when so requested as aforesaid, or at any time since, pay the said sum of $ , or any part thereof, but to do so hath hitherto wholly refused. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , together with interest thereon from the said day of , A. D. 18 . 168 ' FOKMS OF PETTriON. [CHAP. Special Counts. On Awards. Parol submission is binding. 1 Saund. Eep. 28; 8 T. R. 571; 5 East. Rep. 139; Shepherd v. Watrous, 3 Caine Rep. 166; Mitchell v. Bush, 7 Cow. Rep. 187; Titus v. Scantling, 4 Blackf. Rep. 89; 6 Dana Rep. 9. On a parol submission, the award can not be made a rule of court Shearer v. Mooers, 19 Pick., Rep. 308. ^ A.S to whether an averment of notice is necessary, see 2 Saund. Rep. 62, a, n. 4;.9 Mass. Rep. 198; 7 B. and C, 494. Where the award provided that on payment a release should be given, it was held necessary to aver a tender of the release when demanding the money.. Huggy v. Collins, 3 Har. Rep. 294. Where, however, moneys are directed to be paid by one to the other simply, no demand is necessary. Nichols V. Rensselaer Ins. Co., 22 Wend. Rep. 126. 9 0. ON AN AWARD WHEEB SUBMISSION IS BY DEED OK BOND. The said A B, plaintiff, complains of the said C D, defendant, for that certain diflferences having arisen and being depending between the said plaintiff and the said defendant, the said plaintiff and defendant entered into certain articles of agreement, under their respective seals,- to submit such differences to the arbitrament of , and which agreement is to the substance and effect following, that is to say: [here »et ovt the agreement to arbitrate, either literally or in its legal effect.) And the said plaintiff further saith that the said E F, etc., (the arbitrators named,) hav- ing taken upon themselves the burden of the said arbitration, did, in due manner and within the time limited for that purpose in said agreement, on the day of , A. D. 18 , (date of the award,) duly make and publish their award in writing, subscribed with the proper hand of each of said arbitrators of and concerning the said matters in difference between the said parties, ready to be delivered to the said parties, or to such of them as should desire the same, and bearing date the said day of , A. D. 18 , and did thereby award and direct' (^eresrf out the award, or so much as is necessary to show the plaintiff's right to recover what he claims, and then aver a performance of all acts to be done by plaintiff as conditions precedent to his right to demand what he sues for, and then aver a non-performance by the defendant of his part of the award; 'what follows mil illustrate what is meant: ) that the said plaintiff should deliver to the said defendant a certain note of hand, given by one , to the said defendant, and which note was then in the hands of said plaintiff, and that said defendant should then pay to the said plaintiff the sum of $ , and the plaintiff avers that afterward, to- wit, on the day of , A. D. 18 , he did tender and offer to the said defendant the said note of hand above described, and then and XVin.] FOEMS OF PKTITIOW. 169 • Special Counts. On Awards. For Forbearance of Debts Due. there requested the said defendant to pay the said sum of f , in said award named, to the said plaintiff; but the said defendant then and there refused to receive the said note of hand, and did not, nor would pay the said sum of $ •, but hitherto hath wholly refused so to do; and the said plaintiff brings here into court the said note of hand, ready to be delivered to the said defendant whenever he will receive the same. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , together with interest thereon from the said day of , A. D. 18 . An award need not be under seal unless required to be by the article of submission. The award must show that the arbitrators met at the place specified in ike submission. Strum v. Cunningham, 3 Ohio Rep. 286. It must be final. Thomas v. Moler, 3 Ohio'Rep. 266. So where the award directed notes to be given by a party, with such security as certain persons named should approve of, it was held not to be final and void, because something was yet to be done; the security was to be approved of. Maxon v. Payne, Nash's Dig. 24, Sec. 6. VII. Foe Foebeabanoe of Debts Due. 91. TO PAT FOE FORBEARANCE OP DEFENDANT. The said A B, plaintiff, complains of the said C D, defendant, for that before the making of the promise of the said defendant hereinafter men- tioned, the said plaintiff had commenced a certain action against the said defendant in the Court of Common Pleas, within and for the eouniiy of , for the recovery of certain money then claimed by the said plaintiff to be due and owing to him from the said defendant; and whilst the said action was still pending in said court, in consideration that the said plaintiff would dismiss and discontinue his said action at the costs of him, the said plaintiff, the said defendant did, on the day of , A. D. 18 , promise the said plaintiff to pay him, the said plaintiff, the sum of $ , in full discharge and payment of the said claim of the said plaintiff against the said defendant, in days after the said action should be so dismissed and discontinued; and the said plaintiff avers that he did then and there agree to, and did then and there dismiss and discontinue the s'aid action at his, the said plaintiff's own cpsts and charges; and that he did then and there notify said defendant that said action had been so dismissed, whereby the said defendant became liable to pay said sum of $ , in days from and after the said 170 FORMS OF PETITION. fcHAP. Special Counts. For Forbeai-ance of Debts Due. On Warranties. day of , A, D. 18 ; yet the said defendant hath not paid said sum of $ , or any part thereof, to the said plaintiff, although said per;od is elapsed and said defendant has been often requested so to do. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , together -ffith interest thereon from the said day of , A. D. 18 . 92. FOB FOBBEABANOE TO A THIBD FEBSON. The said A B, plaintiff, complains of the said C D, defendant, for that one E F, before and at the time of the making of the promise of the said defendant hereinafter mentioned, was indebted to the said plaintiff in the sum of $ , and thereupon, on the day of , A. D. 18 , in consideration of the premises, and that the said plaintiff, at the request of the said defendant, would forbear and give time to the said E F, for the payment of the said sum of $ , until the flay of , A. D. 18 , (this must agree vAth facts,) he, the said defendant, then and there promised the said plaintiff to pay him the said sum of $ , in case the said E F should not, on or before the said day of , A. D. 18 ; pay to the said plaintiff the said sum of $ , {let this statement agree with the facts.) And the said*plaintiff avers that, confiding in the said promise of the said defendant, he did forbear and give time to the said E F for the payment of the said sum of % , until the said day of , A. D. 18 ; yet the said E F did not nor would pay the said sum of $ to the said plaintiff on or before the said day of ,^A. D. 18 , nor hath he since paid said sum; of all which the said defendant afterward, on the said day of , A. D. 18 , had notice; yet the said defendant hath not paid said sum of money, or any part thereof, to the said plaintiff. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of % , together with interest thereon from the said day of , A. D. 18 . VIII. On 'Waeranties. 93. WAKEANTT OP HOBSES AND CATTLE TO BE SOUND. The said A B, plaintiff, complains of the said D, defendant! for that the said defendant, on, the day of , A. D. 18 , in con- sideration that the said plaintiff, at the request of the said defendant, would buy of the said defendant a certain horse, (cow, ox, teheep, mule, jack, etc., ) at and for a certain price or sum of money, to-wit, for the sum of $ , to be therefor paid by the said plaintiff, he, the said defAidant, XVra.J FOEMS OF PETITION. ■ 171 Special Counts. On Wan'anties. then promised the said plaintiff that the said horse, (or, cow, etc.,) was sound, (or, free from vice, or,- broken to draw, gentle in harness, a good saddle horse, or any other partieuTar wherein the animal is warranted; as, that a cow was a good milker and would give per day a certain quantity of milk. The warranty must he stated according to the fact. ) And the said plaintiff avers that he, confiding in the promise of the said defendant, did then buy the said horse, (or other animal as the case is,) of the said de- fendant, and then paid him therefor the said sum of $ ; yet the said defendant did not perform his said promise"; for that the said horse at the time of making said promise was not sound, but unsound, and became of no use to the said plaintiff; and the said plaintiff hath been put to expense in feeding, keeping, and taking care of said horse, amounting to the sum of $ ; and the said plaintiff avers that he hath sustained damages by reason thereof to the sum of $ Wherefore he prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 94. ON AN EXECUTED C N S ID B K AT I N . The said A B, plaintiff, complains of the said C D, defendant, for that on the day of , A. D. 18 , in consideration that the said plaintiff, at the request of the said defendant, had then bought of the said de- fendant a certain horse, (or, cow, etc.,) at and for a certain price then agreed upon between the said plaintiff and the said defendant, he, the said defend- ant, then promised the said plaintiff that the said horse, (or other animal,) at the time of the said sale thereof, was sound; yet the said plaintiff saith that, at the time of said sale, the said horse was not Sound, but unsound, and became wholly useless and of no value to the said plaintiff; whereby the said plaintiff has sustained damages to the sum of $ , as he avers. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 95. WARRANTY ON AN EXOHANQB. The said A B, plaintiff, complains of the said C D, defendant, for that, on the day of , A. D. 18 , in consideration that the said- plaintiff, at the request of the said defendant, would deliver to the said defendant a certain horse, (or other animid, as the case may he,) of the said plaintiff, of the value of $ , in exchange for a certain mare of the said defendant, he, the said defendant, then promised the said plaintiff that the said mare of the said defendant was then sound; and the said plaintiff avers that he, confiding in the said premise of the said defendant. 172 FOBMS OF PETITION. [OHAP. Special Counts. On Warranties. did afterward then deliver to the said defendant the said horse of the said plaintiff, (if any money wag paid, add: and paid to the said plaintiflf the sum of $ , ) in exchange for the said mare of the said defendant; and the said plaintiff avers that, at the time of the said exchange, the said mare of the said defendant was not sound, but, on the contrary, was unsound; whereby the said plaintiff has sustained damages to the amount of $ Wherefore he prays judgment against the said defendant for the said sum of $ , bis damages so as aforesaid sustained.. These forms can be applied to any description of warranty, of things, goods, and chattels, as well as of animals. The warranty, being a con- tract, must be correctly described, and be as comprehensive as the breach complained of; all exceptions must also be set out. Therefore, if a horse be warranted sound, except a kick in the leg, the exception must be stated. 4 B. and C, 446. The vendor of personal property warrants the title to it. This the law implies. Darst v. Brockway, 11 Ohio Rep. 462; 3 T. R. 67; Chancellor V. Wiggins, 4 B. Monroe 201. Nor will the implication be' excluded, when the sale is made by a deed without warranty. Trigg v. Faris, 6 Humph. Rep. 343, 496; Kingsbury v. Taylor, 29 Miine Rep. 608; 2 Sand. S. C. Eep. 89. \ A good price does not imply a warranty on soundness. 2 East. Rep. 314; 4 Camp. Rep. 144; 9 Porter Rep. 104; Welsh v. Carter, I Wend. Rep. 1 86; Dresser v. Ainsworth, 9 Barb. Rep. &19. This rule does not apply where the property is not in the possession of the vendor at the time of sale. Edick v. Crim, 10 Barb. Rep. 446. Where, however, an article is sold to be used for a particular purpose, there is an implied warranty that it will answer for that purpose, at least against all defects not visible. Bren- '*ton V. Davis, 8 Blackf. Rep. 317; 8 do. 618. Dickson v. Jordan, 11 Ired. 272, seems contra. This last was the sale of a rope, which turned out not fit for the purpose for which bought. Yet if the vendee asks for a carriage horse, the vendor undertakes impliedly that he is a carriage horse. 2 Chitty PI. 278; 6 Bing. Rep. 644; 4 Camp. Rep. 169; 6 Taunt. Rep. 108; 4 B. and C. 116. A .warranty may be implied from the production of a sample. 4 Camp. R«p. 22, 144, 169; 4 B. and A. 387; 3 Starkie R. 32. The vendor is re- sponsible that the bulk of the commodity shall be equal to the sidcple in quality. Andrews v. Kneeland, 6 Cowen Rep. 354; Oneida Manuf. Co. v. Lawrence, 4 do. 440; Bradford v. Manley, 13 Mass. Rep. 139; Gallagbet XVin.J FOEMS OF PETITION. 173 Special Counts. On Warranties.. V. Warring, 9 Wend. Eep. 20; 12 do. 413, 566; Williams v. Spofford, 8 Pick. Rep. 250. , V- A general warranty will not extend to defects that are plain and obvious to the senses of the purchaser. 2 Bla. Com. 166; 1 Salk. Rep. 211; 2 Bing. Rep. 183; 6 B. and A. 240; 3 Camp. Rep. 1,54. The particular description of unsoundness need not be stated. 2 Chitty PL 280; Com. Dig. Pleader, C. 46; 2 Saund. Rep. 181, b; 3 T. R. 307; 1 Chitty PL 291. And where even special defects were stated, it was held that other defects might be shown under the general averment of unsound- ness. Fleming v. Toler, 7 Grattan Rep. 310. 90. ON WARRANTY TO PACK UP MEAT OR HAMS FOR A PARTICULAR MARKET. The said A B, plaintiff, complains of the said C D, defendant, for that on the day of , A. D. 18 , in consideration that the said plaintiff, at the request of the said defendant, had then promised the said defendant to buy of the said defendant, (here describe goods generally, as, barrels of pork, tierces of shoulders, 1000 hams, etc.,) for a certain price then agreed upon between the said plaintiff and the said defendant, amount- ing to $ ) he, the said defendant, then promised the said plaintiff to furnish said goods and merchandise as aforesaid, properly preserved and packed up for the English market, and to put the same up properly for a voyage to the said English market; and the said plaintiff avers that, confi- ding in the said promise of the said defendant, he, the said plaintiff, did then buy of the said defendant, (Aere set forth the goods bought,) as and for the same goods and merchandise so agreed to be bought as aforesaid, and which the said defendant then supplied and furnished to the said: plain- tiff, as and for such goods and merchandise; yet the said plaintiff saith that the said defendant did not, nor would furnish such goods and merchandise fit to be sent to the English market as aforesaid, or pack them properly for the said voyage; but the said plaintiff saith that the goods and merchandise were so negligently and improperly preserved and put up, that by reason thereof, the same were wholly unfit for the purpose aforesaid, and the said plaintiff thereby lost all benefit thereof, and was put to the. expense of $ , in and about the shipping and conveying the same to the said English market as aforesaid; whereby the said plaintiff has sustained dam- ages, as he avers, to the amount of $ Wherefore he prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 174 . FOEMS OF PETITION. [CHAP. Special Counts. On 'Warranties. Sale of Real Estate. 97. ON WARRANTY OP MILLSTONES. The said X B, plaintiff, complains of the said C D, defendant, for that, in consideration that the said plaintiff, at the request of the said defendant, would buy of him the said defendant, a certain pair of French buhr mill- stones, four feet -in diameter, made by W. W. Wallace, of the city of Pittsburg, at and for a certain pri«e then agreed upon by and between the said plaintiff and defendant, he, the said defendant, promised the said plaintiff that the said millstones were then good both in quality and work- manship; and the said plaintiff avers that, confiding in said promise of the said defendant, he did then buy the said millstones of the .said defendant; and the said'^laintiff saith that the said millstones were not then good both in quality and workmanship, but were defective and became useless to the said plaintiff to his damage $ The said plaintiff, therefore, prays judgment against the said C D for the said sum of $ , his damages so sustained. Note. — The price or amount paid for the article warranted need not be stated; bnt if stated it must be proved as stated. McMillan «. Theater, 12 Ohio Eep. 24; S Biag. Eep. 472; 1 T. B. 447: 2 Ld. Eaymond, 792; 1 Ohitty PI. 826; 3 T. E. 67; 3 M. and S. 173; 6 East. Eep. 563; 18 do. 102; 3 Day Eep. 312. Breach maybe assigned as broad as the covenant. 1 Hall Eep. 83. IX. RsLATIirO TO THE SaLE OF BeAL EsTATE. 98. AGAINST VENDOR OF REAL ESTATE SOLD AT AUCTION FOR NOT HAKINO A GOOD irTLE. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , caused to be put up and exposed to sale by public auction, the following real estate; that is to say: (here describe the premises as in parttcvlars of sale,) upon and subject to the following conditions; that is to say: {here set out any conditions which may have reference to the plaintiff's claim as they appear in the particulars of sale; set them out in the past tense;) that the purchaser should pay to the vendor, or his agent, a deposit of $ per cent, in part of the purchase money, and should likewise pay one-half of the auction duty, and should pay the residue of the purchase money, and complete the purchase on or before the day of then next, and that a good title should be made out at the expense of the vendor; and upon payment of the residue of the purchase money, a proper conveyance at the expense of the purchaser. And the said plaintiff saith that on such exposure to sale as aforesaid, he, the said plaintiff, became and was the purchaser of the said premises, upon and according to the said conditions. xvm.] FOKMs OF PE-rrnoN. '176 Special Counts. Relating to Sale of Real Estate. for the price of $ , and then paid to the said defendant the sum of $ , as a deposit of $ per cent., 'in part of the said purchase money, and $ , as one-half of the said auction duty, payable in that behalf; and the said plaintiff further saith that, in consideration of the premises, the said defendant then promised the said plaintiff to perform all things in said conditions of sale contained on the vendor's part to be per- formed; and the said plaintiff further saith that, on the said day of then next after, he, the said plaintiff, was ready and -willing to perform all things in said conditions contained on his behalf, as such pur- chaser, to be performed, and to pay the residue of the said purchase money, and to complete the said purchase, whereof the said defendant then had notice, and was then requested by the said plaintiff to make to him a good title to the said premises; but yet the said defendant did ilot, nor would, when so requested, or at any time since, make or procure to be made to the said plaintiff a good title to the said premises, but hath hitherto wholly neglected and refused so to do: by reason whereof the said plaintiff has been deprived of all benefit which would have resulted to him from the completion of said purchase, and hath been put to the expense of $ , in endeavoring to procure such title as aforesaid, and from the use of the said moneys so paid and advanced as aforesaid, to his damage, as he saith, $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 99. VENDOR V. PURCHASER FOR NOT COMPLETING SALE WFTH LOSS ON A RESALE. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, on the day of , A. D. 18 , by one E F, his auctioneer and agent in that behalf, caused to be put up and exposed to sale, by public auction, the following real estate, that is to say: (here describe it as briefly as possible, so that the description will identify the land, ) upon and subject to the following conditions of sale, {here set out all that relates to defendant's purchase and the cause of action, as in the last form. ) And the said plaintiff further saith that the said defendant was then the highest bidder for, and then became, and was in due manner declared to be, the purchaser of the said premises, at and for the sum of $ ; and thereupon the said defendant, in part performance of the said condition of sale and of his said purchase, did then pay down the sum of $ , that being for the per cent, on the said sum of $ , as a deposit, and did then sign an agreement in writing' for the payment of the residue of such purchase money on or before the said day 176 FOEMS OF PETITION. [cHAP. Special Counts. Guaranties, of , A; D. 18 , on having a good title; and the said plaintiff avers that, before and after the said day of , A. D. 1 8 , he, the said plaintiff, was ready and willing to make, and did offer to make, to the said defendant a good and sufficient title in fee simple to the said premises, and did then offer and tender to deliver to the said defendant a proper conveyance of the said premises, conveying from the said plaintiff to the said defendant a good title in fee simple to said premises, with cove- nants of general warranty upon the payment of the residue of the said purchase money, according to the conditions of said sale; yet the said defendant did not, nor would, on or before the said day of , A. D. 18 , oii having such good title, or at any other time, pay to the said plaintiff the residue of the said purchase money, or any part thereof, but then wholly refused so to do; and thereupon the said plaintiff after- ward, on the day of , A. D. 18 , by virtue of said con- ditions of sale, again exposed said premises to sale by public auction, and the same were then resold for the sum of ?? , whereby there was a loss to the said plaintiff of $ on such resale, and the charges attend- ing the same amounting to the sum of $ ; of all which said prem- ises the said defendant afterward had notice, and became liable to pay to the said plaintiff the said sums of $ , and of $ aforesaid; yet the said defendant, though afterward, on the day of , A. D. 18 , requested so to do, has not paid said several sums of money, or any part thereof, to the said plaintiff, to his damage $ Wherefore the said plaintiff prays judgment against the said defendant for the said sums of $ , his damages so as aforesaid sustained. Note. — Interest will run from the day of the demand, as he did not become liable to pay till such notice and demand. X. On Suaeanties. 100. FOE PAYMENT OP GOODS SOLD TO ANOTHBE PARTY. The said A B, plaintiff, complains of the said C D, defendant, for that on the day of , A. D. 18 , in consideration that the said plaintiff, at the request of the said defendant, would (Acre set ovt the terms of the- guarantee as relates to the consideration for it. It may be given as follows as a sample:) sell and deliver to one E F on credit all such goods as he, the said E F, should have occasion for, and require of the said plain- tiff, in the way of his trade and business of hemp merchant, he, the said defendant, promised the said plaintiff (here set out the promise according to its legal effect, or in words:) to be accountable to the said plaintiff for what- ever goods he, the said plaintiff, should sell and deliver to the said E F, as XVin.j FOEMS OF PETITION. 177 Special Counts. Ouaranties. aforesaid. And the said plaintiff avers that he did sell and deliver to the said E F on credit certain goods, which he, the said E F, had occasion fur, and did require of said plaintiff, in the way of his said trade and business, and for reasonable prices, then agreed upon between the said plaintiff and the said E F, amounting in the whole to the sum of $ ' , and that the credit and time for payment of the said -goods by the said E F to the said plaintiff has long since expired, and yet the said E F has not paid the said plaintiff the said sum of $ , or any part thereof, but hath wholly neglected so to do; of all which premises the said defendant on the day of , A. D. 18 , had notice; yet the said defendant hath not as yet paid to the said plaintiff the said sum of $ * , although he was, on the said day of , A. D. 18 , requested by said plaintiff so to do;, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against.the said defendant for the said sum of $ , his damages so as aforesaid sustained. The sum demanded of the defendant should be enough to cover the sum due from E F at time of demand, and the interest to be calculated thereon. He was bound to pay what E F owed at the time of the demand; hence- that sum is his debt. As to the law of guaranties, see 12 East. Rep. 237; 2 Camp. Rep. 413; 8 Ring. Rep. 244; 1 R.and C. 10; ISVes. Jr. 286; Packard v. Richardson, 17 Mass. Rep. 122; 17 Wend. Rep. 179. Guarantor is entitled to a notice that his guaranty has been accepted. Oaks V. Weller, ISVermt. Rep. 106; Hawk v. Crittenden, 2 McLean Rep. 567; 2 do. 21; How v. Nichols, 9 Shipley Rep. 175; Hill v. Colvin, 4 How. Miss. Rep. 231. Where the guaranty relates to a bill of goods, the guarantor must be immediately notified of its acceptance. Taylor v. Wetmore, 10 Ohio Rep. 490. This notice must be given in a reasonable time. Mussey v. Raynor> 22 Pick Rep. 223. A reasonable time, however, must be as soon after the credit as a party can conveniently send the notice. Norton v. Eastman, 4 Greenlf. Rep. 521; Tuckerman v. French, 7 do, 115; Babcock v. Bryant, 12 Pick. Rep. 133; Beekman v. Hale, 17 John. Rep. 134; 3 Cowen Rep. 438; 1 Mason Rep. 324. The guaranty must, under the statute of frauds, be in writing. The considei-ation, however, need not be stated in the writing. Packard v. 'Richardson, 17 Mass. Rep. 122. A guaranty addressed lo a particular firm or individual does not author- ize any but the person or persons addressed to give a credit on it. Taylor V. Wetmore, 10 Ohio Rep. 490. 12 178 FOEMS Olf PETITION. ["CHAP Special Counts. On Promises to Marry. XI, On Fkomises to Mabbt. 101. NOT MABBTINS ON BEQUEST. The said A B, plaintiff, complains of the said C D, defendant, for that on the day of , A. D. t8 , in consideration that the said plaintiff, bejng tjien sole and unmarried, at the request of the said defend- ant, had then promised the said defendant to marry him, the said defendant, •when she, the said plaintiff, should be thereunto afterward requested, he, the said defendant then promised the said plaintiff to marry the said plaintiff, ■when he, the said defendant, should be thereunto afterward re- quested; and tlje said plaintiff avers that she, confiding in taid promise of the said defendant, has always, from thence hitherto, remained and still is sole and unmarried, and has been for and during all the time aforesaid, and still is, *ady and willing to marry the said defendant, whereof the said defendant has always had notice; and the said plaintiff afterward, to-wit, on the day of , A. D. 18 , requested the said defendant to marry her, the said plaintiff; yet the said defendant then refused so to do, nor would, at the said time when he was so requested, or at any time before or since, marry the said plaintiff, but hitherto has wholly refused so to do; to the damage of the said plaintiff, as she avers, $ Wherefore the said plaintiff prays judgment against said defendant for the said sum of $ , her damages so as aforesaid sustained. 03. FOB MABBYINO ANOTHEB. (State the promise as in the last form, and the breach as follows:) yet the said defendant, not regarding his said promise, did, after the making of said promise, on the day of , A. D. 18 , wrongfully marry one , contrary to his said promise, and to the damage of the said plaintiff, as she avers, $ Wherefore the said plaintiff prays judgment, etc. 103. ON PBOMISK TO MAKBY IN A BEASONABLE TIME. The said A B, plaintiff, complains of the said C D, defendant, for that on the day of , A. D. 18 , in consideration that the said plaintiff being then unmarried, at the request of the said defendant, had then promised the said defendant to marry him, the said defendant, he, the said defendant, promised the said plaintiff to marry her, the said plaintiff, in a reasonable time then next following; and the said plaintiff avers that, confiding in said promise of the said defendant, she has always hitherto remained, and still is, unmarried, and hath been during all of said time, and stijl is, ready and willing to marry the said defendant; of all which the Xym.] FORMS OF PETJTION. .179 Special Counts. On Promises to Marry — To Serve and Employ. said defendant has always had notice; and the said plaintilOf avers that a reasonable time has elapsed for the said defendant to marry the said plain- tiff since the making of the said promise of the said defendant; and that the said plaintiff, after the lapse of such reasonable time, did, on the day of , A. D. 18 , request the said defendant to marry her, the said plaintiff; yet the said defendant then, and before, and ever since the said time of the making of said request, did not, nor would, within such reasonable time, or at any other time, marry the said plaintiff; but hitherto hath wholly refused so to do, to the damage of the said plaintiff as she avers, ® Wherefore she prays judgment against the said defendant for the said sum of $ , her damages so as aforesaid sustained. NoTB. — ^Where the promise is to marry on a fixed day, the above forms oan be easily adapted. The averment of the promise will be to marry on such,a day, and the breach that he did not marry on that day, thoagh the defendant was then ready and willing, nor at any other time. XII. On Promises to Serve and Employ. 104. FOR NOT RECEIVING ONE HIRED. The said A B, plaintiff, complains of the said C D, defendant, for that, on the day of , A. D. 18 , in consideration that the said plaintiff, at the requesf^ of the said defendant, had then agreed with the said defendant to enter into his, the said defendant's service, as , and td serve' the said defendant in that capacity at the rate of $ per year, (or, month, or, week,) to be paid therefor by the said defendant to the said plaintiff during his continuance in said service, he, the said defendant, then promised the said plaintiff to receive him into the service of the said defendant, in the capacity aforesaid,, and to retain and employ him in such service for the wages aforesaid, and the said plaintiff avers that, confiding in the said promise of the said defendant, he hath always been ready and willing to enter into the service of the said defend- ant, in the capacity aforesaid, for the wages aforesaid; and that the said plaintiff afterward, on the day of , A. D. 18 , requested the said defendant to receive the said plaintiff into the service of the said defendant in the capacity aforesaid, and to retain and employ him in such service at the w;ages aforesaid; yet the said defendant did not, nor would, at the time he was so requested, or at any time afterward, receive the said plaintiff into the service of the,said defendant, or retain or employ him in such service, at the wages aforesaid, but wholly neglected and refused so to do; whereby the said plaintiff not only lost the benefit of being so employed. 180 FORMS OF PETITION. (CHAP. Special Counts. On Promises to Serve and Employ. • but lost various chances of being employed by divers other persons, and remained out of employment for the space of months then next ensuing, and necessarily expended $ in preparing and going to the said defendant, to enter upon said service, and was otherwise greatly injured, to the damage of the said plaintiff, as he avers, $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 10 5. ON A BmLDINS AGREEMENT; FOR NOT DOING PART, AND DODfO BALANCE BADLT. The said A B, plaintiff, complains of the said C D, defendant, for that, on the day of , A. D. 18 , (date of agreemetU,) by a certain agreement then made by and between the saFd plaintiff and the said defendant, it was agreed that the said defendant, {here set out the agreement in words, or its legal effect, ) and the said plaintiff saith that he did duly perform, all and singular, the conditions aforesaid on his part to be per- formed; but that the said defendant, not regarding his said promise, did not, nor would perform, {here set out the work not done, or left undone,) and the said plaintiff further avers that the said defendant performed and did the residue of the said work in so bad, unskillful, and unworkmanlike manner; that the same was of little or no value to the said plaintiff, to the damage of the said plaintiff, as he avers, .$ Wherefore the said plaintiff prays, etc. •( Where the workman finds materials, an averment of bad mate- rials may be inserted, if such was the fact. Under the system of making oath to any pleading, great care must be taken in setting out these special agreements, and forms can be used only as guides and hints as to the necessary averments and the order of their arrangement. As to conditions precedent, their performance can be specially averred, or generally, under the code. Where there is to be no dispute on the per- formance of them, the general form is well enough; but where issue is to be taken on the performance of any condition, it will be best to aver -a spe- cific perfonnance, and the defendant will f aen have specifically to meet it by a denial; so that there can be, on the trial, no uncertainty as to what is in issue between the parties. The rule for declaring on the specia / agreements is plain: '1. The contract must be set forth. 2. That the plaintiff did all he was to do on his part; that he furnished all lumber,' if he was to do it; that he paid all sums he was to pay; and any other act which must precede the doing of the act for the not doing of ■which he sues. XVni.] FOEMS OF rpXITION. 181 Special Counts. Against Agents, etc. , 3. That the defendant either did not do the work or act he was to do, or that, doing it, he did it badly and in an improper manner. 4. The statement of the damages sustained. If special damages have been sustained, these must be specially set out in the petition, or they can not be recovered. Numerous forms may be found in 2 Chitty on PI. 324 and Seq. XIII. Against Agents, etc. 106. FOR SELLING GOODS OONTRART TO OEDBK. The said A.B, plaintiff, complains of the said C D, defendant, for that, on the day of , A. D. 18 , in consideration that the Baid plaintiff, at the request of the said defendant, had retained and em- ployed the said defendant to sell and dispose of, for cash or approved bill, at a short date, certain goods and merchandise, to-wit: (here state the goods,) of the said plaintiff, of the value of $ , for commission and reward to the said defendant in that behalf, he, the said defendant, then promised the said plaintiff to endeavor to sell and dispose of the said goods and chattels on the terms and conditions aforesaid; yet the said defendant, oil the day of , A. D. 18 , did sell aind dispose of the said goods and merchandise of the said plaintiff for the sum of $ , otherwise than for cash or an approved bill at a short date, but did sell and dispose of the same for a bad and insufficient bill of exchange, which hath become and is of no value to the said plaintiff, so that the plaintiff hath lost the whole of said sum of $ , for which said goods' and merchandise were so as aforesaid sold and disposed of by the said defendant, to the damage of the said plaintiff, as he avers, § Wherefore he prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. Note. — The damages in Biioh a case are the amount of the bad bill, with interest ihereon, and should be stated high enough to meet the sum due at the trial. 10 7. FOE SELLING ON CKBDrT, WHEN ORDERS WERE TO SELL FOE CASH. The said A B, plaintiff, complains of ihe said C D, defendant, for that the said plaintiff, on the day of , A. D. 18 , delivered to the said defendant the following goods and chattels: (here describe goods and chattels, ) as his agent and factor to sell and dispose of the same for cash, and not otherwise, and the said defendant then received said goods 182 FOEMS OF PETITION. [CHAP. < Special Counts. Against Wharfingers. and chattels, and promised the said plaintiff to sell and dispose of the same on the terms aforesaid; yet the said defendant afterward, to-wit, on the day of , A. D. 18 , did sell and dispose of said goods and chattels upon credit, and otherwise than for cash, to one E F, for the sum of $ , which said sum remains and is still unpaid to the said plaintiff, and the said E F has become and is wholly insolvent, and the said plaintiff is likely to lose the same, to the damage of the said plaintiff, as he avers, $ Wherefore the said plaintiff prays judgment against the said defendant for the said siun of $ , his damages so as aforesaid sustained. XIV. Against Whaefinoees. 10 8. FOB LOSmS GOODS DELIVERED TO BE SHIPPED ON A PABTIOULAX VESSEL, .ETC. The said A B, plaintiff, complains of the said C D, defendant, for that before, and at the time of making the promise hereinafter stated, the said defendant was a wharfinger, and pursued the business of such wharfinger at ' , in the county of , and that thereupon, on the day of - , A. D. 18 , in consideration that the said plain- tiff, at the request of the said defendant, delivered to the said defendant, at and upon the said wharf, the following goods and chattels, that is to .say: (here describe poods and chattels,) of the said plaintiff, of the value of $ , to be by the said defendant safely kept at and upon said wharf, and from thence to be shipped in and on board of a certain ship or vessel, (if the vessel be named, say, a certain ship called ,) for the pur- pose of being carped therein to for reasonable wharfage and reward to the said defendant in that behalf, he, the said defendant, then promised the said plaintiff that he the said defendant would safely keep the said goods and chattels at and upon said wharf, and would ship the same in and on board of the said ship or vessel, in manner and for the purpose aforesaid; and the said defendant then received said gfoods and chattels for the purpose aforesaid, and might have shipped the same in and on board of the said ship or vessel, in manner and for the purpose aforesaid; yet the said defendant did not, nor would, safely keep the said goods and chattels at and upon said wharf, nor ship the same in and on board of the said ship or vessel, in manner and for the purpose aforesaid; but, on the contrary thereof, he, the said defendant, so carelessly conducted himself in this behalf that, by and through the mere carelessness and negligence of the said defendant and his servants in that behalf, the said goods and chattels. XVin.] FOItMS OF PETITION. 183 Special Coants. On By-Laws and Statutes. of the value of # aforesaid, became and were wholly lost to the said plaintiff, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant, for the said sum of $ , his damages so as aforesaid sustained. XV. On By-Laws and Statutes. 109. FOR KBEPDfO GXJNPOWDER IN A. OrTT OR TOWN CONTRARY TO A BT-LAW. The said town of , plaintiff, complains of the said C D, defendant, for that, heretofore, on the day of , A. D. 18 , a certain by-law before that time duly passed by the city council of said town, and published within the said town of , according to law, was in full force within said 'town of , as a by-law thereof; that by the said by-law it was provided that no person should keep within the corporate limits of said town any quantity of gunpowder exceed- ing one keg, unless a license for that purpose was first had and obtained from the eity/;ouncil; and it was further provided that any person who should violate the provisions of said by-law should pay a penalty not exceeding one hundred dollars; and the said plaintiff further avers that the said defendant did, on the said day of , A. D. 18 , and for a long space of time before and after, that date, keep in his warehouse, situate within the corporate limits of said town of , ten kegs of gunpowder without first having obtained a license therefor from the city council of said town of , contrary to the provisions of said by-law, and whereby the said defendant has become liable to pay to the said plaintiff the said sum of one hundred dollars; yet the said defendant, though often requested so to do, has not paid said sum of money, or any part thereof. Wherefore the said plaintiff prays judgment' against said defendant for said sum of $ ItO. FOR KEEPING A GAMING HOUSE. The said , plaintiff,, complains of the said C D, defendant, for that, on the day of , A. D. 18 , there was in force in the said town of , a certain .by-law of said town duly passed and published by the city council of said town, whereby it was provided that if any person should rent any house, store, or room, to any person whatever, to be kept and used for the purposes of gaming, then such person should forfeit and pav a penalty not exceeding one hundred dollars; and 184 FOEMS OS PETiriON. [OHAP. Special Counts. On By-Laws and Statutes, the said plainti£f avers that the said defendant did, on the said day of , A. D. 1 8 , rent to one E F, the under or cellar rooms of his storehouse, situate in said town, on the west side of street, between street, and street, to be kept and used by the said E F for the purpose of permitting and carrying on therein gaming, contrary to the provisions of the by-law aforesaid; whereby the said de- fendant has become liable to pay the said penalty of $ Wherefore the said plaintiflf prays judgment against the said defendant for the said sum of $ These forms will serve as a sufficient guide in all similar cases; the averments must be the existence and terms of the by-law, and then, such averments as show a violation by the defendant, concluding with a prayer of judgment for the entire penalty. The same rule of declaring will apply to all cases where by statute a party is liable for any such penalty by reason of any neglect. The law need not be set out, but the petition must contain, such facts as show that the defendant comes within the pro- visions of the law, and has incurred its penalty. 111. BT A SUPEKVISOE AGAINST ONE FOR NEGLBOTn?G TO WOBK. The said A B, supervisor of road district numbered , in the township of , in the county of , plaintiflf, comjfeiirs of C D, defendant, for that the said plaintiff, on the day of , A. D. 18 , was supervisor of said road district numbered , in said . township of , in said county of , and that the said defendant was then a male person between the ages of twenty-one and fifty-five, and had resided over three months in this State, and was not a township charge, and did, on the said day of , A. D. 1 8 , reside in said road district numbered , in said township of , in said county of , and that the said plaintiflf did, on the said day of , A. D. ] 8 , notify the said defendant to be and. appear, with proper implements, on the day of next thereafter, at the dwelling house of , in said district, to work on the public highways in said district; yet the said defendant neglected and did not, nor would attend at the dwelling house of the said , in said road district, to work on said public highwayj but wholly neglected so to do, whereby he has incurred the penalty of $ ; yet the said defendant, though often requested, has not paid said sum, or any part thereof. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ xvm.] FORMS OF E£TrrioN. 185 Special Counts. On Judgments — Instruments under Seal, XVI. On Jddgmentr. Iia. ON A DOMESTIC JUDGMENT. The said A B, plain tifif, complains of the said C D, defendant, for that the said plaintiff, at the term of the Court of Common Pleas, within and for the county of , did, by the consideration and judgment of said court, recover against the said C D, defendant, a judgment for the sum of $ , his debt, and $ , his costs in and about his suit in that behalf expended; which judgment still remains in that court in full force, unreversed and unsatisfied; yet the said defendant has not paid the said sum, or any part thereof, to the said plaintiff. Wherefore the said plaintiff prays judgment against the said defend- ant for the said sums, amounting to $ 4 with interest thereon from the day of , A. D. 18 . 113. ON JUDGMENT IN ANOTHER STATE. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, did, on the day of A, D. 18 , by the consideration and judgment of a Supreme Judicial Court of the State of Massachusetts, begun and held at the court-house in Northampton, within and for the county of Hampshire, on the said day of , A. D. 1 8 , recover against the said C D the sum of $ , his debt, and $ , his costs in and about his suit in that behalf expended; which said judgmeat still remains in that court in ftill force and effect, in no wise reversed or annulled; yet the said defendant, though often requested, has not paid said several sums of money, or either of them, or any part thereof,- to the said plaintiff. Wherefore the said plaintiff prays judgment against the said defendant for the said sums of money amounting to the sum of $ , together witl> interest thereon from the day of ■ , A. D. 18 . XVII. Ok Instruments under Seal. The code does not assume to change the legal character of contracts. They are still divided into contracts by parol or by deed; and deeds have the same legal effect as formerly. But in declaring on them, there is no necessity of further discriminating between them than to show the charac- ter of the contract. It , is not to be supposed that a petition should not state whether the contract is or is not under seal; or, if no averment is made, then it must be held a parol contract, and can not be proved by one under seal. It is supposed that there is no necessity of making profert 186 FOEMS X)F PETITION. [cHAP. Special Counts. On Instruments under Seal — Bonds with Condition. of a deed, as the party must now set fortli in his petition all of the deed which can in any event be required to go on the record. He must set out not only his bond, but the condition, and then show such facts as entitle him to recover under that condition. In declaring, therefore, on bonds with a condition, it is necessary to set out the condition in the petition, and all the facts which are necessary to be shown, in order to entitle the plain- tiff to a recovery. The practice, therefore, of declaring on the penal part of a bond no longer exists. The forms which follow will merely serve as examples of the mannei of declaring on deeds and contracts under seal. •114. ON MONET BOND. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , made his certain writing obligatory of that date, and then and theje delivered the same to the said plaintiff, and thereby bound himself to pay to the said plaintiff the sum of $ , in days after date, which period has elapsed; yet the said defendant has not paid said sum of money, or any part thereof, to the said plaintiff. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , together with interest thereon from the day of A. D. 18 . These bonds being negotiable, the petition will, in all other respects, correspond with those on promissory note. The only change is in the description of tjne instrument, which must be called a writing obligatory, or a promissory note under seal, or be described by some other word or words that will show the character of the contract. On Bonds with Condition. 115. ADMINISTRATOR'S BOND. The said A B, one of the heir's at law and legal distributees of E F, deceased, plaintiff, complains of C D, L M, and N 0, defendants, for that the said defendants, on the day of , A. D. 18 , at the county of aforesaid, by their certain writing obligatory of that date, acknowledged themselves to be held and firmly bound unto the said State of Ohio in the sum of $ ; which said writing obligatory was subject to a certain condition thereunder written, whereby it was provided that whereas, (here copy the whole condition in words.) XTm.] FOKMS OF PEimON. 187 Special Counts. Ou lusti'uments under Seal — Bonds with Condition. And the said plaintiff saith that afterward the said , ad- ministrator, entered upon the trusts of said administration, and a large amount of assets came to his hands to be administered, and that afterward, to- wit, on the day of , A. D. 18 , the said C D settled in the Probate Court of said county his accounts of administration, and there was then found, by the consideration of said court, the sum of $ in the hands of the said C D, which the Said- C D was adjudged to pay over, according to law; and the said plaintiff further saith that he, the said A B, is one of the heirs of the said intestate, and "as such entitled to receive from the said administrator the one-sixth part of the said sum of $ , so found in his hands for distribution, to-wit, the sum of $ , and that afterward, to-wit, on the ' day of , A. D. 18 , the said A B demanded of the said C D, the said sum of $ , and. re- quested him to pay to the said plaintiff the said sum; yet the said C D did not, nor would, pay the said sum of f , but hitherto hath wholly neglected so to do-7-whereby an action hath accrued to the said plaintiff on the said writing obligatory. Wherefore the said plaintiff prays judgment against the said C D, L M, and N 0, for the said sum of $ , (amount claimed,) with interest thereon from the said day- of , A. D. 18 . Note. — Interest runs only from the date of the demand. The administrator is not in fault till demand is made. If the default consists in wasting the estate, or in not settling it, the breach must be assigned accordingly. These breaches may be assigned after setting forth the condition, the above form being followed to that point. fie. BEBAOH THAT HE HAS WASTED THE ESTATE. And the said plaintiff saith that a large amount of assets came to the hands of the said administrator to be administered; and, among others, the following assets came to the hands of the said C D, to-wit, (here describe them, ) which assets the said C D afterward wasted and converted to his own use, and refused and neglected to return and account for in the sched- ule and accounts which he, the said C D, returned to the said Probate Court, and that, in his final settlement, the said C D was not charged with, nor did he account for the said goods and effects of the value of $ By section 666 of the code, Swan's St. 696, the manner of suing on oflBcial bonds is wholly changed. The action must now be in the name of the party in interest, and not in the name of the State, the obligee of the bond. And any number of suits can be brought on the official bond until the judgments amount to the penalty. 188 F0EM3 OF PETITION. [CHAP Special Counts. Instruments under Seal — Bonds with Condition. 117. ON SHEBIFF'S BOKD. The said A B, plaintiff, complains -of the said C D, E F, and Q H, defendants, for that the said defendants, on the day of , A. D. 18 , at the county of , by their certain writing obliga- tory of that date, acknowledge themselves to be held and firmly bound unto the State of Ohio in the sum of $ ; and which said writing obligatory was and is subject to a condition thereunder written, and which condition is in the words following, that is to say: (here set out the condition in its precise words and figures;^ and the plaintiff further saith that the said C D did thereupon take upon himself the duties of the said office of sheriff of said county of , and assumed, and did act as such, at the time of the committing of the wrongs hereinafter stated; and the plaintiff further saith that the said A B did, at the term of the Court of Common Pleas, within and for the said county of , by the con- sideration of said court, recover a judgment against one L M for the sum of $ , his debt, and % , his costs in said action expended; that the said A B afterward, on the day of , A. D. 18 , \date of execution, ) caused an execution to be issued from said court on said judgment against the said L M, and directed to the sheriff of the said county of , commanding him that of the goods and chattels of the said L M, he cause to be made the said sum of $ , debt, and $ , costs, and % , accruing costs, and, for want of goods and chattels, he cause the same to be made of the lands and tenements of the said L M, and that he return said execution on the day of , A. D. 18 ; (this whole averment must of course correspond reith the lan- guage of the execution; the above is the mere substance of the writ as stated in the statute;) and that the said execution did then come to the hands of the said C D, as such sheriff of the said county of . to be exe- cuted according to law; that afterward, to-wit, on the day of , A. D. 18 , the said C D returned said writ of execution, with the following return indorsed thereon: (here set out the return in its words,) "Received this writ this day of , A. D. 18 . I have made the money named in said writ, July 21,18 ," (date of return; ) and the said plaintiff further saith that afterward, on the day of , A. D. 18 , he, the said A B, requested the said C B to pay him the said sum of money so made on said writ of execution; but the said C D then neglected and refused to pay the same to the said A B; and the said plaintiff avers that neither the said C D, nor either of the other defendants have paid said sum of money, or any part thereof, to the said A B. XVm.] FOKMS OF PETITION. 189 Special Counts. On Instruments under Seal — Bonds with Condition. Wherefore the said plaintiff prays judgment against the said defendants for the said sum of $ , (the amount claimed, ) together with interest thereon from the said day of , A. D. 18 . Interest in such a case 'will run from the time the demand is made. This- form can be easily adapted to meet any kind of neglect, especially by consulting the forms of petition against sheriffs for neglect. The assignment of the breach must be substantially what a petition against the officer alone must be. And the same is true in regard to actions on all official bonds. Suit can^first be instituted against the officer alone; and a recovery being had against him, an action can then be instituted on the bond, and the breach be assigned by setting forth the action and judgment against the officer and its non-payment; of an action may in the first instance be brought on the bond, and then the default of the officer must be set out as a breach of the bond just as it must have been in an action directly against him alone. 118. LESSOE T. LBSSBK FOE NOT PATHTG FOE OEETAIN EEPAIRS MADE BY " LESSOE. • The said A B, plaintiff, complains of the said C D, defendant, for that, on the day of . , A. D. 18 , (date of lease,) by a certain indenture then made between the plaintiff of the one part and the defendant of the other, sealed with the seal of said defendant, the said plaintiff, for the consideration therein mentioned, did demise, lease, and to farm let for the term of years, from and after the date of said indenture, unto the said defendant and his assigns, a certain dwelling house and premises, with the appurtenances, as described in said indenture; and the said plaintiff further saith that the said defendant, by said indenture, among other things, covenanted that he, the said defendant, would pay the said plaintiff for all necessary repairs put upon the premises for the term aforesaid; and the said plaintiff further saith that the said defendant did not, nor would, after the said agreement and during the said demise, and while he was possessed of the said premises, with the appurtenances as aforesaid, pay or cause to be paid to the said plaintiff the repairs that became and were necessary to the said premises, and that were made upon the premises by the said plaintiff, after the making of the said indenture, and the said plaintiff avers that he expended $ in said repairs, of all which the said defendant had notice; yet the said defendant has not paid the same, to the damage of the said plaintiff $ Wherefore he asks judgment for the said sum of $ , his damages so as aforesaid sustained. 190 FOEMS OF PETITION. [OHAP. Special Counts. Instruments under Seal. This breach is assigned as in the case of McGeehan v. McLaugh- lin, 1 Hall Rep. 33. The court says: "Under the general rule the breach would be sufficiently assigned by negativing the words of the covenant, and the exception is. of cases where such general assignment does not necessarily amount to an averment of a breach of the covenants, but fur- ther averments are necessary to show that the covenant has been broken; and in these cases the breach must be specially assigned. Now the covenant was to pay for aU necessary repairs put upon the premises by the plaintiff ; the breach assigned is that the defendant has not paid him for the repairs that became and were necessary, and were put upon the premises "by him. To sustain this general assignment, it will be incumbent on the plaintiff to show that repairs were necessary, and were put upon the premises by him ; and to give a jury a measure of his damages, he must also show the amount of his expenditure in making them. But these are matters of evidence, to be shown at the trial in support of the action. They are not necessary to be superadded to the general assignment in pleading; and so far as any averment of them is requisite, it is in substance made in the general assign- ment itself, for the averment that the defendant did not and would not pay for the repairs that were necessary, and were made upon the premises by the plaintiff, is in substance an averment of the fact that repairs were neces- sary and were made. And if these facts are necessarily included in that general averment, a distinct and substantive averment of them could not be necessary." The same doctrine is recognized through all the cases. Ean- dal V. C. andD. Canal Co., 1 Harr. Rep. 151; 3 Bibb Rep. 330; Hard v. Trimble, 3 Marsh. Rep. 533; 14 J. Rep. 248; 11 do. 6. Breach of a covenant of seizin may be assigned by negativing the words of the covenant, that the gTantor has good right to convey; but the cove- nants for quiet enjoyment and of general warranty require the breach to show an eviction. Rechert v. Snyder, 9 Wend. Rep. 416; Marston v. Hobbs, 2 Mass. Rep. 433; 4 do. 408; Pollard v. Dwight, 4 Cranch. Rep. 421. In Ohio, however, the court has held that no action can be maintained on a covenant of seizin, where the grantor was seized in fact, until an eviction, and hence the breach must set forth that fact., Robinson v. Neil, 3 Ohio Rep. 626; King v. Kerr's Adm'r. 5 Ohio Rep. 154. No more of the covenants need be stated than the one on which the action is brought. 1 Saunders Rep. 233, n. 2; 2 do. 366, n. 1. 119. ON COVENANT TO PAT RBNT. The said A B, plaintiff, complains of the said C D, defendant, for that on the day of , A. D. 18 , by a certain indenture of XVm.] FOKMS OF PETITION. 191 Special Counts. Instruments under Seal, that date,- then made between the said plaintiff of the one part, and the said defendant of the other part, sealed with the seal of the said defendant, the said plaintiff did demise, lease, and to farm let unto thei said defendant and his assigns a certain dwelling house, (or other building, or real estate, as the fact is, ) and premises, with the appurtenances particularly described in said indenture, situate in , for the term of years next thereafter ensuing the 'date of said indenture, he, the said defendant, pay- ing therefor, to the said plaintiff and his assigns, the yearly rent of $ , payable quarterly, (or, semi-annually,) on the day of fci each and every year; and the said defendant did thereby covenan* with the said plaintiff and Ms assigns to pay the said sum of $ yearly, and at the times before stated. By virtue of .which demise the said defendant then entered into possession of the said dwelling house and premises, and was possessed thereof for the term aforesaid; yet the said plaintiff saith that, after the making of said indenture of lease, and during the said term thereby granted, a large sum of money, to-wit, the sum of $ , of the rent aforesaid for of said, term, ending on the day of , A. D. 18 , became and was due, and still is in arrears and unpaid to the said plaintiff; yet the said defendant, though often requested, hath not paid the same to the plaintiff. Wherefore the said plaintiff prays judgment against the said defend- ant for the said sum of $ , with interest thereon from the day of , A. D. 18 . laO. ASSIGNMENT OF A TBKM. I By virtue of which said demise the said E F, (lessee,) afterward entered into and upop the said demised premises, and became and was thereof pos- sessed for the term aforesaid. And the said E F, being so possessed, after- ward, to-wit, on the day of , A. D. 18 , by his deed of assignment duly executed, for the consideration therein mentioned, did sell and assign unto the said plaintiff and his assigns all his right, title, and interest in and to the residue of the said term yet unexpired named in said deed of demise; by virtue of which the said plaintiff then entered into the said demised premises, and was thereof possessed, and still is possessed for the residue of the said term yet unexpired. 121. SIJEEENDEE OF A TERM. And the said E F, (lessee, ) being so possessed of the said tenements as aforesaid, he, the said E F, after the making of the said lease, and during the continuance of said term, thereby granted, on the day of , A. D. 18 , did surrender to the said , the said term 192 FOEMS OF PETITION. [OHAP. — . k Special Counts. Instruments under Seal. of years of him the said E F, then to come and unexpired, of and in the said demised tenements with the appurtenances, and all his estate, right, title, and interest of and in the same; which said surrender he, the said , then accepted. 183. COVENANT TO PAT BXTEA INSUKANOB. The said A B, plaintiff, complains of the said C D, defendant, for that thp said plaintiff, heing, on the day of A. D. 18 , possessed of certain real estate and buildings thereon, situate in , in said county of , did demise and lease the said premises to the said defendant for the term of years next thereafter ensuing, at a certain rent or price then agreed upon; and that the said defendant, in con- sideration thereof, then agreed with the said plaintiff, to pay him any amount of extra insurance on the building on said premises caused from the said defendant's using the saicf premises for purposes different from that for which they were being used at the time of the making of said lease. And the said plaintiff saith that the said defendant, upon taking possession of the said premises under the said lease, converted a part of a building, before that time and at the execution and delivery of said lease used as a dwelling and private boarding-house, into a refreshment saloon and billiard room, and rented the building before that time occupied as a private barn and stable, into a public livery stable; whereby the rate of insurance on the said building standing on said leased premises was greatly enhanced; of which the said defendant then had notice; and the said plaintiff saith that he has been compelled to pay, and has paid, by reason of said changes in the use of the said premises, a large amount of extra insurance, to-wit, the sum of $ ; and the plaintiff further saith that he notified the said defendant of the said extra rate of insurance, and, on the day of , A. D. 18 , requested him, the said defendant, to pay him, the said plaintiff, the said sum of $ , so paid as extra insurance upon said premises; yet the said defendant did not, nor would he pay to the said plaintiff the said sum of $ ; but so to do has wholly refused, to the damage of the said 'plaintiff $ The said plaintiff therefore prays judgment against said defendant for the said sum of $ , his damages so as aforesaid sustained. AB, By , his attorney. Note. — This form will be found snbBtantially copied from the case of Edward v. Lent et a)., 8 Pi Eep. 23. rvra.] FORMS OF PETITION. 193 Special Counts. Instruments under Seal. 123. ON DBED WITH OOTENANTS OF OENERAL WABKANTT. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , by his deed of that date duly executed, in consideration of $ , by the said plaintiff then in hand paid to the said defendant, granted and conveyed to the said plaintiff and his h^irs the following real estate, situate in the county of , and described as follows : (here sft out a description of the land cameyed, ) to have and to hold the aforegranted premises to the said plaintiff, his heirs and assigns, forever; and the said defendant by said deed covenanted to and with the said plaintiff that he, the said defendant, was seized in fee of said premises, that he had a good right to convey the same as aforesaid, that the said premises were free and clear of all incum- brances, and that he, the said defendant, would warrant and defend, the said premises against the lawful claims of all persons whatsoever; and the said plaintiff in fact saith that the said premises were not free and clear of all incumbrances at the time the said deed of conveyance was executed and delivered by the said defendant to the said plaintiff; but on the contrary, that, on the said day of , A. D. 18 , one E F held a mortgage on the said premises, executed and delivered by the said defend- ant before the said day of , A. D. 18 , to the said E F, to secure the payment of the sum of $ , with interest from and after the day of , A. D. 18 ; and the said plaintiff saith that, to remove said incumbrance, he, the said plaintiff, hath paid to the said E F the sum of $ , on the day of , A. D. 18 , and then notified the said defendant thereof,_and requested the said defend- ant to repay to the said plaintiff the said sum of $ ; yet the said defendant has not paid said sum of money, or any part thereof, to the said plaintiff. Wherefore the said plaintiff prays, etc. Where the action is on the covenant of seizin, the breach may be assigned by the negation of the words of the covenant if the .grantor was never in possession; "but under our decisions, the averment may be required to be more particular; as that the said defendant was not in fact seized of said premises, but that one E F held and occupied the same adversely to the rights of the said defendant at the time of the delivery of said deed, whereby said plaintiff was prevented from obtaining possession and seizin in fact of said premises. In such a case, the amount to be recovered would be the purchase money and interest from date of deed. When the vendee was seized in fact, under his grantor, he can not sue until evicted. The petition in such a case must state the making of the 13 194 FOKMS OF FETinOir. foHAP. Special Counts. Instruments under Seal. deed and the covenants of warranty, and then aver, that the said defend- ant was not seized iu fee of said premises, and has not defended tlie same against the lawful claims of all persons; but the said plaintiff avers that one E F, at the time the said defendant made his said conveyance and covenant, was seized in fee of said premises; and that the said E F, on the day of , A. D. 18 , .commenced an action in the Court of Common Pleas, for the county of , against the said plaintiff, to recover from him the possession of the said premises, and that such proceedings were had in said action, that afterward, at the term, A. D. 18 , the said E F recovered a judgment against the said plaintiff for the said premises, and that afterward, on the day of , A. D. 18 , the said plaintiff was evicted from the possession of the said premises under and by virtue of the afc/resaid judgment; and so the said plaintiff avers that the said defendant has not kept his said cov- enant, but has broken the same, to the damage of the said plaintiff $ The damages in this case will be the consideration paid and four years interest. The statute of limitations cuts off any claim for mesne profits foi a longer term than that, and hence interest is limited to that time. Backus V. McCoy, 3 Ohio Eep. 211; 10 Ohio Eep. 317. Notice to a warrantor need not be given, and hence not averred, before a suit can be brought. King v. Kerr's Admr., 5 Ohio Rep. 154. When there has not been an eviction, something equivalent must be averred. In King v. Kerr's Admr., 5 Ohio Eep. 154, an averment of an application for the benefit of the occupying claimant law, and the verdict, and of the amount paid to the plaintiff in ejectment, was held equivalent to an eviction. In Tuite v. Miller, 6 West. Law J., 413, 17 Ohio Rep. 69, the court held that where dower had been assigned in the value of the one-third of the rents and profits and made a charge on the land, this might well be considered equivalent to eviction. But where a gross sum was decreed for dower and ordered to be enforced by execution, it was held not to be an eviction. The statute does not authorize such a decree for dower. Johnson v. Nyce's Ex., 17 Ohio Rep. 66. The party must show that the dower has been assigned according to law; otherwise if can not be held to be equivalent to an eviction. Nyce's Ex. v. Oberty, 17 Ohio Rep. 71. The averment of the breach in each of these cases must be special, set- ting forth the facts showing the eviction. 184- GRANTBB v. ORANTOK. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of A. D. 18 , by his deed of that date, sealed with his seal and duly executed, attested, and XVni.] FOEMS OF PETITION. 195 Special Counts. Instruments under Seal. ackno-wledged, in consideration of $ , bargained, S0I4, aiuj conveyed to the said plaintiff and his heirs certain lands, in the said deed particularly described, in fee simple; and the said defendant did, by said deed, covenant with the said plaintiff, his heirs and assigns, that he, the said defendant, would warrant and defend the said premises against the lawful" claims of all persons whatever; and the said plaintiff saith that the said defendant did not, and would not, after the execution and delivery of said deed, warrant and defend said premises against the lawful claims of all persons whatever; but, on the contrary thereof, the said plaintiff avers that the said defendant had not then, at the execution of said deed, a good and suflBcient title to the said premises; but that the freehold and paramount title in the said premises was then, and has continued to be, up to the ouster and dispos- session hereinafter stated, in other persons; and by virtue of which said paramount title, the said plaintiff was afterward, on the day of , A. D. 18 , ousted and. dispossessed of the said premises by due course of law, contrary to the said deed and covenant of the said defendant, and to the damage of the said plaintinff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. Note. — It would eeem as though this general form was sufficient in all cases; so held in 10 Wheat Eep. 449; 6 Cowen Eep. 12£; 2 Saund. Eep. 181, n. 10. 135. ASSIGNEE v.* GRANTOR. ( The petition may he like the last, except using the name of the first grantor instead of the word "defendant" up to the statement of the deed and covenant; then proceed:) And the said plaintiff further saith that the said E F, (^ first grantor,) afterward, on the day of , A. D. 18 , by his deed of that date duly executed, in consideration of $ , sold and conveyed said premises to one L M, his heirs and assigns, and the said L M afterward, on the day of , A. D. 18 , by his .deed duly executed, in consideration of $ , sold and conveyed said prem- ises to the said plaintiff, his heirs and assigns forever. And the said plain- tiff saith that, by virtue of said conveyance, he afterward entered into said premises, and was thereof possessed; and the said plaintiff further avers, (state the'breach as in last form, or specifically, like other forms, if deemed expedient. ) 186. HEIRS v. GRANTOR. (After stating the deed and covenant as in previous form, proceed as fol- lows:) And the said B M afterward entered into the said lands and 196 FOEMs OF PETrrioN. [chap. Special Ooants. On Special Contracts. tenements, and was thereof possessed in fee simple, and that the said B M, while so possessed, afterward departed this life, and that the said premises descended to the said plaintiffs as the heirs of the said B M; and that the said plaintiffs afterward entered into the said premises, and were thereof possessed as of an estate in fee simple, and continued so seized imtil after- ward ousted and dispossessed as hereinafter stated. {Hers state the breach as before.) XVIII. On Special Contbaots. 13 7. AGAINST ONE FOE NBGLBOT IN 6r7IN9 KOTIOB OP NON-PATMBNT OP BILL, ETC. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, on the day of , A. D. 18 , at , was the holder of a certain bill of exchange, drawn under date oi , A. D. 18 , by one , and directed to one , of , thereby requesting the said to pay to one , or order, in days after date $ , at the bank oi ^ in , and that the said bill of exchange was duly indoised by the to thg said plaintiff; and the said plaintiff further saith that, on the said day of , A. D. 18 , he, the said plain- tiff delivered to the said defendant the said bill of exchange for presenta- tion to the said , for acceptance and payment; and the said defendant, for a valuable consideration, then promised the said plaintiff that he would diligently present, or cause to be presented, the said bill of ex- change to the said , and procure the same to be accepted and paid by the said , unless such acceptance and payment should be refused; and in case of such non-acceptance and non-payment, or either, he, the said defendant, would give all necessary and proper notices to charge the said, {drawer,) as such drawer, and the said (indorser,), as such indorserof said bill of exchange; and the said plaintiff avers that the gaid did refuse to accept, or pay the said bill of exchange, and that the said defendant did not give, or cause to be given, to the said and , the notices necessary to charge the said , as drawer, and the said , as indorser of the said bill of exchange, whereby the said plaintiff has lost the whole amount named in said Jbill of exchange, to his damage $ The said plaintiff therefore prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. AB, By , his attorney. This is taken from the case of Commercial Bank of Penn. v. Union Bank of N. Y., 1 Kernan Rep. 203. The banker receiving a bill for XVin.] FOBMS OF PETITION. 1&7 ' » Special Counts. On Special Contracts. collection is responsible for any neglect in mating a demand nnd giving notices by which the holder is injured. Allen v. The Merchants', Bank, 22 Wend. Rep. 215; Montgomery County Bank v. The Albany City Bank, 3 Selden Rep. 459; Fabens v. Mercantile Bank, 23 Pick. Rep. 330; Bank of Orleans v. Smith, 3 Hill Rep. 560. So where the receiving bank remits the bill to its agent at the place of payment, the first bank is alone respon- sible to the holder, and the second bank to the first. ' Such is the doctrine in New York; but in Mass., 23 Pick. Rep. 330, it is held that the bank receiving the note or bill and remitting it, is not liable for the neglect of the agent to whom it is remitted for collection. Vide also 4 Har. and John. 146; 6 Conn. Rep. 528. 138. ON OONTEACT TO EMPLOY ONE AS ATTOKNBT. The said A B, plain tifi^, complains of the said C D, defendant, for that heretofore, to-wit, on the day of , A. D.18 , in consider- ation that the said plaintifiF, at the request of the said defendant, had agreed to become the permanent attorney and solicitor of the said defendant, and to act as such for reasonable reward, to be therefor paid by the said defend- ant to the said'plaintiff for his services in that behalf, he, the said defend- ant, promised the said plaintiflf to retain and employ him as -such permanent attorney and solicitor; and the said" plaintiff saith that, after the making of the said agreement and in pursuance thereof, the said defendant did then in fact retain and employ the said plaintifif as such permanent attorney and solicitor as aforesaid; and the said plaintiflf did then become, and was, and acted as the permanent attorney and solicitor of said defendant, and hath always from thence been ready and willing to continue to act as the per- manent attorney and solicitor of the said defendant; of which the said defendant had at all times notice; yet the said defendant, disregarding his said promise, did not, nor would permit or suffer the said plaintiff to con- tinue to be the attorney and solicitor of the said defendant, or to act as such, but afterward, and before the commencement of this action, to-wit, on the day of , A. D. 18 , without the consent of the said plaintiff and against his will, appointed certain other persons, to-wit, , to be the attorneys and solicitors of the said defendant, and wrongfully, and without any just or reasonable cause for so doing, dis- charged the said plaintiff from being or acting as the attorney and solicitor ■yi the said defendant, and deprived him of all gains and profits which could have arisen or accrued to the said plaintiff in that behalf, to the damage of the said plaintiff $ The said plaintiff, therefore, demands judgment against the said defend- ■int for the said sum of $ , his damages so as aforesaid sustained. 198 F0EM8 OF PEXrnON. foHAP. ~~— ^ - - , p -^ , . Special Counts. On Special Contracts. 189. SPECIAL COUNT TOK SAME. The said A B, plaintiff, complains of the said C D, defendant, for that, on the day of , A. D. 1 8 , it was agreed by and between the said plaintiff and the said defendant, that from the day of , A. D. ] 8 , then next, the plaintiff, as the attorney and . solicitor of the said defendant should receive and accept a salary cf $ per annum, in lieu of rendering an. annual bill of costs for gener.il business transacted by the plaintiff for the defendant, as such attorney and solicitor, and should, and would, for such salary of & per annum, advise and act for the said defendant, (ike prosecutinff or defending of iuits, the preparation of bonds, or other securities for advances made hy the said defendant and moneys disbursed hy the plaintiff being excepted, and the plaintiff being allowed, in respect of such matters, to make the usual and regular charges of an attorney and solicitor, ) and that the plaintiff should attend the secretary of the said defendant, as well as the board of directors thereof, and the meetings of the proprietors thereof, when required; and the said agreement being so made, afterward, on the . day of , in the year aforesaid, in consideration that the plaintiff had at the request of the defendant, promised the said defendant to perform and fulfill the same in all things on his part, the said defendant promised the plaintiff to perform and fulfill the same in all things on his part, and to retain and employ the plaintiff as such attorney and solicitor of the defendant on the terms aforesaid; and although the said defendant did, for a certain small space of time thereafter, to-wit, for four months, in pursuance and fulfill- ment of said agreement and promise in that behalf, retain and employ the plaintiff as such attorney and solicitor on the tenns aforesaid, and did pay him a small part of the said salary, to-wit, $ ; and although the plaintiff was at all times, from the making of the said agreement hitherto, ready and willing to advise and act for said defendant, and accept the said salary on the terms aforesaid, and in all other respects to fulfill the said agreement on his part, of which the said defendant always had notice; yet the said defendant, disregarding his said agreement, did not, nor would continue to retain and employ the said plaintiff as such attorney or solicitor of the said defendant on the terms aforesaid, but, on the contrary thereof, afterward, to-wit, on the day of , A. D. 18 , wrong- fully and without any reasonable cause, dismissed and discharged the said plaintiff from such employment and retainer, and then, and from thence hitherto, has wholly refused to retain or employ him as such attorney and solicitor of the said defendant, or to pay him the salary aforesaid; by reason of which the said plaintiff has wholly lost and been deprived of the said salary of $ , and also of divers gains which he might and otherwise xvm.] FOEMs OF pmnioN. 199 Special Counts. On Special Contracts. would bave derived from such employment in and about tbe prosecuting and defending of divers suits brought by and against the said defendant, and in preparing divers bonds, contracts, and securities for said defendant and otherwise, to the damage of the said, plaintiff $ The said plaintiflf, therefore, prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. These two counts are copied from the case of Emmons v. Elderton, representing the Church of England Life and Fire Assurance Trust and An- nuity Company, 26 Eng. L. and Eq. Rep. 1. The special count was held good in the Exchequer Chamber, and also in the House of Lords; though the Court of Common Pleas had arrested the judgment on it. The ground of decision in the Common Pleas was that the promise to retain and em- ploy was more comprehensive than the agreement first set forth. It is considered as settled law that a count of this nature is bad, if the promise is more extensive than the promise which is implied by law as arising from the past consideration. The agreement binds the company to continue the relation of employer and employed at least for a year. Per Crompton, J. The words retain and employ, as used in the present case, are a mere amplification of the preceding contract of hiring and service. These jrerds are used in the precedents continually as meaning hiring, engaging, and keeping a person in a service, and do not necessarily imply that the master is bound to supply the servant with any particular work whilst the relation subsists. Ibid; Fawcet v. Cash, 6 B. and. Ad. 908. The teim, it was agreed, makes the words of the agreement those of both parties; and where two parties agree that one shall accept and receive a yearly salary of $1,000 as attorney and solicitor of the other, and for a particular class of business, it is necessarily implied that the other shall pay it, and at the end of fhe year. It is not to be paid simply and at all events, at the end of the year, but as a reward for the services of the other as an attorney and solicitor, for his attendance and advice when required, and being ready to give it whenever it should be asked, at all times during that year. Per Parke, B. I feel quite satisfied that, in such a case as this, there is, upon a true con- struction of this agreement, an implied agreement upon the defendants below to retain the plaintiff, and to employ the plaintiff, in the sense in which I understand this word, for one j"ear at least. Ibid; Beetson v. Collier, 4 Bing. Rep. 309; Gandall v. Pontigny, 1 Starkie Rep. 198; Hart- ley V. Harman, 11 Ad. and El. 798; Hopkins v. Logan, 6 M. and W. 241 ; Kaye V. Dutton, 7 Man. and Gr. 807; Bainbridge v. Firmstone, 8 Ad. and El. 743; Thornton v. Jennings, 1 Man. and Gr. 166; Pilkington v. Scott, IS M. and W. 667; Aspdin v. Austin, 5 Q. B. 671; Dunn v. Sayles, Ibid 685. 200 FOEMS OF PETITION. fCHAP. Petitions in Tort. PETITIONS IN TOBT. J30. FOE KEEPING A VICIOUS DOG. Oaunty, ss.. Court of Common Pleas. A B, plaintiff, 1 V. > Petition. C D, defendant.) The said A B, plainti£f, complains of the said C D, defendant, for thai heretofore, to- wit, on the day of ,A. D. 18 , (the exact time is not material, ) and from thence and until and at the time of the injury to the said plaintiff as hereinafter mentioned, the said defendant wrongffuUy and in- juriously did keep a certain dog; he, the said defendant, during all that time knowing that the said dog then was used to bite and attack mankind; and which said dog did afterward, and whilst so kept by the said defendant as sfdresaid, to-wit, on the day of ,A. D. 18 , (near the time,) attack and bite said plaintiff, and greatly lacerate and wonnd him, the said plaintiff, in his right leg, (or, arm, as case may be,) and thereby he, the said plaintiff, became sick, sore and lame for a long space of time, to-wit, for the space of six months thence next following, during all of which time the said plaintiff was prevented by said wounding from attending to his usual business and lawful affairs; and was put to great expense, to-wit, to the sum of $ , in endeavoring to be cured of the said wounds and lameness so as aforesaid occasioned, to the damage of the plaintiff $ , Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damage so as aforesaid sustained. Chitty advises counts averring that the dog was of b ferocious and mis- chievous nature, and aiso for not Jceeping the dog properly secured or fed, as the facts may be. 2 Chitty PI. 597. The former is only equivalent to the aver- ment that the dog was accustomed to bite; and yet the cases of Jones v. Perry, 2 Esp. Rep. 482, and Cockerham v. Nixon, 11 Iredell Rep. 269, seem to make a distinction. In these cases it seems to be supposed that a dog of such a disposition ought to be kept up, even though it can not be proved that he had bitten any one. So in a note of Pickering v. Orange, J Scam. Rep. 492, 4 U. S. Dig. 590, Sec. 7, it is said that where a person keeps a dog or other animal, which is known to him to be of a savage and ferocious disposition, he is accountable for all the injury it may do to other XVm.J FDEjfe OF PEXmON. 201 Petitions in Tort. animals. Yet it would seem that such dog must have done mischief; other- wise the owner will not be liable. The ferocious character of the dog can only be evidenced by his acts. There are three necessary averments: First, That the dog would bite men; Secondly, That the owner knew it; Thirdly, That he did bite the plaintiflF. When all this is proved, it matters not how carefully the dog was kept; the owner has no right to keep such a dog at aSl. McCaskill v. Elliot, 5 Strobh. R. 196. The scienter must be alleged and proved. 1 M. and S. 238; 2 Salk. R, 662; 2 Strange, 1264; Vrooman v. Sawyer, 13 T. R. 339; 2 Esp. Rep. 482; 4 Camp. Rep. 198; 1 Starkie Rep. 285; 3 C. and P. 138; Marsh v. .Jones, 21 Ver. Rep. 378. 131. FOE KEEPING DOG AOOUSTOMED TO KILL ANIMALS. The said A B, plaintiff, complains of the said C D, defendant, for fiat the said C D heretofore, and before the committing of the injuries herein- after mentioned, and up to and until the time of the said injury to the cattle of the said plaintiff, did keep a certain dog, which dog he, the Said defendant, knew was accustomed to hurt, chase, bite and kill cattle, horses, and other animals; and that the said dog did afterward, and while the said defendant so kept him, to- wit, on the day of , A. D. 18 , and on divers other days and times between that day and the com- mencement of this action, hurt, chase, bite and worry, to-wit, cattle; (horses, etc., as the case may be,) by means whereof, divers, to-wit, (ten) of said cattle, etc., died, and the residue thereof were greatly terri- fied, damaged, and injured, and rendered of little or no value to the said plaintiff; to the damage of the said plaintiff $ Wherefore he prays judgment against said defendant for the said sum of $ , his damages aforesaid, in form aforesaid sustained. 132. FOR SHEEP KILLED BY DEPENDANT'S DOG. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant before and at the time of the committing of the injury JHiereinafter mentioned, was the owner (or, harborer,) of a certain dog; and that the said dog, while so owned by the said defendant", did, on the day of , A. D. 18 , and on divers other days and times between that day and the commencement of this action, kill, to-wit, (ten) sheep of the said plaintiff, and did injure other sheep of said plain- tiff, to the damage of the said plaintiff $ Wherefore he prays judgment against said defendant for the said sum of $ , his said damagt&s so as aforesaid sustained. 202 FORMS OF PETITION. [OHAP. Petitions in Turt. Our statute renders the owners or harborers of dogs liable for all dam- age they may do to sUeep, though the owner may be ignorant that his dog has ever injured sheep. IS. & C.St. 71. As to all other animals, a «a«n still being the wife of the said plaintiff, whereby the affection of the said E F for the said plaintiff was then and there alienated, and the said plaintiff hath, hitherto lost and been deprived of the society, comfort, aid, and assistance of Lis said wife in his domestic affairs, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. ISl. FOB DGBAITOHINO A DAUGHTER. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, unjustly intending to injure the said plaintiff, and to deprive him of the services and assistance of E F, the daughter and servant of the said plaintiff, did, on the day of A. D. 18 , and on divers other days between that day and the commencement of this action, debauch and carnally know the said E F, then and there, and before and since, the daughter and servant of the said plaintiff; whereby the said XVni.], FORMS OF PETITION. 217 Petitions in Tort. E F became pregnant and sick with child, and so remained for a long space of time, to-wit, for the space of nine months thence next following; at the expiration whereof the said E F was delivered of the child with which she was pregnant, as aforesaid; by means of which said several premises, she the said E F, for a long space of time, to-wit, one year, was unable to do the needful business of the said plaintiff, he, the said plaintiff, so being the father and master of the said E F; and the said plaintiff lost the services of the said E F during all that time; and the said plaintiff was put to great expense, and did pay out a large sum, to-wit, the sum of # , in and about the nursing and taking care of the said E F, his said daughter and servant, and in and about the delivery of the said child, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against said defendant for the said sum of $ , his damages so as aforesaid sustained. If the female was not the daughter of the plaintiff, leave out the word daughter, and retain only that of servant. The loss of service is the gist of the action, and the master can alone sustain the action. If the daughter is not living with her father, he can not sue for the seduction. Briggs v. Evans, 6 Iredell E. 16; Hewit v. Prime, 21 Wend. E. 79; Martin v. Payne, 9 J. Eep. 387; 2 A. K. Marshall, 128; 7 Wend. E. 193; 2 do. 459. 158. FOE ENTIOING AWAY AN APPEENTIOB. The said A B, plaintiff, complains of the said C D, defendant, for that, before and at the time of the committing of the injuries by the said defend- ant hereinafter mentioned, one E F was, and from thence hitherto hath been, and still is, the servant, (or, apprentice, ) of the said plaintiff, in his trade or business of a , which the said plaintiff then exercised and carried, and still does carry on; yet the said defendant, well knowing the premises, and wrongfully contriving to injure the said plaintiff, and deprive him of the services and benefit of his said servant, (or, apprentice,) did, on the day of , A. D. 18 , wrongfully entice, persuade, and procure the said E F, so then being the servant, {or, apprentice,) of the said plaintiff, to depart from and out of the sei-vice of the said plaintiff; by means of which enticing, and persuasion, and procuring, the said E F did then wrongfully, and without the license of the said plaintiff, and against his will, depart from and out of the service of the said plaintiff, and hath remained absent therefrom from thence hitherto; whereby the said plaintiff, during all that time, has lost and been deprived of the services of the said 218 FORMS OF PETITION. J^CHAP'. Petitions in Tort. E F, ill his said trade and business of , and of all profits and benefits which might and would have otherwise accrued to him from such service, to the damage of said plaintiff $ Wherefore he prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 153. FOR HARBORINO AN APPRENTICE. The said A B, plaintiff, complains of the said C D, defendant, for that one E F, heretofore, to-wit, on the day of , A. D. 18 , was the servant, (or, apprentice,) of the said plaintiff, and being such ser- vant, (or, apprentice,) did then, unlawfully, and without the license, and against the will of said plaintiff, depart and go away from and out of the service of the said plaintiff, and went and came to the said defendant; that the said plaintiff afterward, to-wit, on the day of , A. D. 18 , notified and informed the said defendant of the premises, and requested him, the said defendant, not to keep and harbor the said E F, so being the servant, (or, apprentice,) of said plaintiff; yet the said defendant, well knowing the premises, and contriving to injure the said plaintiff, and to deprive him of the service of the said E F, did, on the said day of , A. D. 18 , wrongfully harbor the said E F, and has kept him, the said E F, in his, the said defendant's, employ and service from that time up to the commencement of this action, whereby the said plaintiff hath lost, during all that time, all profit and benefit which otherwise he might and would have obtained from the services of the said E F, to the damage of the said plaintiff $ Wherefore he prays judgment against the said C D for the said sum of $ , his damages so as aforesaid sustained. Fpr the law on this subject, see Cowper R. 54; 2 H. Bl. 51 1 ; 2 Esp. Rep. 734; 2 Saund. Rep. 169; 3 M. and 8. 191; 7 T. R. 310; Peak N. P. 65; 5 East. R. 39; Dubois v. Allen, Anthon. Rep. 94; Seidmore v. Smith, 13 G. R. 322; Demyerw. Souzer, 6 Wend. Rep. 436; Ferguson v. Tucker, 2 Hav. and Gill. 182; Stewart w. Simpson, 1 Wend. Rep. 376. The master is entitled to his apprentice's wages, when hired by another, and this whether the person hiring knew he was or was not an apprentice. James v. Le Roy, 6 J. R. 274; Munsey v. Goodwin, 3 N. Hamp. Rep. 272; Bowes V. Tibbets, 7 Greenlf. Rep. 457; Conant v. Raymond, 2 Aiken Rep. 243. But in the case of a hired servant, he is not liable without notice of his being the servant of another. 6 J. R. 274. XVin.j FOEMS OB' PETITION. 210 Petitions in Tort. 154:. FOB 0ABELE3S DBITINO. The said A B, plaintifiF, complains of the said C D, defendant, for that the said defendant, before the committing of the injuries hereinafter men- tioned, was the owner and proprietor of a certain stage-coach, by him used for the carriage of passengers at and for hire and reward; and the said de- fendant, being such owner of said coach, the said plaintiff did, on the day of , A. D. 18 , at the special instance and request of the said defendant, become and was a passenger by the said coach, to be safely carried and conveyed thereby on a certain journey, to- wit, from the town, (or, city,) of , to the of" , for certain hire and reward to the said defendant in that behalf; and although the said plaintifiF was then and there received by the said defendant, as such pas- senger by said coach, yet the said defendant, not regarding his duty in that behalf, so carelessly, negligently, and unskillfully loaded, drove, and man- aged said coach, that, afterward, and whilst said coach was proceeding with the said plaintifiF, as such passenger on said journey, to-wit, on the day of , A. D. 18 , the said coach was, by and through tl^e care- lessness and negligence of the said defendant, overturned and thrown down, with the said plaintifiF therein, as aforesaid; by means whereof the said plaintiff was greatly injured, and one of the legs of said plaintifiF was bro- ken, and fractured, and bruised, and the said plaintifiF was otherwise greatly injured, wounded, and cut, insomuch that the said plaintifiF then became sick, lame, and sore, and So continued for the space of months thence next ensuing, and was during all that time prevented from attending to his lawful business and carrying on the same; and the said plaintifiF was forced to expend a large sum of money, to-wit, the sum of •$ , in and about the endeavoring to cure the said fractures, wounds, cuts, and bruises, to the damage of the said plaintifiF $ The said plaintiff therefore prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. The character of the injury sustained should be stated according to the fact. It is unnecessary to state the terminus of the journey; but if stated, it must be done correctly. As to the duty of coach-owner. He is bound to exercise the highest possible degree of care, and if, by the slightest negligence on his part, an injury is sustained by a passenger, he can recover the amount of damage sustained. Talmadge v. Zanesville and Maysville Road Co., 1 1 Ohio Rep. 197; Jones v. Voorhees, 10 do. 145; 2 Cowp. R. 81; 2 Esp. Rep. 533; 5 220 FOEMs OF PEirnoN. [chap. Petitions in Tort. do. 273; 3 Bing. R. 321; Hall v. Steamboat Co., 13 Conn. Rep. 319; In- galls V. Bills, 9 Metcalf R. 1; Maury v. Talmadge, 2 McLean Rep. 167. iS5. FOB NOT OABRTIira A PASSENOEK SAFELY. The said A B, plaintiff, complains of the said Little Miami Railroad Company, defendant, for that the said defendant, before and at the time of the committing of the wrongs and injuries hereinafter stated, was the owner of a certain railroad, with its cars and locomotives, leading from the city of Cincinnati to the town of Springfield, and was accustomed and used by said railroad to transport passengers and their baggage over and upon said railroad, for certain hije and reward; and thereupon the said plaintiff, on the day of , A. D. 18 , at the special instance and re- quest of the said defendant, became and was a passenger on the railroad of the said defendant, and in the cars thereof, to be safely carried from to , for a certain hire and reward to the said defendant in that behalf; and the said plaintiff was then received by the said defend- ant in the cars, and on the railroad aforesaid, as such passenger, to be carried thereby as aforesaid; yet the said defendant, not regarding its duty, in that behalf, did, "by its servants and lagents/ so carelessly, negligently, and unskillfuUy conduct the running of said cars and railroad that, on the day of , A. D. 18 , by the carelessness, negligence, and default of its said agents and servants, and for want of due care and at- tention 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, and had the right leg and the left arm of him, the said plaintiff, badly fractured and broken, so that he, the said plaintiff, became and was sick, lame, and unable to walk, and was wholly unable to attend to the transaction and 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 ^ , in endeavoring to cure his said wounds, bruises, and fractures, to the damage of the said plaintiff $ Wherefore he prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. IS 5a. AGAINST B. B. CO. POK KILLING 'A PERSON UNDEE THE STATUTE. The said A B, administrator of the said C D, deceased, plaintiff, com- plains of the said M. and C. R. R. Co., defendant, for that, heretofore, to- wit, on the day of A. D. 18 , the said C D was a passenger on the cars of the said defendant, running from , in the county of and state of , to , in the XVIII.] FORMS OP PETITION. 220a Petitions in Tort. 'county of and state of ; and that the Baid defend- ant, by its agents, so carelessly, negligently, and unskillfully conducted and managed said cars that the same were thrown from the track and OTcr an embankment, and the said C D instantly killed by means of said care- lessness, neglect and unskillfulness ; and the said plaintiff further saith that he has been duly appointed and qualified administrator of the said C D, so as aforesaid killed, and that the said C D left E F as his widow, and G H, I K, etc., as his next of kin, to the damage of said plaintiff five thousand dollars. The said plaintiff therefore prays a judgment against said defendant for the said sum of five thousand dollars, his damages so as aforesaid sustained. 155!>. SAMS IN ANOTHER VOBM. The said A B, administrator of the said C D, deceased, plaintiff, com- plains of the said L. M. R. E. Co., defendant, for that, heretofore, to-wit, on the day of A. D. 18 , the said defendant, by its agents, so negligently, carelessly and unskillfully, ran its train of cars and locomotive along its track in the city of that, without the fault of the said C D, deceased, the said train of cars and locomotive was neg- ligently and carelessly run against and over the said C D, and the said C D was, by such neglect, carelessness and unskillfulness, instantly killed. (Proceed as in last form.) ISSf. FOR KILLING A BRAKEMAN. The said A B, administrator of the- said C D, deceased, plaintiff, com- plains of the C. and H. R. R. Co., defendant, for that, the said C D was in the service of the said defendant as a brakeman on one of the train of cars of said defendant, running from to , on the day of A. D. 18 , and that as said train was ap- proaching the station, where it was to stop, the said C D, in obedience to the usual signal of the engineer for that purpose given attempted to wind up one of the brakes of said train to check the speed thereof, and that in so doing the brake-chain parted and the brake gave way, whereby the said C D was then and there, without any negligence or default on his part, thrown from said train and under and between the cars thereof, and so injured thereby that he instantly (or the same day, or in days thereafter) died therefrom ; and the said plaintiff avers that the death of the said C D was so caused by the neglect and carelessness of the said defendant, in providing and using a defective and unsafe brake and chain ; and the said plaintiff further saith that, etc. (as in first form.) 2206 POEMS OF PETITION. [OHAP. Petitions in Tort. The mode of stating'. the injury will vary with the circttmstances. It is necessary to aver the death, the appointment of administrator, and the fact of there being next of kin. It makes no difference if there is no widow. A bastard, in Ohio, is next of kin. There must be next of kin, or widow, to justify a recove;;y. Vide, Lyons, administrator, v. The Cleveland and Toledo R. R. Co., 7 0. St. Rep. 336 ; Lucas v. N. Y. Cen. R. R. Co., 21 Barb. Rep. 247, 10 Eng. Law and Eq. Rep. 437 ; State v. Gilmore, 4 Eost. 461 ; Quin v. Moore, 15 N. Y. Rep. 432. Muhl v. M. South. R. R., 10 0. St. Rep. 272. Action lies against druggist for care- lessly dealing out medicine. Quin v. Moore, 15 N. Y. Rep. 432 ; Rail- road Co. V. Webb, 12 0. St. Rep. 474 ; Oldfield v. N. Y. and H. R. R. Co., 14 N. Y. Rep. 310 ; Hall v. Grain, 2 West. Law Month. 593. The injury must be stated as though the deceased had himself brought the action. 15S<2. FpK SELLING MORPHINE TOE QUININE,. The said A B, administrator of C D, deceased, plaintiSj complains of the said B P and flthera, defendants, for that, -heretofore, to-wit, on the day of A D. 18 , at , the said C D, then being a,minor under the age of twenty-one years {or if a female under the age of eighteen years in Ohio), was sick and had prescribed for him a certain medicine, to-wit, quinine, and that the said G D, by one G H, applied to the said defendants, who were then and there engaged in the business of selling, drugs and medicines, and filling pre- scriptions given by physicians for the sick and infirm, and requested said de- fendants to put up grains of quinine as a prescription to be adminis- tered to the said C D, and that the said defendants then and there undertook to fill said prescription, and did then and there pretend to fill the same according to the requirements thereof; yet the said plaintiff saith that the said defendants, by their agents, so carelessly and negligently put up said prescription that, in- stead of putting up quinine, as was called for, put up grains of mor- phine instead thereof, and that the said C D, without any fault or neglect on his part, took the said morphine so put up as and for quinine, and that the said C D afterward then and there died from the effects of said morphine ; and the said plaintiff further avers that he has been duly appointed administrator of the said C D, and that one L M is the next of kin of said C D so deceased ; to the dam- age of said plaintiff' five thousand dollars. Whereof he prays judgment against said defendants for said ^um of $5,000, his damages so sustained. Vide, Quin r. Moore et al, 15 N. Y. Rep. 432. Where the accident happens from a collision, the fact should be so stated ; that the train to which said car was attached came in collision with a certain other train of cars of the said defendant, whereby the said car was with great violence thrown against another car, and o6f the track of said railroad, and the said plaintifll etc. It would not seem to be necessary to describe any more minutely the manner of carriage and of the accident. 7 0. St Kep. 336; 10 O. St. Rep. 272. XVm.J FOKMS OF PETITION. 221 Petitions in Tort. 156. BNGINEBR v. RAILROAD CO. FOE INJURY BT NE8LBCT OF A SERVANT OF SAID COMPANY. The said A B, plaintiff, complains of the Little Miami Railroad Com- pany, defendant, for that, before and at the time of the committing of the grievances by the said defendant, hereinafter mentioned, the said defendant was possessed of a certain railway, running from Cincinnati to Springfield, in said State of Ohio, and of two locomotives, with the trains of railway cars thereto respectively attached; the one of said locomotives and the train thereto attached, running from said Cincinnati to said Springfield, and back again the ensuing day thereafter, and the other thereof, running from said Springfield to said Cincinnati, and back again the ensuing day, which said locomotives, with their respective trains, were used and accustomed to meet and safely pass each other at Plainville, by the express direction and arrangement of the said defendant; and the said plaintiflF, at and before the time of the' injury hereinafter mentioned, was employed by said defendant as an engineer upon one of the 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 mentioned locomotive at Plainville aforesaid, under the instruction by him received from the said defendant, through its duly appointed agents and servants and there safely to pass the said other loco- motive as aforesaid; and that, by reason of the premises, it became the duty of the said defendant, by its agents and servants, to give the said plaintiflF timely and due notice of any change in the place of meeting and passing of the said locomotives and their respective trains; yet the said defendant, by its agents and servants, not regarding its said duty, did, by its agents and servants, on the day of , A. D. 18 , change the place of meeting and passing of said locomotives, with their respective, trains, from said Plainville to Columbia, on the line of said rail- road; and directed said change to be carried into effect on the day next . following the said day of , A. D. 18 , and the said de- fendant, by its agents and servants, 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 respective trains; whereby, whilst the said plaintiff was proceeding, in his capacity of engineer as aforesaid, on one of said locomotives, with the train thereto belonging, from said Cincinnati to said Springfield, to- wit, on the day of , A. D. 18 , according to the directions before that time given to the said plaintiff by the agents and servants of the said defendant, and of the change of which the said plaintiff then had no notice, between Columbia and Plainville aforesaid, the other locomotive, with its train, coming from said Springfield toward said Cincinnati, unavoidably ran against and came in collision with the 222 FORMS OF PETITION. [cHAP. Petitions in Tort. said locomotive, on which the said plaintifiF was, in his said capacity of engineer, and violently crushed the same; whereby the said plaintiff was then and there severally scalded, bruised, hurt, and wounded, and in con- sequence thereof became sick, sore, lame, and disordered, and so remained for the space of months thence next ensuing; and was put to great expense in and about the endeavoring to cure the said hurts, bruises, wounds, and fractures, and did expend therefor the sum of $ , and also, during all that time, was unable and thereby prevented' from attending to his ordinary business, and lost all the wages he otherwise would have earned as such engineer, to-wit, the sum of $ , to the damage of the said plaintiff $ Wherefore he prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. This is substantially a copy of the declaration in the case of Little Miami Railroad Co. v. Stevens, 20 Ohio Rep. 415. If the case is to be fol- lowed, it may be useful to the profession. The case, however, is one of purely judicial legislation , the authorities being nearly all against the decision. See the cases referred to in the dissenting opinion of Spaulding, J. The same doctrine has since been reaffirmed in New York, Massachusetts, South Carolina, and England. Coon v. S. and U. R. R. Co., 1 Selden Rep. 492; Hayes v. the W. R. R. Co., 3 Cushing Rep. 270; Skip v. Eastern R. R. Co., 24 Eq. and L. Rep. 396; Wigmore v. Jay, 5 Exch. Rep. 3S4; Hutch- inson V. York and Newcastle R. R. Co., 5 Exch. Rep. 343. The same doctrine was applied to hands in a manufacturing company. Albro v. Aga- wam Canal Co., 6 Cush. Rep. 76. The next form shows when the company are liable; and it may be that it can be maintained that the change of time was a corporation act, for which the company may be liable. The distinction is nice, but yet real. Where the agent is following the instruc- tions of the company, and through negligence injures another, then the company is not liable; but when the accident happens, not fi-om the negli- gence of the one doing the act, but from an act of negligence traceable to the company, then the company is liable. In the Stevens case, this change of lime may be considered a corporation act; if it was, then it was the duty of the company to give the notice; and having failed to give it, it was responsible for the accident. 1 McMuUen Rep. 386. / 1 5 r . ENGINEER v. EAILROAD OOMPANT FOR INJURY FROM USINO A CON- DEMNED LOOOMOnVg. The said A B, plaintiff, complains of the Western Railroad Corporation, for that the said defendant, before and at the time of the committing of the XVm,] FOEMS OF PETTriON. 223 Petitions in Tort. grievances hereinafter mentioned, was the owner of a certain railroad, and of a carriage commonly called a locomotive, moved and propelled by steam, and by the said defendant used and employed in carrying and conveying passengers and goods, (or may not this be preferred — ^hauling trains of cars, holding and containing passengers and goods, ) upna and over the said rail- road of the said defendant, from Greenbush, in the county of Albany, to Boston, in the State of Massachusetts, and intermediate places; that the said plaintiff, 9n the first day of December, A. D. 1846, at Greenbush aforesaid, at the time of the committing of the said grievances, was in the employment of the said defendant, as fireman upon said locomotive, so moved and pro- pelled 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 locomo- tive, with good, safe, and secure machinery and apparatus, to move and propel the same by means of steam as aforesaid; yet the said defendant, not regarding its duty in that behalf, conducted so carelessly, negligently, and unskillfuUy, that, by and through the carelessness, negligence, and defeult of the said defendant and its servants, in providing, using, and suffering to be used, an unsafe, defective, and insecure locomotive, and for want of due care and attention to its duty in that behalf, on the said day of aforesaid, and whilst the said locomotive was in the use and service of the said defendant upon the said railroad, and whilst the said plaintiff was on the same, in the capacity aforesaid for the said defendant, the boiler connected with the engine of the said locomotive, by reason of Ihe unsafeness, defectiveness, and insecurity thereof, exploded; whereby large quantities of steam and water escaped therefrom and fell upon the said plaintiff, by which he was greatly scalded, and injured, etc., (state any special damages, and conclude as in the preceding forms.) This is a copy of the declaration or petition in the case of Keegan v. The Western Kailroad Corporation, 4 Selden Rep. 175. The form might be somewhat improved possibly and shortened; but it contains all that is necessary to make a good case on paper. In this case» 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. S. and IT. R. R. Co., 1 Seld. Rep. 492. .The locomotive in this case had been reported as insufficient for service by the engineers, but the corporation continued to use it; hence it was the default of the corporation, and not of its serv- ants. These had done their duty in reporting its insufficiency. The court says; as to the cases cited where railroads had not been held liable for an injury to one servant, arising from ,the negligence of another: ■" They are 15 224 FOEMS OF PETrriON. [OHAP. Petitions in Tort. applicable only where the injury complained of happened without any actual fault or misconduct of the principal, either in the act which caused the injury, or in the selection and employment of the agent by whose fault it did happen. Whenever the injury results from the actual negligence or misfea* sance of the principal, he is liable as well in the case of one of his servants as in any other. But where the injury results from the actual fault of a competent and careful agent, (as may sometimes happen, ) the fault, when the injury falls upon another servant, will not be imputed to the principal, as it will where the injury fells upon a third person; as, for instance, on a passenger oh a rail- road. In the case of passengers, the actual fault of the agent is imputed 'o the principal on grounds of public policy; in the case of a servant it is lot. The reason for this distinction may be found in the cases cited by appellant's counsel. But it is unnecessary to state them here, because the injury in the present case is found to have resulted directly from the negli- gence or misconduct of the defendants themselves, in continuing to use an engine having a defective and dangerous boiler, after notice of its dangerous condition." The question. What would be the effect of a knowledge by the plaintiff of the defective character of the boiler upon his right to recover? is left an open one; though ^e language of the court would seem to imply that, if he had this knowledge, it would change his rights. It should not certainly. The company would have a right to discharge a servant who refused to go on its order, and hence it ought to be responsible to the same extent as if the defect of the boiler was not known to the plaintiff. 5 0. St. Rep. 541. 168. MAIL A6BNT /. RAILROAD COMPANY. The said A B, plaintifiF, complains of the said C D, defendant, for that the said defendant is a corporation, engaged in carrying passengers and freight from to , by railroad; and that the said de- fendant had entered into a contract with the United States, by which, for a stipulated price and period, the said defendant agreed to transport, upon the said railway of the said defendant, and in the cars thereof, the mail and mail ^gent of the said United States; and the said plaintifiF saith that he was the mail agent ;of the saitt United States on the said route, and in the employ of the saime; and that, on the day of June, A. D. 18 , the said defendfant, in pursuance and in consideration of the said contract of the said defendant, with the said United States, received the said plaintiff as such mail agent' into one of the cars of the said defendant, so running on the railway aforesaid; and the said plaintiff, for the purpose and considera- tion aforesaid, became and was a passeviger in said cars, to be thereby, and XVni.] FORMS OF PETITION. 325 Petitions in Tort, by the said defendant, safely, and with due care and caution, carried and conveyed from the said town (or city) of to the said town (or city) of , and which the said defendant then undertook and was bound to do; and yet the said defendant, not regarding the duty of the said defendant in that behalf, did not, nor would safely and with due care and skill, carry the said plaintiff as such passenger, but on the contrary thereof, so carelessly, unskillfully, and improperly managed in that be- half, that afterward, and while the said car was proceeding from the said town (or city) of to the said town (or city) of , and while the said plaintiff was such passenger therein, the said car, by and through the defectiveness and insuflBoiency of the same, and of the con- struction and material thereof, or of the engine and tender, or of some one of the cars of the train to which the said car was attached, and by and through the carelessness, unskillfulness, and improper conduct and default of the said defendant, and the said defendant's oflScers, agents, and servants in that behalf, and in the running, managing, and conducting of the car, and train, and engine drawing the same, was broken in pieces and thrown off the railroad track, and thereby then and there the ribs and bones of the said plaintiff, and the parts adjacent thereto, became and were dislocated, bruised, fractured, and broken, and he, the said plaintiff, was otherwise greatly injured, to the damage of the said plaintiff $ The said plaintiff therefore prays judgjnent against the said defendant for the said sum of $ , his damages so as aforesaid sustained. This is a copy of tne petition in the case of Nolton v. The Western Railroad Corporation, 10 Pr. Rep. 97; and that was copied from the decla- ration in the case of Collett v. The London and North-Western Railway Co., 6 Eng. Law and Eq. Rep. 305. In both these cases, it is held that the company are liable for an injury to a mail agent, as well as to any other passenger. Vide also Levy v. Langridge, 4 Mees and Welsh. 337. 1S9. AGAINST BAILBOAD FOB KILLING CATTLB. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, before and at the time of the committing of the griev- ances hereinafter mentioned, to-wit, on the day of , A. D. 18 , was the owner and occupier of a certain railroad leading from to , and of certain cars and a locomotive running thereon, and the said plaintiff further saith that he was then the owner and possessed of certain cattle, to-wit, of five cows and two oxen, (or any other stock, as the case may be,) of the value of $ , and which cows and 228 FOBMS OF PETITION. [OHAP. Fetitiona ia Tort. oxen casually, and without the fault of the said plaintifif, strayed in and upon the track and ground occupied by the railroad of the said defendant; and the said plaintiff further saith that the said defendant, by its agents and servants, not regarding its duty in that respect,^ so carelessly and negligently ran and managed the said locomotive and cars that the same ran against and over the said cows and oxen of the said plaintifif, and killed and destroyed the same, to the damage of the said plaintiff $ The said plaintiff, therefore, pray-s judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. The law has been generally settled that railroad companies are not liable for injury to cattle killed while trespassing on the road. The neglect on the part of the plaintiff, in suflfering his cattle to be at large, precludes him from recovering, as the first fault is his. Muuger v. Tonawanda R. R. Co., 4 Ogmst. Rep. 349; Clark v. S. and U. E. R. Co., 1 1 Barb. S. C. Rep. 112; Vandergrift v. Eastern R. R. Co., 29 Maine Rep. 307; Tonawanda R. R. Cb. «. Hunger, 6 Denio Rep. 265; Town v. Cheshire R. R. Co., 1 Foster N. H. Rep. 363; Quimby v. Vermt. Central R. R. Co., 23 Vermt. Reps. 393; Trow w. Vermt. Central R. R. Co., 24 Vermt. Rep. 487; Brooks v. N. Y. and E. R. R. C, 13 Barb. Rep. 524. In Michigan, it has been held, it is believed, that an owner of caitle killed could not recover, even if killed by negligence. In the case of Kerwhacket v. Clev. Col. & Cin. R. R. Co., 3 Ohio St. 172, it seems to have been intimated that the R. R. Co. would be liable in any case ; since in Ohio no person was bound to fence against cattle. This last doctrine is in direct conflict with repeated decisions made in Com- mon Pleas and Supreme Court, on the circuit, as is known to ns. This case was rightly decided, since the court below held the defendant was not liable even for a careless killing. Some cases go that far, but they are clearly wrong. In Clev. Col. & Cin. R. R. Co. v. Elliot, 4 Ohio St. Rep. 476, the Supreme Court qualified the doctrine stated in the previous case, holding the railroad only to diligence in running its train. If stock are on the track, as that is only a remote cause of the injury, the owner can recover, if his cattle have been killed by negligence. Where the owner of cattle is bound to fence against the track, he cannot recover for cattle killed on it, unless it was done willfully or by gross carelessness,, 4 Ohio St. Rep. 424. Even if the plaintiff is in such case guilty of violating his contract in not erecting the fence, still the R. R. Co. has no right willfully, or by gross. negligence, to destroy his property. He would be liable to the company for any injury sustained from a refusal on his part to fulfill his contract. The case in 3 Ohio St. Rep. 172 was rightfully decided, since the court below clearly_ charged the law wrong, when it said that the defendant was XVin.] FORMS OF I'ETmON. . 227 Petitions in Tort; not bound to exercise any care whatever to avoid killing the cattle. Somf of the cases go that far, but they are clearly wrong. These cases assume that, where there is neglect on the part of the plaintiflF, he cannot reco- ver. This is true, where that neglect is connected with the immediate in- jury ; as where the road is out of repair, or a nuisance is erected, a party must avoid it if he can; he cannot be permitted voluntarily to cast himself upon an obstruction, where he can by ordinary care .avoid it. Hogg v. Zanesville C. and M. Co., 6 Ohio Rep. 410, 418. But the negligence in these cases is not of that character; it has nothing to do with the immediate injury, and the rule, therefore, does not apply. The rule is very well stated in Hess v. Lupton, 7 Ohio Rep., part i, 216. If one leave an open pit in an uninclosed lot in a town, into which his neighbor's beast falls and per- ishes, an action lies; but if such an accident happen in a pit left open in a place remote from the haunts of cattle, no suit is sustainable, for the risk of doing mischief is so small that the exposure is not negligent. ' Or to put the case in another form: has one a right to kill his neighbor's cattle be- cause he finds them trespassing on his inolosure? We think no case can be found for such a proposition. If an individual has not the right, no more has a railroad company. Hence it is clear that a railroad company are bound to exercise every reasonable care to avoid killing cattle found op their track. If the owner were to turn his cattle on the track, then he ought not to recover, because it is his own fault, or rather crime, in ex- posing them to the danger; and to allow him to recover under such circum- stances would be to pay a premium for a willful violation of duty, at the hazard, too, of destroying the lives of those traveling upon railroads. The safety of the traveling public is a matter of as much importance as the value of cattle; and to allow cattle to be on the track of a railroad is a crime, since it endangers the lives of those who work and travel on it. To enable a party to recover, the cattle must have strayed on the road; the negligence, if any, must be remote; and then the agents of the company must avoid injuring them, if it can be done by the use of ordinary care and diligence. Here, again, the public have an interest; as in running over them, the train is liable to be thrown ofiF the track; hence every in- ducement should be held out to prevent a collision; and a liability, on the part of the company and the agents, to pay for cattle killed, will tend to induce caution and care on the part of conductors and engineers. ' And it seems that this doctrine has been maintained in some cases. Quiniby v. Vermt. Central R. R. Co., 23 Vermt. Rep. 393; Fawcett v. The York and N. M. R. R. Co., 2 Eng. L. and Eq. Rep. 289. Where, however, the law requires a railroad company to keep up cattle- guards and fences, and they neglect to do so, they are liable, even if the 228 F0EM3 OF PETITION. [CHAP. FetitionB in Tort. cattle are abroad by tlie negligence of the owner, under such circumstances as to render their access to the road probable. Fawcett v. The York and North Midland E. E. Co., 2 Eng; Law and Eq. Eep. 289; Quimby v. The Vermt. Central E. E. Co., 23 Vermt. Eep. 393; Trow v. the same, 24 do, 487. So where the owner of land agreed to keep up a fence, as well as the railroad, he can not recover, for injury to bis cattle, if he fails to do so, as well as the railroad company, unless there is gfross negligence on the part of the railroad agents. Talmadge v. E. and S. E. E. Co., 13 Barb. Eep. 493; Suydam v. Moore, 8 Barb. S. C. Eep. 368; Waldron v. E. and S. E. E. Co., 8 Barb. S. C. Eep. 390. But if the owner permits his cattle to run upon the road, he can not recover, even if the company is required to keep up the fence. Clarke v. S. and IT. E. E. Co., 1 1 Barb. S. C. Eep. 112. Such we believe to be the correct view of the law; and it may be briefly summed up in the following propositions: Where the company is bound to fence, and has not done it, then it is liable in all cases, unless the owner knowingly permits his cattle to be upon the road; and then, if they are killed by gross negligence. Where the • company is not required to fence, then it is still liable where the cattle escape and stray upon the road, without the fault of the owner, if, by the use of ordinary care and caution, the accident might have been avoided; but where the owner allows his cattle to run at large, under such circum- stances as render it probable that they will stray upon the road, then he can not recover at all; because to permit him to recover would be to hold out a reward to a negligence endangering the lives of those who travel upon these thoroughfares. If the engineer kills them by carelessness, then both parties have been guilty of an act, which ought to be punished as a crime; since its almost inevitable result is to endanger and destroy human life. A person who lays a rail on the track is a criminal by law; and why? Because he willfully endangers human life. A person who knowingly per- mits cattle to stray upon the track also endangers human life; and why should he not be punished in degree? But to permit him to recover, if his cattle are killed, would be to reward him for his criminal negligence in endan- gering the lives of others. If the case lately decided by our court goes so far as to permit one to recover under such circumstances, then it is entitled to no respect, even in Ohio. 5 0. St. Eep. 541 ; 6 do. 105 ; 8 do. 239, 570. 160. AGAINST A RAILROAD AS A COMMON CARRIER. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , owned and used a certain railroad, leading from the city of Troy to the village of ivin.] FOEMs OF PETrrioN. 229 Petitions in Tort. Ballston, connected with the Schenectady and Saratoga Bailroad, and the Washington and Saratoga Railroad, and owned, and used, and ran upon the road of the said defendant, in connection with the railroad of the said S. and S. Bailroad and the said W. and S. Railroad, passenger and baggage cars, for the carriage of passeng-ers and their baggage to and from White- hall to the said city of Troy for hire; and the said plaintiff saith that, on the' day of , A. D. 18 , at said Whitehall, she paid to the said defendant the &re iox the passage of herself and her children, and baggage, from the said village of Whitehall to the said city of Troy; and that her said baggage consisted of four parcels, containing clothing and bedding, and that one of said parcels was a trunk, and contained, with certain clothing, eighteen gold sovereigns, provided for the traveling expenses of the said plaintiff and her said children; and that the said plaintiff delivered the said baggage to the agents of the said defendant at said Whitehall, and the said defendant, by its agents, there received the same, and placed the same in a baggage car of said defendant, to be carried to the said city of Troy; and the said plaintiff avers that she and her said children came to the said city of Troy in a passenger car attached to and drawn with the said baggage car over the said railroads from the said town of Whitehall to the said city of Troy; yet the said defendant, by its servants, so negli- gently, carelessly, and improperly conducted itself, in this behalf, and in the carrying and taking care of said baggage, that two of the said packages — the said trunk with the said sovereigns therein and another package — through the negligence and carelessness of the said defendant, became and was wholly lost to the said plaintiff, to her damage, as she avers, $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ This is prepared from the petition in the case of Hart v. The Rens- selaer and Saratoga B. R. Co., 4 Selden Rep. 37. It shows the liability of companies joining and running over roads belonging to several companies. It may be useful at times to have the reference and the form. 10 0. St. Rep. 65. 161. COUMON OABBIBES. The said A B, plaintiff, complains of the said D, defendant, for that the said defendant, before and at the time of the delivery of the goods here- inafter mentioned, was, and from thence hitherto hath been, and still is, a common carrier of goods and chattels for hire; and that the said plaintiff, whilst said defendant was such common carrier, to-wit, on the day of , A. D. 18 , caused to be delivered to the said defendant, and the said defendant then accepted and received of and from the said 230 FORMS OF PETITION. [cHAP. Petitions in Tort. plaintiff, the following goods and chattels {or a box, or boxes, containing divers goods and chattels, ) to-wit, {here describe the goods, etc. ) of the said plaintiff of great value, to-wit, of the value of $ , to be safely carried and conveyed from to , and there to be safely delivered for {or to, as case is,) the said plaintiff, for a certain rea- sonable reward to the said defendant in that behalf; yet the said defendant, not regarding his said duty as such common carrier, did not, nor would safely or securely carry or convey the said from to , as aforesaid, nor there, to-wit, at , safely deliver the same for (or to,) the said plaintiff; but on the contrary thereof, the said defendant so carelessly and negligently behaved and conducted him- self in the premises that, by the carelessness and fault of the said defend- ant, the said , being of the value aforesaid, was then and there wholly lost to the said plaintiff, to the damage of the said plaintiff $ Wherefore he prays judgment against the said defendant for the said sum of $ , his said daniages so as aforesaid sustained. 162. FOB NOT DELIVERING IN A KBASONABLB TIME. The said A B, plaintiff, complains of the said C D, defendant, for that, {here insert from \&\ the averment of being a common carrier,) amd the said plaintiff, on the day of , A. D., 18 , at the special in- stance and request of the said defendant, caused to be delivered to him, the said defendant, certain goods and chattels, {or certain boxes, containing certain goods and chattels,) to-wit, {here describe the goods, etc.,) of the said plaintiff, to be taken care of and safely carried by the said defendant from to , and there, at , to be safely de- livered by the said defendant for, {or to,) the said plaintiff within a rea- sonable time thence next following, for certain hire and reward to the said defendant in that behalf; and the said defendant did then accept and receive the said , for the purpose and on the terms aforesaid; and although a reasonable time for the carriage and delivery thereof as aforesaid has long since elapsed, yet the said defendant, not regarding his duty in that behalf, did not, nor would within such reasonable time as aforesaid, oi at any time afterward, take care of, or safely carry the said goods and chat' tels to aforesaid, nor there at , safely deliver the same for, (or to,) the said plaintiff; but hitherto hath wholly neglected so to do; by means whereof the said of the said plaintiff have been wholly lost to him, the said plaintiff, to his damage $ Wherefore he prays judgment against the said defendant for the said sum of $ . his said damages so as aforesaid sustained. XVm.J FOBMS OF PETIIION. 23] Petitions in Tort. 163. EOE NOT DBLITBEING BAGQA8B OF PASSBNQBR. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, before 8i,nd at the time of the delivery of the goods and chattels hereinafter described, was the owner of a certain stage-coach, (or railroad, or steamboat, as case may be,) for the carriage and convey- ance of passengers and their baggage for reasonable hire and reward to the said defendant in that behalf; and the said plaintiflf, at the special instance and request of the said defendant, did, on the day of , A. D. 18 , cause to be delivered to the said defendant a certain trunk, (or valise,, carpet sack, box, etc.,) containing the following goods and chattels, to-wit, (here describe them, ) of the said plaintiflf to be taken care of and safely carried by the said defendant to , and there to be safely delivered by the said defendant for the said plaintiflf; and the said defend- ant then and there accepted and received the said and its con- tents aforesaid, for the purpose aforesaid, and undertook the carriage and delivery thereof as aforesaid; and although a reasonable time for the car- riage and delivery thereof as aforesaid has long since elapsed, yet the said defendant, not regarding his said duty in the premises, did not, nor would within such reasonable time, or at any time since, take care of, or safely carry the said , and its said contents, to aforesaid, nor there safely deliver the same for the said, plaintiff, but hath wholly neglected and refused so to do; by means whereof the said plaintiff hath wholly lost said trunk and its said contents, to the damage of the said . plaintiff $ Wherefore he prays judgment against the said defendant, for the said sum of $ , his damages so as aforesaid sustained. 164. AGAINST A OARBIBR BY WATER. The said A B, plaintiff", complains of the said C D, defendant, for that the said plaintiff, at the special instance and request of the said defendant, did, on. the day of ,A. D. 18 , at , cause to he delivered to the said defendant divers goods and chattels and merchandise, to-wit, ( here describe them, ) of the said plaintiff, of great value, to-wit, of the value of f , to be carried by the said defendant in and by a cer- tain ship, (or steamboat, or vessel,) called , from afore- said to , and there, at aforesaid, to be delivered to the said plaintiff (or to his assignee, or to the consignee, if one be named,) for certain freight and reward to the said defendant in that behalf, [the dangers of the seas, (or river,) the public enemies, and the act of God ex- cepted; (let this averment correspond with exceptions in bill of lading;)'] 232 FOEMS OF PEITTION. [CHAP. Petitions in Tort. and he, the said defendant, then and there took and received the same accordingly, for the purpose aforesaid. And althongh the said ship (or vessel, or steamboat, etc.,) afterward, in a reasonable time did safely arrive at aforesaid, and no dangers of the (let this correspond with bill of lading;) prevented the safe carriage or delivery of the said goods, chattels and merchandise aforesaid, yet the said defendant not re- garding his said duty in that behalf, did not deliver the said goods, chattels and merchandise to the said plaintiff, but so carelessly and negligently con- ducted himself in this behalf that, for want of due care on the part of said defendant and his servants in that behalf, the said goods, chattels and mer- chandise became and were wholly lost to the said plaintiff; (or if the goods are damaged, state that; if part have been delivered, then no notice need probably be taken of that fact; the petition need specify only the goods lost;) to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 165. AGAINST AN INNKEEPER, FOE LOSS OF OOODS, ETC. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, before and at the time of the loss hereinafter mentioned, was an innkeeper, and as such kept a common inn for the reception, lodg- ing, and entertainment of travelers, situate at , in the county of , and the said plaintiff heretofore, to-wit, on the day of , A. D. 18 , put up, and was then and there received into the said inn as a traveler by the said defendant, and then and there brought into the said inn a certain trunk (or box, valise, carpet sack, etc.,) con- taining certain goods and chattels, to-wit, (here state the articles as spe- cifically as can be done, ) of the said plaintiff, of great value, to-wit, of the value of $ , and which said trunk, with its contents aforesaid, were then in said inn and so continued up to the loss thereof, as hereinafter men- tioned, and that said plaintiff during all that time abided as a traveler therein; yet the said defendants, not regarding his said duty as sueh inn- keeper, did not keep the said trunk and its said contents, so being in said inn, safely and without loss; but on the contrary thereof, the said defendant and his servants so negligently and carelessly conducted themselves in that behalf that afterward, and whilst the said plaintiff so abided in the said inn, to-wit, on the day of , A. D. 18 , the said trunk and its said contents were, by and through the negligence and default of said defendants and his servants in that behalf, wrongfully taken and car- ried away by some person or persons, to the said plaintiff as yet unknown, XVra.J F0KM4 OF PETITION. 233 Petitions in Tort. and thus became and are wholly lost to the said plaintifiF, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 166. AGAINST AN ATTOKNBT. The said A B, plaintiff, complains of C D, defendant, for that, before and at the time of the committing of the wrongs by said defendant herein- after mentioned, the said plaintiff, at the special instance and request of the said defendant, had retained and employed the defendant as an attorney and counselor at law, to prosecute, and conduct, and manage a certain action in the Court of Common Pleas, within and for the county of , in said State of Ohio, by and at the suit of the said plaintiff against one E F, for the recovery of a certain sum of money, (^or claim,) to- wit, the sum of $ , then claimed by the said plaintiff to be due to him from the said E F, for fees and rewards to the said defendant in that behalf; and the said defendant then and there accepted and entered upon said retain^ and em- ployment; yet the said defendant, not regarding his said duty in the prem- ises, did not, nor would prosecute, conduct, or manage the said action with due and proper care, skill, and diligence; but on the contrary thereof,' prosecuted, conducted, and managed the said action in such a careless, unskillful, undue, and improper manner, and with such want of skill and diligence in that behalf, that the said action afterward, to-wit, at the term of said court, A. D. 18 , became and was rendered wholly abortive, and the said plaintiff then and there was forced and obliged to be, and he then and there was, non-suited, (or if verdict be rendered against him, state the fact as it is;) whereby the said plaintiff was and has been hindered and prevented from recovering his said claim from the said E F, but is likely to lose the same, and hath also been forced to pay costs and charges, in and about said action expended, to the amount of $ , and hath also paid said defendant, as such attorney in said action, the sum of $ , whereby the plaintiff hath sustained damages to the sum of $ . Whereupon the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 167. AGAINST A STJROEON. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, before and at the time of the retainer of the said defendant hereinafter mentioned, had had the bones of his right leg below the knee broken and fractured; and that afterward, to-wit, on 234 FORMS OF PETITION. [OHAP. Petitions in Tort. the day of , A. D. 18 , the said plaintiflf, at the special in- stance and request of the said defendant, retained and employed the said defendant as a surgeon to set and reduce the said fracture of the bones of his said leg to their proper position and place, and to attend to, cure, and heal the same, for a certain fee and reward to the said defendant in that behalf; and the said defendant undertook and entered upon such retainer and employment; yet the said defendant, not regarding his duty in the premises, so carelessly, negligently, and unskillfuUy set and reduced the said fracture of said leg, and so negligently and unskillfuUy boimd up, and dressed, and bandaged the same, and so unskillfuUy and negligently nursed and attended to the said fracture and injury, that the said* plaintiflF, by reason of such unskillfulness and negligence, has wholly lost the use of his said leg, (or that his said leg has become, and stiU is, crooked and shorter than in its natural state, ) whereby he hath been greatly injured, and rendered unfit and unable to follow his lawful business, and has also been put to great expense, to-wit, the sum of $ , in and about en- deavoring to straiten, and improve, and cure his said leg, to the damage of the said pMntiff $ Wherefore the said plaintiflf prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. The character of the averments as to the fracture, and the negligence, must be varied to suit the facts of each case. If the neglect was that the fracture was not reduced, whereby the injury occurred, it should be so stated. If the fracture was reduced, and the injury happened from not using a proper splint, or in neglecting to bandage it properly, whereby it got out of place again, it should be so stated, as the fact may be. 168. AGAINST BAILEE. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, at the special instance and request of the said defendant, did, on the day pf , A. D. 18 , deliver to the said defendant certain goods and chattels, to-wit, (here describe them,) of the said plaintiff, of great value, to-wit, of the value of $ , to be by the said defendant, (here state the purpose for which the goods are received, whethei- to be carried, or to be kept, or safely to be loaded on a certain steamboat, or wagon, ) at , for the said plaintiff, for a reasonable reward, (if no pay is to be given, leave this out, ) to the said defendant in that behalf, and the said defendant then and there received said goods and chattels foi the purpose aforesaid; yet the said defendant, not regarding his duty in XVm.J F0EM3 OF rElITIOX. 235 Petitions in Tort. that behalf, afterward, on the day of , A. D. 18 , by himself and his servants in that behalf, eonducted himself so carelessly and negligently in and about the loading of the said .goods on board of said ship, that, by and through the mere negligence of the said defendant and his servants in that behalf, the said goods and chattels then and there • be- came and were greatly broken, and damaged, and wholly lost to the said • plaintiff, to the damage of said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 169. FOK NOT TAKING OAKB OP GOODS, WITHOTTT REWARD. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, at the special instance and request of the said defendant, did, on the day of , A. D. 18 , deliver to the said de- fendant the following goods and chattels, to-wit, [here describe the same,) of the said plaintiff, of the value of $ , to be taken care of and safely k^pt by the said defendant for the said plaintiff, and to be re-deliyered by the said defendant to the said plaintiff, when he the said defendant should be thereunto afterward requested; and the said defendant then and thsre had and received said goods and chattels for the purpose aforesaid; and the said plaintiff further saith that afterward, to-wit, on the day of , A. D. 18 , he requested the said defendant to re-deliver to him, the said plaintiff, the said goods and chattels; yet the said defendant did not, nor woUld take due care of said goods and chattels, or safely keep the same for the said plaintiff, nor did, nor would, when so requested as aforesaid, or at any time before or since, re-deliver the same to the said plaintiff; but on the contrary, the said defendant so carelessly conducted himself with respect to the said goods and chattels, that, by and throxigh the negligence and default of the said defendant, the said goods and chattels became and were wholly lost to the said plaintiff, to the- damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 170. FOE DECEIT Iir SALE OF A HORSE. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, at the special instance and request of the said defendant, did, on the day of , A. D. 18 , bargain with the said defendant to buy of him, the said defendant, a certain horse, [or mare,) at and for a certain price or sum of money, to-wit, the sum of $ , and ^36 FOEMS OF PETITION. [CHAP. Petitions in Tort. the said defendant, to induce said plaintiff to buy said horse at the sum aforesaid, did then falsely represent that the said horse, so far as he, the said defendant, knew, was sound and gentle, and broken to draw in a carriage; and the said plaintiff, relying on the statements of the said defendant, did then buy of the said defendant the said horse, at the said sum of $ , and then paid the said defendant therefor; and the said plaintiff saith that the said horse was not sound, nor gentle, nor broken to draw in a carriage, as the said defendant represented; but that said horse was unsound in this — that he had a certain disease, called , and was also lame in his right fore -shoulder, and had been greatly injured in his health by having been overworked, so that he could not perform the labor of a well and sound horse — and that said horse was restive, fractious, liable to kick, and refused to draw in a carriage; and the said plaintiff further saith that the said defendant, at the time he so represented said horse to be sound and gentle, and broken to a carriage, well knew that said horse was not sound, gen- tle, and broken to a carriage; but on the contrary, knew that said horse was unsound, restive, fractious, liable to kick, and would not draw in a carriage; wherefore the said plaintiff saith he has been deceived by the said defend- ant to the damage of him, the said plaintiff, $ Wherefore the said plaintiff prays judgment against said defendant for the said sum of $ , his damages so as aforesaid sustained. 171. FOR DECEIT ON EXCHANGE OP A HORSE. The said A B, plaintiff, complains' of the said C D, defendant, for that the said plaintiff heretofore, to-wit, on the day of , A. D. 18 , at the special instance and request of the said defendant, bargained with the said defendant to eichange with the said defendant a certain horse, (or filly, or mare, or colt, or ox, cow, etc.,) of the said plaintiff, of the value of $ , and for a sum $ , in money, to be therefor paid and delivered by the said plaintiff to the said defendant, together with the said horse of the said plaintiff in exchange for the said horse of the said defendant; and the said defendant, to induce said plaintiff to make said exchange, then falsely, knowingly and willfully represented to the said plaintiff that the said horse of the said defendant was sound, as far as he, the said defendant, knew, (or gentle, or broken to work in a carriage, or team, or whatever the representation was, ) he, the said defendant, then well knowing that said horse was not sound; and the said plaintiff, confiding in said representation, did then deliver his said horse, and paid said sum of money to the said defendant in exchange for the said horse of the said defendant; and the said plaintiff saith that at the time of said exchange the said horse was not sound, but Qn the contrary, was then, and still is, unsound, and XVin.J FOEMS OF rETITION. 237 Petitions in Tort. hath become of no value to the said plaintiif, to the damage of the said plaintiflF $ ' . Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 17a. FOB DEOBITFULLT SELLING A SMALLER QUANTITY OF GOAL THAN PRE- TENDED. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, on the day of , A. D. 18 , at the spe- cial instance and request of the said defendant, bargained for and agreed to buy of the said defendant, and, the said defendant then sold to the said plaintiff, bushels of coal, at and for the price of for each and every bushel; and the said defendant afterward, on the said day of , A. D. 18 , fraudulently and deceitfully intending to defraud the said plaintiff, did fraudulently and deceitfully de- liver to the said plaintiff only bushels of coal, as and for the said quantity of bushels, so bargained for and sold to the said plaintiff as aforesaid, he, the said defendant, then well knowing that the coal so delivered did not contain the said quantity of bushels, but only the said quantity of bushels, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said' sum of $ , his damages so as aforesaid sustained. Note.— See 8 Starkie Reports, page 28. 173. FOE DECErrFULLT SELLDIG A TRACT OP LAND FOR MORE THAN WAS IN rc. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, on the day of A. D. 18 , bargained with the said defendant to buy of him a certain piece or parcel of land of the said defendant, situate , which said piece or parcel of land the said defendant then falsely represented to contain acres, when he, the said defendant then well knew that said piece or parcel of land contained only acres therein; that the said plaintiff, then confiding in the truth of said representations, and supposing said parcel of land to contain the said quantity of acres, agreed to pay for said land, and did then pay therefor to the said defendant the sum of $ , whereas in truth and fact the said piece or parcel of land did not contain the said quantity of acres, but only the quantity of acres, whereby the said plaintiff has sustained damages to the amount of $ 238 FOKMs OF PETrrJON. [chap. Petitions in Tort. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. Note.— 'WardeU e. Davis, 18 J. E. 825; Morrell «. Colver, IS Ibid, 895. 17 4. FOE FALSBLT RBPEBSENTDfO A THIRD PBESOir AS FFT TO BE TKnSTBD. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, before and at the time of the committing of the injuries hereinafter stated, was, and ever since hath been, a , and has carried on at , the said trade and business during all that time: and one E F did then and there apply to the said plaintiff, and requested said plaintiff to sell goods on a credit to the said E F, in the way of the said plaintiff's said trade and business of a ; and the said|)lain- tiff, being then unacquainted with the character and solvency of the said E F, was, by the said E F, then referred to the said defendant for informa- tion respecting the character and solvency of him, the said E F; and the said plaintiff did, on the day of-- , A. D. 18 , apply to the said defendant for information as to the character and solvency of the said E F, and the said defendant did then, in reply to such application, falsely represent and assert to the said plaintiff that the said E F was of a fair character for integrity as a business man, that he was a merchant at , and was worth the sum of $ , and could safely be trusted for any sum not exceeding $ , (or whatever the representation,) and that the said plaintiff, relying upon said representations, did then sell a bill of goods to the said E F on a credit of months, to the amount of $ . , which said bill of goods the said E F has never paid; and the said plaintiff avers that the said E F, at the time of the said repre- sentations, was not a man of integrity, and was not worth the said sum of $ , and could not then be safely trusted for any sum not exceeding $ ; but on the contrary, that the said E F was notoriously a dis- honest man, was wholly' insolvent, and unfit to be trusted for any sum whatever; and the said defendant, when he so made the said representa- tions, well knew that the said E F was not a man of integrity, that he was wholly insolvent, and unfit to be credited for any amount whatever, whereby the said plaintiff has sustained damages to the amount of $ ■Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. For the law on this subject, see McCracken v. West ef al., 17 Ohio Eep. 16; 2 East. Rep. 107; 3 B. and P. 367; 1 Taunt. R. 658; 6 Bing. XVm-] FOEMS OF PETITION. 239 Petitions iu Tort. Rep. 396; 3 Esp. Rep. 194; 7 Price Rep. 644; Young v. Oovell, 8 J. R. 23; Addington v. Allen, 1 1 Wend. Rep. 375. 175. FOB NGOLIOBNOS IN DBIYINQ A OASBIAOB. The said A B, plaintiff, complains of the said G D, defendant, for that the said plaintiff, on the day of , A. D. 18 , was pos- sessed of a certain wagon, (or coach, or buggy,) of the value of $ , and of a horse, of the value of $" , then: drawing said wagon, and in which said wagon, so being drawn, the said plaintiff was then riding along a certain public highway; and the said defendant was also then and there possessed of Another wagon and another horse, (or two, or four other horses,) drawing the same, and which wagon and horses were then under the direc- tion of the said defendant, (or of a certain servant of the said defendant, ) who was then and there driving the same in and along said highway; and that the said defendant then and there^ (or by his said servant,) so care- lessly drove his said wagon and iorse that, by and through the carelessness and negligence of the said defendant, (or by his said servant,) in that be- half, the said wagon of the said defendant then and there ran and struck with great force upon and against the wagon of the said plaintiff, and thereby crushed, broke in pieces and greatly damaged the same; and thereby the said pMntiff was thrown with great force from his said wagon to and upon the ground, and was thereby greatly hiirt, bruised, and wounded, (or, if any bones were dislocated or fractured, set that fact forth,) and became sick and lame, and so remained for weeks, and was, during all that time, unable to attend to his usual business, and was forced to expend $ , in and about endeavoring to be cured of his said hurt and wounds, and in about repairing his said wagon so as aforesaid injured, to the damage of the said plaintiff '$ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. For the law, see 3 C. and P. 644; 1 East. Rep., 106; 3 do. 693; 6 T. R.' 126; 6 do. 648; 4 B. and A. 690; 2 Esp. Rep. 686; Jaquith v. Rich- ardson, 8 Metcalf Rep. 213; Dudley v. Bolles, 24 Wend. Rep. 466; John- son V. Small, 6 B. Monr. 25; Fales v. Dearborn, 1 Pick. Rep. 345; Palmer V. Barker, 2 Fairf. Rep. 338. 176. NEGLIGENCE IN NAVIGATING STEAMBOATS, SHIPS, ETC. The said A B, iplaintiff, complains of the said C D, defendant, for that the said plaintiff, before and at the time of committing the injuries herein- after mentioned, was possessed of a certain flatboat, (barge, steamboat, of 16 "^ FORMS OP PETITION. [OHAP. Petitions in Tort. other water craft, as the case may be,) of the value of $ , then afloat in the Ohio river, and loaded with divers goods and chattels, to-wit, {here describe them,) and the said defendant was then and there possessed of a certain steamhoat, called the , (or other vessel,) and then and there, (by and through his servants,) had the management and direction thereof; and the said defendant, not regarding his duty in that behalf, and whilst the said flatboat was floating upon said river, took so little and such bad care of his said steamboat, in the direction and management thereof, that the same, by and through the carelessness, negligence, and mismanagement of the said defendant, {or if he was not on hoard, by his servants in that behalf, ) then and there with great force ran foul of and struck against the said flatboat of the said plaintiff, and thereby broke and greatly damaged the same, and thereby the said goods and chattels of the said plaintiff then on board of said flatboat became and were greatly wetted', damaged, and spoiled; and the said plaintiff, by reason thereof, has been obliged to lay out, expend, and pay the sum of $ , in and about the repairing the damage to said flatboat, and in saving and taking care of said goods and chattels so as aforesaid injured; and was also deprived of the use of his said flatboat for the space of , to the damage of the said plain tiff $ Wherefore the said plaintiff prays judgment against the said defendan for the said sum of $ , his damages so as aforesaid sustained. The plaintiff can not recover, if the fault by which the accident occurred was his; the plaintiff must show he used ordinary care. Barnes v. Cole, 21 Wend. Rep. 188; 4 McLean Rep. 286, 689; Rathburn v. Payne, 19 do. 399; U. States v. Mayor, 5 Mo. Rep. 230; Simpson v' Hand, 6 Whart. R. 31 1 ; Logan v. S. B. Clipper, 1 8 Ohio Rep. 376. Nor is the owner of the steamboat or vessel liable for an injury willfully committed by the master or pilot running her. Turnpike Co. v. Vanderbilt, 1 Hill Rep. 480. So where the collision occurs without the negligence of either party, each must bear his own loss. Stainbach v. Roe, 14 How. U. S. Rep. 632; Wil- liamson V. Barrett, 13 How. U. S. Rep. 101; Halderman v. Beckwith, 4 McLean Rep. 286; Barrett v. Williamson, 4 do. 689; 4 Harring. Rep. 228; 1 Texas Rep. 30. Steam vessels are bound to keep clear of floating or sailmg vessels — treated as having wind in their favor. St. John v. Paine, 10 How. U. S. Rep. 681; Nanton v. Stebbens, 10 do. 586; The Lady Anne. 1 Eng. L. and Eq, 670; The Europa, 2 do. 657; Western Belle v. Wagner, 11 Mo. Rep. 30. xvra.] FOEMS OF PETrnoN. 241 Petitions in Tort. ITT. FOR ISSniNG BXEOUTION AND MAKING LEVY WHEN NOTHING WAS DUB. The said A B, plaintiflF, complains of the said C D, defendant, for that the said defendant, before the committing of the grievances hereinafter mentioned, to-wit, on the day of , A. D. 18 , had ob- tained a judgment against the said plaintiff for the sum of $ debt, and $ costs, and the said plaintiff avers that afterward, and befoi-e the issuing of the execution as hereinafter stated, he paid to the said de- fendant the whole amount of said judgment and the costs thereon; yet the said defendant then well knowing that said judgment and costs had been so paid, on the day of , A. D. 18 , wrongfully and illegally caused and procured an execution to be issued on said judgment, for the collection of the entire amount thereof and costs thereon, and then deliv- ered the same to the sheriff of the said county of , and procured him to levy the same on the goods and chattels of the said plaintiff, of the value of $ , and afterward procured the said sheriff, on the day of , A. D. 18 , to sell said goods and chattels at public auction, and the said sheriff did then so sell said goods and chattels, at a price much below the value thereof; whereby the said defendant was greatly damaged, to the damage of said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. ITS. AGAINST AN OETIOER FOE LEAVING PROPERTY LEVIED ON WrFH THE PARTY, WHEREBY IT WAS LOST. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff had, on the day of , A. D. 18 , ob- tained a judgment against one E F, in the Court of Common Pleas, within and for the county of , (or before one , he, the said , then being a justice of the peace for the township of , in the county of , ) for the sum of $ debt, and $ , his costs of suit; that the said plaintiff did, on this day of , A. D. 18 , cause -an execution to be issued from the said court, (or by said justice of the peace,) directed to the said defendant, he, the said defendant, then being sheriff of the said county of , (or he,, the said defendant, then being constable of said township of , ) commanding him, as such officer, to levy the said sum of $ , debt, and $ , costs, of the goods and chattels of the said , and the said plaintiff then caused said execution to be delivered to the said defendant, and the said defendant then received the same, and afterward, and during the life of the same, levied the same upon the 242 FOEMS OF PETETION. [OHAP. Petitions ill Tort. following goods and chattels of the. said _ , (Aere describe them;) and the said defendant then left the said goods and chattels in the custody of the said E F, so that the said goods and chattels afterward, on the day of , A. D. 18 , were not produced and sold by the said defendant, according to an advertisement before that time duly given of the time and place for the selling of said goods and chattels; whereby the Said goods and chattels became and were wholly lost, and the said plaintiff wholly unable to make his said judgment and costs against the said E F, he, the said E F, having no other goods or chattels, lands or tenements, whereon tie said plaintiff could further levy to satisfy his said judgment and costs, to the damage of the said plaintiff $ , (the amount of the judgment and costs. ) Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. This is drawn from the case of Ohio'for Smith v. Fuller et al., 14 Ohio Eep. 645. It would seem that no averment need be made that the execu- tion debtor had no further property, as the officer is liable for the property levied on. The diamages will be the value of the property levied on. Ohio for Morgan v. Myers et ^1., 14 Ohio Eep. 638. For not returning an exe- cution, the plaintiff is entitled to the face of execution prima facie. Ledyard V. Jones, 3 Selden Rep. 650. 179. AOAINST A SHEKIPI' FOB BSOAPB. The said A B, plaintiff,, complains of the said C D, defendant, for that one E F was, on the day of , A. D. 18 , indebted to the said plaintiff in the sum of $ ; and the said plaintiff, on the said day of , A. D. 18 , commenced an action against the said E F, for the recovery of the said sum of $ , in the Court of Common Pleas, within and for the county of , and the said plain- tiff did then and there file his affidavit, and procure an order of arrest to be issued out of said court in the said action, addressed to the sheriff of the said county of , and caused the same, together with a copy of the said affidavit, to be delivered, on said day, to the said defendant, he, the said defendant, then being sheriff of said county of " , requir- ing said sheriff to arrest said E F, and to hold him to bail in double of said sum, and to return the same on the day of , A. D. 18 , with the undertaking of the bail, if any should be given; and the said plaintiff further saith that said defendant did afterward, and before the said day of , A. D. 18 , (the return day of the order of arrest, ) under and by virtue of the said order of arrest, arrest the XVm.] FORMS OF PETITION. 24:3 Petitions in Tort.' said E F, in his body, and then had him in his custody, as such sheriff, at the suit of the said plaintiff in the action aforesaid; yet the said defendant did, on the day of , A. D. 18 , without the consent or icense of the said plaintiff, voluntarily suffer and permit the said E F to escape and go at large, wheresoever he would, out of the custody of the said defendant, the said claim of the said plaintiff against the said E F then and still being wholly unpaid to the said plaintiff; whereby the said plain- tiff hath been greatly damaged, and has lost his said claim against the said E F, he, the said E F, having absconded and gone beyond the jurisdic- tion of this court, with all his moneys, goods, and effects, to the damage of the said plaintiff $ , (the amount of the claim and costs paid.) Wherefore the said plaintiff prays judgment against the said defendant for the said suitn of $ , his damages so as aforesaid sustained.^ This form will serve as a guide in all cases. If the neglect consists in not arresting the party, the averment will be that he "did not, nor would, at any time before the return of said order of arrest, take, or cause to be taken, the said E F, but therein wholly failed and made default; whereby," etc. If the neglect was on final process, the petition will state the recovery of the judgment, the application for the capias, its issue, and then the neg- lect, As in the last form, when for an escape; or as modified when for a neglect to arrest. Under the averment that he voluntarily suffered the party to escape, a negligent escape' may be proved. 2 T. R. 126; 5 Burr, 2814; 1 Saund. Rep. 36; note 1. Evidence of a, negligent escape will support an action for a voluntary one. Skinner v. White, 9 N. H. Rep. 204. So an escape from the deputy may be declared on as an escape from sheriff. S. C, 9 N; H. Rep. 204. What will excuse? Nothing but the act of God or public enemies. Fairchild v. Coxe, 24 Wend. Rep. 381; Rainey ti. Dunning, 2 Murph. Rep. 386. 180. AGAINST A SHBEIPP FOE FALSE EETUKN. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, at the term of the Court of Common Pleas, within and for the county of , by the consideration of said court recovered a judgment against one E F for the sum of % , his claim, and $ , his costs in said action expended, as by the said record thereof, in said court now remaining, appears, and which said judgment now remains in full force, unreversed and unpaid; and the said plaintiff further complains that he did afterward, on the day of 244 F0EM8 OF PETITION. ~ ' [OHAP. Petitions in Tort. A. D. 18 , cause a certain execution to be issued on said judgment, di- rected to the sheriff of said county, commanding him that, of the goods and chattels of the said E F, he cause tb be made the said sum of $ , the debt, and $ , costs, and $ , increased costs, and for want of goods and chattels, he cause the same to be made of the lands and tene- ments of the said E F, and the said plaintiflf caused to be indorsed on said execution the said sum of $ , debt aforesaid, and $ , the costs aforesaid, for which said judgment was entered; and the said plaintiff did, on the day of , A. D. 18 , cause said execution, so in- dorsed, to be delivered to the said defendant, he, the said defendant, then, and until after the return of said execution, being sheriff of said county of , and as such, authorized and required to execute said writ of execution; and the said defendant afterward, and before the time for the return of said writ of execution, seized and took, by virtue thereof, divers goods and chattels of the said E F, in his said county found, of the value of $ , and then levied thereon; yet the said defendant, not regarding his duty in that behalf, afterward and before the return day of said writ of execution, falsely entered on said writ of execution, as his return thereto, that the said B F had in his county no goods or chattels, lands or tene- ments, found, whereon he could levy the said writ of execution, and make said sum of money thereby required to be made, as will, by his return, now on file in the office of the clerk of the said court remaining, appear; whereas the said plaintiff saith that the said E F had goods and chattels, lands and tenements, in said county, sufficient to satisfy the sums named in said writ of execution, and that the said defendant did levy the same on divers goods and chattels of said E F, sufficient to satisfy said sums, and thereafter re- leased the Same; whereby the said plaintiff has lost his said claim, and has sustained damages' to the amount of $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. If no levy was made, omit that averment, and aver that he " did not, nor would at any time before the return thereof, make the money aforesaid, or any part thereof, but wholly neglected and &iled so to do, and at the re- turn of said writ of execution falsely returned to said court that the said E F," etc. The rule of damages is, prima facie, the amount of the execution. It is not necessary for the plaintiff to allege or prove special damages. Led- yard v. Jones, 3 Selden Rep. 650; Rome v. Curtiss, 1 Hill Rep. 275; 6 do. 650; 9 John. Rei). 300; 10 Mass. Eep. 474. XVin.] FOBMS OF PETITION. 245 Petitions in Tort. 181. AGAINST A WrrNBSS. POK BEFUSING TO ANSWBE, OB ATTEND UNDE8 A StJBP(ENA. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, before the committing of the wrong by the said defendant hereinafter named, had caused the said defendant to be duly served with a subpoena, commanding him to be and appear before the Court of Common Pleas, within and for the said county of ' , on the day of the term thereof, A. D. 1 8 , there to give testimony in behalf of the said plaintiff in a certain case then and there pending, and to be tried, wherein the said plaintiff was plaintiff, and one E F was defendant; and the said plain- tiff further saith that the said defendant, hot regarding his duty in the premises, &iled and willfully refused to appear, as he was by said writ of subpoena commanded; but on the contrary willfully staid away from said court; whereby the said plaintiff, when said action was called for trial, was compelled, for want of the testimony of said defendant, without whose tes- timony he could not safely proceed to the trial of said action, to move the said court there to continue the said action, and the said court did continue the same at the costs of the said plaintiff, and' the said plaintiff saith that he was compelled to pay on said continuance, as costs thereof, the sum of $ , which sum he was so compelled to pay by reason of the refusal of the said defendant to attend at the time aforesaid, and testify on said trial, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. This action lies at common law. Douglass Rep. 661; Peake, 60; 13 East. Rep. 15. In Warner v. Lucas, 10 Ohio Rep. 336, it was held that an action might be sustained against a witness for willfully refusing to testify. \1 8 a . AGAINST THE JUDGES OF AN ELECTION, FOE REFUSING PLAINTIFF'S VOTE. The said A B, plaintiff, complains of the said C D, E F, and Q H, defendants, for that the said defendants were the judges of a certain elec- tion, held in and for the township of , in the county of , for the purpose of electing one justice of the peace within and for said township of , and that the said defendants, as such judges, did open the polls for said election at the town-house in said town of , at o'clock, on said day of , as aforesaid; that the said plaintiff was a citizen of said State of Ohio, and a resident and legal voter at the said election, in said township of , and, as such 246 FOEMS OF pirrmoN. [chap. Petitions in Tort. elector, the said plaintiff did, on the said day of , A. D. 1 8 , and whilst the said polls were still kept open by the said defendants, for the receiving of the votes of the electors of said township at said elec- tion, offer his vote or ballot for the election of a justice of the peace as aforesaid, and requested the said defendants to receive the same; yet the said defendants, not regarding their duty in that behalf, then and there refused to receive the vote or ballot of the said plaintiff, whereby the said plaintiff was deprived of his right to vote at said election, to the damage of said plaintiff $ Wherefore the said plaintiff' prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. The averment of malice is unnecessary. Jeffries v Anthony et al., 11 Ohio Eep. 372; Thatcher v. Hawk et al., 11 do. 376; Lincoln*. Hap- good, 11 Mass. Eep. 350; Cossen v. Foster et al., 12 Pick. Eep. 485; Os- good V. Bradley, 7 Greenlf. Eep. 421. So, too, an action lies against school directors, for refusing to permit a person's children to attend the public schools. Lane v. Baker et al., 12 Ohio Eep. 237. This form can be easily changed to adapt it to any election. 183. FOR CONVERSION OP GOODS. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, on the day of , A. D. 18 , was the owner and lawfully possessed of certain goods and chattels, to-wit, (here describe them,) which goods and chattels afterward, on the said day of , A. D. 18 , came to the possession of the said defendant; and the said defendant, contriving to injure the said plaintiff, did afterward, on the' said day of ,,, A. D. 18 , wrongfully convert the said goods and chattels, of the value of $ , to his, the said defend- ant's, own use and benefit, to the damage of the said plaintiff ® Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. . The goods must be specifically described. The following will serve a.s examples: (ten oxen, five cows, ten sheep, six horses, geldings, mares, two wagons, ten plows, ten bureaus, ten tables, fifty chairs, one flatboat, one steamboat called the , one hundred yards of sheeting, of calico, of drilling, five pieces of broadcloth, etc., a certain writing obligatory, called a bond, or sealed note, sealed with the seal of one N 0, and dated on the day of , A. D. 18 , whereby he, the said N bound himself to pay to the said plaintiff the sum of $ , XVni.J FOBMS OF rETmON. 2i7 Petitions ia Tart. in days after date, or m monlihs, or years irom date, and then being in full force and unpaid; also, a certain bill of exchange, drawn by one E F, upon and accepted by the said defendant, or by one G H, bearing date, ■whereby the said E F requested the said (acceptor) to pay to the order of the said plaintiff the sum of $ . , in days after date, or at sight, as fact is, which bill is unpaid; and also a certain promissory note dated on the day of , A. D. 18 .'^ signed by one E F, whereby the said E F promised to pay to the said plaintiff, or order, $ , in days, or mobths, or years after date, and which note is and was due and unpaid; and also five promissory notes, com- monly called bank notes, for the payment of money, and each of said bank notes being for the payment of five dollars, and each of the value of five dollars; and also ten half eagles, one double eagle, and one eagle, of the current gold coins of the .United States.) It can hardly be claimed that this form will not answer. The facts constituting liability are, the ownership of the goods, the fact that they came to the possession of the defendant, and that he conveij^ed them to his own use. The only fiction allowed in a case would be an averment as to the finding. Unless this form be good, the plaintiff must declare specially in each case, and set forth all the evidence by which these three facts are to be proved.. This would be very inconvenient, and tend to infinite difficulty and to an unnecessary enlargement of the record. The form in Kellogg v. Slauson, 1 Kernan Rep. 302, merely avers that the defendant unlawfully took and converted the goods. But they may come lawfully to the posses- sion of the defendant, and then that form would not answer. The term converted has a fixed legal meaning, and therefore in using it, there can be no misunderstanding. It means such an act of ownership, exercised over the property of another, as authorizes one to sue and re- cover the value of it. If any other term or terms are used, no one can tell whether he has described acts which amount to a conversion, until the court has passed upon them. This term also will shorten pleadings very much, which is an object of the code, or ought to have been. 184. COUNT BT ADMINIBTEATOE FOE OONVEKSION. The said A B, plaintiff, administrator of the estate of E F, deceased, complains of the said C D, defendant, for that the said E F, in his lifetime, was owner and possessed of the following goods and chattels, to-wit, (Aere describe them, ) of the value of 8 , and the said goods and chattels afterward, and during the life of the said E F, came to the possession and CTistody of the said defendant; and the said defendant afterward, and during 248 FOEMs OF PEirrioN. [ohap. Petitions in Tort. the lifetime of the said E F, well knowing that said goods and chattels were the property of the said E F, refused and neglected to deliver the same to the said E F in his lifetime, nor hath the said defendant, delivered the same, nor any part thereof, to the said plaintiff, since the death of the said E F, but did wrongfully, in the lifetime of the said E F, convert the same to the use of himself, the said defendant, to the damage of the said plaintiflF;,$ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so by the said E F in his lifetime sustained. When the conversion is after the death of the owner, the averment of conversion may be in this form: (but the said defendant did, after the death of the said E F, on the day of , A. D. 18 , wrongfully convert and dispose of said goods and chattels to his own use.) 185. FOB TRESPASS TO FEB30N. The said A B, plaintiff, coniplains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , did un- lawfully and with force, assault the said plaintiff, and then and there beat, bruise, and woutd the said plaintiff, by throwing him, the said plaintiff, on the ground, and then and there striking him sundry blows with a stick, which he, the said defendant, then and there had; and violently kickii g the said plaintiff in and upon his right side, and breaking two of the ribs of the said plaintiff, and other wrongs then doing to the said plaintiff, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of 8 , his damages so as aforesaid sustained. If special damages have been sustained, they must be set forth. After setting forth the assault, and before the averment of other wrongs, it can be stated in this form: (whereby the said plaintiff became and was sick, lame, and unable to attend to his lawful business, for the space of weeks; and was compelled to expend, and did expend and pay out, the sum of $ , in and about the nursing of said plaintiff, in endeavor- ing to be cured of the said soreness, bruises, and wounds, so as aforesaid occasioned, to the damage, etc.) If the plaintiff's clothes were torn, that averment may be inserted with the others before the words "other wrongs," (and the said defendant did also, with great force, rend and tear the pantaloons, waistcoat, the coat, and XVm.] ' FOEMS OF PETITION. 249 Petitions in Tort. the shirt of said defendant, of the value of $ , which the said plain- tiff then wore and was clothed with.) 186. fOR OOJfMON ASSAULT. The said A B, plaintiff, complains 'of the said C D, defendant, for that the said C D did, on the day of , A. D. 18 , unlaw- fully and with force, assault the said plaintiff, and then and there beat and ill-treated the said plaintiff, and other wrongs then and there did to the said plaintiff, to his damage $ Wherefore the said plaintiff prays judgement against the said defendant for the said sum of $ , his damages so as aforesaid sustained. ISr. HUSBAND AND WIPE. FOE INJUET TO WIFE. The said A B, and E, the wife of the said A B, plaintiffs, complain of the said C D, defendant, for that the said defendant, on the day of , A. p. 18 , unlawfully and with force, assaulted the said E, then and still being the wife of the said A B, and then and there beat, bruised, wounded, and ill-treated her, and other wrongs then to her did, to the damage of the said plaintiffs $ Wherefore the said plaintiffs pray judgment against the said defendant fo: the said sum of $ ; their damages so as aforesaid sustained. 18 8. BY HUSBAND ALONE, FOE LOSS OP SBKVIOES AND EXPENSES INOUEEED. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , unlaw- fully and with force, assaulted E, then and still being the wife of the said plaintiff, and beat, bruised, wounded, and ill-treated her, the said E, so then being the wife of the said plaintiff, by means whereof the said E became and was sick, and lame, and so remained for the space of weeks, (or days,) whereby the said plaintiff, during all that time, lost the services of the said E, in his domestic affairs, and was compelled to expend and pay out $ , in and about endeavoring to heal and cure the said E of the sickness and lameness aforesaid, and other wrongs did, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. The above form can easily be converted into one for an assault upon a servant, whereby the master lost his services, and paid expenses in curing 250 FOEMS OF PETITION. [CHAP Petitions in Tort. him. It is only necessary to insert the name of the servant, and aver him a servant instead of a wife, 189. FOK FALSE IHFBISOIfllENT. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , unlaw- fully and with force^ assaulted the said plaintiff, and beat,, bruised, wounded, and ill-treated him, and then and there imprisoned him, and kept and detained him in prison there, without any reasonable or probable cause whatsoever, for the space of next following, and other wrongs then and there did to the said plaintiff, to the damage of .the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 190. FOB OHASIIta CATTLE. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , and on divers other days between that day and the commencement of this action, unlawfully and with force, drove, chased, and hurried the sheep, ewes, and lambs of the said plaintiff, of the value of $■ , to-wit, (ten sheep, ten ewes, etc.,) then depasturing in a certain field, {or parcel of land,) situate in , and then and there chased and drove the said sheep, ewes, and lambs from off said field, (or parcel of land,) to some place to the said plaintiff unknown, (or, to , if the place is knoton,) whereby the said plaintiff was put to great expense, to-wit, the sum of $ , in endeavoring to find said sheep, ewes, and lambs, and sheep, ewes, and lambs, of the value of $ , did then and there die, and others thereof were injured and lost to the said plain- tiff, to his damage $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. Other cattle may be embraced in this count as well as sheep. It is applicable to cattle, horses, etc. 191. SAME — A BKIEFER OOUNT. The safd A B, plaintiff, complains of the said C D, defendant, for that the said defendant did, on the day of , A. D. 18 , chase and drive about, (here stale the cattle or animals driven, ) of the said plaintiff, xvni.j FOKMs OF PETmoir. 251 Petitiona in Tort. of the value of $ , whereby the said became and were greatly damaged and injured, and ten of said were killed, and were bruised, wounded, and lamed, etc., (as the fact may he, as to speeud, injury; conclude as in the last.) 192. FOR TAKINO AND OAEEYINO AWAT OOODS. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , at . , in the county of , seized, took, and drove, (or if inani- mate things, carried,) away cows, calves, horses, (or the following goods and chattels, to-wit,- one wagon, etc., descriiing.the ■property as it is, ) of the said plaintiff, of the value of $ , then and there being found, and converted and disposed of the same to his own use, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 193. FOB SHOOTINO 1)00, OB OIHEB ANIMAL. , The said A B, plaintiff, complains of the said- C D, defendant, for that the said defendant did, on the day of , A. D. 18 , un- lawfiiUy and with force, shoot off, and discharge a certain gun, then loaded with gunpowder and ball, at and against a certain dog of the said plaintiff, of the value of $ , and thereby and therewith then so hurt and wounded said dog, that, by reason thereof, the said dog, afterward and before the commencement of this action, died; {if dog did not die, state the wounding, etc.,) to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 194. FOE LETTING BOAT. ADEIFT. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant seized and took the flatboat, (ferry-boat, barge, skiff, etc.,) of the said plaintiff, of the value of $ , then floating and being in the Ohio river, at , and then and there moored and fastened w ith a certain rope of the said plaintiff, and then and there unmoored and -unfastened the said boat from the said place, and thereby set said boat adrift on said river, whereby said boat was damaged and broken to pieces, and the said plaintiff was wholly deprived of the use and benefit thereof for the space of weeks, and put to the expense of $ , in, getting said 252 , FOEMs OF PETinoK. [chap. Petitions in Tort. boat repaired and brought back to the said place where it was as aforesaid moored, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 196. FOB TRESPASS TO DWBLHN8 HOUSES. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of A. D. 18 , and on divers other days between that day and the commencement of this action, unlawfully and with force, broke and entered a certain dwelling house, (shop, store, barn, office, smoke house, etc.,) of the said plaintiff, situate and being in , in the county of , and then and there made a great noise and disturbance therein, and continued therein making such disturbance for the space of then next following, and then and there forced and broke open and damaged the doors, windows, and cup- boards of the said plaintiff, of and belonging to the said dwelling house, and broke and spoiled the locks, hinges, and bolts, wherewith said doors, etc., were hung and fastened; and also during said time, unlawfully, and with force, seized and took the following goods and chattels, tp-wit, (here describe them, ) of the said plaintiff, then being found in said dwelling house, of the value of $ , and carried the same away, and converted and disposed of the same to his own use, whereby the said plaintiff and his family, during all of said time, were greatly disturbed, and the said plain- tiff prevented from carrying on his lawful affairs and business, to the ■lamage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 196. COMMON COUNT FOB EXPULSION. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , unlaw- fully, and with force, broke and entered the dwelling house, (shop, church, store, etc.,) of the said plaintiff, situate in , in the county of , and then and there ejected the said plaintiff and his family from the possession, use, and enjoyment of the same, and kept them so ejected for the space of weeks, whereby the said plaintiff, during a]l that time, was deprived of the use and benefit of said dwelling house, to his damage $ Wherefore the said plaintiff prays judgment against the said defendant for the said s\im of $ , his damages so as aforesaid sustained. ) XVin.] FOEMS OF PETITION. 253 Petitions in Tort. 197. PO.K TRESPASS TO LAND. The said A B, plaintiff, complains of the said D, defendant, for that the said defendant on the day of , A. D. 18 , and on divers other days and times between that day and the commencement of this action, unlawfully and with force, broke and entered the close of the said plaintiif, situate in , in the county of , and known and described as follows: {here describe the premises, if it can he convenientli/ done, ) and then and there broke open and damaged gates, pannels of fence, then being on said premises, and with his feet, in walking, trod down the grass and corn of the said plaintiff, of the value of $ , there then growing, and with cattle, horses, mares, cows, oxen, etc., wagons, etc., (as the case may be,) trod down, eat up, and depastured the grass, wheat, corn, oats, turnips, etc., then thereon growing, and then and there cut down the grass, corn, wheat, oats, etc., then growing thereon, of the value of $ , and converted and disposed of the same to his own use; and then and there cut down ten oak trees, ten sugar trees, etc., and carried the same away and converted the same to his own use, (or state any other use made of the land by defendant, or any other injury done to the same, as the case may be; these are mere examples to be used as applica- ble;) and thereby, and during all that time, greatly incumbered said close, and prevented the said plaintiff during all said time from having the use, benefit, and enjoyment thereof, in so ample a manner as he otherwise might and would have had; [where there has been an expulsion, it should be stated, a« /to Ae entered and ejected the said plaintiff therefrom, and kept him out of the possession thereof for the space of weeks; so too, if any properly was removed and converted by defendant, it should be staled, other- wise no recovery can be had for that;) and other wrongs then and there did, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 19 8. FOE DIGGING IN A COAL MINE. 1 The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the' day of , A. D. 18 , and on divers other days and timps between that day and the commencement of this action, broke and entered into the close of the said plaintiff, situate in , in the county of , and described as follows: (here describe them, ) and then entered into a coal mine or vein of coal then being in said close, and dug out of the same bushels of coals of the said plaintiflf, of the value of $ , and took and carried the same 254 FORMS OF PETITION. [OHAP. Petitions in Tort. away, and converted the same to his own use, to the damage of the ss-»l plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. 199. FOB TAEINQ IRON OBIS, ETC. {Follow the last to the close of the description of the premised, then pro- ceed as follows:) and then and there dug up tons of iron ore, (or perches of rock, stone, clay, etc.,) of the said plaintiff, of the value of $ , and took and carried the same away, and converted the same to his own use, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , .his damages so as aforesaid sustained. 200. FOB MESKE PROFITS. The said A B, plaintiff, complains of the said C D, defendant, for that the said defendant, on the day of , A. D. 18 , (tJie time when he first entered, ) unlawfully and with force, broke and entered the close of the said plaintiff, situate in , in said county of , known and described as follows, to-wit, town (or city) lot, in the town (^or city) of , {or the northwest quarter, or the northeast quarter of Section No. , Town No. , of Eange No. ,) and ejected the said plaintiff from the possession thereof, and kept and continued him so expelled, from the said day of , A. D. 18 , up to the commencement of this action, and during all that time took and re- ceived to the use of the said defendant, all the issues and profits of said premises, of the yearly value of $ , whereby the said plaintiff lost all profit and benefit from the use of said premises during all of said time, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. This form will still answer where the entry was made not over four years prior to the commencement of the suit. If entry was made over that time before suit brought, this action will be barred by the statute of limitations. Under the code, this count must be now included in the petition to re- cover the possession of the real estate, and if not so embraced, it would seem that the plaintiff could not bring a second action to recover the mesne profits. The word may, in such a case, must be construed to mean shaT., XVm.] FOEMS OF PBTTTION. 255 Petitions in Tort. If so the rents must be demanded in the same action in which the posses- sion is sought to be recovered. The plaintiff ought not to be permitted to bring two actions, when a single one will answer all the purpose. And yet there will be some confusion in mixing up a mere question of title with the rents and profits thereof. It has been done in trespass, and may be done in such a case. As the code is, it would seem that the whole claim must be made at once. aOl. FOR RGPLEVItr. The said A B, plaintiff, complains of the said D, defendant, for that the said plaintiff is the owner and entitled to the immediate possession of the following goods and chattels: (here describe them as distinctly as possi- ble, ) of the value of $ , and that the said defendant unlawfully de- tains the said goods and chattels from the possession of the said plaintiff, and has detained the same as aforesaid for the space of , to his damage $ Wherefore the said plaintiff prays judgment against th5 said defendant, that he, the said defendant, do return to the said plaintiff the said goods and chattels, so unlawfully detained, and for the said sum of $ , his damages so as aforesaid sustained, by reason of said unlawful detention. Where the ownership is special, it had best be stated, as the jury must pass upon that issue. 3 3. AGAINST A JUSTICE OF THE PEACE FOR HEOLEOT IN ISSUINO. I The said A B, plaintiff, complains of the ?aid C D, defendant, for that the said plaintiff, on the day of , A. D. 18 , at township, in said county of , did iile with the said C D, he, the said C D, then being a justice of the peace for the said township, of , his bill of particulars of a certain action which he, the said, plaintiff, wished to, bring against one , the said then being a constable in said township, to recover from the said the sum of $ , damaged, which he, the said plaintiff, had sustained by a reason of a false return made by the said , on a certain summons before that time issued by the saifl defendant, as such justice, against the said plaintiff, and in favor of one , and did then and there request the said defendant, as such justice, to issue process, in due form of law, against the said , and in favor of- the said plaintiff, as he, the said defendant, was by law bound to do; yet the said 17 256 FOEMS OF PETITIOJS. [CHAP. Petitions in Tort. defendant, not regarding his duty in that behalf, did not, nor would issue process, but so to do wholly refused, to the injury of the said plaintiflF, and to his damage $ Wherefore the said plaintiff prays judgment against the said defendant for the said sum of $ , his damages so as aforesaid sustained. The justice is liable for such an act; so held in Powell v. Jones, 12 Ohio Bep. 35. a03. FOB NEaLIOENOB OF BOABDINQ-HOUSE EEEFEB, WEEEEBT aOODS WEBB LOST. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff, at the request of the said defendant, beqame a guest in a boarding-house kept by the said defendant, and brought with her, the said plaintiff, into the same, the following articles, to- wit, (here state tke articles,) and the said plaintiff so became a guest, on the terms that the said defend- ant was to provide rooms, bedding, meat, drink, servants'. attendance, and other necessaries, and would take due and reasonable care of the said goods of the said plaintiff, whilst they were in the house of the said defendant, for hire and reward to the said defendant in that behalf; and the said plain- tiff saith that the said defendant did not take due and reasonable care of the said goods and chattels whilst so remaining in his said boarding house; but on the contrary, the said goods and chattels, through the neglect and carelessness of the said defendant and his servants, became and were wholly lost to the said plaintiff, to the damage of the said plaintiff $ Wherefore the said plaintiff prays judgment against the saad defendant for the said sum of $ , her damages so as aforesaid sustained. > This is copied from the declaration in the case of Dansey v. Bichardson, 26 Eng. L. and Eq. 76. The court were divided in opinion as to the exteni of care required in a boarding-house keeper. I think there may be negli- gence in a servant in leaving an outer door -of a boarding-house open, whereby the goods of a guest are stolen, which might render the master liable. I think there is a duty on his part analagous to that incumbent on every prudent householder, to keep the outer door of the house shut at times when there is danger that thieves may enter and steal; If he employ servants to do this duty, and they neglect it, whereby a loss occurs, he is responsible. Per Campbell, C. J., Ibid. He thinks the keeper bound to have honest and faithful servants. XTin.] FOBMs OF PEnraoN. 2S7 Petitions in Tort. a04. PETITION BT WIFB T. ONE SBLLIKa INTOXKUTING LIQUOR TO BfiR HUSBAND. The said A B, plaintiff, cdinplains of tlie said C D and £ F, defend- ants, for that the said plaintiff, on the day of , A. D. 18 , was the wife of one Q H, and that the said Gr H was then a person in the habit of getting intoxicated, of which the said defendants then had notice; yet the said defendants did, on the said • day of , A. D. 18 , sell and deliver to the said G H one gallon (or quart; or pint, as the case may he,) of intoxicating liquor, whereby the said G H did afterward, to- wit, on the said day of , A. D. 18 , (or on the day of , A. D. 18 , where the intoxication talces place on a day sub- sequent, ) became, and was intoxicated, and whereby, as the said plaintiff avers, the said defendants caused the intoxication of the said G H; and the said plaintiff further avers that the said Gr H, while so intoxicated, was then and for a long time thereafter, to-wit, for the space of • days inca- pable of attending, to his usual business and work, and the said plaintiff during all that time was compelled to attend upon and nurse the said G H, and provide the said G H with necessary food by the labor and industry of the said plaintiff; and the said G H, while so intoxicated, assaulted the person of the said plaintiff, and put the said plaintiff in great fear and danger, and compelled her, the said plaintiff, to abandon her house and home in the night season, and seek safety and protection elsewhere, in the house and family of a neighbor; by reason of which the said plaintiff avers that she has sustained damages to the amount of five thousand dollars. Wherefore the said plaintiff prays judgment against the said defendants for the said sum of five thousand dollars, her damages aforesaid, in form aforesaid, sustained. A B, By , her Attorney. This petition is prepared from one filed in the case of Philips v.. Bich- ards & Sherer, tried in the Court of Common Pleas, in Washington county, October term, A. D. 1865. This is the first action of the kind in Ohio, which has come under our notice. , The statute clearly requires all the averments contained in this petition: First, That the plaintiff is the wife of the person intoxicated; Secondly, That he was in the habit of getting intoxicated; Thirdly, That the defendants had notice or informa- tion of this fact; Fourthly, That the defendant sold intoxicating liquors to the husband in one of the ways declared illegal in the statute; Fi/'tMy, 258 FOKMS OF PETITION. [OHAP. Petitions in Tort. That the party became intoxicated with said liquor; and, ^aMy, That the plainti£f was injured by the husband's being so intoxicated, in her person and means of support. These seem to be all the material facts which constitute a right of action. In setting out the sale and delivery of the liquor, it should be done in such terms as would constitute a suflS cient description of the oflfense in an information. It clearly would not be enough to aver that the defendant sold the liquor contrary to the pro- visions of the act, reciting the title; the sale must be so described as in terms to show that the act was one of the acts prohibited in the statute. The particular act of selling ipust be set forth specifically, so that the party can have notice of the precise act of selling to which he is to answer. It would seem, also, that the special damages must be set forth, so that the defendant may be prepared to meet them. The only damage which a wife can suffer is either by injury to her person, by threats, an assault, or a b^tery, or in her means of support, by having her husband disabled from performing his usual labor, and hence by being herself compelled to perform additional labor, in nursing him and providing for his support. In the case of a wife, these must constitute the special damages of which she may or can complain. A child, also, would probably be confined tc some such special damages. Where the plaintiff is not thus connected with the party, he may set forth any special damage he may sustain by reason of the intoxicated person. As for instance: He may recover the value of a horse ruined by a person in a state of intoxication, or the value of any other property destroyed by such a person; and also damages for a personal injury inflicted upon him by an intoxicated person. But the special damage must, in all cases, be stated in the petition, as happening or being caused by a person intoxicated with liquor, bought of the defendant. We believe it will be found that the above principles must regulate the form of a petition in such an action. They are in conformity to the rules which have heretofore been held applicable to special actions for the recovery of damages for a special injury. The answer must, of course, correspond to the nature of the action. The defendant may plead a general denial, which will put the plaintiff upon proof of all the material allegations contained in the petition; or he may deny specially any one of these material averments. These special denials may be: First, That the said plaintiff is not tike wife of the person charged to have been intoxicated; Secondly, That tlie husband was not in the habit of getting intoxicated; Thirdly, That the said defendant had no notice that the said person was so in the habit XVm.] FOKMS OF PETITION. 259 Petitions in Tort. of getting intoxicated; Fourthly, That the defendant did not sell the liquor to the husband in manner and form as the plaintiflf hath alleged. These are all the material facts, upon the tnith of which the right of action depends, and on a failure to prove any one of which the plaintiff's right of action must fail. No issue can be taken upon the averments of special damages, since these are not issuable facts; being inserted merely for the purpose of informing the party for what special damages the plaintiff complains. This would at least be the case where a wife, or child, or parent was plaintiff, because nominal damages would, in such a case, follow a finding of the material facts as above stated. In the case, however, of a stranger, where his right of action depends wholly upon the existence of a special damage, then the defendant might deny the special injury complained of; because, if this injury was not sustained by reason of the acts of the intoxicated person, the defendant would not, of course, be liable at all. Hence the defendant may deny the averment of. special damage, since this is to deny any right of action in the plaintiff. SOS. AN EMPLOYER T. ONE SELLING IKTOXIOATINS LIQUOK TO HIS SERVANT, " WHEREBY SPECIAL DAMAGE HAS BEEN SUSTAINED. The said A B, plaintiff, complains of the said C D, defendant, for that one E F was, on the day of , A. D. 18 , in the employment of the said plaintiff, in driving the horses and carriage of the said plaintiff; and that the said defendant did then, while the said E F was so in the employment of the said plaintiff as aforesaid, sell to the said E F, at the shop of the said defendant, in the town of , in the county of , certain intoxicating liquor, to-wit, whiskey (^or brandy, as the case may be,) then and there to be drank by the said E F, and that the said E F did then and there drink the said intoxicated liquor; and thereby the said defendant did then and there cause the intoxication of the said E F; and the said plaintiff further avers that the said E F, while so intoxicated, and while so in the employment of the said plaintiff, did, on the said day of , A. D. 18 , by reason of said intoxication, so drive the said horses and carriage of the said plaintiff that the said carriage was overturned, and the same was greatly broken, and the said horses greatly injured, to the damage of the said plaintiff, as he avers, two hundred dollars. Wherefore the said plaintiff prays judgment against the said defendant for the said sum of two hundred dollars, his damages aforesaid, in form aforesaid, sustained. "'•■ 260 F0BM8 OF PETITION. [OHAP. XVm. Petitions in Tort. 206, ANOTHER FEESOH v. ONE SELLING INTOXIOATINe LIQUOB 10 A. PERSON WHO ASSAULTS THE PLAINTIFF. The said A B, plaintiff, (iomplains of the said C D, defendant, for that the said- defendant did, on the day of , A. D. 18 , at his, the said defendant's shop, situate in the town of , in the county of , sell and deliver to one E F one pint of intoxicating liquor, called whisky, to be then and there drank by the said E F, and which intoxicating liquor the said E F did then and there drink, and by reason thereof the said defendant did then and there cause the intoxica- tion of the said E F; and the said plaintiff further avers that the said E F, while so intoxicated, and by reason thereof, did then and there unlawfully assault the said plaintiff, and him, the said plaintiff> did unlawfully beat, strike, and wound, to the -damage of the' said- plaintiff, as he avers, one thousand doUarsT Wherefore the said plaintiff prays judgment against the said defend- ant for the said sum of one thousand dollars, his damages aforesaid, in form aforesaid, sustained. This last form may be adapted to all the cases that can occur. The ■ averment of the special damage must, of course, correspond with the fact. If property has been injured, or destroyed, the averment must, of course, describe the property so destroyed. In that case the plaintiff must aver that the said E F, while so intoxicated, and by reason thereof, unlawfully shot at and wounded the cow (or horse, etc.,) of the plaintiff, or destroyed any other property, as the case may be. This form describes a sale of liquor under the first section of the act. Of course the sale may be one under either of the other sections; when it is, it must be described as it would be in an information. . The kind of liquor must be stated, in describing a sale under section one, as the sale of domestic wine,; and ale, and beer, are not prohibited under that section. Under sections two and three, it will be enough simply to aver a sale of intoxicating liquors, as it is declared to be unlawful to sell any kind of intoxicating liquors to minors or persons in the habit of getting intoxi cated. CHAPTER XIX. FORMS OF DEMURRER. 1. OEI^BKAIi DEMtTBRER. Gouwit/, ss., Court of Common Pleas. A B, plainti£f, 1 V, >• Demurrer. C D, defendant.) And now comes the said defendant, , and demurs tc the petition of the said, , plaiiitiff, and states the following cause, (or causes, i/ more than one,) of demurrer thereto, to-wit: 1. That it appears from said petition that this court has no jurisdiction of the person of this defendant, (or, of the subject of this action.) 2. That it appears from said petition that the said plaintiff has no legal capacity to sue in this aciion. S, That it appears from said petition that the said plaintiff has another action pending against this defendant for the same cause of action. 4. That there is a defect of parties in this action in this, to-wit, that it appears from said petition that one ought to be made a party plaintiff, (or defendant, ) in this cause. 5. That the said plaintiff has, in his said petition, improperly joined causes of action which can not legally be joined in the same petition. 6. That the said petition of the said plaintiff does not state facts suffi- cient to constitute a cause of action against this defendant, and in favor of the said plaintiff. Wherefore the said defendant for the cause, (or causes, as the case may he, ) aforesaid, asks if the said plaintiff shall be permitted to have or main- tain his said action thereof against this defendant. W S, Attorney for said defendant. a. BY A MARRIED WOMAN. And now comes the said , by , her next friend, defendant, and demurs, etc., (as in. first form.) rsei) 262 FORMS OF DEMUEEEK. [CHAP. XIX. To Petitions in Part — To Answers. _S 3. BY A MINOR. And now comes the said , by , his guardian for the suit, defendant, and demurs, etc., (as in first form.) 4. trHERB THE DEMUBREBIS TO A PART OF A PBTITION. {Begin as heretofore, and after the word "demurs," add:) to the cause of action set forth in the first, (or second, or third, or fourth, etc.,) count of the said plaintiff's petition and states the following cause, (or causes,) of demurrer, to-wit: 1. That the said first count of the said plaintiff's petition does not state facts sufficient to constitute any cause of action in favor of the said plain- tiff against this defendant. 2. That it appears from said first count that there is another action pending between the said plaintiff and this defendant for the same cause of action as is set up in said first count, (or second, etc.,) of said petition. Wherefore the said defendant asks for the cause (or causes) afore- said, if the said plaintiff shall have or maintain his cause of action, so set forth in the said first (or second) count of his said petition against this defendant. 5. DEMUBBER TO ANSWERS. And the said A B, plaintiff, now comes and demurs to the second plea of the answer of the said C D, defendant, (or to the matter of defense secondly stated in the answer of the said C B,) because the facts therein . stated do not constitute a defense to the action of the said plaintiff, and therefore prays judgment as in his said petition. AB, By , his attorney. For forms of demurrers to answer, setting up matter in defense, see pages 91 and 92, under head of B«ply. CHAPTER XX. FORMS OF ANSWERS. The old rule of pleading was peremptory, that a plea must point out distinctly the matter, or count, to which it was intended to be applied, that it must cover all it undertook to answer, and that it must contain a sufficient bar in law to all it assumes to answer. Gould PI. 368. Thus, if, in trespass for assault, battery, and mayhem, the defendant pleads to the whole matter what in law is a justification of the assault and battery only, the plea is ill in, toto, and the plaintiff is entitled to damages as well for the assault and battery as for the mayhem; for an entire plea, going to the whole declaration, is indivisible in its effect; and can not operate as a bar to any part of the cause of action, unless it constitutes in law a bar to the whole. The defendant may justify a part, as the assault and battery, and plead not guilty of the mayhem. Gould PL 369. The same doctrine is necessarily maintained under the code. " Defenses and counterclaims," says Hand, J., in Kneedler v. Sternbergh, 10 Pr. Rep. 68, "must refer to the causes of action which they are intended to answer, in such manner that they mSy be intelligibly distinguished. A designation or identity, resting on mere probabilities or mere presumption, is too vague and equivocal to be good pleading; and a plea should answer the whole declaration, or count, to which it is pleaded. (Root v. Woodruff, 6 Hill Rep. 418; 1 Saund. Rep. 28, a, note 3;) and it is bad for uncertainty, if it does not appear what part of the complaint it is intended to answer." So where, in an action for libel, the charge was the scoundrel was indicted for fraud, and the justification set up that the defendant was indicted for fraud, it was held bad, as not meeting the charge of scoundrel. The libel desig- nates the plaintiff as such a person, and it is no justification to say he has been indicted and arrested for a conspiracy to cheat and defraud. Loveland V. Hosmer, 8 Pr. R. 215. So an answer, commencing as an answer to the whole complaint, and assuming to answer the whole, but containing fects which only constitute a defense to a part of the complaint, is bad on demur- rer. Tomlinson v. Van Vechten, 6 Pr. Rep. 199. An answer should cover all it professes to cover and no more. Willis v. Taggard, 6 Pr. Rep. 433. (263) 264 FORMS OF AN8WEB. [OHAP General Bemarks. It will thus be seen that the same care is now necessary in preparing an answer as formerly in drawing a plea. The whole cause of action must be met, and it must be met with what is a defense; it must be met as a whole by a single bar; as it may be met in part with one fact, in part by another, and by a denial as to another part; In this way the whole cause of action may be met. To an assault and wounding, the defendant may justify the assault, and plead not guilty as to the wounding. The pleader will, there- fore, be cautious to see that his answer denies, avoids, or admits the whole cause of action. The forms of answers given are, of course, given as an- swering the whole petition; when th^ are to be interposed to a particular count, where there is more than one, the answer must so state. Instead of proceeding after the word "because," as in the forms, the words, "as to the second (or other) count of the petition;" or "as to the cause of ac- tion firstly, {^m secondly, etc.,) stated in the petition," should be inserted. And when a single cause of action is to be met by various answers, the part to which each answer is to be applied must be specified. Let us illus- trate it by the case of Loveland v. Hosmer, supra. The charge there was two-fold; First, a scoundrel; Second, indicted for a fraud. The answer should have said that, as to so much of the libel as charges the plaintiff with having been indicted, he avers that he was so" indicted, and as to so much as relates to the scoundrel, he pleads not guilty, or he admits it, or he justifies it separately. Such an answer would have met the whole case. The former rules of pleading in this respect, as well as in so many others, are therefore in full force, and a knowledge of them is just as im- portant now as ever. No lawyer can understand the code until he has mastered Gould and Ohitty. . The code implies the existence of a meth- odical and logical system of pleading; and only undertakes to abolish its mere technical forms, while it leaves in full play, its principles and its logic. Hence these principles and this system of logic must be mastered before one can -aspire to the dignity of a, pleader, even under the code. The forms which are here given, as to general and special denials, are designed to lead the parties to a single and definite issue. In actions for torts, it is almost im'possible to frame special denials which will not in fact amount to the old plea of not guilty. The special issues given are mere hints for the pleader— mere suggestions to aid him in the mode and manner of framing such denials^ It is important to adopt a form as brief as possi- ble; it must hit the. real fact in controversy, stripped of all immaterial acci- dents. A jury best comprehends such an issue, and will pass upon it much more understandingly than upon one which denies all the details, as well as the main and material fact. XX.]., FOKMS OF AN8WEE. 265 Denials. The fonns of answers naturally divide themselves into two great (Masses: - 1 . Denials. 2. The statement of new matters. DENIALS. This class again also divides itself into two classes — general and special, I. General Denials. We will airange these under the heads vi contract aiid tort. And con- traets-again must be divided into actions to recover on the common counts, and special contracts; and %ese again into contracts not under seal, and contracts under seal. t. ANSWER TO COMMON COUNTS. County, *«., Court of Ooi&mon Pleas. A B, plaintiflF, ) V. > Answer. C D, defendant.) And now comes the said C D, defendant, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to have his said action against him, the said defendant, because he saith that he, the said defendant, does not owe the said plaintiff the said sum of $ , in manner and form as the said plaintiff hath, in his said peti- tion declared, nor any part thereof; and of this he puts himself upon the county. C D, By E F, his Attorney. 2. DENIAL OF PART AND ADMISSION OF PART. And now comes the said C D, defendant, and for answer to the peti- tion of the said A 6, plaintiff; saith that he, the said defendant, admits that he does owe the said plaintiff the sum of $ ; parcel of the said sum of $ , so by the said plaintiff, in his said petition above, de- . manded; and he, the said defendant, consents that said plaintiff may have judgment in his, said plaintiff's, favor, and against the said defendant for the said sum of $ , so admitted to be due; ^nd the said defendant further saith that, as to all the rest and residue of said sum of $ , 266 FOEMS OF ANSWER. [CHAP. Greneral Denials. SO demanded, the said plaintiff ought not to have his said action thereof against hiiUj the said defendant, because he saith that he does not owe the said plaintiff the rest and residue of said sum of $ , or any part thereof; and of this he puts himself upon the country. C D, ^ By E F, his Attorney. Note.— See 8 Fr. E. 441, Honghton v. Townsend. These forms will answer to all petitions on the common counts, claiming a sum of money for goods sold, money paid, money had and received, work and labor performed, and on an account stated. The effect will be to deny the claim of the plaintiff, and nothing will be put in issue ^ut the truth of the claim set up by the plaintiff. jEvery defense which admits the existence of the plaintiff's claim at one time, must be specially set up in the answer. 3. 10 PBOUISSORY NOTES, BILLS OF EXCHANGE, ETC. And now comes the said C D, defendant, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to have his aforesaid action thereof against him, the said defendant, because he saith that he, the said defendant, did not undertake and promise, in manner and form as the said plaintiff hath, in his said petition, alleged against'him, and of this he puts himself upon the country. It would seem that this should be held a suflScient general denial. It denies the promise made, as it is set forth in^he petition, and the plaintiff must prove the making and giving of the note, and a note of the tenor and effect of the one set up in the petition. AN OTHEB FORM. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to have his aforesaid action thereof against this defendant, because he saith that he, the said defendant, did not make and deliver to the said plaintiff the said promissory note (or bill of exchange, etc.,) in said petition set forth, in manner and form as is therein alleged, and of this he puts himself upon the country. XX.j , FORMS OF ANSWER. 267 General Denials. 6. TO CONTRACT UNDER SEAL. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to hare his said action thereof against him, because he saith that the said writing obligatory, in the said petition mentioned, is not the act and deed of the said defendant; and of this he puts himself upon the country. C D, By , his Attorney. It will be well enough to adopt this old form, when an issue is to be raised on the execution of a deed. The extent of this issue is well settled, and there can, therefore, be no uncertainty as to what it puts in issue; whereas any other form might lead to confusion. The question raised by this plea is simply the execution of the deed; and any fact which goes to show that the defendant did not execute it, so as to render it his deed, can be given in evidence — as that it was different from what it was represented; so also that it has been altered in a material part ; for if so, then it is not the deed that the party executed. 6 . IN TOET. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to have his aforesaid action thereof against the defendant, because he saith that he, the said defendant, is not guilty of the said several supposed grievances, so in said petition laid to his charge, or any part thereof, in manner and form as the same are therein set forth and alleged; and of this he puts himself upon the country. This general form will answer in all cases where formerly an action of trespass, trover, or case would lie, and will put in issue all the material averments of the plaintiff's petition. This form must be adopted, or the plea of denial must be just the transcript of the petition, with a negative inserted before each material allegation, which would be unnecessary pro- lixity, and would lead to multiplied questions as to whether all that was material had been traversed. This form is sanctioned by Salinger v Lusk, 7 Pr. Kep. 430. 268 EX)RM8 OF AN6WEK, [OfiAP.. Special Deuials. T. A TEST OBNBRAL DENIAL, APFLIOABLE TO ALL OASES. And now comes the said C D, defendant, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff' ought not to have his aforesaid action thereof against this defendant, because he saith that he denies, all and singular, the allegations averred by the said plain- tiff in his said petition, in manner and form as the same are therein stated ; and of this he puts himself Upon the country. This form of a general denial seems to have been held sufficient by the Supreme Court of New York, in Dennison v. Dennison, 9 Pr. K. 246. It may be applied to all cases, whether in contract or tort, in law or equity. And, unless constant disputes are to be met with in every case, it is abso- lutely necessary to have some such general form, the meaning and scope of which shall become fixed and settled, known and recognized, so that every one may know that in using it, there can be no misunderstanding. Then parties will know exactly what is in issue, what is to be proved on the one side, and what disproved on the other. Whereas, if every one is to be left to frame what he may call his general denial, there will be constant disputes as to what is or is not covered by the answer; and the court will be con- stantly disagreeing with the pleader as to the extent and meaning of his answer, and he and his client will be subjected to constant vexation and expense in groping their way to what is the material issue in a case. It matters not so much what the form is, so there is one to which all can apply, with the certainty of doing just -{rhat they intend to do, and nothing else. Though this may not be the essence of justice, it is opening and grading a well beaten path leading to its attainment. The means are almost as important as the end. Without public highways, one may attain the end of a journey, but it will be after much delay, and unpertainty, and vexation, and great expense; so one may attain justice without forms, but it must also be after much delay, and uncertainty, and vexation, and great expense. The ease of Lewis v. Coulter decides that a general denial should be of each and all, &c. The word material should not be attached to allegation. 10 0. St. Bep. 451. II. Special Denials. 8. DENTING A NOTE, BILL, OR OONTBAOT. And now comes the said C D, defendant, and for answer to the said petition of the said A B, plaintiff, saith that he did not make and deliver the said promissory note, (bill of exchange, check, or contract, as the case XX.f FOEMS OF AN8WEB. 269 Special Denials. «,) in the said petition of the said plaintiff set forth and described; and of this he puts himself upon the country. C D, By E F, his Attorney. 9. IN ACTIONS ON NOIBS, BILI.3, ETC. And the said C D, defendant, now comes, and for answer to the petition of the said A B, plaintiff, says that — 1. The said did not indorse and deliver the said promissory note, (bill of exchange, check, or other negotiaUe contract,) to the said , as the said plaintiflf hath in his said petition alleged. 2. The said promissory note, (or bill of exchange, check, etc.,) in the said petition described was not, when the same became due and payable, presented to the said , for payment, and payment thereof by the said refused, as the said plaintiflf has in his said petition alleged. 3. He, the said defendant, did not have due and legal notice of the said demand and non-payment of the said, promissory note, (bill of ex- change, etc.,) as the said plaintiflf hath in his said petition alleged. 4. The said did not accept the said bill of exchange in the said plaintiflf 's petition described, in manner and form as is therein alleged. 5. The said bill of exchange, in said plaintiflf 's petition described, was not duly presented to the said for acceptance, and the acceptance thereof refused, as the said plaintiflf hath in his said petition alleged. 6. The said defendant had not due and legal notice that the said bill of exchange, {or check, etc.,) in the said plaintiflf 's petition described, was presented to the said for acceptance, and that the said , on such presentation, refused to accept the same, as the said plaintiflf hath in his said petition alleged. 7. Due and diligent search was not made when the said bill of ex? change, {or promissory note, etc.,) became due and payable, to discover the residence and person of the said , at , or else- where, in order that the said bill of exchange, in said petition described, might be presented to the said for payment, in manner and form as the said plaintiflf has in his said petition alleged. And of this the said defendant puts himself upon the country. 270 FOEMS OF ANSWER. [CHAP, Petitions in Tort. 10. INDORSEE T. MAKES. And the said C D, defendant, now comes, and for answer to the said petition of the said A B, plaintiflF, saith that the said pkintifiF ought not to have the said action against him, because he saith that the said (payee,) did not indorse and deliver the said promissory note, (or bill, etc.,) to the said plaintiff, in manner and form as the said plaintiff hath in his said petition alleged; and of this he puts himself uuon the country. 11. INDORSEE T. INDORSES. (Proceed as in the last to the hlarik, then proceed:) defendant did not indorse the said promissory note, in said plaintiff's petition mentioned, in manner and form as the said plaintiff hath therein alleged, and of this he puts himself upon the- country. la. PAYEE T. DRAWEE. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to have his said action against him, because he saith that he, the said defend- ant, did not draw and deliver to the said plaintiff the said bill of exchange, in manner and form as the said plaintiff hath in his said petition declared against him; and of this he puts himself upon the country. 13. INDORSEE ,. DRAWER. And now comes the said C D, defendant, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to have his said action against him, because he saith that he, the said defendant, did not draw and deliver to the said , (the payee, ) the said bill of exchange in said petition described and set forth; Or, that the said , (payee, ) did not indorse and deliver the said bill of exchange to the said plaintiff; Or, that the said , (the payee,) did not indorse said bill of exchange to the' said , (first indorsee;) Or, that the said , (first indorsee ) did not indorse the said bill of exchange to the said , (second indorsee;) Or, that the said , (second indorsee,) did not indorse said bill of exchange to the said plaintiff, as is set forth in said petition; Or, that the said , (plaintiff, ) did not cause said bill of exchange, when the same fell due, to be duly presented to the said XX.] FOBMS OF ANSWER. 271 Petitions in Tort. , (drawee,) and payment thereof demanded, according to the tenor and effect of said bUl of exchange; Or, that the said defendant,, was not duly and legally notified that said bill o£ exchange had been duly presented to the said (drawee,) and payment thereof refused. 14. INSUBANOB. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to have his said action against him, because he saith that — 1. The said defendant did not make and deliver the said policy of in- surance, as the said plaintiff hath in his said petition alleged; and of this he puts himself upon the country. 2. The said plaintiff did not own the said goods and chattels, (or the said dwelling house and furniture,) at the time of the happening of said loss, as is in the said petition alleged; and of this the said defendant puts himself upon the country. 3. The said defendant did not, within the time limited in the schedule attached to the said policy, make out or deliver, within a reasonable time after the said loss,' a particular accbunt of such loss and damage, signed by the hand of the said plaintiff, and verified by his oath or affirmation; but to make out and deliver' the same did neglect, for the space of months after said loss; and of this the said defendant puts himself upon the country. 4. The said defendant did not procure, nor has he procured, the cer- tificate, under the hand of a magistrate, or notary public, as is, by the schedule attached to the said policy, required of the said plaintiff; but to procure the same the said plaintiff hath wholly neglected; and of this the said defendant puts himself upon the country. IS. AWARDS. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ciught not to have his said action thereof against him; because he saith that — 1. The said defendant did not assume and promise, in manner and form as the said plaintiff hath in his said petition alleged; and of this he puts himself upon the country. Note. — This meets the promise of submission in the case of a parol submission. It puts that in issue and nothing else. 18 272 FORMS OF AN8WEE. [CHAP. Special Denials. 2. The said did not make and publish his avard, in man- ner and form as the said plaintiff hath in bis said petition mentioned; and of this he puts himself upoii the country. ■Note. — This will put in issue the award itself; its being made and published as ■ binding award on the parties. 3. The said plaintiff did not tender and offer to the said defendant the said promissory note before the commencement of this action, as he hath in his said petition alleged; and of this he puts himself upon the country. V 16. W^RBANIIES. And the said C D, defiindant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to have his said action thereof against him; because he saith that — 1. He, the said defendant, did not promise the said plaintiff, in man- ner and form as the said plaintiff hath in his said petition alleged; and of this he puts himself upon the country. 2. The said horse, in said petition mentioned, was not unsound, as the said plaintiff hath in his said petition alleged; and of this he puts himself upon the country. Note. — The first plea will put in issue the truth of the warranty as alleged; and the second, the fact of unsoundness at the time of the sale or exchange. 3. The said defendant did furnish to the said plaintiff the said goods and chattels, properly packed and fit to be sent to the said English market; and of this he puts himself upon the country. 4. The said goods and chattels were not wholly' unfit for the purpose iu said petition stated, nor did the said plaintiff lose the benefit thereof, as he hath in his said petition alleged; and of this he puts himself upon the country. Note. — It may be doubtful whether this last traverses a material allegation. There may be but two here: Fira, The promise; Secondly, The breaoh. The balance is a mere question of damages. 1-r. -ON SALES OF REAL ESTATE. And the said defendant now comes, and for answer to the petition of the said A B, plaintift saith that the said plaintiff ought not to have his said action against him; because he saith that — » XX.] FORMS OF ANSWEE. 273 Special Denials. 1. He did not promise the said plaintiff, in manner and form as the said, plaintiff hath in his said petition alleged; and of this he puts himself upon the country. Note. — This puts in issue the contract of purchase, as that was what the promise related to; and hence this issue ought to put that whole matter in issue; because unless *here was such a sale, there cduld be no promise to pay as alleged. 2. The said plaintiff did not tender to the said defendant the said sum of $ , the residue of said purchase money, in manner and form as the said plaintiff hath in his said petition alleged; and of this he puts himself upon the country. 3. The said defendant did not refuse to make and procure to be made to the said plaintiff a good title to the said prernises, in manner and form as the said plaintiff hath in his said petition alleged; and of this he puts himself , upon the country. 4. The said plaintiff did not, nor would he, tender a good and suffi- cient deed of general warranty, conveying the said premises to the said defendant, in manner and form as the said plaintiff hath in his said peti- tion alleged; and of this he puts himself upon the country. 5. The said plaintiff was not seized of an estate in fee simple in and to the said premises, so that he could make a good title thereto to the said, defendant, as he has in his said petition alleged; and of this the said defendant puts himself upon the country. 6. The said plaintiff did not notify the said defendant of the said second sale of said real estate, and demand from him the said sums of money, as the said plaintiff hath in his said petition alleged; and of this he puts himself upon the country. 7. The said plaintiff did not sign, by himself or agent, any memo- randum or agreement in writing, binding the said defendant to pay for the said lands so sold, in manner and form as the said plaintiff hath in his said petition declared; and of this he puts himself upon the country. 18. GUARANTIES.. And the saiQ C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to have his said action against him; because he saith that — 1. He did not promise the said plaintiff, in manner and form as the said plaintiff hath in his said petition declared; and of this he puts him- self upon the country. " '* FOEMS OF ANSWER. [OHAP. Special Deniala. 2. The said plaintiflf did not sell and deliver the said goods aiid fchf.t- tels to the said E F, in manner and form as the said plaintiff hath in his said petition declared; and of this the said defendant puts himself upon the country. 3. The goods and merchandise so sold by the said plaintiff to the said E F, were not suitable for, nor required by-the said E F, in the way of his said trade, as the said plaintiff hath in his said petition declared; and of this he puts himself upon the country. 4. The said plaintiff did not, nor would, give the said defendant rea- sonable notice that he, the said plaintiff, had or would credit the said E F, in manner and form as the said plaintiff hath in his said petition . alleged; and of this he puts himself upon the country. The first issue, will raise the question of a legal- guaranty, and that must be in writing; the second will test the accuracy of the sales to E F; the third, whether the goods were such as would be covered by the guar- anty; the fourth, whether the proper notice was given of the acceptance of the guaranty. See note to petition. 19. PROMISES TO MABRY. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to have her said action against him; because he saith that — 1 . He, the said defendant, did ntit assume and promise, in manner and form as the said plaintiff hath in her said petition thereof declared against him; and of this he puts himself upon the country. 2. The said plaintiff has not always been ready and willing to marry ihe said defendant, nor did she, on the said day in said petition mentioned, offer to marry the said defendant, in manner and form as the said plaintiff hath in her said petition declared; and of this he puts himself upon the country. 3. The said defendant did not, nor has he, refused to marry the said plaintiff, in manner and form as she lias in her said petition declared ■ and of this he puts himself upon the country. The bad character of the plaintiff, if existing at the time of the prom- ise, and unknown to the defendant, renders the promise void, and should be admitted under the first issue; but her subsequent misconduct would XX.] , FOEMS OF ANSWEK. 275 Special , Denials, now -have to be specially pleaded, it is believed; since it admits the con- tract, but seeks to avoid it by subsequept fects— rfacts which amount to a release and discharge.. »0. PROMISE TO SEKVB AND EMPLOY. And the said C D, defendant, now comes, and for answer to the said petition of the said A B, plaintiff, saith that the said plaintiff ought not to have his said action against him; because he saith that — 1. He did not assume and promise, in manner and form as the said plaintiff hath in his. said petition declared against him; and of this he puts himself upon the country. 2. He did not refuse to receive and- employ the ^id plaintiff on his re- quest, as the said plaintiff hath in his said petition alleged; and of this he puts himself upon the country. 3. The said plaintiff did not offer himself to the said defendant to enter into his employment land service, as he Mth in his said petitiop averred. 4. The said defendant did perform his. said work, in said petition men- tioned, in a good and workman-like manner; and of this he puts himself upon the country. £, The said defendant did perform all the said work and labor hecwas to perform, in and. by virtue of the said contract, and did not leave unper- formed the work, as is in said petition alleged; and of this he puts himself upon the country. 21. AGENTS. ETC. And the said C D, defendant, now comes, and for answer to the petition of the said A B, plaintiff, saith that the said plaintiff ought not to have his said action against him; because he saith that— 1. He did not promise the said plaintiff in manner and form as the said plaintiff hath in his said petition alleged; and of this he puts himself upon the country. 2. The said defendant did not sell and dispose of the said, goods and merchandise for a bad and insuflScient bill of exchange, as the said plain- tiff hath in his said petition alleged; and of this he puts himself upon the country. It is doubtful whether this last issue- will be held good. Ought he not to meet it by setting out the sale and the bill he did take? In that case the 276 F0EM8 OF PETmON. [cHAl*. Special Denials. answer would be that "he sold said goods to one E F, he, the said E F, then being a man in good standing and credit, for the sum of $ ; and for the payment of which sum he took the bill of the said , drawn on and accepted by , payable in months after date, and the said defendant avers that the said bill of exchange was at the time held and considered an approved bill." Sa. BY-LAWS. And the said C D, defendant, now comes, and for answer to the petition of the said A B, plaintiff, saith that the said plaintiff ought not to have his said aetion against him; because he saith that — 1. He does not owp the said sum of money, by the said plaintiff in the said petition demandea, in manner and form as is therein set forth; and of this he puts himself upon the country. 2. The said defendant did not keep the said g^unpowder within the cor- porate limits of said town, in manner and form as the said plaintiff hath in said petition declared; and of this he puts himself .upon the country. 3. There is no such by-law in force in the said town of , as the said plaintiff hath in the said petition set forth and declared; and of this he puts himself upon the country. 4. The said defendant did not, as is alleged in said petition, rent to the the said E F, the said premises, to be kept and used by the said E F as and for the purpose of permitting and carrying on therein gaming, as the said plaintiff hath in the said petition alleged; and of this he puts himself upon the country. as. J0DOMENT. And the said C D, defendant, now comes, and for answer to the petition of the said A B, plaintiff, saith that the said plaintiff ought not to have his said action against him; because he saith that there is no such record of said recovery now remaining in the said Court of Common Pleas, in man- ner and form as the said plaintiff hath in his said petition declared; an this he"prays°may be inquired of by this court. 34. OFFICIAL BONDS. The special issues or denials will be; 1. That the defendants did not make and deliver the said writing obligatory. XX.] FORMS OF ANSWER. 277 Special Denials. 2. That there is no record remaining in said Probate Court of the said accounting and judgment, as is in said petition averred. All other defenses must be by new facts, as the settlement is a judgment and the parties can not impeach its veracity. On sheriff's bonds, special denials may be put in to the bond, to the judgment, to the issue of the execution, to the existence of the return; the return can not be contradicted. Under the old practice, ml debet was held a good plea. Hyatt v. Eobinson et al., 16 Ohio Kep. 372. This plea ad- mitted the bond, and put in issue the facts set up to constitute an introduc- tion to, and a breach of, the bond. It would be well, if it should be again sanctioned by the court, under the code, as a sort of general special denial in such cases; it will be more convenient than a special denial of each ma- terial averment separately.. If allowed, it might be in this form: (After iAe introduction io the toord "because," proceed as follows:) "they say that they do not owe the said plaintiff the said sum of money, by him in his said petition demanded, or any part thereof, in manner and form as the said plaintiff has in his said petition declared; and of this they put themselves upon the country." 2,5. LANDLOBD AND TENANT. The special denials in these actions may of course be many. 1. The lease may be denied. 2. That he does not owe the rent. 3 That he has pommitted no waste. 4. That no repairs were pecessary, etc. It is unnecessary to give forms for them. 26. FOR INJURIES TO PERSONS AND ANIMALS. I . _ {After the introduction, proceed:) 1. That the said defendant is not the owner (or harborer, as the aver- ment is,) of the said dog, in the said plaintiff's petition mentioned; and of this he puts himself upon the country. 2. Th'it the said defendant did not know that the said dog was accus- tomed to bite mankind, (or was of a ferocious or mischievous nature;) and of this he puts himself upon the CQjintry. 3. That the said dog did not kill and injure the cattle, (or hogs, horses, sheep, etc.,) of the said plaintiff, as he hath in his said petition set forth; and of this he puts himself upon the country. 278 FOEMS OF AUSWBK. \p?^ Special Denials. . 4. That the said plaintiif, by reason of • the wrongs in. said petition complained of, has. not sustained damage to the said sum of i$ , as he has in his said petition averred; and of this he puts himself upon the country. This last one seems unnecessary; since the same issue is raised on an inquiry of damages. ; In these cases, the oath of plaintiff does not extend to the amount of damages claimed. Vide Sees. 112 and 127^ of Code, 2 S. & C. St. 983, 987. Sec. 127 will justify- such a traverse. 87. OBSTBCrCTING STREET. 1. The said defendant did not wrongfully obstruct the said public highway, (or street,) in manner and form as the said plaintiff hath in his said petition complained against him. 2. The said plaintiff was overturned in his said carriage, as he has in his said petition alleged, of his own fault and negligence, and not for the reason in his said petition alleged. 88. LEAVING BOLE OPEN. 1. The said defendant denies that he was possessed of the said prem- ises, in the said petition described, at the time in the said petition named. 2. The said plaintiff of his own fault and negligence fell into the sail hole, and not in manner and form as he hath in his said petition set forth. 3. The said defendant did not permit the said hole to be and remain open, to the great danger of persons passing along said highway, (or street, ) as the said plaintiff hath in his said petition declared. 89. FLOWING WATER. 1 . The said plaintiff is not possessed of the said premises and mill, in his said petition described, in manner and form as therein averred. 2. The defendant did not erect, or keep up the said dam, in manner and form as the said plaintiff hath in his said petition declared. 3. The said defendant did not flow the water back upon the mill of the said plaintiff, in manner and form as the said plaintiff hath in his said petition declared against him. 4. The said defendant did not divert the water in said stream, in manner and form as the said plaintiff hath in his said petition declared against him. XX.] FOBMS OF ANSWER. 279 Special I Denials. 30. MALIOIOTTS PKOSBOTTTION. 1. The said defendant did not maliciously cause the said writ of attachment to be issued, in manner and form as the said plaintiff hath in his said petition declared against him. 2. The said defendant did not falsely and maliciously, ana without probable and reasonable cause, cause the said plaintiff to be arrested, in manner and form as the said plaintiff hath in his said petition declared against him. 81. LIBEL AND SLANDER. Little else than not guilty can be pleaded as a denial in an action of this character. A justification must be pleaded as new matter. The induce- ment, where ttere is one, mav be denied — as in slander of one in his profession, in his title, etc. 32. COMMON OAREIEBS. 1. The said defendant says that he is not a common carrier, as the said plaintiff hath in his said petition alleged against him. Note. — As to who-is a common carrier, see Samms v. Stewart, 20 Ohio Eep. 69. 2. The said defendan'. did not receive the said goods and chattels of the Said plaintiff, in manner and form as the said plaintiff hath in. his said petition alleged. 33. FALSE REPRESENTATIONS. 1. The said defendant did not make the representation in said petition set forth, in manner and form as therein alleged. 2. The said defendant did not, at the time he so made the said repre- sentation in said petitions set forth, know that , the same were untrue and false. 3. , The said defendant did not sell to the said plaintiff the horse in the said petition mentioned, in manner and form as is therein alleged. e 34. COLLISIONS. The special denials are few in these cases; the plea of not guilty is the one to raise the true issue. The defendant may deny- — 1. That he was the owner and possessed of the said wagon, etc, by which the injury was done. ■ . • 280 FOEMS OF ANSWER. [OHAP Special Denials. 2. That he did not through negligence run foul, of and against the wagon, boat, or vessel of the plaintiff. 3. That the plaintiff is not the owner of the wagon, boat, etc., injuied. 4. That the said collision happened from the fault of the plaintiff, and not from that of the defendant, as is in said petition alleged. 35. BY A SHERIFF. The sheriff may aver — 1. That there is no record of the judgment. 2. That said execution did not come into his hand. 3. That he did not levy on the said goods and chattels in said petition named. 4. That he did not leave the same with the said defendant. 5. That tl^e said goods were not lost. 6. That the said E F was not justly indebted to the said plaintiff in the said sum of $ , as the said plaintiff has in his said petition alleged. 7. That the said plaintiff caused said writ of capias to be issued with- out having filed any sufficient affidavit to authorize the issuing thereof. NoTB. — It was held tha;t a sheriff waa not liable for failing to execute a capias isitaed contrary to law. Gates v. Maxon, 2 Western Law Journal, 406. 8. That the said defendant did not permit the said E F to go at large and escape, as is in said petition alleged. 9. That the said defendant did not arrest the body of the said E F, as is in said petition alleged. 36. BT A WITNESS. The witness may answer — .1. That the said plaintiff did not cause the said defendant duly to be served with a subpoena, as the said plaintiff hath in his said petition alleged. 2. That the said defendant did not willfully refuse to attend at the time and place of the said trial, as the said plaintiff hath in his said netition alleged. 3T. IN TROVER. It may be averred — 1 . That the said goods and chattels are not the property of the said plaintiff, as he hath in his said petition alleged. XX.,] F0EU8 OF AN8WEB. 281 Special Denials. 2. That the said defendant did not eonvert the said goods and chattels, in manner and form as the said plaintiff hath in his said petition described. 38. IN ASSAULTS. The only issue in these cases is not guilty. There can be no special denial, since there is but one fact averred — ^the assault. Where a battery also is charged, or a wounding, or any other great bodily harm, the pleader must understand the facts of the case. If there was no wounding, he may plead not guilty as to that, and justify as to the balance. Vide special pleas in justification. 39. TRESPASS TO GOODS. The answer will be— ;- 1. That the said goods and chattels are not the property of the said plaintiff, as he hath in his said petition alleged. 2. That the said defendant did not take the said goods and chattels, as the said plaintiff hath in his said petition alleged. 3. That the said plaintiff was not possessed of the said goods and chat- tels, as the said plaintiff hath in his said petition alleged. 40. TRESPASS TO REAL PROPERTY. The defendant may answer — 1. That the said plaintiff was not possessed of the said premises, in the said petition described, in manner and form as the said plaintiff hath therein alleged. 2. That the said plaintiff was not entitled to the possession of the said premises, in manner and form as he hath in his said petition 3. That the said defendant did not break and enter the premises of the said plaintiff, in manner and form as he hath in his said petition 4. That he did not take and carry away the said goods and chattels, in said petition named, as the said plaintiff hath in his said petition alleged. The first denial will put in issue simply the possession of the plaintiff. Trespass is a wrong to this,, and no one not in possession can sustain trespass. 282 FDBMS OF ANSWEE. CHAP. * Introduction of New Matter. •The second will probably raise a question involTed under the. plea of noi guilty, the title of the plaintiff as against that of the defendant. If this denial will not raise that question, then title must be specially pleaded. The third is a denial of the entry simply, and it must be held to admit every thing else, unless under this issue the question of title might be raised. If the denial was that he did not unlawfully break and enter, possibly the question of title might be raised under this issue. The fourth denial is immaterial, unless the count is so framed that a recovery can be had for the goods alone; otherwise the taking of the goods is a mere matter of aggravation, and so not issuable. 5. That the said defendant did not unlawfully break and enter the close of the said plaintiff, as the said plaintiff hath in his said petition alleged. Note. — This denial of breaking the close of the plaintiff may best raise the question of title. It was on account of this averment in the forms, that title was held to be put in issue in the old action of trespass. 6. That the said close mentioned in said petition is not the close of the said plaintiff, in manner and form as the said plaintiff hath therein declared. Note ^Keyse B. Powell, 18 Eng. L. and Eq. 411. Thisseemsto be the 'form under the new rules in England for raising the question of title. NEW MATTER CONSTITUTING A DEFENSE, 41. TO 'JURISDICTION. And now comes the said C D, defendant, and for answer to the petition of the said A B, plaintiff, saith that the said court here ought not further to take cognizanee of, or sustain the action aforesaid; because he says that the cause of the actjon aforesaid, if any accrued to the said plaintiff, ac- crued to him, the said plaintiff, * within the county of , and within the jurisdiction of the Court of Common Pleas, within and for said county of , and not within the county of- , within the juris- diction of this court; and this he is ready to make appear. '' 42. ANOTHER FORM, {^Follow the last to the *, then add:) out of the jurisdiction, to-wit, at the county of , and not in the said county of , (where suit is brought,) in said petition named, or elsewhere within the jurisdic- tion of this court; and this he is ready to make appear. XX.] FOEMS OF ANSWEH. 283 Introductidn of New Matter. These forms will answet when the action is brought in the wrong county under sectiop' 46; subdivisions 1, 2, and 3. The suit iri these cases must be brought in the county where the land lies, and not elsewbere. The averment that the cause of action acorUed tO the plain tiflf in the county where the land lies, is sufficient under the code, since it was so under the old practice. Story's Pleading, 7. So the causes of action mentioned in section 47 are also local; and if brought in the wrong county, this form of plea or answer will be suf&eient. There may occur cases where a more specific statement of the facts may be necessary. If so, they must arise under sections 48 and 62. In such oases the following forms may be preferable: 4 3 . ANSWER BT OOEPOEATION CEEATBD BY THE LAWS OF THIS STATE. And the said C D, defendant, now comes, and for answer to the petition of the said A B, plaintiff, saith that the court here ought not further to take cognizance of, or sustain the action aforesaid, because the said de- fendant saith that the said defendant * is a corporation created by the laws of this State, and that its principal office and place of business is situate at , in the county of , and not in the said county of , (where suit is,) within the jurisdiction of this court; and this the said defendant is ready to make appear. 44. THE SAME BT A^ POKEIGN OOBPOEATION. {Follow the last to *, then continue as follows:) is a foreign corporation, created by the laws of the State of , and not by the lAws of this. State, and that there is no property of said defendant, nor,any debts due and owing to the said defendant in the said county of , (where suit is;) and this the said defendant is ready to make appear. 45. MATTERS IN ABATEMENT. And the said D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said A B ought not to prose- cute his said action against him; because he saith that the work, and labor, and money, mentioned in the petition of the said A B, was done and paid by the said plaintiff for and at the request of the defendant, jointly with one E F and G H, who are all living, and ought to be joined as defendants in tJiis action; and this he is ready to make appear. 2^* FOEMS OF ANSWER. [OHAP, Introduction of New Matter. This is the form adopted and held good in Sweet v. Tuttle, 10 Pr. Rep. 40, 162. And it was there held that it might be joined with matter pleaded in bar of the action. The same doctrine is maintained in Bridge V. Paysen, 6 Sandf. S. C. Eep. SlOj but the contrary doctrine was held in Gardner v. Clark, 6 Pr. Rep. 449. The decision in Sandford was made by the Superior Court of New York city; and the one in 10 Pr. Rep. by Marvin, Bowen, and Green, J. J., of the Supreme Court, while the decis- ion in 6 Pr. Rep. was made by Allen, Hubbard, and Pratt, J. J., of the Supreme Court. The preponderance is in favor of allowing the plea to be put in with other matter in bar. The last decision was made after time had been gfiven to discuss the two conflicting cases, and may be supposed to reflect the present opinion of the courts of the State. The same ques- tion came up again in 10 Pr. Rep. 162, and was decided as the prior case had been. 46. PLACITIFP AN DfPANT OR MAEBIED WOMAN, SUING WITHOUT A NEXT FEIEND. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said A B ought not to be per- mitted further to prosecute his said action; because he saith that the said A B is an infant, under the age of twenty-one years, {or eighteen years, y a female,) {or was, at the commenceiaent of this suit, under coverture of one , her husband, and that said is still living at ;) and this he is ready to make appear. 4r. WANT OF PAETIES. And the said C D, defendant now comes, and for answer to the peti- tion of the said A B, plaintiff', saith that the said plaintiff ought not to be permitted further to prosecute his action aforesaid against this defendant; because he saith that are tenants in common with the said plaintiff in the lands and tenements set forth and demanded in said peti- tion, and that the said are not made parties to this action; and this he is ready, to make appear. 48. FOE DEPBOT OF PLAINTIFFS. And the said C D, defendant', now comes, and fcr answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to fee permitted further to prosecute his said action; because he saith that the said sum of money, in said petition demanded, is not due from this de- fendant to the said A B alone;* but that the same is due and owing fVom XX.] FOEMS OF AKSWEE. 286 Introduction of UTew Matter. this defegdant to one , who is still living, jointly with the said A B; and this he is ready to make appear. 49. WANT OP DEFENDANTS. (Follow the last to the *, then proceed:) but that the same is due, and owing from this defendant, jointly with one , who is stiU liv- ing, to the said plaintiff; and this he is ready to make appear. The above forms are proper where the petition is on the indebitatus counts, or when no contract to pay is set forth. Where the petition sets forth a contract, the following form must be used: 5 0. DEPBOT OF PLAINTIFFS. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to be permitted further to prosecute his said action; because he saith that the said contract, (or several conti'acts,) in said petition set forth, was [or were, each and every one of them, )* made by the said defendant, not with the said A B, plaintiff, alone, but by this defendant with the said A B. jointly with one , who is still living; and this the said defendant is ready to make appear. > 51. DEFECT OP DEFENDANTS. {After * in above, add:) not made by this defendant separately with the said plaintiff, but was {or were) made by this defendant, jointly with one , who is still living, and not otherwise; and this the said defendant is ready to make appear. 5a. MISNOMER OP PLAINTIFFS. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff -ought not to be permitted further to prosecute his said action, because he saith that the said plaintiff is named, and known, and called by the name of • , and not by the said name of , as is in said petition averred; and this the said defendant is ready to make appear. . 53. MISNOMER OP DEPENDANT. And , sued by 'the name of C D, in the action of said A B, plaintiff, now comes, and for answer to the petition of said A B, 286 FORMS OF ANSWBB. [CIIAP. New Matter ia Bar. plaintiff, saith that the said plaintiff ought not to be permitted further to prosecute his said action; because he saith that this defendant is named, known, and called by the said name of , and not by the said name of C D, as he is in said ■petition named; and this he is ready to make appear. 54. OOYSBTUBE OP DEFENDANT. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not fur- ther to be permitted to prosecute his said action; because she saith that she was, on the day of commencement of this suit, covert of one , her husband, and that the said is still living at , in the county of , and State of ; and this she is ready to make appear. Sturges v. Burton, 8 0. St. Rep. 215, when to answer, and when to demur ; vide this case. 55. ANOTHBB ACTION PENDING. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to be permitted further to prosecute his said action; because he saith that hereto- fore, on the day of , A. D. 18 , the said plaintiff com- menced an action against this defendant in the Court of Common Pleas, within and for the county of , and State of , against this defendant for the same cause (or causes) of action set forth in the said petition of the said plaintiff, as by the record thereof will appear; and that the said action so heretofore commenced by the said plaintiff against this defendant still remains undetermined in said court of ; and .this the said defendant is ready to make appear. NEW MATTER IN BAR OF.ACTIOK. Statute of ZimiicUums. 5 a . OONTKAOTS NOT IN WRrriNG, OE LIABILITy CREATED BY STATUTE, OTHE THAN A FORFEITURE. ^ And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to have his said action thereof against this defendant; because he saith that the said cause [or if more than one, said several causes,) of action in the said plaintiff's petition set forth, did not accrue to the said plaintiff against this XX.J F0KMS OF AKSWBR. 287 New Matter in Bar. defendant * within six years next before the commencement of this action; and this he is readj to make appear. ST. OONTBAOTS IN WKITINO. (Follow the above to *, then add:) within fifteen years next before the commencement of this action; and this he is ready to make appear. The above forms will answer for all actions with a mere change of the time of limitation. Four years are the limitation for actions for trespass on real property, for injuring, taking, or detaining personal property, whether the property is specifically demanded or not; for injury to the rights of the plaintiff not arising on contract or before provided for; an action for relief on the ground of fraud, is to date from the discovery of fraud. One year to actions for libel, slander, assault, battery, malicious prosecution, false imprisonment, on a statute for a penalty or forfeiture, unless the statute creating the penalty or forfeiture fixes a different limitation. Ten years to actions on official bonds, or undertakings of executor, administrator, guar- dian, sheriff or other officer, and upon bonds given in attachment, injunc- tions, arrest, or in any case whatever required bv statute; also in an action for relief not provided for in previous cases. 58. BT aXEOUTOE OE A DM IN I S T E A T E. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to have his said action against this defendant; because he saith that more than four years next before the commencement of this suit, to-wit, on the day of , A. D. 18 , he, the said defendant, was, by the Pro- bate Court, within and for the county of , duly appointed admin- istrator of the goods and estate of the said , (the intestate, ) and then and there accepted that trust, and that afterward, within three months from his acceptance of the said trust as aforesaid, to-wit, on the day of , A. D. 18 , he did cause a notice of his said appointment to be published three consecutive weeks, in the a newspaper of general circulation in said county of ; and this he is ready to make appear. S9. CLAIM EBJBCTBD AND NOT SUED IN SIX MONTHS. (Follow the alone to the word "because," then say:) because he saith that the said plaintiff, more than six months before the commencement of 19 FOEMS OF .AUSWEE. [08AP. New Matter in Bar. this suit, to-wit, on the ' day of , A. D. 18 , did present the said claim against the estate of the said , deceased, to thie defendant, as such administTator, for allowance; and this defendant did then dispute and refuse to allow said claim as a valid claim against said es- tate; and this defendant further saith that said claim has never been re- ferred, in conformity to the provisions of the statute in such case made and provided; and this he is ready to make appear. Where the claim is not due at the time, and it is presented for allowance, it must be sued in six moliths after it becomes due, or it will be barred. Swan's St. 378, Sec. 88. Hence in such a case, the form would have to be changed. 60. WHERE THE L A I H IS NOT DUE WHEN BEJEOTEO. (Begin as in 69:) .because he saith that the said plaintiff did, on the day of , A. D. 18 , present and exhibit said claim to thi^ defendant, as administrator as aforesaid, for allowance, and that this defendant did then dispute the justness of said claim, and refused to allow the same as a valid claim against the estate of the said , de ceased; and this defendant further saith that the said plaintiff did not, within six months after the said claim became due, according to the tenor and effect of said promissory note, (or bill of exchange, contract, etc., os the case may be, ) commence a suit for the recovery thereof against this de- fendant, as such administrator; and this he is ready to make appear. In case of an executor, these forms may have to be changed very slightly in the averment of the appointment. • The averment might be that the said caused the last will and testament to be admitted to probate, and took upon himself the execu- tion of said trust, by giving surety as the law requires. An administrator or executor can not, by a new promise, revive a claim once barred, even under the general statute of limitation. Drouillard v. Wilson, admr. of White, 10 West. Law J. 385; Hill v. Henry, 17 Ohio Rep. 9; Exr. of Niemcewiez t>. Bartlet Admr., 13 Ohio Rep. 271. In Mas- sachusetts it has been repeatedly decided that the four years limitation could not be waived by the personal representative. Brown v. Anderson, 13 Mass. Rep. 201; Dawes v. Shed, 16 do 6; Ex parte Allen, 15 do. 58; Thorapscjn v. Brown, 16 do. 172; Heath v. Watts, 5 Pick. Rep. 140. Can a plea of the statute of limitation be set up after a default? Yes. Vide Wood v. Ward, 10 West. Law J. 505, where the whole law of the XX.J FORMS OF AXS-WEB. 289 New Matter in Bw. question is examined; and the cases of Sheets v. Baldwin, 12 Ohio Rep. 120, and Newsom's admr. v. Barr, 18 Ohio Rep. 240, are commented on and explained. The Ohio cases simply decide that it is in the discretion of the court to permit it; and no court has a right, in its discretion, to re- fuse to one what it permits to another. What right has the court to say to A, "you may plead the statute," and to B, "you shall not?" 61. INFANOT. .. And the said C D, defendant, now comes, by E F, his guardian for the suit, and for answer to the petition of the said A B, plaintiff, saith that the said plaintiff ought not to have his said action thereof against this de- fendant; because he saith that, at the time of making said contract and promise, (or said several contracts and promises, if more than one count,) he, the said defendant, was an infant within the age of twenty-one years, (or eighteen years, if a female,) to- wit, of the age of years, and no more; and this he is ready to make appear. 62. OOVERTUEE. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiif, saith that the said plaintiff ought not to have his said action against this defendant; because she sailh that, before and at the time of making the said contract and promise, (or the said sev- eral contracts and promises,) in said petition set forth, she, the said de- fendant, was, (if husband is alive, and still is, ) the wife of and married to one , (if alive, add, and who is now living' as the same shdl be settled by this court; A case of this character scarcely comes within the definitions of the code, as to a petition and answer. The object of the suit is not a judg- ment, in the true meaning of. that term; but to procure an adjustment of the order of liens to the real estate, and a sale of the same, and an appli- cation of the proceeds oa the various claims, according to their respective priorities. The answers in this case do not, and can not come within the definition contained in the code; the matters contained in them constitute neither a defense, or counterclaim, or set-off; its ofiSce is simply to bring facts upon the record, showing the party's claim, so that the court may be able to adjust their respective priorities. These fects are no defense to the plaintiff's: claim, nor do they constitute a counterclaim or set-off; and yet they must be admitted, in order to enable the court to pass upon the re- spective rights of the parties, and administer justice. The truth is clear, that the code can not be made to meet the necessities of the various cases which must arise out of the law regulating equitable rights, unless we disregard its letter and go behind its language; so as to expound its defi- nitions ■ differently, as they are to be appliedto a case at law or in equity. In this way we may make it answer the purposes of justice and its admin- istiation, and we can do it in no other way* XXI.) EQUITT FORMS. 3^ Answers. ANSWERS. The answer, in a chancery cause, is altered much more by the code than the structure of the petition-is. The answer now need cover only so much of the case^ the party denies; the matter unanswered being taken to be admitted. And as the whole right to discovery, as discovery.,, is abolished, the defendant is bound only to, meet the case made by the plaintit:' iiv his petition; he can not, as we see, set up the facts as. he understands them; because that would be a discovery of his knowledge of the facts, which facts might make a new case, instead of meeting that of the plainti£f. The truth is, the code has restricted an answer in an equity case to the strict- ness of a common law pleading; it can consist of but two matters: First, A general or special denial of the plaintiff's case, as made in his petition; jS'econt^, New matter, constituting »idefense, counterclaim, or set-off; but as set-off and counterclaim can not be known in a case strictly of equita- ble nature, the answer must contain new matter, which, if true, in layr defeats the plaintiff's right to relief-^-^s a plea to a petition by obc partner against. another of no partner, a plea of the statute of frauds, etc. — so a settlement, or release, etc., may be pleaded. Whether justice is to be sub- served by this rigid system of pleading in equity cases, is much to be doubted. It places the defendant very much in the power of the plaintiff and the court. He can not. set up in his answer a different state of facts from what the plaintiff has done in his petition; and as he can but deny this, he is at the mercy of the court, who can permit the plaintiff, by amend- ment, to make a case which he never had an opportunity to prepare to meet. Under the former system of pleading in chancery, the defendant set up the case as he understood it, after denying the case as the plaintiff had stated it. The plaintiff could then either amend, to make his case correspond with the case as stated by the defendant, or he could go to hear- ing on the case as stated by himself; and then he could not recover, if the. evidence failed to establish the case as stated by himself. A complainant in equity was held to recover only on the case made by himself, and he could recover on no other. But now, under the unlimited discretion vested in a courty to allow amendments at the trjal, and to proceed in the case, a defendant never can tell when he is safe, unless he is at the expense of trying not only the case as made by the plaintiff, but every other possi- ble aspect of the case which th6 evidence may disclose. No continuance can be granted, unless the court thinks the part^ has been taken by sur- prise; and what is a surprise is. a matter not so estay. to decide. The court ^•*^ EQnrtir FORMS. [chat. Answers. will probably say that thS party must have known the exact facts of the case, and why did he not prepare to meet them? All the answer he can make is, I prepared to meet the case made, and had no right to make ex- pense in meeting any other. If the court thinks otherwise, then the party is amended into a case which he has never had a chance to defend; and judg- ment is rendered against him without his ever having had practically a day in court; because, knowing the plaintiff might have some kind of a case against him, though not the one sued on, the court thinks he should have prepared himself to meet that case, instead of the one made in the the pleadings. It may be this is an improvement in the practice of a court; but it will be found to be no improvement in the administration of justice. The form 6i an answer, therefore, must, in each case, depend solely on its character. The statute of limitations and fraud will be pleaded as at law; so will also a release, or settlement, or infancy, etc. The forms at law will answer in all actions founded upon principles of equity. In accounts, trusts, etc., if the defendant can not deny the trust, or the fact which constitutes the right' to an account, the decree or judgment for the account ifiust pass, of course, and the whole matter must be gone into before the master. The defendant can no longer set up in his answer a statement of the account. He must deny his liability to account, or he has no defense; the condition of the accounts is a matter for the master. To a petition by a partner for an account, he can deny the partnership;" for on that fact rests the right of the plaintiff to call for the account,' or he may set up a new fact, which, admitting the partnership, shows that the right has been extinguished — as by an account and settlement, oV a release, or by a purchase in gross of the interest of the plaintiff in the partnership property, etc. So a party may deny that he is a trustee; or, admitting that he was, he may set up any fact which legally extinguishes that rela- tion between him and the plaintiff. So, on a petition for specific perform- ance, he may deny any contract; he may set up that it was not in writing, 8r, in a case of part performance, he may deny the facts set up as a part performance, or he may deny that he gave thei plaintiff possession, or that he knew of the improvements; or possibly he may plead that the plaintiff was in possession as tenant, and not as purchaser, and did all the acts as such tenant, and not under his said contract of purchase; though a denial that there had been any part performance, as stated in the petition, would probably be all that is necessary; as the facts, and circumstances, and doings of the party -would be mere evidence to prove the part performance. It may be doubtful whether a petition should do more than state that the vendor put him' 'in possession of the premises, and that he has cultivated XXI." EQUITY FORMS. 371 Answers. General Denial. Special Denials. and improved the same, as his own, from the time when so put into pos- session until the plaintiff undertook to eject him or until the commencement of the suit; and the case of Wooden v. Strew countenances this doctrine. 10 Pr. Eep. 48. Where the defendant wishes to interpose a general denial, he may do it in the general form already given — as that the defendant denies, all and singular, the averments and allegations contained in the said petition. Special denials must, of course, take issue on some one particulart allega- tion in the petition; and then it will be expressed in the negative of the averment in the petition. There can be no difficulty in framing such denials, since their form is controlled by that of the form of the averment. I. Oenzbal Denial. 19. GENBBAL FOBM. The said C D, defendant, now comes, and for answer to the petition of the said A B, plaintiff, saith that he denies, all and singular, the matters and things, and, all and singular, the allegations and averments contained in the petition of the said plaintiff, in manner and form as the same are therein set forth and stated. This general form will answer in all cases where the defendant can say that the case stated is untrue. As has already been said, the defendant is not called upon to meet any case but the one stated in the petition; hence, if the plaintiff has made a mistake in setting out his case, the defendant has no other defense than to deny the case made; since he can not be permitted to set uo the disoute as he understands it. II. Sfeoiai, Denials. 20. DENIAL OF THE AOBEElklBNT ALLEGED. The said C D, defendant, now comes, and for answer to the petition of the said A B, plaintiff, saith that he did not contract and agree with the- said plaintiff, in manner and form as the said plaintiff hath in his said peti- tion set forth, and alleged. SI. A SECOND FORM. The said C D, defendant, now comes, and for answer to the petition of the said A B, plaintiff^ saith that he did not make with the said plain- tiff the said agreement, by the said plaintiff set forth and alleged in his. said petition. 372 EQUITY FORMS. [CHAP. Ansirers. Special -Denials. 33. DENIAL OF A DEED. The said C D, defendant, now comes, and for answer to the petition of the said A B, plaintiif, saith that the said plaintiff did not execute and deliver to the said defendant the said deed of conveyance, in manner and form as the said plaintiff hath in his said petition alleged. 33. A SECOND FORM. The said D, defendant, now comes, and for answer to the petition of the said A B, plaintiff, saith that the said plaintiff did not convey to the said defendant the lands and tenements in the said petition described, in manner and form as the said plaintiff hath thereof in his said petition alleged. 34. MOBTaAOE NOT BEOOBDED. The said C D, defendant, now comes, and for answer to the petition of the said A B, plaintiff, saith that the said plaintiff did not cause the said deed of mortgage to be recorded, in manner and form as the said plaintiff hath in his said petition alleged. * 35. EQUITY OF BBDEMPTION NOT ASSIONED. The said B, defendant, now comes, and for answer to the petition of the said A B, plaintiff, saith that the said did not cOnvey his equity of redemption in and to the said premises, in said petition described, in manner and form as the said plaintiff hath in his said petition alleged. 36. UOBTOAOS NOT ASSIONED. The said C D, defendant, now comes, and for answer to the petition of the said A B, plaintiff, saith that the said did not, by deed duly executed,. convey all his right and title, as such mortgagee, in and to the said premises, in manner smd form as the said plaintiff hath in his said petition alleged. 37. NO EQUITABLE ASSIGNMENT. The said C D, defendant, now comes, and for answer to the petition of the said A B, plaintiff, saith that the said did not assign and transfer to the said defendant the note in said deed of mortgage mentioned, and the money due thereon, in manner and form as the said plaintinote% toere given, aver the giviing of thsm,) and without any fraud oi XXI.J EQurry fokms. 377 Anawersyv fecial -Oleniiils. intent to binder, or delay, or defraud i the said A B, or the other creditors of the said .,... , aind,without,ftny knowledge* infprmation, or be- lief that tie said sold the said .premises with the intent charged in the>.said^ petition; and this he is ready to make appear. 42. PLEA OF AN AOOOUNT. And now comes the said CD,- defendant, and for answer to the petition of thoi said A B, plaiintiff, saith that the said plaintiff ought not to hare his aforesaid action; because he saith that, after the said dealings: in said petition named, and before the commencement of this action, the said A B and the said C D came to a mutual accounting touching the several matters and things in said petition mentioned, and on the said accounting there was found due from the said to the said , $ , as a final balance upon said mutual dealing and matters between the said A B and the said C D; and. the said C D avers that to, the best of his knowledge and belief the said stated account is just and true; and this he is ready to uiake appear. It is said, in 2 Atky. Kep. 399, that stated accounts must be in writing. Still this is to be doubted; at least it need not be averred in the answer; that would be matter of proof But trhere the petition is brought to set aside an account for errors or fraud, this plea will not answer; then the answer must meet the averments in the petition which show the mistake or fraud in the stated a.ccount„ An account made out by one, and sent to another, will become an account stated, if retained by the party without any, objection being made thereto., 2 Atky. Rep. 262. The law as to a stated account is thus stated in a very recent case — that of Lockwood v. Thorn,, 1 Kernan Rep. 170. - It is not necessary, to make a stated account, that it should be signed by the parties. , It is sufficient if it has been examined and accepted by both parties. And this acceptance need not be expressed; it may be implied from circumstances — as keeping it any length of time. 12 Peters Rep. 300, 334. The ordinary pleas in equity are still good pleas in similar cases under the code. . The most common .ones in abatement are, infancy, coverture, idiocy, and lunacy. Forms for, these pleas have been already given; and those forms will answer in cases founded on equitable principles as well as in those founded on legal principles, So the defendant may plead that > he. or the. plaintiff dp not sustain the character in which they sue or are sued — as that the defendant is not a /emme soh, or not heir, or administrator, etc. So a plea that the plaintiff is 3?8 EQUITY FOEMS. [oHAP. Answers. Special Denials. not the person he pretends in his petition to be, or that he does not sus- tain the character which he assumes is good. Story Eq. P. 563. So where one claims as heir, a plea may be interposed that he is not heir. 2 Ves. and Beames, 169; 2 Bro. Ch. Eep. 143; 3 do. 489. So if one sues as a partner, a plea that he is not a partner would be good. Sanders v. King, 6 Madd. Rep. 61. So to a bill by a plaintiff, as a creditor of an estate, a plea that he is not a creditor, and that the deceased was not indebted to him, is good. Thring v. Edgar, 2 Sim. and Stu. E. 274. The forms of these pleas are mostly negative, and require very little skill to frame them. The following will serve as a guide: 43 ANSWER, NOT THE PEES ON HE A3S0MES TO BE. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that said plaintiff ought not to have his said action; because he saith that the said plaintiff is not the executor of the last will and testament, {or the administrator of the estate, or heir, or widow, ) of the said , deceased, as the said plaintiff hath in his said petition alleged; and this the said defendant is ready to make appear. To an action by an heir to recover real estate, the defendant may set up by plea a conveyance from the ancestor. So to a petition filed to set aside a conveyance for fraud, a plea of title paramount, under a former convey- ance, may be pleaded in bar. So lapse of time may be pleaded; though this is a defense growing out of the evidence in the case itself; and effect would be given to it on the hearing; but still, if a party has no other de- fense, he must plead this. It seems probable that our present statute of limitations applies to cases in equity, as well as to those at law; and hence the doctrine of lapse of time no longer exists in Ohio; but a positive limi- tation is fixed by statute. The limitation of ten years will apply to trusts and other equitable rights, if no other will reach them. Section 1 8 pro- vides that an action for relief, not hereinafter provided for, can only be brought within ten years after the cause of action shall have accrued. This limitation must, of course, be pleaded; but the forms already given are sufiScient in all cases. If the code is to be so construed, as it ought to be, that a defense in a case founded on principles of equity, can be made according to the law regula- ting pleadings in chancery, then the answer will, of course, first deny whatever in the petition the defendant claims to bo untrue, and then set up XX1.J EQurrr forms. 379 Answers. Special Denials. any additional and new matter which avoids the case as stated. In this way, a defendant can deny the contract as stated in the petition, and set it up as the defendant claims it to be; or he can deny facts as stated, and set thsm forth as he claims them to be. And this is still the practice under thfc code, as followed by the best lawyers. If the code does not admit of this pleading, it ought to be amended so as to admit it. The form of such answer is very simple. The following will serve as a skeleton of one: 44. ANSWER TO SFEOIAI. COUNTS. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiflF, saith that he denies, (here state what parts of the petition he does controvert; then any new matter admissible as a defense, hy showing a different state of facts, a different agreement, or any neto mat- ter which bars a once existing right of action. ) The answer now, even in this shape, is a mere pleading; and hence nothing but such facts as in pleading are called facts should be stated. All matters which are merely evidence of the fact should be omitted. Un- der the former system of pleading in equity, discovery, evidence of the real fact, was sought for; and this, discovery, the statement of this evidence, constituted the greater portion of every answer; but the code has abol- ished all this, and left the petition in such a case the mere stating part of an old bill in chancery. This method must, of course, very much abbre- viate the length of pleadings in a case founded on principles of equity, if the principles of the code are carried ^t in practice. All averments not denied are now taken to be true for the purposes of the case; hence a de- fendant need notice no averment of fact in the petition, unless he wishes to deny it, absolutely or qualifiedly. An absolute denial may be expressed in a simple negation of the averment; a qualified one, by a denial of the fact as averred; and a statement of it as the defendant admits the truth to be. The defendant, in the latter case, would say that he denies, etc., (repeating the averment;) but saith that he did, etc., (here state the case or fact as he understands it to be.) Suppose the averment to be met is one alleging a sale of real estate with the sum to be paid, and the times of payment, and. that this statement is incorrect. The defendant would answer that he de- nies that he contracted to sell, and did sell, the said premises to the said plaintiff for the said sum of $ , payable at the times and in the man- ner alleged in the said petition; bat the said defendant saith that he did 380 BQDnr fobms. [chap Answers. Special -Denials. contract to sell, and did sellv to the said plaintiff the said premises for iha. Sum of' i- , to be paid by the said plaintiff to the said defendaati $ ' in one year, with' interest, #: in two years, etc. So^ if the petition in such a case included land, which the defendant did not sell^ the defendant would deny that he sold the land described in the said petition, but say that he did sell the following described land or premises, setting them forth by metes and iouads. According to, the strict letter of the code, the simple denial is all that is necessary; because if the defendant is right in his view of the case, the plaintiff will be out of court on the trial, on a material variance: but then comes the unlimited power to amend the plaintiff into a case, which the defendant has never had an opportunity to meet; and whether he ever shall have such opportunity depends upon the mere untrammeled views of the court, as to whether the party is taken by surprise or has been misled in his defense. It may be policy in a plaintiff _ to misstate his case, and then on the trial amend it into shape, especially if he has a court wMoli is loth to believe that a party can be misled by such misstatement. Such a trick may throw the adverse party off his guard, and mislead him in the preparation of his defense. And if such should be the case, still, if- the court thinks he has not been misled,- it can force him to go on, and renmd judg- ment is in full force in law, and wholly due and unpaid, and is, and has been, a subsisting lien on said premise, from the said day of , A. D. 18 : and further he saith not. If executions have been issued and levied in order to perpetuate a lien, that fact should be stated, and the date of the levy, as the priority after the lapse of a year will depend upon the date of a levy. These answers do not, in form and substance, conform to the code; and yet no other form is adapted to the nature of the case. Hence this must be adopted, either by virtue of a forced construction of the code, or- be- cause the code provides no remedy, and. then we must go to the old law and practice. CHAPTER XXII. AREE8T AND BAIL. Sec. 145. A defendant in a civil action can be arrested before and after judgment. ■;•! , The code, as to arrest, does not apply to actions or judgments prose- cuted in the name of the State of Ohio, to recover fines or penalties for crimes, misdemeanors, or offenses, or to proceedings for contempt. Before the order of arrest can be applied for, the action must have been commenced by the filing of the petition. After the petition has been filed, the application for an order of arrest can be made, or it may be made at the time of filing the petition. This is a separate process from that of the summons, which, it would seem, must be issued and served in the same manner as though no arrest had been applied for. The party applying for the order must file, in the office of the clerk of the court in which the action is pending, his affidavit, or that of his authorized agent or attorney, setting forth the nature and amount of his claim, that it is just, and establishing one or more of the following par- ticulars: 1 . That the defendant has removed, or begun to remove, some of his property out of the jurisdiction of the court, with intent to defraud his creditors. « 2. That he has begun to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors. 3. That he has property, or rights of action, which he fraudulently conceals. 4. That he has assigned, removed, or disposed of, or has begun to dispose of, his property, or a part thereof, with intent to defraud his creditors. 5. That he fraudulently contracted the debt, or incurred the obliga- tion, for which the suit is about to be, or has been brought. (382) CHAP. XXn.J AEEB8T AND BAIL. 383 Actions in General. . The affidavit must also contain a statement of the facts claimed to justify the belief in the existence of one or more of the above particulars. The statement must give the facts, from which the plaintiff draws the inference that the debt was fraudulently contracted, or that the party has assigned, or removed his property, or withholds it, or is converting it into money, with intent to appropriate it to his own use, when it ought to go to. the use of his creditors. Before the order of arrest can issue, the plaintiff in the action must give an undertaking, with one or more sufficient, sureties, to the effect that the plaintiff shall pay all damages the party may sustain by reason of the arrest, if the same is wrongful. The plaintiff need not sign the under- taking; it is sufficient if it be signed by the Sureties. The State v. Bow- man et. al., 10 Ohio Eep. 446, 450. If the first order be irregularly issued, it must be set aside, and no subsequent affidavits can be received to cure the defects of the firsts ; Houston v. Belcher, 12 Smeede and Marshall, 514. The order of arrest is to be served by the sheriff, and made return- able, when issued at the commencement of the action, at the same time that the summons is, and when issued afterward, in fifteen days after its issue. To what causes ©f action does the right to arrest attach? It would seem that it attaches to all actions, where the object of the action is to recover judgment for a sum of money. In cases in chancery, an order of arrest can be had, where formerly a ne exeat might have been issued. If the object of the action is a judgment in personam for money, an order of arrest may be obtained. But when the suit is the recovery of specific personal or real property, or the proceedings are proceeding in rem — as petitions for specific perform- ance of contracts, conveyance of land, etc. — an order of arrest can not be obtained. In these cases, the court lays hold of the property, and has it legally within its control, and the presence or absence of the defendant can not alter the action of the court; nor can his action prevent the court from its control over the property, or impede its action in securing the title to the one entitled to it. Hence in these cases bail is useless. So, in an action to recover specific personal property, where an order of delivery is asked for, the plaintiff can not obtain an order of arrest. If he wishes for an order of arrest, he must abandon his right to a delivery of the property, and go for damages for its (Conversion, or its value. He can not have both remedies at the same time. Chappell v. Skinner, 6 Practice Reports, 338; Brockway v. Burnap, 8 Practice Reports, 188. 25 384 AREEST AND BAIL. [CHAP. Actions in General. Sec. 161. The sheriff shall execute the order by arrestirg the defend^ ant, and delivering him a copy thereof, and of the aflSdavit. A certified copy of the affidavit must be issued with the order of arrest, and, with a copy of the order of arrest, be delivered to the defend- ant, as a part of the service of the order. It has been intimated that a failure to deliver a copy of the affidavit would not render the arrest illegal and void. It would seem that this omission would not render the proceed- ings void; it is merely directory, and has nothing to do with the arrest. That must be first made. The sheriff may, however, be liable for not delivering the affidavit. If the defendant is not arrested on the first order, subsequent orders may be issued, as, of course, on the first application. See. 161. When arrested, the defendant must give bail to the sheriff, or be com- mitted to the jail of the county. Sees. 1 62, 1 67. The undertaking of bail must be executed in the presence of the sheriff, and be made to the plaintiff, and not to the sheriff. Sec. 157. The sheriff must return the bail undertaking, with his order of arrest, to the clerk's office. The defendant may, in lieu of bail, or in discharge of them after bai given, deposit in the hands of the sheriff, or in court, the amount of money mentioned in the order of arrest. Does this mean the debt sworn to, or the amount for which bail is to be given? If the former, then there is no security for the costs already incurred, or for those which may accrue, in case of a defense. The money is to be kept under the order of the court, till final judgment, and then to be paid over to the party enti- tled thereto, according to the final result. The only sum stated in the order of arrest seems to be the amount claimed, and bail is to be given in double that sum. The code is surely lame in this particular; as costs are often as much a matter of importance as the debt itself, especially in cases involving a long litigation. Bail may afterward be given in court, and the money withdrawn. Sec. 169. The sheriff must give the. plaintiff notice that bail has been given, when the undertaking is given, after the return of the order of arrest. Sec. 168. On the return of the order with a bail undertakmg, or on notice of its being afterward given, the plaintiff may object to the bail for insufficiency, at any time within ten days after the undertaking of bail has been given. Here again is a strange lapse in the statute. From what time do these ten days begin to run? The statute says from the giving of the undertaking. How. is the plaintiff to know when it is given? The sheriff is requ' ••d to ZXn.] AKEEST AND BAIL. 383 Actions in General. give him no notice of that fact. He returns the undertaking with the order, and that may be done at any time within fifteen days after the order is issued. If, then, the arrest is made within five days of the issue of the order, the sheriflf need not return his order and bail undertaking until ten days have expired after the giving of the undertaking. Such is the literal literal wording of the code, and the courts must so execute it, unless they assume power of amending, instead of expounding the law. Unless the plaintiff gives within that time a notice to the sherifif that he does not accept the bail, he shall be taken to have accepted it, and the sheriff shall be exonerated from all liability on account of the insufficiency of the bail. Sec. 168. When such a ncttice has been given by the plaintiff, the sheriff or defendant, within ten days thereafter, may give the plaintiff, or his attor- ney, a notice, in writing, of the justification of the same, or other bail, before a judge or the clerk of the court in which the action is brought, a probate judge,' or a justice of the peace, at a time and place therein speci- fied; the time to be not less than five, nor more than ten days after the service of the notice. Sec. 169. The bail', in order to justify, must attend, and be examined on oath or affirmation, touching the sufficiency. Sec. 160. The officer before whom the examination takes place will indorse his allowance of the undertaking on the same, and cause it to be filed with the clerk. If the bail is adjudged insufficient, the sheriff is liable as bail for the defendant. Sec. 162. When a defendant has been arrested, he may, at any time before the justification of the bail, apply, on motion, to the court, or, if in vacation, to any judge of a court of record in this State, to vacate the order of arrest, or to reduce the amount of bail. Reasonable notice of such motion must be given to the plaintiff. Sec. 171. The notice must state whether the same will be heard on affidavit or not. Sec. 505. If the motion is to be heard on affidavit, the plaintiff may oppose the same by affidavits or other evidence in addition to that on which the order of arrest was made. On the hearing of this motion, the first question will be on the suf-^ ficiency of the affidavit. Do the facts therein stated justify the belief of the party that the defendant comes within one of the five grounds for which a person may be arrested ? The court or judge must decide this question on the affidavit alone; no additional facts can be then offered in evidence. The facts should clearly tend to establish one of the causes of ' arrest; it is not enough, that they create a suspicion that such may be the 386 ABBEST AND BAIL. [CUAP. Actions in General. case. The facts stated ought to be so convincing that, on an issue, the court would, on the proof of them, find the fact true, as stated by the plaintiff. Where the defendant disputes the facts stated in the a£Sdavit of the plaintiff, he can do it by the affidavits of himself and others, and the plaintiff can be heard in reply, and the court or judge must then decide upon all the evidence, whether the facts set forth in the affidavit are true. On this inquiry, the sufficiency of the facts to justify the .plaintiff's belief are admitted, and only their truth, is contested. On this inquiry, the parties most be confined to the facts stated in the affidavit, and to evidence tending to prove or disprove their truth. The issue is on the affidavit of the plaintiff; first, on its sufficiency; secondly, on its truth. To authorize the plaintiff to make a new case for an, arrest would violate all the principles of a judicial proceeding. There are no decisions settling the practice; but it would seem that there is no room to doubt as to what that practice should be. Sec. 166. The defendant may exonerate his bail by a surrender of him- self to the sheriff oif the county in which he was arrested, delivering to the sheriff, at the same time, a certified copy of the undertaking of bail; so the bail may surrender the defendant;, but such surrender must be made before the return day of a summons on the undertaking against the bail. The sheriff is required to give the bail a written acknowledgment of such surrender, on the production of which to the clerk of the court, he shall enter an exoneration of the bail on the undertaking. Sec. 166. The defendant shall be detained in custody by virtue of the copy of the undertaking as upon an order of arrest. Sec. 167. The bail may arrest the defendant by virtue of a certified copy of the undertaking, or any other person may do it who shall be, by the bail, authorized to do it by a written authority, indorsed on the certified ".opy of the undertaking. The bail may take the principal, though he is out of the jurisdiction of the court in which they became bail, and even in a different State. NicolU V. Ingersoll, 7 J. ^R. 145; Commonwealth w. Briokett, 8 Pick. Rep. 138; Respublica v. Jailer, 2 Yeates Rep. 263; Pease v. Burt, 3 Day Rep. 485; Parker v. Bidewell, 3 Conn. Rep. 84, 421; Johnson v. Tompkins, 1 Bald. XXII.] AEKEST AND BAIL. 387 Actions in General. Rep. 678. They may break open an outer door after demand of admit- tance. Ibid; 7 John. Rep. 145. They may demand the assistance of the sheriff. 8 Pick. Rep. 138; the State v. Mahon, 3 Harring Rep. 568. The bail are also exonerated by the death of the principal or defendant, ' or his imprisonment in a State prison, or by his legal discharge from the obligation 'to render himself amenable to the process of the court. Where the party is rendered not liable to arrest aft«r the bail is given, the bail are discharged. White v. Guest, 6 Blackf. Rep. 228. So a judgment, upon which no execution can lawfully issue against the body of the defendant, operates ipso facto to discharge the bail. Gilman v. Perkins, 1 1 N. Hamp. Rep. 343; 1 1 Ohio Rep. 90. Where bail is taken without authority, the undertaking is roid. Thomas v. Man, 4 Dana Rep. 452. A discharge of the principal, as an insolvent debtor, discharges the bail. Trumbull v. Healey, 21 Wend. Rep. 670. The court may extend the time for the surrender of the principal. Sec. 168. Sickness of the bail is good cause for extending the time to surren- der. Boardman v. Fowler, 1 John. Gas. 413; Thomas v. Bulkley, 5 Cowen Rep. 25. If the principal is imprisoned in another State, time will be en- larged for his surrender. People v.. York, Common Pleas, 2 Wendell Rep. 263. So the bail are discharged if the plaintiff amend his petition so as to insert a diflterent cause of action. Willis v. Crocker, 1 Pick. Rep. 204; 5 do. 306; .8 do. 413. So if the action, with other demands, be submitted to arbitration, and judgment be. rendered in the action on the award. Hill V. Hunnewell, 1 Pick. Rep. 192; Bean v. Parker, 17 Mass. Rep. 603. When the principal has once b6en arrested on. a ca. «a., the bail are dis- charged, though he escape. Badgley's case, 7 Gowen Rep. 472. Bail are Baid to be exonerated by a judgment* on the merits in favor of the principal, though that judgment be afterward reversed for error, or annulled by a new trial; Butler v. Bissell, 1 Root Rep. 102, 214, 469; Lockwood v. Jones, 7 Conn. Rep. 439. Sed quere? WTien Bail are Fixed. — The return of an execution against the body of the defendant "not found" is necessary to fix the liability of the bail, which liability is for the amount of judgment and costs. The plaintiff can not sue the bail until after this return of not found, and then tlie bail may still be discharged under the provisions of section 168. 388 AEKEST AND BAIL. [CHAP. Forms. FORMS. 1. FORM OF AFFIDAVIT. A B, plaintiflF, 1 Cmrdy, ss., V. y C D, defendant. ) Court of Common Pleas. And tLe said A B, plaintiff, being first duly sworn, deposeth and saith that he has commenced a civil action in the said court, (or is about to commence a civil action in said court, sec. 146, subd. 5,) against the said C D, defendant, to recover the amount of a promissory note, dated the day of , A. D. 18 , and signed by the said defendant, promising to pay to the said plaintiff the sum of $ , in after the date thereof, (or due on an account of certain goods sold and delivered by the said plaintiff to the said defendant, at his request; or on a certain bill of exchange, drawn by, etc.; describe the claim substantially, as in the petition, and where the case is such an one as thai the affidavit covers the amount due, the amount must be stated;) that said claim is just, and' that there is due at this time, and payable on said note, (or account, or bill of exchange, etc.,) to the said plaintiff the sum of $ , (or if the claim is one soundinff in damages, or for the value of property, the words should be varied so as to state the amount the plaintiff' thinks he is entitled to recover;) and the said plaintiff further saith that said property was justly of the value of $ , (or that he has justly sustained damages by reason of the premises to the sum of $ ;) and the said plaintiff further saith that the said defendant has removed (or has begun to remove) some of his property out of the jurisdiction of this court, with the intent to defraud his creditors; and in support of said averment, the said plaintiff states the following facts: (here state all the facts which have led the mind of the plaintiff to the conclu- sion he has asserted; set them out fully and all of them, as the affidavit can not be amended;) and the said plaintiff therefore asks that an order of arrest may issue in the said action against the said C D. and he be held to bail in double the amount of the said sum of $ , and further he saith not. AB. Signed in my presence, and sworn to before me, this day of , A. D. 18 . G D, Clerk. The above form will be sufficient in all cases, inserting first the cause of action stated in the petition as above, then the amount actually due, if it £Xn.J ABBEBT AND BAIL. 389 Forms. can be stated, or the amount claimed, if it is not susceptible of mathematical computation; then the particular cause relied on, and the facts on which the plaintiff relies to prove the cause of arrest alleged. a. FORM OF AN UNDEKTA.riNO. "Whereas *the said A B, plaintiff, has this day commenced a civil action in said Court of Common Pleas, for the recovery of certain sums in the peti- tion in said action set forth, and whereas the said A B has also filed his affidavit, setting forth that the said D, (here slate the cause as in the statute, vntAout the facts,) and asking that an order of arrest may issue against the said C D. TTow we, , and , do undertake to the said C D, in $ , for all damages which the said C D may sustain by reason of the arrest so as aforesaid asked for, in ease said order of arrest is wrongfully obtained. This undertaking must be signed by one or more sufficient sureties. It need not be under seal, nor need the plaintiff sign it. The clerk must judge of the sufficiency of the sureties, and may refuse to accept the same and issue the order of arrest, if he does not deem them sufficient. The sum to be inserted is a sum double the amount sworn to, the same amount for which bail is required to be taken. 3. OEDEB OF ARREST. The State of Ohio, County, ss. Whereas A B, plaintiff, has commenced a civil action in the Court of Common Pleas, within and for the said county of , against the said C D, defendant, and has filed his affidavit, stating that there is justly due him, from the Said C D, the sum of $" , (or that he claims dam- ages to the amount of $ , ) which sum he claims to recover in said action. Now, therefore, you are hereby commanded and required to arrest the body of the said C D, and to hold him to bail in the s^m of $ , and to make due return of this order, and your proceeding thereon, on the day of , A. D. .18 ,with any undertaking of bail which the said C D may hare given. Witness my hand and the seal of said court at , this day of , A. D. 18 . G D, Clerk. The day of return is the same as the summons, when both are issued together; otherwise the return day must be on the fifteentli day after the 390 AEKEST AND BAIL. [OHAP. Forms. day of its date. If dated the first day of .-the month, the return day will be on the sixteenth. The day of the date is excluded. "When time is to be computed from or after a certain day, that day is to be excluded in the computation. Bigelow v. Wilson', 1 Pick. Rep. 485; Tyle V. Mordding, 7 J. J. Marsh. 202; Jacobs v. Graham, 1 Blackf. Rep. 392; Arnold v. United States, 9 Cranch Rep. 104; Rand v.. Rand,. 4 N. Hamp. Rep. 267; Lorentf. S. Cor. Ins. Co., 1 Nottand McCord, 606; 3 Penn. Rep. 200. Where, by a statute, time is required to be computed from an act done, the first day is excluded. Homan v. Liswell, 6 Cowen Rep. 659; 2 do. 605; 11 Mass. Rep. 204; Follett v. Hall et al., 16 Ohio Rep. 111. When Sunday is not to be included. 3 Penn. 200 ; 4 Pick. 354 ; 2 Conn. Rep. 69. 4. TTNDEBTAKING OF BAIL. Whereas A B, plaintiff, has caused an order of arrest to be issued against the body of C D, defendant, to hold him to bail in a certain action now pending in the Court of Common Pleas, within and for the county of , and wherein the said A B, plaintiff, claims to recover against the said'C D, defendant, the sum of # , and whereas the said C D is now in the custody of E F, sheriff of said county, under and by virtue of said order of arrest, and wishes, to be released therefrom. Now we , and , do hereby undertake to the said A B, plaintiff, in the sum of $ , (double the first sum,') that the said C D, if judgment shall be rendered in said action against the said C D, defendant, will render himself amenable to the process of the court thereon, or, in default thereof, will pay the condemnation money and costs. Dated, etc. Taken and executed in my presence, this day of ^ A. D. 18 . L M, Sheriff. S. SHERIFF'S BETUBK As by this order*commanded, I have arrested the body of the said C D, and have delivered to him a copy thereof, together with the duly certified copy of the aflSdavit, furnished me by the said clerk; and the said C D, after such arrest, and while in custody, executed, in my presence, the undertaking of bail herewith returned, in the penal sum of $ , with , and , as his sureties. The sheriff is to judge in the first instance of the sufiSciency of the bail. He need not discharge the defendant unless the bail is in his judgment suf* ficient. Bail can not be taken until the defendant is in custody. XXII.] ABBEST AND BAIL. 391 Forms. 6. NOTICE TO SHBBIFF OF N K-A E P T A N B OF'BAIL. You are hereby notified that the said plaintiff refuses to accept the bail •taken by you on the order of arrest issued in this case, as he does not con- sider the said sufficient bail in this action for the sai i C D. Dated, etc. A. B. 7. NOTICE OP JUSTIFICATION. You are hereby notified that I shall proceed, on the ■ day of , A. D. 18 , at one o'clock of said day, at the clerk's office of said court, in , (or at the office of , or where else the place may he,) before H L, clerk of said court, {or M N, judge of said court, or P, proljate judge of said county, or R S, justice of the peace for said county, ) to justify the bail heretofore given to the sheriflf dn the order of arrest issued in this case, or other bail which may then and there be ofiered; at which time and place you can be present if you wish. Dated, etc. CD, By , his Attorney. This notice can be given by either the sheriff or the defendant. If the defendant declines to justify, th^ sheriff may do it for him, as a matter for his own orotection. The party giving it will sign it. 8. JUDGMENT AS TO SUFFICIENCY OF BAIL TO BE INDORSED ON THE UNDERTAKING. This day appeared before me, according to a notice before that time duly served on the within named A B, the said C D, and justified the bail whose names are attached to the within undertaking, and I find the said bail to be sufficient, and do allow the same. If both parties appear, that fact may be stated by adding the plaintiff's name after that of the defendant, or sheriff, as the C3,se may be; the said C D, and A B, and the said C D justified, etc. Of course, where the sheriff justifies, his name will be inserted in lieu of that of the defendant. If the bail is found to be insufficient that fact will be stated by prefixing in to "sufficient," and not between "do" and "allow." It would seem that additional bail may be given if the first is found insufficient. In that case the indorsement would be the same, except adding to it, with the names of • , now added thereto. 392 AEBEST AND BAIL. [OHAP. XXII Forms. 9. notiob: to be disohaboed fboh abrest. You are hereby notified that I shall apply, on the day of , A. D. 18 , at one o'clock thereof, to the Hon. W V P, one of the judges of the said court, at his residence, in , in the county of , for an order to vacate the arrest of myself, on the order of arrest issued by you against me in this action;* at which time and place you can be pres- ent and object to the granting of the said order, if you choose. If the motion is made on the insufficiency of the affidavit, this form is sufficient; but if the facts in the affidavit are to be disputed by other affidavits, the following should be inserted between the words " action " and " at which," where the * is, to-wit: And you are further notified that I shall produce affidavits to disprove the facts stated in the affidavit filed by you to obtain the order of arrest. ' 10. ORDEB OF DISOHABOB. On the motion of the said C D, defendant, and it appeanng to the court that reasonable notice of this motion has been given to the said A B, plaintiff, and that the said order of arrest was improperly issued, it is, therefore, ordered that the said order for the arrest of the said C D, be, and the same is hereby vacated, and the said C D discharged from the arrest made under and by virtue of the said order, and from liability on account thereof. j, 11. WHEEB THE OBDBB IS MADE OCT OF OOUET. And now came as well the said C D, defendant, as -the said A B, plaintiff, and the motion of the said C D, to be discharged from arrest, on the order of arrest isSued in this court, came on to be heard upon the original affidavit and the affidavits now prSduced by said parties; on con- sideration whereof, I do find that the said order of arrest was wrongffully obtained by the said A B; it is therefore ordered that the said order of aiTest heretofore issued in this case be, and the same is, hereby vacated, and the said C D wholly discharged therefrom, and from the arrest made by the sheriff of said county thereon, and from all liability on account thereof. Done at , in , this day of , A. D. 18 . W V P, Judge. CHAPTER XXIII. EEPLEVIN. I. When it can be bkouoht, and by and against whom. Sbc. 174. The plaintiff, in an action to recover the possession of spe- cific personal property, may, at the commencement of the suit, or at any time before answer, claim the immediate delivery of such property. This section applies to such property and cases as the old writ of re- plevin did. There is no doubt, says Sandford, J., in Koberts v. Randall, 5 Pr. Rep. 327, that this chapter is intended as a substitute for the provis- ioEdl relief heretofore obtained in the action of replevin. S. C. 3 Sandf. S. C. Rep. 707. The code has given this remedy in place of the former action of replevin, and its design is to subserve the same purpose. Chap- pel V. Skinner, 6 Pr. Rep. 339. So the former practice may still prevail to supply omissions in the code. Wilson v. Wheeler, 6 Pr. Rep. 49; Brockway v. Burnap, 8 Pr. Rep. 188. This remedy can be maintained only against the party who has in fact or law the possession or control of the property claimed. Roberts v, Randall, 3 Sandf. S. C. Rep. 716, S. C; 6 Pr. Rep. 327; Brockway v. Burnap, 8 Pr. Rep. 188. To sustain an action like this, the plaintiff must not only show that he is lawfully entitled to the possession of the prop- erty in question, but that the defendant unlawfully withholds it. The latter fact can only be established, when it appears that, at the commencement of the action, the defendant has such control over the property that he might, if he would, have delivered the possession thereof to the plaintiff. A wrongful withholding implies a power to deliver. If the defendaat could not have delivered the property to the plaintiff, he ought not to be punished for not doing it. Per Harris, J., Elwood v. Smith, 9 Pr. Rep. 528. II. The Petition. The petition must be framed solely for the recovery of the specific property. If the petition charges a conversion, and seeks damages for it, (393) 394 EEPLETIN. [chap Petition. Affidavit. as well as for a delivery, an order for the delivery of the property can -jot be rightly obtained. A petition which avers the taking, detention, and conversion of personal- property, and claims not only damages for the con- version, but also re-delivery of the property, is bad on demurrer. Max- well V. Farnam, 7 Pr. Kep. 236. "If the property," says the Judge, " had in fact been converted by the defendant so that it was no longer in his pos- session, or under his control,' that fact would, I suppose, be a complete answer to an action for the recovery of the possession. If a party intends to recover the possession of his property, he can only succeed by bringing his action against the party who has it in his power to give him such pos- session. The party, who has been guilty of the conversion, may be liable for the damages,- but is not liable in an action to recoyer possession. But I know of no principle of pleading, which will allow a plaintiff so to frame his complaint, as that, if he fails to recover the possession of the property, he can recover damages for the conversion. He must elect, when he brings his action, whether he will claim a judgment for the delivery of the iden- tical property, or for the damages he has sustained by reason of the conversion." These cases show that the petition ^must be substantially what a declara- tion in the old' action of replevin was. Such, too, is the plain language of the code. It speaks of an action to recover the possession of specific personal property. There is no such action, but that of replevin, and the code assumes that such an action does still exist; and hence the practice in the old action of replevin must be resorted to, in order to ascertain what is meant by this language of the code. III. Thk Affidavit. Seo. 176. The clerk makes the order for the delivery of the prop- erty, on the filing of the affidavit of the plaintiff, his agent, or attorney, showing — 1 . A description of the property. 2. That the plaintiff is the owner of the property, or has a special own- ■ ership, or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the property. 3. That the property is wrongfully detained by the defendant. 4. That it was not taken in execution on any order or judgment against the said plaintiff, or for the payment of any tax, fine, or amercement assessed against him, or by virtue of any order of delivery issued under this chap- ter, or any other mesne or final process issued against said plaintiff. XXinJ EEPLETIN. 395 AflSdavit. Order.and Execution. The averraent that the plainiiff is the owner of the property is suffi- cient. Burns i». Rol(bitis, 1 Code Rep. 62; Vandenburg «;. Valkenburg, 8 Barb. 8. C. Rep. 217. I suppose a statement of facts is only necessary, when the plaintiff claims a special property in the goods, entitling him to the immediate possession of them as against the defendant, who is the gen- eral owner thereof. In such a case, it may be necessary for the plaintiff to state what his right is, so as to obviate a plea of property in the defendant; as «nder the code he could not reply to it, and might not, under this lan- guage, be allowed to give it in evidence in reply to such a plea. An averment that the plaintiff is the owner impli^ that he is the general owner, and possession is evidence of §uch ownership against all the world, but him who can prove himself the real owner. Hence the, gen- eral averment of ownership is sufficient, except in the single case already referred to. IV. The Oedeb and its Execution. Sec. 176. The order is addressed to the sheriff, and must be made re- turnable, if issued when the summons is, at the same time the summons is returnable; when issued afterward, the return day shall be the twentieth clay after the issue thereof. It may be directed to any other county. Sec. 187. Sbc. 178. The sheiiff shall execute the order by taking the things mentioned in it, and delivering a copy of the order to the person charged with the unlawful detainer thereof, or by leaving the copy at hjs usual place of residence. The sheriff may break open any building or inclosure to reach the property, after having been refused an entry, on notice of what his business was. Sec. 188. Sec. 179. The sheriff must not deliver the property to the plaintiff, until there has been executed, by one or more sufficient sureties of the plaintiff, an undertaking to the defendant in double the value of the prop- erty, that the plaintiff shall prosecute his action to effect, etc. The under- taking must be returned with the order. The sheriff must decide on the sufficiency of the sureties, and indorse on the undertaking his approval. Burns v. Robbins, 1 Code Rep. 62. Sec. 1 80. The value of thi. property must be ascertained by the oath of two or more responsible persons, selected and sworn by the sheriff, truly to assess the value of the property. 896 BEPLEVIN. CHAP. Notice of Exception. Bail for Property. Forms. Sec. 181. If the plaintiflF fails, for twenty-four hours after the taking of the property, to give the undertaking, the sheriflF must re-deliver the property to the defendant. v. Notice of Exception to Sdbeties. Sec. 182. The defendant may, within twenty-four hours from the time of delivering the undertaking to the officer, notify the sheriflf that he ex- cepts to the sufficiency of the sureties. If he fails to give the notice, he is deemed to have waived all objections to the sufficiency of the under- taking, and the sheriflF is no longer responsible for the sufficiency of the sureties. When the defendant excepts, the sureties must justify upon notice, as bail on arrest. VI. Bail fob Pbofeett. When Liable to be Fboceeded Against. Sec. 189. No suit can be instituted on the plaintiff's undertaking, until execution has been issued and returned that sufficient property of the plaintiff could not be found to make the amount of the judgment. FOKMS. 1. GENERAL FOBM. County, ss. A B, plaintiff, V. C D, defendant. ■ Petition in Eeplevin. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff is the owner of the following goods and chattels, (Acre describe them,) and is entitled to the immediate possession thereof; and that the said defendant wrongfully and unjustly detains in his possession the said goods and chattels, and from the said plaintiff; and the said plaintiff further avers that the said defendant did so wrongfully detain the possession of said goods and chattels for the space of next before the commencement of this action, and wholly deprived the said plaintiff of all use and benefit thereof during all of said time, to the damage of the said plaintiff $ Wherefore the said plaintiff prays an order against the said defendant, that he may be ordered to deliver to the said plaintiff the said goods and chattels, and also a judgment against the said defendant for the said sum of f , his damages sustained by reason of such unlawful detention. xxin.J EEPLEvm. 397 Fonns. a. AFFIDAVIT. The said A B being first duly sworn deposeth and saith that he has commenced, in the Court of Common Pleas, of said county of , a civil action against the said C D to recover possession of the following specific personal property, to- wit, (Aere describe the property, as it is described in the petition, ) and that the said plaintiff is the owner of the said goods and chattels, and entitled tq the immediate possession of the same, and that said goods and chattels are wrongfully detained from him by the said defendant; and that the said goods and chattels were not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine, or amercement assessed against him, or by virtue of any order of delivery issued under the chapter of the Code of Civil Procedure providing for the replevin of property, or on any other mesne or final process issued against the said plaintiff; and further he saith not. Signed in my presence and sworn to before me this day of A. D. 18 . Where the plaintiff has a special property, he may state it thiis: That the' said goods and chattels were delivered to the said plaintiff by the said defendant, as a security for the payment of $ , and that the said defendant, unknown to the said plaintiff, took away said property from the possession of the plaintiff against his will, and now refuses to return the same, while the said sum of money is still due and unpaid, and the said goods and chattels are his only security therefor; Or, That he hired the said goods and chattels of the said defendant for the term of months, and paid him therefor the sum of $ , and that said time has not yet expired, and the said defendant unlawfully got possession of said goods and chattels, and now wrongfully detains them from the possession of said plaintiff. 3. OEDEE OF DBLIVBEY. The State of Ohio, County, ss. To the Sheriff of County, Greeting: Wherfeas A B has commenced in the Court of Common Pleas for the said county of , against C D a civil action for the recovery of the following specific personal property, to-wit, (here deserve the property as in the petition and affidavit,) and has filed his affidavit in the clerk's office of said court, in order to obtain an order for the immediate delivery of the said goods and chattels; This, therefore, is to command you, as such sheriff, to take the said goods and chattels above described, and deliver the same to the said A B, 398 EEPLEVIN. [CHAl. ^orms. plaintiff in said action ; and of this order, and your proceeding thereon make due return on the day of , A. D. 18 . Witness my hand, and the seal of said court at , this day of , A. D. 18 . J D, Clerk. The return day is the same as the summons, when issued at the' same time ; otherwise twenty days after date of issue. 4. PLAINTIFF'S UNDBETAKINO. Whereas A B has caused an order for delivery of the following goods and chattels, to-wit, (here describe them,) to be issued out of the Court of Common Pleas, within and for the county of , in a cause now pending in the said Court of Common Pleas, wherein the said A B is plaintiff, and one C D is defendant; and whereas the said order was delivered to L M, sheriff of said county, and the said sheriff has taken said goods and chattels, and the same have been valued by two responsible persons, under oath, at the sum of $ ; Now therefore we , and , undertake to the sai .' C D, defendant in said action, in the penal sum of $ , that the said A B shall duly prosecute his action aforesaid, and pay all costs and dam- ages which may be awarded against him. Dated, etc. Signed in my presence, and approved by me, this day of , A. D. 18 . L M, Sheriff. 5. BEFOET OF AFPBAISBBS. We, the undersigned, having been selected by , sheriff of county, to value the goods and chattels hereinafter named, taken on an order of delivery in the case of A B, plaintiff, against C D, defendant, dp, after being first duly sworn, value said goods and chattels as follows, (here state the articles and the value of each, and then add them up.) We value the whole of said goods and chattels at the said sum total of $ Given under our hands, this day of , A. D. 18 . 6. SHEEIFP'S EETUEN. . According to the command of the within order, I have taken the within named goods and chattels, and have caused the same to be XXnljJ EBPLEVIN. 399 Forms. valued by the oaths of , and , two responsible men of said county, whose valuation in writing is herewith returned; and I have delivered the said goods and chattels to the said plaintiff, and have taken the undertaking of , and , sureties of the said plaintiff, in the sum of $ , which undertaking is also herewith returned-. * Given under my hand this day of , A. D. 18 . L M, Sheriff. If plaintiff fails to give the undertaking, the sheriff will proceed in the above return to the close of the valuation, and then add: " And the said A, B, having failed for twenty-four hours to give an undertaking, as required by law, I re-delivered the said goods and chattels to the said CD." Where the sheriff can not find the goods and chattels, he will, of course, return that he has made diligent search for the goods and chattels within described, and can not find the same within his county. Where the goods are returned, of not found, no further proceedings can be had in the action. 7, PLEAS. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that he denies said several matters and things contained in the petition of the said A B, plaintiff; and of this he puts himself upon the country. Special Denials 8. does not detaik. And ithe said C D, defendant, now comes, and for answer to the peti- tion of said A B, plaintiff, saith that he does not wrongfully detain the said goods and chattels from the said A B; and of this he puts himself upon the country. Kelley v. Blakely, 2 W. Law Monthly, 151 ; 10 0. Rep. 344 ; 12 do. 112. , 0. DBNIAL OP PROPERTY IN PLAINTIFF. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said goods and chattels in said petition described are not the property of the said A B, plaintiff, as he has in his said petition set forth; and of this he puts himself upon the country. 26 400 EEPLEvni. [chap. Forms, 10. FLEA OF PROPERTY IN DEFENDANT, OR A STBANOER. And the said C D, defendant, now comes, and for answer to the peti- tion of the said A B, plaintiff, saith that the said plaintiff ought not to liave his said action against him; because he saith ^hat the property in the said goods and chattels is in the said defendant, (one £ F,) and not in the said plaintiff, and ihat the said defendant, (or E F,) as such owner, was, at the commencement of this action, entitled to the immediate possession thereof; and this the said defendant is ready to make appear. This form can be easily used as a plea of property in a stranger. The case of Williams v. West, 22 Ohio Eep. 82, shows that a simple plea of property without averring a right to the possession thereof is good. 11. VERDICT ON DEFAULT OF PLAINTIFF. And, now, at this time, came the said C D, by E F, his attorney, and the said plaintiff failing to appear and prosecute his said action, it is con- sidered that the said defendant ought to recover his damages by reason of the premises; thereupon, on motion of the said C D, it is ordered that a jury be impanneled to inquire into the right of property and right of pos- session of the said defendant to the property aforesaid; and thereupon came a jury, to-wit, , who being duly impanneled and sworn the truth to speak upon the inquiry aforesaid, do upon their oaths say (or, where court' assess, the court with the assent of the said defendant do find,) that the right of property in and to the said goods and chattels was, at the commencement of this action, in the said defendant, {^or that the right to the possession of the said goods and chattels was in the said defendant, ) and they dp assess the damages of the said defendant, by reason of the premises, to $ IS. VERDICT OF JURY. The jury impanneled in this case do find that the right to tne posses- sion of the said good^ and chattels demanded in this action, {or the right of property in and to the said goods and chattels demanded in this action, ) was, at the commencement thereof, in the said defendant, and the said jury do assess the damages of the said defendant, by reason of the premises, to $ . 13. JtlDGMBNT ON DEMURRER t. PLAINTIFF. And now comes as well the said A B, by E F, his attorney, as the said C D, ,by: Gr H, his attorney, and thereupon this action came on for trial on Xxm.] EEPi^vni. 401 Forms. the demurrer of the said C D, to the complaint of the said A B, and was argued by cou-nsel; on consideration whereof, the court find that the peti- tion of the said plaintiff is not sufiScient in law to maintain his action aforesaid; it is therefore considered that said demurrer be sustained; and thereupon, on motion of the said C D, it was ordered that a jury do assess the damages of the said defendant, by reason of the premises, to $ Where the demurrer is to the answer, the entry will so state it, to-wit: " On the demurrer of said plaintiff to the answer of said defendant;" and the court will find " that the several matters and things set forth in the answer of the said C D are sufficient in law to bar the action of the said plaintiff against the said defendant; it is therefore considered that the said demurrer be overruled, and thereupon, etc., (as in last form.) Where the court assess the damages, the entry will be, " The court, with the assent of parties, or of the said , the party appearing, do assess, etc." 14. VBKDICT ON NGN DBTINBT FOR PLAINTIFF. The jury impanneled in this cause do find that the said defendant did unlawfully detain the said goods and chattels in the said petition described; and they assess the damages of the said plaintiff, by reason of the unlawful detention thereof, to $ IS. VERDICT FOR DEFENDANT. A verdict for the defendant will be the same as the above except insert- ing not between " did " and " unlawfully," so as to read, " did not unlaw- fully detain," etc., and then, instead of assessing damages for plaintiff, proceed — and the said jury do further find that the right of property (or the right of possession,) in and to the goods and chattels in said petition described, was, at the commencement of this action, in the said defendant;' and the jury do assess the damages of the said defendant, by reason of the premises, to $ 16. VERDICT AND ENTRY ON DEFAULT. And now comes the said A B, by his attorney, and the said C D, having failed to demur, or answer to the petiiion of the said A B, it is considered that the said A B ought to recover against the said C D his dam- ages by reason of the premises; and thereupon, on motion of the said A B, came a jury, to-wit, (or thereupon, with the assent of the said A B, the court do assess, etc.,) who being impanneled and sworn trnly to assess 402 REPLEVIN. [chap. Forms. the damages of the said plaintiff by reason of the premises, did, after hear- ing the evidence, return, upon their oath aforesaid, the following verdict in ■writing, to-wit: The jury impanneled in this case do upon their oath assess the damages of the said plaintiff to $ ir. JTTDGMBNT FOB PLAINTIFF. It is therefore considered that the said plaintiff recover against the said defendant the said sum of $ , his damages in form aforesaid assessed, and also his costs herein expended, taxed to $ 18. JUDGMENT FOR DEFENDANT. {After entering the verdict, proceid thus:) It is, therefore, considered that the said defendant recover against the said plaintiff the said sum of $ , his damages aforesaid, in form aforesaid assessed, and also his costs herein expended, taxed to $ If the same construction is to-be given to the code as was given to our old law of replevin, the plea that he does not wrongfully detain, raises all the questions that can arise in an action of this kind. Property in the defend- ant could be given in evidence under that issue. It would seem that the same construction ought to be given to the code. If not, it is easy to frame a plea of property in the defendant. Still ifwould seem to be unnecessary, since .section 184 provides for a special finding by the jury as to the rights of property. According to the decisions in Ohio, non detinet in replevin is the gen- eral issue, under which the defendant may prove any fact which shows that he does not unlawfully detain the property; as a levy on execution. Oaks V. Wyatt, 10 Ohio Kep. 344; Ferrill v. Humphrey, 12 Ohio Rep. 112. Unless these decisions shall be followed, there must be great strictness in the pleading in this action. There is, however, one remark that may be made, and that is that the defendant can not meet the issue of property in the plaintiff except by proof of property in himself. If the defendant- has no right to the property himself, he has no right to claim a return of the property, or at least his damages should be assessed under section 1 84, at a mere nominal rate. If against the defendant, the plaintiff has a right to the possession of the property, a verdict on non detinet should be found for the plaintiff, and mere prior possession in the plaintiff will give hiro a right to the continuance of that possession, except against some one who shows a title. If, then, the defendant had the prior possession, and a ver- dict is founcf for him, still the jury must find that he had no title to the xxm.] EEPUiviN. 403 Forms. property and assess mere nominal damages. This section (184) gets rid of the difficulty stated in Steel v. Lowry et al., 4 Ohio Rep. 72, and Lowry V. Lowry, 4 do. 77. In Martin v. Ray, 1 Blackf. Rep. 291, the court says that property m a stranger or in the defendant is a good plea in bar. When the property can be shown to be out of the plaintiff, it is well settled by authority that he can not recover in the action of replevin. The plea in such case goes to the point of the action, and entitles the defendant to a return without an avowry. Butcher?;. Porter, Salk. Rep. 94; 1 Chitty PI. 434-5, 627; Harrison *». Mcintosh, 1 J. Rep. .380; 6 Bac. Abr. 444; Ingraham v. Mead, 1 Hill Rep. 353. So the defendant may plead that the goods are those of A, and that he took them on an execution against A. Fashay v. Riche, 2 Hill Rep. 247. In this case the defendant connects himself with the title, and shows he has under the levy all the rights of A for the time being. Rogers v. Arnold, 12 Wend Rep. 30. So a plea that the property was de- livered by the- plaintiff to the defendant as a pledge, to be retained until the plaintifif should pay, which he had not done, is good. Amos v. Sin- nott, 4 Scammon Rep. 440. This plea shows that plaintiff has not the right to the immediate possession of the property. Under our statute, however, the defendant would be entitled to recover not the value of the property, but the amount of his debt, unless that exceeded the value of the property. Our present code is substantially what the former statute was. The affidavit avers property in the plaintiff, and that it is wrongfully detained by the defendant. Hence the wrongful detention is the real issue, and on this issue all evidence tending to show which party had the right to the immediate possession is competent. At common law, the gist of the action is a tortious taking. That fact, of course, is put in issue by non cepit. But our statute enlarges the remedy, and extends it to an unlawful deten- tion of the personal property of another. This action is founded upon the statute, and the declaration properly' conforms to the modified character of the remedy. The unlawful detention is the gist of the action. Nbn cepit tenders an immaterial issue. N^on detinet is the proper general issue in this form of replevin. Such is the language of Dewey, J., in Walpole v. Smith, 4 Blackf. Rep. 304. The same construction was given to our for- mer statute by our courts, as may be seen by the cases before referred to. Vide also 2 Blackf. Rep. 172; 3 do. 348; 3 Pick. Rep. 255; 3 Greenlf. Rep. 1 83; 5 Mass. Rep. 303. It would seem, therefore, that the code ought to be construed the same as our former statute. Such a construction will avoid much uncertainty and confusion. 404 EEPLEVIN. [OHAP. Fonus, Fvr What it mil Lie. It lies only for personal property. It will not lie for fixtures separated from a mill. Powell v. Smith, 2 Watts E. 126." It may be maintained for trees cut down, though made into posts and rails. Snyder v. Vaux, 2 Raul Kep. 423. Replevin lies for the recovery of parish records. Saw- yer V. Baldwin, 11 Pick. Rep. 492; Sudbury t;. Stearns, 21 do. 148. Par- ishes are corporations in Massachusetts, and their records are property legally in the custody of the proper officer. Timber trees cut for sale, by a tenant for life of land, become the personal property of the remainder- man, who may sustain replevin for them. Richardson v. York, 14 Llaine Rep. 216. The mere taking by one man of the mill logs of another, and mixing them with his own, will not constitute confusion of goods; but if he fraudulently takes the logs and manufactures them into boards, and intermixes the board's with a pile of his own, so that they can not be dis- tinguished, with the fraudulent intent of thereby depriving the plaintiff of his property, the owner of the logs thus taken may maintain replevin for the whole pile of boards. Wingate v. Smith, 20 Maine Rep. 196; 7 Shepley, 32. Goods obtained by fraudulent pretenses may be replevied by the seller without any previous demand. 19 Maine Rep. 281; Johnson v. Mil- ler, 16 Ohio Rep. 431. Where A furnishes B with money to buy wheat and convert it into flour, and to sell the same and to retain all the flour sold, for but the cost of the wheat and 2^ per cent, thereon, it was held the title was in A, and he could maintain replevin for the wheat. Ibid. So the action can be maintained only by a party entitled to the imme- diate possession of the property, whether he be the general or special owner of the same. McCurdy v. Brown, 1 Duer. Rep. 101; Walpole v. Smith, 4 Blackf. R. 304; Ingraham «.. Martin, 16 Maine Rep. 373; Mclsaacs V. Hobbs, 8 Dana Rep. 268; 9 Pick. Rep. 441; 15 Pick. Rep. 63; 16 Mass. Rep. 147; 9 Gill, and J. 220. So, if the general property is in one person, and the special property and right of possession in another, the latter can alone maintain the action; and he may maintain an action against the general owner, if the latter detains the property from the pos- session of the special owner. Williams v. West, 22 Ohio Rep. 82. But a special owner can not maintain the action unless he has had the actual possession of the property. Holiday v. Lewis, 15 Mo. Rep. 403; Updike V. Henry, 14 Illinois Rep. 378. A special property is not complete until . the actual delivery of the property. Up to that time, the general owner has a right to refuse to deliver, and drive the party to his action on the contract. XXIV.] ATIAOHMEHT. 405 Grounds of Attachment. One joint owner of a chattel can not maintain replevin against another joint owner. McEldery v. Flannagan, 1 Har. and Gill 308; Prentice v. Ladd, 18 Coftn. Eep. 331; Barnes ». Bartlett, 16 Pick. Eep. 71; 12 do. 324; 12 Wend. Eep. 131. It must be brought against the person in the actual custody of the property, the detainer of it. Cogan v. Stoughtenbaugh, 7 Ohio Rep. part ii, 133; Allen v. Orary, 10 Wend. Eeo. 349. CHAPTER XXIV. ATTACHMENT. GENERAL ATTACHMENT. K. Gsocinis OF Attachment. Sbc. 191. The plaintiff in a civil action for the recovery of money, may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon the grounds herein stated: 1 . When the defendant, or one of several defendants, is a foreign cor- poration or a non-resident of this State; or — 2. Has absconded with the intent to defraud his creditors; or — 3. Has left the county of his residence, to avoid the service of a sum- mons; or — 4. So conceals himself that a summons can not he served upon him; or — 5. Is about to remove his property, or a part thereof, out of the juris- diction of the court, with the intent to defraud his creditors; or — 6. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or — 7. Has property, or rights in action, which he conceals; or — ■ 406 ATTACHMENT. [_CHAP. Grounds of Attachment. 8. Has assigned, removed, or disposed of, or is about to dispose of, his property, or a part thereof, with the intent to defraud his creditors; or — 9. Fraudulently contracted the debt or incurred the obligation for which suit is about to be, or has been brought. But an attachment shall not be granted on the ground that the defendant is a foreign corporation or a non- resident of this State, for any claim other than a debt or demand arising upon contract, judgment, or decree. 'This chapter changes entirely the whole policy of the attachment acts of Ohio. Those acts heretofore looked to equality in the distribution of the property attached; this code gives priority to the party who first sues. Hence it holds out inducements to parties to strain their consciences in order to obtain priorities. It is doubtful whether this change of the law is an improvement. Equality has ever been considered equitable, and will be found so hereafter. This change, may b6 for the benefit of sharp lawyers and grinding creditors; but that honest men are to be benefited by the change, is not believed. The right of priority, like those on execution, is settled by the time when the attachments come to the hand of , the sheriff. Sec. 197. The code speaks of the defendant, except in the first subdivision, where it speaks of one of several defendants being a foreign corporation or non- resident. In such cases, an attachment can be taken out against one of several defendants. But it has been held, in Sears et al., v. Gream & Houghton, 7 Tr. Rep. 383, that copartnership property can not be seized on an attachment against one absconding partner, for a partnership debt. The individual property of the absconding partner can alone be seized. The resident partner has a right to retain the partnership property. But can an attachment issue, where there are several defendant's, except under the first specification, unless all of them are liable to it? The Ohio code is different in this respect from the code of New York. The word defendant here is a nomen collectivum, to indicate the person or persons who are defendant, or defendants, in the action. The code uses this word in this sense throughout. In section 86, subdivision 1, is the following use of the words — ^the names of the parties — plaintiff and defendant. These words here are used in a collective sense, and this is only one case of a hund- red where they are so used. This construction can not be avoided, unless a portion of the first subdivision can be carried into each of the other sub- divisions. This construction may possibly be .adopted, and then it would authorize an attachment against one of several defendants in all cases. The nominative to the verb in all the subdivisions is the same, to-wit, the words, the defendant, or one of several defendants. On this construction. XXI v.] ATTACHMENT. 407 Grouids of Attachmenti— How Obtained. the attachment will issue only a;gainst the defendant guilty of the acts which authorize the issue of an attachment. In such case, where there are several defendants, shall the property of one be attached to secure the whole debt? Shall the property even of a surety be attached, when the principal is good? If one partner fraudulently contracts a debt unknown to the others, can an attachment issue against all? As to non-residence, vide Lee et al. v. Stanley, 9 Pr. Rep. 272, where a man was held , a non-resident, who had his business in the State of New York, but his family resided in New Hampshire; where also he enter- tained his friends. Harvard College v. Gore, 5 Pick. Kep. 370; 11 Mass. Rep. 424; 7 do. 1; 23 Pick. Rep. f70; 1 Metcalf Rep. 242; 3 do. 199. A party can have but one domicil at the same time. 23 Pick. Rep. 170; 1 Metcalf Rep. 250; 18 Wend. Rep. 612. II. How AN Attachment is Obxained. Sbo. 192. An order of attachment shall be made by the clerk of the court in' which the action is brought, in any- case mentioned in the preceding sec- tion, when there is filed in his office an affidavit of the plaintiff, his agent, or attorney, showing — 1. The nature of the plaintiff's claim. 2. That it is just. 3. The amount which the affiant believes the plaintiff ought to recover. 4. The existence of some one of the grounds for an attachment enu- merated in the preceding section. The order of attachment shall be made by the clerk. See. 1 92. Does he act in a judicial capacity ? It would seem so. Every direction of a court or judge,, not a judgment, is an order. This word then implies the exercise of judgment. The clerk must decide, Jlrst, whether the paper filed is an affidavit; second, whether it shows the' existence of the matters re- quired. If the clerk, therefore, issue the order without an affidavit, or on an affidavit, the insufficiency of which is clearly apparent, he would be liable to the party whose goods should be attached; because he had no jurisdiction to issue the order. In ex parte proceedings, jurisdiction must be clearly obtained, or the proceedings will be void. In this case, the affidavit con- templated by the code is a condition precedent to the right of jurisdiction. Hence if there is no such affidavit, there can be no jurisdiction, and the act of the clerk issuing the order would be void. But when there is such an affidavit as will call for the action of the clerk, no error of judgment will i08 ATTACHMENT. [CHAP 'Bbiw Obtained. render him responsible to the party injured, since the order of issue is a judicial act, for which no one can be made responsible. It ■will, therefore, require care in preparing the affidavits. It should state the ground for the attachment in th6 language of one of the subdi- visions, and then proceed to state the fects which tend to prove the truth of the charge. Whether the facts stated prove the groun.ls alleged, is for the clerk in the first place to decide; and for any error in this decision, he can not be made responsible; but an affidavit which alleges none of the grounds named in the code is a mere nullity, and could not give any authority to issue the order. The character of the affidavit is inlportant, and should be strictly within the law, in a remedy so liable to abuse as this is. The order is to be issued by the clerk; in New York, it is issued on leave of a judge of the court, or of the county court. 1. The nature of the claim must be stated. This should be done as fully as it is done in the petition; and if it is a claim of such a character that the amount claimed would be admitted on a default, the exact amount must be positively stated. In other cases, the facts in which the claim originated should be stated, and the sum which the plaintiff can swear he is entitled to recover. In these cases, he must take care to claim no more than the law will give him, as, if he does, his attachment will be dismissed. 2. The plaintiff must swear positively to the justness of his claim. 3. The amount which the affiant believes the plaintiff ought to recover. This word believes must not be misunderstood; the plaintiff must hiow what sum is due him on a money contract, and must swear to the amount positively. Where the amount is to be ascertained on an inquiry of dam- ages, he may swear to his belief, having first stated the facts on which he bases that belief. Gates v. Maxon, 2 West. Law J. 406; tO Ohio Rep. 863. A sum certain must be stated; to say about such a sum will not answer. 10 Ohio Rep. 263. 4. The existence of some of the causes stated in section 191 must be set forth. How set forth ? Is it sufficient simply to copy the words of the statute ? The District Court in Scioto County, at its April term, A. D. 1 855, held that the affidavit must set forth the facts on which the plaintiff grounds his belief that the defendant is guilty of the charge he makes. This opinion was predicated on the language of the statute, as well as on prin- ciples of public policy. And such seem to be the decisions in New York. The affidavit must make out a prima facie case; it must state facts enough to call upon the officer for the exerois^ of his judgment upon the weight -and importance of the evidence. Conklin v. Dutoher, 5 Pr. Rep. 386; 7 do. 357. The plaintiff, in the language of the statute, must, show the existence of XXIT.J ATTACHMENT. 409 How Obtained. some one of the grounds for an attachment enumerated in section 191. He must show the existence of one of these grounds, and this can be done only by evidence. His belief of its existence, shovis — proves nothing. For A to swear that B exists, does not show that he exists. Show, here, is equivalent to prove to the satisfaction of the officer issuing the order. The facts must be stated positively. If the party does not know the facts, he must procure the affidavit of some one who does know them. In ex parte Haynes, 18 Wend. Kep. 611, an attachment had been issued on an affidavit, in which , the witnesses stated that they were informed and be- lieved that the debtor was a non-resident; but the Supreme Court held the affidavit insufficient, and set aside the attachment. See also Smith v. Luce, 14 Wend. Eep. 237; 20 do. 672; 5 Hill Kep. 611; 7 do. 187; 6 Wheaton Eep. 119; 7 Blackf. Rep. 12; 4 Hill Rep. 598. Other affidavits than that of the plaintiff may be produced to sustain an application for an attachment. Indeed, when facts are to be proved, they can only be proved by the affidavit of the person who knows the facts in such a sense that he could, as a wit- ness, be admitted to testify to their existence. The code itself recognizes this well settled principle. Section 332 provides that the testimony of witnesses is taken in three modes — by affidavit, by deposition, and by oral examination. Section 333 defines an affidavit as a written declaration under oath, made without notice to the adverse party; while, by section 334, a deposition is defined to be a written declaration under oath, made upon notice to the adverse party. It will thus be seen that an affidavit is evidence, and not hearsay; as much so as a deposition. And this is the char- acter of an affidavit as fixed by the code; and hence, in all cases where the word is used in the code, it must be held to be used in this sense. When, "therefore, /acte are to be proved by affidavit, the affidavit must be made by the person who could testify to them as a witness, and by no one else. If the party, therefore, does not know the facts upon the existence of which he relies to sustain his charge for an attachment, he must obtain the affi- davit of the person who does know, and can testify to them. The party should, however, state that he is informed and believes that the facts are 80, and then prove them by the affidavit of the person who knows them. This is a matter of much practical moment, as the attachment must be set aside if the facts are not proved by a competent affidavit — by one which on its face shows that the witness knows ih& facts to which he testifies; and that he does know the facts should appear affirmatively from the affidavit itself.* Sec. 193. When the ground of the attachment is, that the defendant is a foreign corporation, or a non-resident of this State, the order of attach- ment may be issued without an undertaking. » See note I, p. 802. 410 ATTAOHMENT. [cHAP. How Obtained. Execution and lletum. In all other cases, the order of attachment shall not be issued by the clerk, until there has been executed in his oflSce, by one or more suiBcient sureties of the plaintiff, to be approved by the clerk, an undertaking not exceeding double the amount of the plaintiff's claim, to the cflfect that the plaintiflf shall pay the defendant all damages which he may sustain by reason of the attachment, if the order be wrongfully obtained. Sec. 194. The order of attachment shall be directed and delivered to the sheriff. It shall require him to attach the lands, tenements, goods, chattels, stocks, or interest in stocks, rights, credits, moneys, and effects of the defendant in his county, not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the proba- ble costs of the action, not exceeding fifty dollars. Sec. 195. Orders of attachment may be issued to the sheriffs of differ- ent counties; and several of them may, at the option of the plaintiff, be issued at the same time, or in succession: but such only as have been exe- cuted shall be taxed in the costs, unless otherwise directed by the court. Sec. 196. The return day of the order of attachment, when issued at the commencement of the action, shall be the same as that of the summons: when issued afterward, it shall be twenty days after it was so issued. III. ExEOtlTION AND RkTUEN THEUEOF. Sec. 197. When there are several orders of attachment against the same defendant, they shall be executed in the order in which they were received by the sheriff. Sbo. 198. The order of attachment shall be executed by the sheriff without delay. He shall go to the place where the defendant's property may be found, and there, in the presence of two freeholders of the county, declare that, by virtue of said order, he attaches said property at the suit of such plaintiff; and the officer, with the said freeholders, who shall be first sworn or affirmed by the officer, shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and freeholders, and returned with the order. Where the property attached is real property, the officer shall leave with the occupant thereof, or if there be no occupant, in a conspicuous place hereon, a copy of the order. Where it is personal property, and can be come at, he shall take the same into his custody, and hold it subject to the order of the court. Sec. 199. The sheriff shall deliver the property attached to the person in whose possession it was found, upon the execution by such person, in XXIV.] ATTACHMENT. 411 Execution and Return. the presence of the sheriff, of an undertaking to the plaintiff, with one or more sufficient sureties, resident in the county, to the effect that the parties to the same are bound, in double the appraised value thereof, that the property, or its appraised value in money, shall be forthcoming to answer the judgment of the court in the action; but if it shall appear to the court that any part of said property has been lost or destroyed by unavoidable accident, the value thereof shall be remitted to the person so bound. Sec. 200. When the plaintiff, his agent, or attorney, shall make oath in writing, that he has good reason to and does believe that any person or corporation, to be named and within the county where the action is brought, has property of the defendant (describing the same) in his possession, if the officer can not come at such property, he shall leave with such garnishee a .copy of the order of attachment, with a written notice that he appear in court, at the return of the order of attachment, and answer as provided in section two hundred and fourteen. Sec. 201. The copy of the order and the notice shall be served upon the garnishee as follows: If he be a person, they shall be served upon him personally, or left at his usual place of residence; if a corporation, they shall be left with the president, or other head of the same, or the secretary, cashier, "or managing agent thereof. Sec. 202. Different attachments of the same property may De made by the same officer, and one inventory and appraisement shall be sufficient, and it shall not be necessary to return the same with more than one order. Sec. 203. Where the property is under attachment, it shall be attached under subsequent orders as follows: v. If it be real property, it shall be attached in the manner prescribed in section one hundred and ninety-eight. . 2. If it be personal property, it shall be attached as in the hands of the officer, and subject to any previous attachment. 3. If the same person or corporation be made a garnishee, a copy of the order and notice shall be left with him in the manner prescribed in section two hundred. Sec. 204. The officer shall return upon eVery order of attachment what he has done under it. The return must show the property attached, and the time it was attached. When garnishees are served, their names and the time each was served must be stated. The officer shall also return with the order all undertakings given under it. Sec. 205. An order of attachment binds the property attached from the time of service, and the garnishee shall stand liable to the plaintiff in attachment for all property, moneys, and crodits in his hands, or due from

- ond, That he " conceals rights in action." Either or both should be stated according to the facts. 8. He believes that the said has assigned (or removed, or disposed of, or is about to assign, or remove, or disposed of,) (here state the articles assigned, removed, or disposed of. ) XXiy.] ATTACHMENT. 423 Forms. Note. — There are several matters here, to- wit, he "has," or is " abont to." The afflaut must state this as the fact is — has he done the act, or is he about to do it? When that is settled, the next question is, Whieh has he dono, or is abont to do? To assign, or to remove, or to dispose' of ? To assign is to pass to another by a transfer of title; to remove ts to oari-y off without a change of title; to dispose of is to put out of the way under sham talcs, while in law there is no change of title. 9. The said fraudulently contracted the debt, (or incurred the obligation, ) for which the said action is brought; and in proof of this, he states the following facts: (/tere state them.) Note. — This last clause can dnly apply to causes of action arising on contract.. The two words " debt " and " obligation " both depend on contracts, obligation being a contract under seal. {Insert additional matter, if debts are to be reached, and add:) and further this deponent saith not. A B. Signed in my presence, and sworn to before me, this day of , A. D. 18 . L M, Cleik, (or Judge.) a. TTNDBKTAKINO. Whereas A B has commenced a civil action against C D, in the Court of Common Pleas, within and for the county of , to recover the sum of $ ; and whereas the said A B has applied to the clerk of said court, by filing the necessary affidavit, for an order of attachment to be issued in the said action against the said C D; Now therefore we, , and , hereby under- take to the said C D, in the penal sum of $ , (dovhle the first sum,) that the said A B shall pay the said C D all damages which the said C D may sustain by reason of said attachment, if the order should have been wrongfully obtained. Dated, etc. I, J D, clerk of said court, do approve of the above undertaking, and the sureties thereto. Dated this day of , A. D. 18 . J D, Clerk. 3. OBDBE OF ATTACHMENT. The State of Ohio, County, ss. To the Sheriff of said County of , Greeting: Whereas A B has this day, on the necessary affidavit being filed, obtained an order of attachment against C D in a certain action now pend- ing in the Court of Common Pleas, within and for the said county 424 ATTACHMENT. [CHAP. Forms. • of , wherein the said A B is plaintiflF, and the said C D is defend- ant, (or the said C D, E F, G H, and L M, are defendants,) to recover of the said defendant (m' defendants) the sum of $ ; Now, therefore, this is to command you to attach the lands, tenemerts, goods, chattels, stocks, and interest in stocks, rights, credits, moneys, and eifects of the said C D, defendant, in your county, not exempt by law from being applied to the plaintiff's claim, or so much thereof as will satisfy to the said plaintiff his said claim of $ , and the probable costs of this action, not exceeding fifty dollars; and of this order, and your proceeding thereon, do you make due return on the day of , A. D. ] 8 . Witness my hand, and the seal of the said court, at , this day of , A. D. 18 . J D, Clerk. If issued when the summons is, the return day will be the same. If issued afterward, the return day will be the twentieth day after the date. 4. INTENTOKT OP PBOPBRTT ATTACHED. We, J K, sheriff of said county of , and L M and NO, two freeholders of said county, the said L M and N O being first duly sworn, do truly inventory and appraise the following property, attached as the property of C D, on an order of attachment issued in a suit of the said A B against the said C D, (or C D and E F, G- H, etc.,) now pending in the Court of Common Pleas, for the said county of : (here describe the property, and the valuation attached to each parcel of it. Given under our hands this day of , A. D. 18 . G R, Sheriff. L M. N 0. 5. TTNDEETAKING FOR THE DELIVERY OP THE PEOPEET.T. Whereas J K, sheriff of the county of , has this day attached the following goods and chattels, found in the possession of W X, on an order of attachment issued from the Court of Common Pleas, for said county of , in an action wherein' the said A B is plaintiff, and the said D is defendant, as the property of tiie said C D, ani has caused the same to be valued to the sum of $ ' , and whereas the said sheriff has delivered the said property to the said W X: XXIV.] ATTACHMENT. i25 f Forms. Now we, , and , do acknowledge ourselves to be bound to the said A B, plaintiff, in the sum of $ , that the said goods and chattels so attached, to-wit, (here describe them,) valued at the said sum of $ , shall be forthcoming, to answer the judgment of the court in the said action, or in default thereof, that we will pay to the said A B the said sum of $ , the appraised value of said goods and chattels. Signed in my -presence, and approved by me, this day of , A. D. 18 . J K, Sheriff. The person with whom the goods are left must execute this undertaking, 6. AFFIDAVIT TO EBAOH GAKNISHBB. [Follow the first one to its close, save the words, " And further he saith not," and then proceed: ) and the said A B further saith that he has good reason to believe, and does believe, that • , (here state the names of the persons or corporation, ) resident within the said county of , has property of the said C D in his possession, to-wit, (here describe it,) and that one is indebted to the said C D in an amount unknown to this affiant, and further he saith not. Thi^ will of course be included in the other, when it is necessary. The name of the persons having property of the defendant, or owing him, must be stated; and if the property is personal property, or notes, etc., the same must be described, so that the sheriff can take it for them, if he can find the same. r. SHBBIFF'S KBTUEN. According to the command of the within order of attachment, I did, on the day of , A. D. 18 , attach, iii the presence of L M and N 0, two freeholders of said county, the following lands and tenements, goods and chattels, to-wit, (here describe the same;) and in connection with the said L M and N 0, having first duly sworn the said L M and N 0, made an inventory and valuation thereof in writing, which is herewith returned, and I left with , the occu- pant of said real estate, a certified copj- of this order, (or if no occu- pant, finding no occupant on said premises, I left, posted up in a conspicu- ous place thereon, a certified copy of this order, ) and the said goods and ATTACHMENT. [cHAP, Forms. chattels I took into my possession, and hold them now subject to the order of the court, (or, if_given over to the person in whose possession they wen found, on his undertaking, "and the said goods and chattels, found in the possession of W H, delivered- to the said W H, taking his undertaking n the sum of $ , with , and , as his sureties for the forthcoming of the same, which undertaking, properly indorsed, is herewith returned;") and I also delivered (or left at his usual place of residence; or, if a corporation, left with , the head officer of the said ) to , on the day of , A. D. 1 8 , a certified copy of this order, with a notice in writing, that the said appear in this court at the next term thereof, and answer under oath all questions put to him touching the property of the said C D, according to law. Dated, etc. X T, Sheriff. The above return covers all that the sheriff has to do. If he is not required to do all that is here stated, his return will, of course, contain only such parts as are applicable to his doings. g, SHERIFF'S RETURN ON A SECOND ATTACHMENT OF SAME PROPEETT. According to the command of the within order, I did, on the day of , 18 , in the presence of L M and N 0, two freeholders of said county of , attach the following real estate, (here describe it, ) heretofore attached on an order issued from this court, in the case of , plaintiff, against , defendant, to which return refer- ence is had; and I did also, on the day of , A. D. 18 , attach the following goods and chattels in my hands, under an order of attachment issued in the said action of the said , plaintiff, against defendant, and to the return of which case reference is had. If parties are garnisheed, the return will be the same as in the first form. 9. NOTICE TO OARNISHBB. You are hereby notified to appear on the day of the next term of the Court of Common Pleas, to be holden in and for ihe county of , at the court house, on the day of next, there to answer under oath all questions that then and there may be Dut to you, touching the XXIV.] ATTACHMENT. 427 Forms. Droperty of every description, and the credits of , defendant, in an action pending in said court, wherein is plaintiff, in your possession, or under your control. And this you will not omit to do, under the penalty of the law. Dated, etc. X T, Sheriff. 10. ORDER APPOINTING A RBOBIVER. On application of the said A B, plaintiff, to the undersigned, one of the judges of the said court, and on good cause shown, it is hereby ordered that be, and he is hereby appointed receiver in this cause, to take possession of all notes, due-bills, books of accounts, and all other evi- dences of debt that have been taken by the sheriff, on an order of attach- ment issued in this action against the said C D, defendant, on his giving his undertaking to the State of Ohio in the sum of $ , conditioned according to law. Dated this day of , A. D. 18 . L M, Judge. It seems the bond is to be given to the clerk of the court, and the oath to be then administered. Such seems to be the wording of section 206. This form will easily answer for one in court. 11. RBOBIVBR'S UNDBRT AKING. Whereas T R was, on the day of , A. D. 18 , duly appointed a receiver in the case of ; plaintiff, against C D, defendant, now pending in the Court of Common Pleas, of the county of , to take possession of all notes, due-bills, books of account, and all other evidencss of debt, taken by the sheriff on an order of attach- ment issued in said action; Now, therefore , as principal, and , as sureties, undertake to the State of Ohio in the sum of $ , that the said T R shall faithfully perform his duty as such receiver, and pay over all money, and account for all property which may come into his hands by virtue of such appointment, at such times and in such manner as the said court may direct. I approve of the above undertaking, and the security thereto, this day of , A. D. 18 • . Q Z, Clerk. 428 ATTACHMENT. / [CHAP Forms. la. NOTICE OF EBOKITER TO A DEBTOB. You are hereby notified that I hare been duly appointed and qualified as receiver in the case of A B, plaintiff, against C D, defendant, pending in the court of Common PJeas of the county of , wherein an order of attachment was issued; and that you are required to deliver over to me any property of the said C D in your possession or control, and pay to me any sum or sums of money owing by you to the said C D. Dated this day of A. D. 18 . X Z, Keceirer. 13. OBDGB OF SALE. On application, (or motion in court,) of the said A B, by E F, his attorney, and it appearing that the goods and chattels attached in this cause are of a perishable nature, and that the costs of keeping the same- are so great that it will be for the interest of all parties to have the same sold, it is hereby (by me, one of the judges of said court, ) ordered that the sheriflf proceed to sell the said goods aiid chattels attached in this ac- tion, as upon execution, and upon a credit, with good security, of months. Done this day of , A. D. 18 . Q F, Judge. The above order can easily be changed into an order in court. 14. AS UNDBRTAKINQ TO HAVE AN ATTACHMENT riSOHAEGED. Whereas A B has commenced a civil action against C D, in the Court of Common Pleas, within and .for the county of , to recover the sum of $ ; and whereas an order of attachment has been issued in said action, and the property of the said C D has been attached, and is now bound therefor; and whereas the said C D is anxious to obtain a dis- charge of said property from such attachment; Now therefore we, and , undertake to the said plaintiff in the sum of $ , that the said C D shall perform any and all judgments which may be rendered against him in the said action. 15. ORDER OF RELEASE IN COTTET. And now comes the said C D, by E F, his attorney, and brings here into court his undertaking to the said A B, in the sum of $ , with XXIV.] . ATTACHMENT. 429 Foiias. and , his sureties, and moves the court here to dis- charge the order of attachment heretofore issued in this case, and the court being satisfied that said undertaking is in due form, and that the said sure- ties are sufficient for the sum stated therein, and are residents of said county, it is ordered that said undertaking be received, and the said order of attach- /nent be vacated, and the said property so attached be released therefrom, and by the sheriff restored to the possession of the said defendant. IS. WHERE THE ITlIDBRTAKING IS TAKEN OUT OF COURT, IT SHOULD BE AP- PROVED BY SHERIFF OR OLERK. I, , sheriflF, (or clerk, ) of said county of , hereby approve of the said undertaking, executed in my presence, and the sureties thereto, and receive the same as surety for the said plaintiff in lieu of the property attached in said'ftction.. RS, Sherifif, (or Clerk.) This approval will be indorsed on the undertaking. The sheriff can take and appri^ve it, while the order of attachment is in his hands, and then his return must show that he has received it and discharged the attachment. The clerk must approve it, if the return has been made, and when court is not in session. Where sheriff takes it, he will add to his return the following- - 1 r , SHERIFF' S RETURN OF TAKINO BOND TO RELEASE ATTACHMENT. And afterward, to-wit, on the day of , A. D. 18 , the said (1 J) tendered to me his undertaking, executed in my presence, to the said A B, in the sum of $ , with and , as his sureties therefor; and believing the same in due form and the security sufficient, I approve of the same, and release all the above property so attached; and I herewith return the said undertaking. R S, Sheriff. 18. ANSWER OF GARNISHEE Examination of , as a garnishee in this case — 1. State if you have any property or effects of the said C D in your possession or under your control. If so describe it, and state where it is. 2. State if you are indebted to the said C D in any sum or sums of money, for any cause or causes of action whatever. If so, state the amount of it, how evidenced, and when payable. 'ISO ATTACHMENT. fcHAP. Forms. 3. To a Corporation. — State if there is any stock held or owned by tho said Q D in vour corporation, or by others or you for his benefit. The garnishee will fully answer and sign the same, and his liability U limited by his answer. If he discloses that he has given the defendant a negotiable instrument, he can not be held for the payment of that, except the sheriff has succeeded in getting possession of the note. It was so held in the case of Eodgers et al. v. Williams et al., by the District Court of the Seventh District, at the April term, ] 865, in Lawrence county; and such is the law elsewhere. A debt due on negotiable paper is not attach- able. Eunson v. Healy, 2 Mass. Eep. 32;- Williams v. Marston, 3 Pick. Eep. 66, 67; Grant v. Shaw, 16 Mass. Kep. 341, 344; Jones v. Graham, 2 do. 376; Cushman v. Haynes, 20 Pick Rep. 132; Wood v. Bodwell, 12 do. 268. A debt payable on a contingency is not attachable. 3 Mass. Rep. 68; 12 Pick. Rep. 22; 11 do. 101. 19. ' ATTACHMENT AOAmST GARNISHEE FOR CONTEMPT IN NOT APPEAKINO. The State of Ohio, County, ss. To the Sheriff of county. Greeting: Whereas L M was heretofore notified by the sheriff of this county, to be and appear before the Court of Common Pleas for said county, on the first day of the term thereof, A. D. 18 , to answer touching the property in his possession or under his control, of , against whom an attachment hM before that time been sued out of said coirt, wherein the said A B is plaintiff, and the said C D is defendant, and whereas the said L M has failed to comply with said notice, but is in contempt for not appearing according thereto; Now this is. to command you to attach the said L M, and forthwith have him before this court, to answer for this his contempt; and of this writ, and your proceedings thereon, forthwith make due return. Witness my hand and the seal of said court, at , this day of , A. D. 18 . J D, Clerk. ao. ORDER TO DELIVER PROPERTY. On motion of the said A B, plaintiff, by E F, his attorney, and it ap- pearing from the answer of the said , (^the garnishee,) that he has certain personal property of the said C D, subject to the attachment in SXrV.] ATTACHMENT. 431 Forms. this case, in his possession; it is ordered that the said (ffctr- nishee) deliver the said goods and chattels, (or promissory notes, choses in action, or books of account, as the case may be,) to the sheriff of this county, {or, if a receiver has been appointed, to , the receiver heretofore appointed in this cause, ) within days from this time. If he refuses to deliver the property, it is supposed that an attachment may issue against him to compel obedience to the order. 21. ATTACHMENT FOR BEFtTSAL. On motion of the said A B, by E F, his attorney, and it appearing to the court that the said , has refused to deliver to the sheriff, (or receiver appointed in this cause,) the personal property, (notes, etc., as in his answer set forth,) in his possession, according to the former order of the court, it is therefore ordered that an attachment for contempt be issued to the sheriff against the said , {garnishee, ) returnable forthwith, (or at the next term of this court.) aa. OEDER TO PAT MONET. On motion of the said A B, by E F, his attorney, and it appearing from the answer of the said , {garnishee, ) that he is indebted to the said defendant in the sum of $ , and that said sum is now due and payable, and liable to be applied under said attachment; it is therefore ordered that the said , {garnishee, ) do pay into the hands of ' the clerk of this court, (or to , heretofore appointed receiver in this cause, ) the said sum of $ , within days from this time; and in default thereof, it is further ordered that an execution be issued against the said , to collect the said sum of $ , as upon judgment. a 3 . ORDER ON GARNISHEE TO GIVE SEGURrFT FOR PROPERTT OR DEBT. On motion of the said A B, by E F, his attorney, and it appearing from the 'answer of the said , {garnishee, ) that he has the following property of the said defendant in his possession, and is desirous of retaining the' same, it is therefore ordered that the said be permitted to retain the same on giving an undertaking, with security, in the sum of $ , to the said A B; and thereupon the said gave his undertaking to the said A B, with and , as his securities, conditioned according to law; and it is therefore ordered that the said retain the possession of said property, 28 432 ATTAOHMENT. [cHAP. Forms. 24. TTNDBIBTAEING IN THIS OASS. Whei'eas an attachment has been issued in an action pending in the Court of Common Pleas, for the county of , wherein A B is plaintiflf', and C D is defendant, and has been garnisheed in said action, and has admitted that he has certain property of*the said D in his possession, describe'd in the answer of the said , made in this action, (or. is indebted to the said C D in $ ,) and whereas the said is desirous of retaining the possession of the said property, (or the money so owing,) and tlie court has ordered that he may retain possession thereof on giving an undertaking to the said A B in $ , with security, conditioned according to law. Now therefore we , as principal, and , as sureties, undertake to the said A B, in the sum of $ , that the said property, to-wit, (here describe it, ) shall be forthcoming, according as the court may hereafter order and direct, [or, if it is a debt, that the said (garrdshee) shall pay the said sum of $ , as the said court may hereafter order and direct.] 25. OBDEE FOR DBLIVEBT OF PEOPBBTT. On motion of the said A B, by E F, his attorney, it is ordered that the said do deliver to the sheriflF, (or to , receiver in this cause, ) the property for which the court holds his undertaking, on demand. 26. OEDBB ON N N - D B L I VB RT. On motion of the said A B, by E F, his attorney, and it appearing to the court that the said (garnishee) has failed to deliver over the property held by him, in obedience to the former order of this court, it is therefore ordered that a citation issue against the said , and the said , his securities on his undertaking, notifying them to appear forthwith, and show cause why judgment should not be rendered against the .said , on their undertaking to the said A B, in the sura of $ , heretofore given in this cause, for the value of the said property, (or for the said sum of $ ,) so admitted by the said to be in'his possession, (or to be owing by the said to the said CD.) 8T. FORM OF CITATION. The State of Ohio, County, ss. To the SheriflF of the County of , Greeting: You are hereby commanded to notify forthwith to be and appear before the Court of Common Pleas, now in lession at the court XXIV.] ATTACHMENT. 433 Execution and Return. house, in , in said county, and show cause, if any they have, ■why judgment should not be rendered against them, and in favor of A B, on a certain undertaking given by th,em to the said' A B, on the day of , A. D. 18 , in the sum of $ , conditioned for the" delivery by the said [garnishee) of the following property attached in the action of the said A B against one C D, to-wit, [describe it as in undertaking,) and which property the said has failed to deliver, according to the order of this court, made at the term thereof, A. D. 18 , (or at its present -term,) and of this writ, and your proceedings thereon, forthwith make due return. Witness toy hand and the seal of the said court at , this day of , A. D. 18 . J D, Clerk. The above forms can be easily changed so as to meet the case of the non-payment of a debt. The defendants will have the right to take issue on this citation as upon a petition, and the cause must then be tried and decided as if an action had been brought on said undertaking. Of course the only defense that can be made is that the property or money has not been demanded, or has been delivered or paid. The parties would be estopped from denying the possession of the property or the indebtedness. The judgment in the one case will be for the value of the property; in the 'other for the sum admitted to be due, with interest thereon. On a default, the court must assess the value of the property. It would have been better if section 217 had provided for a valuation of the property to be inserted in the undertaking; but the condition required is simply for the forthcoming of the property. The return of the sheriff will be the same as on a summons. as. JUDGMENT V. GARNISHEE AND SBOTJBITIBS. And now comes the said A B, by E F, his attorney, and the said still failing to appear and answer to the citation heretofore issued in this case, it is considered that the said A B ought to recover the value of the property described in the said undertaking; and, with the assent of the said A B, and after hearing the evidence, the court do assess the value of said property to the sum of $ ; it is therefore consid- ered by the court here that the said A B recover of the said the said sum of $ , together with his costs in and about this citation and judgment expended, taxed to be $ 4:34 ATTACHMBNT. [oBL»P Forms. This judgment may be enforced by attachment, and probably collected on execution. See sec. 222. It is there said it may be done by rules and attachments as in cases for contempt. A judgment for money will be that he ought to recover the said sum of $ , with interest thereon amounting to $ , amounting in all to $ , and judgment fo that sum. a 9 . ORDER FOB SHERIFF TO RE-FOSSESS HIMSELF OF PROFERTT. On motion of the said A B, by E F, his attorney, and it appearing to the court that the" sheriflF in this cause had attached the following goods and chattels of the said C D, to-wit, (Aere describe the property, as in sJieriff's return,) and that the same have passed out of the hands of said sheriff, without having been sold or converted into money, it is therefore ordered that the sheriff proceed according to law, to re-possess himself of the said property so attached, wherever it may be found, and all persons having possession of the same are required to re-deliver the same on demand. A copy of this order, duly certified by the clerk, authorizes the sheriff to take the property; he has the same authority under the order, as he has under an order of attachment. Sec. 223. 30. NOTIOB TO DISSOLVE ATTACHMENT. ' A motion to dissolve an attachment may be made either in term time, or before a single judge at chambers. (St. 1857, p. 29.) The form will be like that to discharge from arrest 31. AFFIDAVIT WHERE DE^T IS NOT DUB. And the said A B, plaintiff, being first duly sworn, deposeth and saith that he is about to commence a civil action in said court against i^ said C D, defendant, on a claim not yet due and payable, and wishes the allow- ance of an attachment therein; and he- saith that the said C D is indebted to the said A B on a promissory note, [here describe the claim as in an ordinary affidavit, setting forth the nature of the claim, and when due;) that said claim will become due on the day of , A. D. 18 that said claim is just, and that there is justly due thereon at this time the sum of $ ; and he further saith that the said C D, {here set forth either of the causes as follows:) 1. Has sold, conveyed, and disposed of his property, with the fraudu- lent intent to cheat and defraud his creditors, (or to hinder and delay them in the collection of their debts, ) and in proof thereof the said A B states the following fects: (here state the facts as they are.) XXIV.] ATTACHMENT. 43b Forma. 2. Is about to make sale, conveyance, and disposition of his property, with fiaudulent intent, etc., (^proceed as in last.) 3. Is about to remove his property, (or a material part thereof,) with the intent and to the efifect of cheating and defrauding his creditors, (or of hindering and delaying his creditors in the collection of their debts.) And the feaid deponent therefore asks an allowance of an order of attachment in said cause; and further he saith not. Dated, etc. A B. Signed in my presence, and sworn to before me, this day of , A. D. 18 . I, S N, one of the judges of the said court, on the application of the said A B, and being satisfied from the said affidavit of the said A B, (and the other evidence produced, if there is any, ) that the said claim is just, and that the said C D has [here find the truth 'of the fact assigned for the attachment, ) do hereby grant and authorize the clerk of said court to issue an attachment in this cause for the sum of $ Given under my hand this day of , A. D. 18 .^ S N, Judge. 32. JUDSMBNT. And now comes the said A B, plaintiflf, and makes proof that he caused 8 notice containing a summary statement of the object and prayer of said petition, and notifying the said defendant that he was required to answer the said petition on the day of , A. D. 18 , to be pub- lished six consecutive weeks in the , a newspaper printed in the Aid county of , the last publication being on the day of , A. D. 18 ; and now the said defendant, having failed to appear and answer or demur to the said petition, the court do find that the said plaintiflf ought to recover against the said defendant the said sum of dollars and cents, mentioned in said petition, and the sum of dollars and cents, interest thereon, as demanded in said petition, amounting in all to the sum of $ ; it is therefore considered by the court that the said plaintiff recover against the said defendant the said sum of $ , and also his costs in and about his suit, in this behalf expended, taxed to be dollars and cents; and on motion of the said A B, by E F, his attorney, it is ordered that the sheriS^ pay to the said A B^ on the said judgment, the sum of $ , heretofore made by him on a sale of certajn personal 436 ATTACHMENT. [OHAP. XXIV Forms. property attached in this action; and it is further ordered that the said sheriff proceed, as upon execution, to advertise and sell so much of the personal and real property heretofore attached in this action, now in his hands remaining, as will satisfy the said plaintiff the balance of his aforesaid judgment and costs; and it is further ordered that the said sum of $ paid into the hands of the clerk of this court, by , heretofore garnisheed in this action, be, by the said clerk, paid over to the said plaintiff, to satisfy and discharge so much of the money so as aforesaid recovered by the said plaintiff against the said defendant. Section 221 requires that the court make the necessary orders for the application of all the proceeds obtained from property attached, or from persons garnisheed as the debtors of the defendant. These orders must, of course, depend upon the state of the property and funds. The money due from a person garnisheed can not be applied until collected under the pre- vious provisions of this chapter. Where the defendant is served with process, the judgment will be en- tered up like any other judgment; and the orders for appropriation of the attached property will be made subsequent to the rendition of the judgment. They may be made at the same, or a subsequent time. The property remains in the custody of the court until applied under its order. Where the claim is not of the character that enables the plaintiff to recover the amount named in the prayer of his petition, the entry must be like any other judgment on default. The court will "find that the plaintiff ought to recover his damages sustained by reason of the. premises, and the court, with the assent of the said plaintiff, do assess his damages, by reason thereof, to the sum of $ ;" and then proceed with the judgment as above. Or, if the plaintiff request, a jury may be impanneled to inquire i^f the damages sustained by the plaintiff, by reason of the premises; and the ver- dict will be entered as in the case of an ordinary verdict on an inquiry of damages. The forms are given under the heads of verdicts and judgments. CHAPTER XXV. INJUNCTIONS. Sbc. 237. The writ of injunction is abolished, but in the same section it is declared to be in force under the name of an order; and, as heretofore in equity, it may be a provisional remedy or the final judgment in an action. The injunction provided for in the code is a command to refrain from a particular act. Sec. 238. When it appears by the petition, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce great or irre- parable injury to the plaintiff, or when, during the litigation, it appears that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. It may 1 also be granted in any case where it is specially authorized by statute. These two sections are now the law in Ohio on the subject of injunc- tions. They are different from tlie one in the code of New York in two particulars: First. The words "great" or " irreparable," hefove "injury," are not in that code; Secondly, That code also provides for an injunction against one who, during the pendency of an action, threatens, or^s about to remove, or dispose of his property, with intent to defraud his creditors. This latter provision was contained in our former legislation; but was wholly omitted in the code, while the former law was repealed. In New York, it has been made a question, whether the omission of the words "great" and "irreparable," before "injury," has enlarged the remedy by injunction. The original section was as in ours, and under that it was held that an injunction under the code was substantially what it was before under the practice of a court of chancery. It does not create a new remedy. On the contrary, it recognizes the injunction as an existincr provisional remedy. Its character, as a mode of equitable relief, (437) 4:38 mjuNCTioNs. [chap. When they may be Granted. is not at all altered or impaired. Linden v. Fritz, 5 Pr. Rep. 188. The code does not alter the rule of equity respecting the allowance of injunc- tion. Howard v. Ellis, 4 Sand. S. C. Rep. 374. The cases in which an injunction may be granted are the same as were established in our court of chancery. Linden v. Hepburn, 3 Sandf. 8. C. Rep. 668. The law in regard to injunction has not been materially changed. Corning v. Troy L-on and Nail Factory, 6 Pr. Rep. 92. The same doctrine was sustained by the district court of the seventh district, in Fairfield county, at its September term, A. D. 1854. , When an injunction mil he granted. — The plaintifif's right must be clear; he must show a vested title, legal or equitable, or such a public interest as any one may ask to have protected. Tom and Daily v. Deshee, 4 Ohio Rep. 647. An injunction will not be granted where the right is doubtful. Steamboat Co. v. Livingston, 3 Cowen Rep. 713; Snowden v. Noah, Hopk. Rep. 347. A court of equity will interfere to prevent the transfer of a specific thing, which, if transferred, will be irretrievably lost — as negotiable securities and stocks. Osburn v. Bank of United States, 9 Wheat Rep. 738. Court will interfere to restrain, by injunction, public officers proceed- ing illegally and improperly under a claim of right. M. and H. Railroad Co. V. Archer, 6 Paige Ch. Rep. 83. So a court will enjoin the building of a railway through the streets of a city, if the city authorities have no authority to make it. And an owner of lands bordering on the street can maintain the action. Milhau et. al. v. Sharp et. al., 9 Pr. Rep. 102, 112. So also to prevent public grounds in a town from being built upon, where they are donated to remain as open grounds; and this wijl be done, though the misappropriation is being done under an act of the General Assembly of the State. Le Clercy ei. al. v. Town of Gallipolis et. al., 7 Ohio Rep., part i, 217; Brown v. Manning et. al., 6 do. 298; 6 Paige Ch. Rep. 262. So it will restrain a board of public officers from taking land, or water, where it is not wanted for public use, but to create a water power t>n a canal for another. M' Arthur v. Kelly et. al., 5 Ohio Rep. 139; Belknap V. Belknap, 2 John. C. Rep. 463. Courts of chancery have jurisdiction to enjoin a sale on execution, where the sale will confer no title, but may cast a cloud over that of the plaintifiF. Norton v. Beaver et. al., 6 Ohio Rep. 178; 2 do. 495. So injunctions may be granted to restrain corporations from the abuse of their powers; it is not to be permitted to prosecute its powers, so as to do unnecessary injury to others. Walker v. M. and L. E. R. R. Co., 8 ' Ohio Rep. 38. It will restrain a railroad company from entering on land XXV.J INJUNCTIONS. 439 When Granted. Nuisances. Waste. of plaintiff, when by law it has no power to condemn it. Morehead et. al, V. L. M. R. R. Co., 17 Ohio Rep. 340. Injunctions will not be granted to prevent a trespass; the act must amount to waste or irreparable injury. Ross v. Paige, 6 Ohio Rep. 166; Smith V. Pettengill, 16 Vermt. Rep. 82; Hart v. Mayor of Albany, 9 Wend. Rep. 671; Stevens f. Beekman, 1 John. Oh. Rep. 318; Livingston i!. Same, 6 J. Ch. Rep. 497. The injury must be irremediable and destructive of plaintiff 's estate, and not susceptible of perfect compensa- •tion in damages. Jerome v. Ross, 7 John. Ch. Rep. ^5; 9 Gill and J. 468; 2 J. J. Marsh. 483. Nuisances. — A court of chancery will interfere to abate a nuisance, where the injury complained of is irreparable, going to the destruction of the property; but where the injury is merely nominal, chancery will not interfere; unless the nuisance is such as to cause a personal incon- venience. McCord V. Iker, 12 Ohio Rep. 387; Spooner v. McConnell, 1 McLean Rep. 337. So to stop the diversion of water, where the diver- sion was such as permanently to injure his right. Webb v. Portland Manf. Co., 3 Sumner Rep. 189. So to abate a dam below the plaintiff's mill, when the right has been settled at law. Bemis v. Upham, 13 Pick. Rep. 169; Bardwell v. Ames, 22 Pick. Rep. 333; Shields v. Arndt, 3 Green Ch. Rep. 234. So a court will abate a public nuisance on the complaint of an indi- vidual, who also suffers a special injury therefrom different from the public injury. Corning v. Lowerre, 6 John. Ch. Rep. 439; Rowe v. Granite Bridge Co., 21 Pick. Rep. 344; Biddle v. Ash, 2 Ashmead Rep. 211; Bradsler v. Lea, 3 L'ed. Ch. 301; 7 Porter Rep. 238; Anderson et. al. v. Rochester, Lockport and ¥. F. R. R. Co., 9 Pr. Rep. 663. • Waste. — A court of equity will, by injunction, restrain an insolvent purchaser of real estate from committing waste and destruction thereof. Stouffer V. Eaton et. al., 13 Ohio Rep. 322. So a bill to stay waste may be sustained by mortgagee against mortgagor, when he is doing acts tend- ing to diminish the security. 2 Cupner v. Flem. Min. Co., 2 Green Ch. Rep. 467; Cooper v. Davis, 16 Conn. Rep. 566; Brady v. Waldron, 2 J. Ch. Rep. 148; Salmon v. Claget, 3 Bland. Ch. Rep. 126. So also to prevent lessee from making material alterations in a dwelling house, by changing it into a store, warehouse, etc. Brumly v. Panning, 1 John. Ch. Rep. 601. Threats to commit' waste will authorize the issue of an injunction. Whitewater Canal Co. v. Comegys, 2 Carter Rep. 469; Lou- don V. Warfield, 6 J. J. Marsh. 196. Converting meadow land into pasture land is not waste, unless the change is detrimental to the inheritance, or iontrary to the ordinary courso 440 INJUNCTIONS. [chap. Waste. To Prevent Collection of Tax. of good husbandry. Suffering pasture to be overgrown with brush is waste, in cases where it would not be suffered by a man of ordinary prudence. Cutting and selling wood from a farm is waste. Cutting hoop- poles is waste. Tenant can not tear down a house which was dilapidated when he took possession; it is waste. He is not bound to repair, but when the building becomes dangerous, it may be torn down. Clemence v. Steere, 1 R. I. Rep. 272; 13 Penn. St. Rep. 438; 6 Eng. L. and Eq. Rep. 404. To prevent the collection of a tax. — A court will interfere by injunction to stay a sale fo? taxes, which are illegally assessed. Burnet v. Cincin- nati, 3 Ohio Rep. 73. So the same doctrine was maintained in Baker v. Black et. al., 6 Ohio Rep. 53; Culbertson v. Cincinnati, 16 Ohio Rep. 674. The collection of a tax illegally assessed may be restrained by injunction. Jones ». Cincinnati, 18 Ohio Rep. 318. Vide also McCoy j). Chillicothe, 3 Ohio Rep. 370. These cases have been doubted in the case of Mechan- ics' and Traders' Bank v. Debolt, 21 Ohio Rep. 691. Vide, however, Croton Turnpike Co. v. Bydes et. al., 1 John. Ch. Rep. 610; 9 John. Rep. 607; Osburn v. Bank of U. 8., 9 Wheaton Rep. 738. The United States District Court of Ohio has since sustained the remedy by injunction, and that decision has been sustained by the Supreme Court of the ■ United States. There can now be no doubt of the jurisdiction, where the collection of the tax impairs a franchise, casts a cloud on title to real estate, or where the treasurer is irresponsible. Where the amount is small, and no special injury would arise from enforcing payment, a court of equity might refuse to interfere, on the ground that the injury was trifling. Vide also De Baum V. Mayor of New York, 16 Barb. Rep. 392. An injunction will be granted to restrain the publication of a paper under the name of a paper being published by the plaintiff. Bell v. Lock, 8 Paige Ch. Rep, 75; Snowden v. Noah, Hopk. Rep. 347. So also. to prevent publication of private correspondence. Wetmore v. Scovell, 3 Edw. Ch. Rep. 615. An injunction was granted to restrain parties using the name of the "Irving House." Howards. Henriquez, 3 Sandf. S. C. Rep. 725. The court can not now restrain proceedings in another case. This must now be done by motion. The ground can not exist, where proceed- ings are in the same court. The ground for an injunction is a defense to the action; or the defendant may apply on his answer under section 252. Dederick v. Haysradt, 4 Pr. Rep. 360. To entitle the plaintiff to a temporary injunction, he must make a case, showing that the act complained of will not only produce an injury to him, but that he is entitled to final relief by a perpetual injunction. 7 Pr. Rep. 17; Ward v. Dewey, 6 Pr. R«p. 463; Woodworth v. Lyon, 6 Pr. Rep. 89; Hulse V, Thompson; 8 do. 475. XXV.] INJUNCTIONS. 441 How to be Obtained. Sec. 239. The injunction may be granted at the time of commencing thfi action, or at any time afterward, before judgment, by the Supreme Court, or any judge thereof, the Court of Common Pleas, or any judge thereof, or in the absence from the county of said judges, by the probate judge thereof, upon its satisfactorily appearing to the court or judge, by the affidavit of the plaintiff or his agent, • that the plaintiff is entitled thereto. * The question has been raised, whether the petition should contain a statement of the facts on which it is relied to obtain the injunction. In Koome v. Webb, 1 Code Eep. 114; Benson v. Fash, Ibid, 68; Krom «;. Hogan, 2 do. 144, it was said that all the facts might be embodied in the petition, and that, being sworn to, was a sufficient ground for grantino- an injunction; but in Millikin v. Gary, 6 Pr. Eep. 272, Sill, J., says: " The proper mode of proceeding is to draw the complaint as in other cases stating facts only, and omitting evidence and legal conclusions. The addi- tional circumstances and evidence, which may be needed to obtain an order of injunction, should be presented by affidavit." The same opinion was expressed by Jones, J., in Putnam v. Tracy, 2 Code Rep. 64. But in Minor v. Terry et. al., 6 Pr. Eep. 208, Gridley, J., dissents from this view of the law of .pleading. With great respect for the opinion of Justice Sill I can not concur with him in this conclusion. It is possible that it is not competent now to set up all the minute circumstances that formerly might Lave been embraced in a bill in equity, in a complaint under the present system. But it must be remembered that what the code has abolished is the action for discovery:, in aid of the prosecution of another action. In the same action, you may, under the present system, obtain a discovery under oath as to all the facts which may be legitimately stated in the pleading. It seems to me that where the complaint states all the facts necessary to lay the foundation for an injunction, and the plaintiff swears to this positively, it is too narrow a construction of the code, not to regard the complaint thus verified as an affidavit. It would be a useless act to re-state all the facts of the complaint over again in the form of an affidavit- and I can not think the Legislature intended it to be done. When the plaintiff can not swear to all the facts of his positive knowledge, he must obtain the affidavit of others. In Penfield v. White, 8 Pr. Rep. 87, Parker J., says that " an injunction can not be allowed on a complaint alone, though it appears from the facts set forth in it that the plaintiff is entitled to an injunction, unless such complaint be duly verified, so as to make it in legal effect, if not in form, an affidavit." 442 nwuNOTiONs. [chap. Notice. — ^When Required. Order of Injunction. It seems that there must be first a petition, setting forth the facts, according to the opinion of Gridley, J.; then there must be the affidavit of the plaintiff and others, swearing positively to the facts. The petition y, E not be enough under our code, since the plaintiff swears according to his belief; and the facts on which an, injunction is granted must be sworn to positively. If the plaintiff does not know of their truth, he must produce the affidavits of others who do know it. Injunctions are not issued upon mere information and belief. Pomeroy v. Hindmarsh, 6 Pr. Rep. 439; Roome v. Webb, 1 Code Rep. 114; 3 Pr. Rep. 327. ITOTIOE. ^WHE^f Bequiked. Sec. 240. If the court or judge deem it proper that the defendant, or any party to the suit, should be heard before granting the injunction, it may direct a reasonable notice to be given to such party to attend for such pur- pose at a specified time and place, and may, in the meantime, restrain such party. Sec. 241. An injunction shall not be granted against a party who has answered, unless upon notice; but such party may be restrained until the decision of the application for an injunction. No notice of the application is required, unless the party has answered. In all other cases, it may be granted ex parte, unless the judge shall deem it a proper case in which both parties should be heard before granting it. He can then appoint a day for hearing the motion, and require notice of "it to be given by the applicant to the other party. The defendant may then read counter affidavits, even though he has put in an answer denying the whole merits of the petition. The answer in such a case is only used as an affidavit. Florence v. Bates, 2 Code Rep. 110. The plaintiff will be permitted to put in affidavits in reply to such new matter. Ibid; 2 Paige Ch. Rep. 365; 9 do. 604. Oedee OF Injunotioit. Sec. 243. The order of injunction shall be addressed to the party ^joined; shall state the injunction; be issued by the clerk, and served by the sheriff. But where. the injunction is granted before summons issues, nc order of injunction need be issued; it shall be 'sufficient for the clerk to indorse on the summons "injunction allowed." Nor is it necessary to issue the order when the party has had notice that it was to be applied for. £XV.] INJUNCTIONS. 443 Order of Injunction. Breach of Injunction. Sec. 244. When the injunction is allowed during the litigation, and without notice, the order must be issued, and it shall be served by the sheriff as a summons is directed to be served, and returned without delay. Sec. 246. When the undertaking is executed, and the party has notice of an injunction, it is binding on him. It binds no one but those who are parties to the suit. Watson et al. v. Fuller et al., 9 Pr, Rep. 425; 1 Mad. Ch. Pr. 176. From this time, the parties are in contempt if they disobey the injunction. Sec. 246. When a court has refused an injunction on the merits, no judge can grant it; and when a judge of the Common Pleas has refused it, a probate judge can not grant it. Indeed, a probate judge can grant an injunction only while there is no judge of the Court of Common Pleas in his county. An attorney, who should apply to a probate judge, after an injunction had been refused by a judge of the Common Pleas, would be guilty of malpractice, and deserve to be disbarred. Breach of Injunction. Sec. 347. Breaches of injunctions are punishable as contempts, whether granted by a single judge or th« court. The party may be fined as high as $200 for use of the county, to make restitution to the party injured, and be required to give security to obey the injunction. The making of restitution means, of course, the restoring to the other party anything that may have been in his possession under the injunction. The party also may be imprisoned until he complies with the orders. It is said a single judge in vacation may do all this. I do not believe a word of it. What ! can a judgment of $200 be rendered against a party out of court, and he imprisoned if he does not obey — does not pay it? This is a judicial matter, on the hearing of which the party is entitled to his day in court. In New York, the courts are always open in legal con- templation, and terms are nothing more than occasions when the judges will be in, and hear any matter ready to be heard. This is also the theory of the English courts. But it never was law in Ohio. When the term is, closed, there is no longer a court in session, in contemplation of law; there is now but a clerk's office, in which papers can be filed and issues made up; no judicial act can be done, no judgment can be rendered. While in New York, judgments are rendered on default between terms, just as much as though the court was in session, as in legal contemplation it is. The clerk keeps the journals, and hence can enter all orders made in vacation as well as in term time. In Ohio, no journal is valid unless signed by the judge. Ui INJUNCTIONS. [CHAI Breach of Injunction. Our whole system is unlike that of New York, and hence some of tht pro- visions of the code are wholly inapplicable, and can not be carried out. This is one of them. Sec. 248. The defendant may, at any time before judgment, on reason- able notice to the plaintiff, move the court for additional security. The code seems to allow but two grounds: First, That the security have moved out of the State; Secondly, That it is insufficient. What if the undertaking is for too small an amount ? Is there no way of correcting this error ? The granting of an injunction is almost always ex parte; and it will often happen that the amouut of security will be too low. It is believed the court can require security in a larger amount, or, if not given, dissolve the injunction. So again, what does the word security mean ? Suppose there is more than one, can no new security be required unless all have removed ? Its literal meaning would seem to imply that; but it is too absurd to be adopted. If one has removed and the others are not sufficient, new security should be required. To show the nice technicality of the practice in New York, which seems to have been adopted by our code makers with all its absurdities, in adopting the New York code without seemingly understanding New York practice, the cases in that State may be usefully referred to. On motion to vacate an injuction order granted without notice, founded on notice and upon the complaint, the affidavit upon which the injunction was granted, a copy of the injunction order, a copy of the affidavit of plaintiff, and copies of the pleadings, the moving parties must furnish proof of suit commenced, and the issuing of the injunction, the identity of the papers produced, and that the'injunction was obtained without notice. Os- burn V. Lobdell, 2 Code Rep. 77. However, in Newbury v. Newbury, 6 Pr. Rep. 182, on a motion to vacate an injunction order, a preliminary objection was made, on the ground that it did not appear that any action had been commenced. The notice of motion, entitled in the action, stated that the motion would be founded . on a copy of the injunction and papers served therewith. But, per Grid- ley, J., " I see no greater reason for an affidavit that an action is pending in this case, than in a motion made on the pleadings. On a motion to be heard on the pleadings, it is never necessary to serve copies on any of the parties to the action; it is only when a motion is made against a person who is not a party to the action, that it is necessary to serve copies of the plead- ings. I am of the opinion, notwithstanding the case of Osburn v. Lobdell, 2 Code Rep. 77, that the notice of the motion and proof of the service are XXV.J DSrjUNOTIONS. 445 Evidence in Dissolution. enough, in the first instance to entitle the opposite party to read the papers served on him." This whole nicety grows out of the fact that in New York, the writ is issued and signed by the attorney of the plaintiflF, the pleadings are kept in his office, copies being served on the opposite parties, and the case never goes into court at all, is never on the docket, until prepared for judgment on a default, or for trial on an issue. Hence there is no record of the case in court, of which the court can take judicial notice. Our practice requires every step in a case to be taken in court, and each party is bound to take notice of all that transpires there after the defendant has been once served with a summons. This New Yotk practice adopted in our code, can not here be carried out, or must be greatly, modified to render it adapted to the widely difierent organization of our courts. What can be sead as a motion to dissolvs? * The answer .of the defendant can not be void, if sworn to in the usual .'orm. It is sworn to only according to one's belief; whereas any evidence received on the hearing of s'uch a motion must be positively sworn to. Such were the decisions in New York under the code of 1848, which, like our code, required a verification only to the effect that the party believed it to be true, Benson v. Fash, 1 Code Rep. 50; Roome v. Webb, 1 do. 114; 3 Pr. Rep. 327. But where a special affidavit is attached, wherein the de- fendant swears positively to the facts in the answer, the answer may be used as an affidavit on the motion to dissolve. Krom v. Hogan, 4 Pr. Rep. 225; Shoemaker v. Ref. Dutch Church, 5 Pr. Rep. 268; Minor v. Terry, 6 do. 210. Still, as the code now declares the effect of the affidavit, it may be doubtful whether the affidavit can have any greater effect than the code givesit. And more especially is this the case, if section 106, Swan's St. 719, Sec. 690, is to be construed, as some claim, that perjury can not be assigned on the affidavit to an answer. Under the present practice, a motion to dissolve an injunction may be made and opposed, upon affidavits of any number of witnesses; it therefore becomes a matter of judicial discretion, upon balancing the evidence ad- duced, to dissolve it or not. Minor v. Terry, 6 Pr. Rep. 211. Under the old system, a responsive answer, positively sworn to, where there were no suspicious circumstances, entitled the defendant to a dissolution of the in- junction. 1 John. Ch. Rep. 211; 2 do. 202; 4 do. 26; 4 Paige 111; 1 do. 164. And this notwithstanding the plaintiff might have witnesses to prove the equity of his bill. Under the present practice, where the motion 446 INJUNCTIONS. [uHAP. Former Practice. is made on affidavits, aud may be opposed on affidavits of any number of witnesses, it becomes a matter of judicial discretion, either to dissolve the injunction or not. It may, however, be laid down as a general rule, that where the plaintiflf has an opportunity to answer the affidavits produced on the part of the defendant by the affidavits of his witnesses, as well as his own, and fails to make a successful answer to the motion, the balance of the evi- dence being- decidedly in favor of the defendant, the motion to dissolve will be granted. A party in contempt for violating an injunction will not be permitted to make a motion to dissolve it; but he 'is not in contempt until found so by an adjudication on an attachment for it. The fact of a breach of an in- junction can not be tried on a motion to dissolve. Smith v. Austin, 1 Code Eep. N. S. 135; Smith v. Reno, 6 Pr. Kep. 124. A want of due diligence in prosecuting the action is a cause for dissolv- ing an injunction. De Payster v. Graves, 2 John. Ch. Rep. 204; Higgins V. Woodward, Hopk. Ch. Rep. 342; Seebor v. Hess, 5 Paige Ch. Rep. 86. But this rule applies only to the parties served. 5 Paige 85. An injunction will not be dissolved for any defect in the undertaking filed by the plaintiflf to obtain the same. Williams v. Hall, 1 Bland. Ch. Rep. 194. A motion to dissolve can not be renewed unless leave be reserved, or some new ground arise. Hoflfman v. Livingston 1 John. Ch. Rep. 211. FoBMiiK Peactiox. According to the practice prior to the code, an injunction would not be dissolved on the coming in of the answer, unless the defendant positively denied all the equity of the bill. A denial upon information and belief was not sufficient. Ward v. Van Bokkelin, 1 Paige Ch. Rep. 100;- Ap- thorpe V. Comstock, Hopk. Rep. 148; Wakeman v. Gillespy, 6 Paige Ch. Rep. 112. When the answer did not deny the facts charged in the bill positively and fully, although the denial was as full as could be given by the party under the circumstances, the injunction would not be dissolved. Roberts v. Anderson, 2 John. Ch. Rep. 204. If denied fully and posi- tively, yet the court might decline to dissolve the injunction, if there were any suspicious circumstances in the answer of the defendant, as that his statements were incredible, or contradictory. Bank of Monroe v. Scher- merhorn, 1 Clark Rep. 303; Williams v. Hall, 1 Bland. Ch. Rep. 195; Tony V. Oliver, 1 do. 199; Rogers v. Rogers, 1 Paige Ch. Rep. 426; Ev- erly v. Rice, 3 Green Ch. Rep. 663; Walk. Ch. Rep. 90. XXV.] INJUNCTIONS. 447 Former Practice. On a motion to dissolve an injunction, matter of avoidance set up in the answer can not be taken into consideration. Salmon v. Clagett, 3. Bland. Ch. Eep. 126; Lyerly v. Wheeler, 3 Iredell Ch. Rep. 170; Nelson V. Owen, 3 do. 175. The answer of a corporation, being only under the seal of the corpora- tion, and not under oath, an injunction will not be dissolved on its coming in, though it denies the whole equity of the bill. It must first be sworn to by some one who knows the facts. Fulton Bank v. N. Y. and S. Canal Co., 1 Paige Ch. Rep. 311. Where there are several defendants, the answers of all must be perfected before an application could be made to dissolve. Noble v. Wilson, 1 Paige Ch. Rep. 164. If a part only apply, it can be dissolved as to them only. Teller v. Van Deusen, 3 Paige Ch. Rep. 33. It is said, however, in Rogers V. Hosack, 18 Wend. Rep. 319, that if one defendant answers positively as to all the facts upon which the injunction rests, it may be dissolved as to all. Sed quere? If the other defendants are out of the State, this may be ground for acting on the answer of a part of the defendants. Coleman V. Gage, 1 Clark Ch. Rep. 296. Vide 3 Green Ch. Rep. 446; 1 Bland Ch. Rep. 177; 3 do. 606; Breese Rep. 136. Under the present practice, where it is heard on the evidence embodied in affidavits, it would seem that the court should dissolve the injunction as to all, where the evidence on a motion by one shows that no injunction ean be sustained. Sec. 240. Each party may read affidavits on the hearing of an applica- tion for an injunction. The affidavits must be filed. Sec. 246. Motions may be made at any time before trial, to disssolve an injunction granted without notice. The motion may be made before the court, or any judge thereof in vacation. So also the injunction may, on motion, be modified. Notice of the ipplication must be given to the other party a reasonaljle time before the hearing. The order, of the judge must be returned to the clerk of the court, and recorded and obeyed. This motion to dissolve may be made on two grounds: 1. That the petition and original affidavits did not justify the issue. On this motion, no additional affidavits can be presented by the plaintiff. He must abide by the case he first made. Hence it is important to make a certain case in the first instance. 2. The defendant may dispute the truth of the case made in the peti- tion and affidavits. To do this, he must take counter affidavits; and that 29 448 rajuNOTioNS. [chap. Forma. lets in the other party to do the same. If this ground is to be taken, the notice must specify that affidavits will be read on the hearing of the mo- tion. See chapter on motions, Sec. 505, Swan's St. 688. An injunction should not be dissolved until a hearing of the whole case can be had, except in a clear case. In a doubtful case, it should be allowed to remain unless the injured party will suffer by its continuance more than the other by its dissolution. It is wholly a matter of discretion. Seo. 252. A defendant may obtain an injunction upon an answer in the nature of a counterclaim, and he shall proceed in the same manner as a plaintiff is required to proceed. In all cases where a court of equity would formerly have granted an injunction to stay proceedings at law, the facts which would have justified the injunction will now constitute a coun- terclaim which will defeat the suit. As an example: plaintiff claims to recover real estate; the defendant sets up a contract of purchase, and asks for a specific performance. If he succeeds on this counterclaim, he will not only defeat the action of the plaintiff, but obtain positive relief in the shape of a decree for a conveyance. There are other cases of a like char- acter which may occur. This, of course, must depend upon the construction to be given to the code. This question is discussed elsewhere; and from that discussion, it is doubtful whether such a matter can be set up as a defense or counter- claim. A cross-petition may be filed, and execution stayed until the case is heard in its equitable aspects. FORMS. AFFIDAVITS IN SUPPORT OP PETITION FOR INJUNCTION. A B, plaintiff, 1 County, ss V. > C D, defendant. \ Court of Common Pleas. And the said A B, plaintiff, being first duly sworn, deposeth and saith, in support of his motion for an injunction in this case: {here set forth the evidence or facts which tend to show or prove the averment of the petition on which you rely for the injunction. If the ground is waste, state what facts exist, proving the commission of the- waste. If for a nuisance, embody the XXV.] • mjuNOTioNs. 449 Forms. facts which prove the nuisance and the injury the plaintiff sustains. Each witness must swear only to what he knows; and hence several affidavits may be necessary to prove up a case for an injunction. The affidavits under this ■practice lead to a preliminary trial of the case on the evidence; but this evidence is presented in the form of affidavits, instead of depositions or oral testimony;) and further he saith not. Signed in my presence, and sworn to before me, this day of , A. D. 18 . Q R, Justice of the Peace. And E F, of lawful age, being duly sworn, also deposeth and saith that, (here embody his evidence as in a deposition;) and further he saith not. And so proceed till all the affidavits are prepared. Then the .party is prepared to present his case to the judge, and ask for the allowance. The plaintiff should be sure he has a good case on the petition, and his own affidavits; or he will be met with a motion to dissolve on the case presented by himself, and then no additional affidavits can be received, however much testimony may exist to prove the case. This is the New York practice, and it requires an absurd amount of writing, which in New York is all paid for by fees, and hence at least worth something to the .attorneys; but in Ohio, it is so much labor for no earthly use whatever. If our codifiers had understood the real practice of New York, there would have been less ground for objections to the code; at least, our codifiers would not have retrograded, instead of advancing, in iinproving the practice. Our present practice is much more difficult than the old, arising from this very reason — the introduction of a bad practice from New York. a. APPLICATIONS FOE INJUNCTIONS. On application of the said A B, plaintiff, for an injunction, and upon producing "his petition, duly verified, and it appearing to me that the said C D, defendant, ought to have notice of this application before the same is granted, I, S N, one of the judges of said court, do hereby order that the said A B, plaintiff, do notify the said C D, defendant, that he has applied to the undersigned judge for an injunction in this case, and that the same is fixed for hearing at my office in , on the day of next, at 10 o'clock, A. M. cf said day; and it is further ordered that the said C D, defendant, be n^eantime restrained, by the injunotion.of this court, from (here state what he is enjoined from doing,) 450 mjuNonoira. [chap. Porras. and that the said A B, plaintiff^ notify the said C D, defendant, of this order more than days before the hearing thereof. Ordered this day of , A. D. 18 . S N, Judge. And now, on the said day of , A. D. 18 , at my office in , conies as well the said A B, plaintiff, as the said C D, defendant, and thereupon the said motion of the said A B, plaintiff, came on to be heard; and, after hearing the evidence adduced, and the argu- ■ ments of counsel, it is considered and ordered that an injunction issue in this case, as prayed for in said petition, to restrain the said C D, defendant, from {here state whai he is forbid from doing;) and it is further ordered that said injunction be issued by the clerk of said court, on the said plain- tiff's giving an undertaking to the said defendant, with security, to the acceptance of the clerk, in the sum of $ If defendant does not appear, instead of stating his appearance, say— ■ "and it appearing that due notice of this motion has been given to the said C D, defendant, according to the previous order made in this case." 3. ENTRIES IN COURT. On motion of the said A B, plaintiff, by E F, his attorney, it is ordered that he cause notice to be given to the said C D, defendant, that said mo- tion is set for hearing on next; and it is further ordered that the said notice be given to the said C D, defendant, at least one day before the day appointed for the hearing of said motion. And now comes as well the said A B, plaintiff, as the said C D, de- fendant, and thereupon the said motion came on to be heard; on consider- ation whereof it i& ordered that an injunction issue in this case against the said C D, defendant, as prayed for in said petition, on the said plaintiff's giving his undertaking to the said C D, defendant, to the acceptance of the clerk of this court, in the sum of $ Where the defendant does not appear, the entry will be as follows : And now comes the said A B, plaintiff, and thereupon his said motion came on to be heard; on consideration whereof, and it appearing that due notice has been given to the said C D, defendant, according to the former order of this court, of the time of the hearing of said motion, it. is ordered XXV.] rajuNOTioNs. 451 Foi-ms. that an injunction issue in this case against the said C D, defendant, as prayed for in said petition, on the said plaintiff's giving his undertaking to the said C D, defendant, to the acceptance of/ the clerk of this court, in the sum of $ 4. tTNDERTAKING. Whereas A B has obtained. an order of injunction against C D, in an action pending in the Court of Common Pleas, within and for the county of , wherein the said A B is plaintiff, and the said D is defendant, on his giving an undertaking to the said C D in the sum of $ ; Now therefore we , and , hereby undertake to the said C D, in the sum of $ , that the said A B shall pay to the said C D all damages which he, the said C D, may sustain by reason of the issuing of said injunction, if it should be finally decided that the said injunction ought not to have been granted. Dated, etc. I approve of the said undertaking and the securities thereto, this day of , A. D. 18 . L M, Clerk. 8. ORDER OF INJUNCTION. The State of Ohio, County, ss.) To C D. f To the Sheriff of County, Greeting: You are hereby notified and warned that A B, plaintiff, has this day duly obtained an order of injunction in an action pending in the Court of Common Pleas for the said county of , wherein he is plaintiff, and you are defendant, and has given an undertaking according to law. This is therefore to command you (here set forth the act which he is restrained from doing, as it is stated in the petition and prayer thereof;) and this you will in no wise omit to do under the penalty of the law. Witness my hand and the seal of said court, at , this day of , A. D. 18 . t t. /ii i •' J D, Clerk. This order does not issue, unless granted after the summons js issued. If the order is granted before summons issues, the clerk will simply indorse on the summons, "An injunction has been allowed in this action," and sign, "Attest, J D, Clerk." The defendant then takes notice of what the injunction is at his peril. He must go and ascertain its extent from the record. 452 INJUNCTIONS. [chap. Foiins. 6. APFIDATITS FOE AN ATTACHMENT. And the said A B, plaintiflF, being first duly sworn, deposeth and saith that the said C D, defendant, has disobeyed the injunction heretofore granted in this action, in this, [here state the facts which constitute a violation of the order of the court;) and further he saith not. Signed in my presence, and sworn to before me, this day of , A. D. 18 . X Z, Justice of the Peace. And E F also came, and being first duly sworn, deposeth and saith, {here set forth what he knows;) and further he saith not. Add the certificate of the ofiBicer of its being sworn to as in the last, and add as many more as are needed to prove the act of disobedience. Copies of these affidavits must be served on the defendant, as well as a notice that an application will be made at the time and place stated, for an attachment against the defendant, for a violation of the injunction here- tofore granted. Vide 2 Har. Pr. 268; Newland's Pr. 101; Angerstein v. Hunt, 6 Ves. Jr., 488; Schoonmaker v. Gillett, 3 John. Ch. Rep. 311. 7. NOTIOB OF AN APPLICATION FOE AN ATTACHMENT. The said D defendant is hereby notified that the said plaintiflf will apply to the said Court of Common Pleas, in the said county of , on the first day of the next term thereof, or as soon thereafter as he can be heard, (or to the Hon. H C W, one of the judges of said court, at his oflSca in , in the county of , on the day of , A. D. 18 , at 10 o'clock, A. M.,) for an attachment against the said defendant, for a violation of the injunction heretofore granted in this action; and he will support said application on affidavits, copies of which are herewith delivered. Dated, etc. AB. 8. AFFIDAVIT OF SEBVIOB. I, W H, being duly swotn, depose and say that I did, on the day of , A. p. 18 , deliver to the said C D a copy of the XXV.] INJUNC^ONB. 453 Forms. above notice, and of the affidavits hereto attached; and further he saith not. .rjp- „ Signed in my presence, and sworn to before me, this day of A. D. 18 . Given under my hand at L M, Justice of the Peace. 9. OKDKE OP ATTACHMENT MADE IN 00T7KT. On motion of the said A B, by E F, his attorney, founded upon affi- davits produced, and it appearing to the court that the said C D has been guilty of a breach of the injunction of this court heretofore granted in this cause, it is ordered that an attachment issue in this action, against the said C D, to the sheriff of this county, commanding him to attach the said C D for this his contempt, and to have him forthwith, (or by the first day of the next term of this court,) before this court to answer for the said contempt. 10. ORDBK ISSUED BY A JUDGE AT OHAMBBES. On motion of the said A B, by E F, his attorney, founded upon affi- davits adduced, and it appearing to the said judge that the said C D has been guilty of a breach of the injunction heretofore granted in this action; it is therefore ordered that the ( lerk of said court issue to the sheriflF of said county an attachment against the said C D, commanding the said sheriflF to attach the said C D for this his contempt, and have him before the said court o the first day of the next term thereof. Donethis day of A. D. 18 . X L, Judge. 11. ATTAOHMBNT. The State of Ohio, County, ss. To the Sheriff of said County, Greeting: You are hereby commanded to attach the body of C D, and have him forthwith before the Court of Common Pleas, for said county of , now in session at the court house in , to answer unto the State of Ohio, for a certain contempt alleged against him, in being guilty of the breach of an injunction heretofore granted and issued against him, in a cause now pending in said court, wherein one A B is plaintiff, and the said C D is defendant; and of this writ, and your proceedings thereon, make due return. Witness my hand, and the seal of said court, this day of ,A. D. 18 . L M, Clerk, 454 INJIJNOnOlIS. [OHAF. Forma. If the writ is not made returnable forthwith, the word "forthwith" must be left out, and for the words "now in session at the court house in ," insert the following, "on the first day of the next term thereof." The sheriff's return will be the same as on a capias. He can take bail. Morris v. Maroy et al., 4 Ohio Rep. 83. 12. JUDGMENT ON ATTACHMENT. And now came the said State of Ohio, by , Prosecuting Attorney, and the said C D was brought to the bar of the court in custody of the sheriff, (or appeared in accordance with' his undertaking of bail to the sheriff,) and was duly examined touching his said contempt; and it appearing to the court," from said examination and the evidence, that the said C D is guilty of the said contempt so alleged against him; it is there- fore ordered that the said C D pay a fine of $ , for the use of the county, for this his contempt; and further, that he enter into an under- taking to the said A B in the sum of $ , with good security, to the acceptance of the clerk, that he will obey said injunction, and that he, the said C D, do, forthwith, deliver to the said A B the possession of , (any property or thing which he has got hold of in violation of theinjunction, ) and in default thereof that the said O D stand committed to the sheriff of said county, to_ be kept in close custody until he shall fully comply with this order, and pay the costs of this proceeding, or be otherwise legally dis- charged. 13. UNDERTAKING ON S IT H OBDER. Whereas C D has been ordered by the Court of Common Pleas, for the county of , on a proceeding for a contempt, for the breach of an injunction heretofore granted against him, in the case of A B, plaintiff, against the said C D, defendant, now pending in said court, (or lately pending in said court, in case it was for the violation of a final and perpet- ual injunction in the case,) to. enter into an undertaking to the said A B, in the sum of $ ; Now we, and , do hereby undertake to the said A B, in the sum of $ , that the said C D shall obey said injunc- tion so as aforesaid granted. Dated, etc. I accept the said undertaking and security, this day of , A. D. 18 . L M, Clerk. XXV.J INJUN0TI0N8. 455 Forms. Section 247 speaks of giving further security to obey the injunction. The act nowhere requires a defendant to give security until he has violated *n injunction. 14. NOTICE BT DEFENDANT TO PLAINTIPP FOR FUETHEE SEOUErTT. You are hereby notified that I shall, at the next term of the said Court of Common Pleas, for said county of , move said court for addi- tional security on granting of the injunction in this cause, and said motion will be heard on affidavits. Dated this day of , A. D. 18 . C D, defendant. 15. MOTION FOE FUETHEE SEOTTEITT. And now comes the said C D, and moves the court here for additional security in this cause, for the following reasons: 1. That the amount of said undertaking is not enough to indemr/fy the said defendant for the damages he may sustain by reason of the grant- ing of said injunction. 2. That one L M, a surety on said undertaking, has removed from the State, and the others are not sufficient security for the said sum of $ 3. That the sureties on said undertaking are not sufficient for the amount thereof. 16. OEDEB ON HEAEINO. And now came as well the said C D, by , his attorney, and the said A B, by , his attorney; and thereupon the motion of the said C D came on to be heard upon testimony; on considera- tion whereof, the court do find that the amount of said undertaking is not of an amount sufficient to secure the said defendant against his probable damages, if said injunction should be dissolved as improperly granted; (or that L M, one of the sureties on said undertaking has, since its execution, removed from the State, and that the others are not sufficient; or, that the said surety on said undertaking is not sufficient for the sum therein stated;) it is therefore ordered that the said plaintiff give to the said defendant a new undertaking in the sum of $ , with additional surety, to ■ be approved by the clerk, within days, or in default thereof, that the injunction heretofore granted in ihis case stand dissolved and racated. 456 mjuNOTioNs. [chap. Forms. ir. SOTIOE TO PLAINTIFF OP A MOTION TO VACATE AN INJUVOTION. You are hereby notified that I shall fipply on the first day of the next term of said court, or as soon thereafter as I can be heard, (or *o Hon, W V P, one of the judges of said court, at his office in , on the day of next,) to vacate or modify the injunction hereto- fore granted in this action; and that I shall sustain said motion by affida- vits, as well as upon the insufficiency of the petition and affidavits to justify the granting of the same. . C D, defendant. 18. MOTION TO DISOHAKGB OE MODIFY. And the said C D now comes, and moves the court here to dissolve or modify the injunction heretofore granted in this action, for the following reasons: 1. That the facts stated in said petition are not sufficient in law to jus- tify the issuing of the same. 2. That the facts stated in said petition as the grounds asking for said injunction are not true. 3. That if the court should think the said injunction ought to be wholly vacated, then that the same may be modified in the following particulars: (here state the modification desired. ) 19. ORDEKS ON EEAKINO. And now comes as well the said C D, defendant, by , his attorney, and the said A. B, plaintiff, by , his attorney; and the mo- tion of the said C D came on to be heard before the Hon. WV P, one of the judges of said court, (or before said court, ) as well upon the original peti- tion and affidavits as upon additional affidavits produced by the said plain- tiff and defendant; on consideration whereof, I (or the court) do find that the said facts set forth in said petition are not sufficient in law to justify the same; Or, find that the said facts set forth in said petition (and original affi- davits, if any,) are proved to be incorrect and untrue; it is therefore con- sidered that the injunction heretofore issued in this case, be, and the same is hereby vacated. If it is not dissolved, the entry may be, after proceeding to " on exam- ination," as follows: "On consideration whereof, I, (or the court,) do find that the said petition, and the facts therein stated, are sufficient to justify the issue XXV.] INJUNCTIONS. 457 Forms. and continuance of the said injunction until the hearing; it is therefore considered that the motion of the said defendant be, and the same is hereby overruled." If it is modified, let the modification be added immediately after the above form: "But it is further ordered that the said injunction be modified, and so changed as to permit the said defendant, (here state the modification, which must depend on the special facts in each case.)" Final Judgments. 20. injunction dissolved and action dismissed. And now comes as well the said plaintiff a'S the said defendant, and thereupon this action came on for trial before the court upon the issues joined between the parties; on consideration whereof, the court do find that the said defendant, (here state the finding of the court on the issues presented in the pleadings,) was not guilty of the waste and destruction in manner and form as the said plaintiff bach in his said petition declared against him; it is therefore considered that the injunction heretofore granted in this action be and the same is hereby dissolved; and it is further considered that the said defendant recover against the said plaintiff his costs in and about his suit in this behalf expended, taxed to be dollars and cents. al. INJUNCTION MADE PERPETUAL. . And now comes as well the said plaintiff, by his attorney, as the said de- fendant, by his attorney; and thereupon this action came on for trial before the court upon the issues joined between the parties; on consideration whereof, the court do find that the said defendant was guilty of the waste and de- struction in manner and form as the said plaintiff hath in his said petition alleged against him. It is therefore ordered and adjudged that the injunc- tion heretofore granted in this action be, and the same is, hereby made perpetual, and that the said defendant is hereby perpetually enjoined from, (here stale the acts which are charged as waste, or any other act complained of, and from doing which the defendant is to be enjoined;) and it is further considered that the said plaintiff recover against the said defendant his costs in and about his suit in this behalf expended, taxed to be dol- lars and cents. 458 INJUNCTIONS. CHAP. Forms. . The code requires specific issues in a case of e-jTiity as well as in one at law. It also calls the hearing a trial; hence the entry will be that the case came on for trial before the court; and then the court must find a verdict like a jury upon real issues in the case. It is well to state a special finding of the facts, and then render the judgment which such a finding requires. On error, such a record will present all the legal ques- tions involved in the case, save those arising on the admissibility of evi- dence, without a bill of exceptions; and, as the court must necessarily pass upon these issues, it will be but very little trouble to state such finding on the record. Where the petition clearly states the facts, and the exact limits and extent of the injunction asked for, the judgment that the injunction here- tofore granted be made perpetual will be sufiScient; for that will be an injunction against the acts pointed out in the petition; but where the peti- tion is loosely drawn, as is too often the case, or where the injunction finally granted may, in some respects, differ from the one prayed for, the final judgment or decree should find the facts, and specifically state what acts the defendant is enjoined from doing. 2 2. IKJUNOTION AOAINST OBSTETJOTnTG A STREET BT BUILDINO. The court do find that the said street, called in the said petition street, in the said city (or town) of ., is a public highway, for the use of all the good citizens of said city and the public in general, and that'the said plaintiff hath the right to have the same remain open and unobstructed, and the obstruction thereof will prove a special injury to the said plaintiff; it is therefore ordered and adjudged that the said defendant be, and he is hereby, perpetually enjoined from obstructing said street in any wise whatever, and especially from erecting therein, or thereon, the said store house, as is charged in the said petition, or any other structure whatever; and it is further considered that the said plaintiff recover against the said defendant his costs, in and about his suit in this behalf expended, taxed to be $ Vide Corning v. Lowerre, 6 John. Ch. Rep. 439. as. INJUNCTION TO DBLIVBK UP NOTES, ETC. That the said defendant be and is hereby perpetually enjoined from negotiating the said bill of exchange, (or promissory note, etc.,) to any person whatever; and the said defendant is further required and enjoined XXVI.J BECEIVEH. 459 How Appointed. to deliver the same, on reasonable demand, to the said plaintiflF, and in del'ault thereof, the said plaintiff is authorized to apply to the court, atd, CD proof of such demand and refusal, obtain an attachment against the said defendant to compel the execution of this judgment, etc. CHAPTER XXVI. RECEIVERS AND OTHER PROVISIONAL REMEDIES. Sec. 253. A receiver may be appointed by the Supreme Court, the District Court, or by the Courts of Common Pleas, or any judge of either; or in the absence of said judges from the county, by the probate judge thereof. 1. In an action by a vendor to vacate a fraudulent purchase of prop- erty, or by- a creditor to subject any property or fund to his claim, or between' partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured. 2. In an action by a mortgagee for the foreclosure of his mortgage, and sale of the mortgaged property, where it appears tBat the mortgaged property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been performed, and that the prop- erty is probably insufficient to discharge the mortgage debt. 3. After judgment, to carry the judgment into effect. 4. After judgment, to dispose of the property according to the judg- ment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply the property in satisfaction of the judgment. 460 BECEIVEE. [chap. How Appointed. 6. In the cases provided ia this code, and by special statutes, when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights. 6. In all other cases where receivers have heretofore been appointed by the usages of courts of equity. Sec. 264. No party, or attorney, or person interested in an action, shall be appointed receiver therein. Sec. 2fiS. Before entering upon his duties, the receiver must be sworn to perform them faithfully, and, with one or more sureties approved by the court or judge, execute an undertaking to such person and in such sum as the court or judge shall direct, to the effect that he will faithfully dis- charge the duties of receiver in the action, and obey the orders of the court therein. Sec. 256. The receiver has, under the control of the court, power to bring and defend actions in his own name, as receiver, to take and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and generally, to do such acts respecting the property as the court may authorize. Sec. 267. J'unds in the hands of a receiver may be invested upon interest by order of the court; but no such order shall be made, except upon the consent of all the parties to the action. Sec. 268. When it is admitted by the pleading or examination of a party, that he has in his possession, or under his control, any money or other thing capable of defivery, which, being the subject of litigation, is Ijeld by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party, with or without security, subject to the. further direction of the court. Sec. 269. Whenever, in the exercise of its authority, a court shall have ordered the deposit or delivery of money or other thing, and the order is disobeyed, the court, besides punishing the disobedience, as for a contempt, may make an order, requiring the sheriff to take the money or thing, and deposit. or deliver it in conformity with the direction of the court. "The principle upon which the court appoints a receiver and directs the property in controversy to be placed in his hands, pending the litigation, is, that the party applying for a receiver has shown at least a probable in- terest in the property, and that there is danger of its being lost without such protection. The plaintiff charges, upon information and belief only, that the assignee is not the owner of the property, or effects of any description. XXVI.l EEOEIVfiE. 461 How Appointed. sufficient to pay his debts and liabilities. Tliis allegation, undenied, yi ould be sufficient to show that the property was in da,nger, and required the appointment of a receiver. (Connah v. Sedgwick, 1 Barb. Rep. 210, *nd cases there cited.) But the defendant's affidavits satisfactorily show that the plaintiff is mistakcQ in respect lo the- pecuniary condition of the assignee. There is, therefore, no ground for taking the assigned property out of his hands before the rights of the parties are determined by the judgment of the court." Per Harris, J., Goodyear v. Betts & Smith, 7 Pr. B«p. 187. A court of equity will appoint a receiver, whenever it shall be made to appear that the property in regard to which the controversy exists, is in danger. Ladd v. Harvey, 1 Foster's N. H. B«p. 614. It re- quires a strong case to justify the appointment of a receiver. It is a high power, never to be exercised where there exists any other safe or expedient remedy. Speights v. Peters, 9 Gill Rep. 472. It is not necessary that the court, as preliminary to the appointment of a receiver, should be satis- fied that the property is in imminent peril. But where a fund is claimed, and is prima facie the proceeds of a partnership, it is but a provident exer- cise of equity power to place the property under the care of the court. Where a dissolution has taken place, or is intended, if one partner behaves unrighteously against the interests of the other, or carries on trade with the partnership eflFects, on his own account, after the dissolution, or in any other manner excludes his co-partner from that share to which he is entitled in winding up the concern, it presents a case for a receiver. Ibid. A tem- porary or ad interim receiver may not only be appointed before answer, but even before the subpoena has been served, where it is shown that immense danger would ensue, unless the property were taken under the care of the court. Jones v. Dougherty, 10 Geo. Rep. 274. A receiver may be ap- pointed in a creditor's suit.. Weed v. Smull, 3 Sandf. Ch. Rep. 273. A receiver will be appointed where a fraud is shown in the defendant, and the fund is in danger of being wasted or misapplied. Podmore v. Gunning, 5 Simmons Ch. Rep. 486; 1 Barb. Ch. Rep. 664; Hopk. Rep. 429; 3 John. Ch. Rep. 48. So where the defendant is out of the jurisdiction of the court, Gibbons v. Mainwaring, 9 Simmons Ch. Rep. 77; Tanfield v. Irvine, 2 Russ Ch. Rep. 149. A general creditor of insolvent general partners may, on complaint and answer, where the debt is not denied, have an injunction to protect the partnership assets, and a receiver appointed. Dillon I'.'Horn, 6 Pr. Rep. 36. ^, too, in the case of a limited partner- ship; the partnership effects in that case being a trust fund. Innes v. Lan- sing, 7 Paige Ch. Rep. 683. The right to appoint a receiver is maintained on the broad ground that the partnership effects were a trust fund for the benefit of creditors, and that the partners were insolvent. So a receiver 462 EECBIYEE. [chap. Wtotn — and How Appointed. will be appointed to take charge of and conduct the affairs of a corporation, and preserve its effects for creditors and stockholders, where there are no persons authorized to do it. Greenwich Fire Ins. Co., 1 Paige Ch. Rep. 687. So, too, where the officers a-e wasting the property of a bank or other corporation. Vide also Cole v. O'Neil, 3 Md. Ch. Decis. 174; In re CoMn, 3 do. 278. « Who mat be Appointbd? The code seems to settle this by saying who shall not be appointed. No party, or attorney, or person interested in the action can be appointed a receiver. This would seem to imply that all others may be appointed; still the court must exercise its discretion in the selection; it can not appoint any of these parties; it may appoint all others according to its discretion. Formerly a master in chancery could not be a receiver, 6 Ves. Jr., 427; nor a solicitor in the cause, or under a commission of lunacy, 2 Meriv. Bep. 452; nor the next friend of an infant plaintiff, 2 Mod. 64; nor a trustee, 8 "Ves. Jr., 72; 11 do. 363; 16 do. 684; but, on the voluntary dis- solution of a corporation, one of its oflBicers might be appointed. 8 Paige Ch. Rep> 386; 3 Edw. Ch. Rep. 386. But upon proceedings against an insolvent bank, one of its ofi&cers could not be receiver, 1 Paige Ch. Rep. 611; 8 do. 388 How Appointed? He must be appointed on motion ana notice to the adverse parties. But previous notice of such a motion is not necessary, when the counsel for the opposite party are present in court. McLean v. Lafayette Bank, 3 McLean Rep. 603. The motion should state the grounds on which the appointment is asked; so that an issue may be made upon it. The notice must also state whether affidavits in its support are to be used; otherwise, under section 606 of the code, they can not be used. On the motion, the merits are not inquired into. Such motion relates only to the preservation of the property in controversy. 4 Wend. Rep. 173. Affidavits may be presented on both sides, relating solely to the safety of the property in the hands where it is found. The affidavit of the plain- tiff may be sufficient alone, if it states a clear case, and there is no evidence XZVI. I KECETVEK. 468 Duties and Powers. to the contrary, Jones v. Dougherty, 10 Geo. Rep. 274. Under the code, the petition need not pray for the appointment; it is an incident to any and all cases. The Duties and Powers op a Rkoeiyeb. He is the officer of the court, and under its control and discretion. 1 Atkyns Rep. 489; 2 do. 316; Merritt v. Lyon, 16 Wend. Rep. 405. A receiver is an officer of the court, and as such, in the albsenee of legislation, the court has authority to determine his compensation. Magee v. Copper- thwaite, 10 Alab. Bep. 966. He is to take charge of the property, collect debts under the order of the court, and bring suits. He is entitled to the eflFects, in opposition to all persons who have notice of the filing of the bill, even if service has not been made. Weed v. Sqiull, 3 Sandf. Ch. Bep. 273. He can not bring ejectment for real estate without an order of the court; nor could any one bring such an action against him. 1 Ves. Jr. 166; 3 Bro. C. C. 88; 16 Wend. Rep. 410; 9 Ves. Jr. 335. Nor could he make any payment. 1 Ves. Jr. 85. So a sale of land on execution at law, while it is in the hands of a receiver, is void. Wiswell v. Sampson, 14 How. U. S. Bep. 62. Any one, who knowingly interferes with the possession of a receiver, is guilty of a contempt of the court, and liable to be proceeded against as for a contempt. The court will protect its own officers. A receiver has no rights whatever; he is only an officer of the court; his appointment determines no right, and in no way affects the title of the property; his holding is the holding of the court for him from whom the possession is taken, and he has no right to ask for a revision of the order removing him, any more than a stranger to the cause. But as he is ap- pointed on behalf of all parties, and not of the plaintiff, or one defendant only, so when the title to the property has been ascertained, he will be considered as receiver of the party so entitled. In re Colvin, 3 Md. Ch. Decis. 278. So the court will enforce its order removing a receiver, by attachment, if necessary. Ibid. EUicott v. Warford, 4 Md. Rep. 80. He is not subject to the process of punishment. Field v. Jones, 1 1 Geo. Bep. 413. A receiver can only siie in his own name, where the legal title is in himself, or else in the name of the party having title. Newell v. Fiiher, 24 Miss. Bep. 392. 30 464 EECEIVEE. fcHAP. Forms. FORMS. 1. MOTION FOE APPOINTMENT. A. B, plaintifiF, ) County, ss., V. y C D, defendant. ) Court of Common Pleas. And now comes the said A B, by E F, his attorney, and moves the court here for the appointment of a receiver in this action. 1 . Because the property in controversy is in the hands of the said C D, and the said C D is insolvent, and irresponsible for the same. 2. Because this property in dispute is in the hands of one W H, and he is irresponsible. 3. Because the said property is legally in the custody of no one, but is lying in the warehouse of one , who is daily running up charges against the same. 4. Because the said defendant is a non-resident, and the said property will bo lost ualess it is placed in the hands of a receiver. There may be numerous reasons to be assigned; they will depend on the facts of each particular case. If the motion is to a judge, leave out the word "court," and insert, "Hon. H C W, one of the -judges of said court." 4. NOTIOB OP APPLICATION. You are hereby notified that I shall apply to Hon. H C W, one of the judges of said court, (or to the said court on the first day of its next term for said county, or as soon thereafter as said motion can be heard, ) at his office in , on the day of next, at one o'clock, P. M., for the appointment of a receiver in this action, on the ground that, (here state ff round as in motion;) at which time you can be present and object. A B, Plaintiff. 3, OEDER OP APPOINTMENT. And now came as well the said A B, plaintifiF, as the said C D, defend- ant, and thereupon the said motion of the said A B, for the appointment of a receiver in this action, for reasons on file, came on to be heard befow XXVI.] EECBIVEE. 465 Forms. the Hon. HOW, one of the judges of said court, upon the original peti- tion, and the said motion and affidavits; on consideration whereof, it is found that the said property, in said motion mentioned, is in danger of being lost, (make this statement according to the fact, and the wording of the motion;) it is therefore ordered that be, and he is hereby appointed receiver in this action, on his giving an undertaking to , the clerk of this court, (or to any other person whose interests are concerned in the faithful performance of the trust. The undertaYmg is to he to such person and in such sum as the court or judge shall direct,) in the sum of $ , conditioned that the said shall faithfully discharge his duties of such receiver in this action, and obey the orders of the court therein. And thereupon came the said , and entered into an undertaking as aforesaid, with , and , as his sureties, to the acceptance of the court, (or judge;) and thereupon the said was duly svorn faithfully to perform his duties as such receiver; and it is further ordered that the said do proceed forthwith to take possession of such property, as such receiver, and safely keep the same under the orders of this court in this action to be made; and the said C D, and all other persons having any of said property in their possession, or under their control, are hereby required and commanded to deliver the same to the said , as such receiver, on his demand, under the penalty of the law for a contempt, in refusing so to deliver the same. Done this day of , A. D. 18 HOW, Judge. The judge can direct the clerk to receive and approve of the under- taking, and empower the receiver to act only on his filing such an under- taking with the clerk as he shall approve of, and a certificate of his having taken the oath. Where the appointment is made in court, the name of the county and court will, of course, be omitted in the caption, as well as the words which refer to the name of the judge making the order of appointment. Where the defendant does not appear, the entry will need to be a little changed. A receiver may be appointed on the ea; ^arte -application of the plaintiflf before answer, the facts being verified by affidavit. Williams v. , Jenkins, 1 1 Geo. Rep. 595. The entry will then be in the following form: "And now comes the said A B, by E F, his attorney, and thereupon the motion of the said A B, for the appointment of a receiver in this action, came on to be heard uoon the said motion and evidence," etc. 466 . RECEIVER. [chap. Forms. Where notice is necessary, or has been ordered to be given, the order must find the fact that the notice has been given to the defendant. This may be inserted as follows, to come after the last form: "on consideration whereof, and it appearing to the court that due notice of this motion has been given to the said defendant, it is found that," etc. 4. OBDER TO SBEBIFF TO TAKE FBOFEBTT OB MONET NOT DELHrBBED UNDER AS OBDEB. It appearing to the court here, on the evidence of the said , here- tofore appointed a receiver in this case, and others, that one has property in his possession, which, under the former order of this court, he was required to deliver to the said , on demand, and it further appearing that the said has, on demand, refused to deliver the said to the said , receiver, as aforesaid; it is therefore ordered that the sheriff of this county do forthwith proceed and take the said , and deliver the same to the said , in conformity with the former order of this court; and it 19 further ordered that an attach- ment be issued against the said , for his contempt in disobeying the order of this court. A certified copy of this order of delivery is all that the officer wants. He acts under the order, and not under any writ. S. ATTAOHMENI. The State of Ohio, County, ss. To the Sherifi' of County, Greeting: You are hereby commanded to attach the body of , late of said county, and forthwith have him beforei this court, now in session at the court house in , to answer unto the State of Ohio for a contempt, in not delivering certain property to , receiver, in accordance with an order heretofore made in a certain case now pending in the said Court of Common Pleas for said coimty, wherein A B is plaintiff, and C D is defendant; and of this writ, and your proceedings thereon, make due return. Witness my hand, and the seal of said court at , tliis day of , A. D. 18 . J D, Clerk. xxn.] iiEOEivER. 467 Forms. 6. SHERIFF'S RETURS'. As commanded by this writ, I have attached the body of the within named and have him here in court to answer according to law. Dated, etc. X Y, Sheriff. If the attachment was returnable at a term to come, the sheriff may take bail, and then, instead of saying he has the body in court, he will say, "and thereupon the said gave bail for his appearing in the sum of $ , with , as his sureties, which undertaking of bail is herewith returned." 7. ORDEK ON HEABINO OF AN ATIAOEMENT. And now came as well , who prosecutes on behalf of the said State, as the said , in his own proper person; and there- upon the said was examined under oath touching his said contempt; on consideration whereof the court do find that the said was guilty of a contempt, in disobeying the order made in the said case of A B against C D; it is therefore considered that the said pay a fine of $ , fot this his contempt, and pay the costs of this attachment, 8. ORDER TO RECEIVER TO STTE. On motion of the said A B, by , his attorney, and it appear- ing from the report of the said , receiver in this action, that one E F is indebted by note to the said C D, and refuses to pay the same; it is therefore ordered that the said receiver bring an action against the said E F, in his own name, as such receiver, to recover the amount of said claim. CHAPTER XXYII. EVIDENCE. 1. COMPETENOT OF WITNESSES. Seo. 310. No person shall be disqualified as a witness, in ary civil action or proceeding, by reason of his interest in the event of the same, as a party or other- vfise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility. Seo. 311. Nothing in the preceding section contained, shall in any manner afifect the laws, now existing, relating to the settlement of estates of deceased persons, infants, idiots, or lunatics, or the attestation of the execution of last wills and testaments ; or of conveyances of real estate, or of any other instru- ment required by law to be attested. Seo. 312. Any party to a civil action or proceeding may compel any adverse party, or person for whose benefit such action or proceeding is instituted, pro- secuted, or defended, at the trial or by deposition, to testify as a witness in the same manner, and subject to the same rules as other witnesses. Seo. 313. No party shall be allowed to testify by virtue of section three hundred and ten, when the adverse party is the guardian of an idiot, or a lunatic, or of a deaf and dumb person, or the executor or administrator of a deceased person, or the guardian of a child or children of a deceased person, when the facts to be proved transpired before the death of such deceased per- sons, except in suits upon contracts which shall have been entered into by de- ceased persons, by agents, in which cases, if the agent be a witness, the opposite party may testify as to all that transpired between such party and the agent in relation to such contract, and the making of the same ; excepting, alSo, cases where the claim or defense is founded on boolc account, when the party shall be permitted to testify that the entries are in his handwriting, that the book containing the same is his book of original entries, and if the original entries iu said bookof accounts have been made by a person who at the time of such trial is deceased, or a disinterested person, who is a. nonresident of the state, on proof of such decease or nonresidence, and that said entries are in the hand- writing of such person, or such proof by the party as hereinbefore provided, then it shall be competent to admit said book of original entries as evidence, the weight to be given to such evidence in either case, however, being left to the court or jury to determine; and in all actions by or against a surviving partner, or partners, or a surviving joint contractor or contractors, any party to the action shall be incompetent as a witness to testify to transactions which took place with, or declarations or admissions made by the deceased partner or joint contractor, in the absence of his surviving partner or joint contractor. The deposition of a party shall not be used in his own behalf, unless th0 legal (468) XXVII EVIDENCE. 469 Competency of Witnesses, Means of Producing Witnesses. notice required in the cases where depositions are to be taken shall also specify that the deposition to be taken is that of the party'; provided, that if the deposi- tion of a party be taken in any pending suit, and such party shall die before the trial thereof, it shall be lawful for the opposite party to testify as to all mat- ters contained in said deposition. Sec. 314. The following persons shall be incompetent to testify : 1st. Per- sons who are of unsound mind at the Ume of their production for examination. 2d. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. 3d. Husband and wife, for or against each other or concerning any communication made by one to the other, during the marriage, whether called as a witness while that relation subsisted or afterward, except in actions where , the wife, were she a, feme sole, would be plaintiff or defendant; in which action the wife may testify. Either the husband or wife may testify, but not both. 4th. An attorney, concerning any communication made to him by his client, in that relation, or his advice thereon, without the client's consent 5th. A clergyman or priest, concerning any confession made to him in his professional character, in the course of discipline enjoined by the church to which he be- longs, without the consent of the person making the confession. 6th. No per- son who would if a party be incompetent to testify under the provisions of sec. tion 313, shall become competent by reason of an assignment of his claim. It has been held, in the seventh district court, that a wife may be a witness, where she is a party to the suit with her husband. This provision applies only to cases where the wife is offered as a mere witness, and is not a party to the action. Where she is a party, she can, in all cases, be examined as any other party, as she is, in such a case, a witness for herself and not for her husband. Seo. 315.- If a person offer himself as a witness, that is to be deemed a con- sent to the examination also of an attorney, clergyman or priest, on the same fiubject, within the meaning of the last two subdivisions of the preceding sec- tion. II. Means op Produoino Witnessks. Seo. 316. The clerks of the several courts and judges of the probate courts shall, on application of any person having a cause or any matter pendino' in court, issue a subpoena for witnesses under the seal of the court, inserting all the names required by the applicant in one subpoena, which may be served by the sheriff, coroner, or any constable of the county, or by the party or any other person. When a subpoena is not served by the sheriff, coroner or con- stable, proof of service shall be shown by affidavit ; but no costs of serving the same shall be allowed, except when served by an officer. Seo. 317. The subpoena shall be directed to the person therein named, requiring him to attend at a particular time and place, to testify as a wit- «Seenote JK, p. 804. 470 EVIDENCE. [OHIP. Means of Producing Witnesses. ness, and it may contain a clause directing the witness to bring with him any book, writing, or other thing under his control which he is bound by law to produce as evidence. Sec. 318. When the attendance of the witness before any officer au- thorized to take depositions is Required, the subpoena shall be. issued by such officer. Sko. 319. The subpcEna shall be served either by reading, or by copy, delivered to the witness, oi; left at his usual place of residence; but such copy need not contain the name of any other witness. Sec. 320. ,A witness shall not be obliged to attend for examination on the trial of a civil action, except in the county of his residence, nor to attend to give his deposition out of the county where he resides, or where he may be when *he subpoena is served upon him. Sec. 321. A witness may demand his traveling fees, and fee for one day's attendance, when the subpoena is served upon him, and if the same be not paid, the witness shall not be obliged to obey the subpoena. The fact of such demand and non-payment shall be stated in the return. Sec. 322. Disobedience of a subpoena, or a refusal to be sworn or to answer as a witness, or to subscribe a deposition, when lawfully ordered, may be punished as a contempt of the court or officer, by whom bis attendance or testimony is required. Sec. 323. When a witness fails to attend in obedience to a subpoena, (except in case of a demand and failure to pay his fees,) the court or officer before whom his attendance is required, may issue an attachment to the sheriflF, coroner, or constable of the county, commanding him to arrest and bring the person therein named, before the court or officer, at a time and place to be fixed in the attachment, to give his testimony and answer for the contempt. If the attachment be not for immediately bringing the witness before the court or officer, a sum may be. fixed in which the witness may give an undertaking with surety for his appearance. Such sum shall be indorsed on the back of the attachment; and if no sum is so fixed and indorsed, it shall be one hundred dollars. If the witness be not personally served, the court may, by a rule, order him to show cause why an attachment should not issue against him. Sec. 324. The punishment for the contempt mentioned in section three hundred and twenty-two shall be as follows: When the witness fails to attend in obedience to the subpoena, (except in case of a demand and failure to pay his fees, ) the court or officer may fine the witness in a sum not exceeding fifty dollars. In other cases, the court or officer may fine the witness, in a sum not exceeding fifty nor less than five dollars, or may imprison him in the county jail, there to remain until he shall submit to XXVn.] EVIDENCE. 471 Means of Producing Witnesses. be sworn, testify, or give his deposition. The fine imposed by the court sliall be paid into the county treasury, and that imposed by the officet* shall be for the use of the party for whom the witness was subpoenaed.. The witness shall, also, be liable to the party injured, for any damages occasioned by his failure to attend, or his refusal to be sworn, testify, or give his deposition. Sec. 326. A witness so imprisoned by an officer before whom his depo- sition is being taken, may apply to a judge of the Supreme Court, Court of Common Pleas, or Probate Court, who shall have power to discharge him, if it appear that his imprisonment is illegal. Sec. .326. Every attachment for the arrest, or order of commitment to prison of a witness, by a court or officer, pursuant to this chapter, must be under the seal of the court or officer, if he have an official seal, and must specify particularly the cause of the arrest or commitment; and if the commitment be for refusing to answer a question, such question mnst be stated in the order. Such order of commitment may be directed to the sheriff, coroner, or any constable of the county where such witness resides, or may be at the time, and shall be executed by committing him to the jail of such county and delivering a copy of the order to the jailer. Seo. 327. A person confined in any prison in this State, may, by order of any court of record, be required to be produced for oral examination in the county where he is imprisoned; but in all other cases his examina- tion must be by deposition. Sec. 328. While a prisoner's deposition is-being taken, he shall remain in the custody of the officer having him in charge, who shall afford rea- sonable facilities for the taking of the deposition. Sec. 329. A witness shall not be liable to be sued in a county in which he does not reside, by being served with a summons in such county, while going, returning, or attending in obedience to a subpoena. Sec. 330. At the commencement of each day after the first day, a witness may demand his fees for that day's attendance in obedience to a subpoena, and if the same be not paid, he shall not be required to remain. Sec. 331. Before testifying, the witness shall be sworn to testify the truth, the whole truth, and nothing but the truth. The mode of adminis- tering an oath, shall be such as is most binding upon the conscience of tho witness. 472 EVIDENCE. CHAP Hode of Taking Testimony. Affidavit. Depositions — When to be Used. III. Mods or Takimo Tesiimont of Witnesses. Seo. 332. The testimony of witnesses is taken it. three modes: 1. By aflSdavit. 2. By deposition. 3. By oral examination. Sec. 333. An affidavit is a ■vrritten declaration under oath, made with- out notice to the adverse party. Sec. 334. A deposition is a written declaration under oath, made upon notice to the adverse partj' for the purpose of enabling him to attend and cross examine; or, upon written interrogatories. Sec. 335. An oral examination is an examination in the presence of the jury or tribunal which is to decide the fact or act upon it, the testi- mony being heard by the jury or tribunal from the lips of the witness. IV. Affidavit. Sec. 336. An affidavit may be used to verify a pleading, to prove the service of a summons, notice, or other process in an action, to obtain a provisional remedy, an examination of a witness, a stay of proceedings or upon a motion, and in any other case permitted by law. Sec. 337. An affidavit may be .made in and out of this State before any person authorized to take depositions, and must be authenticated in the same way, except as provided in section one hundred and eleven. v. Depositions. When to be used. Sec. 338. The deposition of any witness may be used only in the following cases:. 1 . When the witness does not reside in the county where the action or proceeding is pending, or is sent for trial, by change of venue; or is absent therefrom. 2. When, from age, infirmity, or imprisonment, the witness is unable to attend court, or is dead. 3. When the testimony is required upon a motion, or in any other case where the oral examination of the witness is not required. Sec. 339. Either party may commence taking testimony by deposi- tions, at any time after service upon the defendant. XXVn.] EVIDENCE. 473 Depositions — ^Who may.take them — Manner of Taking and Authenticating Uicm. Officers who may take them. Sec. 340. Depositions may be taken in this State before a judge or clerk of the Supreme Court, the Court of Common Pleas, or Probate Court, before a justice of the peace, notary public, mayor, or chief magis- trate of any city, or town corporate, or before a master commissioner, or any person empowered by a special commission; but depositions taken in this State, to be used therein, must be taken by an officer or person whose authority is derived within the State. Sec. 341. Depositions may be taken out of this State by a judge, justice, or chancellor of any court of record, a justice of the peace, notary public, mayor, or chief magistrate of any city, or town corporate, a com- missioner appointed by the Governor of this State to take depositions, or any person authorized by a special commission from this State. Sec. 342. The officer before whom depositions are taken, must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceeding. Sec. 343. Any court of record of this State, or any judge thereof, is authorized to grant a commission to take depositions within or without the State. The commission must be issued to a person or persons therein named, b'y the clerk, under the seal of the court granting the same, and depositions under it, must be taken upon written interrogatories, unless the parties otherwise agree. Manner of Taking and AuthenMcating them. Sec. 344. Prior to the taking of any deposition, unless taken under a special commission, a written notice, specifying the action or proceeding, the name of the court or tribunal in which it is to he used, and the time and place of taking the same, shall be served upon the adverse party, his agent, or attorney of record, or left at his usual place of abode. The notice shall be served so as to allow the adverse party sufficient time, by the usual route of travel, to attend, and one day for preparation, exclusive of Sundays and the day of service, and the examination may, if so stated in the notice, be adjourned from day to day. Sec. 345. When the party against whom the deposition is to be read is absent, or a non-resident of the State, and has no agent or attorney of record therein, he may be notified of the taking of the deposition by publication, The publication must be made three consecutive weeks, in some newspaper printed in the county where the action or proceeding is pending, if there-bd any printed in such county; and if not, in some newspaper printed in this 474. EvroENCE. [chap Depositions — Manner of Taking and Authenticating them. State, of general circulation in that county. The publication must contain all that is required in a written notice, and may be proved in the manner prescribed in section seventy-three. Seo. 346. The deposition shall be written in the presence of the officer taking the same, either by the officer, the witness, or some disinterested person, and subscribed by the witness. Seo. 347. The deposition so taken shall be sealed up and indorsed with the title of the cause and the name of the officer taking the same, and by him addressed and transmitted to the clerk, of the court where the action or proceeding is pending. It shall remain under seal until opened by the cleik, by ord^r of the court, or at the request of a party to the action or proceeding, or his attorney. Sec. 348. Depositions taken pursuant to this article shall be admitted in evidence on the trial of any civil action or proceeding pending before any justice of the peace, mayor, or other judicial officer of a city or town corporate, or before any arbitrators or referees, and such depositions shall be sealed up, indorsed with the title of the action or proceeding, the name of the officer taking the same, and addressed and transmited by such officer to such justice, mayor, or other judicial officer, arbitrator, or referees. Sec. 349. When a deposition has been once taken, it may be read in any stage of the same action or proceeding, or in any other action or proceeding upon the same matter between the same parties, subject, however, to all such exceptions as may be taken thereto under the provisions of this title. Sec. 350. Depositions taken pursuant to this article, by any judicial or other officer herein authorized to take depositions, having a seal of office, whether resident in this State or elsewhere, shall be admitted in evidence upon the certificate and signature of such officer, under the seal of the court of which he is an officer, or his official seal, and no other or further act of authentication shall be required. If the officer taking the same have no official seal, the deposition, if not taken in this State, shall be certified and signed by such officer, and shall be further authenticated, either by parol proof adduced in court, or by the official certificate or seal of any secretary or other officer of State keeping the great seal thereof, or of the clerk oi prothonotary of any court having a seal, attesting that such judicial or other officer was, at the time of taking the same, within the meaning of this chap- ter, authorized to take the same. But if the deposition be taken within this State by an officer having no seal, or within or without this State under a special commission, it shall be sufficiently authenticated by the official sig' nature of the officer or commissioner taking the same. Sec. 351. The officer taking the deposition shall annex thereto a ceitifi* cate showing the following facts: XXVII.J EVIDENCE. 475 Depositions. Admiasion, Inspection, and Production of Documents, etc. That the witness was first sworn to testify the truth, the whole truth, and nothing but the truth. That the deposition was reduced to writing by some proper person, (naming him.) That the deposition was written and subscribed in the presence of the officer certifying thereto. That the deposition was taken at the time and place specified in the notice. Sec. 352. When a deposition is offiered to be read in evidence, it must appear to the satisfaction ofcthe court that, for any cause specified in section three hundred and thirty-eight, the attendance of the witness can not be procured. Sec. 363. Every deposition intended to be read in evidence on the trial must be filed at least one day before the day of trial. Sec. 354. The following fees shall be allowed for taking depositions in this State, viz : Swearing each witness, four cents; for each subpoena, attachment, or order of conjmitment, fifty cents; for each hundred words contained in such deposition and certificate, ten cents and no more; and such ofiicer may retain the same until such fees are paid. Such officer shall also tax the costs of the sheriff or other officer who shall serve tlie process aforesaid, and fees of the witnesses, and may also, if directed by the persons entitled thereto, retain such depositions until the said fees are paid. Exceptions to Depositions. Sec. 365. Exceptions to depositions must be in writing, specifying the grounds of. objection, and filed with the papers in the cause. Sec 366. No exception other than for incompetency or irrelevancy shall be regarded, unless made and filed before the commencement of thC' trial. Sec. 357. The court shall, on motion of either party, hear and decide the questions arising on exceptions to depositions, before the commence- ment of the trial. Sec. 358. Errors of the court in its decisions upon exceptions to depo- sitions, are waived unless excepted to. VI. Admission, Inspection, and Pkoduotion of DoonMBNTS, and Geneeal Peovisio.vs. biic. 359. Either party ipay exhibit to the other, or to his attorney, at- any time before the trialj any paper or document material to the action, and request an admission in writing of its genuineness. If the adverse party. *'^6 EVIDENCE. [chap Admission, Inspection, and Production of Documents, and General Provisions. or his attorney, fail to give the admission in writing, within four days after the request, and if the party exhibiting the paper or document be afterward put to any cost or expense to prove its genuineness, and the same be finally proved and admitted on the trial, such costs and expenses to be ascertained at the trial, shall be paid by the party refusing to make the admission, unless it shall appear to the satisfaction of the court" there were good reasons for the refusal. Sec. 360* Either party or his attorney may demand of the adverse party an inspection and copy, or permission to take a copy of a book, paper, or document in his possession or under his control, containing evidence relat- ing to the merits of the action or defense therein. Such demand shall be in writing, specifying the book, paper, or document with sufficient particu- larity to enable the other party to distinguish it, and if compliance with the demand within four days be refused, the court or judge, on motion and notice to the adverse party, may, in their discretion, order the adverse party to give the other, within a specified time, an inspection and copy, or per- mission to take a copy, of such book, paper, oj document; and on failure to comply with such order, the court may exclude the paper or document from being given in evidence, or, if wanted as evidence by the party applying, may direct the jury to presume it to be such as the party by affidavit alleges it to be. This section is not to be construed to prevent a party from com- pelling another to produce any book, paper, or document, when he is exam- ined as a witness. Sec. 361. Either party, or his attorney, if required, shall deliver to the other party, or his attorney, a copy of any deed, instrument, or other writing whereon the action or defense is founded, or which he intends to oflFer in evidence at the trial. If the plaintiff or defendant shall refuse to. furnish the copy or copies required, the party so refusing shall not be permitted to give in evidence at the trial, the original of which a copy has been refused. This section shall not apply to any paper, a copy of which is filed with a plead- ing, as provided for in section one hundred and seventeen. Sec. 362. Printed copies in volumes of statutes, code, or other written law, enacted by any other State or territory, or foreign government, pur- porting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the courts or tribunals of such State, territory, or government, shall be admitted by the courts and officers of this. State, on all occasions, as presumptive evidence of such laws. The unwritten, or common law, of any other State, territory, or foreign government, may be proved as facts by parol evidence; and the books of reports of cases adjudged in their courts may also be admitted as ©resumptive evidence of such law. • See this section, revised — ^Note iV, p. 804. xxvn.] EvroENCK. 4:77 .. Proceedings to Perpetuate Testimony. VII. Peoceedinqs to Peepetitate Testimony. Sec. 363. The testimony of a witness may be perpetuated in the fol- lowing manner: Sec. 364. The applicant shall file, in the ofiBce of the clerk of the Court of Common Pleas, a petition to be verified, in which shall be set forth specially the subject matter relative to which testitaony is to be taken, and the names of the persons interested, if known to the applicant; and if not known, such general description as he can give of such persons, as heirs, devisees, alienees, or otherwise. The petition shall also state the names of the witnesses to be examined, and the interrogatories to be propounded to each; that the applicant expects to be a party to an action in a court of this State, in which such testimony will, as he believes, be material, and the obstacles preventing the immediate commencement of the action, where the applicant expects to be the plaintiflF. Sec. 366. The court, or a judge thereof, may forthwith make an order allowing the examination of such witnesses. The order shall prescribe the time and place of the examination, how long the parties interested shall be notified thereof, and the manner in which they shall be notified. Sec. 366. When it appears satisfactorily to the court or judge that the parties interested can not be personally notified, such court or judge shall appoint a competent attorney to examine the petition, and prepare and file cross interrogatories to those contained therein. The witnesses shall be examined upon the interrogatories of the applicant, and upon cross inter- rogatories, where they are required to be prepared, and no others shall be propounded to them; nor shall any statement be received which is not responsive to some one of them. The attorney filing cross interroga- tories shall be allowed a reasonable fee therefor, to be taxed in the bill of costs. Sec. 367. Such depositions shall be taken before some one authorized by law to take depositions, or before some one specially authorized by the court or judge, and snail be returned to the clerk's ofiSce of the court in which the petition was filed. Sec. 368. The court or judge, if satisfied that the depositions have been properly taken, and as herein required, shall approve the same and order them to be filed; and if a trial be had between the parties named in the petition, or their privies or successors in interest, such depositions, or certified copies thereof, may be given in evidence by either party, .where the witnesses are dead, or insane, or where their attendance for oral exam- ination can not be obtained or required; but such depositions shall be 478 EVIDENCE. [chap. Proceedings to Perpetuate Testimony. subject to the same objections for irrelevancy and incompetency as may be made to depositions taken pending an action. Sec. 369. The applicant shall pay the costs of all proceedings under this chapter. There are several objections to these provisions. 1. A judge is authorized to do what a court alone is competent to do. This is a fault often apparent in the code; and grows out of a servile copy- ing of the New York code. We can not bring our minds to believe that the Constitution authorizes the Legislature thus to clothe a judge out of court with the full powers of a court. 2. This proceeding is to be had without making any parties defendant. The order for the examination is to be made forthwith, and the interests of parties are to be affected by an order made ex parte, in a case in which their names are mentioned, but to which they are not required to be made par- ties. This order then is a nullity, since the code requires no seivice on the parties in interest adverse to that of the applicant. This kind of exam- ination has ever been held a judicial proceeding, and therefore the proper parties ought to be before the court. It is true that provision is made for notifying them of the taking of the depositions; but whether this notice is ever given depends upon the order of the judge; as, if he thinks they can not be personally notified, the notice need not be given. It is not possible that a party can be bound by such an ex parte pro- ceeding, or by depositions taken under it. And yet these depositions, thus taken, may be used, if the party can not be required to attend the trial; and if he is out of the county where the trial is had, he can not be required to attend; and in such a case, in a case where the witness is living in an adjoining county to that where the trial is had, so that his deposition oould be easily taken, even under such circumstances, these ex parte depositions are to be used against a party; and his interests are to be affected by such testimony. The whole proceeding is a judicial anomaly, or would have been, before the code.- This seems to ignore the Constitution. That depo- sitions taken under such a proceeding are a nullity, must be apparent to any lawyer who has yet any sound constitutional opinion, who yet recognizes the doctrine that, before a person can be affected in his property or person bj' a judicial proceeding, he must be a party to it, and have an opportunity tc be heard on every order, or motion, or judgment by which he can be in any wise affected. This code provides that the whole evidence to main- tain an action may thus be prepared and taken in the absence of the adverse party. Is' it possible that he can be bound or affected by testimony sa XXVn.J EVIDENCE. 4:79 Fonns. taken? We think not; and it is mot to be doubted that the courts will so decide. FORMS. 1. SUBP(ENA FOR WITNESSES. State of Ohio, County, ss. To A B, C D, etc., Greeting: You, and each of you, are hereby commanded to be and appear in your proper persons before the Court of Common Pleas, (or District Court,) within and for the said county of , on the day of next, at eight o'clock A. M., of said day, * then and there to testify what you know in a certain action pending in said court, wherein A B is plaintiff, and C D is defendant; and this you do under the penalty of the law. Witness my hand and the seal of the said court, this day of , A. D. 1 8 . J D, Clerk. In a subpoena duces tecum, insert where the * is:. "an4 also that you bring with you, and produce at the time and place aforesaid, (here state the description of the book, deed, note, bill, contract, letters, or other papers or document to be produced, so distinctly that the witness will be able to recog- nise the thing wanted;) and then and there to testify, etc., (as in the above form. ) Upon a subpoena duces tecum, a witness is bound to produce a paper which he has in his actual custody, though the legal right and property in such paper belon_gs to another. The witness may be compelled to produce the writing or paper which he has been required to bring forward, without being sworn. Davis v. Dale, 1 Mood, and Malk., 514, S. C; 4 Carr and Payne 336; Somers v. Mosely, 4 Tyi. 1S8; 2 Cromp. and Mee. 477; Perry z). Gibson, 1 Adol. and Ellis, 48; Bull !'. Loveland, tO Pick. Rep. 9. The question whether the witness is bound to obey and produce the particular paper will be consid- ered when he is sworn, or when brought up on attachment. Amey v. Long, 9 East. Rep. 486; Bradshaw v. Bradshaw, Russ and Mylne, 368. Thus the court refused to require the witness to produce a paper which the party bad agreed should remain in the hands of the witness for a particular pur- pose, which the object of the subpoena was to change. Bull v. Loveland, 10 Pick. Rep. 9. An action will lie against a wi'^rsss who refuses to 31 .4bO EVIDENCE. I CUAP. Forms. produce a paper in his actual possession; and it is no defense that the legal title to the paper is in another person. 1 Camp. Kep. 1 4. Where the subpoena is issued from the court, it must bear the seal of the court and attest of the clerk. But any officer authorized to tate depo- sitions may issue a subpoena for witnesses to be and appear before him. Sec. 318. a. SUBPffiNA POK ■STITNESS BY ONE TAKINO DBP S IT I ON S. State of Ohio, County, ss. To A B, C D, etc., Greeting: You, and each of you, are hereby commanded to be and appear before the undersigned, a justice of the peace for said county, (or notary public, etc.,) at my office in the town (or township) of , in said county, on the day of , A. D. 1 8 , at ten o'clock, A. M., then and there to testify what you know in a certain action pending in the Court of Common Pleas, within and for the county of , in the State of , wherein A B is plaintiff, and C D is defendant; and this you will do under the penalty of the law. Witness my hand and seal, this day of , A. D. 18 . Q Z, Justice of the Peace. The subpoena may be served by the sheriff, or coroner, or any constable of the county, or by ftie party, or other person. If not served by an offi- cer, the service must be proved by the affidavit of the person serving it. It must be served either by reading it to the witness, or by delivering him a copy thereof, or by leaving a copy at his usual place of residence. The copy given to or left for the witness need contain no name but his own. 3. RBTIJEN BY AN OFFIOBK. I served this subpoena on the within named , by reading the same to him, (or by delivering to him a copy of the same; or by leav- ing a duly certified copy of the same at the usual place of residence of the said ,) on the day of , A. D. 18 . L M, Sheriff, (or coroner, or constable.) 4. RETURN BY THE PARTY OR OTHER PERSON. I, E F, being first duly sworn, do say that I served the within subpoena on the within named . by reading the same to him, (or by delivering to him a copy thereof, or by leaving a du.lv Certified coov there© ' XXYM.] ETIDENOE. 481 Forms. at his usual place of i-esidence, ) on the day of . J 8 ; »nd further he saith not. _ _ Jci r. Signed in my presence, and sworn to before me, by' the said E F, this day of , A. D. I'B . This may be sworn to before any person authorized to administer oaths, as judge or justice, or in open court. When served by an individual, no fees can be charged for service; when served by an officer the usual fees can be charged, and taxed in the bill of costs. Sec. 316. If the witness demand his traveling fees and the fee for one day's attendance, when the subpoena is served, the same must be paid, or the witness need not attend. The officer must note this demand on his return. This may be done by adding to the above return the following, "and the said thereupon demanded his traveling fee, and the fee for one day's attendance." It seems that this demand may be made of the officer; he, of course, can not be expected to pay; and the party can not know of this demand until the return of the subpoena at the return of the court, when it will be too late to make the tender, and procure the attendance of the wit- ness. "Where the witness is subpoenaed during term, his attendance can not be rendered secure unless the fee is sent by the officer. This provision will be found to work badly in practice; the old rule was the true one, protecting the witness as far as could be done with a due regard to the speedy administration of justice. If the witness were required to notify the party in time, then he might refuse to attend unless his fees were advanced, without injustice to any one; but this notice to the officer can not generally reach the party until it is too late to remedy the evil occasioned by the refusal of the witness to attend. 6. ATTACHMENT FOE CONTEMPT HT FAILING TO ATTEND AS A WrTNESS. State of Ohio, County, ss. To the Sheriff of Coanty, Greeting: Tou are hereby commanded to attach , so as to have his body before the Court of Common Pleas, within and for the said county of forthwith, (or on the first day of the next term thereof,) to answer unto the said State of Ohio for a certain contempt by him lately committed, in not attending as a witness, after having been duly served with a subpoena in a certain case now pending (or lately pending) in said court, ■wherein A B is plaiutiflF, and C D is defendant; and further to do and 4^2 EVIDENCE. [chap. FoiTns. receive what the said bouft shall in that behalf consider. Hereof fail not, and have you then and there this writ. Witness my hand, and the seal of said court, this day of , A. D. 18 . J D, Clerk. 6. ENTRT OF WITNESS'S DEFAULT. And now came the said A B, by , his attorney, and the said E F being solemnly called to come forth and testify as a witness, in behalf of the said A B, in this action, came not, but made default;' and thereupon, on motion of , counsel for the said A B, it is ordered that his default be, and the ^ame is hereby entered. ». MOTION POK ATTACHMENT. On motion of , counsel for the said A B, and it appearing to the court that the said E F was personally served with a subpoena to attend this court as a witness in the case of A B j' CD, on behalf of the said A B, and that he has made default; it is therefore ordered that an attachment issue against the said E F for such his contempt, returnable forthwith, (or on the first day of the next term of this court.) The attachment should not issue unless the witness has been personally served with the subpoena. If service was made by leaving a copy at his residence, and he does not attend, a rule may be taken on the witness to show cause why an attachment should not issue, and in case it should appear that he knew of the service, and has willfully and without sufficient excuse staid away, he may be attached for such contempt. This is expressly provided for by the last clause of section 323. 8. ETJLH ON WITNESS TO' SHOW OATJSB. On motion of , counsel for the said A B, and it appearing that the said E F was duly subpoenaed by a copy left at his usual place of residence, to be and appear at the present term of this court, and testify in behalf of the said A B, in an action now pending in this court, wherein the said A B is plaintiff and C D is defendant, and that he has made default; it is therefore ordered that the said.E F show cause, by the first day of the next term of this court, (or forthwith,) why an attachment should not issue against him for not attending as a witness in said action, in obedience to the command of the said subpoena. iXVn.J EVIDENCK. 483 Fovius. A copy of this order will be served on the witness in the same manner as a summons is served, and he must attend, and show a satisfactory reason for his failure to attend. He must show either that he did not know of the service being made, or that it was impossible for him to attend after he was so informed, for want of time, or other valid excuse. A service by copy, if known to the witness, is as good and -binding as a personal service; and to refuse to attend after such knowledge is as much a contempt as if the service had been personal. BNTET OF HHARINO ON JHB RULE. And now came as well the said State of Ohio, by , Prose- cuting Attorney, as the said E F, in his own proper person, and thereupon the said E F was duly examined in open court touching his said contempt; on consideration whereof, the court ;find that the said E F had notice of the said subpoena as aforesaid in time to attend, and did, without any just cause therefor, refuse and neglect to attend in obedience thereto, as such witness, at the term of this court; it is therefore ordered that an attach- ment issue against the said E F, returnable forthwith. If tta witness does not appear, the entry will show that the rule has been served, aftd that, on being ualled, the witness does not appear, and then the order of attachment will issue of course. 10. BNTET ON DEPAXTLT. And now came the said State of Ohio, by , Prosecuting Attorney, and thereupon the said E F being three times solemnly called to come and answer to the said rule, came not, but made default; on consid- eration whereof, and it appearing to the court that the said E F was duly served with a copy of the said rule, it is ordered that an attachment issue against the said E F, returnable forthwith, (or on the first day of the next term of this court, ) for not attending this court at the .term thereof, A. D. 18 , as a witness in the said action of A B ?»> CD. If the. attachment is returnable forthwith, the officer can not take bail; but if it is returnable on a future day, he may take bail for the appearance of the party. The sum may be fixed by the court; if not so fixed, it must be in $100. 4:84 ETIDENOE. [chap FoiTOS. 11. SHEEIPP'S BBT0EN. As commanded by this writ, I attached the within named E F, and have here his body in court, to answer for tho said oontemt)t. Dated this , day of , A. D. 18 . L M, Sheriflf. 12. BETTTBN WHERE BAIL IS TAKEN. As commanded by this writ, I attached the body of the within named E F, on the day of , A. D. 18 , and thereupon the said E F, with G H as his surety, entered into an undertaking to the State of Ohio, in the sum of #100 for his appearance; which undertaking is here- with returned. L M, SheriflF. 1 3 . ENTET OP HEAEINGf AND JUDGMENT ON THE ATTACHMENT. And now came as well the said State of Ohio, by , Prose- cuting Attorney, as the said E F, in his own proper person; and thereupon the said E F was duly examined in open court, touching his said contempt; on consideration whereof the court do find that the said E F was guilty of the said contempt, in not attending as a witness in behalf of the said A B, at the term of this court, A. D. 18 , in an action wherein the said A B was plaintiff, and one .0 D was defendant, in obedience to a sub- poena duly served on the said E F; it is therefore ordered and adjudged that the said E F pay a fine of $ for this his contempt, and the costs of this attachment. The fine can not be over $60 for disobeying a subpoena. Sec. 324. 1 4 . ENTRY WHEEB WriNESS EEFITSES TO BE SWORN, TESTIFY, OE SIO!f DEPOSITION. And now came the said E F, in his own proper person, and, having been called as a witness in the action of A B w. C D, on the trial thereof in the court at its pi-esent term, refused to take the oath and be sworn as a witness to testify on the said trial, (or to answer as a witness, .or to sub- scribe his deposition, taken before the undersigned, in an action pending before the court of Common Pleas, within and for the county of , and State of Ohio;) and thereupon the said E F was personally examined XXVn.] EVIDENCE. 485 Forms. in open court, under oath, touching his said refusal to be sworn as afore- said (or to testify, or subscribe his said deposition as aforesaid;) on con- sideration whereof the court here do find (or I do here find) that the said E F is, by his said refusal to be sworn, (or testify, or subscribe his depo- sition,) as aforesaid, guilty of a manifest contempt of court; it is therefore considered and adjudged that the said E F, for this his contempt, be fined in the sum of $ , and' also that he pay the costs of this order. Or, that the said E F be imprisoned in the jail of this county, there to remain until he shall submit to be sworn as such witness, (or testify as such witness, or subscribe said deposition,) or be otherwise discharged by due course of law; and it is further ordered that the said E F pay the costs of this proceeding. This authority is given by section 324 of the code. Tnis order, when made in court, will, of course, justify the sheriff to keep the party in cus- tody. The sheriff must have in his possession a certified copy of the order. Where the order is made out of court, on taking depositions, the officer must issue his order or mittimus, directed to the keeper of the jail, reciting the order, and requiring the jailer to imprison him, as is above recited in this order. A mittimus can easily be framed from the above entry and the usual form in the statute. Where the contempt 3onsists in refusing to answer, the order must recite the question which the witness refuses to answer, and this question must be included in the order for his imprisonment. The form above, in that case, will have to be varied somewhat, as — The said E F, having been called and sworn as a witness, on the trial o£ the case of A B, plaintiff, v. C D, defendant, in this court, at the term thereof, A. D. 18 , (or at its present term,) and having, been asked, (here state the question as propounded,) refused to answer the same; and thereupon the said E F was put to the bar of the court, and personally examined, etc. (as in the last form.) 15. OATH OP A WITNESS. Tou, (and each of you, where there is more than one, ) do solemnly swear (or affirm,) that you will testify the truth, the whole truth, and nothing but the truth, in the case now here pending before the court and jury, wherein A B is plaintiff, and C D is defendant, and this you do as you shall answer unto God, (or under the pains and penalties of the law against perjury.) 486 EVIDENCE. [chap. Forms. When the case is on trial before the court, the words, "and jury," ■will be omitted. Where the oath is administered to a witness on taking his deposition, the form will be: "in a certain action now pending in the Court of Common Pleas, (or District Court,) within and for the county of , and State of Ohio." The oath, by section 331, must be administered in that way in which' the witness considers it the most binding on his conscience. Hence he may be sworn on the Bible, Evangelist, or the Pentateuch, or in any other form which is most binding on the conscience of the witness. 16. AFFIDAVITS. And now came the said C D, defendant, and produced E F, of lawful age, who, being first duly sworn, deposeth and saith that, (here state his testimony, as in a deposition where no interrogatories are put;) and further he saith not. EF. And thereupon the. said C D produced G H, of lawful age, who being first duly sworn, deposeth and saith, etc. And so proceed until all the affidavits are taken. Tlie officer will then add his aertificate: I, L M, justice of the peace, do hereby certify that the above named E F and G H were by me swotn to the truth of the several afiidavits above, by each of them respectively subscribed, and did subscribe the same in my presence. Given under my hand, this day of , A. D. 18 , at , in the said county of Q Z, Justice of the Peace. ■ If there be but, a single affidavit, the certificate will be as follows: Subscribed in my presence, and sworn to before me, this day of , A. D. J8 , at , in said county of Q Z, Justice of the Peace. An affidavit under the code has a fixed character. It is one of tho means of obtaining the testimony of a witness. Hence a witness testifies by affidavit as much as by deposition. The facts stated in it must there- fore be only such as he could testify to, if called as a witness on the stand. All affidavits under the code must partake of this character. Wherever facts are to be proved by affidavits, the same can only be made known by XXVI.] EVIDENOE. 487 Forms. the persons knowing the facts; and the affidavit on its face must show that the witness is speaking of what he knows, and not of what he has been informed. Unless tliis is the case, the affidavit can not be vead; as hearsay can no more be evidence in an affidavit than in a deposition, or on an oral examination. The affidavit is a substitute fop an oral examination on the same point, and should contain nothing but what it would be competent < for the witness to testify to, if his examination was taken orally, instead of ex parte and in writing. If the affidavit is taken to be used in a case in court, the caption should state the State, county, court, and case, and the particular motion in that case on the hearing of which it is to be used. Under the New York prac- tice, there is great strictness in the form of affidavits; but our courts will probably hold that, in form, it will be sufficient, if from the whole affida- vit, the name of the ease and court can be ascertained, in which it is to be used. Section 336 shows when they may be used; and section 337 shows before whom they may be sworn — before any person authorized to take depositions. Blake v. Lacy, 6 Pr. Rep. 108, 178. As to certainty required in affidavits, see Van Wyeck v. Eeid, 10 Pr. Rep 366. Where a party swears he/did not receive a notice, the affidavit to prove the notice must state time and manner, so that an indictment for perjury could lie upon it, if not true. "The venue," says Johnson, J., in Lane v. Morse, 6 Pr. Rep. 394, "is ar. essentia', part of every affidavit. It is prima facie evidence of the place where it was taken." Belden v. Devoe, 12 Wend. R. 225, note; 3 Hill R. 461. An affidavit should show, upon its face, that it was made before some officer competent to take affidavits, and within some place where he was authorized by law to administer an oath. This, at least, would seem to be necessary, to show a legal verification. No presumption arises that an affidavit has been made at any particular place within the State; nor, indeed, that it is made within the limits of the State, where no place is mentioned. Defositigns, ir. NOTIOE TO TAKE DEPOSITIONS. State of Ohio, County, as. To A B. C D, etc.. Greeting- You are hereby notified that the said A B, plaintiff, will proceed to ta^e the depositions of witnesses in this action, at the office of , in the town of , county of , and State of , on the day of , A. D. 18 , between the hours of ten A. M. 488 EVIDENCE. [chat, Forms. and nine P. M., with authority to adjourn from day to day till all such depositions shall have been taken. Dated this dav of , A. D. 18 . AB. A copy of this notice must, in all cases, be served on the adverse party, his agent, or attorney of record, or left at his usual place of abode, at least the day before the depositions are to be taken. The party is to have one day for preparation, exclusive of Sunday; hence it would seem that a notice served in the afternoon, to take depositions the next morning, would not be sufficient. Twenty-four hours probably ought to intervene between the time of serving the notice and the hour fixed for taking the depositions. So, at least, the District Court once held in the Seventh District; though, on a more careful examination of section 344, it would seem that the one day allowed for preparation must be exclusive of the day on which the notice is served. Indeed, it seems clear that a whole day must, in all cases, intervene between the day on which the notice is served and the day on which the depositions are to be taken. This is the case where no travel is required — where the depositions are to be taken in the same place where the parties reside. Time must also be given sufficient to enable the party, by the usual route of travel, to attend. • This time must be exclusive of the day allowed for preparation. Hence where the parties are required to travel any dis- tance, the notice must be servecf so as to leave two days between the ser- vice and the taking of the depositions — one day for preparation, and the other for travel — as there are no fractions of a day. The time allowed for travel must, of course, no longer depend upon distance, but upon the facilities for travel. Where a party will be compelled to travel by his own convey- ance, a day for every twenty-five miles would not be unreasonable; where he can travel by stage or steamboat, allowance must be made according to the speed traveled over by this mode of conveyance. Time should also be allowed for the contingencies, and mishaps, and delays usually incident to the kind of conveyance in use on the route. The party is bound to use the usual mode of conveyance; he may use his own, where there is no speedier mode of travel; next the stage, steamboat, and railroad. Unless this construction is given to the code, the old rule, of one day for every twenty miles of travel, had best be adopted at once. There is some doubt on the wording of the statute, whether any but a party can be notified by a notice left at his usual place of abode. It may be served on the party, his agent, or attorney, or left at his usual place of abode. The word "his" before "agent" and "usual," manifestly refers XXVn.] EVIDEHCE. 489 Forms. to the same antecedent, and that is the word party. Hence no service but a personal one can be made on an agent or attorney; and this is in con- formity to the prior legislation on this subject. If service as above can not be made, it may be done by a notice pub- lished in a newspaper, as is provided in section 345. The printed notice will, of course, be just a copy of the written one. Its publication may be proved by the affidavit of the printer or publisher of the paper, aS is provided in section 73. ■ 18. POEMS FOE DEPOSITION. Depositions of witnesses taken to be used in an action pending in the Court of Common Pleas, [or District Court,) within and for the county of , in the State of , wherein A B is plaintiff, and C D is defendant, in pursuance of the notice hereto attached, and at the time and place therein stated. The said A B, plaintiff, appeared on his own behalf, [or by , his attorney,) and the said C D appeared in his own behalf, (or by , his attorney;) (or if the adverse party does not appear, nothing need he said as to his appearance.) And thereupon the said A B produced the following witnesses in order, to-wit: G H, of lawful age, who, being first duly sworn, deposeth and saith, etc. Also H I, who, being first duly sworn, deposeth and saith, etc. Where the witness is examined by questions, the form will be as above, adding after "saith," "in reply to the interrogatories propounded, to- wit," etc. I, L M, justice of the peace within and for the county of , in the State of , (judge, notary public, etc.,) do hereby certify that the above named E F, G H, etc., the witnesses whose names are sev- erally subscribed to *he foregoing depositions, were by me first duly sworn, (or affirmed, ) to testify the truth, the whole truth, and nothing but the ti'uth, in the case aforesaid, and that the depositions by them respectively subscribed were reduced to writing by me, {or by the witness, or by some other person, whose name mxist be given,) and that the said depositions were so reduced to writing, and subscribed by the respective witnesses in my presence; and the same were taken on the day of , A. D. 18 , and at the office of , in the town of , in the county of , and State of , as specified in the notice hereto attached. 490 EVinSNCE. CHAP Forms. The certificate is by the code required to be in the above form, where- ever they may be taken, whether within or without the State. The old statute did not prescribe any form of certificate for depositions taken out of the State. The mode of proving the official character of the officer is pointed out in section 360. The official character of the person before whom any dej^sitions are taken, must be proved by the certificate of the officer in whose custody the records are which evidence that official character. A clerk of the court can not give the certificate, unless there is record evidence of that official character in his office. 19. EXCEPTIONS TO DEPOSITIONS. And now came the said C D, by , his attorney, and excepts to the reading, on the trial of this action, of the depositions of E F, G H, etc., purporting to be taken before one , a justice of the peace within and for the county of , in the State of , for the following reasons: 1. Because the certificate of the said justice is defective in this — that it does not show, (Aere state defect.) 2. Because no sufficient notice was given of the time and place of taking the same. 3. That the official character of the said justice is not properly proved. (And any other reason may he added which exists. ) . This motion must be filed with the papers before the commencement of the trial. 20. COMMISSION TO TAKE DEPOSITION. Sec. 343. This section provides for taking depositions under a com- mission, which can be granted by any court of record, or any judge thereof. The depositions must be taken on interrogatories, unless the parties otherwise agree. As no notice is required to be given of the taking of depositions under such commission, the adverse party ought to have notice of the application for the commission, and of the names of the wit- nesses to be examined. The application should be made in writing, sup- ported by affidavits, showing that the action is pending, the names of the witnesses, if known, their places of residence, and the materiality of their testimony, as he is advised. 2 Hall Rep. 602; 6 Cowen Rep. 209; 2 John. Cas. 68, 286; 1 Wend. Rep. 66. So also the notice must contain the names of the proposed commissioners. The affidavit may be made by any one who knows the facts. 7 Wend. Rep. 613; 1 Cowen Rep. 210. XXTn.] EVIDENCE. 491 Foi-tas. The code points out no practice lor making such an appointment; the above rules are copied from the practice in New York, which seems to be a reasonable one. ai. NOTIOB OP APPLIOATIOlf. t The said A B, plaintiff, is hereby notified that the said defendant wil. apply to the Hon. W V P, one of the judges of said court, at bis office in , county of , on the day of , A. D. 18 , at ten o'clock, A. M., for the grant of a commission directed to " , of , in the county of , and State of , authorizing them to take the depositions of L M, N 0, etc., to be used on the trial of this action. as. MOTION. And now comes the said C D, by E F, his attorney, and moves the Hon. W V P, one of the judges of the said court, (or the court here,) to grant a commission to G H and I K, of , in the county of , and State of , authorizing them, or either of them to take the depositions of L M, N 0, etc., to be used as evidence on the tiial of this action. as. ORDER . And now comes the said C D, by E F, his attorney, and the said A B by , his attorney, and thereupon the motion of the said C D came on to be heard before me, W V P, one of the judges of said court, on the said original motion, notice to the said A B, the affidavits of the said C D, etc., and the interrogatories prepared by the said CD; on con- sideration whereof, it is ordered that a commission be issued by the clerk, and under the seal of said court, authorizing and requiring the said G H and I K, or either of them, to examine under oath the said L M, N O, etc., on the interrogatories here filed, and that they reduce such examina- tion to writing, and cause the same to be subscribed by said witnesses, and return the same, with the interrogatories, to this court at the earliest opportunity. This form will answer also for an order made in court. The order itself, under the seal of the court, would .nnswer as a commission; though the following is given as a form in the books: 492 EVIDENCE. [OHAP Forms. 24. FORM OF A 00 Jl MISSION. Stato of Ohio, County, ss. To WN: Know you, that you have been appointed, by the order of the Hon. W P V, one of the judges of the Court of Common Pleas, within and for the said county of , (or by the Court of Common Pleas, within and for the said county of ,) and are hereby vested with full power and authority to examine, under oath, on the interrogatories hereto attached, L M, N 0, etc., and that Jiaving reduced such examination to writing, and caused the same to be subscribed by the witnesses, you do return the same, closed up, together with this writ, to this cqjfrt, with all possible dispatch, to be used on the trial of a case now pending in said court, wherein A. B is plaintiff, and C D is defendant. Witness my hand and the seal of said court this day of « A. D. 18 . D, Clerk. 25. RBTTTEN OP COMMISSION. According to the command of the within writ, we caused the said L M, N 0, etc., to come before us on the day of , A. D. 18 , at , in the county of , and State of , and having first duly sworn the said L M, N 0, etc., to testify the truth, the whole truth, and nothing but the truth, in the said action, we proceeded to examine them on the interrogatories attached to the said writ, and reduced their answers thereto to writing, and caused the said witnesses to subscribe the same in our presence; which e;xaminations, so taken, reduced to wri- ting, and subscribed, are'herewith returned. The deposition, and writ, and interrogatories, must be sealed up, and indorsed, with the name of the court, case etc. 26. INDORSKMENI. * A B, plaintiff, 1 bounty, ss. C D, defendant.) Deposition in said action. To J D, Clerk of Court Com. Pleas, Cincinnati, Ohb. xxvn.] EvroENCE. 493 Forms. The decisions on tliis subject may be found arranged in 2 I'Lilips Ev., by Cowen and Hill, 32. No notice need be given pf the taking of such depositions, as may be seen by .an examination of section 344 of the code. No notice is there requiiied, except when the depositions are taken under a special. commission. Indeed the parties are not expected to be present. The examination is made by the court, through its commissioners, on interrogatories of the parties, prepared and left with the court. Commissions are designed to meet cases where notice can hardly be given — where witnesses can not attend, etc.; though there are very few cases where this mode need be adopted, unless where the witnesses are at a great distance or in a foreign land. In such cases, the great distance will almost prevent the possibility of giving a notice, and being able to comply with it in taking them. So where the witness is constantly changing his residence, it may be more certain to have recourse to a commission. ar. DEMAND TO INSPECT BOOKS, ETC. The said plaintiflF is hereby notified that the said defendant demands an inspection, and permission to take a copy of, {here describe the booh, papers, document, etc., referred to, so as to identify beyond dispute,) at such time and place as the said plaintiff shall appoint; or, if^the said plaintiff is will- ing, at his house, on the day of , A. D. 18 , at one o'clock P. M. Dated this day of , A. D. 18 . C D. I, E F, being duly sworn, say that I delivered' a copy of the above notice and demand to the said A B, on the day of , A. D. 18 . E F. Subscribed in my presence, and sworn to before me, at my office in , in said (Tounty of , this day of , A. D. 18 . Q Z, Justice of the Peace. S8. NOTICE OP MOTION TO A JtTDGE OK OOTTHT. The said A B, plaintiff, is hereby notified that the said C D will apply to the Hon. W P V, one of the judges of the said court, {or to the said Court of Common Pleas, at the next term thereof, in said county, ) for an 494 EVIDENCE. [chap. Forms. order requiring the said plaintiff to permit the said defendant to inspect and take a copy of, {here describe the booh, etc., so as to enable the other parti/ to distinguish it.) Dated this day of A. D. 18 . CD. I, E F, being duly sworn, do depose and say that I delirered to the said A B, a copy of the above notice, on the day of , A. D. 18 . EF. Subscribed in my presence, and sworn to before me, at the town of , in said county of , this day of , A, D. 13 . Q Z, Justice of the Peace. 29. MOTION. And now comes the said C D, defendant, and moves the Hon. W P V, one of the judges of the said court, (or the said Court of Common Pleas, ) for an order on the said A B, plaintiff, to permit the said C D to inspect and take a copy of, {\ere describe the book, etc., as in notice,) and which said inspection is necessary to enable the said C D to defend the said action of the said A B, and the said C D saith that the said action is brought, etc., (Aere set forth the object of the action, the nature of the defense avd' hovi the booh, document, etc., sought to be inspected, is material to the defense of the defendant.) CD. The said C D, being first duly sworn, deposeth and saith that the sev- eral matters and things contained in the said motion are true in substance and in fact. CD. Subscribed in my presence, and sworn to before me, at , in the said county of , on this day of , A. D. 18 . Q Z, Justice of the Peace. The New York practice requires a petition, but our code speaks of a motion. The facts, however, which show the right of the party to an XXni.] EVIDENCE. 495 Forms. inspection of the document, book, etc., ought to be embcdied in the motion. The applicant must state the particulars of which a discovery is sought, and enough to satisfy the court that it is in the power of the oppo- site party to furnish it, and that it is material for the support of the claim or defense of the applicant that it should be made. Bosworth, J., Hoyt v. American Exch. Bank, 8 Pr. Rep. 89, 93; Stanton v. Del. Mut. Ins. Co., 2 Sandf. Rep. 662. He has no right to have a general inquisitorial exam- ination of all the books, papers, and documents of his adversary, with a view to ascertain if perchance something can not be found which will pos- sibly aid him. Ibid, 93. Again: If either party applies under the code, he should be required to make a case as strong and urgent as is deemed necessary to entitle him to a production and deposit of books, papers, and documents, instead of sworn copies. Neither reason, principle, or policy demands that a partj^'s books and papeis, or any part of them, should be submitted to the inspec- tion of his adversary, when the court would not order them to be deposited, in order that they might be inspected. Such an order should be made only in those cases in which an order for production and deposit would be granted, unless an inspection was ordered as a substitute fur deposit, on the sole ground that a deposit and production would be a substantial inconven- ience to tlie owner of the books, papers, and documents, and would be of no benefit to the applicant beyond that which an inspection would confer. Ibid, 94. Affidavits may be used to show the propriety of the inspection, if the party is not able to swear to the facts, necessary to prove it. Ex- change Bank v. Monteith, 2 Code Rep. 148. The adverse party has a right under oath to answer this motion, and if be answer, distinctly and unevasively, that as to all, or any of the papers, or documents, or entries, of which a discovery is sought, there are no such papers or documents in his possession, or under his control, and that there are no entries relating to the specified subject matter, or except such as he has furnished copies of, the applicant must abide by the answer, so far as the proceedings for a discovery are concerned. If dissatisfied with the result of the proceedings, he must examine him as a witness, or rely on such other evidence as he may be able to command. Ibid, 93. The an- swer of the adverse party will, of course, depend on the facts. He can furnish copies under oath of such as he admits he has, and then put in an answer to the motion, denying that he has in his possession, or under his control, any other of the documents or entries of which a discovery is sought. No form need be given for this answer, as it could be of no aid or use to the pleader. The answer must be positive. Southard v. Dwight^ 2 Code Rep. 83. 32 496 EVIDENCE. [cnAP, Forms. This order may be made at any time during the pendency of this suit. Miller w. Mather, 6 Pr. Kep. 160. It has been made after a causs was partly heard. Mechanics Bank v. James, 2 Code Rep. 46. The oi'der will be granted to enable a defendant to prepare his defense. Powers v. Elmen- orf, 2 Code Eep. 344. The only discretion -which the court can exercise, under this section of the code, is in determining whether it will order the inspection to be given at all. If it grants a discovery under this section, it has no discretion in directing the manner in which it is to be made. An inspection is to be given at all events, and the only alternatives that can be presented to the party against whom the motion is made are, either to give a copy, or submit to the inconvenience of allowing the petitioner to make a copy. 8 Pr. E«p. 94. .Where the sworn copies, furnished in obedience to an order for a dis- covery, indicate that the discovery may not be complete, it is proper for the petitioner to apply for a further order, based on the return and previous . proceedings, or on them and further affidavits; for an order requiring the opposite party to show cause, at a time to be named, why sworn copies should not be furnished of such other entries, papers, or documents, relat- ing to the points as to which a discovery had been ordered, as the return and other papers may induce the court to believe to be in his possession or control; and, unless the possession or control of such papers and docu- ments, or the existence of such entries, be explicitly and unequivocally denied, a peremptory order would be granted. Ibid, 95. These cases show that the court may permit the party to furnish sworn copies, and so decline to make the order; and then still issue it, if it has reason to believe that all documents are not disclosed. Either the motion or affidavit ought distinctly to state what the docu- ment, paper, or' book will show; because, on a refusal to produce it, the party applying may read his own affidavit as evidence, in lieu of the book, paper, or document, sought to be discovered. 20. O RDEB. And now comes as well the said defendant as the said plaintiff, and thereupon the motion of the said defendant for the inspection of certain documents came on to be heard before me, W V P, one of the judges of the said court, (leave this out, if before court,) on the day of , A. D. 18 , at my residence in , upon the original motion, the answer of the said A B, and affidavits; on consideration whereof, it is ordered that, within days from this date, the said A B do give to xxvin.] isstTE. 497 Issue of Fact. the said C D an inspection, and copy, or permit the said C D to take a copy, of the said {here describe the documents.) Done this day of , A. D. 18 . L M, Judge. If the party offers sworn copies, the entry may show that fact, and then reserve to the applicant the right to apply further, in case he shall find that the copies furnished do not cover all the ground embraced in his motion. CHAPTER XXVIII. ISSUE. Sec. 260. What is an issue? An issue is where a fact or conclusion of law is maintained by one party and controverted by the other. They are of two kinds — First, of law; Secondly, of fact. An issue of fact arises — 1. Upon a material allegation in the petition denied by the answer. 2. Upon a set-off or counterclaim presented in the answer and denied by the reply. 3. Upon material new matter in the answer or repl)'', which is consid- ered as controverted by the opposite party without further pleading. This section is nothing more than the old common law definition of an issue, and hence must be construed as issues heretofore were construed. In Gould's Pleading, 302, it is thus defined: "An issue m pleading is defined to be a single, certain, and material point, issuing out of the alleo-a- tions of the parties, and consisting regularly of an affirmative and neffalive. The word issue, (exitus,) in the sense in which it is applied to pleading, 498 isscTE. [chap. Issues of Fact. signified ihd, tetminatiori, or conclusion; and is thus applied, because an issue brings the pleadings to a close." The above definition comprehends as well issues of law as issues of fact. As to the former, it brings into question the legal sufficiency of single fact only. According to the strict original rule of the common law, every issue in fact must consist of a direct affirmative allegation on one side, and a direct negative on the other. Thus, if a defendant pleads that his co-defendant is dead, a replication that he is alive does not form a proper issue. The replication should be that the co-defendant is not dead. It will be seen tliat this language is substantially the same as the code. A fact is maintained by the one and controverted and denied by the other. Tiiis, of course, demonstrates that the issue must be single and certain. And an issue of fact must be on a material fact or allegation. It will thus be seen that issues on the petition are just what they ever were on a declaration. The issue must be on a single fact, and that fact a materiid one; otherwise the pleadings present an immaterial issue, which a court never will waste time in trying. Tlie same remark is also true of any issue taken on a set-off or counterclaim; the answer for this purpose is regai'ded in the light of a petition, and the reply to it is like an answer containing a denial, or new matter constituting a defense. ^ So an issue is raised upon material new matter in the answer or reply. The matter contained in the answer must be material, and it must be single, presenting together what constitutes an answer, or bar to the cause of action set forth in the petition. This shows that the code gives no color to the loose notion that strictness in pleadings is no longer necessary; whereas the whole code, not only from this chapter on issues, but from that on the answer, requiring defenses to be pleaded singly, looks to precise and strict issues as the result of the pleadings. Indeed, the code is stricter than the old practice, since defenses must now be pleaded, or answered, which before might have bpen proved under issues; which technically were but a denial of facts set forth in plaintiff's declaration. And this language seems to cramp the pleading in a case in equity down to the strict rules of common law, compelling the pleader in his answer to deny, generally or specially, all or some of the material allegations in the petition, and set up new matter as in a plea at law, and not as in an answer in chancery. The code borrows the language of a court of equity, but adopts the definitions of a court of law. Whether equity causes can be successfully defended under this Procrustean system, is a matter of great doubt, and worthy of the gravest consideration. In a chancery case, the issues must be the same as in an action at \a,v— single, certain, and XXIX.j TEIAI,. *' 499 What is a Trial? Issuea of La^w. ■material. Thsijt there is difficulty in carr)'ing out the code in this particular, is clear from the fact that, in a judicial career of over two years under the code, we have never seen the pleadings in a case in equity, which could be upheld within the strict letter and language of the code. And courts have been compelled to hold that this language must beexpoiuided according to the two previous systems-r-either as language applied to pleadiJngs at law or in equity-^according to the nature of the case. Such, then, must be the issues in a case, before court can be called upon to proceed to the next step — « Trial. CHAPTER XXIX. TRIAL. I. What is a Tbial? Sec. 262. A trial is a judicial examination of the issues, whether of law or of fact, in an action. " This section is, so far as an issue of fact is concerned, merely declara- tory of the existing law. 3 Blk. Com. 330. It is true it includes the examination of issues of law, as well as of fact, within its definition, so that what was formerly an arffumenl or hearing is now a trial. This is the only difference between a trial under the code, and under the former system." Per Gridley, J., Dodd v. Curry, 4 Pr. Eep. 123 • Issues of Law. Issues of law must be tried by the court, unless referred under the pro- visions of section 281. The trial on a demurrer must be followed by judg- ment, unless the court grant,a new trial, with leave to amend the pleading. 500 *TEIAI>. [chap Issues of Law — Of Fact — Specific Persinal Property. It is not seen how, under the code, the right to amend can otherwise be reached; there has been a trial and verdict by the court on tlie issue pre- sented; and so long as this verdict stands, so long there can be no amend- ment — no further trial. The code, after calling the decision on a demurrer, a trial, makes no provision whatever for a judgment on this curious verdict; and yet the party can not answer over without the leave of the couit. There is a sort of implication that judgment may be rendered under section 376, providing for judgments upon a failure to answer. It is to be supposed that an issue of law in a case shall be first tried, though our code, unlike that of New York, makes no provision for this matter. It is supposed, how- ever, that the court can exercise its own discretion in the matter, and try first whichever it chooses. As both issues of law and fact can not be submitted to the same tribunal, and tried at the same time, the court is com- pelled to dispose of all legal questions before it can say that there is any thing for a jury to pass upon. Issues of law must, therefore, be first tried. Issues of law may be referred, by the consent of the parties in writing, or orally in open court, to referees, and they are substituted for the court, as a tribunal selected by the parties. The report of a referee on the law must be conclusive. The tribunal is of the parties' own creation, and they must abide by its decision. Brown v. Clay, 31 Maine Rep. 618. Issiies of Fact. Sec. 263. Issues of fact, arising in actions for the recovery of money, or of specific, real, or personal property, shall be tried by a jury unless the same is waived. .j This section must be construed with reference to the Constitution. The parties are entitled to a jury trial in alt actions founded on legal rights, in which they would have been entitled to such a trial when the present Con- stitution was adopted. Questions of fact, arising in cases of equity juris- diction, can alone be tried by the court. It matters not what is the language of the code; it must be construed to mean this, or otherwise it violates the Constitution; and this is probably what it intends to mean. The distinc- tion between an action at common law and a suit in chancery arises when ever the question is presented — By whom shall these issues of fact be tried? Specific .Personal Property. — This applies only to actions of the nature of the old action of replevin, where possession of the property is the prayer and object of the suit. If its value, and not its possession, is sought to be XXIX.] TEIAL . 501 Xssues of Fact — Specific Real Property — Of Money. . recovered, then it is an action for the recovery of money. Cahoon v. Bank of Utica, 4 Pr. Rep. 423. I Specific Seal Property. — This applies to actions looking to the recovery of the possession of a specific tract of land. In other words, it is restricted to an action which seeks what was heretofore sought by an action of eject- ment, and can be applied to no other action about real estate. The plaintiff must have a legal title, and recover on that. If, having an equity, he seeks for a decree to clothe him with the legal title, that is an action for a convey- ance, and not for the recovery of the land, save as an incident to the main relief. * Of Money. — This, of course, applies to every case of common law right, where, by the Constitution, the parties are entitled to a jury trial. Money must be the object of the suit, either as a sura certain, or as damages for the the violation of a right. It does not apply to eases where something else is the object, though money may be the result; as actions seeking for an account between partners, against trustees, for the surrender of notes, and for the payment of a small sum received on certain notes after paying a cer- tain debt. A assigned to B certain notes as a collateral security for a debt, and E collected on the notes a sum more than sufficient to pay his debt, by some ?590; A filed a complaint setting forth these facts, and prayed for the delivering up of the notes, and the payment of the $90. It was held by the Court of Appeals that here was but one cause of action, and that of equity jurisdiction. Cahoon et al. v. Bank of Utica, 3 Selden Rep. 486. This case shows that it is not enough that money may follow as a conse- quence; it must be the single object of the complaint, and not the result of some intermediate act or order, like an account, or the specific execution of a contract for real estate. Nor can the issue go to a jury, unless the whole action is for the recovery of money. The language is, "issues arising in actions for the recovery of money, specific, real, or personal property." If an action can be for the recovery of money, etc,, and for some equitable relief, then there can be no jury trial, because such an action is not an action for the recoveiy of money, etc., but for that and something else. This language s^ows that, whatever the codifiers might have meant about uniting equitable and legal causes of action, they could not have meant so to unite them as to require a jury to try the one, and the court the other. And that they could not have meant this, is apparent from the fact that no provision is made for the trial of such an action, except by the court, and that would be unconstitutional. All other issues are to be tried by the court, except those arising in actions 602 TEIAL. [chap Issues of Law — All Other Issues. for the recovery of money, or specific real, or personal property; hence, if the action is for the recovery of money, or specific, real, or personal propery, and for some equitable relief beside, the whole action must be tried by the court; but this would be unconstitutional. Hence, whatever this union is, it must be one which sends the whole case to a jury or the court for tr'al. This can only be done by keeping them separate, to be prosecuted sep- arately and tried separately. > All other issues are to be tried by the court. This can only mean that the equity jurisdiction is left just where it was before. If it means more than this, it is unconstitutional; and if it means less, then it must be be- cause the action is for the recavery of money, and nothing else. In New York is has been finally decided, after years of Egyptian obscurity, and through despair, to come back to this common sense view of the matter — a view which enables courts to administer justice according to law, which they could not do under any other construction of the code. It matters not what the codifiers meant; for necessity is a stronger law than the works of codifiers, crystalized into a statute of the State. The court may, however, order any issues of fact which it deems proper to be tried by a jury. This, however, is only declaratory of the powers ever exercised by courts of equity from the earliest times, ,ind of course must be exercised according to the well settled practice of courts of chancery. Let us state the whole argument as briefly as possible. The Constitu- tion declares that the right of trial hy jury shall be inviolate. When this Constitution was adopted, parties were entitled to a trial by jury in all com- mon law actions, where the amount in controversy exceeded one hundred dollars; and also in all actions of slander, false imprisonment, nuisance, e'-O. This right of trial by jury thus enjoyed is declared to be inviolate. In all these cases, therefore, a party is entitled to his trial by jury, as it existed at the adoption of the Constitution. Something is to be inviolate; and to he inviolate is to be beyond the power of legislative control; and this matter so to be inviolate, is the riffht of trial by jury; and this right was then well defined and settled by the old Constitution, and the laws then in force under it. It is the right of trial by jury as thus fixed by laws then in force, which is to be inviolate, unimpaired, untouched, unchanged. If the Legislature can in any way interfere with this right of trial by jury, as then existing, the right of trial by jury. is not inviolate, but subject to violation, toam'md-. ment, to change. Hence it is submitted that the SLCtv/hiohgiwes justices of the peace ji'ris- diction in sums over one hundred dollars and not exceeding three huwlred dollars, is unconstitutional. Rv the laws in forpp when the Constitutioi* was XpX.] TEIAI;. 503 Issues of law — All other Issues. adopted, a party was entitled to a common law jury of twelve men in all sums over one hundred dollars; this act says that the paity shall rot.be entitled to such a jury in sums between one and three hundred dollars. Is this to leave the right of trial by jury inviolate? We think not. But. it is said thsit the party can still have his trial by jury, by appealing his case; but suppose he is unable to give the necessary security, then he is as effecti^^lly deprived of this right to a trial by juiy, as if the law had absolutely prohibited its exercise. When the Constitution was adopted, he could have his jury trial , without the expense of a trial before a justice, and without being compelled to give security to pay any verdict which might be found againsit him. If in this way a party may be deprived of his trial by jury, without giving security, then he may in all cases, as well in those instituted in the Court of Common Pleas, as in those brought before a justice of the peace. And can any lawyer be found bold enough to defend as constitutional an act which should deprive parties of this i-ight to trial by jury in all cases, unless they should give security to pay the verdict rendered against them? Would such an act leave this right invio- late? We thinkjwt. And yet in all sums between one and three hundred dollars, a plaintiff by commencing hjs suit before- a justice is enabled to deprive the defendant of a jury trial, unless he can give security for au appeal. The plaintiff can obtain such a trial, if he chooses, by bringing his suit in the Court of Common Pleas; but the law places it in his power to deprive the defendant of such a trial, by suing before a justice. Is such a law uniform in its operation? We think not. This jury of six men before a justice is no jury in the sense of the Constitution. The Supreme Court has, however, decided that a jury of twelve men is necessary to try a criminal for stealing the smallest sum; and surely the word jury, can not be construed differently in these two clauses. It would be strange, if a court could hold that in the one case it meant a jury of twelve, and in the other a jury of any less number. The laws in force, when the Constitution was adopted, required a jury in a civil as well as in a criminal case, to be composed of twelve good and law- ful men; and surely when the Constitution speaks of a trial by jury, it must refer to the jury as already organized and used; and this jury can no more be changed in a civil than in a criminal case. If the word means twelve men in the one case, it can mean nothing less in the other. In all sums under one hundred dollars, parties were not entitled to a trial by jury in this sense, when the present Constitution was adopted. Hence they are not entitled to it now by force of the Constitution. This merely declares an exisliny right to be inviolate; but in actions then within the jurisdiction of justices of the peace, a party had no right to a triaj by jury. In such 504 TEiAx. [chap. Time of Trial. cases then, there was no right to be inviolate; and if the party has the same trial now as the law then gave him, he has still all the right he then had. It might be argued with much plausibility, that the right to a trial by a jury of six men iu sums under one hundred dollars was also a right coming within this provision, and therefore to be and remain inviolate. But this arg-ument would be more plausible than sound. Wherever under the. Constitution thus expounded, a party is entitled to a trial by jury, the code can not deprive him of it; hence its language must be construed so as to give such a trial in all cases; and in all cases formerly cognizable in a court of equity, a party is not entitled to a trial by jury, and the code in its terms does not require such cases to be tried dif- ferently from the mode heretofore adopted; that is, by the court. The true meaning then of the section is that cases founded on common law rights, and heretofore cognizable only in a court of law, must be tried by a jury; and cases heretofore of equity jurisdiction shall be tried by the court without the intervention of a jury. This construction guarantees all con- stitutional rights, and seems not to be in conflict with the language of the code. Unless some such principle is taken as a guide ig^ionstruing these sections of the code, nothing but confusion can follow. And this we be- lieve is the construction generally given to the code in this respect, in prac- tice. Such at least has been the uniform construction given to it in the Seventh Judicial District, and in all others as far as vr€ Love I«ii s-bie to learn n. Time of Teial. The trial docket is to be made up, for each term of the court, at least twelve days before the first day of the term, from the appearance docket. Each case on that docket undisposed of is to be placed on the trial docket, if at issue, in the order in which the issues were made up; and a case is at issue, if either party is in default for a pleading. No case can be placed on the trial docket, unless it is at issue in the above sense at least twelve days before the term of the Court. In comput- ing the twelve days, both the day on which the issue was made up and the first day of the court must be excluded; for where a number of entire days are required, both the day. of service and appearance are excluded. Den V. Fen, 3 Halstead Eep. 303; O'Connor v. Towns, 1 Texas Rep. 107; 1 Green, Iowa Rep. 164, 492. The court has authority to place certain actions on the (rial docket on motion of either party, which by law could not be placed there by the clerk. XXIX.] TEIAL. 50S Time of Trial. • 1. All actions in which the issues are made up between the time of maldiig out the docket and the first day of the term, may be placed on the trial docket and disposed of in their order. These cases have been entered on the docket as of course in tlie courts of the Seventh District. 2. All cases in whicl^ the issues should be made up during a term of the court. There is more difficulty about what cases come within this lan- guage. In law the term is but one day; and hence technically in no ca§e must the issue necessarily be made up during the term, un?!ss the rule day expires on the first day of the term. 'But in one circuit, it has been deci- ded that no case, in which the issue is made up after the last day on which cases are set for trial on the court docket, can be placed on the trial docket. The setting of the cases on the docket is an act of which all parties must take notice; and it may be claimed that the court, it is to be pre- sumed, will continue for that length of time; and hence parties must know that all cases coming to issue during that time may be placed on tlie trial docket. This view, however, is an extremely astute one; and it is doubtful whether in law it can be said that the issues should have been made during a term, unless the rule day falls on the first day of a term of the court. If the length of the term was fixed by law, unless earlier terminated by an adjournment, then there would be no difficulty in the matter. 3. Thero is still another class of cases, which are limited to those coun- tins in which the courts sit all the time, or nearly so. Section 308 provides 'that when by the times fixed for pleading, the issues are or should have been made up during a term of the court, such actions shall be tried at that term. This part of the section must apply to actions brought during a term of the court; and in such cases, whei'e the term continues until the time for making up this issue is past, the court may order the cases to be placed on the trial docket, and ^et down for trial during the term. This clause was un'Soubtedly introduced for the benefit of the bar of Hamilton county, and that is probably the only one where it will apply in practice. Still it is very doubtful whether the code authorizes a judgment under such circumstances. We think it does not. No case should be set down for trial on the day on which it is placed upon the docket. The defendant should have a day to apply for leave to plead; he can not know that the plaintiff will insist on putting the case on the docket, until it is done. It is a motion where no notice is required, and hence the court should exercise a sound discretion in the matter; affording defendants a. time to be heard after the cause is placed on the trial docket. The days for pleading and trial are by the code very much sh.crt- ened; and for this reason, the court ought to act cautiously in aiding those ■who appeal to its discretion; when by a little more expedition they might 509 , TBUJ>. [OHAP. Trial by Jury. have been in a condidpn to jasist upon a trial under the strict proTisiou* of tlue code, III. Teul by JnRT. Sec. 266. When the jury have been sworn, the trial shall proceed in the following order, unless the'court for special reasons otherwise direct: 1. The plaintiflF must briefly state his claim and may briefly state the evidence by which he expects to sustam it. 2. The defendant must then briefly state his defense, and may briefly state the evidence he expects to offer in support of it. These provisions are mandatory so far as the statement of the ?ase is concerned. The plaintiff must state his case, even if he has no case to state. If the defendant's answer admits his whole case, he is still required to state it; an absurdity, which it is difiicult to comprehend how it came into the code, unless it was copied without reflection. The very next pro- vision assumes the right position when it comes to speak of the introduc- tion of evidence. And why the party, on whom rests the burden of proving his case first, should not open with the statement of what the issue to be tried by the jury is, and then the other party state what he expects to prove as an answer to this, we are not able to understand. This reverses the whole practice which has hitherto prevailed on the trial of a cause. The party holding the afiSrmative stated his case first, and then the other party followed with his. But here stands the code, absolute, peremptory, un- qualified, with one single exception, so often introduced into the code, that the court yet 'may or may not follow this order, as to it seems meet. The rule is right or wrong. If wrong it ought never to have been enacted; if right, the court ought to have no power to dispense with it. 3. The party, who would be defeated, if no evidence were to be given on either side, must first produce his evidence; the adverse party will then produce his evidence. The rule was laid down by our Supreme Court in the following lan- guage: Where from the pleadings it is apparent that no evidence is required from the plaintiff, the defendant ought to open; but if any proof (no matter how slight) is required of the plaintiff, he must be allowed to open and close. Lexington Ins. Co. v. Paver, 16 Ohio Rep. 330. In England the rule or test has thus been stated. The test to determine the order of beginning at a trial, is to consider which party would bo entitled XXIX.] ^ fBIAL. SOY Trial by Jury. to tlie verdict, supposing no eridene6 given on eitlier side; as the burden of proof must, lie on his adversary. Leete v. Gresham Life lus. Society, 7 Eng. Law and Eq. Rep. 678. Tliere may a diflSculty in having a rigid rule like this. The defendant is required to begin, if in the absence.of any evidence, he wotild be de- feated. Let us apply this inflexible rule to cases that trill frequently occur under the code. The action is trespass for an assault and battery; the answer a justification. In the absence of all evidence, the defendant would be defeated; and yet the plaintiff must prove the amount of his damages or he can obtain only a nominal sum. What is to be done in such *i case? The defendant has the right to open; he produces his evidence, and then the plaintiff lias the right to produce his and not before. It would seem too that this evidence must be confined to an answer to that of the defendant; but supposing we get over this difficulty by saying he may then prove his damages; what shall we do in a case where the defendant refuses to offer any evidence? The plaintiff can not produce his evidence until the defend- ant has, and he refuses to produce any, letting the plaintiff have his ver- dict. There will be an innumerable number of just such cases. They will arise in all cases where the sum to be recovered sounds in damages, and where new matter constituting a defense is set up in the answer. It may be well after all, that the commissioners provided, in this matter as in 60 many others, after laying down the most precise and mandatory rules of pleading and practice, that the court may follow them or not just as it yleases. The phrase, unless the court for special reasons shall otherwise direct, probably leaves the whole matter to the discretion of the judge at the trial. Hitchcock, J., in the above case, in 16 Ohio Rep. 324, 330, Says: " There is, however, no such uniform ptactice as to who oiight to open and close, as would induce me to say it had become a principle of law for an error in which a judgment should be reversed." Yet Ld. Abinger, C. B., 'n Hacknian v. Fernie, 3 Meeson and Welsby Rep. 506, holds the following language: " We cannot agree, however, that this is a matter for the dis- posal of the judge at nisi prius. I can not say that we should interfere in a very doubtful case; but if the decision of the judge were clearly and manifestly wrong, tlie court would interfere to set it right. This is some- times a very important matter, and a departure from the usual rule mioht be attended with serious consequences." Vide also Geach v. Ino-all, 14 Meeson and Welsby, Rep. 95; 7 Eng. Law and Eq. Rep. 578, 680. It is still, under the code, a discretionary power, this changing these rules of the code; but whether it is a discretion to be exercised accord- fag \q fixed tidu, so that it can be revised on error, it is fdr the courts td 608 TEIAl. CHAT. * ~ Trial by Jury. decide. As a general rule, the exercise of a discretionary power can not be supervised on error. French v. Stanley, 21 Maine Rep. 612; Price v. Orange, Wright Rep. 668; Laiid'is v. Dayton, do. 659; 16 Vermont Rep. 12; Hodges v. Springer, 6 Blackf. Rep. 103; 6 do. 479; 1 Scam. Rep. 131, 143, 539; 6 Watts and Serg. 184; 6 Mo. Rep. 62; 16 Conn. Rep- 427; 2 Har. and Gill, 79; 3 Halst. Rep. 80; 7 Vermt. Rep. 476, 634; Cranch Rep. 206; Breese Rep. 162; 11 Wheat. Rep. 280; 3 Stewart Rep. 172; 7 Cranch Rep. 152; 6 do. 280; 1 S. and R. 430. 4. The parties will then be confined to rebutting evidence, unless the court, for good reasons, in furtherance of justice, permits them to offer evi- dence in their original case. This is merely declaratory of the old practice. After each party has declared that they are through with their evidence, it is in the discretion of the court to admit further testimony. Prather v. Naylor, 1 B. Monroe, 244; 14 Peters Rep. 448. So the court jnay admit further testimony after the jury have retired, if the jury inquire of the court as to a fact. Common- wealth V. Ricketson, 6 Metcalf Rep. 412; Taylor v. Shemwell, 4 B. Monroe, 675; 1 Hill Rep. 300. 6. When the evidence is concluded, either party may request instruc- tions to the jury on points of law, which shall be given or refused by the court; which instructions shall be reduced to writing, if either party requires it. i'he object of this provision is to render compulsory what a court nevei declined, to indicate its opinions on legal propositions involved in a case in advance of the argument; so that counsel may argue the case as the court will give it to the jury. It often happens that counsel take one view of a case and the court another; and thus, the view of the court not being known in advance, counsel can not argue the real issue presented to the jury. There are cases where it is necessary to the ends of justice that this course should be taken, and we never knew a court to refuse to do it. The party asking the instruction must reduce it to writing, if the other party or the court requires it. The court is never required to draw up bills of exceptions. The party excepting must do this. See Sec. 294. 6. The parties may theu submit, or argue the case to the jury. In the argument, the party required first to produce his evidence, shall have the opening and conclusion. If several defendants having separate XXIX. J TRIAL. 5C9 Trial by Jury. defenses, appeal by diflferent counsel, the court shall arrange their relative order. The case of several defendants applies only to those having separate defenses. By this language it must be understood that the grounds o£ defense are separate; so separate as tp require separate answers or pleas. The mere fact that the parties have put in separate pleas does riot constitute separate defenses, if the same evidence is required to prove all the pleas. The defense in such a case is the same, though they have not joined in a single plea. But where all the parties to a bill, as drawer, drawee, and indorser, are sued together, their defenses are in their nature separate and different, and each should be permitted to manage his issue^as though it was a single case. So, sureties on a note may have a defense which is no defense to the principal ; as where time has been given to the principal. This equitable defense being now one, which can be set up to an action on the note. "In an action against several defendants," says Chitty, 3 G-enl. Prac- tice, 907, " unless they have pleaded separately, it seems to be an invariable rule that one counsel only can address the jury for all the defendants; though, if they have separately retained counsel, one counsel for each defendant may cross-examine every witness. (Bishop w. Bryant, 6 Car. and P. 485.) But if the several defendants have appeared separately by differ- ent attorneys, and also pleaded separately, then one counsel for each has a right to address the jury, as well as cross-examine witnesses. (1 Crom. M. and Ros. 416(. Formerly it was held that the right to several speeches, or even cross-examinations, only applies when the several defendants have defenses differeni or distinct from each other; and that if they all rely on the same ground of defense, only one'counsel can be heard to address the jury, and only one counsel can examine each witness upon the part of the defend- ants, in the same manner, as if they had appeared and ctjfended jointly. (4 Camp. Rep. 174.) And in ejectment, when several defendants defended in the same right, but by different counsel, it was held that only one coun- sel could address the jury, though each defendant might adduce separate evidence. (1 Mood, and Mai. 314, S. C; 3 Car. and P. 666.) This last must be the rule under the words of the code." The court has undoubtedly the right to require counsel, in the argument of a case, to confine himself to~legitimate argument upon the case made by the evidence. The object of a trial is to find the truth between the parties, and that should be the object if the counsel on either side, arid must be the object of the judge who presides at the trial. The temptation, unfortunately too often given way to, o*' trying to carry a verdict against the evidence. 5ld tEIAL. [chap. Trial by Jury. should over be resisted by honorable counsel. It leads in the end to a loose perception of the truth, and a disregard of her awful mandates by the counsel "who allows himself to be seduced into such a practice. It is not honest, and can be defended by no code of morals which does not justify falsehood. Such a course is a fearful wrong to one's moral nature, arid must ultimately produce a seared conscience — that fearful state of the mind, when the man no longer feels the awful sanctity of tnith, and the binding obligations of duty. It is, however, the duty of the court to hold the scales of justice, and see that by no subterfuge shall a jury be misled or induced to find the falsehood, instead of the truth of a case. Counsel sometimes chafe under such an administration of justice. From such men come your judicial reformers of a certain character; reformers, who wish to clothe a jury with the whole power of the court; not because the cause of truth will be pre- served, but because that is a tribunal with which verdicts can be carried. Such men have become corrupted by the practiije of the law; their object is not justice and truth, but simply verdicts and success. Some lawyers seem to rejoice in a reputation, not to be envied, that it matters not on which side they may be, they can carry any or either side of a case. Such a reputiition implies a Character with which truth is no longer an object of search; and all men, -who litigate not for truth, but to win, are eager, to employ them. Soon, frauds, and tricks, and crafts are resorted to in order to succeed; juries are tampered with, witnesses trained, and preju- dice, if possible, distilled into the ear of a court. It is to be hoped that such characters are not numerous, fl^he lawyer, who seeks only for the truth and law of a case, is constantly cultivating the highest powers of his nature, and growing daily more and more intellectual and moral, and is thus gradually approaching the highest point of human development. 7. The cotn-t may again charge the jury after the argument is con- cluded. The duty of a judge, in instructing the jury on the issues between the parties, is a very important and delicate one. Care is to be taken not to trench on the province of a jury in finding the facts, while the court does not allow them to be misled. The first duty is to make the jury comprehend what is the question or fact in dispute between the parties. The jury go wrong oftener,from not understanding the true issue, than from any wish to go wrong or do wrong in finding a verdict. And judges often fail in conveying to the minds of a jury the exact fact in dispute, or the issue between the parties, through a XXIX.] TEIAI.. 511 Trial by Jury. fear of exceeding the proper limits of a judge. In doing this, a judge need express no opinion as to what the truth is, on the evidence; he can still leave this to the unbiased action of the minds of a jury. But he should never omit this first duty of a judge, that of making the jury see the exact and naked point in dispute, and leaving that dispute to be settled by the yea or nay of the jury. Unless a charge succeeds in doing this, it has done very little, if any, good. So also should the judge make the jurjr understand the application of the law to the evidence, and its bearings upon the case, and upon the decision, which they are about to give. It often happens that there are many points in a case about which there is no dispute. It is well to ca,ll the attention of the jury to these undisputed facts, with the rejnark that as to these there seems to be no dispute. The object of this is to fix the attention of the jury upon the really contested fact, and to prevent them from wasting time and becoming confused on immaterial matters. Juries have been known to disagree or find verdicts contrary to the truth of a case, and that too on an issue about which the parties had no dispute. The judge had to call their attention to it as a fact in the case, which they must find; and as it was a fact about which there had been no dispute and' little said, jurors forgot that it had been proved or admitted. It is well, therefore, for the judge to point out the facts which are not disputed, and call the attention of the jury to the really contested points in the case. The jury will then give their whole attention to these points, and will usually decide them right, unless a criminal prejudice shall have by stealth crept into the jury box, and warpeithe minds of the jurors. A judge has the right to express to the jury his opinion as to the weight of evidence. Commonwealth v. ,Child, 10 Pick Eep, 262; Swift V. Stevens, 8 Conn. Rep. 431; Kinlock v. Palmer, 1 Rep. Con. Ct. 216« People V. Rathburn, 21 Wend. Rep. 509; Gale v. Spooner, 11 Vermt. Rep. 162; 11 do. 25. But while a judge has this right, it should be exercised only in those cases, and on those points, where there is really no dispute between the parties, and then only for the purpose of fixing the whole attention of the jury upon the real dispute involved in a case. Where, however, there are really contested facts, the jury should be left to pass upon them, after being made to understand what these really are. The court can state on this disputed issue what each party claims, and call the attention of the jury to the evidence, on which each claims that the truth is with him. Where the evidence is undisputed, a court ought to tell the jury what the law says the verdict ought to be. When the facts are not controverted, it is proper that the court charge directly upon them and give the law of 33 512 TKIAL. [chap Trial by Jiuy. the case applicable to the facts, without doubt, and without hypothesis, SwifL V. Fitzliugh, 9 Port. Rep. 39; Siras v. Sims, 2 Akb. Rep. 117; Wil- liiims V. Shackelford, 16 Alab. Rep. 218; Nelms v. Williams, 18 do. 650. Where there is no conflict in the testimony, the court may on the request of either party charge the jury that, if they believe the evidence, they must find for that party. Bryan v. Ware, 20 Alab. Rep. 687; Carter v. Carter, 10 B. Monroe, 327. Whei'e the court is asked to charge a jury on a series of propositions, if any one of them is not law, the court may refuse to give them. Ingle- bright V. Hammond, 19 Ohio Rep. 337, 346. Where an instruction to the jury is requested, a part of which is legally correct, and a part erroneous, the court is justified in refusing to give it. Atkinson v. Snow, 30 Maine Rep. 364; Uoyle v. Com'rs. of Baltimore Co., 12 Gill and John. 484; Doe V. King, 3 How. Mis. Rep. 125; Haggart v. Morgan, 1 Selden Rep. 422. A judge should endeavor so to shape his charge upon points of law that it shall raise distinct questions of law so that parties can save them, if they wish. And where there is really no conflict in the testimonj', the judge ought distinctly to say for which party the jury should find, if they find the facts as they are admitted to be. Sometimes a judge is unwilling to do this, and hence necessarily leaves both the law and the facts to a jury, in such a way, that, if the verdict is wrong, the party injured has no lem- edy. It is the duty of a judge, and should be his pleasure, clearly to decide every legal proposition, which can legitimately arise in the case. B}' such a course much time is saved, and the rights of parties fully pro- tected. Nor should a judge hesitate through a fear that he may err; he must decide according to his best judgment at the moment; and it is no disgrace if he should occasionally err; but it is a dereliction of dutj', if he wishes to avoid distinctly passing upon every question arising in the case throu'.ih anv such ionoble fear. Nor should he labor so to mix his instruc- tion with qualifications that it will be impossible for a jury to understand what it means, or for a court of errors to ascertain clearly what law waa propounded in it. Where there is no evidence tending to prove a fact, a judge can not be called upon to instruct the jury upon a supposed state of facts. Mitchell V. Mitchell, 11 Gill and John. 388; Nichols v. Stat«, 6 Misso. Rep. 6; 2 Iredell, Rsp. 61; 3 Humph. Rep. 466. Sec. 267. Whenever, in the opinion of the court, it is proper for the jury to have a view of property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown XXIX.] TEfAL. 513 Trial by Juiy. to them by some person appointed b)' the court for that purpose. While the jury are thus absent, no person, other than the person so appointed, shall speak to them on any subjeot connected with the trial. Sko. 268. When the case is finally submitted to the jury, they may decide in court, or retire for deliberation. If they retire, they must be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict, or are discharged by the court, subject to the discre- tion of the court to permit them to separate temporarily at night, and at their meals. The officer having them under his charge shall not suffer any communication to be made to them, or make any himself, except to ask them if they have agreed upon their verdict, unless by order of the court, and he shall not, before their verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon. Sec. 269. If the jury are permitted to separate, either during the trial, or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with, or suffer themselves to be addressed by, any other person, on any subject of the trial, and that it is their duty not to form or express an opinion thereon, until the cause is finally submitted.to them. Sec. 270. After the jury have retired for deliberation, if there be a dis- agreement between them as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court, where the information upon the point of law shall be given, and the court may give its recollection as to the tes- timony on the point in dispute, in the presence of, or after notice to the parties or their counsel. Sec. 271. The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity requiring their dischai'ge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing. There is little to be added to these sections. The court ought to see them executed, and more especially that the officer in charge does nothing to influence the jury. The jury may be discharged; but the ground of the discharge should appear on the record! Sec. 272. When the jury are discharged, the cause may be retried at the same or a future term, as the court may direct. It is a matter of dis- cretion with the judge; but it is hardly possible that parties can be ready at once for a retrial, since witnesses are usually permitted to leave as soon as the case is closed. &14: TRIAL. [chap. Trial by Jury. Verdict. Sec. 273. When the jury have agreed upon their verdict, they must be conducted into court, their names be called by the clerk, and the verdict rendered by the foreman. When the jury is announced either party may require the verdict to be polled, which shall be done by the clerk or court asking each juror if it is his verdict. If a juror answers in the negative, they must be sent oat again for further deliberation The jury are to give their verdict by their foreman. The law of Ohio has not provided for the appointment of a foreman to the traverse jury. In other States, the court appoints a foreman to the traverse jury, as well as to the grand jury; and hence a verdict rendered by the foreman is rendered by a known officer of the court. This provision, copied fi'om other States where a foreman is always appointed, is absurd here, where there "is no such officer known to our law. In polling a jury, no one but the court or clerk can propound the ques- tion, "Is this your verdict ?" If the juror answers "Yes," no further inquiry can be made; if one answers "No," the inquiry ceases, as that answer sends the jury back for further deliberation. A juror can not be examined touching his verdict, as to the grounds on which they were founded, whether he finds this fact or that. The code puts an end to such a practice, which we have seen sometimes indulged in to the disgrace of the administration of justice. It never had any apology in the law as under- stood by lawyers, though judges have been known to allow it. IV. Veedict. Sec. 274. The verdict must be in writing, signed by the foreman, and read by the clerk to the jury, and the inquiry propounded, "Is this your verdict?" If a juror answers "No," the jury must again retire; but if no dissent be expressed, and a polling is not called for, the verdict is com ■ plete, and the jury discharged from the case. This requiring of written verdicts is a new thing in Ohio, and is found in practice very troublesome. Nor was there any necessity for it here in Ohio, where the verdict is at once entered on the journal. In New York, where the clerk makes up the records and minutes after the judge has left, as near as I can judge from their code, it is necessary that he should have the verdict in a foi'm that can not be misunderstood. It is in practice found necessary, in a case of any difficulty, for counsel or the court to furnish XXIX.] TKIAL. 515> Vcvdipt of Jury. the jury with a written verdict for both parties, so that the jury can use either the one or the other, as they shall find. If the verdict is defective in form only, the same way, with the assent of the jury before being discharged, be corrected by the court. Hence, if the mistake is not discovered at the instant, there is no remedy but a retrial, however clearly the court and the parties understood what the jury intended to find. Under the old practice, the court conformed a written verdict so as to carry out the intention of the jury clearly expressed therein. 3 Ohio Ilep. 384. What is here meant by a defect in form, it may be difficult to define. It is supposed however to mean that if the verdict as written does, not express what the jury intended, then it may be so modified as to make it express the true finding of the jury. If it does not mean this, then it is worthless, since no judgment can be reversed for any mere formal defect. In Burhans v. Tibbitts, 7 Pr. Rep. 21, it was held that a verdict could be amended so as to make it conform to the facts, where there was no doubt as to them. Hence, a verdict defective in that sense, needs no amendment. Can a jury be sent out again to correct in substance a written verdict? This was constantly done under the old practice. 7 John. Rep. 32. So where the verdict did not respond to all the issues, the court might refuse to receive it, and send out the jury again; or discharge them if they could not agree on the whole case. Hurley v. The State, 6 Ohio Rep. 399. Sec. 275. The verdict of a jury may be either general or special. A general verdict is where the jury pronounce generally upon all or any of the issues either in favor of the plain tifi^ or defendant. This definition of a general verdict is unlike that at common law. The common law re- quired the verdict to find the issue affirmatively or negatively; that was a general verdict. By the code, it seems to be understood that by a general verdict, the jury simply say we find for the plaintiff, or for the defendant, without paying any attention to the issues made up between the parties. This is certainly a very loose way of allowing a jury to dispose of a case, to find a verdict, which does not require them to find specifically upon the disputed facts as facts between the parties. Juries, on such a theory, will be found agreeing, who never did agree upon the real disputed fact; and we say this advisedly, as we have known the case to happen. The code should be held to mean that the issue shall be found for the plaintiff or defendant, and then the record will show that the jury have discharged their duty by passing upon each disputed fact presented by the parties.' A special verdict is that by which the jury finds only the facts; it must find facts, and not the evidence by which they were proved; and the facts 516 TEIAL. [chap. Verdict of Jury. must be so found that only a conclusion of law is left to be decided by the court. The effect of such a verdict is, that the jury find the facts so and so, but not being advised whether on this state of facts, the verdict ought to be for the plaintifif or defendant, they refer that question to the court; if the court think the plaintifif is entitled to recover, then they find for the plaintifif and assess his damages at a named sum; if, however, the court think the judgment ought to be for the defendant, then they find for the defendant. This definition of a special verdict is merely declaratory of the previous practice. In Hambleton v. Dempsey et al., 20 Ohio Eep. 168, and in Lessee of Blake v. Davis et al., 20 do. 231, the court say: "A special ver- dict must find facts; it will not be sufiScient if it find the evidence only, and ask the judgment of the court upon that evidence." But where papers are oflFered in evidence to which the law has afiSxed a certain legal eflfeet, it will be sufficient in a special verdict to find that such papers were offered in evidence; it is tantamount to finding the fact. John v. Bates, Litt. Selt. Cas. 106; Bertrand v. Morrison, Breese Rep. 175; 1 H. and M. 235; 4 Rand. Rep. 504. No inferences can be drawn from a special ver- dict. 2 Baily Rep. 623; 8 Cowen R«p. 406; 8 do. 689. It can not be / amended without the consent of both parties. 8 Pick. Rep. 520 ; Man- ning V. Monaghan, 23 N. Y. 539. Sec. 276. The jury may render a general or special verdict, as thsy choose, in every action for the recovery of money only, or specific real property. The class of actions mentioned last are easily enough ascertained; but it is more difficult to tell what the other means; since all other actions but replevin, are actions for the recovery of money only, either as a sum certain ascertained by contract, or for damages to be ascertained by the court or jury. It may be that what was here meant was that class of causes of actions mentioned in section 120. Unless it is limited in that way, the two classes embrace every action a jury can pass upon except replevin; and yet the next clause of the statute seems to suppose there are many actions not included in these two classes. The probability is that the intention was to include only those causes of action where, after stating the contract, no other averment was necessary than an averment that the money had not been paid. And yet this language is the same in section 263, pointing out what cases are to be tried by a jury with the exception of replevin, and it is difiScult to give the words any more limited construction than in that section. Hence in every case that can bo tried by a, jury, except in replevin, the jury may find a general or a special verdict. A verdict in replevin xxix.J miAL. 617 Verdict of Jury. is provided for in the chapter relating to the action for the recovery of specific personal property. Sections 183, 184, 185, and 186, point out what the verdict shall be in replevin. Tlie special verdict or finding must be filed with the clerk and entered on the journal. This would seem to imply that the general verdict, though required to be in writing, need not be copied on the journal literally; but that the entry may be as heretofore, that the jury upon their oath afoi'e- said do find that, etc. — following the written verdict in substance as to the finding. It is believed that the practice has been both ways. It would seem that the latter is as well as the former; the written verdict remaining on file to show if the entry is right or not; and on a dispute whether the entry was justified by the written verdict, a bill of exceptions could be taken, containing a copy of the written verdict and the record exhibit- ing the one entered, a court of errors could be called upon to decide whether the verdict entered and the verdict returned were the same in substance. In all other cases the court may direct the jury to find a special verdict in writing upon all or any of the issues in the case. This of course applies only to cases where the court have directed an issue to be made up and tried by a jury, since the first part of the section includes all actions that must be tried bj'_ a jury, except replevin, and thjit is provided for elsewhere ■,n the code. The court also maj require the jury to return a written finding upon particular questions of fact, to be stated to the jury in writing. The object is to save legal propositions, which are involved upon such a finding. And this special finding, if it controls the case in law, and is inconsistent with a general verdict, shall control the latter. As where a general verdict is rendered for the plaintiff, and a special finding is returned as to a particu- lar fact. If the fact thus found in law shows that the plaintiflF has no right to recover, then the judgment will be for the defendant. The jury must, by their verdict, in actions where either party is entitled to recover money of the adverse party, assess the amount of that recovery. This applies to all actions, even to those where the petition .shows the exact amount the plaintiff is entitled to recover, where the defense is to the cause of action, and not to the amount of the recovery. There are' some' rales heretofore prevailing which are still applicable to a verdict under the code, as much as under the former practice. The verdict should comprehend the whole issue, or issues submitted to the jury; otherwise the judgment on the verdict will be reversed on error. 1 Ld. Raymond 324; 3 Salk. Rep. 372; 6 Ohio Rep. 227, 259; 6 do. 621; 9 do. 131; 21 Wend. I^ep, 90; J3 do,' 426; 6 do, 272; 3 do. 667. 618 TEIAL. [OHAP. Verdict of Jury. Where there are several issues, the jury may find some for the plaintiflf and some for the defendant. So in actions of tort against several, tli^ jury may find some guilty,, and others not guilty. 1 Arch. Pr. 213; 1 Cowen Kep. 322; 14 John. Rep. 166; 2 do. 382; 3 Hill Eep. 104; 4 do. 649; 6 do. 683; 6 Ohio Rep. 144. The jury can not in any case give damages to an amount exceeding that claimed in the petition. 6 Hill Rep. 76; 4 M. and S. 94. And if the jury find an amount exceeding that demanded in the petition, the plaintiff must either enter a remittitur for the excess of damages found by the jury over and above the amount claimed by the petition and enter a judgment for the amount so claimed; or he may ask leave to amend by increasing the amount claimed in the petition; but this can be done only upon the condi- tion that the plaintiflf relinquished his verdict, paid the defendant's costs of trial, and consented to a new trial. This was the practice before the adoption of the code. Dix v. Day, 3 Wend. Rep. 356; Curtiss v. Law- rence, 17 John. Rep. 111. Nor has the code changed this rule. Corning V. Corning, 2 Selden Rep. 97, 106. Where the judge at the trial had per- mitted such an amendment, without any condition, and judgment was ren- dered for the amount of the verdict, it was held by the Court of Appeals in New York, in Corning v. Corning, supra, that the judgment should be reversed, and on such reversal the plaintiflf might still remit a part, and enter judgment for so much of the verdict as was equal to the sura de- manded in the petition. . Vide also 1 H. Bl. 643; 1 Chit. Archb. 370; 6 Halsted Rep. 222. The damages in tort are not divisible. Where there are several defend- ants, whether they jointly defend, or defend separately, or a part defend and a part make default, there ought to be but one assessment of damages. There can be but one verdict as to damages, and for one amount against all those found guilty or against those found guilty and those in default. So where the jury found two guilty, and assessed different damages against each, the court rendered judgment against both for the highest sum. Hal- sey et al. v. Woodruff, 9 Pick. Rep. 666. This was clearly right, say the New York Court of Appeals, Real v. Finch, 1 Kernan Rep. 128, 136, in a case under the code. Vide also 6 Burr 2790; 6 T. R. 189; 6 Cowen Rep. 313; 1 Bibb Rep. 439. ' Where a part of the defendants are in default, or a part of the causes of action are unanswered, the jury must be sworn to try these issues and also to assess the damages against the parties in default, or on the unan- swered counts in the petition. 6 Cowen Rep. 699; 11 Coke 6; 2 B. and P. 163. But where some of several defendants suffer a default, and those who plead to issue are acquitted at the trial, the jury shall in some instances XXIX.] TEIAL. 519 Verdict of Jury. assess damages against those in default, and in some not; the rule in such cases being, that where the plea of one of the defendants is such as shows that the plaintiff could have no cause of action against any of the defend- ants, then no damages need be assessed, as, the verdict shows no light to recover against any one; but if the verdict merely shows that no recovery can be had against the one defending, while it leaves the liability of those in default unaflfected, then damages ought to be assessed against those in default. 10 Pick. Rep. 291 ; 2 Ld. Raym. Rep. 1372; 2 Strange Rep. 1 108; 2 Chit. Rep. 135. Where there are several counts the jury may give entire damages, or they may sever them, and give dam.iges on each count. Arch. Pr. 283. If the damages are entire and one count was defective, the courts in Ohio have held that, under the act of 1835, they will presume the damages were given on the good count and refuse to reverse. Johnston v. Mullen, 12 Ohio Rep. 10; Swearingen v. Bank of Mt. Pleasant, 13 Ohio Rep. 200. Before that act, the rule was the reverse. Nelson v. Ford, 5 Ohio Rep. 473. Where the jury return a general verdict, the court will enter judgment on the good counts, if the evidence is applicable to them, and leave the bad counts unnoticed; as though judgment had been arrested as to them. Por- ter V. Porter et al., 14 Ohio Rep. 220. A verdict can not be received on Sunday. Sunday is dies non juridi- eus; and by the common law, all judicial proceedings which take place on that day are void. Swann v. Broome, 3 Burr Rep. 1-596; PearQp v. At- . wood, 13 Mass. R«p. 324; Arthur v. Mosley, 2 Bibb Rep. 589. Our statute has made some exceptions to this rule; but they do not apply to the case before us, (a case of bastardy, tried on Sunday.) Chapman v. The State, 5 Blackf. Rep. Ill; Davis v. Fish, 1 Green Iowa Rep. 406. Such a ver- dict is void and a new trial will be granted. Shaw v. McCombs, 2 Bay. Rep. 232. But where the jury had been impanneled before Sunday, their verdict may be received on Sunday. Haghtiling v. Osburn, 15 J. Rep. 119; but no judgment can be entered on Sunday. So held too in Baxter V. People, 5 Gilman Rep. 368. Vide also Huidekoper v. Cotton, 3 Watts Rep. 56; Van Riper v. Van Riper, 1 South. Rep. 166. 520 TRIAL. fcHAP. Forms of Verdict. FORMS. 1. ENTBT OP IMPANNBLINO A JUBT. A B, plaintiff, ) V. > Civil action. C D, defendant.) a jury, to-wit, (^here insert the names,) who, being impanneled and sworn the truth to speak upon the issue joined between the parties upon their oaths do say that (Aere huert the verdict.) a. WHEN THE VEEDIOT IS COPIED. {Proceed as in the last to close of the swearing; then add:) upon their oath do here return into court the following verdict in writing, [here copy the verdict literally.) 3. ENTRY ON DEPATTLT FOB ASSESSMENT OF DAMAOES. And now came the said A B by his attorney, and the said C D still failing to demur or answer the said petition, it is considered that the said A B ought to recover his damages agtiinst the said D by reason of the premises^ and therefUpon, on motion of the said A B, came a jury, to- wit, (^here enter the names,) who, being duly impanneled and sworn well and truly to assess the damages so sustained by said plaintiff, do upon their oaths say that the said plaintiff has sustained damages by reason of the premises to the sum of $ Or, do upon their oaths return here into court their verdict in writing duly signed by the foreman of said jury, which verdict is in the words following, (here copy it, with signature of the foreman.) 4. VERDICT FOR PLAINTIFF ON GENERAL DENIAL THAT COMPLAINT IS NOT TEnB The jury impanneled in this cause do upon their oaths say that the said several matters and things, in the petition of the said plaintiff con- tained, are true in manner and form Ss the said plaintiff hath therein alleged against the said defendant; and the jury do assess the damages of the said plaintiff, (or the sum due to the said plaintiff, where the action does not sound in damages, ) by reason of the premises, tc $ W T, Foreman. XXrX..], TEIAL. 531 Forms of Verdict. 6. VBEDIOT FOR DEFENDANT. A verdict for defendant is just like the above, except inserting the word "not" before "true," and omitting the assessinent of damages. 6. VBBDIOT ON NIL DEBIT. The jury impanneled in this case do upon their oaths say that the said defendant is indebted to the said plaintiff, as the said plaintiff hath in his said petition alleged against him, in the sum of Z W T, Foreman. 7, VEEDIOT FOR DEPENDANT. (Proceed to the worrf " defendant;" then proceed:) is not indebted to the said plaintiff in any sum, as the said plaintiff hath in his said petition alleged against him. W T, Foreman. 8. VERDICT FOR PLAINTIFF ON AN ANSWER DENTING THE EXECUTION OF A NOTE, BILL. CONTRACT, ETC. And the said jury, impanneled in this case, upon their oaths do say that the said defendant did make and deliver the said promissory note, {or bill of exchange, or check, or contract,) as the said plaintiff hath in his said petition alleged against him; and the said jury do further say, that there is due from the said defendant to the said plaintiff, by reason of the premises, the sum of $ . • W T, Foreman. 9. VERDICT FOE DEFENDANT IN SIMILAR OASES. (Proceed as in last to the words "did make;" then say:) did not make and deliver the said promissory note* [or bill of exchange, etc.,) as the said plaintiff hath in his said petition alleged against him. W T, Foreman. 10. VERDICTS ON VARIOUS SPECIAL ISSUES ON NOTES AND BILLS OF EXOHANOE, And the said jury, impanneled in this cause, do upon their oaths say — 1. TJM,t the said did indorse and deliver the said prom- issory note, (or bill of exchange, or other written instrument,) to the said , as the said plaintiff hath in his said petition alleged. 622 TEiAL. , [chap. Forms of Verdict. 2. That the said promissory note, (or bill of exchange, etc.,) was, when the same became due and payable, duly presented to the said for payment, and payment thereof refused, as the said plaintiff hath in his said petition alleged. 3. That the said defendant did have due and legal notice of the said demand, and non-payment of the said promissory note, (or bill of ex- change, etc.,) as the said plaintiff hath in his said petition alleged. 4. That the said did accept the said bill of exchange in said plaintiff's petition set forth, in manner and form as the said plaintiff hath therein alleged. 6. That the said bill of exchange, in the said plaintiff's petition described, was duly presented to the said for acceptance, ana the acceptance thereof by the said refused. 6. That the said defendant had due and legal notice that the said bill of exchange, (or check,) in said plaintiff's petition described, was pre- sented for acceptance to the said , and that the said , on such presentation, did refuse to accept the same. 7. That due and diligent search was made, when the said bill of ex- change, (or note,) became due and payable, to discover the residence and person of the said , at , and elsewhere, in order that the said bill of exchange, (or check, or promissory note,) in said peti- tion described, might be presented to the said for payment, as the said plaintiff hath iil his petition alleged. And the said jury do further find that there is due and payable from the said defendant to the said plaintiff, by reason of the premises, the sum of $ . W T, Foreman. These are given as specimens of verdicts on special issues under the code. They can be turned into a verdict for the defendant, by the simple addition of the negative. 11. VERDICT ON PLBX OP PATMBNT, i V A B, plaintiff, 1 V. > Petition. C D, defendant.) And the said jury impanneled in this case, do upon their oaths afore- said say that the said defendant did (or did not) pay to the said plaintiff the said sum of money so claimed by th? said plaintiff' in his said petitioa xxni.] TRIAL. 623 Forms of Verdict. dgainst the said defendant, in manner and form as tbe said defendant hath in his said answer alleged. W T, Foreman. 13. TO FLEA OF TENDER. And the said jury impanneled in this action, do find that the said defendant did (or did not) tender to the said plaintiff the said sum of $ , so claimed by the said plaintiff in his said petition against the said defendant, in manner and form as the said defendant hath in his said answer alleged. W T, Foreman. 13. VEEPICT ON ANSWER OP PAYMENT OF FIXED SUM AND NOTHING BEYOND. And the said jury impanneled in this cause do, upon their oaths aforesaid, say that the said defendant did pay to the said plaintiff the said sum of $ , as he hath in his said answer alleged; and the said jury do further say that the said defendant does not owe the said plaintiff any sum of money whatever beyond the said sum of $ , as the said defendant hath in his said answer alleged. Or, the said jury do further say that the said defendant is indebted to the said plaintiff in the further sum of $ beyond the said sum of $ so as aforesaid alleged to be paid. • W T, Foreman. 14. WHEN DEFENDANT ADMrTS A CERTAIN SUM DUE AND DENIES A BALANCE. And the said jury impanneled in this case do, upon their oaths afore- said, say that the said defendant is not indebted to the said plaintiff beyond the said sum of $ , as he hath in his said answer alleged. W T, Foreman. 15. VBEDIOT ON SAME FOR PLAINTIFF. And the said jury impanneled in this cause do, upon their oaths afore- said, say that the said defendant does owe to the said plaintiff the further sum of $ , beyond what he hath in his said answer admitted ; and so the said jury further say that the said defendant does owe to the said plaintiff the sum ftf # , (this should be the amount of the sum admitted and of the sumfomid due beyond that.) W T, Foreman. 524 TKIAL. [chap. Forms of Verdict. 16. VBEDICT FOR THE PLAINTIFF ON NOT GUILTY. And the said jury impanneled in this cause do, upon their oaths afore- said, say that the said defendant is griilty in manner and form as the said plaintiff hath thereof com]|laiiiedagainsthim; and the said jury do assess tho plaintiff's damages by reason of the premises, to be $ W T, Foreman. IT. VEEDIOT FOB DEFENDANT ON SAME. And the said jury impanneled in this cause do, upon their oaths afore- said, say that the said defendant is not guilty, in manner and form as the said plaintiff hath thereof complained against him. W T, Foreman. 18. A SHORT VERDICT, ON AN ANSWER , SETTING UP NEW MATTER OP DEFENSE. And the said jury impanneled in this cause do, upon their oaths afore- said, say that the said several matters and things in the answer of the said defendant (or in the first, second, etc., plea in the answer of said defendant, ) contained, are true, in manner and form as the said defendant hath in his said answer (or, in the said first, or second, etc., plea of his said answer) alleged. This form of a verdict may probably answer in all cases where the answer contains new matter, constituting a defense. It can easily be turned into a negative verdict by inserting the word "not" before (i-ue. Some such form as this must be adopted, or the verdict must recite the whole answer or plea, aflBirming or negativing it, as the case may be. There can be no necessity for reciting the whole plea or answer, so that a form is adopted, and is recognized to mean what is wanted — a full affirmation or denial of the truth of the facts set up in the answer; the shorter it is, the better. Un- der the old system, this was al&ost universally the case. A long plea of justification was met by a replication that he did the act complained of, of his own wrong, and without the excuse set up in his plea; and the verdict simply found the defendant guilty as charged, and that he did the act, not of his own wrong, but for the reason in his plea set forth. Form is here everything for the clerk, as he then knows when he is right, and when not. It is also of great convenience to all parties to have a recognized form, in which a verdict shall be worded so as to deny or affirm those answers which contain new matter, constituting a defense. There is then no ground for debate; any one will know what that means, as well as what a verdict of non assumpsit means. XXIX.] TRIAL. 525 Forms of Verdict. 19. TBEDICT IN CASE OF SET-OFF. And the said jury, impanneled in this cause, do, upon their oaths afore- said, say that tliere is due and payable from the said defendant to the said plaintiff, for ^he cause (or causes) of action in said petition set fortli, the sum of $ ; and the said jury do further, upoti their said oaths, say that there is due and payable from the said plaintiff to the said defendant, by reason of the said matters by said defendant, in his said answer of set-oflF, alleged, the sum of $ ; and so the jury do further say, upon their said oath, that the said does owe to the said , $ , over and beyond the sum so as aforesaid 'found due from the said to the said W T, Foreman. This last part of the verdict will be filled up with the name of the party in whose favor the balance may be found, whether plaintiff or defendant. It is probable that this finding of a balance is unnecessary, as the court could render the proper judgment on tJie two sums first found. aO. VEKDIOT WHERE STJrr IS 0>r A NOTE WITH COHNTEEOLAIM ARISING ON SALE AND BREACH OF WARRANTY. And the said jury, impanneled in this cause, do, upon their oaths afore- said, say that there is due from the said defendant to the said plaintifif, by reason of the cause of action by the said plaintiflF in his said petition alleged, the sum of $ ; and the said jury, upon their oaths aforesaid, do further say that the said plaintiff did warrant the said horse to the said defendant as sound, as the said defendant hath in his said answer alleged; and that the said horse was not sound when so sold and warranted by the said plaintiff to the said defendant; and the said jury do assess the damages of the said defendant, by reason thereof, to $ ; and so the faid jury aforesaid, upon their oaths aforesaid, do say that the said defendant does owe to the said plaintiff, after deducting the damages of the said defendant so as aforesaid assessed, the sum of $ W T, Foreman. This form can readily be shaped to suit any case where a counterclaim is interposed. 2 1 . TBRDIOT IN AN ACTION FOE RENT, WITH A COUNTBEOLAIM ON A COVE- NANT TO MAKE NEW FENCES. And the said jury, on their oaths aforesaid, do say that the said defend- ant did make and deliver the covenant in the said petition alleged, and that 526 TRIAL. ' [chap. XXIX. Forms of Verdict. he does owe the said plaintiff, by reason thereof, the sum of $ ; and the said jury, on their oath aforesaid, do further say that the said plaintiff did make and deliver the covenant in the answer of the said defendant alleged, and that the said plaintiff hath not kept the same; and that the said defendant, by reason thereof, has sustained damages to the sum of $ W T, Foreman. a a. VBBDIOT WHBKB THE ACTION IS NOT ON THE LEASE. WITH A OOUNTBll- OLAIM FOK BBEAOH OF COVENANT. And the jury aforesaid, on their oaths aforesaid, do say that the said defendant is indebted to the said plaintiff, by reason of the matters in the said petition set forth, in the sum of dollars and cents; and the jury aforesaid, on their oaths aforesaid, do further say that the said plaintiff did covenant and agree with the said defendant, touching the use and occupation of the said premises, as the said defendant has in his said answer alleged; and that the said plaintiff has broken his said covenant and agreement, in manner and form as the said defendant has in his said answer alleged; and they do assess the damages of the said defendant, by reason thereof, to dollars and cents. W T, Foreman. These forms will suffice to show the form in which verdicts should ba drawn up and entered. It is impossible to frame a form for every cise, since the verdict must conform to the issues made rn the case. Still, the above forms will meet all ordinary cases that occur. CHAPTER XXX. TRIAL BX THE COURT. Sec. 279. The trial by jury may- be waived by the parties, in actions arisinff on contiacts; and with the assent of the court in other actions. It would seem bj' this clause that, in actions in replevin and for the ^recovery of real estate, a jury can not be waived without the consent of the court. So in all actions heretofore denominated actions ex delicto, the jury can not be dispensed with against the consent of the judge. The consent of the parties may be given in the following manner: 1. The party appearing may consent, at the trial, that the jury shall be dispensed with, when the other party fails to appear at the trial. 2. The parties may, by writing, signed by them and filed with the clerk, waive a jury. 3. It may also be done by oral consent, given in open court, and entered on the journal. Verdict. Sec. 280. The court need not state, its verdict, or finding, except gen- erally for the plaintiff or defendant, unless the parties request it with a view of excepting to the decision of the court upon the questions of law involved in the facts presented on the trial; then the court shall state in writing the facts found, separately from the legal conclusion of law drawn from them. This special finding of the court is like a special verdict, and must be entered on the record as the verdict in the case. And then a writ of error may be prosecuted on this special finding, without any bill of exceptions. It is a very convenient way of raising legal questions, when there is not much dispute about the facts; and in all cases where a special verdict is desired, it wilt be preferable to submit the case to the court, as the judge, in connection with the counsel, will be- much better qualified than a jury to find such a verdict. 34 (527) 528 TEIAL BY THE COtJET. [CHAP, Forms of Entry. FORMS. OONSENT. A B, plaintiff, 1 V. > Petition. C D, defendant.) And now comes the said A B, by his attorney, alid the said C D failing to appear at this trial, a jury in this cause is, with the consent of the said A B, now given in open court,- waived, and the same is submitted to the court upou the issue joined between the parties, and the court, after hear- ing the evidence and argument of counsel, do find a verdict in favor of the said plaintiff, and against the said defendant, for the sum of $ This form of entry is for a case where there is an answer in, and an issue made up, but the defendant declines to attend at the trial. The verdict of the court will usually respond to the issues, since there is no difficulty in the court making its finding responsive to the issues. A verdict for the defendant will be simplv that "the court find a ver- dict for the said defendant." a. CONSENT IN WEITING. The parties to this action agree that a jury is waived on the trial of this cause, and that the same shall be submitted to the court in lieu of a jury, to find upon the issues of fact arising 'therein. Dated, etc. A B, by E F, his Attorney. C D, by G H, his Attorney. 3. ENTRY IN BEOOBDS. This day came the said parties, by their attorneys, and thereupon a jury in this cause is waived by the said parties, and the same is submitted to the court upon the issue joined between the parties, according to the written agreement of the parties, signed by them, (or their attorneys) and hereto- fore filed with the clerk of the court; and the court, after hearing the evi- dence and arguments of counsel, do find, etc. XXX.J TEIAL BY THE CODET. 629 Forms of Entry. 4. ENTRT OF ORAL SUBMISSION. This day came the said parties, by their attorneys, and, in open court, waive a trial by jury in this action, arid submit the same to the court upon the issue joined between the parties; and the court, after hearing the evi- dence and arguments of counsel, do find that, {here enter the finding as the verdirl of a jury, unless a general verdict is entered, which will be as follows: a verdict in favor of said plaintiff; and against the said defendant, for the sum of $ .) Or, do find a verdict.in favor of the said defendant, and against the said plaintiff; it is therefore considered that the said plaintiff recover of the said defendant the sum of $ , together with his costs herein expended, taxed to $ Or, it is therefore considered by the said court here, that the said defondant recover of the said plaintiff his costs herein expended, taxed to S. DAMAGES ASSESSED BT THE COURT ON A DEFAULT. And now comes the said plaintiff, by E F, his attorney, and the said defendant still failing to demur or answer to the said petition, it is consid- ered that the said plaintiff ought to recover his damages by reason of the premises; and thereupon, with the consent of the said plaintiff and the court, this action is submitted to the court to inquire of and assess the damages sustained by the plaintiff by reason of the premises; and the court, after hearing the evidence and arguments of counsel, do assess the damages of the said plaintiff', by reason of the premises, to the sum of dollars and cents; it is therefore considered that the said plaintiff recover against the said defendant the said sum of dollars and cents, his damages aforesaid, in form aforesaid assessed, and also his costs in and about his action in this behalf expended, taxed to dollars and cents. Damages must be assessed by a jury or the court in all actions, except such as are for the recovery of money only, in which actions, the plaintiff, without any inquiry, is entitled to a judgment for the amount demanded in his petition. The affidavit of the plaintiff verifies the truth of the sum demanded in such actions. An action for the recovery of money only, is one where the petition avers an indebtedness for, or a promise to, pay a sum certain, and on vvhich sum interest is due from a fixed date. The breach must be the simple averment that the money has not been paid; if more is required, the action is not for money oid^/. CHAPTER XXXI. TEIAL BY REFEEETSS. I. What mat to bz so tried, and ■wbex. Sec. 281. Any issue of fact or law may "be referred upon the written consent of the parties, or upon their oral consent, given in court, and entered upon .the journal. Where a written consent is given, it must state the fact of the agree- ment to refer, and *he names of the persons, not exceeding three, to whom it is to be referred. The entry can then be made without the presence of tli« parties or their counsel. When it is given in open court, the entry w!ll 60 istate. Sbc. 282. Where the parties do not consent, the court "may, upon the application of either, or of its own motion, direct a reference in either of the following cases: 1. Where the trial of an issue of fact shall require the examination of mutual accounts, or where the account is on one side only, and it shall be made to appear to the court that it is necessary that the party on the other side should be examined as a witness to prove tlie account; in which cases, the referees may be directed to hear and report upon the whole issue, or upon any specific question of fact involved therein, or — 2. Where the taking of an account shall be necessary for the informa- tion of the court before judgment, in cases which may be determined by the court, or for canying a judgment into effect, or — 3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of an action. The court, in certain cases, may, on the motion of ieither party, or of its own motion, refer a case. (530) JXXI. TKIAL BT EEFBKBE9. 531 What may be so Tried. How Reference- tO' be Obtaiucd. Sec. 284. In all cases of reference, the parties, except when an infant may be a party, may agree upon a suitable person or persons, not exeeedinjf three, and the reference shall be ordered accordingly; and if the parties do not agre«( the court shall appoint one or more' referees, not exceeding three, who shall be free. from exception. Sfia 285. A reference-,, as provided in this chapter, can not be ordered by a Probate Court, unless by consent of the parties to the reference and »eferees. Sec. 287. A judge in vacation, upon the written consent of lihe parties, may make any order of reference which the court of whi«l» he is a member could make in. term time. In suck case the order of reference shall be made on the written agreement of the parties to refer, and shall be filed with the clerk of the court, with the other papers in the ease. The court is not bound to appoint, the referee or referees agreed upon; it must be satisfied that the person or persons are suitable to act as referees. Litchfield V. Burwell, 6 Pr. Rep. 341. If the referee act simply by tha assent of the parties, he acts without authority. Ibid. Where referees are appointed by the court, any defect in their appoint- ment is waived by proceeding to trial before them without objection. Renovil v. Harris, 1 Code Rep. 126; Coombs v. Wyckoffi, 2 Cain Rep. 147. A proceeding upon a reference is a waiver of all objectioins to the order of reference, on the ground of irregularity; but not of the objection that tho court had no jurisdiction to make the order. Garcie v. Sheldon, 3 Barb. S. C. Rep. 232. In Whalen v. Sup. of Albany, 6 Pr. Rep. 278, it was held that a written agreement to refer, with no rule ■ of reference entered, and a trial had before the referee, would be upheld and sustain a judgment.. The court say they would order a reference to be entered nunc pro tunc. This case is contrary to the one above in 5 Pr. Rep. 341, and could not be maintained as law in Ohio. The parties can not give him jurisdiction; that can only be done by the order of the court. It may amount to an arbitration, but not to a reference under the code. II. Ho-vv ISeference to be Obtained Where the order is made on the agreement of the parties, the produc- tion of the written agreement, or the oral consent given in court, is all that is necessaiy to justify the order. Where the parties do not consent, the reference is to be obtained by motion to the court. The motion must be founded on an affidavit; it must state that issue has been joined, and that the trial of the action will require 532 TEIAL BT KEFEEEES. [CHAP, How Kefereace to be Oblained. the examination of a long account, and not involve the examination of difficult questions of law. The affidavit must be made by the party him- self, and not by the attorney, unless a sufficient excuse for the omission is shown by the affidavit. MesicL v. Smith, 2 Pr. Rep. 7, 157, 164, 165 6 Hill llep. 548. The notice of the motion or affidavit, should contain the names of the proposed referees. 1 Caices Rep. 7, 149. It is usual to name three, but the court may appoint one or more. The motion can not be made until the issue is made up in the case. 1 Code Rep. N. S. 27; 2 do. 148. Iti opposition, to the motion, it may be shown by affidavit that difficult questions of law will arise in the case, (2 John. Ca. 402; 2 Gaines Rep. 251; 2 John. Rep. 374,) as the party is advised by counsel, and verily believes, (1 Gaines Rep. 149,) and if it clearly appears that such questions will arise, the motion will bo denied. 1 Pr. Rep. 168. The question of law must be clearly stated, so the court may decide upon its difficult}-. 6 John. Rep. 329; 6 Cowen Rep. 423. If parties disagree as to the referees, each may be permitted to name one, and the court a third.' 11 J. Rep. 406; 7 Wend. Rep. 483. Wliere both parties move for a reference, the court will give preference to the party first giving the notice. A reference can only be compelled where the court can see by tha pleadings, or other papers of the parties, that the trial of the case must necessarily involve the examination of a long account on either side. Keeler v. Poughkeepsie et. al., 10 Pr. Rep. 11. An .account, though con- taining many items, yet being a single purchase and made at one time, is not a long account, so as to warrant a reference. Stewart v. Elwell, 3 Code Rep. 139. One bill of goods, containing fifty items, delivered at one time, is in fact but one item. Swift v. Wells, 2 Pr. Rep. 79; Millers. Hooker, 2 Pr. Rep. 171. A case involving the examination of long ac- counts may be referred after it has once been tried by a jury. Brown v. Bradshaw, 8 Pr. Rep. 176. 1 Duor Rep. 635; and it was so ruled in Dis- trict Court of Seventh District. Where a question is involved in a case, on the finding of which the right to an account depends, as whether there was a partnership, a lefer- ence can not be made until the court has found this fact.- Graham v. Golding, 7 Pr. Rep. 260. Under subdivision 3, section 282, it has been said that it was undoubt- edly intended to provide for references in cases where questions of fact should arise, upon collateral matters in the case, in any stage of it, and not to those questions or issues of fact which are made by the pleadings. As for instaiice, whether an injunction has bee» violated, or the party is in XXXI.] TEIAI. BY EEFEEEE3. 533 Referees and Reference Defined. contfimpt for any cause alleged, the numerous questions which arise on motiot;, and in relation to the execution of the orders, decrees, and process of the court, and also upon petitions presented, during the progress of a cause. In such cases, and many others, the questions of fact, which are frequently sharply litigated, do not arise upon the pleadings, and may be referred by the court under the third subdivision of this section. Such are those cases, where the late court of chancery ordered a reference to the master, or directed issues to be tried by a jury. Per Welles, J. Flagg v. Munger, 3 Barb. Rep. 9; 2 Code Rep. 17. On a question of fact, says Roosevelt, J., in Meyer v. Lent, 16 Barb. Rep. 639, arising after judgment, it is obvious the court may appoint a referee, and invest him with all the powers necessary for its investigation. There may also be a reference of any specific question arising in an action where the taking of a long account is necessary, as, to ascertain what disbursements were made by an attorney, where he sues for these as well as for his services. Bowman v. Shelden, 1 DuerRep. 607. III. Referees Defined. A referee is a person to whom a cause pending in court is referred by the court to take testimony, hear the parties, and report thereon to the court, and upon whose report, if confirmed, judgment is entered. Bur- rill's Law Diet., title Referee. A referee, under the code is not merely a substitute for a master under the former practice, but is clothed with the power of a judge at a special term. When a specific question is referred to him, he takes the place of the court. Per Willard, J., Graves v. Blan- chard, 4 Pr. Rep. 303. IV. Hefeeexck Defined. A reference is a legislative substitute for a trial by jury. Per Spencer, J., 12 John. Rep. 218. The case is still in court, and the referee'is, in fact, the officer of the court, and bound to report his decision to the court, according to the order of reference. Where, by wiitten agreement, parties referred a case to A, but by mistake, on motion of one, it was referred to B, held tliat the reference was void; because one of the parties had never, orally or in writing, given his consent to the reference to B. The plain- tiff's standing in court was not in the least affected by the order. The statute was not followed, and the order was a nullity. Haner v. Bliss ot. al., 7 Pr. Rep. 246. 534 TRIAL BY EEFEEEE3. [CHAP. Powers of Referee. Eefcrenoe, wlicn Ordered. f. Powers op Refeeeb. The powers of a referee, in regard to causes referred to him to hear and determine, is not essentially changed in New York from what it was before the code. Holmes v. Slocum, 6 Pr. Rep. 218. Hence the prior decisions in New Ygrk are authority in the construction of our code, and may be referred to as illustrative of a practice new in Ohio, and resorted to in New York to avoid the delays incident to an overcrowded court calendar. The referee is invested with all the necessary power and authority over the cause and parties, to enable him to hear and determine every thing properly belonging to the trial of the cause. He is to try the issue which the court sends him to be tried. For every other purpose the action and the parties remain in court. The referee has no right to order an amend- ment of the pleadings, or to change the issue, which the court has sent to be tried. Holmes v. Slocum, 6 Pr. Kep. 218. Nor has the referee authority to order the production of books and papers, etc., by either party, where there is no provision to that effect in the order of reference. Frazer v. Phelps, 1 Code Rep. N. S. 214; 4 Sandf. S. C. Rep. 682. The power to order the production of books, etc., is lim- ited to the court. Ibid. The court will order the production of books, etc., on the certificate of the referee that they are necessary to the stating of an account. Ibid. A referee under the code is not merely a substitute for a master, but is clothed with the power of a judge at a special term. When a specific quos- ' tion is referred to him, his office resembles that of a master; when the whole issue is referred to him, he takes the place of the court; his report thereon stands as the decision of the court, and may be reviewed in like manner. Per Willard, J., 4 Pr. Rep. 303. Every referee appointed under the code has power to administer oaths in any proceeding before him. Sec. 383. They have the same power as ihe court to grant adjournments, and they have a reasonable discretion thereto. Forbes v. Frary, 2 John. Cas. 224. He can decide upon the question of costs. Ludington v. Taft, 10 Barb. S. C. Rep. 448. VI. Refeeenoe, when Oedeeed. Under this clause, no reference can be had when the parly is entitled io a jury trial. It is believed in New York that the Constitution of the XXXlJ TEIAL by KEFRREB3. 63a Eeference, when Ordered. ■State is not so strict as to the right of trial by jury as ours. This section (283) is a palpable violation of the Constitution, as its language is broad enough to include cases in which a party is clearly entitled to a jury trial. This comes of the servile copying of the New York code without under- standing what were the constitutional powers of a court in that State. This system of trial has been in use in New York for fifty years, and is in harmony with their organic law. Not so in Ohio. It is an innovation here, and not contemplated by the Constitution. The first rule then, in its construction, is the limits placed upon it by the Constitution; and these limits are, that in no case where the party is by tho Constitution entitled to a jury trial, can the court make an order of refer- ence without the consent of both parties. And this limitation applies to all actions for the recoveiy of money, or specific real or personal property. In other words, it applies to all actions in which the code declares that there shall be a jury trial. Consent of parties is in all these actions indis- pensable to the power of the court to make an order of reference. This section (283) then applies only to actions, which are founded upon squitable law, and would under the former practice be the subject matter oi a bill in chancery. It is an equity jurisdietion, and nothing else, including refei'ences to masters for particular purposes, as well as to referees to decide upon the case. An account, therefore, which can be referred, must be such an account as would have given a court of equity jurisdiction on a bill for an account. " Courts of equity," says Story, 1 Story's Eq. 424, "have for a long time exercised a general jurisdiction in all cases of mutual accounts, upon the ground of the inadequacy of the remedy at law; and have extended the remedy to a vast variety of cases, (such as to implied and con.structive trusts,) to which the remedy at law never was applied. So that now the jurisdiction extends not only to cases of an equitable nature, but to many cases, where the form of the account is purely legal, and the items, consti- tuting the account, are founded on obligations purely legal." Where then there are mutval accounts, charges on both sides, a reference may be had because it is a matter of equitable jurisdiction. Story says, (Ibid 439,) that courts of equity will entertain jurisdiction, where the account is all on one side — where discovery is also wanted in aid of the account. But the whole law of discovery being repealed, a court of equity has no ground to obtain .jurisdiction in these cases of one-sided accounts, and they become a matter of common law jurisdiction; and can not be referred without the assent of the parties. Where the account is all on one side, like a bill of goods, or several bills of goods, there can be no forced reference. There must be an accounting between the parties, in order to justify the reference; 536 TRIAL BY EEFEEEES. [oHAF. Reference, wlien ordered. and tho law of a court of equity is just as important now as it ever was, and queitions of jurisdiction between law and equity are equally important under the code as before. Tiie code manifestly contemplates a forced refer- ence, where the account. is all on one side; this is done' in New York, but it can not be done in Ohio without violating the constitutional right to trial by jury. Story again, 1 Eq. 441, says, "And on the other hand, where the accounts are all on one side and no discoveiy is sought or required; and also when there is a single matter on the side of the plaintift seeking relief, and mere set-ofFs on the other side, and no discovwy is sought or required; in all such cases courts of equity will decline taking jurisdic- tion of the cause." And an account, though containing many items, yet being a single purchase and made at one time, is not a long account, so as to warrant a reference. Stewart v. Elwell, 3 Code Kep. 139. A bill of goods, containing fifty items, delivered at one time, is in fact but one item, and a reference on such an account can not be granted. Swift v. Wells, 2 Pr. Kep. 79." As to subdivision 3, section 282, it has been said by Welles, J., in Flagg V. Munger, 3 Barb. S. C. Rep. 9; 2 Code Rep. 17. "It was undoubtedly intended to provide for references in cases where questions of fact should arise, upon collateral matters in the cause, in any stage of it, and not to those questions or issues of fact which are made by the pleadings. As for instance, whether an injunction has been violated, or the party is in con- tempt, for any cause alleged; the numerous questions which arise on motion; and in relation to the execution of orders, decrees, and processes of tho court; and also upon petitions presented during the progress of a cause. In such cases and many others, the questions of fact, which are shai-ply liti- gated, do not arise upon the pleadings, and may be referred by the court, under the third subdivision of this section. Such are those cases, where the late court of chancery ordered references to the master, or directed issues to be tried by a jury. " And yet where there are long accounts, as on the settlement of a part- nership, the court will not make an order of reference, where the partner- ship is denied, until that question is first settled. Graham v. Golding et al., 7 Pr. Rep. 260. The question is first to be settled, whether there is a partneiship, before there can be any right to an account. The same is true in regard to trusts, where the trust is denied; the court must find the trust before there can be any right to an account. This too was the old practice in chancery, before the code, and is founded on the very nature of the case to be tried. The pleadings in such cases allege two facts: 1. The partner- ship, trust, agency, etc.; and 2. A call for an account. The right to the Becoud depends upon the truth of the first; aud no court can more in taking XXXI.] TEIAL ET EEFEEEE8. 537 Proceedings on Reference. an account until it lias found the partnership, trust, agency, etc., to have existed. Tlie plaintiff has no right to look into the accounts of the defend- ant until he has proved, and the court has found, the ti-uth of the allega- tion upon which the right to do this depends. When a reference is made in such a case, that reference concludes the right of the plaintiff and the liability of the defendant to an account. This is a decree for an account, as it was called in courts of equity. VII. Peooeedixqs as Refeeknoe. Sec. 283. The trial before referees is conducted in the same manner as a trial by the court. They have the same power to summon and enforce the attendance of witnesses, to administer all necessary oaths in the trial of the case, and to grant adjournments, as the court upon such trial. They must state the facts found, and the conclusions of law, separatelj', and their decision must be given, and may be excepted to and reviewed in like man- ner. The report of the referees upon the whole issue stands as the decision of the court, and judgment ma}' be entered thereon in the same manner as if the action had been tried by the court. When the reference is to report th: farts, the report has the effect of a special verdict. bee. 286. It shall be the duty of the referees to sign any true exceptions taken to any order' or decision by them made in the case, and return the same with their report to the court making the reference. Sec. 288. The referees must be sworn or affirmed well and faithfully to hear and examine the cause, and to make a just and true report therein according to the best of their understanding. The oath may bo adminis- tered by any pei'son authorized to take depositions. The motion for the reference being granted, the referees should have notice of their appointment, (which is usually done by serving a copy of the order appointing them.) They then should appoint a time and place for the hearing, though such appointment need not be made in writing. Stephens v. Strong, 8 Pr. Rep. 339; 2 Jolin. Rep. 188. Ihe opposite party should have a notice of ten days of the time and place of meeting of the referees. 19 Wend. Rep. 121. Witnesses are compelled to appear before referees in the same manner as in cases of tri.ils in court, (Sec. 283;) and subpoenas, signed by thd referees, may be issued to summon, and attachments to compel, the attend- ance' of witnesses. 53S TEIAL BT EEFEKEB3. [CHAP, Proceedings on the Reference. If the plaintifiF should neglect to bring the cause to a hearing within forty days after order of reference, the defendant may serve a notice requir- ing the plaintiff to bring the case to a hearing within forty days thereafter. If the plaintiff fail to do it, the defendant may move the court for judgment as in the case of a non-suit. This motion will be denied on the plaintiff stipulating to proceed at once to a hearing. 4 Hill Rep. 52; 5 Wend. Kep. 101. If plaintiff needs further time,, he must ask it of the court. Or when the plaintiff omits to bring the ease to a hearing before the referees, the defendant may notice the cause for trial; and if the plaintiff fails to attend, and offer evidence in support of his claim, the referees may report in favor of the defendant. Williams v. Sage, 1 Code Rep. N. S. 358. VIII. Peoceedings on the Retecexce. The cause having been noticed, the referees must meet at the time and place designated. All the referees must meet together and hear all the proofs and allegations of the parties, and a report by two of them, in such case, is valid. If any of them refuse to appear, the court may compel them to do so, by an order requiring them to proceed to a hearing or show cause why an attachment should not issue against them. 1 Wend. Rep. 71; 3 John. Rep. 260. On the hearing the same rules of evidence are to be observed and tho same forms of proceeding pursued, as on a trial of a cause before ai jury. 6 Cowen Rep. 364. And the trial is to bf- conducted in the same manner as a trial by the court. The plaintiff may submit to a non-suit, or dismis- sal of his petition, or may be non-suited, of his' petition be dismissed, at any time before the cause has been finally submitted to the referees for their decision. In which case the report of the referees will be according to tho fact, and judgment may be rendered thereon for the defendant. After tho cause has been submitted, and the referees have retired, they may, in their discretion, open the hearing, and adjourn to recieve further testimony. 1 Wend. Rep. 104. The referees may adjourn the hearing from time to time as may be neces- sary, and, on good cause shown, grant to either party a continuance, so it does not extend beyond the time for making the report. They may adjourn on their own motion, without the consent of parties. 3 Hill Rep. 464; 22 Wend. Rep. Rep. 637. Two referees, in the absence of the third, have no power to adjourn to a particular day. 7 Wend. Rep rXXI.] TEIAX BT 1JEFEEB3KS. 539 Jleport of iRicfereea. 634; 22 d6. 637. If the referees adjourn improperly, they lose all power over the cause. 6 Hill Rep. 260. And a new order is required. In order to adjourn, all ithe referees must meet. 7 Wend. Rep. fi34; 22 do. 637. And where the hearing is postponed, they may require the payment of costs as a condition to the postponement. 12 Wend. Rep. 199; 18 do. 609; 5 Hill Rep. 275. The parties, as in case of a trial, may move to postpone on account of the absence of material witnesses. 1 John. Cas. 394; 20 John. Rep. 476; 18 Wend. Rep. 5'J9. After several witnesses have been examined before referees, as to the characters of other witnesses, the referees have a right to interfere, and refuse to hear further testimony upon that question. Green v. Brown, 3 Barb. S. C. Rep. 119. One of three referees, 'before whom a cause is tried, can not be examined as a witness on such trial. Morso v. Morse, 1 Code Rep. N. S. 374. Under our code either party may except to the opinion of the referees on matter of law, and they are required to sign a true bill of exceptions showinir such decision. Sec. 286. IX. RuroBT OF Refebess. The referees, having heard the cause, must make up their report in a reasonable time and return it; or the court will compel them to do it, oi to sliow cause why they should not be attached. 1 Wend. Rep. 71; 3 John. Rep. 260. The report must state the fiicts found and the conclusions of law sepa- rately. Church V. Erben, 4 Sandf. S. C. Rep. 691; Van Stcenburg v. HoflF- man, 6 Pr. Rep. 492. Where the report simply stated that the referees, after having examined the witnesses and parties offered, found there was due to plaintiff from defendant, sixty-three dollars, it was held that the. report must be set aside, as it did not set out the facts proved and the conclusions of law thereon. Doke v. Peek, 1 Code Rep. 64. Tlie report of a referee, to whom all the issues are refened, must state all the material facts put in issue and found by him, as well as his conclusions of law. Steenburg v. Heffman, « Pr, Rep. 492. Where «11 the leferees have heard the cause, a report signed by any two will be sufiicient; aE xoasi attend, or a j-epca't by two will be of jip validity. 11 J. Rep. 402. 640 TEIAL BT KEFEEEES. [cnAP When the 00111! will set aside Report. Judgmcut on Same. A report of referee.s, like the verdict of a jury, is, as a general nile, conclusive in a case of conflict of evfclence. Watkins v. Stevens, 4 Barb. S. C. R. 168; Haynes v. Symonds, 9 do. £63; 3 do. 634; 12 John. Rep. 219; Dorian v. Lewis, 9 Pr. Rep. 1. So the .same rule should prevail in equity cases. Burhans v Van Zandt, 6 Barb. S. C. Rep. ..1; 6 do. 4C9; Davis V. Allen, 3 Corns. Rep. 168 ; Lawson v. Bessel, 7 0. St. Rep. 129. X. When the Couet will SEt aside the Refobt. The report of referees, like the verdict of a jury, is only to be set aside ■where the finding is clearly against the weight of evidence, or where, upon the trial, some rule of evidence or principle of law has been violated. Green v. Brown, 3 Barb. S. C. Rep. 119; 7 Wend. Rep. 178; 2 Cowen Rep. 468; 7 Barb. S. C. Rep. 466; 7 Wend. Rep. 178; 25 do. 243; 6 do. 635; 1 John. Cas. 280. Where the referees certified they had oveilooked a matter, and wished the case sent back, it was set aside. 1 Hall Rep. 379. The error to require the court to set aside a repoit, must be a clear and decisive error, by which the party objecting has been injured. Ludington V. Taft, 10 Barb. S. C. Rep. 448. Where the referees unreasonably refused to grant an adjournment to enable a party to get a witness, the report was set aside. Forbes v. Tracy, 2 John. Cas. 224. But the court will not interfere in a matter resting in the discretion of the referees. Carpenter v. Haynes, 1 Code Rep. N. S. 414. Where improper evidence is admitted, yet if it clearly appears that no injury could have resulted to the party objecting, the report will not be set aside. Allen v. Way, 3 Code Rep. 243; Vallance v. King, 3 Barb. S. C. Rep. 648. Where, however, the evidence is essentially material, it will be set aside. Clark v. Crandall, 3 Barb. S. C. Rap. 612. XI. Judomext on BETcnT. A judgment will be entered on the report, as upon the verdict of a jury, and it is equally valid and binding. Pease v. Whetton, 31 Maine Rep. 1 17. The judgment will be entered in the cause on the report at the first term after it is made. A report and reference on a collateral matter must be confirmed before a judgment can be entered. Belmont v. Smith, 1 Duet Rep. 676. If the report is for the defendant, because the plaintiff failed to appear, the judgment ought to be a dismissal or non-suit. 1 Duer Rep, 695. XXXI.J TEIAL BY EEFEKEES. 6J:1 Fers. Fui'ins. XII. Fees. The referees are to be allowed such compensation for their services as the court may deem proper, to be taxed as a part of the costs in the ease. Tlie referees should report the days employed, and the amount to which they deem themselves entitled, and if it is unreasonable, either partycan apply to the court to alter the amount; if no such objection is made, then the charge ought to be taxed of course by the clerk as costs in the case. FORMS. u AOnEEMENT ON REFER. A B, plaintiflF, ^ County, ss.. V. J C D, defendant. ) Court of Common Pleas. The said'A B and C D do hereby agree to refer the trial and decision of this action to E F, G H, and J K, as referees to hear and determine the same, upon the issues joined between the parties. Dated this day of , A. D. 18 . A B, C D. a. ORDER OF REFERENCE TO AOREEMENT. Tho parties in this cause having filed their written agreement to refer this action to , to hear and determine the same upon the issues joined between the parties, it is ordered that the action be referred to the said , to hear and determine the same as aforesaid, and that the said refei-eej report their determination thereon to the next term of this court; or to the clerk of this court days before the next term of this court. 3. ON ORAL OONSEKT. And now came the said parties, and on their oral consent, now given in open court, it is ordered.that this action be referred to , to hear and determine the same as aforesaid, and that the said referees report their determination to the next term of this court; or to the clerk of this court days before the nest term of this court. 542 TEIAL BY EEFEBEE8. [CHAP. Forms. 4. BEPOBI OF BEFEBEES. The undersigned, L M, N 0, and P Q, heretofore appointed referees, in this action by this court at its term, A. D. 18 , now submit their report on the matters so referred to their hearing and deter- mination. The undersigned, on notice of their appointrdent, duly qualified by taking the oath required by law, and fixed upon the day of , A. D. 18 , at , in , as their first time and place of meeting, and notified the parties thereof; at which time and place the undersigned met, and the said parties appeared then and there by their attorneys, and thereupon the undersigned proceeded to hear the evidence and arguments of counsel; oa consideration whereof, we find, {here state the facts, not the evidence proved, and the issue found;) and upon this evi- dence we decided that the said plaintiff was entitled to recover against the said defendant the sum of $ , and we do therefore find for the plaintiff the said sum of $ , for which he is entitled to judgment against the said defendant. On the trial the said C D tendered his bill of exceptions, which was duly signed, and is herewith returned, marked A. L M, N 0, J- Referees. P Q. 0. ENTTT OF ADJOUBNMENT. And after hearing a part of the evidence, it is ordered that the hearing be adjourned to the day of next, at o'clock, A. M. The ]-eferees met according to the adjournment, and the parties being present, the hearing of the cause was proceeded in. 6. ADJOUBNMBNT ON MOTION. On motion of the said , the hearing of this case is ad- journed until the day of next, at o'clock, A. M., at this place. These are mere hints to serve as guides in making up the report. Tho report should find all the issues like a jury, Aod the unovnt of debt or XXXn.J EILt OF EXCKPTIONS. 543 Notice to Court. damages found. It should also state the case as found from the evidence, and the conclusipns anived at on the case thus found. Either party (Sec. 286,) has a right to tender a bill of exceptions to any ruling of the referees, who ai'e required to sign the same, if found to be true. This bill of excep- tions will, of course, be like one tendered in court, except stating a trial before referees. CHAPTER XXXII. BILL OF EXCEPTIONS. Sec. 291. Either party has a right to except to the ruling of the court or referee on any question of law which may arise during the progress of the trial; and under the code, this right .applies as well to the trial of a chancery case before the court as a law case before a jury. As evidence is to be produced at the trial of equitable cases, any questions arising upon it must be saved by a bill of exceptions. The party objecting to the decision must notify the court of it at tnc time the decision is made; he can not lay by, and after the trial is closed, and he is defeated, come in and object. The attention of the court or judo-e must be called to the fact that the objection is raised, so that the court mav act with the more deliberation. This is merely what the practice has always been. Hicks v. Person, 19 Ohio Rep. 426. Time maybe given to draw up the bill of exceptions, but not beyond the term. Jones v. State, 20 Ohio Kep. 34. Sec. 292. The bill of exceptions must state the exception, and so mucli of the evidence as is necessary to explain it, and no more. It must not only 544 Bnx OF EXCEPTIONS. [chap. To be of Record — May be Withdrawn. stale facts; it must show how these facts were material, and prejudiced the party objecting. Osburn v.. The State, 7 Ohio Rep. part i, 212._^ The evi- dence must be stated, to show that the question of law arose legitimately in the case. Watson v. Brown, 14 Ohio Rep. 473; Armstrong v. Clark, 17 Ohio Rep. 496; Coil v. Willis, 18 do. 28; 4 do. 388. Sec. 293. If the objection appear on the journals of the court contain- ing the entries in the case, then no bill of exceptions need be made out; but at the end of the entry, it should be noted that the party does except to the decision of the court. This will dpply to cases tried by the court, whether on a waiver of a jury or otherwise, and the court enters a special finding of facts on the minutes of the court.* "Where the facts do nqt thus appear, the party excepting must reduce his exception to writing, and present them to the court for its allowance. If they are found to be true, it is the duty of the court to allow and sign them; and then the bill of exceptions is filed with the papers in the case, as part of the record. The minutes of the court should show that the bill of exceptions was tendered, allowed, and signed. This entry is the only legal evidence of the fact. This was the constant practice of the old Su- preme Court, and the code has not altered it. The minutes of the court are the only evidence of its doings. If it is not true, the court shall correct it, or suggest the correction to be made. The party must present a true bill, or the court can not be required to sign it. The court must determine this matter for itself. The State V. Todd et al., 4 Ohio Rep. 361. No exception shall be regarded unless it is material, and prejudicial to to the substantial rights of the party excepting. The word substantial here means nothing. If the rights of a party have been violated, the court has BO right to weigh the quantum of injury sustained by the party. Sec. 296. A party on leave of the court, may withdraw his exceptions from the files at any time before proceedings in error are commenced, and before the same are recorded. The object of this is probably to save tbo expense of recording the bill of exceptions, when the party becomes satis- fied that there is nothing in them.^ • See note O, p. 805. f See note P, p. 805. XXXn.J BILL OF EXCEPTIONS. 545 Forms. FORMS. L OP EXCEPTIONS 1. BU, A B, plaintiff, J V. > Petition. C D, defendant.) Be it remembered that on the trial of this cause, in the Court of Com- mon Pleas, within and for the county of . , at the terra thereof, A. D. 18 , the said , to maintain the issue on his part ofFeied to prove to the jury that, etc., (here state the evidence offered, objected to and ruled out, and ,10 much of any other evidence as is necessary to show the materiality of the evidence (^ered as the party claims;') whereupon the said objected to the admission of said testimony, which 'objection was sustained by the court and said testimony ruled out, (or was overruled by the court and said testimony admitted, ) to which opinion of the court, the said excepted, and prayed that this his bill of exceptions in that behalf might be allowed, which is accordingly done ; and upon his motion ordered to be made a part of the record in this case. 2. ON A SUPPOSED MISDIKEOTION OP THE OOTTKT TO THE JtrET. Be it remembered that on the trial of this cause, in the Court of Com- mon Pleas, for the county of , at the term thereof, A. D. 18 , evidence had been given tending to show, (here state so much of the evidence as shows that the questions legitimately arose on the evidence in the case. To do this very little evidence need be set out, nor need it be stated with exact truth, as the only object is to show that the question did fairly rise and that the party was entitled to make it;) which instructions the court refused to give to the jury; but the court did charge the jury that (here state the charge as given,) to which refusal and charge the said excepted, and prayed that this his bill of exceptions in that behalf might be allowed, which is accordingly done, and upon his motion ordered to be made a part of the record in this case.. 3. EXCEPTIONS ON TEIAL BT COURT. On the rejection of evidence, it will be the same as the first form. On questions of instruction, it viUl differ somewhat. Follow the last form to the 646 NEW TEIAL. [chap When to be granted. close of the utatemcnt of the evidence, and ihenproceed;) and thereupon tlio said claimed that, {here set out what would be an instruction;) but the court held and so decided that (here state the law as laid down by the court;) and thereupon the said excepted, and prayed that this his bill of exceptions in that behalf might be allowed, which is accordingly done, and upon his motion ordered to be made a part of the record in this case. 4. JOURNAL ENTRY. And now came the said and presented his certain bill of exceptions taken on the trial of this cause; and tlie same is allowed and signed and ordered to be placed on file with the pleadings and made a part of the record in this case. CHAPTER XXXIII. NEW TRIAL. I. When to be Gkanied. Sbc. 297. New trials may be granted, on motion of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party: 1. Irregularity in the proceedings, of the court, jury, referee, or pro- vailing party, or any order of the court, or referee, or abuse of discretion, by which the party was prevented from having a fair trial.* What this subdivision means, we are unable to discover, unless it is a general assianment of the grounds for a new trial, of which the others • See Addenda, No. 9, p. 789. iXXra.J NEW TEIAL. 547 When to bo Sranted. are mere specifications. It seems, in its sweeping terms, to include every possible ground for a new trial; but it must be construed to be something difierent from the specific causes enumerated in the other subdivisions. 2. Misconduct of the jury, or prevailing party. 1. As to prevailing party. Any act of his tending to bring about a ■wrong verdict, will be ground for setting it aside. Any attempt by a party to influence a juror in the case, is good ground for setting it aside. It is not necessary to show that the mind of the juror was influenced by the attempt. Perhaps it is not in his power to say whether he was influenced or not. If he was, there is ?ufl5cient cause to set aside the verdict; and if he was not, and the party who has gained the verdict has a good cause, he will still be entitled to a verdict on another trial. We can not be too strict in guarding trials by jury from improper influence. This strictness is necessary to give due confidence to parties in the results of their causes. Too much care and precaution can not be used to preserve the purity of jury trials, and every one ought to know that, for any, even the least, intermed- dling with jurors, a verdict will be set aside. Knight v. Freeport, 13 Mass. Rep. 218. The safest rule is, that the verdict should always, be set aside, if there appear the least attempt by a parly to influence the jury. M'llvaine v. Wilkins, 12 N. Hamp. Rep. 474, 476; Hilton v. Southwick, 17 Maine Rep. 303. So where a party scattered handbills in court, and they were shown to the jury, reflecting on the otlier party's character, the verdict was set aside. If the prevailing parly has made communications to members of the jury, reflecting oji the cliaracter of his adversary, the verdict will be set aside. Caster v. Merrit, 3 Brod. and Bing. 267; S. C. 7 Com. Law Rep. 633; Reynolds v. the Cliam> Trans. Co. 9 Pr. Rep. 7. 2. As to the jury. Where the misconduct of the jury does not indi- cate partiality or corruption, the verdict will not be set aside, if the court are satisfied with it on other grounds. Commonwealth v. Roby, 12 Pick. ■ Rep. 520. The juror can be punished for his disregard of his duty and the instruction of the court. M'llvaine v. Wilkins, 12 N. H. Rep. 474, People V. Pouglass, 4 Cowen Rep. 26. But when any gross misbehatjor or legal impropriety in any of the jury, sufficient to destroy the credit of thg verdict, shall be made to appear, it will be set aside, and a new trial granted. 1 Mass. Rep. 530; 14 do. 206; 1 Pick. Rep. 38. Where the jury separate without leave of the court, it is not enough to justify setting- aside the verdict. 3 Ohio Rep. 63; 3 Bibb Rep. 446; 8 Pick. Rep. 170. The affidavits of jurors maybe received to impeach the conduct of other persons, like a party; but not to show misconduct on their own pari or that 54:8 NEW TEiAi. [chap. When to be Grauted. of their fellow jurors. Reynold's v. The Champ. Trans. Co. 9 Pr. Rep. 7; Taylor v. Gigev, Hardin Rep. 586; Steel v. Logan, 3 A. K. Marsh. 394; 19 Pick. Rep. 311; 1 B. Monroe, 213; 13 Com. Rep. 346. Nor will the affidavit of ^liird persons as to what they heard jurors say after being dis- charged, be admitted. Drummond v. Leslie, 6 Blackf. Rep. 463. Where a juror has heen discovered to have made declarations against a party before the time, it is good ground for a new trial, if not known at the time the jury were sworn. Busick v. The State, 19 Ohio Rep. 198. 3. Accident or surprise, which ordinary prudence could not have guarded against. The cases on this head are numerous They require the party to prove the surprise, how he was injured by it, and that no laches is justly attribu- table to him. 1 A. K. Marshall, 334; 3 McCord Rep. 258; 2 do. 313, 3 A. K. Marsh. 81; 1 do. 28; 4 Bibb. Rep. 70; 1 J. J. Marsh. 96; 1 Little Rep. 24; 9 Dana Rep. 134. Where a witness absents himself after he has appeared, so that he could not be found to be examined, it is a sui-pi-ise, and ground for a new trial. 25 Wend. Rep. 663. Surprise by ruling out documents which had been read without objection on a former trial, is good ground for a new trial. 9 DanS Rep. 26. 4. Excessive damages appearing to have been given under the influence of passion or prejudice. This is the rule heretofore recognized. It should not be done, unless the amount of damages is so flagrantly outrageous and extravagant, as to show that the jury acted corruptly, or under the influence of passion, par- tiality, or prejudice. Simpson v. Pitman, 13 Ohio Rep. 365; Fisher v. Pat- terson, 14 Ohio Rep. 418; 12 Pick. Rep. 547; 1 Bibb Rep. 247; 2 do. 691- 3 Dana Rep. 464; 9 John. Rep. 45; 10 do. 443. 6. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property. An inconsiderable excess of damages is no ground for awarding a new trial in an action of assumpsit. Litt. Sel. Cas. 178; 1 Dana Rep. 356; 6 John. Rep. 270; 4 Mass. Rep. 1, 41; 6 do. 436; 9 Pick. Rep. 11. If the costs of the trial, which the party has to pay is more, or as much as the error in the verdict, the courts will not disturb his verdict. SXXm.j NEW TRIKL, 649 When to be Granted. 6. That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law. Verdicts clearly and manifestly against the weight of evidence, should be set aside. 7 Mass. Rep. 261; 13 do. fi07; 4 Conn. Rep. 102; 12 do. 487; 3 J. J. lilarsh. 440; 3 Blackf. Rep. 304; 1 Bibb Rep. 334; but if there be conflicting testimony on both sides, a new trial will not be granted. 6 Mass. Rep. 263; IS do. 291; 7 Halst. Rep. 163; 4 Wend. Rep. 423; 6 do. 48; 2 do. 352;' 11 Conn. Rep. 440; 1 Mo. Rep. 13; 12 J. R. 454; 1 A. K. Mar- shall, 28; 6 Ohio Rep. 245; 6 do. 466; 22 Maine Rep. 131; 7 Mo. Rep. 61; 8 do. 642. The court will not set the verdict aside merely because they might, uppn the evidence, have arrived at a different result from that found by the jury. 12 N. H. Rep. 171; 6 Leigh Rep. 230; 5 do. 598; but where it is apparent that the jury must have misunderstood or totally disregarded the instruction of the court upon the evidence, or must have neglected properly to consider the facts, and must have overlooked prominent aiid essential points, in the evidence, so that substantial justice has not been done, the verdict will be set aside. 12 N. H. Rep. 171; 3 Sumner Rep. 170. The conviction must be strong in the mind of the court, that the jury have fallen into some error in regard to the nature and force of the evidence, before they will interfere and grant a new trial. 16 Maine Rep. 200. Where a case is fairly presented to a jury on conflicting evidence, a court never interferes. Oilman Rep, 70; 8 Mo. Rep. 431; 2 M'Lean 35. 7. Newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. The evidence discovered must be to a new point, and not merely cumu- lative; for in the latter case, where it is merely cumulative on a point dis- puted on the trial, a new trial will not be granted. 1 1 Ohio Rep. 147, 169; 6 Pick. Rep. 114, 116; 10 do. 16; 2 A. K. Marsh. 348; 6 Ohio Rep. 376; 8 John. Rep. 84; 1 Sumner Rep. 461. But if the newly discovered evi- dence is positive on a point, when the former was. merely circumstantial, a new trial will be granted. 4 Wend. Rep. 679. The evidence must be disclosed, and the motion- granted or refused ac- cording as the court may judge such evidence to affect the justice of the case. 1 A. K. Marsh. 188; 4 Ohio Rep. 6; 1 Gaines Rep. 24; 4 Ohio Rep. 44. It will not be granted where, with due diligence, the party might pre viously have had the benefit of the evidence. 1 Blackf. Rop. 367; 1 8 John. Rep. 489; 6 Halstead Rep. 250; 11, Conn. Rep. 16. 550 NEW TKIAl. [cnAP. When not to be Granted. iMotiou to be Made. 8. Enw of law occun-ing at tlie trial and gxcepted to by the party making the application. A verdict in accordance with the weight of evidence and with justice, ought not to be set aside on account of an erroneous instruction given by the court to the jury. 4 Blackf. 369; 5 Ohio Rep. 609, 613; 1 B. Monroe 46; 6 Humph. Rep. 476; 6 Dana Rep. 212; 6 Monroe 62; 20 Maine Rep. 325; 21 do. 512, 446. So where the instructions could not have prejudiced tlie party complaining. 4 B. Moni-oe 386; 6 Iredell Rep. 545; 23 Wend. Rep. 79; 21 Maine Rep. 446; 25 Wepd. Rep. 417; 21 do. 354; 7 N. H. Rep. 352. These authorities are not changed by the code. The errors are to be such as affect materially the substantial rights of the party complaining. Sec. 297. This part of the code establishes these authorities, and ren- ders them obligatory on the court. If therefore there is error, but it does not affect materially the rights of the party, he has no ground of complaint. If the verdict is still just what it ought to have been, if the error had not been committed, then no new trial should be granted. II. When nsw Teial, sdai,!. not be Granted. Se,c. 298. A new trial shall not be granted for the smallness of the dam- awes in an action for an injury to the person or reputation, nor in any other case where the damages shall equal the actual pecuniary injury sustained. This is substantially the old rule. III. When Motion to be Madb. Sec. 299. The application for a new trial must be made at the term the verdict, report, or decision is rendered, and except for the cause of newly discovered evidence material "to the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless una- voidably prevented. Sec. 30O. The application must be by motion upon written grounds, filed at the time of maldng the motion. The causes enumerated in subdi- visions two, three, and seven of section two hundred and ninety-seven must be sustained by affidavits showing their truth, and may be contioverted by affidavits. XXXm.J NEW TRIAL. 551 Grounds Discovered after Trial. The affidavits to prove extraneous facts must be taken and entitled in the cause, and set forth. the newly discovered evidence, or the facts, which prove misconduct in a juror, a party, a sheriff, or any other person, by which the party claims he has been injured. The motion should also state the grounds on which it is asked, whether the one or the other of the eight causes here enumerated. It is not sup- posed that there may not be other causes for which a new trial may be granted. It is a power inherent in the court, and the code does not restrict its exercise. In the case of misconduct of a party or juror, it may be well to state in the motion what the act of misconduct is; as that he spoke to a juror about the case, handed a paper containing statements in regard to the case to a juror, etc. It may not be absolutely necessary; yet it looks more lawyer-like on the record, and prevents the other party from pretending tohave been taken entirely by surprise. IT. "Where the Grounds are Discovered after the Term. Sec. 301. Where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee, or decision was I'endered or made, the application may be made by petition filed as in other cases not later than the second term after the discovery; on which a summons shall issue, be returnable and served, or publication made as prescribed in section sev- enty-two. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation, the case shall be heard and summarily decided at the ensuing term, and if in term, it shall be heard and decided after the expiration of twenty days from such service. The case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other cases, but no such petition shall be filed more than one year after the final judgment was rendered. This is a substitute for an application tc chancery for a new trial, and will probably be construed to mean the same thing. The rule as stated by our courts is, that a matter tried at law can not be re-examined in chan- cery, where no fraud has been practiced by the successful party, or no acci- dent has prevented a full and fair trial. 4 Ohio Rep. 469; 6 do. 80. A party can not be relieved in chancery against thr, consequences of his own mis- management. 7 Ohio Rep. part; ii, 175, If 7. Where the party had a good XXXni.J NEW TKIAL. 553 Forma. 3. That the court, in the trial of this cause, erred in rejecting the fividence offered by the defendant to prove, (here state very briefly its substance.) 4. That the court erred on the trial of this case in charging the jury *hat, (here state charge.) 6. That the court erred on the trial of this cause in refusing to charge the jury that, (here state the charge requested,) as the said defendant requested. 61 That the said A B, while said trial was pending, misconducted him- self in this, that he talked about this case to one , a juror on the trial of it, and while said case was still pending before the jury. 7. That one , a juror on the trial of this action, while so engaged, and after the jury had received the charge of the court, separated from his fellows without leave of the court, and drank intoxicating liquor to such an excess that he was disqualified from sitting as a juror and decid- ing upon the true merits of the same. 8.' That the said defendant has, since the trial, discovered new and • material evidence in this cause, of which he was entirely ignorant until after the case was given to the jury. 9. That the said defendant had summoned one , as a material witness for him, and that said witness was present when the jury in this case was sworn; but that he left without the leave or knowl- edge of the said defendant, and when called, was not to be found, whereby the said defendant lost said material testimony on the trial of this cause. 10. That the said defendant had summoned one , as a material witness for him, and that the witness became intoxicated without the assent, connivance, or knowledge of the said defendant, so that he could not be examined, whereby the said defendant was deprived of impor- tant and material testimony for the proof of his said cause of action, (ot of his defense to the said action.) a. JOTTENAL ENTRY. And now came the said parties, by their attorneys, and thereupon this cause came on to be heard, upon the mo'tipn of the said C D for a new trial, and was argued by counsel; on consideration whereof, it is ordered that the same be and is hereby overruled. 3. GKANTING NEW TRIAL. And now came the said parties, by their attorneys, and thereupon this cause came on to be heard, upon the motion of the said C D for a new trial, 552 NEW TRIAL. [chap. Forms'. defense and was prevented by accident, and without fault, or by fraud, from availing hinaself of it, equity would relieve. Walker Rep. 605; 1 S. and M. 608. Equity will not decree a new trial at law, on the discovery of additional witnesses to prove a fact which was involved in the issue, no fraud or surprise being alleged, 2 J. J. Marsh. 52. The grounds here stated are as broad as those stated before; but most of the others he must know in time to avail himself of them on a motion for a new trial. Misconduct of the jury or party, or newly discovered evidence, and accident, seem to be the only grounds that will come within this section, (301.) Then the party must be without neglect; he must show that, with diligence, he could not have discovered the facts or ground for the new trial until after the court at which the judgment was entered. The petition must show the former action, the nature of the claim, the defense, the term of the trial, the newly discovered evidence, or other ground; and that it was not known in time to be taken advantage of in any other way; and the prayer must be for a new trial. The case stated must show that the party is really injured; that the verdict is not what it would have been, if this evidence could have been received, and considered by the court, or jury. Unless the case presented does clearly show such a case, it is Submitted that a demurrer would lie to the petition, and on hear- ing, the same would be dismissed, should the court consider the case showed neglect, or that, admitting all that is claimed, it is clear that the first ver- dict was right. Surely a court can not be required to set aside a former verdict, when it is apparent to the court from the new matter that the first verdict is riaht. FORMS. 1. MOTION FOE NEW TRIAL. County, ss. A B, plaintiff, ) *' V. y Court of Common Pleas. C D, defendant.) And now comes the said C D, by E F, his attorney, and moves the court here for a new trial in this action, for the following reasons, to- wit: 1. That the damages given by the jury in this case are excessive. 2. That the verdict given in this case is against and contrary to the ■weight of evidence and the law of the case. 554 NEW TKIAL. [chap. FolTOS. and was argued by counsel; on consideration whereof, it is ordered that the verdict heretofore entered in this cause be and the same is hereby fet aside, and a new trial granted in this action at the cost of the said C D, tc be paid in days; and in default thereof, it is ordered that execution issue to collect the same. When a new trial is granted for an error of the court, costs abide the event of the suit; when it is granted for misconduct of the jury, or for a verdict against evidence, it is granted on payment of costs by tlie party asking for the new trial. When it is granted for the misconduct of a party, in equity, it should be at the costs of the misconducting party. 4. PETITION FOB NEW TKIAL. The said A B, plaintiff, complains of the said C D, defendant, for that the said C D did, on the day of , A. D. 18 , commence in said Court of Common Pleas a civil action against the said A B, to recover the sum of $ , with interest thereon from the day of , A. D. 18 , on a certain promissory note in said petition described; and that the said A B answered the said petition at rules, setting up that the said C D ought not to have his said action against him, because, (kere set up the substance of the defense;) and the said A B further avers that such proceedings were had in said action; that the same came on for trial before a juiy of said county, at the term, A. D. 18 , of said court; and that on said trial, the said jury returned a verdict in favor of the said C D, for the sum of $ , for which judgment was then and there rendered on said verdict in favor of the said C D, and against the said A B, for the said sum of $ , and costs of suit, taxed to $ ; and the said A B further avers that the said verdict is unjust, and ought, according to the truth of the case, to have been rendered in favor of the said A B, and would have been could the said A B have obtained evidence of the whole truth of said cause; the said A B further saith that since the trial of said action, and the' term of said court, at which the same was tried and judgment entered, the said A B has discovered new, material, and im- portant evidence for him on the point in issue between the said parties on the said trial; that on said trial it was a question in isme whether the said A B had paid to the said C D the amount of said demand so claimed by the said C D against the said A B, and that the said A B was unable to prove said payment for the reason hereinafter stated; and the said A B saith that there was one E F, who was present at the time said sum of money waa XXXni.] NEW TEIAL. 655 Forms. paid by the said A B to tlio said C D, and tliat after the most diligent search and inquiry, the said A B had beori unable to find the residence of the said E F up to the time of said trial; but the said A B avers that since the term at which said trial was had, he has discovered the residence of the said E F, at , in the county of , and State of , and can now obtain his testimony, and by the said wit- ness is able to prove that the said A B did, on or about the day of , A. D. 1 8 , as is alleged in his said answer, pay to the said C D, in the presence of the said E F, the said sum of $ , for which the said verdict was unjustly rendered. The said A B therefore prays that the said judgment and verdict may be set aside, and a new trial granted in said action, for the reason set forth as aforesaid. A B, by , his Attorney. No answer is necessary. The plaintiff must prove the truth of his petition. 6. JTTDOMENT OF EEVBESAL. And now came the said parties, by their attorneys, and thereupon this cause came on to be heard upon the petition of the said A B, and was argued by counsel; on consideration whereof, the court find that since the trial of the action in said petition described, the said A B has discovered new, material, and important evidence for him, the said A B, on the issue tried in said action; and that the said A B could not, after the exercise of reasonable diligence, discover said evidence in time to use the same on the former trial; it is therefore considered that the judgment and verdict here- tofore rendered in the said action of the said C D against the said A B, at the term of this court, A D. 18 , be, and the same are, hereby set aside and vacated at the costs of the said A B, of the said former trial; and it is further ordered that said action be again placed on the trial docket, and set down again for trial in its order on the said docket. 6. BKIEFEn ENTRY. And now came the said parties, by their attorneys, and thereupon this rause came on to be heard, upon the petition of the said A B for a new trial, and the evidence, and was argued by counsel; on consideration whereof, the court find that the several averments and allegations in said petition contained are true; it is therefore ordered that the judgment and XXXIV.J JUDRMENTS. 557 How Judgment may be Entered. may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any aflSrmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the Action to proceed against the others, whenever a several judgment may be proper. The court may also dismiss the petition with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plain- tiff to serve the summons on other defendants, or to proceed in the cause against the defendant, or defendants, served. The meaning of this section has given much difficulty to the courts of New York. In cases founded upon the law and practice of a court of equity, this section is as comprehensive probably as was the former practice of a court of chancery. The general object of this section, Welles, J., in Merrifield v. Cooley, 4 Pr. Rep. 272, I suppose, was to leave the court at liberty to apply the rules which prevailed in the late court of chancery to actions under the code. Having abolished the distinction between actions at law and suits in equity, such a provision, or power in the court, would become quite necessary to the due administration of justice in actions founded upon principles of equity. The section also embraces provi- sions applicable to actions founded upon rules of law, and perhaps, to both. For instance, in the case of several defendants, a judgment may be rendered against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. I think here is a plain recognition of the rule, that in actions against several defendants, founded upon legal principles, sounding in contract, the recovery must be against all or none of them; excepting those cases pro- vided for by statute, where the defendants hold different relations to the plaintiff, such as maker and indorser of a note upon which an action is brought, and where, in the language of the section, " a several judgment may be proper." In Fullerton v. Taylor, 6 Pr. Rep. 259, Mr. Justice W. F. Allen had this same section under his consideration. " It is supposed," he says, " by the counsel for the plaintiff, that the proceedings and judgment in this action are authorized by the first paragraph of section 274." (This section is word for word like thatof section 371 of our code.) The language of that clause is quite general, but it is evidently qualified and restrained in its operation by the next clause of the same section, by which the authority to enter judg- ment for oi- against one or more of several defendants, is confined to those cases in which a several judgment may be proper. This qualification and limitation was deliberately added as an amendment to the section as original'* 556 JUDGMENTS. •^OHAP, Wliat is a Judstment? verdict entered in the said action of the said C D against the said A B, at the tei-Qi of this court, A. D. 18 , be, and the same are, hereby set aside, and wholly vacated, at the costs of the said A B, of the former trial; and it is further ordered that the said action be again placed on the trial docket, and set down for trial in its order on said docket. This form will answer in all cases, as it is supposed that there is no necessity for the court specially to find the averments of the petition, as ia done'in the preceding form of an entry. CHAPTER XXXIV JUDGMENTS. I. What is a Judgment? Sec. 370J The judgment is the final determination of the rights of the parties in an action. Hence it 'is the last act of a court in an action; all other acts of the court are orders ; this last one only is a judgment. The decision of the court on a demurrer is a judgment, Bentley v. Jonets, 3 Code Eep. 37. King v. Stafford, 6 Pr. Rep. 30; 4 Pr. Rep. 335, S. 0. The distinction between an order and a judgment is this : an order is the ^ecision of a motion; a judgment is the decision of a trial by the court. Ibid. Nor does the gran ting of leave to answer change the decision of a demurrer in to an order. Ibid. II. How Judgment mat be Entered. Sbc. 371. Judgment may be given, for or against one or more of several plaintififs, and for or against one or more of several defendants; it • 65S JUDGMENTS. [CHAP, How Judgment may be entered. reported and adopted, and could have been designed for rio purpose other than to restrain and qualify the general term of tlie original section, and to declare, by a very clear intimation, that there were cases in which a judgment for or against one or more of several defendants, was not proper. Tiie section, so far as it bears upon this question, should be constmed and read as if the two .first paragraphs were incorporated into one; that is, as authorizing a judgment for or against one or more of several defendants, whenever a several judgment may be proper. The code lias not declared ■when such a judgment is proper, and we are, therefore, referred to the for- mer well established practice to decide that question. The cases in which such judgment was proper are familiar to the profession. They embraced actions of torts and actions upon contracts, in which one or more of several defendants established a personal defense, as infancy, bankruptcy, or the like; also actions against the several parties to a promissory note, or bill of exchange, brought under the act of 1832. Perhaps, also, this class of cases might under the code, be held to include actions upon any contract, joint and several by its terms, and which the plaintiff might have treated as joint or several, and brought his action against one or all of the contracting parties. , To allow the practice adopted in this case, might seriously endanger the rights of defendants. If any one of half a dozen plaintififs, upon proving a several cause of action against one of a like number of defendants, of the same general character as that alleged, as a joint cause of action against all the defendants, it might be impossible to know in advance of the trial, with any certainty, what cause of action would be tried. Indeed, in such a case, upon the construction claimed, I see no reason why one of such plaintiffs may not recover against one of the defendants upon a joint cause of action existing against him and a third person not a party to the suit; for it would never occur to him to set up, in such joint action, the non- joinder of such third person as a party defendant; and if the defect of par- ties is not alleged, eitlier by demurrer or answer, it is waived. I am not aAvare of any serious evils resulting from the former practice and rules of procedure in cases like the .present, which called for so radi- cal a change of the law, or now requires from the courts the construction urged, unless it is clearly called for by the word's of the sUitute. Plaintiff, must generally, if not in all cases, be able, with reasonable diligence, to decide in whom the legal right of action exists, and if not, the code provide! for amendments, upon application to the couVt, to meet the difficulty. In Ladue v. Van Vechen, 8 Barb. S. C. Rep. 664, it was intimated that, where the contract was several as well as joint, a several judgment could betaken against one of several defendants. This intimation was followed XXXIV.] JUDGMENTS. 559 How Judgment may be Entered. in The People v, Crane & White, 8 Pr. Rep. 151. In this last case, the opinion of the court may go beyond the case decided. Marvin, J., reviews the former decisions, and inclines to hold that in all cases where the plain- tiff establishes a cause of action against one or more of several defendants, and it appears that the others are not joini contractors, or jointly liable, he may recover judgment against the one against whom he festablishes his right to recover. Brumskill v. James & Eaglesum, 1 Kernan's Rep. 294, was an action on a joint note of husband and wife; and the court held that a recovery may be had against the husband alone. The court construe the section to authorize a judgment against any one of several defendants, when it appears that a several judgment could have been had against him in a separate suit. This, of course, leaves out the question whether he could recover if the defendant and another, not a party to the suit, was liable on the contract. If this decision is to be followed, then ten men may sue ten more, and if any one of the ten plaintiffs can prove a cause of action against any one of the ten defendants, a judgment must be entered between them. And if between them, why not between any other' plaintiff and any other defend- ant? And so you may have ten separate judgments jn an action biought on a joint contract of the ten plaintiffs with the ten defendants. This is inconsistent with the spirit of the code; which points out who shall be par- ties, and i^uires the plaintiff minutely and specifically to state Jiis cause of action, and the defendant to answer that cause of action, thus stated, and no othej". What sense in all this, if, on the trial, you need- prove nothing of the kind, but may prove 'any sort of a contract, which any one of the plaintiffs could have alone maintained against any one of the defendants. What need, also, of a;ll those provisions about amendments as to parties, if this can all be done on the trial by the verdict of a jury? Is it possible, that on the trial of an action wherein the petition sets forth a contract made vith two plaintiffs and three defendanits, and on an answer denying the truth of this contract, the jury can find that one of the defendants owes one of the plaintiffs a certain sum of money, and that such a verdict will be sustained? If so, the whole code is a farce, since, by this single clause, all its provisions about parlies, pleadings, and issues, are repealed and nullified. The language of the section is broad enough for all this. . Judgment may be given for one of several plaintiffs against one of several defendants; and it may be given against one of several plaintiffs, and in favor of one of several defendants. Unless this section is to be limited, as is intimated by Mr. Justice Allen, there is no escaping these absurdities. And it will no longer be a matter of any importance how many plaintiffs or defendants there are, the jury can acquit all but one, and find all but oue plaintiff 36 560 JUDGMENTS. [CHAP. How Judgment may be Entered. uninterested in the case, and judgment may be rendered on that verdict. All amendment as to parties becomes immaterial, as the jury are constituted the tribunal to amend the pleadings in the case, by a verdict outside of the issue and the case. Under such a construction, a plaintiff may sue twenty and if he can make out a case against either, he may recover. To suppose the commissioners meant all this, is to suppose them insane; to labor for a year in making a code of minute details, and then sweep them all away by a single section. In New York, there is some penalty for a plaintiff in making parties against whom he can not recover. The party in whose favor a veMict is found is entitled to costs; and that in New York means something, as it includes a long list of lawyer's fees. But in Ohio there is no penalty what- ever, save the costs of the service of the summons. Nor is this all. A party may be made responsible for a long bill of costs, when the recovery may finally be on a claim he never disputed. If such is the case, then it violates the plainest principles of common sense and common honesty; and judgments, as well as goods and chattels, may be obtained by false pretenses. It violates, too, the spirit of the Constitution, That guaranties to a person that his rights shall be settled by due course of law. This language is well understood; it means that the party shall have his day in court; shall be notified of what he is to answer to; be pdr mitted to meet it by a direct issue, and then have that issue, and not another, tried by the court or a jury; and it is a mockery of justice to permit him to be sued on a joint contract with others, and then be snapped up by a sepa- rate contract of his own. This rule of equity as to parties, has no relation to contract, and never had, in a court of chancery. If a complainant in chancery set forth a con- tract as the ground of his relief, he must have proved it as alleged, or go out of court. But where the court took jurisdiction by virtue of the sub- ject of the suit, then the court required all parties interested in the subject to be before the court, and, unless the complainant did bring "in all such parties, his bill would be dismissed. The plaintiff was, however, always held to the case he made in his bill; but under this construction oi the code, the plaintiff is no longer bound to accuracy in his own case; he may throw his net over a township, and catch whomever he may be able to. If he has doubtful claims against ten, he can sue them all on a joint one; and recover against any one, he succeeds in fastening by his proof. This is to make the administration of justice worse than a farce; it is to make it a stupendous system of obtaining judgments by false pretenses. In actions founded on contracts, it is not believed that the code has changed essentially the rules heretofore prevailing; nor can it be permitted in actions XXXIV.] JUDGMENTS. 561 — ^ ^—^ — ii Defendant may have Affirmative Relief. of tort to real or personal property that plaintiflFs may join, and then, if either proves a riglit to the property, he may recover against any or all of the defendants guilty of the trespass. There is no reason why plaintiffs should be freed from the wholesome rule, that they must recover according to the case made by them in their pleadings, and not according to a case made on the evidence. And sections 131 and 133 do not contemplate such a construction of the code. Section 131 provides for material variances; but section 133 provides that when an allegation is unproved in its general scope or meaning, it is not deemed a variance, but a failure of proof. When, therefore, a plaintiff alleges a joint contract by three, and proves a separate one by only one of them, this is a total failure of the proof as to the contract alleged; it is unproved in its general scope and meaning; and, hence, not even amendable, under section 131. If the parties to a contract do not come within what is material, we know not what does; a mistake as to the parties to a contract is not a mistake in some particular or particulars only, but a mistake in the very meaning and scope of the thing; just as much a mistake as to declare for a cow and recover for a mare. In the case in 1 Kernan, supra, the wife was not served, and that may have afforded ground for a distinction, in treating the action as an action against the husband alone. This question lies at the very foundation of the code.; settled one way, the code becomes in harmony with all our ideas of a judicial proceed- ing; settled in the other way, it becomes a web of gum-elastic, to be stretched according to the notions of the judge for the time beino-; a system of gigantic judicial discretion, to be exercised without rules or limitations. See Adenda, No. 10, p. 789. ill. Defendant mat have Affirmative Relief. What may becoihe the ultimate meaning attributed to these words, remains to be seen. They are so general and indefinite, that they may mean much or little. In set-off the defendant is entitled to judgment, if he proves a balance due him. On all pleas setting up new matter consti- tuting a defense, the answer calls for no relief; its simple object is to defeat the plaintiff. It is then only in cases coming within the meaning of a counterclaim that this clause can apply. Where the counterclaim is sim- ply to recover a sum of money, then no relief is needed; a simple judgment in favor of the defendant, if his claim is the largest, consummates the action. We know now of no other afiSrmatit;e relief to which a party 5s entitled. Id the case of actions to recover real estate, for which the defendant has a 562 JUDGMENTS. [oiIAP, When Actions Dismissed without Prejudice. contract of purchase, we doubt entirely tlie right to set up in an answer a claim to a specific performance of such a contract. Our views on tliis sub- ject will be found under the heads of counterclaim and real actions. There still may be cases in practice, where it would be the duty of the court to grant affirmative relief to the defendant; but this right to relief must arise out of the case presented in the plaintiff's petition, and not out of a new case to be set up in the answer. Should a vendor file a bill to rescind a contract, and on the hearing it appeared that the defendant was •entitled to an execution of the contract, instead of the plaintiff to a rescis- sion, the court might decree the execution of the conveyance, in case the pleadings showed that that fact was also in issue. This issue could be made, probably, by the answer averring a performance on the part of the defendant. So if a party was to file a petition to set aside certain notes, the court might decree a payment of the sum due, on a refusal to set aside. It is possible that cases of this kind may occur, in which a defendant might be eniiiled to affirniaiive relief; still it is matter of extreme doubt. This doubt has since been resolved by the act of April 8, 1857. A defendant may now in his answpr set up a claim to affiimat.ve relief. For a discus- sion of this provision, see Addenda, No. 11, page 790.* IV. Whes AciioJts MAT BE Dismissed withodt Pbejudicx. Sec. 372. An action may be dismissed without prejudice to a future action: , 1. By the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. 2. By the court, where the plaintiff fails to appear on the trial. 3. By the court, for the want of necessary parties. 4. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence. 6. By the court, for disobedience by the plaintiff of an order concern- ing the proceedings in the action. In all other cases, upon the trial of the action, the decision must be upon the merits. Is the court bound to dismiss without prejudice, or may it make the ]udgm(^nt of dimissal conclusive of the right of the plaintiff? Under the first subdivision of the section, the party dismisses his own action without the leave of the court; in all the others, the court dismisses the action. The plaintiff may save his right to a second suit; but the court is not bound to do it. •See Note T, p. 807. XXXrV.] JUDGMENTS. §G3 Wlicn Actions Dismissed ■without Prejudice. Can a plaintiflf dismiss his action as to one defendant without prejudice, and take judgment against the others? Can he, when one defendant has answei-ed. dismiss by his own action and without leave of the court, as to him, and take judgment against the others on a default? These are impor- tant questions and worthy of a careful consideration. The question will present itself under two aspects; 1. As to the character of the action; 2. On the language of the code. Where the action is against several defend- ants on a joint liability founded upon contract, the dismissal as to one, and judgment agfainst the others, would be a bar to any future action against the dismissed defendant, on the ground that a judgment against part of several joint contractors is a bar to a future action against the others, or against all. The claim has become res judicatce, and the original contract liability is merged in the judgment. Sloa v. Lea, 18 Ohio Rep. 304; McNaughton v. Patridge, 11 Ohio Rep. 223. The existence of the power to dismiss in such is wholly immaterial; the effect is the same whether the power exists or not. But how stands the question, where the parties are severally, not jointly, liable? Where the action is against the makers and indorsers of a bill of exchange or promissoiy note? The code allows and requires a single action against all the parties, where they are all in the same county. Sees. 38, 655. The first authorizes the joinder, and the second punishes the non- joinder with a loss of costs in a second action. This is a decided indi- cation that the parties ought to be joined, and being thus joined, can the plaii tiff escape a trial as to one defending, by a voluntary dismissal as to him, and then afterwai-d be permitted to bring a second action under what he may think more favorable auspices for success against that defendant? This is clearly in violation of the spirit and meaning of the code; and should not be permitted without clear authority in its favor. We have seen that a plaintiff can not amend of course, under sections 134 and 135, by striking out or inserting the name of a party. The only means of changing parties by an amendment is under section 137, with the l^ave of the court. Certainly then he can not dismiss as to one, and proceed as to the others, as that is only to amend by a change of parties without leave of the court; a thing which, we have seen, can not be done. On the trial, a verdict may be found for one defendant and against another; and by section 371 the court are authorized to render judgment in favor of one defendant and against another. The court too may dismiss a petition with costs as to one' defendant, when the plain tiflF unreasonably neglects to procure a service on the others. But these are final judgments, and a har to any future action as to the parties in whose favor the action is dismissed. 564 JUDGMENTS. [chap When Actions Dismissed -w^ithout Prejudice. Section 372 provides for the dismissal of actions without prejudice to a futur^ action. The plaintifiF may dismiss his action at any time before the case is submitted to the court or a jury, without prejudice; the court may so dismiss it on several grounds. The plaintiff can dismiss his action, not dismiss as to one party to it, while he proceeds in his action as to the others. There is here no authority to dismiss a part of an action, or a part of the defendants; he must dismiss his action, or ho can do nothing. But this question seems to be settled by subdivision four, which authorizes the court, on the application of some of the defendants, to dismiss the suit without prejudice to them, when the plaintiff fails to proceed with diligence against others. The preceding section requires the court to dismiss under such circumstances, and. this section allows the court to do this without prejudice to a future action; but it is a matter for the court, not the party, to say whether a suit shall be dismissed as to a part of the defendants, or not; and, if so dismissed, whether it shall be with or without prejudice to the plaintiff's right of a future action. Nor has the court an unlimited discretion in the matter. The court can act Only on the application of the defendant himself; if he refuses to move for a dismissal, the court has no power to order it on the application of the plaintiff; and if it acts on its own motion under section 371, the dismissal must be absolute. It would seem, therefore, conclusively to follow that there is no power in the plaintiff to dismiss a suit as to a part of the defendants, and proceed as to the others; nor can the court do it without prejudice to a future action against them by the plaintiff, except in a single contingency, and then only^'Cn the applica- tion of the defendants themselves. If, therefore, a plaintiff sues the makers and indorsers of a bill or note, he must proceed- in his action as to all or none; he can not dismiss as to the indorsers, or makers, and take judgment against the others. And, if he does it, the judgment in that action must be a perpetual bar against any future action on any liability or cause of action included in the first action. , This conclusion follows of necessity, when the code gives no power to dis- miss; his dismissal in such a case is a release as to the parties discharged, or just as effectual to protect them from a future action. Sbc. 373. When a set-off or counterclaim is set up in an answer, the defendant may proceed to the trial of his set-off or counterclaim, notwith- standing the plaintiff may have dismissed his action or failed to appear. Sec. 374. In the foreclosure of a mortgage, a sale shall be ordered of the mortgaged property. This is a mere affirmation of the usual practice in Ohio. Can a judgment also be taken for the amount due on the note? On the note, the party is entitled to a trial by jury; a sale of the mortgaged XXXIV.] JUDGMENTS. " 565 When Actions Dismissed ■without Prejudice. Decree for Conveyance. premises is a mere proceeding in equity, which only settled the amount due for tie purpose of foreclosing the equity of redemption. If the property did not pay the debt, then the party had to sue at, law on his note, and prove his claim over again; and the defendant could show it paid, or make any other defense; he was not concluded by the finding on the decree of foreclosure. The mortgage was the only thing in the one case, and the note in the other. If a party has nothing but a mortgage, then he has no security beyond the land; he has no contract to pay, but only that; if the sum named in the mortgage is not paid, the land is his. As to a sale where installments are not all due, see King v. Longworth, 7 Ohio E. part ii, 231. But if the code authorizes a union of a suit on a note and an order of sale, then the plaintiff must sue for his whole cause of action in one suit. He can not be permitted to split it up into two cases, and thus make the defendant two bills of costs. It would seem that the mortgage was, by the code, made a mere incident to a judgment on the note; that a judgment must be rendered on the note as on a suit at law, and then a simple order be added requiring the sale of the mortgage premises as upon execution. If this be the correct view of the code, then a party can no longer bring one suit on his note, and another on his mortgage, since his case is now declared to be but one cause of action. Hence, if the plaintiff takes judgment on his note, without setting up his mortgage lien, his lien on the mortgage is gone, and he must rely alone on his judgment and its lien. Such must be the construction of the code, unless the parties are still to be at liberty to claim the rig^ to make two cost bills where only one is necessary. It is as a question that this is here propounded, and it will arise in practice, without doubt. V. Deoeeb foe Convetanoe. Sec. 376. This section provides that a decree for a conveyance shall operate as such, provided "the party does not actually comply with the decree, in making and delivering the same. The same clause was in our former statutes. Taylor's Lessee v. Boyd, 3 Ohio Rep. 337; Shepherd's Lessee v. Com'rs of Ross Co., 7 Ohio Rep. pari i, 271; Jackson's Lessee v. Williams, 10 do. 69. 66d JUDGMENTS. , [OHAP Judgment in flases Triable by Jury. Forms. VI. Judgment in Cases Triable bt Jubt, FORMS. 1, JTJDOMENT ON DEPAPJiT FOE SUM OESTAI.V. A B, plaintiff, V. C D, defendant. Petition. And now comes the said A B, and the said C D having failed to demur or answer to the petition of the said A B, it is con.sidered that the said A B ought to recover the said sum of $ , so demanded in his peti- tion, together with the sum of $ , which the court finds due as the interest thereon, as prayed for in said petition; it is therefore considered . that the said A B recover against the said C D the said sum of $ , {Idng the amount of both debt and interest,) together with his costs in and about his suit in this behalf expended, taxed to dollars and cents. 2. THE SAUE WHERE DAMAGES HAVE TO BE ASSEgSEB. And now came the said A B, by , his attorney, and the said G D having failed to demur or answer the petition of the said A B,' it is considered that the said A B ought to recover his damages by reason of the premises; and the court, with the assent of the said plaintiff, do assess the damages of the said plaintiff to the sum of $ ; it is therefore considered that the said plaintiff recover against the said defendant the sura of dollars and cents, his damages in form aforesaid assessed, and also his costs in and about his suit in that behalf expended, taxed to dollars and cents. 3. JUDGMENT ON VEEDIOT. It is therefore considered by the court that the said plaintiff recover against the said defendant the said sum of dollar? and cents, so as aforesaid found due from the said defendant to the said plaintiff, (or his damages in form aforesaid assessed,) and also his costs in and about his suit in this behalf expended, taxed at dollars and cents. XXXIV.] JCDGMENTS. 507 Judgment in Cases Triable by Jury. Forms. 4. JUDOMENT FOB D B F E N D A N T FOB OOSTS. It is therefore considered that the said defendant go hence without day, and recover against the said plaintiff his eosfs in and about his suit in this behalf expended, taxed at dollars and cents. If there is a verdict for defendant for any sum, this will be inserted in the above form, as, "the said sum of $ , so found due from the said plaintiff to the said defendant, and also his costs," etc. 5. ON NON-SUIT. And now came the said parties, by their attorneys, and thereupon came also a jury to-wit, , who were duly impanneled and sworn the truth to speak upon the issue joined between the parties; and the said plain- tiff having closed his evidence in the cause, the said defendant, by his counsel, moved the court for a non-suit; on consideration whereof, it is ordered that the said plaintiff do become non-suited, and shall not fm-ther prosecute his said action; and thereupon the said jury were discharged; it is therefore considered here by the court that the said defendant go hence without day, and recover of the said plaintiff his costs in this behalf expended, taxed to dollars and cents. 6. ON A VOLUNTAKT NON-STTIT, And now came the said parties, by their attorneys, and thereupon came also a jury, to-wit, , who were duly impanneled and sworn the truth to speak upon the issue joined between the parties; and thereupon the said plaintiff dismisses his action aforesaid against the said C D, with- out prejudice; and the said jury were thereupon discharged; it is therefore considered here by the court that the said defendant go hence without day, and recover of the said plaintiff his costs in this behalf expended, taxed to dollars and cents, 7. DISMISSION BY THE OOUBT. And now came the said C D, by his attorney, and the said A B failing to appear, it is ordered that this action be, and it is hereby, dissmissd, (without prejudice, if such is the order of the court;) it is therefore consid* eved that the said defendant recover of the said plaiutiff^ his costs in this behalf expended, taxed to $ 568 JUDGMENTS. [CHAP Judgments by Jury — by Confession. Forms. 8. DISMISSION FOR WANT OF PARTIES. And now came the said parties, by their attorneys, and thereupon this cause came on to be heard upon the petition, answer, and testimony; on consideration whereof, the court find that one is a neces- sary party to this case; it is therefore ordered that said action be, and is thereby, dismissed, (without prejudice,) at the costs of the said plaintiff; it is therefore considered that the said defendant recover of the said plaintiff his costs about this suit in this behalf e:xpended, taxed to dollars and cents. 9, PISHISSION FOR NOT MAEINO OTHER PARTIES. And now comes the said C D, by his attorney, and the said A B having failed to make G R a party to this action, according to the former order of this court; it is therefore ordered that this action be, and the same is here- by, dismissed, (without prejudice,) at the costs of the said plaintiff; it is therefore considered that the said defendant recover of the said plaintiff his costs in this behalf expended, taxed to dollars and cents. 10. DISMISSAL FOR PAIH7RB TO PROSEOUTB OTHER PAKTIBS. And now comes the said C I), one of the said defendants, and on his application, and it appearing that the said plaintiff has not prosecuted his action with diligence against the said E F, another of said defendants; it is ordered that this action bej and the same is hereby, dismissed, (without prejudice,) at the costs of the said plaintiff; it is therefore considered that the said defendant recover of the said plaintiff his costs in this behalf expended, taxed to dollars and cents. VII. Judgments by Confession. Sec. 377. Any person may appear in a court of competent jurisdiction, and, with the assent of the creditor, confess judgment for any amount due, and judgment shall be entered thereon accordingly. A judgment for a sum above the jurisdiction of the court is void. Daniels v. Hinkston, 6 Pr Rep. 322. XXXIV.J JUDGMENTS. 669 Judgments hy Confession. Confession by Attorney. Sec. 378. The debt or causes of action must be briefly stated in the judgment, or in a writing to be "filed as a pleading in other actions. This section is for the protection of creditors, to prevent fraudulent judgments from being entered up. This statement is therefore required, and it should state truly and fully the consideration and ground of the judg- ment, so that creditors who examine the record may see that it is fair. It will also prevent parties from trumping up any other consideration. Hence it was held that it was not enough to state that it was on a promissory note, without setting forth its consideration. Plumer v. Plumer, 7 Pr. Rep. 62. So when the memorandum stated that it was for a debt just)y due. Schoolcraft v. Thompson, 7 Pr. Rep. 446. In Whitnev y. Keuyon, 7 Pr. Rep. 458, it was held that the judgment was not absolutely void, though the statement was only that it was on a promissory noto. Where the state- ment described a note and its consideration, as coal sold for the use of the Brainard House, kept by the defendant, it was held suflficient. Post v. Coleman, 9 Pr. Rep. 64; 9 do. 61. Confession by Attorney: Sec. 380. He shall at the time produce the warrant of attorney to the court, and the original, or a copy thereof, shall be filed with the clerk of the court. Does this section require proof of the genuineness of the warrant? This section requires the production of the original warrant of attorney; how can the court know this, except upon proof of its execution? It would seem, therefore, that the warrant must not only be produced, but must be proved to be the warrant of the party, whose name is attached to it. If this is not required, then the attorney might just as well be permitted to confess on his own verbal authority, — as you would have but his word at last. Sec. 381. A person in custody can not execute a warrant to, confess a judgment in favor of the party holding him in custody, unless some at- torney expressly called by the party in custody be present and sign the war- rant as a witness. Of course he must be called to prove it ^11 fair to th« *ourt, when the warrant is to be used. 570 JUDGMENTS. [CHAP. Confession by Attorney. Forms. FOBMS. JUDOMENT CONFESSED WIIHOVT PLEADINa. A B, plaintiff, ) V. C D, defendant. V. y Confession of Judgment. And now conies the said A B, by his attorney, and the said C D, de- fendant, appears in his own proper person, and says that he is justly in- debted to the said A B, plaintiff, in the sum of $ , on a certain promissory note, given by him to the said plaintiff, for $ , and dated , A. D. 16 , for certain goods and merchandise before that time sold and delivered by the said A B to the said C D, and the said C D confesses the same and wishes judgment rendered against him therefor. It is therefore considered by the court here, that the said A B recover against the said C D, the said sum of $ , the debt so as aforesaid confessed, and also his costs herein expended, taxed to dollars and cents. 3, OONFESSION ON A WABBANI. And now comes the said A B, by , his attorney, and files his petition against the said C D, and thereupon E F, one of the attorneys of this court, appeared in open court in behalf of the said C D, and by virtue of a warrant of attorney for that purpose executed, and now pro- duced to the court and duly proved, waived the isswing and servi-e of pro- cess, and confessed that the said C D does owe to the said plaintiff the said sum of $ , as the said plaintiff hath in his said petition set forth. It is therefore considered that the said A B do recover of the said D, the said sum of $ , so confessed to be due, and also his costs in this behalf expended, taxed to dollars and cents. And by virtue of the same warrant of attorney, all error is released and all right of appeal waived by the said C D, XXXfV.] JUDGMENTS. 571 Jtldgments by the Court. Foi'ttis. VIII Judgments ik Cases Tsmbi.e by the Covet. JOEMS. JTTCOMENT ON A NOTE AN D ' M RT 0it Q E ON DEFAULT. J A B, plaintiff, V. ^ Petition on Note and Mortgage. C D, defendant. And now icomes the said A B, by E P, his attorney, and the said de- fendant still Failing to answer or demur to said pccition, it is considered that the said pla,iiititf is entitled to an account of the money due him in • the premises, and the eourt after hearing the evidence, do find that there is due to the said plaintilf, on the note (or noteis) and mortgage in said petition described, the sum of dollars and cents. It is therefore considered by the said court here, that the said plaintiff re- cover of the said defendant the said sum of dollars and cents, the sum so found due as aforesaid, and also his costs taxed to $ And it is further ordered and adjudged, that in case tlie said defendant fails for ten days fioni the close of this term of the court, to pay to the said plaintiff the said sum of dollars and cents, so as aforesaid found due, with costs of suit, an order issue to , Master Commissioner of this Court, (or to the sheriff of said county.) command- ing him to cau«e the said lands and tenements in said petition described, to- wit, (here describe the lands named in the petition mid mortgage,) to be appraised, advertised, and sold according to law, and apply the proceeds of said sale in satisfaction of the said sum so found due, with costs of suit. The code seems to require a judgment where money is'to be recovered, even in cases founded on principles of equity. As this is not an action for the tecovery of money only., the affidavit of the party does not apply to the amount claimed; hence the court must find the amount dne on the note named in the petition and mortgage. This in this form is accordingly done. Whether such a judgment can be enforced by execution will de- pend on the proper construction of the code and Constitution. It is bo- iliered that the Legislature have power to authorize an execution for the collection of a sum of money found 4ue in a case in equity, A coui't iOf 5T2 JTJDGMENTS. [cHAP, Judgment by the Court. Forms. equity has power to find the amount due on a mortgage and note; and it would not seem beyond the power of legislation to authorize the collection of any balance not paid by a sale of the mortgage premises. The old Su- preme Court were in the habit of doing it, even without the code; though in that case it was a pure act of legislation. The code, however, clearly authorizes this to be done, unless there is some constitutional objection to it, owing to a party being in that way deprived of his right of trial by jury. As, however, this is is a chancery proceeding, this objection would seem to be invalid. This course will save a second cost bill, and require a party in all cases to unite all his rights so connected together in a single action. With this view of the law, a party holding a note and mortgage must unite both in the same action, or he will lose his lien by mortgage, and be compelled to rely solely on his judgment; and hence he might, in case of. subsequent mortgages or liens, be postponed to them, and lose his priority. On a default there is no necessity for finding any facts. By section 127, every material allegation in a petition is to be taken as true, unless controverted by an answer, except allegations of value, or the amount of damages. In actions founded on contracts for the payment of money only, the affidavit goes to the amount due, and on default the sum demanded is taken as true. Hence in all cases on a default, the material allegations are taken to be true; and there can be no necessity for the court to find their truth again. The statement in the petition is to be taken as true, and the court are required to proceed on the fiicts there stated to render such a judgment or decree as those facts require and justify. In no case of a default is it proper to restate the facts embodied in the petition; since the " facts there stated are to be taken as true, and no fact can be made true by a finding of the court, if not stated in the petition. The judgment, there- fore, in such cases, must be simply the conclusion of law on the facts con- tained in the petition; the relief, which those facts justify. Hence in this form, nothing is found by the'court save the amount due on the note, that sum not being admitted in such an action. The order, as to the mortgage premises, is simply that the same be sold and the proceeds applied on the judgment so rendered. When the judgment and order of sale is entered, the case is out of court. The order of sale is a mere execution, to be treated as an execution on any other judgment, and to be returned and the sale confirmed as though made on an ordinary execution. The form of the execution will, of course, like a vendi, contain a description of the land ordered to be sold. The complete record should conclude with the judgment and order of sale; all that follows is merely proceedings on an execution. XXXiV.] JUDGMENTS. 573 Judgments by the Court. Forms. a. DECREE AS JUDGMENT FOE SPEOIFIO PEEFOEMANOE ON A DEFAULT. And now came the said plaintiff by E F, his attorney, and the said C D still failing to demur or answer to the said petition, it is considered that the said plaintiff is entitled to the specific execution of the coiitract in the said petition described. It is, therefore, ordered, adjudged, and. decreed that the said C D, within ten days from the rising of this court, execute and deliver to the said A B, a good and sufficient deed, with covenants of general warranty, conveying the premises in the said petition described, to the said A B in fee simple^ and in default of the execution and delivery of such deed as aforesaid by the said defendant, it is ordered that this judg- ment and decree shall have the effect and operation of such conveyance, so as to vest the title to the said premises in the said plaintiff in fee simple; and it is further considered that the said plaintiff recover of the said de- fendant his costs in and about his action in this behalf expended, taxed to dollars and cents. 3. DECEBB BY DEFAULT ON A PETITION FOE AN ACCOUNT. And now came the said A B by E F, his attorney, and the said C D still failing to demur or answer to the petition of the said plaintiflf; it is, therefore, considered that the said plaintiff is entitled to an account from the said defendant, touching the matters and things in said petition men- tioned. It is thereupon ordered that this action stand referred to T S, master commissioner of this court, to take and state an account between the said parties in reference to the several matters and things in the said petition set forth and described, (and in taking said account, the said master commissioner shall be governed by the following rules: 1. That, etc., here state any special instructions which the parties desire, and that the case made in the petition will justify for the government of the master. ) And it is further ordered that the said mastet commissioner proceed to take said account at the request of either party, giving the adverse party rea- sonable notice of the time and place of commencing the same; and it is further ordered that the said master commissioner make his report in the premises at the next term of this court, to which time this cause ia continued. Vide, Lawson u. Bessel, 7 0. St. Kep. 129; Broadweli ». Dud- ry, 2 W. Law Monthly, 581. 4. TEIAL AND DEOEEB ON ANSWER. IN A SIMILAE CASE. And now came the said parties by their attorneys, and thereupon this cause came on for trial upon the issue (or issues) joined between the 674 JUDGMENTS. [cHAP. Judgments by the Court, f onns. parties, and was argued by counsel; on consideration whereof the cpurt find that the said plaintiff and the said defendants were partners in business, as the said plaintiff hath in his said petition alleged, and is entitled to an ac- count from the said defendant, touching the several matters and dealings in said petition set forth. It is thereupon ordered that this action stand referred, etc., (as in the loft form.) 5. jnSOMBNT ON CONFIEMATIOM OF MASTER'S EBPORT. And now came the said plaintiff, by E F, his attorney, and on his mo- tion., and on producing the report of T S, master commissioner of this court, heretofore made in this action, under a former order of this court, it is hereby ordered that the said report, and all the matters and things therein contained, do stand ratified and confirmed. It is, therefore, considered that the said plaintiff do recover of the said defendant the said sura of dollars and cents, so found due from the said defend- ant to the said plaintiff; and also his costs in and about his suit in this behalf expended, taxed to dollars and cents. The report of the master should show a statement of the accounts, and also the amount found due to the plaintiff from the defendant, so that a judgment may be rendered on the report, as on the verdict of a juiy. Tho report is a part of the record in the case, and stands in lieu of a verdict, showing the amount of recovery. Where the report is not made out in such a form, or where interest has accrued not included in the report, the court must find the sura then due before the judgment can be rendered. It may be done in this form: " And it appearing from the said report, that there is now due from the said defendant to the said plaintiff, the sum of dollars and cents; it is, therefore, considered," etc. 6. MOTION TO SET ASIDE A MASTER'S REPORT. And now comes the said , by E F, his attoi-ney, and moves the court here to set aside the report of T S, master commissioner of this court, heretofore made in this action, under the former order of this court, for the following reasons, to wit: (here proceed to state consecutively the reasons why the same should be set aside. ) 7. HBARINO ON MOTION TO SET ASIDE MASTER'S REPORT. And now came the said parties, by their attorneys, and thereupon the motion of the said to set aside the report of T S. master XXXIV.] JUDGMENTS. 575 Judgments by the Court. Forms. coramissionerof this court, heretofore made in this action, carae on to be heard . and was argued by counsel; on consideration wliereof the court do overrule the said motion, and order that the said report and the several matters and things therein contained, do stand ratified and confirmed; and it is, therefore, considered that the said plaintiff recover of said defendant the said sum of dollars and cents, so found due as aforesaid, and also his costs in and about his action in this behalf expended, taxed to dollars and cents. 8. ORDER TAOATINO REPORT. And now came the said parties, by their attorneys, and thereupon the motion of the said to set aside the I'eport of T S, master com- missioner of this court, heretofore made in tliis action, came on to be heard and was argued by counsel; ou consideration whereof the court do find that there is error in the report of the said master in this, to wit: 1, that the said master has charged the said defendant with the sum of dollars, when the same ought to have been, etc., (a.s the case is, and so state all the errors pointed out in the motion and found to be true bv '.he court.) It is, theiefore, ordered that the said report, and the matters tnerein contained be referred again to the said T S, master as aforesaid, with instructions that the said master commissioner correct his said report in the above particulars, wherein the same has been found to be erroneous; and that he return his report thus corrected forthwith {or to the next term of this court, to which time this action is continued. ^ Where the report is erroneous in its' very structure, and not in some particulars, the whole report must be set aside. The entry will then be as follows : 9. ORDER VACATING A REPORT. And now came the said parties by their attorneys, and thereupon the motion of the said to set aside the report of T S, master com- missioner of this court, heretofore made in this action, came on to be heard, and was argued by counsel; on consideration whereof the court do sustain the said motion; and order the said report to be vacated and set aside; and thereupon it is ordered that the said action stand referred, etc., (as in a former entry.) 37 f>76 JUDGMENTS. [OHAP. Jndgiaents by the Court. Forms. 10. FINDING ON PETITION AND ANSWER. And now came the said parties by their attorneys, and thereupon this action came on for trial upon the petition of the said plaintiff and the an- swer of the said defendant and the evidence, and was argued by counsel; and the court do find that the said defendant did obtain from the said plaintiff, the said deed of conveyance in the said petition described, by fraud and misrepresentation, as the said plaintiff has in his said petition alleged. It is therefore considered that the said deed of conveyance in the said petition described,' be and the same is hereby set aside, vacated, and de- clared to be of no force and effect in law, to affect or convey the title of the said described premises to the said defendant; and it is fui-ther consid- ered that the said plaintiff do recover of the said aefendant his costs in and about his suit in this behalf expended, taxed to dollars and cents. 1 1 . PETITION BY CKEDITOR TO SET ASIDE A DEED IN FEAT7D OF HIS EIGHTS. And now came the said parties by their attorneys, and thereupon this action came on r trial on the petition of the said plaintiff and the answers of the said defendants and the evidence, and was argued by counsel; on consideration whereof the court do find that the said deed of conveyance from the said C D to the said E F, mentioned in said petition, is fraudulent and void as against the rights and claims of the said plaintiff, as the said plaintiff hath in his said petition averred; ^nd the court do further find that there is now due from the said C D to the said plaintiff, on the judg- ment in the said petition mentioned, the sum of dollars and cents; and it is further ordered that in case the said sum is not paid in ten days from the close of this term, that T S, master commissioner of this Court, proceed to cause the lands and tenements in the said petition da- scribed, or so much thereof as is required to pay said sum, to be appraised, advertised, and sold according to law, and that he apply the proceeds of the said sale to satisfy to the said plaintiff the said sum of money so found due and owing to him as aforesaid, and that he report his doings in the premises to the next term of this Court, to which time this action is continued. In this class of cases, no judgment for money should be rendered; the whole proceeding being simply one in aid of execution. The plaintiff' has no right to a judgment against the grantee; as to him, his right is against XXXIV.J JUDGMENTS. 577 Judgments by the Court. Forms. the land; nnd as to the grantor, the plaintiff has already a judgment against him. and of course is not entitled to a second one for the same cause of action. 1 2 . DECREE rOK PERPETUAL INJUNCTION AND CONVEYANCE OF REAL ESTATE. And now came the said parties by their attorneys, and thereupon this action came on for trial upon the petition, answer, and evidence, and was argued by counsel; on consideration whereof the court do find in favor of the said plaintiff. It is therefore considered that the injunction heretofore granted in this action, be and the same is hereby made perpetual; and that the said defend- ant do, witiiin ten days from the rising of this court, by deed duly exe- cuted, convey to the said plaintiff in fee simple, all the estate, either in law or equity, which he, the said defendant, has in and to the premises in the said petition described, and which deed the said defendant is required, within the said time, to deliver to the said plaintiflF, or to the clerk of this Court for the use of the said plaintiff; and it is further considered that the said plaintiff recover of the said defendant his costs in and about his suit in this behalf expended, taxed to dollars and cents. The code authorizes a general finding, unless requested by parties to find specially the facts. Sec. 280. 13. DECEBE SETTLING LIENS ON PETITIONS ANDANSWER3. And now came the said parties by their attorneys, and thereupon this action came on for trial on the petition, answers, and evidence, and was arg-ued by counsel; on consideration whereof the court do find that the said A B obtained the judgment as he has in his said petition alleged, and that there is now due on the same the sum of dollars and cents; and that the said C D holds a mortgage as he has in his said answer set forth, and that the same became a lien on said premises on the day of , A. D. 18 , on which mortgage there is now due to the said C D the sum of dollars and cents; and that the said E F holds a second mortgage on said premises, as he hath in his said an- swer alleged, and the same became a lien thereon, from the day of A. D. 18 , on which mortgage there is now due to the said E K, the sum of dollars aijd , cents; and that the saiJ G H obtained a judgment against the said L M, as he hatlvin his said answer alleged, and which judgment became a lies on said premises, from tho 57S JUDGMENTS. [ciIAl'. Judgments by the Court. Forms. said day of , A. D. 18 , on which judgment there is now due to the said G H the sum of dollars and cents. And it is therefore considered that, unless the said claim of the said plaintiff shall be paid within ten days from the rising of this Court, with costs of this action, T S, master commissioner of this Court, do proceed to cause the said lands and tenements in the said petition described, to be appraised, advertised, and sold according to law; and that out of the proceeds of said sale the said T S, master as aforesaid, pay, first, the costs of this action to be taxed; and secondly to the said A B the said sum of dollars and cents, with interest thereon, so found due; and thirdly, to the said C D the said sum of dollai-s and cents, so found due to him as aforesaid, with interest thereon; and fourthly, to the said E F the said sum of dollars and cents, so as afoi-esaid found due to him, with interest thereon; and fifthly, to the said 6 H the said sum of dollars and cents, so as atbresaid found due to him, with interest thereon; and it is further ordered that the said master commissioner report his proceedings in the premises to the next term of this Court, to which time this cause is continued. A cause which seeks a judgment against a party defendant is at an end when that judgment is rendered, and orders of sales are mere executions by which to obtain satisfaction; but where, as in the present case, the ob- 'ect of the action is to subject real estate to the payment of a judgment a.ready obtained, or to a sale on the adjustment of convicting liens, the suit is not' at an end until the land has been sold, and the proceeds applied under the order of the court; and hence the action should be continued, after a decree of sale, for the report of the sale and the application of the proceeds. The deci'ee may direct in the first instance the order of liens, and of the application of the proceeds, or the court may direct a sale on finding the existence of a right to enforce a sale, and then settle the order of liens, and the application of the purchase money on the coming in of tlie Master's report of sale. The case will then be ended, and not before. A case of this character illustrates the impossibility of applying, the definition of an answer as given in the code in all cases. The simple object of- answers in such a ease as this, is, not to deny tl.e facts of tl-.e petition, not to state matter constituting a defense, or counterclaim, or set-oft'; but simply to biing facts on ihe records showing the rights and claims of each party in the premises, which are the subject of the action. The plaintiff in his petition sets forth his claim; each defendant in his answer simply states his, and from these statements thus made, the court decides upon the priorities of the respective parties to the fund which is the object of the XXXIV.] gm&mma. 579 JndgmeBts by tlie Court, Foi'tns. suit. There must arise numerous other cases of a similar character, where an answer can not be made to come witliin the definition of it contained in the code. In tliese cases the code must be disregarded, or construed more than liberal!)- in furtherance of justice. This entry orders a sale only unless the claim of the plaintiff is paid; and if that is paid, then no order of sale can be executed. The rights of the other lien holders are only incident to a sale; they are made parties simply because a sale may be ordered and take place; and then they are necessary parties in order to enable the court to make a good title to the lands. -They have no right to demand any affiimative relief. Hence if the judgment creditor pays oflF the claim of the plaintiff, no sale can taktf place; the action is at an end; it has accomplished its purpose. 14. OENERAL FINDING ON AN ANSWER. And now came the said parties by their attorneys, and thereupon this action came on for trial upon the petition, answer and evidence, and was argued by counsel; on consideration whereof the court find that the allega- tions contained in the said petition, and denied by the said defendant in his said answer, are true in manner and form, as the said plaintiff hits in his said petition set forth, etc., (proceed to stale the judgment of the court.) This form will answer in all cases of a general finding. This finding leaves the petition as true, and the judgment must be such as the facts embodied in it will justify. This form can be turned into a finding for the defendant, by simply inserting not before the word true in the above form. 1 S . GENERAL FINDING ON ANSWER BT ONE AND DGFAITLI BT OTHERS. And now came the said plaintiff, by L M, his attorney, and the said C D, by P, his attorney; and thereupon this action came on for trial, on the petition of the said plaintiflF, the answer of the said C D, and the evi- dence, and was argued by counsel; on consideration whereof the court do find that the several allegations contained in the said petition, and denied in -the said answer, are true in manner and form, as the said plaintifif has in his said petition averred; and the said E F and Q H, still failing to demur or answer to the said petition, it is, therefore, ordered and adjudged, etc., (^ro- ceed to stcUe the decree which the case in the bill will justify.) 580 juBGMENTa. [chap. Judgments by the Court, forms. Any decree ■which may now be pronounced must be justiiied by the case made in the bill, unless the defendant sets up new matter in his answer which supplies omissions in the petition. Where the answer is a negative one, a mere special, or general denial, and the finding is against the answer, the judgment pronounced must be justified by the facts set forth in the petition. The petition contains the case made, and the judg- ment must be a consequence of the facts there stated. It will, therefore, be important to see that a decree contains nothing which the case made does not- warrant. If it does, it must be reversed on error. 16. GENERAL FINDINO ON AN ANSWEE SETTING UP NEW MATTER. And now oame the said parties, by their attorneys, and thereupon, this action came on for trial, on the answer of the said defendant, and the evi- dence, and was argued by counsel; on consideration whereof the court do find that the several matters and things contained in the answer of the said defendant are not true, as the said defendant hath in his said answer alleged, (^then proceed to enter the judgment or decree.) IT . GENERAL FINDINO, IN SITCH A CASE, FOR DEFENDANT, WIMt JT7DGMEST. And now came the said parties by their attorneys, and thereupon this action came on for trial on the answer of the said defendant, and the evi- dence, and was argued by counsel; on consideration whereof the court do find that the several matters and things contained in the answer of the said defendant are true, as the said defendant hath in his sllars and cents. S82 MASTEB COMMISSIONERS. [CHAP. How Appointed. This form can be readily changed into a finding for the plaintiff, when the judgment would be that the party was entitled to an account, and a reference for that pui'pose would follow. There are other defenses in equity cases, which will present a single point like the above; but a special finding can easily be framed, if one does not wish to adopt the general one, finding the matters set up in the answer true, or not true, as the case may be. The special finding contemplated by the code, is a finding of facts, tend- ing to prove or disprove the issue, and on which facts legal questions arise; such as, whether they are admissible under the issue, whether they prove the issue, etc. It is like the special verdict of a jury, which finds the facts proved under the issue, and presents the legal question to the court— whether, on those facts, the defendant is or is not liable. CHAPTER XXXV. MASTER COMMISSIONERS. I. How Appointed. Sec. 611. The Court of Common Pleas may appoint, in each county, such number of persons as shall be necessary to be master commissioners, who shall hold their ofiSce for the term of three years, unless removed by the court for good cause. Sec. 612. Before entering upon the duties of his oflice, a master com- missioner must be sworn to perform them faithfully, and, with one or more sureties, approved by the court, execute an undertaking to the State of Ohio, in such sum as the court shall direct, to the efiTect that he will pay over all XXXV.] MASTEE COMinSSIONEES. 583 How Appointed. Powera of Masters to Convey Ileal Estate. moneys, and faithfully discharge the duties of his office. The undertaking shall be filed in the office of the county auditor, and may be sued upon as provided in section five hundred and sixty-six. Sec. 613. A master commissioner shall be allowed such fees as are allowed for similar services to other officers. A master commissioner has same powers as .formerly in chancery. Broadwell v. Dadry, 2 W. Law Monthly, 581. n. PowEEB OF Masters to Cosvet Real Estate. Sec. 395. Real property may be conveyed by master commissioners as hereinafter provided: 1. When, by an order or judgment in an action or proceeding, a party is ordered to convey such property to another, and he shall neglect or refuse to comply with such order or judgment. 2. When specific real property is required to be sold under an order or judgment of the court. Sec. 396. A sheriff may act as a master commissioner, under the second subdivision of the preceding section. Sales made under the same, shall conform, in all respects, to the laws regulating sales of lands upon execution. Sec. 397. The deed of a master commissioner shall contain the like recital, and shall be executed, acknowledged, and recorded, as the deed of sheriflf of real property sold under execution. These sections point out the power of masters over the sale and convey- ance of real estate. There are two classes of cases in which they can con- vey the title to real estate under the order of the court. The first is where a person is ordered to convey, and fails to do it. In such cases, on motion and the order of the court, a master can convey for the party required to do it. The second is where specific real property is required to be sold. This clause embraces all sales heretofore ordered in a court of chanceiy; all sales in actions to foreclose mortgages; to enforce vendor's liens, etc. These sales are all to be made by a master commissioner, and not by the sheriff as sheriff, as was held under our former legislation. The sheriff may be appointed to sell in lieu of the master, but he acts under the special author ity given in the order of sale. An executing is applicable only to judgments for the recovery of money, or specific real property. When the action is one founded on the prin- ciples of equity, and seeks to appropriate, through the action of the court. Specific real property to the satisfaction of a debt or claim, in all such cases 584 MASTEE COMMI8SIONEE8. [CHAP. Forms. the order of sale goes to the master commissioner, and not to the sheriff as such, though the sheriff may be empowered by the court to act as master in making the sale. This seems to settle the practice that, in these cases, the action is' not out of court until the sale is made, returned, and confirmed. Until this is done, the object of the action is not obtained, nor is the- record compk te. Such was the former practice, and the code does not seem to have made any change in it. FORMS. 1. OKDEB FOB APPOINTMENT. On motion it is ordered that L M be, and he is hereby, appointed master commisioner of this court for the legal term of three years, on liis giving an undertaking in the sum of $ , for the faithful performance of the duties of his said office; and thereupon the said L M gave his undertaking aforesaid, with G H and N as his sureties, in the sum of $ , to the acceptance of the court; and was duly sworn faithfully to perform the duties of his said office of master commissioner. 2. UNDERTAKING. 4 Whereas L M has this day been appointed master commissioner by the Court of Common Pleas, within and for the county of , and State of Ohio; now we, the said L M as principal, and G H and N O as his sureties, undertake, in the sura of $ , to the State of Oliio, that the said L M will pay over all moneys that may come to his hands by virtue of said office, and faithfully discharge all the duties of his said office. Given under our hands this day of , A. D. 18 . L M, G H, N 0. 8. DEED BY MASTER FOR ANOTHER, ITNDER ORDER OF COURT Know all men by these presents, that whereas heretofore, at the term A. D. 18 , of the Court of Common Pleas, within and foi the county pf , and State of Ohio, C D, of said County, (or of XXXV.] MASTER OOMMISSIONEKS. 585 Forms. tlie State of Indiana,) was ordered and adjudged by the said court, in a certain action then pending therein, wherein A B was plaintifl' and tlie said C D was defendant, to convey in fee simple to the said A B the following described lands and tenements, to-wit, (^here insert the description;) and whereas the said C D havinff failed and neglected to execute and deliver the said deed of conveyance to the said A' B, the said court did, at the term thereof A. D. 18 , order L M, master commissioner of said court, to execute and deliver a deed to the said A B, conveying the said premises to the said A B in fee simple; now, be it known that I, the said L M, as such master commissioner, and by virtue of the power vested in me by the said order and the law, do hereby grant, sell, and convey unto the said A B, his heirs and assigns, the above described lands and tene- ments, with the appurtenances, to have and to hold, to him, the said A B, and to his heirs and assigns forever. In testimony whereof, I have, as such master commissioner, here- unto set my hand and affixed my seal, this day of , A. 1). 18 . L M, Master Commissioner. Executed and delivered in presence of us, N 0, . P Q. The State of Ohio, County, ss. Personally appeared before the undersigned, a justice of the peace of said county, (or probate judge of said county, or judge of the Court of Common Pleas, etc.,) the said L M, and acknowledged the foregoing instru- ment of writing for his free act and deed. Given under my hand, this day of , A. D. 18. • X Y, Justice of the Peace. 4. DEED OF UASTER ON A SALE, Know all men by these presents, that, whereas, one A B did by the judgment of the Court of Common Pleas, within and for the"county of , and State of Ohio at the term thereof, A. D. 18 , recover a judgment against one C D for the sum of dollars and cents, and costs of s.uit taxed to dollars and cents; and, whereas, it was then and there further ordered in the said action that \a default of the payment of the judgment aforesaid by the said C D, that B86 MASTER COMMI89IONEE3. [CHAP. XXXV Forms. L M, master commissioner of said court, should cause the lands and tene- ments herein after described to be appraised, advertised, and sold according to law; and, whereas, the said C D having made default therein, the said L M, as master commissioner of said court, and under and by virtue of the order of the same to him duly directed, did, on the day of , A. D. 18 , at the door of the court house in said county of , (having first given due and legal notice of the time and place of said sale for more than thirty days prior thereto in , a newspaper piinted in said county,) sell the said premises at public auction to W T for the sum of dollars, which sale was afterward at the term of said court, A. D. 18 , examined and confirmed, and the said L M, as such master commissioner, ordered to convey the said premises in fee simple to the said W T. Now, therefore, I, the said L M, master commissioner as aforesaid, in consideration of the premises, and by virtue of the powers vested in me by law, do hereby give, grant, and convey to the said W T, his heii-s and assigns, the premises so as aforesaid sold, to wit, (here describe the land sold, ) with .the appuitenances. To have and to hold the same to the said W T, his heirs and assigns, and to his and their use, and behoof forever. In witness whereof, etc., (a« in preceeding form.) CHAPTER XXXVI. EXECUTION. I. WUAT IHET ABE, AND OF WhAT KiSDS. Sec. 418. E.xeculions shall be deemed processes of the court, and shall be issued by the clerk, and directed to the sheriff of the county. They may be directed to different counties at the same time. Sec. 419. Executions are of three kinds: 1. Against the property of the judgment' debtor, 2. Against the person. 3. For the delivery of the possession of real property, with damages for ■withholding the same and costs. 11. Os What Judgments they may Issue. ^ The judgment must be a judgment for the collection of money, in order to justify the issue of an execution on it. Judgments on actions to fore- close mortgages, enforce liens on specific real estate, etc., do not authorize an execution; the land must in such cases be sold by the master commis- sioner on an order of the court, issued for that purpose. This is made cer- tain by section 395, where it is provided that "a master commissioner may convey real property, where specific real property is directed to be sold under an order or judgment of the court." These sales, then, must be made as formerly, not on execution by the sheriff, but under the order of the court by the master. Where there are costs on a judgment to be col- lected in a case in equity, these will be collected on execution; so will, also, a judgment for the payment of money in an action founded on principles of equity. It is probable that the code intends that where the sale of specific real estate does not pay the amount found due, the balance may be collected on (687) 588 EXECUTION. CHAP. What they are, and of what Kind. an execution to be issued on that judgment. This seems to be implied in subdivision three, section 619, relating to writs of error. It is there pro- vided that "when the judgment is for the sale of mortgage premises, and the payment of a deficiency arising from the sale, the undertaking must also provide for the payment of such deficiency." This provision clearly indicates, also, that no execution at any rate can issue, until the real estate has been sold, and the proceeds applied to the judgment. Tiiis, also, in- dicates another thing, and that is this: that a writ of error can issue only after the land has been sold and the deficiency ascertained; hence, too, that the case is not fully closed until the land is sold. Still an order of sale has always been held to be such a final decree, that an appeal would lie from it; Hey V. Schooley, at al., 7 Ohio Rep. part ii, 48; but while an appeal may lie, it may be still doubtful whether a writ of error will lie until the land is sold and the balance found, and a judgment for the payment of that is rendered. It may be said, generally, that on all judgments in actions founded upon legal principles, and on all judgments in actions founded upon principles of equity, where a court of chanceiy would, under the old practice, have ordered an execution to collect a sum of money therein decreed to be paid, an execution may now issue, of course, on the application of the party entitled to the money. Sec. 422. If execution should not be sued out within Jive years from the date of any judgment, that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment, and the time of suing out another writ of execution thereon, such judgment shall beoc.me dormant, and shall cease to operate as a lieu on the estate of the judgment debtor. On such a judgment, no execution can properly issue, until the same has been revived under the provisions of section 417. In New York it is said that this provision is for the benefit of the defendant alone; and, if he . Petition to quiet Title. C D, defendant.) The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff has the legal title to, and is in the peaceable possession of, the following real estate, situate in said county of . , (here describe the land;) and the said plaintiff further saith that the said C D sets up and claims an estate and interest in and to the said premises, adverse to the estate and interest of the said plaintiff, so as aforesaid averred. The said plaintiff therefore prays that the said C D may be compelled to show his said title, and that it may be determined to be null and void as against the said title of the plaintiff. AB, By , his Attorney. 2. PETITION TO KEOOVBR REAL ESTATE. The said A B, plaintiff, complains of the said C D, defendant, for that the said plaintiff is seized in fee, {or for life, or for • years from the day of , A. D. 18 ,) of the following lands and tene- ments, to-wit, (here describe the land as accurately as in a deed, as vAll ena- ble an offieeer holding an, execution to identify it ; ) that he is (or they are,} entitled to the possession thereof; and that the said defendant unlaw- fully keeps him, the said plaintiff, out of the possession thereof. The said plaintiff therefore prays judgment against the said defendant for the recovery of the possession of the said premises. A B, By , his Attorney. Where rents, and profits, and waste are to be recovered, they must bo claimed in the petition, or otherwise the verdict will only be for the recov- ery of the possession. Section 80 provides for the action, with or without damages, for the withholding thereof. There must, therefore, be a second count like the old count for mesne profits, and it can not extend beyond XXXIX.] EEAL ACTIONS. 663 Forms. four years, as the statute of limitations bars all recovery for a longer term than that. 3. A OOtTNT FOB DAMAGES. A.nd the said plaintiflf further saith that the said C D has been in the possession of the said premises, receiving the rents, issues, and profits thereof from the first day of January, A. D. 18 , up to time of the com- mencement of this action; and the plaintiff avers that he has sustained damages by tlie unlawful withholding of the possession of the said premises during all that time, to the sum of $ The said plaintiff therefore prays judgment against the said defen3ant for the recovery of the possession of the said premises, and also for the said sum of $ , his damages so as aforesaid sustained. AB, By , his Attorney. 4. ANSWER — DENIAL OP TITLE. And now comes the said C D, defendant, and for answer to the petition of tlie Said A B, saith that the saic? A B is not seized in fee simple of the said lands and tenements in his said petition demanded, in manner and form as is therein set forth; and of this he puts himself upon the country. C D, By , his Attorney. 5. DENIAL OF DETENTION. And now comes the said C t> defendant, and for answer to the petition of the said A B, saith that he, the said defendant, does not unlawfully keep him, the said plaintiff, out of the possession of said. premises in his said petition demanded, in manner and form as is therein alleged; and of this he puts himself upon the country. C D, By , his Attorney. 6. VERDICT. And now came the said parties, by their attorneys, and thereupon came a jury, to-wit, (here give their names, ) who being duly impanneled, and sworn the truth to speak upon the issue joined between the parties, ao, 664 EBAL ACTIONS. [CHAP. Forms. upon their oaths aforesaid, say that the said plaintiff is seized in fee simple of the premises so as aforesaid demanded, iu manner and form as the said plaintiff ksth in his said petition set forth. Or, That the said defendant does (or does not) unlawfully keep the said plaintiff out of the possession of the said premises, in Manner and form as the said plaintiff hath in his said petition declared. (If damages are claimed, add:) and the said jury do assqps the dam- ages of the said plaintiff, by reason of the said unlawful withholding thereof, to the suui of $ W F, Foreman. 7. JUDGMENT FOR PLAINTIFF.' It is therefore considered that the said A B do recover against the said C D the premises in his said petition described, and also the said sum of $ , his damages so as aforesaid assessed, and also his costs in and about his suit in this behalf expended, taxed to dollars and cents. 8. DEMAND FOB A SEOOND TBIAIi. And thereupon comes the said , and enters notice of his intention to demand and have a second trial in the action ; and the court, being of the opinion that this is an action in which the parties are entitled to a trial by jury, do allow such second trial, and do fix the pen- alty of the undertaking at dollars. g. APPLICATION FOB BENEFIT OF OOOTTPTING CLAIMANTS (Immediately following the judgment, proceed:) And thereupon came the said C D, by , his attorney, and made application to the court here, for the valuation of improvements and assessment of damages, under the statute for the relief of the occupying claimants^ and the court, having considered of the same, are of opinion that the said D is entitled thereto; whereupon it is ordered that further proceedings may be had in the premises agreeably to the provisions of said statute. C D, By , his Attorney. * For form for Defendant, see note Q, p 806. XXXIX.] • EEAL ACTI0K3. 665 FoiTIlS. 10. OKDEK TO SHBKIFF. The State of Ohio, , County, ss. To the Sheriff of said County, Greeting: Whereas, on the day of , A. D. 18 , the said A B recovered, in the Court of Common Pleas, for the said county of , a judgment against the said C D, for the recovery of the possession of the following lands and tenements, to-wit, (here describe them as in the petition,) and whereas, also, upon the rendition of said judgment, the said Court of Common Pleas, on the application of the said C D, granted to the said C D the benefits of the statute for the relief of occupying claimants; this, there- fore, is to command you that, without delay, by the oaths of, (here name the jury,) and upon actual view of the said premises, you cause to be made a just and true assessment of the value of all lasting and valuable improve- ments made upon the said premises by the said C D, and those under whom the said C D holds the same, previous to the day of , A. D. 18 , (the date of service of the summons in- the oriffinal action,) and also in like manner, you cause to be made a just and true assessment of the damages, if any, which the said lands and tenements may have sustained by waste, together with the net annual value of the rents and profits which the said C D may have received from the same, from the day of , A. D. 18 , (date of service of summons,) deducting the amount of such rents and profits from the estimated value of the lasting and valuable improvements aforesaid; and also that, in like manner, you cause to be made a just and true assessment of the value of the said lands and tenements, on the day of , D, D. 18 , (date of firutl judgment, ) exclusive of the improvements made thereon, and the damages sustained by waste as aforesaid; and of this writ make legal service and due return. Witness my hand and the seal of the said Court of Common Pleas, at the court house in ■ on this day of , A. D. 18 . J D, Clerk. 11. SHBKIPF'S EETUEN. As commanded, I have caused this writ to be executed, by the oaths ot the within named jurors, and their verdict in the premises is hereto an- nexed and returned. Dated, etc. R S, Sheriff of County. 666 INSPECTION OF PAPBES, ETC. [CHAI Genuineness. 12. TEROIOT. We, the jury named in the within writ, having been first duly sworn, do, upon actual view of the premises in said writ described, assess the value of lasting and valuable improvements made, as in said writ mentioned, at the sum of $ ; and we do further assess the damages,, which said lands and tenements have sustained by waste, to the sum of $ ; and we do assess the net annual value of the rents and profits, in said writ re- quierd, at $ ; and we do further assess the value of the said lands and tenements, as is in said writ required, at the sum 6f $ , exclusive of improvements and the damages sustained by waste as aforesaid; and we do find the excess of improvements over rents and profits to be $ In testimony whereof, we have hereunto set our hands and seals, this day of , A. D. 18 . If the rents exceed the improvements, a judgment may be rendered against the occupant, on this verdict, for the amount in favor of the plain- ti£F in the original action. CHAPTER XL, ADMISSION, INSPECTION, ETC., OF PAPERS AND DOCU- MENTS. Sbc. 359. Either party may require of the other the admission of the genuineness of any paper or document, which he expects to ofier on the trial; if on presentation of the same to the party, or his attorney, he fail to give the admission for four days, he must pay the costs incident to its proof, unless the court think there were good grounds foi the refusal. ST..J INSPECTION OF PAPEES, ETC. (567 Demand — Copies. Sec. 360. Either party, or his attorney, may demand of the adverse party an inspection and copy, or permission to take a copy of any book, paper, 01 document in his possession or control, containing evidence relating to the merits of the case. The demand must be in writing, describing the book, paper, or docu- ment so minutely that the other party may be able to distinguish the paper, book, or document demanded to be inspected. If the demand is not complied with in four days, the court or a judge thereof may, on motion and notice to the adverse party, order the inspection to be granted within a named time, and permission given to take copies, if desired. Unless the party grants the inspection and allows copies to be taken, the court may exclude the paper, etc., as evidence, if offered by the party refusing the inspection; or if wanted by the party calling for it, he may make affidavit of what its contents are, and that shall be taken as true. The power to compel all witnesses to produce papers, etc., is not affected by these provisions. ' Sec. 361. So either party or attorney, if required, shall deliver to the other party, or his attorney, a copy of any deed, or other instrument of writing, whereon the action or defense is founded, or which he intends to offer in evidence on the trial. If the party refuses, he shall not be permit- ted to offer the deed, etc., in evidence on the trial. Where papers or copies are filed with the pleadings, no other copies can be demanded. Sec. 362. The printed laws of another State, purporting or proved to have been published by the authority thereof, are admissible as evidence of what the statute law of that State is. The unwritten law may be proved by parol; and the reported decisions of the courts shall be presumptive evidence of this law. In New York it is said the application for discovery under these provis- ions must be made by petition, and the facts must be stated which show the materiality of the book, paper, or document sought to be examined. Stanton v. Delaware Mut. Ins. Co., 2 Sandf. Rep. 662; Gelston v. Marshall, 6 Pr. Rep. 398. A referee can not osder the production of books, etc., inless the order of reference grants him that power. Frazer v. Phelps 3 Sandf. S. C. Rop. 741. Ttie order may be made at any stage of an action. Miller v. Mather, 6 Pr. Rep. 160. It is not granted as a matter of course. 3 Pr. Eep. 327. 668 INSPECTION OF PAPEES, ETC. [oOiP. Ans-wer to Order — Forms. The facts to justify the order must be proved by the affidavits of the party and others. The defendant may resist it by showing that he has not the possession of the book, papers, etc. He must swear positively, how- ever, on this point. So he may sliow that the book, etc., contains nothing, material for the party asking the inspection. One has no right to inspect another's books, papers, etc., unless they contain evidence necessary for him in the prosecution or defense of an action. 2 Code Rep. 83; 2 do. 344; 2 do. 46. If, in an answer to an order of discovery and inspection of books, papers, etc., the opposite party denies fully and explicitly that there are any such, entries, books, papers, etc., under his control, that is an end of the applica- tion. He can not be subjected to a fishing examination. Hoyt v. A. Exch. Bank, 8 Pr. Rep. 89. The application must state the particulars of which a discovery is sought, and enough to satisfy the court that it is in the power of the opposite party to furnish it, and that it is material for the support of the claim or defense of the applicant that it should be made. Ibid; 18 Wend. Rep. 629; 3 Sandf. 8. C. Rep. 662. The answer of the party is conclusive as to whether such books, etc., exist. The court must decide on this answer; it cannot be contradicted when it is positive and direct in its denials. 8 Pr. Rep. 93. FORMS. 1. NOTICE KaQTrBSTINO INSPECTION, ETC. A B, plaintiff, J County, ss. C D, defendant. ) Court of Common Pleas. You are hereby requested to allow me to inspect and take copies of the following books of accounts and entries, to-wit: (here describe it is minutely as possible, so as to identify the entry you want, and the book, the deed or contract, or paper, so there can be no mistaking it;) which entries and docu- ments are necessary to enable me to make my defense in this action; and you are hereby further notified that in case you shall, for four days after service of this notice, refuse to permit said inspection, I shall apply to the Hon. H C W, one of the judges of said court, at his ofiice in , on the day of next, at one o'clock, P. M., for an order on you to permit such inspection, etc. Dated this day of , A. D. 18 . C D, By E F, his Attorney. XL.] INSPECTION OF PAPEES, ETC. 669 Forms. a. PETITION POK AN OEDBK. To the Hon. H C W, Judge of said Courl: The said C D represents that the said A B hath commenced an action against him in said Court, wherein the said A B claims to recover of the said C D the sum of $ , on the ground that the said C D, (here state so much of the cause of action as is necessary;) and the said C D claims that, (here state grounds of defense;) but that it is impossible for the said C D to prepare his answer (or the defense of his case) without an inspection and copies of certain books and papers now in the possession of the said A B; and the said C D says that the said A B has in his control, [here describe the book, paper, or document, and its contents, so as to show its materiality. ) The said C D further sailh that he applied, in writing, to the said A B, for permission to inspect such books, etc., on the day of , A. D. 18 , and further notified the said A B that, if he refused to permit that, application will be made, on the day of , A. D. 18 , for an order in the premises. The said C D therefore prays that an order may be made on the said. A B requiring him to permit the said C D to inspect and take copies of the said, etc. C D, By E F, his Attorney. The answer must either admit or deny the truth of the facts set forth. It will, therefore, be a mere response, negativing the petition, and requires no form. 3. OKDEE OP INSPECTION. And now came the said C D, and filed bis petition with the under- signed, (or in court,) and thereupon came the said A B, and filed his answer thereto; on consideration whereof, it is found that the said C D is entitled to the inspection of the said , as is in his said petition set forth and claimed; it is therefore ordered that the said A B do permit the said C D, on reasonable demand, to inspect and take copies of the said , as he hath in his said petition claimed. Done this day of , A. D. 18 . H C W, Judge. 43 CHAPTER XLI MOTIONS AND ORDERS. Sec. 603. A motion is an application for an order, addressed to the court, or a judge in vacation, by any party to a suit or proceeding, or one interested therein. Sec. 504. Several objects may be included in the same motion, if they all grow out of, or are connected with, the action or proceeding in which it is made. Sec. 506. All notices of motions required by law, must be in writing, and must state the names of the parties to the action or proceedings in which it is made, the name of the court, or judge before whom it is to be made, the place where, and the day when, it will be heard, the nature and terms of the order or orders to be applied for, and also, whether affidavits will be used on the hearing. It shall be served a reasonable time before the hearing. There is no rule in Ohio on this subject. A reasonable time is such that the party notified will have ample time to prepare himself, and be able to be present at the time and place of hearing. If it is a motion on which affidavits are to be used, time must be allowed for obtaining them. If the motion is predicated on the record or papers on file, then the time must be such as to enable him to be present, providing for ordinary contingencies. Sec. 507. These notices may be served by the sheriflF, coroner, ov con- stable, or by any disinterested person. What is meant by disinterested person? The party can not, of course, servo a notice, though he can be a witness in the case. Nor can the attorney of the party serve them, as he is not disinterested in the matter. The majority of the judges in the Seventh District, Thurman, S. J., presiding, held that a judge who bad been counsel (670) CHAP. XU.] MOTIONS AND 0EDEE8. 671 Service of Notice — Order. in a case was interested in the event, under section 1.3, (Swan St. 269,) so that he could not sit in fhe case. Hence a lawyer is not a disinterested person to serve a notice. Why this word was put in here, after everybody had been allowed to testify in a cause, it is somewhat difficult to tell; unless it was to make parties costs for the benefit of sheriffs, etc. The correctness of the above decision may be doubted; one judge did not assent at the time, and one of the others has since doubted its correctness. Proof of the service is made by the return of an officer, or the affidavit of any other person. ■ The service must be by giving a copy of the notice; and this may be given to the party or his attorney of record, if in the county where the motion is made. If there is more than one party, whose interests are aji- yerse to the motion, service must be made on ea«h. If neither the party or his attorney reside in the county, no notice is to be given; at least, there is no provision for serving it. Sec. 608. Motions to strike pleadings and papers from the files, may be made with or without notice, as the court or judge shall direct. Sec. 609. Every direction of a court or judge, made or entered in writing, and not included in a judgment, is an order. The distinction between an order and a motion is this. An order is the decision of a motion; a judgment, the decision of a trial. Per Parker, J. J Boiitley V. Jones, 3 Code Rep. 37; King v. Stafford, 6 Pr. Eep. 30. The words rule and order, in no case mean a judgment. The word order is made to exclude the idea of a judgment. It means the written direction of a court or judge, other than a judgment,- and not included in it. Darrow V. Miller, 3 Code Rep. 241. There are certain applications for orders which are not motions. But the question is, what orders are not motions? Evidently those which are made out of the court, and without notice. When an application for an order is made in court, with or without notice, or when it is made out of court, upon notice given, it becomes a motion under this provision of the code. Baldwin v. City of Brooklyn, Per Edmonds, J., N. Y. Code, 1862, 411. Where an order is granted on a condition, the condition must be per- formed within twenty-four hours. Sabin v. Johnson, 7 Cowen Rep. 421. An order granted on payment of costs, is a conditional order, and it is of no force unless the costs be paid within twenty-four hours; and the party to pay must seek the other to make a tender of the costs. Puysley v. Van Allen, 18 J. Bep. 352. And he must, at his ^eril, take notice of the 672 MOTIONS AND OEDEES. [CHAP Costs — Orders Out of Court. order of the court, without waiting to be served with a copy of the order. Willink V. Renwick, 22 Wend. Rep. 608. Where an order requires an act to be done and costs to be paid, the payment of costs is not a condition precedent to the doing of the act 4 Sandf. S. C-. Rep. 647. This is the rule in Ohio. Where a new trial ia granted on payment of costs, the payment of the costs is not a condition to be complied with before the new trial can be had. So held repeatedly by our late Supreme Court, on the circuit. So where leave is given to amend on payment of costs, the amendment may be made without having paid the costs. The costs can be collected on execution, and the party must look to that remedy for payment, if it is not done voluntarily. And such, we believci is the universal practice on all motions and orders granted on pay- ment of costs. In Ohio, we have no cost bills for attorneys, only fees for the officers; and hence it»becomes with us a small matter. It is not so in New York, where an attorney's fee is charged on every motion, and order, and continuance, and trial; hence motion business in that State pays the lawyer, if it does not the client. Were the whole thing abolished,, there would be much less delay in the administration of public justice than there now is. If a fee is to be charged, let it be on the final judgment, and then it would be for the interests of the attorney as rapidly as possible to reach that so much desired point — the end of his cause. As it is, it is the in- terest of the whole bar to make and multiply motions, merely to get fees — -motions which have no relation whatever to the real dispute between the parties. It is this system of fees on every motion, and order, and reference, that has converted the English Court of Chancery into a monumental nuisance, from the existence of which even justice herself suffers. Every good lawyer has an interest in getting rid of such abuses; every poor and dishonest one, in defending and perpetuating them. Sec. 610. Orders made out of court shall be forthwith entered by the clerk in the journal of the court; in the same manner as orders made in term. This is another of those anomalous provisions, imported from New York, by the law of which state, as in England, the court is ever open; so that all orders made out of court, are yet made in court, in law; whereas, in Ohio, the cleik has no power to enter orders or judgments in vacation; because, under our law, there is no court save in term time. Hence, no judicial acts can take place out of court, which shall, in any way, change the rights of parties, or transfer property or money from one to another. This section, then, can not be complied with; thesd ojxlers, Ijljie tho allow~ Xtr.] MOTIONS AND 0KDEE9. 673 Forms. ance of an injunction, must rest in paper until the final recoi-d is made up. Indeed, many of the orders required to be made by a single judge are illegal and void, because they are the exercise of a judicial act, which can not take place, save in court. FORMS. 1. NOTIOB. A B, plaintiff, J County, ss. C t>, defendant.) '^°'^''' of Common Pleas. The said C D will take notice that the said A B will apply to the Hon. W V P, one of the judges of said court, at his ofiBce in ' , on the day of next, at one o'clock P. M., of sard day, for an order in the above case, directing, etc., (here set forth briefly the nature and terms of the order to be asked for;) and the said C D will further take notice that the said A B will read affidavits on the hearing of the said application, and in support thereof; at which time and place the said G D Gjin be be present, and be heard on said application, if he chooses. Dated, etc. A B. a. AFFIDAVIT OP SBRVIOB. I, W H, being first duly sworn, depose and say that I delivered a copy of this -notice to the said C D, (or to E F, his attorney of record,) on the day of , A. D. 18 . W H, Signed in my presence, and sworn to before me, this day of A. D. 18 . L M, Justice cf the Peace. • CHAPTER XLII ERROE IN crVIL CASES, Sec. 511. A judgment rendered or final order made by a Probate Court, justice of the peace, or any other tribunal, board, or officer, exer- cising judicial functions, and inferior in jurisdiction to the Court of Common Pleas, may be reversed, vacated, or modified by the Court of Common Pleas. Sec. 612. An order afiecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, is a final order which may be vacated, modified^ or reversed, as provided in this title. Sec. 613. A judgment rendered or final order made by the Court of Common Pleas, Superior Court of Cleveland, or Superior or Commercial Courts of Cincinnati, may be reversed, vacated, or modified by the District Court, for errors appearing on the record. Sec. 614. A judgment rendered or final order made by any court, board, or tribunal mentioned in the three preceding sections, may be re- versed, vacated, or modified by the Supreme Court, for errors appeai-ing on the record; but the petition in error, in such case, can be filed only by leave of the Supreme Court or a judge thereof. Sec. 615. The proceedings to obtain such reversal, vacation, or modi- fication, shall be by petition, to be entitled "petition in error," filed in a court having power to make such reversal, vacation, or modification, set- ting forth the errors complained of, and thereupon a summons shall issue and be served, or publication made, as in the commencement of an action. A service on the attorney of record in the original case shall be sufficient. The summons sh.ill notify the adverse party that a petition in error has been filed in a certain case, naming it, and shall be made returnable on or before the first day of the term of the court, if issued in vacation; if issued in term time, it shall be returnable on a day therein named; if the last publi- cation or service of the summons shall be made ten days before the end of the term, the case shall stand for hearing at that term. (674) CHAP. XLII.] EEEOR IN CIVIL CASES. Petition — Undertalcing. Sko. 616. The summons mentioned in the last section sliall, upon the written precipe of the plaintiff in error or his attorney, be issued by the clerk of the court in which the petition is filed, to the sheriff of any county in which the defendant in error or his attorney of record may be; and if the writ issue to a foreign county, the sheriff thereof may return the same by mail to the clerk, and shall be entitled to the same fees as if the same had been returnable to the Court of Common Pleas of the county in which such officer resides. The defendant in error or his attorney may waive in writing the issuing or service of the summons. Sec. 617. The plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated, or modified. Ssc. 618. Judges of courts of probate, justices of the peace, and other judicial tribunals having no clerk, and the clerks of every court of record shall, upon request and being paid the lawful fees therefor, furnish, an authenticated transcript of the proceedings, containing the judgment or final <5rder in said courts, to either of the parties to the same, or to any per- son interested in procuring such transcript. Sec. 519. No proceeding to reverse, vacate, or modify any judgment or final order rendered in the Probate Court, Court of Common Pleas, Supe- rior Court of Cleveland, or Superior or Commercial Court of Cincinnati, or District Courts except as provided in the next section, and the fourth subdivision of this section, shall operate to stay, execution, unless the clerk of the court in which the record of such judgment or final order shall be, shall take a written undertaking, to be executed on the part of the plain- tiff in error to the adverse party, with one or more sufficient sureties, as follows: 1 . When the judgment or final order sought to be reversed directs the payment of money, the written undertaking shall be in double the amount of the judgment or order, to the efiect that the plaintiff in error will pay the condemnation money and costs in case the judgment or final order shall be affirmed in whole or in part. 2. When it directs the execution of a conveyance, or other instrument, the undertaking shall be in such sum as may be prescribed by any court of record in this State, or any judge thereof, to the effect that the plaintiflf in error will abide the judgment, if the same shall be affirmed, and pay the costs. 3. Wlien it directs the sale or delivery of possession 'of real property, the undertaking shall be in such sum as may be prescribed by any court of record in this State, or any judge thereof, to the effect that, during the 676 EEEOK IN 01 Vn- OASES. [of IP Undertat'ng — Limitation. possession of such property by the plaintiff in error, he will not com- mit, or suffer to be committed, any waste thereon, and if the judgment ba affirmed, he will pay the value of the use and occupation of the prop- erty from the date of the undertaking until the delivery of the posses- ■ sion, pursuant to the judgment, and all costs. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising from the sale, the undertaking must also provide for the payment cf such deficiency. 4. When it directs the. assignment or delivery of documents, they may be placed in the custody of the clerk of the court in which the judgment was rendered, to abide the judgment of the appellate court, or the under- taking shall be in such sum as may be prescribed as aforesaid, to abide the judgment, and pay costs, if the same shall be affirmed. Sec. 620. Instead of the undertaking prescribed in the second subdi- vision of the last sebtion, the conveyance or other instrument may be executed and deposited with the clerk of the court in which the judg- ment was rendered or order made, to abide the judgment of the appellate court. Sec. 621. Before the written undertaking mentioned in section five hundred and nineteen shall operate to stay execution of the judgment or order, the execution of the undertaking and the sufficiency of the sureties must be approved by the court in which the judgment was rendered or order made, or by the clerk thereof; and the clerk shall indorse said ap- proval, signed by himself, upon the undertaking, and file the same in hia office, for the defendant in error. Sec. 622. In an action arising on contract for the payment of money only, notwithstanding the execution of the undertaking in the last section mentioned, to stay proceedings, if the defendant in error give adequate security to make restitution in case the judgment is reversed or modified, he may, upon leave obtained from the court below, or a judge thereof in vacation, proceed to enforce the judgment. Such security miiSt be an undertaking executed to the plaintiff in error by at least two sufficient sure- ties, to the effect that if the judgment be reversed or modified, he will make full restitution to the plaintiff in error of the money by him received under the judgment. Sec. 623. No proceeding for reversing, vacating, or modifying judg- ments or final orders shall be commenced Unless within three years after the rendition of the judgment, or making of the final order complained of; or, in case the person entitled to such proceeding be an infant, a married woman, a person of unsound mind, or imprisoned, within three years as ■foresaid, exclusive of the time of such disability. XLn.J EEEOE IN CIVIL CASES. 677 Stay of Execution — Reversal. Sec. 524. No proceeding to reverse, vacate, or modify any judgment rendered, or final order made, by a justice of the peace, sliall operate as a stay of execution, unless the clerk of the Court of Common Pleas shall take a written undertaking to the defendant, executed by the plaintiff' in error, by one or more sufficient sureties, to the effect that the plaintiff' will pay all the costs which have accrued or may accrue on such proceedings in error, together with the amount of any judgment that may be renderefl against such plaintiff in error, either on the further trial of the case, after the judgment of the court below shall have been set aside, or reversed, or upon, and after the affirmance thereof by the Court of Common Pleas. The person entitled to such proceeding shall have the same time for prose- cuting the same before he is barred, as is provided in the last section, unless the said judgment has been paid off', or satisfied prior to the commencement of sueh proceeding. Sbo. 525. Execution of the judgment, or final order of any judicial tribunal, other than those enumerated in this title, may be stayed on such terms as may be prescribed by the court, or a judge thereof, in which the proceedings are pending. Sbc. 526. When a judgment or final order shall be reversed, either in whole or in part, in the District Court, or Supreme Court, the court revers- ing the same shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment; and the court reversing such judgment or final order shall not issue execution in causes that are removed before them on error, on which they pronounced judgment as aforesaid, but shall send a special mandate to the court below, as the case may require, to award execution thereupon; and such court to which such special mandate is sent, shall proceed in such cases in the same manner as if such judgment or final order had been ren- dered, therein. And on motion, and good cause shown, it may suspend any execution made returnable before it, by order of the District or Su- preme Court, in the same manner as if such execution had been issued from its own court, but such power shall not extend further than to stay proceedings until the matter can be further heard by the District or Su- preme Court, as the case may be. Sec. 527. When a judgment, or final order is reversed, the plaintiflf in error shall recover his costs, and when reversed in part, and affirmed in part, costs shall be equally divided between the parties. Sko. 628. A. mistake, neglect or omission of the clerk shall not be a ground of error, until the same has been presented and acted upon in the ojurt in which the mistake, neglect, or omission, oc- curred. 678 EEEOE IN crriL cases. [chap J ustices — Review. Sec. 629. Rendering judgment before the action stooS for trial ac- cording to the provisions of this code, shall be deemed a clerical error. Sec. 630. Writs of error and certioi-ari to reverse', vacate, or modify judgments, or final orders, in civil cases are abolished, but coui-ts shall have the same power to compel, complete, and perfect transcripts of the proceedings containing the judgment or final order sought to be reversed, to be furnished, as they heretofore had under writs of error and certiorari. Sec. 631. If the judgment of a justice of the peace; taken on error as herein provided to the Court of Common Pleas, be affirmed, it shall be the duty of such court to render judgment against the plaintiff in error, for the costs of suit, and to award execution therefor; and the court shall thereupon order its clerk to certify its decision in the premises, to the justice, that the judgment affirmed may be enforced, as if such pro- ceedings in error had not been taken; or such court may award execu- tion to carry into effect the judgment of such justice, in the same manner as if such judgment had been rendered in the Court of Common Pleas. Sec. 632. When the proceedings of a justice of the peace are taken on error to the Court of Common Pleas, in manner aforesaid, and the judgment of such justice shall be reversed, or set aside, tlie court shall render judgment of reversal, and for the costs that have accrued up to that time, in favor of the plaintiff in errors and award execution therefor; and the cause shall be retained by the court for trial and final judgment, as in cases of appeal. Sec. 633. The final orders, or decrees of courts of chancery heretofore rendered, or which may hereafter be rendered in any chancery proceeding pending at the time this code takes effect, may be reviewed in the same manner, and within the same time, as if this code had not taken effect; and all suits in chancery, pending at that time, may be prosecuted to final decree in like manner. Sec. 609. A sun^mons in error shall not be issued in any case in which there is upon the minutes of the court, or among the filps of the case, a waiver of error by the party or his attorney, endeavoring to commence such proceedings, unless the .court in which the petition is to be filed, or a judge thereof, shall indorse on the same, permission to issue such summons. Sec. 607. Executors, administrators and guardians, who have given bond in this State with sureties, according to law, are not required to give the undertaking mentioned in section five hundred and nineteen. Sec. 608. If the district court affirm a judgment on petition in error, it shall also render judgment against the plaintiff in error for five per cent. ZLn.] EEEOE IN CIVIL CASES. 679 Vacation and Reversion. upon the amount due from him to the defendant in error, unless the court shall enter upon its minutes that there was reasonable ground for the pro- ceedings in error. I. What Couets May Issoe. Sec. oil. The Court of Common Picas may reverse, vacate, or modify any judgment rendered, or final order made by a justice of the peace, Pro- bate Court, or any other tribunal, board, or officer exercising judicial func' tions, and inferior in jurisdiction to the said court. Sec. 513. The District Court may reverse, vacate, or modify any judg- ment rendered, or final order made by the Court of Common "Pleas, Supe- rior Court of Cleveland, Superior or Commercial Courts of Cincinnati, for errors appearing on the record. Sec. 514. The Supreme Court may reverse, vacate, or modify any judgment rendered, or final order made by any of the courts mentioned in the two preceding sections; in other words, it has power to revise the judgments and final orders of any judicial tribunal, or officer exercising judicial functions. The Supreme Court can issue directly to these inferior tribunals; it need not wait until a decision in the intermediate courts. II. What Can be Eevkeskd? A judgment rendered can be reversed. This, however, must be the final judgment in the case; though under the code nothing else is a judg- ment. A judgment is the final determination of the rights of the parties in an action. Sec. 370. The decision of the court on a demurrer, is a judgment. King v. Stafford, 5 P. Rep. 30. An order of the Supreme Court at general term, reversing a judgment obtained at the Circuit, and ordering a new trial, is not a judgment. Duane v. Northern R. R. Co., 4 Pr. Rep. 364. So, where the Court of Commons Pleas reversed the judgment of a justice of the peace on proceedings in forcible entry and detainer, and or- dered the case to be set down for trial, this was .held not to be a final judg- ment, and that error would not lie until after trial and judgment in the Common Pleas. Kelly v. Hunter, 12 Ohio Rep. 216; Bissell v. Couchaine, 15 do. 58; Herf & Co. v. Shulze et al., 10 do. 267; WrigLt Rep. 418. 680 EEBOR IN CIVIL CASES. [OHAP. Reversion — Order — Forcible Detainer. When the final judgment is once rendered, then all questions made in the progress of a case, and presented on the record, come up for review on a ■writ of error.. Herf & Co. v. Shulze et al., 10 Ohio Eep. i!67; Harris V. Kreps, Minor's Rep. 184, 117; 2 Mass. Rep 445; 1 Root Rep. 551, 181, 290. The final order must be such an order as is in reality a final judgment. It is not every order that can be reversed on error; it is only such an order as, in effect, determines the action and prevents a judgment. Hence, an order dismissing an appeal, or dismissing a case in any stage, is a final order, which may be reviewed on error. But, if the case proceeds after an order to a judgment, no petition in error will lie until after judgment. The decision of the Common Pleas, reversing the judgment of a justice, and setting the' case down for hearing, can not be reviewed on error, until after trial and judgment in that court; then the correctness of the reversal can be questioned on error. It would seem also that, where the District Court reverses the judgment of the Common Pleas, and remands the case -for further proceedings, that error will not lie to the District Court on that judgment of reversal. After the second trial below, ?i.nd an affirmance of that judgment in the District Court, error will then lie to \his last judg- ment and then the propriety of the first judgment can be tilled in ques- tion. The reversal in the District Court, with a procedendo, leaves the case pending in the court below; and the same case can not be proceeded in in two courts at the same time. The word order will embrace all orders made on motions in any judicial proceeding; on the confirmation of a sale, taxation of costs, etc. Wherever a motion can be made outside of a case, there the order is a final one, and can be reviewed. A petition in error to review the order confirming a sale on execution was sustained by the Court of the Seventh District. The case of a judgment on a process for a forcible entry and detainer might be included under this comprehensive language: but the code makes no provision for proceedings in sunh a case. The act regulating the civil jurisdiction of justices of the peace, which wns passed after the code, has the following provision: (Sec. 138.) " If the officer shall receive a notice from the justice that the proceedings have been stayed In/ an allowance of a writ of error." This provision implies necessarily that a suit on error can not be prosecuted as of course; that it must be allowed, and that the allowance must be a writ of error. The justice's act makes no further provision in regard to the action, the draftsman of it seeming to suppose that the code had provided for all this; and the codifiers have omitted all notice of it. The old law provided very carefully for this whole matter; by the allowance of the writ within, ten daya, XLn.]' EEEOE IN CIVIL CASES. 681 Forcible Detainer. for a bond and retrial. All this is repealed, and left unprovided for, or is provided for in such a way that the remedy becomes a nuisance; the occu- pant being able, on giving security for costs, to hold on to the prop- « rty as long as he can keep a case in court. But the code does not provide for such a case. The' condition of the bond does not meet such a case, and the proceedings, in case the judgment is reversed, does not meet it. On reversal of a justice's judgment, the cause shall be retained by the court for trial and final judgment, as in cases of appeal. Now, in an action for forcible_ entry and detainer, there is no appeal; hence it can not be set down for trial as if it had been appealed. The whole proceeding is, therefore, an omitted case, a matter wholly unpro- vided for in the code. Nor can it be supposed that the Legislature intended to change the whole policy of the law on this subject, and to make a remedy, designed to be a speedj' one against wrong doers, liable to be tied up at the will of the wrong doer, simply on giving security for the costs of the judgment, with- out any security for the rents, or waste, or destruction. This matter is pro- vided for in cases originating in the Courts of Common Pleas; but no provision is made for it here. This whole matter was provided for in the old act relating to forcible detainer, and the code supposes it will be there provided for still. In the last sections of the code, remedies secured by special statutes are left in full force. The code does not repeal the forcible detainer law, but leaves it in full force; hence it could make no provision for error in that case. The justice's law was passed afterward; it repeals the forcible detainer law, and makes no provisions as to error, except the allusion already cited. Hence it is clear that there is no remedy in such a case provided by law, unless it can be had under section 603, which provides that, if a remedy is not provided for in the code, the practice heretofore in use may be adopted. This provision would reinstate the law regulating writs of error, or the provisions of "the old statute of forcible entry and detainer, so far as the prosecution of this writ of error, which may be con- strued to mean a writ of certiorari. In such a case the Supreme Court might grant the writ. Since the above was written, this question has been before the Court of Common Pleas in the counties of Athens and Gallia. Judge Nash held, in the case of Hill v. Stewart, in Athens county, that no petition in error could be filed in the Court of Common Pleas to review a judgment rendered on a proceeding in forcibler entry and detainer. He held that it could only be reviewed or. a loril of error; and no court or judge but the Supreme Court, or a judge thereof, had authority to issue writs of error. Swan's Statutes, 260, section 18. The District Court in session has also authority gives it 682 EEEOE IN CIVIL CASES. [irHAl*, Forcible Detainer. broad enough possibly to include a writ of error in such a case. Here, liien, is authority to allow a writ of error, and no execution in a case of forcibla entry and detainer can be staid, except upon an allowance. It would seem, then, that this was the only mode now recognized by law for the issue of a writ of error. Honce the Court of Common Pleas had no jurisdiction. The case of Cating v. First Presbyterian Society of Gallipolis cania before Judge Peck, in Gallia county. He held that no stay of execution could be obtained, except on the allowance of a writ of error, but seemed to suppose that a party might file a petition in error in the Common Pleafi of course, to review the judgment without a stay of execution. This would give two remedies — one by writ of error, and the other by petition in error. There could be no stay of execution on the petition in error, since no authority is granted to a judge of the Court of Common 'iPleas to allow such a writ in a civil case. And a judge of the Supreme Court has no authority to grant a writ of error returnable in the Court of Common Pleas. It would seem, therefore, that the Court of Common Pleas could have nothing to do with such a case under the code. The history of the code shows this to be the true construction. The code left in full force the previous act regulating the writ of forcible entry and detainer; it did not repeal it. Hence, when the code became a law, this whole matter of error, in cases of this character, was regulated by the forci- ble entry ^nd detainer act, and not by the code. This state of the legisla- tion demonstrates that it was not the intention of the Legislature to embrace the subject of error in this class of cases in the code. Tiiat was fully provided for in the law already in force, and with which the code did not interfere. If legislation had stopped here, this whole matter would clearly have been regulated by the forcible entry and detainer act, and not by the code. •■ But now comes the act regulating the jurisdiction of justices of the peace. This act was passed after the code, and by it, the former act regulating proceedings in forcible entry and detainer is repealed, and new pi'ovisions aie made in this act in relation to the process of forcible entry and detainer; but no provision is made in this last act for proceedings to review a judg- ment in such a case, except what may be implied from the provision as to the allowance of a writ of error operating to stay execution on the judg- ment. The blunder was committed by the draftsman of the last law; while repealing the former act, which provided in detail for the method in which to review a judgment in such a proceeding, he wholly omitted any provisions in the new act on this subject. The code intentionally left this matter to be provided for in the detainer act itself; and the new act on that subject wholly omits to provide for it. Hence, between the two acts, the XLn.] EEROE :n diviL CASES. 683 Forcible Detainer — Petition and Summons. whole matter is overlooked and unprovided for, except so far as that single reference to a writ of error implies that such a judgment may he reviewed in that way. The Supreme Court and District Court have jurisdiction to issue a writ of error, and a judge of the Supreme Court, or either of the above courts in term time, have authority to allow it. Here, then, is granted a right to have a writ of error, and here are the courts having jurisdiction of, and the judg'es having the authority to allow, a writ of error. And it is submitted, whether, after this, the Court of Common Pleas can have any right, hy petition in error, to assume jurisdiction over a subject which the history of legislation shows it never was intended should come \inder the provisions of the code, since that left the subject under the provisions of another statute. Legislation is needed to supply the blunder in the justice's act. A judge of the Court of Common Pleas should be authorized to allow a peti- tion in error, on the giving of such a bond as was provided for in the previous acts regulating this subjeftt; and the same provisions should be made for the proceedings on a reversal, or affirmation of the judgment in the Court of Common Pleas as was provided in the former act regulating proceedings for forcible entry and detainer. III. Tbe Fboceedixgs. Sec. 516. The proceedings shall be hy petition, to be entithi, petition in error. It can be filed in the Court of Common Pleas and District Court, of course; but before it can be filed in the Supreme Court, leave of tlia Court, or a judge thereof, must be first obtained. The petition must be accompanied with a copy of the record, in the proceedings of which it is claimed that error has intervened; and it must point out the error complained of. The petition must, of course, be entitled and headed like any other petition. A summons issues thereupon, as in the commencement of any other action, and must be served, or publication made, as in other actions. A service may be made on the attorney of record in the original case, instead of the party. The summons shall be made returnable on or before the first day of the ensuing term of the court, if issued in vacation; if issued in term time, it may be made returnable to a named day in term. If the service is com- pleted ten days before the last day of term, the case shall stand foi healing at that term. 684 EEEOE IN CIVIL CASES. [OHAP. Undertaking. The summons shall issue on filing the petition and precipe of the plain- tiff; and it may be directed to' the sheriff of any county, in which the defendant or his attorney of record, may be found. The sheriff of anothei county may returYi the writ by mail. The issue of the summons may be waived by parties. IV. SUFESSEDEAS. Sec. 519. The execution shall not be stayed by reason of the filing of any petition in error, unless the clerk of the court in which the record of such judgment or firial order shall be, shall take a written undertaking, with security, to the adverse party. In case the judgment or final order directs the payment of such money, the undertaking shall be in double the sum named in the same, and condi- tioned that the plaintiff shall pay the condemnation money and costs, if the judgment shall be affirmed in whole or in part. Wlien the judgment dii-ects the execution of a conveyance or other in- strument, the undertaking shall be in such sum as shall be prescribed by any court of record in this State, or any judge thereof, and conditioned that the plaintiff will abide the judgment, if affirmed and pay all costs. The conveyance or other mstrument may be executed and left with the clerk to abide the decision, in place of the undertaking. Where it directs the sale or delivery of the possession of real property, the undertaking shall be in such sum as any court of record or any judge thereof, may prescribe, and be conditioned that during the possession of such real estate by the plaintiff in error, he will not commit or suffer any waste thereon; and, if the judgment be affirmed, he will pay the value of the use and occupation of the property from the date of the undertaking until delivery of the possession pursuant to the judgment, and all costs. If the judgment is for the sale of mortgage premises, and the payment of a deficiency, the undertaking must provide for this deficiency. When the judgment directs the assignment or delivery of documents, the plaintiff may place them with the clerk of the court in which the judg- ment was rendered, to abide the judgment of the court above; or an un- dertaking may be given in such sum as may be prescribed by a court oi judge as in the other cases, conditioned to abide the judgment, if affirmed, and pay costs. XXn.J EREOE IN CIVIL CASES. 685 UndertELking — Exefcution. Who is to take this security? The clerk of the court below; the clerk of the court in which the judgment was rendered or the order made. The judge of the Probate Court will, of course, do it in his court, as he is his own clerk. The clerk of the court issuing the summons in error, has nothing to do with this unde?taking for the stay of execution; and yet the code has pointed out no legal means whereby such clerk can be notified of the filing of such petition in error. How is he ofiicially to know this fact? The code speaks silence on this point; and the clerk must, at his peril, do the best he can. The plaintiff in error must see that this undertaking is given, and the clerk will take it on the certificate of the proper clerk that the petition has been filed. The undertaking can not properly be taken until the petition is filed and summons issued. And by section 78, it would seem that the action is not pending until service is completed. The undertaking, and the sufiiciency of the security, must be approved by the court in which the judgment was rendered, or by the clerk thereof. If approved by the court, this approval must appear on the minutes; if by the clerk, he must indorse his approval thereon, signed by himself. It would seem that the approval must be by the clerk himself, and can not be done by deputy. It is a judicial, not a ministerial act, and does not, there- fore, come under section 696. Sbc. 622. This is a singular section, of the true Shylock stamp. The plaintiflF below, and defendant in error, may still, by giving security to repay the money, have an execution against the plaintiff in error. In this way, there can be no stay of execution against the rich; he can force an execu- tion, a sale and a sacrifice of the property of the plaintiff in error, being responsible, on reversal, not for the damages sustained, but simply for the money by him received on the judgment. This is another of those pro- visions of the code craftily slipped in to force the more speedy collection of debts; and to clinch this intent, it is confined to actions arising on con- ta'acts for the payment of money only. This right to issue execution, in spite of the pendency of the petition in error, and the giving of the security, can not be exercised but upon leave obtained from the court below, or a judge thereof in vacation. The eflfect of this provision is, that the party is not entitled! to a supersedeas in this class of cases, without leave obtained of a court, or a judge thereof; because, on a motion for the issue of an execution, notwithstanding the giving of the undertaking provided for in section 619, the direct question must come up, whether there is error, or reasonable grounds to suppose the existence of error, in the record or proceedings. No court or judga would allow the, i^sue of an execution under such circumstances, except 44 686 EREOE IN crvrL cases. [chap. Supersedeas — Costs. in a case where the supersedeas is obtained for the purpose of delay, and that such was the fact must be apparent from an inspection of the record itself. This is another of those numerous provisions contained in the code, where the court or judge is authorized to set aside its most minute and specific details. The code here carefully provides for petitions in error, and for the manner of obtaining a supersedeas; and then comes the clause, that in certain- cases, this all goes for nothing, if the court or a,judge chooses to set it aside. The provision is not that an execution may issue if the supersedeas is clearly for delay, but that, in all cases, the court or judge may allow the writ of execution to issue at its, or his, sovereign discretion. The reasonable rule would have been to have declared that no supersedeas should be obtained in such a case, except on an allowance by the court or judge. This would have been plain, straightforward legislation, which all would have understood, and no arbitrary discretion would then liave been placed in either the court or the judge. But the codifers seem to have had a painful suspicion ever pressing upon their minds, that the minute and rigid details of the code would not work well under all contingencies; and hence this unlimited discretion vested in a court or a judge to set them aside, if it or they should see fit. There may be good sense at the bottom of all this; but there is not much democracy in thus placing a judge above all law and fixed rules. A motion to issue an execution, under this section, can only be made on notice to the other party, and on a hearing before the court or judge. The plaintiflf in error having complied with the law to obtain a supersedeas, has a right to suppose his case will so remain, unless he is notified of the motion to set aside the supersedeas. He has a right to be heard on such a motion; and it would be error to award execution unless such notice had been given. The record awarding the execution should show that such was given, or it would be erroneous on its face. In the case of the judgment of a justice of the peace, no proceedings on error shall operate as a stay of execution, unless the clerk of the Court of Common Pleas shall take a written undertaking to the defendant, with sureties, conditioned that the plaintiflf will pay all costs which have accrued, or may accrue, on such proceedings in error, together with the amount of any judgment that may be rendered against the plaintiflf in error, either on the further trial of the case, after the judgment of the court below shall have been set aside or reversed, or upon and after the aflfirmance thereof in the Court of Common Pleas. The party to a suit before a justice, can not have a petition in error, however erroneous the judgment below may be, unless he can give security. XIJI.J EEEOR m CIVIL CASES. 687 Supersedeas — Courts — Limitation. not only to maintain his suit in error, but to pay any final judgment that may be rendered against him on a trial after a reversal. If this is just in this case, why is it not applied to cases originating in the higher courts? This is another of those sections which amounts to a denial of justice to a poor man . Indeed, the code seems to have been framed upon the principle that to be poor or in debt is a crime. No provision is here made for an undertaking in a case of forcible entry and detainer. In such a case there is no money judgment except for costs; it is for the recovery of the possession of real property. Sec. 525. In other cases, not provided for, the court in which the proceedings are pending may order a stay on such terms as it may prescribe. The supersedeas provided for in section 626, must be limited to courts of record, since the section says, "as may be prescribed by the court or a judge thereof." The supersedeas must, therefore, be allowed by the court in which the proceedings on error are pending. But this section does not apply to any of the courts enumerated in this chapter. It is the execution of the judgment, or final order, of any judicial tiibunal other than tliose enumerated in this title. The section is, there- fore, applicable only to proceedings in courts or judicial tribunals, as to which no absolute right to a iiyjerWeas is given. Sections 619 and 524 enu- merated the courts on the judgments of which a supersedeas may issue on giving an undertaking. These are judgments of justices of the peace, of the courts of Common Pleas, Superior Courts of Cleveland and Cincin- nati, and of the District Courts. To stay the execution of a judgment or order of any other court or judicial tribunal, requires an order of the court or judge where the proceedings on error are pending. This section, therefore, applies to judgments and orders of probate courts, of boards of county commissioners, and of any other board or tri- bunal, exercising judicial functions within the jurisdiction given in the first three sections of this title, to the several courts to review their judgments or orders on error. v. Within what Time it mat be Brouqht, Sec. 6231 No proceeding in error can be commenced unless within three years after the rendition of the judgment, or the making of the order. 688 EEEOE m CIVIL CASES. [chap For what Judgment will be Reversed. Infants, married women, persons of unsound mind, or imprisoned, may prosecute it within that time, exchisive of the time of such disability. Hence, if the statute has begun to run, and the disability intervenes, the person will hare the balance of the three years after the disability i removed. Where one of the parties to an action is within the saving, all are; unless his interest can be severed from that of the others, and the judg- ment be reversed in his favor, and left in force as to the others. Massie's heirs v. Wallace, 12 Ohio Eep. 351; Meese v. Keef, 10 do. 362. fl. F0£ WHAT A JdDQMEMT WILL BE BbVEESEO. Sec. 528. No judgment shall be reversed for the mistake, neglect, or omission of the clerk, until the same has been presented and acted upon in the court in which the mistake, neglect, or omission occurred. Sec. 529. Rendering judgment before the action stood for trial, accord- ing to the code, is to be deemed a clerical error. Sbo. 138. The court, in every stage of an action, must disregard any error or defect in the pleadings, or proceedings, which does not aflFect the substantial rights of the adverse party; and no judgment shall be reversed 01 affected by reason of such error or defect. Error will not lie upon what is matter of discretion in the court. 2 liar, and Gill 79; 3 Halst. Rep. 80; 7 Vermt. Rep. 476, 534; 21 Maine Rep. 612. So refusing a new trial is a matter of discretion, and not o^en to review. 6 Conn. Rep. 59; 6 Cranch 206; 5 do. 187; Breese Rep. 162. So with the allowance of an amendment. 10 Conn. Rep. 460; 1 1 Wheat. Rep. 280. So for a refusal to strike out a plea. 3 Stew. Rep. 172; or for a refusal to continue a cause; 6 Cranch Rep. 206; 1 Litt. Rep. 257; 4 Cranch Rep. 236; contra, 1 Blackf. Rep. 63. Nor does it seem that the code has changed this state of the law. An exception is an objection taken to the decision of the court upon a matter of law. Sec. 290. The right to except, therefore, is limited to a decision on a matter of law. The code no where points out what is error, and of course recognizes the existing state of the law as to what is or is not a legfil error, of which a party can take the advantage. We had a statute provi- ding for 3 bill of exceptions on a motion for a new trial; but this act is repealed, and the code does not re-enact its provisions. TTTT ] EKEOE IN CIVIL CASES. 689 Revel-sal — Judgment. A judgmsnt can not be reversed for an error in favor of the party. Sterret v. Oreed, 2 Ohio Rep. 343; 4 Bibb Rep. 180; 13 Wend. Rep. 280; 4 Port. Rep. 186; 1 Call. Rep. 667. Judgment will not be reversed for an error which does no injury to the party complaining. 8 Watts and Serg. 391; 7 Monroe Rep. 407; 6 Watts and Serg. 188; 9 Gill and John. 439; 6 Leigh Rep. 109; Wright Rep. 647; 9 Dana Rep, 193, 59, 273; 6 Mo. Rep. 601; 6 Blackf. Rep. 267; 1 Scam. Rep. 131; 13 Ohio Rep. 131. So the exclusion of evidence which could have had no beneficial eflfect to the party offering it, is no ground for a reversal, though it was excluded for a wrong reason. 8 Dana Rep. 192; 5 Blackf. Rep. 296. Nor for the admission of irrelevant testimony or evi- dence, if it appears no prejudice arose from it. 3 Watts and Serg. 127; 4 Dana Rep. 166. Nor for an erroneous charge, where no injury can result from it. 8 Yerg. Rep. 249; 3 Gill and John. 450. Where the complainant omitted to aver a fact essential to the mainte- nance of the action, but this fact appeared from the defendant's answer, and objection to the complaint for this defect was first taken at the trial, and it was there overruled, and judgment rendered for plaintiff, on error, it was held that the court would deem the defect in the Complaint supplied by amendment, and sustain the judgment. Bate v. Graham, 1 Kernan Rep. 237. The court, when the objection was made, ought to have ordered an immediate amendment. A judgment may now be reversed as to one defendant and suffered to stand against another, in cases in which a several judgment against that defendant would have been proper. In such a case only one should be a party to the writ of error. Geroud v. Stagg, 10 Pr. Rep. 369. The old rule was otherwise. 1 Denio R. 637, 656; 1 Iredell Rep. 482; 10 N. Hamp. Rep. 444. Where it appears from the whole record that the proper judgment has been entered, the proceedings will not be reversed on error, even if the court mistook the law on some of the propositions discussed during the trial. Harman v. Kelly, 14 Ohio Rep. 602; Andre v. Johnson, 6 Blackf. Rep. 376; Houghton v. Slack, 10 Vermt. Rep. 520. VII. Judgment. Sec. 526. When a judgment or final order has been or shall be reversed, either in whole or in part, in the Court of Common Pleas, the District Court, or Supreme Court, the court reversing the same shall proceed to render such judg- ment, as the court below should have rendered, or remand the cause to the court below for such judgment; and the court reversing such judgment or final order, shall not issue execution in causes that are removed before them on 690 ERROR IN CIVIL CASES. [CHAP. Judgment. error, on whieh they pronounced judgment, as aforesaid, but shall send a spe- cial mandate to the court beloT*, as the case may require, to a\i'ard execution thereupon ; and such coui:t to which such special mandate is sent shall proceed in such cases in the same manner as if such judgment or final order had been rendered therein ; and on motion, and good cause shown, it may suspend any execution made returnable before it by order of the Court of Common Pleas, the District Court, or Supreme Court, in the same manner as if such execution had been issued from its own court, but such power shall not extend further than to stay proceedings until the matter can be further heard by the Court of Common Pleas, the District Court, or Supreme Court, as the case may be : Provided, this section shall not apply to judgments of justices of the peace. On receipt of the mandate of the Supreme or District Court, the Common Pleas orders it at its next term to be entered on the minutes of the court, and directs execution to issue thereon, as upon a judgment by that court. Indeed, as soon as the mandate is so recorded, the judgment rendered in the court of error becomes, for the purposes of execution, a judgment of the Court of Com- mon Pleas. If a judgment of the Common Pleas is affirmed, then the execu- tion, save for costs on error, is to be issued on the original judgment Sec. 608. When the District Court shall affirm a judgment on petition in error, it shall also render judgment against the plaintiff in error for five (5) per cent, upon the amount due from him to the defendant in error, unless the court shall enter upon its minutes that there was reasonable ground for the proceeding This section is placed in the code after the repealing section, and must have been added as an amendment after the code was reported. It applies to all cases where the judgment is for the recovery of money, whether a stay of execution has been obtained or not. Indeed where, under section 622, a defendant in error and plaintiff below has obtained the issue of an execution, after a supersedeas granted, he can go on and collect his debt, and yet have a penalty of five per cent, on his judgment, unless the court should construe the words, "upon the amount due from him to the defend- ant in error," to mean the amount actually still due on the affirmance of the judgment, and not the original amount of the judgment. This is the more reasonable construction to be given to the section, since where a party has not been delayed by a petition in error in collecting his judgment, we c^n see no reason for giving him a penalty. And yet, if he has proceeded regularly and has not had time to collect, though not delayed, he will be entitled'to his five per cent. If a penalty was to be authorized, it should have been only in those cases where the plaintiff below had been stayed by a supersedeas in the collection of his judgment. The costs are the usual penalty for bringing a groundless action, and why a petition in error should XLH.] ■ EEEOE IN CIVIL OASES. 691 Forms. be made an exception to the general rule, we are unable to sei;*. This sec- tipn ought be restricted to cases where a stay of execution is obtained upon the filing of the petition in error. ^ FORMS. 1. PETITION. County, ss. ) District Court. ) A B, plaintiff, ) V. y Petition in Error. C D, defendant.) The said A B, plaintiff, complains of the said C D, defendant, for that the said C D, at the term of the Court of Common Pleas, A. D. 18 , for said county of , recovered a judgment, by the consid- eration of said court, against the said plaintiff, in a certain action then peniling in said court,* wherein the said C D was plaintiff, and the said A B was defendant, a copy of the record of the judgment and proceedings in which case, duly certified, is hereto attached, marked A, and made a part of this petition; and the said A B avers that there is error in the said record and proceedings, in this, to-wit: 1. That the said court erred in the instructions given to the jury on the trial of the said action. 2. That the said court erred in refusing to give the instructions which the said A B prayed the said court to give. 3. That the facts set forth in the said petition are not suflBcient in law to maintain the aforesaid action thereof against the said A B. 4. That the said court erred in sustaining the demurrer of the said plaintiff to the answer of the said defendant, (or to the first, or second count in the petition and plea in the answer of the said A B contained.) 6. That the said court errred in sustaining the demurrer of the s?id plaintiff to the counterclaim" of the said defendant. 6. That said court erred in admitting the evidence of said C D, to which the said A B objected. 7. That the said court erred in ruling out the evidence offered by the said A B on the trial of said action. 8. That the said judgment was given for the said C D, when it ought to have been given for the said A B, according to the law of the land. EEEOE IN CmL OASES. [OHAP Forms. The said A B, plaintifiF, therefore prays that the said judgment may ba reversed, and the said plaintiff restored to all things he has lost by reason thereof. The assignment 'will, of course, correspond with the error which has intervened. The above are given as mere examples, and as a guide to the inexperienced. The error must be specifically pointed out, and must ba apparent upon the inspection of the record. Errors of fact, however, may be assigned not apparent on the record; as the infancy of a party; 9 John. Eep. 169, 16 do. 87; or the death of a party before judgment; 6 Ohio Rep. 518; or that a party against whom an attachni:.nt had been issued, was not a non-resident; Hartshorn v. Wilson, 2 Ohio Rep. 27. An error in fact must be some fact of which the party could not have taken advantage on the frial. No question of law or facts competent to have been proved at the trial can be assigned for error of fact. There are but a very few such errors. Errors of fact and errors of law can not be assigned at the same time; for the one is to be tried by a jury and the other by the court. Nor can several errors in fact be assigned; 6 Comyn Dig. 468; Pleader 3 B. 15; though several errors in law may be assigned at the same time. Ibid. No errors will be noticed but such as are pointed out by the assignment. 16 Conn. Rep. 83; 5 B. Monroe, 340, 6 Dana Rep. 242; 3 How. Mis. Rep. 77. a. ANSWER. The code says nothing as to any answer; still it is supposed the defend- ant must answer. Unless he does the court will not know how to try an error in fact, except by default. The statute,of limitations must be pleaded. Acker v. Ledyard, 1 Denio Rep. 677; and this though the judgment on its face be of more than three years standing. Ibid. Eubank v. Rail, 4 Leigh. Rep. 308. So a release of errors must be pleaded. Where errors in fact and law are assigned together, a demurrer will lie for the misjoinder; or the defendant can compel the plaintiff to elect, by which he will abide. If a party pleads to an error in fact that there is no error, he admits the fact, and presents the single question, whether the fact so admitted renders the proceedings erroneous. 9 John. Rep. 169; 16 do. 87; 9 Yerger, 91. A party may deny the truth of the fact assigned for error, and then it must be found by a jury. 3. LIMITATION. And now comes the said D, defendant, and for answer to the petition of the said A B, plaintiff, saith that the said plaintiff ought not to have his XXn.] EEEOE m CIVIL CASES. 693 Fonns. said action thereof against him; because he saith that the said proceeding in error was not commenced within three years next after the rendition of the judgment aforesaid; and this he is ready to make appear. 4. NO EBBOB. And now comes the said C D, defendant, and for answer to the petition of the said A B, plaintiff, saith that there is no error either in the record and proceedings aforesaid, or in the rendering of the judgment aforesaid, (or in the making of the order aforesaid,) therefore he prays that the said judgment may be affirmed. 5. BELEASE OF BBBOB. And now comes the said C D, defendant, and for answer to the petition of the said A B, plaintiff, saith that the said plaintiff ought not to have his said action thereof against him; because he saith that the said A B, after the rendition of the said judgment, and before the commencement of this action, did, by his writing, under seal, Telease to the said C D, all errors which might have or had occurred in the record and proceedings aforesaid, and all right to prosecute any action or petition in error thereon against the said C S), and this the said C D is ready to make appear. 6 (7NDEETAKINGS FOB MONET JTTDGMBNT. Whereas A B has, this day of , A. D. 18 , filed in the clerk's office of the District Court, for the county of , his petition in error against C D, to obtain the reversal of a judgment rendered in the Court of Common Pleas for said county, at its term, A. D. 18 , in an action" wherein the said C D was plaintiff, and the said A B defendant, and in which action the said C D recovered judgment against the said A B for $ , debt, and $ . , costs of suit. Now, therefore, we, , and , do undertake to the said C D, in the sum of $ , that the said A B will pay the condemnation money and costs, in case the said judgment (qt order) shall be affirmed in whole or in part. 7. WHEBE IT DIEBOTS EXECUTION OP A OONVETANOB. Whereas A B has, this day of , A. D. 18 , filed in the clerk's. office of the District Court, for the county of , his petition in error against C D, to obtain the reversal of a judgment rendered 694 EEEOE IN CIVIL CASES. [OHAP. Forms. in the Court of Common Pleas for said county, at its term, A. D. 18 , in an action wherein the said C D was pkintiflF and the said A B defendant, and in which action the said C D recovered judgment against the said A B, that the said A B do execute and deliver to the said C D, a con- veyance for certain real estate in sai^ judgment and proceedings described, and for $ costs of suit; Now, therefore, we , and , do undertake to the said C D, in the sum of $ , that the said A B shall abide the judgment, if the same shall be affirmed, and pay all costs by reason thereof, S. ON JTTDOUEN.T FOB BECOVESY OF LAND. Whereas A B has, this day of , A. D. 18 , filed in the clerk's office of the District Court for the county of , his petition in error against C D, to obtain the reversal of a judgment rendered in the Court of Common Pleas, for said county, at its term, A. D. 18 , in an action wherein the said C D was plaintiflf, and the said A B defendant, and in which action the said C D recovered judgment against the said A B for the possession of the following real estate, to-wit, (here describe it as in record,) and for $ , his cost of suit; Now therefore we , and , do undertake to the said C D in the sum of $ ,.that the said plaintiflf in error, during the possession of the said real estate by the said plaintiff in error, shall not commit or suffer to be committed, any waste thereon, and that if the said judgment shall be affirmed, he will pay the value of the use and occupation of the said real estate from the date of this undertaking, until the said A B shall deliver the possession thereof to the said C D, pursuant to the judg- ment, and pay all costs. 9. ON EBBOB TO JTTSTIOE. Whereas A B has, this day of , A. D. 18 , Sled in the Court of Common Pleas, for the county of , his petition in error against C D, to obtain the reversal of a judgment for $ , debt, $ , costs, rendered on the day of , A. D. 18 , by , Esq., a justice of the peace for the township of , in the said county of , in an action then pending before him, wherein tlie said C D was plaintiff, and the said A B was defendant; Now we , and , undertake to the said C D, that the said A B shall pay all costs which have accrued or may accrue on said XLn.] EEEOE IN CIVIL OASES. / 695 Forms. proceedings in error, together with the amount of any judgment that may be rendered against the said plaintiff in error, either on the further trial of the case after the judgment of the court below may have been re- versed, or upon and after the affirmance thereof in the Court of Common Pleas. 10. SUGGESTION OP DIMINUTION OF THE RECORD. And now comes the said C D, and suggests to the court here that in the transcript of the record attached to the plaintiff's petition, there are certain defects as follows, to-wit, (^here state specifically what they are.) Wherefore the said C D prays that an order may be sent to the said Court of Common Pleas (or the said , justice of the peace,) to certify up to this court, whether the said defects do exist in the record of said proceedings now remaining in said court, and also a true transcript of said proceedings in said court below, and thereupon it is ordered that the said order issue as prayed for, and that the said Court of Common Pleas (^or the said justice) do certify as prayed for, and also send up a true tran- script of the record and proceedings in this cause to this court; and, it is further ordered, that a copy of this order be served on the said court or the said justice of the peace, and the said court (or justice) is liereby required to make his return to the same forthwith, (or on or before the day cf ,A. D..18 .) As the writ of certiorari is taken away, the court may act by order, and a copy of the order is as good as a formal writ; and an attachment can issue for disobedience to the order as well as to the old writ. 11. JUDGMENT OP AFFIRMANCE. And now came the said parties, by their attorneys, and, thereupon, this action came on to be heard upon the petition of the said A B and the answer of the said C D, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court that the judgment of the said Court of Common Pleas {^or of the said justice of the peace) be and the same is hereby affirmed with costs; and it is further ordered that a special mandate be sent to the said Court of Common Pleas to carry this judgment into execution. If a justice's judgment is affirmed, after the judgment of affirmance, proceed as follows: — 696 EEEOK IN CIVIL OASES. [CHAP. Forms. And it is further ordered that execution be awarded from this court to carry into effect the judgment of the said justice, as if the same had been rendered in this court. Or, And it is further ordered that the clerk of this court certify this decision to the said , justice of the peace, that the said justice may proceed to execution of the said judgment so as aforesaid by him rendered. 12. BETEBSAL. And now came the said parties, by their attorneys, and thereupon this action came on to be heard upon the petition of the said A B, and the answer of the said C D, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said Court of Comnaon Pleas, [or of the said justice of the peace,) be and the same is hereby reversed, with costs, and that the said plain- tiff in error be restored to all things which he has lost by reason of the said judgment; and it is further ordered that the said Court of Com- mon Pleas do proceed, without delay, to final judgment between the said parties according to law; and it is further ordered that a special mandate be sent to the said Court of Common Pleas, to carry this judgment into execution. 13. THE LIKE, SPBOIPTING THE OAtTSB. And now came the said parties, by their attorneys, and thereupon this action came on to be heard; upon the petition of the said A B, and the an- swer of the said C D, and was argued by counsel; on consideration whereof this court is of opinion that there is error in the record and proceedings of the said Court of Common Pleas, in this, .to-wit: that the said court, in {here state the grounds of reversal.) Therefore, for the said errors, it is ordered and adjudged by this court that, etc., {as in last precedent.) 14. REVERSAL AND PINAL JUDGMENT, {Follow the last hut one to the close of the reversal, and then proceed:) and thereupon it appearing to the court here that the said Court of Com- mon Pleas ought to have rendered judgment in favor of the said A B, and against the said C -D, for the sum of $ , and costs of suit; it is therefore considered by this court that the said A B recover of the said C XLnJ EEBOE m CIVIL OASEB. 697 Forms. D the said sum of $ , and also his costs in this behalf expended, taxed to dollars and cents; and it is further ordered that a special mandate be sent to the said Court of Common ifleas, to carry said judgment into execution. 16. KBVBRSAl., AND OAUSB REMANDED WITH INSTEUOTIONS TO OVBEEULB A DEMUKREE. And now came the said parties, by their attorneys, and thereupon this cause came on to be heard upon the petition of the said A B, and the an- swer of the said C D, and was argued by counsel; on consideration whereof the court find that the said Court of Common Pleas erred in sustaining the demurrer of the said C D to the petition of the said A B, (or in sustaining the demurrer of the said C D to the answer of the said A B;) it is there- fore considered and adjudged by this court, that for the error aforesaid, the said judgment of the said Court of Common Pleas be and the same is hereby reversed with costs; and that the said A B be restored to all things which he has lost by reason thereof; and it is further ordered that this cause be remanded to the said Court of Common Pleas, with instruction to overrule said demurrer, and to proceed without delay to final judgment between the said parties, according to law. 16. PROCEDENDO ON EEVEESAL. (The entry of judgment is as in the preceding, to the close of special mandate made to carry the judgment into execution, then proceed:) and that a writ of procedendo also be sent to the said Court of Common Pleas, to proceed without delay to final judgment between the said parties according to law. 17. REVERSAL IN PART AND AFFIRMANCE IN PART. And now came the said parties, by their attorneys, and thereupon this cause came on to be heard upon the petition of the said A B, and the an- swer of the said C D, and was argued by counsel; on consideration whereof it is ordered and adjudged that so much of the judgment of the said Court of Common Pleas as, (here state the part to le reversed,) be and the same is hereby reversed, and that the said A B be restored to all things he has lost thereby; and that the residue of the said judgment of the said court be and the same is hereby aflSrmed; and it is further ordered and adjudged that the costs of this suit be equally divided between the said • plaintiflF and de- fendant, and each is hereby ordered to pay his said proportion; and it is 698 EEEOE IN CIVIL OASES. ' fOHAP. Forms. ordered, that a special mandate be sent to the said Court of Co&mon Pleas^ to carry this judgment into execution. 18. MANDATE. The State of Ohio, , County, ss. To the Court of Common Pleas, within and for said County, Greeting: Whereas, in a certain civil action lately before you, wherein A B was plaintiff and C D was defendant, a judgment was rendered by you in favor of the said A B, for the sum of $ , with costs; on a transcript of which judgment and record the said C D prosecuted a petition in error in the District Court, within and for the said county of ; and whereas, at the term of the said District Court, A. D. 18 , on considera tion of the said petition of the said C D, and the answer of the said A B, it was ordered and adjudged by the said District Court, that * the said judgment be affirmed, (or reversed,) with costs, which costs, as taxed, amount to the sum of $ You are therefore hereby commanded, that without delay, you cause execution to be had of the said judgment of the said District Court, ac- cording to law, the said petition in error to the contrary notwithstanding. Witness my hand and the seal of said District Court, at the court house in , on this day of , A. D. 18 . J D, Clerk. 19. PEOOBDBNDO. (Proceed as in last to *, (hen add:) the said judgment be reversed, with costs, taxed to $ , and that the said action be remanded to the said Court of Common Pleas for further proceedings. You, therefore, are hereby commanded, that without delay, you cause execution to be had of the said judgment for costs; and that in like man- ner you proceed to final judgment between the said parties, according to law. Witness my hand, and the seal of said District Court, at the court house in , on this day of ' , A. D. 18 . J D, Clerk. XUI.} EEKOB m CIVIL CASES. 699 To the same Court — Causes. ERROR TO. THE SAME COURT. I. When Asmissiblk. Sec. 534. A Court of Common Pleas or District Court shall have power to vacate or modify its own judgments or orders, after the term at which such judgment or order was made: — 1. By granting a new trial for the cause, within the time and in the manner prescribed in section three hundred and one. 2. By a new trial granted in proceedings against defendants construct- ively summoned, as provided in section seventy. 3. For mistake, negleot, or omission of the clerk, or irregularity in obtaining a judgment or order. 4. For fraud practiced by the successful party in obtaining the judg- ment»or order. 6. For erroneous proceedings against an infant, married woman, or person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings. 6. For the death of one of the parties before the judgment in the action. 7. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending. 8. For errors in a judgment shown by an infant in twelve months after arriving at full age, as prescribed in section three hundred and eighty-six. 9. For taking judgments upon warrants of attorney, for more than was due to the plaintiff, when the defendant was not summoned, or otherwise legally notified of the time or place of taking such judgment. • The first two causes have already been discussed under their respective heads. The third cause relates to mere clerical mistakes, which can be amended on motion. The fourth reason would have been the foundation of a bill in chancery heretofore, and the proceedings under it must now be substantially the same. The fifth and sixth reasons refer to error.s heretofore corrected on a writ of error coram vobis, or a writ of error issued by the court to re-examine 700 EEEOE Df CIVIL OASES. [OHAP. To the same Court — ^How Corrected. its own judgments. The case of Daws and Gary v. Harper and Payne, 6 Ohio Rep. 61 8, is one of this kind. Error may be in the same court where the judgment was given, when the error is not assigned for any fault in the court, but in some defect in the execution of process; as for mis- prison of clerk; for error in fact, as, defendant, being a minor, appeared by attorney; plaintiff a femme covert, or died before issue. 6 Comyn's Dig. 438; 11 John. Rep. 460; 1 Brown Rep. 75; Ffazier v. Cosbie, 2 Wash. Rep. 130. It may now be doubtful whether error in fact can now be taken advantage of, save in the court rendering the judgment. The seventh reason is also one formerly addressed to a court of equity; and many of the cases have already been considered under the head of new trial. The other reasons need no explanation. The court has always set aside judgments entered upon confession, when taken for more than the sum due, or when including a collection fee. Shelton v. Gill, 11 Ohio Rep. 417; Martin v. Bank of St. Clairsville, 13 do. 260. So judgments irregularly entered might be set aside at a subsequent term. 3 Ohio Rep. 16, 518; 18 do. 307. n. How COESSCTED, ETC. Skc. 535. Proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be on motion; but notice thereof shall be given to the adverse party or his attorney. The motion to vacate a judgment because it was rendered before the action stood for trial, must be made in the first three days of the succeeding term. Seo. 536. The proceedings to vacate or modify a judgment or order, on the grounds mentioned in subdivisions 4, 5, 6, 7, 8, and 9, must be by petition verified by aflSdavit, setting forth the judgment or order, the grounds to modify or vacate it, and the defense to the action, if the party applying was the defendant. On this petition a summons must issue, and be seived as in an ordinary action. Seo. 637. The court may first try and decide upon the grounds alleged to vacate or modify the judgment or order, before deciding upon the valid- ity of the defense, or the cause of action. There are two questions, then, in every such case: Mrst, Does the petition make a cause within the code for vacating the judgment or order? Secondly/, If it does, has he a defense to the action, or a good cause of action, if the application is made by a XLH.] EEEOE EST CIVIL CASES. 701 ■ ' — f —— ■ To the same Court — How Corrected — Limitation. plaintifF? Both of these questions must be decided affirmatively, before the judgment or order can be vacated. The court must first decide that a plaiatift' has a valid cause of action, or a defendant a valid defense, before the judgment already entered can be disturbed or vacated. Hence the whole merits of the case must be involved in an application for the vacation of a judgment; and, of course, the petition must contain a statement of the whole case between the parties. There must be, in the first place, the presentation of a legal cause of action, or defense thereto; and, secondly, thei-e must be reasonable grounds for believing that it can be made out. The court, on a disputed cause of action or ground of defense, would not under™ take to pass absolutely on the facts; but it must be satisfied that a case is made for a jury; and such a case, too, as, if a verdict were found for the applicant, the court would not disturb it, as being against the weight of evidence. Section 538 must not be construed to mean more tlian this; since the application is not for a judgment, but only for a new trial. If, then, the evidence of the facts is such that a verdict found on them would be permttted to stand, the party has shown such a valid cause of, or defense to, an action as will entitle him to a vacation of the judgment, and a new trial. The motion to modify judgments must be mainly applicable to cases depending upon chancery principles; and yet the case can not be re- examined on its merits, as formerly on a bill of review, since the evidence exists in parol. Hence, even in these cases, except for mere clerical errors, the petition will need to be as full and specific as it would have to be in ther case of an action at law. Sec. 639. The applicant may obtain an order to 'stay proceedings on the judgment, if the court is satisfied that there is reasonable grounds for believing that the party is entitled to have the judgment or order vacated or modified. In case of a judgment rendered before the action stood for trial, the court may make the order at once, although no valid defense is shown to the action; the defendant, in such case, is entitled, as of right, to the same delay he would have obtained, if the action had been tried and the judgment rendered at the proper time. III. Within 'What Time. The proceedings to modify or vacate a judgment or order, under subdi- visions 4, 5, and 7, section 534, must be commenced within two years 45 Y02 EEROE IN CIVIL CASES, [CHAP To the same Court — Forms. after the judgment was rendered or order made; infants, married women, and persons of unsound mind, witliin two years after such disability is removed. This provision leaves the rule to apply, that the disability must exist at the time the judgment was rendered, or the order was made; and no disability intervening after that time will extend the limitatiou beyond the two years. Proceedings under subdivisions 3 and 6, must be commenced within three years, and under subdivision 9, within one year, after the defendant has notice of the judgment. In regard to these last oases, there is no saving of the rights of any one; the application must be made within the time limited, and not after. Sec. 542. These provisions apply to the Supreme Court and Probate Court, so far as they are applicable, as well as to the Common Pleas and District Courts. FORMS 1. MOTION TO VAOATB. County, ss. ) Court of Common Pleas. J A B, plaintiff, ) . V. > Motion to vacate judgment. C D, defendant.) The said C D, defendant, now comes, and moves the court here *o vacate the judgment heretofore entered in this action at the term of this court, A. D. 18 , for the following reasons, to wit: the said judg- ment was rendered on the day of , A. D. 1 ^ , (or on the first day of said term,) when the same had been set for trial on the trial docket for the day of aforesaid, (or on the sixth day of said term.) A B, By , his Attorney. Where the reason is a mistake or irregularity of the clerk, the motion should specify what the mistake or omission is. What mistakes or omis- sions can be corrected is disoussed under the head of amendments Thw XXn.J EEE0E9 m CIVIL OASES. 703 To the same Court — Fonns. provision is merely the mode in which the amendment must be made. If, however, the clerk were to render a judgment the reverse of what was intended, possibly it might be corrected in this manner, by a vacation of the judgment and a retrial of the case. The court could not cejitainly order the record to be changed; this can be done only when the record, on its face, demonstrates what the mistake is, and what the true entry should have been. And yet there can be no objection to vacating the judgment, when it is clearly proved to have been different from what the court intended it to have been; but this can not be done by an amendment, it must be reached by vacating the judgment, and granting a new trial. 8. NOTICE OF MOTION TO VACATE JUDGMENTV. The said A B, plaintiff, is hereby notified that the said C D, defendant, will apply to the said Court of Common Pleas, on the first day of its next term, (or on the day of next,) or as soon thereafter as he can be heard, for a vacation of the judgment heretofore entered in this action in favor of the said A B, at the term of said court (^or on the day of A. D. 18 ,) because the said judgment was rendered on the day of , A. D. 18 , (or on the first day of said term,) when the same had been set for trial on the trial docket for the day of aforesaid, (or on the sixth day of said term,) and the said C D will support his said motion by the necessary affidavits. Dated this day of ,18. C D, By E F, his Attorney. 3. PETITION FOE VACATION OF JUDGMENT. The said A B, plaintiff, complains of the said C D, defendant, for that heretofore the said C D had commenced an action in the said Court of Common Pleas against the said A B, to recover the sum of $ , as was claimed in said petition on (here slate briefly the original cause of action as set forth in the said petition,) and that the said A B afterward filed his answer to the petition of the said C D, and set up therein as a defense to the said action that: (Iiere state the defense as set up in the answer;) and the said A B further saith that the said action would have been set for trial in due course at the term of said court; and that he, the said A B, could have easily prepared himself for the trial at said term, and proved thi truth of his said defense, so pleaded in his said answer; 704 EEEOES IN CIVIL CASES. [chap. To the same Court — Forma. but the said A B further saith that, on or about the day of next preceding the said term of said court, the said C D applied to the said A B for an agreement to continue said action at the next term of said court, without incurring any expense in preparing for the trial tliereof; and the said A B then agreed with the said C D that said action might be continued as aforesaid, and thereupon he failed to make any due preparation therefor, and notified his attorney E F, who did not reside in the said coun ty of , but in the county of , of the said arrangement; and the said A B further saith that, confiding in the said understanding with the said C D, neither he nor his said attorney attended at the said term of said court. And the said A B further saith that the said C D fraudulently, and without the knowledge of the said A B, and in violation of the said agree- ment, did, at the said term of the said court, proceed to the tiial of the said action, and in the absence of the said A B, did obtain a judof- ment against the said A B, and in favor of the said C D, in the said action for the sum of $ , and which judgment the said A B saith is un- just and fraudulent as against the said A B. The said A B, therefore, prays that the said judgment may be vacated, and that said action be again set down for a new trial in this court. AB, By , his Attorney. The statement of the petition, as to the grounds of the application, must always correspond with the facts. Tha facts constituting the fraud,'if this is the ground of the accident, casualty, or misfortune, which prevented the party from prosecuting or defending the action, must be set forth. 4. PETITION TO VACATE JUDGMENT ENTERED ON A POWER OP ATTOENEr. The said A B, plaintiff, complains of the said C D, defendant, for that the said A B, on or about the day of , A. D. 1 8 , gave the said C D a power of attorney, of that date, authorizing one , or any other attorney of any court of record in this State, to appear for him, and waiving the issue and service of process, to confess judgment against the said A B for the amount of a note written above said power, wherein the said A B promised to pay to the said C D the sum of $ , in months after the date thereof; and the said plaintiff further saith that he paid to the said C D, at various times, on said note the sum of $ , which sums were not indorsed on sajd note and power ef iittoi- ney; and the said plaintiff further saith that the said C D fraudulently. XIII.j EREOE IN CTYJL OASES. 705 To the same Court — Forms. and to the injury of the said A B, and without his knowledge, caused a judgment to be entered on said power of attorney in this court at its term, A. D. 18 , against the said A B, for the sum of $ , the wliole amount of said note and interest, thereby defrauding the said A B out of all of his said payments. The said A B, therefore, prays that the said judgment may be vacated and that said action be set down for trial in this court according to law. A B, By , his Attorney. Where the petition is filed under subdivision five and eight, the petition should state the pending of the suit, and the rendition of the judgment, and then aver that the petitioner was an infant under age at the time; that he came of age at such a time; and then proceed to point out the error com- plained of in the proceedings; if it is filed under subdivision eight, where it appears from the record or the facts which show the error, where it is filed under subdivision five. The forms given are mere hints to the pleader, and must be used as such, since no practice has grown up under this sec- tion, and no decisions have been made in reference to their meaning or application. 6. ANSWBK. The answer will, of course, in its formal parts, be like any other. It must admit or deny the facts. A demurrer will lie if the facts stated do not, under the code, constitute good ground for vacating the judgment. If, however, the cause stated is, in law, sufKcient to call forth the action of the court, then the case can only be met by a denial of the facts stated, or a plea of the limitation as to time within which the motion can be filed or the action commenced, or a release or compromise of the error, mistake, fraud, or other cause of vacating the judgment. All these defenses will, of course, be made in the ordinary form used in other actions. No an- swer, of course, is needed in the case of a motion; it is only required in tho case of a petition filed. 6. JUDGMENT ON PETITION. And now- came the said parties, by their attorneys, and thereupon this cause came on to be heard upon the petition of the said A B, the answer of the said C D, and-testiraony, and was argued by counsel; on considera- tion whereof the court do find that, (here stale a fivding of the otounds 706 EKEOE IX CIVIL OASES. [cHAP. To the same Court — Forms. charged in the petition so far as proved;) it is, therefore, considered that the said judgment heretofore rendered in the said action at the term of this court, A. D. 18 , be, and the same is, hereby vacated and set aside with costs; and that the same be again set down for trial in this court according to law; and that the said defendant have leave to an- swer the same in days, and the said plaintiff do reply to the said answer in days thereafter; and thereupon this cause is continued. A judgment against the application will, of course, find the facts not proved as stated in the petition, and render judgment for costs against the applicant. There is nothing said as to costs, and they must, of course, be awarded as in other actions. Where a judgment is vaeated for the fraud of the plaintiff, he ought to be made to pay the costs of the former trial, as well as of those on the petition. This would be equitable. 7. JtTDGMBNT ON MOTION. And Tiow came the said parties, by their attorneys, and thereupon the motion of the said C D to vacate the judgment entered in this action at the term of this court, A. D. 18 , came on to be heard, and was argued by counsel; on consideration whereof the court here find that, (here state the ffround alleged and proved;) it is, therefore, ordered that the said judgment, entered at the term, A. D. 18 , of this court, in this action be, and the same is, hereby set aside and vacated, with costs; and it is further ordered that this action be again set down for trial in this court according to law; all which is done accordingly. S. JUDGMENT TO OOEBBOT A MISTAKE. BTO. And now came the said parties, by their attorneys, and thereupon the motion of the said D to correct the judgment heretofore rendered in this case at the term A. D. 18 , of this court, came on to be heard, and was argued by counsel; on consideration whereof, the court here find that the clerk, in entering up said judgment, by mistake, (here Jind the specific error complained of clearly and distinctly;) it is, therefore, ordered that the entry of the said judgment be corrected by, (here state what is to he added or omitted by way of making the record correct.) In these cases, the original entry is to be corrected by the clerk in conformity to the order of the covfrt. In these cases, the judgment is not XLn.J EKEOE IN CIVIL CASES. 707 To the same Court — Forms. vacated; it is only corrected, and that correction must be made in the journal entry, and the record, if that has been made up. Vide Tarbet v. Coffin, 6 Ohio Rep. 274; Hamner ii. McConnell, 2 Ohio Rep. 31; 1 do. 375. If the party defendant does not appear, then the plaintiff comes, and the court find that due notice has been given. See entry below. 9. INJUNOTION OEDBB. On motion of the said A B, and it appearing to the court here probable that the said A B is entitled to have said judgment vacated; it is, there- fore, ordered that the said C D be, and he is, hereby enjoined and re- strained from proceeding to issue any process upon the said judgment, or in any other way seeking to enforce the collection or execution thereof. Until the further order of this court. An application to a judge will be in the ordinary form. 10. JUDGMENT ON MOTION WHEN DEFENDANT DOES NOT APPEAR ON NOTIOB. And now came the said C D, by his attorney, and it appearing to the court here that the said A B has had due notice of the pendency and time of the hearing of this motion, thereupon the same came on to be heard, and was argued by counsel; on consideration whereof, etc. 11. ON PETITION. And now came the said A B, by his attorney, and the said C D still failing to demur or answer to said petition, this action came on to be heard upon the petition of the said A B, and testimony, and was argued by counsel; on consideration whereof, the court here do find, etc. CHAPTER XLIIl. MISCELLANEOUS MATTERS. I. Offee to Compeomise. Sec. 493. The defendant, in an action for the recoyery of money only ' may, at any time before tria], serve upon the plaintiflF, or his attorney, an offer in writing to allow judgment to be taken against him for the sum specified therein. If the plaintiff accept the oflFer, and give notice thereof to the defendant, or his attorney, within five days after the oflfer was served, the offer, and an affidavit that the notice of acceptance was delivered in the time limited, may be filed by the plaintiff, or the defendant may file the acceptance with a copy of the offer, verified by afiidavit; and in either case, the offer and acceptance shall be noted in the journal, and judgment shall be rendered accordingly. If the notice of acceptance be not given in the period limited, the offer shall be deemed withdrawn, and shall not be given in evidence, or mentioned on the trial. If the plaintiff fails to obtain judg- ment for more than was offered by the defendant, he shall pay the defend- ant's costs from the time of the offer. Sec!. 494. The making of an offer pursuant to the provisions contained in the foregoing section shall not be a cause for the continuance of an action, or the postponement of a trial. This is another of those provisions copied from the New York code, and is based upon the peculiar practice of that State. Bearing in mind that the papers in a cause are kept in the hands of the attorneys until filed for judgment or trial, and that on a default, or on a cognovit, or by consent, judgments are entered up in the clerk's office, when no court is actually in session, we may understand the scope of this section, and the reason for its details. There being no case in coui-t, offers can not be filed with the clerk, but must be served on the opposite part)',' as judgment can bo perfected in vacation, it is important to have the offer made and accepted without any regard to the sittings of the court; and, as the papers are not in court, though each party has a copy of all the pleadings, either can file them, and (708) CHAP. XXm.J MISCELI.ANE0U8 MATTEE9. 709 Compvomise. upon proof byaflSdavit of the offer and acceptance filed with the clerk, the judgment is entered up at once by the clerk, and execution may issue. As the clerk enters judgments ■without the presence of the court, there must be some fixed rule and some agreed evidence in writing, by the presence of which in his office he is required to enter up the judgment. Hence the affidavit to prove the service of the offer and its acceptance, is required to be filed as proof of the fact which justifies the action of the clerk — the entry of the judgment. But all this machinery has no adaptation to our simple and plain prac- tice, where all the transactions in an action take place in the clerk's office or court, and at fixed times, so that each party is bound to take notice of every step taken during the pendency of a cause. .In this way we get rid of the interminable series of notices so constantly in use under the practice of the New Yoik courts, and cheapen litigation more than one-half. In- deed, it is believed that litigation in Ohio is not one-fourth as expensive as it is in New York. This offer to confess judgment is of little or no use in Ohio. Where the offer is made to the attorney, the five days allowed are scarce ever suffi- cient for the attorney to consult his client; and we have known it to be resorted to with the expectation that the client could not be consulted in time to give notice of the acceptance. If the offer is on file before the time to issue for witnesses, the other party will then see it, and if he accepts, he has only to leave his acceptance in writing, and waive all preparation for trial. But it is as it is, and defendants are entitled to take advantage of it. The New York courts have had this section repeatedly before them, and have decided many questions arising under it. Tlie offer under the code is analogous to the cognovit under the former practice. Johnson v. Sagar, 10 Pr. E«p. 5o3; Emery v. Emery, 9 Pr. Rep. 130. And when accepted, stands in the place of the verdict of a jury, or the decision of the court, on the trial of the issue. /The ofier must be made in time, so that the five days for acceptance shall run out before the case. is called on tor trial; if the case is called for trial before the time for acceptance lias expired, the offer becomes inoperative and of no effect. Walker v. John- son, 8 Pr. Rep. 240. The plaintifi' has, in all cases of an ofl'er, the five days to elect whether he will accept or not. Even if, before the expiration of the five days, he declines to accept the offer, yet if he changes his mind within the time, and does accept within the five days, the defendant is bound by it. Pomeroy v. Harlin, 7 Pr. Rep. 161; Walker v. Johnson, 8 Pr. Rep. 240. Where an oflFer was made to confess for a certain sum, which was re- fused, and thereupon the defendant filed a set-ofiF, whereby the plaintiff's 710 MISCELLANEOUS MATTEES. [CHAP. Submitting a Controversy, recovery was reduced below the offer, still the plaintiff was held to be enti- tled to costs, since his recovery was reduced by the set-off. Buggies v. Fagg, 7 Pr.'Rep. 324. But where the offer was made after an answer was filed including a set-off, and on the trial the plaintiff recovered a sum less than the sum offered, with interest up to the time of trial, it was held that the plaintiff was not entitled to costs. In the first case, the set-off, not being placed on the record, would not have been extinguished by the offer and judgment; in the second, as it was placed on the record at the time of the offer, it would have been extinguished by the offer and judg- ment. Schneider v. Jacobi, 1 Duer Eep. 694; Kitts v. Seeber, 10 Pr. Rep. 270. One partner has no general authority to make an offer of judgment against the firm, in an action against the firm; and if one partner makes such an offer and it is accepted, and judgment entered, the judgment will be irregular as to all the defendants but the one making the offer. Everson a. Gehrman, 1 Abbott Rep. 167; 10 Pr. Rep. 301; Binney v. Le Gal, 1 Abbott Rep. 283. In an action against two, and service on one, an offer by that one will render the plaintiff liable for costs, unless he recovers more than the sum oflered. La Farge v. Chilson, 1 Code Eep. N. S. 159. In this latter case, the one making the offer is the only person in court, the only one against whom a judgment can be rendered. Hence the action is against him alone, and his offer relates only to himself. II. Sdbmitting a Conteoveest. Sec. 496. Parties to a question which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction, if an action had been brought. But it must appear by affidavit that the controversy is real, and the pro- ceedings in good faith, to determine the rights of the parties. The court shall thereupon hear and determine the case, and render judgment as if an action were pending. Sko. 496. The case, the submission, and the judgment shall constitute the record. Sec. 497. The judgment shall be with costs, may be enforced,. and shall be subject to reversal in the same manner as if it had been rendered in an action, unless otherwise provided in the submission. JSXm.J MISCELLANEOUS MATTEE3. 711 Offer to Confess Judgment. Proceedings by Sureties. ni. Offer to Confess Judgment. Sec. 498. After an action for the recovery of money is brought, the defendant may offer in court to confess judgment for part of the amount claimed, or part of the causes involved in the action. Whereupon, if the plaintift', being present, refuse to accept such confession of judgment' in full of his demands against the defendant in the action, or, having had such notice that the oflTer would be made, of its amount, and of the time of making it, as the court shall deem reasonable, fail to attend, and, on the trial, do not recover more than was so offered to be confessed, such plaintifiF •shall pay all the costs of the defendant incurred after the ofier. The ofifer ■shall not be deemed' to be an admission of the cause of action, or amount tng to the court, and record its proceedings. Sec. 689. The provision of Article riii, of Title ix, prescribing the duties of clerk of the Court of Common Pleas, shall, as far as they are ap- plicable, apply to the clerks of other courts of record. 714 MI8CELLANEOD8 MATTEES. [OHAP Duties of Sheriifs. Miscellaneous Provisions. Sko. 690. The clerk of each of the courts shall exercise the powers and perfoi-m the duties conferred and imposed upon him by other provi-' sions of this code, by other statutes and by the common law. In the per formance of his duties, he shall be under the direction of his court. Vm. Duties of Shekiffs. Sec. 691. The sheriff shall indorse upon every summons, order of arrest, or for the delivery of property, or of attachment or injunction, the day and hour it was received by him. Sec. 692. He shall execute every summons, order, or other process, and return the same as required by law; and if he fail to do so, unless he make it appear to the satisfaction of the court, that be was prevented by inevitable accident, ■ from so doing, he shall be amerced by the court in a sum not exceeding one thousand dollars, and shall be liable to the action of any person aggrieved by such failure. Sec. 693. If the judge of a court having but one judge, or if a quorum of the judges of any court having two or more, fail to attend at the time and place appointed for holding their respective courts, the sheriff shall have power to adjourn the court from day to day until the single judge attends, or a quorum is convened; but, if the single judge be not present in his court, or the quorum of judges in their court, within two days after the first day of the term, then such court shall stand adjourned for the term. Sec. 694. The sheriff shall exercise the powers and perform the duties conferred and imposed upon him by other provisions of this code, by other statutes, and by the common law. IX. MlBOELLANEOUS PeOTISION|. Sec. 695. Any duty enjoined by this code upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy. Sec. 696. Whenever an oath is required by this code, the affirmatioi of a person conscientiously scrupulous of taking an oath, shall have th^ same effect. Sec. 697. The time within which an act is to be done, as herein pro- vided, shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded ; vide, ante 390. XXni.] MISOEIiANEOUS MATTEES. 715 Provisions respecting Existing Actions. Provisions as to the Operation of the Code. Sec. 598. Section three hundred and seventy-six shall not be construed to impair the right of a party to a jury, if he appear at the trial by himself, or attorney, and demand the same. Sec. 599. The ministerial officer, whose duty it is to take security in any undertaking provided for by this code, shall have the right to require the person offered as surety, to make an affidavit of his qualifications, •which affidavit may be made before such officer. The taking of such an affidavit shall not ezempt the officer from any liability, to vrhich he might otherwise be subject, from taking insufficient security. Sec. 600. The surety in every undertaking provided for by this code, must be a resident of this State, and worth double the sum to be secured, beyond the amount of his debts, and have property liable to execution in this State, equal to the sum to be secured. Where there are two or more sureties in the same undertaking, they must, in the aggregate, have the qualifications prescribed in this section. Sbc. 601. The judges of the Supreme Court shall, during the month of the first January after this code shall take effect, and every two years thereafter, meet at the capital of the State and revise their general rules, and make such amendrpents thereto as may be necessary to carry into effect the provisions of this code; and they shall make such further rules consist- ent therewith, as they may deem proper. The rules so made shall apply to the Supreme Court, the District Courts, and the Courts of Common Pleas. X. PROVISIONS Besfecting Ezistikq Aoiions. . Sec. 692. The provisions of this code do not apply to proceedings in actions, or suits pending when it takes effect. They shall be conducted to final judgment, or decree, in all respects, as if it had not been adopted; but the provisions of this code shall apply after a judgment, order, or decree heretofore, or hereafter rendered, to the proceedings to enforce, vacato, modify, or reverse it, except as provided in section five hundred and thirty-three. XI. Pbovisions as to the Opkbation of the Code. Sec. 603. Rights of civil action given, or secured by existing laws, shall be prosecuted in the manner provided by this code, except as 716 MISCELLAJSTEOUS MATTERS. [cHAP. Costs — Security for Costs. provided in section six hundred and four. •!£ a case ever arise, in which an action for the enforcement or protection of a right, or the redress or pre- vention of a wrong, can not be had under this code, the practice heretofore in use, may be adopted, so far as may be necessary to prevent a failure of justice. Sec. 604. Until the Legislature shall otherwise provide, this code shall not affect proceedings on habeas corpus, quo warranto, or to assess damages for private property taken for public uses; nor pi'oceedings under the statutes for the settlement of estates of deceased persons; nor proceedings under statutes relating to dower, divorce, or alimony; or to establish, or set aside a will; nor proceedings under statutes relating to apprentices, ar- bitration, bastardy, insolvent debtors; nor any special statutory remedy not heretofore obtained by action; but such proceedings may be prosecuted under the code, whenever it is applicable. Sec. 606. Where, by statute, a civil action, legal or equitable, is given, and the mode of proceeding therein is prescribed, this code shall not affect the proceedings under such statute, until the Legislature shall otherwise provide; but the parties may, if they see fit, proceed under this act; and in all such cases, as far a.% it may be consistent with the statute giving such action, and practicable under this code, the proceedings shall be conducted in conformity thereto. Where the statute designates by name or other- wise, the kind of action, but does not prescribe the mode of proceedings therein, such action shall be commenced and prosecuted in conformity to this code; where the statute gives an action, but does not designate the kind of action, or prescribe the mode of proceeding therein, such action shall be held to be the civil action of this code, and proceeded in accordingly. XII. Costs. Security for Coits. All plaintiffs, not residents of the county where action is brought, must obtain some person of the county as security for costs. This may be done by writing on the summons or complaint, "I agree to be security for costs, N. S." The security must be to the satisfaction of the clerk; this ap- proval will be presumed, when the name is indorsed. No formal indorse- ment in writing can be necessary; the cleik may refuse to issue until he is satisfied; but the issue of the summons is an approval of the security given. XLin.] MISCELLANEOUS MATTEE8. 717 Security — Payment of Costs. If security is not given, the case may be dismissed on notice and motion, if not then given. The court can not dismiss; it can only be done on notice to the plaintiff, and on motion of the defendant. It wiU be too late to make such a motion after the case is called on for trial, or on the day the case is set for trial. So, if the plaintiflf removes from the county after suit brought, the defendant can compel him, on notice and motion, to give security for the costs of the action. Where the surety removes from the State, or is not sufficient, the court, on notice to the plaintiff and motion of the defendant, is required to order further security to be given. Proceedings against Security. After judgment, the defendant, or other person entitled to the costs, after having given notice to the security, .may, on motion, obtain a judg- ment against the security, or his personal representatives, for the amount of costs adjudged against the plaintiff. The securit)"- is not bound for the plaintiff's costs; he is only bound for the costs, for which the defendant recovers judgment. Before judgment can be taken against an adminis- trator, the bill of costs must be presented to, and disallowed by the administrator. Who to pay Costs. Informers, to whom any part of a penalty is given, must pay costs to the defendant, if they fail in the action, unless he is an officer whose duty it is to sue. Where defendants disclaim having any title or interest in land, or other property, the subject of action, they shall recover costs, unless the court, for special reasons, order otherwise. , Where several actions are brought on a bill of exchange, promissory note, etc., against several parties, who might have been joined, the plaintiff should recover but one bill of costs, if all the other parties were openly in the county when the first action was brought. The plaintiff can recover costs in his first action and in 60 other. • > When Plaintiff entitled to Costs. The plaintiff is entitled, of course, to costs on a judgment in his favor in the following cases : 46 718 MTSCELLANEOUS MATTEE8. [OHAP. Who is entitled to Costs. 1. Id. an acihon for the recovery of money only. These words must here be construed as the ■words "action for the recovery of money" are con- strued in section 263. The word only is there omitted, while in section 57, the words "action for the recovery of money only" are used, to embrace the same thing. This word only does not seem to change the meaning fi-om the words, action for the recovery of money. Cases, then, in which an indorsement has to be made on the writ under section 57, and a jury is to be called to try the action, are the cases in which the plaintiflf is entitled to costs, if it is not otherwise specially provided for. In the following actions, if the verdict is less than five dollars, the plain- tiff can not recover costs, to wit : libel, slander, malicious prosecution, assault, assault andbattery, false imprisonment, criminal conversation or seduc- tion, actions for nuisance, or against justices of the peace for misconduct in office. 2. In sai\o\iS for the recovery of specific real property. This, of course, is confined to real actions at law, since it is the same language as is used in section 263, in reference to trials. 3. In &a\Aon& for the recovery of specific personal property. This is, of course, limited to the actions of that character provided for in the chapter on replevin of property. Sec. 174. When Defendant is entitled to Costs. The defendant is entitled to costs on a judgment in his favor, in all actions where the plaintiff can recover costs, of course, on a judgment in his favor. The defendant is entitled to costs in actions of slander, libel, etc., if he obtains a judgment in his favor; and where the judgment is for less than five dollars, the defendant is left to pay his own costs, while the plain- tiff pays his. In such a case there is no judgment for costs. When Costs are discretionary with the Court. In all other cases than actions for the recovery of money, or specific real or personal property, the court awards'costs according to its discretion. In this class are embraced all actions heretofore classed as suits in equitj'. Hence, in this large class of litigation, the costs remain in the discretion of the court; a discretion to be exercised as heretofore in chancery; thai costs follow the decree, unless there are special circumstances, which m equity show that a different order ought to be made as to costs. XXra.] MISCELLAITEOUS MATTEKS. 719 Forms. The costs on motions, continuances, amendments, and the like, shall be taxed and paid as the court may, in its discretion, direct. Sheriff's Return and Fees on Writs from other Counties. The Sheriff shall return writs from other counties by mail, and is per- mitted to charge no more fees for service than he would have had the right to charge if the writ had been issued in his own county. FORMS. 1. MOTION FOR ADDITIONAL 8B0UKITT. A B, plaintiff, 1 County, ss. C D, defendant. ) Court of Common Pleas. And now comes the said CD, byE F, his attorney, and moves the court here for an order requiring the said plaintiff to give additional security far costs for the following reasons : 1 . That the said L M, the security in the action originally, has removed from the State. 2. That the said L M, the original security for costs in this action, is not sufficient. C D. By E F, his Attorney. 8. MOTION FOE SBOUKITT. And now comes the said C D, by E F, his attorney, and moves the court here for an order on the said plaintiff, to give security for costs, for the following reasons, to wit : 1. That the said plaintiff was a non-resident of this county at the com- mencement of this action. 2. That the said plaintiff has removed from the said county of since the commencement of this action. C D, By E F, his Attorney. 720 MISCELI^ANEOnS MATTERS. [cHAP, Forma. 3. NOTICE OF MOTION. County, ss. ) Court of Common Pleas.J A B, plaintiff, ) V. > Petition. D, defendant.) The said A B is hereby notified that, on the , day of , A. D. 1 8 , or as soon thereafter as he can be heard, the said C D will move the said court for (additional) security for costs, on the following ground, to- wit, (here state the ground of motion.) D, By , his Attorney. The reasons given i'- the above form Embrace all that can exist; of course only that one will be copied which meets the reasons presented in the case. The word "additional" will not be inserted where no security for costs has before that time been given. 4. OEDEB OP COTIKT. And now came the said parties, by their attorneys, and thereupon the motion of the said defendant for (additional) security for costs, came on to be heard, and was argued by counsel; on consideration whereof it is ordered that the said plaintiff give (additional) security for costs in this action, in days, or in default thereof this action stand dismissed. 8. MOTION FOE JUDSMBNT AGAINST SBOUEITT FOB COSTS. I County, ss. \ Court of Common Pleas. J U U, riamtin, i Motion for judgment against security for costs, in the _, T, .J'", J ^ C action of A B i). C D. E F, Defendant. ) And now comes the said C D, by S N, his attorney, and moves the court here for judgment against the said E F, for the sum of dollars and cents, the amount of costs recovered by the said C D against one A B, at the term of this court, in an action wherein the said A B was defendant, and the said E F was security for the said A B, for the costs thereof, to the said C D, the defendant in said action. CD, By S N, his Attorney. VTTTT ] MISOELLANEO0S MATTERS. 721 Forms. 6. NOTICE OP THE MOTION. To E F. You are hereby notified that I shall apply to the Court of Common Pleas, within and for the county of , on the first day of its next term, {or on the day of , , A. D. 18 ,) or as soon thereafter as I can be heard, for a judgment against you, for the sum of dollars and cents, the costs recovered bj' me against A B, at the term of said court, and in which action the said A B was plaintiff, and I was defendant, and you were security for costs for the said A B. Given under my hand this day of , A. D. 18 . C D, By S N, his Attorney. JlTDaMBNT WHBEE THEKB IS NO APPBAEANCB. ' 3.in 1 , 1 JjJjjjJqjj fgp judgment against security for costs, in case E F, Defendant] '^' ^ ^ "• ^ »• And now came the said C D, by S N, his attorney, and thereupon the motion of the said C D against the said E F, came on to be heard, on said motion, the record, and testimony, and was argued by counsel; on consid- eration whereof, and it appearing to the court that the said C D was security for costs for the said A B, in the said action of the said A B against the said C D, and that in said action the said C D did, at the term of this court, A. D. 18 , recover judgment against the said A B, for the sum of * dollars and cents, costs of said action; and that the said E F has been duly notified of this motion: it is considered that the said C D recover against the said E F, the said sum of dollars and cents, his costs, so as aforesaid adjudged to him against the said A B; and also his costs in and about this motion expended, taxed to$ 8. JtrDSMENT AGAINST SBCUKITT FOE COSTS, ON HIS APPEAKANOB. C D, Flaintifi", | Motion for judgment against security for costs, in the ^ „ J- , f action of A B t;. G D. E F, Defendant. ) And now came the said parties, by their attorneys, and thereupon the motion of the said C D, for judgment against the said E F, as security for costs, in the action of the said A B against the said C D, came on to be' 722 EECOED BOOKS. foHAP. Appearance Docket. beard upon the motion, record, and testimony, and was argued by counsel; on consideration whereof, and it appearing to the court that the said E F was security for costs in said action, and that the said C D did recover foi costs in said action against the said A B, at the term, A. D. 18 , of this court, the sum of dollars and cents; it is therefore considered that the said C D do recover against the said E F, the said sum of dollars and cents, his costs, so as aforesaid adjudged to him against the said A B; and also his costs in and about this motion expended, taxed to $ CHAPTER XLIV. RECORD BOOKS. Sec. 304. The clerk of the court must keep five books: 1. The appearance docket. 2. The' trial docket. 3. The journal. 4. The record. 6. The execution docket. I. The Affsabance Docket. In this book must be entered in their order of commencement, every action brought into the court; and every step in the action must be there noted. The following should be the form: XLIV.J • EECOED BOOKS. 723 Trial Docket — Journal. A B, plain tiflf, V. C D, defendant. Petition filed and summons issued, July 21, 1856. Affidavit filed for attachment, and attachment issued, July 21, 1866. Summons returned, August , with the following return indorsed thereon, [here copy the return.) Attachment returned with summons, with the following return indorsed thereon, {here copy it.) Answer of the said C D filed, August , 1856. Demurrer of the said A B filed, September , 1855. Demurrer sustained, {or overruled.) October term, A. D. 1865. Defend- ant had leave to amend instanter. Amended answer filed, October , 1865. Trial by jury, October term, 1855. Verdict for plaintiflF, for $ . Motion for new trial filed by defendant, October , 1 866. Motion overruled, October term, 1865. Judgment on verdict for $ , dated October , A..D. 1866. Notice of appeal by defendant. Ap- peal bond filed, November , 1865, in penalty of $ , with L M .and N 0, as sureties. Papers and journal entries filed in District Court, November , 1865. If not appealed, the entry might close as follows: "Execution issued, November , 1855, and transferred to Execution Docket, i vol. 343." U TsiAL Docket. For this, see Time of Trial. m. The Jouenal. This book must contain the daily orders and judgments of the court made in each case, in full — as full as they are needed to be when carried into the complete record, so that mere copies of them will be all that is reqnirfsd, in connection with the original papers, to make up the complete record of a cause. The manner of keeping the journal is pointed out in section 387, and the preceding ones. The code does not seem to require the journal of the court to be alithenticated by the signature of the judge or any one else. This was not formerly the case; the law required the journal to be read in open court, and sigwtd by the judge. The effect of this practice was to make tfie Ohio records the most complete, neat, and lawyer-like, of the records of any courts in the United States. Was ■^24 EECOED BOOKS. [CHAP. Eecord — Form of Complete Recoi'd. it the design of these learned codifiers, in copying this New York code, to introduce the looseness of the New York practice, where the clerk enters nearly every thing by himself, and its correctness is left to a con- test of the clerk and the parties, with not very seldom an appeal to the court. We believe it is still the practice of the courts to follow the wisdom of the repealed law, instead of taking advantage of the looseness and indo- lence which this section might permit. It is to be hoped that our records will continue to be made up with the neatness and completeness which has heretofore characterized them. IV. The Reooed. This book is designed to contain the complete record of each case, after it shall have been finally disposed of. This record is made up by copying the petition, summons, orders of arrest or attachment, the returns thereon, the answers, demurrers, replies, the verdicts of a jury, the findings of the court, all motions made in a case, and the decisions thereon, and the final judgment, all in the order in which the events occurred. The original papers and the journal entries are the only authority for the clerk in making up this record. The affidavits filed in a case, constitute no part of the record; nor da copies of notes, bills, accounts, or contracts, required to be filed with a petition or answer, under section 117, form a part of this record. The object of that section is simply to give a copy to the other party, not to make it a part of the record in the case. But where the petition is filed under section 122, there the note, bill, contract, or account, does constitute a part of the record, and must be copied into it, however long it may be. We believe that many clerks, to swell the fees of recording, or through ignorance, are in the habit of copying into the complete record, all these papers, including affidavits and even depositions. Thi» is entirely wrong, and parties should see it corrected, as the clerks have right to charge fees only for what is propefly inserted in the complete records. POKM OF COMPLETE EEOOED. Pleas before the Hon. W V P, one of the judges of the Court of Com- mon Pleas, within and for the county of , and State of Ohio, at the term thereof, begun and held at the court house in , XLIV.J EECOKD BOOKS. 725 The Execution Docket. in said county, on the day of , A. D. 18 , [this date of court and term should he when final judgment was rendered. ) Be it remembered that heretofore, to-wit, on the day of , A. D. 18 , one A B filed in the clerk's office of said court, his certain petition against one C D, and whiph petition is in the words and figures following, to-wit, [here copy the petition.) And thereupon, on the precipe of the said A B, the following summons was issued, to-wit, (^here copy summons;) which said summons was after- ward, on the day of , A. D. 18 , duly returned with the following return indorsed thereon, to-wit, {here copy the return;) and thereupon, afterward, to-wit, on the day of , A. D. 18 , came the said C D, and filed his answer to the said petition of the said A B in the clerk's office, and which answer is in the words and figures following, to-wit, (Jiere copy the answer;) and afterward, to-wit, on the day of ', A. D. 18 , came the said A B, and filed his demurrer to the answer of the said defendant, and which demurrer is in the words and figures following, to-wit, {here copy it;) and thereupon afterward, to-wit, at the term of said court, A. D. 18« , came the said parties, [here copy the entry of judgment on the demurrer which is assumed here to be over- ruled;) and afterward, to-wit, at the term, A. D. 18 , of said court first aforesaid, came the said parties, by their attorneys, and thereupon came a jury, to-wit, [as in the journal entry. ) If the case is one tc be tried by the court, the journal entry will show what should be the one here. The journal entries, after the pleadings, make up the record, with any necessary connecting word or sentence. V. The Execution Docket. On this docket is to be placed every case in which an execution shall have been issued, in the order in which they shall be issued. The entry sjiould state the name of the case; the date of the judgment; the amount of it; the date and kind of execution; the return of the sheriflf thereon; the issue of all subsequent ones, and a note of the confirmation of all sales. The sheriff's returns should be copied in full. Such a book will, in a brief space, show all that has been done since the rendition of the judgment, as the appearance docket exhibits all that was done up to that time. It would be well to refer, in the entry of the case, to the page in the appearance docket where the case may be found. 726 PEOCEEDINGS UPON MAITDAMIIS. [CHAP. Forms — Writ — Penalty. Whenever an order is made for the payment of costs, and execution directed to be issued to collect them, this should be entered as a judgment or order, stating order for costs for $ . with date of its' entry. A B, plaintiflF, ) V. ' y C D, defendant.) Judgment, October ,18 , for plaintiff, for $ Execution for property issued November ,18 ; returned by sheriff, ,18 , with the following return indorsed thereon, to-wit, (here copy it.) Alias execution for property, (date of it, ) returned on , with the following return thereon, (here copy it.) Said sale confirmed March term, A. D. 18 , and deed ordered CHAPTER XLV. PROCEEDINGS UPON MANDAMUS. Sec. 569. The writ of mandamus inay be issued to any mtenor tri- bunal, corporation, board, or person, to compel the performance of an acrt which the law specially enjoins as a duty resulting from an office, trust, or siation. But though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it can not control judicial discretion. Sbc. 670. This writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. It may issue on the information of the party beneficially inte'^sted. CHAP. SXV.] PHOCEEDrBTGS UPON MANDAMUS. 727 ■Writ— Penalty. Sec. 571. The writ is either alternative or peremptory. The alterna- tive writ must state concisely the facts showing the obligation of the defendant to perform the act, and his omission to perform it, and command him that immediately, upon the receipt of the writ, or at some other specified time, he do the act required to be performed, or show cause before the court whence the writ issued, at a specified time and place, why he has not done so; and that he, then and there, return the writ, with his certificate of having done as he is commanded. The peremptory writ must be in a similar form, except that the words requiring the defendant to show cause why he has not done as commanded, must be omitted. Sec. 672. When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance. In all other cases, the alternative writ must be first issued. Sec. 673. The motion for the writ must be made upon affidavit, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice. Sec. 574. The allowance of the writ must be indorsed thereon, signed by a judge of the court granting it, and the writ must be served personally Upon the defendant. If the defendant, duly served, neglect to return the same, he shall be proceeded against as for a contempt. Sbo. 676. On ■ the return day of the alternative writ, or such further day as the court may allow, the party on whom the writ shall have been served may show cause by answer made in the same manner as an answer to a petition in a civil action. Sec. 676. If no answer be made, a peremptory mandamus must be allowed against the defendant. If an answer be made containing new mat- ter, the same shall not, in any respect, conclude the plaintiff, who may, on the trial or other proceeding, avail himself of any valid objection to its sufficiency, or may countervail it by proof, either in direct denial, or by way of avoidance. Sec. 677. No other pleadings or written allegation is allowed than the writ and answer. These are the pleadings in the case, and have the same effect, and are to be construed and may be amended in the same manner, as pleadings in a civil action; and the issues thereby joined must be tried, and the further proceedings thereon had, in the same manner as in a civil action. Sec. 678. If judgment be given for the plaintifi', he shall recover the damages which he shall have sustained, to be ascertained by the court or a jury, or by referees, In a civil action, and costs; and a peremptory manda- mus shall also be granted to him without delay. 728 PE0CBKDING8 UPON MANDAMUS. [OHAP; Ifature of the Writ, Sec. 679. A recovery of damages by virtue of this chapter, against a party who shall have made a return to a writ of mandamus, is a Jbar to any other action against the same party for the making such return. Sbo. 580. Whenever a peremptory mandamus is directed to any public officer, body or board, commanding the performance of any public duty^ specially enjoined by law, if it appear to the court, that such officer, or any member of such body or board, has, without just excuse, refused or neglected to perform the duty so enjoined, the court may impose a fine not exceeding five hundred dollars, upon every such officer or member of such body or board. Such fine, when collected, shall be paid into the treasury of the county, where the diity ought to have been performed; and the pay- ment thereof, is a bar to an action for any penalty incurred by such officer, or member of such body or board, by reason of his refusal or neglect to perform the duty so enjoined. I. Katuee of the Weit. The writ of mandamus is a proper remedy to compel inferior tribunals to perform the duties required of them by law. Strong, petitioner, 20 Pick. Rep. 484; Carpenter v. Bristol, 21 do. 268; Commonwealth v. Ham- den, 2 Pick. Rep. 414; Chase v. Blackstone Canal, 10 do. 244; Springfield V. Hamden, 4 do. 68; Johnson v. Randall, 7 Mass. Rep. 340. Where an inferior tribunal has a discretion, that discretion can not be controlled by this writ; but if it refuses to exercise its discretion, a mandamus will lie to compel it to do so. Gun v. Pulaski County, 3 Pike Rep. 427. The writ in such a case will merely command the board, or officer, etc., to proceed and exercise the discretion and powers vested in them. The People v. Su- pervisors of Westchester, 12 Barb. Rep. 446; The State v. Todd et al. 4 Ohio Rep. 351; Matter of Turner, 6 Ohio Rep. 642; 3 Binney Rep. 273; Roberts v. Holesworth, 5 Halst. Rep. 67. It will not be granted to a relator for his relief, except where he has a specific legal right and no other specific legal remedy. The State v. Jus- tices of Moore, 2 Iredell Rep. 430; People v. Brooklyn, 1 Wend. Rep. 318. The general rule, that a mandam,us vrill not lie where the party has another remedy, must be understood to refer to some specific remedy, which will place the party in the same situation in which he was before the act com- plained of. Btheridge v. Hall, 7 Porter Rep. 47; The People v. Super- visors of Green, 12 Barb. Rep. 217; 17 Ala. Rep. 527; 13 Penn. State Rep. 72. 5XV.] PEOOEEDINGS OPON MANDAMITS. 729 Causes for which Granted. The Causes for which Granted. It lies where the right is clear to compel county commissioners to issue a warrant for impanneling a new jury, for locating a new road, one jury having been unable to agree. Mendon v. Worcester, 10 Pick. Rep. 236. To compel distribution of funds of section 29, for support of religion. State V. Trustees of T. 4, R. 3, Warren Co., 2 Ohio Rep. 108; 6 do. 446. To compel a court to certify a case to the Circuit Court of the United States. State v. Hamilton, 3 Ohio Rep. 49. To compel a court to sign a bill of exceptions. People v. Judges, etc., 1 Gaines Rep. 611; State v. Todd et al. 4 Ohio Rep. 361. To compel the Court of Common Pleas to restore an attorney removed by them. People v. Justices of Delaware, 1 John. Cas. 181. To compel an inferior tribunal to proceed to trial in a case. Matter of Turner, 5 Ohio Rep. 642, 644. To compel the Speakers of the two Houses to issue a certificate of election to one who is shown by the records to have been elected to any ofiBce. State v. MoflBtt, 6 Ohio Rep. 358. To compel the cashier of a bank to allow a director to examine the discount book. I People v. Throop, 12 Wend. Rep. 183. To compel a county auditor to pay an account which he is authorized to pay, the amount being fixed by law, or to act on an account as to which he has a discretion in fixing the amount. Barnett v. Auditor of Portage, 12 Ohio Rep. 64; State V. Treasurer of Wood, 1 7 Ohio Rep. 1 84; State v. Auditor of Ham- ilton Co., 19 Ohio Rep. 116. To compel the trustees of a town corporate, or the commissioners of a county, to levy a tax to pay its debts. Gorgas V. Blackburn et al. 14 Ohio Rep. 262; 19 Ohio Rep. 416. To compel treasurer of a township to pay over school money to a teacher legally enti- tled to it. State v. White, 17 Ohio Rep. 32. To compel an inferior court to set aside the grant of a new trial in a case where it ought not to have been granted for the reason given, as for the discovery of merely accumu- lative evidence. People v. Superior Court, 10 Wend. Rep. 285. To com- pel a justice of the peace to render judgment where he, without authority, has assumed to set aside the verdict of a jury. Foreman v. Murphy, 2 Penn. Rep. 1024; Cortleyou v. Ten Eyck, 2 N. J. Rep. 46; Haighti;. Turner, 2 John. Rep. 371; Jared v. Hill, 1 Blackf. Rep. 166; 6 Ma,ss. Rep. 436; 9 do. 388; 7 do. 340. To compel a town clerk to deliver the town records to his successor. Taylor v. Henry, 2 Pick. Rep. 397; Walter?;. Belding, 24 Vermt. Rep 658; Com. v. Athearn, 3 Mass. Rep. 287; Sudbury v. Stearns, 21 Pick. Rep. ] 48. To compel a secretary of State to deliver a commission to which a party is entitled. Morbury v. Madison, 1 Cranch Rep. 137. To restore a person to ain office from which he has been illegally removed. Singleton v. 730 PKOOEEDINGS UPON MANDAMUS. [CHAP. The Writ— The lletum. Com'rs., 2 Bay. E«p. 106; Den v. Judges, 3 Hen. and M. 1 ; Street v. Gallatin Co. Com'rs., Breese Rep. 26. To compel the admittance of any one to an oflSce, service, or franchise, from which he is unlawfully excluded, and to give a certificate of an election to one legally elected, where a new election was improperly ordered. Strong, peti., 20 Pick. Rep. 484. To compel the clerk or treasurer of a religious society to deliver the records to his successor. St. Luke's Church v. Slack, 7 Cush. Rep. 226. To put a minister of any- religious sect in possession o^ the pulpit to which he is entitled, notwith- standing it is occupied by another person. People v. Steel, 2 Barb. S. 0. Rep. 397; Runkel v. Winemiller, 4 Har. and M. Hen. 429. To compel the the auditor of State to issue his warrant on the treasurer for the salary of an officer entitled to it. Page v. Hardin, 8 B. Monroe 648; Ex parte Law- rence, 21 Ohio Rep. 431. • To compel a company charted to construct a railroad to make it. Regina v. Lancashire and Yorkshire R. R. Co., 16 Eng. Law and Eq. Rep. 327. If another is in office under color of title, the remedy is by quo warranto. a. The Weit. The writ must recite all the facts entitling the relator to have the act done for which he asks. Commonwealth Bank v. Canal Com'rs., 10 Wend. Rep. 25. It is not enough to refer to the petition and affidavits. Ibid; The People v. Sup. of Westchester, 15 Barb. Hep. 607. The command of the writ must be according to the duty. It is bad to require supervisors to expend a certain sum in repairing a bridge; they should be simply required to repair. The People v. Sup. of Dutchess, 1 Hill Rep. 60; The People v. Sup. of New York, 1 do, 362. The writ must correspond to the order directing its issue, as a variance is fatal. Hawkins v. Moore, 3 Pike Rep. 345. One and the same writ of mandamus can not be directed to the township committees of two several townships, to compel them to proceed to do their duty in the matter of a road. State v. Chester and Evesham, 5 Halst. Rep. 292. It is not fatal if it be directed to the members of a cor- poration instead of the corporation by its corporate name. Fuller v. Plain- field Academic School, 6 Conn. Rep. 632. III. The Retuen. The return, to be sufficient, must show a legal justification for not doing the act. In a matter of discretion, it is a good return to show an exercise XLV.] PEOOEEDINGS UPON MANDAMUS. 731 Forms. of that discretion; as the rejection of a claim by an auditor. 12 Ohio Rep. 54. So, that a bil'. of exceptions tendered was not a true bill. 4 Ohio Rep. 351. If the bill of exceptions is objectionable, the judge should return the causes of objection. The People v. Pearson, 2 Scam. Rep. 189. The return to a mandamus to restore a member to a church, that the member was expelled by a select number, is insufficient; the power of those to expel him should be stated. Green v. Af. Meth. Ch. 1 S. and R. 264. So where the return stated that he was expelled for bringing a suit contrary to the rules which forbid suits unless necessary, it was held insufficient for not stating that the suit was unnecessary. Ibid. The return must respond to all the allegations of the writ, or it will be held bad on demurrer. 14 Ohio Rep. 252. Under the code, issue may be taken on the truth of the return, and this issue will be tried by a jury. At common law, the return was conclusive; no objection could be made to it but one to its legal insufficiency. The State V. Will. Bridge Co., 3 Harring R. 539. The return may be amended. Springfield v. Hamden, 10 Pick. Rep. 59. FORMS. PETITION FOE MANDAMUS. To the Honorable the District Court, within and for the County of Hamil- ton, and State of Ohio: Tour petitioners, Richard Philips, etc., respectfully represent and state to the court, that they constitute the Board of Directors of Common Schools for the Eastern and Western Districts of the city of Cincinnati, which schools are established by law for the education of the colored youth residing in said city; and that, in pursuance of law, your petitioners rented divers rooms, and established divers schools in said city, for the edu- cation of said youth, and employed competent and duly qualified teachers as instru'ctors of said youth in the schools aforesaid. And your petitioners further state that heretofore, to-wit, on the 15th day of March, A. D. 1850, William Disney, in his capacity as treasurer of said cit}', received from the treasurer of Hamilton County the sum of $2,177 67, for the use of your petitioners and of the common schools for colored youth so by them established, the same being the proportion of the public school funds belonging to your petitioners, and to the schools under 732 PEOCEEDINGS UPON MANDAMTTS. _ [oHAP. Forma. their charge, as the same was apportioned by the auditor of said county of Hamilton, in pursuance of law; which sum of money still remains m the hands of said treasurer in the treasury of said city. And your petitioners further represent that, on- the first day of April, A. D. 1850, there became due from them, for expenses incuiTed in the sup- port of said schools, the sums hereinafter set forth, as follows, to- wit: (here follouis the statement of sundry sums due, which it is unnecessary to copy;) and that thereupon, afterward, to-wit, on the fifth day of April, A. D. 1850, your petitioners duly certified to the City Council of .said city the correct- ness of said several accounts, together with the several accounts respec- tively, and desired the City Council to pass an order directing the treasurer of said city to pay the same, out of the funds of your petitioners in his hands, to the persons entitled to receive the same; but your petitioners state that the said City Council afterward, on the first day of May, A. D. 1850, utterly refused to pass any order in relation to the payment of said accounts, and they now claim that they have no power, jurisdiction, or authority to make any order in the premises. And your petitioners represent that, afterward, to-wit, on the tenth day of May, A. D. I860, they caused said accounts to be presented to the said William Disney, treasurer of said city, and payment thereof was then and there demanded of said Disney, as treasurer, and the said Disney then and there utterly refused, and still doth refuse to pay the same, or any part thereof, although the said Disney then and now has in his hands, as treasurer as aforesaid, the whoTe of said sum of $2,167 67, and which sum is held by said Disney, as such treasurer, for the use of your peti- tioners and of the schools so by them established; he, the said Disney, , pretending that he has no power to disburse any of the funds in the city treasury, without the order of said City Council, signed by the city clerk, first being had and obtained. And your petitioners further state that, by reason of said refusal by said Council to pass the orders aforesaid, and of the said treasurer to pay the said accounts, the teachers employed by your petitioners are deprived of the compensation which is justly due to them for their services, and the schools so by your petitioners established have been suspended for, want of means to carry on the same, although a fund amply sufficient to sustain said schools has been provided by law, and is now in the hands of said Disney, as treasurer of said city. And your petitioners further state that they are entirely without remedy in the premises, unless it be afforded by the interposition of the court; and they therefore pi'ay that writs of mandamus may issue against the City of Cincinnati, the City Council of the City of Cincinnati, and William Disney, XLY.J PKOCEEDINGS UPON MANDAMUS. 733 Forms. tieasuier of said city, and that said city and City Council be commanded to pass an order, diiecting said treasurer to pay said accounts out of said fttiids, and that the said Disney, as treasurer, be commanded to pay the same to the order of your petitioners, and that such other order may be irade in the premises as justice may require. By Ball & Hoadly, their- Solicitors. The State of Ohio, Hamilton County, ss. Richard Philips, one of the petitioners, above named, and President of the Board of Directors of Common Schools for the Eastern and Western Districts of the City of Cincinnati, being duly sworn, saith that the several matters and things in the foregoing petition stated are true in substance and in matter of fact, to the best of his knowledge, information and belief. Richard Philips. Sworn to before me, and subscribed in my presence. Given under my hand and seal of office at Cincinnati, this fifteenth day of May, A. D. 1850. George Hoadly, Jr., Notary Public. Tliis was the petition in the case of the State v. City of Cincinnati, et al., 19 Ohio Rep. 178. It would appear that there was here a misjoinder of parties. The petition should have asked for the writ against the party in fault. If the treasurer could not legally pay without an order of the City Council, then there was no ground for a mandamus against him, since he had not refused to pay when legally requested; the wrong was on the part of the city in not passing the order. If, on the other hand, the treas- urer was bound to pay without the order of the City Council, then the City Council Was no necessary party; was not liable to the writ for refusing to pass an unnecessary order. The treasurer would be liable, when he re- fused to pay on the order being presented and not before, if he could nof pay without it. If he could pay, and was bound to pay without it, thee the writ should have been prayed for only against him. The city' and the treasurer could not be joined in the same writ, because the default com plained of was not a joint but several one. This petition is, probably, more extended than necessary; it goes into the evidence, showing how the money was raised and came into the hands of the treasurer; when an averment that he had funds of the relators, which, on proper demand, he refused to pay, would -probably have been sufficient. In this case it would appear that separate writs were issued, and the citj was commanded to make the order; if so, the application should hava been separate. 47 734 PEOCEEDINGS UPON MA2TDAMU8. " [CHAF. Forma. The petition need only state the facts which show the right to relief. If these facts are to be proved, to satisfy the court of the truth of the case made, the evidence for this purpose should be presented in affidavits. a. PKTITION. To the District Court within and for the county of , and State of Ohio: The First Presbyterian Society of Gallipolis represents that the said society is a corporation duly incorporated and organized for the support of religion, in original surveyed township No. 3, of range No. 14, in Gallia county, and, as such society, is entitled to its proper distributive propor- tion of the income, rent, and proceeds of section No. 29, in said town. No. 3, of range No 14; and ths,t said society appointed one A B its agent, to obtain its proportion of said funds from the trustees of said town No. 3, range No. 14, in said county of Gallia, and that the said A B, as such agent, did, on the first day of January, A. D. 1855, present to the said trustees of said town No. 3, a duly certified list of the members of said society entitled to be enumerated and counted in the distribution of said funds, and requested the said trustees of said town No. 3, to receive said list, and appropriate to the said First Presbyterian Society its due proportion of the said funds, which said funds the said trustees then had in the pos- session of the treasurer of said town No. 3, ready to be distributed accord- ing to law; and said petitioner further saith that the said trustees did then refuse to receive the said list of members, and to appropriate to the said society its due share of said funds, or any part thereof. Wherefore the said petitioner prays that the writ of mandamus may issue to the said trustees of town No. 3, of range No 14, in said county of Gallia, commanding said trustees to receive the said list, and appropriate to the said First Presbyterian Society the amount of the said funds legally belonging to the said society. E F, Attorney for Plaintiff. The State of Ohio, Gallia couuty, «s. A B being first duly sworn, saith that he is the agent for the said so- ciety, and that the several matters and things contained in the above petition are true in substance and in fact. AB. Subscribed in my presence, and sworn to before me, a justice of the peace, this day of , A. D. 1855. L M, Justice. XLV.] PEOCEBDINGS UPON MANDAMUS. ' 736 Forms. It would seem that the facts should be sworn to positively; and if the party making oath to the petition can not testify to the truth of the facts, affidavits should be produced to prove them. a 3. NOTIOB OP THE APPLIOATION To You are hereby notified that will apply to the District Court within and for the county of on the first day of its next_ ^erm, for a writ of mandamus to issue against you, commanding you, (here state the prayer of the petition, and so much of the fads as shows what the party is required to do.) AB, By E F, his Attorney. 4. ORDEB OF COURT; The State of Ohio on the rela- tion of V. \- Motion for Mandamus. The Trustees of T. 3, R. 14, Gallia County. And now came the said plaintiff, and presented its petition for a man- damus against the said trustee, etc, and it appearing that notice has been given to the said of this application, it is ordered that an alternative mandamus, returnable to the District Court, in the county of , on the first day of its next term, issue to the said , commanding, etc.; (here state what is to be done, ) or that said show cause, on the first day of the next term of this court, in the said county of , why he has not done so. Notice, probably is only necessary, when the case is one where a peremptory mandamus may issue in the first instance; as it may when the right is clear, and it is apparent that no valid excuse can be given. In such a case, notice being given of the motion, the court will, if no sufficient reason is shown, make it peremptory at once. The writ may be applied for in any county in the district, and be made returnable to the proper county for trial and disposition. It has been so held by the District Court in the Seventh District. The District Court is a court for the District, as the old Supreme Court was for the State, and 736 PEOCEEDINGa UPON MANDAMCrS. fcnAP. Forms. hence motions for writs of error mandamus, quo warranto, etc., may be applied for wherever said court may be in session. 6. THE WRIT. The State of Ohio, County ss. To the City of Cincinnati, and the City Council thereof. Greeting; Whereas it has been suggested to us that you have refused to issue an order directing the treasurer of said city to pay certain sums of money alleged to be due, as follows: [here follows a list of the claims allowed hy school board,) the correctness of which said several sums of money had been certified to you by the Board of Directors of Common Schools for the East- ern and Western Districts of the pity of Cincinnati; Now therefore we, being willing that full and speedy justice should be done in the premises, do command you that, immediately upon the receipt of this writ, you cause an order directing the treasurer of said city to pay the said several sums of money so certified as herein before stated, or that you appear before the judges of our Supreme Court, (now District Court,) at the court house in said county, on the 18th day of May, A. D. 1860, at nine o'clock A. M. of said day, to show caiise why you have not done so; and have you then and there this writ with your return thereon of having done as you are hereby commanded. Witness my hand and the seal of said District Court, at the court house in , on this day of A. D, 1 8 . J D, Clerk. The above form of the writ is copied from that in the case of State v. Cin., 19 Ohio Rep. 182. A slight change is made in the conclusion, to meet the language of section 571 in the code. The writ may command the act to be done upon a specified day. The recital in the writ must, of course, conform to the case made in the petition. In the case supposed in the second form, it would be that it had been suggested to us that you had, ou due application of A B, agent of the First Presbyterian Society of , refused to receive a list of its members, duly certified, and appropriate to it its due share of any portion of the funds in your hands, arising from the rents and income of section 29, in said town No 3; the said society being a corporation, duly organized for the support of religion in said town No. 3, etc. XLV.J PEOCEEDINGS UPON MANDAMUS. 731 Forms. 6 . ANSWER. The State of Ohio, on thel County,- ss. District Court. ' y Answer to writ of Mandamus. V. CD. J And the said C D now comes, and for answer to the alternative man- damus, heretofore issued in this case, says that the said plaintiff ought not to have his said writ of peremptory mandamus; because he saith, (here set forth the grounds on which the defendant relies for defeating the applica- tion;) and further he saith not. C D. It must be sworn to before some competent authority. If the plaintiff considers the answer as containing no facts constituting a bar to the issue of the writ, he will demur to the same. If he admits the answer to be suflBcient, but denies its truth, he can pray for the impan- neling of a jury to inquire into the truth of the answer. He can put in no loplication; and hence a prayer for a jury is the only means left to show that he disputes the facts. If he was at liberty to exercise common sense, he would put on record a paper showing just what he did deny; but as he can not legally appeal to common sense, he must move for a jury to inquire into the truth of the whole answer, though only a single fact in it may be disputed. Tlie impanneling of a jury, the verdict and judgment, will correspond substantially with the forms heretofore given. Damages in certain cases may also be found by the jury; but this can be only in those cases where the relator has sustained some special damage by the act complained of. The peremptory mandamus may be enforced by attachment and fine on parties refusing to do the act required. The peremptory writ will be like the alternative one, only leaving out the words, "or show cause why you have not done so." CHAPTER XLVI. APPEALS. The act of March 23, A. D. 1852, 2 S. & C. St. 1161, provides for appeals, in all cases at law and in equity, from the Court of Common Pleas to the District Courts, in all cases originating in the Court of Common Pleas. The party wishing to appeal must cause his intention so to do to be entered on the minutes of the court at the term where the final judgment was rendered. A judgment finding the amount due on a mortgage, and directing a sale of the mortgage premises, is such a decree as can be appealed from. So an appeal will lie from the confirmation of a sale in a mortgage case. Hey v. Schooley et al. 7 Ohio Rep. part ii, 48; Kern's Adm'r. v. Foster, 16 Ohio Eep. 274. The amount of the bond is to be double the amount of the judgment, when the judgment is for the recovery of a sum of money, unless it is a nominal sum. The judgment here spoken of, is the sum of the recovery and costs of the party recovering the judgment. Unless the judgment, independent of costs, amounts' to one hundred dollars, it ought to be con- sidered a judgment for nominal damages. The appeal bond ought in no case, to be less than two hundred dollars. Where the judgment is for costs and nominal damages, or wheie it is for costs only, the court shall fix the amount for which the appeal bond shall be taken. Where the interests of parties are joint, the appeal must be taken in the name of all; but where the interest of any party is separate and distinct from that of his co-defendants, or co-plaintiffs, such parly may appeal the case so far as his interests are affected, and the penalty and condition of the bond shall be fixed by the court accordingly. The language is, that it shall be allowed by the court, implying that the court below must decide whether the case is a proper one for a separate appeal. Where a bill in chancery was dismissed as to one, and a decree rendered against two others, and these two gave notice of appeal, and perfected it, the court held that the appeal brought up nothing but the case as to the two against (738) XLVI.] APPEALS. 739 Forms — Notice. whom, the decree had been taken below. The case, as to the one in whose favor there had been a decree of dismissal below, was not brought ap by the appeal of the two. An appeal by the plaintiff could alone bring up the propi-iety of this decree of dismissal. Glass et al. v. Greathouse et al. 20 Ohio Rep. 503. Executors, administrators, and guardians are not requii'ed to give bond for appeal, if they have given security in this State as such. Where the court neglects to fix the amount of the appeal bond, the appellant may give a bond in a sufficient amount, and the appeal will be sustained. Hubble v. Renick, 21 Ohio Rep. 171. When the appellate court shall render substantially the same judgment as was rendered in the court below, damages shall be awarded on all judg- ments for the payment of money, either personally or otherwise, at the rate of five per cent, on the amount of the judgment below. Where the appeal is vexatious, and for delay merely, ten per cent, may be assessed by the court; in all other cases, the court may as.sess a sum not exceeding $200, unless the court are satisfied that there was reasonable and probable cause or ground for the appeal. The court must assess the penalties above pro- vided, in all cases, unless a certificate is added to the judgment, of the existence of reasonable and probable ground for the appeal. When notice of appeal is given, the court may direct a stay of execu- tion on the judgment, for thirty days. The act of April 12, 1858, 55 0. St. 81, takes away the right of appeal in certain cases ; but allows the party a right lo demand a second trial. For forms under this act, see Addenda, No, 13, page 795. FORMS. 1. NOTICE OP APPEAL. (Add to the record of the entry of judgme'nt or final decree the following :) And thereupon came the said , and gave notice of his intention to appeal this action to the District Court; and, on motion of the said , (the ajppellarU,) the court fix the penalty of the appeal bond at $ 2. NOTICE OP APPEAL BY ONE OF SEVERAL DEFENDANTS. And thereupon came the said , and gave notice of his intention to appeal from so much of said judgment as aflfects him; and on the motion of the said , b's said appeal is allowed, on his giving bond in the sum of $ , conditioned, (here state the condition of the bond as fixed by the court. ) ,*» 740 APPEALS. [chap. Forms. The condition of the bond will depend upon the character of the decree appealed from. If the party appealing has only an interest in land ordered to be sold, the condition should be to pay for rent of land, against waste, and for costs. 3. APPEAL BOND. * Know all men by these presents that we, , are held and firmly bound unto , in the penal sum of $ , to the pay- ment of which, well and truly to be made, we do hereby jointly and severally bind ourselves, our heirs, executors, and administrators. Sealed with our seals, and dated this day of , A. D. 18 . The condition of the above obligation is such that, whereas the said has taken an appeal from a certain judgment rendered against him, and in favor of , in the Court of Common Pleas, within and for the county of , at the term thereof, A. D. 18 , for the sum of $ , debt, (or damages,) and $ , costs of suit, to the District Court, within and for said county of ; now, if the said shall abide and perform the order and judgment of the said District Court; and shall pay all moneys, costs, and damages which may be required of, or awarded against, the said , by the said court, then this obligation shall be void; otherwise it shall remain in full force and virtue in law. I, J D, clerk of said Court of Common Pleas, do approve of the above bond and security, this day of , A. D. 18 . J D, Clerk. When the appeal is perfected, by giving the bond, the clerk must make out a copy of the journal entries, and certify them, with the original papers, to the District Court. 4. OBRTIFIOATB OF JOUENAL ENTRIES. The State of Ohio, County, ss. I, J D, clerk of the Court of Common Pleas, within and for the county of , do hereby certify that the following entries and judgmeni are truly copied from the journals of said court, to-wit, here copy the entries, with time, etc., as in making up complete record.) iLVn.] PAETTTION. 741 Who may be Pari is. And I further certify that the papers herewith sent, numbered from one up to , are the original papers and pleadings filed in the above case of , plaintiff, against , defendants. In testimony whereof, I have hereunto set my hand, and affixed the seal of said Court of Common Pleas, at the court house in , on this day of , A. D. 18. . J D, Clerk. On receipt of these papers by the clerk of the District Court, he dockets the case, and sets it down for trial at the next term of the court. CHAPTER XLVII. PAETITION. Partition can be obtained either in equity or by a proceeding under the statute. 1 S. & C. St. 893. Where there are difficulties about making a partition, a court of equity will interfere. Phelps v. Green, 3 John. Ch. Rep. 302; Wotten v. Copeland, 7 John. Ch. Rep. 140; Striker v. Mott, 2 Paige Ch. Rep. 387; 4 do. 639; 6 do. 618. In chancery, partition can be had of a mere equitable estate. Hitcjjicock v. Skinner, 1 Hoffm. Ch. Rep. 21; Warfield v. Banks, 11 Gill and John. 98; Willing v. Brown, 7 S. and R. 467; Morgan v. Staley', 1 1 Ohio Rep. 389. Under the statute, partition can be made only between those holding a legal estate in fee, either for life or years. Coale v. Barney, 1 Gill and John. 324. The parties, too, to such a partition can only be those who hold an 742 PAETITION. [CHiP Who may be Parties. Petition. estate in common; one holding a diflFerent estate in the same lands can not be made a paYty, as mortgagee, devisee, or reversioner. Tilton v. Palmitr, 31 Maine Rep. 486. So the joint interest must relate to all the lai.ls embraced in the petition; each party to the action must have an interest ic common in all the lands embraced in the action. Kitchen v. Street, 1 Car- ter India Rep. 138; Smith w. Pratt et. al., 13 Ohio Rep. 648; Horman v. Kelley et'al., 14 Ohio Rep. 602. The proceeding on partition looks to the possession, and not to the title; hence parties to such a proceeding must have a present possession. Tabler V. Wiseman, 10 West. L. Jour. 207; 22 Ohio Rep. 207. It has been held in many States, that an actual seizen of the tenant is necessary, and that the proceeding can not be maintained when the land is held adversely. Bonner V. Proprietors, etc., 7 Mass. Rep. 476; Willis v. Price, 9 do. 508; Brownell V. Brownell, 19 Wend. Rep. 367; 9 Cowen Rep. 561; 2 Root R«p. 278; 6 Dane's Abr. 480; 6 Denio Rep. 388. But in others, and undoubtedly in Ohio, a right of entry is suflScient. Per Ranney, 22 Ohio Rep. 211. If a petition for partition can be sustained by one out of possession, it is only when he is so kept out by his co-tenant. He certainly could not make his co-tenant and the disseizor parties, with the two-fold object of settling a disputed title, and recovering possession in an action which looked only to dividing possession-. Nor would it seem that tenants in common could have partition of lands of which they were disseized. They must first obtain possession, and then make partition; otherwise the occupant will be put to defend a separate suit with each of these tenants in common. It is said that legal controversies as to title can not be settled in a case of partition. Maxwell v. Maxwell, 8 Iredell Rep. 25. Where one tenant in common disseizes another, possibly this dispute may be settled in a case for partition ; though allowing it to be done, will be to deprive the parties of their right to a trial by jury. The owners of a reversion can not have partition of the land while the present estate is in existence. Tabler v. Wiseman, 22 Ohio Rep. 207; Blown V. Brown, 8 N. Hamp. Rep. 96; Striker v. Moolt, 2 Paige Ch. Rep. 389; Wood v. Glute, 1 Sand. Ch. Rep. 202; 12 Pick. Rep. 374; 1 Ves. and Beam. 651; Coke Litt. 167; Culver v. Culver, 2 Root Rep. 278; Zeigler v. Grim, 5 Watts Rep. 106; Stevens v. Enders, 1 Green. Rep. 271. A partition between tenants in comqpn does not bind the mortgagee of one of them. Colton v. Smith, 11 Pick. Rep. 311; 23 do. 1; Bradley v. Ful- ler. The mortgagee would probably be held bound, unless he could show it unjust and injurious to his interests. The petition must be filed in the Court of Common Pleas or Probate Court, setting forth the interest of the plaintiff in the lands, and the names XLVn.] PAETITlbN. 743 Petition — Notice — Foiins. of his co-tenants. The nature of the title must be set forth; whether the estate is for years, for life, or a fee simple, of which partition is sought. Sec. 2. Service is obtained' by publication in some newspaper in each county where the lands lie, or by giving personal notice in writing tp each person, at least forty days prior to the first day of the term of the cour^at which the order is to be made. One publication, forty days before court would answer the words of the statute, and constitute a legal notice, though six consecutive publications, the first being more than forty days before court, is the usual and better practice. Tabler v. Wiseman, 10 West. Law Jour. 207; Muskingum Valley Turn. Co. v. Ward, 13 Ohio Rep. 120; Craig v. Fox, 16 Ohio Rep. 663. Regularly appointed guardians may act for their wards in cases of par- tition. Sec. 14; 8 Ohio Rep. 416; 14 do. 228. The petition must be filed in the county where the lands lie, or where some of them lie. FORMS. 1. PETITION FOK PAETITION. To the Court of Common Pleas within and for the county of and State of Ohio: Your petitioner, A B, of said county of , represents that he has a legal right to and is seized in fee simple (an estate for years, or for life, as case may be,) of one undivided part of the following real estate, to wit: [here describe the lands and iv, what county or counties located; ) and your petitioner further represents that C D, E F, and L M, of the county of, etc., are tenants in common with your petitioner in the said premises, [and that , widow of , lately deceased, is entitled to dower in said premises.] Your petitioner therefore prays that partition of said lands may be made, [and the do*er of the said , be assigned therein,] or, if the same can not be done without manifest injury, that then such proceedings may be had in the premises as are authorized by law. A B, By E F, his Attorney. The petition may set out the respective proportions of each party. Where no dower is to be assigned, th"e pleader will leave out the parts in 744 PAKTITION. [chap, Forms. brackets. In a petition in equity, tlie whole case must be stated, with the shares of each, and the character of the title of each. S, FORM OF NOTICE. C ByfiY, etc., will take notice that a petition was filed against them on the day of , A. D. 18 , in the Court of Common Pleas, within and for the county of . by A B, and is now pend- ing, wherein said A B demands partition of the following real estate, to wit: (//ere insert description;) and that, at the next term of said court, the said A B will apply for an order that partition may be made of said premises. Dated this day of A. D. 18 . The first publication must be forty days before the court. 3. AFFIDAVIT OP PUB L 10 A TIO If . I, L M, being duly sworn, say that I am the publisher of the , 3 newspaper printed and in genei'al circulation in the said county oi , and that a copy of the above (or annexed) notice was pub- lished in said paper on the day of , A. D. 18 , and continued therein for six consecutive weeks next thereafter. LM. Subscribed in my presence, and sworn to before me, (or in open court,) thi? day of , A. D. 18 . N 0, Justice of Peace. If notice is personally served, the aflSdavit will state that a copy of the annexed notice was served by the affiant on each of the said , on the dav of , A. D. 1 8 . 4., ORDER OF PARTITION. A B, ) V. > In Partition. C D, E F, and G H.) And now came the said A B, by N 0, his attorney, and thereupon this case came on to be heard upon the petition and evidence and was argued by counsel; on consideration whereof the court do find that due notice of the pendency of this action has been given for more than forty days prior to the first day of the present term of this court; and the court XLVn.] PABTITION. 745 Forms. do further find that the said A B has a legal right to, and is seized in fee simple of part of the said premises; and the court do further find that the said C D, E F, and G H are tenants in common in said picm- ises with the said A B, in' the following proportions, to wit: that the said C D is seized of part thereof, the said E F of 'part thereof, and the said G H of • part thereof, [and that the said is entitled to dower therein.] It is therefore ordered that a writ of partition issue to the sheriflF of said county of , commanding him that by the oaths of T S, R 0, and W T, [one full equal tlnrd part of said premises, in said petition described, be set off and assigned to the said , as her dower estate, and that by the like oaths of the said T S, N 0, and W T,] pa^ition be made of said lands [subject to the said dower estate] in the following proportions, to wit: to the said A B one part, to the said C D one part, etc., and it is further ordered that the sheriff return his proceedings in the premises forthwith (or to the next term of this court, to which time this action is continued.) Wliere no dower is to be assigned, the finding and decree will omit all mei.iion of it. The parts included in brackets will be omitted, when no dower is to be assigned. The court must find the rights of the party; this being nearly an exparto proceeding, the record should show that proof has been adduced, and that on that proof the facts which justify a decree of partition are found by the court. The statute requires proof from the plaintiff of his title, and, of course, of that of the defendants, before the order can be made. B. WRIT OP PAETITION. The State of Ohio, County s«. To the Sheriff of said Oouuty, Greeting: We command you that without delay, by the oaths of T S, R 0, and W T you cause to be endowed of one full third part of the followino- real estate, to wit: (here describe land as is done in the petition;) and also that in like manner, and by the like oaths of the said T "S, R 0, and W T, you cause partition to be made of said lands, subject to the dower .estate of the said , among the f:llowing persons, and in the fol- luwing proportions, to wit: to the said A B one equal part, to the said C D one equal part, etc., and that your pioceedings in the premises, you distinctly certify under your band to the Court of 746 PAETinoN. [chap. Forma. Common Pleas, within and for the said county of , together with this writ. Witness my hand, and the seal of the said Court of Common Pleas, at' the court house in , this day of , A. D. 18 G D. Clerk. 6.. BEPORT OF OOKHISBIONEBS. County, »«. i Court of Common Pleas.] AB, V. J- In Partition. C D, E F, and G H.) According to the command of the writ of partition issued in this case, and OF call of the sheriflF of said county, we, the undersigned, commis- sioner. , after heing first duly sworn, and upon actual view of the premises, do set off and assign to the said , as her dower in the said lands, described in said petition, the following tract, to- wit, (here describe it by metes and bounds, ) and we do make partition of the same, subject to the said dower as follows: we assign to the said A B, for his share therein, so much thereof as is contained in the following bounds, to-wit, (here set it out, and so on of the others.) Given under our hands, this day of , A. D. 18 . Where a survey has been made, the report may refer to tne survey and then say, "we assign tract marked A to one, tract marked B to another," etc. There is no necessity of reciting a description of the land in the report, since they are described in the writ, and the report is appended to and makes part of the writ, and hence reference may be had to the writ, without copying its language. If the land can not be divided, a valuation is to be made. This will come in after the assignment of dower, as follows: r. VALUATION. And upon actual view of the premises, we are of opinion that the said lands can not be divided without manifest injury to the same, and we do thereupon estimate the value of the same, (subject to said dower estate,) at$ XLVn.] PAETITION. 74:7 Forms. Where there is no dower to assign, that part of the above forms will be omitted. 8. SHERIFF'S EBTUKN. According to the command of the within writ, I have, by the oaths of the said T S, R O, and W T, caused said dower to be assigned, and said order of partition to be executed, as will appear by the report of the said commissioners herewith returned. Given under my hand, this day of , A. D. 18 . K S, Sheriff. 9. REPOKT OF PARTITION CONFIRMED. V. > In Partition. C D, E F, and G H.) On motion to the court by L M, counsel for said petitioner, and upon producing the return of the sheriff and the report of said commissioners heretofore appointed, and the same having been examined by the court here, and found in all respects correct and in conformity to law; it is hereby ordered that the said proceedings and report be, and the same is, horeby approved and confiimed; and that said parties hold in severalty the parts and premises so set off and assigned to each respectively; and it is further ordered that the costs of this action, including a counsel fee to the said , of $ , be paid by the said parties in the follow- ing proportion, to-wit: the said A B one part, the said C D one part, etc.; and in default thereof, that execution issue therefor. 10. ENTRY OF AN ELECTION ON A VALUATION. AB, ) V. y In Partition. C D, E F, and G H.) On motion to the court by L M, counsel for said petitioner, and upon producing the return of the sheriff and the report of said commissioners lieretofore appointed, and the same having been examined by the court liere, and found in all respects correct and in conformity to law; it is hereby ordered that the said proceedings and report be, and the same is, hereby approved and confirmed; and thereupon came the said , and elected to take the said premises at the said valuation; and it appearing 748 pAETinoN. [chap. Forms. to the court that the said has paid to the said C D, E F, and G H, their respective shares of said valuation, it is ordered that tlie said premises be adjudged to the said , and the sheriff is ordered to execute a deed in fee simple to the said , for the premises aforesaid; and it is further ordered that the costs of this action, including a counsel fee to the said , of $ , be paid by the said parties in the following proportions, to-wit: the said A B one part, and the said C D one part, etc.; and in default thereof, that execu- tion isssue therefor. 11. SHERIFF'S DEED. KnoTV all men by these presents, that whereas, on the day of , A. D. 18 , A B filed in Ihe Court of Common Pleas, within and for the said county of , his petition against C D, E F, and G H, demanding partition of the real estate hereinafter described; and whereas, such proceedings were had upon said petition that the commis- sioners appointed by said court to make partition of said lands, made report that partition of the same could not be made without manifest injury theieto, and that-the value thejeof was $ ; and whereas, at the lerm A. D. 18 , of said court, the said report was duly examined and con- firmed by said court; and the said A B, electing to take said premises at said valuation, and having paid the said C D, E F, and G H, their due shares of said valuation, the said court did adjudge said lands to the said A B, and order the sheriff, by deed duly executed, to convey the same to the said A B, in fee simple. Now therefore I, R S, sheriff of ^aid county, in consideration of the premises, and by virtue of the powers vested in me by law, do hereby give, grant, and convey unto the said A B, his heirs and assigns, the lands so as aforesaid adjudged to him, to-wit, (^kert describe t/ie lands,) with all and singular the appurtenances, to have and to hold the same to him, the said A B, and to his heirs and assigns forever. In testimony whereof, I have hereunto set my hand and affixed my seal, this day of , A. D. 1 8 . R S, Sheriff of County. Executed and delivered in our presence, Q R, T V. XLvn.] PAETmojr. 749 Forms. The'State of Ohio, County, ss. Personally came before me, this day of , A. D. 18 , the said R S, and acknowledged the foregoing instrument of writing as his free act and deed, as sheriff of said county of Given under my hand, the day above written. W T, Justice of Peace. 12. OBDER OF SALE ON A TALTTATION. • AB, ) V. > In Partition. C D, E F, and G H.) On motion to the court, by L M, counsel for said petitioner, and upon producing the return of the sheriff and the report of said commissioners heretofore appointed, and the same having been examined by the court here, and found in all respects correct and in conformity to law; it is hereby ordered that the said proceedings and report be, and the same is, ( hereby approved and confirmed; and thereupon, neither of said parties electing to take the said premises at the said valuation, it is ordered that the said premises be sold at public sale by the sheriff of said county of , according to law, and that he return his doings in the premises to the next term of this court, to which time this action is continued. The terms of sale are one-third in cash, one-third in one year, and one- third in two years, with interest from day of sale. The court can alter these terms by requiring cash down. The lands will be sold at the court house, unless the court directs the sale to be on the premises. If in either of these respects a change is desired, it must be named in the order of sale. 13. CONFIRMATION OP SALE. AB, ) V. > In Partition. D, E F, and G H,) And now came the said A B, by O R, his counsel, and on his motion, and on producing the report of the sheriff of his sale made under the foj-mer order of this court, and the court being satisfied, on examination, that said sale has been made according to law; it is ordered that the .said pro- ceedings and sale be, and the same is, hereby approved and confirmed; and the S'aid sheriff is ordered, by deed duly executed, to convey said premises to the said purchaser in fee simple; and it is further ordered thai 49 750 P4ETrrioN. [chap. XL■^^I. Forms. the said sheriff, out of the moneys in his hands, pay first the costs of this 3ase, including- a counsel fee of $ , to , taxed to $ , and that of the residue he pay to the said A B one equal part, etc. 14. SHEBIFF'S DEED. Know all men by these presents that whereas, on the day of 9 , A. D. 18. , AB filed in the Court of Common Pleas, within and for the county of , his certain petition against , demanding partition of the lands and tenements hereinafter described; and whereas such proceedings were had in said action that, at the ' term of said court, A. D. 18 , the sheriff of said county of was ordered to sell said lands and tenements at public auction, and the said shciiff having caused the said sale to be duly advertised, did, on the day of , A. D. 1 8 , sell said real estate at public auction to S T for the sum of $ , which sale was afterward, at the terra, A. D. 18 , of said court, duly examined and confirmed, and said sheriff diiected, by deed duly executed, to convey the said premises to the said purchaser in fee simple; Now, therefore, I, R S, sheriff of said county of , in consi- deration of the premises, and by virtue of the powers vested in me by law, do hereby give, grant and convey unto the said S T, his heirs and assigns, the lands so as aforesaid sold, to- wit, {here describe them,) with the appur- tenances, to have and to hold the same to him, the said T S, and to his heirs and assigtis forever. In testimony whereof, I have hereunto set my hand, and affixed my seal, this day of , A D. 18 . R S, Sheriff of county. Executed and delivered in our presence, QR. TV. CHAPTER XLVIII. DOWER. The TTidow is entitled to do-yver in all the real estate of wliioh lier hus- band was seized, of an esfate of inheritance during coverture, and in all leasehold and equitiible interests in land with which her husband died so vested. 1 S. & C. St. 516. Per_m;inent leases are estiites of iulieritance. The widow can be barred of her dower by jointure under the statute, by a release during coverture duly executed, by leaving her husband and living in adultery, and; after the death of her husband, by any contract for that purpose she may make. In the case of Lord v. Brown, decided by the District Court of the Seventh District, at its late term, in the county of Vinton, it was held that a widow was barred of her dower in lands of the liusband, which had in his lifetime been sold for taxes. The tax sale creates a new source of title, and cuts off all legal and equitable, vested and inchoate rights, existing at the time of the sale for taxes. It cuts off the rights of a mortgagee, as well as those of dower. Lapse of time will also bar dower; twenty years barring the right of action. In order to recover costs against the tenant, the widow should demand the assignment of dower, before filing her petition; and aver a demand and refusal as a ground for costs against the tenant. The proceedings under the statute are in accordance with the former practice in chancery, and will, of course, be governed by that practice, and not by the code. The defense will be made by answer, as in a case of equity, under the former practice in chancery. It will set up any facts which are believed to be a bar to the claim for dower. (751) 752 DOWER. [chap Forms — Petition. FORMS. PETITION FOE DOWEE. To the Court of Common Pleas within and for the county of , and State of Ohio: Your petitioner, A B, of , etc., represents that, on or aboit the day of ,A. D. 18 , she was married to one , and that the said . has since departed this life, on or about the day of , A. D. 18 , and the said petitioner further saith that, the said , her late husband, during her coverture with him, was seized of an estate of inheritance in and to the following real estate, situate in said county of , to-wit, (^here describe the lands in which dower is claimed,) and that one , whom she prays may be made a defendant to this her petition, now claims to hold the estate of the said , in and to the said premises so as aforesaid de- scribed; and that, on the day of , A. D. 18 , the said petitioner notified the said of her right to have dower in the said premises, and then requested the said to set oflf and assign to her reasonable dower therein; which the said then utterly refused to do, whereby the said petitioner has acquired a right to call for such assignment in a court of justice. Your petitioner, therefore, prays that the writ of subpoena may issue against the said , and that, on the final hearing of this cause, her reasonable dower in said premises may be decreed to her, and an assign- ment thereof be made, and for such other and further relief as the nature of her case may in equity require. By E F, her Attorney. A subpoena issues, commanding the said defendant to appear and an- swer. The answer will be simply an answer in chancery, setting up any facts which are, in law, a bar to dower; as that she released by deed, that defendant holds under a tax sale, that she is bound by a jointure, or was guilty of living in adultery during coverture, etc. a. STTBP(BNA. The State of Ohio, county, ss. To the Sheriff of said county. Greeting: You are hereby commanded to summon to appear before the Court of Common Pleas, within and for the county of at XLvm.] powEE. 763 Forms — Decree. the court house in said county on the first day of the next term thereof, (or forthwith before the Court of Common Pleas, within and for the said county of , now in session at the court house in said county,) to answer a petition for dower exhibited against him by A B, and this he shall in no wise omit, under the penalty of the law; and have you then and their this writ Witness my hand, and the seal of the said Court of Common Pleas, at the court house in , on this day of . , A. D. 18 . J D, Clerk. The subpoena being returnable to term, the defendant will have his sixty days to answer; the plaintiflF's time to reply, and the taking of testimony will be as under the old chancery practice. This proceeding is not embraced in the code, but expressly excluded from it by section 604. Hence the chancery practice is in force for this proceeding. CD,) 3. DEOEEB PRO OONFESSO. Petition for Dower. And now came the said plaintiflF, by F M, Esq., his attorney, and the said defendant still failing to appear and answer, plead or demur, to the said pek .ion, it is therefore ordered that the said petition, and the matters therein contained, be taken as confessed against the said defendant; and thereupon it is adjudged and decreed that the said plaintiflF be endowed of one full equal. third part of the premises, in her said petition described, as and for her dower therein, as the widow of the said , late of , deceased; and it is further ordered that a writ issue to the sheriflF of the said county of , commanding him that, by the oaths of three judicious, disinterested men of the vicinity, who are not of kin to either of the said parties, he cause such dower to be set off and assigned to the said A B, according to law; and that he make return of his proceedings in the premises forthwith, (or to the next term of this court, to which time this cause is continued.) 4. DEOEEB O.N ANSWER, EVIDENCE, ETC. A B ) V. Y Petition for Dower. C D. ) And now came the said parties, by their attorneys, and thereupon this cause came on for hearing, upon the petition, answer, replication, and 754 DOWER. [chap. Forms — Writ. testimony; on consideration whereof, the court find that the said petitioner was married to the said , as she has in her petition set forth; and that during the said coverture, the said was seized of an estate of inheritance in and to the said premises; and that the said is now deceased; and tiiat the said defendant is in possession of said premises, claiming the estate of the said therein; and that the said plaintiflF did inform the said defendant of her claim to the said premises, and request him to set off and assign her reasonable dower therein, which the said defendant then refused to do; it is therefore adjudged and decreed that the said plaintiff be endowed of one full equal third part of the lands and tenements in said petition described; and it is further ordered that a writ issue to the sheriff of the said county of , commanding him that, by the oaths. of three judicious, disinterested men of the vicinity, who are not of kin to either party, he cause such dower to be set off and assigned to the said plaintiff" according to law; and that he return his pro- ceedings in the premises to the next term of this court, to which time this cause is continued, (or that he forthwith return his proceedings in the premises.) WRIT. The State of Ohio, County, ss. , To the Sheriff of said County, Greeting: You are hereby commanded that, without delay, by the oaths of three judicious, disinterested men of the vicinity, who are not of kin to either of the parties interested, you cause to be set off and assigned to A B, of , widow of , late of , deceased, one full equal third part of the following real estate, situate in said county of , to-wit, (here describe the land as in ike petition,) in pursu- ance of an order lately made in the Court of Common Pleas, within and for the county of aforesaid, in a certain petition for dower, wherein the said A B was plaintiff, and was defendant; and that your proceedings in the premises, you certify under your hand to the said Court of Common Pleas, on the first day of the next term thereof; and have you then and there this writ. Witness my hand, and the seal of the said Court of Common Pleas, at the court house in , on this day of , A.D. 18 . J D, Clerk. XLvni.] DOWEE. 755 Forms — Coiifiimatioii — Costa. C. SHERIFF'S KETTJRN. As commanded by this writ, I Iwve, by the oaths of L M, N 0, and P R, three judicious, disinterested men of the vicinity, who are not of kin to either of said parties, caused to be set off and assigned to the within named A B, as her dower estate, so much of the within described lands and tene- ments as is contained in tlie following boundaries, to-wit, {here describe the land set off by metes and bounds.) Given under my hand, this day of , A. D. 18 . R S, Sheriflf.' 7. OONFIBKATION OF ASSIONMENI. A B V. S- Petition for Dower. C D. On motion to the court by E F, of counsel for the plaintiff, and upon producing the sheriff's return, and the assignment of dower herein, under the former order of this court, and the same being found by the court to be in all respects in confoimity to law, it is ordered that the said proceed- iags and assignment of dower be, and the same is hereby, approved and confirmed, and that the said A B hold and possess the lands so assigned, as and for her reasonable dower in and to the said premises; and it is fur- ther ordered that a writ of seizin issue to the said sherifi', commanding him to deliver to the said A B full possession of the premises assigned to her as aforesaid; and it is further ordered that the said pay the costs of this suit, taxed to the sum of dollars and cents, within ten days, and in default thereof, that an execution issue therefor, as upon judgments. The question of costs is one that is settled by statute. The act of Jan- uary 11, 1843, provides that, if resistance be made to the widow's claim, and she succeed, the defendant shall pay all costs; if no resistance be made, the petitioner shall pay one-third, and the tenant two-thirds. It would seem, however, that tlie defendant should be permitted to set oft' the dower by deed, without suit, and if the plaintiff refuse to receive it so assigned, she should pay all the costs, if the assignment was confirmed by the sheriff's return. To save costs, therefore the tenant may tender by 756 DowEE. [chap. xLTnr. Forms. deed an assignment, and set up such oflFer in^ his answer, and have the commissioners pass upon its justice, and if by them adopted as just, tha widow ought to pay costs. 8. WRIT OF SEIZIN. The State of Ohio, County, ss. To the Sheriff of said County, Greeting: You are hereby commanded that, without delay, you cause A B, of , widow of , late of , deceased, to have full and peaceable possession of the following real estate, situate in the said county of , to-wit, (here describe the land assigned for dower,) and which, by the judgment of the Court of Common Pleas, within and for the county of , was lately adjudged to the said A B, for her dower estate as widow of the said , deceased; and of this writ make legal service and due return. Witness my hand, and the seal of the said Court of Common Pleas, at the court house in , on this day of , A. D. 18 . J D, Clerk. 9. SHERIFF'S BETUEN. As by this writ commanded, I did, on the day of , A. D. 18 , cause the said A B to have full and peaceable possession of the within described premises. R S, Sheriff. CHAPTER XLIX DIVORCE AND ALIMONY. t. Causes of Ditoeoe. The subject of divorce is regulated by statute in Ohio. The act of March 11, A. D. 1853, (1 S. & C. St. 509,)point3 out the causes, and di- rects the mode of proceeding, whether for divorce or alimony. We will state the causes for divorce, and such brief explanations as will be useful in understanding and construing the statute. Divorces may be granted in Ohio for the following causes: 1 . Where either of the parties had a former wife or husband living at the time of solemnizing the second marriage. The second marriage in this ease is void, and the only object of the proceeding is to obtain judicial and conclu- sive evidence of this fact, which renders the marriage void. After such a decree the fact can no longer be questioned; it is conclusively settled; whereas, without such an adjudication, the legality of the second mar- riage would be open to be disputed on every issue involving a question as to the validity of the marriage. This proceeding prevents all these inconveniences. 2. Where either of the parties shall have been willfully absent from the other three years. There are here two things necessary to be proved to make out a case for divorce under this cause; 1. Absence; 2. That it is will- ful. There must be an actual cessation of the matrimonial cohabitation between the parties, and an intent to desert in the mind of the offending party. Both must combine to make the offence complete. Bui it is wholly immaterial whether the distance, to which the parties remove from each other, be great or small, except, perhaps, as illustrating under circumstances (767) 758 DIVOECE AND ALIMONY. [CHAP. Causes — Willful Absence. their intent; for the criterion in all cases is the intent. Where the parties live wholl}' apart, there can be little or no difficulty in finding the deseriiou or absence. Still, if living apart, they continue to visit each other under such ciicumstances as shows a continuaiion of sexual intercourse, theie is no absence in the meaning of tlie statute. But can there be a desertion while the parties still continue to reside under the same roof and in the same family? This is a disputed question. Bishop, in his work on mar- riage and divorce, section 608, asks: "Why, if a wife, without any cause, should utterly refuse to dwell with her husband as a wife, is not such a refusal, upon principle, a desertion, even though she consent to remain with him as a servant, or daughter?" Where the husband has deserted his wife, he can not take oflF the effect of that desertion so as to prevent her light to a divorce, by offering, a short time before the necessary lapse of time, to support her in his own house, or elsewhere. The offer was not made to live with her as husband and wife; and as she was, by the nature of the marriage contract, entitled to stand in that relation to him, she was not bound to accept the offer to stand in any other relation. Fishli v. Fishli, 2 Littell Rep. 337; Moss v. Moss, 2 Iredell Rep. 65. So where the husband went to live with the Shakers, while the wife did not go, the court held that, as the Shakers, though believing a husband was bound to support his wife, did not believe in the duty of cohabitation as resulting from marriage, and for this reason the court held that the husband had deserted his wife, and granted a divorce. "We are of opinion," say the court, "that ths continuance of the husband with the Shakers, and holding the opinion he is proved to hold- on the subject of cohabitation, is in law a refusal to co- habit with his wife, within the intent of the statute." Dyer v. Dyer, 5 N. Hamp. Rep, 271. The Scotch law would seem to hold that a refusal to cohabit at bed and board is a desertion. Bishop on M. and D. 510. In this case of desertion there is no question of support; for, if the husband desert his wife, she is entitled to a divorce, though he continue to provide for her maintenance. If the wife under such circumstances is entitled to a divorce, why is not the husband where the wife refuses all intercourse with him as loife, though she lives in his house. He can not turn her out of his house without rendering himself liable for alimony; and she may refuse to leave him, and then he has no relief, though she has as much deserted him, as a wife, as though she were th.ousands of miles from him. Such conduct is a desertion of all marital duties on the part of tha wile, while the husband is still bound to maintain her; and he has no rem- edy, unless he can in time obtain a divorce for a willful desertion. The second ingredient, namely, the intent to desert, is usually the prin- cipal matter to be considered in these cases. A mere separation by mutual SXIX.] DIVOECE AND AMMONT. 759 Causes — Adultery. consent is not a desertion in either party. Mansfield v. Mansfield, Wright Rep. 284; Gaines v. Gaines, 9 B. Monroe, 296, 303; Butler v. Butler, 1 Parsons Ri'p. 329; Stokes v. Stokes, 1 Mo. Rep. 32J; Pidge v. Pidge, 3 Me;oalt_ Rep. 257. The separation and desertion are not necessarily iden- tical in tlie Lime of their commencement. Thus, where the husband leaves his wile intending to return, but afterwards changes his purpose, the deser- tion begins when he determines not to return. Reed v. Reed, Wright Rep. 224. So where the parties have by mutual consent been living apart, the husband supporting the wife, he was held to have deserted her when he refused longer to support her, and made no offer for' living with her,, but indicated by his language that he did not wish to live with her. Ahrnfeldt V. Ahrnfeldt, 1 Hofl'. Ch. Rep. 47. A consent to a separation is a revocable act; hence, if one of them in good faith seeks a reconciliation and ofi'ers again to live together, and the other refuses, this is a desertion on the part of the refusing part)'. Butler v. Butler, 1 Parsons Rep. 329; Miller v. Miller, Saxton Rep. 386; Cunningham v. Irwin, 7 Serg. and Rawl. 247. So, if the wife, having left her husband without cause, comes back to him and ho will not receive her, this is a desertion in the party so refusing, from the time of the-refusal. Clement v. Mattison, 3 Richardson Rep. 93; Fel- lows I. Follows, 31 Maine Rep. 342. In all cases the legal desertion ends with the intent to desei't; as where the party in the wrong undertakes to come back, but is prevented. This offer to return must, however, be made in good faith, without qualification, or condition, and with the intent to bo really carried out in its spirit, if accepted. When the husband sends the wife away on a false pretense, and tiien leaves the (^untry, this is held a desertion. St. John v. St. John, Wright Rep. 211. If the complaining party has been instrumental in inducing the otlrer party to leave or desert, it is no ground for a divorce for willful desertion. Tlie absence must be a willful absence; if, therefore, the absence is justified by the circumstances, it can not be willful. Hester v. Hester, Wright Rep. 210, 226, 455; Kim- ball V. Kimball, 13 N. Hamp. Rep. 222; 1 Hoflf. Ch. Rep. 47; Lbgan v. Logan,. 2 B. Monroe 142; 8 N, Hamp. Eep. 307; 12 do. 80. ■ 3. Adultery. ' The adultery, to be a ground for divorce, must be volun- tary. It has been held that where the wife, while insane, committed adul- tery, it was ground for a divorce. Matchin v. Matchin, 6 Barr. Pa. Rep. 332. A contrary doctrine was held, without discussion, in Broadstreet v. Broadstreet, 7 Mass. Rep. 474. The petition must stale the time when, the place where, and the person with whom, the adultery was committed; unless this is done, the petition is insufficient; and no apts of adultery can be proved bHt those stated. 760 DivoECE aSd alimony. • [chap. Adultery — Impotcncy. Where the name of the party is unknown, the time and place must be stated, and the name of the person may be stated as unknown; but the statements in other respects must be so definite as to clearly ascertain the particular act complained of. And though the name of the person may be unknown, such a description of him should be given as to show that the evidence, when adduced, applies to that person, and not to another. Lattier v. Lat- tier, 6 Ohio Rep. 538. The proof is a matter of difficulty. It usually depends on circum- stances, and these must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; the proof should be strict, satis- factory, and conclusive; finding persons in such a situation as presumes guilt generally, the court must presume it in all cases attended with those circumstances. Rix w. Rix, 3 Hagg. Rep. 74; Cadogan ». Cadogan, 2 do. 6; Van Epps v. Van Epps, 6 Barb. Rep. 320; Burchet v. Burchet, Wright R§p. 161, 166; Burgess v. Burgess, 2 Hagg. Rep. 223; 3 do. 618; 6 Barr. Rep. 332; 4 Porter Rep. 467. The confessions of the guilty party are admissible under, our statute; but courts have always refused togranta divorce on such confessions alone. Bishop on Marriage and Divorce, 306, 449; Billings v. Billings, 11 Pick. Rep. 461; Grant v. Grant, -7 E. B. Rep. 3. There must be corroborating evidence enough to exclude all idea of collusion between the parties, and to satisfy the mind that the confession is true. The evidence of an accom- plice is entitled to very little weight in a case, either where the case is un- supported by other testimony, or where the case is fairly proved; his denial ought to have little or no influence on the decision. The case should be decided without regard to his testimony. We now speak of the simple denial. The party charged as an accomplice may testify to facts which ■will change the character of other facts looking to guilt.- Astley v. Astley, 1 Hagg. Rep. 714; Moulton v. Moulton, 13 Maine Rep. 110; Van Epps v. Van Epps, 6 Barb. Rep. 320; Wood v. Wood, 2 Paige Ch. Rep. 108, 11^ ' Brown v. Brown, 5 Jlass. Rep. 320. Judge Hitchcock once said to counsel, when he called a particeps criminis to prove the adultery, " You can exa- mine the witness, if you please, but you don't expect the court will believe her?" See further on this subject. Bishop on Marriage and Divorce, section 450, et seq. 4. Impotency. This means such a physical deficiency as renders the party unable to consummate the marriage. It is such an incurable inca- pacity, that the party can neither copulate nor procreate. Briggs v. Mor- gan, 1 E. E. Rep. 408, 410; Benton v. Benton, 1 Day Rep. Ill; Guilford v. Oxford, 9 Conn. Rep. 321 -, Burtis v. Burtis, 1 Hpp. Ch. Rep. 557; Perry XLIX.J DIVOECE AND ALIMONY. 761 Ci-uelty. V. Perry, 2 Paige Ch. Rep. 601; Deane v. Aveling, 1 Roberts Rep. 279. The impotency must exist at the time of the marriage. Bishop on Mar- riage and Divorce, sec. 236; it must also be incurable. Ferris v Ferris, 8 Conn. Rep. 166. The burden of proof lies on the plaintiff, and the case must be clearly made out. Brown v. Brown, 3 E. E. Rep. 229; Newal v. Newal, 9 Paige Rep. 26; Devanbagh v. Devanbagh, 6 Paige Rep. 664; Welde V. Welde, 2 Lee Rep. 680. 5. Extreme Cruelty. The test of an act of alleged cruelty, is its effect; ■whether it does create a reasonable apprehension that a continuance of the cohabitation would be attended with bodily harm. The harm to be appre- hended must be iorfi7y harm, in distinction from mere mental suffering. To constitute extreme cruelty, there must be either acts of personal violence, or such conduct as gives reasonable grounds to believe that such acts will be inflicted, if the complaining party continues the cohabitation. Harris V. Harris, 2 Phill. R«p. Ill; 1 E. E. Rep. 204; Kirkman v. Kirkman, 4 E. E. Rep. 438, 430; Shaw v. Shaw, 17 Com. Rep. 189; Baggess v. Bag- gess, 4 Dana Rep. 307; Butler v. Butler, 1 Parson's Rep. 329; Finley v. Finley, 9 Dana Rep. 62; 7 B. Monroe, 424; Evans v. Evans, 1 Hagg. E. R. 36; 4 E. E. Rep. 310. Where the wife has shown acts of her husband, tending to bodily harm, she may then, from that foundation, introduce indignities addressed to the mind; such as language and conduct designed to wound her feelings, or a groundless charge against her chastity. Dur- ant V. Durant, 1 Hagg. Rep. 733; Bray v. Bray, 1 do. 163; Mayhugh v. Mayhugh, 7 B. Monroe, 424; Whispell v. Whispell, 4 Barb. Rep. 217. So the habit of the husband to abuse his wife, (Otwayti. Otway, 2 Phill. Rep. 96;) and his ordinary temper, (Westmeath v. Westmeath, 2 Hagg. Supp. 1, S. C; 4 E. E. Rep. 238. 283f 293, ) are important on the ques- tion of cruelty. The physical danger may be either to the life or limb, or merely to the health. Any conduct, of whatever nature, on the part of the husband, which tends to the bodily harm of the wife, and in that manner renders cohabitation unsafe, is legal cruelty toward her. Holden v. Holden, 1 Hagg. Rep. 463; 4 E. E. Rep. 462. Words of menace, which are likely to be carried into effect, are sufficient; for assuredly the court is not to wait till the hurt is actually done. Evans v. Evans, 1 Hagg. Rep. 36; 4 E. E. Rep. 310. That actual violence is not necessary, is as firmly established as any principle of law can be in England, Ireland, Scotland, and the Ameri- can States generally. Bishop on Marriage and Divorce, sec. 466; Rhame V. Rhame, 1 McCord Ch. Rep. 197; Mason v. Mason, 1 Edw. Ch. Rep. 278; Harret v. Harret, 7 N. H. Rep. 196; Butler v. Butler, 1 Parson's 762 DIVOKCE AND ALIMONT. [CHAP Cruelty — Fraudulent lOontiaot. Eep. 329; Jelineau v. Jelineau, 2 Dessaus Rep. 45; Graecan v. Graecan, I Green Clian. Rep. 459. The threats need not be addressed to the wife; if they raise apprehension in others of bodily harm to tlie wife, that is sufficient. D'Aguilar, v. D'Aguilar, 1 Hagg. Rep. 773; 3 E. E. Rep. 3£9; HoUister v. Hollister, 6 Barr. Rep. 449, 453; Lockridge v. Lockridge, 3 Dana Rep. 28. The cause must, however, be grave and weighty. A simple act of cruelty may be sufficient to justify a divorce, where actual bodily harm has been inflicted. Bishop on Marriage and Divorce, sec. 466, 466; but an as.sault or stroke, or slap or slaps, with the hand, in a single instance, or occasional petulence of temper, rudeness of language, or sallies of passion that do not threaten bodily harm, or endanger the heatlh or safety of the wife, have been considered insufficient. Finley v. Finley, 9 Dana Rep. 62; Cooper v. Cooper, 10 La. Rep. 249; Mayler v. Mayler, II Ala. Rep. 620; Payne w. Payne, 4 Humph. Rep. 600. The wife may be guilty of cruelty as well as the husband. Bishop on Marriage and Divorce, sec. 490. If the cruelty is the result of the complainant's own misconduct, it will not furnish ground for a divorce. The remedy is, then, in her own power. Waring v. Waring, 2 Phill. Rep. 132, S. C; 1 E. E. Rep. 210; Maulton v. Maulton, 2 Barb. Ch. Rep. 309; Poor v. Poor, 8 N. H. 337; 4 Dessaus Rep. 94; Griffin v. Griffin, 8 B. Monroe Beu. 120; 7 do. 424. 6. Fraudulent Contract. What is meant by this language, it is some- what difficult to say. It is not every misrepresentation which can render a marriage contract void. A fraud which would vitiate an ordinary con- tract, will not vitiate a contract of marriage. If a woman represent herself to be a virgin, while she is not, a marriage contracted on the faith of such false representation is good. Bishop on Marriage and Divorce, sec. 105. So, if being with child, she represents to the man that the child is his, and under that belief, which is erroneous, he marries her, or if, knowing that the child can not be his, he marry her, to avoid a prosecution, but afterward comes in possession of means of proving his innocence, still the marriage is good. Moss v. Moss, 2 Iredell Rep. 65. Nor is the case dif- ferent, it seems, if she, being a white person, is pregnant with a mulatto child, and conceals from the man, who is also white, the fact that she has received the embraces of a negro about the time she was receiving his. Scott V. Shufelt, 5 Paige Ch. Rep. 43; Hulings v. Hulings, 2 West. Law Jour. 131. But where the child had been born and was a mulatto, and she concealed the fact, and swore the child on the plaintiff, who, under an arrest, married her, a divorce was granted. Both parties were white ia this case. Scott v. ShufeU, 6 Paige Hep 43- So if a woman should XLIX.] DIVOECE AND ALIMONY. 763 Neglect — ^Habitual Drunkenness. conceal the fact that she wasia public pvostitute, ■while she was moving in a station for the time, which gave her the appearance to the world of having a good character, and under those circumstances should induce one to marry her. the husband ought to be liberated by a divorce; so if a woman should be married while pregnant, of which her intended husband was ignorant, and he was not the father of the child, it ought to be such a fraud as would vitiate the marriage. It must, however, be some fraud that goes to the moral character of the party, and shows that no chaste person, in his right mind, would have contracted the marriage, if he had known the fact, the concealment of which is charged as the fraud. The petition in a case of this kind must state the facts which are claimed to render the marriage contract voidable. It is not enough to state the cause in the words of the statute. 7. Gross neglect of duty. This cause of divorce has not, to our knowl- edge, ever been found applicable in practice. The Supreme Court early held that it did not include any of the enumerated causes; and whatever it might be, it must continue for the space of three years. We have never yet known a divorce granted upon this ground, and doubt whether facts show- ing a cause under it will ever be presented. Possibly a divorce might be granted under this head, where the wife should refuse to have connection with her husband for the space of three years, if the court should hold that such conduct did not amount to a willful desertion. 8. Habitual drunkenness for three year's. In the case of Phillips v. Richards and Sherar, tried before Nash, J., at the October term, 1855, of the Washington Common Pleas, this whole question of habitual intoxication came up for consideration. The action was by the wife, for selHng.intoxi- cating liquors to her husband, a person in the habit of getting intoxicated. The following instructions were given to the jury in that case, with the approbation of counsel on both sides of the case, and may be useful in cases of this kind: "A per.son maybe said to be intoxicated when he is so much under the influence of intoxicating liquor, that he is unfitted and disqualified from attending to and pei;forming the usual duties and business of life. Intoxi- cating liquors afiect different individuals in different ways. One individual it renders dull and stupid, so that, while he may possess the powers of locomotion, his intellect is so stupitied that he is wholly incapable of attend- ing to any matter of business; another is rendered excited and noisy, and, for the time, positively insane, though he may be physically stronger and more active than when sober. In these instances, the effect is upon tha 764 DIVOBOE AND ALIMONT. [OHAP. Habitual Drunkenness. mind, disqualifying the man intellectually fpr being fit to be intrusted with the performance of any important business. On the other hand, another person will exhibit intoxication by -losing all control over his muscular action, so that he will be unable to walk or move, while his mind may be tolerably clear, and capable of comprehending a matter of business. Still _ the man is physically disqualified, by the intoxication, from attending to his ordinary business. There are other persons who are mentally and physically able to drink large amounts of intoxicating liquors, without losing their mental ability, or all control over their muscular actions; and yet the effort to maintain this self-control is so great, that t3iey are wholly incapable of attending to any business, or performing any duty resting upon them as men and members of society. There are degrees of intoxication. In order to be intoxicated, it is not necessary that a person should be dead drunk — wholly without the ability to think or move; it is enough if he is so far afiected as tq render him unfit and disqualified for the performance of ordinary callings-^so aflfected that it would be unsafe to trust him with the driving of a team, the care of a mill, the making of a contract, or the sale of property; with the steering of a steamboat, with the prescribing as a physician, or the giving advice as a lawyer. A person so affected by intoxicating liquor, is truly in a state of intoxication — can truly be said to be intoxicated. "The second proposition is, that he is in the habit of getting intoxi- cated. This word implies more than a single act of intoxication — more than an occasional act of intoxication. It implies a series of acts; acts of intoxi- cation so often repeated that it may be reasonably expected that the indi- vidjial will become intoxicated whenever he can obtain the means of so doing. When a person has acquired such a taste for intoxicating liquors, and has so far lost the control of his will, that he will usually drink to excess whenever he can obtain it, he has emphatically acquired the habit of getting intoxicated. Nor need the acts be repeated in rapid succession; it is enough to constitute the habit, if the person gets intoxicated whenever the oppor- tunity offers, though these opportunities may be at considerable intervals in lapse of time; the habit is still formed; the individual becomes intoxicated whenever the means are at his command." It may be held, and probably with truth, that the word habitual drunk- enness implies more than habitual intoxication. At any rate, no divorce should be granted until the drunkenness has gone so far as to render the person utterly regardless of his marital duties; refusing to provide, by his industry, for the wants of his family, or squandering his property in the procurement of intoxicating liquors, and in improvident trades while under their influence. XLIX.] DrVOECB Airo ALIMONY. 765 Confinement in Penitentiary — Aliraopy. .9. Covfinement on a conviction of crime in the penitentiary. The appli- cation for divorce must be made while the imprisonment continues. It can not be made alter its termination. 10. There is still another cause of divorce, made in reference to the legislation of other States. In some States, the guilty party is not freed from the bonds of his marital obligations; but is still prohibited from mar- rying ag-ain. When a party in Ohio has had a wife or husband divorced in another State, by which divoi'ce he is not at liberty to marry again, he can obtain a liberation fi'om these bonds by an appeal to the courts of Ohio. This is well enough; as there is no policy in granting a divorce to one, and leaving the other in the anomalous condition of a husband without a wife, or a wife without a husband. II. Alimont. The wife maj' file her petition for alimony alone: — 1. For adultery. 2. For gross neglect of duty. 3 For an abandonment of the wife without good cause. 4. When there is a separation for ill treatment on the part of the husband. 5. For habitual drunkenness. 6. For confinement in the penitentiary. In these cases, the wife can at once maintain a petition for alimony; she is not compelled to wait for any length of time. Wlienever she is willfully deserted by herhusband, or he is wasting his property by habitual drunken- ness, she can at once file her petition for alimony,, and the court will, of course, grant it, though she may fcy and by be entitled to a divorce. If the. wife is entitled to a divorce, she may still file her petition for alimony, without a prayer for a divorce. Alimony will also be granted on a decree for a divorce. The statute expressly authorizes it; and on a change of circumstances, the court may, on the application of either party, modify the allowance, by either raising or lowering it, as circumstances seem to require. And this may be done, thouoh there is no reservation to that effect in the decree itself. Bishop on M. and JD., sec. 593; 2 Phill. Rep. 109; 6 Iredell, 293; 1 Green Ch Rep. 90; 5 Pick. Rep. 427; 4 Barb. Rep. 295. 50 766 DIVOECE AND ALIMONY. [oHAP. Alimony. Alimony can not be allowed for the life of the wife; but must be for a sum certain, payable at a fixed time, or for an annual sum for the joint lives of the parties. Lockridge v. Lockridge, 3 Dana Rep. 28; Burr V. Burr, 7 Hill Rep. 207; 7 B. Monroe. 424; 10 Geo. Rep. 477. So alimony may be given, pending the suit, to the wife; and this, whether she is plaintiff cr defendant. The wife is entitled to the means of support- ing herself during the litigation and prosecuting or defending her suit. Were not this the case, she would be powerless, since all the property is by law under the control of the husband. The amount depends on the discretion of the court in view of all the circumstances. If she is in no fault, she is entitled to one-third of the income of her husband; and there are cases where a court would give her one half. Lawrence v. Lawrence, 3 Paige Rep. 2C7. If the wife has sepa- rate property, this should be considered in fixing the amount of alimony. Vide Bishop on M. and D., book 6, chap. 29, section 603 et segr. The court also may make orders in regard to the children. This is also a matter of discretion to be exercised solely with a view to the best interests of the children. The fitness of either the one party or the other to have the government of children will be considered. If the character of the wife is unstained, small children should be left in her custody; while all may be taken even from the father, if his conduct unfits him to have the care of children. Where the husband has assigned or conveyed away his property in fraud of his wife's right to alimony, she may set aside the sales and obtain an application of the property to her benefit. In Questel v. Questel in Gallia Supreme Court, A. D, 1833, that court held that such fraudulent grantee could not be made a party to a petition ^or a divorce and alimony; but that the wife could file two petitions, one for divorce against her husband, and one for alimony against the husband and his grantee; and it was done in that case; both petitions being pending at the same time and heard at the same term of the court, Wright Rep. 491, 492, where both cases are given when decided. The same opinion is intimated also by Hitchcock, J., in Laughery v. Laugliery et al. 16 Ohio Rep. 404. In view of these cases, the wife can pursue either of two courses: 1, she can file her petition for a divorce, and obtain, with a decree for a divorce, an allowance in gross for alimony; and then file her petition against the husband and his grantee to reach the land thus fraudulently conveyed to defeat her alimony: or 2, she may file two petitions at the same time, one for divorce and the other for alimony, and in this way prevent a waste of the property. In this last case, the pendency of the petition for a divorce should be averred, as, if that is granted, the alimony will be differently XLTX.] DITOEOB AND ALIMONY. 767 Alimony — Practice — Defenses. assigned from what it would be in case no divorce was sought. The above cases, from Wright 492, sustain this view of the practice'. The right to apply for the alimony in a separate suit at the time of filing a petition for a divorce is necessary to protect the interests of the wife against a sale to a bona fide purchaser without notice. . In this proceeding an injunction will be granted ^ and a receiver appointed to take charge of the efiects and apply the income to the use of the wife. Questel v. Questel, Wright Rep. 492. The amount of alimony was in these cases decreed in the case for a divorce, and the payment of it secured in the chancery case against the husband and his grantee. III. Fbactice. The petitioner must have lived in the State a year before he or she can file a petition. The cause of divorce may have happened in or out of the State; and the petition must be filed in the county where the cause rose, or in the county where the petitioner bona fide resides at the time. An appearance is obtained by the service of a subpoena and a copy of the bill on the defendant, if he resides in the county; or, if he does not reside in the county, notice of the pendency of the suit must be given by publi- cation in some newspaper in general circulation in the county, for six weeks, which notice must state the substance and prayer of the petition ; and also on filing the petition in such case, a summons and copy of the petition must, on its being filed, be deposited in the post oflice, directed to the defenda:nt at his. or her place of residence. This may be excused, on an affidavit that the residence of the defendant is unknown. Harter v. Harter, 5 Ohio Rep. 31 8. The defense is made by answer not under oath. But if no answer is put in, the plaintiff must still support his or her case by proof; as in these cases there can be nothing admitted, or taken as confessed. Where a defense is to be interposed on the ground of distinct misconduct on the part of the complainant it must be stated in the answer; as connivance, condonation or recrimination. IV. Defenses. 1. Connivance. This is the corrupt consent of a party to that conduct in the other, of which he afterward complains. It bars the right of the 768 DIVORCE AND ALIMONY. [OIIAP. Condonation.— Recrimination. plaintiff to this remedy of divorce, on the ground that he has received np injury; for a man can not complain of that as injury to which he has given his consent. This defense has usually arisen in cases of adulteiy, though it is applicable in all other cases. The gist of the connivance is the mind — a corrupt consenting of the mind to the act, which is alleged to be wrongful. If the mind consent a the time of the commission of the act, that is connivance. If it man con- nive at one act of adultery committed by his wife, he can not complain of a subsequent act, either with the same particeps criminis, or with another person. Bishop on M. and D., book 4, chap. 18. 2. Condonation. Condonation is the conditional forgiveness or remis- sion by the husband or wife, of a matrimonial offense, which the other has committed. Condonation may be either express, or implied. To forgive, the party must know of the offense; and. if knowing of the offense, he or she con- tinues to cohabit with the offending, party, that is a condonation. If parties continue to live together after the happening of the offense, and with a knowledge of it, the offense is held to be forgiven. The rule is, there- fore, usually stated to be, that where the party cohabits with the offender ahei- probable knowledge of the offense, he shall be presumed to have remit- ted it; as where he is told of the offense by creditable persons. So where the wife continues to live with her husband after he has been guilty of extreme cruelty, she can not afterward maSe that act the ground of a di- vorce. Quincy v. Quincy, 10 N. H. 272; Hofmire v. Hofmire, 7 Paige Rep. 60. A private confession of the offense by one party to the other, where the innocent one has no means of proving it, is not such knowledge as will take away tlie right to a divorce' after discovering evidence of the offense. Ibid; 7 Paige Rep. 69. This case is contrary to those of D'Agui- lar V. D'Aguilar, 1 Hagg. Rep. 773, and Tiramings v. Timmings, 3 Hagg. Rep. 75. The forgiveness of one act is no condonation of another not then known. Bishop on M. and D., book 4, chap. 19, sec. 363. Cruelty may be the subject of condonation as well as adultery. Burr V. Burr, 10 Paige Rep. 20; 15 N. H. 159; Wright Rep. 491. Continued cohabitation does not in all cases amount to condonation; where, for in- stance, it is impossible for the wife to leave at the time, the parties being abroad. Bishop on M. and D., sec. 371; Snow v. Snow, 2 Notes of Cases 1, 16; Popkin v. Popkin, 1 Hagg. Rep. 765. The continued cohabitation, not to liave that effect, must be under such circumstances as to show con- straint on the will of the wife. 3. Recrimination. This defense consists in the defendant assailing the character and conduct of the plaintiff, as a bar to the application. Thus . XLIX.} DIVOECE AND ALIMONY. 7C9 Recriiiiination. It is well settled that .1 suit for divorce on the ground of adultery is barred by proof of adultery in the plaintiff; and a single act will bar, whatever the extent of the guilt of the defendant. Proctor v. Proctor, 2 Hagg. Rep. 292; Smith v. Smith, 4 Paige Rep. 432; Mattox v. Mattox, 2 Ohio Rep. 23.'J; 3 Blackf. Rep. 202; 2 Paige Rep. 108. ^ But the English lulo is, that cruelty can not be pleaded in bar of adultery. Harris v. Harris, 2 Hagg. Rep. 376. But in Ncagle v. Neagle, 12 Mo. Rep. 53, a contrary doctrine was maintained, and it was theie held that extreme cruelty might be set up as a bar to a divorce for adultery. Bishop, in his work on Mar- riage and Divorce, seems to favor the opinion that a pai'ty plaintifiF, who has been guilty of an act which is made a ground of divorce by statute, can not pbtciin a divorce against the defendant for adultery or any other act, made also ground for a divorce. In other words, a party defendant may protect himself against a divorce on one ground, by showing that he is entitled to a divorce against the plaintiff on another. He thinks the rea- son, on which the English rule is established, does not exist in this country, and he would seem inclined to hold that no party guilty of an act which is made a cause of divorce, should" be permitted to olatain one on any ground. In strictness of pleading, these defenses ought to be set up in the an- swer, so that the plaintiff may know what is to be tried. The court, how- ever, are constantly in the habit of inquiiing into the character of the plaintiff, and if that character is reputed bad, will refuse a divorce. This is nocessaiy to prevent frauds, in a countiy where theie are so many unde- fended applications for divorce. And still courts are often deceived by parties and counsel. We have heard of a case of this character. The counsel for the plaintiff being nearly through with his evidence and hav- ing wholly omitted to prove the character of the plaintiff, a man, one of the judges, asked a female witness having a child in her arms, what was the reputation of the plaintiff, she answered very promptly that it was good, she knew it was. And it was said that the plaintiff was the father of the bastard child which the witness held. Where counsel knowingly prosecute such cases, and, by a fraud on the court, procure a divorce, they are guilty of malpractice, and should be disbarred. The position of counsel toward the court is such as to require on their part the highest good faith and inteority; and whenever counsel violate this sacred duty, they lose their honesty, their integrity, and their standing as men and as counsel, and deserve to be removed from a sacred sphere which they have so deeply polluted. /70 DIVOECE AND ALIMONY. [OHA,P. Forms — Petition. FORMS. PETITION. To the Court of Common Pleas within and for the county of , and State of Ohio: Your petitioner, A B, of the said county of , represents that she has been a resident of the said State of Ohio for the year last past, and is at present a bona fide resident of the said county of Your petitioner further represents that, on or about the day of , A. D. 1 8 J at , in the county of , and State of , she was married to one C D,- (whom she prays may be made a party defendant to this petition,) and that she has ever since conducted herself toward the said C D, as a faithful and obedient wife; yet the said petitioner avers that the said defendant, disregarding his duties of a husband toward your petitioner, has been willfully absent from the said petitioner for more than three years last past, without any cause or jus- tification therefor on the part of the said petitioner. Your petitioner therefore prays that the writ of subpoena may issue against the said defendant, and that due service thereof may be made upon him ; that he may be compelled to answer all and singular the premises, and that on the final hearing of this caase, the said petitioner may be di- vorced from the defendant, and for such other and further relief as in equity and good conscience she is entitled to. AB, By E F, her Attorney. The practice has been to take no notice of the non-residence of the defendant in the petition. In that case a subpoena should issue to the sheriflF and be returned not found; and then the ground is laid for ser- vice by publication of notice and the sending by mail of the subpoena and a copy of the bill directed to the defendant. The publication of the no- tice and sending the subpoena and copy of the bill must be proved, the one by the affidavit of the printer, and the other by one who has compared the petition with the copy sent and deposited in the post-office with the subpoena. The petition may state where the residence of the defendant is, and in that case, the service by notice may be resorted to' at once. It is XLIX.] DIVOECE AND ALIMONY. 771 Forms — Petition. undoubtedly the better practice. As to what the petition must state, see Lattier v. Lattier, 6 Ohio Rep. 638. a. PETITION POE ADULTEKY. To the Cjurt of Common Pleas, within and for the county of , and State of Ohio: Your petitioner, A B, of said county of , represents that she has been for the year last past and more, a resident of the State of Ohio, and is now a bona fde resident of the said county of Your petitioner further shows that, on or about the day of , A. D. 18 , at , in the county of , and State ai , she was married to one C D, of , in the county of , and State of , (and whom she prays may be made a party defendant in this petition;) and that she had, while living with the said C D, the following children, to-wit, (here state their names and ages.) Your petitioner further shows that the said C D, regardless of his marital duties toward the petitioner, did, on the day of , A. D. 1 8 , at the house of , in the town of , and county of , and State of , commit adultery with one ; and that the said D has since that time left your petitioner, and resides, as she is informed and believes, at , in the county of • , and State of Your petitioner, therefore, prays that the said C D may be notified of the filing of this petition, according to law; that he may be required to answer the same, and that, on the final hearing of this cause, she may be divorced from the said C D, and that the custody of the said children nnay be decreed to your petitioner; and for such further and other relief as the nature of her case and equity may require. AB, By E F, her Attorney. Where the residence is unknown, that should be stated in lieu of the above averment of residence. Unless the residence is known, it must not be stated, as this fact affects the mode of service.. C D, of ,. in the county of , and State of , is notified that A B did, on the day of , A. D. 18 , file her petition in the ofiSce of the clerk of the Court of 773 DIVOEOE AND ALIMONY [CHAP. Forms — Mode of Stating the Cause. Common Pleas, witbjn and for the county of , and S'^txj of Ohio, chai'ging the said C D with adultery with one , and asking that she may be divorced from the said C D, which petition will stand for hearing at the next term of said court. Dated this day of , A. D. 18 . AB, By E F, her Attorney. 4. SBNDINO OP SUBPffiNA AND BILIi. The State of Ohio, county, ss. I, E F, being first duly sworn, depose and say, that I deposited in the post office at , on the day of , A. D. 18 , a letter directed to the within named C D, at , in the county of , and State of , containing a copy of the withie subpoena, and of the petition filed in the case named in said petition. E F. Subscribed in my presence, and sworn to before me, this day of , A. D. 18 . N 0, Justice of the Peace. Where the residence is unknown, the affidavit will state that fact as an excuse for not sending the subpoena and copy of the petition by mail. Mode of Staling the Cause of Divorce. S. BXIBEME OBUELTT. {After stating the residence, and marriage, and names of children, if any, proceed as follows:) yet the said petitioner saith that the said C D, regardless of his marital duties toward your petitioner, was, on or about the day of , A. D. 18 , guilty of extreme cruelty toward your petitioner, without any just cause or provocation on the part of youi petitioner. This brief •aa.j of stating the cause of diroroe was lield sufficient and proper by the old Supreme Court on the circuit. 6. PRIOB UARKIAOB. Yet the said petitioner avers that, at the time the said C D was so mar- ried to the petitioner, he, the said C D, had a forjner wife living, to whoA the said C D had been, befpre that tinje, legally joined in marriage. XtlX.] DIVOECE AND ALIMONY. 773 Forms — Mode, etc. 7. DBUNEEMNESS, Yet tho said C D, regardless of his marital duties? toward your petitioner, has been guilty of habitual drunkenness for the three years last past. , , 8. PRAUDtTLENTCONTEAOT, The petition in this case must state Ihe facts constituting the fraud, the ignorance of them by the defendant, the marriage, and the falsehood of tho facts which were made use of to consummate the marriage, and the aban- donment of the guilty party as soon as he discovered it. It may be stated somewhat as in the following supposable case. After stating the rt'Lidence as in the first form, proceed as follows: And the said petitioner further saith that, on or about tho day of , A. D. 18 , at , in the county of , he became acquainted with one C D, whom he prays may be made a defend- ant to this petition; that the said C D was apparently moving in good society, and represented herself as being the widow of one , of , lately deceased; that your petitioner, supposing the said C D to be a woman of fair character and virtuous habits, proposed, on or about the day of , A. D. 13 , to many her, the said D, if she could give him a reference to her friends; that the said C D represented that she was the widow of the said , and the sister of one , of , of the county of , and to substantiate the truth of said statement, the said C D showed letters pur- porting to be written by the said persons, and which the petitioner then believed were so written; and that your petitioner inquired and ascertained that there were such persons as the said C D represented, of standing and fair character, and the said A B, under these representations, and confiding in them, did, on the day of , A. D. 18 , at , marry the said C D, and cohabited with her unti. ihe day of , A. D. 18 , thereafter, when your petitioner ascertained that the representations made by the said C D wei'e all falsa; that she was not the widow of the said , nor the sister of the said ; that the said letters were forgeries; and that, instead of beinf a woman oi virtue and good fame, as she represented, and the petitioner supposed, the said C D was, at the time of the said marriage, and had been for a long time previous thereto, a public prostitute, and had been, previous thereto, the inmate of a brothel in the city of , 774 DIVOKCB AND ALIMONT. [CHAP. Forms. — Petition. In the case of Scott v. Shufelt, 6 Paige Rep. 43, the following is a copy of the petition, as given in the book: "The bill alleged that the complainant had occasionally visited the defendant, and that she afterward made oath before a magistrate that she had been delivered of a bastard child; that the complainant was the father of such child, and was thereupon arrested upon a warrant, and required to give bail as the putative father of such bastard child, and that the com- plainant, believing the child to be a white child, and, being unable to pro- cure bail, did consent to iparry the said defendant, and was, thereupon, married to her before the magistrate issuing said warrant; and he further saith that he afterward ascertained that the said child, of which the said defendant had been delivered a few days before, was a mulatto child, while he saith that both the complainant and defendant are white persons; and the complainant saith that he has not cohabited with the said defendant sinjce the said marriage. He, therefore, prayed for a dissolution of the marriage," etc. This will sufficiently illustrate the character of a petition in such a case. 9. CONFINEMENT IN THE P EN IT E NT I A ET. ( After stating residence and marriage, ■proceed as follows:) And the said petitioner further saith that, afterward, to-wit, at the term of the Court of Common Pleas, within and for the county of , the said C D was duly convicted of the crime of grand larceny, and then and there duly sentenced by said court to confinement in the penitentiary of this State for the term of years, and that in pursuance of the said senteftce J;he said D is now confined in the penitentiary of the said State of Ohio. 10. AVERMENTS TO OBTAIN INJUNCTION. (^ After Stating the cause for divorce, proceed as follows:) And the said petitioner further saith C D is possessed of the following goods and chat- ties, to-wit, {here describe them,) and is also seized in fee of the follow- ing real estate, to-wit, {here describe this,) and the said petitioner further saith that the said defendant threatens and is about to sell and dispose of all of said property, as well real as person^, and convert the proceeds into XIJX.]' DIVOECE AND ALBttOIirY. 775 Forms — Petition. money, and remove with the same beyond the jurisdiction of this State, ■whereby your petitioner will be wholly left destitute and without the means of support; and she further charges that the said defendant also threatens and is making preparation to take the custody of the said children from your petitioner, and, also, to take the same with him in his removal from the said State of Ohio. Pray after that for Answer: — And meantime your petitioner prays that the said D may be restrained by the injunction of this court from sell- ing, disposing of or taking from the possession of your petitioner any of the said personal or real estate, or in disturbing your petitioner in the use of the same, and also from removing the said children from the custody of your petitioner, or in any wise disturbing her in the use, nurture, educa- tion, and control of the same; and that on the final hearing, etc. 11. PETITION FOR ALIMONT. To the Court of Common Pleas, within and for the county of , and State of Ohio: Your petitioner, A B, of the county of , represents that she has been a resident of this State for more than a year last past, and is now a bona fide resident of the said county of Your petitioner further saith that, on or about the day of , A. D. 18 , at , she was married to one C D, of , whom she prays may be made a defendant to this her petition; and lived with the said C D as a faithful and obedient wife, until on or about the day of , A. D. 18 , when the said C D, as she avers, regardless of his marital duties toward your petitioner, willfully abandoned your petitioner without good cause therefor, and has since wholly refused to provide for the support of your petitioner. Your petitioner, therefore, prays that the writ of subpoena may issue against the said C D, that he may be compelled to answer all and singular the premises; and that on the final hearing of this cause, the said defendant may be decreed to pay your petitioner reasonable alimony, and for such other and further relief as the nature of her case in equity may require. AB, By E F, her Attorney. If the plaintiff wishes to secure for alimony any particular property, she must set forth a description of it as given before. So, too, in case she wishes to prevent a sale by injunction. 776 DIVOECE AND ALIMONY. [CHAP. Forms — Petition. The causes will be stated as in a petition for a divorce. No persov.al decree for alimony can be rendered, unless process can be served on- the defendant; but property here can be reached and approj..i iated by a suit, in which only service by publication can be had. The decree in such a case only operates on the property, of which the court has jurisdiction. If the property is described in the petition, the wife's lien would date from the pendency of the suit; as against the judgment of creditors. In other cases the lien would only attach from the rendei'ing of the decree. Hamlin's Lessee v. Bevan, 7 Ohio Rep. part i, 161; Olin v. Hungerford etal. 10 Ohio Rep. 268. It is best to insert the description of the property. Such seems to be the ruling in Lattier v. Lattier, 5 Ohio Rep. 538. Wliere alimony and divorce are both sought, the court seem to hold that the petition should set forth, as near as may be, the kind and amount of personal property, and describe the real estate. This may be convenient; but can not be necessary. Tlie amount of property is only evidence by which to estimate the amount of alimony to be given; alimony does not depend on the having property, but on the acts enumerated in the statute. la. PETITION TO KEACH PROPERTY SOLD DT FRAUD OP THE RIGHTS OF THE WIFE. To the Court of Common Pleas, within and for the County of , and State of Ohio: Your petitioner, A B, of , represents that she has been a resident of this State for more than a year last past, and that she is now a bona fide resident of the said county of Your petitioner further shows that, on or about the day of , A. D. 18 , at , she was married to one C D, whom she prays may be made a party defendant to this her petition; and that she continued to cohabit with the said C D, as a fiiithful and dutiful wife, until on or about the day of- , A. D. 18 , when the said C D, as she avers, was guilty of extreme ci-uelty toward this petitioner, and fi-om thence has wholly refused to support the said petitioner with any means whatever. And your petitioner further saith that on the day of , A. D. 18 , she filed in this court a petition against the said C D, charging therein that the said C D had been guilty of extreme cruelty, as aforesaid, and asking therein for a divorce against the said C D, and for her reason- able alimony. XLIX.] DIVOECE AND ALTMONT. 777 Forms — Decree. And the said petitioner further saith that the said C D, in order to defraud the petitioner, and prevent lier from obtaining a satisfaction for any decree for alimony she iriight obtain against him on said petition now pending, did, on or about the day of , A. D. 18 , sell, transfer, and convey, without consideration, to one E F, whom your peti- tioner prays may be made a party defendant to this her petition, all his real and personal estate, to-wit, [here state the property transferred, whether real or personal;) and the said petitioner charges that the said sale and transfer was made for the purpose afoi-esaid by the said C D, and that the said E F knew that such was the object and intent of the said C D. Your petitioner, therefoi-e, prays that the writ of subpoena may issue against the said C D and E F; that they may be compelled to answer, all and singular, the premises; and that, meantime, the said defendants may be enjoined from selling, transferring, or in any wise changing, the condi- tion and title of said property, or the lelation now existing between the said C D and E F, with reference thereto; and that, on the final hearing of this petition, the said conveyances and transfers may be set aside, and held for nought as against the just rights of the petitioner, and that said property may be appropriated to satisfy her deciee for alimony in the case so pending against the said C D, for divorce and alimony, and for such other and further relief as equity and good conscience may require. AB, By N 0, her Attorney. The decree in such a case wduld find the facts charged, -the amount of alimony decreed in the other case, and then apply the property included in this case to a satisfation of the alimony decreed in the other. A receiver may be appointed to take charge of the property, and collect the rents and issues thereof for the payment of the alimony. Where the petition is for alimony alone, it is supposed that the whole matter may be embraced in a single petition. 13. DECEEB FOR DIVOKOE, WHERE THERE IS NO PERSONAL SEBTT3B. A B,} V. [■ Petition for Divorce. C D.) And now came the said A B, by E F, her attorney, and tlicronpon . tl-.is cause came on for hearing upon the petition and testimony, and was argued by counsel; on consideration whereof, the court do find that due notice of the filing and pendency of this petition was given to the said defendant, according to law; and the court do further find that the said 778 DIVOECE AKD ALIMONY. [CHAP. Forms — Decree. defendant has been willfully absent from the said petitioner more than three years prior to the filing of said petition; it is therefore adjudged and decreed that the marriage relation heretofore existing between the said parties be, and the same is,- hereby set aside and wholly annulled, and the said parties wholly released from the obligations of the same; and it is further ordered that the said complainant be restored to her maiden name of , and that she pay the costs of this suit in ten days or that execution issue therefor. Where there is personal service, and no answer, the entry will be like the above, leaving out 'the finding of the giving of the notice. 14. DECRB.E WEEKS AN^SWEB AND DEFENSE. AB, Petition for Divorce. V. ■ CD. This day came the said parties, by their attorneys, and thereupon this cause came on to be heard upon the petition of the said plaintiff, answer of the defendant, and testimony, and was argued by counsel; on consider- ation whereof, the court find that the said parties were married as in said petition is averred, and that the said defendant did commit adultery with the said , as is in said petition set forth and averred. It is therefore adjudged and decreed that the said marriage, etc., (as in last form.) 15. DEGREE FOB ALIUONT. ( The decree for alimany is similar to the above; finds the truth of the charge, and then proceeds to adjudge and decree:) that the Said defendant do pay to the said plaintiff, for her reasonable alimony, the sum of dollars; one-fourth of the same in ten days, one-fourth in six months, one- fourth in one year, and one-fourth in two years. Or, that he pay annually to the said petitioner, during the joint lives of the said plaintiff and defendant, the sum of $ , to be paid, one- half on the first days of January and July in each and every year; and that in case any of said sums remain unpaid for ten days after the same become payable, an execution may issue against the said defendant in. favor of the said plaintiff, to collect the same; and it is further ordered that the said defendant pay the costs of this suit, in ten days, or that execution issue therefor. XLIX.J DIVOECE AND ALIMONY. 779 Forms — Decree. A gross sum may be allowed as alimony on a decree for a divorce, and it may be paid in gross, or by installments, at the discretion of the court; and an execution may issue to enforce the collection of the same. Piatt V. Piatt, 9 Ohio Rep. 37, 41. 16., DBOBEE AS TO CHILDREN. And it is further ordered that the custody, nurture, education, and care of the said, (here give the names and ages of the children,) be, and the same is, hereby given to the said petitioner, and the said defendant is hereby forever enjoined from interfering with, or disturbing, the said petitioner, in the custody, nurture, education, and care of the ;said above-named chil- dren, until the further order of this court. Provision may be made for the party seeing the children at proper times. This is not, however, usual, unless there are particular reasons for it. 17. DECREE FOR ALIMONY IN PEOPBRTT. And it is further adjudged and decreed that the said petitioner do have and enjoy and possess for alimony, the following personal property, with the right to use, sell, or dispose thereof at her pleasure, to-wit: all her wearing apparel and all the household and kitchen furniture now in' the possession of the said petitioner, (or now in the family residence of the said defendant,) [here state any other property appropriated to her;) and it is further adjudged and decreed that the said petitioner do also have, pos- sess, and enjoy, as and for alimony, the following real estate described in said petition, to-wit, (here describe the land, etc.;) and the said defendant is hereby enjoined from interfering with, or in any wise disturbing, the said petitioner in her use, occupation, and enjoyment of the said property, as well personal as real; and the said petitioner is hereby authorized to use, enjoy, and improve the said property, as her separate estate, without the interference or hindrance of the said defendant, during the joint lives of the said parties, or until the further- order of this court. ^DDEISTDJ^L. 1. Parties Plahfiiiff, page 8, The code requires the party in interest to be plaintiflF. There are cer- tain exceptions as to bills, notes, etc. These exceptions must be limited to cases where, there is a bona fide transfer of interest. The real party in interest can not transfer a note, bill, contract, etc., in trust for himself so as to authorize a suit in another name than his own. If this can be done, then this part of the code is senseless; since parties can, at will, change the pei'sons who are to be plaintiffs. The indorser, or assignor, must be divested of all interest, or the suit must be in his name; he can not indorse or assign a contract for his own use, in order to avoid being himself the plaintiff. 2. Insane Defendants, page 39. It is here intimated that the code provides no means for instituting a suit against an insane person. It provides no means for admitting one to defend for such a person, as it does in the ease of a minor; and yet section • 100 provides that the guardian of an infant, or person of unsound mind, shall deny in the answer all the allegations of the petition. , This section implies a guardian to defend for an insane person, while no provision is made for his appointment, or for a service on one appointed under the statute. Section 25 (1 S. & C. St. 384,) of the act for the organization of courts, provides that where a party to a suit shall be an idiot, lunatic, or insane person, and shall appear by his guardian or trustee, the court shall see that he faithfully performs his duty. This section also implies that a lunatic or idiot can be sued; and where title to real estate is to be affected, it is absolutely necessary that a lunatic interested in it should be capable of being sued. (780) ADDENDA. 781 The code does not provide for the appointment of a guardian; hence he must be appointed under the provisions of the stjitute relating to insane persons. No suit can be prosecuted until a guardian has been so appointed. The petition should then aver the insanity, and the appointment of a guar- dian and his name. Service must be made on the guardian, as if he were defendant; and he must appear, and answer and defend the action for his ward. 3. Indorsement of Summons, Note to Section 67, pages 1 9, 20. Since this part of the work was written, I have more carefiilly compared and considered the code as a whole. The commissioners do not always use the same language, when they must mean the same thing. The difference between the language of section 57, and that of section 263, led me to infer it was designed to indicate a difference in the scope of the words, actions for the recovery of money only, and actions for the recovery of money. la the New York code, the word only is retained in section 263. The lan- guage, too, of section 57 is calculated to mislead. Th^ indorsement is to bi3 the amount furnished in the precipe, 'for which, with interest, judgment will be taken. Now, where the action is for the recovery of damages, as in covenant, or tort, interest on the amount claimed can not be recovered; the sum claimed is damages, beyond which the verdict can not go. This section, (67,) by itself, seems to require an indorsement only in those cases where the amount claimed is a sum certain, with interest thereon from a fixed date. It seems to be restricted to the cftses mentioned in sections 112 and 122; and such was then my best impression; but on further examina- tion I doubt its correctness. In section 631, relating to costs, the same language is found as in sec- tion 67. The plaintiff is entitled to costs, of course, in actions for the recovery of money only. This language must be construed as broadly as that in section 263, though the word only is added in section 631, andbot in 263. It can not be supposed that costs in actions for torts were to be left to the discretion of the court. This would be an outrage too gross to be attributed to any man. Hence it seems to be clear that these words, actions for the recovery of money, or for the recovery of money only, must be construed to include the same actions; and that in all actions where the parties are entitled to a trial by jury, there the plaintiff must indorse the amount claimed upon his summons; and, on obtaining a verdict, he is also , entitled to a judgment for costs. This indorsement will, of course, vary according to the nature of the claim, and hence according to the prayer of the petition. If the claim is one where interest is claimed fWm a fixed date then the indorsement must state not only the amotint, but the timei 51 782 ADDENDA. from which "interest is claimed; if the case is one sounding in damages, then the indorsement will simply state the sum claimed as damages. Section 112 shows that the indorsement for a sum with interest is re- quired in all actions founded upon contracts, express or implied, jor the payment of money only; in all other cases, the indorsement must be for a sum claimed as damages. If a different rate of interest is claimed than that fixed by law, the ia dorsement should show this fact; since judgment can not be rendered for a greater sum than that demanded. * It has been held that, if an indorsement for money is made in an action seeking other relief than a judgment for money, no judgment can be ren- dered on a default. The reason for it is, that the indorsement is a notice to the defendant that the judgment asked is only a judgment for the money stated in the indorsement on the writ. Wiis decision, made first by Ghol- son, J., in the Superior Court of Cincinnifti, was followed b)' Nash, J., in a case decided at the Washington Common Pleas, October term, A. D. 1866; and it is believed to be the true construction of the code. If a party appears and puts in his answer, it is presumed that this would be a waiver of any such irregularity. 1. FOKU OF INDOESGMENT. The plaintiff asks judgment for $ , debt, together with interes thereon from the day of , A. D. 18 , (ai tlie rate of per cent., if more than six per cent, is demanded.) a. FORM OP INDOKSEMBNT. The plaintiff asks judgment for $ , damages. These two forms will indicate the nature of the action, and what the prayer of the petition is. ^. Pleading Conditions; Note to Sec. \Z\, pages 51, 166, 299, 300, 301. Where there is a general averment of the performance of conditions precedent, the English practice, as to the mode of defense, is founded in good sense, and ought to be followed here. If the petition sets out the entire contract, with all the conditions, the answer may then deny the performance of any one of these conditions so stated. This, in such a case, is all that is necessary. But, if the petition does not set forth the conditions specifically, the defendant must then set forth the condition which he claims has not been ADDENDA. 783 performed, and then negative its performance, and in that way raise a dis- tinct issue upon its performance. There are numerous English cases which exhibit pleas of this character. See 10 M. and W. 464; 12 M. and W. 688; 22 Eng. L. and Eq. Rep. 489; 25 do. 552. 5. Heading to Forms. In drawing up the various forms, I added a heading; but to compress the work within reasonable limits, and thereby lessen its price to the pro- fession, it was thought best to omit these headings. It will, however, be seen that the form implies a proper heading. The code points out what the heading of a petition should contain, and the answer, reply, demurrer, and motions, should probably be in the same form, with the exception that the name of the case should be followed by the word, petition, answer, reply, demurrer, or motion, with a brief description of its character. I leave the name of the case, as stated in the petition, in all subsequent entries and pleadings, without any regard to whether the pleading is filed by the plain- tiff or defendant. The code seems to.imply this, by enacting that the name of the case should not be changed during its progress. Pleadings will be headed with the name of the county, the name of the court, the name of the case, followed by petition, answer, reply, demurrer, or motion, as the case may be, as follows. The name of the State is unnecessary. County, ss. ) Court of Common Pleas.) A B, Plamtiff, )^ Petition; Answer; Reply; Demurrer to Petition, or An _ _ J''. , ^ swer, or Reply; Motion to strike out, etc. C D, Defendant.) ^ •' The headings for entries to be inserted in the records of the court need nothing but the name of the case, followed with the word petition, or civil action. It might be well also to follow this with a brief statement of the character of the case, whether for debt, damages, the recovery of specific ' personal property, the recovery of specific real property. This classification will embrace all actions at law. Civil actions for debt will include all cases where the affidavit applies to the sum claimed; damages, all other actions for the recovery of money only. The other two classes are easily understood. The attorney might add' this classification to the word petition, which would serve as a guide for the clerk. In cases founded upon principles of equity,' the character of the case might also be added; as for an account, to set aside a deed, for specifie 784 ADDENDA. per/or'((ia^ce, for the surrender of notes, bills of exchange, or contracts; on a note and xnortgage, etc. These hints will enable the court, from a glance at the docket, to understand the nature of the case. Entries or orders made out of court will require the following heading; County, ss. ) Court of Common Pleas.) A B, Plaintiff, ) V. ■ Civil Action for, etc. C D, Defendant. In all writs, orders, subpoenas, attachments, etc., directed by a judg^ or court to an oflficer, the heading should be as follows: The State of Ohio, County, ss. To the Sheriff of County, Greeting: All notices should be headed like a petition, with name of county, court, parties, followed with the word, notice. 6. Service on Corporations, page 21. Bank of Athena, V. Marietta & Cin. R. R. Co., and Cook and Campbell. ► Athens Com. Pleas, May T. 1858. This was an action brought' by the plaintiff on a bill of exchange drawn by the M. & C. R. R. Co., and payable to Cook, and indorsed. by him to Campbell. The defendants, Cook and Campbell, set up in their answer that they are residents of Ross County, and that service was made on t,hem in that county ; and further, that the principal oflBce of the R. R. Co. was in Chillicolhe, in said county of Ross, and that no summons had been issued against the R. R. Co. in Athens Co., but that it had been sent to the sheriff of Ross Co., and there served on the president of the said R. R. Co. The plaintiff replied, setting up that the road of said R. R; Co. passed through the said county of Athens. There was a demurrer to this replication. Green, for defendants, Cook and Campbell, claimed that there had been no sufficient service ; that a summons must first issue to the sheriff of Athens Co. V. the R. R. Co., before a writ could be sent to Ross Co. v. Cook and Campbell, ADDENiJl. 785 WblcA contra. Nash, J. The section 49 of thd code provides that an actior may be brought against a R. BL. Co. in any county through or into which sue), road or line passes. The effect of this clause is to settle the jurisdiction, the county in which such action may be brought ; as the line of the railroad runs through this county, the action is rightly bi'ought here as agairist the rail- road company. The next question presented is, has a legal service been made upon the railroad ? The summons was sent to and served in Ross County- on the president of the R. R. Co. Section 46 points out how a service must be made on a corporation, and the clear effect of the section is that service must be made in the county where its principal office is situated. Section 48 provides that actions against corporations may be brought in the county in which is situated its principal office, or place of business. These two sections show clearly that an action against corporations, generally, is to be brought, and service made, in the county where the principal office is ; and sec- tion 49 merely provides that actions against a railroad corppration may be brought in any other county through which its line passed; hence, while the action may be brought in another county, the service is to be made as though brought in the county where the principal office is situated. Sec. 66 requires a service to be made, and points out the mode of making it, and this mode so pointed out is applicable only to the county where this principal office is situated. The sheriff must serve the summons on certain named officers, if they are found in his county, and if none of these can be found, then by a copy left at the office of the corporation witli the pei-son having charge of the same. Now this service cannot be made, unless the summons is i.ssued to the sheriff of the county, in which this principal office is situated. By sec- tion 49 this action is rightly brought in this county, and by section 66, the Summons was rightly issued to and served in the county of Ross ; and hence the M. & C. R. R.Co. is legally in court. Are the other defendants in court? This depends upon the construction of section 38 ; by section 38 it is provided that an action may be brought against all the parties to a note or bill, whether makers, drawers, or indors- ers, etc., though the parties are only severally liable. Cook and Campbell are indorsers of this bill, drawn by the M. & C. R. R. Co. ; and hence may be included in an action against the railroad company. Section 68 provides tliat where an action is righdy brought in any county according to any pro- visions of Title 4, a summons shall be issued to any, other county against one or more of the defendants. We have seen that this action is rightly brought in this county against the railroad company, and hence by section 68 a sum- mons could be issued against any .person rightly joined in the action to any* other county where such person could be found. The plaintiff in this case 786 ADDENDA. then had a right to issue his summons to Ross Co. against Cook and Camp- bell, where they were known to reside and only could be served. Unless this is the proper construction, then a joint action against a railroad and others can only be brought in the county where its principal oflSce is situated. This can hardly have been the intention of the code, nor is it consistent with the language of section 68. The demurrer is therefore oyerruled, and defend- ants, Cook and Campbell, are required to answer over to the action. 7. Action for Tort on Contracts, page 33. Since the first edition of this work was published, I have had this section of the code under consideration, and am led to doubt the propriety of the rule laid down in New York, that contract and tort cannot in any case be joined ; 1 have been led to think they can be, when the two causes of action |row out of the same transaction. The question has been presented in various forms. One was an action brought on a sale of a horse ; the first count alleging a warranty that the horse was sound ; the second for a fraud in representing the horse to have been not over nine years of age. Hence, the two causes of action grow out of the same transaction, and could have ■ been joined before the code by framing the first count as a fraudulent war- ranty ; but this cannot now be done, since the truth is in all cases to be averred in pleading. It was held that contract and tort might be joined in such a case. The same question came up again in Lasher v. Waterman, in Miegs Co. The first count was for use and occupation of certain real estate ; the second count averred that while defendant occupied the land stated in the first count, he committed certain waste thereon ; and on demurrer, the propriety of this joinder was raised. The court on- consideration held that these two causes of action were connected with the same subject of action and grew out of the same transaction. The defendant held the land under a lease, and while so holding it, violated the duty laid upon him by law, by commit- ting the waste complained of in this second count. It seems hardly reason- able to require two actions to settle the question of waste, 'when an action is pending for the rent. The two causes of action clearly grow out of the same transaction, to wit, the contract of lease by which the defendant occu- pied tbs premises. If this view of this section is correct, then any and all causes f action may be united where they grow out of the same transaction, or transactions growing out of the subject of action ; unless such is the case, contract and tort cannot be joined. The only doubt which can be suggested as to the correctness of this view is, whether waste committed by ADDENDA. 787 one on premises held by lease, can be said to grow but of tlie same transac- tion as that wliich compels him to pay the rent ? AVhere there is an actual lease with covenants against waste, there can be no difficulty; as in such a case a count can be framed in contract; but ought there to be any difference where the party is in under such circumstances as compels the plaintiff to sue for use and occupation ? It was thought ilot, and it was therefore held that the two counts could be joined. 8. Filing copies of Accounts, page 88. M'Carley & Davis, |^ District Court, Scioto Co., April Term, 1858. Slothouer Mathews & Co. J P^"^^^°'' ^^'^' Whitman and Nash, J. J. This was a petition in error to'the judgment of the Court of Common Pleas of Gallia County, submitted in this county under the written assent of the parties. The action was brought on a note and mortgage, seeking to recover the amount due and asking for a sale of the mortgaged premises. The defend- ants objected to the rendition of a judgment, because no copy of the note or mortgage had been filed with the petition ; the court, however, rendered judgment, and this petition in error is prosecuted to obtain a reversal of the judgment. Br THE Court. This record calls for a construction of the section 1 1 7 of the code. By this section, the plaintiff is required when his action is founded on an account, or on a note, bill, or other written instrument as evidence of indebtedness, to file a copy of such, account, note, bill, or instrument in writing, wilh his petition. We may refer for aid in construing this section 1 17 to those sections, which regulate the indorsement on the summons, the trial by jury, and the recovery of costs. In actions for the recovery of money only, the plaintiff is to indorse on the summons the sum clajmed ; the parties are entitled to a trial by jury, and costs of right follow the judgment. This language, actions for the recovery of m,oney only, has been construed to embrace only what were called actions at common law ; actions founded upon principles of equity are held not to be included ; hence it was held that no indorsement was necessary or proper in an action founded or a note and mortgage. The language of section 1 17 is more restricted than that relating to the in- dorsement of the summons, the trial by jury and the recovery of costs. The language here is, not actions for the recovery of money, but actions founded on an accoun*, note, bill, or other written instTUTneni as evidence of indebtedness. 788 ADDENDA. This language clearly does not include all common-law actions ; but only such as are founded on the particular causes enuinerated. These all sound in contract ; hence all actions founded on tort are not embraced ; nor does this language include all actions founded on contract ; but only actions founded on particular kinds of contracts ; contracts evidenced by an account, note, or bill, or written instrument as evidence of indebtedness. By the word account must be meant transactions, which have been substantially kept as an account, including numerous items charged as the same took place; It clearly cannot include a made-up account, a mere bill of particu- lars ; since the same language is found in section 122, permitting a brief mode of declaring. The only other words about which a doubt can be raised, are, or oth^r written instrument as evidence of indebtedness. It is not every writ- ten instrument, a copy of which is to be filed, but only such as are evidence of indebtedness. As these words are preceded by those of note or bill, the usual rule of construction would require the court to hold this written in- strument to be of the kind of those enumerated ; and the words, evidence of indebtedness, imply this very construction. In section 122, the language is, or other written insti'ument for the unconditional payment of money. Is there substantially any difference in the effect of the language used in these two sections? We think not ; a written instrument as evidence of indebtedness must be such as imports an uncoriditional payment of money ; they both im- ply a present indebtedness, and such a written instrument as requires only an averment of the non-payment of the sum stated in it to justify the recovery of that sum. Any written covenant binding a party to pay damages on a failure to do certain acts, cannot be called a written instrument as evidence of indebtedness, or for the unconditional payment of money ; it is evidence of a covenant, not of indebtedness, and a conditional promise to pay money. It seems clear, therefore, that this section 117 applies only to a limited class of actions, and only to such as seek to recover a sum certain due on an account, or note, bill, or written instrument for the unconditional payment of money. Does an actipn founded on a note and mortgage come within this restricted class ? We think not ; the action is first an equitable action, and not there- fore in the language of the code an action for the recovery of money ; if it was, the parties would be entitled to a trial by jury. The action is not founded on a note ; it is founded on the mortgage, to which the note is an incident ; in equity the mortgage is the principal and the note the incident. This action does not then come within either the language, or the spirit of the code. This section cannot be applied to equitable actions ; it must be restricted to common-law actions, and only to such common-law actions as are founded on an account, note, bill, or other written instrument for the unconditional payment of money. The court below did not, therefore, err, and the judgment will be affirmed. ADDEKDA. 789 9. New Trial, page 646. The act of Apiil 12„ 1858, 66 Ohio St. 81, restricts the right of grant- ing new trials. A new or second trial is granted of course in ceriaiu cases ; in actions in which a jury trial is demandable of right. The court in such cases is prohibited from granting a new trial until after a second trial has been had on the demand of the party. A party then cannot have a new trial, however erronoiis the verdict may be, unless he can give secu- rity thai he will pay any second judgment ; hence, a person unable to give Stieh security cannot be relieved even by the court. This is wrong; the right of the court to grant new trials should never have been restricted ; the second trial, as a right, should have been substituted for an appeal ; appli- cable only in those cases, where that court cannot on principle interfere, or will not interfere to set the verdict aside. Under the act regulating appeals, the court was not restricted in its power to grant new trials in proper cases, though the party might have had a remedy by appeal ; nor should this power be restricted as it is under this statute. 10. Judgmertt, page 661. This question, as to whether a judgment could be rendered in an action brought on a joint contract against several, where one of the defendants was found not to be liable, came before the District Court in Hocking County, in September, A. D'. 1856. The action was brought against three on a joint 01 partnership contract. On the trial, one of the defendants was found not t) have been a partner, and hence not liable on the claim. The court. Whitman, Peck and Nash, J. J., held unanimously, that no judgment could be rendered against the two defendants, found to be liable^ on, the claim. The plaintiff must recover according to his allegations, according to the ease made in his petition ; on the evidence there is a fatal vaiiance between the contract declared upon 'and the contract proved. While the code pro- vides in very general language that a judgment may be rendered against one or more defendants ; it does not undertake to declare that it shall, only that it may be, done ; hence, the code supposes there are cases where such a judgment would be improper, and if improper in any case, it must be in such a case as this. The plaintiff then asked leave to amend by striking out the name of the defendant not liable. The court refused to allow of such an amendment ; since it '^ould be in effect the commencement of a new action upon a new contract ; a thing which cannot be done under the name of an amendment. The pla'ntiffi was therefore tion-suited. This decision 790 ADDENDA. follows the plain common-sense view of the code, unless courts are to hold thai there can be no variance between a contract declared on and one proved as to parties. Too many plaintiffs may be joined as well as too many de- fendants, and such judgment shall be rendered as the case proved requires. Is this to be tolerated ? See Note S, p. 806. 11. Cross Petition, pages 43 and 662. The code, as amended April 8, A. D. 1857, 64 Ohio St. 91, contains the following provision. Any defendarvt, who is properly made a d^endanl, may claim in his answer, relief touching the matters in question in the petition, against the plaintiff or against other defendants in the same action. This is a new provision introduced into the code, and needs a careful consideration. We will examine its various terms in their order. 1. The person authorized to ask in his answer for relief must be a de- fendant and a rightful defendant in the action. He must appear to be a necessary party to the case made by the plaintiff ; if he is not Such a defend- ant, he can ask for no relief against any one ; although he may have some claim against a co-defendant, yet he can ask for no relief against him, unless he himself is a necessary defendant to the case made by the plaintiff in his petition. He is not properly made a defendant, unless such is the case. 2. The relief asked must relate to the matters stated in the petition ; relief touching the matters in question in the petition. The relief asked then must grow out of the case made by the plaintiff in his petition ; the defend- ant cannot set up a new claim, and ask for relief on that ; his riglit to relief must depend upon the case stated in the petition, and- not upon a case to be stated by himself. A few examples will make the meaning of this clause more clear, so clear that it may not be misunderstood. A vendee of real estate files a petition to set aside the contract ; the vendor will now be per- mitted not only to deny the right to a rescission of the contract ; but he may go on in his answer and aver performance on his part, and ask that the plaintiff, the vendee, be required to execute said contract of sale. So too, if the vendor applies for a specific performance, the vendee may set up facts, and ask for a rescission of the contract. In all cases, where a plain lifiF asks for the execution of an Agreement, the defendant may not only show that the plaintiff has no right to an execution of it, butjie may also set up such facts as entitle him to a vacation of the contract, and pray that the same may be done. Under the practice in CMIincery, the defendant in such cases could only ADDENDA. 791 defeat the plaintifP's claim; he had himself to bring a suit, if he wished to have the contract set aside ; but under this provision, the defendant can obtain all the relief he would have been entitled to in a separate action. So, if a parly to a note files a petition to set it aside, the defendant may not only deny his right to have it declai-ed void, or rescinded ; he may also claim a judgment against the plaintiff for the amount due him on the note. As to judgments by one defendant against' another. This can seldom occur, though cases do occur, where under this provision, such a judgment might be rendered. If an assignee of a real contract files a petition against vendor and assignor and vendee, and the vendee and assignor was to deny the assignment, or the right of the assignee to a conveyance as against him, he might also ask that his co-defendant, the vendor, might be decreed to convey the land to himself. So where an assignee of a judgment files a petition against the defendant and plaintiff in the judgment, the plaintiff in the judgment, if he denied the right of the assignee, might ask for the benefit of the action as against his co-defendant, as though he had himself filed the petition. In cases, where the amount due on a non-negotiable note has been assigned to two persons, and one of them files a petition against the maker and his co-assignee, the assignee may ask for a judgment against his co-defendant, the maker of the note, for the amount coming to him. Certain parties executed their non-negotiable note to a bank ; the bank, after- waids, assigned one-half of the money due on the note to one, and the other, half to another. The charter of the bank then expired. A bill was then filed by one of the assignees against the makers of the note, and the other Assignee, pi-aying for a judgment against the makers for the sujn due him ; the other assignee set up in an answer his interest and asked for a judgment aoainst his co-defendanis, the makers, for the sum due him on the note; and, , in Kentucky, it was held that such judgment could be rendered. In that Slate, this provision has long constituted a part of the chancery law. In all these cases, it will be seen that the relief grows out of the case made by the plaintiff, and not out of any case set up by the defendant. In these cases, if the plaintiff is not entitled to what he demands, the defend- ant is, on the same case, entitled to some kind of relief; under the old prac- tice, he was compelled to bring a new action to obtain it ; now he can set up his claim to relief in his answer, and if he succeeds in defeating the plaintitt''s case, he becomes entitled to the same relief he would have been, if he had gone into court on the same transaction. In the case of co-defend- ants, the case made by the plaintiff must show that one of the defendants has certain rights to relief against another defendant, growing out of the same contract or transaction, set up by the plaintiff, as the facts constituting his rio-ht of recovery ; as where one cestui que trust files a petition against the trustee and other cestui que trust calling for an account of the trust; all 792 ADDENDA. the ceilui que trusts may have judgments against the trustee for the respect- ive amounts coming to each, juat as though all were plaintiflfs. This provision can only apply to actions founded upon rights heretofore the subject of chancery jurisdiction. In actions at common law, a failure of ihe plaintiff to recover extinguishes not only all the rights of the plaintiff against the defendant, but of the defendant against the plaintiff, growing out of the case made by the plaintiff. A failure to recover on a note, or other contract, extinguishes those contracts as much as, though they were set aside in equity ; but in the cases put, a &ilure of the plaintiff to recover on the case made by himself,, leaves in the defendant a right to relief against the plaintiff on the same transaction. This state of things can hardly arise except in a case founded upon principles of equity. 12. Answers at Law, page 669. Watkins et als., J V. V Miegs Com. Pleas, May Term, A. D. 1858. Eussel French. ) This was a real action brought by the plaintiffs as'heirs at law of one Monroe French, to recover certain real estate of which the said Monroe died seized in fee. The defendant pleaded that he did not unlawfully detain the possession of said real estate from said plaintiffs. On the trial the defendant offered to prove that said Monroe French was his son ; that said premises were purchased and paid for by said defendant,' and title taken in his son's name for use of defendant ; to this evidence the plaintiffs objected. Nye and Cartwright, for Pl'ff. Plants and Simpson, for Deft. Nash, J. The code provides that equitable defense may be interposed in all actions ; and the' question now presented is whether the evidence offered presents an equitable defense ? The facts offered to be proved, show a resulting trust in the defendant, a right in equity to have this land conveyed to him ; but this right is one thing and a defense to this action is another. Where there is a subsisting contract between the parties, upon which either party may maintain ^n action, as between vendor and vendee, then the tenant may set up this contract to defeat a right to recover the possession of the land by the vendor ; since the vendee is rightfully in possession ; it shows the plaintiff has misconceived his remedy ; he should sue for a specific exe- cution of his contract. This view of the law is presented in the Practice and Pleading, 656. But in this case, there is no mutual rights of action independ- ent of the one now being, presented. These plaintiffs can prosecute no other ADDENDA. 793 action than a real action ; if then they are'defeated in thia action, it is not because they have misconceived their remedy, but because they have no right of action. Now they have a right of action, since the legal title is in them, unless the court shall hold that the Jaw regulating the conveyance of real estate is repealed by the code ; for if the defendant is allowed to defeat a recovery, he does it without any title by deed ; nor is any deed needed ; since a mere equity proved by parol becomes equal and superior to a title evi- denced by deed. Is it probable that the' legislature intended thus to throw titles to real- estate open to all the uncertainties incident to parol testimony ? ^f so, why is not the statute regulating deeds and conveyances of real estate repealed ? Xlje defense set up here is an equitable right to a conveyance, not a con- tract on the part of the holder of the title for the possession of the land by the defendant ; hence, the defendant's right to possession is a mere incident to his equity for a deed ; it is a right to 'possession, when he shall have en- forced his right in equity to a conveyance. It is not like the case of vendor and vendee, where the vendee is rightfully in possession under a subsisting contract with the plaintiff himself; in such a case either party has a com- I plete remedy under the contract ; but in this case, the plaintiffs have no other remedy than a real action ; nor does a recovery in this action preclude the defendant from setting up and enforcing his resulting trust in a future action ; since in this action nothing is decided outside of the legal title and its, effect on the rights of the parties in this action. The defendant's right is a right to a conveyance, not to the present possession of the land ; that follows the legal title, unless the holder of it has by contract deprived him- self of the immediate right to this possession. This evidence then does not tend to prove a right to the possession of the premises in the defendant, the only fact here in issue ; nor does it tend to prove that the plaintiffs have misconceived their remedy, since this is the only remedy of which their rights admit. The defendant may have a right of action founded upon his equity ; but, before the facts upon which that right depends can be offered in evidence, he must found an action upon them, and frame his petition so as to put those facts in issue. It would be a surprise upon the plaintiffs to allow such a claim to be set up in this action, since no judgment for a con- veyance can be rendered in favor of the defendant. This is not matter of defense against the plaintiff's right of action, but an indepeuuent right of action vested in the defendant. The idea that a right of action in the de- fendant can be enforced by way of answer, unless this right of action con- stitutes a counter-claim or set-off, is nowhere .countenanced by the code ; the new matter in an answer must constitute a defense, counter-claim, or set- off; the evidence here offered constitutes neither a defense, counter-claim, or set-off ; and hence, it could not be set up in an answer ; much less can 794 ADDENDA. it be offered in evidence without answer. The right to set up a counter- claim does not apply to a real action ; the answer in such an action must either deny the title of the plaintiff, or that the defendant wrongfMy with- holds the possession. These are the only issues provided by the code in a real action ; and can it be supposed that the legislature designed to permit such a defense as this without even providing for placing it upon record ? I think not. The equity, which can be offered in evidence to defeat a real action, must be such as shows the defendant rightfully in possession under the plaintiff by virtue of a subsisting contract, and that the plaintiff has another remedy on that contract, suited to the real rights between the parties ; but where the plaintiff has no other remedy, then nothing can be admitted in evidence, which does not tend to disprove this title, or show that the defendant rightfully holds the possession under some lease or contract with the holder of the legal title. In this case, the evidence tends to show that the plaintiffs are trustees of this title for the defendant. The law pro- vides a specific I'emedy between trustee and cestui qui trust, and that is by an action founded upon the trust ; except in this mode, the cestii,i qui trust, has no right to dispute the legal title of his trustee. Such being the opin- ion of the court, this evidence must be excluded. . 13. Appeals, page 739. The act of April 12, 1868, 55 Ohio St. 81, changes the law in relation to appeals. No appeal is now allowed in an action where either party has the right by law to demand a trial by jury, but appeals are limited to actions in which the parties are not entitled to a trial by jury ; the appeal may be not only from a final judgment, but from interlocutory orders dissolving injunctions. To justify an appeal or a second trial, the action must be one in which the Court of Common Pleas has original jurisdiction. In actions coming into the Common Pleas by appeal from Justices of the Peace, no appeal or second trial is allowed. In actions originating in the Common Pleas, in which a trial by jury is a right of the parties, the piarty against whom any judgment is rendered may have a second trial on the following terms : — At the term at which judgment is rendered, the party wishing for a new trial, shall enter on the records of the court notice of his intention to demand such second trial. In case of such demand for a new trial, the party shall enter into an un- dertaking with security to the satisfaction of the clerk, payable to the adverse party in such sum as the court may fix, conditioned that the party shall abide and perform the order and judgment of the court and pay all moneys, costs and damages which may be awarded against him. ADDENDA. . 795 No, time is fixed for the giving of this bond. Must it be given at once, during the term, or at any time thereafter ? In appeal cases, the term of thirty days was allowed to give the undertaking in. As no time is given, it would seem that the security must be given at once, or else the party may give it at any length of time thereafter. There is here a palpable omission in the law, which must be supplied, if the advantage of a second trial is to be secured to parties. FOEMS. 1. NOTICE OP A DEMAND FOE A SECOND TEIAL, TO BE ENTEBBD ATTER THE JUDGMENT. And thereupon comes the said , (the party demanding second trial) and enters here a notice of his intention to demand and have a second trial in this action ; and the court being of the opinion that the parties in this action are entitled to a trial by jury, do allow the same and fix the amount of the undertaking to be given at dollars. Note. — The amount" is to be fixed by the court in all cases. The rule should be in a money judgment double its amount, and never less than a eum sufficient to cover all costs in the case. a. UNDEKTAKING. Whereas did enter a notice at the term of the Court of Common Pleas, within and for the county of , of a demand for a second trial in an action wherein the said , was , and one was , and in which ac- tion a judgment had then and there been rendered against the said , and whereas the said court did then and there fix the amount of the undertaking in the sum of $ Now we ; principal, and , as sureties, do undertake and agree with the said , in the sum of $ , that the said , shall abide and perform the order and judgment of the court, and pay all moneys, costs, and damages which may be required of, or awarded against the said consequent upon such second trial. Given under our hands this day of , A. D. 18 . I, A B, clerk of said Court of Common Pleas, do approve of said under« taking and sureties, this day of , A. D. 18 . AB Clerk. N'OTES. Note A, page 11. This question came before the District Court, in Athens Co., at its September Term A. D. 1858, in the case of Arms v. Cooper. The ease was a petition in error, setting forth for error that Uie subject of action was an account, and the assignee liad not made the assignor a, party. The court, Nash, PeolE and Whitmau, J. J., held that the as- signor was a necessary party. The section 25 of the code provides that the action must be prosecuted in the name of the real party in interest ; this provision requires that in a case like the present the assignee must prosecute the suit in his own name, he being the real party in interest, since the money, when collected, is coming to him ; but this construction of section 25 does not settle the question here presented ; it simply settles that the assignor cannot be the plainliff in the action. The question, whether he is not a necessary party, still remains unanswered. Whether he Is, or is not, a necessary party will depend upon a proper construction of section 35. Section 35 is in these words ; " Any person may be made a defendant, who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein." In this action there were two questions involved; Jirst, the truth of the account, and second, the truth of the a.ssignment ; to a complete determination or settlement of the first ques- tion, the assignor is a necessary party ; because, unless he is a party, the finding of the assignment will not protect the defendant, nor conclude the assignor. If the assignor denies the assignment, he can sue the debtor ; and the debtor must then prove the as- signment of the account in order to protect himself against a second recovery. Tlie de- fendant has a right to have himself pi'otected against such a contingency, and this can only be done, by requiring the assignor to be made a party defendant in the action, by which the possibility of injury to him is avoided without inconvenience or injuiy to the plaintiff. By this mo3e of proceeding, the rights of all the parties will be protected and concluded ; the truth of the assignment will be conclusively settled and determined as well as the truth of the account ; any other construction of the code will leave both of the questions undetermined so far as the rights of the assignor are concerned ; unless thei) the assignor is made a defendant, there cannot be a complete determination and settleraeijt of the questions involved in the action. The judgment was therefore reversed and the cause remanded for further proceedings. JT T E B, page 20. The writ must be indorsed, if the action is brought for the recovery of money only. This language is applicable to what were formerly known as actions at law, and in which, by the code, the plaintiff is entitledtto a trial by juiy and of course to a judg- ment for costs, if he obtains a judgment for his rZebt or damages. In actions founded on 52 ' ng?) 798 NOTES. equitable law, no indorsement should be mnde in such actions as the parties are not entitled to a triiil by jui'y and costs arc at the discretion of the court. See sections 263, 551. .Where a summons, issued in an action founded on note and mortgage, was in- dorsed with Ihe amoimt claimed to be due, tlie Superior Court of CinciiinatMield the indorsement wrong and tlie service bad, as calculated to mislead the dcfindant/; but Tvhere the indorsement showed that the action was brought on note and mortgage and that judgment would be demanded for a fixed amount and for a sale of the mortgaged premises, the Court of Common Pleas, Washington Co. held the service good, though no indorsement was required, yet, as the indorsement truly notified the defendant of the grounds of the action and tlie character of the judgment demanded, the service was still good ; the indorsement in the last case could not mislead the defendant while in the former it could. See Note, page 781. Note C, page 20. Indorsement when ihe Action is for a Deht, The plaintiff in this action claims judgment for the sum of $ , together wi± interest thereon from the - day of , A. D. 185 . Attest, W. S., Clerk. Note T), page 20. The subject of the indorsement to be made on the writ came up for consideration before the District Court, in Washington Co., at its September Term, A. D. 1858, in the case of Towsly &, Lord o Franks. Nash, Peck and Whitman, J. J. The action below, as disclosed in the petition, was founded upon the sale and delivery and initting up of a steam engine on certain premises of the plaintiffs in error, which are described in the petition ; the petition set forth facts justifying hi.s right to a mrclia- nic's lien upon the premises for the machinerj- so sold and put up, and asked for a judgment for the money and a sale of the property. A summons was issued and the following indorsement entered upon it. " Amount claimed, $887.88, with interest from May 4, 16.')3, less certain credits st.ated." This summons was returned dnlj- served, and a judgment by default was rendered in the case, finding a liisn, and Uie amount due, and rendeiing judgment for the amount due, and ordering a sale of the prenii.=es in case the sum so found due was not paid within a time stated. To reverse this judg- ment, this petition in error is prosecuted. The court held that in this ease no indorsement was necessary, the action not being an action for the recovery of money only. Tlie action is founded upon principles of equity, and not upon a common-law right ; hence, this indorsement was calculated to mislead the defendant; he had a right from this indorsement to infer that a simple judgment for the sum indorsed was all that the plaintiff demanded in his action. This irregularity had not been waived, as the judgment was taken on a default The service in this action was not a good service for the judgment rendered ; the writ as served did not truly indicate the nature of the action, nor of the judgment which was rendered in the case. Hence, we think there was error in the rendition of the judgment, and the same must be reversed, and the cause remanded for furttcr proceedings. NOTES. 799 Note. E, page 22. Ill actions against railroad companies under section 49, tlie summons must be issued to and served in the county Avliere the principal office is, though the action may be brought in another county. See note of case of Bank of Athens i). M. & Oin. K. R. C, and Cook and Campbell, in the Addenda, page 784. Note F, pago 71. But while the specific relief may not be set up as a defense, yet the facts may show that the plaintiff has no right to recover in (his action. Where one is legally in posses- sion of real estate under a contract of purchase, or otherwise, the tenant may show • these facts to defeat. a real action ; since they show that he does not wrongfully detain the possession ; but this question will be discussed fully under the head ofreal actions, and need >iiot be prosecuted here. In personal action the new matter must be such as in equity defeats the plaintiff's right to recover on tlie cause of action set up in the pe- tition. If the defendant admits the plaintiff's right to recover on the cause of action by him set up in the petition, he can plead no equitable or other matter, unless it con- stitutes a counter-claim or set-off. Note G, page 88, In the case of Arms & Stimpson v. Martin, decided by Nash, Peck and Whitman, J. J., at the September Term, 1858, of the District Court, in Athens Co., this section 117 again eame under considel'ation. The error assigned was, that the court*efused to sus- tain 'a motion to compel the plaintiff to file a copy of the note upon which the .iction was founded, before the defendant should be compelled to answer; the court overruled the motion and judgment was entered on the default. The bill of exceptions sliowed that the original note was filed with the petition, instead of a copy. Tlie court held, that this was a compliance with the spirit of this section 117 of the code ; the original note is certainly better for the defendant than a copy can be ; it gives all the informa- tion that a copy can, and somewhat more ; to hold, therefoie, that this is insufficient, would be to adhere to the letter, rather than to carry out the spirit of the code. But it is argued that the copy must be attached to the petition. The language of section U7 is that the copy must be attached to and filed with the petition. Tliis seems to imply that the copy itself must be filed ; and, if filed as a separate paper, it must be so indorsed bv the clerk ; while, if physically attached to the petition, tlieve can be no separate filing of a copy of the note ; the filing of the petition is of itself a filing of all that is attached to'it. The word attached here seems only to mean that a copy of the note shall accompany and be filed with the petition ; such a construction secures to the defendant all he can ask, and all the benefit the sfiirit of the section contemplates without leaving room for a question of physical attachment, where the note or copy is found enclosed in the petition ; because, if the code requires the copy to be physically attached, a judgment by default would be irregular, if the court did not find this attach- ment of the copy. This would be to stick to the letter and crush out tin? spirit of this provision. 800 iroTES. Note H, page 129. The mode of commencing actions by and against corporations and tl.e imnner of stating the mime of tlie party, where it is a corporation, came np for consideration in the District Court, ip Jackson Co., at its September Terra, A. D. 1858, Peck, Wliitnian and Kasli, J. J. The-court held, tliat where a corporation was organized under a special act of the General Assembly, the court could take notice of the chartei and of the fact that it was a corporation. Brown ». The State, 11 Ohio Rep. 27(i, 280. But in the case of a corporation organized under a general law, the court will take notice of the law, not of the existence of the corporation. In this case, the law does noz create the corporation, it merely autliorizes the stockholders under cei-tjiin circumstances to organ- ize a corporation, and this organization is a private, not a public act; hence, the court cannot take any judicial notice of such a corporation ; it must, therefore, appear on the- pleadings by proper averments, that the name used represents a corporation duly organ- ized according to law. "Where, however, a suit was commenced by Beashy v. The Iron Valley Fernace Co.* and the defendant by this mime appeared by counsel, and filed a dennirerr to the peti- tion, which demurrer was heard and overruled, and judgment thereupon rendered against such company, the court held that the defendant must be presumed to be a cor- poration, otherwise it could not appear by such name ; and that the filing of the dfe- murivr was a waiver of the defect in the petition, in not stating that the defendant was a corporation, duly organized under the laws of this State. By filing the demurrer, the defendant admits his capacity to be sued by that narae. If, however, the defendant is not a corporation, but a mere partnership, then the error must be reached in another way, by a petition in error, which alleges for error in fact, that the defendant was not a cor- poration, but the name of a mere partnership ; the truth of this fact might be denied, and thus present an issue in fact, or demurred to as true, and thus present an issue of law. Under these rulings the form for stating the name of the parties in such a case will be as follows : A. B. plaintiff, 1 V. > Petition. The Young Ameiica Furnace Co., defendant, ) A. B. plaintiff, complains of The Tonng America Furnace Co., a corporation duly organized under the laws of this State, defendant, for that etc. Or this. The Iron Valley Fuimace Co., plaintiff,! 1). > Petition. The Diamond Furnace Co., defendant,) The said Iron Valley Furnace Co., a corporation duly organized under the laws tf this State, plaintiff, complains of the said Diamond Furnace Co., a corporation duly or. ganizod under the laws of this State, defendant, for that, etc. Where the corporation is a foreign corporation, the court can not take notice of its NOTES. 801 charter and legal existence ; hence, tlieve ought also in such a case to lie a somewhat similar averment. The form migjit be like the following ; The Iforth Westei''n Bank of Virginia, plaintiiT, 1 i>. > Petition. C. D., defendant. ) The North Western Bank of Virginia, u corporation duly organized under the laws of the State of Virginia, plaintiff, complains of C. D., defendant, for that, etc. In stating the name in the heading pf the case, it is sufficient to state simply the name of the corporation, and ijiake the averment of its being a corporation in tlie peti- tion, as ill the forms already given. It would hardly seem necessary to make Hie same statement twice. The form in that case would be like the following : The Diamond Furnace Co., plaintiff, 1 ». > Petition. The Scioto Rolling Mill Co., defendant, ) The Diamond Furnace Co., a corporation duly organized under the laws of this State, plaintiff, complains of Tlie Scioto Rolling Mill Co., a corporation duly organized under the laws of this State, defendant, for that, etc. \ Partnership, when Sued by that name. The statute of Feb. 27, 1846, 2 S. & C. St. 1138, authorizes actions by and agninst partnersliips in the partnership name. Tliis statute came under consideration of the Dis- trict Court, in Gallia Co., at its September Term, A. D. 18!i8, in the case of A. Frost & Co. B. Thornley. Tlie action was brought in the name of A. Frost & Co., witliout any other or further designation ; the defendant answered that A. Frost Petition. 0. D. (fe Co., defendant. ) A. B. <& Co., a company of persons, formed foi ihe pm-pose of carrying on trade ' 802 NOTES. (or business) within the State of Ohio, and not incorporated as such, plaintiffs, complain of C. D. l«u demur to counterclaim or set-off for insufBciency, 90; demurrer is not a rsply, 92. Forms of demurrer to petition, etc., 261; demurrer is an issue in law, 499; how tried, what judgment, 499, 500; how to amend after judgment on, 500. DENIAL — What, 62, et seq.; general or special, 62, 318; can not be both, 65; general denial, 62, 63, 64; what put in issue in torts by it, 318; may bo like old general issue, 63; not guilty, did not promise, good, 63, 64; a denial of each and every allegation contained in pention, good, 64. Special Denial, what, 65; what is put in issue, 65; 66, 318; a denial of con- tract raises the question of its original validity; can be proved to be void under a denial, 66; whatever shows that plaintiff never had a right of action, competent evidence, 67; to counterclaim or set-off, 89, 94. Forms of General Denial, 265; to common counts, not indebted, 265; denial of a part and admission of a part, 265; these anbft'ers sufBcient to common counts, 266; to action on promissory note, 266; to contract under seal, 267; to actions on torts, not guilty, 267, 317, 318; the reason for its use, 267, 818; a very general denial applicable to all cases. 268, 318; the propriety of using this, 268; denial of a part and admission of residue, 318; when general denial in tort may be pleaded, 319. Forms of Special Denials, 268; to actions on notes, bills, etc., 269; bo actions on policy of insurance, 271; to actions on awards, 271; to actions on war- ranties, 272; to actions on sale of real estate, 272; to actions on guaranties, 273; to actions on promises to marry, 274; to actions on promises to serve, 275; to actions against agents, 273; to actions on by-laws, 276; to an action on judgment, 276; to an action on official bonds, 276; to actions by landlord and tenant, 277; to actions for injuries of persons and animals, 277; to actions for nuisance, flowing water, etc., 278; to actions for ma- licious prosecutions, 279; to actions for libel and slander, 279; to actions INDEX. ' 819 DENIALS— Continued. againsif common carriers, 279; to actions for false representations, 279; to actions for collision, 279; to actions against sheriff, 280; to an action against a witness, 280; to an action for conversion, 280; to an action for an assault, 281; to an action for trespass to goods, 281; to an action for tres- ,pass to real estate, 281; to an action for rent, rum demisit, 312; nil Jiabuit, 312; no rent in ai-rear, 312; denial of assignment of lease, 314; in cases founded on principles of equity, 371; general form, 371; of an agreement, 371; of a deed, 372; mortgage not recorded, 372; equity of redemption not assigned, 372; mortgage not assigned, 372; no assignment of the claim secured by mortgage, 372; in a case for specific performance, 373; in a creditor's bill, 373; of a trust, 373, 376; in an action for waste, 374; that a note, etc., not delivered on the conditions stated, 374; that deed was not obtained by fraud, 374; that there are no mutual accounts, 374; that there are no mistakes in the account as stated, 374; that defendant was not the partner of plaintiff, 375; special denial of fraud, 375; special denial of part performance, 376; that the plaintiff is not the person he assumes to be, 378. DEPOSITIONS— What, 472; when to be used, 472; officers who may take, 473; maybe taken out of State, 473; commissions may be granted to take them, 473; manner of taking and mode of authenticating, 473; notice when and how given, 473; how non-resident notified, 473; how taken down, by whom written, 474; when they may be read, 474; how authenticated, 475; fees for taking, 475; exceptions how and when taken, 475; form of notice to take, 487; notice how served, 488; what time must be given 488; how served when party not found, 489; form of deposition, 489; form of cer- tificate, 489; oflScial character how evidenced, 490; exceptions to deposi- tions, form of, 490; commission to take depositions, 490; application how made, 490, notice of application, 491; motion for, 491; order for, 491; dedimus to take, 492; return to it, 492; indorsement on envelop, 492; when expedient to resort to this mode, 493. DEPUTY— May do all acts his principal can, 714. DIVORCE AND ALIMONY— How regulated, 757; for what causes granted, 757; former marriage, 757;* willful absence, defined and explained, 757, 758; adultery, the law stated and explained, 759; how proved, 760; con- fessions not alone sufficient, 760; impotency, its meaning explained, 760; extreme cruelty explained, 761; what is the test, bodily harm, 761; a reasonable fear of it suflScient, 761; fraudulent contract expounded, 762; gross neglect of duty, its meaning, 763; habitual drunkenness, what, 763; confinement in penitentiary, 765; divorce in another State, in favor of the other party, 765. Alimony, for what causes granted, 765; when with or without a divorce, 765; how to be allowed and its amount, 766; where husband has made con- veyances to defraud his wife of, 766; the mode of proceeding to set aside such conveyances, 766; practice on application, 767; how appearance to be perfected, 767; defense, how sSt up, 767; connivance, what, 767; con- donation what, explained, 768; cruelty may be condoned, 768; reeriminatiou 820 INDEX. DIVORCE AND AUUOTHY— Continued. defined and explained, 768; these defenses ought to be pleaded, 760; still general character is inquired into on a hearing on default, 769. Forms — Petition general form, what ought to be stated as to residence, 770; petition for adultery, 771; service, how perfected, 771; notice to defend- ant, 771; affidavit of sending subpoena and copy of petitiou, 772; state- ment of various causes, 773; extreme cruelty, 772; prior marriage, 772; drunkenness, 773; fraudulent contract, 773; confinement in penitentiary, 774; averments to obtain injunction 774; petition for alimony alone, 775; when property ought to be stated, 775; petition to reach property fraudu- lently conveyed, 776; decree for divorce where no appearance, 777; decree where defense is interposed, 778; decree for alimony, 778; decree as to children, 778; decree for alimony in property, 779. DOCKETS — How many to be kept, 722; trial docket, what and when to be made up, 505; what cases is be placed on it, 505; what cases may be placed on it by court on motion, 505; no cause can be set down for trial on the day it is placed on trial docket, 525; appearance docket, 722; execution docket, 725. (See, Record.) DOGS — Rule for declaring ». owner of vicious dogs, 200; owner must know the dog is in habit of»biting, 200; the scienter must be proved as welt as averred, 201; by statute the owner and harborer of dogs are made liable for theii killing sheep, even without a knowledge of their vicious habits, 202; can a joint action be maintained against the owners of several dogs who injure sheep together? 201; petition for keeping vicious dog which bit plaintiff, 200; petition for dogs killing animals, 201; petition for dog killing sheep, 201; answer to trespass for killing a dog, that he was found worrying sheep, . and therefore he killed him, 331; any person may kill a dog found wor- rying sheep, and on fresh pursuit, 331. DOWER — Proceedings to obtain an assignment of, 751; in what she is entitled to dower, 751; how she can be barred of, 751; proceedings not under the code, 751. Forms — Petition for, 752; subpoena for defendant, 752; decree pro confcsso, 753; decree on answer and trial, 753; writ of, and return, 754; confirma- tion of assignment of, 755; costs, where demand made and its effect on costs, 755; defendant might save costs by tender of an assignment, 755; writ of seizen and return, 756. DUPLICITY — In pleading, what, 55, 60; how to be taken advantage of, 55, 60; not a cause of demurrer, 59, 60; to be reached on motion, 59, 60. DURESS— Answer of, 290. ELECTIONS — Action a. judges, for refusing vote, 245; the action lies at com- mon law, 246; no averment of malice necessary, 246. EQUITY — As a, system of law left in full force, 3; how a case in equity to bo stated, 52, 55, 56; equitable defenses may be set up to an action at law, as formerly understood, 70; they must defeat in equity the right to recover, 70, 71, 72; equitable matter no't barring the action, and to be obtained only through affirmative relief, not pleadable as a defense, 71; nor would it seem INDEX. 831 EQUITY— Confenuei. as a counterclaim, 76, et seq.; how new matter in a case in equity to be* ansivered or pleaded, 83, 84, 369, 378; defense by surety, 310; fraud, how set \ip, 307, 308; forms of petitions in cases in equity, 244; when a judg- ment creditor can proceed by action against a judgment debtor and hij fraudulent grfwitee, 356; when equity will enforce collection of a lost note, etc., 363, 364; when it has jurisdiction to settle accounts, with petition for, 365; when it will open a stated account, ani petition for it, 366. Answer in cases of, its character, 369, 375, 377, 378, 379; forms of general denials, 371; statute of frauds, 375; bona fide purchaser, 376; an account stated, 377; not the person he assumes, 378; writ of error abolished, (sec. 530,) 078; what may be examined on error, (sees. 511, 512,) 674, 679; what by the Court of Common Pleas, (sec. 511,) 674, 679; what by the . District and Supreme Courts, (sees. 512, 513,) 674, 679; the proceedings must be by petition in error, (sec. 515,) 683; summons to be issued, and how served, (sees. 516. 556,) 675, 678, 683; a transcript of the judgment and proceedings to be made a part of the petition by reference, (sec. 517,) 675; how transcript of record to be certified, (sec. 518,) 675; when execu- tion to be staid, and how, (sec. 519,) 675, 677, 684, 686; by whom is the undertaking to be taken, 685; condition of the undertaking, 675; who not to give security, (see. 607,) 678; when execution may still issue on motion, , though a stay has been obtained, and in what cases, (sec. 522,) 676, 685; within what time it shall be commenced, (sec. 523,) 676, 687; in what cases the court shall or may require security in order to obtain a stay of execu- tion, (se7.. 526;) 677 687; what the court may do on reversal, (sec. 526,) 677; costs on error, ho^y taxed, (sees. 528, 529,) 677; what mistakes are not ground of error, 677, 688; court power to compel the production of complete records, (sec. 530,) 678; proceedings in Common Pleas on reversal or affirmation of a judgment of a justice of the peace, (sees. 571, 532,) 678; review of chancery decrees heretofore rendered, 678; penalty on affirm- ance, when to be assessed, (sec. 608,) 678, 690. ERROR— What can be reversed, a judgment or final order, 679; what is a final judg- ment, 679; what is a final order, 680; can a judgment in forcible entry and detainer be examined in Common Pleas? it seems not, 680, 682. For what a judgment will be reversed, 688; error will not lie upon what is a matter of discretion in the court below, 109, 508, 688; refusing a new trial is matter of discretion, 688; the allowance or refusal of an amendment, 688; the code has not changed this rule, the right to except is on a matter of ]a,vf, 688; a judgment can not be reversed for an error in favor of the plaintiff, 689; nor for an error which does no injury to the plaintiff, 689; when a judgment may be reversed as to one, and affirmed as to others, 689; the court shall render such a judgment as the court below ought to have rendered, 689; when a mandate sent to a lower court, 689. Forms — Petition in error, 691; how errors to be assigned, 691; no errors noticed by court bat those assigned, 692; answer, it is supposed, is neces- sary, 692; what it must be, 692; statute of limitations, 692; no error, G93; 822 INDEX. ERROR —Ccmtinued. release of error, 693; undertaking on supersedeas, 693, 694; suggestion Df diminution of record, 695; judgment of affirmance, 695; judgment tf reversal, 696; tlie like specifying the cause, 696; reversal and final judg- ment, 696; reversal and cause remanded, 697; procedendo on reversal, 697; reversal in part, affirmance in part, 697; mandate to Common Pleas, 698; writ of procedendo to Common Pleas, 698. Krror to the same court — Court of Common Pleas may vacate or modify its own judgments, and in what cases, 699; can error in fact now be sustained except in same court, 700; proceedings, how conducted, 700; to what cases applicable, 701; when proceedings may be staid, and how, 701; within what time application must be made, 701. Forms — Motion to vacate judgment, 702; what it must specify, 702; notice of motion, 703; petition for vacation of judgment obtained by fraud,. 703; petition for vacation of one entered on a power of attorney, 704; answer, what should contain, 705; judgment on a petition, 705'; judgment on a motion, 706; judgment to correct a clerical mistake, 706; injunction order, 707. EVIDENCE — Competency of witnesses defined, 468; who not icmpetent, 469; wife competent when party to suit, 469; means of procuring attendance of witnesses, 469; subpoena, and by whom served, 469, "affidavits, how taken, 472; depositions, how taken and used, 472, 474; inspection of documents, how obtained, 475, 476; proceedings to perpetuate testimony, 477; doubts as to the constitutionality of the*mode prescribed by the code, 478; demand for inspection of papers, etc., 493; notice of motion for inspection, 493; motion for, form of, 494; mode of proceeding, to be by petition or mo- ,tion, 494; what it must state, 495, 666; the extent of the right to inspec- tion, 495; what answer may be made to motion, 495; a denial of having such papers bars further inquiry, 495; when the order may be made, 496; how far discovery may be prosecilted, 496; order for inspection, 496, 668. EVICTION— Answer of by lessee, 313. EXECUTION — What, and the kinds, 587; the judgment on which it may issue, 587; when judgment dormant, execution not void, but irregular, 588; exe- cution against property, its requisites, 589; execution, regular on face, justi- fies officer, 589; the issue is a ministerial act for which clerk liable for error, 590; to be returned in sixty days, 590; no valid act can be done after the day fixed for its return, 590; no execution can issue on a judgment where either party is dead, 590; where several plaintiffs, and one dies, execution in name of all may still issue, 591; execution may issue on mo- tion, where satisfaction is erroneously entered, 591; a clause of further levy may be inserted in vemdi. What may betaken in execution, 591; what may not be taken, what exempt, 591, 592; construction of exemption law, 593; homestead exemption, 594; from what time lien attaches, 595; judgment, when its lien dates, .595; proceedings on execution, 596; what constitutes a levy of goods, 596; what goods may be taken, 596; bs^nl; bills and other juouey may be taken, 696 ; order of sale, 622(f. INDEX. 823 EXECUTION— Conimjiei. what officer to do, where several defendants, 597; growing crops, when liable to levy, 597; promissory notes or other choses not liable to, 597; the officer should enter time when he receives an execution, 597; what oiBcer may do with goods, 597. Proceedings when property claimed by others, 598; sale of goods and chattels, how conducted, 599; sale to he in a reasonable time after levy, 600; sale must be by auction, and property he present, 600; ofScer not bound to deliver goods unless he is paid by purchaser, though he may do it, 600; if plaintiff purchase, officer may deliver goods to him without pay, 6(X). Proceedings on sale of real estate, 600, 627; in making levy on land, officer need not go on land, 605; how to describe premises, 605; the levy is on land, not on any interest, 605; an equity can not be sold, 605; appraisement, 601, 606; advertisement of sale, 601, 606; the sale must be at court 'house, 602; confirmation of sale, 601, 606; deed ordered on confirmation, 607. Proceedings in aid of execution, 609; a discussion on the peculiar features of this chapter; its constitutionality doubted, 610; mode of proceeding, 613; under section 459 nothing can be had but the examination, 613; no power to apply property under section 464, 613; can not settle disputes to property under section 469, 614. Proceedings on execution against the person, 618; execution for delivery of real property, 620; execution by attachment, 620; execution on justice's judgment, 621. Forms of execution, 623; on judgment of Common Pleas v. property, 623; indorsement on same, 624 one v. principal and surety, 624; execution on a mandfite for D. 0., 625; sheriff's return on it, 626; additional levy on vendi, 628, 630; returns of various kinds, 629; form of vendi, 629; clause for additional levy, 630; notice of sale of goods, ^31; notice of sale of real estate, 631; motion to set aside sale, 632; order of court thereon, 632; confirmation of sale, 633; sheriff's deed, 633. Forms in aid of execution, 634; motion before a judge to examine a party, 634; order of examination, 635; how served, 635; examination before judge, 636; motion under section 460, 636; must be supported by affidavits, 637; when the order will be made, 637; what is the meaning of 'unjustly refuses,' 687; hearing on affidavits, 638; order of examination in this case, 639; order of arrest, 639; proceedings on examination, 640; entry of trial and appointment of referee, 641; report of referee, 641; certificate of judgf to depositions, 642; appointment of receiver, 643; minutes to be kept by judge of proceedings, 643. Proceedings against debtor of execution debtor, 644; how many remedies under this chapter, 644; capias on judgment, 645; execution for delivery of land, 646, 629, 630. EXECUTORS — How stated in petition, 129; forms of petitions by and against, 144, 145; petition by, on note of testator, 154; ^-letition against, on note of testator, 155; no profert of letters necessary, 58; answer of stafcite of limitations by, 287, 288; can not waive the statute, 288. iu UTOEX. FALSE IMPEISONMENT— Petition for, 250; denials in actions for, 279, 316; answers in actions for, 327, et seq.; justification without process, 327; on suspicion of felony, 328; the grounds of suspicion must be stated, 329; when an oflcer may arrest, 328, 329; when a private citizen may, 328, 329. FALSE REPRESENTATION— Denials in action for, 279. FENCES— Answer of defect of, and when available, 332. FORBEARANCE — Petition to pay on forbearance to a debtor not to prosecute a suit, 169; forbearance to a third person, 170; their use and necessity, 268. ^orms of precipe, 18; summons, 19; indorsement thereon, 20; deputation to serve summons, 21, 22; returns of sheriff thereon, 22; to prove construc- tive notice, affidavit and notice, 26; affidavit of publication, 27; affidavit and notice of unknown heirs, 27, 28; order of publication to unknoum heirs, 27; ■ form for appearance of married women, 30; forms for appointing guardi- ans for the action, 30, 31; notice, affidavit and entry ontnotion for leave to file supplemental pleading, 105; notice, motion, and order of consolidation, 126; motion and order to make pleading definite, 124; of beginnings of petitions, 128; of petition containing several causes, 129; of prayer to petition containing several causes of action, 129, 130; petitions on common counts, 183 to 143; petition by surviving partner, 143; petition by and against husband and wife, 144; petition by executors v. same, 144; petition against executors and administrators, 145; petition on bills of exchange, , 155; petition on policies of insurance, 164; petition on awards, 167; petition on forbearance, 169; petition on warrants, 170; on sale of real estate, 174; petitions in torts, 200; forms of demurrer, 261; forms of answers, denidti, 263; forms of answers containing new matter, 282; of counterclaims, 339; forms of petitions in cases in equity, 344; forms of demurrers, 261; fomcs on arrest, 388; forms in replevin, 396; forms in attachment, 421; forms for depositions, 479; forms of verdicts, 520; forms in reference cases, 541; forms of judgments, 571; forms as to new trials; forms of findings and judgments in cases tried by the court, 576; forms on execution, 623; forms in real action, 662; forms in cases in error, 691, 702; forms on appeals, 739; forms of general and special denials, 265, 268, 371; forms for taking depositions, 487; forms in divorce and alimony, 770; forms in dower, 752; of petitions and answers in equity cases, 344, 369; in cases of injunction, 448; in mandamus, 731. FRAUD — When it avoids a judgment, 308; how the fraud must be stated, 308; answer of fraud to judgment, 308; answer of fraud in obtaining contract, 309; how to be stated in a petition, 361, 362; forms of petitions to set aside deeds obtained by fraud, 361, 362. GARNISHEE — How served, and to proceed, 413, 414; notice to, 426; answer of, 429; wliat answer shall contain, 430; attachment for contempt in not appearing, 430; order on garnishee to pay and give security, 431; under- taking to pay or deliver property, 432; order of delivery, and proceedings- on a failure to pay or deliver, 432; rule of damages and the pleadings, 433; judgment against him and sureties, 433, INDEX. 823 GOODS SOLD AND DELIVERED— Counts for, 136; for hire of goods, 139; petition for conversion of, 246; petition for taking and carrying away, 251; denials in actions for conversion, etc., 277; denials in actions for goods sold, 265; justification for removing from one's own premises, 330. GUARDIAN FOR THE ACTION— when and how appointed, 29, 30. GUARANTY — Guarantor when entitled to notice, 177; when the notice must be given, 177; it must be in writing, 177; when addressed to one, another can not credit the bearer on it, 177; petitions and denials, 176, 265, 273. HEIRS UNKNOWN— How to be sued, 27, 28; affidavit of, 27; order of publi- cation, 27. HUSBAND AND WIFE— "When to sue and to be sued together, 14, 15; peti- tion by, 144; on notes given to wife, 153; on notes given by the wife, 154; for an assault on wife, 249. INDORSER V. MAKER OF NOTE, 150; indorsement by administrator, 150; indorsee v. indorsor, 151. INDORSEMENT — By administrator, how stated, 150; by firm, how stated, 158; names of firm need not be stated, 158; on summons, 19. INDEFINITE AND UNCERTAIN PLEADING may, on order of court, be required to be made certain, 123; does this apply to mere denials, 123; form of motion and order, 124. INJUNCTIONS — Described, 437;' petition, what to contain,. 441; it differs not from the old writ of, 441; difference between our code and that of New York, 441; when it will be granted, 438; plantiff's right must be clear, 438; when to prevent the transfer of a specific thing, 438; will restrain public officers, when, 438; will stay sale on execution, when, 438; will restrain towns from converting commons into building lots, 438; corpora- tions may be restrained from an abuse of their powers, 438; will not" be granted to prevent a mere trespass, 439; will interfere to abate nuisances, when, 439; will stay waste, and what is waste, 439; when will stay col- lection of tax, 440; will restrain publication of a paper in name of plain- tiff's paper, 440; will prevent publication of private papers, 440; when temporary injunction granted, 440; when injunction may be granted, 441; what the petition should contain, 441; when affidavits necessary on ap- plication, 443; what they must state, 442; notice of application when re- quired, 442; order of injunction, what, and to whom, 442; when the injunc- tion binds, 443; breach of injunction, 443; quere as to powers vested in judge, 443; motion by defendant for further security, 444; nicety of New York practice, 444; what can be read on motion to dissolve, 445; whether answer can, it seems not, 445; to be made on affidavits, proceeding, 445, 447; plaintiff can not read affidavits unless defendant does, 445; when it will be dissolved, 446, 448; former practice stated, 446; when defendant may obtain it, 448. Forms — Affidavits in support of motion, 448; order of notice to defendant, 449; order granting the injunction on hearing before a judge, 450; order on hearing in court, 450; undertaking of plaintiff, on allowance of, 451; order of injunction, and when it issues^ 451; affidavit for an attachment, 452; 826 INDEX. INJUNCTIONS— CmUnued. copies to be served, and notice given, 452; notice of application for attach- ment, 452; order of attachment in court and by judge, 453; attachment, form of, 453; judgment on attachment, 454; undertaldng on the order, 454; notice of motion for further security, 455; motion for further security, 455; order on hearing of motion, 455; notice of motion to vacate, 456; motion to dissolve or modify, 456; order on hearing, 456; final judgments, 457; • injunction dissolved, and action dismissed, 457; injunction made per- petual, 457; the hearing is a trial, 458; judgment, against obstructing streets, 458; judgment to deliver up notes, 458. INFANTS — HovF to sue, 15; how to defend, by guardian, 16; guardian for action, when and how appointed, 16; judgment v. infant without guardian irregular, and will be set aside on motion, 16; ages should be stated in' petition, precipe dnd the summons, 19; infants, how to be summoned, 22; how to appear, 29; form for appointment of guardian, 30; petition by, 128; plea of infancy, 289. INNKEEPER— ipetition v. for loss of baggege of a guest, 232. INTEREST— Count for, 143; how claim for to be stated, 146; rule for calcu- lating, 147, 189; rate of interest fixed by the rate where the debt is to be paid, 147; answer setting up illegal interest in note, 311. IRRELEVANT MATTER— May be stricken out on motion, 120, 122, 123. INSANE PERSONS- How to be sued and appear, 29. (See AUmda.) INSPECTION OP DOCUMENTS, ETC.— How obtained, 475, 476, 666; forms of demand, notice, orders, etc., 493, 496; how far inspection^may be car- ried, 495, 496. INSURANCE COMPANIES— How to be summoned, 22; when actions may bo brought against, 18; petition on a sea policy, loss by sinking, 164; on sei policy, loss by being run into, 165; on a fire policy, 165; where a po.lcy requires insurer to give notice of loss, or to procure certain certificates, or to submit to an examination, he can not recover without having performed these conditions, 166, 302; where he has once submitted to an examination, a refusal to' submit to a further one will not defeat his recovery, 166, 302; general and special denials in actions, 265, 266, 27i; answer of non- performance of condition precedent, 302. INTOXICATION — Petition by wife v. seller to her husband, a person in habit of getting intoxicated, 257; the law of declaring in such a case, 257; em- ployer V. seller to his hired hand, 259; a third person v. seller, for injury received by one intoxicated, 260. INVENTORY IN ATTACHMENT, 424. ISSUES — Feigned issues abolished, 3; the court can order a question of fact to be submitted to a jury, 3, 502; this must be confined to cases where parties are not entitled to a trial by jury, 3; general denial, 62, 65, 66; what is .m issue under it, 66; whatever shows a contract void, 66; it puts plaintiff to prove his petition, 64; in replevin, 399, 400, 402, 403; what is an issue in an action, 497; may it be one of law or fact, 497; what is an issue of fact, 497; the common layv.definition compared, 497; an' issue mtist be direct INDEX. 827 ISSUES— CbrefowMec?. and material, 498; must be confined to a single poii t, 498; the code d6ea not alter the common law rule, 498; what issues to be tried by jury, 500; what issues to be tried by the court, 502; what cases the Constitution requires to be tried by a jury, 502. JOINDER OF ACTIONS— What may be joined, 32; contract and torts can not be joined, 33: legal and equitable causes, to what extent can they be joined, 33, 34, et seq.; can not be joined unless relief asked in the alternative, 34; history of this clause, 1; of the code a£ to joinder, 33; when both arise out of same transaction, 34; when both depend on same subject of action, 35; what may be joined, 34, 35; what can not be joined, 35; causes must be consistent, 35; what is one subject of action, 36; in reference to parties, 37; causes to be united must all belong to a single subdivision, 35, 37; contracts, express or implied, may be united, 38; injuries, with or without force, 39; injuries to character, 39; claims to recover possession of pfersonal property, 39; claims to recover possession of real property, 40; claims against trustees, 40. When must join, 40; can separate suit be brought on note or mortgage? it seems not, 40, 564; nor for recovery and damages to real or personal property, 40. JUDGMENTS — What, 556; when can defendant have afiirmative relief, 561; how rendered, and when, 556, 557; when can it be rendered against or in favor of a part of the plaintiffs or defendants, 557, 558; against an infant, without the appointment of guardian, irregular, may be set aside, 16; petition on a domestic judgment, 185; petition on a foreign judgment, 185; answer of no such judgment, 306; answer of payment of judgment, 307; what defenses may be made to, 307; accord and satisfaction by a less sum < good, when, 307; judgment conclusive, when, 307, 308; judgment without service is void as to the one served, as well as to the one not served, 307; when fraud can be set up, must be fraud in obtaining judg- ment, 308; answer of fraud in obtaining judgment, 308; when action can be sustained in aid of, 356; the effect of judgments in attachment, 417. Forms of judgment — In replevin, -400, 401; in attachment, 433, 435; when action may be dismissed by plaintiff without prejudice, 563; when court may dismiss without prejudice, 563; must the court so dismiss, 563; a plaintiff can not dismiss as to a part of the' defendants, and take judgment against the others, 564; judgment in nlortgage action, 564; judgment for conveyance, and its effect, 565; what to be found on judgment by default, 571; judgment on default for sum certain, 566; the same, with assessment of damages, 566; judgment on verdict for plaintiff or defendant, 566; on a non-suit, 567; on a dismissal by court for various reasons, 567, 568; judg- ment by confession, when taken, and how, 568, 569; when on power, it must be proved, 569; forms of confession without pleading, and on power, 570; judgment on a note and mortgage by default, 571; judgment for specific performance, 573; judgment for an account on default, 573; same on a trial on answer, 573; judgmeiit oh confirmation of master's report, 574; 828 INDEX. JUDGMENTS— Conimwei. judgments set aside, and confirming master's report on motion, 574, 575; finding and judgment on a trial setting aside a deed, 576; finding and judg- melit on a creditor's bill to set aside fraudulent conveyances, 576; no judg- ment for money in such a case, 576; judgment for perpetual injunction, 577; judgment settling liens on real estate,, 577; general fitiding on an answer, and when part are in default, 579; general finding on an answer setting up new matter, 580; general finding for defendant, with judgment, 580, general finding on parol contract, and a part performance, 580; finding on an answer, setting up a stated account, 581; judgment, when dormant, 588; judgment, when attaches as a lien, 595; judgment in real action, 664; judgment in error cases, 695; judgment on petitions, etc., to vacate or modify judgments. JURISDICTION OF COURTS, 41, 42; not given by t^e code, 41; answer to jurisdiction, 282. JUSTICE OF THE PEACE— Petition v. for negligence, 255; quere as to con- stitutionality of the $300 jurisdiction of justice, 502. JURY — When party entitled to trial by jury, 502; can justice take jurisdiction over $100, 502; in what actions trial to be by jury, 500; what is a jury, 503; is six men a constitutional jury, 503; how jury to decide a case ■when submitted, 513; jury may have a view, when, 512; if jury disagree, what to be done, 513; may be discharged, when, 513; the entry should show the reason for it, 513; when jury may be polled and the proceed- ings, 514. LANDLORD AND TENANT— Denials in action by, 277. LARCENY— Answer of in slander, 335. LAW — Both common and equity, left in full force, 3; rights not changed, 3; the code affects only the name, not the nature of the remedy even, 3. LEASES — Petition on covenant to pay for repairs, 189; the rule for assigning the breach, 190; on covenant to pay rent, 190; averment of assignment of a term, 191; averment of surrender of a term, 191; on covenant to pay extra insurance, 192; denials in actions, on^ 277. LIBELS — Petitions for, (see Slander,) 213; on one in his profession, 214; no necessity to aver how published, 215; what must be stated in inducement, 215; what is a libel, 215; effect of code on pleading in libel, 50; as to evi- dence in mitigation, 87; how justification pleaded, 88; denial to action for, 279. LICENSE — Answer of, 333; it is not assignable, 333; a license to build a dam not revocable after execution, 333. LIEN — Vendor's lien for purchase money, 353, 354; what operates as a release of it, 354; petition to adjust conflicting liens, 367; answers setting up liens, 380. LIMITATION OF ACTIONS, 5; civil actions when to be commenced, 5; actions for recovery of real property, 5; actions 'ther than for the recovery of real property, 5, 6, 7; form of answers of the statute, 286; to actions on ooutracts not in writing, 286; to an actions on contract in writing, 287; iNOEX. 829 LIMITATION OF ACTIONS,— Gmtinued. answer, by executor or administrator, that claim not presented in fonr years, 287; that claim presented, rejected and not sued in six months, 287; twenty-one years' adverse possession of land, 289; twenty years' adverse " enjoyment of an easement, 290; twenty-one years' enjoyrnentof a flowage, . 334. LODGIKGS— Count for use of, 134. MANDAMUS— The code on the subject, 726; nature of the writ, 728; may bo applied in district court in any county of same district, 735; proper remedy to compel inferior tribunals to perform duties required of them by law, 728; relator must have a specific right and no other specific legal remedy, 728; the meaning of no other specific remedy, 728; the causes for which it may be granted, 729; numerous cases cited in which it may be resorted to, 729; the writ, what it must recite, 730; the return, what it must show, 730. Forms — Petitions for, 731, 734; notice of application for, 735; order of allowance, 735; the writ, form of, 736; itsrecitals, 736; answer, what, 737. MALICIOUS PROSECUTION— Petitions for,- 210; for issuing an attachment of goods, 210; this, lies though there is a debt due, 210; for an arrest on state warrant and discharge, 210; when the party is bound over to Probate court, 212; for procuring plaintiff to be indicted, 212; want of probable cause essential, 213; what is probable cause, 213; prosecution must be ended, 213; for issuing execution, etc., when nothing due, 241; denials in actions for, 265, 279. MASTER COMMISSIONER— How and when appointed, 582; his power to^sell and convey real estate, 583; general powers, 583; order confirming a report, 574; motion to set aside a report of, 574; entry of hearing the mo- tion, 574; orders vacating a report, 575; order of appointment, 584; under- taking, 584; deed by master for defendant imder an order of court, 584; deed of master on a sale made by 'him, 585. MASTER AND SERVANT— Petition for debauching servant, 216; the loss of service is the gist of the action, 217; for enticing away apprentice, 217; to harboring apprentice, 218; the master entitled to his apprentices' wages, 218; in case of hired servant, employer not liable without notice, 218. MARRIED WOMEN — How to sue,' 14; when by her next friend, 14; when to be joined with her husband, 14, 15; how they must appear, 28; form for an appearance, 30. MARRIAGE — Petition on promise to marry on request, 178; breach by marry- ing another, 178; on promise to marry in a reasonable time, 178; denials in this action, 265, 266, 274; what can be given in evidence, 274, 316; answer of misconduct of plaintiff after promise for not marrying, 315; what conduct is a bar to the action, 316; plea of bad character when prom- ise made and not known by defendant, 316. MISJOINDER — ^Of causes of action, what, 59; how to be taken advantage of, 69; ground Of demurrer, 59; what court may do when demurrer is sus- tained, separate' actions or petition^ &7. 830 INIDlilX. MILLS AND MILL OWNERS— As to rights on flowing water, 207, 209; the owner above has no right to divert the water to the injury of mill below, (see Nuisance,') 209; denials to action for injury to, 278. ■ MISNOMER~(See Abatement,) 286. MISTAKES IN PLEADING— When to be disregarded, 118. MONEY— Had and received, count for, 143; paid, 142; lent, 142; forinterest»143. MOBTG-AGE — Action on note, and must be joined, 40, 564; petitions on mort- gages, 345, 349; how to be stated in petition, 345; who must be parties to action on mortgage, 345, 346; when a decree can be had for balance, 571, 346, 348; where it is given to secure installments, 346; judgment taken for all due at the time, 346; where court will render a decree for sale of whole premises, though claim not all due, 347; character of a decree on a mere mortgage, 349, 350; form of judgment, 571. MOTION — Defined, 670; what it must state, 670; when notice to be given, 671; how notice to be given, 670; how to be served, and by whom, 670; is an attorney a disintereste4 person, 670; distinction between order and judg- ment, 671; form of notice, 673. (_For motion see various Heads also.) What may be done by motion — Guardian appointed, 29; next friend ap- pointed, 28; to sufficiency of verification, 97; to file supplemental plead- ing, 105; to strike out redundant matter, 123; to make pleadings definite, 124; to consolidate actions, 126; to set aside a sale on execution, 632; to examine a party in aid of execution, 634; to give security for costs, 720; for dedimus to take depositions, 491; to vacate judgment, 702; to obtain inspection of document, etc., 494; to set aside a. sale on execution, 632; in cases of injunction, 448, 452, 455, 456. NAVIGATION — Petitions for negligence in, 239; the plaintiff can not recovei, if in fault, 240; owner not liable for a willful injury committed by master or pilot, 240; where neither party to a collision is" in fault, neither party caiv recover against the other, 240; steam vessels bound to keep clear of float- ing vessels, treated as having wind in their favor, 241; denials in actions for collisions, 279. NEGLIGENCE IN DRIVING CARRIAGES, AND NAVIGATING VES- SELS, 239; reference to the law on the subject, 239, 240; petition for careless driving, 239; for carelessly navigating ships, 239; plaintiff, if in fault, can not recover, 240. NEGOTIABLE INSTRUMENTS— Effect of code on, 10; does not repeal the statute on that subject, 10. NEW MATTER — What is new matter in an answer, 67, 70,; it must admit the plaintiff's cause of action, 67; and state facts which show that this right of action is extinguished, 67; it must be such facts as bar the plaintiff's action or right to recover, 68, 69; may be to a part of the cause of action, 69; equitable defenses, how far pleadable, 70; what equitable matter may be set up, 70, 71, 72; equitable matter constituting a right to relief, not pleadable as a defense, 71, 656; nor would it seem as a counterclaim, 656; how to be pleaded, 82; in cases founded on equity, 83, 84; matter in abatement is new matter constituting a defense, 87. INDEX. 831 NEW UATTE'R— Continued. Forms of answers containing new matter, 282; new matter to jurisdiction, 282; (see Jurisdiction;) in abatement, 285; (see Abatement.) New matter in bar, 286; statute of limitations, 286, 289; of infancy, 289; of coverture, 289; of twenty-one years adverse enjoyment, 289; of twenty-one years adverse enjoyment of an easement, 290; of duress, 990; of tender, 290; of an arbitrament and award, 291; of accord and satisfaction, 292; of payment by bills, notes, etc., 294; that condition precedent had not been performed, 297, 298; (see Addenda;) plaintiff had not offered to convey land before suit on notes, 297; that plaintiff did not furnish a thresher, as he agreed, to excuse not delivering corn, 298; that certificate of architect had not been obtained before suit, 301; that plaintiff had not performed a condition in a policy of insurance, 302; to suit on an account, that the plaintiff received the bill of a third person for and on account of said account, 303; to an action on note, bill, etc., answer of new security given, 304; note of third person taken, higher security taken, 305; no such record, 306, 307; pay- ment, various pleas of, 306; death of principal by bail, 307; failure of con- sideration, 310; fraud in obtaining judgment on contract, 308, 309; plea by security of time given principal, 310; setting up illegal interest in note, 311; misconduct of plaintiff in bar of an action for not marrying, 315, 316. in actions for torts — Satisfaction by one joint trespasser, 320; its effect in discharge of the others, 320; son assault demesne, 321; what may be jus- tified ujjder it, 321; how for a defense, of property, 321; arrest justified ■with and without process, 327, 328, 329; that goods on defendant's laud, and. he removed the same, 330; that dogs were worrying sheep, 331; that trees shaded his garden, and he cut off limbs, and laid them on plaintiff's ground, 331; defect of fences of plaintiff, 332; license, 333; right of way, 333; road founderous, and went on plaintiff's land, 334; enjoyment of flowage for twenty-one years, 334; entry on plaintiff's laud to retake goods detained' by plaintiff, 335; justifications under legal process, 335; larceny to a suit for slander, 335; that plaintiff was a whore, 336; that he did com- mit perjury, 337; forms of counterclaim, 338; forms of a. set-off, 341. In cases in equity, 369, et seq.; bona fide purchaser, 376; an account stated, 377; statute of frauds, 375; not the person he assumes. to be, 378. NEW TRIAL — When it may be granted, 546; general irregularity by court, party, jury, etc., 546; misconduct of the jury or prevailing party, 547; what is misconduct in a jury, and how proved, 547; what is misconduct in a party, 547; when affidavits of jurors may be received, 547; accident or surprise, 548; what is such, 548; excessive damages, 548; error in the assessment of the amount when action is on contract, , as for injury to property, 548; what excess will justify an interference, 548; when the verdict is against the weight of evidence or contrary to law, 549; newly discovered evidence, when ground of, 549; the evidence must not be merely cumulative, 549; error of law excepted to on the trial, 550; what error will justify a new trial, 558; a new trial shall not be granted for too low damages in actions of slaaider, trespass to 832 nTDfiX. — — J. NEW TmiAL—Cortiinued. person, etc., 550; ■when the motion must be made, and what to state 550j when a new trial may be granted after the term, and for what reasonS| 551; this a substitute for application to chancerj-, 551; forms, motion for, 552; journal entry of hearing and overruling, 553; order granting new trial, 553; petition for new trial, 554; hearing and judgment for new trial, 555. NON- SUIT— How served, 25. NOTICE — Of filing petition against non-residents, 26; of application for leave to file supplement of pleading, 105; of having amended petition before an- swer, 106; of motion to consolidate actions, 126; to take depositions, 473, 487; of motion to attach witness, 491; of sale by sheriff of goods, 631; of sale of real estate, 631; of motion to vacate judgment, 702; notice of a motion to amend judgment necessary, 112; of intentioil to appeal an action, 739; to vacate bail and discharge defendant, 385, 392; to garnishee, to a debtor of defendant by receiver, 426, 428; to consolidate actions, 126; to give security for costs, 720; to take depositions, 473, 487, 491; of mo- tion to vacate judgment, 703; of motion to obtain an inspection of papers, etc., 493; of sales by sheriff, 631; in cases of injunction, 448, 462, 455, 456; of application for mandamus, 735; of publication to non-residents, 25; of motion to file supplemental pleading, 105. NUISANCE — No action lies for a public nuisance unless the plaintiff has sus- tained special damage, 203; to kee.p large quantity of gunpowder near tha residence of others is a nuisance; one injured by an explosion can sue, 203; the plaintiff can not recover if injured by his own negligence, 204; the party liable as between contractors, 204. Petitions in such cases, 202; for obstructing highway or street, 202; for keep- ing a hole open in a town, so plaintiff fell in, 203; for leaving ditch open whereby plaintiff was injured, 204; for negligently mining under plMntifPs land, 204; for negligence in keeping a sewer, 205; for flowing water on mill and for continuance of it, 207; for flooding lands and yard, 207; for diverting water from a stream, 208; the rights of riparian owners as to diverting water, 209; action can be maintained without proof of special damage; the injury to the right is a damage, 209; denisds in actions for, 278. OATH — Of jury, 485; of witness, 485; afBrmation a substitute for an oath, 714; right of oflScers taking security to administer, 715. OCCUPYING CLAIMANT— Application for benefit of statute, 664; proceed- ings on the same, 665, 666. OEDEE — What, 671; distinction between order and judgment, 671; where order granted'On conditions; in New York, the condition must be complied with in twenty-four hours, or it is a nullity, 671; in Ohio the practice has been dif- ferent, 672; an order made out of court, to be certified to the clerk and entered, 672; of sale, 622a. ORDERS, SPECIAL— Of publication to unknown heirs, 27;- for appointing guardian for the action, by court or judge, 30, 31 ; for time to answer or reply, 100, 101 ; to file supplemental pleading, 105 ; to make pleading* INDEX. 833 OEDERS, SVWIAlr-ConUnued. definite, 164; to consolidate actions, 127; of arrest, 383; to discharge bail, 392; of attachment, 423; to appoint a receiver in attachment, 427; to sell property taken in attachment, 428; to release property so taken, 428; to deliver propSty so taken, 430, 432; for garnishee to pay money, or give security, 431; for notice to take judgment for not delivering property, 432; to sheriff to retake property, 734; for attachment of witness, 471, 481; to consolidate actions, 126; to give security for costs, 720; for a dedimus to take depositions, 491; injunction order on a motion to vacate judgment, 707; for inspection of documents, 496; to set aside or confirm a sale on execution, 632, 633; to make pleadings definite, 124; granting an injunc- tion, 450; of attachment for violating an injunction, 453; other orders, 455, 456; allovirance of writ of mandamus, 735; for appointment of master commissioner, 584. PAEENT AND CHILD— Petition for debauching a daughter, 216. PAETIBS — This title- somewhat confused, cause of it, 7; plaintiffs, who must he, 8, 712; in actions on official securities, 712; real party in interest, its meaning, 8, 9, 10; (see Addenda;) the exceptions to the rule, 8, 9, 10; aa to number of plaintiffs, 12; parties as affected by the subject of action, 12, 13, 14; a few may sue or defend, when the parties interested are numerous, 13, 14; married women, 14; to counterclaim, 74; ' character in which to sue, 128; how stated in petition, 128, 129; parties to actions, instances, 345, 358; answer in reference to parties, 284, 286. PAYMENT — Answer of, in money, in whole, or in part, 294, 306, 307; when bill, note, etc., conditional, 294, 303; contract discharged by new one, 295; payment in work, when good, 296; payment may be in other things than money, 297; pleas of conditional payments, 294 to 305. PAETITION — Can be had in equity, or under the statute, 741; legal titles only can be under the statute, 74l; proceedings look to possession, and not to title, 742; owners of a reversion ran not obtain partition of it, 741; where to be filed, and notice, how given, 743. Forms — The petition, 743; notice of its filing, 744; affidavit of publication, 744; order of partition, 744; writ of partition, 744; report of commission- ers, 746; sherifi^'s return, 747; confirmation of report of partition, 747; confirmation and entry of an election, 747; sheriff's deed on election, 748; order of sale, 749; confirmation of sale, 749; sherifi^'s deed to purchaser, 750. PAETNEES — Petition by, 128; surviving partner plaintiff', 129; petition by sur- viving partner, 143; petition on note made by a firm, 145; petition for an account by, 354. PETITION — What it must contain, 43; the heading made matter of substance, 43; ordinary and concise language, what its meaning, 44; facts are to be stated, not evidence, 44; how are the facts to be stated, 44, 46, 47; are cases at law and equity to be stated alike, 44; the statement must conform to nature of case, 44, 45; as to cases depending on legal rights, 45, 46; peti- tion under section 122, 50; it must state making of note, bill, etc., 50; prayer or demand for relief, 53; what it must state or ask for,. 23; separali 834 UTDEX. PETITION— Continued. cwuses of action to be separately stated and numbered, 54, 55; vei-ification of petition, 97, 98, 99; (see Yerificaiion;') supplemental petition, when allowed, 104; beginnings of petitions, 129; common counts, 132 to 143; by surviving partner, 143; by husband and wife, Ifl; by executors, ad- ministrators, and against them, 144, 145; on promissory notes, 145, et seq.; (see Promissory Nates;') how the amount demanded is to be stated in peti- tion, 146; how claim for interest to be stated, 146; on bank checks, 155; (see Bank Check;) on bills of exchange, 155, et seq.; (see Bill of Exchange;) on policies of insurance, 164; (see Insurance;) on awards, 167; (see Ar- bitrament;) on contracts of forbearance, 169; (see Forbearance;) on warran- ties, 170; (see Warranty;) ■ on sale of real estate, 174; (see Vendor and Purchaser;) on guaranty for goods sold to a third person, 176; (see Ouar- anty;) on promise to marry, 178; (see Marriage;) on promise to serve, 179" (see Service;) on contracts of agents, etc., 181 ; (see Agents;) against wharf- ingers, 182; (see Wharfingers;) on by-laws, 183; (^sea By-Laws;) on judg- • ments, 185; (see Judgments;) on contracts under seal, 186; (see Deed;) on leases, etc., 189; on special contracts, 196; (see Special Contracts.) Petitions on torts, 200; for keeping a vicious dog, 200; for keeping dog accus- tomed to kill animals, 201; for sheep killed by dog of defendant, 201; for nuisances, and obstructing way and flowage of water, 202; (see Nuisance;) for malicious prosecution, 210; (see Malicious Prosecution;) for libel and slander, 213; (see Slander and IaM;) for criminal conversation, 216; for careless driving, 219; (see IVaspo**;) against railroads, 220; {see Sailroads;) against common carriers by land and water, 228; (see Common Carrier;) against an innkeeper for loss of goods, 232; against surgeon for negligence, 232; against bailees, 234; (see Bailee;) for deceit in sales, 235; (see Deceit;) for negligence in driving and navigating, 239; (see Negligence;) against sheriffs for misconduct, 241; (see Sheriff;) against a witness, 245; against judges of an election for refusing plaintiff's vote, 245; for conveision of goods, 246; (see Conversion;) for trespass to the person, 248; for false imprisonment, 250; for injury or trespass to personal property, 250; for injuries to real estate, 252; (see BecU Estate;) for replevin of property, 255; against justice of the peace, for negligence, 255; against boarding-house keeper, for loss of goods, 256; against persons selling liquor, 257; (see Intoxication.) For petitions in Error, etc., see ffiose heads. Petitions in equity — On a note and mortgage, 344; on a mortgage, where there is no note, 347; vendee v. vendor, for specific performance, 350; vendor v. vendee et al., for same, 252; vendor v. vendee et al.j to enforce a lien for purchase money, 353; petition by partner for an account, 354; by judgment creditor v. creditor et al., to set aside a fraudulent convey- ance, 355; to deliver up notes and account for a trust, 357; by suroty, on a note, to compel payment of it by the principal, 358; to stay waste, 359; to cancel an agreement, 360; to set aside a deed obtained by fraud, 361, 362; on a lost note, 363; for settlement of mutual accounts, 365; to adjust loans on real estate, 367- INDEX. 835 PLAINTIFF — What, and who, 4; who must be plaintiffs, 8; the number of plaintiffs, 12; rule as to actions founded on principles of law, 12, 13; rule as to actions founded on principles of equity, 12, 13; plaintiffs as affected by subject of action, 12, 13, 14; where parties interested are numerous, a few may sue for all, the rule, 13; married women, when plaintiffs, 14; infants how to sue, 15; how stated in petition, 128; partners v. partners, 128; infant plaintiff. 128; executor r. executor, 129; administrator v. ad- ministrator, 129; surviving partner, 129; want of plaintiff set up in answer, 284; misnomer of plaintiff, 285. PLEADING — What allowed, 43: principles of pleading not abolished, 72; the petition, what it must contain, 72; facts, not evidence, to be stated, 44; how cases at law and equity are to be stated, 44, 45, 345; as to cases depending on legal rights, 45; to be stated substantially as under the old system of pleading at law, 45, 46, 47; each case to be stated' according to the law governing that particular case, 47; what need not be stated, 48; presump- tions of law need not.be alleged, 48; nor facts of which couij takes judi- cial notice, 48; pleading private acts, 49; our courts take judicial notice of them, 49; in slander, enough to say that words were spoken of plaintiff, section 124 does not change the law in Ohio, 50; performance of condi- tion precedent, hrfw pleaded, 51; a general averment of performance enough, 52; there can be but one statement of a cause of action, 52; as to cases depending upon principles of equity, 52; to be stated as in stating part of a bill in chancery, 52; several causes of action, how to be stated, 54; answer 61; (see Answer;) statement of new matter, what and how- pleaded, 67, 82; (see Nev) Matter;) may plead in bar of part, and deny or admit the residue of a cause of action, 68; a counterclaim, how proved, 72, et. seq.; set-off, how proved, 81; facts giving courts jurisdiction need never have been pleaded in Ohio, 88; reply, what, 89; it must be only to counterclaim or se -off, 94; how regarded, 102; allegations, not denied, admitted, 102; allegation of damages, or value of articles, not admitted, 102; supplemental pleadings, when allowed, 105; rule of declaring on special contracts, 180; mode of assigning breach of covenant, 190; how defences to be pleaded in an answer, 263; the answer must bar all it under- takes to answer, 264; how to answer when there is a general averment of the performance of a condition precedent; 166, 297, (see Addenda;) how fraud must be pleaded, 308, 361, 362; how a justification in slander is to be pleaded; must admit speaking the words, 336, 337; on a note and mortgage, how stated, 339, 340; the pleadings in a case to adjust liens on real estate, can hardly be brought within the definitions of the code as to petition and answer, 368. PllACTICE — Filing of petition, 18; precipe, 18; issue of summons and indorse- ment, 19, 20; appearance, 28; time for answer or reply, 100; extension of time to plead, 100; form of order granting time, 100, 101; leave to answer after default, 101; it should be granted of course, and without conditions, 101; leave to answer after demurrer overruled, discretionary, 102; granted when defense meritorious, and did not demur for delay, 103; supplemental 836 HIDEX. PBACTICE— Continued. pleadings, when and for what allowed to be filed, 104, 105; motion, notice^ entry for, 105; how several causes of action to he stated, must be sepa- rately, 129; proceedings on trial of a case by jury, 502-522; proceedings on submitting a case to the court, 527, (see Trial, Verdict, Jury;) proceedings on trial by referees, 530; (see Trial hy Beferee, Reference;') mode of except- ing, 543; (see Bill of Exceptions;) motions for new trials, 546; (see New Trials;) mode of obtaining the admission, inspection of papers, diocuments, etc., 666; (see Inspection;) on error, 679; (see JStror:) PRECIPE — Forms of, on filing petition, l8, 19; what it must state, 18; must be filed with petition, 19. PEAYBB FOE BELIEF OE JUDGMJENT, 53: how to be stated in reference to class of action, 58: in actions for recovery of money, 54; in real actions, 54; in equity -cases, 54; form of, to petition with several causes of ac- tion, 129. PEIVATE^ACTS— Need not be pleaded, 49; our courts take judicial notice of, 49. PEOCESS— Its stylo, the State of Ohio, county, 713. PEOMISSOEY NOTES— Petitions on, 145 et seq.; payee v. maker, 145; on note made by a firm, 145; on a note partly paid, 146; how interest to be stated and calculated, 146, 147; on note payable on demand, with aver- ment of demand, 147; on note made in another State to recover the interest of that State, 148; on a note having a wrong date, 148; on a note payable at a particular place, 149; no demand necessary on such a note, 149; on -a, note payable in installments, 149; indorsee v. maker, 150; bearer v. maker, 151; indorsee v. indorser, 151; averment of want of funds, 152; averment of maker not found, 152; surviving payee v. maker, 153; payee v. surviving maker, 153; husband and wife on note payable to her when sole, or given during coverture, 153; against husband and wife on her note, 154; joint action «. maker and indorsers, 162; indorsee v. maker and indorsers, 162; what such a petition must show, 163; the liability of parties not changed by a joint action against all, 163; general denial to action on, 266, 268; special denials to actions on, 269, et seq.; when note, bill, etc., is satisfaction or payment of a contract, or former note, 294j et seq.; when a suit in equity will lie on a lost note, 364. EAILEOADS — Actions v. 220; for not carrying passenger safely, 220; how injury to be stated, 220; engineer v. railroad, for negligence of oflScer, 221; how far liable to its servants for injuries, 222, 223; engineer v. railroad com- pany, for injury from use of condemned locomotive, 222; mail agent v. railroad company, 224; agairist railroad company, for killing cattle, 225; the law on the subject stated, 226; against a railroad as carrier, 228. EEAL ACTION — In, must claim for damages and rents, for they can not l>e recovered in another action, 40; petitions on sale of real estate, 174; action by one in possession against one setting np adverse claim, 653; wherein the code differs from prior statute, 653; that required possession and title, this possession alone, 653; what the petition must desciibe, 654; what petition, in an aQtipn to recover possession of land, must state, 055; petition. INDEX. 837 REAL ACIIO'^— Continued. what to state, 655; the anjwer to such an action, 655; it must deny title of plaintiff, 656; or the wrongful detention of possession, 656; what amounts to a defense, 656; anything that shows a lawful possession, 656, 657; a lease, contract to purchase, 656, 657; new trial, 660; waste and damages, how recovered, 661. Forms — Petition to quiet title, 662; petition to recover real estate, 662; count for rents, damages, etc., 663; denial of plaintiff's title, 663; denial of wrongful detention, 663; verdict of jury, 663; judgment of court, 664; entry of demand for second trial, 664; application for benefit as occupying claimant, and proceedings thereon, 664, 665. EEAL ESTATE — Petitions for trespass to a dwelling house, 252; for trespass to lands, 253; for digging a coal mine, 253; for taking iron ore, 254. Trespass for mesne profits, 254; denials in actions on a sale of, 281, 265, 266, 272; the meaning of the issues, 282; entry to get defendant's goods on plaintiff's land, 335; adverse enjoyment for twenty-one years, 334; road founderous, and went on plaintiff's land, 334; license and right of way, 333; defect of fences, and when available, 322; cut limbs of trees for hanging , over, and shading defendant's land, 331._ • RECEIVER — Order of appointment in attachment, 412, 427; w^en and how appointed, 459, 462; the principle on which property is placed in the hands of receivers, .460; who may be appointed, 462; their duties and powers stated, 463. Forms — Motion to appoint, 464; notice of application, 464; order of appoint- ment, 464; who may approve the undertaking, 465; order to sheriff to take property not delivered, 466; attachment for contempt, 466; sheriff's return, 467; order on hearing, 467; order for receiver to sue, 467. RECORD — What, and how kept, 722; daily minutes, and mode of authentica- tion, 723; the code does not seem to require it to be signed, 723; complete record, and how made up, 754; plea of no record, 306, 307; appearance docket, with form for, 722', 723; trial docket, 515; 723; (see Dockets;) the execution docket, 725; form for appearance docket, 723; form for complete record, 724; form of execution docket, 726. REDUNDANT MATTER— What is, 120, 121, 122; may be stricken out on motion, 120; when and how motion to be made, 122; form of motion, J23; an entire pleading can not be stricken out as redundant, 121. REFERENCE, OR TRIAL BY REFEREES— How to be obtained, proceeded in, and reported, 530, et seq.; (see Trial by Referees;') to be referred by consent, as on motion, 531; court may refer in cases of certain accounts 531; motion not to be made till issue made up, 532; it may be opposed by affidavits, and on what grounds, 532; when court can compel reference, 533, 534; the law of equity stated, not where party is entitled to a jury trial, 534, 535; in cases of partnership and trust accounts, reference can not be ordered until court have found the existence of partnership or trust, 532: reference as to collateral facts, 532; referee defined, 533; reference defined, 533; powers of referees stated, 534; proceeding? on reference, 536; 838 INDEX. EEPBEENCE, OB TEIAL BY EEPEEEES— CoreiiriMeiZ. report of referees, how and by whom to be made, 539, 540; for what it may be set aside, 540; judgment on it, 540; fees of referee to be alliwed by court, ^41; forms of agreements, orders, reports, etc., 541. EEMEDIES— Not rights, are changed by the code, 3. EENT — Answers to actions for, 312, 313; when non-demisit and nil habuit not good, 312; no rent in arrear, eviction, assignment, 313, 314; when plea of assignment good, 314; tender of rent on the land, 315. EEPLEVIN— What petition in should aver, 255, 393; for what it will lie. 404; when it can be brought, by and against whom, 393; this remedy like old action of replevin, 393; the action must be in the name of the person having possession, 393, 405; plaintiff must be entitled to immediate posses- sion, 393, 404; the afBdavit, what it must contain, 394; the order and its execution, 395; sheriff must decide on sufficiency of sureties and indorse his approval, 395; how value of property to be ascertained, 395; notice of exception to sureties, 396; bail when liable to be proceeded against, 396. Forms, of petition, 255, 396; of affidavit, 397; order of delivery, 397; pkin- tiflF's undertaking, 398; report of appraisers, 398; sheriff's return, 398. Pleas in, general denial, 399; special denials, 399; plea of property, 400; Verdicts in, 400, 401; judgments in, 400, 401, 402; pleadings what, and defenses how set up, 402, 403. EEPLY — What, 89, et seq.; no reply to matter of defense, 89, 90; matter of defense to counterclaim and set-off may be replied, 90, 94; demurrer not a reply, 90, 91, 92; time to reply, 100; reply after demurrer overruled, when granted, 102, 103; supplemental reply, when to be filed 104. EEPEESENTATION— As to parties, its meaning, 13, 14. EESIDENCE— What, usual place of, 21. EETUENS — Sheriff's, to summons, with forms, 22, 23, 24; of personal service, 23; of service on a minor, 23; of service on a corporation, 24; of service on agent of insurance company, 24; of service on a foreign corporation, 25; of service of an order of replevin, 398; of service in attachment, 425, 426,' 429; in cases in dower, 754, 756; on executions by sheriff, 626; on sub- poena, 480. EEVIVOE OF ACTIONS— How to be done, 648; forms, entries, orders, for, etc., 650. EIQ-HTS — Are founded on principles, whether of common or equity law; these are not affected by the code, 3. EULES OF CONSTEUCTION, 1; code to be liberally construed, 1; its meaning, 1. SCHOOL DIEECTORS— Liable for refusing to receive children in school, i;46. SCHOOLMASTER=^Answerof, for correction of scholar, 325. SERVICE OF SUMMONS— When and how, and by whom to be made, 20, 21; deputation of private person to serve, 21; to be made by delivering of copy to defendant, or by leaving copy at his iisiwl residence, 21; what is one's usual residence, 21; defendant may admit service by writing on the summons, 21; construction, when and how made, 25; forms of affidavit and notice 25 for service of subpoena, see D^aoaition. INDEX. 839 SERVICES — Counts for, various kinds, 139: as undertaker, 140; for not receiving one hired, 179; on building contract, 180; rule of pleading, 180; denials in action for, 265, 275. SET-OPF — When it can be pleaded, 80, 81; to an action founded on a contract, 80, 81; what can be set-off, 80; must be a cause of action arising upon a contract, or ascertained by the decision of a court, 80; judgments of anjr_ court can be set-off, 81; the manner of pleading a set-off, 81; several mat- ters must be stated in one count of set-off, 81, 82; reply, what, 90, 94; must be matter of denial on defense, 89, 94; form of an answer of, 341;^ how the matter to be pleaded, 342. SHAM ANSWER — Defined, 86; can be none when put in under oath, 86. SHERIFF — Actions v. on bond, form of petition, 188; when liable to interest, 189; against. a sheriff for losing property levied on, 241; the law referred to and noted, 241; against sheriff for an escape, 242; the law stated in brief, 243; for a false return, 243; the law in the case referred to, 244; the nile of damages is prima facie the amount of the execution, 244; no special damage need be proved, 244; demiah in actions against, 280; return in replevin, 398; sheriff's duties on execution, 587, 626; (see Execution;) general duties of sheriff, 714; to indorse on all writs the day and hour it was received by him, 714; his duty to execute all process, or liable to be amerced, unless prevented by inevitable accident, 714; he shall adjourn court on third day, if judge or a quorum of judges fail to attend, 714; his fees and duties on writs from other counties, 714. BLANDER AND LIBEL— Petition in, is not changed by sec. 124, 50; sufBcient to say, spoke of plaintiff, 50; justification in slander and libel must admit the publishing or speaking, 87; it is not sufficient to say the words are true, 87, 88; facts in mitigation may be given in evidence, in all cases, without being pleaded, where there is a plea of justification, 87, 88; history of sec. 125, no application in Ohio, 87, 88; petition for charging one with larceny, 215; petition for a charge of perjury, 215; as to inducement and innuendo, 215; denials to actions for, 279, 318; what is in issue on general denial, 318; justification of a charge of larceny, 335; evidence in mitigation, what, and when received, 319; the answer must admit the speaking of the words, 336; justification for calling a woman a whore, 336, 337; the answer must justify the specific charge, 337; justification of a charge of perjury, 337. SPECIAL CONTRACTS — Petitions on, 197; against one for not giving notice of the non-payment of a bill, 196; a banker receiiving a bill is responsible for any neglect in making demand and giving notice, 197; on contract to employ one as attorney, 197, 198; defenses of new special contracts, in place of one sued on, 295 to 305. SUBMITTING A CONTROVERSY WITHOUT ACTION, 710. SUBPCBNA FOR WITNESS— Form, 479, 480; duces tecum, 480; form for taking the deposition of witness, 480; return of officer or other person serving, 430. SUNDAY — No verdict can be received on, 519; no judgment rendered, 519; cases referred to, 519. 840 INDEX, SUMMONS— What, and when to issue, 19; form of, 19; should state age of minor defendants, 19; indorsement on to be made by clerk from precipe, 19; form of indorsement, 20; to be made in action for recovery of money only, 19; the meaning of this language, 19, 20; (see Addenda;) when summons to be returned, the day must be stated as well as the day of answer, 20; service, how to be made, 20, 21. SUPPLEMENTAL PLEADINGS— When allowed, 104; the matter must have occurred since the filing of former pleading, 104; to be filed on motion with notice, 105; form of notice, affidavit, and entry, 105. SUPERVISOB^Petition by, for refusing to work on roads, 184. SUEETY — For costs, when and how to be given, 716; forms of proceeding* against, 721; when he may, by suit, compel principal to pay, 711; wheij he may obtain indemnity before debt due, 711; in undertakings, where to reside, his ability, 715; plea of time given to principal, 304, 310; reference to the cases on the subject, 310. SUEGEON — Petition v., for negligence, 233; how the negligence should be stated, 234. TENDEE — Answer of, 290; answer of tender of part, and denial of residue, 291; manner of pleading tender of part, and payment, release, or denial as to residue, 291; tender admits the cause of action as stated, and amount ten- . dered to be due, 291; tender must be kept good, 292; form of answer of tender of rent on the land, 315; as to ihe law of tender in such cases, 315. TIME — How computed in various cases, 390, 714; when after or from a certain day, that day excluded, 390. TRESPASS- Petitions, 219, 239; for careless driving, 219; the character of injury, how to be stated, 219; as to duty of coach owner, as to care, 219; for not carrying passenger safely on railroad, 220; for carelessly navigating ships, etc., 239; for injury to the person, 248; for common assault, 249; how to state special damage, 248; by husband and wife, for injury to her, 249; for false imprisonment, 250; for chasing cattle, shooting dog, cattle, etc., 251; for taking goods, etc., 251; for letting a boat adrift, 251; for trespasses to real estate, 252; (see Meal Estate;) denials in actions for, 318, 275, 281; answer of son assault demesne, 321; what may be justified in defense of the person, 321; what in defense of property, 331; in defense of son, 322; other forms, 323; goods on defendant's land, and he moved them, 330. TRIAL — Defined, examination of issues of law and of fact, 499; issues of law, when and how tried, 499; issues of fact, how tried, 500; what actions tc bo tried by n. jury, 500; whole actions must be for money, 38; for specific personal property, 500; for specific real property, 501; for recovery of money, 501; whole action must be for recovery of money, 501; when it n?.ay be waived, and how, 501; what issues to be tried by court, 502; what issues must, by Constitution, be tried by a jury, 502; time of trial, how cases to be placed on trial docket, 504; when docket to be made out, 505; what cases to be placed on it, 505; proceedings in trial by jury, 506; HTDEX. 841 "'- ~— "- ' ■ — ■■" ■ ■ - - ■ ■ ■ --11 ■ ■ ||„| . . ... TB.IAL— Continued. the plaintiff to state his case first, 506; the Inconsistency of this, when defendant opens, 506j defendant to utate his case next, 506; which party is first to produce evidence, 506; the rule of code compared with former rule, as settled by the cases, 506, 507; is it a matter of discretion with the judge, 507; if matter of discretion, his decision not subject to review, 508; after parties have offered evidence in chief, confined to rebutting evidence, unless court allow a dep,prture from that rule, 508; when evidence con- cluded, either party may request instruction on the law, in advance of the argument, 508; parties may then submit, or argue the case, 508; the rule where there are several defendants, 508; must have ^arate defenses, 508; court may'irequire counsel to confine his argument to the case made, 509; the duty of the court to see the truth found, 510; the duty of counsel on a trial the same, 510; after argument, the court to charge the jury, 510; the duty of the court in so doing, 510; the judge has the right to express his opinion on the weight of evidence, in what cases proper, 511; where no conflict of testimony, court should charge directly on the law upon the facts, 512; where court asked to charge on a series of propositions, it may refuse all if one is wrong, 512; court may allow jury to take a view of premises, 512; how the jury may decide when case submitted, 513; duty of officer having charge of jury, 513; when jury may "be discharged, 513; ground of discharge should be stated, 513; the case may be re-tried, and when, 513; how the verdict shall.be announced, 514; either party may require jury to be polled, 514; proceedings on polling a jury, 514; the ver- dict must be in writing, and signed by foreman, 514, by the Ohio law, there is no foreman, 514; the inconveniences of this practice, no reason for it in Ohio, 515; verdict either general or special, 515; when jury may render either, and when court may require a special finding, 517; as to the assess- ment of damages, or amount due, 517; verdict must respond to all the issues, 517; what to be done when amount of verdict exceeds the sum dr damages claimed, 518; plaintiff may remit excess, or amend on giving new trial, 518; where there are several counts, 519; verdict can not be received on Sunday, 519; some courts hold it may be received, but no judgment can be entered, 519. Forms— Empannelling of jury, 521; entry of default, and assessment of dam- ages, 521; verdict for plaintiff on general denial, 521; same for defendant, 522. For other forms of verdict, see Verdict. Trial by the court— When a jury may be waived by the parties, 527; when by leave of the court, 527; how the waiver must be evidenced, 527; what finding or verdict the court shall give, 527; parties may request a special finding, with a view of excepting to the opinion of the court, 527; the con- venience of this practice in certain cases, 527; forms of waiver of jury, and submission to court, 528; forms of written consent, journal entry, 528; entry of oral submissions, 529; damages assessed by court on default, 529; when to be assessed by court or jury, 529. Trial by referees— What may be so tried, 530; when by consent of partiea, 842 IIJBEX. TBXAlr— Continued. and when by order of couft, 530; the court, or a judge in vaoaSon, may make the order of reference, 531; how to be applied for and appointed, 531; nourt not bi)und to appoiiit persons suggested by parties, 531; when it is not referred by consent, it must bo done on motion to the court or a judge, 531; when court can compel a reference, 532, 534; not where a party can claim a trial by jury, 535; in what cases a fact must first be found before a reference can be made, as trust, partnership, etc., 535; referee and reference defined, 535; power of referees stated, 534; to hear and determine the issues submitted, 534; he can not change the issues, 534; nor can he order production of hooks, etc., 534; he can administer oaths, 534; reference on collateral matters, 532, 536; proceedings on reference, 537; to have notice of their appointment, 537; when notified, they to fix time and place for first meeting, 537; can Compel attendance of witnesses, 537; it is to be Uke any other trial, the same rules of evidence to 'be observed, 538; referees may adjourn, 539; all must meet, a majority may decide, 539; either party may except to any ruling or decision made on hearing, 539; report of referees, and what it must contain, 539; a majority may decide, 539; the report is like the verdict of a jury, and may be set aside by the court for good reasons, 540; when it will be set aside, 540; judgment on report, 540; fees of referees to be allowed by court, 541. Forms — Agreement to refer, 541; order of reference on written consent, 541; order of reference on oral consent, 541; report of referees, 542; entry of adjournments, 542; various findings in equity cases tried by the courl^ 576-581; (see Judgment Forms.) TRUST — Petition in case of, 337; what is a trust, 358; where note taken to col- lect and apply on a debt, 358; denials of a trust, 373, 376. UNDERTAKINGS— Of bail, 391; of plaintiff in getting order of arrest, 389; of plaintiff in replevin, 398; of plaintiff in attachment, 423; for delivery of attached property, 424; of receiver in attachment, 427; of defendant in attachment to obtain its discharge, 428; of garnishee to pay or deliver property, 432; on allowance of an injunction, 451; on judgment for vio- lating injunction, 455; on error for supersedeas, 694; on. allowance of injunction, 451; of master commissioner, 584. USE AND OCCUPATION— Petition for, 134; not necessary to describe prem- ises, 134; will not lie when the holding is adverse, 134; the use of lodging, and board, and for pasturing, 135. VARIANCE— What is, defined, 118, 119,' 120; what variance material, 118; not material unless mislead party, 118; party to be allowed to amend instanter, when, 119; when entitled to continue, 119; non-joinder of de- fendant, not a variance that must be pleaded, 120. VENDOR AND PURCHASER— Petition v. vendee of real estate sold at auc- tion, 174; petition for not completing the sale, 175; answer to action on notes, that vendor had not offered to convey, 297; petition for specific performance by vendee, 350; when a real contract will be executed, 351; vendor v. vendee et als, 352; to enforce a lien of purchase money, 353; INDEX. 843 VENDOR AND PURCHASER— ConfenMci. • when such a lien exists, 354:; plea of bona fide puitliiuer, 376; plea of statute of frauds, 375. VENUE — Actions must be brought where the property lies, 16, -vhere the cause of action arose, 17; where defendant may be found, 18; when defendant iji a corporation, 17, 18; when defendant is a turnpike company, 17; when defendant is a mail stage company, common carrier, or railroad, 17; at common law, never applicable to the practice in Ohio, 43. VERDICTS — In replevin, 400, 401; in general, how to be returned, 514; must be in writing, signed by foreman, 514; there is no foreman known to tha law, 514; the court appoint one in New York, hence the rule there, 514; how far a verdict may be amended, 515; general or special, the difference, 515; special verdict must find facts, 516; difference where papers have a certain legal effect, here well to find the papers, 516; in what action either verdict may be returned at option of the jury, 516; what shall be done with special verdict, 517; in what cases court may direct a special finding, 517^ court may require jury to find on certain facts, when, 517; when jury must assess the amount due in the verdict, 517; the verdict must respond to all the issues, 617; verdict on different issues, how it may be, 518; jury can not find a greater sum than is claimed, 518; if they do, what can be done, 518; verdict in tort, how to be made up as to damages, 518; where -part of defendants plead and part do not, 518; where there are several counts, how damages to be assessed, 519; a verdict can not be received on Sunday, 519; in some States it may be received, but no judgment can be entered, 519. Forms of, assessment on default, 520; on general denial, for plaintiff, 520; on general denial, for defendant, 521; on nil debit, 521; on denial of making a note, etc., 521; on various special issues arising in actions on notes, bills, etc., 521, 522; on plea of payment, 522; on plea of tender, 523; on answer of psiyment of a fixed sum and nothing due beyond, 523; on an answer admitting a sum certain and denying any balance, 523; on answer of not guiltj', 524; on an answer setting up new matter, 524; the propriety of Buch a general form, 524; on a set-off, 525; in an action on a note with a . counterclaim, 525; in an action for rent and counterclaim, 525; in an action for use and occupation, with a counterclaim founded on a written lease, 526; verdicts in cases tried by the court, 576-581; (see Judgment for enumeration.) VERIFICATION OP PLEADINGS, 96; every pleading of fact must be verified by the party, his agent, or attorney, 96, 97; by corporation, made by ofBcer, etc., 96; no verification by guardian, 96; how verified, according to belief, 96; all parties to a joint answer on a note, bill, etc., must verify it, 96; when made by attorney, etc., reason m^lst be stated, 97: when attorney may verify, 97; a defect in verification to be taken advantage of by mo- tion, 97; forms of verification, 97, 98; before whom it must be sworn, 99. WAGES — Petitions for, generally, 138: as sailor and master, 139; as attorney, laa 844 INDEX. WARRANTY — Petition on a warrant on a sale of horse, etc., 170; on a warranty on an exchange, 171; how the warranty must be stated, 172; vendor war- rants title, 172; good will does not imply, 172; article sold by sample, 217; an article, sold for a particular purpose, is impliedly wairanted as fit for that purpose, 172; a general warranty does not extend to apparent defects, 173: the particular unsotindness need not be stated, and when special defects are stated under a general averment of unsoundness, other defects may be proved, 173; on a warranty to put up meat for the English market, 173;, on a warranty of mill stones, 174; the price to be paid need not be stilted, but if stated, it must be proved as stated, 174; breach may be assigned as broad as covenant, 174; mode of assigning breach of covenant of seizen, 190; on covenant of general warranty, 193; there must be an eviction, oi what is equivalent, 194; grantee v. grantor, 195; general form of averment, sufficient, 195; assignee v. grantor, 195; heiis v. grantor, 195; denials to actions on, 265, 266, 272. WASTE— Petition for, 359; way, right of, answer, 333. WBARPINGrBR — Petitien v., for losing goods delivered to be shipped on a par. ticular vessel, 182. WITNESS — Petition v., for-jiot attending under process, 245; action lies at com- mon Isvw, ^45; BO also for witness refusing to testify, 245; denial to the action, 280; who competent witness, 468; who not, 469; how witnesses summoned, and attendance enforced, 469; subpoena for, and by- whom issued, 469; not obliged to attend out of county, 470; when liable to be attached, 470; punishment of, for contempt, 470; what attachment shall specify, 471; witness in prison, how attendance procured, 471; not liable to be sued in county where he does not reside, while going and returning, 471; may demand fees of sheriff, and each day, 471; how sworn before testify- ing, 471; mode of taking testimony of, 472; three modes, by affidavit, dep- osition, and oral examination, 472; subpoena, form of, 479; subpoena diicea tecum, 479; the law regulating the duty of witness to produce .papers under it, 479; demand of fees, by witness of officer, 481; its inconvenience pointed out, 481; attachment v. witness, 481; entry of witness, default in attending, 482; motion for attachment, 482; what service will justify attachment, 482; rule to show cause why attachment should not issue, 482; how served, 483; entries on hearing, 483; entry where witness refuses to be sworn or testify, 484; oath of witness, 485. WORK AND LABOR— Counts for, 139, 140.