QJnrnpU ICaui ^rljnol ICtbrary Cornell University Library KF 8840.F75 1900 Foster's First book of pracS a' jommo 3 1924 020 178 624 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/cu31924020178624 FOSTER'S First Book of Practice AT COMMON LAW, IN EQUITY AND UNDER THE CODES. WITH FORMS. By LEMUEL H. JQSTER, Of the Detroit Bar. SECOND EDITION. detroit, mich.; The Collector Publishing Company. July, 1900. -B 7f3 52. COPYRIGHT 1900, THE COLLECTOR PUBLISHING COMPANY. PREFACE TO THE FIRST EDITION. For many years the author has felt that there ought to be a practice book especially adapted to the needs of young lawyers, containing answers to the numberless questions arising in the practice of the law, and directions, suggestions and definite infor- mation along practical lines that are not contained in law books generally, or, if contained in them, so hidden as not to be of easy access. Questions relating to court practice, and particularly with reference to the commencement of actions, are fraught with difficulty to the student entering upon the practice of the law, however thorough his preparation in its theory. This book is offered as a practical guide and handbook that will serve to meet the need sO' long felt for something that will enable the young lawyer to commence and carry on his cases with reasonable secur^ ity against making some one or more of the many fatal blunders which young practitioners are liable to make and from which old practitioners are not entirely exempt. In preparing this book I have purposely avoided, as far as possible, the discussion of sub- stantive law. ^Necessarily I have stated the well established rules of law and practice, but where I have done so I have not entered into a discussion of the reasons upon which such rules are founded, my object being to provide a book that should point out the course to be pursued in given cases, and the rules to be fol- lowed, the dangers to be. expected and the methods of avoiding them. In the citation of authorities reference has been made to lead- ing cases only, or to cases which most clearly illustrate or strongly fortify the position taken. Each case has been carefully selected with regard to its special fitness for this purpose. The style of PREFACE. the book I belieye to be justified by its purpose and the necessity of impressing by the most direct and forcible language the im- portance of the points made. Each form of action is discussed separately and in order, from the preliminary steps necessary before the commencement of the action to its terminating steps. Pleading and practice under the common law, under the codes and in equity, are treated after this manner. All special- proceedings, such as attachment, arrest, garnishment, mandamus, habeas corpus, etc., are fully discussed and the line of procedure in each carefully outlined. Carefully selected forms are introduced in their appropriate places, for some of which I am indebted to the well-known works of Chitty, Story and Oliver, and to Daniel's Chancery Practice. I may.be pardoned for expressing the belief that there is much contained in this book in the way of practical suggestion and information that will not be found in any otherbook. I send it forth as the result of experience, and as such a book as would have saved me endless time and confusion had it been in my possession in the first few years of my practice. LEMUEL H. EOSTEK. Detroit, Michigan, December 1st, 189Y. PUBLISHERS' PREFACE TO THE SECOND EDITION. The prompt and ready sale with which the first edition of this book was greeted showed that there was need of a practical treatise, in condensed form, giving the points of Practice not given in the books heretofore published or, if given, hidden beneath a mass of verbiage. The author has revised his work entire, in the light of suggestions made to him since the work was first published, and has somewhat enlarged the book, par- ticularly in the matter of annotations and forms, and the citation of the late decisions. This work by Mr. Foster has gained for itself a place in legal literature, where it stands pre-eminent as a work for young law- yers, and especially for law students about to enter upon the practice. THE PUBLISHEKS. Table of Contents. OHAPTEK I. PRACTICE. Practice 37 Practice defined 37 Practical suggestions to young lawyers 38 Observations in relation to answering hastily questions asked by clients 3S Tests for determining the truth of client's statements of facts 38 Questions to be considered before commencing legal proceedings 40 How to commence an action 41 Issuing the writ or other process -42 Praecepe-for writ 42 Damages, amount of, how laid 42 Security for costs 43 Service of papers 43 Filing the declaration 44 Outlining the defense 44 Questions to be considered in outlining a defense 44, 45 Bibliographic note 46 CHAPTEE II. ASSUMPSIT. Assumpsit, when the proper remedy 47 Considerations before bringing the action 47 Statute of limitations 50 Statute of frauds 50 Breach, what constitutes a breach 48 How assigned 5S Several may be assigned 53 Parties, who should be joined as 48 Joint contractors 49 Rule for determining who are, and whether contracts are joint or several, or are joint and several 49, 50 How made parties plaintiff or defendant 49, 50 7 8 TABLE OF CONTENTS. Declaration, The ; 51 Upon the common counts 51 What must he set forth in the declaration 52 When a good consideration must be alleged and proved 52 Where the general averment of a demand is sufiScient 52 In what cases a special request must be alleged 52 Special counts, when necessary 54 Forms of — See index of Forms. Variance, defined and effect of -53 How contracts and other instruments in writing should be set forth, to avoid 53 Practice in cases of variance ; 53 Damages, measure of 54 General and special defined 54 How special damages may be recovered '. . 54 Abatement, pleas of, defined 60 When proper 60 Order in which they should be pleaded 61 Practice in relation to pleas in abatement 65 Forms of — See index of Forms. Bar, pleas of, defined 65, 66 Their effect 66 By way of traverse, when proper 66 By way of confession and avoidance, when proper 66 Practice under -67 Forms of — See index of Forms. Replications 69 Forms of — See index of Forms. Demurrers, practice in relation to 70 General issue 71, 72 What may be shown under 72 Set-off, nature of 73 What may be set-off 73 How pleaded 74 Effect of 75 Recoupment 75 When proper 75 Effect of 76 Bibliographic note 77 CHAPTEE ni. TRESPASS ON THE CASE. Case, the proper remedy when 78 Will not lie where trespass is the proper remedy 79 Distinction between case and trespass 79 TABLE OF CONTENTS. 9 Case, the proper remedy when— Continued. Rules for determining whether ca,se or trespass is the proper remedy 79 Personal injuries, actions for 80 Carriers, railways, etc., duties and liabilities of 81 Negligence, defined 82 Contributory negligence defined 83 What does not constitute contributory negligence . .• 83, 84 Master and servant 85 The relation defined 86 Liability of master for negligent act of servant 85, 86 Servants, who are 86 Liability of temporary master 87, 88 Fellow Servants, who are 90 Doctrine of the non-liability of the master to his servant for injuries caused by the negligence of a fellow servant discussed ; ' 88, 94 Independent contractors, doctrine of explained 94 Who are independent contractors 95, 96 Proximate cause, doctrine explained 96 Remote cause, doctrine explained .' 97 Slander and libel, when the action will lie 9S Malice the gist of the action 98 Words actionable per se, what are 99 Words .actionable by reason of special damage 100 Inuendo, purpose and effect of 101 Publication, what is, what is not 101 Privileged communications, doctrine of 102 What are, what are not 102, 103 Newspaper libel 103 Damages, measure of 103 Aggravation of damage, mitigation of damages 105 The declaration 106 Defenses to the action 110, 111 Evidence Ill Malicious prosecution, when the action will lie 112 Plaintiff must show malice, want of probable cause and the termination of the proceedings in his favor 113, 114 When malice may be inferred 115 Counsel, advice of, when a justification 116 Pleadings 117 Defenses, evidence 119, 120 Damages, measure of 121 Trover, when it will lie 122, 124 Will also lie to recover the value of goods or property obtained by the defendant by means of fraudulent statements 123 10 TABLE OF CONTENTS. Trover, when it will lie— Continued. Discussion of above proposition ■...,.. 124 Demand, when necessary, when excused 125 Refusal, what constitutes 126 Conversion, what constitutes. . . ., 126 Who may maintain trover. , 126, 127 Pleadings in trover 128, 129 Evidence 129, 130 Damages, measure of 130 Deceit, what constitutes 130, 133 English rule, American rule • 131 Pleadings and evidence - 133, 134, 135 Enticing away servants 136 Nature of the action, when it will lie 137 Damages, measure of 137 Seduction 137 Who may maintain an action for 138, 139, 140 Action based upon loss of service 137, 138, 139 Damages, measure of 141 Nuisances ^ 141 Public and private, what are 142 Who may maintain the action 142 Damages, measure of 144 Bibliographic note 144 CHAPTER IV. COVENANT. Covenant, when the action will lie 146 Covenants in law, express covenants 146 Covenants running with the land, what are 147 Who may be made parties defendant 146 To what extent heirs and personal representatives may be made liable 146, 147 Breach of 148 Pleadings in 149 Damages, measure of 152, 153 Bibliographic note 153 CHAPTEE V. DEBT. Debt, when the proper remedy 154 When assumpsit the better remedy 154, 155 Declaration, the, and form 155 Evidence, judgments of the courts of sister states 157 TABLE OF CONTENTS. H Debt, when the proper remedy — Continued. , Delivery, proof of necessary 159 Books and papers, production of . . . ; 161, 162 Bibliographic note 163 CHAPTER VI. TRESPASS. Trespass, the proper remedy when the injury complained of was committed or accompanied by force 164 To the person 164, 165 To personal property 177 For trespass to real property 181 Assault and battery 164 What constitutes an assault 164 'What constitutes a battery 164, 165 Action will not lie when injury the result of accident 165 False imprisoninent defined 167 What constitutes an imprisonment 167 Rights and liabilities of private citizens in making arrests for criminal offences 168 Private citizen assisting an officer 169 Officer, liability of 169 Arrest in civil actions 170 Declaration, essentials of 17i, 172, 173 Defenses 174 New assignment 175 Evidence 176 Trespass to personal property. ' 177, 178 When it will lie 178 Declaration, essentials of 179 Pleas, evidence, measure of damages 180, 181 Trespass to. real property 181, 182 When it will lie 182 Six carpenters' case 183 Pleadings, evidence, damages 184-189 Bibliographic note 189 CHAPTER VII. REPLEVIN. Replevin, when the proper action 190 When it will lie to recover goods procured by fraud 191 Demand, when necessary, when not necessary, how made. . . 191 Tender, when necessary 192, 193 The writ 194 12 TABLE OF CONTENTS. Pleadings r 194 Declaration, observations in relation thereto. 195, 196 Pleas 196 Non cepit, effect of , 197 Non detinet, effect of . . .-. 197 Property, plea of, effect of 198 Avowry, when it should -be pleaded 197 Forms, see index of Forms 201 Replication, essentials of 198 Evidence 199 What may be shown under the various pleas 199 Judgment 200 Nature and effect of , 200, 201 Bibliographic note 206 CHAPTEE VIII. ACTIONS UPON STATUTES. Statutes, actions upon 207 Action must be in the form prescribed by the statute 207 In the absence of a statutory provision action may be in case or debt, according to the nature of the act or omission out of which the cause of action arose 207 Rules for determining whether debt or case is the proper remedy , . 208 Declaration must follow the statute 208 Statute need not be set out in full, must allege that act complained of is contrary to the form of the statute 208 Exceptions, how pleaded 208 Pleas 209 Bibliographic note 209 CHAPTEE IX. CODE PLEADING AND PRACTICE. Observations upon code pleading and practice generally 210 Distinction between forms of action abolished 211 Distinction between legal and equitable remedies abolished. 211 Preliminary considerations before commencing an action 212 The complaint, requisites of 213 Who should be joined as parties 213 Banks and other corporations, how described 214 Persons acting or sued in representative capacity, how described 214 TABLE OF CONTENTS. ]3 Statement of the cause of action, what it must show 214 Jurisdictional facts 215 The facts upon which plaintiff's right of recovery is based . . . 215 Statement must set forth facts, not propositions of law, or legal conclusions 216 Written instruments, how set forth 216 Unnecessary, irrelevant, scandalous or impertinent matters must not be set forth 217 Demand, when must be stated 218 Relief, the 218 Must be consistent with the case stated 218 May be both legal and equitable 219 Verification, when necessary 220 Demurrers, when proper 220 What must be set forth in 221 May be to the whole complaint or part thereof if several causes of action are stated 221 Plaintiff may demur to the answer 221 Demurrer relates back to first defective pleading 231 Not always good practice to demur 220 Answer, the 224 How divided, nature thereof 224 General denial, what it puts in issue 224 Special denials, requisites thereof 225 New matter, to what it may relate 226 Counter claim, set-off and cross-complaint, nature of and relief under 226, 227 Cross complajnt 228 When may be filed 228 Must relate to the subject matter of the action, or to prop- erty or rights in controversy in the action or connected therewith 228 May set up matters in defense to the action as well as new matters for affirmative relief.-. 229 Demurrer to the answer 229 When the plaintiff may demur to answer 229 The reply 229, 230 No reply necessary when answer is a simple denial 230 If answer sets up new matter, reply necessary 230 Every allegation well pleaded wilKibe taken to be true if not denied 230 Motions, practice relating thereto 230, 231 Forms, observations in relation thereto 232 Statutes 233 Bibliographic note 233 14 TABLE OF CONTENTS. CHAPTEE X. ARRESTS IN CIVIL ACTIONS. Writs of arrest or capias 234 Will issue only upon compliance with statutory provisions . . 234 Affidavit for, foundation upon which proceeding rests 235 What must he set forth In the aflSdavit 235 Form of the affidavit i 235 Person executing affidavit must have personal knowledge of facts alleged 235 Exemption from aYrest 236 Foreign ministers and ambassadors exempt by the law of nations - 236 Senators and representatives in Congress exempt during the sessions of their respective houses. 236 All persons in the public service of the United States exempt while thus engaged : 236 Witnesses and parties attending court, etc., exempt 236 Proceedings upon arrest 237 Prisoners will be admitted to bail, how 237 Declaration must be filed in due season 237 Discharge from arrest, proceedings for 238 Habeas corpus, proceedings under 238 Motion to quash the writ 238 Motion for discharge under the statute or by plea in abatement 239 Privilege of exemption, how claimed 240 Motion to quash the writ 240 Pleading privilege in abatement 240 Proceedings after judgment 240 Execution should be sued out within the time provided by law , 240 Demand made upon the bail to produce defendant 240 Jail limits, what are 241 Escape, what constitutes an 241 General observations in relation thereto 242 Bail, how discharged •. ■ 242 By surrender of th#body of the defendant 242 How such surrender to be made 242 Discharge of defendant imprisoned upon execution 242 Practice in relation thereto , 243 Dangers attending the proceeding of arrest In civil actions 243 Action for damages will lie for false or malicious arrest 244 TABLE OF CONTENTS. 15 Danger attending the proceeding of arrest in civil actions — Continued. Action will lie for maliciously refusing to accept sufllcient bail 244 For illegally detaining a prisoner entitled to his discharge. . 244 Bibliographic note 245 CHAPTER XI. ■ ATTACHMENT. Attachment defined 246 Proceeding purely statutory 246 Affidavit the preliminary step in all cases 247 By whom the aflSdavit may be made 248 Attorney should not make affidavit 248 Sufficiency of the affidavit 248 What must be set forth in the affidavit 248 Bond, the 248 Must conform strictly to all the statutory requirements ....'. 249 Attorneys cautioned against furnishing bonds 249 The writ, how served 249 What property subject to attachment 250 Property in the custody of the law exempt ". . . . 250 When property deemed in the custody of the law 251 Dissolution of the attachment 251 Forthcoming bond, nature and effect of 251 Bond to pay the judgment, effect of 251 Proceedings iinder the statute for a dissolution. 251 Motion or petition in the absence of a statutory remedy 252 By plea in abatement 252 EiTect of dissolution 253 Officer must restore property to defendant 253 Officer can not hold the property for his fees 253 Officer must return all the property taken 253 Dissolution will terminate the action in the absence of per- sonal service 253 Illegal or malicious attachment 254 Action for, measure of damages 254 Attorneys, liability of . , .■ 254 Liable in damages for a malicious; unwarranted or unau- thorized attachment 254 General observations upon the duties imposed upon attorneys ' 254, 255 Sheriff, liability of 256 Bibliographic note • 257 16 TABLE OF CONTENTS. CHAPTEE XII. GARNISHMENT. Garnishment defined 258 Statutory proceeding 258 Affidavit 258 Must comply with the statutory provisions 258 Process 259 Writ or summons, how served • 259 Garnishee, the 259 Who may he charged as 259, 260 Who may not be charged as 260 Liability of makers of negotiable paper. 261 Property, effects and credits 262 Definitions of these terms 262 Joint liability, how determined 263 Liability of the garnishee and his duty to make a truthful disclosure 264 Must act in good faith 265 Judgment, the effect of 266 Appeals, costs 267, 268 Bibliographic note ^ 268 CHAPTEE XIII. HABEAS CORPUS. Origin of the writ -. 269 Constitution of the United States, provision in relation thereto 269 Habeas corpus a writ of right 269 When it may be resorted to, when the proper remedy 269 In some states, judges compelled to issue the writ 271 The petition 271 The writ issues upon petition only 271 What must be set forth in the petition 271 Form of petition 272 Petition must be verified 273 The writ 273 Form of 274 The return, what must be set forth 274 The traverse, effect of 275 Proceedings upon the hearing 275 Court will remand the prisoner, when 275 Court will discharge the prisoner, when 276 Proceedings to recover the possession of children 276 Statutory provisions 276 Bibliographic note , 277 TABLE OF CONTENTS. 17 OHAPTEK XIV. MANDAMUS. Mandamus a prerogative writ 278 Mandamus under modern practice 278 When the proper remedy, scope and effect of the writ 279 From what court issued .'279 "When the writ will not be gra,nted 281 Procedure 282 Who may apply for a mandamus 282 How applied for 282 Peremptory mandamus or order to show cause 283 The return, by whom made 283 What the return must set forth 283 The alternative writ 284 Judgment upon an Issue framed may be reviewed by writ of error 284 Enforcement of writ by attachment or proceedings for contempt of court 284 Bibliographic note 285 OHAPTEE XV. ARBITRATION AND AWARD. Arbitration, nature of the proceeding 286 Common law arbitration, nature and effect of 286 Statutory arbitration, nature and effect of 286 The submission or agreement 287 What should be set forth in the submission 287 Form of an agreement of submission 288 Who may submit to arbitration 291 Attorney has no authority to submit his client's cause to a common law arbitration 2&2 Attorney may submit his client's cause to a statutory arbi- tration when an action is pending in court 292 Married woman may submit a controversy affecting her separate property when 292 Public officers can not submit a claim against the munici- pality, without express authority 292 Manner of submitting to statutory arbitration 293 Advisability of submitting to arbitration 293 Revocation of the submission 294 The award 294 Upon whom binding 295 Should be complete 296 18 TABLE OF CONTENTS. The Award — Continued. Must be certain 296 Must be mutual 296 Must be final , 297 Enforcement of the award ' ■. . 297 Common law awards may be enforced in an action of debt If upon a submission under seal or assumpsit if the sub- mission was by parol 297 Nature and order of proof 299 Damages 299 Joining original cause of action 300 Proceedings upon arbitration bond 300 Proceedings in equity 301 Defenses to the proceeding in equity 301 Enforcing statutory awards 302 Bibliographic note 302 CHAPTEE XVI. APPEALS AND "WRITS OF ERROR. Appeal defined 303 Rules relating to appeals 303 Judgments and decrees, what are final 304 Interlocutory, distinction between and final decree 304 Appeal will not lie from an interlocutory decree' 304 Who may appeal 304 Writs of error defined 305 Will lie only after final judgment 305 Who may sue out writ of error 305 Within what time writ of error may be sued out 305 How sued out, and practice thereunder 305 Errors, how brought upon the record 305 What will be considered by the reviewing court 306 Frivolous objections should be avoided 306 Bill of exception, how and when to be settled 307 What should be incorporated in 307 Assignment of errors 307 Errors, how assigned 307 Must be based upon an exception appearing on the record. . . 307 U. S. courts of appeals, rule in 308 Practice upon settlement of bills of exceptions 308 Joinder in error 309 Printing records and briefs 309 Plaintiff in error required to print the record, or an abstract thereof 309 Both parties required to file and serve briefs 309 TABLE OP CONTENTS. 19 Prosecution of the appeal or writ of error 310 Plaintiff In error or appellant must prosecute with due diligence 310 Appeal or writ of error may be dismissed for want of prosecution 310 Hearing and decision 310 Preparation of briefs, suggestions in relation thereto 310 Facts should be truthfully stated 310 Arguments should be logical, concise and clear 311 Long quotations from authorities should be avoided 311 Elementary works and text books, do not quote from 311 Authorities should be carefully verified and examined 312 Avoid citing repealed statutes or overruled cases 312 Discussion should be confined to points of law involved 313 Counsel should be prepared to answer questions 313 Advantages of oral argument 313 What questions will be reviewed by the court 313 Questions of fact will not be, as a rule 314 Verdict will not be disturbed when there was evidence, however slight, to Justify it and the question of fact was properly submitted 314 Will not review questions not raised by assignment of error 314 Objections not insisted upon in the brief, regarded as abandoned 314 Discretionary rulings and orders will not be reviewed 314 Every material question of law properly brought upon the record will be reviewed is necessary 314 When judgment will be affirmed 314 When court is equally divided 314 Where the error complained of was not prejudicial 315 Where a re-trial must inevitably produce the same result. . . 315 Harmless error defined 315 Presumptions in favor of the judgment below 315 Proceedings upon reversal 316 Rehearing 316 How applied for 316 Federal Supreme Court, review of proceedings of state courts of final resort by 316 In what cases this may be done 317 Stay of execution pending the appeal 318 Statutory provisions therefor 318 Expediency of appeal or writ of error 318 Suggestions in relation thereto 319 Questions to be considered before advising an appeal 319 Suggestions of clients 320 Bibliographic note 321 20 • TABLE OF CONTENTS. CHAPTEE XVII. ^ PRACTICE IN COURTS OF EQUITY. Equity defined 322 Jurisdiction of courts of equity 322 Maxims ... 323 Proceedings in equity ,. 328 Bill or petition 328 Frame of bill, parts thereof 329 Stating part, what must be set forth 330 Rule in U. S. Circuit. Courts ; 331 Multifariousness 331 What will render a bill multifarious 332 Scandal and impertinence 333 What statements are scandalous and impertinent 333 How determined 333 Rule in U. S. Circuit Courts 334 Confederating and charging parts and jurisdictional clause may be omitted when 334 Rule in U. S. Circuit Courts 334 Interrogating part 335 Essentials of under modern practice 335 Prayer for relief 335 Forms thereof, see index of Forms 335 Prayer for process 336 Forms thereof, see index of Forms 336 Parties to the bill 341 Who are necessary parties 341 Want of proper parties 342 How taken advantage of. 342 Unnecessary parties, who are '. 342 Appearance, proceedings to enforce 342 Defendant may be brought in by service of subpoena. 342 Non-resident defendants may be brought in by publication. 343 Attachment 343 Appearance, the 344 Must be entered within the time prescribed by rule 344 Rule in U. S. Courts 344 Costs, surety for 345 Pleadings and defences 345 Demurrer, the 345 When proper to be pleaded 346 General and Special demurrers 348 Certificate of counsel 347 TABLE OF CONTENTS. 21 Pleadings and defences — Continued. Rule in U. S. Circuit Courts 347 Forms of, see index of Forms 348 Pleas, to what they relate 349 Need not go to whole of bill 349 In U. S. courts, must be accompanied by certificate of counsel and supported by affidavit 350 In bar, effect of 349 When to be sworn to 351 Practice under 351 Answer, the 352 What defences may be made available by 354 If defendant answers, he must answer fully 353 Must be sufficient 353 Affirmative relief can not be had under 354 When must be sworn to 354 Infants, answers of 354 Forms of, see index to Forms 355 Replication, The 356 Cross bill, when necessary 357 Proceedings under 357 When may be filed m 358 Who may be made parties thereto 358 Hearing, the 359 Practice in relation to 359 Argument, the 360 Practical observations as to the style and line of 361 Submitting case without argument 361 Not Advisable for young lawyers, why 362 Decree, the 362 Rules in relation to drafting decrees 362 What decree should contain 363 Enrollment of decree 364 Supplemental bills 364 When may be filed, and how 365 Practice in relation thereto and thereunder 365 Defenses to supplemental bills 365 Revivor, bills for 366 When necessary, how filed 366 Review, bills of 367 Nature and object of 367 When may be filed 367 Petition for leave to file, form of 368 Defenses to 369 22 TABLE OP CONTENTS. Injunctions and restraining orders 370 When the court will issue ' 370 Bond, when required 372 Dissolved, how 372 Restraining orders 373 Violation o( injunction 374 Contempt proceedings 374 Bibliographic note 375 CHAPTEE XVIII. MOTIONS, PETITIONS AND ORDERS. Motions defined 376 Motions of course defined 376 Special motions defined 376 Form of motion and notice 377 Petitions, when proper 377 Forms thereof 379 Argument upon, preparation for 379 Orders, forms thereof, how entered 380 Bibliographic note 380 CHAPTEE .XIX. JUDGMENTS AND EXECUTIONS. Judgments, when may be entered 381 Stay of proceedings 381 Nature of judgments 382 Enforcing judgments 382 Judgments of sister states, how far conclusive 383 Actions upon 384 Proceedings at the trial of an action upon 385 Setting aside and vacating judgments 385 Within what time courts have jurisdiction to 386 Impeachment by bill in equity 386 Collateral attacks upon judgments 387 Judgments as a bar to another action 388 Satisfaction and discharge 389 Execution, nature of the process 390 ■ Proceedings thereunder to lay foundation for creditor's bill, 390 Levy of, effect of levy, lien 391 Proceedings under the levy. 391 TABLE OF CONTENTS. 23 Execution, nature of the process — Continued. The sale 393 The return 394 Who protected by execution 394 Void execution, effect of 394 Bibliographic note 395 CHAPTEK XX. PREPARATION AND TRIAL OF CAUSES. Necessity of thorough and careful preparation 396 How to become a successful trial lawyer 397 The trial brief 397 What it should contain and how arranged 397 Witfiesses, rules for examining before trial 398 Trial, The 398 Empaneling the jury, suggestions in relation thereto 398 Stating the case before examining the jurors 398 Suggestions in relation to examination of jurors 399 Challenges of jurors 399 When may be challenged for cause 399 When peremptorily 399 Opening the case to the jury 400 Defendant's opening, suggestions in relation thereto 400 Witnesses, examination thereof 401 Non-suit motion for, when proper 402 Defendant's case, suggestions in relation thereto 404 Objections and exceptions , 405 Requests to charge 405 Exceptions to the charge : 406 Closing arguments 407 Proceedings after verdict 408 Motion to enter judgment on the verdict 409 Motions for new trial and proceedings thereunder 409 Bibliographic note 410 CHAPTEK XXI. AFFIDAVITS AND ACKNOWLEDGMENTS. AflBdavlt described 411 When affidavit should be entitled 411 When affidavit should not be entitled 411 Jurat the, defined 412 How executed by the officer .' 412 24 TABLE OF CONTENTS. AflSdavit described— Continued. Seal, when necessary to be affixed 412 Observations in relation to drafting affidavits 413 Affirmation, nature and effect of 414 Acknowledgments ; 414 Of what an acknowledgment consists 415 Purpose of, by whom taken 415 Persons executing the instrument acknowledged should be identified 415 Liability of officer taking acknowledgment 415 To what credit certificate of acknowledgment entitled 417 When dated 416 Signing, by the officer 416 Seal, when necessary 417 Separate examination of wife 417 Liability of officer taking acknowledgment 418 Bibliographic note. 419 CHAPTER XXII. DEPOSITIONS. Depositions, taking thereof regulated by statute 420 When may be used 420 Usually taken under a commission 420 Interrogatories 421 Observations in relation to drafting 421 Cross interrogatories 421 Observations in relation to the care necessary in drafting. . . 422 Taking the depositions 422 General suggestions as to practice in relation thereto 422 Objections to questions or evidence 423 How taken and preserved on the record 423 Rule in U. S. courts 423 Opening depositions, by whom and how it may be done 424 Stipulation, depositions may be taken under 424 Form of stipulation 424 Effect of deposition 42.5 Bibliographic note 425 TABLE OF CONTENTS. 25 CHAPTER XXIII. DRAFTING DEEDS, MORTGAGES, BILLS OF SALE AND LEASES, ' AND FORMS THEREOF. Essential parts of conveyances ; 426 For forms of all the above see index of Forms. Legal requirements of a deed 429 Suggestions relating to exceptions of encumbrances 430 Powers of attorney to execute conveyances, should he recorded 431 Observations in relation to the care necessary in drafting conveyances 431 Mortgages of real estate, observations relating to 432 Chattel mortgages, suggestions in relation to 437 Bills of sale 440 Suggestions in regard to recording, or delivery of the property 441 Leases, general observations in relation thereto 442 Suggestions in relation to recording 446 Bibliographic note 447 CHAPTEE XXIV. WILLS. Practical suggestions in relation to drafting wills 448 Parties must thoroughly understand the object to be accomplished . .■ 448, 449 Construction of wills 450 Technical words should be avoided 450 Execution of wills 450 Witnesses required, how many 450 Witnesses must all be in presence of maker of will 451 Forms of wills 451 How wills should be written 453 Common practice to execute duplicate wills 453 Lawyer should carefully guard the secrets of his client 453 A lawyer's fee covers not only his services but his silence as well 454 Bibliographic note 454 Table of Cases Cited. Absor V. French, 2 Shaw, 28 182 Adams v. Wood, 51 Mich., 411 192 Alkenhead v. Blades, 5 Taunt, 198 " 188 Albro V. Canal Co., 6 Gush., 75 92 Atkinson v. Free Press, 46 Mich., 378 103 Bessex v. Chicago & N. W. Ry., 45 Wis., 477 91 Brown v. Gilchrist, 80 Mich., 56 91 Blake v. Ferris, 5 N. Y., 58 94 Baltimore R. R. Co. v. Kemp, 61 Maryland, 74 97 Baltimore & Ohio R. R. Co. v. State, 33 Md., 542 85 Burt V. McBain, 29 Mich., 260 ,.. .98, 101 Bromage v. Prosser, 4 Bam. & Cress., 247 98 Belknap v. Ball, 83 Mich., 583. .' 101 Brand v. Hinchman, 68 Mjch., 590 113, 11& Bacon v. Towne, 4 Cush., 212 113 Brown v. Randall, 36 Conn., 54 113 Bicknell v. Dorlon, 16 Pick. (Mass.), 478 114 Bump V. Betts, 19 Wend. (N. Y.), 419 115 Badlam v. Tuclter, 1 Pick. (Mass.), 389 260 Barrett v. Spaids, 70 111., 408 115, 116 Besson v. Southard, 10 N. Y., 236 115 Beebe v. Knapp, 28 Mich., 53 123', 132 Brushaber v. Stegeman, 22 Mich., 266 167 Brown v. Hannibal & C. R. R. Co., 50 Mo., 461 " 85 Brown v. Ware, 25 Maine, 411 178 Brown v. Swann, 10 Pet. (U. S.), 497. 327 Brown v. Gilchrist, 80 Mich., 56 91 Blackburn v. Baker, 7 Porter, 284 ,. 208 Carl V. Ayers, 53 N. Y., 14 168 Craig V. Missouri, 4 Peters (U. S.) , 410 73 Cooper V. Central R. R. Co., 44 Iowa, 134 85 Corcoran v. Holbrook, 59 N. Y., 517 90 Chapman v. R. R. Co., 55 N. Y., 579 92 Coughtry v. Globe Woolen Co., 56 N. Y., 124 93 Charleboix v. Gogebic & M. Co., 91 Mich., 59 94 Commonwealth v. Clap, 4 Mass., 163 99. Commonwealth v. Snelling, 15 Pick. (Mass.) , 337 116 Coffin V. Coffin, 4 Mass., 1 102 TABLE OF CASES CITED. ^l Cardival v. Smith, 101 Mass., 158 113, 114 Crofoot V. Bennett, 2 N, Y., 258 .' 175 Curtis V. Hoyt, 19 Conn., 154. 182 Carpenters Six, Case, Smitti's Leading Cases, 264 183 Cameron v. Cullcins, 44 Mich., 531 415 Church V. Knox, 2 Conn., 514 26.S Craighead v. Wilson,, 18 Howard (U. S.) , 199 304 Drymala v. Thompson, 26 Minn., 40 91 Davi V. The Victoria, 69 Fed. Rep., 160 93 Davis V. Detroit & M. R. R., 20 Mich., 105 89 De Forest v. Wright, 2 Mich., 368 94 Darmstaetter v. Moynhan, 27 Mich., 188 ; 94 Davis V. Mann, 10 Mes. & Wei., 545 85, 97 Derry v. Peek, L. R. 14, App. Cases, 337 131 Davis V. Nash, 32 Maine, 411 182 Edson v. Hudson, 83 Mich., 450 124 Brwin v. Clark, 13 Mich., 10 122 Erskin v. Hohnhach, 14 Wall. (U. S.), 613 169 Elder v. Hasche, 67 Wis., 653 259 Farwell v. Boston & Worcester R. R., 4 Mete. (Mass.), 49 89 Farwell v. Hanchett, 120 111., 573 193 Flike y. Boston & Albany R. R. Co., 53 N. Y., 549 90 Fuller V. Jewett, 80 N. Y., 46 90 Ford V. Fitchburg R. R., 110 Mass., 240 91 Forward v. Adams, 7 Wiend. (N. Y.), 204 99 Fresh v. Cutter, 73 Md., 87 103 Fay V. O'Neill, 36 N. Y., 11 113 Fortman v. Rottier, 8 Ohio St., 551 115 Foshay v. Ferguson, 2 Denio (N. Y.), 617 115, 116 Fores v. Peeks, N. P. Cases, 55 138 Fischer v. Langbein, 103 N. Y., 84 170 French v. Shoemaker, 12 Wall. (U. S.), 86 , 304 Gilmore v. R. R. Co., 18 Fed. Rep., 866 92 Goldman v. Stearns, 7 Gray (Mass.) , 181 99 Gilbert v. Emmons, 42 111., 143 1I3 Galloway v. Burr, 32 Mich.,, 332 116 Gould V. Dayy 94 U. S., 405. . : 160 Gibbon v. Pepper, Salkeld, 673 164 Goodwin v. Stephens, 63 Ind., 112 170 Gilbert v. Kennedy, 22 Mich., 5 182 Green v. Erie Ry. Co., 11 Hun. (N. Y.), 333 85 Halligan v. Chicago & R. I. R. Co., 15 111., 558 182 Hilts V. Chicago & G. T. R. R. Co.; 55 Mich., 437 89 Hough v. Railway Co., 100 U. S., 213, 218 90 Harrison v. R. R. Co., 79 Mich., 409 .~ 91 Hard v. R. R. Co., 32 Vermont, 473 92 Hay V. Reid, 85 Mich., 296 104 Hamilton v. Smith, 39 Mich., 222 121 Heineman v. Skiger, 54 Mich., 232 123 Hedges v. Tagg, L. R. 7 Exch., 285 140 • Hamilton v. Cutts, 4 Mass., 349 149 28 TABLE OF CASES CITED. Holly V. Mix, 3 Wend. (N. Y.), 486 168 Hartfield v. Roper, 21 Wend. (N. Y.), 615 85 Hawn V. Banghart, 76 Iowa, 683 139 Hingham v. Sprague, 15 Pick. (Mass.), 102 182 Hatch' V. Donnell, 74 Maine, 163 182 Hoffman v. Armstrong, 48 N. Y., 201 183 Hebel v. Insurance Co., 33 Mich., 400 259 Holker v. Parker, 7 Cranch, 436 292 Harvey v. Tyler, 2 Wall. (XT. S.), 328 327 Hexamer v. Webb, 101 N. Y., 377 94 Insurance Co. v. Tweed, 7 Wall. (U. S.), 52 97 Ingersoll v. Barnes, 47 Mich., 104 126 Jackson v. Ludeling, 21 Wall. (U. S.), 616 327 Jones V. St. Louis S. W. R. R. Co., 28 So. Wes. Rep., 160 93 Jones V. Wing, Harrington (Mich.), 301 131 Jones V. Given, Gill., 220 113 Jackson v. Cleveland, 15 Mich., 94 : 160 Johnson v. Morton, 94 Mich., 1 170 Jeffrey v. Bigelow, 13 Wend. (N. Y.), 518. ... ; 132 Kinsey v. Wallace, 36 Cal., 462 115 Krug V. Ward, 77 111., 603 115 Kirby v. Ingersoll, Harrington (Mich.), 301 131 Kegel V. Schrenkheisen, 37 Mich., 174 248 King, The v. Barker, 1 Wm. Black, 352 : 278 Kentucky v. Dennison, 24 Howard, 66. 278 Kendall v. United States, 12 Peters, 524 278 Kendal v. Stokes, 3 Howard, 88 278 Kerwhacker v. Cleveland R. R. Co., 3 Ohio St., 172 85 Karthaus v. Ferrer, 1 Peters (U. S.), 222 295, 297 Lafayette & C. R. R. Co. v. Adams, 26 Ind., 76 85 Lewis V. Campau, 14 Mich., 458 304 Lunt V. Brown, 13 Maine, 236 179 Litchfield v. Hutchison, 117 Mass., 195 132 Long V. Warren, 68 N. Y., 426 133 Lee V. Kane, 6 Gray (Mass.), 495 106 Lanning v. R. R. Co., 49 N. Y., 521 92 Laugher v. Pointer, 5 Barn. & Cres., 547 (12 E. C. L., 312) 94 Lamb v. Stone, 11 Pick. (Mass.), 526 97 Little V. Hackett, 116 U. S., 366 88 Macon R. R. Co. v. Davis, 18 Ga., 679 85 Marbourg v. Smith, 11 Kan., 554 115 Malone v. Hathaway, 64 N. Y., 9 92 Morton v. R. R. Co., 81 Mich., 423 91 Mielenz v. Qu'asdorf, 68 Iowa, 726 102 Morton v. Young, 55 Maine, 24 115 Millen and Fawdry's Case, Latch, 120 183 Milligan v. Wedge, 12 Adol. & Ellis, 737 94 McGrew v. Stone, 53 Pa. St., 463 96 Milwaukee Railroad Co. v. Kellogg, 94 U. S., 469 97 Mining Co. v. Kitts, 42 Mich., 39 ; 92 McAndrews v. Biirns, 39 N. J. Law, 117 85 Mulherrin v. Delaware, etc., R. R. Co., 81 Penn. St., 366 85 TABLE OP CASES CITED. 29 Monroe & Leach, 7 Mete. (Mass.), 274 85 McAndrews v. Burns, 39 N. J. Law, 117 92 Moriarity v. Stofferan, 89 111., 528 193 Miller v. Milligan, 48 Barb. (N. Y.), 30 115, 116 McUraw v. Solomon, 83 Mich., 442 : 124 Moran v. Dewes, 4 Cowan (N .Y.), 412 ^. 138 Moore v. Vail, 17 111., 190 *. 149 Matteson v. Vaughn, 38 Mich., 373 149 Morse v. Hewett, 28 Mich., 481 , • 416 Moulton V. Beecher, 1 Abb. New Cases, 193 113 Newkirk v. Sabler, 9 Barb. (N. Y.), 652 183 Norris v. Showerman, Walker (Mich.), 206 324 Norris v. Litchfield R. R. Co., 26 Conn., 591 85 Nichols V. Horton, 14 Fed. Rep., 327 237 Nebenzahl v. Townsend, 61 Howard, 353 114 Nicholson v. Coghill, 4 Barn. & Cres., 21 114 Oil <3reek R. R. Co. v. Kerghai^, 74 Pa. St., 320. 97 Paisley v. Freeman, 3 T. R., 51 139 Paul V. Frazier, 3 Mass., 71 139 Pangborn v. Ruemenapp, 74 Mich., 572 193 Powers V. Benedict, 88 (N. Y.), 605 193 Patterson v. Wilkinson, 55 Maine, 42 101 Palmer v. Avery, 41 Barb. (N. Y.), 290 114 Pennoyer v. Neff, 95 U. S., 714 388 Potter V. Washburn, 13 Vermont, 558 178 Phillips V. Trull, 11 Johns. (N. Y.), 486 168 Pullen V. Glidden, 66 Maine, 202 115 Perry v. Sulier, 92 Mich., 72 116 Proctor V. Houghtaling, 37 Mich., 41. 101 Palmer v. Concord, 48 N. H., 216. 103 Pantzar v. Iron Co., 99 N. Y., 368 91 Parker v. Farley, 10 Cush. (Mass.), 279 113 Phillips V. C. M. & St. P. R. R. Co., 64 Wis., 475 93 Philadelphia v. State, 58 Maryland, 372 93 Quarman v. Burnett, 6 Mes. & W., 499 .- 87, 95 Radley v. London & N. W. Ry. Co., 1 App. Cases, 754 85 Raymond v. Butterfield, 139 Mass., 471 390 Robertson v. Beall, 10 Md., 125 260 Robinson, Ex parte, 6 McLean, 355 270 Rohan v. Sawin, 5 Cush. (Mass.), 285 168 Ross V. Inness, 35 111., 487 116 Rawson v. Finlay, 27 Mich., 268 72 R. R. Co. V. Salmon, 11 Kan., 38 92 R. R. Co. v; Donahan, 75 111., 106 85 Savage v. Brewer, 16 Pick. (Mass.) ,453 114 Sayles v. Briggs, 4 Mete. (Blass.), 421, 426 113 Shanny v. Androscoggin Mills, 66 Maine, 420 91 Smith V. Harlem R. R., 19 N. Y., 127 93 Svenson v. Atlantic Mail Steamship Co., 57 N. Y,, 108 93 Strader v. N. Y., L. B. & W. R. Co., 33 N. Y. Sup., 761 93 Sproul & Hemmingway, 14 Pick. (Mass.), 1 94 Stone v. Codman, 15 Pick., 297 94 3() TABLE OP CASES CITED. Secor V. Harris, 18 Barb. (N. Y.), 425 100 Sanford v. Rowley, 9,3 Mich., 119 101 Sheffill V. Van Deusen, 13 Gray (Mass.), 304 101 Sunderlin v. Bradstreet, 46 N. Y., 188 103 Simons v. Busby, 119 Ind., 13 139 Smith V. Richards, 29 Conn., 232 138 Schoonover v. Myers, 28 111., 308 113 Swartout v. Dickelman, 12 Hun (N. Y.) 358 114 Siebert v. Price, 5 Watts & S., 438 ." 116 Smith V. Richards, 13 Pet. (U. S.), 26 132' Spencer's Case, 1 Smith's Leading Cases, 174 147 Scott V. Shepard, Smith's Leading Cases, 737 164 Scott V. Jones, 5 Howard, 342, 374 '. 317 Savacool v. Houghton, 5 Wend. (N. Y.), 170 169 State V. Manchester, &c, R. R.,. 52 N. H., 528 85 State V. Weed, 21 N. H., 262 169 Starr v. Jackson, 11 Mass., 519 ■ 182 Six Carpenters' Case, Smith's Leading Ca^es, 264 183 Terre Haute R. Co. v. Buck, 96 Ind., 348 97 Thomas v. Watson, Taney, 297 387 Thompson v. Peck, 115 Ind., 512 193 Tierney v. Syracuse, B. & N. Y. R. R. Co., 32 N. Y., Sup., 627 93 Toledo V. Conroy, 68 111., 560. , 91 Trow V. Vermont Central R. R. Co., 24 Vt., 494 85 United States v. Bender, Baldwin, 234 236 United States v. Bank of Metropolis, 15 Pet. (U. S.), 377, 397 132 United States v. Kirby, 7 Wall, 482 236 United States v. Spink, 19 Fed. Rep., 361 270 United States v. Throckmorton, 98 U. S., 6i; 386 Vandenburgh v. Truax, 4 Denio (N. Y.) 464 97 Vandegrift v. Rediker, 22 N. J. Law, 185 85 Vanderhorst v. Newton, 38 Mich., 669 192 Van Dusen v. Letellier, 78 Mich., 492 91 Van Leuven v. Lyke, 1 N. Y., 515. 183 Warburton v. Great Western Ry. Co., 2 L. R. Exch., 30 92 Watkins v. Lee, 5 Mees & W., 270 114 Watson V. Watson, 53 Mich., 168 '. 140 Wall V. Toomey, 52 Conn., 35. 115 Walter v. Sample, 25 Pa. St., 275 117 Webb V. Beavan, 11 Q. B. Div., 609 '', • 98 Weiss V. Whittemore, 28 Mich., 366. 98 Wedgewood v. Chicago & N. W. Ry., 41 Wis., 478 91 White V. Murtland, 71 111., 250 140 Whitehead v. Kenes, 3 Allen (Mass.), 149 .167 Willard v. Decatur, 59 N. H., 137 260 Wilson V. Wagar, 26 Mich., 452 72 Winslow V. Jenness, 64 Mich., 84 332 Wood V. Graves, 114 Mass., 365 ■ 169 Young V. Black, 7 Cranch, 513 73 Young V. Miller, 3 Hill ,(N. Y.), 21 99 Ziegler v. Danbury & Norwalk R. R. Co., 52 Conn., 543 93 Index of Forms. Form No. Page. 7 — Abatement, plea in, want of parties 61 9 — ^Abatement, plea in, to the jurisdiction of the court 62 10 — Abatement, plea in, another action pending 63 11 — Abatement, plea in, infancy 64 8 — ^ Abatement, plea In, affidavit in support of 62 60 — Accounting, prayer for in bill in equity 334 8 — Affidavit in support of plea in abatement 62 71 — Affidavit in support of demurrer or plea 348 87 — ^Affidavit, common form of 411 88 — Affidavit by an agent or attorney 412 89 — Affidavit by a member of a copartnership 412 90 — ^Affidavit by officer of a corporation 412 93 — Affirmation, form of to affidavit 414 76 — ^Answer to bill in equity, common form of 355 77 — Answer to bill in equity, short form 356 56 — Arbitration, submission to, short form 288 57 — Arbitration, submission to, long form 289 32 — ^Assault and battery, declaration for 165 2 — Assumpsit, declaration upon common courts in 55 3 — Assumpsit, declaration. Payee v. Maker 56 4 — Assumpsit, declaration, Indorser v. Maker 57 5 — ^Assumpsit, declaration. Second Indorser v. Maker 58 6 — Assumpsit, declaration. Indorsee v. Indorser, on an indorsed note .' 58 59 — Assumpsit, declaration on a common law award 298 18 — Assumpsit, plea of general issue, in 71 48— Avowry 206 12 — Bar, plea in, former judgment 67 13 — Bar, plea in, infancy 68 14-^Bar, plea in, statute of limitations 68 67 — Bill in equity, foreclosure of mortgage 337 €8— Bill in equity, oath to 340 80 — Bill of review on discovery of new matter 368 SX — Bill of review for errors apparent on the face of decree 369 75 — Bill in equity, plea to 350 76 — BiM in equity, answer to 355 77 — Bill in equity, answer to, short form 356 78 — Bill in equity, replication 356 31 32 INDEX OF FORMS. Form No. Page. 104 — Bill of sale, common form 441 31 — Books and papers, notice to produce 162 70 — Certificate of counsel in support of demurrer 348 102 — Chattel mortgage, common form 437 103 — Chattel mortgage, Illinois form, very full 438 117— Codicil '.'. ., 453 49 — Complaint, under the codes 222 50'— Complaint, verification of 223 51 — Complaint, verification of by an attorney or agent 223 52 — Complaint, demurrer to 223 53 — Complaint, general denial ' 224 28 — Covenant, declaration in. Lessor v. Lessee 151 Covenant in leases. See leases. 29 — Deht on judgment, declaration in 15& 30— Debt upon bond 156 24 — Deceit, declaration in for a false warranty ' 134 2— ^Declaration, in assumpsit, on the common counts 55 3 — ^Declaration, in assumpsit. Payee v. Maker .• 56 4 — Declaration, in assumpsit, Indorser v. Maker 57 5 — Declaration, in assumpsit. Second Indorser v. Maker 58 6 — Declaration, in assumpsit. Indorsee v. Indorser 58 59 — Declaration, in assumpsit on a common law award 298 20— Declaration for libel , 107 21 — Declaration for slander 108 22 — Declaration for malicious prosecution 118 23 — Declaration in trover 128 24 — Declaration in deceit for false warranty 134 25 — Declaration for enticing away a servant 136 26 — Declaration for seducing a daughter , 140 27 — Declaration for a nuisance 143 28 — Declaration in covenant by Lessor v. Lessee 151 29 — Declaration in debt on judgment '. 15& 30 — Declaration in debt upon bond 156 32 — Declaration for an assault and battery 165 33 — Declaration for false imprisonment 173 . 34 — Declaration for trespass to personal property 179 35 — Declaration for trespass upon real estate 186 36 — Declaration in replevin 195 58 — Declaration in debt on a common law award 297 95 — Deed, statutory form, Illinois 426 96 — Deed, warranty, long form 427 97 — Deed, warranty, indenture 428 Deed, exceptions in against incumbrances 430 52 — Demurrer, to a complaint 223 72 — Demurrer, general '. 34g INDEX OP FORMS. 33 Form No. ■ Page. 73 — Demurrer, for multifariousness 349' 74 — Demurrer, for want of parties 349 71 — Demurrer, affidavit in support of '. 348 53 — Denial, general (in code pleading) 224 94 — Depositions, stipulation for taking 424 25 — Enticing avay servants, declaration for 13ft 33 — False imprisonment, declaration for 173 72 — General demurrer* 348 53 — General denial (in code pleading) 224 18 — General issue, plea of 71 54 — Habeas corpus, petition for writ of 272 55 — Habeas corpus, writ of 274 82 — Injunction, temporary 371 06 — Injunction, prayer for 336 61 — Injunction, prayer for 335 64 — Interpleader, prayer for an 335 69 — Interpleader, oath to bill of 341 105 — Lease Common form 442 106 — Lease, covenant to pay taxes and assessments 444 107 — Lease, lessees covenant to keep in repair 444 108 — Lease, lessor's covenant to keep in repair 444 109^Lease, covenant in farm lease 444 110 — Lease, covenant that lessee may erect buildings 445 111 — Lease, covenant pledging buildings as security for rent 445 112 — Lease, covenant that lessor may purchase buildings ; . 445 113 — Lease, covenant against sub-letting 446 114 — Lease, assignment of 446 22 — Malicious prosecution, declaration for 118 98 — Mortgage, with power of sale 432 99 — Mortgage, with power of sale (another form) 434 100 — Mortgage, with power of sale (statutory foreclosure) 435 101 — ^Mortgage, form of condition to secure an indorser 436 102 — Mortgage, chattel, common form 437 103 — Mortgage, chattel, Illinois form, very full 438 84 — Motion, common form of 377 37 — Non cepit, plea of 201 39— Non detinet, plea of 202 31 — Notice to produce books and papers 162 85 — Notice' of hearing of motion 378 86— Orders, form of 378 83 — Order to show cause and restraining order 373 Petition, forms of 379, 380 91 — Petition, oath to 413 92 — Petition, oath to another form 414 7 — Plea in abatement, want of parties 61 9 — Plea in abatement, to the jurisdiction of the court 62 34 INDEX OF FORMS. Form No. • Page. 10 — Plea in abatement, another action pending 63 11 — Flea in abatement, infancy 64 12 — Plea in bar, former judgment 67 13 — Plea in bar, infancy 68 14 — Plea in bar, statute of limitations 68 IS — ^Plea of general issue 71 37— Plea of non cepit 201 39— Plea of non detinet i 202 40— Plea of statute in limitations 202 42 — Plea, limitations, action did not accrue within six years 203 44 — Plea of property in the defendant. 204 46 — Plea of property in a stranger 204 47 — Plea of property in a stranger and avowry 205 75— Plea to bill in equity 350 1 — Praecepe for writ 42 60 — Prayer for an accounting (in bill in equity) 334 fil — -Prayer for an injunction (in bill in equity) 335 ' ■66 — Prayer for an injunction (in bill in equity) 336 ■62 — Prayer for specific performance (in bill in equity) 335 63 — Prayer for cancellation or reformation of written agreement. . 335 64 — Prayer for interpleader 335 65 — Prayer for subpoena. 336 15 — ^Replication to plea of former judgment 69 16 — Replication to plea of infancy 69 17 — Replication to plea of statute of limitations 69 41 — Replication to plea of statute of limitations 202 19 — Replication to plea of general issue 71 43 — Replication to plea that action did not accrue within six years . . 203 45 — Replication to plea of property in the defendant 204 78 — Replication to answer in equity 356 83 — Restraining order 373 38 — Traverse of place, etc 201 50 — ^Verification of complaint 223 51 — Verification of complaint by attorney or agent 223 115 — Will, common form 451 116— Will, with trusts 452 117— Will, codicil to 453 1 — ^Writ, praecepe for ^ 42 FOSTER'S FIRST BOOK OF PRACTICE. CHAPTER I. PEAGTICE. The term "practice" embraces not only the published rules of courts, the statutory provisions relating to practice in the courts, the introduction of evidence, the method of making proof in certain cases, the commencement and prosecution of causes, the joinder of parties, the amendment of pleadings, etc., and the decisions of the courts of final resort of the several states and of the United States, but also a mass of unvratten law which has grown up in the courts, varying in the different states, but in the main very similar, and which is usually learned by the young lawyer by eixperience, not always of the most pleasant kind, and often burned into his very soul through mortification and disgust at being overthrown by his ignorance of so^me simple, and per- haps, unwritten rule of practice. It is not possible to bring together in one volume like this all the rules of the courts of all the states, either written or unwritten, but we have endeavored to set out such general rules as will be found to apply in all courts, and such general princi- ples bearing upon the details of court and office work, the com- mencement of suits, the joinder of parties, the drafting of plead- ings, the preparation of causes, the empaneling of the jury, the trial of causes, proceedings after trial, the appeal, execution, etc., as will be useful to the young practitioner, with a brief outline of practice and pleadings in Courts of Equity; our purpose being to furnish the young lawyer with a book of ready reference, where he will find answere to many questions which perplex and annoy him, and for which he usually goes to some older lawyer for advice. We assume that our young lawyer has completed his course of study and been admitted to the bar with a good record for scholarship and ability, has opened his office and 38 PRACTICE. settled down to wait for business. He is full of high, hopes, believes he knows the law and is anxiously waiting for clients. The supreme test comes with the first case offered, when he- is required to apply his knowledge of law to the facts pre- sented, and detennia© what the rights or liabilities of his client are, and in what manner they can be best protected or enforced. The success or failure of a lawyer depends largely upon the impression he makes upon those with whom he is brought into business or professional relations. Clients want an adviser who is clear-headed and cool, one who is cautious and yet bold, who weighs carefully the chances of succras or failure before acting, but who strikes quickly and hardj when the proper time comes j they want a man of courage, but want courage tempered with prudence; they want their legal adviser to enter heartily into their plans, grasp the details of their business and remember them; they like to feel that their business is important, and that it will receive the attorney's very best care, thought and attention. These suggestions, as well as those following, should be borne in mind, and when the first client calls, or the first case is presented, they will materially assist in making a favorable impression and inspiring confidence. Do not labor under the delusion that you must answer diffi- cult legal questions off-hand. Do not answer a question of law based upon facts, unless you know what the facts are, so that you may judge for yourself whether the question properly arises from the facts. In other words, the attorney, and not the client, should be the judge of the questions of law arising, and to this end the client should be requested to tell his story fully and freely. It is better to allow him to tell the story in his own way, as it will give a better opportunity of judging of the truth of the statements. The attorney should take notes of dates, places, names of parties and vdtnesses, and of such facts or details as may seem important as the story progresses. After the story is finished, the truth of the statements may be verified by careful questioning. PRACTICE. 39 After all the facts and smrounding circaamstances have been brought out, they should be carefully weighed and considered, and the rights or liabilities of the client determined by a careful application of legal principles to the facts as they finally appear. In considering statements of the client, they should be judged in the light of the every day common sense views and experi- ences of men. The parties to the transaction were doubtless swayed and influenced by the same motives and passions as would have swayed and influenced the average man under simi- lar circumstances. Do not, therefore, because he is your client, raise him. in your own opinion above the ordinary man, and attribute to him any virtues not possessed by others. Lawyers are partisans; they believe in their clients, and fight for them, and we say it to to the honor of the profession, but' in the young lawyer the tendency is to believe too implicitly in the noble mindedness and disinterestedness of the client and to imagine him to be a deeply wronged and persecuted individual, while the opposite party is an oppressor of the innocent, and a villain of the deepest dye. The young attorney must outgrow this feeling as rapidly as possible, as it is seldom justified, and the exhibition in court of such a feeling will result in prejudicing both the court and jury against the attorney, the client and the cause. Think of your client as an ordinary, every day, average man, whom the court and possibly the jurors know, and who will not attribute to him any higher motives, greater regard for truth or greater gen- erosity toward or love for his fellow men than other men have. It is the jury who are the final judges of the facts, and in deter- mining the questions presented they will consider the facts in the light of what the ordinary man would have done under the same circumstances. If the case is an important one, involving complicated ques- tions of law or fact, or the construction of contracts or other written instruments, or if there are witnesses whose testimony will assist ia throvnng light upon the facts, the matter should be thoroughly examined into before the attorney expresses an 40 PRACTICE. opinion upon the merits of the controversy. The client will not think the less of the attorney who wishes to take time for con- sideration, but care must be exercised to see that the client does not attribute your wish for time to consider the case, to your timidity or lack of knowledge of the law. To avoid this, it may be well to point out the difficulties of the case, the apparent inconsistency and uncertainty of the evidence upon some impor- tant point, the unsettled state of the law upon the facts involved, making it a close question as to what the ruling of the court will be, and express your desire to sleep upon the case, to consider it, or it may be well to say that you wish to take a little time to map out a plan of action or defense. Very few old practitioners go into or advise important litigation, or advise upon important questions without taking time for careful consideration, and this is the only safe course for the young lawyer to pursue. It may be well in this connection to caution young attorneys against a practice which is altogether too common, of allowing cKents to rush them into instituting legal proceedings without due consideration. It is vei-y common for a client to say he wants an attachment, or an arrest, or garnishment, and it is very easy for the young attorney to feel that the client must know what he wants or he would not ask for it, and to commence proceedings of the kind suggested without stopping to inquire whether they are warranted or, justifiable under the law and facts of the case. If trouble and loss result, it is the attorney who will suffer. The client will forget that it was he who proposed and perhaps insisted upon proceeding in that particular manner, and if he is reminded of the fact his reply will be, and justly, too, that he is not a lawyer, and that it was the duty of the attorney to advise and set him right and not blindly follow his suggestion. When a case is presented the following , questions should be carefully considered before any action is taken: 1. Has your client a cause of action ? 2. What is the nature of the action, and what is the proper remedy, an action at law or a suit in equity? PRACTICE. 41 3. Has the cause of action accrued; that is to say, is the debt due, has the obligation matured? Is there anything to be done or performed upon the part of your client before the action will accrue, such as a demand, tender, or the like? Has there been anything omitted upon the part of the client which would excuse a performance upon the part of the defendant so as to prevent the action from accruing? Is there anything in the nature of a condition precedent upon which the client's right of action depends which has not been fulfilled ? 4. In whose name should the action be brought, or in what capacity should the plaintiff sue? As, for instance, if the action has accrued to an infant, whether he may, in your state, sue by next friend or must sue by guardian, or if the suit is to be brought by an executor or administrator, whether authority from the Probate Court is necessary in the particular case, and whether the authority, if necessary, has been obtained. 5. Is the case one in which special remedies may be resorted to, such as an arrest of the body of the defendant, an attach- ment of real or personal property, the garnishment of money or personal property in the hands of third persons, or replevin of goods wrongfully taken and carried away or wrongfully taken and detained. HOW TO COMMENCE AN ACTION: After determining the question of the right of the client to bring an action, the expediency of doing so and the form of action to be brought, certain other questions present themselves to the practitioner, as for example, what steps are necessary to- properly commence the action and bring the defendant into court. These are very important questions and require careful consideration. In all cases the plan of action should be settled as far as cir- cumstances will permit before tlie action is commenced, the line of policy to be pursued should be carefully thought out and set- tled so that nothing ^vill remain to be done but to carry out the 42 PRACTICE. details of the plan. In what are known as the common law states, that is, in the states in which the system of common law plead- ings, however modified, still survives the first step is ordinarily to sue out a writ of summons which is a precept under the seal of the court commanding the defendant to appear at a certain time and place therein named, to answer unto the plaintiff in a certain action. Sometimes the writ of summons is joined with a writ of attachment, garnishment, or replevin. In some states the attorneys procure writs in blank from the clerk of the court and issue them as occasion requires, but the better and almost universal practice is for the clerk of the court to issue the writ only upon the filing of a "praecepe," which is a request or order in writing addressed to the clerk of the court and signed by the attorney, requesting him to issue the writ. The following is the form used in some states. It may be modified to adapt it to the practice in the attorney's own state: Form 1. PRAECEPE FOB WRIT. State of The Court for the County (or District) of A. B Plaintiff, vs. C. D Defendant. To the Clerk: Let a writ of summons (or attachment, or garnishment, or arrest, or as the case may be) issue in the above cause. Action of Damages Attorney for Plaintiff. Dated Chicago, 111., January 2, 1900. It is customary in all cases to lay the damages both in theprae- cepe and at the conclusion of the declaration in what is known as the ad damnum clause at a sum largely in excess of the actual PRACTICE. 43 amount sought to be recbvea-ed, a very common practice bping to' lay the damages at double the amount of actual damages. The reason for so doing is that the plaintiff will not be permitted to recover anything in excess of the damages alleged in the declaration, although under the liberal statutes of amendments prevailing in most of the states the court will allow an amend- ment of the ad damnum clause upon a proper application and showing. If the action is to be commenced by an attachment, garnish- ment, or arrest of the body of the defendant the praecepe should direct the proper writ to issue and the attoi-ney should be careful to see that the writ is properly signed, that it bears the seal of the court and that all the blanks are properly filled. When the action is to be commenced by attachment, garnishment or arrest, the attorney must carefully prepare the necessary affidavits, have them properly executed and file them with the clerk of the court. (See Chapters X., XI. and XII upon arrest, attachment and garnishment.) SECURITY FOR COSTS: The statutes of the several states contain provisions in relation to giving security for costs in certain cases, as for example when the plaintiff is a non-resident, and in some cases the giving of security is a condition precedent which raust be complied with in order to give the court jurisdiction. The attorney must as- certain by an examination of the statutes whether security for costs is necessarj^ in the action which he is about to commence and if necessary be prepared to give it. SERVICE OF PAPERS: The summons or other writ should be promptly placed in the hands of the proper officer, to be served, and the attorney should give the officer full and definite instructions and information in relation to any special steps which he wishes him to take. If 44 PRACTICE. "the return of the officer shows that there has been no service upon the defendant the attorney may sue out an alias writ and upon its return a pluries writ, and so on until service has been obtained or he is satisfied that the defendant cannot be found. FILING THE DECLARATION: The next proceeding will be to file the declaration and this .must be done at the time and in the manner prescribed by the statutes or by the rules of the court. If this is not done the defendant may take advantage of the omission and thus cause the plaintiff great annoyance and possibly great loss. It is not possible. in a work of this kind to give the practice of each state. All that can be done is to point out the successive steps that must be taken, leaving the practitioner to ascertain by reference to the statutes and rules of practice of his ovsm state, how and at what time each successive step must be taken. The details of practice, will be found to vary in different parts of the same state and it is only by study and observance of local -customs and meth- ods of procedure that the practitioner will be able to become familiar with these details. In some states, as for example in Michigan, actions may be commenced by filing a declaration, entering a rule to plead and serving a copy of the declaration and the rule to plead upon the defendant. In code states actions are commenced by filing a complaint. (See Chapter IX., Code Pleading and Practice.) OUTLINING THE DEFENSE: When called upon by the defendant in proceedings already begun the questions to be determined are : 1. Whether the suit was properly brought; that is to say (a) whether the cause of action had accrued at the time the suit was brought, (b) whether it is brought in a court having jurisdiction in the premises, (c) whether the proper parties have been joined. PRACTICE. 45 (d) whetheor the proceedings are regular and sufficient (e) whether the defendant has been properly served with process. 2. Whether the defendant has a good defense to the whole or any part of the plaintiff's demand or cause of action; of what the defense con.sists, and the manner in which it should be handled in order to produce the most satisfactory results. 3. Whether there are any equitable defenses of which the defendant cannot avail himself in a court at law, and whether they are sufficient to warrant or require a proceeding in equity to enjoin the proceedings at law, thus removing the whole con- troversy into a court where the equitable defence will be avail- able. 4. Whether the action is barred by the statute of limitations. 5. Whether the statute of frauds may be succe^uUy pleaded. < 6. Whether the defendant has any claims or demands against the plaintiff of which he may avail himself by way of set-off. 7. Whether there are any circumstances which will enable the defendant to recoup dajnages accruing to him by reason of the violation by the plaintiff of the contract out of which the cause of action arose. 8. Whether the action has become barred by reason of a former adjudication, submission to arbitration, or release. These observations naturally lead up to a discussion of the various forms of civil actions, and we shall take each separately, and give a few simple rules for determining the proper form of action, the preliminary steps to be taken before bringing suit, the drafting of declarations and other pleadings, the trial of the cause, the order of proof and what must be proven in order to make out a case. In many of the states the distinction between the different forms of action has Ijeen abolished, but under whatever system you may practice, whether under code or common law, the under- lying principles are the same, the same questions arisei in deter- 46 PRACTICE. mmins whether your client has a cause of action, and substan- tially tile same proof will be required to maintain the action; for even in states where forms of actions are abolished, actions will be ia the nature of actions of assumpsit, trover, replevin, trespass, or case, by whatever name they may be called, and the proof must vary according to the nature of each case. In the great majority of the states the six great common law actions still survive, viz., Assumpsit, Case, Covenant, Debt, Trespass and Eeplevin. These actions will be taken up in their order in the succeeding chapters. Bibliographic Note. — The best known and most reliable works upon general practice in courts of law are Chitty on Pleading, which is regarded as unquestionable authority upon the subject of practice as well as upon common law pleading; Tidd's Practice (American edition with notes) ; Burrill's Practice, an old work adapted to the former (com- mon law) practice in New York, prior to the adoption of the code, which is valuable to common law practitioners by reason of its notes, sugges- tions and forms, and Elliott's General Practice. The authorities upon practice in the Federal Courts are Desty's Federal Procedure, Federal Jurisdiction and Procedure by Maury, Thatcher's works upon practice in the United States Supreme Court and in the Circuit and District Courts, Foster's Federal Procedure, Conkling's treatise on the organization, juris- diction and practice of United States Courts, Dillon on the Removal of Causes, Desty on the Removal of Causes, Jurisdiction of the United States Courts, by Benjamin R. Curtis, Simonton's Federal Courts, Loveland's Forms of Federal Procedure, and Garland & Ralston's Federal Procedure. CHAPTER II. ASSUMPSIT. Assumpsit is the proper remedy ia all actions upon promises express or implied, and to recover damages for the breach of any contract not under seal, whether written or unwritten, ex- press or implied. In many of the states the distinction between sealed and unsealed instruments is .aboKshed so far as the cause of action is concerned, and in such states assumpsit will lie to recover upon contracts under seal. Assumpsit will also lie to recover the value of goods obtained by fraud, or where the defendant induced the plaintiff to sell to an insolvent person upon false statements concerning his solv- ency. Also in cases where the plaintiff's goods have been tort- iously taken, he may waive the tort and sue in a^umpsit. As- sumpsit will also lie upon an account stated; to recover money paid by mistake, money obtained by imposition, fraud, oppres- sion, or any undue advantage; money that has been paid upon a consideration that has failed; money paid upon a contract that has been rescinded; money that has been extorted by duress either of goods or person; to recover upon bills of exchange, promissory notes, checks, and certificates of deposit; to recover awards, losses under poUcies of insurance; and in all cases where from the cir- cumstances it can he made to appear that there was either an express promise, or where the law will create an implied promise to pay nioney or to perform or refrain from performing any particular act. Before bringing the action of assumpsit, always ascertain whether the action has accrued; if the cause of action is a note, bill or open account, see whether the debt is due, or if not, whether, under the statutes of your particular state, there are any 48 ASSUMPSIT. special circxtmstances or provisions under which you may bring the action before the debt matures. Until there has been a breach of the contract no action will lie, and nothing that occurs after the action has been commenced will sustain an action prematurely brought. WHAT CONSTITUTES A BREACH: (a) If the cause of action is upon an open account, promissory note or bill of exchange, a breach of the contract occurs if the debtor fails to pay when the debt is due according to the terms of the contract. (b) In cases arising upon mutual promises, an action accrues upon a failure of one party to perform his part of the contract, the other party having performed, or being ready to perform, the contract upon his part. (c) In cases arising out of contracts express or implied, the action accrues upon a violation,' or the non-performance, of the contract. (d) When the cause of action arises out of fraud, duress or rescission of contract, it is well to make a demand as soon as the fraud is discovered or the contract rescinded. (e) Conditions precedent must be performed, unless the per- formance of the condition has been waived. PARTIES: Having ascertained that the cause of action has accrued, the next consideration is, whom to make parties plaintiff, and de- fendant. At the Common Law the rule laid down is that in all actions of assumpsit the action must be brought in the name of the party in whom the legal inter^t in the contract was vested. In many of the states it is now permissible to bring suit either in the name of the original party in interest or of the assignee of the cause of action; in others the statutes require that actions shall be brought in the name of the real party in interest, while in others the action must be brought in the name of the ASSUMPSIT. 49 person in -whom the legal interest in tlie contract was vested, as at common law. Examine your statutes upon this point. In considering who should be made parties defendant, a sim- ple rule is that in actions of assumpsit all persons jointly liable upon the undertaking must b© made defendants to the action. In cases arising upon implied promises the party defendant should be the person or persons subject to the legal liability; in cases where the contract was made through an agent the prin- cipal will be liable if the contract was authorized. The contract of the agent is the contract of the priucipal. The agent is not personally liable when he has contracted in the capacity of an agent, if he had authority to make the contract; so, an attorney is aji agent for his client and is not liable upon a contract entered into for him, unless he expressly contracts to become responsible; therefore, the principal and not the agent or attorney should be made the party defendant. The question frequently arises whether an agent or attorney contracted as such, or ia his own behalf, or whether the agent' had authority to contract. In such cases the principal and agent are sometimes joined as defendants, aud the question of liability left to be determined by the court or jury. This cannot be done except in states when a discontinuance as to one defendant does not work a discontinuance of the action. JOINT CONTRACTORS: In assumpsit, all joint contractors must be made parties to the action. , In many of the states. it is provided by statute that in cases where service cannot be obtained upon all of the defend- ants, the plaintiff may proceed against those who have been served with process, l^evertheless, all the joint contractors must be made parties; and, in the absence of a statutory provision to the contrary, a failure to join them all will be fatal, or result in great delay. ' The rule for determining whether contractors are joint or several, is as follows: Where several persons contract 50 ASSUMPSIT. together with the same party for one and the same act, they are held to be joint contractors, and not severally liable, in the absence of an express agreement to that effect. If there is a separate undertaking by each of the parties in respect of the separate share or interest of each, or defining what each shall perform, the contract is several, and not joint. Tlie contract itself will usually disclose whether the obliga- tion is joint, or joint and several, or several. If the contract is several the plaintifE may proceed against the parties severally, and where the undertaking is joint and several, all or either -of the parties may be made defendants. Do not fail to examine the statutes to ascertain what, if any, modifications of the common law rule have been made. LIMITATIONS: Before commenciag suit an important consideration is whether the action has been barred by the statute of limitations. The statute of limitations begins to run from the time when the cause of action accrued. The length of time that must elapse before the action is barred varies in the different states, and the statutes are so varied, and the construction thereof by the courts so different that a full discussion of this subject cannot be undertaken in a work of this kind. Examine your statutes, and the decisions of your court of final resort. STATUTE OF FRAUDS: The Statute of 29 Car. II, Chapter 3, commonly known as the act for the prevention of frauds and perjuries, is in force with more or less modification in all of the states of the United States, with the exception of Louisiana. The principles of this statute, so far as they apply to actions of assumpsit, are substan- tially that no contract for the sale of goods, wares and merchan- ASSUMPSIT. 51 dise, for the price of fifty dollars or more, shall be valid unless the purchaser shall accept and receive part of the goods sold, or shall give something in earnest to bind the bairgain or in part payment, or unless some note or memorandum in writing be made and signed by the party' to be charged thereby, or by some person thereunto by him lawfully authorized. Also that every agreement that, by its terms, is not to be performed within one year from the making thereof; every special agreement to answer for the debt, default, or misdoings of another person and every special promise made by an executor or administrator to pay the debts of the estate out of his own estate shall be void, unless some note or memorandum in writing of the agreement or special promise be made and signed by the party to be charged thereby, or some person thereunto by him lawfully authorized. The question will arise whether the undertaking is within the statute; and if so, whether the contract or undertaking has been reduced to writing and signed by the party sought to be charged theo-eby; whether the memorandum is sufficient, and whether there are any facts, or circumstances that take the case out of the operation of the statute. A careful examination of the statutes in force in your state and of the decisions of your courts is recommended. THE DECLARATION: The most common form of declaration lq actions of assump- sit is what is called a declaration upon the common counts which are: Indebitatus Assumpsit: (1) For- goods sold and deliv- ered; (2) for work done and material furnished; (3) for money had and received; (4) for money lent and advanced; (5) for money laid out, paid and expended; (6) quantum meruit for goods bought vdthout any price being agreed upon, to recover what such goods are reasonably worth; (7) quantum valebant for work and labor performed without any agreement with regard to wages, to recover what such work is reasonably worth, 52 ASSUMPSIT. and (8) for interest. These counts are rarely, if ever, used in Code States. WHAT MUST BE SET OUT IN THE DECLARATION: As a rule, the plaintiff must aver everything that is necessary to constitute a good cause of action; if he does not, the defen- dant may take advantage of the omission either by demurrer, or at the trial by motion for a non-suit. In all cases where the performance of some act on the part of the plaintiff is a condition precedent to the performance of an act upon the part of the defendant, the declaration must contain an averment of perfoi-mance. Soi in case of mutual promises,' the declaration should contain an allegation either that the plain- tiff has performed his part of the agreement, or set up some legal excuse, such as a tender of performance on his part and a refusal upon the part of the defendant, or a discharge in law, or circum- stances or conditions created by the defendant which will in law excuse performance. Where the contract is not under seal a valuable consideration must be alleged and proved. 2 Kent's Cbm., 464. There should always be an allegation of a demand pr request for payment or performance, as the case may be. The ordinary averment is "Yet the defendant, although often requested, has not," etc. ' There are cases, however, where a special request is neces- sary, and must be averred in the declaration, as in cases where the defendant is not bound toi perform untO. after the plaintiff has performed the contract upon his part. Where the obligation does not exist until a request is made, a special request must be averred and proved. So, where the promise is to pay something other than money, or where the promise is to deliver certain goods upon request, a special request must be alleged and proved. The rule condensed is, where the promise is implied by law or is to pay a mere debt, the general averment is sufficient. In all other cases a special request must be alleged. ASSUMPSIT. 53 VARIANCE: In drafting a declaration great care must be exercised to see that the contract sued upon is correctly set forth, as a material variation will Be fatal. In declaring upon a contract, it is suffi- cient to set forth the instrument according to its legal effect, but an error in stating the legal import of the contract will consti- tute a variance. That part of the contract of which a breach is complained may be stated according to its legal effect, pro- vided the entire cause of action is stated with accuracy. It is a general rule that the conta-act must be set out correctly; and if the contract declai'ed upon varies from the written con- tract, or if the evidence varies materially from the contract alleged in the declaration, the action will fail because the con- tract is the foundation of the action, and unless there has been a breach of the contract there is no cause of action. The usual practice in cases of variance is for the counsel for defendant to object to receiving the contract in evidence on the ground of variance, or in cases of implied contracts, or where the action is upon an oral contract, to move for a non-suit af1^ the plaintiff has rested his case upon the ground that the case made by the evidence does not correspond with or support the case set forth in the declaration. BREACH, HOW ASSIGNEiD: After setting out the contract or other cause of action, it is necessary to assign a breach of the contract or proimise declared upon. The safest way is to assign the breach in the language of the contract or promise, as, for instance, that the defendant, though requested, has not paid, etc. The breach assigned should be co-extensive with the contract or promise declared upon. If the breach assign'ed be either more limited or greater than the contract or promise it will be insufficient. The breach should be certain and positive, and be concisely stated. Several breaches may be assigned in the same count if the contract or promise is one where more than one breach can, in 5.4 ASSUMPSIT. fact, be committed, and where each of the separate breaches go merely to an increase of the damages. It is usual, however, and the better practice is to assign separate breaches in separate counts, thereby avoiding the danger of duplicity. " DAMAGES: The damages which may be recovered in actions upon the common counts are such as naturally flow from the breach com- plained of. These are called general damages. Special dam- ages are those which do not necessai-ily result from the breach complained of, but are based upon some special or extraordinary loss or damage sustained by the plaintiff in consequence of the act of the defendant. In order to recover special damages, it is necessary tO' set out fully in the declaration the circumstances and acts upon which the claim for special damages is based. Special damages cannot be recovered unless specially counted upon in the declaration. SPECIAL COUNTS: There are many cases in which a recovery cannot be had upon the common counts, and in all such cases a special declaration must be filed. It is very common, however, to combine the common counts mth one or more special counts. The special count should describe the parties and set forth the contract, stating fully what each party thereto is bound to do under the contract, the consideration, the breach or breaches of the con- tract, and the damages. Forms of special counts may be found in "Chitty on Pleading," and in other works of a similar char- acter, and the practitioner should be guided by these well-estab- lished forms, rather than attempt to draft a special declaration without their aid. The common counts are seldom used separately, but are ordi- narily combined. There are exceptions to this rule, however, as in Massachusetts, where the wse of the common counts unitedly is prohibited by statute. The following is the form usually adopted: ASSUMPSIT. 55 Form 2. DECLARATION UPON THE COMMON COUNTS IN ASSUMPSIT. State of In the Court for the County (or District) of A. B.,1 of2 , plaintiff in this suit, by his attorney, comes and complains of C. D.,i of2 etc., defendant herein, duly summoned by the sheriff In a plea of trespass oh the case, upon promises: 4 For that, whereas, the said defendant on the day of , in the ye'ar of our Lord 18 , Indebted to the said plaintiff in the sum of dollars for the price and value of certain goods, wares and merchandise then and there sold and delivered by the plaintiff to the defendant, at request: And in a like sum for the price and value of work then and there done, and materials for the same, provided by the said plaintiff for the said defendant,at request: And In a like sum for money then and there lent by the said plaintiff to the said defendant, at request: And in a like sum for money then and there paid by the said plain- tiff for the use of the said defendant, at request: And in a like sum for mdney then and there received by the said defendant, to and for the use of the said plaintiff: And in a like sum for money found to be due from the defendant to the plaintiff, on an account then and there .stated between them: And thereupon the said defendant, afterwards, on the day and year aforesaid, in consideration of the premises respectively then and there promised the said plaintiff to pay the said several sums of money, on request: Yet the said defendant, though often requested, hath disregarded said promises and undertakings, and hath not paid any of the said sums of money or any part thereof; to the plaintiff's damages dollars; wherefore brings suit, etc. Plaintiff's Attorney. iThe full christian name of the parties plaintiff and defendant must be set forth. 2The residence and place of business of the plaintiff and defendant should be set forth, giving the city, county and state in which each resides. sDamages should be laid in double the amount sought to be recovered. ^Before the uniformity of process Act, 4 W. 4, Chap. 39, and the Hilary Term Rules, 4 W. 4, the action of assumpsit was uniformly described as an action of "trespass on the case upon promises." (7 T. R. 36.) Under the uniformity of process act, 4 W. 4, C. 39, it would appear that the proper designation of the action of assumpsit should be "an action upon promises." This is evidently the view taken by Mr. Stephen, who, In his form of declaration in assumpsit, commences as 56 ASSUMPSIT. In actions upon promissory notes or bills of exchange, the common counts are frequently combined with a special count upon the instrument sued on. The following is the common form of a declaration in assumpsit upon a promissory note where the suit is brought by the payee against the maker: Form 3. PAYEE VS. MAKER. (Style of Court and Commencement as in Form 2.) • For that, whereas, the defendant, heretofore, to-wit: on the day of , in the year , at , to-wlt: at in the County of , aforesaid, made his certain note in writing, commonly called a promissory note, bearing date, the day and year last aforesaid, and then and there delivered the said note to the plaintiff; by which said note the defendant promised to pay to the plaintiff by the name and style of the sum of dollars, days (or months) after date, for value received: by reason whereof, the said defendant then and there became liable to pay to the said plaintiff, the said sum of money in the said promissory note specified according to the tenor and effect thereof. (Here add the money counts lor money loaned and advanced, paid, laid out, and expended, and lor money had and received with a count lor Inter- est and the general promise to pay, 11 such counts are properly joined un- der local practice.) Yet the said defendant, although often requested, has not paid the said several sums of money, or either of them or any part thereof, but has hitherto refused and still does refuse so to do; to the damage of the plaintiff dollars, and therefore he brings suit. Plaintiff's Attorney. follows: "To answer the said plaintiff, in an action on promises," Stephen on Pleading, p. 40. But Chitty adheres to the form given above, viz.: "In a plea of trespass on the case oa promises." This is the uniform rule in all of his forms of declaration in assumpsit. See Chitty on Pleading, Vol. II., p. 12. The same form is given by Mr. Oliver in his valuable work on "Forms of Practice, or American Precedents in Per- sonal and Real Actions." See Oliver's Precedents, p. 124 (original pag- ing). The weight of authority appears to favor this form, and we have adopted it for that reason. In some states the form "in an action of the case upon promises" is used, and the practice differs slightly in other states. The practitioner will readily ascertain by enquiry or observation the form used in his, own state, and he should modify the above form as local custom may require. ASSUMPSIT. 57 In declaring upon a promissory note the instrument must be set out accurately or the variance will be fatal. In Michigan and some other stales the special counts upon promissoiy notes are rarely used, as the statutes provide that a recovery may be had under the common counts, provided a notice that on the trial of the cause, the plaintifE -will give in evidence under the money counts the instrument sued on, and a copy of the note, or other instrument -sued on, bfe annexed to and served with the declaration. In code states the manner of .suing and declaring upon bills and notes is r^ulated by the code, and in all cases where there are any statutory provisions relating to the bringing of actions upon bills or notes these provisions must be carefully followed. In an action by an indorser against the maker the special count should be substantially as follows: Form 4. INDORSER VS. MAKER! (Style of Court and Commencement as in Form 2.) For that, whereas, the defendant, heretofore, to-wit: on the day of* , in the year A. D at to-wit at in the County of aforesaid, for value received, made his certain note in writing, com- monly called a promissory note, bearing date the day and year last aforesaid, whereby for value received he promised to pay to one C. D., by the name and style of or his order, the sum of dollars from date, with interest at the rate of" per cent, per annum until paid; and the said C D. tlhere- afterwards on the same day, indorsed and delivered the said prom- issory note to the plaintiff, by reason and in consideration whereof the said defendant became liable, and promised the plaintiff to pay him the said sum of money specified in said note according to the tenor thereof. Here add the money counts, breach and conclusion. In an action by the second indorser against the maker, the preceding form may be used, with the additional allegation that the first indorser indorsed the note to the plaintiff. ' The common form of the additional allegation is as follows: 58 ASSUMPSIT. Form 6. SECOND INDORSEE VS. MAXEE. And the said (payee) thereafterwards, on the same day, indorsed and delivered the said promissory note to one G. H., and thereby appointed and assigned the contents of said promissory note then unpaid, to the said G. H., according to the tenor of said promissory note; and the said G. H., by his indorsement of the said promissory note, appointed and assigned the contents of said promissory note then unpaid, to be paid to the plaintiff; of all of which the defendant then and there had notice, and thereby became liable, and in consideration thereof, then and there promised the plaintiff to pay to him the said promissory note according to the tenor thereof. [Add the money counts, breach and conclusions.] Form 6. INDORSEE VS. INDORSEE ON AN INDOESED NOTE. (Style Of Court and Commencement as in Form 2.) For that, whereas, heretofore, to-wit: on the day of in the year A. D , at to-wit: at , in the County of , aforesaid, one A. B., for value received, made his certain note in writing, commonly called a promissory note, bearing date the day and year last aforesaid, whereby he promised to pay to one C. D., the defendant, by the name and style of or to his order, the sum of dollars from date, with interest at the rate of per cent. until paid; and the said C. D. thereafterwards on the same day indorsed and delivered the said promissory note to the plaintiff, and the plaintiff avers that afterwards, when the said note became due and payable, according to the tenor thereof, viz., on the ; day of in the year , at the place aforesaid, the said note was then and there presented to the said A. B. and payment of the said note, according to its tenor, was then and there demanded of the said A. B., who then and there refused and neglected to pay the same or any part thereof, of which, the said defendant, thereafterwards, to-wit: on the same day, had notice, by reason whereof the defendant became liable to pay to the plaintiff the said sum of money specified in said note, when thereunto requested. Yet the defendant, though often requested, has not paid the same or any part thereof, but hath refused and neglected so to do, to the damage of the plaintiff dollars. Wherefore he brings this suit. Plaintiff's Attorney. In drafting special declarations or special counts, it should be borne in mind that the count must contain a full, concise and ASSUMPSIT. 59 metkodical statement of all the elements necessary to support the plaintiff's case. After the formal commencement, comes the startement of the cause of action, and a failure to set out facts sufficient to support the action wiU render the declaration demurrable, and while the statutes of amendments ia most of the states will permit of an amendment of the declaration, still this is often a cause of delay and sometimes of costs. As an illustration, in an action to recover for a violation of an oral contract, based upon mutual promises, the declaration must state the time and place of making the contract or promise, the promises to be performed upon the part of the plaintiff and defendant, that the plaintiff has performed the contract upon his part, or has been' ready and willing so to do, but that the defendant has refused and neglected to perform though requested so to do, concluding with a statement of damages. So also in an action for deceit to recover upon a breach of warranty, the consideration therefor, and the breach of the warranty in the language of the warranty m,ust be set out in the declaration, as, for instance, ia the case of a warranty of a horse as being sound and free from blemishes, the statement should be that in consideration that the plaintiff at the special instance and request of the defendant, would buy of the defendant a certain horse for the sum or price of ... . dollars the defendant promised the plaintiff and warranted that the said horse was then and there sound and free from blemishes; and the plaintiff, confid- ing in the said promises and warranty of the defendant, did on, to-wit, the day of , at, etc., buy the said horse at and for the price aforesaid, and did pay the same to the defendant therefor. Yet the said defendant, not regarding his said promises and warranty, thereby craftily and subtily deceived the plaintiff ia this, that the said horse was not, at the time of said sale thereof, and at the time of making said promise and warranty, sound and free from blemishes, but, on the contrary, Avas then and there unsound and not free froni blemishes, and was wind broken, etc. (setting out the particulars of the un- 60 ASSUMPSIT. soundness), and whereby the said horse then and there became and was, and still is of no value to the plaintiff. To the damage of the plaintiff, etc. In drafting special counts it is well to fix in your mind the points necessary ■ to be proved in order tOi make out a prima facie case. Arrange these points in their logical order and draft the declaration or count to fit the case. Care should be taken to avoid surplusage and ambiguous statements. PLEADINGS IN ASSUMPSIT: When called upon to defend an action, after becoming familiar with the facts of the case, your first duty will be to ascertain whether the action has been properly begun, whether the court has jurisdiction to try and determine the cause, whether the proper parties have been joined as parties plaintiff and defendant, whether the parties are properly named, whether the summons or other writ whereby the action was begun has been properly served and by the proper officer. All these questions should be determined before you enter the appearance of the defendant, as an. appearance will waive an improper service and also estop the defendant from pleading to the jurisdiction. These questions having been settled, the next step will be to ascertain whether there is any defense in law which requires to be specially pleaded in abatement or in bar. PLEAS IN ABATEMENT: A plea in abatement is one which defeats the present pro- ceeding by pointing out some error or insufficiency in the proceed- ings or the disability of either the plaintiff or defendant- It does not deny the right of action, and as the plea must set out the error complained of, or, as te(jhnically stated, give the plaintiff a better writ, the plaintiff may bring another action. Owing to the far reaching effects of the statutes of amend- ments, the plea in abatement seldom results in an abatement of ASSUMPSIT. 61 the actioii except in cases of the disability of one or both of the parties. The re^ar order of pleading in abatement is as follows: 1. To the jurisdiction. 2. To the ability of the plaintiff to sue. 3. To the ability of the defendant to be sued. 4. Want of proper parties. 5. To the sufficiency of the proceedings. 6. To the propriety of the proceedings. The following is the common form of a plea in abatement, and can be readily adapted to any state of facts: Form T. PLEA IN ABATEMENT FOE WANT OP PARTIES. State of In the Court for the County (or District) of , . A. B PlaintlfE, vs. CD Defendant. And now comes the defendant, by , his attorney (or in his own proper person), and prays judgment of the said writ (or declaration) because he says that the several supposed promises and undertakings in the said declaration merutioned (if any such were made) were made with one E. F., jointly with this defendant, wliich said E. F. is still alive, to wit: at L. and this he, the said defendant, is ready to verify; Wherefore, because the said B. F. is not named in said writ (or declaration) the said defendant prays judgment of the said writ (or declaration), and that the same may be quashed. Attorney for Defendant. Pleas in abatement must, in most states, be verified by affidavit. The following is a convenient form : 62 ASSUMPSIT. Form 8. AFFIDAVIT TO PLEA IN ABATEMENT. (Title of Court and Cause as in Form 7.) ss. State of County of C. D., the defendant in the above entitled cause, being duly sworn, deposes and says that he has read (or heard read) the forgoing (or within, or annexed) plea in abatement by him subscribed and knows the contents thereof, and that the same is true In substance and In fact. Sig. Subscribed and sworn to before me, this day of , A. D. 19.. (Signature of Officers.) (Official Title.) Form 9. PLEA IN ABATEMENT TO THE JURISDICTION OP THE COURT. (Title of Court and Cause as in Form 7.) And the said defendant in his own proper person, comes and defends and wrong and injury, &c, i and says that the court here ought not to lln the second line of form 9 the words "defends the wrong and injury, dr^c," appear, while in forms 10 and 11 the language is somewhat different, being "defends, &^c., when, &-'£.," (see also forms 37, 38, 39, 41, 42 and 43), and this apparent inconsistency has caused confusion in the minds of some students. These different expressions are illus- trations of the doctrine of half defence andi full defence, which was regarded by the old common law practitioners as very important. By them, a defence was regarded as a necessary introduction to the subject matter of the plea. " The word "defence," in the sense in which it is here used, has been defined to be "the denial of the truth or validity of the complaint and does not merely signify a justification. It is a general assertion that the plaintiff has no ground of action, and which asser- tion is afterwards extended and maintained in the body of the plea. This was so essential in pleading, that formerly if no defence were stated in the commencement of the plea, though the plea were in other respects sufficient, judgment was given against the de'onJant." — Chitty on Pleading, Vol. I, p. 428. Half defence was stated as follows: ' ' Venit et defendit •vim et in- juriam et di'cet," meaning, "He comes and defends the force and injury." Full defense was stated as follows: "Venit et defendit vim et in- juriam, guando et ubi curia consider avit; et damna et quicguid guod ipse defendere debet, et dicet." meaning, "He comes and defends the force and Injury, when and where the court has considered, or when ASSUMPSIT. 63 take cognizance of, or sustain the action aforesaid, because he says that the said cause of action, if any, hath accrued to the plaintiff, accrued to him at within and for the County of , and that the damages demanded therein do not exceed the sum of one hun- dred dollars, and that the said action is within the jurisdiction of a justice of the peace of said county and not within the jurisdiction of this court, and this he is ready to verify: Wherefore, he prays judg- ment, if the court here will take further cognizance of, or sustain th« said action and for his costs. Signature. [Verify by affidavit as in Form 8.] Form 10. PLEA IN ABATEMENT ANOTHER ACTION PENDING. (Title of Court and Cause.) And now comes the said defendant, by , his attorney, (or in his own proper person), and defends, &c., when, &c., and says that he ought not to be compelled to answer to the said writ (or action) of the said plaintiff, because he says that the said plaintiff heretofore, to- wit: at the Court, within and for the County of on the day of , Impleaded the said defend- ant in a plea of and for the same cause as in the above cause declared upon, as by the record thereof in the said court remain- ing appears; and that the parties aforesaid to and in the plea aforesaid in the said court, and the said A, the plaintiff in this cause, and the said defendant, are the same persons, and not others; nor and where it shall behove him; and the damages, and whatsoever he ought to defend." Chitty says: "It was a maxim that the words "guando, (S->^.," ought not to be added when only half defence was to be made, and that after the words "venit ^t defendit vitn et injuriam," the subject matter of the plea should be immediajtely stated. It has, however, of late become the practice in all cases, whether half or full defence was Intended, to state it as follows: "And the said C. D., by , his attorney, comes and defends the wrong (or in trespass, force) and injury, when, &c., and saith, that," &c., which would be considered as half defence in cases where such a defence should be made, but as full defence when the lattei' was necessary. If full defence were made expressly by the words, "when and wliere it shall behove him," and "the damages and Whatever else he ought to defend," the defendiamt would be precluded to the jurisdiction or in abatement, for by defending when and where it shall behove him, the defendant acknowledges the jurisdiction of the 64 ASSUMPSIT. different; and that the plea aforesaid in the said Court is still pending and undetermined; and this he is ready to verify: Wherefore, he prays judgment, if he ought to be compelled to answer to the writ (or action) aforesaid, and for his costs. Attorney for Defendant. [Verify by affidavit as in Form 8.] Form 11. PLEA IN ABATEMENT, INFANCY. (Title of Court and Cause.) And the said defendant, by , his attorney, (or in his own proper person), comes and defends, &c., when, &c., and prays judgment of the writ and declaration aforesaid, and that the same may be quashed, because he says that the plaintiff is an infant under the age of twenty-one years, viz : of the age of years, and this he is ready to verify: Wherefore, inasmuch as the plaintiff hath sued out the said writ and declared therein, in his ,own person, and not by guar- dian or next friend, the said defendant prays judgment of the writ and declaration aforesaid, that the same may be quashed and for his costs. Attorney for Defendant. [Verify by affidavit as in Form 7.] court, and by defending the damages he waives all exceptions to the person of the plaintiff. — Chltty on Pleading, Vol. I, p. 429. The Hilary Rules, 4W4 "ordered that no formal defence shall be required in a plea, and it shall be commenced as follows: 'The said defendant, by , his attorney (or in person, &c.,), says tha.t, &c.,' so that the venit or 'comes' is to be omitted. And it has been held by some writers that by this clause the distinction between half and full defence was abolished. Chltty on Pleading, Vol. I, p. 429. Nevertheless, the old form is still adhered to by the best text writers and authorities upon cominon law pleading. See Chitty on Pleading, Vol. 3, pp. 889-908, and Story's Pleadings generally. Stephen omits the formal defence in all of his forms of pleas and there is probably no sound reason why the old form should be adhered to, and, in any event, failure to state a formal defence being only matter of form, could only be taken advantage of by special demurrer and under the liberal statutes of amendments in force in most of the stat^, the defendant would be permitted to amend his plea if the court should find, the plea insufficient by reason of the omission. ASSUMPSIT. 65 Where the groiinds of- the plea in abatement are truly pleaded, and the error can be corrected by amendment, it should be done at once. If the error cannot be cured by amendment, the plaintiff should discontinue his action and begin anew, but if the plea is based upon the disability of either party, a new action! cannot be brought until the disability has been removed. Where the matters alleged in the plea in abatement .are not true in fact, the plaintiff should file a replication, or if the plea be insufficient in law, the plaintiif may demur. Under the common law rule, if the plaintiff succeeded on the issue of fact raised under this plea, the judgment was final, but if he succeeded on demurrer, the judgment was that he plead over, vdthin such time as the rules of the court or order provided. This nile is modified in many of the states either by the rules of practice or by statutes. The plea in abatement is not as commonly used as formerly, many practitioners preferring to wait until the trial, when the proofs may disclose facts which will compel the plaintiff to either amend his pleadings upon terms, or discontinue his' action. This plan is often resorted to where the object is to gain time, or where a new action may be barred by the statute of limi- tations. Great care should therefore be exercised in bringing an action to see that all the necessary parties, both plaintiff and defendant, are brought in; that they are correctly named; that they are not under disability; that the declaration sets out a complete cause of action ; and that the cause of action set forth corresponds with the competent evidence which you will be able to produce at the trial to make out your case. PLEAS IN BAR: Pleas in bar, as the name indicates, show some ground for completely defeating or barring the action, and go to the merits of the case. Pleas in bar go directly to the merits of the action and show either that the cause of action set forth in the declaration never QQ ASSUMPSIT. in fact existed, or if it did exist, that it has been barred by some- thing which has occurred since the cause of action accrued; in other words, pleas in bar are either pleas by way of traverse, or by way of confession and avoidance. Pleas by way of traverse are those which traverse, or put in issue, all or a part of the material allegations set forth in the declaration. Pleas in bar by way of traverse are proper in the following cases, viz ■} , (a) Where the defendant denies that the cause of action ever in fact existed, or (b) that a sufficient contract was ever made, or (c) where the defendant alleges the failure of or inadequacy of the consideration, or (d) that the plaintiff was incompetent to contract, or (e) that the contract was obtained by fraud or duress, or (f) that the consideration was illegal or immoral, or (g) that the act to be performed is illegal or impossible. A plea in bar by way of confession and avoidance is proper where the defendant adjnits that the cause of action formerly existed but contends that by something which has occurred since the cause of action accrued, the action has become barred. The following are some of the most common instances where this plea may properly be used :^ (a) Where the debt sued for has been paid (payment may, however, be shown under the general issue). (b) Where there has been an accord and satisfaction. (c) Where judgment has already been recovered upon the same caiise of action. (d) Where there has been a release. IThe practitioner should ascertain by reference to the statutes and decisions, what, if any, modifications of the above rule have been made in the practice of the courts of his own: state. See also Reg. Gen. Hilary Term 4W4, Chitty on Pleading, Vol. J, p. 514, et seq. ASSUMPSIT. 67 (e) Where tlie cause of action has been barred by the statute of limitations. (f) Where the defendant wishes to take advantage of a claim in set-off or recoupment. Forms for the various pleas in abatement Avill be found in Ohitty on Pleading, or Story's Pleadings. In assumpsit, pleas in bar are usually coupled with the plea of non-assimipsit, or, as it is commonly called, the general issue, and it is only in cases where the rules of eviden'ce preclude the "defendant from setting up his whole defense under the plea of the general issue that the special plea in bar is necessary. It is often a serious question to determine when a special plea is necessary, and when the defence may be made under the general issue. A simple and safe rule is that in cases where the defense is a simple denial of the cause of action as set forth in the declaration, the plea of the general issue will be sufficient, but where the defense admits that the cause of action once existed, and seeks to show facts subsequent thereto in dis= charge of the action, such as accord and satisfaction, former recovery, statute of limitations, set-off, recoupment, release, etc., a plea in bar will be necessary. Everything that cannot be shown under the general issue must be pleaded specially. The following are the forms of pleas in bar most commonly used: Form 12. FORMFi-R JUDGMENT. (Title of Court and Cause.) And now comes the said defendant by Ms attorney, and defends, &c., when, &c., and isays that the plaintiff ought not to have or maintain against him his action aforesaid, because, he says, that formerly, to wit: at a session of the Court', holden at within and for the County of , on the said plaintiff impleaded the said defendant in a certain plea of trespass on the case upon promises to the daanage of the said plaintiff dollars, on occasion of not performing the same identical promises in the said decliaration mentioned; and such proceed- 68 ASSUMPSIT. ings were thereupon had, that afterwards, to wit: at a term of said court holden at , within and for the County of on the day of , . . ., the said plaintiff, by the consideration of the said court, recovered against the said defendant in that plea, tihe sum of dollars for his damages* which he had sustained' by reason of the not performing the same identical promises in the said declaration mentioned, together with dollars costs of suit, whereof, the said defendant was convicted, as by the record thereof now remaining in the said court more fully appears; which said judgment still remains in full force and unreversed; and this the said defendant is ready to verify: Wherefore, he prays judgment if the said plaintifC ought to have of maintain, his action aforesaid against him and for his costs. Attorney for Defendant. Form 13. INFANCY. (Title of Cause and Court.) And now comes the said defendant who is an infant under the age of twenty-one years, by , his guardian, who is admitted by the court here to defend for the said defendanit (or by his guardian, ad litem, fee), and defends, &c., when, &c., and saith, that the plain- tiff, his action aforesaid thereof against him, ought not to have or maintain, because he says, that at the several times of the m^afcing of the said several promises in the plaintiff's declaration mentioned, he, the said defendant, was an infant under the age of twenty-one years, to^wit: of the age of '. years, and no more; and this he is ready to verify: Wherefore, he prays judgment if the plaintiff ought to have or maintain his action aforesaid thereof against him and for his costs. Signature. Form 14. (STATUTE OF LIMITATIONS.) (Title of Cause and Court.) And now comes the said defendant and defends, &c., and prays judg- ment, if the plaintiff, his action aforesaid against him, ought to have or maintain, because, he says, that he did not undertake and promise at any time within six years next before the commencement of the action aforesaid, in manner and form, ' as the plaintiff hath thereof above declared against him; and this he is ready to verify: Wherefore, he prays judgment, if the plaintiff his action aforesaid thereof against him ought to have or maintain and for his costs. * Signature. ASSUMPSIT. 69 Far»i 15. REPLICATION TO PLEA OP FOIiMER JUDGMENT. (Title of Court and Cause.) And the plaiatifE saith, that by anything by the said defendant above in his said plea alleged, he, the plaintiff, ought not to bp barred from having hisi said action thereof maintained against the said defendant, because he saith that there is not any such record of the judgment afore- said recovered by him, the plaintiff, against the said defendant in the said Court within and for the County of as the said defendant hath above in his said plea alleged; and this the plaintiff is ready to verify: Wherefore, he prays judgment andl his . damages by reason of the premises to be adjudged to him and for his costs. Attorney for Plaintiff. Form 16. REPLICATION TO A PLEA OP INPANCY. (Title of Court and Cause.) And the plaintiff, as to the plea of tlie said defendant by him above pleaded, saith, that he ought not to be barred from having or maintain- ing his action aforesaid thereof against the said defendant, because he saith that the said defendant, at the time of the making of the promises in said declaration mentioned, was of the full age of twenty-one years, and not under the age of twenty-one years, in manner and form as the defendant hath in his said plea alleged; and this he prays may be inquired of by the country. Attorney for Plaintiff. .Replications to the plea of infancy may allege that the defendant confirmed the promise or undertaking after he be- came of full age; or that the action is to recover for necessities ■suitable to his estate and degree. Form 17, REPLICATION TO PLEA OP STATUTE OP LIMITA- TIONS. (Title of Cause and Court.) And the plaintiff says, that he, by anything by the defendant in his rsald plea alleged, ought not to be precluded from having and maintain- ing his action aforesaid against him, because he says, that the said 70 ASSUMPSIT. defendant, within six years next before the commencement of the action aforesaid, did undertake and promise in manner and form as the plain- tiff hath thereof declared against him; and this he prays may be inquired of by the country. Attorney for Plaintiff. DEMURRERS: When a declaration appears upon its face to be defective either in form or substance, the defendant may take advantage of the defect by demurrer, which raises the question of the suffi- ciency of the declaration. The effect of a demurrer is, that, admitting the allegations in the declaration to be true, the plaintiff has not stated a case which will entitle him to recover. This is an issue of law and is determined by the Court. Where the declaration is defective in substance only, a general demurrer is sufficient, unless the common law rule is modified by statute or court rule in the pleader's own state. When the defect is. in form only, the demurrer should be special, that is, it should point out the defects complained of. Under the liberal statutes of amendments which are in force in most of the states, a demurrer simply serves to point out to the opposing party the defective f)arts of his declaration and gives him an opportunity to amend and thus citre the defects. Where defects occur in plea.dings subsequent to the declaration,, a substantial advantage may often be gained by means of a demurrer, but unless the pleader is satisfied that the plaintiff,, in view of the facts of the case, cannot amend his declaration so as to cure the defects, Httle is gained by demurrer. The better practice is to take advantage of the defects at the trial, either by objecting to the admission of any evidence under the declaration, or by objecting to the admission of evidence upon the points not covered by the declaration, or by a motion for a non-suit. A demurrer often proves invaluable to an unskilled pleader- by pointing out defects which he has overlooked, and enabling; ASSUMPSIT. 71 him to amend and strengethen his declaration before trial, and tjiereby win his case, while if the defects has been taken advan- tage of at the trial in the manner indicated, the result might have been fatal to plaintiff's case. GENERAL ISSUE: The plea of the general issue is the great and almost universal plea, and is essentially a traverse plea. It puts in issue all the material -allegations contained in the declaration, and is sufficient in all cases except where a special plea is necessary, and even in those cases it is usual to first plead the general issue and then the special matter of defense. The common form of the plea of the general issue is as follows: Form IS. PLEA OP GENERAL ISSUE. (Title of Court and Cause.) And the said defendant, by , his attorney (or in his own proper person), com«s and defends the wrong and injury, when, &c., and says that he did not undertake and promise in manner and form as the plaintiff thereof hath complained against him, and of this he, the said defendant, puts himself upon the country, &c. Attorney for Defendant This plea traverses the entire declaration and tenders an issue which the plaintiff is bound to accept by filing a replication. The replication to 'the plea of the general issue is commonly called a similiter and is as follows: Form 19. REPLICATION TO PLEA OF GENERAL ISSUE. (Title of Court and Cause.) And the above plaintiff, as to the plea of the said defendant by him above pleaded, and whereof he hath put himself upon the country, doth the like. Attorney for Plaintiff. 72 ASSUMPSIT. • Tte action is now at issue, and we shall proceed to inquire what defenses can be set up under tlie general issue. It will be inipossible to go into a discussion of the rules of the several states, or to state every speciiic case in which the plea of the general issue will or will not be suificient, and in cas^ of doubt the only safe way will be to consult the decisions of the court of final resort in your own state. The general rule seems to be that any evidence that tends to directly contradict the evidence introduced by the plaintiff to maintain the issue upon his part, may be intro- duced under the general issue. Another rule is that everything that tends to show that the cause of action never in fact existed, or that the contract or promise declared upon was never made, may be shown under the general issue.' In an action upon an implied contract, the defendant may show under the general issue that the contract was express; so also where the plaintiff seeks to recover upon an express con- tract, the defendant may show that the plaintiff has never per- formed the contract upon his part. In an action by a servant to recover salary after his alleged unwarranted discharge, the defendant may show under the general issue the refusal of the servant to obey his instructions or his incompetency or any other reason justifying his discharge. The general issue puts in issue the owiiership of a promissory note sued upon at the time of bringing suit. The rule as stated in Michigan is that the general issue in assumpsit denies and puts in issue every fact, and every combin- ation of facts essential to the plaintiff's cause of action as set up in the dekjlaration, and that it is a general denial of all the material allegations in the declaration, and is sufficient to enable defendant to contest all such allegations, and to put the plaintiff upon the proof of all or any of them. — Wilson vs. Wagar, 26 Mich., 452; Eawson vs. Finlay, 27 Mich., 268. ASSUMPSIT. 73 The Supreme Court of the United States has adopted prac- tically the same rule, and holds that everything which disaffirms the contract, everything which shows it to be void, everything which shows that no debt was due at the commencement of the action' may be given in evidence under the general issue in an action of assumpsit. — Young vs. Black, 7 Cranch, 513; Craig vs. Missouri, 4 Peters, 410. SET-OFF: It sometimes occurs that the defendant* has a counter-claim against the plaintiff which he wishes to recover or to set-off against the plaintiff's demand. Set-off is not, strictly speaking, a defence, but it js more in the nature of a cross-action. The plea of set-off does not admit the justness of the plaintiff's cause of action, or prevent the defendant from making whatever defense he has. In England, the defense of set-off is founded on the statute of 2 Geo., 2 Ch., 22. Under the provisions of this statute and amendments thereto, the defendant is permitted in case of mutual debt to set-off his claim against the plaintiff's. This statute, in a more or less modified form, has been adopted by nearly, if not all, of our states. Many of the states have enlarged the' scope of the plea in set-off so that it may include in actions of assumpsit, any claim or right of action which the defendant had against the plaintiff at the time of the commence- ment of suit, which could have been prosecuted in an action of assumpsit. The demand must have been due and payable at the time the action was commenced, and must be a legal claim as distinguished from an equitable claim. As a general rule unliquidated damages cannot be pleaded in set-off, but this rule has been modified in some of the states so that it is not of univer- sal application. ISTeither does this rule apply to money demands for which indebitatus assumpsit will lie, or to demands which may be ascertained by computation. The demands must be mutual. The demand sought to be set-off must be in favor of all the defendants to the action and 74 ASSUMPSIT. against all the plaintiffs. There can be no set-oflf of a claim in which a party other than the parties to the action is interested. Tliis, Kke the preceding rule, is subject to exceptions, and the contrary rule prevails in Pennsylvania, Kentucky, Missouri, Iowa and some other states. The practitioner must be governed by the statutes and decisiolis of his own state. A defendant is not bound to set off his demand, in the absence of a statute requiring him to do so, but may maintain an inde^ pendent action therefor. In some of the states the statutes pro- hibit the plaintiff from discontinuing his action after notice of a plea in set-off without the consent of the defendant. In the ab- sence of a provision of this kind, it would be an act of folly to plead in set-off a claim nearly barred by the statute of limitations, as the plaintiff, by waiting until the statute has run, can discon- tinue his action, leaving the defendant with no remedy, and begin a new action. HOW PLEADED: Set-off must be pleaded specially and vsdth as much, certainty as is required in a declaration. The plea must disclose such a state of facts as would enable the defendant to recover if the same facts were set forth in a declaration. The cause of action must be set forth with reasonable certainty. If the demand is in the form of a promissory note, bill of exchange or other instru- ment in writing, it must be described the same as in a declaration. There must be an allegation of how much and for what the plaintiff is indebted to the defendant, that the demand was a sub' sisting demand at the commencement of the action, that it is still in force, that the defendant is the owner thereof, and that the plaintiff is liable thereon. A defective plea in set-off may be taken advantage of by demurrer. In states where notices of special defences may be given instead of filing special pleas, a notice of set-off may be given, but the rule requiring certainty of description must be regarded, and the notice must 'contain all the essential elements of a declaration. ASSUMPSIT. 75 EFFECT OF SET-OFF: If the defendant pleads his demand in set-ofE, and the issue is presented to and passed upon by the jury, the judgment is con- clusive, and if the claim is disallowed it becomes res adjudicata, and cannot be again made the subject matter of an action. If the issue is found in his favor, the amount will be applied upon the amount found for the plaintiff and judgment for the balance will be entered for the plaintiff unless the set-off exceeds the plaintiff's demand, in which event the plaintiff's demand will be extinguished and judgment will be entered for the defendant for the balance found to be due him and for costs of suit. RECOUPMENT: Another defence frequently resorted to is that of recoupment. This proceeding differs from set-off in this, that recoupment must spring out of the contract upon which the action is brought, and is not confined to cases where the damages are liquidated or capable of being ascertained by computation. The doctrine of recoupment had its origin in and is controlled by the rules of the common law, except where the doctrine has been modified or extended by statute. Eecooipment can only be maintained where the damages sought to be recouped spring from some breach of the contract or transaction sued on, and in order to take advantage of such breach, the defendant must plead specially, setting out fully, particularly and accurately the breach complained .of, and his damages, with a statement that he will recoup his damages against the damages to be recovered by the' plaintiff. The plea in, recoupment must be drafted with all the certainty of a declar- ation. .' At common law the defendant could not recoup damages beyond the amount of the plaintiff's claim, and this doctrine still prevails in many of the states. In some of the states the statutes permit a balance found to be certified in favor of the defendant, 76 ASSUMPSIT. but in the absence of such a statute the damages in recoupment are limited to the amount of the plaintiff's claim. Eecoupment is not compulsory upon a defendant; it furnishes a" convenient remedy in many instances, and the doctrine is favored as tending to prevent a multiplicity of suits, still the defendant may have his separate action to recover his damages, and where the damages vidll probably exceed the plaintiff's claim, the defendant vvdll, by pleading his damages in recoupment, waive all over the amount of the plaintiff's claim, except in states where the statute permits a balance to be certified in his favor. A claim for damages set up by way of recoupment and passed upon by the court or jury, becomes res adjttdicata, and the prac- titioner must weigh all the surrounding circumstances before determining the question of the advisability of recouping dama- ges in the action pending, or of bringing a separatei action. When the amount of damages to be recouped does not exceed the plaintiff's claim and all other circixmstances are equally favorable to the defendant, recoupment is advisable, but it should be remembered that the right to open and close usually remains with the plaintiff, and if the defendant's claim is large, difficult to be maintained, and in excess of the plaintiff's claim, it is often better to bring a separate action in order that there may be but one sharp, well defined issue presented, with the advantage which the moving party always has, that of opening and closing the argument. We have discussed the doctrine of recoupment but briefly, our intention being to simply hint at the possibilities of this proceed- ing, leaving the practitioner to an examination of the statutes and decisions of his own state to determine fully the scope and practical advantage of the proceeding. In many of the states a ■ notice of recoupment may be given instead of filing a plea, but the notice must set out all the elements of the contract, the breach and damages, with a notice that the defendant will recoup his •ASSUMPSIT. 77 damages (and in states where it is permittfid) that he will have the balance certified in his favor, with all the certainty required in a declaration. Bibliographic Note. — For the common law rules and precedents in actions of assumpsit, reference may be had to Chitty on Pleadings, Vols. I and II, Oliver's Precedents, Stephen on Pleading, Story's Pleadings, being a compilation of pleadings subsequent to the declara- tion, with valuable notes. Heard on Civil Pleading, Gould's Pleading, Archbold's Civil Pleading and Saunders' Pleadings. Upon questions relating to the construction of contracts, see Parsons on Contracts, Metcalf on Contracts, Addison on Contracts, an English work with very full American notes, Anson on Contracts, an English work with notes by J. C. Knowlton, Esq., Dean of the Law Department of the University of Michigan, Bishop on Contracts, an American work, gjid Hilliard on Contracts. For the law of evidence, the relation between the pleadings and the evidence, wTiat evidence may be introduced under the various pleas, &c., consult Starkie on Evidence, an old work of great value, Greenleaf on Evidence, a standard •authority, Bradner's Rules of Evidence, Stephen's Digest of Evidence, Best on Evidence, a valuable work, containing rules for conducting the examination and cross-examination of witnesses, Jones on 'the Law of Evidence anfl Wharton on Evidence. The works on the limitations of actions are, Angell on Limitations, Buswell on Limitations and Adverse Possession, and "Wood on Limitations of Actions. For a valuable work on the statute of frauds, see Browne on the Statute of Frauds. For the law of set-off and recoupment see Waterman on Set-Off, Recoupment and Counter Claim. CHAPTER III. TEES'PASS O^T THE CASE. Case, or as it is sometimes called, trespass on the case, is the proper action where the plaintiff seeks to recover for a wrong done to his person, reputation, goods, or estate, without direct or immediate force. It is an action ex delicto and lies to recover damages for torts not committed witk force, actual or implied. This action comprehends the actions of trover, slander, libel, deceit, malicious prosecution, conspiracy, nuisance, and all action.*? brought to recover damages ai-ising through the negli- gence of the defendant or his agents or servants. This action had its origin in the common law and was created for the purpose of giving a remedy in special cases for which no remedy then existed. In many of the states the distinction between trespass and case has been a.bolished and case may be brought to recover upon actions for which trespass was formerly the only remedy, but we shall consider these forms of action separately, leaving the practitioner to determine for himseK which form of action he will pursue. Case is also the proper form of action to recover upon stat- utes, in the absence of a statutory provision to the contrary. Case lies for official misconduct of a public officer acting ministerially, also, against a Justice of. the Peace or other officer for refusing bail. It is the proper remedy by which to recover for injuries to property delivered to or deposited with an inn- keeper, carrier, or other bailee, where there is actual or implied negligence on the part of the bailee. Also in cases of crim. con. ; harboring or enticing away a servant; seducing a daughter or servant; infringment of copyrights; to recover damages where unwholesome provisions are sold; for keeping dangerous animals 78 TRESPASS ON THE CASE. 79 and not securing than but suffering them to go at large so that they do mischief; and in general for any tortious acts of servants, apprentices, agents, or other employes. This action will not lie in cases where trespass is the proper remedy at common law, except in those states where the distinction between trespass and case has been abolished by statute. Where the common law distinction still prevails, great care must be exercised in bringing an action in form ex delicto, as a failure to bring the action in proper form will be fatal. In determining the question of whether the form of the action should be trespass or case, the following rules will be found helpful. The pleader should enquire: 1st. Whether the injury complained of is the immediate or the consequential result of the defendant's act. If the injury is the immediate result of the act of the defendant and the act was accompanied by force, trespass is the proper remedy; but, if the injury is the consequential result, case is the proper remedy, although the original act was accompanied by force. 2nd. Wlieither the act complained of was willful or merely accidental, because if the act was willful, trespass is the proper remedy, but if it was the result of accident, case is the proper remedy. 3rd. Whether the act complained of was done by the defend- ant, or by some other person for him. If the act was done by the defendant and accompanied by force, trespass is the proper remedy, but if it was done by an agent or servant in the course of his employment, case is the proper remedy, although' the act complained of may have been accompanied by force. 4th. Whether the act complained of was done in the exer- cise of a legal right. It is a well settled rule of law that a per- son must so conduct his own affairs as not to injure the person or property of another, and if in the exercise of a legal right by one person, another person sustains injury, case is the proper remedy. 80 TRESPASS ON THE CASE. If the act complained of was done in wilftil violation of law, trespass will lie, as the law will imply force under such circum- stances. There are many cases in which the plaintiff may waive the tort and sue in assumpsit. For instance, in deceit for a false warranty, either assumpsit or case will lie. So for a breach of duty by a common carrier. So where the defendant has taken and carried away the "plaintiff's goods, the plaintiff may bring either case for the conversion or assumpsit for the value of the goods. But having once resorted to an action of assumpsit, the plaintiff is deemed to have elected and thus waived the tort, and will not be permitted to discontinue his action and begin anew in an action of trespass on the case, for the tort. PERSONAL INJURIES: Case is the appropriate remedy to recover demages for per- sonal injuries caused by the negligence of the defendant or his agents or servants. This class of causes is constantly increasing both in number and importance, and the Cburts are called upon to apply the well settied principles governing causes of this kind to the nevv conditions arising or growing out of modern inven- tions. The introduction of the railway developed the law of carriers as regards their duty both in relation to freight and passengers, and has developed and extended the law of master and servant and the doctrine of the non-liability of the master for an injury to a servant through the negligence of a fellow-servant. The Courts have been called upon to 'define the liability of railway companies for injuries to cattle and horses through their negligence in not properly fencing their right-of-way or in not maintaining proper cattle guards at road crossings; the liability of a railway company for the loss of baggage; of a sleeping car company for loss of valuables carried by passengers; the liability of the company for improperly ejecting passengers from its cars; and many other questions growing out of the dealing of a rail- TRESPASS ON THE CASE. 81 way company with, its servants or the public, and the rights, duties and liabilities of the parties have been determiaed and the pre- cedents that have been created and the doctrines laid down have done much to settle the law upon many important questions. The introduction of rapid transit in cities, as for instance, the elevated roads, the cable and electric cars, have given rise to many new questions which have been solved in most cases by the application of established doctrines. There seems to be in the minds of many people, an impres- sion that an injury creates a liability upon the part of some one to respond in damages; this, however, is not the fact. In order to maintain' an action, the injured party must show that the person, who either personally or through his agents or servants caused the injury, owed some duty to the injured party, and that he was guilty of negligence ia the performance of that duty. The questions which should be applied as a test in all cases presented to a lawyer for consideration, are : First : What, if any, duty did the defendant owe to the plaintiff ? and, Second : In what way, if any, did he neglect that duty ? Sometimes this duty is created by implication, but it must always exist in order to create a liability iipon the part of the defendant. Tor instance, a common carrier owes to a passenger the duty to carry him safely, and to use due diligence and care to see that its equipment and roadbed are in good repair, and that its employes are skilKul and competent. So, also, a municipal corporation is charged with the duty of keeping its streeits in good repair and reasonably safe for all persons having lawful occasion to use them. So, a person when he invites anoither to come upon his prem- ises, is bound to keep his premises reasonably safe, and to warn persons coming thereon by his invitation, express or implied. 82 TRESPASS ON THE CASE. of any danger of wMch he has knowledge,- and of which those coming upon the premises are not aware. So a street railway company is bound to use ordinary care in operating its Hne. It owes a duty to people passing along the street to give warning of the approach of its cars, to keep its cars under control, not to run at a dangerously high rate of speed through crowded streets, to stop for passengers and to give a reasonable time for persons to enter or leave its cars, and not to start the car suddenly while a person is entering or leaving it. It is the duty of a railway company to provide safe approaches to its railway stations and to keep the station platforms in a reasonably safe condition, and properly lighted ^t night. This duty, however, is owed only to those having lawful occasion to use the station grounds for some purpose connected with the business of the railway company. It has been held that this duty extends to a person who has come upon the station grounds for the purpose of meeting his wife, who is a passenger upon the defendant's train. The law imposes upon an employer the duty to provide a safe place for his employes to work in, to provide safe machinery and appliances, to guard dangerous machinery, to notify per- sons in his employ who are too young or too ign'orant to- under- stand the dangers of their occupation what their danger is, and how to guard against it, and to use reasonable care in the selec- tion of his servants, to see that they are competent and suitable persons. A violation of any of these duties will render the mas- ter liable. These few examples will serve to illustrate the doctrine that there must be some. duty, either express or implied, upon the part of the defendant, and that the defendant owed that duty to the plaintiff, before there can be any recovery. TRESPASS ON THE CASE. 83 CONTBIBUTORY NEGLIGENCE: Not only must there be the violation of some duty upon the part of the defendant, but the negligent act of the defendant must have been the proximate cause of the injury, and the plaintiff must have been at the time ia the exercise of due care and free from negligence on his part. The rule is now nearly, if not quite, universal, that the plaintiff cannot recover for an injury sustained through the negligent act of the defendant, if he, by his own negligence, contributed to the injury. Up to a .recent date the doctrine of comparative negligence has been applied in some of the states, notably in Illinois. But the rule as above stated has become very firmly established and is gain- ing ground even iu that state. What constitutes contributory negligence must always depend upon the circumstances of the particular case. A few illustra- tions, however, will serve to emphasize the rule. It is negli- gence for a person to alight from a moving car or train, unless to escape' from impending danger. It is negligence to attempt to cross a railway track in front of a rapidly approaching train; to drive upon a railway track without having first stopped to look and listen for an approaching train; to alight from a train before it has drawn up to the station; to ride on the platform of a railway coach, while the train is in motion; to cross the platform from one car to anothea* of a rapidly moving train; and to run into dangers which might have been avoided by the use of reasonable care. One who voluntarily exposes himself to evident ri?ks caused by another's negligence cannot recover for injuries resulting from such exposure (58 Mich., 43Y-). WHAT DOES NOT CONSTITUTE CONTRIBUTORY NEGLIGENCE: It is not contributory negligence not to look for- danger where none is to be apprehended (82 Mich., 1). It is not con- tributory negligence for a person who is suddenly placed in a 84 TRESPASS ON THE CASE. position of danger through, the negligence of the defendant to do what seems to him at the time to be most likely to insure his safety, even though it afterwards appears- that some other course would have prevented the injury. The law allows for fright and for the lack of cool judgment incident to such peril. One cannot be blamed for doing that which at the time seemed to him to be best. The conduct of a person under such circumstances must be judged in the light of the circumstances theanselves, and not by the way in which they may have appeared to a bystander who was not himself placed in peril or tO' one who afterwards, reviewing the circumstances, might believe that he would have acted otherwise, if placed in the same position of peril (64 Mich., 219; 57 Mich., 240; 1 Stai-k, 493; 75 K Y., 320; 69 K Y., 158). It is not contributory negligence for an employe who is in doubt about the safety of the place where he is to work or the machinery which he is obliged to use, to defer tO' the opinions and assurances of those who are supposed to know, and from their position are bound to have a special knowledge as to whether it is safe or not. It is not contributory negligence to cross a railway track between the two parts of a train which has been cut in two for the purpose of letting people pass. Where it appears that the plaintiff was thrown off his guard by the defendant's own act, and was led to believe that vigilance was not necessary, his lack of care will not bar a recovery (78 Mich., 687). The contributory negligence of the plaintiff will not prevent a recovery in a case where the defendant, who knows or ought to know by the exercise of ordinary care of the precedent negli- gence of the plaintiff, by his subsequent negligence does the plaiatiff an injury (95 Mich., 225; 64 Mich., 514; 107 Ind., 89). Judge Cooley, in his work on Torts, Second Edition, 674, in referring to this doctrine, says: "In such cases it may be said that the negligence of the plaintiff only put him in position of danger, and was, therefore, only the remote cause of the injury, TRESPASS ON THE CASE. 85 while the subsequent intervening negligence of the defendant was the proximate cause. "^ Illustration of this doctrine would be the case of a man walk- ing along a railway track in front of an approaching train. His being on the track would be an act of negligence on his part, but this would not excuse the engineer of the train for not giving him warning by sounding his bell and whistle or for not stopping his train, if possible.^ It is also well settled that the doctrine of contributory negli- gence does not apply where the injury complained of was caused by the gross negbgenc;© of the defendant. What constitutes gross negligence must depend upon the circumstances of each particular case. MASTER AND SERVANT: It is a well settled doctrine that the master is liable to third persons for injuries resulting from the negligence of his servant in the regular course of his employment; but ordinarily the master is not liable for the wilful or malicious acts of his ser- iSee Davis vs. Mann, 10 Mees. and. W. 546, which, is a leading casp. Also Beach on Contributory Negligence, 29; Hartfield vs. Roper, 21 Wend. (N. Y.), 615; Vandegrift vs. Redifeer, 22 New Jersey Law, 185; Lafayette, &c., R. R. Co. vs. Adams, 26 Ind., 76; Mulherrin vs. Delaware, &c., R. R. Co., 81 Penn. St., 366; Norris vs. Litchfield R. R. Co., 26 Conn., 591; Railway Co. vs. Donahue, 75 111., 106; Brown vs. Hannibal, &c., R. R. Co., 50 Mo., 461; Macon R. R. Co. vs. Davis, 18 Ga., 679; State vs. Manchester, &c., R. R., 52, N. H., 528; Cooper vs. Central R. R. Co., 44 Iowa, 134; Kerwhacker vs. Cleveland, &c., R. R. Co., 3 Ohioi St., 172; Munroe vs. Leach, 7 Mete. (Mass.), 274; Baltimore & Ohio R. R. Co. vs. State, 33 Md., 542; Trow vs. Vermont Central R. R. Co., 24 Vermont, 494. 2And where a person is discovered upon the track of a railway com- pany, and it is seen that he fails to recognize the peril of his situation and the warnings given thereof, it Is the duty of the engineer to slow down his train; and if necessary to preserve life or limb, to come to a full stop. 2 Thompson on Negligence, 1157, and cases cited; Green vs. Brie Ry. Co., 11 Hun. (N. Y.), 333; Radley vs. London & N. W. Ry. Co., 1 App. Cases, 754; Shearman & Redfleld on Negligence, Sec. 36. 86 TRESPASS ON THE CASE. vant, or for a wanton violation of law by a servant, or for the acts of a servant done intentionally or recklessly, beyond the scope of tlie master's business. In order to render the master liable for the fault or negligence of his servant, the injury complained of must have ajisen in the course of some service rendered for the master, but negligently or unskillfully performed. The master is also liable for the acts of his servant done under the direction of an overseer or foreman, because the overseer or fore- man stands in the position of the master, and his acts are deemed to be the acts of the master. WHO ARE SERVANTS: Any person entering into the service of another becomes thereby subject to the direction and control of the latter, and the relation of master and servant is created as soon as the con- tract is entered into. But to make the master liable, it is not always necessary that the relation should actually exist under any definite contract of hiring. The relation exists as soon as the person sought to be charged as master has employed the servant or has obtained the right of control over him or has given his tacit assent to the rendition of the particular service by him. The true test of liability is whether the person sought to be charged as master had the right to direct and control the person through whose neglect the injury complained of was occasioned, and whether he had the right to discharge such person for disobedience to his orders or for misconduct. Cases have arisen where the relation of master and servant has been held to exist between the defendant and a mere volunteer, where it is shown that the person sought to be charged as master knew of the performance of the service, or if he afterward assents to it. If while engaged in such voluntary service an injury should result from the negligence of such volunteer, the master will be liable. TRESPASS ON THE CASE. 87 LIABILITY OF TEMPORARY MASTER: It sometimes becomes a question of great im^portance to detei^ mine who is rei^nsible for some particular act of a third person. The master may, for the time being, place his servant under the direction and control of a third person in such a manner as. to make him liable for the negligent act of the servant, but in order to create a liability upon the part of the temporary master, the permanent master must have relinquished for the time being, the direction and control of the servant, and placed him under the absolute direction and control of the temporary master. This question has given rise to an apparent conflict of authority, but the doctrine is now well settled. The great leading case in England upon this question is that of Quarman vs. Burnett, 6 M. & W., 499. In this case the owners of a carriage hired horses from a livery stable, and the owner of the horses provided a driver. The owners of the car- riage provided the driver with a livery, which he wore when driving the horses attached to their carriage. An injury was occasioned through the negligent act of the driver in leaving the horses standing while he went to deposit his livery in the house of the owners of the carriage. It was held that the driver was the servant of the owner of the horses and that he alone was liable for the negligent act of the servant. The grounds of this decision were that the o^vner of the horses still retained control over the driver. But if the owners of the carriage had controlled the driver or directed him to drive in a particular way so that the driver was acting exclusively under the direction and control of the hirers, they would be liable for the negligent act of the driver, and not the owner of the horses. The rule laid down in Quarman v. Burnett has been followed in most of the United States. In 50 Mich., 516, it was held that a master was liable for the negligent driving of a servant even while the latter was acting temporarily for another person who had hired the team and driver from the master. 88 TRESPASS ON THE CASE. On the otker hand, in 13 Allen (Mass.), 58, it was held that a truckman in the employ of 1i,he defendant, while temporarily employed by another person to deliver fish for him, and who while so employed ran into the plaintiff's team, was, for the time being, the servant of the latter, and the temporary master was held liable. So in 122, Mass., 481, it was held that the question whether a teamster, through whose negligence a coal hole was left open, into which the plaintiff fell and was injured, was the servant of the occupant of the building in putting in the coal or of the owner of the team depended entirely upon the qu^tion whether the occupant had the right to control the manner of delivery. The Supreme Court of the United States had this same ques- tion before it in the case of Little v. Hackett, 116 U. S., 566. In this case it was held that a person who hires a public hack and gives the driver directions as to the place to which he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts or negligence, but this case also recognizes the doctrine that the hirer may, by assum- ing direction and control of the driver, make himself liable for the negligence of the driver while so under his control. It will be seen, therefore, that this question must always be determined upon the facts and circumstances of each particular case. It is impossible for us to go into a thorough discussion of this doctrine, but the cases which we have cited will be found instructive and are particularly valuable for their elaborate and careful discussion of the question. NEGLIGENCE OF FELLOW-SERVANTS: It is now well settled that the master is not liable for injuries caused by the negligence of fellow-servants, unless he can be charged with negligence in the employment of incompetent ser- vants, or in retaining in his employ those who are untrustworthy or incompetent. If the master has used ordinary care in the TRESPASS ON THE CASE. 89 selection and retention of his servants, he is not answerable to one of them for an injury received through the negligence of another, while they are both engaged in the same employment and in the same general service: This has become a universal rule in this country, the leading case being raj:weU v. Boston & Worcester E. E., 4 Mete. (Mass.), 49. This doctrine has been extended or modified in some of the states by statute and in others by the decisions of the courts of final resort. An examination of the authorities will show a conflict only upon the question as to who are fellow-servants, and this question often becomes one of great difficulty. The law pr^umes that a master has exercised due care in the selection of his servants, and the burden of proving that such servants were incompetent and untrustworthy will always be upon the plaintiff. It is not necessary, however, in all cases to bring home to the master actual notice of the incompetency or untrust- worthiness of the servant. If a servant is, in fact, notoriously incompetent or untrustworthy, the master is chargeable with negligence in not knowing what his reputation is. So also, if a servant after entering into the employ of the master, becomes notoriously negligent or untrustworthy, or becomes addicted to the use of intoxicating liquors to such an extent as to render him incompetent to discharge his duties, the master vdll be liable if he retains him in his service. It has been held, however, that a fellow employe could not recover for an injury sustained through the negligence of his fellow servant if he had equal means with the master of knowing of the character or habits of such servant. Davis v. Detroit & M. E. E., 20 Mich., 105, Hilts V. Chicago & Q. T. E. E. G^., 55 Mich., 437. This doc- trine rests upon the theory that where the employe has knowl- edge of the incompetency or untrustworthiness of a felloAV-ser- vant, he not only assumed the ordinary risks incident to his employment, but also the additional risk arising from the incompetency of such fellow-servant. It is also held that 90 TRESPASS ON THE CASE. a servant who remains in the employ of the master after he has knowledge of the incompetency of a fellow-servant is barred from recovering for an injury sustained through the incompe- tancy or untrustworthiness of such fellow-servant upon the groimd that his own negligence in remaining in the employment contributed to the injury. As we have already shown, it is the duty of the master to provide his employes vdth a safe place in which to work, to provide safe and suitable machinery and appliances, to employ competent and trustworthy servants, and to warn unskilled em- ployes of the dangers of the service of which thq^ are not awaxe^ and the master cannot, by delegating these duties to an employe, relieve himself from liability for an injury occurring by reason of a failure in any of these instances, it being held almost universally that the employe to whom thee© duties are delegated stands in the position of the master, and is a vice princi- pal and not a fellow-servant of those who are obliged to work in the place provided by him, or to use tools or machinery provided by him, or to work vrath the employes hired by him. Hough vs. Railway Go., 100 U. S., 213, 218; Flike vs. Boston & Albany E. R Co., 53 K Y., 549; Corcoran vs. Holbrook, 59 IST. Y., 517. In Fuller vs. Jewett, 80 IST. Y., 46, an engineer of the Erie Railway was killed by the explosion of the boiler of a locomo- tive, caused by its defective condition. In the action brought by the administratrix it was contended that the negligence of the mechanics in not keeping the boiler in a safe condition was the negligence of his co-employes in the service of the company, for which it was not responsible. But the court affirmed the principle of the decisions already cited, and held that an act or duty which the mastet, as such, is bound to perform for the safety and protection of his employes, cannot be delegated so as to relieve him from liability to a servant injured by its omission or its negligent performance, whether the non-feasance or misfeas- ance be that of a superior or inferior officer, agent, or servant, to TRESPASS ON THE CASE. 91 whom the doing of the act or the performance of the duty has been committed. "In either case, in respect to such act or duty, the servant who undertakes or omits to perform it is the represen- tative of the master, and not a mere co-servant with the one who sustains the injury." See also Pantzar vs. Iron Co., 99 N. Y., 368; Ford vs. Fitchburg R. E.., 110 Mass., 240. In this case the court said "The agents who are charged with the duty of supplying safe machinery are not, in the true sense of the rule relied on, to be regarded as fellow-servants of those who are engaged in operating it. They are charged with a master's duty to his servant." The same rule has been adopted in Maine. See Shanny vs. Androscoggin Mills, 66 Maine, 420. Also in Wisconsin, Bessex vs. Chicago & N. W. Ry., 45 Wis., 477; Wedgewood vs. same, 41 Wis., 478. Also in Illinois, Toledo vs. Conroy, 68 111., 560, and in Minnesota, Drymala vs. Thompson, 26 Minn., 40. The same rule also applies in Michigan, Morton vs. E. R. Co., 81 Mich., 423, Brown vs. Gilchrist, 80 Mich., 56, Van Dusen vs. Letellier, 78 Mich., 492. The doctrine in Mich- igan is well illustrated in the following quotation from the opinion in the case last cited. "It is well settled by aU the authorities that the master must provide his servant with a safe place to work in, and furnish him with suitable machinery and appliances with which to perform such work, and it is his duty to keep such machinery and appliances in good repair. If he cannot do this himself, personally, he must provide some other person to take his place in this respect; and the person toi whom the master's duty is thus delegated — no matter what his rank or grade; no matter by what name he may be designated — cannot be a servant in the sense or under the rule applicable to injuries -occasioned by fellow-servants. Such person is an agent, and* the rules of law applicable to principal and agent must apply." An instructive case upon this question is that of Harrison vs. R. R. Co., 79 Mich., 409. On page 424 of the opinion the Court says, referring to the doctrine now under discussion: "It is 92 TRESPASS ON THE CASE. difficult to lay down any general rule which shall determine all cases. In some of the states it is undoubtedly true that the master is held to a much stricter accountability and responsibility for the acts and omissions of those who are classed by some of the other courts as fellow-servants; and the tendency of modern adjudications is more and more to relax the rule that those who are engaged in- the same common enterprise or business are fel- low servants, especially if it can be pointed out that the one in fault occupies some higher grade or more power than the party injured." Again, "Some general rules may, however, be laid down, which in numy instances, may serve as a guide in the deter- mination of the question. It is not to be determined solely from the grade or rank of the offending or injured servant, but it is to be determined by the character of the act being performed by the offending- servant. If it is an act that the law imposes the duty upon the part of the master to perform, then the offending employe is not a fellow-servant, but' a superior or agent, for whose acts the master is held liable." Ohapman vs. K. E.. Co., 55 ]Sr. Y., 579; K. E. Co. vs. Salmon, 11 Kans., 38; Gilmore vs. E. E. Co., 18 Fed. Eep., 866; Mining Co. vs. Kitts, 42 Mich., 39; Albro vs. Canal Co., 6 Oush., 75; McAndrews vs. Bums, 39 N. J. Law, 117; Malone vs. Hathaway, 64 IST. Y., 9; Hard vs. E. E. Co., 32 Vt, 473; Lanning vs. E. E. Co., 49 K Y., 521. Many efforts have been made to extend the doctrine of non- liability of the master for injuries arising from the negligence of fellow-servants so as to include not only those who are in a common employment^ but also those who are in the employment of different masters but who are working to a common end, on the theory that common service and not a common employment for the same master should be the test of fellow service. One of the early cases was that of Warburton vs. Great Western Ey. Co., 2 L. E. Exch., 30. In this case, the plaintiff was an employe of the London & Northwestern Eailway Co., and the defendant used the railway station jointly with the London & Northwestern TRESPASS ON THE CASE. 93 Co. The defendant's sefrvants, while managing the defendant's trains within the station, we Court, held at , within and for the County of at the term thereof, A. D; to wit: on the day of A. D , recovered judgment against the said defendant by- the nam« of of . . .° for the sum of dollars damages, and doUairs costs of the said suit, as by the record thereof, now remaining in said court, appears; which said judgment is in full force and not reversed', annulled or satisfied; whereby an action hath accrued to the saad plalntiiffi to have and recover of the said defendant, the said several sums of dollars damages and dollars costs, amounting in the whole to dollars; yet the said defendamt, although requested, hath never paid to the plaintiff the said sum or any part thereof, but wholly refuses so to do, to the damage of the plaintiff .dollars. Wherefore he sues, etc. Form 30. DEBT UPON A BOND. (Title of Court and Cause, and Commencement.) In a plea of debt upon bond for money which the defendant ow« to and unjustly detains from the plaintiff; For that, whereas, the diefendant heretofore, to wit: on the DEBT. 157 day of , in the year , to wit: at , in the County of aforesaid, by his writing obligatory of that date, sealed with his seal, and here in Court to be produced, bound and acknoiwledged himself to be indebted to the plaintiff in the sum of dollars, to be paid' to the plaintiff upon demand; yet though requested, the said defendant has never paid the said sum or any paj:t thereof to the plaintiff, but wholly refuses and neglects so to do to the damage of the plaintiff of dollars, and there- fore he sues, etc. A profert of tlie bond is sometimes made in the declaration and may be made in the following language, following "sealed with his seal," "and to the court here now shown." If the bond declared upon be lost or destroyed, instead of the profert, the declaration should state, "which said writing obligatory having been lost or destroyed by fire, or unavoidable accident, or by the said defendant, the said plaintiff cannot produce the same to the said court." EVIDENCE: In debt upon a judgment, the production of the record is necessary in the absence of a statutory provision that a certified copy thereof will be sufficient. If the action is upon a judg- ment of another state of the United States, or of any other country under the jurisdiction of the United States, it may be proven by the production of a copy of the record properly authenticated under the Act of Congress, Sec. 950 Ee vised Statutes of the United States, which is as follows : "The records and judicial proceedings of the Courts of any State, or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together vdth a certificate of the Judge, Chief Justice or pre- siding Magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within 158 DEBT. the United States, as they have by law or usage in the courts of the state from which they are taken." These records constitute incontrovertible proof of all that appears upon their face, and if they show tl^at the coui^t obtained and retained jurisdiction of the defendant, the judgment will be conclusive as to everything appearing upon the face of the record. But if there was no personal service of process upon the defendant, and only substituted service, and the defendant did not submit to the jurisdiction of the court by entering-, his appearance, or contesting the action, the judgment will not be conclusive, and the defendant may avail himself of any defence which he might have had to the original action. Wbere the action is upon a judgment of a court of another state, great care must be c(bserved to see that the authentica- tion is strictly in accordance with the Act of Congress. If it is not, it will not be competent evidence. A certified copy of the record of a judgment of a court or another state will not be received as evidence of such judgment, unless made compe- tent by statute. Wbere the action is upon a bond, deed or other instrument under seal, the execution and delivery of such instrument must be proved unless proof thereof has been waived or made unneces- sary by some rule of practice of the court where the action is pending, or by some statutory provision. Eor instance, in Mich- igan there is a rule which provides that in an action upon any written instrument, under seal or without seal, the plaintiff shall not be put to the proof of the execution of the instrument or the handwriting of the defendant, unless the defendant, or some one in his behalf, shall file and serve a copy of an affidavit deny- ing the same. There are similar provisions in many of the states, but where there are no such provisions, the instrument sued upon must be proved as at common law. This proof con- sists in producing the deed or instrument, showing that it was signed, sealed and delivered by the grantor or obligor, remov- DEBT. 159 in.g any suspicions arising from alterations, interlineations, etc., by CYidence of how and when they were inade; and where any particular foiriaalities are required by statute, as essential to its validity, such as a stapap, or the like, the party must show that thdse have been complied with (2 (jrreenleaf on Ev., 294). The i^istruinent must be proved by the subscribing witnesses the^-eto if there be any, or Ipj at least one of them, unless the instrument is thirty years old, when it is said to prove itself if it is freed from just grounds of suspicion £uid comes from the proper custody, or where it is produced by the adverse party, claiming an interest under such instrument, upon notice. If the sub- scribing witnesses are dead, or cannot be found after diligent inquiry, or if they are resident beyond the sea, or out of the jurisdiction of the court, or if a witness be insane, or has become the adverse party, or for any sufficient reason cannot be procured, or has become incapaciated, the instrument may be established by other evidence. If there are no subscribing witnesses the instrument may be provided by evidence showing that the signature is genuine. Where there is a seal vipon the instrument, and the deed contains a statement that it was signed and sealed, proof of the signatiire is sufficient evidence to go to the jury. A seal may be of wax or of any adhesive substance. A seal by a wafer is sufficient. In many of the states a scroll is declared by statute to be a sufficient seal, and where the manner of sealing is shown to be sufficient in the place where the instrument was executed, it will be held sufficient in all courts and places. There must be proof of delivery, but very slight proof is. often sufficient. The delivery is complete whenever the grantor has parted with the controlof the instrument with the intention of its reaching the grantee, but the delivery is not complete unless accepted by him. No particular form of delivery is necessary, but whether there was a delivery in fact or not, depends always upon the particular circumstances of the case. 160 DEBT. Demanding or receiving the purcliase price, or suing to recover it, vsrill be evidence of a delivery. Depositing the instrument in the postoffice, addressed to the grantee, is evidence of a delivery. The possession of the deed by the grantee is evidence of delivery. And where a deed has been recorded and acted upon by the mutual consent of the parties, it is held that this amounted to a delivery. Jackson vs. Cleveland, 15 Mich., 94. And it is a sufficient delivery as against the grantor if he leaves it with the conveyancer to be delivered to the grantee. So the delivery of a deed will be presumed, in the absence of direct evidence to the contrary, from the concurrent acts of the parties recognizing a transfer of the title. Gould vs. Day, 94 U. S., 405. The conditional delivery of a deed will not be sufficient vrithout proof of the performance of the condition; nor will the deposit of the deed in escrow constitute a sufficient delivery. In an action upon a bond, the plaintiff must prove the execu- tion of the bond by the subscribing witnesses, or one of them, or if that is impossible by other evidence of the execution of the instrument, or that the signature is genuine. The plaintiff must prove the breaches assigned in the declaration as laid, and his damages. Where the action is upon a contract in vsriting, the execution of the contract must be proved, unless it is admitted, and if the performance of the contract by the defendant de- pended upon the performance of any act upon the part of the plaintiff, he must introduce proof of such performance upon his part. If the cause of action grew out of the violation of a parol contract, the plaintiff must introduce evidence to establish the contract before proceeding to prove its breach by the defendant. The plaintiff must prove his damages in order to support a verdict and judgment. In an action upon a deed, the defendant may, under proper pleadings, introduce evidence to show that the deed was not executed as alleged, or that it was not executed according to law, or that there was no delivery, or that the delivery was con- DEBT. IQl ditional, and that the condition has not been performed ; or that the deed is a forgery; or that it was obtained by fraud or duress; or that it was made while the grantor was under legal disability such as coverture, infancy and the like, or while he was insane ; or that the deed has become inoperative by circumstances aris- ing since its execution. And where matters of this kind are pleaded, the burden of establishing them is upon the defendant. Where the action is upon a bond, the defendant may, in addition to what may be shown in defense of an action upon a deed, introduce evidence to show that there has been no breach of the condition of the bond, or a release or discharge, or evi- dence tending to reduce the damages. Where the action is upon a written contract, the defendant may show the non-performance of a condition precedent upon the part of the plaintiff, or the violation of the contract by the plain- tiff, making it impossible for the defendant to perform his part of the contract; or the failure of the plaintiff to perform' accord- ing to the terms of the contract; or the substitution of another contract; or payment, discharge, accord and satisfaction, and anything tending to reduce the plaintiff's damages. In actions upon oral contracts, the defendant may, in addition to the de- fenses above outlined, deny that any contract was ever, in fact, made, or that the terms and conditions of the contract were not as claimed by the plaintiff. It frequently happens that the instrument out of which the cause of action arises is in the hands of the opposite party, and consequently beyond the control of the plaintiff. In some of the states there are rules of coiirt, or statutory provisions, under which, upon application to the court, an order will be made for the production of the instrument for the inspection of the plaintiff, in order to enable him to prepare his declaration. Where this cannot be done, the declaration should state the legal effect of the instrument as accurately as possible, and there should be an allegation that the instrument is in the hands or control of the defendant. 162 DEBT. Either party may compel the production of necessary papers at the trial of the cause by means of a subpoena duces tecum, which is a writ of very high authority, a failure to comply with which will be pimishable as for contempt of court. Where either party has in his hands letters, papers or docu- ments of any kind, which the opposite party wishes to use in evidence, he may serve a notice upon the opposite party to produce such papers, and upon his failure or refusal to do so, the party serving the notice may offer secondary evidence of the contents of such papers, which may be either by producing cop- ies of the originals or by oral evidence of the contents thereof. These observations in relation to the production of papers apply to all kinds of actions. The foUovsdng is the usual form of notice to produce books, papers, etc., at the trial : Form 31. NOTICE TO PRODUCE PAPERS, ETC. (Title Of Cause and Court.) To A. B., Attorney for the Defendant: Pleaee take notice that you are required to have with you and pro- duce at the triad of the above cause, all books of account, papers, letters, contracts, vouchers and other writings now in the custody, possession or control of the defendant in any way relating to the matters in con- troversy in said cause, and' more especially a certain letter written by the plaintiff to the said diefendant, on or about the day of in which he notified the defendant, etc. (or, more espe- cially a certain deed, contract, will, etc., describing it). If said books, papers, letters, contracts, vouchers and other writings are produced, the plaintiff will offer in evidence such paxts thereof as may be comipeteiiit and materiaJ. If they are not produced, the plaintiff will introduce secondary evidence of their contents. Attorney for Plaintiff. Dated, Care must be exercised to see that the instruments or books required are carefully described. The description must be DEBT. 163 sufficiently full and accurate to enable the opposite party to know what books or writings are referred to. This notice should be served upon the attorneys for the oppo- site party a reasonable time before the trial. Bibliographic Note. — There is no special work upon the subject of the action of debt. The law relating to this subject will be found in the works on pleadings and eridence, referred to in the note to Chapter II.; also in Blackstone and in Kent's Commentaries. See also Ameri- can and English Encyclopaedia of Law, Vol. IV., and Wait's Actions and Defenses, Vol. II. OHAPTEK VI. TEESPASS. The action of trespass will lie in all cases where the injury committed and complained of was accompanied by force, either actual or implied. The injury may be (1) to the person, as for assault and bat- tery, or false imprisonment ; (2) to personal property ; (3) tres- pass quare clausum f regit, for a trespass upon lands and tene- ments. It is a well-known rule of law that an action for an assault and battery will lie, although there was, in fact, no battery. It will also lie where the force was not exerted immediately by the defendant against the plaintiff, as for injuries accruing to the plaintiff from an unlawful ^ct of the defendant whereby he set in motion some force which resulted in the injury complained of. This rule dates back to the old case of Gibbon vs. Pepper, Salkeld, 673, where the court says : "If A beats my horse, by which he runs on another, A is the trespasser, and the rider is not." The principle underlying this decision has been main- tained wherever the common law is in force and may be said to . be of universal application in this country. See also the leading ease' of Scott vs. Shepherd, reported with instructive notes, in Smith's Leading Cases, 737. An assault consists of acts which indicate an intention to com- mit a battery, and the plaintiff may recover at least nominal damages for a simple assault, but the declaration should also charge an assault and battery, as under the common law there could be no recovery under a declaration alleging an assault only. A battery is the infliction of an injury by force exerted against the person of the plaintiff by the defendant himself, TRESPASS. 165 or through sonie unlawful act of his through which the plaintiff was injured. The action will not lie where the injury was the result of accident or where it was the result of a friendly trial of strength, as in boxing, or while playing any game where the injury was not the result of an unlawful act upon the part of the person causing the injury. There is no distinction between the different degrees of violence so far ,as the question of an actual battery is concerned, and any degree of force, however slight, exercised against the person of another will constitute a battery. The amount of force exerted can only be taken into consideration upon the question of damages. In. declaring in an action for assault and battery, the declaration should contain an averment that the act of the defendant was accompanied with force and arms. The want of such an averment will render the declara- tion demurable. The foUovsdng is the common law form of declaration for an assault and battery: Form 32. DECLARATION FOR ASSAULT AND BATTERY. (Title of Court and Cause, and Commencement.) In a plea of trespass; for that, -whereas, the said defendant hereto- fore, to wit: on the day of , at , in the County of , with force and arms, upon the body of the plaintiff, made an assault, and) him then and there beat, bruised, wounded, and evil entreated; and other wrongs and injuries to the plain- tiff, the said defendant then and there did against the peaqe of the people of the State, and to the damage of the plaintiff dollars, wherefore he sues, etc. Under such a count as the foregoing the plaintiff will only recover damages for the injury to ' his person. Where there are special damages they should be set forth in the declaration, as, for instance, an injury to the clothing of the plaintiff, or the expenditure of money for medicines, nursing and medical atten- tion,, or for loss of time or business, etc. It is also the better pfactice to describe the injury, to state how it was inflicted, of what it consisted and the result. 166 TRESPASS. If the declaration is not sufficient in law, the defendant may take advantage thereof, either by demurrer or by objecting to the introduction of evidence at the trial. He may also take advantage of any special plea which may be warranted by the facts of the case, or he may plead a justification. The plea of the general issue is most commonly used, and is in substance that .the defendant is not guilty in manner and form as the plaintiff hath thereof declared against him, etc. Justification may be pleaded wherever the act of the defendant was in defense of himself, or family, or his property; but a per- son is not justified in using more force than is necessary, and if he wilfully exert a greater force than is necessary to repel the attack he will be guilty. Where the person complained of occu- pies a position of authority over another, as, for instance, a school master or parent, or the master of an apprentice, such person may offer as a defense that the act complained of did not exceed the limits of a justifiable or reasonable correction. Mere words, taunts, or- aggrevating actions will not constitute a justification, but they may be shown in mitigation of damages. FALSE impeiso:n^mei^t. The right of a person to freedom from arrest except upon probable cause therefor is guaranteed by the Constitution of the United States (Amendment, Art. IV), and this right cannot be abridged by a state, nor invaded by the people thereof. A state may, through its proper officers, set in motion the machinery of the law, and take into custody persons accused or suspected of having committed an offence, and if the person ac- cused has reason to believe that the forms of law have not been strictly complied with, or that for any reason the arrest or deten- tion is illegal, he niay invoke the privilege of the writ of habeas corpus and have a judicial determination upon the question of the lawfulness of his arrest or detention. TRESPASS. 167 In a civilized community, governed by law, the personal good of the citizen must give way to public neces,sity, and a state cannot be made liable for an unlawful arrest or detention; but if a citizen, without probable cause, sets the machinery of the criminal law in motion, he does so at his peril, and may be made to respond in damages in an action of trespass for false imprison- ment. False imprisonment is the imlawf ul restraint of a person against his will. If the restraint was lawful, the action will not lie. It makes no difference whether the person imprisoned was held with or without process, except, indeed, that to hold a person without process is a more serious violation of his rights than where he is held upon process. The restraint need not be accom- panied by actual force, and the duration of the imprisonment is immaterial, except upon the question of damages. No matter how brief the period of the restraint, the person restrained may if the restraint was unlawful, recover at least nominal damages. An actual manual arrest of the person is not necessary to constitute false ■ imprisonment. A demonstration of physical violence, which to all appearances can only be avoided by sub- mission, operates as effectually, if submitted to, as if the arrest had been forcibly accomplished. Brushaber vs. Stegeman, 22 Mich., 266. Such a submission is not a consent to the arrest. If, however, the person does not submit to the show of authority or force, an actual arrest must be shown in order to maintain the action ; but simply touching the person will be sufficient. This will constitute an arrest, although the officer may not succeed in stopping and holding him. Whithead vs. Kenes, 3 Allen (Mass.), 149. The constitutional guaranty of freedom from arrest, except for probable cause, does not exempt the person from liability to arrest where the public good seems to demand it. A private individual may arrest a person whom he knows to have com- 168 TRESPASS. mitted a crime, but ordinarily he can only justify upon proving the guilt of the person arrested. It has been held, however, that a private individual is excused if a felony was, in fact, committed, and there was reasonable ground to suspect the person arrested. But if no felony was in fact committed, an arrest by a private individual, without a war- rant, is illegal, and will render the person making the arrest liable to an action for false imprisonment: HoUey vs. Mix, 3 "Wend. (N. Y.), 350. So, a private individual may arrest a person who is in the act of disturbing the peace, but if a private person arrest another for a breach of the peace, after it is over, he will be liable. Phillips vs. Trull, 11 Johns (N. Y.), 486. Officers, acting officially, are clothed with a greater authority than private citizens, and may make arrests without a legal warrant if there are probable grounds for belie\ing that the per- son arrested has been guilty of a felony. Kohan vs. Sawin, 5 Gush. (Mass.), 285. And' if the facts, or circumstances upon which an officer acted, are such as would have prompted a man of ordinary prudence to act as he acted, he will not be liable, even though the person accused was not guilty of the offenco charged. The legal test is, whether the apparent facts and circum- stances are such as would lead a discreet and prudent person to the belief that a crime had been committed by the per- son charged. A mere groundless suspicion, unwarranted by the conduct of the accused or by facts known to the officer at the time when the arrest was made, will not exempt the officer from liability to an innocent person for causing his arrest. Carl vs. Ayers, 53 N. Y., 14. Whenever a person is arrested he is entitled to know by what authority the arrest is made, and with what offence he is charged, and if the arrest was made without a warrant he cannot be held for any length of time unless a warrant for his arrest and deten- TRESPASS. 169 tion is sworn out within a reasonable time before some magis- . trate having jurisdiction in the premises. It is the unlawful detention and not the motive which con- stitutes false imprisonment, and although the original arrest was lawful, still, if the accused is maliciously detained, an action for false imprisonment will lie. Wood vs. Graves, 144 Mass., 365. So, the action mil lie where one was legally arrested, but is maliciously held to excessive bail, or without being per- mitted to give bail. Where the arrest is made by an officer upon a warrant valid on its face, the officer will be protected by the warrant, although the person may not be guilty of the offence charged, or the war- rant may have been issued upon an insufficient complaint. If the warrant was issued by a court or magistrate having jurisdiction in the premises, and there is nothing on the face of the warrant to apprise the officer who executes it of its illegality, the officer is protected in its execution against all illegalities and irregularities. Savacool vs. Boughton, 5 Wend. (N. Y.), 170; Erskin vs. Hohnbach, 14 Wall., 613. Process void upon its face is absolutely no protection to tha officer charged with the execution thereof, and if an officer makes an arrest thereimder he does so at his peril. State vs. Weed, 21 IST. H., 262. The warrant must show by what court or officer it was issued; it must set forth an accusation of the commission of a crimiaal offence; it must have been issued upon a secular day, as a war- rant issued 'upon Sunday is, in most states, void. If a seal is required by law, the absence of the seal will be fatal, and the warrant will be void upon its face. PRIVATE CITIZENS ASSISTING AN OFFICER: The law compels private citizens to assist the officers of the law in apprehending persons accused of crime; when, therefore, a person, in response to the demand of a known public officer, assists in making an arrest, he is protected by the fact of the 170 TRESPASS. .officer's request, eTen though the warrant under which the officer was a;cting was void upon its face. Goodwin vs. Stephens, 63 Ind., 112. This protection is not extended to a volunteer, however, and one who assists an officer in making an arrest without being requested so to do, assumes all the risk of the want of authority of the officer, or of the invalidity of the process under which he is acting. ARREST IN CIVIL ACTIONS: In most, if not all, of the states there are statutory provisions under which, in certain cases, a person may procure a writ for the arrest and detention of another, in a civil action. These pro- ceedings are purely statutory and in order to entitle the person to have the writ issued, the statutory provisions must be strictly complied with, or the proceedings will be void. In some of the states the writ issues only upon the order of a judge or justice upon cause shown by affidavit or otherwise, and in such cases the issuing of the writ is a judicial act, and will protect all persons in all things which they lawfully do under such writ. Johnson vs. Morton,- 94 Mich., 1, but where the writ issues as of course upon the filing with the clerk or other officer of the court, of an affidavit setting forth certain facts, the issuing of the writ is in no sense a judicial act, and the person suing it out will be liable to the defendant if the proceedings upon which the writ was issued are fatally defective. The right to have the writ issue at all depends upon a strict compliance with the statutory provisions, and he who resorts to an arrest by civil process under such circumstances does so at his peril. Not only will the party who sues out the writ be liable, but the officer who makes the arrest, and the attorney who sues out the writ may be held liable. Fischer vs. Langbein, 103 JST. Y., 84. In this case the court says: "It cannot be disputed but that an attorney who causes void or irregular process to be issued in an action which occasions loss or injury to a party against whom it is enforced, is liable for the damages thereby occasioned." TRESPASS. 17]^ This being the rule, it is very important that an attorney should not only for the sake of his professional reputation, but also for his pecuniary interests, exercise the greatest caution in suing out writs of arrest, especially in states where the writs issue as of course, upon the filing of the statutory affidavit, to see that the facts fully justify the arrest, and that the affidavit sets forth all the facts necessary, and that all other requirements are complied with in the exact manner prescribed by the statutes. Counsel should examine carefully the decisions of his court of final resort and ascertain what the settled practice is. In drafting the affidavit he should not depend upon printed forms alone; they may be serviceable as guides, but should be verified by the statiites and decisions. DAMAGES: The damages awarded in the action for false imprisonment may be either nominal,, compensatory, or punitive or vindictive. Where the right of personal liberty has been invaded in a man- ner causing no injury or loss, the damages should be nominal, unless the invasion, however slight, was prompted by malice. But the plaintiff has the right to recover his actual damages, and the jury may award him such siun as will compensate him for his loss and outlay, as, for instance, money expended for attor- neys and for witness fees; for loss of time or business; for bodily injury, if any; for mental anxiety, humiliation and suffer- ing caused by the arrest and detention. Besides these damages, he may also recover vindictive or punitive damages where the arrest or detention was malicious. THE DECLARATION: As the action for false imprisonment is transitory, it may be brought in any county where service can be obtained upon the defendant. As the imprisonment or arrest is usually accom- panied by an assault, the declaration may contain counts for assault and battery as well as for false imprisonment. All persons 172 TRESPASS. who assisted in procuring, aiding or abetting tlie arrest may be joined as defendants, but if several defendants are joined, the plaintiff must show that they were all concerned in the trespass, and if he fails to do so, those who have been improperly joined will have judgment for their costs. The declaration must allege that the defendant has, by his act, describing it fully, deprived the plaintiff of his personal freedom for some period of time, describing fiiUy in what manner he was arrested, by whom, upon what processj how he was imprisoned or detained, or whether he was held to bail, or that excessive bail was maliciously demanded, or that he was illegally detained in custody after the expiration of the period for which he was lawfully detained, or such other facts as constitute the imprisonment or detention. If the plaintiff was arrested without a warrant and unlawfully detained, or if he was arrested upon a void warrant, the fact must be properly alleged. The declaration should also set forth fully the duration of the imprisonment and its circumstances of aggra- vation, such as its publicity, or that the plaintiff was hand- cuffed, or that he was conducted along a street thronged with people, or that the fact of his arrest was published in the news- papers. The declaration should also allege any special damages sustained by the plaintiff, such as injury to his health, or that he was assaulted by the officer making the arrest, or that he was imprisoned in a filthy cell, the injury to his business and repu- tation; and where the arrest or imprisonment was prompted by the malice of the defendant that fact should be alleged. In drafting the declaration, it should be borne in mind that the plaintiff can only recover under the ordinary counts such damages as are the natural results of the defendant's unlawful act, and if the plaintiff wishes to recover special damages or if he expects to recover vindictive damages, the declaration must contain allegations which will enable the plaintiff to introduce evidence of his special damages, or of such circumstances as will warrant the jury in award- ing vindictive damages. TRESPASS. 173 The allegations in relation to damages should be specific, and not general, in order to enable the plaintiff to recover more than ordinary damages; for instance, it is held in many of the states that an allegation that the plaintiff was, by the wrongful act o'f the defendant, prevented from attending to his business and affairs, etc., is not sufficient, but that the declaration should allege what the plaintiff's business or occupation was, that he was thereby earning large sums of money, and that he was prevented from working at his trade, describing it, or from attending to his business, describing it, and that he was thereby deprived of great gains which he would othervwse have made, describing fully and accurately the business or occupation and the plaintiff's loss. If the plaintiff was injured physically or made sick, the injury or sickness should be described, and if the plaintiff expended money for medical attendance, nursing, medicines, etc., that fact and the amount expended should be alleged. It is not necessary to set forth in the declaration the exact date of the arrest or imprisonment, but it may be proven to have occiirred at any time prior to the commencement of the action. The following is a simple form of a common law declaration in an action for false imprisonment : Form 3S. DECLARATION FOR FALSE IMPRISONMENT. (Title of Court and) Cause, and Commencement) In a plea of trespass: For that the said defendant, on to wit: the day of at , with force and arms assaulted the plaintiff and with great force and violence pulled and dragged him about and then' and there without any legal or prob- able cause, against the law of the land and the will of the plaintiff forced him to leave his dwelling house and took and carried him away, • and with like force compelled the plaintiff to go with him out into the public street, and along Jivers public streets and procured him to be taken to the common jail (or to a police station as the case may be) and then and there imprisoned the plaintiff and kept him in prison for a long space of time to wit: for hours (or days), then 174 TRESPASS. next following, contraxy to the law of the land and the will of the plaintiff; by means whereof the plaintiff was, during all that time, prevented) from following his lawful and necessary business and affairs and was deprived of great gains which he would have otherwise made, "by working at his trad« as a shoemaker (or as the case may be), and was put to great trouble, annoyance, humiliation and loss of credit thereby, and was obliged to and did! expend a large sum of money, to wit, the sum of dollars, in procuring bail, and for the services of an attorney, and in effecting his discharge from said imprisonment, to the damage of the plaintiff dollars, wherefore he sues, etc. This ftorm will serve as a guide, and may be modified or added to as the circumstances of the case may require. Where the plaintiff was taken before a magistrate and held to bail, the declaration should allege that fact, or if he was unlawfully held without bail that fact must be properly alleged. The defendant may, of course, avail himseK of any of the dilatory pleas where available. In many of the states the time within which the action of trespass may be brought is much shorter than the limitation in other actions, and where the action is barred by the statute of limitations the statute should be pleaded specially, as the defendant cannot take advantage of this defense except it be so pleaded. The general issue is the most common plea, and is in effect as follows: That the defendant is not guilty in manner and form as the plaintiff hath thereof declared against him, etc. Under the general issiie the defendant may introduce evidence in rebuttal of any material evidence introduced by the plaintiff. He may also introduce evidence tending to show that the arrest or detention was the result of a mistake; that the defendant was not actuated by malice, and anything tending to show good faith upon the part of the defendant. The fact that the arrest or detention was the result of a mistake, or that it was made in good faith and without malice, does not constitute a legal defense to the action itself, and evidence of those facts will not be admitted upon that ground; it can only be admissable upon the question of damages. TRESPASS. 175 The defendant may also plead justification, as for instance, that the arrest and detention was by virtue of process, which was legal and valid upon its face, or where the arrest was without process, he raay plead in justification that a felony had been committed, and that there was reasonable cause to believe that the plaintiff was guilty of the crime; or that the defendant was called upon by a public oflicer in the discharge, at the time, of his official duties, to assist in arresting the plaintiff, or that the plaintiff was committing a breach of the peace at the time he was arrested by the defendant. NEW ASSIGNMENT: Where the defendant justifies under a vaHd warrant or writ, and the plaintiff's cause of action is in fact based upon some- thing which occurred subsequent to the arrest, or upon some- thing which is not sufficiently set forth in the declaration, the plaintiff may resort to what is known as a new assignment, that is, he may set up more specifically the unlawful acts of the defendant which constitute has cause of action. For instance, where the original arrest was upon valid process, but the defen- dant refused to admit the plaintiff to bail, or placed him in a filthy cell infested with vermin, or maliciously detained him in custody after the time when he was by law bound to discharge him, if the facts are not sufficiently alleged in the declaration, the plaintiff may show them under a new assignment, although under the modern practice, and owing to the extremely technical rules of the common law, the better practice would be to amend the declaration. It is generally held that a new assignment is an entire waver of the particular trespass justified by the plea; and where the trespass charged is but a single act, but was com- mitted in another way, or with more violence, than shown by the plea of justification, this should be sho'mi by way of replication, and not by a new assignment. A new assignment is not necessary to enable the plaintiff to introduce evidence to defeat a justification which is not supported 176 TRESPASS. by the facts, but wbere the plea affords an answer to the gist of the action, and the plaintiff relies upon matter which makes the defendant a trespasser ab initio, or insists that he has been guilty of an excess, he can not, under the common law rules of pleading give this in evidence under a general replication without spec- ially replying such matter of excess (Starkie on Evidence, 1471). If the plaintiff, under a new assignment, alleges that the tres- pass was committed on another and different occasion, he thereby admits the justification' of the trespass described in the declara- tion, and if there was, in- fact, but one trespass, he will fail upon the new assignment. The subtleties and refinements with which this proceeding is surrounded renders it necessary that great cau- tion be observed in pleading in this action. If the common law pleadings are still in use, counsel should not resort to a repli- cation or new assignment until he has carefully examined the text-books upon the subject and applied the rules there laid down to the facts in his case. A new assignment, improperly pleaded, may operate as a practical bar to the action, while a general replication, pleaded in a case where there should have been a new assignment, may be equally disastrous by precluding the plaintiff from introducing evidence which would support his case, and which might have been available under a new assign- ment. EVIDENCE: • " The evidence must support the allegations contained in the declaration. The plaintiff must show either that he was arrested or detained without a warrant without probable cause; or that he was arrested upon- a warrant or other process void upon its face; or, if the process was legal on its face, that the defendant knew from other facts or circumstances that the process was A'oid, or the arrest illegal; or where the arrest was lawful, and the plaintiff complains of some unlawful act subsequent to the arrest, that fact must be fully proven as alleged. The plain- tiff must also introduce evidence tending to prove his damages. TRESPASS. 177 or he will recover only nominal damages. The defendant may introduce any competent evidence to rebut the evidence intro- duced by the plaintiff. He may also, under proper pleas, intro- duce evidence in mitigation of damages. He may show that the arrest was by virtue of process, legal upon its face. He may also introduce evidence tending to show that he acted in good faith in the exercise of his official duties; that he was not actuated by malice; that he had reasonable cause to believe that a crime had been committed and that the defendant was guilty. In other words, the defendant may show anything which excuses the trespass or reduces the plaintiff's damages. It is impossible to lay down a rule which will apply to every case, but the plaintiff's attorney should always determine before he goes into court just what evidence will be necessary to estab- lish his case, bearing in mind always that he must introduce evi- dence tending to prove every material allegation contained in the declaration, or suffer a non-suit. The defendant's attorney should anticipate by a careful study of the declaration what evi- dence vnll be introduced by the plaintiff, aiid prepare to introduce evidence in rebuttal thereof, and where he pleads a justification he should be prepared to prove the matters alleged in justifica- tion by competent evidence. TEESPASS TO PERSO^t^L PEOPERTY. Trespass will lie whenever one wilfully takes, carries away, injures or destroys the personal property of another. It lies for taking or injuring domestic animals as well as for injuring goods and chattels. The action will lie whenever the plaintiff's enjoyment of the personal property has been wilfully interrupted by any unlawful act of the defendant which deprives him of the property itself or in j tires or destroys it. It will lie against a sheriff or other officer who wrongfully levies upon the goodS and chattels of the plaintiff or who has wrongfully seized goods and chattels exempt by law from seizure, or has seized goods in 178 TRESPASS. excess of what is necessary to satisfy the execution. It will also lie where goods belonging to the plaintiff are wrongfully at- tached or levied upon as the goods of a third person; the plaintiff, however, may maintain replevin, but in many cases trespass will be found the better remedy. Trespass vsdll lie against a person who in any w&j intermeddles with the goods of another. It will lie -against a mortgagee who unlawfully takes possession under his mortgage; or who in lawfully taking possession of mortgaged property takes the property of another, or property of 'the mort- gagor not covered by the mortgage. So trespass will lie for unlavTfuUy impounding animals, or for maliciously injuring animals lawfully impounded. Trespass will also lie for destroying or carrying away grain or other crops after they have been severed from the land. In order to maintain trespass it must be shown that the plaintiff had either actual or constructive possession of the personal property in question at the time of the injury com= plained of, and also a general or qualified property therein. Absolute ownership is not necessary to sustain the action, but the possession of the chattels, coupled with an interest •in, them, will be sufficient. Orofoot vs. Bennett, 2 E". Y., 258, and one in possession of goods , is presumed to be the owner as against a mere wrongdoer. Potter vs. Wash- bum, 13 Vt., 558; Brown vs. "Ware, 25 Me., Ml. The owner of the -property may maintain an action against a stranger, although the former may never have had pos- session, or although he has for the time being parted with the possession, as to a carrier, etc., or to one who has the bare author- ity to keep the projperty not coupled with an interest therein. But where the owner of the property has voluntarily parted with the possession of the property to a third person who has a idght to retain the property for a certain period, or for a certain pur- pose, the owner cannot maintain an action against the bailee for the mere injury to the property, although it has been held that TRESPASS. 179 the owner can maintain an action against the bailee for the destruction of the property. Lunt vs. Brown, 13 Me., 236. Personal property, in the hands of an agent or servant, is still constructively in the hands of the master, and the latter may maintain an action for a trespass thereto. THE DECLARATION: In actions for trespass to personal property, the declaration should allege that the wrongful act of the defendant was com- mitted with force and arms as in other actions of trespass, and should contain an accurate description of the property in ques- tion. It is absolutely necessary to allege that the goods were the plaintiff's, and the absence of this allegation will be fatal. It is even held that the want of this allegation is not cured by verdict. The declaration miist also set forth the acts constitut- ing the trespass and the value of the property. If the plain- tiff has suffered any special damages by the wrongful act of the defendant, which can be recovered in the action, they should be particularly described. This action is transitory and may be maintained in any place where service can be obtained upon the defendant. Form 34. DECLARATION FOR TRESPASS TO PERSONAL, PROPERTT. (Title of Court and Cause, and Commencement.) In a Plea of Trespass: For that the said defendant, on the day of A. D and on divers other days and times between that day and the day of the commencement of this action, with force and arms, at , in the County of , State of , drove a certain wagon with great force and violence upon and against a certain wagon of the said plaintiff, in which said wagon the plaintiff was then riding in and along a public highway, and thereby broke to pieces, damaged and spoiled the said wagon of the said plaintiff. And by means of the said premises, he, the said plaintiff, was then and there thrown out of his wagon upon the ground, with great force and violence and was seriously injured (describing the injuries fully) ; and by means of the said several premises, the said plaintiff was afterwards, to-wit, on the day and year aforesaid, at, etc. (venue), forced and 180 TRESPASS. obliged to, and did, lay out and expend a large sum of money, to-wit, the sum of dollars, in and about repairing the damage so done to said wagon as aforesaid; and also, by means of the premises the plaintiff then and there became and was greatly bruised, hurt and wounded, and sick, sore, lame and disordered, and so remained and continued for a long space of time, to-wit, for the space of days, then next following, and during all that time suffered great pain, and was hindered and prevented from performing and transacting his lawful affairs and business by him during that time to be performed and transacted, and was thereby obliged to and did pay, lay out, and expend divers sums of money, to-wit, the sum of dollars, in and about endeavoring to be cured of said sickness, lameness and disorder aforesaid occasioned as aforesaid; to the damage of the plain- tiff dollars, wherefore he sues by his attorney. PLEAS: The defendant may avail liimself of any of tlie special pleas wHcli may be necessary or appropriate under the circumstances of the case. The plea of the general issue is in the same form as in other actions of trespass, and under it the defendant may set up any defense which simply denies the allegations contained in the declaration, or rebuts the evidence introduce^by the plain- tiff. The defendant may also plead justification and set up any facts which tend to show that the acts complained^ of were law- ful, or that excuse the wrongful act, or that may mitigate the damages. EVIDENCE: The plaintiff must, in all cases, introduce evidence in support of all the material allegations set forth in his declaration. The plaintiff may prove as many distinct trespasses as there are counts in his declaration, and in practice the same trespass is sometimes set out in different forms in different counts, in order to meet any possible contingency which may arise in the introduction of evidence; but if the declaration contains more than one count upon the same trespass, and the defendant pleads a justifi- cation to one count which the plaintiff admits by his replication, the plaintiff cannot recover. The plaintiff must show either actual or constructive possession and his title to the property, TRESPASS. 181 althougli, as against a wrongdoer or a stranger, his title will be presumed from the fact of possession. The plaintiff must also prove the value of the property, or the damages sustained by the unlawful act of the defendant, and if any special damages are alleged in the declaration they must be proven. The defen- dant may show under proper pleas that the action is barred by the statute of limitations; or that he did not commit the trespass; or that he acted by virtue of legal process, valid upon its face; or that the alleged trespass :was caused by imavoidable accident. He may also introduce evidence tending to show either that the value of the property or that the damages alleged by the plaintiff, were, in fact, much less than claimed by him. The defendant may also introduce evidence in mitigation of damages. DAMAGES: The measure of damages is the value of the property taken or destroyed at the time the trespass was committed, or if the property was not destroyed, but only injured, the measure of damages will be the actual loss or injury sustained by the plain- tiff as disclosed by the evidence. If the property has been re- stored, the plaintiff can only recover the damages sustained by reason of being deprived of the use thereof. If the trespass was committed maliciously or wantonly, or was accompanied by abuse, the jury may award vindictive damages by way of punish- ment. Where the plaintiff has only a special interest in the property, his damages will be measured by the extent of his loss. TEESPASS TO EEAL PROPEETY. • Any illegal entry upon, or immediate injury to real property, will render the person committing the act liable to respond in •damages in an action of trespass at the suit of the owner or of the person in possession at the time when the trespass was committed. The gist of the action is the injury to the possession, ^nd the plaintiff can not recover unless he was in actual ] 82 TRESPASS. or constructive possession of the premises. Halligan vs. Chicago & R. I. R. Co., 15 111., 558. It is the possession and not the ownership that determines the right of action, and as against a wrongdoer simple possession is suiEcient; so one who is a mere occupier of lands, even holding adversely to the holder of the legal title, may maintain tres- pass against all .persons except those who can prove a better title than his own. It has been held, however, that the holder of the legal title 'may maintain trespass for an injury to the free- hold, although the land may be in the possession of a tenant at will. Starr vs. Jackson, 11 Mass., 519; Hingham vs. Sprague, 15 Pick. (Mass.), 102; Curtis vs. Hoyt, 19 Conn., 154; Davis vs. Nash, 32 Me., 411. One who has exclusive possession of land for the purpose of harvesting a crop growing thereon may maintain trespass against one who enters upon the land and injures the crop; and a tenant in possession may maintain trespass against his landlord for an unlawful entry upon the premises, or for any unlawful interfer- ence with the possession of the tenant, as removing the roof, or doors, or windows, or taking away the fences (Taylor's Landlord and Tenant, 782); and the landlord may maintain trespass a'gainst a tenant for cutting and carrying away trees or other property excepted in the lease. Ibid; also Gilbert vs. -Kennedy^ 22 Mich., 5. The action will lie against any person who unlawfully enters upon the premises of another without permission, invitation or license. Hatch vs. Donnell, Y4 Me., 163, unless the entry is one which is excusable by unavoidable accident or great necessity, as, for instance, if a public highway is impassable, one may enter upon the adjoining land in order to pass the obstruction. Absor vs. French, 2 Show., 28. So, if a man who is assaulted, and in danger of his life, runs through the premises of another, trespass- will not lie, because it is necessary for the preservation of his life. Y. B., 37 Hen. VI, p. 26. The same rule applies where the fruit of a tree, standing wholly upon the land of one, falls. TRESPASS. 183 ■upon tlie land of another, the owner of the tree may enter upon the neighbor's land to gather the fallen fruit. Millen & Tawdrey's Case, Latch, 120; and if the owner of the land overhung by the branches of a tree, the trunk and roots of which are upon the land of his neighbor, prevents him by force from gathering the fruit from the overhanging branches, he will be guilty of a trespass. Hoffman vs. Armstrong, 48 IS!". Y., 201. But a person cannot enter upon the premises of another to remove his own property which is unlawfully upon such premises. Newkirk vs. Sabler, 9 Barb. (N. Y.), 652. So, the owner of domestic ani- mals is liable for injuries committed by them while trespassing upon the premises of another. Van Leuven vs. Lyke, 1 1^. Y., 515. A person may become liable in trespass for acts done upon his own premises, as by erecting a spout whereby water from his premises is carried onto the land of another; by cutting or ob- structing a drain so that the premises of another are flooded; or by making an excavation upon his own premises which deprives the adjoining lands or buildings of support; or by erecting a dam whereby the premises of another person are flooded. One who enters the premises of another under a right given to him by law may become a trespasser by an abuse of that right. In the famous Six Carpenters' Case (Smith's Leading Cases, Ninth Am. Ed., 261) the doctrine was laid down as follows: "That when entry, authority, or license is given to anyone by the law, and he doth abuse it, he shall be a trespasser ab initio;' but where an entry, authority, or license is given by the party, and he abuses it, then he must be punished for his abuse, but shall not be a trespasser ab initio." The doctrine laid down in this early case has become settled law, and unless modified by statute is in force in all the states where the common law prevails. The application of this rule is, that where one enters upon the premises of another under some authority or license given him by the law, he will not be guilty of a trespass unless he commits some wrongful act, in which case he may be punished 184 ' TRESPASS. not only for the wrongful act btit also for the entry upon the land because the law presumes that instead of entering upon the land for lawful purposes under the authority of the law, his orig- inal entry was for the purpose of committing the unlawful act, and he is deemed to be a trespasser from the beginning; but if a person enters under a license from- the owner of the premises, he is lawfully upon the premises^ and cannot become a trespasser until he has coromitted some wrongful act. He may be punished for his act, and for all the natural consequences thereof, but he cannot be punished for entering upon the premises. Trespass is not the proper action in which to try the title to lands; it is for the recovery of damages only, and where a person claiming title to lands wishes to obtain possession thereof or to try the question of title thereto, the proper action is ejectment. PLEADINGS: The pleadings in an action for trespass to real property are extremely technical and require particular care. The declara- tion should allege that the injury was committed with force and arms, and contrary to the peace, etc. ; the premises in ques- tion must be described by metes and bounds, if possible, or by reference to the lot and block of some recorded plat, or to its. proper description under the government survey. A failure in this respect may be taken advantage of by special demurrer. The nature of the trespass must be described vdth sufficient cer- tainty to apprise the defendant of the wrongful act charged against him, and to constitute a bar to a subsequent action for the same trespass. The damages should be alleged, and if the plaintiff has suffered special damages they should be set forth at length. The plea of the general issue is simply "not guilty in manner and form as the plaintiff hath thereof declared, etc.," and under it the defendant can make no defence, except a denial or rebuttal of the plaintiff's case. All other defences must be pleaded specially. If the facts warrant it, the defendant may plead TRESPASS. 185 the general issue and justification, as a license, authority of law, invitation, unavoidable accident, necessity, that he entered under legal process sufficient upon its face, etc. The plaintiff may new assign, or set up new matter by way of replication, as, for instance, an abuse of the authority under which the defendant justified. The pleader should not take any steps in pleading in the action of trespass without carefully consulting the text writers on pleading and the statutes and decisions of his own «tate. The action for a trespass to real estate is local, and can only be brought in the county where the' land lies, and the declara- tion must set forth a trespass committed in the county. EVIDENCE: The plaintiff, in order to maintain his case, must introduce ■evidence tending to prove that he had the possession of. the identical lands described in the declaration; he must also prove that they are situated in the county where the action was brought, and his failure in either of these respects will subject him to a non-suit; he must also introduce evidence of the acts of tres- pass committed directly or indirectly by the defendant in the manner alleged in the declaration, and must follow this by proof of his damages. If the declaration contains any allegations of .acts constituting an aggravation of the trespass, evidence should .also be introduced in support of such allegations; but the plain- tiff will not be permitted to introduce evidence of any matters in aggravation which are not alleged in the declaration. The following is the common law form of declaration in an action for a trespass upon real property. The form must be modified to fit the facts of each particular case. 186 TRESPASS. Form 35. DECLARATION FOR A TRESPASS UPON REAL PROPERTY. (Title of Court and Cause, and Commencement.) In a Plea of Trespass: Pop that the said defendant, on the day of , A. D , and on divers other days and times between that day and the day of the commencement of this action, with force and arms, broke and entered the premises of said plaintiff, situate in the Township of , In the County of , in the State of described as follows, viz. : , and then and there forced, broke open, broke to pieces, damaged and spoiled divers, to-wit: , gates of said plaintiff of great value, to- wit, of the value of dollars, then standing and being upon the said premises, and the locks, staples and hinges thereof, to-wit locks, staples, and hinges of said plaintiff of great value, to-wit, of the value of dollars, respectively affixed to said gates, and with which the same were then respectively locked, fastened and held In place, and with feet in walking, trod down, tram- pled upon and spoiled the grass and corn of said plaintiff, of great value, to-wit, of the value of dollars, then and there growing; and with cattle, horses, mares, cows, oxen, and sheep, ate up and pas- tured the grass and corn of said plaintiff, of great value, to-wit, of the value of dollars, then growing and being in and upon the said premises; and also then and there mowed and out down the grass and corn of said plaintiff then growing in and upon the said premises; and then and there took and carried away the hay and corn, to-wit: wagon-loads of hay, and wagon- loads of corn of said plaintiff, of great value, to-wit, of the value of dollars, off and from the said premises, and converted and disposed of the same to his own use. By means of which said several wrongful acts, the plaintiff was not only greatly disturbed and annoyed in the peaceable possession of said premises, but also was greatly damaged by the breaking and spoiling of said gates and of the said locks, staples, and hinges thereto affixed, and by reason of the trampling down and spoiling of the grass and corn of the said plaintiff as aforesaid, and also by reason of the carrying away of said grass and corn so mowed down, cut, and carried away as aforesaid. By means whereof, the plaintiff lost and was deprived of the profits, benefits and advantages which might, and otherwise would have arisen and accrued to him from the peaceable possession, use, occupation and enjoyment of said premises, , and of the possession, use, and enjoyment of said grass and corn, so trampled upon, spoiled, pastured, mowed, cut and carried away as aforesaid; and other wrongs to the said plaintiff then and there did, against the peace, etc., and to the damage of the plaintiff dollars. Wherefore he sues by his attorney. TRESPASS. 187 The defendant may introduce evidence under the general issue wliicli in any way contradicts the plaintiff's evidence, or which denies the trespass, or shows that the act complained of is not in itself a trespass. He may show that the premises were his own freehold, or that of some other person under whose authority he entered, or that he was tenant in common with the plaintiff, or that he entered under a license from another, who was a tenant in common with the plaintiff. But the defendant cannot give in evidence under the general issue, matters which might have been pleaded in bar; though he may introduce evi- dence in mitigation which tends to reduce the damages sustained by the plaintiff. The defendant cannot, iinder the general issue, introduce evi- dence of any matter in excuse, justification, or satisfaction of the alleged trespass. These matters must be specially pleaded. Under the plea of justification, the defendant may introduce any evidence tending to establish the facts relied upon by him, and it should b& borne in mind that whatever the nature of the special plea, it should be sustained by competent evidence, or else it will be of no avail as a defense. The defendant's counsel should endeavor to ascertain before pleading what evidence will be forthcoming to establish the defense, and draft his pleadings accordingly. The plea of the general issue is seldom sufficient, and the only safe practice is to plead specially every matter which cannot be shown under the general issue. There are many times when a skillful pleader will drive his opponent out of court by skillful pleading, and a lawyer should never file a plea until he has carefully weighed and considered all the facts of the case and satisfied himself that he is filing the proper plea. As an illustration, under the common law it was held that under the plea of Hberum tenementum, if issue should be joined by the plaintiff, even though there be several parcels of land described in the declaration, the defendant may elect to what parcel he will apply his plea, and the plaintiff cannot insist on a trespass to any other parcel vsdthout a new assignment. And, 188 TRESPASS. therefore, if the plaintiff allege a trespass to property situated in the county of A. generally, and issue be joined on this plea, the defendant would be entitled to a verdict on proving that he had any quantity of land, however small, within the county of A (Starkie on Evidence, 1465). So, if defendant justify and the plaintiff new assign when he should have filed a replication, if there was but one trespass in fact, the plaintiff will fail upon the new assignment, although the defendant might have failed under the justification. So it has been: held that the plaintiff cannot, under a new assignment, prove that the sheriff remained in possession after the return day of the writ; for although he thereby became a trespasser ab initio, it was not a new trespass. Aikenhead V5. Blades, 5 Taunt, 198. The plaintiff ought to have filed a replication setting up the facts, instead of a new assignment. It should be borne in mind, therefore, that in general, where a special justification is pleaded, a new assignment or replication of excess admits the justification as alleged. Where the plaintiff denies the mat- ters pleaded in justification he should join issue, and he will then compel the defendant to prove the matters set up in justifi- cation, or abandon the plea. It should also be borne in mind that the plea of justification ordinarily admits the trespass. The science of common law pleading, with its technicalities and obscurities, has given way in many states to simpler, if not better, forms of pleading. In Michigan, for instance, the rules of practice provide that the defendant may give notice of special •defences instead of pleading them, so that the only pleadings are the declaration, plea of the general issue and the notices. Simi- lar provisions are in force in many other states, and under such practice the plaintiff is not relieved by any admissions contained in the notices from the necessity of introducing evidence in sup- port of all the material allegations contained in the declaration. The defendant may then introduce any competent evidence in support of the defence outlined by his notices, after which the plaintiff may introduce evidence in rebuttal of that introduced by TRESPASS. 189 the defendant. The practice, so far as the introduction of evi- dence is concerned, is about the same, and the same evidence is required in support or defence of a case under both systems. Counsel should not go into court without Itnowing exactly what he must prove in order to make out his case, and the order in" which he can introduce his evidence to maice the strongest impression upon the jury. Many cases are lost owing to a lack of care in this respect. DAMAGES: The j)laintiff, in order to recover more than nominal dama- ges, must show by competent evidence that he has sustained damages, and how much, except where the trespass was mali- cious or wanton, when the plaintiff may recover exemplary damages. The damages must depend upon the circumstances of each case, and can never be greater than such an amount as will com- pensate the plaintiff for the injiiry sustained, in the absence of a malicious or wanton trespass, or a statutory provision to the contrary. In some states the statutes provide that the plain- tiff may recover double or treble damages in certain cases, as, for instance, in Michigan, the statute (Howell's Ann. St., Sec. 7957) provides that every person who shall cut down or carry off any wood, trees, etc., or otherwise despoil or injure any trees on the land of another, or (Sec. 7959) if any person shall forcibly or unlawfully eject another from lands, etc., he shall be liable to the injured person in three times the amount of damages as- sessed by the court or jury. Similar provisions are in force in many of the states, but to enable the plaintiff to recover there- under he must bring his case strictly within the statute, or he will recover only ordinary damages. Bibliographic Note. — For the law relating to trespass to the person and to personal property see Barbour on the Rights of Persons and Property. For the law of trespass generally see Waterman on Tres- pass, Chitty on Pleading, Addison on Torts, Cooley on Torts, Bigelow on Torts, Bishop on Torts, Hilliard on Torts, and Underhill on Torts. See also Wait's Actions and Defenses, Vols. II, III, VI and VII, American and English Encyclopaedia of Law, Vol. XXVI. CHAPTER VII. EEPLEYTfT. Eeplevin is the proper action to recover the possession of goods or chattels unlawfully taken or detained from the posses- sion of the owner, and should always be resorted to where the object of the action is to recover the goods rather than their value. To support the action of replevin, the plaintiff must have had a general or a special property in the goods at the time they were taken, and the goods must have been unlawfully taken, as well as unlawfully detained from him. The plaintiff must also have had the immediate right to the possession of the property. The action will lie at the suit of one who has a lien upon the property for his services, when such property is unlawfully taken from him; also in favor of a vendor of property sold upon condition after the condition has been broken; and for crops unlawfully carried away after they have been severed from the land.- The action will lie against a sheriff for goods which are exempt by law and which have been seized or levied upon by him; so the owner of goods at- tached or levied upon as the property of a third person may recover his goods by a writ of replevin; and an administrator or executor may bring replevin for goods unlawfully taken from the deceased in his lifetime. Eeplevin will also lie against one who has obtained the goods of another by fraudulent representations, as, for instance, where the owner of goods is induced to sell them to another upon credit by means of false and fraudulent representations" made by the purchaser concerning his financial ability. It is now very gen- erally held that where a person becomes possessed of property under such circumstances, the seller may rescind the sale and demand the return of the goods, and upon the failure of the purchaser to return them, may bring replevin therefor. 190 REPLEVIN. 191 Tlie recovery of goods obtained by debtors in failing circum- stances by means of fraudulent representations, and by those who have obtained goods in contemplation of a dishonest failure, has become an important branch of commercial law, and creditors are often, enabled, through the prompt action of an attorney, to re- cover their goods and avert a heavy loss. Every lawyer should familiarize himself with the decisions and statutes of his own state, and should study carefully the theories upon which writs of replevin are made to lie under these circumstances, so that when he is called upon to act, he may do so promptly, with a full knowledge of all the steps necessary to be taken, .without being obliged to waste valuable time in ascertaining what the rights of his client may be under the circumstances. DEMAND: It is often a serious question as to when a demand is necessary before bringing the action, and in all cases of doubt the better practice is to make a demand, if possible. The general rule is that where the property is lawfully in the possession of the defendant, or where he holds it as an innocent purchaser, or under a claim of right, a demand is necessary before the action will lie. If goods are delivered to a person upon trial with an agree- ment to return them if not satisfactory, a demand will be neces- sary before replevin will lie; so, if goods are sold upon a con- tract which provides that the title shall remain in the vendor until the purchase price is paid, a demand will be necessary before the action will lie, and the demand must be for the return of the property. It is not sufficient to make a demand for payment only. Where the original taking was unlawful, no ■demand is necessary; neither is a demand necessary where the defendant claims to be the owner of the property as against the plaintiff. Where the action is brought to recover goods obtained loj false and fraudulent representations, the plaintiff must first notify the defendant that he has rescinded the sale, and make a 192 REPLEVIN. demand for the retiarn of tlie goods. It lias been held by some courts that a demand is not necessary under such circumstances, as the original taking became unlawful by virtue of the fraud on the part of the purchaser, but it seems to us that the weight of authority is as we have stated. "Where an oflicer has levied upon the property of the plaintiff as the property of a third person, a demand is usually necessary, but if the officer is noti- fied at the time he makes the levy that the property does not belong to the defendant • named in the writ or execution, a demand will not be necessary; and a demand is not necessary before bringing replevin against an officer whose seizure of goods is an abuse of his authority. Vanderhorst vs. Newton, 38 Mich., 669. Where the vprongful taking arises out of con- tract relations, and the defendant holds the property in good faith, a demand is necessary; but a demand need not precede an action of replevin for goods, the taking of which by the defendant constituted a trespass. Adams vs. Wood, 51 Mich., 411. TENDER, WHEN NECESSARY: Where a sale or exchange of property was induced by fraud and the defrauded party seeks to rescind the sale or exchange and recover his property, he must first tender to the other party any- thing of value that he may have received of him, whether it be money, notes, securities or property. If the plaintiff elects to rescind the contract, he must do so altogether. He cannot retain what he has received and claim what he exchanged for it also. In such a transaction, the title to the property passes to the vendee, subject to the right of the vendor, upon discovering the fraud, to elect whether he will rescind the contract by returning or offering to return whatever of value he. may have received and reclaim his property, or whether he will retain the consideration and treat the bargain as subsisting. Until he makes such election the contract continues, and the title to the property REPLEVIN. 193 remains in the purchaser. Pangborn vs. Euemenapp, 74 Mich. 5Y2; Powers vs. Benedict, 88 N. Y. 605. In Moriarity vs. StofFeran, 89 111. 528, the court said : "In an action of replevin it is essential that the plaintifE should be entitled to the possession of the property at the time when the writ is sued otit." * * * "If his. (the plaintiff's) allegations be true, he undoubtedly had a right to rescind the contract by offer- ing to return the note. He, however, was not in a condition to bring his action until he had offered to return the note and de- mand the property." Parwell vs. Hanchett, 120 111. 673, is a case that has been fre- quently referred to as containing an excellent exposition of the law in relation to fraudulent sales and the remedy of the de- frauded vendor. The rule laid down in that case is as follows : "Where goods are obtained by a vendee through fraud, the vendor may rescind the sale, and maintain trover or replevin for their recovery against the f raudiilent vendee, or any other person not holding them as an innocent purchaser, without any previous demand for their return." "If the vendor of goods takes the vendee's note for the pur- chase money he must surrender or offer to return the same before he can rescind the sale for fraud, and maintain an action to re- cover the goods." In Thompson vs. Peck, 115 Ind. 512, the court, in discussing this subject, held that "Although a sale of property is induced by fraud, the contract is not void but voidable upon the election of the vendor. He may elect to rescind the contract by return- ing or offering to return whatever of value he may have received and reclaim his property, or he may retain the consideration and treat the bargain as subsisting." "Replevin is strictly an action at law, in which the right of recovery must exist at the time the action is commenced. It can not be created by bringing notes into court as in an equitable suit for rescission, and offering to surrender them as the court may direct." 194 REPLEVIN. THE WRIT: While reple^dn is a common law action, the writ will usually issue only in cases where the plaintiff has complied with some statutory requirement, such as the filing of an affidavit and the giving of a bond. The form of the affidavit is usually pres- cribed by statute, and it must be followed strictly, as the juris- diction of the court in most states depends upon the strict com- pliance with all the statutory requirements. In most states the bond must be given before the writ will issue, and in most cases it runs to the sheriff. In Michigan, however, the bond need not be given until the sheriff has obtained possession of the property. The bond must be in the form prescribed by statute, and is usually for a sum in double the value of the property. The affidavit and bond should both contain a .descrip- tion of the property and its value. When the action is brought to recover goods in the possession of the sheriff, the bond and writ usually run to the coroner or to some constable of the county. This is regulated by statute, however, and before issu- ing the writ the statutes should be consulted and the writ made to run as thereby directed. The writ is executed by taking possession of the property described in the writ, or so much thereof as may be found, and in case all of the property cannot be found, the plaintiff may have an alias or a pluries writ, and if the remainder of the prop- erty can be found, it may be taken under these writs. Ordinarily, where the plaintiff has given a satisfactory bond, the sheriff delivers the goods replevied to the plaintiff, and takes' his receipt therefor, his protection being the bond. PLEADINGS: The following is the usual form of declaration in replevin, and may be modified as the circumstances of the case may require : REPLEVIN. 195 Form 36. DECLARATION IN REPLEVIN. (Title of Court and Cause, and Commencement.) C. D., the defendant herein, was summoned to answer unto A. B., the plaintiff in a plea, wherefor he took the cattle (or the goods and chattels) of the said A. B. and described in the writ of replevin here- tofore issued in this cause, and hereinafter mentioned, and thereupon the said A. B., by E. F., his attorney, complains. For that, whereas, the said defendant on the day of in the city of in the County of , and within the juris- diction of this court, in a certain close there (or deseribe the place accurately) took the cattle (or goods and chattels) to-wlt: (here set forth the goods and chattels as described in the writ) of the plain- tiff, of great value, to-wit: of the value of , and unjustly detained the same. Wherefore the plaintiff saith he is injured and hath sustained damage to the amount of , and therefore he brings his suit, etc. In cases where a demand is necessary before tlie action will lie, tlie demand must be alleged in the declaration. As the action is local, the declaration must describe the place where the goods and chattels were taken, or detained, with - greater particularity than in an action of trover or trespass, the place being material and traversable. If the place be omitted, the defendant may demur. It has even been held that an alle- gation of the taking at A, in the county of B, in a certain close there, was bad on special demurrer for not setting out the name of thfe close or its abuttals (2, M. & P., 78), but this defect would be aided by the defendant's pleading over, or after verdict (2 Chitty's PL, 843 and notes). , It is doubtful if this rule is now followed generally in this country, but there is no doubt that the place must be described with reasonable certainty, and must be laid in the county where the action was brought. "We can only give general rules, leaving the practitioner to ascertain by an examination of the statutes and decisions to what extent the common law rules apply in his state. If several cattle were taken, some in one place and some in another, that fact should be shown by the declaration, and also, how many were taken in each place. If the place where the property was taken is doubtful, an- IQQ REPLEVIN. Other count should be added, stating the taking or detention to have been in any place where it can be proved the defendant had the property. The property taken or detained must be accurately described, and the description must correspond with the description set forth in the writ. The precise day of the taking is not material, but it must be a day prior to the date of the writ; and the declaration may count upon several takings, some upon one day, and some upon another. If standing corn is replevied, it should be described as fol- lows: "In a certain field there, called (here describe the place), took , the corn of the said plaintiff, to-wit., acres of standing corn, then and there growing, and being of great value, to-wit, of the value of, etc." (2 Chitty PL, 844). It is provided by statute in some states that in actions of replevin a count in trover may be joined with the counts in replevin. This is a very great convenience in cases where only a part of the goods are recovered under the writ, as the plaintiff is thereby enabled to recover the value of the goods not recov- ered uaider the writ of replevin, in addition to his other dama- ges, without resorting to a separate action. PLEAS: The defendant may plead in abatement as in other actions, but if he expects or wishes a return of the goods to him, he must not only set up the matter in abatement, but he must also show that he is entitled to a return of the property. If the defendant pleads in abatement in the ordinary manner, and judg- ment is entered in his favor, the action will abate, but the plaintiff will hold the goods, and the defendant cannot have a return and restoration unless under some special statutory provision. Strictly speaking, there is no general issue in the action of replevin; in some of the old books non cepit is referred to as the general issue, but this plea only puts in issue the taking and REPLEVIN. 197 should never be used where there is any other defence to be made. The plea of non cepit admits the property to be in the plain- tiff, and under it the defendant cannot make any defense which in any way affects the title to the property, or justifies the tak- ing; he simply denies the taking, and unless this plea is coupled with some other plea, practically no defense can be made under it, except a denial of a taking at the place mentioned in the declaration. It also imposes upon the plaintiff the burden of showing an unlawful taking by the defendant, and if it is shown that the property came into the hands of the defendant lawfully, as against the plaintiff, the defendant will have judgment for his costs, but not for a return and restoration of the property, unless there, is a statutory provision which permits it. The plea of non detinet also admits the title to the property to be in the plaintiff. It puts in issue the wrongful detention and the detention at the place named in the declaration only, and if upon the trial it is shown that the detention was lawful, or not at the place named, the defendant will have judgment for his costs, but not for a return and restoration of the property, unless permitted by statute. The pleader should bear in mind always the dis- tinction between these two pleas, that non cepit puts in issue the taking .only, and non dentinet the detention, and also that both pleas admit the title to the property to be in the plaintiff. The defendant may, when proper, plead a justification, or, as it is called in the action of replevin, an avowry. This plea is .an admission of the taking, but sets up some matter in justifica- tion thereof, as, for instance, that animals were taken damage .feasant; or that the defendant -took the goods in his own right. Under an avowry, if the judgment upon the issue is in favor of the defendant, he will have a judgment for a return and restora- tion of the goods, and damages for the taking thereof by the plaintiff, and his costs; and if the plaintiff discontinues his Action, or becomes non-suit, judgment will be entered for a j-eturn and restoration to the defendant of the goods replevied. 198 REPLEVIN. If the plaintiff lias declared for less goods than were actually- taken and replevied, tlie defendant may avow the taking of the goods mentioned in the writ, and may also aver that the plain- tiff took other goods (describing them), and pray that the sheriff or other officer executing the writ may be required to ascertain the fact, and, if true, cause the surplus to be returned to the defendant. If "he fails to do this, and if the plaintiff discontinues his suit or becomes non-suit, he is without remedy so far as the surplus goods are concerned; and if the plaintiff has replevied fewer goods than were actually taken, the defendant may avow for all, and if he succeeds will have judgment for return and restoration of the goods mentioned in the vsrrit, and will like- wise have judgment that he retain what he already has in his possession (Morris on Replevin, 157). The defendant may plead in defence property either in him- self or in a stranger, biit where either are pleaded, the plea must traverse the right of the plaintiff to the property replevied. The burden of proving property in himself, or the right to the posses- sion thereof at the time the writ was issued, is upon the plain- tiff, and if he fails in this respect he will become non-suit, and the defendant will have judgment for a return and restoration of the goods and his costs. REPLICATION: The replication should be broad enough to put in issue all the allegations set forth in the defendant's plea. Where the defen- dant avows a taking in a place different from that mentioned in the declaration, the plaintiff must traverse it, and where the- plea is property in the defendant, or in a. stranger, the replication should allege that the property in the same goods mentioned in the declaration was in the plaintiff, as in the said declaration al- leged, thus putting in issue the title to the property. The plaintiff"' may also, by his replication, set up matter by way of confession and avoidance; this requires a rejoinder upon the part of the- defendant, which is usually a simple traverse of the matter set up in the replication. REPLEVIN. 199 EVIDENCE: Under the plea of non cepit, the plaintiff must prove the tak- ing of the goods, or a part of them, in the place specified in the declaration. It is not necessary that he prove the original tak- ing at the place named; but it will be sufficient to prove a deten- tion of them by the defendant at the place named. He must prove that they were taken or detained in the county where the action was brought, as the action is local; and the place of the taking is material, and must not only be alleged with certainty in the declaration, but it must be proved. In cases where a demand is necessary before bringing suit the demand must be proved. If a tender was a necessary condition precedent to bringing the suit it must be alleged and proA'ed or the action will fail. Under the plea of non ditent, the plaintiff must prove a detention in the place named in the declaration, by the defendant, and under either of these pleas the plaintiff may introduce evidence tending to estab- lish his damages by reason of the unlawful taking or detention by the defendant. On the other hand, the defendant may intro- duce evidence tending to show that he did not take or detain the property at the place mentioned in the declaration, and under the common law this will be sufficient, if established, to defeat the plaintiff's action. J'he defendant may also, under this plea, introduce evidejice in mitigation of damages, but special defences should be pleaded specially, in order to enable the defendant to introduce evidence in support thereof. Under an avowry the defendant may introduce evidence to sustain the allegations set forth in his plea, and the plaintiff, if he has filed the proper replication, may introduce any competent evidence relevant to the issue. The defendant mil not be permitted to introduce evidence tending to show property in himself or in a stranger, or in justification, or in bar, unless he has laid a proper founda- tion therefor by his pleas. Eor instance, the statute of limita- tions may, if properly pleaded, constitute a bar to the action, but no evidence in support of the bar by statute can be given except under a special plea. The plaintiff may introduce evi- 200 REPLEVIN. dence of any damage -whicli he has sustained by reason of the unlawful taking or detention by the defendant, and if he fails to introduce evidence of damages, he will be awarded nominal damages only. The defendant may also introduce evidence of any damage which he has sustained by reason of being deprived of the use of the property replevied, and if he prevails in the action, and has judgment for a return and restoration, he may also have judgment for such damages as the jury may have awarded him under the evidence. JUDGMENT: In replevin, if the plaintiff prevails upon the trial, he will have judgment that the property in the goods taken under the writ is in him, and that he recover his damages as assessed by the jury and his costs of suit. In states where a count in trover may be joined with the count in replevin, the judgment may ,be not only for the goods recovered under the writ, but also for the value of the goods mentioned in the writ which were not taken thereunder by the sheriff. Under the pleas of non cepit and non detinet, in case the defendant prevails, he will only have judgment for his costs. But if the defendant prevails under the other pleas, he may have judgment for return and restoration, and for damages and costs. Where final judgment of return and restoration is entered in favor of the defendant, he has the right to demand of the plain- tiff, and of the officer who served the writ of replevin, the return of the identical goods taken under the writ, and if they are not delivered to him, he may immediately bring suit upon the re-- plevin bond. We have treated the subject of replevin wholly with refer- ence to the common law rules for the reason that in this country, in nearly, if not all, the states, the common law doctrine has been modified by statute, and it is beyond the scope of this work to go into a discussion of the practice under the laws .of each state. The fundamental principles are the same, however much REPLEVIN. 201 the common law rules may be modified, and the rules and sug- gestions which we have laid down cannot fail to be helpful. The practitioner should bear in mind, however, that the statutory provisions in his state must be strictly complied with in all re- spects; the provisions relating to the filing of an affidavit as a foundation for the issuing of the writ is jurisdictional, and unless the affidavit is in the form prescribed, and sets forth all the facts necessary to give the court jurisdiction, it will be fatally defec- tive. So, where a bond is required to be given before' the writ wiU issue, it must be in the form prescribed by statute; it must be executed by the number of sureties prescribed by law, and the sureties must qualify in the manner prescribed. A careful study of the statutes of your state, and of the decisions of your own courts will enable you, with the aid of the suggestions we have made, to prosecute a suit in replevin to a successful issue. The following are some of the most common forms of plead- ings in replevin ,under the common law system. Ji'orm 3?. PLEA OP NON CEPIT. (Venue and Title of Court and Cause.) And the said defendant comes and defends, &c., when, &c., and says that he did not take the said goods in the declaration aforesaid men- tioned, in manner and form as the plaintiff hath declared against him; and of this he puts himself upon the country. This plea simply puts in issue the taking of the goods; where the defendant wishes to put in issue the taking of the goods in the place liientioned he will find the following form useful: Form 3». TRAVERSE OP PLACE. (Venue, and Title of Court and Cause.) And the said defendant comes and defends the force and injury when, &c., and says, that he, at the time when the said goods in the plaintiff's declaration mentioned were supposed to be taken, took the said goods in a certain place called , which was in the 202 REPLEVIN. town of , and not in the town of /, as set forth in the plaintiff's declaration; without this, that he tools the said goods in the town called , , as the plaintiff has ahove sup- posed by his said declaration and this he is ready to verify: Where- fore he prays •judgment of the plaintiff's declaration aforesaid, and to have a return of the said goods unto him and his costs. Form 39. NON DETINBT. (Venue and Title of Court and Cause.) And the said defendant, by E. F., his attorney, comes and defends the wrong and injury when, &c., and says that he did not detain the said goods in the plaintiff's declaration mentioned, in manner and form as the plaintiff hath thereof declared against him; and of this he puts himself upon the country. Form 40. STATUTE OF LIMITATIONS. (Venue and Title of Court and Cause.) And the said defendant by his attorney, comes and defends the force and injury when, &c., and says that the plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that the original writ of the plaintiff was issued on, etc., and not before; and that the said defendant did not, at any time within six years (or within the time limited by the statutes of your state) next before the issuing of the said writ to the plaintiff in this cause, take the said goods and chattels in the said declaration mentioned or any of them, as the plaintiff hath thereof declared against him; and this he is ready to verify: Wherefore he prays judgment, if the plaintiff, his action aforesaid against him, ought to have or maintain, and for his costs. .If the plaintiff wishes to join issue upon this plea he may do so by filing the following replication: Form 41. REPLICATION TO PLEA OF STATUTE OF LIMITATIONS. (Venue and Title of Court and Cause.) And the said plaintiff as to the said plea of the said defendant by him above pleaded says that the said plaintiff, by reason of anything by the defendant in the said plea alleged, ought not to be barred from REPLEVIN. 203 having and maintaining his aforesaid action thereof against him, because he says that the defendant did talce the said goods and chattels in the said declaration mentioned, within six years next before the issuing of the said writ to the plaintiff; and this he prays may be inquired of by the country. Where the cause of action did not accrue to the plaintiff within six years, the following is the proper form of pleading the sta- tute of limitations: Form 43. LIMITATIONS— ACTION DID NOT ACCRUE WITHIN SIX TEARS. (Venue and Title of Court and Cause.) And the said defendant, by his attorney, comes and defends the force and injury when, &c., and says that the plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says, that the cause of action of the plaintiff in the declara- tion aforesaid mentioned, did not accrue to the plaintiff within six years (or within such period as is prescribed by the statute of limita- tions of your state) next before the date of the issuing of the said writ to the plaintiff in this cause; and this he Is ready to verify: Wherefore, he prays judgment, if the plaintiff, his action aforesaid against him, ought to have or maintain, and for his costs. If the plaintiff wishes to join issue upon this plea, he may do so in the following manner: Form 43. REPLICATION TO PLEA THAT ACTION DID NOT ACCRUE WITHIN SIX TEARS. (Venue and Title of Court and Cause.) And the said plaintiff, as to the said plea of the said defendant by him above pleaded says that the said plaintiff, by reason of any- thing by the defendant In the said plea alleged, oUght not to be barred from having and maintaining his aforesaid action thereof against him, because he says, that the cause of action set forth and described in the said declaration, did accrue to the plaintiff within six years next before the said day of the issuing of the writ to the plaintiff in this cause; and this he prays may be inquired of by the country. 204 REPLEVIN. Form 44. PLEA OF PROPERTY IN THE DEFENDANT. (Venue and Title of Court and Cause.) And the said defendant, by , his attorney, comes and defends the wrong and injury when, &c., and says that the plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says, that the said goods and chattels in the said declaration men- tioned, at the time when the taking of the same is supposed by the said declaration, were the property of the said defendant, and not of the said plaintiff, as by the said declaration, is above supposed. And this, the said defendant is ready to verify: Wherefore, he prays judgment, if the said plaintiff ought to have or maintain his aforesaid action thereof against him, and he also prays return of the said goods and chattels to him, together with his costs In this behalf, to be adjudged to him. If the plaintiff wislies to join issue upon this plea, he may do so by filing the following replication : Form 45. REPLICATION TO PLEA OF PROPERTY IN THE DEFENDANT. (Venue and Title of Court and Cause.) And the plaintiff as to the said plea of the said defendant by him above pleaded says that the said plaintiff, by reason of anything by the defendant in the said plea alleged, ought not to be barred from hav- ing and maintaining his aforesaid action thereof against him, because he says, that the property of the said -goods at the time of the taking thereof was in him, the said plaintiff, in manner and form as he, by iis declaration aforesaid, hath thereof alleged; and this he prays may be inquired of by the country. Form 46. PLEA OP PROPERTY IN A STRANGER. (Venue and Title of Court and Cause.) And the said defendant, by his attorney, comes and defends, &c., when, &c., and says that the plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says, that the said goods and chattels in the said declaration mentioned, at the time when they were taken as, by the plaintiff's declaration, supposed, •were the property of one C. D., and not of the said plaintiff as, by the said e stated clearly, distinctly and positively, free from am- biguity and surplusage; The affidavits should not be entitled, as there is no cause pending between the parties. The petition should' pray either for a peremptory mandamus, an alternative mandamus, or an order to show cause why a mandamus should not be issued. If the application is for a peremptory mandamus, copies of the petition, motion and affidavits, with due notice of the time and place of hearing upon the application must be served upon the court, person, officer or corporation named as respondent in the petition. If an order is made for an alternative mandamus, or an order to show cause why a mandamus should not issue, a copy of the order must be promptly served upon all the respondents named in the petition and_^affidavits. THE RETURN: >* The return must be made by the court,, per son, officer or cor- poration to whom the order to show cause is directed. If there are.;substantial defects in the writ, the correct practice is to move to quash. -The return must be made within the time specified in the order, unless further time be granted. It should state facts and not conclusions of law. It should answer, deny or explain every allegation contained in the petition and affidavits. If the respondent has no. knowledge of the facts alleged, and is therefore unable to answer, the return should so state the fact to be. The return should be true^ The respondent will be liable for damages accruing to the relator by reason of a false return. It should set forth accurately and specifically every defence relied upon by the respondent; but where several defences are 284 MANDAMUS. set up, they should be consistent. If the return is inconsistent, the court may strike it out or quash it upoii motion. Great care should be exercised in preparing the return to see that everything upon which the respondent proposes to rely as a defence is set forth, as the usual practice upon an order to show cause is for the court to determine the matter upon examination and consideration of the petition, affidavit and return, with its supporting affidavits, if any. THE ALTERNATIVE WRIT: Where the petition presents questions which indicate that, there will be issues of fact to determine, the practice is to issue an alternative writ. The return in such case will be in the nature of a plea upon which the relator may join issue or to which he may demur. If an issue of fact is created, the court may refer it to a jury for trial. If the relator prevails he will ordinarily be entitled to costs, and in some cases to damages. The trial of the issue of fact will be conducted £ls in ordinary' cases, with the burden of proof primarily upon the relator. REVIEW OF JUDGMENT: The judgment upon an issue framed in a mandamus proceed- ing may ordinarily be reviewed by writ of error in the same man- ner as other judgments are reviewed; and in preparing the case for review the same proceedings will be necessary as in other cases. ENFORCING OBEDIENCE TO WRIT: The usual method of enforcing obedience to the writ of mandamus is by proceedings in contempt. Upon a proper show- ing, an attachment will issue to bring the offending party into court, where, if it appears that the contempt is wilful, he will be compelled to purge himself of contempt by performing the MANDAMUS. 285 mandate of the writ and paying the costs of the contempt pro- .ceedings, or be committed to jail, there to remain until purged of contempt, or discharged by the court, or by operation pf law. Bibliographic Note. — The special works' upon this subject are Wood on Mandamus, second edition by Bridges, 1891, Merrill on Mandamus, with forms, 1892, Moses on Mandamus, Short on Information and Man- damus, and Tapping on Mandamus, an American reprint of an English work. The proceeding by mandamus is also discussed in High on Extraordinary Legal Remedies, Spelling on Extraordinary Relief, Short on Extraordinary Legal Remedies, by H. G. Heard, covering quo war- ranto, mandamus and prohibition, and Pomeroy's Remedies and Remedial Rights under a Code. A very valuable work is Man- damus Reports, by Hon. John W. McGrath, late Chief Justice of the Supreme Court of Michigan. For the law of rnandamus as applied to corporations, see Cook on Stock and Stockholders and Corporation Law, Angell and Ames on Corporations, which contains a very full discus- sion of the subject, Thompson on Corporations, Field on Private Cor- porations. For the law of mandamus as applied to railway companies, see Redfield on the Law of Railways, and Wood on Railways. For the law of mandamus as applied to cities, counties, villages, townships, etc., see Dillon on Municipal Corporations. CHAPTER XV. AEBITEATION AND AWARD. Arbitration is a remedy sometimes resorted to for the purpose of settling controversies between the parties; and, as the law approves everything which tends to -diminish litigation and pre- serve peace and good feeling in the community, the remedy by arbitration has always been looked upon with favor, and by usage and custom certain rules have become established which are of almost universal application in the states where the coram on law is in force. At common law tha proceeding by arbitration was wholly independent of the courts; the parties agreeing either by parol or by a contract in writing to submit certain supposed grievances or matters of controversy to the decision of one or more persons named, such decision to be final and binding upon the parties, they each agreeing to submit to, abide by, and perform the award; but there was no process by which the award of the arbi- trators could be carried into effect; and if the party against whom the award was rendered refused to perform the duty or pay the amount found against him, the prevailing party could only resort to the action at law to recover upon the award. STATUTORY ARBITRATION: The difficulties attending the enforcement of an award under common law arbitration led to the enactment of statutes which provide that where a suit or action is pending, the court may, with the consent or upon the petition of both parties, enter a rule or order referring the matters in controversy to one or more arbitrators. Statutes of this nature have been enacted in nearly all, if not all, the states, differing in details and matters of prac- tice, but similar in all important particulars. Under the pro- ARBITRATION AND AWARD. 287 ceeding by statutory arbitration the award, when confirmed by the court, becomes a judgment thereof, and the prevailing party may have an execution or other appropriate process for its en- forcement. THE SUBMISSION OR AGREEMENT: At common law, the submission or agreement to arbitrate may be either oral or in writing, either being equally binding upon the parties, and there is an implied agreement to abide by and perform the award whether the submission be oral or in writing, which the courts will enforce. The chief ob-jection to an oral submission is the difficulty in proving what questions or controversies were submitted, and what powers were conferred upon the arbitrators. So, while an award based upon an oral submission may be enforced, still the better practice, indeed the only safe practice, is to have the submission reduced to writing and signed by the parties. WHAT THE AGREEMENT SHOULD SET FORTH: In order that the proceeding may be fully effective, and the objects sought to be accomplished may be fully accomplished, the agreement. or submission should set forth: 1. The subject matter of the controversy, which should be stated fully, but at the same time as concisely," clearly and dis- tinctly as possible; 2. The names of the arbitrators, and if, in case they are un- able to agree, another is to be called in, he should be selected and his name inserted in the agreement; 3. The powers intended to be conferred upon the arbitrators; 4. An agreement to submit to, abide by and perform the award; 5. .An agreement that each party pay a certain amount or pro- As to the effect of an agreement to submit to arbitration upon pend- ing suits see Callanan vs. Port Huron & Northwestern Ry. Co., 61 Mich., 15, which contains an elaborate and careful discussion and review of the authorities. See also Tidd's Practice, 822, for the common law rule. Also Morse on Arbitration, 77. 288 ARBITRATION AND AWARD. portion of the expenses of the proceeding, including the services of the arbitrators. The following form may serve as a guide in drafting an- agree- ment or submission to arbitration : Form 66. SUBMISSION TO A COMMON LA.W AEBITEATION. Whereas, certain differences have for a long time existed, and are now existing, between A. B., of , and C. D., of in relation to or growing out of their mutual dealings, etc., (here set forth fully and carefully the matters in controversy which are to be submitted); Now, therefore, we, the said A. B. and C. D., do hereby covenant and agree to and with each other that E. F., G. H. and I. J., or any two of them, shall arbitrate, determine and award of and con- cerning all and all manner of actions, causes of action, controversies, claims and demands whatsover now pending, existing or undetermined between us, the parties aforesaid; (or if the submission relates to some specific cause of action or demand, describe it carefully and accurately instead of using the general terms used in the form) and we do further covenant and agree to and with each other that the award to be made •by said arbitrators, or a majority of them, shall in all things be well and faithfully kept and performed by each of us, and the said award shall be deemed and held to be a final determination and adjudication of the differences and questions submitted to the said arbitrators. It is further mutually agreed that the award of said arbitrators shall be in writing and signed by them, or a majority of them, and that a copy of said award be delivered to each of the parties within five days from and after the making of such award. . It is further mutually agreed that the costs and expenses of the arbitration, including the fees of the said arbitrators and the witnesses, if any, shall be borne equally by the parties hereto; (or, shall be paid by the defeated party, or shall be paid in such manner and by such party or by both parties in such proportions as the arbitrators, or a majority of them, may by their award direct) the said arbitrators, or a majority of them, being hereby given full power to award or appor- tion said costs and expenses in such manner as to them shall seem just. In witness whereof, we have hereunto set our hands and seals this day of A. D. 18 In presence of- (Seal.) (Seal.) ARBITRATION AND AWARD. 289 Or the following form may be used, or modified to fit the peculiar facts of the case: Form 57. This agreement, made and executed this day of ..., A. D. , between A. B., of in the County of and State of party of the first part, and C. D., of said party of the second part, Witnesseth that. Whereas, the said A. B., on the day of A. D , entered into a cei-tain contract with said C. D., whereby the said C. D. agreed to build and fully complete in a substantial and workmanlike manner, on or before , a two-story frame dwelling house for the said A. B. upon a certain lot in said (describing the lot fully) and that the labor and material furnished in and for said building should be in strict accordance with the plans and specifications annexed to and made a part of said contract; and Whereas, matters of difference have arisen between the said A. B. and C. D. as to the kind, quality and dimensions of lumber, timber and other materials used in the construction of said building, and as to the workmanship and other matters relating to said building; and Whereas, it is proposed to submit the matters of difference between the said parties to arbitration. Now, therefore, the parties hereto, in consideration of the premises, do hereby covenant and agree to and with each other, that said party of the first part shall select a disin- terested, capable, and reputable business man and a citizen of said , and said party of the second part shall select another disinterested, capable and reputable business man of integrity, and a citizen of Upon an examination of said two persons either of said parties shall have the right to object to the arbitrators selected by the other for any of the following causes: That the person so selected is not disinterested, or is not capable, or not of good reputation for honesty and integrity, or that he is related to, or in the employ of the party choosing him. Thereupon the person so objected to, if not disinterested, or capable, or of good reputation for honesty and integrity, or if related to, or in the employ of the party choosing him, shall be rejected, and another person named by the party who selected him. The same advantage and right of objection shall be had and new persons named, until two persons are found unobjectionable to sit as arbitrators with the above requirements. When the two men thus selected are settled upon, they shall select a third disinterested, capable and reputable business man of integrity and a citizen of , who is familiar with the building business. Either of the parties. 290 ARBITRATION AND AWARD. hereto shall have the right to object to the third person so chosen, upon any one or more of the grounds hereinbefore stated as grounds of objection, until a third man shall be selected who is found unobjection- able to sit as an arbitrator with the above requirements. The three thus chosen shall act as arbitrators between the parties, and shall examine into, hear and determine all matters of difference between the said parties in any way touching, concerning, or growing out of the said contract for the building of said dwelling house. The said arbitrators shall take the said contract, plans and specifications, and compare the building as it now is with said plans and specifications, and note the defects or points of difference in said structure, if any, and shall give full directions to said C. D. as to what, if anything, may be necessary to be done by him in order to raake said house as good, well-built and substantial as required by said contract, plans and speci- fications. The said arbitrators shall examine into any changes from the orig- inal plans, and into any items of extra work performed by said C. D., and make an allowance or charge in favor of either party therefor, as the right and justice of the matter may require. Said arbitrators shall examine the materials of which the house is constructed, and ascertain whether any allowance or deduction on the contract should be made for such differences, if any, and how much; and said arbitrators shall hear and determine as the right and justice of the matter may require any other matters or questions which may arise between the parties hereto, whether specifically herein set forth or not. It is further agreed that in case the said arbitrators fail to reach a unanimous conclusion, that, the finding of a majority of said arbitra- tors shall determine the matters so submitted, and a majority of them may make an award which shall be in duplicate and signed by the arbitrators, or a majority of them. One of said duplicates shall be served upon each of the parties hereto, and the award so made and served, whether signed by all or only a majority of said arbitrators, shall be binding upon the parties hereto, and shall be held to be a final determination and adjudication of all the said matters in con- troversy between them. It is further agreed by the parties hereto, that they will abide by, submit to, and fully perform the award of said arbitrators, in so far as said award shall require any matter or thing to be done or per- formed by them, or either of them. It is further mutually agreed that the costs and expenses of the arbitration, including the fees of said arbitrators and of the witnesses, if any, shall be borne equally by the parties hereto (or shall be paid by the defeated party hereto, or shall be paid in such manner and by such party, or by both parties in such proportions as the arbitrators or a majority of them may by their award direct), the said arbitrators, or ARBITRATION AND AWARD. 291 a majority of them being liereby given full power to award or apportion said costs and expenses in such manner as to them shall seem just. In witness whereof, we have hereunto set our hands and seals the day and year first above written. It is a very common occurrence for fire insurance companies to adjust their losses by arbitration j^ in fact, nearly if not all fire insurance policies contain a provision making arbitration compulsory in case tbe parties are not able to agree. The com- panies usually have a printed form of agreement; and the usual practice is to provide only for the appointment of one arbitrator by each party, with a provision that a tliird shall be selected by the two in case they cannot agree. As the arbitrator selected by the company is rarely, if ever, a disinterested person, a disa- greement is very apt to follow, unless the arbitrator selected by the assured accepts the terms of the other arbitrator; and after the arbitrators have once disagreed upon the terms of the adjust- merit, it becomes diificult to agree upon the third man. The better practice is, in all submissions, to either have three arbitra- tors or to have the third man selected and named in the agree- ment, with a provision that he be called in if the two first ap- pointed fail to agree. It is also good practice to agree whether the parties shall or may be represented by counsel at the hearing before the arbitra- tors. WHO MAY SUBMIT TO ARBITRATION: Any person of sound mind and full age, any co-partnership or corporation, public or private, capable of making a contract, may submit to arbitration; but one of several persons jointly in- terested in a matter cannot bind the others without their consent. . So, one member of a co-partnership cannot bind the firm by an agreement to submit to arbitration without the consent of the other members of the firm. But the agreement will bind the other members if ratified by them. . It is a general rule that all parties who are to be bound by an 292 ARBITRATION AND AWARD. award must be parties to the arbitration agreement. The agree- ment will bind those only who become parties to it. An attorney has no authority to submit his client's contro- versy to a common law arbitration, without his consent; but where a cause is pending in court, the attorney would seem to have the right to submit to a statutory arbitration, as he is vested with exclusive authority by virtue of his retainer to manage and conduct the litigation in the manner which to him appears to promise the result most favorable to his client. This is the rule laid down by Chief Justice Marshall, of the Supreme Court of the United States, in Holier vs. Parker, 7 Oranch, 436, who says: '^t is believed to be the practice throughout the Union, for suits to be referred by consent of counsel, without special authority, and this universal practice must be founded on a general con- viction that the power of the attorney-at-law over the cause of his client extends to such a rule. Were it otherwise, courts could not justify the permission which they always grant to enter a rule of reference, when consented to by counsel on both sides." An agent has no authority to bind his principal without his consent. Such authority must be specially conferred. But if the principal ratifies the act of the agent in submitting to arbi- tration, he cannot thereafter repudiate it. A married woman may submit to arbitration a controversy affecting her separate property or estate in states where her com- mon law disability Jias been removed, and the award will be bind- ing upon her; but, ujiless her common law disability has been removed, a submission by a married woman is void. A public officer has no right to submit to arbitration claims against a municipality without the -consent of its governing body, nor can a claim of a state or the national governrftent be sub- mitted to arbitration by an officer thereof, unless expressly authorized by statute so to do. ARBITRATION AND AWARD. 393 MANNER OF SUBMITTING TO STATUTORY ARBITRATION: The statutes of the several states in which this proceeding is recognized, vary so widely that it is impossible to lay down any comprehensive rule that will apply to all the states. ■ It may be said, however, that the statutory provisions must be strictly followed both as regards the persons who may submit to arbitration, the nature of the matters of controversy that may be submitted, the method of effecting the submission and selecting the arbitrators, the effect of the award, how it shall be confirmed, and when and in what manner the proceedings or award may be vacated, set aside,- appealed from, or reviewed by writ of error. A careful study of the statutory provisions and decisions of the court of final resort of his own state is a peremptory duty of the practitioner before he thinks of embarking upon a course of arbi- tration proceedings. ADVISABILITY OF SUBMISSION TO ARBITRATION: While arbitration is a favorite of the law, still it does not always commend itself to the practitioner of experience as the best way of settling controversies of a purely legal nature. As we have seen, a common lav? award can only be enforced by an •action upon the award, and statutory arbitration is about as technical and expensive as the ordinary law suit. Yet there are cases in which, owing to a long period of mutual dealings and accounts, a reference to arbitrators or auditors may be advisable; butj as a rule, where questions of fact and law are involved we believe more exact justice and a more satisfactory result will be obtained through the courts in the usual way. Arbitrators are inclined to attempt to satisfy both parties, and as a result neither .side is satisfied. If you have a bad case, y.ou may gain an advan- tage by a submission to arbitration ; but if you have a good case, trust to the court and jury. An attorney should never submit his client's cause to arbitration without his full consent and approval. 294 ARBITRATION AND AWARD. If a proposition to arbitrate comes from the other side, study your case carefully and decide for yourself first, whether it is advisable to accept the proposition, then notify your client, ex- press your views, show him the arguments in favor of and against arbitration, and then let him decide. We believe it good policy to allow the client, if he is an intelligent man, to take some responsibility in determining the advisability of proceedings which turn wholly upon questions of. expediency. REVOCATION: An agreement to submit to arbitration may be revoked at any time before the award is made. This is the general rule as to common law arbitration, and applies with equal force to an agreement for statutory arbitration in the absence of a contrary statutory provision. Equity will not, in the absence of a statutory provision requir- ing it, enforce an agreement to submit to arbitration ; it being the policy of the law not to compel parties to submit to arbitration, and thus close against themselves the courts of justice. Where several parties on one side enter into an award, the submission cannot be revoked as to the others by the revoca- tion of one party only. The agreement will stand as long- as., there is one or more parties upon each side, .as to those who remain. A submission in writing can be revoked only by a written notice; but where the agreement is by parol, the revocation may be by parol, but the notice of revocation must in either case be explicit and positive and brought home to the other party to the submission. THE AWARD: The award, when finally made, is binding upon all the parties, thereto. Under a common law arbitration the award becomes final and operative as soon as rendered, and the prevailing party may, upon the refusal of the opposite party to perform, bring- ARBITRATION AND AWARD. 395 his action to enforce the award in any court of competent jurisdic- tion. Under a statutory arbitration the award becomes final if not appealed from, when confirmed by the court (if confirmation •is necessary under the statute), or at such time as the statute provides. Usually the award under a statutory arbitration has the effect of a judgment, and^the prevailing party may have an execution or other appropriate process to enforce it. The award is, however, binding and obligatory only to the extent of the authority conferred upon the arbitrators by the agreement or rule under which they were appointed. But the award will be valid as to matters properly passed upon by the arbitrators, although they may have exceeded their powers in other respects. The award, in order to be valid and binding upon the parties, must have been rendered in good faith, and the proceedings must have been free from fraud or collusion upon the part of the pre- vailing party, or those acting for him. Where a party has been fraudulently induced to submit to the arbitrament of persons who were known by the other side to be prejudiced or biased in his favor, the award rendered under such circumstances will be set aside upon showing such facts. It is a general rule that an award obtained by fraud, or rendered by reason of gross mistake, partiality, or miscon- duct upon the part of the arbitrators, will be set aside, but the proof of fraud or misconduct must be clear and con= elusive. It is a settled rule in the construction of awards, that no in- tendment shall be indulged to overturn an award, but every in- tendment shall be allowed to uphold it. Karthaus vs. Ferrer, 1 Peters (U. S.), 222. Where an award is void in part for any reason, it may be sus- tained as to the part which is not clearly invalid, but it must be made to appear that the part allowed to stand is in no way affected by the act or omission by which a part of the award is rendered void. 296 ARBITRATION AND AWARD. THE AWARD SHOULD BE COMPLETE: An award whicli does not cover the entire subject of the sub- mission will not be set aside as of course; but if it completely povers any one separate and distinct question of dispute, or if i1r can be enforced without doing an injustice to the other party, it will be allowed to stand. Where, however, the award is so incom- plete as to show an utter lack of appreciation of the questions submitted, and of the conflicting claims presented, the award will usually be set aside. THE AWARD MUST BE CERTAIN: That is to say, it must state definitely what each party to the submission shall do or receive under the award. Thus, if the award requires one of the parties to give security to the other, it should also state what kind of security, and in what amount. If a conveyance is ordered, it should state the kind of conveyance. If the award directs some act to be performed by one of the parties, it should direct within what time it shall be performed. In otjier words, the rule may be well stated to be, that The award must be so certain, that no reasonable doubt can arise as to the intentions of the arbitrators, or of the duties and obligations imposed upon the parties. THE AWARD MUST BE MUTUAL: This rule does not mean, however., that the award should require both parties to do some particular act, or impose upon both some particular duty. If the award shows that the matters in controversy on both sides were submitted and that it binds both parties so that a performance of the award by the defeated party will operate as a full discharge, then the award will be mutual; but if the award is binding upon one of the parties only, it will be void for want of mutuality. So, where one of the parties to a submission entered into the agreement as the agent of or repre- senting another person or corporation, when, in- fact, he had no power to bind his principal, the award will be void for want of ARBITRATION AND AWARD. 297 mutuality, unless the principal shall have ratified the act of the agent. ISTo general rules can be laid down for determining whether an award is mutual, but the question must be deter- mined by the facts of each particular case. THE AWARD MUST BE FINAL: An award is regarded as final when it is an absolutely con- clusive adjudication of the matters in dispute. This is the rule laid down by the Supreme Court of the United States in Karthaus vs. Ferrer, 1 Peters, 222, 230' But if it does not appear upon the face of the award that it is a conclusive adjudica- tion of the matters in dispute, or if there is good reason to doubt the conclusiveness of the adjudication or that the award will operate as a bar to further litigation upon the matters covered by the award, the award will not be regarded as final. ENFORCEMENT OF THE AWARD: An award under a common law submission can only be en- forced by an action at law or by bill in equity. If there is a valid award, made under a valid submission, it will be final and conclusive and binding upon the parties, and the prevailing party may enforce the award by an action at law. Assumpsit will lie to enforce a parol award, but when the sub- mission was under seal, debt is the proper remedy, except in states where the distinction between actions of assumpsit and debt has been abolished. The following is the usual form of a declaration in debt upon a common law award: Form 58. (Title of. Court and Cause, and Commencement.) For that, whereas, certain controversies, matters of difference and accounts were depending and unsettled between the plaintiff and the said defendant, concerning (here state the matters submitted as set forth in the arbitration agreement), and for settling and finally deter- mining said differences, the said plaintiff and the said defendant, on to-wit: the day Qf , A. D. 18 at by a certain instrument in writing under seal, sub- 298 ARBITRATION AND AWARD. mitted themselves and said matters of difference to the award, deter- mination and judgment of C. of , B of and E of , as arbitrators, selected by them to award, order and iudge touching the premises; and the said C, D and B having taken upon themselves the burden of awarding and adjudging in the premises, afterwards, to-wit: on the day of at , made their award in writing touching the premises, whereby they awarded, adjudged and ordered that the said defendant should (here set forth fully what the defendant was required by the award to do or perform, together with the manner, time and place when and where the award was to be performed), of which the defend- ant then and there had notice; yet the said defendant did not on the said day in the said awa)i(i in that behalf mentioned, pay to the plain- til the said sum of $ , although requested so to do; whereby an action hath accrued to the plaintifE to demand and recover of the said defendant the said sum of I The following is the usual form of a declaration in assumpsit upon an award upon a submission in writing: Form 50. (Title of Court and Cause, and Commencement.) For that, whereas, certain controversies, matters of indifference and accounts were depending and unsettled between the plaintiff and the said defendant, concerning (here state the matters submitted as set forth in the arbitration agreement), and for settling and finally determining said differences, the plaintiff and the said defendant on, to-wit: the - day of A. D. 18...., at agreed and submitted themselves and said matters of difference to the award, determination and judgment of C of , D of and B of as arbi- trators, selected by them to award, order and judge touching the premises, and mutually promised to abide by, and perform, whatever the said arbitrators, or a majority, should award and finally deter- mine concerning the premises'; and the said C, D and E, having taken upon themselves the burden of awarding, judging and ordering in the premises, did by their award (or by the award of the majority thereof), afterwards made thereon, viz: on the day of at award, adjudge and order between the said defend- ant and the plaintiff as follows, to-wit: that the said defendant should pay to the plaintiff the sum of $ in full of all demands which the plaintiff had against the said defendant for the goods, wares and merchandise sold and delivered to the said defendant, etc., (set out fully and accurately the matters referred to arbitration as set forth in the agreement of submission). ARBITRATION AND AWARD. 299 And the plaintiff salth that the said defendant hath not paid the said sum of $ , or any part thereof, to the plaintiff according to the form and effect of said award, although the said defendant on, to-wit: the iiay of at , had notice of said award, and was then and there reqilested by the plaintiff so to do; but the said defendant, not regarding his said promise and undertaking as aforesaid, hath refused and still does refuse to abide by and perform the said award, or to pay said sum of $ ; whereby an action hath accrued to the plaintiff to have and recover the same; to the damage of the plaintiff dollars, wherefore he sues, etc. NATURE AND ORDER OF PROOF: Upon the trial of an action upon an award, the plaintiff must first prove and offer in evidence the agreement of submission. Unless the signatures are admitted they must be proved. The next step necessary is to show that the agreement was acted upon and that an award was made in accordance with the submission by the arbitrators, or a majority of them. The award mxist next be proved and offered in evidence, with proof that the award was duly served upon the defendant, or the contents and provisions thereof duly brought to the notice of the defendant. The plaintiff must also prove a demand upon the defendant and a refusal upon his part or such neglect or delay iipon his part as will amount to a refitsal. If the award provides for the performance of any act upon the part of the plaintiff as a condi- tion precedent to performance upon the part of the defendant, the plaintiff must show performance, or a tender of performance, upon his part, or such facts as will operate as an excuse or waives upon the part of the defendant. Lastly, the plaintiff must prove his damages. DAMAGES: If the award is for the payment of money, the measure of damages will be the sum awarded with interest; if the award is for the performance of certain acts by the defendant, the meas- ure of damages will be the same as in other actions for the non- 300 ARBITRATION AND AWARD. performance of such acts, viz: sucli damages as may be fairly and reasonably considered as arising from tbe breacb of the con- tract, or to have been contemplated by both parties when they made the contract a^ the probable result of a breach thereof, such damages to be determined and assessed by the jury from all the evidence, under the proper instructions of the court. JOINING ORIGINAL CAUSE OF ACTION: It is not uncommon in bringing an action of assumpsit upon an award to join a count setting forth the original cause of action: that is, the cause of action upon which the award was made, so -that, in the event of a successful attack upon the validity or con- clusiveness of the award, the suit may still be maintained upon the original cause of action; and we frequently find the common counts joined with the special count upon the award. We re- gard this as good practice, and recommend it whenever the sys- tem of pleading in vogue will permit it to be done. PROCEEDINGS UPON ARBITRATION BOND: It is a common practice for one or both of the parties to an arbitration to give a bond to the other to secure the performance of the award. Where such is the case, performance may be enforced either by a suit upon the award or by suit upon the bond, in an action of debt. Upon the trial of the action upor the bond, the plaintiff should prove and offer in evidence the agreement of submission and the bond. The signatures must bo proved unless admitted. The next step is to prove a breach of the bond, either by showing that the defendant has neglected or refused to perform the award, or that he has revoked the submission, or that he has so far wilfully hindered and delayed the arbitrators as to make it impossible for them to make an award within the time limited hj the agreement of submission. If there was an award, the plaintiff must produce, prove and offer it in evidence. He must also show that the defendant was ARBITRATION AND AWARD. 301 served -wHth a copy or duplicate of the award, and refused to perform it after a demand upon him so to do; or, in the absence of a refusal, such conduct may be shown as will in law amount to a refusal. • , , The damages will not be the amount of the bond; but the plaintiff will be required to prove his damages as in other cases. PROCEEDINGS IN EQUITY: In cases where the award is for the performance or non- performance of certain acts by the defendant, or where the rem- edy by an action at law is inadequate, the award may be enforced by a bill in equity. The court will, in a proper case, decree the specific perform- ance of an award, and will, when necessary, decree an injunction. The bill should refer to the arbitration proceedings; set forth the award and the" refusal of the defendant to abide by or perform the same; the fact that the complainant has no adequate remedy at law; and pray for the relief sought and for general relief. The proof required is the same as in an action at law. The complainant must prove the agreement and award, and offer them in evidence. He must then show that the defendant has refused or neglected to perform the award, and the reasons why he believes himself entitled to the relief prayed. If the complainant is required by the award to pay money or do any act as a condition precedent to performance by the de- fendant, he must prove performance or tender upon his part, and a refusal upon the part of the defendant. In short, the complainant must show that he was entitled to the relief prayed at the time the bill was filed. DEFENSES TO THE PROCEEDING IN EQUITY: The defendant may plead or demur to the bill, or he may answer the bill and file a cross-bill. He may also avail himself of any defense going to the merits of the case, which he woiild have had in an action at law. 3()2 ARBITRATION AND AWARD. He may show that there was no valid sxibmission or award; that the arbitrators acted corruptly or fraudulently; or that the award was procured by fraud. He may show that the complainant has Jiot performed the award upon his part, where such performance was required as a condition precedent to a performance by tlie defendant; or That the complainant has an adequate remedy at law; or, That the defendant had no notice of the meetings of the arbi- tratorsj or of the award; and that no demand for performance ,was ever made upon him; or, That he has perfojined the award, or been prevented from performing it by the act or misconduct of the complainant. ENFORCING STATUTORY AWARDS: The statutes relating to statutory arbitration usually contain provisions for the enforcement of the award; and the practitioner is referred to the statutes of his own state for information upon this subject. The common practice is -for the arbitrators to make their award and file it with the court in which the proceedings are pending. The rules of practice or the statutes provide for notice to the parties, who may file objections within a certain time and for hearings upon the objections and the confirmation of the award. When the award is finally confirmed, it becomes a judgment of the court, and has the same force and effect as other judg- ments, and the court will enforce the judgment by execution or other appropriate process. Bibliographic Note. — The special works on this subject are Morse on Arbitration and Award, an American work, Russell on the Powers and Duties of an Arbitrator, and the Law of Submissions and Awards, an English work, Cooper on Referees, Hoffman on Referees, and Poor on Referees.- See also Cox's Common Law Practice, which contains ■an exhaustive discussion of the subject, and Vol. I of Myer's Federal Decisions. CHAPTER XVI. APPEALS AND WETTS OF EEROE. There is in every state a system of appeals from probate and other inferior courts to the courts next above them in import- ance, *v?hich are usually the ordinary nisi prius courts of the county; and from these courts to the Supreme or other court of final resort. It is impossible in a work of this character to treat of the formation or jurisdiction of the courts of final resort in the sev- eral states, or of the practice peculiar to each. We can only give a few hints which may be of use to the young practitioner. An appeal is, generally speaking, a proceeding whereby the entire record is brought up and reviewed by the appellate court. In the United States courts and many of the state courts this is the only method of reviewing the final order or decree of courts of chancery, the whole proceeding being regulated by statute. There are certain well-established rules relating to appeals, whicli, in the absence of contrary statutory provisions, may be said to be of general application. They are : 1. An appeal will lie only from a final order or decree which completely disposes of the case so far as any further proceedings in the court below are concerned; 2. It can only be taken in the manner, by the person or per- sons, and. at the time prescribed by statute; 3. The effect of the appeal will be to deprive the court below of -all further jurisdiction in the premises while the appeal is pending in the appellate court; but the lower court may be re- invested with jurisdiction by a remanding order from the court above. 304 APPEALS AND WRITS OF ERROR. WHAT JUDGMENTS AND DECREES ARE FINAL: A judgment or decree is said to be final when it disposes of all matters covered by the pleadings, so that the affirmance of the judgment or decree will end the suit. Craighead vs. Wilson, 18 Howard, 199. And a judgment or decree will be held to be final when it terminates the litigation between the parties on the merits of the case, leaving nothing to be done but to enforce the judgment or decree. It has been held that where a decree determines the whole law applicable to the case, and disposes of every claim presented by the pleadings, it will be deemed to be a final decree, notwith- standing it reserves leave to either party to apply for such fur- ther order as may be necessary to the due execution of the decree. French vs. Shoemaker, 12 Wall, 86. So a decree in a foreclos- ure proceeding which disposes of the whole controversy and fi:xes the rights of the parties, leaving nothing to be done but the mak- ing of the sale and applying the proceeds is a final decree. An appeal will not lie from an interlocutory decree. The difference between an interlocutory and a final decree is that in the former some further steps are required to enable the court to adjudicate and settle the rights of the parties, while, under a final decree, the party obtains his rights without a further adjudication on the merits, either by the direct opera- tion of the decree itself, or by means of proceedings of a min- isterial character in execution of it. Lewis vs. Campau, 14 Mich., 458. WHO MAY APPEAL: It is a well-settled rule that an appeal can be prosecuted only by a party to the record. It is not necessary, however, that all the parties affected adversely by the decree shall appeal, but an appeal may be prosecuted by one or more of the parties. If a party to the record dies, his heirs or personal representa- tives must be brought in and made parties to the record by proper proceedings, before they can prosecute an appeal. APPEALS AND WRITS OF ERROR. 305 WRIT OF ERROR: A writ of error is a process issued out of an appellate court, directed to an inferior court of record, directing that the record be remitted to the appellate court for the correction of errors said to exist therein. The writ of error will only lie after final judgment. There must be such a judgment or decision of the case as will finally settle and determine the rights of the parties respecting the mat- ter in controversy. WHO MAY SUE OUT THE WRIT: A writ of error may be sued out by either of the parties to the record, or by their privies in blood, representation or estate. In the absence of statutory provisions permitting it, the writ can be prosecuted only in the names of the parties to the record, as they are the only persons known to the court. WITHIN WHAT TIME MUST THE WRIT BE SUED OUT: The writ must be sued out within the time limited by statute, which is usually from one to five years after final judgment. The act of Congress establishing the Circuit Courts of Appeals provides (Sec. II.) that no appeal or writ of error by which any order, judgment or decree may be reviewed in the Circuit Courts of Appeals, shall be taken or sued out except within six months after the entry of the order, judgment or decree sought to be reviewed. The right to sue out the writ is absolutely and irredeemably lost with the expiration of the statutory period. HOW ERRORS BROUGHT UPON THE RECORD: It is a well-settled rule that the appellate court will consider only such errors as appear upon the record. It therefore be- comes important to know how errors may be preserved and brought upon the record for final review. This is usually done, 306 APPEALS AND WRITS OP ERROR. first, by proper objections and exceptions at the trial, and sec- ondly, by incorporating sncb objections and exceptions, tbe rul- ings of the court thereon, and the evidence admitted or rejected, into a bill of exceptions, which, when properly settled and signed by the court, constitutes the record which the appellate court will review. The bill of exceptions may also include objections and excep- tions relating to interlocutory proceedings where such proceed- ings were erroneous, and the plaintiff in error wishes them brought upon the record for review. It is a rule of general application that the appellate court will consider only the objections which were taken in the court below. Objections raised for the first time in the appellate court or in the assignment of errors will, as a rule, be ignored; although the courts will, of their own motion, take notice of such gross errors as work a substantial denial of justice, although no objection was made in the court below. This being the rule, it is very important that the proper foundation be laid in the court below. Counsel should object at the proper time, and see that the objection and the reason therefor is taken down. The practice in some states requires counsel to state the grounds of the objection. Where this is the rule, counsel should be careful to state all the grounds, as the court will consider only the grounds stated. Counsel should listen respectfully to the ruling of the court, and in a respectful manner take an exception. The appellate court will not consider an objection where there does not appear to have been an excep- tion. Counsel should avoid frivolous objections. The best aind most successful practitioners make comparatively few objections. It is dangerous practice to make too many objections, because it is apt to lead the jury to believe you have a poor case and that you are quibbhng and fighting upon technicalities, and thus prejudice your case. There is also danger that the court may sustain some of the objections which are not well taken, thus APPEALS AND WRITS OF ERROR. 307 laying the f oimdation for a successful attack from the other side by writ of error. The statutes usually provide that the bill of exceptions shall be drafted and submitted to the court within a very short period after judgment, often within from two to five days, but the prac- tice is for the court to extend the time to suit the reasonable con- venience of the parties. The motion for an extension of time must be made before the statutory limit has expired. The bill of exceptions should incorporate so much of the evi- dence as is necessary to enable the court to intelligently pass upon the questions presented. All the evidence let in over objections should be incorporated, unless counsel proposes to waive the objec- tion. Where the objection is that there was no evidence upon a certain point or to support a certain ruling or charge of the court, all the evidence or the substance thereof should be incor- porated in the bill of exceptions. ASSIGNMENT OF ERRORS: After preparing the bill of exceptions, the plaintiff in error should prepare an assignment of the errors relied upon as grounds for a reversal of the judgment. Ihe plaintiff in error may assign as many errors upon the record as he sees fit. Each assignment should state clearly and concisely the error complained of, but the errors assigned must be confined to points and rulings upon which exceptions were taken and brought upon the record. The court will ignore an assignment of error, not based upon an exception appearing upon the record. The practice upon assignments of error varies greatly. In some states they are simply a matter of form, while in others they are regarded as very important, and are required to be very full and complete, and to set forth all the errors complained of. The latter is the better and safer practice. In the United States Circuit Coiu-ts of Appeals the assignment of errors is a formidable affair. Eule XI provides : "The plain- 308 APPEALS AND WRITS OF ERROR. tiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assign- ment of errors, which shall set out separately and particularly ' each error asserted and intended to be urged. No writ of error or, appeal shall be allowed until si^ch assignment of errors shall have been filed. When the error alleged is to the admission or rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or instructions refused. Such assign- ment of errors shall form a part of the transcript of the record and be printed with it. When this is not done, counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned." This rule is strictly enforced in all the circuits. PRACTICE: When the bill of exceptions is complete, notice should be served upon the other side, of the time and place, when and where it will be presented to the judge for his signature, which is called settKng the bill of exceptions. It is customary to serve a copy of the bill of exceptions with the notice of settling the bill. De- fendant in error has a right to be present and object, either upon the ground that the bill of exceptions does not set forth sufiicient evidence to enable the coiirt to judge of the errors alleged, or that the evidence is not accurately set forth, or that objections and exceptions appear in the record which were not taken at the trial. He may also submit amendments or additions to the bill of exceptions and suggest that parts of the bill presented by plaintiff in error be stricken out. The court vsdll hear the par- ties and either sign the bill as presented, or order such amend- ments and changes as he may deem proper. When the bill of APPEALS AND WRITS OF ERROR. 309 exceptions is completed to his satisfaction he will sign and file it, and it then becomes a part of the record of the case. It is not customary to sue out the writ of error until after the bill of ' exceptions is settled, although the practice varies in different jurisdictions. The writ is usually directed to the court, and is served upon the clerk, who is required to make a return of the writ within a certain time therein specified. This return is made by making up the record, including the bill of exceptions and assignment of errors, and transmitting it to the appellate court. Plaintiff in error is usually required to serve notice of the writ upon the defendant in error, and where this is required, proof of service within the time prescribed by the rules of court must be filed in the appellate court. It is not customary to require the defendant in error or his attorney to enter an appearance ir. the appellate court, but the attorney of record in the court below will be recognized as the attorney in the court above, unless notice of the substitution of some other attorney has been filed and served upon the plaintiff in. error. JOINDER IN ERROR: In some jurisdictions it is reqiiired by rule of court that the defendant in error join issue by a formal instrument termed a joinder in error. This is not the general rule, however. PRINTING THE RECORD AND BRIEFS: The plaintiff in error is required to print the record, or an abstract thereof, as local rules may provide, and furnish a cer- tain number of copies to the court and opposing counsel. Both parties are required to file and serve briefs. The printing of the record and briefs and the filing and service thereof must be strictly in accordance with the rules of the appellate court. If defendant in error is not satisfied with the abstract of the record 310 APPEALS AND WRITS OF ERROR. furnished by the plaintiff in error, he may make a motion of diminution of the record, and missing portions thereof may, upon a proper showing, be brought up by certiorari. PROSECUTION OF THE APPEAL OR WRIT OF ERROR: The plaintiff in error or appellant must prosecute his writ of error or appeal with all due diligence. A failure in this respect may result in a dismissal of the proceedings, which will leave the judgment of the court below in full force and effect. Where plaintiff in error neglects to prosecute his appeal or writ of error, the appellate court -Kill allow defendant in error to docket the appeal or writ, for the purpose of having it dismissed. The appellate court usually has power to reinstate the appeal or writ of error upon sufficient cause shown. HEARING AND DECISION: The practice varies greatly in the different states in regard to the hearing of the appeal or writ of error. In some states it is a rare occurrence for counsel to make an oral argument in the appellate court, while in others, the practice is to argue orally nearly every case. Where the practice is to submit the case on briefs, counsel should be particularly careful in the preparation of the brief, although great care should be exercised in all cases, as the law- yer is often judged by his briefs. Where the case is presented by the briefs alone, a greater degree of care is necessary to see that every point relied upon is properly discussed. Where coun- sel refers to anything either in the record or abstract, the brief should contain a reference to the page or paragraph where it can be found. The brief should open with a statement of facts, setting forth carefully and accurately the nature of the case, the theory upon which it was tried, and a brief reference to the facts brought out in support of the theory contended for. There should be also a brief reference to. the principal errors assigned. There are APPEALS AND WRITS OF ERROR. 311 attorneys who are foolish enough to make false statements of the facts, or who so overdraw or distort the facts as to make their statement practically false. There are others who make dispar- aging remarks abotit the opponent or the judge who tried the case. A lawyer can make no greater mistake than in supposing that an appellate court can be influenced otherwise than unfa- vorably to him personally, by false or distorted statements of fact or disparaging personal remarks of the nature referred to. As a rule, the judges of the courts of final resort are men of great learning, high moral character and ability. From long experience they are able quickly to get at the facts of the case, and a false statement will be quickly detected even if not pointed out by counsel on the other side. The court soon loses confidence in an attorney who is guilty of such practices as we have referred to. The argument should be logical, concise and clear. Avoid long quotations from the authorities, although a short extract from an opinion directly in point is not only permissible, but is often advisable. Do not lumber up the brief with unnecessary , quotations from the evidence; but there are occasions when a brief extract from the evidence may have so much weight, if brought to support a particular line of argument, that it may be used with propriety. The argument should be confined closely to a discussion (1) of the errors assigned; (2) the argument of the opposing counsel, answering and refiiting it whenever necessary; (3) to discussing and analyzing the authorities presented by the other side; (4) a. presentation of the authorities supporting the position or theory ' contended for. Do not make the mistake of quoting from elementary works or text books. Do not quote from digests, or refer to cases upon the mere reading of the brief extract found in the digest, but examine every case carefully before putting it into your brief, and do' not use it unless it fully supports your position. It re- quires a nicely balanced judgment to weigh an opinion and de- 312 APPEALS AND WRITS OF ERROR. tennine its real bearing. How oflen do we find in the opinion of some learned court a statement like this: "We are referred by counsel to the case of A vs. B, C vs D, and E vs. F, but an examination of these cases shows that they have no bearing upon the questions before us." Imagine the feelings of the attorney when he reads the opinion, and his despair when his client calls upon him for an explanation. Before citing an authority, it should be carefully examined for the purpose of ascertaining not only whether the case sup- ports your position, but also whether there are any qualifying statements which make it- more applicable to the position con- tended for by the other side. It is not uncommon for a care- less practitioner to cite cases which, in their correct application, are against him. Do not quote from the syllabus or head note of a case without examining the opinion and assuring yourself that it supports the head note. Court reporters are not infallible, and they not infrequently fail to catch the true meaning of the opinion. Study the case and satisfy yourself of its value before referring to it in your brief. It is not the number of authorities that win cases, but the extent to which they have a favorable bearing upon the case. One or two well reasoned opinions strictly in point from courts of well established reputation for ability, will outweigh a hundred cases which simply touch the case without discussing the questions or directly passing upon them. Be very careful not to cite and rely upon repealed statutes or overruled cases. All courts are not so patient as the English judge, who, after listening all day to a very learned discussion pro and con as to the construction of a statute, remarked, after the close of the argument, "that statute has been repealed;" but your carelessness may be rebuked in language which you would prefer your client not to hear. APPEALS AND WRITS OF ERROR. 313 Make your brief as short as you can consistently, with a proper presentation of the case. Eemember you are not address- ing a jury, but that a point once ■vrell stated and discussed need not be repeated. In arguing a case orally in the appellate court, counsel should be careful to confine the discussion to the points of law involved. The facts should not be discussed, except as they are referred to as forming a foundation for the application of the principles of law contended for. Do not go to the Supreme Court and simply read your brief. Unless you have something to say in ad-di'tion to or explanation of what is in your brief, you might as well stay home. If you do go into court upon an oral argument, be prepared to answer any questions that may be put to you by members of the court. Eemember that the court must master the details of the case in order to decide it intelligently, and may not only want information upon questions of fact, but may also question coimsel upon his theory, or how he applies this or that doctrine to the facts, or how he avoids this or that conclusion of law, etc. It is the duty of counsel to so thoroughly understand his case that he will be able to make intelligent answers to such questions. The advantage of making an oral argument is derived from being present in court and presenting the case with such force and clearness as to impress it upon the minds of the judges and the opportunity of answering clearly and convincingly, questions put to counsel by the court, and of answering clearly and con- vincingly the argument made by counsel on the other side. WHAT QUESTIONS WILL BE REVIEWED BY THE COURT: As a rule, the court will not consider or pass upon pure ques- tions of fact, except so far as to determine whether there was any evidence whatever for the court below or the jury to pass upon. And the court will not reverse a judgment simply be- cause it differs as to the weight tt be given to the evidence, or because it would have decided differently upon the same evi- 314 APPEALS AND WRITS OF ERROR. dence. This is the general rule, and there may be exceptions, and the practitioner must consult the special works on practice in his own state. The court mil not draw conclusions of fact from the evidence, unless they are so inevitable as to amount to conclusions of law; nor will it question the amount or propriety of a verdict if there is any evidence to uphold it. Eelief from errors of the jury should be sought by the proper proceedings to obtain a new trial. ISTor will a verdict be disti:rbed by the appellate court where there was evidence, however slight, to justify it, and where the questions of fact were properly presented to the jury under proper instructions as to the law applicable to the case. The court will not, as a rule, review questions not raised by assignment of error. The court will not review questions of law not brought upon the record by proper exceptions. In some courts, objections not insisted upon in the brief of counsel will be considered as abandoned, and therefore will not be reviewed. The court will not review rulings and orders which are purely discretionary, unless there appears toije such an abuse of judi- cial discretion as to warrant it. - The court will review every material question of law properly brought upon the record and discussed in the brief of counsel for plaintifE in error; but where the consideration of one branch of the case or a part only of the assignments of error discloses such error as to require a reversal, the court will not, as a rule, consider the other questions raised by the assignment of errors. The courts sometimes depart from this rule where it appears that the same questions wiU. necessarily arise upon a retrial. WHEN THE JUDGMENT WILL BE AFFIRMED: It is a general rule that, where the appellate court is equally divided, the judgment of the court below will be affirmed. The court will affirm the judgment below when it appears that the errors complained of were not prejudicial, and where APPEALS AND WRITS OF ERROR. 315 it appears that upon a retrial the same result must inevitably be reached. The admission of incompetent, irrelevant or immaterial evi- dence from which no injury could result to plaintiff in error is no ground for reversal. It is harmless error to exclude evidence for the purpose of proving a fact which is afterwards proved by other evidence. Where erroneous rulings in gi'^'ing or refusing instructions to the jury work no prejudice to the legal rights of plaintiff in error they are immaterial, and the judgment below vsdll not be reversed for such error. So, a verdict will not be "reversed on the ground that the charge of the court was ambiguoiis, if it ap- pears conclusively that the jury could not have been misled by the charge. The court will affirm a judgment based upon a verdict under the direction of the court, where it appears that there was nothing to go to the jury, or that the plaintiff upon his own showing was not entitled to recover. The court will not reverse a judgment where the error com- plained of appears to have been cured by a subsequent ruling or charge of the court, or where it has been abandoned. So where evidence is erroneously excluded, but is subsequently ad- mitted, the error will be cured. PRESUMPTIONS: There are certain presumptions which will be applied in favor of the judgment below unless overcome by the record. They are: 1. Error will not be presumed, it must be shown affirmatively by the record. 2. The party alleging error must show error to his prejudice. 3. Nothing can be inferred from an ambiguous record. 4. A ruling will be presumed to be supported by evidence if it does not appear that all the evidence is contained in the record. 5. A charge is presumed to be warranted by the evidence 316 APPEALS AND WRITS OF ERROR. where the bill of exceptions does not purport to set forth all the evidence. PROCEEDINGS UPON REVERSAL: As a rule, the court will, upon reversal, remand the cause to the court below for a new trial. In some jurisdictions, however, the appellate court may, where it appears that the plaintiff can- not recover in any event upon the cause of action set forth in his declaration; or where the declaration sets forth no cause of action; or where it appears that the lower court has no jurisdiction, re- verse the judgment below and grant no new trial, which ends the case, or the court may enter a final judgment. The usual practice is, however, to order a new trial upon reversal, and the decision of the court becomes the law of the case and will be applied upon the re-trial. REHEARING: If either party is dissatisfied with the decision of a court of final resort, his only remedy (except in cases where a writ of error will lie to that court from the Supreme Court of the United States) is to apply for a re-hearing. This must be done without any unnecessary delay, by means of a petition to the court set- ting forth the reasons for making the application. Usually the petition is accompanied by a brief and argument, copies of which, together with a copy of the petition, must be served on the oppo- site party who may file a reply brief if he desires to do so. Oral argument upon a petition for a rehearing is seldom allowed. The court may direct a re-hearing upon its OAvn motion. If a re- hearing is denied, the case is finally terminated. REVIEW OF PROCEEDINGS OF STATE COURTS OF FINAL RE- SORT BY FEDERAL SUPREME COURT: Section 709 of the Eevised Statutes of the United States, as amended, provides as follows: "A final judgment or decree in any suit in the highest court of a state in which a decision of APPEALS AND WRITS OF ERROR. 317 the suit could be had, where is drawn in question the validity of a treaty or statute of, or an aiithority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed, by either party, under such constitution, treaty, statute, commis- sion, or authority, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify, or affirm the judg- ment or decree of such state court, and may, at their discretion, award execution, or remand the same to the court from which it was removed by the writ." It will be seen from the above reference that the Federal Supreme Court has no general supervisory or appellate jurisdic- tion to review proceedings of the state courts. It is only in cases which fall strictly within Sec. 709, as above quoted, that the Federal Supreme Court can review the proceedings of a state court. Mr. Justice "Woodbury, in delivering the opinion of the Supreme Court of the United States in the case of Scott et al. vs. Jones, 5 Howard, 342, 3Y4, held that the only authority and the only ground for the interference of the Federal Supreme Coiirt with 'the decisions of the state tribunals is, in substance, that they have overruled some right or defense set up under an act of congress, or treaty, or the Constitution of the United States. And in the same case the learned judge stated the rule which has now become the settled practice of the court, as follows: 318 APPEALS AND WRITS OF ERROR. "The paramount rule of construction, in all cases of this kind, ought to be, not to interfere at all unless the decision is shown to come clearly within the letter and spirit of the act of congress permitting an appeal; and, when interfering, not to overrule the judgment of the state court unless clearly erroneous." STAY OF EXECUTION PENDING THE APPEAL: In most of the states there are statutory provisions for staying the execution of the judgment pending the appeal or writ of error. In some states, the Appellate Coiirt has power upon motion and inspection of the record to issue a supersedeas, or stay; in other states the execution may be stayed by an order of the court below; but the usual practice is to give a stay bond conditioned to prosecute the appeal with effect, and in default thereof to pay the judgment, or the costs, as the statute may direct. The provisions of the statutes must be strictly complied with, both as to the time when the bond is filed, the amount, the number of sureties, and the terms of the condition. The sta- tutes are usually so full and explicit that if carefully followed the practitioner will have no difliculty. In the absence of a statutory provision to that effect, an appeal or writ of error will not operate as a stay of proceedings, but the prevailing party may proceed to collect his judgment. EXPEDIENCY OF APPEAL OR WRIT OF ERROR: There are many things that ought to be considered in deter- mining the advisability of an appeal or writ of error, and coun- sel should be careful about advising such a step until he has had an opportunity of considering the case carefully in all its aspects. It is not unusual for counsel at the moment of defeat to say things for the purpose of soothing his own feelings, as well as those of his client, which in a cooler moment he would wish unsaid. Often an appeal will be advised and the client assured 'that his final victory is as sure as daylight, when a careful consideration may satisfy counsel that the rulings complained of were right, APPEALS AND WRITS OF ERROR. 319 or that the errors complained of were not prejudicial, or that the instruction refused was covered in the general charge, or that upon the whole an appeal is not expedient. It is well, therefore, to request the client to come in in a day or two for the purpose of considering what is best to be done next. In detisrmining the advisability of an appeal or writ of error , there are many questions to be considered: 1. The amount involved. The courts of final resort abhor frivolous appeals. Do not impose upon the coiirt by bringing before it matters of little consequence, in which the costs and expenses far exceed the amount at stake. 2. The probability of a favorable resiilt. Look the matter squarely in the face and satisfy yourself whether there was such error in the rulings or charge of the court as to satisfy you with reasonable certainty that you can secure a reversal, and whether the errors have been properly brought upon the record by "excep- tion. 3. In cases where an appeal or writ of error will not lie unless the appellant give a bond to pay the judgment or satisfy the decree of the court below, if your client is execution proof, it is a serious question whether he will care to give a bond that will secure the payment of the judgment if not reversed.- 4. Another consideration shoidd be, whether the expense of the proceeding will be greatly disproportionate to the amoimt involved, and whether your client is able to stand the expense of the stenographer's transcript, printing abstracts and briefs, coun- sel fees, etc., and whether the chances of obtaining a reversal are sufficiently certain to warrant such expense upon the part of a client with small means. The poor man's rights are as secred as those of the rich, and the doors of the court room are open as wide to him as to any other man; but, unfortunately, the expenses of an appeal are the same, Avhether the appellant be rich or poor, and counsel should hesitate long, and wei^h carefully the whole case and 320 APPEALS AND WRITS OF ERROR. the chances of success before advising proceedings which may sweep awa_T the little still remaining to an- unfortunate litigant. A practitioner of experience rarely makes a positive state- ment that he can win a case, or that he is sure of tlie result, or that there is no doubt of his successfully prosecuting a writ pf error or an appeal. Clients have a habit of treasuring up in their minds these positive assurances, and if the suit is lost, deep and bitter will be the reproaches heaped upon the head of the too sanguine, but unfortunate attorney. The better practice is for the attorney, after he has satisfied himself that there is good reason to believe that an appeal or writ or error can be successfully prosecuted, to inform his client of his opinion and upon what it is based; to tell the client frankly what the expense will be in the event of failure or success, as nearly as it can be estimated; the result of success or failure as affecting his rights; and, in short, to put the client into possession of all the facts and your opinion of the law and of the chances of ultimate success, and let the client determine for himself. While an attorney should be conservative in his opinions and statements to his client, he must be exceedingly careful to say or do nothing that will give the impression of timidity or weakness on his part. " The client may be fighting the battle of his life; everything he has may be at stake, and he wants a lawyer who is bold and courageous. It is necessary, therefore, to impress him with the fact that you are not afraid to fight; express your vidllingness to fight as long and as hard as he desires, but that, as you are fighting at his expense, you want him to be fully advised of the cost and probable results, and use his own judg- ment as to when the battle shall cease. SUGGESTIONS OF CLIENTS: We do not wish to be understood as advising that counsel should be governed by his client in the management of the suit. A lawyer of experience will decline to allow his- client to dictate the policy or course of procedure of a siiit. He will listen to APPEALS AND WRITS OF ERROR. 321 all Lis suggestions and wishes, but the only safe course is for the attorney to master the details of the case, map out a course of procedure and line of policy to be pursued, be sure such course is right and the very best that can be adopted under the circumstances, and then go ahead upon the lines laid down. Changes in the details of the plan may, and probably will, be required as the case progresses and the facts develop, but these will not often require the abandonment of the original plan, i| sufficient care has been taken to get at the law and facts in the first place. It is only upon questions of the advisability of further litigation that we advise throwing a share of the responsibility upon the client. Bibliographic Note. — The chief works upon this subject are Baylie's New Trials and Appeals (New York), Elliott upon Appellate Procedure and Trial Practice Incident to Appeals, a late work, 1892, adapted to general use, Hilliard on New Trials, Powell's Appellate Proceedings, Clemens' Appellate Jurisdiction and Procedure (Kan.), Fithnan's Prac- tice in Courts of Review (Cal.), 1893, Haynes on New Trial and Appeal, adapted to the Pacific states. Vols. I and XXIX of Myer's Federal Deci- sions, Harsha's Federal Court Rules, which contains copious references to cases decided in the federal courts. See also Abbott's U. S. Court Practice, Desty's Federal Procedure, Field and Miller's Federal Practice, Thatcher's U. S. Supreme Court Practice, Curtis' Federal Practice and Procedure in Federal Appellate Courts, and Phillips' U. S. Supreme Court Practice. . CHAPTER XVII. PKACTICE m COUKTS OF EQUITY. Blackstone says that "Eqiiity, in its true and genuine mean- ing, is tlie soul and spirit of all law; positive law is construed and rational law is made by it." 3 Blackstone's Com., 429. Again lie says courts of equity are established "to detect latent frauds and concealments, which the process of courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a coUrt of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief and more adapted to the circumstances of the case than can always be obtained by the generality of the rules of the pos- itive or common law." 1 Black. Com., 92. In the United States and such states as retain the common law practice, courts of equity are invested either by constitutional or statutory provisions with all the powers and jurisdiction exer- cised by the courts of chancery of England, except as modified, diminished or enlarged by statute, so that the exact limits of the jurisdiction of the courts of a state can only be determined by an examination of the laws of that state, which is beyond the scope of this work. It may be safely asserted that in all the American states where courts of equity still exist, the courts have jurisdiction in the following cases : Discovery, Account, Accident and Mistake, Fraud — ^both positive and constructive, Partnership, Partition, Marshaling of Securities; suits to dissolve corporations, to en- force the rights of stockholders and to restrain the officers of a corporation from wasting, destroying or unlawfully disposing of the business or property of the corporation; the enforcement of trusts and the removal and appointment of trustees; judgment PRACTICE IN COURTS OF EQUITY. 323 creditors' bills, and bills in aid of execution at law; bills for the appointment of a receiver and to control or discharge receivers and control and order the funds or property in their hands; to quiet title to real estate and remove clouds therefrom; to fore- close mortgages upon lands; to compel the surrender and can- cellation of instruments; to take cognizance of bills of interplead- er; to decree the specific performance of contracts; to issue in- junctions; to perpetuate testimony; to cause the rescission and cancellation of contracts; and generally, to grant relief in all cases in which, owing to the circumstances or the uncertainties, delays or defects of the law, the complainant has no adequate remedy at law. MAXIMS: There are certain maxims and principles which may be said to be of universal application, and which should always be borne in mind by the practitioner, especially when considering the expediency of resorting to a proceeding in equity in behalf cf an injured client. 1. The first and most important maxim is that "he who seeks equity must come into court with clean hands." A court of equity will not relieve a party from the legal and natural results of his own unlawful act, nor assist him in enforcing an unconscionable contract, or a contract or right based upon fraud, oppression, duress or unconscionable practices. 2. "lie who seeks equity must do equity." The court will not relieve a party where it appears that while seeking relief he is not willing to restore the other party to the same condition or position in which he was formerly. For instance, if a bor- rower should file a bill to discharge a mortgage to secure money loaned at usurious interest, the courts would not grant relief, except upon condition that he pay to the lender what was legally due. 3. "A tortious act can never be the foundation of an equit- able right." This maxim rests upon the principle that he who seeks equity must come into court with clean hands. 324 PRACTICE IN COURTS OF EQUITY. 4. "Equity follows the law." This maxim is not literally construed, and may be said to be subject to exception. Perhaps the best interpretation of the maxim is that equity adopts and fol- lows the rules of law in all cases to which those rules may be applicable; or that equity in deahng with cases of an equitable nature, will adopt and follow the analogies furnished by the rules of law. Where a I'ule of law is direct, and governs the case with all its circumstances, or upon the particular point in question, a court of equity is as u'uch bound by it as a court of law. If the law commands or prohibits a thing to be done, equity cannot change nor evade the obligation. 1 Story Eq., 73. 5. "Where the equities of both parties are equal, and neither has the legal title, the prior equity will prevail." This maxim will prevail also where the equities of both parties are equal, and one procures the legal title with knowledge of the equity of the other party, the prior equity will still prevail. ]SI orris vs. Showerman, Walker, Mich., 206. This maxim is modified by the following: 6. "Between equal equities the law will prevail." The meaning of this maxim is that where two parties have equal equities and one of them has the legal title to the subject matter of the suit, the parties will be remitted to the courts of law. Equity will not interfere. Another reason for the rule is that where the equities are equal, the defendant is as much entitled to the protection of the court as is the complainant, and the court will not, therefore, take cognizance of the bill. Story's Eq. Juris., 75. 7. "Equality is equity," or as it is sometimes put, "Equity delighteth in equality." This maxim is applied in cases of contribution between co-contractors, sureties and others; to cases of apportionment of encumbrances among different purchasers, and to cases of marshalling and dLstributing assets. 8. "Equity looks upon that as done which ought to have been done." Story, in his work on Equity Jurisprudence, page 79, explains this maxim as follows: "The true meaning of this PRACTICE IN COURTS OF EQUITY. 325 maxim is, that equity will treat the subject matter, as to col- lateral consequences, and incidents, in the same manner, as if the final acts, contemplated by the parties, had been executed exactly as they ought to have been, not as the parties might have executed them." Again he says: "The most common cases of the application of the rule are under agreements. All agree- ments are considered as performed which are made for valuable consideration, in favor of persons entitled to insist upon their performance. They are considered as done at the time, when,- according to the tenor thereof, they ought to have been per- formed. They are also deemed to have the same consequences; so that one party, or his privies, shall not suffer thereby. Thus, money covenanted or devised, to be laid out in land, is treated as real estate in equity, and descends to the heir. And, on the other hand^ where land is contracted, or devised to be sold, the land is considered and treated as money. There are exceptions to the doctrine, where other equitable considerations intervene, or where the intent of the parties leads the other way; but these demonstrate, rather than shake the potency of the general rule." See also Bishpam's Principles of Equity, 63. 9. "Equity aids the vigilant, not those who sleep on their rights." It is the policy of the law to aid- those who are diligent in prosecuting their claims for equitable relief, and to discour- age those who sleep upon their rights; and where the com- plainant has been guilty of laches,, or where it appears that -the rights of innocent parties have intervened through the laches of the complainant, a court of equity will refuse to grant him relief. 10. "Equity looks to the intent rather than to the form." This maxim is explained as follows : "When a person covenants to do an act, and he does that which may either wholly or partially be converted to or towards a completion of the covenant he shall be presumed to have done it with that intention." Bish- pam's Principles of Equity, 64. ^ 11. "Equity acts in personam and not in rem." This maxim is not of universal application. It is true, that where a court of 326 PRACTICE IN COURTS OF EQUITY. equity once obtains jurisdiction of tlie person of a defendant it may decree relief touching property which is situated beyond the jurisdiction of the court, and enforce the performance of the decree by proceedings in attachment or contempt; but it is equally true, that where property is situated within the jurisdic- tion of a court of equity, the court may decree relief touching- such property, notwithstanding the defendant is beyond the juris- diction of the court and has only been brought in by substituted service in the manner prescribed by statute. As an example, a court of equity may decree the foreclosure of a mortgage where the mortgaged premises are situated within the jurisdiction of the court, and proceed to a sale of the premises and give a good and sufficient deed which will vest in the purchaser all of the title of the mortgagor at the time of the execution of the mort- gage, although he may not be within the jurisdiction of the court, and was only brought in by substituted service. So, the court may decree a partition of real estate, the conveyance of a trust estate, and the reconveyance of lands procured by fraud, although the defendant may be beyond the jurisdiction of the court, provided he has been properly brought in by substituted service. And the court has the power to decree that the defen- dant make such conveyance or reconveyance, or in default thereof- that such-conveyance be made by a master or commissioner,' or, when the rules of practice will permit, that a certified copy of the decree be recorded in the office of the register of deeds with the same effect as a conveyance. It would seem, therefore, that under the modem practice, courts of equity may act either in personam or in rem, as the nature of the case may reqiiire. 12. "Equity acts specifically, and not by way of compensa- tion." This maxim is based upon the theory that equity will pro- tect the rights of the complainant, either by compelling the defendant to perform some act for the benefit of the complainant, and to which he is equitably entitled, or will enjoin the defendant from performing some act which will operate to the disadvantage of the complainant, and which in equity the defendant ought not PRACTICE IN COURTS OF EQUITY. 327 to perform. Equity will decree the performance of a contract, but will not, ordinarily, award damages for the violation of a contract; but it is becoming more and more common for courts of equity, after having obtained jurisdiction of the cause for one purpose, to retain jurisdiction for all purposes connected with the subject matter of the suit, in order that complete justice may be done between the parties, without the necessity of resorting to another proceeding. Other maxims, though perhaps they may be regarded as mere refinements upon those already given, are: "A court of equity will not be made an instrument of wrong." "A court of equity will not relieve a party from the conse- quences of a risk voluntarily assumed by him." "Equity has no different rules from those of law in respect to the rights and obligations of parties to negotiable paper." "Courts of equity will not enlarge the exceptions of the statutes of frauds." "Courts of equity can not create contracts any more than courts of law." "Where two or more persons have a common interest in a security, equity will not allow one to appropriate it exclusively to himself or to impair its worth to the others." Community of interest involves mutual obligation. Jackson vs. Ludeling, 21 Wall, 616. After a verdict at law, it is, in general, too late to apply to ■ equity for a discovery of matters of defense. There must be* a clear case of accident, surprise or fraud before equity will inter- fere. Brown, vs. Swann, 10 Pet., U. S., 497. A court of equity will not entertain a bill where the title which the complainant seeks to enforce is merely a legal one_.. and presents no special ground for equitable relief. Harvey vs. Tyler, 2 Wall, 328. There can not be concurrent jurisdiction at law and in equity where the right and the remedy are the same; but equity may proceed in aid of the remedy at law, by incidental or auxiliary 328 i>RACTICB IN COURTS OP EQUITY. relief, thougli not with final relief if the remedy at law is com- plete. There are many other valuable rules laid down in the books, but those above set forth are the most important. They should be carefully studied and the principles fixed firmly in the mind of the practitioner. PROCEEDINGS IN EQUITY: Proceedings in equity are either by bill or petition, usually by the former. At common law a bill in equity was a formidable document, the drafting of which was looked upon as a science, but the modern bill in equity is a comparatively simple instru- ment. The statutes of the several states in which law and equity are still administered as distinct branches of legal procedure now contain provisions which lop off mjiny of the merely formal parts of the bill and simplify the procedure in many ways. For in- stance, at common law a bill in equity which did not contain a confederating clause was fatally defective on demurrer. Now, a bill containing a confederating clause is very seldom seen. The law student carefully and laboriously commits to memory the names of the parts of a bill in equity and the order in which they come, only to learn later that the old forms have, in a great measure, passed away, and that the rules relating to the framing of a bill are comparatively few and simple. Still it is necessary that these rules should be thoroughly understood. FRAME OF A BILL IN EQUITY: The first requisite is the venue, that is, the state and county and the full title of the court in which the proceedings are to be brought; then follows the address which is usually to the court, or to the judge or judges of the court in which the suit is brought. PRACTICE IN COURTS OF EQUITY. 329 THE ADDRESS: Xext follows the address, which is usually as follows: To the Honorable, the Judge (or Judges) of the Court, for the County of , in Chancery (or sitting in Chancery) ; or in some jurisdictions the address is "To the Court, for the County of in Chancery." In the Circuit Courts of the United States the form of the address is as follows : To the Judges of the Circuit Court of the United States, for the District of THE INTRODUCTION, OR COMMENCEMENT: Following' the address comes the introduction or commence- ment, of which the following are forms which may be used as occasion may require : Form used in Circuit Courts of the United States : A. B., of and a citizen of the State of , brings this, his bill of com,plaint, against C. D., .of , and a citizen of the State of , and E. F., of , and a citizen of the State of , and thereupon your orator complains and says, that, etc. (General Equity Rules U. S. Circuit Courts, Rule 20.) A form used in some of the eastern states is as follows: Humbly complaining, showeth unto your honor, the plaintiff (or complainant), A. B., of in the County of , State of , that, etc. The following is a very common form and commends itself by reason of its brevity: Your orator, A. B., of , respectfully represents unto the Court, that. etc. Where a suit is brought by an infant, by his next friend, the following may be used: Your orator, A. B., of an infant under the age ot t\vcnty-one years, by C. D., his next friend, respectfully represents, etc. 330 PRACTICE IN COURTS OF EQUITY. Where the suit is brought by or in behalf of a lunatic, the following form is appropriate: Your orator, A. B., a lunatic (or a person of unsound mind), by C. D., his next friend (or if a guardian has been appointed, by C. D., his guardian — of the property and estates or — of the person and estate duly appointed and qualified) or, if instead of a guardian a committee has been appointed (by C. D. and B. F., committee of the property and estate, or of the person and property of said A. B.), respectfully rep- resent unto the Court, that, etc. Where the complainant sues on behalf of himself and others, one of the following forms or a modification thereof may be used: Your orator, A. B., of etc., on behalf of himself and of all the other unsecured creditors of C. D., of , who shall come in and be made parties complainant and contribute to the expenses of this suit, respectfully represents unto the Court, etc. Or, Your orator, A. B., of on behalf of himself and all the other stockholders, except the defendants herein, of The C. D. Company, a corporation organized and existing under 'thei laws of , who shall come in and be made parties complainant and contribute to the expenses of this suit, respectfully represents unto the Court, etc. THE STATING PART: Following the introduction comes the stating part, which is simply a plain, logical and concise statement of the complain- ant's case, and of the facts and circumstances upon which he bases his right to relief. Every material point upon which com- plainant proposes to offer evidence must be set forth in the bill. The facts must be stated fully. We do not mean by this that all the minute details must be stated; but that all the material facts necessary to complete the chain of events upon which the complainant bases his right to relief must be stated. This is nec- essary for two reasons; first, because the omission of a material fact or connecting link in the case will render the bill demurra- ble; and second, because even if the defendant does not demur it will be impossible for the complainant to make out his case because the court will not, admit evidence to support facts not PRACTICE IN COURTS OF EQUITY. 331 set forth in the bill. The pleader should know before he begins to draft the bill, what facts are necessary to make out and sup- port complainant's case, what evidence is accessible, and of what the evidence consists; that is, whether the evidence is documen- tary or whether it consists of a knowledge of facts by witnesses. If the evidence or any part thereof is documentary, the papers should be inspected in order that they may be properly incor- porated or referred to in the bill. In the United States Circuit Courts it is provided by eqiiity rule 21 that the complainant may, in the narrative or stating part of the bill, state and avoid by counter-averments, at his option, any matter or thing which he supposes will be insisted upon by the defendant, by way of defense or excuse to the case made by the plaintiff for relief. This is permitted in place of what is commonly called the "charg- ing part" of the bill, which, by the same rule, may be omitted. This practice is now followed in many of the state courts, and is preferable to the old practice on account of its brevity. The bill must state a case entitling tho complainant to equitable re- lief. If not, it will be demurrable. The absence of a state- ment of grounds of equitable relief will be fatal, but may be cured by amendment if the facts warrant it. The material facts relied upon must be so definitely stated that the defendant can join issue thereon. Where there is any duty or obligation resting upon the complainant, which he is required to perform before his right to relief accrues, the bill must allege performance, or a tender of performance, and a refusal by the defendant to accept or permit such performance. MULTIFARIOUSNESS : The general rule in equity is that every several grievance must be remedied by a several proceeding. The only rcognized exceptions to this rule (and these are considerably qualified) are instances where there is a single right asserted ou one side which affects all the .parties on the other side in the same way, or a single 332 PRACTICE IN COURTS OF EQUITY. wrong wMch falls on them all simultaneously and together. Adams Equity, 56, 309, 310; Daniels' Chancery Pleadings and Practice, 334, 335, and notes; Winslow vs. Jenness, 64 Mich., 84. In other words, the rules of equity pleading will not permit two or more distinct subjects of relief arising out of separate transactions and at' different times to be joined in one proceed- ing; but it has been held that two causes of action arising out ■of the same transaction, in whicli all of the parties plaintiff and defendant are interested under the same claim of right may be joined without rendering the bill multifarious. A cause of action in which all the parties complainant and defendant are interested can not be joined with one in which a part only of the parties are interested ; nor can a cause of action in which one of the parties is interested in his private capacity be joined with one in which he is only interested as agent, attorney, executor or administrator. SCANDAL AND IMPERTINENCE: Care should be exercised in drafting, a bill to see that it con- tains no statements or allegations that might be subject to objec- tion upon the ground of scandal or impertinence. Scandal con- sists in the allegation of anything which is unbecoming the dig- nity of the court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause. 1. Daniels' Ch. PI. and Pr., 348. But it is a settled rule that, however unbecoming or -wrong the acts complained of may be, nothing is scandalotis which is relevant. Impertinence in equity practice applies to matters of surplus- age; to matters unnecessarily stated, to redundancy and the state- ment of immaterial, irrelevant or inconsistent matter. The proper proceeding to purge the bill of scandalous and impertinent matter was formerly by a motion for an order referring the bill to a master to report whether it was scandalous or impertinent, and this practice still prevails in some states; in others, the court will determine the question upon inspection, and strike out the PRACTICE IN COURTS OF EQUITY. 333 objectionable matter on motion, or will award costs to the oppo- site party. A reference to ascertain whether a bill is scandalous or imper- tinent will stay all proceedings pending the reference. The prac- tice in the Circuit Courts of the United States upon exceptions to a bill for scandal and impertinence is regulated by general equity rules 26 and 27, which provide for a reference to a master and a report by him. No order mil be entered referring the bill to a master, unless exceptions are taken in writing and signed by counsel, describing the parts considered to be scandalous or impertinent. CONFEDERATING AND CHARGING PARTS, AND JURISDICTIONAL CLAUSE: These parts, formerly indispensable in a bill in equity, are seldom used by the modern chancery pleader. General equity rule 21, of the United States Circuit Courts, provides that "the plaintiff in his bill shall be at liberty to omit, at his option, the part which is usually called the common confederacy clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiff; also what is commonly called the charg- ing part of the bill, setting forth the matters or excuses, which the defendant is supposed to intend to set up by way of defense to the bill; also what is commonly called the jurisdictional clause of the bill that the acts complained of are contrary to equity, and that the plaintiff is without any remedy at law ; and the bill shall not be demurrable therefor." This is now the rule in most of the courts of equity, made such either by statutory pro- visions, rule of court, or custom. • There may be cases in which the use of the confederating part may be advisable, and when this is so there can be no objec- tion to its use, but as a formal part of the pleading, it is no longer a matter of necessity. 334 PRACTICE IN COURTS OF EQUITY. THE INTERROGATING PART: The custom of attacMng interrogatories to the bill to be answered by the defendant is now to a great extent abandoned. There are cases where they may be necessary, and they are usually permitted; and where this is the case the defendant will be compelled to answer such as are material or relevant. Under the modern practice the main use of the interrogating part is to pray that the defendants and each of them may be required to answer all and singular the allegations contained in the bill. This prayer is that they not only answer as to their personal knowl- edge, but also according to the best of their knowledge, informa- tion or belief. The answer may be required to be under oath, or the oath may be waived. PRAYER FOR RELIEF: Great care should be exercised in drafting the prayer for re- lief to see that it covers all the grounds of relief to which the complainant is entitled under the allegations of the bill, and that the relief prayed is consistent with the case stated. If the relief prayed is inconsistent with the case made by the bill, the complainant can have no relief in the absence of the prayer for general relief. As to the extent to which the courts of your own state will grant relief under the prayer for general relief, consult the statutes and the decisions of your court of final resort. If an injunction is wanted, the better practice is to ask for it under the prayer for special rehef . The prayer for general relief should always accompany the prayer for special relief. The following are some of the most common forms of prayers for relief: Form GO. FOR AN ACCOUNTING. And that an account may be taken by and under the direction and decree of this Honorable Court of all and singular, the transactions, and dealings between your orator and the said defendant, etc., etc. And that the defendant may be decreed to pay to your orator all such sums of moneys found to be due and owing to him upon such account- ing, your orator hereby offering to pay to the said defendant whatever sum, if anything, may be found to be due to him upon such accounting, etc., etc. (Prayer for general relief.) PRACTICE IN COURTS OF EQUITY. 333 Form 61. PRAYER FOR AN INJUNCTION. And that the said defendant and his solicitors, counselors, attor- neys, officers, agents or servants may be restrained by an injunction issuing out of this Court from (here set forth fully and carefully all the acts to which you wish the injunction to apply. Be sure the lan- guage is definite enough, so as not to be justly capable of misconstruc- tion. Be sure it iS broad enough to prevent all the acts sought to be restrained). If the prayer is for a preliminary or temporary injunc- tion, add. "Until the further order of the Court, or until the final termination of this suit." Form 62. , PRATER FOR A SPECIFIC PERFORMANCE. And that the said defendant may specifically perform the said agreement so made and entered into by him as aforesaid with your orator, your orator being ready and willing and hereby offering spe- ■clfically to perform the said agreement in all things, on his part and behalf. Form 63. PRATER FOR THE CANCELLATION OR REFORMATION OF A WRIT- TEN INSTRUMENT. And that the defendant may be decreed to deliver up the said ■agreement (or deed, or other instrument) of the day of to your orator to be cancelled, and to deliver up to your orator the bond executed by your orator as aforesaid, and that the said agreement and bond be cancelled and declared to be void and of no effect; or, if the Court shall be of opinion that the said agreement ought not to be set aside or cancelled, then that the same may be reformed and rectified by omitting the covenant in said agreement relating to, etc., etc (or by inserting a covenant in relation to, etc., •etc., as the case may be). Form 64. PRATER OF INTERPLEADER. That the defendants and each of them may be decreed to inter- plead and settle and adjust between themselves their rights or claims to or in the money, due and payable upon said contract, bond, or obli- gation, your orator being ready and willing, and hereby offering to pay the moneys due and payable under the said contract, bond or X)bligation to such of the defendants as this Honorable Court may direct and decree, as being entitled thereto; and that the defendants and each of them may be restrained by the order and injunction of this Honorable Court from prosecuting or commencing any suit or suits, actions or legal proceedings of any kind against, your orator for -the moneys due or to become due or payable under said contract, bond -or obligation, or any part thereof. 336 PRACTICE IN COURTS OF EQUITY. PRAYER FOR PROCESS: The bill should pray for the process required, which may be either a subpoena, au injunction, a restraining order, or a writ of ne exeat, or all or any of them. Under the practice in some states a subpoena will issue as of course, but an injunction or restraining order wilL issue only under a spefcial prayer therefor, while a ne exeat will issue only under a special prayer and upon cause shown. The following is the usual form of the prayer for process :- Form 65. PRAYER FOR SUBPOENA. May it please your Honors (or the Court) to grant unto your orator a writ of subpoena to be directed to the said C. D., etc. (defendant or defendants), thereby commanding them and leach of them (or thereby commanding him), at a certain time, and under a certain penalty therein to be limited, personally to appear before this Honorable Court and then and there full, true, direct and perfect answer make to all and singular the premises, and further to stand to, perform, and abide such further order, direction and decree therein as to your Honors (or, as to this Honorable Court) shall seem meet (or, as shall seem agreeable to equity and good conscience). If an injunction is desired, add the following: Form 66. PRATER FOR AN INJUNCTION. And may it please the Court (or your Honors) to grant unto your orator a writ of injunction, to be directed to the said defendant, restraining him, etc., (here insert the acts and things sought to be enjoined, fully and carefully, following the language of the prayer for relief) until the further order of the court (or until the final termination of this suit). NUMBERING -PARAGRAPHS: In some states the rules of court require that the bill be divided into paragraphs and numbered consecutively. Whether required by rule or not, this is an admirable practice. It en- ables the pleader to make his statements more clear cut and con- cise, and enables 'the defendant to answer more clearly and PRACTICE IN COURTS OF EQUITY. 337 definitely by answering each paragraph separately. Each para- graph should contain but one single statement or allegation. The following is an approved modern form of a bill in equity, divided as above suggested. We have used a Michigan form for convenience, but it can be modified to conform to the laws and practive of any state. For forms of bills generally see 3 Daniel's Chancery Practice. Form 67. BILL, FOR FORECLOSURE OF MORTGAGE. State of To the Circuit Court lor the County of , in Chancery. Your orator, A. B., of , respectfully shows unto the Court: 1. That on or about the day of in the year of our Lord one thousand eight hundred and , C. D., of , did make and execute, under his hand, and deliver to your orator his certain promissory note for $ , as in and by said promissory note now in the possession of your orator and ready to be produced and proved as this Honorable Court shall direct, and to which, when produced and proved, your orator for greater cer- tainty prays leave to refer, will more fully and at large appear. 2. And your orator further shows unto the Court that the said C. D., on the day of , in the year of our Lord one thousand eight hundred and , in order to secure to your orator the payment of the said sum of money mentioned in said promissory note, together with the interest thereon, in manner aforesaid, did execute under his hand and seal, acknowledge and deliver to your orator a certain Indenture of Mortgage, bearing date the day and year last aforesaid, and thereby for the consideration of dollars, lawful money of the Uliited States, to him in hand paid, the receipt whereof was by the said Indenture of Mort- gage duly confessed and acknowledged, the said C. D., the party of the first part, in and to said Indenture of Mortgage, did grant, bargain, sell, release, enfeoff and confirm unto your orator the party of the second part, in the said indenture, and to his heirs, and assigns for- ever, all that certain piece or parcel of land situated in the of , County of , and State of , and described as follows, viz., (here describe the property accurately and carefully as described In the mortgage). 3. Said Indenture of Mortgage was upon the express condition that the same shall be null and void if the said party of the first 338 PRACTICE IN COURTS OP EQUITY. part, or his heirs, executors or administrators, should and did well and truly pay, or cause to be paid, to said party of the second part, his heirs, executors, administrators or assigns, the said sum of money and interest, according to the terms and conditions of said promissory note, as in and by said mortgage, now in the possession of your orator, ready to be produced and proved as this Court shall direct, reference being had thereto, will more fully appear. 4 The execution of said mortgage was, on the day of , A. D. 18 , duly acknowledged by the said C. D. before E. F., a Notary Public, duly authorized, to take such acknowl- edgment, the certificate of such acknowledgment being duly endorsed on said mortgage. 5. And your orator further shows unto the Court that afterwards, to-wit: on the day of - in the year of our Lord one thousand eight hundred and , the said Indenture of Mortgage, together with the certificate of acknowledgment thereof, was in due form of law recorded in the ofiice of the Register of Deeds, in the County of in Liber of Mortgages, on pages 6. And your orator further shows unto the Court, that there is now due and unpaid on the said promissory note and said Indenture of Mortgage the sum of ? , and in said mortgage it was expressly agreed that as often as any proceedings be taken to foreclose said mortgage, said party of the first part should pay to your orator fifty dollars as a reasonable solicitor's fee, over and above all legal costs, and your orator claims that by the filing of this bill the same has now become due and payable to your orator in addition to the sum above mentioned. 7. Your orator further shows that no proceedings at law have been had to recover the debt secured by the said promissory note and mortgage, or any part thereof. 8. And your orator further shows unto the Court that he has caused examination to be made of the Record of Deeds- and Mortgages In the oflSce of the Register of the County of , where said mortgaged premises are situated, and from which said several exam- inations it appears, and your orator expressly charges the fact, that B. F. (or as the case may be) has or claims to have some right and interest in the premises described in the said Indenture of Mortgage, or in some part or parts thereof, as subsequent purchaser or incum- brancer or otherwise. (It is necessary in some States to set forth the nature of such interests. When this is necessary, care should be exercised to see that it is done accurately.) 9. Your orator, therefore, asks the aid of this Court in the premises, and that the above named C. D. and E. F., the defendants in this suit, may appear and answer this your orator's bill, without oath PRACTICE IN COURTS OF EQUITY. 339 (the answer on oath being hereby expressly waived), and that they may come to a fair and just account, touching the amount due to your orator upon the said promissory note and Indenture of Mortgage hereinbefore mentioned and set forth. 10. And that they, or some of them, may be decreed to pay forth with to your orator the amount which shall be found to be due to him thereon, and the interest thereon, together with your orator's reasonable costs and charges in this behalf sustained. 11. And in default thereof, that the defendants herein named and each of them, and all persons claiming or to claim from or under them, may be foreclosed and barred of and from all equity of redemp- tion and claim of, in and to said mortgaged premises, and every part and parcel thereof, with the appurtenances. 12. And that all and singular the said mortgaged premises, with the appurtenances, may be sold by the order and decree and under the direction of this Court, and the moneys arising from the sale thereof, so far as shall be necessary, or So far as the same shall extend, be applied towards satisfying to your orator the full amount of the moneys so as aforesaid secured in and by the said promissory note and indenture of mortgage, both principal and interest, if the whole shall then be due and unpaid. 13. Or if the whole amount shall not be then due, that such part of the said mortgaged premises as may be necessary to discharge the prin- cipal and, interest moneys then found to be due to him thereon and unpaid, together with your orator's reasonable costs and charges, may be sold as aforesaid, and the proceeds be applied thereto as aforesaid. 14. Or in case it shall appear to this court that the said mortgaged, premises are so situated that the sale of the whole will be most bene- ficial to the parties concerned, that then the whole of the said mort- gaged premises, with the appurtenances, may be sold as aforesaid, and the proceeds of such sale be applied as well to the discharge of the prin- cipal and interest moneys then due, and your orator's costs and charges, as towards the whole or residue of the amount secured by the said promissory note and indenture of mortgage, and not due and payable at the time of such sale — or that this court may direct the balance of the proceeds of such sale, after paying the sum due upon the said promis- sory note and indenture of mortgage, with your orator's costs and charges; to be put out. at interest under the direction of this court, for the benefit of your orator to be paid to him as the remainder of said prin- cipal and interest money shall become due and payable, and the surplus, if any, for the benefit of the person or persons who may be entitled thereto. 15. And that the said .defendants and all persons claiming and to claim under them or either of them, or who have come into possession of the said mortgaged premises, or any part or portion thereof during 340 PRACTICE IN COURTS OF EQUITY. the pendency of this suit, deliver and yield up possession thereof to your orator or to whomsoever shall become the purchaser or purchasers thereof at the said sale, on his, her, or their producing to him or them, or to the person or persons in possession of the said mortgaged premises, • or of any part thereof, the deed or deeds executed by the commissioner pursuant to such sale as aforesaid, and a certified copy of the order con- firming the report of such sale, after such order has become absolute. 16. And that the said C. D. pay to your orator any balance that shall remain due to your orator of the principal and interest of said promissory note and indenture of mortgage, if the sale of said mort- gaged premises as aforesaid fails to produce sufficient to pay the whole of said mortgage debt, and the costs of this suit, and that, in such case, your orator have execution for the collection of such balance, and the costs thereon, according to the rules and practice of this court. 17. And that your orator may have such other relief or such fur- ther relief in the premises as shall be agreeable to equity and good conscience. 18. May it please the court, the premises being considered, to grant to your orator the writ of subpoena to be issued out of and under the seal of this court, to be directed to the said C. D. and E. F., defendants herein, and thereby commanding them, and each of them, on a certain day and under a certain penalty to be therein Inserted, personally to be and appear before this court, then and there to answer all and sin- gular the said premises, and to stand to, abide and perform such order and decree therein as this court shall make therein, and as shall be agreeable to equity and good conscience. And your orator will ever pray, etc. The prayer for relief may be advantageously divided into paragraphs numbered consecutively or designated by letters, as A, B, etc.; and this practice is recommended in cases where there are several distinct matters of relief prayed. The following is the common form of oath to a bill in equity: Form 68. State of , County of , ss. On this day of A. D. 18 , before me personally appeared A. B., of (or the above named A. B.), and made oath that he has read (or heard read) the above bill of com- plaint by him subscribed and knows the contents thereof, and that the same is true of his own knowledge, except as to matters which are therein stated to be on his information and belief, and as to those matters he believes it to be true. PRACTICE IN COURTS OF EQUITY. 34^ Bills of interpleader must always be accorapanied by an affi- davit denying collusion. The following is tbe form commonly uSed: Form 69. State of , County of ss. A. B., the above named complainant, makes oath and says that he has exhibited his bill of interpleader against the defendants in this cause without any fraud or collusion between him and the said defend- ants, or any or either of them, and that he is not indemnified by the said defendants, or by any or either of them, and saith that he has exhibited his said bill with no other intent but to avoid being sued or molested by the said defendants, who are proceeding, or threatening to proceed at law against him for the recovery of the money in the said bill mentioned. Subscribed and sworn to, etc. A. B. Where the bill of interpleader is filed by a corporation, or by the officers thereof, the affidavit should state that, to the best of the knowledge and. belief of the deponent, the said com- pany does not, neither do any of the members or officers thereof, collude vidth the defendants, or either of them, but that the bill is filed on behalf of the said company of its own accord for relief, etc. PARTIES TO THE BILL: It is a universal rule that only ttiose vs'ill be bound by the decree who were parties to the proceedings, either as complainants, or as defendants properly brought into court upon personal service of the subpoena, or by publication or substituted service in the manner prescribed by law. It is necessary, therefore, that all persons whose rights are or may be affected by the proceedings, or against whom any relief is desired, should be made parties to the bill.-'- It is not necessary that all those whose interests are identical should be complain- iThe general rule as to who are necessary parties to a bill in equity are very fully and clearly laid down by Mr. Justice Story, in West vs. Randall, 2 Mason, 181, 190; see also note to Wormley vs. Wormley, 8 Wheaton, 450. 343 PRACTICE IN COURTS OF EQUITY. ants, but if any of the necessary parties decline to become parties complainant tbey may be joined as defendants. So, where there are infants, they may be made defendants, although their inter- ests are identical with those of the complainant. The main thing is to get all the parties in interest into the suit as parties. The parties should be described by their proper names, if known; if not, they may be described by fictitious names, and the description will be sufficient if it satisfactorily appears that the right party was served with process. Unknown heirs must be described in the manner prescribed by statute. WANT OF PROPER PARTIES: Misjoinder of parties may be taken advantage of either by demurrer or by motion. Demurrer is the usual practice; but the court will allow the complainant to amend by bringing in the parties omitted. If neither party objects to the want of a neces- sary party, the court may, of its own motion, require the com- plainant to bring him in. UNNECESSARY PARTIES: It is not necessary, as a rule, to make parties of persons who have no interest in the subject matter of the suit, or whose rights cannot be affected by the proceedings or decree; but there are cases where parties are necessarily joined after having parted with their interest, as merely nominal parties. A party improperly joined will recover his costs. PROCEEDINGS TO ENFORCE APPEARANCE: The first process is the subpcena, which should be properly served in the manner prescribed by law upon all the defendants who can be found. If the defendants cannot all be served before the return day, an alias will usually issue as of course. If the officer charged with the service of the subpoena becomes satisfied after diligent search that the defendants, or any of them, cannot be found within the territory in which he has PRACTICE IN COURTS OF EQUITY. 343 autliority to make service, he should promptly make his retum stating the facts. If the defendant or defendants are beyond the jurisdiction of the court, the statutes usually provide in certain cases for substituted service by publication. This proceeding being purely statutory, the provisions of the statute must be strictly complied with in every particular, and due proof of such service must be made and filed, so that the record will be complete. If the defendants, or any of them, after proper service, either personally or by publication, refuse or neglect to appear and defend the suit, their default may be entered and the bill taken pro conf esso as to them. If the bill is filed for a discovery, or if the complainant for any reason has a legal right to a full answer to the allegations of the bill, or the interrogatories annexed thereto, the court will, upon" a proper proceeding, compel the defendant to appear and answer. ATTACHMENT: The practice varies materially in different jurisdictions, but, as a rule, the proceeding to compel the defendant to appear and answer is by attachment. This is a writ in the nature of an arrest, directed to the sheriff, commanding him to attach the body of the defendant and bring him before the court. This writ is issued by the judge only, or upon his order, upon a proper motion supported by affidavits, which must set forth the grounds upon which the motion is based. If the motion is granted, an order will be entered declaring the defendant to be in contempt and ordering the attachment, under which the sheriff will bring in the defendant if he can be found, and the court will order him to enter his appearance and answer the bill forthwith, and may commit him until the order is complied with, and will also require him to pay the costs of the attachment pro- ceedings. If the defendant cannot be found, the court will issue a writ of sequestration, or a writ of assistance to enforce delivery of possession, as the case may require. 344 PRACTICE IN COURTS OF EQUITY. THE APPEARANCE: If the defendant wishes to defend the suit, he must have his appearance entered within the time limited by the subpoena or published notice. The rule in the United States Circuit Courts requires the defendant to enter his appearance upon the rule day to which the subpoena is made returnable, provided he has been served with the process twenty days before that day; otherwise his appearance day shall be the next rule day suc- ceeding the rule day when the process is returnable. Eq. rule 17. Eule days in the United States Courts are the first Mondays in each month. General equity rule 18 provides that it shall be the duty of the defendant, unless the time shall be otherwise enlarged for cause 'shown, to file his plea, demurrer, or answer to the bill in the clerk's ofiice on the rule day next succeeding that of enter- ing his appearance, in default of which his default may be entered, the bill taken pro confesso, and the cause will then pro- ceed ex parte and a decree be entered. This practice is followed with more or less modification in many of the states. It is the duty of a solicitor upon being retained, to ascer- tain the day upon which the appearance of his client must be entered, and if a defense is to be made, or the nature of the bill is such as to make him liable to attachment, to see that his appear- ance is entered at the proper time. His next duty is to see that the plea, demurrer or answer is filed within the time prescribed by rule. One of the most important points in equity practice, is to see that< all pleadings are filed and all orders entered at the proper time. A failure in this respect, may jeopardize the rights of your client and cause great inconvenience and expense. PRACTICE IN COURTS OF EQUITY. 345 SECURITY FOR COSTS: The court will, upon motion, require complainant to give security for costs wkere he is a non-resident, bankrupt or insol- vent; or where the suit is prosecuted by an infant or lunatic by guardian or next friend. Counsel should see that security is given in proper cases. PREPARING THE DEFENCE: Defendant's solicitor should, before proceeding further, make a careful study of the bill of complaint, and ascertain : 1. Whether the complainant or complainants, or either of them, are under disability such as ' coverture, infancy, lunacy, etc., so as not to be able to maintain the suit. 2. Whether all the necessary parties have been brought in. 3. Whether the bill states a case which entitles the com- plainant to rehef in a court of equity. 4. Whether the suit is barred by the statute of limitations or statute of frauds. 5. Whether there is any other defect of a technical nature apparent upon the face of the bill. Counsel should also ascertain from his client all the facts and circumstances of the transactions set forth in the bill. He should be careful to ascertain whether there have been any former suits or actions based upon the subject matter of the bill; whether the suit is barred by a former decree or judg- ment; whether there is another suit pending involving the same rights or to enforce the same liabilities. If there are records or other documentary evidence they should be inspected. If there are witnesses to the transaction, they should be interviewed for the purpose of ascertaining what evidence will be forthcom- ing to sustain the client's defense. All these matters should be attended to and the case thor- oughly studied in all its aspects, before deciding upon the line of defense to be pursued. The mere making of a technical defense will not involve much thought, but the careful lawyer 346 PRACTICE IN COURTS OF EQUITY. will look over the whole ground and plan all his moves before he takes the first step. The pleadings to be considered by the defendant are the demurrer, plea, answer, cross-bill and disclaimer. THE DEMURRER: Where is appears upon the face of the bill that the complain- ant is not entitled to any relief upon the case made by his bill, the proper course is to demur. We cannot go into a discussion of the doctrine of demurrer, and must refer our readers to the works on equity practice and pleading, but will note a few of the most common grounds of demurrer. Demurrer will lie where the bill upon its face shows a want of proper parties, or a misjoinder of parties; or that the bill is brought by an infant or lunatic in his proper person, and not by his next friend, guardian or committee, or by a married woman without joining her husband (in states where a married woman's disabilities have not been removed by statute.) Where the bill shows a want of title or interest in the subject matter of the suit tipon the part of the complainant, or any claim or interest in the defendant, a demurrer will lie; so, where the bill shows upon its face that the complainant has an adequate remedy at law, except in cases of trusts, frauds and cases where, although there is a remedy at law, the remedy in equity is more far-reaching or appropriate. Multifariousness is also a ground of demurrer, as is also want of jurisdiction and the bar of the statute of limitations when apparent upon the face of the bill. GENERAL AND SPECIAL DEMURRERS: A general demurrer assigns no ground for demurrer except the usual formal statement that the complainant has not in his bill made or stated such a case as entitles him in a court of equity to any relief against the defendant, etc. A special demurrer differs from a general demurrer in that it points out specifically the objections to the bill of which the PRACTICE IN COURTS OF EQUITY. 347 pleader desires to take advantage. Where the objection is to defects in the bill itself, rather than to the case made thereby, a special demurrer is necessary. A defendant is not confined to one objection, but he may, by- special demurrer, point out as many causes as occur to him. The objections need not go to the entire bill, but grounds of demurrer to a part of the bill only may be united with grounds that go to the whole bill. The special demurrers must be to separate and distinct parts of the bill, and each must be set forth in a separate paragraph, and each cause of demurrer must be stated briefly and to the point. Demurrers must be based wholly upon the facts as they appear upon the face of the bill. A demurrer which intro= duces new facts is called a speaking demurrer, and will be stricken from the files upon motion. It is a universal rule that a demurrer admits everything that is well pleaded; biit this rule applies only to the hearing upon the demurrer. The facts stated are not admitted for any other purpose, but will have to be proved at the hearing the same as if no demurrer had been filed. A defendant may demur to a part of the bill and answer the remainder, but great care must be observed to see that the answer does not cover the parts of the bill covered by the demur- rer, as by so doing the demurrer v^'ill be held to be overruled as to the part covered by the answer. CERTIFICATE OF COUNSEL: In the United States courts it is provided by equity rule 31 that no demurrer shall be allowed to be filed unless upon a cer- tificate of counsel that, in his opinion, it is well founded in point of law, and supported by the affidavit of the defendant that it ia not interposed for delay. The fallowing form is used: 348 PRACTICE IN COURTS OF EQUITY. Form 70. (This should follow Immediately below the signature of counsel at the foot of the demurrer:) I do hereby certify that, in my opinion, the foregoing demurrer of defendant (or one of the defendants), to the bill o^com- T)laint of A. B., complainant, is well founded in law, and proper to be filed in the above cause. E. F Solicitor for Defendant. Form of afSdavit required by equity rule 31 in the Circuit -Courts of the United States, in support of a demurrer or plea : Form 71. (Title of Court and Cause — unless it follows the certificate of counsel.) United States of America, District of , ss. , the defendant, on oath deposes and says that he has (read or heard read) the foregoing demurrer to the bill of complaint of A. B., in this cause, and that the same is not interposed for the purpose of delaying said suit or any of the proceedings therein. Subscribed and sworn to, etc. Title of Magistrate. The following is the usual form of a general demurrer : Form 72. (Title and Commencement.) The demurrer of defendant (or one of the defend- ants) , or the several demurrer of , one of the defend- ants, or the joint and several demurrer of C. D. and E. F., the defendants (or two of the defendants), to the bill of complaint of A. B., the above named complainant. This defendant, by protestation, not confessing all or any of the matters and things in the plaintiff's bill of complaint contained to be true in manner and form as the same are therein set forth and alleged, doth demur to said bill, and for cause of demurrer showeth that the complainant hath not in and by the said bill made or stated such a case as entitles him in a court of equity, to any relief against him as to the matters contained in said bill or any of such matters. Wherefore, and for divers other good causes of demurrer appearing in the said bill, the defendant doth demur thereto, and humbly demands the judgment of this court whether he shall be compelled to make any further or other answer to the said bill; and prays to be hence dismised with his costs rand charges in this behalf most wrongfully sustained. Signature of Counsel. PRACTICE IN COURTS OF EQUITY. 349 Form 73. DEMURRER FOR MULTIFARIOUSNESS. The demurrer of, etc., etc. (as in the preceding form). This defendant, by protestation, etc., doth demur, etc., and for cause of demurrer showeth, that it appears by the said bill that the same is exhibited against this defendant and the several other persons therein named as defendants thereto for distinct matters and causes, in several of which as appears by the said bill, this defendant is not in any manner interested or concerned, and that the said bill is altogether multifarious. Wherefore (Conclusion as in last form). Form 74. DEMURRER FOR WANT OF PARTIES. Commencement as in Form 72. And for cause of demurrer showeth,. that it appears by the said bill that E. F.., of , is a neces- sary party to the said bill for the reason that, etc., (here set forth the reason why E. F. should be made a party), as is in the said bill par- ticularly mentioned; but the complainant has not made the said B. F. a party to said bill. Wherefore, etc. Where there are several causes of demurrer each must be stated in a separate paragraph beginning: "And for further cause of demurrer this defendant showeth," etc. PLEAS: Pleas are : 1. To the jurisdiction of the court, which does not dispute the right of the complainant to the relief prayed, but simply de- nies that the court has jurisdiction in the premises. 2. To the person of the complainant; which merely puts in issue the ability of the complainant to sue. 3. To the bill; setting up some reason why the bill should not lie, as want of proper parties, the pending of another suit, etc., and 4. In bar; which are founded upon some defense based upon matter of record; the statute of frauds or of limitations; defences founded upon awards, releases, purchase for a valuable consid- eration, or title founded upon adverse possession, deed or will. The plea need not now go to the whole of the bill, but it is common practice to file a plea supported by answer. Where a 350 PRACTICE IN COURTS OF EQUITY. plea in bar is filed, it should be accompanied by an answer deny- ing tbe truth of the bill, .and alleging the truth of the plea. In the United States Circuit Courts the plea must be accom- panied by the certificate of counsel and supported by the affidavit of the party as in the case of a demurrer. The same forms may be modified and used. (See forms 70 and 71.) If the plea is required to be supported by affidavit, it must be signed by the party as well as by his solicitor. In the United States Courts, the defendant is permitted by rule to plead to the whole of the bill, or to plead to part, demur to part, and answer as to the residue ; but in every case in which the bill specially charges fraud ot combination, a plea to such part must be accompanied with an answer fortifying the plea and explicitly denying the fraud and combination and the facts on which the charge is foimded. Gen'l Eq. Rule 32. The following form may be modified so as to give a precedent for a plea either to the whole or a part of a bill: Form 75. (Title of Court and Cause.) The plea of , defendant (or one of the defendants), to the bill of complaint of , plaintiff (or complainant). The defendant, by protestation, not confessing or acknowledging the matters and things in and by said bill set forth and alleged to be true, in such manner and form as the same are thereby and therein set forth and alleged, for plea to the whole of the said bill (or to so much and such part of the said bill as prays, etc., or seeks a discovery from the defendant), saith (here set forth the subject matter of the plea setting forth the grounds. carefully and distinctly). All which matters and things this defendant doth aver to be true, and he pleads the said (statute, release, or matter set up as grounds of the plea) to the said plaintiff's bill, and prays the judgment of this hon- orable court whether he should be compelled to make any other or further answer to the said bill (or to so much of said bill as is herein- before pleaded to) and prays to be hence dismissed with his costs and charges, etc. PRACTICE IN COURTS OP EQUITY. 35! WHEN TO BE SWORN TO: Pleas in bar must be sworn to; so also a plea accompanied by an answer; and this is so even though the oath is waived by the bill. A plea to a bill charging fraud or combination should be sworn to. Pleas to the jurisdiction of tlie court, to the disability of the person, or of any matter of record, or of a record of the court, need not be sworn to. The complainant may either file a replication to the plea or have it set down for hearing. A replication admits the plea to be good in fonn, but puts in issue the facts alleged. There can be no contest upon the facts alleged in the plea unless an issue be joined by replication. At the hearing upon the issue thus raised, the defendant will have the burden of proving his plea. If the truth of the plea is established, it will usually, where the plea is to the whole bill, terminate the suit, as the court will not go into another hearing to determine the sufficiency of the plea; but in some of the courts the rule is, that if upon an issue, the facts stated in the plea be determined for the defend- ant, they shall avail him as far as in law and equity they ought to avail him. U. S. Gen'l Eq. Eule 33. If complainant admits the facts set forth in the plea to be true, but denies that they are sufficient in law to constitute a bar or to establish a defense, as supposed by the defendant, the proper practice is to have the plea set down for hearing. At the hearing all the facts alleged in the plea will be consid- ered as true and all the allegations of the bill not specially de- nied by the plea will be considered as being true; the whole ques-. tion will be, whether the plea is sufficient upon the :^cts as set forth in the bill. 352 PRACTICE IN COURTS OF EQUITY. In equity a demurrer will not lie to a plea; the proper practice is to have the plea set down for hearing, when its sufficiency will be determined. If a plea is allowed at the tearing, it thereby becomes a bar to so miicli of the bill as it covers, unless the complainant amends his bill, which, under the modern practice, he will be permitted to do, or unless there are matters set forth in the bill which have the effect of avoiding the plea, such as a waiver, notice, fraud, etc. THE ANSWER: Under modern practice the answer is, in many states, found to be the most satisfactory pleading under which to make a de- fense to a bill in equity, and this is so even in some cases where a demurrer or plea will lie, as the rules of court now provide to a greater or less extent that the defendant may at the same time combine or couple with his answer a demurrer or a plea to the whole or a part of the bill, and have them set down for hearing at the time of the hearing upon the bill. The rule in the United States Courts, and which prevails in many of the states, is that the defendant shall be entitled in all cases, by answer, to insist upon all matters of defense (not being matters of abatement, or to the character of the parties, or mat- ters of form), in bar of or to the merits of the bill, of which he might be entitled to avail himseK by a plea in bar; and the defendant will not be compelled to answer any other matters than he would be compelled to answer and discover upon filing a plea in bar, and an answer in support of such plea, touching the matters set forth in the bill, to avoid or repel the bar or de- fense. Thus, for example, a bona fide purchaser, for a valuable consideration, without notice, may set up that defense by way of answer instead of plea, and will be entitled to the same protec- tion and will not be compelled to make any further answer or discovery of his title than he would be in an answer in support of such plea. Gen'l Eq. Eule 39, PRACTICE IN COURTS OF EQUITY. 353 One of the general rules of equity practice is, that if a defendant submits to answer, he shall answer fully all matters properly alleged and stated in the bill. This rule has been more or less modified in some of the states, but it is a wise rule, and the pleader should see that it is care- fully observed. This rule does not apply in the United States courts in cases where the defendant might by plea protect him- self from such answer and discovery. This rule applies only to relevant and material matter, proper- ly set forth in the bill. The defendant will not be required to answer frivolous or immaterial matters. The answer must con- tain all the facts upon which the defendant proposes to rely for his. defense, except where he relies upon a mere refutation of the facts relied upon by the complainant. The defendant may upon a general denial of the facts stated in the bill, introduce evi- dence to rebut the evidence introduced for the purpose of prov- ing complainant's case; but where special defenses are relied upon they must be properly stated in the answer. Under the old rule the complainant Avas required to prove everything stated in the bill and not admitted by the answer. This rule has been changed in some of the states, so that now, matters properly stated in the bill will be taken as admitted un- . less specifically denied by the answer. Mich. Chancery Kule 10. The' pleader must inform himself of the practice in his OAvn state. Care must be taken to see that no admissions prejudi- cial to the defendant, are made if it can be possibly avoided. An admission, even where the answer is not sworn to, will relieve the complainant from the necessity of making proof of the point admitted. The defendant must answer the- allegations of the bill to the best of his knowledge and information. If he has not sufficient knowledge of the facts alleged, or any or them, to enable him to answer, he should so state. The answer must be sufficient; that is, it must answer truth- 354 PRACTICE IN COURTS OF EQUITY. fully and to the full extent of the knowledge or infornxation of the defendant, except as to those matters to which he prays the benefit of a plea or demurrer, and it must befree from scandal and impertinence. The plaintiff may except to the answer upon either the ground of insufficiency or scandal and impertinence. The practitioner should bear in mind that affirmative relief cannot be had upon an answer alone. Where affirmative relief is sought the defendant must file a cross-bill; or, where the prac- tice admits, set up in the answer the matters upon which the defendant bases his right to affirmative relief, with the appro- priate prayers for the relief sought, and pray for his answer the benefit of a cross-bill. Two or more defendants may join in an answer, but this is not advisable, except in cases where their rights and liabilities in the premises are co-extensive. One defendant may, if the facts warrant it, answer by referring to and adopting the answer of his co-defendant. Unless the oath is waived, the answer must be sworn to (in the absence of a local rule or statute to the contrary). The effect of a sworn answer filed in response to a demand for an answer under oath, or where the oath is not waived, is that it will be taken as estabhshing all the facts that are well pleaded, so that it will require the testimony of two witnesses to overcome them. An answer may be sworn to even though the oath be waived by the bill, the effect being to enable the defendant to use the answer as an affidavit upon motions and other interlocutory pro- ceedings heard and dtetermined upon affidavits. ANSWERS OF INFANTS: An infant defendant may answer only through his guardian ad litem, appointed by the court to guard the interests of the infant. It is a well-settled rule that no admissions can be made by an infant or a guardian ad litem which will relieve the complainant from proving all the material facts alleged in his PRACTICE IN COURTS OF EQUITY. 355 bill. Another general rule is that a decree pro confesso cannot be taken as against an infant or lunatic. The record should show that the guardian ad litem submitted to the court for its consideration every question involving the rights or liabilities of his ward. The f(^owing is a common form of an answer and may be used, or modified to fit the circumstances of the case : Form 76. GENERAL FORM OF AN ANSWER. (Title of the Com-t and Cause.) Tlie answer of . : , the defendant (or one of the defend- ants), or the joint and several answer of the defendants (or two of the defendants), to the bill of complaint of complainant. This "defendant (or these defendants respectively), now and at all times hereafter saving to himself (or themselves) all and all manner of benefit or advantage of exception or otherwise that can or may be had or taken to the many errors, uncertainties, and imperfections in the said bill contained, for answer thereto, or to so much thereof as this defendant is (or these defendants are) advised it is material or neces- sary for him (or them) to make answer to, answering saith (or sever- ally answering say). (Take up the bill by separate paragraphs, admitting or denying every material allegation, and set up any matters of defense or avoid- ance as the case may require, and conclude as follows:) And this defendant denies all and all manner of unlawful combina- tion and confederacy wherewith he is by the said bill charged, without this, that there is any other matter, cause or thing, in the complainant's said bill of complaint contained, material or necessary for this defend- ant to make answer unto, and not herein and hereby well and sufficiently answered, confessed, traversed and avoided, or denied, is true to the knowledge or belief of the defendant (or these defendants) ; all which matters and things this defendant is ready and willing to aver, main- tain and prove, as this honorable court sha,ll direct; and humbly prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. The following is a form which will serve the same purpose as the more elaborate form just given, and which has the recom- mendation of breAdty: 356 PRACTICE IN COURTS OF EQUITY. Form 77. (TitlB of the Court and Cause.) The answer of , defendant (or one of the defendants), or the (joint and several answer of two or more of the defendants) to the bill of complaint of , complainant. This defendant, reserving to himself all right of exception to the said bill of complaint, for answer thereto, says: '•» 1. (Here set out in numbered paragraphs, the defendant's answers to the several allegations set forth in the bill, each paragraph of the answer containing, as far as posible, a complete answer to the allega- tions contained in the corresponding paragraph of the bill.) Concluding as follows: And this defendant denies that complainant is entitled to the relief or any part thereof in the said bill of complaint demanded *, and prays to bft hence dismissed with his reasonable costs and charges, in this behalf most wrongfully sustained. [Where the practice will permit, the defendant may insert in the above form after the star, a prayer that he may have the same advan- tage of his answer as if he had pleaded or demurred to the bill.] THE REPLICATION: In order to bring the cause to an issue, it is necessary that a replication shall be filed. The practice now' is to file simply a general replication that the complainant will maintain and prove his bill, etc. The" practice of filing a special replication is now obsolete; in many of the states it is abolished by rule; and this is the practice in the United States Courts. The following is the form of replication in use under the old style of equity pleadings. It has been superseded in many of the states by a more common sense f orni ; but it is still in use in a more or less modified form in some of the states. We give it as being the only form in general use of which Ave have any knowledge: Form 18. (Title of the Court and Cause.) This repliant, saving and reserving to himself all, and all manner of advantage of exception to the manifold insuflaciencies of the said answer, for replication thereto salth, that he will aver and prove his said bill to be true, certain, and sufficient in the law, to be answered unto; and that the said answer of the defendant is uncertain, untrue and PRACTICE m COURTS OF EQUITY. ^57 Insufficient to be replied unto by this repliant; without this, that any other matter or thing whatsoever in the said answer contained, material or effectual in the law lo be replied unto, confessed and avoided, tra- versed or denied is true; all which matters and things this repliant is, and will be ready to aver and prove, as this honorable court shall direct; and humbly prays, as in and by his said bill he has already prayed. The cause will not be at issue until the replication is filed. In the United States Courts the defendant may have the bill dis- missed for want of a replication. In other courts the defendant may bring the cause on for hearing upon bill and answer, the ■ answer for the purpose of the hearing being taken as true. But the court will usually permit a replication to be filed upon terms, upon cause shown. PROCEEDINGS BY CROSS-BILL: Where the defendants or either of them desire to obtain aflirmative relief, under the proceedings begun, they can do so only by means of a cross-bill, or, in states where it is permitted, by praying for the answer, the benefit of a cross-bill. It frequently happens that there are rights and interests of some of the defendants growing out of and connected with the subject matter of the proceedings pending, which cannot be adjudicated and determined so as to do complete justice without the aid of a cross-bill. So, too, there are cases where the inter- ests of the defendants are not identical and the relief sought cannot extend to all of them. And a court of equity has power, upon its own motion, to order a cross-bill to be filed. The parties to the cross-bill need not be joined in the same" manner as in the original bill; that is, all the defendants are not required to be joined as cross-complainants, but one or more of the defendants may file a cross-bill against one or more, or all of the complainants, or against all or part of the complainants and one or more of the defendants. Under the modem practice the cross-bill will be filed in the suit already pending, instead of being brought as an original bill; and by the statutes of some of the states the defendant 358 PRACTICE IN COURTS OF EQUITY. may set forth in his answer the facts upon which he bases his right to affirmative relief, and pray for the relief to which he believes himself entitled, and for the benefit of a cross-bill. The time within which a cross-bill may be filed, and the practice in relation thereto is usually regulated by statute or rule, and the pleader must inform himself of the practice of his own courts. In drafting a cross-bill the same care should be observed as in drafting an original bill. The facts alleged should be clearly and truthfully stated; every fact necessary to entitle the de- fendant to the relief sought should be alleged; the prayers should set forth definitely and clearly the relief sought. There should also be a prayer that the cross-defendants answer the cross-bill, either upon oath, or the answer under oath should be waived. If, under the local practice, it is necessary to serve the cross-defendants with a subpoena, there should be a prayer for process. If an injunction or restraining order is desired, there should be a prayer therefor. Where the cross-bill is filed in the same suit, it is seldom necessary to bring the cross-defen- dants in by subpoena; the court rules usually provide for service of a notice of the filing of the cross-bill, or service of the cross- bill itself upon all the parties thereto, and that the cross-defen- dants shall answer within a certain time thereafter. A cross-bill will be demurrable when filed contrary to the practice of the court, and under circumstances in which a pure cross-bill is not allowable; or, if the cross-bill seeks relief of an •equitable nature and does not contain all the proper allegations entitling the cross-complainant to equitable relief. The cross-defendants will be required to answer the cross- bill the same as if it was an original bill, and, in the absence of a rule to the contrary, the cause will be brought to an issue by filing a replication. From the time when issue is joined the bill and cross-bill, answer and other pleadings are incorporated into one proceeding; and if the original bill is larought on for hearing the effect will be to bring the cross-bill on for hearing PRACTICE IN COURTS OF EQUITY. QF^g also, but it is the practice in some states to have an order entered directing that the original and cross-bill shall be heard together. THE HEARING: Suits in equity are usually heard either upon testimony taken before a commissioner or master, .and reduced to writing by him, or upon oral evidence taken in open court. Where the hearing is upon testimony taken before a commissioner or mas- ter, counsel reads the testimony, and the court hears and rules upon the objections made at the time of taking the testimony. The court hears the evidence, examines the exhibits, listens to the arguments of counsel, and, after due consideration, hands down his decision. Under the practice of taking the evidence in open court, the witnesses are produced and sworn and examined as in an action at law. This practice has the advantage of giving the court an opportunity to see the witnesses and judge of their character, truthfulness, or bias, and where the parties have a choice, we recommend this practice. In entering upon the hearing it is customary for counsel for complainant to read or sketch and explain the stating part of the bill and the prayers for relief, in order that the court may be fully informed of the nature of the case and the relief sought. Counsel for defendant then reads or explains the answer and, if there is a cross-bill, he explains that and informs the court of the relief sought thereunder. Solicitor for complainant then reads or explains the answer to the cross-bill, if any, and then proceeds to put in his evidence as in other cases. Great care should be exercised in introducing or referring to documents and writings offered or referred to. Before a paper is used at all, or referred to, it should be handed to the reporter an'i marked by him as an exhibit, whether afterwards admitted in evidence or not, and during the remainder of the hearing that paper should be referred to as Exhibit A, or as the case may be, as follows: (Addressing the witness) I now show you Ex- 360 PRACTICE IN COURTS OF EQUITY. hil)it A, and ask you to state, etc. If the witness refers to "tMs paper" or "that letter," or "that deed," referring to a paper that has been marked, see that the reporter adds to his minutes, "referring to Exhibit B," etc. The necessity of these precautions ^vill be apparent when wo remember that the record may go to a higher court for review; and, while the court below may have known at the time what paper was referred to, there is no way of informing the Appellate Court, and the reference to papers will be confusing, especially where there are many papers introduced and witnesses through ignorance or carelessness, have not made it clear what papers were referred to. Counsel should not fail to object to the introduction of incompetent or irrelevant testimony, and to enter an excep= tion when overruled, the same as in a trial at law, unless he proposes to waive the objection. Be careful to see that every material allegation contained in the bill has been proven, if not admitted by the answer; a failure in this respect will be f atal.^ Papers, writings, deeds, etc., must be properly proved before they are offered in evidence, and counsel should see that the record shows they were offered, admitted and introduced in evi- dence. THE ARGUMENT: After the evidence is all in, counsel for the respective parties should present their views of the law and evidence in a clear and forcible argument. It is not necessary that the argument should be long, but it should be long enough to enable counsel to properly present his case. Where there are numerous author- ities, the better practice is to prepare a small brief of the cases, and the points covered thereby, for the use of the court. An entirely different style and line of argument is necessary in presenting a case to the court than is necessary before a jury; PRACTICE IN COURTS OF EQUITY. ggl in the . former case, counsel will be addressing a m?in who is trained to grasp and weigh facts and to apply to the facts pre- sented the correct principles of law, while a jury is composed of men from all walks of life, who haA'^e not been trained to weigh facts, and who, however honest and well-meaning, may be carried away by some matter that has no real bearing upon the case. Therefore, when -addressing a jury, it is necessary to cover the whole case. JEvery point made by the other side should be dis- cussed and explained away. The situation of the parties must be dwelt upon. The facts must be pounded into the minds of the jury by sledge hammer blows, and made to stick by apt illustrations. The jury must be shown the justness of your posi- tion, the good faith of your client, and the unjustness or bad faith of the other side. But in an argument before the court the facts should simply be presented in a logical manner, with a discussion of the principles of law bearing upon them; the weak and inconsistent parts of the case presented on the other side exposed, and the authorities cited, discussed, and shown to have no application to the case at bar, etc. Both styles of argument require skill, and a thorough knowledge of the law and facts of the case. SUBMITTING THE CASE WITHOUT ARGUMENT: This is often done, and is often justiiiable and productive of as good results as though there had been an extended argument. An attorney of well established practice and reputation may do many things which will be regarded as shrewd and long-headed moves, while the same things done by a young attorney would be regarded as an indication of weakness. People who go to law want to feel that their attorney is a fighter, and the argument is looked upon by many as the real battle. For the young prac- titioner to submit a case without argument will often lay him open to the charge of being afraid of his antagonist, or that at the last minute he lost his nerve. Even if he should perchance win the case, it will be charged up to good luck by his client, 362 PRACTICE IN COURTS OF EQUITY. who will expect to pay less for the services rendered; but if the case is lost, the client and all his friends will lay the entire responsibility upon the unfortunate attorney, because he did not make an argument. Therefore we advise the young practitioner to argue every case and make the most of it. Pre- pare the case thoroughly before going into court; think out the argument; make a brief of the points presented with catch words here and there to assist the memory; do jiot be weari- some, but make the argument full of fire and fight. If you must be defeated, go down fighting. THE DECREE: After the court has announced its decision, the next step is to prepare and enter the decree, which is usually done by the prevailing party upon notice to the other side. This decree will be either interlocutory or final, according to the nature of the suit; thus, a decree which simply determines that the complain- ant is entitled to the relief prayed, and refers it for further pro- ceedings, is interlocutory; as, for instance, upon the hearing of a bill between partners for a winding up and an account, the court would first determine the rights of the complainant as a partner, and the decree defining those rights and referring the matter to a master for an account will be interlocutory; but if the decree finally disposes of the subject matter of the suit as far as that court is concerned, leaving nothing further to be done but to enforce the decree, it will be final. There are certain well-settled rules in regard to decrees which may be said to be of universal application. They are: 1. The decree must be consistent with the case stated in the bill, the relief prayed and the evidence. 2. When the bill contains a prayer for general relief, the court may decree relief not specially prayed, if consistent with the case made in the bill and by the evidence. 3. The coiirt will not decree impossibilities. PRACTICE IN COURTS OF EQUITY. 363 4. The court will not decree relief which it has not the power or ability to enforce. 5. The court will not define and secure the rights of one liti- gant without reference to the corresponding rights of the others. 6. A decree cannot be made against an infant without full proof in all cases. Nothing can be established against an infant by his admissions or default, or the admissions or default of his guardian ad litem. 7. A decree will not be granted on unproved allegations, or upon evidence establishing a case not stated in the bill. 8. A decree taken pro confesso or by default at the hearing can only be such as is warranted by the state of the pleadings at the time of the default. WHAT THE DECREE SHOULD CONTAIN: Formerly it was the practice to incorporate into the decree a reference to the pleadings and brief recitals of the evidence and documents introduced with the findings of the court thereon, before the ordering part. This practice still prevails in some states, while, in others, the recitals are greatly restricted, and in others wholly abolished. The practitioner must ascertain for himself as to the practice in the courts of his own state. In the United States Courts it is provided by General Eq. rule 86 that, "in drawing up decrees and orders, neither the bill nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order; but the decree and order shall begin in substance as follows: "This cause came on to be heard (or, to be further heard, as the case may be) at this term, and was argued by counsel ; and, thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz.:" This form may be so easily adapted to general use that we shall give no other. It is the practice in some states to recite that the cause was argued by Mr. '— on behalf of the complainant, and Mr. on behalf of the defendant, and 364 PRACTICE IN COURTS OF EQUITY. the court having heard read the bill of complaint filed in said cause, and the answer of the defendant thereto, the replication filed by the complainant, and the evidence taken in open court (or, as the case may be), and having listened to the argument of counsel, and the court being fully informed in the premises, upon consideration thereof, it is ordered, adjudged '&nd decreed, etc. (here follows the ordering part of the decree). When costs are awarded the decree should end as follows: It is further ordered, adjudged, and decreed that the com- plainant have and recover his costs to be taxed, and that he have execution therefor, etc. ENROLLMENT OP DECREE: The record is not complete until the decree has been en- rolled. The time and manner of enrolling decrees is usually governed by statute or local practice or custom. The practice should be ascertained and strictly followed in every case. SUPPLEMENTAL BILLS: Where anything has occurred since the commencement of a suit which, without abating it, occasions a material change in the interests of any of the parties, or makes it necessary that new parties be brought in, such new matter may be brought upon the record or new parties added by supplemental bill. It is a well settled rule that a bill cannot be amended by incorporating anything therein which arose after the filing of the original bill; but when the object is to correct defects in the frame of the original bill, or to iucorporate additional grounds of relief exist- ing at the time of filing the original bill, it should be done by an amendment. A person not a party to the suit, who has acquired a title to the subject matter of the suit pending the litigation will be permitted to file a supplemental bill, in order to protect his interests. He cannot be heard otherwise, except by consent of the court and parties. PRACTICE IN COURTS OF EQUITY. 365 HOW FILED: The usual practice is for the party desiring to file a supple- mental bill to file a petition in the court in Avhich the original bill is pending, setting forth fully the grounds upon which the petition is based, and praying for leave to file a supplemental bill. This petition should be filed with the clerk of the court, and it may then be called up for hearing upon due notice jto the other parties to the siiit. If leave is granted, the order usually provides that the supplemental bill shall be filed within a certain time, and that the defendant plead, demur, or answer within a certain time after the filing thereof. If the defendants do not comply with such order within the time limited, their default may be entered and an order pro confesso entered as in other cases. For practice in U. S. Circidt Courts see General Eq. rule 57. DEFENCES TO SUPPLEMENTAL BILLS: The defendant may plead or demur the same as in the case of an original bill. If the bill is filed without sufficient grounds, the proper remedy is a demurrer. So, if it appears that all the matters set forth in the supplemental bill occurred prior to the filing of the original bill, or that such matters could have been incorporated in the original bill by an amendment; or if the bill shows that the new parties have no interest in the subject matter of the suit, or that they cannot be affected by the proceedings. A plea will lie to a supplemental bill upon the same grounds as to an original bill, and also where the supplemental bill is. filed for the purpose of bringing upon the record facts which occurred before the filing of the original bill, where that fact does not appear upon the face of the supplemental bill. The forms of demurrers, pleas and answers to supplemental bills vary little from the forms heretofore given. Issue should be joined by replication the same as in proceed- ings upon original bills. 366 PRACTICE IN COURTS OF EQUITY. BILLS OF REVIVOR: • In tjbe absence of a simpler method prescribed by statute or rule of court, a bill of revivor is the only method of reviving a suit in v^hich, owing to the death of the sole complainant or of all the complainants, or by reason of the marriage (in states where the disabilities of women have not been removed) of the sole complainant, who sued as a feme sole, there remains no party to the record capable of carrying on the litigation. An order to revive the suit may also be made on the application of an heir-at-law of the sole complainant, or on application of the administrator or executor, or of the personal representative of a co-complainant where the siiit has abated by reason of the death of the surviving complainant. An order of revivor has been made where the suit has abated or become defective through the bankruptcy of the complainant; where a new assignee has been appointed; or where the sole complainant has been adjudged a lunatic. An order of revivor will also be entered against the personal representatives of a deceased defendant. (Daniel's Chancery, 1525-6.) It will be found that in most of the states there are statutory provisions greatly simplifying the proceedings for reviving suits, and providing in what cases suits may be revived. These pro- visions should be carefully studied and followed. In the United States Courts it is provided by rule that when- ever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill of revivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same; which bill may be filed in the clerk's. ofiice at any time; and upon suggestion of the facts, a subpoena will be issued as of course by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause is shown by the next rule dav after fourteen days from the time of the service of the process, the suit will revive, as of course. General Eq. rule 56. PRACTICE IN COURTS OF EQUITY. 367 BILLS OF REVIEW: Bills of review and bills in the nature of a bill of review are proceedings for tbe purpose of proctiring a reversal, alteration or explanation of a decree entered in a former suit. If filed before the decree has been signed and enrolled, a bill in the nature of a bill of review is the proper proceeding; if after the decree is enrolled, the proceeding will be a bill of review. The proceeding lies for the correction of errors of law ap- pearing upon the face of the decree; or upon new matter dis- covered after the decree was entered. Such new matter must have been in existence at the time the decree was entered, but tmknown to the party until afterwards; and it must be of such a character as would probably have oc- casioned a different determination of the suit, and it must not be merely cumulative. A petition for leave to file a bill of review for newly discovered evidence will not be allowed where it appears that the evidence could have been discovered before the decree was entered by the exercise of due diligence, nor where it appears that the petitioner has been guilty of lacheS. A bill of review, or in the nature of a bill of review, can be filed only by leave of the court, granted upon petition or motion. The application is addressed to the sound discretion of the court. If the petition is based upon the ground of newly discovered evidence, it must be made to appear that the new matter alleged came to the knowledge of the petitioner for the first time after the decree was signed and entered, and that by the exercise of due diligence it could not have been discovered so as to have been used sooner, and that it is of such a character as- would have produced a different determination of the suit had it been produced. The following is the common form of a petition for leave to file a bill of review on the ground of newly discovered evidence: 368 PRACTICE IN COURTS OF EQUITY. Form 70. (Title of Court arid Cause and Address.) Showetli, that your petitioner has exhibited his bill in this honor- able court against , the defendant, for the purpose of (here state the general object of the original bill), and prayiitg (state the prayer of the bill). , That the said defendant being duly served with process, appeared to the said bill and put in his answer. And the said cause being at issue was brought on for hearing before , on, etc. Whereupon a decree was made in effect as follows (set forth the~ substance of the ordering part of the decree); And the said decree has since been duly enrolled (or as the case ma3' be). And your petitioner further showeth, that since the time of making and entering said decree, your petitioner has discovered new the new matter) , which new matter your petitioner did not know, and matters important and material in the said cause; particularly (set forth could not, by reasonable diligence have known, so as to make use thereof in the said cause, before and at the time of making and entering the said decree. Your petitioner, therefore, prays that he may have leave to file a bill of review against the said defendant for the purpose of obtaining a review and reversal of the said decree; and that all further proceed- ings under the same may be stayed. The petition should be signed by the petitioner, and also by his solicitor, and verified by the oath of the petitioner. The following is the common form of a bill of review on discovery of new matter: Form 80. (Title of Court and Cause, etc.) Your orator, A. B., of , respectfully represents unto the court, that on or about the etc., C. D., the defendant, hereinafter named, exhibited his bill of complaint in this honorable court against your orator, and thereby set forth that (here insert the substance of the original bill). And your orator being duly served with process for that purpose, appeared and put in his answer to said bill, to the effect following (here insert the substance of the answer: And the said C. D. replied to said answer, and issue having been joined and witnesses examined and the proofs closed, the said cause was set down to be heard and was heard before , on the day of , when a decree was made and entered, by which it was ordered, adjudged and decreed that (here insert the substance of the decree): And your orator further showeth, by leave of the court PRACTICE IN COURTS OF EQUITY. 359 first had and obtained, that since the signing and entering of said decree, your orator has discovered new matters, important and material in the said cause, particularly (here set forth the new matter). And your orator is advised and insists that, under the circumstances aforesaid, the said decree, in consequence of the discovery of the new matter as aforesaid, ought to be reviewed and reversed. To the end, therefore, that the said C. D., who is made a party defendant to this bill, may be required to make full, true, direct and perfect answer thereto (but not under oath, etc.), and that the said decree and all proceedings thereunder may be reviewed and reversed, etc. (pray such other special relief as the circumstances of the case may require; and add the prayer for general relief, ahd pray for a subpoena in the usual form). Bill of review for errors of law apparent on face of the decree itself: Form 81. Use the preceding form down to where the decree or the substance thereof is set forth, and proceed as follows; And the said decree has since, and on the day of been duly signed and enrolled, which said decree your orator insists is erroneous, and ought to be reviewed, reversed, and set aside for many apparent errors and imperfections, inasmuch as it appears (here insert the apparent errors). In consideration whereof, and inasmuch as such errors and imper- fections appear in the body of said decree, etc., and there is no proof on which to ground the said decree, your orator has brought this bill, of review in order that the said decree may be reversed and set aside, and no further proceedihgs had thereon. To the end, therefore, that the said C. D., who is made a party defend- ant to this bill, may be required to make full, true, direct and perfect answer thereto (but not under oath, etc.), and that for the reasons aforesaid the said decree may be reviewed, reversed, set aside a.nd no further proceedings taken thereon, etc. May it please, etc. (pray for subpoena in the usual form). DEFENSES; The defendant may resort to the same defenses as are open to him under an original proceeding. He may demur, plead, or answer, and the same rules apply as in other cases. Where the bill is brought to review errors upon the face of the decree, the common practice is to plead the former decree in bar, and demur on the ground that the errors assigned do not 370 PRACTICE IN COURTS OF EQUITY. in fact exist, or that they are not prejudicial, or such as to entitle the complainant to have the bill reviewed and reversed. Upon the hearing of the demurrer, the question will be simply whether the decree ought to be opened and reviewed. This must be determined by what appears upon the face of the decree itself. If the demurrer is overruled, or if the bill is brought by reason of the discovery of new matter which is sufficiently stated in the billy the defendant must answer, putting in issue the alleged new matter. INJUNCTIONS AND RESTRAINING ORDERS:. Courts of equity have power to issue injunctions to stay or prohibit a wrongful act commenced or threatened, by which an equity- would be infringed, and to stay proceedings at law in cases which involve an equitable right. This power extends to all cases where civil proceedings have been commenced before the ordinary tribunals, in respect of a dispute which involves an equitable element. (Adams' Equity, 194, 207.) It is impossible to enumerate the causes for which an injunc- tion will issue, but the following are some of the most common, viz.: to stay proceedings in courts of law; to restrain the indorse- ment and negotiation of bills of exchange, the sale of land, the sale and transfer of shares of stock; to prevent the wasting of assets, or other property pending litigation; to prevent an illegal disposition of the property or assets, of a corporation by its offi- cers; to prevent waste; to abate a nuisance; to restrain public officers from proceeding unlawfully; to restrain the collection of a tax illegally assessed or levied; to prevent the infringement of patents and copyrights. Injunctions are either permanent or temporary or provi- sional. A permanent injunction will not be granted, except upon a final decree. A temporary injunction or restraining order, when properly applied for, will be issued whenever justice may seem to require it, and runs until the further order of the court. PRACTICE IN COURTS OF EQUITY. 371 The allowance of a temporary injunction is discretionary. It cannot be issued until a bill has been filed and subpoena issued; but the order for a temporary injunction may be obtained before the issuing of the subpoena. Where the exigencies of the case require it, the court will allow an' order for a temporary injunction upon the application of the complainant, without notice to the defendant ; but where •this is done, a restraining order is most commonly granted. The difference between a temporary injunction and a restraining order is that the former remains in force until dissolved upon motion, while the latter is issued for a certain limited period with an order to show cause why an injunction should not be granted. The following form of a temporary injunction may be modi- fied to make it conform to local practice. TJsually the court or judge endorses the order for a temporary injunction or re- straining order upon the back of the bill, the following form should then be sei-ved upon the defendant or defendants, against whom the injunction runs. In order that the order may be enforced by proceedings in contempt, the order should be served upon the parties against whom it runs, personally, and not upon the solicitor: Form 82. TEMPORARY INJUNCTION. (Title of Court and Cause, and Venue.) To (the defendant or defendants, or such of them as may be included in the order, and to counselors, attor- neys, solicitors and agents, and each and every of them, Greeting: Whereas, it has been represented to us, in the Court for the County of , in Chancery, on the part of , complainant.., that ha., lately exhibited bill of complaint against you, the said '. (defendant), to be relieved, touching the matters therein complained of; in which bill it is stated among other things, tha,t you are combining and confederating with others to injure the said com- plainant touching the matters set forth in the said bill, and that your actings and doings in the premises are contrary to equity and good con- science (or set forth specifically the acts complained of which are cov- 372 PRACTICE IN COURTS OF EQUITY. ered by the injunction) ; we therefore, in consideration thereof, and of particular matters in the said bill set forth do strictly command you, the said and the persons before mentioned, and each and every of you, that you do absolutely desist and refrain from (here insert fully and particularly the acts which the defendant is enjoined from performing, setting them forth so fully and plainly as to leave no ground for a claim upon the part of the person enjoined, that he did not understand the scope or meaning of the order), until the further order of this court. Witness, the Honorable Judge, and the seal of said Court of , this day of , in the year one thousand eight hundred and FILING BOND: It is the rule in some states not to allow an injunction itnless tlie party applying for the writ shall file a bond to indemnify the defendant for any loss or damage caused by reason of the injunc- tion if it appears to have been improvidently issued. Where this is the case, the practitioner should exercise very great care not to sue out the writ unless he is satisfied that he is fully justi- fied in so doing by the equities and facts of the case. Where a bond is required as a condition precedent to the issu- ing of the writ, care must be taken to see that all the provisions of the rule or statute in relation to the form of the bond, the amount, the number of sureties and their qualifications, etc., are strictly complied with, as a failure in this respect may be ground for a dissolution of the injunction. HOW DISSOLVED: Temporary injunctions are usually issued for some stated period, or until the further order of the court. The proper pro- ceeding for the dissolution of an injunction is by motion founded upon the answer, pointing out the reasons why it should be dis- solved. The motion may be fortified by afiidavits. Copies of the motion and affidavits, with a notice of the time and place of the hearing thereon, should be served upon the complainant or PRACTICE IN COURTS OF EQUITY. 373 his solicitor a sufficient lengtli of time before the hearing, or such length of time as may be prescribed by local rules of prac- tice. Proof of such service must be made at the hearing unless the complainant or his solicitor appears. RESTRAINING ORDERS: A restraining order is in the nature of a temporary injunction for a limited time, accompanied by an order of court, that the defendant show cause on a certain day why an injunction should not issue. ISTotice of the proceeding should be served upon the defendant forthwith, and he must either raake a contest or allow the injunction to issue. The following form of an order to show cause and restraining order is recommended on account of its brevity. It may be very easily modified to make it conform to the rules of local practice: Form S3. ORDER TO SHOW CAUSE AND RESTRAINING ORDER. (Title of Court and Cause, and Introduction.) On reading and filing the bill of complaint of A. B., complainant, in this cause (and the affidavits of , as the case may be), and upon motion of G. H., Esq., solicitor for said complainant, it is ordered that the defendant (or the defendant's and each of them) show cause before this court upon the day of at the opening of court, why the prayer of said bill, praying for a temporary injunction be not granted. It is further ordered that until the hearing upon said order to show <;ause, the defendant (or defendants and each of them), his (or their) counselors, attorneys, solicitors, agents and officers and each and every one of them be restrained and enjoined from (here s,et forth par- ticularly and carefully the acts enjoined). Judge of said Court. Where the granting of a temporary injunction will not seriously affect the defendant, it may be wise not to show cause, but to allow the injunction to stand until the final hearing, and thus avoid exposing the defendant's case. The surrounding circumstances must govern in each case. 374 PRACTICE IN COURTS OF BQUIT.Y. Ill drafting the return to tlie order to show cause, the defen- dant may not only make a general denial of the allegations upon which the order was based, but he may also show that the bill is without equity. The return may be, and usually is, sup- ported by affidavits. Upon the hearing of the order to show cause, the respondent has the opening and closing, although it is usual for complain- ant's counsel to first make a statement of the allegations of the bill; the respondent then reads his return and the supporting affidavits and make's his argument; the complainant may then read his counter affidavits, if any, and make his argument; and the respondent may then reply. VIOLATION OF INJUNCTION: The violation of an injunction may be punished by proceed- ings in contempt. Usually the court will. issue an order requir- ing the defendant to show cause why he should not be punished for contempt of court. This order is usually based upon a motion or petition supported by affidavits, showing in what man- ner the defendant has violated or disobeyed the order of the court. If the defendant fails to respond after personal service upon him of the order to show cause, an attachment will issue to bring him before the court, and he may, upon proper showing, be committed to jail. It is a general rule, that in order to bring a party into contempt for the violation of an injunction, or for disobey- ing an order of court, the writ or order, or a certified copy thereof, must have been served upon such party personally. Notice to his solicitor will not be sufficient. It is a point worth remembering, that as a rule a party in contempt (in equity proceedings) will not .be heard by motion or otherwise, until he is purged of contempt. This rule is more or less modified in the different courts. In some the rule is that where a party is in contempt the court will not grant any PRACTICE IN COURTS OF EQUITY. 375 application in his favor wliicli is not a strict matter of right. But a party cannot object to the cause being brought on for hearing because the, opposite party is in contempt. Bibliographic Note. — The best known works upon this subject are Danlell's Chancery Pleading and Practice, a work In three volumes, with forms, Story's Equity Jurisprudence, an old work, but of great value for its clear and forceful discussion of the principles of equity jurisprudence, Adams' Equity, an English work with valuable American notes. Beach's Modern Equity Practice, 2 vols., 1892, Bishpam's Principles of Equity, 1893, Indermaur's Manual of the Principles of Equity, an English work, 1892, Pomeroy on Equity Jurisprudence, 3 vols., 1892, Willard's Equity Jurisdiction, Van Heythusen's Equity Draftsman, Story's Equity Plead- ing, Merwin on Equity and Equity Pleading and Mitford and Tyler on Equity Pleading. See also White and Tudor's Leading Cases in Equity, with Hare and Wallace notes, and Field's Federal Practice. CHAPTER XVIII. MOTIONS, PETITIOI^S AND OEDEKS. After an action, is commenced, it frequently occurs tliat a party desires an order of the court for some purpose connected with the proceedings, in order to obtain which it is necessary to make an application to the court. This is usually done by motion or petition. Motions are either of course or special. A motion of course is one to which a party is entitled upon application, without notice to the other side, such as motions for default; default decrees; for confirmation of reports of commissioners in parti- tion; confirmation of reports of masters or commissioners when no exceptions are filed; motions for a rule upon the defendant to plead, answer or demur; for ex parte injunctions; motions for bills of particulars; to enter a default judgment, etc. A special motion is one to which the party is only entitled upon notice to the other side and a special order of the court. These are sometimes called contested motions. What motions will be regarded as special, and what motions of course, will depend upon local rules of practice, which must be consulted by the practitioner. Special motions must be in writing, addressed to the court, and filed. In some states the rules of practice require that the motion or a minute thereof be entered in a motion book in the office of the clerk. If the motion is based upon facts which the court will be asked to pass upon, it may be fortified by affidavits. The motion should be called up for hearing upon a regular motion day, unless the court appoints a special time for the hearing. JSTotice of the motion, together with copies of the sup- porting affidavits, and of the time and place of the hearing, should be served upon the opposite party, or his attorney or solic- 376 MOTIONS, PETITIONS AND ORDERS. 377 itor, siicli time before the day set for the hearing as may be prescribed by local rules or the order of the court; or, in the absence of either, a sufficient time to enable him to prepare for hearing. PETITIONS: It sometimes occurs that the matter may be more properly brought before the court by petition than by motion; it is also a common practice to combine the motion and petition. The same rules govern as to service of papers, affidavits, notice of hearing, etc., as in case of a motion. FORM OF MOTION: The motion should be entitled in the court and cause in which it is filed, and should set forth carefully and at sufficient length the grounds upon which the motion is based, with a reference to any records, files or affidavits to which the attention of the court will be called upon the hearing. The following form will serve as a guide. Form 84. (Title of Court and Cause.) And now comes C. D., the defendant in the above cause, and moves that the verdict (or verdict and judgment) heretofore entered in said cause may be set aside, and a new trial of said cause be granted for the following reasons (set forth the reasons or grounds of the motion, and conclude) : This motion is based upon the files and records of said cause, and the affidavits of , and which are hereto annexed (if upon stenographer's minutes of the evidence introduced at the trial so state) . B. F Attorney for Defendant. The following is the common form of notice of hearing of a motion: 378 MOTIONS, PETITIONS AND ORDERS. Form 85. (Title of the Court and Cause.) Please take notice that on the day of A. D at the opening of court in the forenoon, or as soon there- after as counsel can be heard, before Hon. K. L., Judge of said Court, in the court room usually occupied by him, I shall call up for hearing and disposition the defendant's motion for a new trial of said cause. Said motion is based upon the files and records of said cause, and the affidavits of and copies of which are here- with served. Yours, etc.. Attorney for Defendant. To E. D., Esq., Attorney for Plaintiff. When a motion is disposed of, tlie prevailing party should see that a proper order is entered. This is sometimes done by a minnte entered by the clerk, in which case the attorney should see that the entry is in proper form and covers all the questions decided by the court. The better practice is to draft an order on the spot, submit it to the other side and have it signed by the judge, and entered by the clerk before leaving the court room. The following is the common form of an order. The intro- ductory part will vary in the different states: Form 86. (Title of Court and Cause.) At a session of said court, held at on the day of :..., A. D. .... , Present, Hon. K. L., Circuit Judge. Upon reading and filing affidavits in this cause, and upon motion of A. B., Esq., counsel for the plaintiff, and after hearing the said A. B., counsel for the plaintiff, and C. D., counsel for the defendant, it is ordered (here set forth fully the order as allowed by the court). If the motion was not opposed the order should read as above, but should show due service of notice of the motion as follows: Upon reading and filing an affidavit of service of notice of motion in this cause and copies of the affidivits upon which the said motion is founded, and upon reading and filing," etc., as above. MOTIONS, PETITIONS AND ORDERS. 379 Upon the hearing of a motion the moving party, that is, the party making the motion, has the opening and dosing. The first step is to make proof of service of the notice of motion and copies of the afiidavits upon which the motion is founded. The moving party should then state the nature of the motion and read the supporting afiidavits, and any other evidence, documents, records or" files that have been properly referred to in the motion or notice. This should be followed by an argument setting forth fairly all the grounds relied upon, the principles of law deemed to be applicable, and such citations of authority as counsel may have. Counsel in opposition to the motion will then be heard. He should first read any reply afiidavits which he may have, and then proceed to reply to the argument, of counsel on the other side, citing, authorities, if he has any. Counsel for the moving party should then reply briefly, if he deems it necessary. PREPARATION: Counsel should not go into the argument of a motion without full preparation so as to meet intelligently all the questions, both of law and fact, that may arise. Great care should be exercised in drafting the afiidavits, especially those made by the parties to the suit or by those who may be witnesses at the trial, not to have them put anything into the aifidavit which will preju- dice them at the trial; or that will give the other side too great an insight into the case. Many a man has ruined his case by an unguarded or inconsistent statement made by him in an afii- davit in some preliminary proceeding in the case. FORM OF PETITION: A petition, when drafted for the purpose of being filed in a suit pending, should be entitled in the court and cause, and ad- dressed to the court or a judge thereof, as the circumstances may require. It should begin as follows: The petition of A. B., plaintiff in the above entitled cause, respect- fully showeth, etc., stating the subject matter of the petition, and ending, "and so 'will ever pray, etc." 380 MOTIONS, PETITIONS AND ORDERS. Another form nmcli used begins as follows: Your petitioner, A. B., of , the plaintiff in tlie above entitled cause, respectfully showeth that, etc. Each allegation or statement of fact should be set forth in a separate paragraph commencing as follows: And your petitioner further showeth, etc. Where the petition is required to be verified, it is sometimes done by the simple certificate, or jurat: Subscribed and sworn to this day of , A. D before me, etc. Another form is as follows: On this day of , A. D , before me a (official title), personally appeared A. B., the above named petitioner, who made oath that the foregoing petition by him signed is true of his own knowledge in substance and in fact. In equity- proceedings Form 67 is frequently used, substituting the word petition for the words "bill of complaint." The practice upon the hearing of a petition is the same as upon the hearing of a motion. The form of the order entered upon the hearing and deter- mination of a petition is the same as upon a motion, except that it commences: Upon reading and filing the petition duly verified, of (and the affidavits in support thereof, as the case may be, etc.), and then proceed as in an order upon a motion. If the petition is not filed in a cause pending, the order should be entitled as follows: In the matter of the petition of , for etc. Bibliographic Note. — See the works on practice referred to in the note to Chapter I; also Armes' U. S. Supreme Court Practice relative to motions. The practice in relation to motions, petitions and orders is ■usually governed by local rules or custom. CHAPTER XIX. JUDGMEliT AND EXECUTIO:Nr. The culmination of all legal proceedings is the judgment and execution. The judgment is the final will of the court, and the execution is the means of carrying that will into effect. A verdict is the finding of a jury upon the facts. Where the trial is before the court without a jury, the judge's decision is his finding upon the law and facts; and in both cases there is still another step, at least, before the prevailing party can have any process to carry into effect the finding of the court or jury. That final step is to enter judgment. The practice varies greatly in different courts in relation to the time and manner of entering judgment. In some courts judgment may be entered at once after the rendition of the verdict or filing of the findings of the court, but in most states a judgment cannot be entered until after the expiration of a given number of days after the verdict or findings. The purpose of this is to enable the defeated party to move for a new trial, stay of proceedings, settle a bill of exceptions, etc. Judgments may ordinarily be entered upon the ex parte motion of the prevailing party. Counsel should see to it that judgment is entered at the earliest possible moment, and that it is in proper form and broad enough to cover all questions deter- mined by the findings or verdict, as well as costs. STAY OF PROCEEDINGS: The courts usually have power to stay proceedings for a lim- ited time upon the motion of either party, and where this is done no judgment can be entered until the expiration of the time stated in the stay order. Proceedings may also be stayed by a motion in arrest of judgment, motion for new trial, or by filing a stay or supersedeas bond. 881 382 JUDGMENT AND EXECUTION. Judgments are either final or interlocutory. A judgment is final when it finally disposes of the issues involved in the suit in which it is entered, but a judgment that reserves anything for further determination, as, for example, the assessment of damages, is interlocutory. An execution will- issue only upon a final judgment. Judgments are also in rem and in personam. A judgment in rem is one that affects or runs against certain property only; as where property of a non-resident is attached and judgment entered upon substituted service, the judgment will be valid as against the goods attached, and is called a judgment in rem. Such a judgment will not preclude the defendant from making a defense upon the, merits in an action upon the judgment. A judgment in personam is one that is rendered against the defen- dant upon whom there has been personal service of process, or who has entered a general appearance in the action so as to give the court jurisdiction. Such a judgment, when lawfully entered in a court of competent jurisdiction upon due personal service, or where the defendant has entered a general appearance and submitted himself to the jurisdiction of the court, precludes the defendant, and may be enforced against him or his property, either by execution or suit upon the, judgment. ENFORCING THE JUDGMENT: As soon after the entry of the judgment as the law or the rules of court will permit, counsel should sue out of the clerk's office the appropriate process to enforce the same. This process -will depend upon the nature of the action. If the action was begun by a capias, or arrest of the body, and the defendant is still held to bail, a writ of capias ad satisfaciendum or execu- tion against the body should be sued out and immediately placed in the hands of the sheriff or other proper officer for service. A failure to sue out such process within a certain statutory period will, in some states, bar the plaintiff from taking the body of the debtor in execution. In some states, an execution against JUDGMENT AND EXECUTION. 383 the body will issue, as of course, in certain cases, while in others it will issue only upon an order of court. It is important that every step should be taken at the time and in the manner pre- scribed by statute or rule of court. In cases where there was an attachment of personal property under the original writ, and the defendant procured a dissolu- tion of the attachment by giving a forthcoming bond, or a bond to turn out the goods attached, or satisfy any judgment that may be obtained, the execution should be sued out as soon as possible, and placed in the hands of the sheriff or other proper officer, who should make a demand for payment of the judgment, or that the goods be turned out to him to be taken in execution, in order to lay the foundation for a suit upon the bond to recover from the sureties. In some states, judgments of courts of record become liens upon real estate under certain circumstances, such as docketing the judgment, or having an execution issued and a notice filed with the register of deeds. The practitioner should inform him- self fully of the steps necessary to establish such lien, and see that every requirement is strictly complied with. Judgments may be enforced by means of a suit upon the judgment, as well as by execution, and indeed there are cases in which a suit is the only remedy, as, for example, where the judgment debtor has no property or estate that can be reached by execution, but has money or personal property in the hands of a third party that can be reached by garnishment ; or where the object of the proceeding is to reach assets located in a state or county into which process issued by the court in which the judgment was entered will not run. JUDGMENTS OP SISTER STATES: Sec. 1 of Article IV of the Constitution of the United States provides that "Full faith and credit shall be given in each state to the pubHc acts, records, and judicial proceedings of every other state. And the congress may, by general laws, prescribe the 384 JUDGMENT AND EXECUTION. manner in whicli such acts, records, and proceedings shall be proved, and the effect thereof." In pursuance of the authority conferred by the Constitution, Congress has provided (Sec. 905, Revised Statutes) that the records and judicial proceedings of the courts of any state, or territory, when authenticated in the manner prescribed by said statute, shall have such faith and credit given to. them in every court of the United States as they have by law or usage in the courts of the state from which they are taken." This does not mean that a judgment entered in a court *of one state may be enforced in another state by execution, but that it will be treated as a final determination of the questions of law and fact that were in issue in the action in, which the judgment was entered, so that if the judgment was entered in good faith, by a court having jurisdiction of the subject matter of the suit and of the parties thereto, the courts of a sister state will, in an action upon che judgment, permit no-defense, upon the merits of the case or the questions of law settled thereby, but will give the judgment such faith, credit, and effect as it would have in the state where it was rendered. The only defenses that will be permitted are (1) want of jurisdiction of the action or of the person of the defendant; (2) that the judgment has been paid; (3) the statutes of limitations; and (4) in some states, but not generally, the judgment may be attacked upon the ground of fraud. We think the weight of authority is opposed to the practice of. per- mitting a collateral attack for fraud, by way of defense to a suit upon the judgment of a sister state. It cannot be done in the United States Courts. DEBT: Debt is the proper form of action upon a judgment. For a form of declaration see Form 29, on page 156. The defendant may plead that there is no such judgment (nul tiel record), want of jurisdiction, payment, nil debet, or the statute of limitations, iful tiel record is not a proper plea to a judgment of a court not of record. JUDGMENT AND EXECUTION. 385 PROCEEDINGS AT THE TRIAL: Where the action is pending in the state in which the judg- ment was rendered, it may be proved by producing the original record of the judgment, and introducing it in evidence. It is not sufficient to produce the files of the case, as they are not competent evidence, except in courts where they constitute the only record; and in such cases the proof should be supplemented by the production of the docket entries, showing the proceedings and the entry of the judgment. In some states, certified copies of the record may be used. Where the suit is pending in a court of another state, it can be proved only in the manner pre- scribed by Sec. 905 of the Eevised Statutes of the United States. The production of the record of a judgment properly authen- ticated, as provided by said act, will be sufficient evidence of all the facts therein set forth. If the record shows that the court had jurisdiction of the action and of the defendant by personal service, or by a general appearance upon his part, that a judg- ment was entered and the date and amount thereof, no further evidence will be required upon the part of the plaintiff. If it does not appear upon the face of the record that the court had jurisdiction, the omission should be supplied. If the record is not properly authenticated according to the provisions of the act of congress, it will not be received in evidence over objection, and the action will fail. SETTING ASIDE AND VACATING JUDGMENTS: The time within which a judgment may be vacated or se+ aside by the court in which it was rendered, varies in the differ- ent states; but as a rule it can only be done during the term at which the judgment was entered. The courts hold, however, that if a motion in writing to set aside or vacate the judgment is made and filed during the term, the court may enter an order continuing the motion into the next term, and thereafterwards by similar orders duly entered, may continue the motion from term to term until it is finally disposed of. 386 JUD&MENT AND EXECUTION. A court may also vacate a judgment after the term at whicli it was rendered, when it appears that the court did not have jurisdiction to render the judgment, or that for any other reason the judgment was void, or procured by fraud, or where it appears that the judgment was entered by mistake. The court will not vacate a judgment on account of a mere irregularity, nor where it appears that the moving party has been guilty of laches. The statutes of many of the states contain provisions relating to this subject, and the practitioner should inform himself upon these provisions and follow them closely. The court may vacate a judgment up6n its own motion when it appears, either that the court has been' imposed upon, or that the judgment was procured by fraud, or that justice demands it. It is also the practice in some courts to entertain an oral motion, but the better practice is to file a motion in writing, setting forth fully the grounds upon which it is based, that is, the reasons why the judgment should be vacated or set aside. This motion may be supported by affidavits, if necessary. Notice of the time and place of the hearing of the motion, with copies of the affi- davits, if any, should be served upon the other side in the manner provided by local rules of practice. IMPEACHMENT OF JUDGMENT BY BILL IN EQUITY: Equity has jurisdiction to grant relief against the enforcement of a judgment where it appears that the judgment was procured by fraud or fraudulent practices; but the fraud must be such as is extrinsic or collateral to the matter tried, and not some fraud which was in issue in the former suit, and the ground of such relief is that by fraud or deception practiced upon the defeated party, he was prevented from fully defending or making his case, by reason of which there has never been a real .contest before the court of the subject matter of the suit. A court of equity will not set aside a judgment because it was founded upon a fraudulent instrument, or for any matter thiat was actually presented and considered at the trial. United States vs. Throck- morton, 98 U. S., 61. JUDGMENT AND EXECUTION. 387 Equity also haa jurisdiction to grant relief against the enforce- ment of a judgment where it was procured through a fraudulent concealment of facts of which the defeated party had no knowl- edge, or which he could not have discovered by the exercise of due diligence; or where it appears that the party was taken by surprise by the introduction of unexpected evidence of which he had no knowledge; or where the judgment was entered by the collusive or wrongful act of his attorney; or where it appears that the court had no jurisdiction of the cause or party; or that the judge was disqualified, or the jury was tampered with; or because of misconduct upon the part of the jury or any of them sufficient to warrant the court in setting aside the vei^ diet, if it had been brought to its attention. A court of eqiiity will grant relief after a voluntary confes- sion of judgment, upon the same principle that entitles one to relief after the voluntary payment of money. Thomas vs. Wat- son, Taney, 297. Courts of equity will not grant relief against the enforcement of judgments, except in cases in which the right of the com- plainant is free from doubt and the judgment is one of which it would be unconscionable for the party who has obtained it to avail himself. A court of equity will not give effect to a defense to a judg- ment which has been fully and fairly tried at law; although it may be the opinion of the court that such defense ought to have been sustained at law. COLLATERAL ATTACKS UPON JUDGMENTS: It is sometimes stated as a general rule that a judgment can- not be attacked collaterally. As a general rule, the statement is correct, but, like many other general rules, it has its exceptions. The principal exceptions to the rule are: (1) That a judg- ment may be attacked collaterally by a party in interest not made a party to the proceeding. (2) Where the judgment was procured by fraud or collusion; and (3) where the judgment 388 JUDGMENT AND EXECUTION. was rendered by a -court not having jurisdiction of the subject matter of the cause, or of the person of the defendant, either by personal service of process within the territorial jurisdiction of the court or by a voluntary appearance upon his part. Pennoyer vs. Neff, 95 U. S., Y14, and cases cited. This case is very val-^ uable, and contains a very thorough and well considered discus- sion of the powers of the courts of a state to acquire jurisdiction over the persons of non-resident defendants, attempted to be brought in by substituted service, and the effect of a judgment rendered under such circumstances. It is well worth the care- ful study of every young lawyer. JUDGMENT AS A BAR TO ANOTHER SUIT: The judgment or decree of a court of competent jurisdiction is conclusive between the parties thereto and their privies upon the same matter. It is not only conclusive of the rights which it establishes, but of the facts which it directly decides. This rule is general and applies equally whether the proceedings are in the same or another court. And the rule applies equally to decrees in equity and judgments at law. A decree dismissing a bill in equity is a final determination of the controversy; and, if not appealed from, constitutes a bar to any further proceed- ings upon the same subject between the same parties, unless the bill be dismissed without prejudice. In order to render a judgment in one case conclusive in an- other, it must appear that in the first case the question in con- troversy was necessarily in issue and decided between the same parties. If the same questions were necessarily involved and determined, the judgment will be a bar even though the second suit is brought upon a different cause of action. And the result will be the same, even though the plaintiff in the former action offered no evidence to support his claim. A former judgment should be pleaded in bar of the action; or, where the practice admits, it rtiay be set up by notice. Under this plea or notice the defendant must ordinarily show that the JUDGMENT AND EXECUTION. 389 judgment was rendered by a court of competent jurisdiction, upon the same subject matter, and between the same parties. A judgment dismissing an action upon sustaining a demurrer to the declaration is a bar to another action between the same parties or their privies for the same identical cause of action upon the same grounds as set forth in the declaration demurred to. But if the demurrer was sustained because of the omission from the declaration of a necessary allegaition, the judgment will not be a bar to another action wherein the declaration sets forth the omitted allegation. But under the modern practice the plaintiff would be allowed to amend his declaration in the first action by supplying the allegation omitted. It sometimes becomes a question how to determine what questions were actually litigated and determined by the former action. If the decree or judgment is unambiguous it speaks for itself, but it frequently occurs that the record and judgment give little if any evidence of the exact nature of the demand passed upon by the court or jury. Where this is the case evidence is admissible to show what was actually litigated and determined in the former suit. And the jurors are competent witnesses. But their secret deliberations are not admissible. In the ab- sence of such evidence, the former judgment is conclusive only as to questions which the record shows were necessarily tried and determined. SATISFACTION AND DISCHARGE: A judgment may be discharged by an acknowledgment of .payment or satisfaction in open court and an entry thereof upon the records of the court, or by a formal discharge or release filed in the clerk's ofiice, or by the return of the execution issued upon the judgment with the return of the sheriff or other officer charged with the service thereof, showing satisfaction; and the court VTill discharge a judgment of record whenever it is made to appear by satisfactory evidence that it has been paid. In some states the statutes provide that taking the body of a 390 JUDGMENT AND EXECUTION. debtor in execution and imprisoning him until discharged by due process of law will be regarded as a satisfaction of the judg- ment; and, as a rule, the discharge by plaintiff's consent of a debtor taken in execution may be a satisfaction of the judgment. But see Eaymond vs. Butterfield, 139 Mass., 471. A judgment will be presumed to have been paid after the expiration of the statutory period during which an action upon the judgment will lie, but this presumption is not conclusive in some states. A judgment may be discharged in whole or in part by setting off another judgment between the same parties. A discharge of one of several joint debtors will operate as a discharge of all, except in states where there are statutory pro- visions allowing one joint debtor to make a separate composition without releasing the others. EXECUTIONS: An execution is' the process of the court for the purpose of carrying into effect and satisfying its final judgment. The execution must describe the judgment and follow it. A material variance between the judgment and execution will ren- der the latter void, and also all proceedings had thereunder. The execution must set forth accurately the amount of the judgment, or if the judgment is not for the payment of money, it must contain full directions as to what the officer charged with the service thereof is required to do; it must be addressed to some particular officer having power and authority to serve the" same; it must be made returnable to the coilrt out of which it* was issued, upon a day named therein as the return day. Care should be exercised to see that the execution is made returnable at the proper time. An execution returnable too soon or too late will render void all proceedings thereunder. If the execution was sued out for the purpose of laying 'the foundation for a creditors' bill, the officer charged with the service thereof should make a demand for payment upon the JUDGMENT AND EXECUTION. 391 defendant, and then if he can find nq property subject to levy, should hold the execution until the return day, when he should promptly return it to the court, with his return, showing that a demand was made, and that the execution was returned unsat- isfied in whole or in part, as the case may be. . An execution returned unsatisfied by order of plaintiff's attorney will not be a sufficient foundation for a creditor's bill. THE LEVY: It is the duty of the officer charged with the service of an execution to obey its directions, and the process will be his war- rant for whatever he lawfully does thereunder. He may, if the writ so commands, levy upon the goods, chattels, and real estate of the judgment debtor, and proceed to sell them, or so much thereof as may be necessary to satisfy the execution. Care must be exercised to see that property exempt from levy or belonging to third persons is not taken, as a mistake of that kind is apt to prove costly to the client. The officer may break the outer door of a store, factory, or other building, for the pur- pose of making a levy, but he must not break the outer door of a dwelling house; but if he obtains lawful admittance into the house he may break inner doors. Where personal property is levied upon it should be carefully inventoried and appraised, and all the statutory requirements in relation to such levies must be strictly comphed with. Where the levy is made upon mortgaged personal property, the levy must be made upon the property subject to the mortgage, and the officer's return should expressly show that the levy was so made, unless for some reason it is proposed to contest the validity of the mortgage. Where mortgaged personal property is taken without reference to the mortgage, the taking will constitute a conversion. The mortgagee may replevy the goods, or proceed in an action of trover for the conversion. As a rule, mortgaged personal property in the possession of the mortgagee cannot be taken in execution, unless it is proposed to contest the validity 392 JUDGMENT AND EXECUTION. of the mortgage, or the priority of the lien, or the right of the mortgagee to possession as against the execution creditor. The same rule applies to goods held in pledge or pawn. The personal property or assets of a co-partnership cannot be seized and sold, under an execution against one of the partners. The interest of one partner in the partnership assets may be levied upon and sold under an execution against him, but there can be no manuel possession taken of any of the goods or prop- erty. All that the officer can sell is the interest of the debtor in the partnership assets, and the purchaser will be entitled to the proportionate share of the debtor in the partnership assets after its debts are paid and an accounting had between the part- ners. The same rule applies to real estate owned by the co- partnership; the property is first liable for the payment of the firm debts. In some states, however, partnership debts are not preferred, but the interest of the debtor can only be reached by a pisoceeding in equity, in the absence of a statutory provision for that purpose. The statutes of all the states contain provisions for the exemp- tion from attachment or sale under execution of certain personal property, such as household furniture to a certain amount, books, sewing machines, the tools and implements of an artisan, the library and ofiice furniture of a physician or lawyer, certain stock and implements of a farmer, etc. The statute usually limits these exemptions to a certain amount, or value, and such property is absolutely exempt so long as it is vrithin the limit lixed by law. If, however, the property is worth more than the limit of the exemption, the surplus may be reached by execution. In some states the debtor is required to schedule his property upon the presentation of an execution, and demand for payment thereof, and when this is not done the exemption is waived. Most of these matters are now regulated by statutory provisions, and the practitioner must see that these provisions are strictly complied with in order that he may obtain the best results for his client, as well as to enable him to protect him from loss by JUDGMENT AND EXECUTION. 393 reason of any unlawful or ill-advised act upon the part of tte officer charged with the service of the execution. Growing crops may be levied upon as the property of the person who is entitled to harvest and remove them; but growing timber, grass and crops that grow naturally cannot be levied upon until severed from the land. The manner of levying upon crops and the right to harvest and remove the same is usually regulated by statute. Choses in action, such as negotiable promissory notes and bills of exchange, are not, in the absence of statutory provisions permitting it, subject to levy and sale under execution. Exam- ' ine the statutes of your state. Shares of stock in a corporation are personal property, and in most bf the states there are statu- tory provisions for levying upon and selling them, and thereby reaching the interest of the stockholder in the corporation. In order to make a valid levy upon personal property the ■officer must take actual possession thereof, and retain it in his possession until it is finally sold or the execution otherwise satisfied. If he permits the goods to remain in the custody of the debtor, the levy will be of no effect as against a subsequent levy under another execution. The officer is liable for the safe custody of the goods and chattels levied upon from the time the levy is made, and is answerable therefor both to the owner and the execution creditor. THE, SALE: Property levied upon must be brought to a sale in the time, place, and manner prescribed by the statute. The officer must advertise the sale strictly according to law, either by publishing the notice of sale in the proper newspaper the required number of times, or by posting notices at such places as the law requires, or both. A failure in this respect will invalidate the sale. Only so much of the property levied upon as i^ necessary to satisfy the execution, together with the costs and expenses of. sale, should be sold. The law requires the utmost good faith 394 JUDGMENT AND EXECUTION. upon the part of tlie officer and tlie execution creditor. The careful practitioner wiH see that every step is taken strictly ac- cording to law. THE RETURN: As soon as practicable after the sale the officer charged with service of the execution should make a return thereof, showing fully what he did thereunder. If the execution has been satis- fied in full the return should so show; if not, it should show to what extent it is satisfied. The return should be true in every particular. WHO PROTECTED BY AN EXECUTION: If the execution is valid, the proceedings thereunder regular,, and it is prosecuted in good faith and without fraud, it will be a protection and justification to the sheriff or other officer charged with the service thereof, the execution creditor and the pur- chaser at the sale thereunder. But the execution will be no pro- tection to strangers to the proceedings, nor to those who do not derive title thereunder, nor to a person who has no authority to act or make a levy or sale thereunder. A void execution affords no protection either to the offi« cer, the execution creditor, or the purchaser; but if it is regular upon its face, it will protect the parties acting thereunder for all acts in good faith performed by them. Lawyers too often make the mistake of relying too much upon the skill or knowledge of clerks of courts, sheriffs' officers and constables, who have had no technical training, and whose knowledge is acquired by the performance of purely routine duties. Again, frequent political changes bring in new men who have no knowledge whatever of the duties of the office, or of the great responsibility and danger attending the service of _legal papers. It is the duty of the attorney to see that the offi- cer charged with the service of a writ of any kind knows how JUDGMENT AND EXECUTION. 395 to proceed; he should caution him of the danger liable to arise from hasty or ill-advised action. , He should see that the writ is properly drafted, dated and addressed; that the return day is correctly set forth; that the names of the parties are correctly stated. He should foUow the matter up, and see that the writ is properly served; that the return is seasonably and correctly made and filed; and if a levy is made he should see that all the requirements of the law are carefully complied with, that the proper inventories are made, that the notices of sale are prop- erly and seasonably published, and posted, and that the sale is made at the time and place designated by the notice, and in the manner .provided by law. Attention to these details wiU pre- vent costly mistakes, and gain for the lawyer who follows this practice the reputation of being a safe and reliable practitioner. Bibliographic Note. — The only reliable works upon this subject are Black on Judgments and Resjudicata, in two volumes, published in 1891, and Freeman on Judgments, two volumes, 1893; see also Freeman on Void Judicial Sales, 1890, Rorer on Judicial Sales, 1878, Herman on Executions, Herman on Estoppel, and Res Adjudicata Decisions on Judgments, Fitnam's Trial Procedure (for Code States), Myer's Federal Decisions, Vol. XX, Wait's Actions and Defenses, Vols. Ill, IV and VII, and American and j^nglish Encyclopaedia of Law, Vol. XII. CHAPTER XX. PEEPAEATION AND TRIAL OF CAUSES. In order to be a successful trial lawyer, it is necessary that ■every case be thorougbly prepared before tbe trial. Every detail should be thought out and thoroughly mastered; the plan of ■action should be arranged; the case of the opponent should be studied so as to discover the plan or theory upon which the case will be presented and tried, in order that you may so plan your own case as to develop its greatest strength. Many lawyers have an idea that to prepare a case means simply to know the names of their witnesses, and in a general way what they say they will testify to, but men of this class are in the main unsafe and unreliable as court lawyers, and although there are many brilliant men in this class who gain the reputation of being hard fighters and great lawyers, still, it will almost always be found that this reputation was acquired more by chance than by real merit. There is another class of men who rarely prepare a case, but simply rely for success upon their' general knowledge of legal principles, their skill in intimidating witnesses and blufiing the court, a loud voice and a faculty for perverting, misquoting and twisting the evidence; but lawyers of the types mentioned are not deserving of success. There are in every city men of this class who flourish and prosper for a time, and then sink to their proper level in the profession. There is no royal road to success at the bar any more than there is to learning, but the man who gains success, who wins a name, who through the varying years of his professional career retains his reputation to the end, is the careful, thoughtful man who depends for his success upon hard work, close application, thorough preparation of his case in all its branches, and goes into ■court with his plans matured, a thorough knowledge of the legal 396 PREPARATION AND TRIAL OF CAUSES. 397 questions likely to arise, and is prepared to meet these questions and dispose of tliem. We have already endeavored to impress upon the reader the necessity of thoroughly mastering the details of the case and the \&w applicable thereto prior to the commencement of proceed- ings. If this has been done, and a memorandum of the facts,, names of witnesses, references to authorities, etc., preserved in the files, the work of preparation for trial will be comparatively easy, and all that remains to be done is to go over the matter agiain before trial, talk with the witnesses, see that they are where they can be reached at short notice, and that everything has been done in the way of giving notice for the production of books.^ papers, etc., in the possession of the other side. THE BRIEF: In order to properly prepare a case, the practitioner should prepare a brief for his own use at the trial, upon one page of which should be set forth in their order the facts necessary to be proved in order to make out a prima facie case, with the names of the witnesses who will be called upon- each point. Then should follow a synopsis of what the witnesses will testify to,, each witness being given a separate page, and if there are any, special questions to be asked the witnesses it should be noted on the page devoted to his testimony. If the witness is to be called upon to prove a written instrument or to identify the handwrit- ing, etc., make a note of this also. If you have any special line of cross-examination laid out for any of the witnesses on the other side, make a memorandum of any special questions which you may wish to ask, or of the facts which you wish to bring out, using a separate sheet for each witness. Follow with a brief outline of any special motions which you may propose, and a reference to all the authorities support- ing your case or the positions which you expect to take in refer- ence to the case made by your opponent. This brief may be 398 PREPARATION AND TRIAL OF CAUSES. more or less full, as your convenience may require. In order to make a brief of any value, you must have conversed with your witnesses and become thoroughly familiar with what they will be able to testify to. In examining witnesses before trial, it is well to impress upon them the following simple rules for their guidance : 1. That if they tell the truth, and nothing, but the truth, they need not fear the most searching and rigid cross-examina- tion; 2. A witness should never answer a question, either upon the direct or cross-examination, until he fully under- stands it in the sense in which it was put by the person conducting the examination. More trouble, confusion and contradiction is caused by' rash and hasty answers than from any other cause; and 3. A witness should be careful not to lose his temper. As long as he keeps 'cool, he will be able to cope with the most skill- ful examiner; but l6t him once lose his head, and he will soon find himself in trouble. It is the duty of counsel to impress these rules upon the witnesses and to caution them against any other dangers that may be likely to arise at the trial. THE TRIAL: \ The j£rst step is the empaneling of the jury, which is one of the most important details of the trial. The jurors are first aworn to answer such questions as may be put to them touching their qualifications to serve as jurors in the cause pending; after which counsel for the plaintiff usually makes a statement of the case something as follows: ^'May it please the court, and you, gentlemen of the jury: This is an action brought by A. B., of Chicago, against C. D., of this city, to recover the value of certain goods, wares and merchandise belonging to the said A. B., and which the said C. D. induced him to sell and deliver to him by means of false and fraudulent statements, which sale PREPARATION AND TRIAL OF CAUSES. 399 was subsequently rescinded by the said A. B. If either of you are related to or employed by either of the parties, or if you have heaj"d so much in relation to the case as to have caused you to form or express an opinion, it is your duty to inform the court." This is the extent of the examination in some cases, but the better practice after the opening statement, which will vary, of course, according to the nature of the action, is to carefully ques- tion each juror, asking his name, occupation, residence, whether he knows the opposite party or ever had any dealings or busi- ness transactions with him, whether he knows the opposing coun- sel, or ever employed him or had any dealings with him, whether he has heard of the case or formed or expressed an opinion in relation thereto, or whether he knows of anything that will pre- vent his giving the parties a fair and impartial trial, or from rendering an impartial verdict, and such other proper questions as the circumstances appear to warrant or demand.-*^ CHALLENGES: A juror may be challenged for cause, or by peremptory chal- lenge. Where it appears that a juror- is incompetent to sit be- cause of lack of the sense of seeing or hearing, or because he is too old, or prejudiced, or related to one of the parties or the counsel in the case, or has formed or expressed an opinion, or if a juror is so ignorant that the court is satisfied that he is an unfit person to sit upon the case, or if it appears to the satis- faction of the court that for any reason not already enumerated a juror is disqualified from sitting on the case or from rendering an impartial verdict, it ia his duty to allow a challenge for cause. After all the jurors who are subject to challenge for cause have been excused and their places filled, each party may still exercise the right of peremptory challenge to the extent allowed by stat- ute. In civil actions each side is usually entitled to three per- iThis method of examining jurors is universal in Chicago, Detroit and other western cities. 400 PREPARATION AND TRIAL OF CAUSES. emptory clialleiiges. These challenges should be -used -with great care, and before excusing a juror, counsel should be satisfied that there is good cause to believe that it is best to do so, and he should also satisfy himself of the character of the remaining jurors from among whom the panel must be filled. When the jury is final- ly selected it is sworn to try the issues. ' OPENING THE CASE TO THE JURY: The jury being impaneled, coimsel for the plaintiff has the right to open the case to the jury. This should be done clearly and carefully, in order that the jiiry may know just what ques- tions will be presented for consideration. Counsel should give a brief history of the transactions in question, from the begin- ning, informing the jury what he expects to prove, and the nature of the damages sustained by the plaintiff. The opening should not be~ in the nature of an argument, nor should there be any attempt to befog the issues. At this stage, whatever counsel may do later, he should stick to facts and do his utmost to place the case before the jury in a clear, logical and truthful manner. Counsel sometimes make the mistake of mis-stating or overstat- ing their case in the opening. ISTothing can be worse than this practice, as the jury will remember the opening statements, and if the evidence fails to substantiate the opening, the effect upon the jury will be bad. Counsel for defendant may, if he wishes to do so, make an opening statement to the jury immediately after the close of the plaintiff's opening statement,-'- and good lawyers differ widely upon the advisability of doing so. Some always make an open- ing statement at the close of plaintiff's opening, others make their opening at the close of the plaintiff's case, just before putting in the defense. There are sound arguments in favor of both courses, and we believe the better practice is to have no fixed rule, but IThis is not a universal rule, although it prevails in many of the states. The practice might be profitably extended to states -where it is not at present in vogue. PREPARATION AND TRIAL OF CAUSES. 401 to proceed in each case as the circumstances may appear to demand. In cases of importance, especially where the facts are compli- cated and the opening statement might, if unexplained, create a strong impression xroon the jury in favor of the plaintiff, or where counsel for the plaintiff makes a very strong and telling opening, counsel for defendant should embrace the first oppor- tunity to place before the jury the facets and circumstances con- stituting the defense relied upon, in order to counteract the im- pression caused by the plaintiff's opening. This requires great skill, not to disclose the line of defense so fully as to enable the plaintiff to prepare for or meet it in his main case, thus weaken- ing its effect and at the same time disclosing enough so that as the trial proceeds the jury will have in mind the defense outlined. This will often keep the jury from becoming so deeply impressed by the evidence in support of the plaintiff's case as not to be able to weigh impartially that introduced by the defendant. ',' On the other hand, the defense is sometimes of such a nature that counsel deems it wise not to disclose it until the plaintiff has rested, in order that the latter may be taken by surprise and not have an opportunity to rally his forces or bring in rebutting evidence. It sometimes occurs that counsel proposes to move for a non-suit and does not wish to disclose his defense at all ; un- der these circumstances it may be wise to defer the opening until the' close of the plaintiff's case. It will be seen from the forego- ing that no rule can be laid down for the government of counsel in all cases, but he must be governed by the circumstances of the case as they appear at the time of the trial. It is not unusual for an experienced counsel to change his plan at the last minute, and make an opening statement when he had fully intended not to do so, or vice versa. After the opening to the jury, the plaintiff must call his wit- nesses and put in his case. There is no part of the trial of the cause that affords a greater opportunity for the display of the 402 PREPARATION AND TRIAL OF CAUSES. skill and ingenuity of tlie lawyer than tlie examination of liis witnesses and tlie gradual unfolding of his case. In order to make the best impression upon the jury, the evidence should be put in in logical order, so that the mind is easily carried along from one point to another, until the entire chain of evidence finally appears without a flaw, each link firmly welded and of such strength as to resist all efforts to break it. If, on the other hand, counsel puts in his evidence without regard to the logical order of events, the jurors are liable to become confused, their minds are constantly called from the consideration of one set of facts to facts which appear in no way connected with those al- ready testified to. The result often is that the jury, unable to tmravel the snarl of facts and create a chain of evidence sufficient to warrant a verdict, renders a verdict which is not warranted by the facts or the law, and for which counsel alone is responsi- ble by reason of the slovenly manner in which he put in his case. Men usually do things in a certain way, certain things induce certain actions, men reason from certain premises to certain con- clusions, and the "course of reasoning is almost always about the same, and the same result is reached; and this is true of the ordi- nary affairs of business. It follows that the mind of the average man is logical to a certain extent; within his sphere and accord- ing to his capacity he does things in a logical manner; if, there- fore, counsel, in preparing his case, will endeavor to map out the line upon which the minds of the jurors will most easily travel from the premises to the right conclusion, that is. to say, a ver- dict for his client, and then follow that line, his prospects of suc- cess will be much greater than if he puts in his case without any regard to the natural sequence of events or of the workings of the minds of the jurors. MOTION FOR NON-SUIT: After the plaintiff has rested, the defendant's counsel may proceed with the defense. If the plaintiff has not made out a case, the proper proceeding is to move for a non-suit. This pro- PREPARATION AND TRIAL OF CAUSES, 403 ceeding varies in the different states. In some, a motion, for a non-suit is the proper proceeding; in others, counsel demurs to the evidence as insufficient, and moves to strike it out; vs^hile in others, the practice is to request the court to direct a verdict for the defendant. Whatever the practice may be, the practical re- sult is the same. It is important, however, that counsel be thor- oughly familiar with the practice in his own courts. In some states a demurrer to the evidence at the conclusion of the plain- tiff's case, if insisted upon, will preclude the defendant from put- ting in any evidence; in others, the error of the court in over- ruling the motion will be deemed to be waived by the defend- ant putting in evidence and going to the jury; in other courts, the' practice is to make the motion after all the evidence is in. Counsel having fully informed himself as to the practice in the coiirt in which the trial is pending, should first ask the court for permission for the jury to retire. This is done for the reason that if the argument is made in the presence of the jury, and the motion for a non-suit is overruled, the impression upon the jury cannot be other than ijnfavorable to the party making the motion. After the jury has retired, counsel should state clearly and concisely the grounds of the motion, citing authorities when necessary. If the motion is based upon the lack of evidence to establish a material point, it should be clearly pointed out. The motion and the grounds thereof should be taken down by the reporter, together with the ruling of the court and the exceptions thereto, if any. Counsel for the plaintiff will have the privilege of replying if the court cares to hear from him, and counsel for defendant may close. The court sometimes listens to the mo- tion and supporting argument, and overrules the motion without hearing from the opposing counsel, but in all cases counsel for the plaintiff, will be heard if he so desires. Counsel for the plaintiff should never go into court without being prepared to meet a motion for a non-suit, and to reply to any argument that may be made in support thereof. A lawyer 404 PREPARATION AND TRIAL OF CAUSES. taken by surprise in the midst of a trial is like a ship in a storm upon a trackless ocean without rudder or compass. His chance of success is just about as good as the chance that the ship will arrive safely at her destination. A well-fought case, though lost, will reflect credit upon the attorney who conducted it; but a cause lost through the carelessness or neglect of the attorney will result in the loss of his client as well as damage to his profes- sional reputation. If the motion for a non-suit is overruled, counsel for defend- ant may proceed to put in his defense; or, if the circumstances warrant it, he may stand by his motion, refuse to offer any evi- dence, and rely upon a reAi-ersal upon a writ of error. Counsel should be sure of his ground, however, before electing to purgue this course; and if there is a good defense upon the merits, the better practice is to try the case through, go to the jury and get a verdict, if possible, laying the foundation in the meantime by objections and exceptions for a reAi'srsal upon writ of error. THE DEFENDANT'S CASE: What we have said in relation to the manner of putting in the plaintiff's case applies equally to the defendant. The evi- dence should be introduced in its logical order and every material, fact established by the plaintiff should be denied or explained away, if possible. If the defendant has pleaded a counter-claim, set-off or recoupment, he must introduce evidence in support of such claim in the same manner as he would be required to do if he were suing in an independent action. It may be stated as a general rule, that all defenses that require to be specially pleaded must be supported by affirmative evidence, and the burden of establishing such defense is upon the defendant ; while all defenses that may be made under the general issue may be supported by neg= ative evidence, leaving the burden of proof upon the plain- tiff. PREPARATION AND TRIAL OF CAUSES, 405 The evidence should be confined to the questions in issue. There is always a tendency to get away from the real issue, and to bring in questions that have no bearing upon the issues in- volved in the case at bar. This should be studiously avoided, and if the case has been carefully prepared the tendency to wander from the issue will not be so great. OBJECTIONS AND EXCEPTIONS: If an improper question is asked, the opposing counsel may object either upon the ground that it is leading, or that it calls for the opinion of the witness and not a fact; or that it' calls for expert evidence without the witness having first qualified as an expert; or that it calls for a conclusion and not a fact; or that it calls for testimony which the witness is incompetent to give by reason of some statutory prohibition, as where the action is by or against the representatives of a deceased person, the opposite party may be disqualified from testifying; or upon the general grounds that the evidence is incompetent, immaterial, or irrele- vant; or that the question calls for secondary evidence without there having been any explanation of the inability of the party to ' produce the best evidence; or that the question calls for hear- say evidence, etc., etc. In many courts it is sufficient to simply object without stating the grounds of the objection, but the bet- ter practice is to state briefly the grounds of the objection and have them taken down by the reporter, together with the ruling of the court and the exception. Court reporters are oftentimes careless and fail to note the exception. Counsel should see that every material exception is noted at the time it is made. REQUESTS TO CHARGE: In some states the judges are not allowed to deliver any charge to the jury, .except it shall have been first reduced to writing. Where this rule prevails, the instructions are usually prepared by the respective counsel, and submitted to the court upon the closing of the testimony, and the court gives such of the requests as commend themselves to him, and marks the others 406 PREPARATION AND TRIAL OF CAUSES refused, or lie may reject all tlie requests offered and substitute instructions drafted by himself. In most of tbe states the practice of instructing the jury orally remains, but counsel may nevertheless submit such special requests as the exigencies of the case may require. The pre- paration of instructions and requests to charge is a matter re- quiring the utmost care, caution and experience. Counsel should never draft them hastily, nor without a thorough knowl- edge of the law and the facts of the case. A request to charge should be as plain and simple as the circumstances will permit. Each request should state but one proposition, which should be based upon the evidence. A re- quest not supported by any evidence will be bad. The jury is the sole judge of the facts, and the court must not in any way interfere with or abridge this right. The province of the instruction or charge is to inform the jury what the law is upon a given question of fact, leaving the jury at liberty to de- termine whether the fact exists. The court will not be per- mitted to express an opinion as to what the verdict of the jury should be, and if he calls attention to the evidence upon one side of the case he ought to refer in the same manner to the evidence upon the other side, so that the jury may not be able to detect any leaning or partiality upon his part in favor of either party. If the court has been making erroneous rulings against you in the course of the trial, it will be the better practice not to pre- sent any requests upon the points covered by such rulings, as the court may cure the errors occurring during the trial by a good charge, and thus destroy your chances of obtaining a reversal upon a writ of error. It is bad practice to attempt to set a judge right at the end of a trial after his ruHngs have been against you from the beginning. EXCEPTIONS TO THE CHARGE: Exceptions to the charge should be taken before the jury re- tires, in the absence of a rule to the contrary, and a failure to do so will be deemed a waiver of the right to except. The excep- PREPARATION AND TRIAL OF CAUSES. 407 tion should point oiit clearly the part of the charge to which it refers, giving enough of the language of the objectionable part, or the meaning thereof, so that there may be no doubt as to thfe part of the charge referred to when it comes to making up the bill of exceptions. CLOSING ARGUMENTS: After the evidence is in, each side is entitled to address the jury, the plaintiff generally being allowed to open and close the argument. In his addre^ counsel should again refer to the points relied upon, and review the evidence supporting his theory of the case; he should refer to the contention of the opposing counsel and point out the weakness of the evidence upon which the latter relies for its support; he may refer to the witnesses on the other side, point out the discrepancies in their testimony, their appar- ent bias, their apparent untruthfulness — ^if such be the fact, their bad character — ^if their character has been impeached, the im- probability and inconsistencies of their testimony when tested by the everyday experiences of men of affairs. On the other hand, he may refer to the high standing of his chent or witnesses in the community, of the length of time they have lived in the com- munity, the improbability of his being guilty of practices such as those charged, the weight to be given to his testimony, etc. The closing argument affords a great opportunity for a display of the powers and ability of counsel. There are men at every bar whose influence with a jury is phenomenal; men who gain great reputa- tions as jury laAvyers, and are retained in every case in which the issues involved warrant the employment of such men. This repu- tation springs from various sources; often it comes from long and tedious practice, careful and thorough preparation; and some- times it comes from the fact of long residence in the community and a wide acquaintance with the people. Now and then we find a man like Daniel Webster, with massive frame, ponderous bearing, thunderous voice like the breaking of waves against a rocky cliff, who sways juries and wins verdicts by the force of 408 PREPARATION AND TRIAL OF CAUSES. his personality. Occasionally we find a man in whose hands the jury is a human instrument upon which he plays with the skillful hand of a master. Upon this living instrument he plays at will; with light touch he causes the strings to vibrate with the light,- airy melodies of joy and pleasure; with firmer touch the notes change to strains of sorrow, wrong and oppression, descending into roars of rage, hate, malediction and revenge as the touch grows heavier and heavier, until, carried away by the grand pas- sion of the player, it bends to his will and does his bidding. Under the influence of such a man the jury is as clay in the hands of the potter who moulds and shapes it as he wishes; and it is to such influence as this that we must attribute some of the wonderful victories won without regard to the law or the facts, which sometimes startle the community. Fortunately for the profession at large, such men are rare. Where one man possesses such marvelous powers over the minds of other men, thousands of lawyers gain reputation only by diligently pursuing their profession, trying each case for all there is in it, and winning success by hard work and industry, which, after all, counts for more and accomplishes greater results in the long run than genius without industry. PROCEEDINGS AFTER VERDICT: After the verdict is rendered, it is the duty of the prevailing party to move for judgment as soon as he can do so under the law or the rules of court, in order to secure the fruits of his victory. (See Judgments and Executions, Chap. 19.) It is not often that the defeated party is able at the time the verdict is rendered to decide definitely upon what course he will pursue next, but it is the duty of counsel to take all the steps, necessary to preserve his client's rights so that he may not be cut off from taking such steps to obtain a reversal as the circum- stances may seem to warrant. If the statutes or rules of court require that a motion for a new trial must be made at once, or that the bill of exceptions must be presented within a certain PREPARATION AND TRIAL OF CAUSES. 409 limited time, counsel should obtain an order, whicli the court will usually grant upon an ex parte motion, extending the time for filing a motion for a new trial or settling the bill of excep- tions, and usually these extensions may be renewed upon motion, but the order of renewal must be applied for before the expira- tion of the first extension. The practice relating to motions for new trial, appeals and writs of error is always governed by local rules and statutes, with which the practitioner must necessarily familiarize himself. Where the court in which the cause was tried has power to grant new trials, it is always good practice to file a motion for a new trial, for the reason that the judge may have reviewed the case in his own mind and satisfied himseK that there was error in some of his rulings, and it is only fair that he should have a chance to review, coolly and deliberately, the rulings made has- tily and without an opportunity for consideration, in the hurry and heat of the trial. The motion for a new trial should set forth briefly the grounds relied upon as reasons for setting aside the verdict, and the bet- ter practice is to set forth each ground in a separate paragraph. Ordinarily, the court will consider only the grounds set forth, and for this reason great care is required in preparing the motion to make it sufficiently broad to cover all the errors upon which it is proposed to rely upon the hearing of the motion. If the motion is based upon newly discovered evidence, the nature of the evidence should be set forth and the motion should be accompanied by an afiidavit that the existence of the evi- dence was unknown at the time of the trial^ and that it could not have been discovered by due diligence, etc. Or, if the ex- istence of the evidence was known, but the whereabouts of the witness was unknown, and could not be discovered in time to procure his attendance at the trial or take his deposition, this fact should be supported by affidavit. If the grounds of the motion are matters apparent upon the face of the record, they 410 PREPARATION AND TRIAL OF CAUSES. need not be supported by affidavit. Copies of the motion and supporting affidavits should be served upon the opposing counsel, together with a notice of the time and place of hearing. Upon the hearing the moving party will have the opening and clos- ing. (For further proceedings after verdict, see Chap. 16, Ap- peals and Writs of Error.) Bibliographic Note. — Thompson on Trials is a reliable work and covers the subject of the preparation and trial of causes more fully than any other work. Abbott's Trial Evidence is a very valuable book, as is also Abbott's Trial Brief. Skill in Trials and Tact in Court, by Judge J. W. Donovan, are popular works. See also Greenleaf on Evidence, Vols. II and III, and the other works on evidence referred to in the note to Chapter II. CHAPTER XXI. AEFIDAVITS AND ACKNOWLEDGMENTS. An affidavit is an ex parte declaration in writing, subscribed by tbe party making the declaration and sworn to before some person who has authority to administer an oath. Where an affidavit is to be used in connection vnth any of the proceedings in an action already begun, it should begin with the title of the cause and court. Where an affidavit is independent of court proceedings already begun, it should commence with the venue, that is, the state and county where the affidavit is made. The common form of an affidavit is as follows: Porm 87. State of , County of bs. A. B., of , in said county and state, being duly sworn, on oath deposes and says: (Then state in narrative form the facts which constitute the subject matter of the declaration, beginning each para- graph as follows, "And this deponent further saith that," concluding,. "And further this deponent saith not.") Signature of Deponent. Then follows the jurat, which is as follows: Subscribed and sworn to this day of , A. D. 189 before me. Signature of Magistrate. Official Title. The letters "SS" opposite the venue, stand for the word "scilicet," which means to-wit, namely, or, that is to say. It is probably used through deference to ancient custom, and com- paratively few think of or even know its meaning. The person making the affidavit is called the "deponent;" but 411 412 AFFIDAVITS AND ACKNOWLEDGMENTS. where the affidavit is made by a person who affirms, the term "affirmant" is properly used. The jnrat is the certificate of the magistrate or officer admin- istering the oath. It should always state facts, and bear the exact date upon which the instrument was executed. The officer administering the oath should sign his christian name in full, and follow his signature with his official title in full, without any abbreviation. SEAL: In cases where the statute requires that the official acts of certain officers shall be attested by their seal, the officer must affix his seal, and his failure to do so will be fatal. In most of the states, however, the seal is unnecessary; but in cases where the affidavit is to be used in another state the officer should affix his seal. "Where the affidavit is made by an agent or attorney it should commence as follows: Form 88. A. B., of , in said county and state, being duly sworn, on oath deposes and says, that he is the agent (or attorney) of C. D., of , and makes this afiBdavit on his behalf. Where the affidavit is made by a member of a co-partnership, the following commencement may be used: Form 89. A. B., of , in said county and state, being duly sworn, on oath deposes and says, that he is a member of the firm of C. D. & Company, of ; that said firm is composed of A. B., C. D., B. F. and G. H., and that he makes this affidavit in behalf of said firm. An affidavit by an officer of a corporation may commence as follows: Form 90. A. B., of , in said county and state, being duly sworn, on oath deposes and says, that he Is the president (or other officer) of The Company, a corporation organized and existing under the laws of and makes this affidavit in behalf of said corporation. AFFIDAVITS AND ACKNOWLEDGMENTS. 41 3 In drafting affidavits care should be taken to see that they express the exact meaning of the deponent. It frequently hap- pens" that the officer drafting the affidavit fails to understand the statements of the, deponent in the sense in which he intended them to be understood, and the deponent is not infrequently made to swear to statements which are not in accordance with the facts, and which he would not have sworn to if he had understood the full meaning of the language used by the officer drafting the instrument. The officer should endeavor to understand exactly the idea or fact which the deponent wishes to express, and after it is written to see that the deponent understands the true meaning of the language as written. Endeavor to make the statements clear and concise; use ordinary language and well-understood expressions if possible, and do not use technical terms if they can be avoided. It sometimes happens that instead of an affidavit in the ordi- nary form a person may wish to verify a petition, or swear to the contents of an instrument in writing subscribed by him. In such cases the following may be used: Form i>l. State of , County of ss. On this day of , A. D. 189 , per- sonally appeared before me, the subscriber, a (title of the officer), in and for said county and state, A. B., personally known to me to be the person who executed the foregoing instrument, and made oath that he has read (or heard read) the foregoing petition (or statement) by him subscribed, and knows the contents thereof, and that the same is true in substance and in fact. Signature Official Title. Or the following may be used in cases where the person executing the instrument wishes to qualify his oath, "and that the same is true- to the best of his knowledge, information and belief." Or the following may be used: 414 AFFIDAVITS AND ACKNOWLEDGMENTS. ' Form 92. State of , County of ss. On this day of A. D. 189 per- sonally appeared before me, the subscriber, a (title of officer), in and for the said County and State, A. B., personally known to me to be the person who executed the foregoing instrument, and made oath that he has read (or heard read) the foregoing petition (or statement) by him subscribed, and knows the contents thereof, and that the same is true of his own knowledge, except as to those matters which are therein stated to be upon information and belief, and as to those matters he believes it to be true. (Signature and official title of Officer) Forms of affidavits may vary sH'ghtly in varioios states, but the forms here given ■will be found sufficient under almost all circumstances where an ordinary affidavit is required. AFFIRMATION: There are persons who are conscientiously opposed to taking an oath, and the statutes of most qf the states recognize the scruples of such persons by providing that instead of taking an oath, they may be permitted to affirm under the pains and penal- ties of perjury. In such cases the following form may be used: Form 93. State of , County of , ss. A. B., of being conscientiously opposed to taking an oath, solemnly and sincerely, and under the pains and penalties of perjury, affirms and says And the jurat may be as follows: Subscribed and solemnly and sincerely affirmed, under the pains and penalties of perjury, this day of A. D. 189 before me. Title of Officer. ACKNOWLEDGMENTS : An acknowledgment is a certificate made by a Notary Public, or other competent officer, constituting one of the formalities AFFIDAVITS AND ACKNOWLEDGMENTS, 4I5 necessary to tlie execution of deeds, mortgages and certain otlier instruments. It consists of a declaration tliat at a certain time and place tlie person or persons who executed the instrument acknowledged the same to be their free act and deed. It is hot an affidavit, but a certificate given under the hand of the officer signing the same, and is in some instances attested by his seal. Its purpose is to add solemnity to the execution of convey- ances, mortgages and instruments of a similar nature which affect the rights of the parties to a greater degree than the more com- mon instruments, and to preserve evidence that the instrument was executed freely and understandingly. Acknowledgments are usually taken before a ISTotary Pub- lic, Justice of the Peace, or Commissioner. The power to take acknowledgments is given by statute, and the form of the acknowledgment, the officer by whom it may be taken (whether in the state or in another state or a foreign country), is also gov- erned by statute. The acknowledgment should always be executed with great care. The officer taking the acknowledgment should be careful to ascertain that the person or persons who acknowledge the execution of the instrument are the identical persons named in the instrument. In many of the states the form of the acknowledgment requires the officer to certify that the persons who acknowledged the instrument are well known to him to be the persons who executed the instrument; but whether the sta- tute requires this or not, great care should be exercised, and if the parties are strangers the better practice is to have them identi- fied by some person who is known to the officer, and to refuse to take the acknowledgment unless this is done. It has been held that the officer is bound to inform himself of the identity of the parties acknowledging a conveyance. Cameron vs. Culkins, 44 Mich., 531. The acknowledgment should be in the form prescribed by statute; but it will not be void if it varies in slight particulars, if 416 AFFIDAVITS AND ACKNOWLEDaMENTS. it contains language whicli can be construed so as to express tlie facts required to be set forth. If the acknowledgment shows that the persons who executed the instrument in question ap- peared before the officer at a certain time and place, and then and there acknowledged that the said instrument by them sub- scribed was their free act and deed, and that the persons execut- ing the instrument were personally known to the officer, it will be sufficient almost anywhere. It is the policy of the law to uphold certificates of acknowledg- ment when the substance is found, although it may not be expressed in the exact form required by the statute, and the coiu'ts will not suflFer a conveyance or the proof of a conveyance to be defeated by technical or unsubstantial objections. Morse vs. Hewett, 28 Mich., 484. The acknowledgment will be read in connection with the instrument and in the light of surrounding circumstances. All technical omissions, obvious clerical errors and defects will be disregarded in order to uphold it whenever the substance of a sufficient acknowledgment is found in the cer- tificate. THE DATE: The acknowledgment should be dated on the day when taken. It sometimes happens that the parties may wish to date back the instrument, but the officer cannot lawfully date his certificate on any other day than that upon which it was actually executed. The same is true as to affidavits. IT MUST BE SUBSCRIBED: The officer must sign his name to the certificate of acknowledg- ment. His name in the body of the certificate will not be suffi- cient. The signature should correspond with the name of the officer as written in his commission, and his official title should be written at length. Justices of the Peace frequently use the initials "J. P.," and Notaries Public, "IST. P.," but this is not a sufficient description and should be avoided. AFFIDAVITS AND ACKNOWLEDGMENTS. 417 SEAL: In some states notaries public are required to attest all their official acts by tbeir official seals (as in Elinois), and in sucb states the omission of the seal may be fatal. Where the instru- ment-is executed for use in another state the officer should always affix his seal, if he has one. TO WHAT CREDIT ENTITLED: The regularity of an acknowledgment before a competent ■ acknowledging officer will be presumed, and a genuine certifi- cate of acknowledgment is presumptive evidence of the genuine- ness of the instrument to which it is attached. The burden of proof is on the party contesting the instrument, to show forgery, misconduct of the officer, or other irregularity in the instrument. The certificate is presumptive evidence of all the mate- rial facts therein set forth, and is entitled to full credit until it is overcome by competent evidence. SEPARATE EXAMINATION OP WIFE: In some of the states the statutes require that the wife, join- ing in a conveyance with her husband, shall be examined sepa- rately and apart from her husband, and that she acknowledge that she signed the conveyance or other instrument of her own free will and accord, and without fear, constraint or threats upon his part. The phraseology varies in the different states where separate examination is required, but it is important that the certificate follow the exact language of the statute. Not only must the certificate set forth the fact of the separate examina- tion and separate acknowledgment, but the officer must actually make the examination. The vsdfe should be questioned apart and free from the influence of her husband. The nature and effect of the conveyance or other instrument should be truthfully and fully explained to her. She should be made to understand 418 AFFIDAVITS AND ACKNOWLEDGMENTS, tlie effect of tte conveyance, and the officer should be satisfied that the wife if not being overreached, or coerced against her will, either by threats, fear, constraint or any other influence which prevents her from exercising her free will, and if he is not satisfied of the good faith of the proceedings, or that the wife is acting freely and witho.ut constraint or fear, he should refuse to take the acknowledgment. FORMS OF ACKNOWLEDGMENTS: The sufficiency of an acknowledgment depends wholly upon its conformity with the statutory provisions in force at the place where the instrument is to take effect. As these provisions vary materially in the different states, we do not deem it advisable to attempt to give forms, but will simply suggest that the officer must make himself familiar with the statutory requirements in his own state and makes his certificate conform to these require- ments. Where the instrument is executed in one state for the pur- pose of conveying lands or affecting interests in another state, great care should be exercised to make the certificate conform to the statutory requirements of the state where the lands or other interests to be affected are situated. LIABILITY OF THE OFFICER TAKING ACKNOWLEDGMENT: The officer taking an acknowledgment may, by his miscon- duct, make himself criminally liable, or he may become liable to an action for damages by reason of his misconduct or neglect. For example, an officer certifying to an acknowledgment when he knew that the person making the acknowledgment had forged the signature of the alleged grantor to the deed, or that he waa not the person who executed the deed, would undoubtedly render himself liable to a criminal prosecution. And any fraudulent act, or any wilful act of omission, any neglect or failure of duty upon the part of the certifying officer will render him b'able to civil, if not to criminal, proceedings; and officers taking acknowl- AFFIDAVITS AND ACKNOWLEDGMENTS 419 edgments cannot be too carefnl in ascertaining tliat the parties appearing before them are the identical persons named in, and who executed the instrument, and that the certificate is strictly true as to date and all the facts stated therein. Bibliographic Note. — There are few special works upon this subject. They are Reardon on the Forms of Acknowledgment of Deeds in the Several States, Birdseye's Abbott's Clerk's and Conveyancer's Assistant, Jones on Forms, Conveyancing and General Legal Forms, and Bndlich on Affidavits ot Defense. See also Greenleaf on Evidence, Vol. I, Starkie on Evidence, v^ol. II, and American and English Encyclopaedia of Law, Vol. I. CHAPTER XXII. DEPOSITIONS. It sometimes happens that material witnesses are at such a dis- tance from the place where a cause is pending as to be unable to .attend at the trial, or can only be produced at the trial at great and disproportionate expense, or that they live in another state or country, so that they cannot be compelled to attend at the trial by means of the ordinary process. When this is the case, if the party deems the testimony of the witness to be indis- pensable, he may proceed to have his deposition taken, to be used at the trial. The taking of depositions is a purely statutory proceeding, and we cannot attempt to give more than a few practical sug- gestions or hints that may be useful to a young practitioner. As the proceedings are statutory, the first step should be to master thoroughly all the statutory provisions. If this is done, and the provisions are carefully followed, there will be little danger of going "wrong. Depositions are usually taken under a commission issued un- der the seal of the court where the cause in which the deposir tion is to be used is pending, directed to some person therein named, authorizing or directing him at a certain time and place to take the depositions of certain witnesses therein named, upon the written interrogatories and cross-interrogatories (if any) thereto annexed (or upon oral interrogatories and cross-interroga- tories to be propounded to said witnesses by the respective par- ties), and to return the same to the said court, there to. be used in behalf of the party suing out the commission. The statutes provide in what manner and upon what notice the commission must be sued out, and how the interrogatories and cross-interrogatories shall be settled. These provisions must 420 DEPOSITIONS. 421 be strictly complied with, as a failure in this respect may be ground for a fatal objection. THE INTERROGATORIES: The great difficiilty arises in drafting the interrogatories. They must be sufficiently clear and direct to bring oixt the necessary facts, but they are always subject to the objections of being leading, and as calling for incompetent, immaterial or irrelevant testimony. It is a common practice to change the form of a question where it is desired to bring out an important piece of evidence, asking the question in several different ways, in order that there can be no doubt of obtaining a satisfactory answer. Greater skill is required in framing interrogatories and cross-interrogatories in the taking of depositions than in examin- ing a witness in open court, becatise the whole ground must be covered by the interrogatories, while in court the witness can be asked questions to bring out more sharply the important parts of the evidence. Again, when the witness is on the stand in court, counsel can lead up to the climax warily, in order that nothing injurious to his client's case may be brought out. This is a won- derful advantage, but in taking depositions the witness is usually at a distance; counsel may know nothing of his characteristics or intelligence, or whether he will grasp the real meaning of the questions; and, too, witnesses sometimes answer only part of a question, leaving a very important part of the question unan- swered. It is necessary, therefore, to make the interrogatories very simple and plain, each interrogatory embodying but one question, as by so doing the answer will be more apt to be respon- sive to it. CROSS-INTERROGATORIES : Cross-interrogatories should be carefully drafted, and it is often the better practice to put no cross-interrogatories unless it is certain that the witness is possessed of facts that will be -of benefit to the client, and which it is believed he will suppress unless specially interrogated in relation thereto. 422 DEPOSITIONS. There is more danger in a careless cross-examination of a witness by means of cross-interrogatories tlian if the witness were on the stand in open court, where counsel can see him, hear him testify, and judge of the length to which it is wise to press the examination. Cross interrogatories are frequently useful in compelling the witness to produce a paper, written instrument or letter in his custody, and in identifying and proving papers, written instru- ments and letters which may be of benefit to the client. Care should be observed in drafting cross-interrogatories not to expose the case or line of defense more than necessary. TAKING DEPOSITIONS: The depositions must be taken at the time and place named in the commission or notice; but it is usually sufficient if the tak- ing of the deposition is begun on the day named in the commis- sion and an adjourmtnent taken to the next day at some time and place definitely stated. Such commencement and adjournment must be set forth in the commissioner's certificate or return. If the depositions are taken on written interrogatories and cross- interrogatories, it is not customary for counsel to be present, although they may be; but if the depositions are taken on oral interrogatories, it is customary for both parties to be represented by counsel, and the taking of the depositions will proceed very- much as if the witness was on the stand in open court. Counsel will make their objections to the questions, and the commissioner will note the objections and the grounds thereof, and the excep- tions. After the examination of a witness is completed, his testi- mony should be carefully read over to him, allowing him to make corrections if he wishes to do so, after which he should sign it. After the examination of all the witnesses is completed, the commissioner should attach his certificate showing that the wit- nesses were sworn, etc., and make his return, setting forth fully and truly the time and place, when and where the depositions DEPOSITIONS. 423 were taken, who, if anyone, were present representing tlie dif- ferent parties, wliat adjournments were had, if any, and any other particulars required by the instructions; after which the evidence, certificate and return should be attached to the com- mission and returned to the clerk of the court out of which the commission issued, observing in so doing all the precautions prescribed by the instructions. OBJECTIONS: If the depositions are taken on written interrogatories, it is sometimes the practice to file written objections to the interro- gatories and cross-interrogatories with the grounds of the objec- tions; where the depositions are taken on oral interrogatories, the objections, of whatever nature they may be, may be entered upon the record at the time the depositions are taken and certified by the commissioner. There are provisions in most of the states in relation to the filing of objections after the depositions are opened. Usually objections to form must be filed within a certain limited period, while objections to matters of substance may be made at the trial or hearing. An examination of the local rules of practice or the statutes will enable you to know what the practice is in this respect. The rules of the Circuit Courts of the United States provide that all objections of form shall be deemed to be waived unless the same be filed in vn-iting and served on the opposite party within five days after receiving notice from the clerk that the depositions have been received and opened (Law Eule 30). It is customary in issuing a commission to take depositions to attach to it printed instructions in relation to the manner of swearing the witnesses, reducing the answers to writing, notice to the parties, the form of the certificate and return, the manner in which and to whom the dejpositions shall be re- turned, how they shall be sealed up, and the like. These instruc- tions should always be strictly followed. 424 DEPOSITIONS. OPENING DEPOSITIONS: Depositions should be opened only in the manner and by the person prescribed by statute or rules of court. In some courts there is a standing rule permitting the clerk to open depositions; in others, a special order of the court is necessary. The party upon whose motion the deposition is taken should see that it is properly opened, as a deposition improperly opened may be sup- pressed. DEPOSITIONS BY STIPULATION: It is sometimes the case that attorneys stipulate that a com- mission may issue for taking depositions, either on oral or writ- ten interrogatories. They also sometimes stipulate for the tak- ing of depositions without a commission, and such stipulation will be binding upon the parties, and the depositions, if regularly taken, will be received in evidence with the same effect as if they had been taken under a commission regularly issued. The following is a common form of stipulation for taking depositions: '" Form 94, Court for tlie County State of of , , in the 1 TS. Plaintiff, ■ 1 Defendant. 1 It is hereby stipulated between the parties to this action by their respective attorneys, that the testimony of , a witness on behalf of said plaintiff, may be taken by deposition at , in the State of , by , as Commissioner or Notary Public, at his office at No Street, in the City of at the earliest possible date and without notice to us (or upon notice as may be agreed). That said testimony of said witness shall be taken on the written interrogatories and cross-interrogatories hereto annexed, which are hereby agreed 'to and settled, to be put to said witness by the said Commissioner or Notary. That when signed by said witness and certified by said Commis- DEPOSITIONS. 425 sloner or Notary, said deposition shall be returned to , Esq., Clerk of the Court for the County of , by mall. Said deposition may be used and read in evidence at the trial of said cause and at any re-trial thereof, the same as if said witness were present in court and testified at the trial of said cause, and said deposi- tion shall be subject to objection as to relevancy and competency only. EFFECT OF DEPOSITION: Attorney for Plaintiff. Attorney for Defendant. Testimony taken by deposition may, if competent, relevant or material, be read in evidence with the same effect as though the witness was present in court, and counsel will have the same benefit of objection and exception, but the objections and excep- tions must be seasonably and properly made and taken. As to the effect of a deposition as evidence, there can be little doubt in the minds of experienced practitioners but that, as a rule, they prefer to have witnesses on the stand, in open court. There are exceptions, but as a rule the results are far better. There is much in the effect of personality. The jurors see the witness, judge of the character of the man, mark his appearance on the stand, and, above all, they hear the words from the lips of a living man, who was an eye-witness of the facts which he relates. On the other hand, the same testimony is read to the jury by one of the attorneys in the case. He may read it force- • fully and well, but the jury will neither see nor hear the witness, and the effect of his personal presence upon the scene of action iS lost; and, however strong the testimony may be, it loses more or less of its force in transmittal through the pen of the Com- missioner and the simple reading of a paper by the attorney. So, we say, that in all important cases, where a cause may be won or lost by the weight of a hair, have your witness in court, a man in the flesh instead of a piece of paper with writing upon it. Bibliographic Note. — See generally the works on evidence referred to in the note to Chapter II, also, Weeks on Depositions, and American and English Encyclopaedia of Law, Vol. V. CHAPTER XXJII. DEAFTIFG DEEDS, MOETGAGES, BILLS OE SALE, AND LEASES, AND EOEMS THEEEOE. In many of the states there are statutory forms of deeds and mortgages, which are commonly used. These statutory forms are, by the force or provisions of the statute, given the same force and effect as though they contained full covenants of war- ranty, and in an action of covenant these special covenants will be read into the deed and be equally as binding upon the grantor as though they were recited at length in the instrument. Eor example, in Illinois the following is the statutory form of a warranty deed: Form 95. This indenture witnesseth, that the grantor, A. B., of for and in consideration of dollars in hand paid, conveys and warrants to the following described real estate (describing it), situate in the Ctounty of in the State of Illinois; hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of the State of Illinois. Dated, this day of A. D. 18 Signature. (Seal.) The form of a quit-claim deed is the same, except that the ,word "quit-claim" is used in the place of the word "warrant." A warranty deed in substance in the above form is declared by the Illinois statutes to be a conveyance in fee simple, with covenants of the grantor as follows: (1) That at the time of maldng and delivering the deed he was lawfully seized of an indefeasible estate in fee simple in the prenaises described; (2) that the premises were free from all encumbrances; and (3) that he warrants to the grantee, his heirs and assigns, quiet and peace- able possession, and will defend the title against all persons who may lawfully claim the premises; and these covenants are as DRAFTING DEEDS, ETC. 427 obligatory upon the grantor, his heirs, executors and adminis- trators, as if written at length in the deed. This is certainly a very simple method of conveyancing, and does away with the necessity of the skill and technical knowledge formerly required in drafting conveyances, but the very sim- plicity of the instrument sometimes operates to mislead the grantor as to the liability incurred thereby. He sees no war- ranty clause and may be induced to make a conveyance, which by force of the statute, will bind him by covenants which he would not have entered into had they been set forth at length in the deed. It is the duty of a lawyer to explain to the grantor before he executes such a deed the true meaning and effect thereof, and the covenants which the law reads into such an > instrument. In many of the states the common law form of deed, more or less modified, is still used. Such a deed, modified so as to con- form to the laws in relation to release of dower, homestead and exemptions, when properly executed, will be found effective almost everywhere. It is not within the scope of this work to give forms in general use in every state, but only such forms as may be used anywhere, either as they are or with more or less modification. Form 96. (Warranty Deed — Long Form:) Know all men by these presents: That we, A. B., of the City of , in the County of ; . . , and State of , and C. D., wife of the said A. B., hereinafter called the grantors, for and in consideration of the sum of dollars to us in hand . before the sealing hereof well and truly paid by of , the receipt whereof we do hereby acknowledge, have by these presents, given, granted, bargained, sold, aliened, enfeoffed, conveyed and confirmed, and by these presents do give, grant, bargain, sell, aliene, enfeoff, convey and confirm unto the said hereinafter called the grantee, his heirs and assigns, forever, all that certain lot or parcel of land situate in the City of County of , in said State of , bounded and described as follows (set forth a full and accurate description of the premises conveyed) : 428 DRAFTING DEEDS, ETC. To have and to hold the said granted and bargained premises with all the appurtenances, privileges and commodities to the same belong- ing or in anywise appertaining to the said grantee heirs and assigns for ever, to and their own proper use, benefit and behoof forever. And the said grantors for and for heirs, executors and administrators do covenant, promise and grant to and with the said grantee heirs and assigns that at and before the ensealing hereof the true sole and lawful owners of the above bargained premises and lawfully seized and possessed of the same in own proper right as good, per- fect and absolute estate of inheritance in fee simple and have in good right full power and lawful authority to grant, bargain, sell, convey and confirm the said bargained premises in manner aforesaid. * And that the said grantee heirs and assigns shall and may from time to time and at all times forever hereafter, by force and virtue of these presents lawfully, peaceably and quietly have, hold, use, occupy, possess and enjoy the said demised and bargained premises with the appurtenances free and clear and freely and clearly acquitted, exoner- ated and discharged of and from all and all manner of former and other gifts, grants, bargains, sales, leases, mortgages, wills, entails, jointures, dowries, judgments, executions and encumbrances of what name or nature soever that might in any measure or degree obstruct or make void this present deed. Furthermore, the said grantors for and for heirs, executors and administrators do covenant and engage the above demised premises to the said grantee , heirs and assigns against the lawful claims or demands of any person .or persons whatsoever forever to warrant and defend by these presents. In witness whereof, have hereunto set hands and seals this day of , A. D. eighteen hundred and (Seal.) Signed, sealed and delivered in presence of (Add the acknowledgment in proper form.) The following form is preferred by some conveyancers: Form 97. This indenture, made this day of , in the year of our Lord one thousand eight hundred and , between , , of the first part, and of the second part, witnesseth, that the said part... of the first part, for and in consideration of the sum of dollars, to in hand paid by the said part. . . of the second part, the receipt whereof DRAFTING DEEDS, ETC. 439. is hereby confessed and acknowledged, ha... granted, bargained, sold, remlssed, released, aliened and confirmed, and by these presents do!., grant, bargain, sell, remise, release, aliene and confirm unto the said part. . . of the second part, and to heirs and assigns, forever *'l certain piece. . . or parcel. . . of land, situate and being in t^® of County of and State of > and described as follows, to-wif : (Here set forth an accur- ate description of the premises conveyed.) Together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining; and the reversion and reversions, remainder, remainders, rents, issues and profits thereof; and all the estate, right, title, interest, claim and demand whatsoever, of the said part... of the first part, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances; to have and to hold, the said premises as above described, with the appurtenances unto the said part... of the second part, and to heirs and assigns, forever.* And the said part... of the first part, for , heirs, executors and adminis- tra:tors, do . . . covenant, grant, bargain and agree to and with the said part... of the second part, heirs and assigns, that at the time of the ensealing and delivery of these presents well seized of the premises above as of a good, sure, perfect, absolute and indefeasible estate of Inheritance in the law in fee simple; and that the said lands are free from all incumbrances whatever; and that the above bargained premises in the quiet,' and peaceable possession of the said part. . . of the second part, , heirs and assigns, against all and every person or persons, lawfully claiming, or to claim, the whole or any part thereof, will for- ever warrant and defend. In witness whereof, the said part. . . of the first part, ha. . . hereunto set hand . . and seal . . the day and year first above written. (Seal.) (Seal.) Signed, sealed and delivered in presence of (Acknowledgment In proper form.) The requirements of a deed are that the parties shall be of legal age and competent to make contracts, that there shall be a sufficient consideration, that the premises conveyed be described with sufficient accuracy, that the instrument be properly exe- cuted and acknowledged, and that it be delivered. The deed should be lodged for record in the proper office as soon as possible after delivery. 430 DRAFTING DEEDS, ETC. If the conveyance is made subject to an encumbrance of any kind there should be a clause in the deed excepting such incum- brance from the wan-anty clause. Where the property is en- cumbered it is customary with many conveyancers, and we regard it as good practice to insert in the deed, immediately following the description, a clause something like the following : The said premises are sold and conveyed subject to one (or more) ■certain mortgage for $ , bearing date the day of , A. D to secure the payment at maturity of a certain promissory note of even date therewith for ? , payable to after date, with interest at per cent, per annum, payable, etc. (If the grantee proposes to become personally liable for the pay- ment of the mortgage, add "which the said grantee assumes and prom- ises to pay as a part of the consideration of this conveyance.") And at the end of the warranty clause add, "save and excepting always the said mortgage to , for $ " Care should be exercised to see that the grantee does not make himself personally liable to pay off the encumbrance, un- less the contract of purchase requires it. By purchasing sub- ject to encumbrances he buys simply the equity and assumes no liability. By accepting a conveyance subject to incumbrances which he assumes and promises to pay, the grantee becomes per- sonally liable. In drafting conveyances, it is important that every incumbrance be referred to and excepted from the warranty; if not, the grantor may become liable to annoying and costly suits upon the warranty. The conveyancer should see that the dower interest and the homestead exemptions are properly released, that there is the necessary number of witnesses, that the deed is acknowledged in proper form and before the proper officer. If the deed is to convey lands situated in another state, the conveyancer should ascertain the requirements of such state as regards the number of witnesses, manner of sealing, form of acknowledgments, etc., and conform strictly thereto. DRAFTING DEEDS, ETC. 431 One of tlie most important points in conveyancing is to see that the premises conveyed are correctly and sufficiently de- scribed. The general rule is that the premises must be so described that they can be located and their bounds established without the aid of extrinsic evidence. "Where reference is made to posts, stones, trees, or the like, as corners, they should be such ancient or well-known monuments as will insure identifi- cation in the future. If a reference is made to a plat, it should be one that is properly recorded, and certified, and the reference should be correct. If other deeds or other instruments are re- ferred to, they should be accurately described, and there should be a reference to, the book, page and ofiice where such deed or other instrument is recorded. The covenants of warranty in a deed are not mere empty words, but they mean exactly what they say, and the grantor is bound to the full extent of his warranty. It is important that this fact should be impressed upon the grantor so that he may be induced to disclose any defects of title or outstanding encum- brances, and have them properly excepted from the warranty. Where the title is doubtful, or imperfect, or where the grantor is re-conveying to his grantor, a quit-claim deed is recommended. In case of a re-conveyance it is customary to incorporate in the deed a warranty against the acts of the grantor and all persons claiming by, through, or under him. POWERS OF ATTORNEY: It is a very common practice for deeds and other conveyances to be executed by an attorney specially authorized for that pur- pose. Where this is done, the power of attorney should be examined and carefully considered, to see whether it is sufii- ciently broad or definite to include the execution and delivery of the instrument in question. The greatest care is required, and the attorney should be satisfied beyond question of the scope of the powers conferred by the instrument before advising the acceptance of a deed executed in that manner. 432 DRAFTING DEEDS, ETC. The power of attorney should be recorded in the office of the Register of Deeds in the county or city where the land lies, in order that there may be record evidence of the authority of the attorney. MORTGAGES: What we have said in relation to the execution of deeds ap- plies equally to mortgages. As the purpose of a mortgage is to secure the re-payment of money or the performance of some act, great care should be exercised to see that the conditions of the mortgage are carefully set forth, and the note or bond secured should be accurately described. If a printed form is used, it should be carefully and slowly read over to the mortgagor and explained to him, so that he will fiiUy understand it. If the conditions are unusual, either as to the time of payment, or as to the right of the mortgagee to foreclose or in any other respect, see that the mortgagor is informed thereof. A careful lawyer will not allow a client to execute a written instrument of any kind until he knows that .he is fully infonned as to its contents and realizes the nature and effect thereof. FORMS OP MORTGAGES: Where forms are. provided by statute, it vsdll be found most convenient to use them. If no forms are provided, the following forms may be used or modified to fit the occasion. Forms of conveyances vary more or less in the different states. In some states foreclosure by advertisement under powers contained in the mortgage is prohibited, while in other states foreclosure in any other way is unknown in practice. We will give forms of each kind. . Form 98. (Form of Mortgage with Power of Sale.) (Use Form 96 down to the * and then proceed as follows:) The condition of this deed is such that, whereas I, the said A. B., have executed and delivered my certain negotiable promissory note for the sum of $ , bearing even date herewith, and payable to the said C. D. or order after the date thereof, with interest thereon at the rate of per cent, per annum, payable semi- DRAFTING DEEDS, ETC. 4JJ3 annually (or as the case may be) : Now, therefore, if I, the said A. B., or my heirs, executors, administrators, or aSfeigns, or any other person for me or for them shall pay said note at maturity, together with the interest thereon according to the tenor thereof, then this deed shall be void, otherwise shall be and remain in full force and effect. Furthermore, I, the said A. B., do hereby constitute and appoint the said C. D., his executors, administrators and assigns my attorney irre- vocable with full power of substitution and revocation, for me and in my name or in his name, at any time, in case default shall be made in the payment of said note or the semi-annual interest due thereon, or breach shall be made in the covenant of insurance (or other covenants if any) hereinafter contained, and such default or breach shall continue for the term of days after demand shall be made for the pay- ment thereof, to sell at public auction the premises aforesaid or any part thereof, first giving after the expiration of said term of days, days' notice of such sale in some one of the newspapers printed in , and in my name, or in his own name, to make, execute, seal, acknowledge and deliver to the purchaser or purchasers thereof any deed or deeds that may be necessary to vest in such pur- chaser or purchasers a full and absolute estate in fee simple therein: and I do hereby grant unto my said attorney, or to his substitute, full power to continue or adjourn such sale from time to time as may be necessary, and do authorize my said attorney to receive the amount the same may be sold for; and after the payment of all the expenses incident to such sale or sales, to apply and appropriate the residue thereof to the payment of the amount of the principle and interest of said note hereby secured (I hereby agreeing that in case of sale for default in the pay- ment of said semi-annual interest, or for breach of said covenant of insurance or other covenant herein contained the principal of said note shall be deemed due and payable on the day of such sale), accounting to me, my heirs or assigns for all sums over and above the amount thereof, I hereby ratifying, approving and confirming such sale or sales as may be made or caused to be made by virtue hereof. Furthermore, I, the said A. B., for myself and my heirs, executors, administrators and assigns, do hereby covenant with the said C. D., his heirs or assigns, that insurance against loss by fire shall be kept and maintained upon the buildings on said premises aforesaid in a sum not less than , and that the policy or policies of insurance shall be assigned and transferred to said C. D. and his assigns as collateral security hereto; and in default thereof, do hereby agree that the said C D., or his assigns, may effect such insurance, and the premium or premiums paid thereon shall be a further lien upon the said premises, added to the amount of said note and secured by these presents. In witness whereof, etc. Witnesses. (Acknowledgment in proper form.) 434 DRAFTING DEEDS, ETC. In states where foreclosure of mortgages by advertisement is regulated by statute, tlfe foregoing form may not be applicable; but tbe form may be modified so as to conform to tbe statutory requirements. Tbis form ^\'ill be found particularly useful in states where it is the common practice to foreclose by advertise- ment, and where the method -of such foreclosure is not pre- scribed by statute. Where foreclosure by advertisement is regulated by statute, the mortgage should be drafted with special reference to the statute, and in foreclosure proceedings all the statutory provisions must be strictly complied with in every particular. The follow- ing form may be used, or modified so as to adapt it for use in states where foreclosure by advertisement is regulated by statute : Form 99. (Use Form 97 down to * and then proceed as follows:) Provided always, and these presents are upon this express condi- tion, that if the said part. . . of the first part shall and do well and truly- pay, or cause to he paid to the said par. . . of the second part, the sum of according to , bearing even date herewith executed by to the said party of the second part, to which this indenture is collateral security, then these presents and shall cease and be null and void. But in case of non- payment of the said sum of , or of the interest thereof, or any part of said principal or interest, at the time, in the manner, and at the place above limited and specified for the payment thereof, then and in such case it shall and may be lawful for the said part. . . of the second part , heirs, executors, administrators or assigns, and the said part. . . of the first part do. . . hereby empower and authorize the said part... of the second part, , heirs, executors, adminis- trators or assigns, to grant, bargain, sell, release and convey the said premises, with the appurtenances, at public auction or vendue, and on such sale to make and execute to the purchaser or purchasers heirs and assigns, forever, good, ample and sufficient deed or deeds of conveyance in law, pursuant to the statute in such case made and pro- vided, rendering the surplus moneys (if any there should' be) to the said part... of the first part, , heirs, executors or adminis- trators, after deducting the costs and charges of such vendue and sale aforesaid. And it is further expressly agreed, that as often as any proceeding is taken to foreclose this mortgage, either by virtue of the power of DRAFTING DEEDS, ETC. 435 sale herein contained, or in chancery, or in any other manner provided by law, said first part. . . shall pay said second part dollars, as a reasonable solicitor or attorney fee therefor, in addition to all other legal costs. In witness whereof, etc. , Witnesses. (Acknowledgment in proper form.) In states where foreclosure by advertisement and sale is not permitted, it will be found tbat tbe statutes make full provisions for foreclosure in chancery, or, in code states, in the courts of law; and these provisions make it necessary that mortgages executed in those states be made to conform to such provisions. It is impossible in a work of this size to give the forms in use in all the states, but the following form will be found to contain valuable suggestions, even if the whole cannot be used: Poi-m 100. (Use Form 97 down to * and then proceed as follows:) Provided, always, and these presents are upon the express condi- tion, that if the said party of the first part, or his heirs, executors, administrators or assigns, or any person or- persons for him or them shall well and truly pay or cause tb be paid to the said party of the second part the sum of , according to the terms of a certain negotiable promissory note bearing even date herewith executed by and payable to the order of the said party of the second part, to which this indenture is collateral security (here insert any other con- ditions necessary as to taxes, assessments, insurance, etc.), then these presents and the said promissory note shall be null and void and of no more force and effect. But if default shall be made in the payment of said promissory note, or of any part thereof, or the interest thereon, or any part thereof, at the time and in the manner above specified for the payment thereof; or in case of waste, or non-payment of taxes or assessments on said premises, or of a breach of any of the covenants herein contained, then in such case the whole of said principal sum and interest, secured by said promissory note, shall, thereupon, at the option of the legal holder thereof become immediately due and payable; and it shall be lawful for the said party of the second part to enter into and upon and take possession of the premises hereby granted, or any part thereof, and to collect and receive all rents, issues and profits thereof; and to file a bill or bills (or complaint) in any court having jurisdiction thereof 436 DRAFTING DEEDS, ETC. against the said party of the first part, his heirs, executors, adminis- trators and assigns, to obtajn a decree for the foreclosure of this mort- gage and the sale and conveyance of the whole or any part of said premises for the purposes herein specified, under the order, direction and decree of said court, and out of the proceeds of any such sale to first pay the costs of such suit, all the costs of advertising, sale and conveyance, including the reasonable fees and commissions of the per- son who may be appointed by said court to execute the order and decree thereof and dollars attorney's and solicitor's fees, and also all moneys advanced by said party of the second part for insurance, taxes and other liens or assessments, with interest thereon at . . . per cent, per annum, then to pay the principal of said note, whether due and payable by the terms thereof or by the option of the legal holder thereof, and interest due on said note up to the time of such sale, rendering the overplus, if any, unto the said party of the first part, his legal represen- tatives or assigns on reasonable request, and it shall not be the duty of the purchaser to see to the application of the purchase money. In witness whereof, etc. Witnesses. (Acknowledgment. ) Form 101. (Form of Condition to Secure an Endorser on a Note.) Whereas, the said party of the second part has endorsed for the said party of the first part a certain negotiable promissory note for , bearing date the day of , and payable to the said party of the second part, or his order, on the day of , which has been discounted at the request and for the sole use of said party of the first part, and is now held by , which note it is contemplated to renew from time to time, either for the whole amount of the same, or for a part thereof, for the like accommodation of said party of the first part. Now, this indenture is upon this express condition, that if the said party of the first part, his heirs, executors, or administrators, or any person or persons for him or them, shall well and truly pay said note and the renewals of the same, as the same shall become due and payable, and shall indemnify and save harmless the said party of the second part, his heirs, executors and administrators, of and from all and all manner of loss, costs, damages and charges, which the said party of the second part, his executors or administrators may sustain or be put to by reason of his endorsement of said note, or any renewal or renewals thereof, then this deed shall be null and void and of no effect, otherwise in full force. DRAFTING DEEDS, ETC. 437 CHATTEL MORTGAGES: The statutes of most of the states contain special provisions relating to the form, effect and manner of executing chattel mortgages,' and upon a strict compliance with these statutory provisions depends the validity and effect of the instrument. The statutory provisions relating to the acknowledging, re- cording and renewing of chattel mortgages are strictly construed by the courts, and it is not at all Unusual for a mortgagee to lose his security through his negligent act or omission or that of one acting for him. Form 103. (Common Form of Chattel Mortgage.) Know all men by these presents: That I, A. B., of in consideration of the sum of dollars, to me in hand paid by C. D., of : , the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and assign unto him, the said C. D., the following articles of personal property now in my possession and described as follows (here describe particulEirly and accurately the per- sonal property conveyed) : To have and to hold all and singular the goods and chattels herein- before mentioned, bargained and sold unto him, the said C. D., his executors, administrators and assigns forever. Provided, nevertheless, that if I, the said A. B., or my executors or administrators, or any person for me or them, shall well and truly pay to said C. D., his executors, administrators, or assigns, a certain prom- issory note of even date with these presents for the sum of signed by me, the said A. B., and payable to the said C. D., or his order, from the date thereof, with interest at the rate of per annum, payable, etc., then this deed shall be void, otherwise to be and remain in full force and effect. Provided, always, and it is expressly understood and agreed between the said A. B. and C. D., that the said A. B. shall and may retain and teep possession of said personal property, until after default be made in the performance of the above condition; but if the said property, or any part thereof, shall be attached or levied upon by any creditor of the said A. B.; or if the said A. B. shall sell, or attempt to sell the same or any part thereof (insert if desired, "except in the ordinary course of trade"), without the written consent of said C. D.; or if the said A. B. shall remove, or suffer or cause to be removed said property, or any part thereof, out of without such written consent of said C. D., then the said C. D. may take immediate possession of the 438 DRAFTING DEEDS, ETC. whole of said property, etc. (here insert such provisions tor advertising and selling the property and disposing of and applying the proceeds as may be agreed upon by the parties). In witness whereof, I have hereto set my hand and seal this day of A. D (Add acknowledgment in proper form when required.) The following form contains very full provisions • for tlie enforcement of tlie mortgage and the application of the proceeds of a sale. It is a form commonly used in Illinois, but may be modified for iise in any state: Form 103. CHATTEL, MORTGAGE— ILLINOIS FORM. This indenture, made this day of in the year of our Lord one thousand eight hundred and , between , of the , in the County of and State of party of the first part, and , of the , in the County of , and State of , party of the second part: Witnesseth, That the said party of the first part, for and in con- sideration of the sum of dollars, in hand paid, the receipt whereof is hereby acknowledged, do... hereby grant, sell, convey and confirm unto the said party of the second part, heirs and assigns, all and singular the following described goods and chattels, to-wit: (Here describe carefully and accurately the goods and chattels to be covered by the mortgage so that it can be readily identified.) Together with all and singular the appurtenances thereunto belong- ing, or in anywise appertaining: To have and to hold the same unto the said heirs, executors, administrators and assigns, to and their sole use forever. And the said for and heirs, executors and adminis- trators, do. . . covenant and agree with the said heirs, executors, administrators and assigns that lawfully possessed of the said goods and chattels-,. as of own property; that the same are free from all incumbrances; that will, and heirs, executors and administrators, shall warrant and defend the same unto the said party of the second part, heirs, executors, administrators and assigns, against the lawful claims and demands of all persons, and that will keep the said goods and chattels insured against loss by fire for the full insurable value thereof, in such companies as the holder of the note . . . herein- after mentioned may direct, and make the loss, if any, payable to, and DRAFTING DEEDS, ETC. 439 deposit the policies with, the holder of said note... as further security for the indebtedness hereinafter mentioned. Provided, nevertheless, that if the said heirs, exec- utors, administrators and assigns, shall well and truly pay, or cause to be paid, unto the said heirs, executors, administrators or assigns, the said promissory note, together with the interest thereon according to the tenor thereof, and shall well and truly perform all the other conditions by this instrument imposed and agreed to by said party of the first part, then and from thenceforth these presents, and everything therein contained, shall cease, and be null and void. And provided, also, that it shall be lawful for the said party of the first part, , executors, administrators and assigns, to retain possession of the said goods and chattels, and at own expense to keep and use the same until or , executors, administrators or assigns, shall make default in the pay- ment of said sum of money above specified, either in principal or interest, at the time or times, and in the manner hereinbefore stated. And the said party of the first part, hereby covenant . . . and agree . . . that in case default shall be made in the payment of any or either of the notes aforesaid, or of any part thereof, or the interest thereon, or any part thereof, on the day or days respectively on which the same, or any part thereof, shall become due and payable; or if the party of the second part, , executors, administrators or assigns, shall feel insecure or unsafe, or shall fear diminution, removal or waste for want of proper care of said property; or if the party of the first part shall sell or assign, or attempt to sell or assign, the said goods and chattels, or any part thereof, or any interest therein, or if any writ issued from any court, or by any justice of the peace, or any distress warrant shall be levied on said goods and chattels, or any part thereof; or if the party of the first part shall fail or neglect to keep the property insured for the further security of the party of the second part, and to deposit the policies as aforesaid; then, and in any or either of the aforesaid cases, all of said note. . . and sum of money, both principal and interest, shall, at the option of the party of the second part, , executors, administrators or assigns, without notice of said option to any one become at once due and payable, anytlfiing in said note. . . or in this mortgage to the contrary notwithstanding; and the party of the second part, executors, administrators or assigns, or any of them, shall thereupon have the right to take imme- diate and exclusive possession of said property, and every part thereof, and for that purpose may pursue the same or any part thereof, wherever it may be found, and also may enter any of the premises of the said party of the first part, with or without force or process of law, wherever the said goods and chattels may be, or be supposed to be, and search for the same, and if found, to take possession of, and remove and sell, and dispose of, said property, or any part thereof, at public auction. 440 DRAFTING DEEDS, ETC. to the highest bidder, after giving ten days' notice of the time, place and terms of sale, together with a description of the property to be sold, either by publication in some newspaper in the , or by similar notices posted up in three public places In the vicinity of such sale, or at private sale, with or without notice, for cash or on credit, as the said , heirs, executors, administrators or assigns, agents or attorneys, or any of them, may elect, at any which sale at auction the said mortgagee, heirs, executors, adminis- trators or assigns, agent or attorneys, or either of them, may become the purchasers, and out of the money arising from such sale, to retain all costs and charges for pursuing, searching for, taking, removing, keeping, storing, advertising and selling such property, goods, chat- tels and effects, and all prior liens thereon, together, with the amount due and unpaid upon said or any of them, either in principal or interest, rendering the overplus of money arising from such sale (if any there shall be) unto , or legal representatives, which sale or sales so made shall be a perpetual bar, both in law and equity, against the party of the first part, legal representatives and assigns. Witness the hand and seal of the party of the first part, the day and year first above written. (Seal.) (Seal.) Signed, sealed and delivered In the presence of State of , County of , ss. I, a justice of the peace in the town of in and for said county, do hereby certify that this mortgage was duly acknowledged before me by the above named , the mort- gagor . . . therein named, and entered by me this ; . . . day of , A. D. 189.... Witness my hand seal, (Seal.) Justice of the Peace. BILLS OF SALE: In order to constitute a valid and sufficient bill of sale tkere must be an instrument in writing, signed by the vendor, fully and particularly describing the articles of personal property to be conveyed, and by the vendor or his agent delivered to the vendee. The conveyance will not be good as against creditors, unless there is a valuable and adequate consideration, and the property de- scribed is delivered to the purchaser, or the instrument by which it is conveyed is recorded in the proper office. DRAFTING DEEDS, ETC. 441 As a rule, where there is an actual delivery in good faith of the property, and the property remains in the possession of the purchaser or his vendee, there is no necessity of recording the hill of sale; it is done sometimes as an additional precaution. A vendor of mortgaged personal property will take subject to the lien of the mortgage, and may become liable to punish- ment under the statute for concealing mortgaged property in case he makes any unlawful disposition of the property. In drafting bills of sale or chattel mortgages, existing liens or incumbrances should be referred to, and, if necessary, ex- cepted from the warranty clause. The following is a very common form of a bill of sale : Form 104. BILL OP SALE. Know all men, that I, A. B., of , for and in considera- tion Qf , to me in hand paid hy C. D., of , the receipt ■whereof is hereby acknowledged, do hereby bargain, sell, set over and deliver unto said C. D. the following articles of personal property to me belonging and now in my possession, viz: (Here describe particularly the property conveyed.) To have and to hold the same to him, said C. D., his executors, administrators and assigns, to his and their use forever. And I, the said A. B., for myself and for my heirs, executors and administrators, do hereby covenant and agree to and with the said C. D., his executors, administrators and assigns that I am lawfully pos- sessed of said goods and chattels as of my own property; that I have full right and lawful authority to sell and dispose of the same as afore- said; that the same are free from all encumbrances (or as the case may be), and that I will, and my heirs, executors and administrators, shall warrant and defend the same to the said C. D. and his executors, admin- istrators and assigns against the lawful claims of all persons. In witness whereof, I have hereunto set my hand and seal this day of See that the instrument is properly executed in presence of the necessary witnesses, and delivered, and advise the vendee in relation to the necessity of taking possession of the property, pr recording the instrument. 442 DRAFTING DEEDS, ETC. LEASES: In drafting leases great care should be observed to see tbat all the terms and conditions are carefully considered and under- stood by tbe parties, and tbat they are set forth in such plain and simple language as to make it impossible that there should ever be. any difference of opinion as to the construction of the instru- ment. If the lease is for a term of years, with a renewal clause, the terms and conditions of the renewal and the time when or within which the lessee shall exercise his option of renewal, should be carefully set forth. If the lessor agrees to make im- provements, the lease should contain a covenant showing exactly what he agrees to do, and the time within which he will do it; If the lessee expects to make improvements which the lessor agrees to take at a valuation, or the lessee is to be allowed to remove at the expiration of the term, the lease should contain carefully drawn provisions therefor. There should also be a clause requiring the lessor to re-build or repair in case of fire, and providing that in the event of the total destruction of the build- ing the rent shall cease until -the building shall be re-built, and, in the event of a partial destruction, providing for a proportionate rebate in rent. In leases of farming lands, especially for a term of years, there should be covenants upon the part of the lessee for good husbandry, keeping the buildings and fences in repair, for properly manuring or fertilizing the land, etc. The following is the common form of a lease: • Form 105. LEASE— COMMON FORM. This indenture, made the day of by and between A. B., of , party of the first part, and C. D., of party of the second part, witnesseth: That the said party of the first part, in consideration of the rents and covenants herein reserved and contained upon the part of said party of the second part, to be paid and performed doth hereby demise, lease and (to farm) let unto said party of the second part, his executors, administrators and assigns the following described premises, viz: (Here describe the premises particularly and fully.) DRAFTING DEEDS, ETC. 443 To have and to hold the said premises, with all the appurtenances to the same belonging, unto him, said party of the second part, his executors, administrators and assigns, for and during the full term of years from the date hereof (or from and after some future period, as the case may be), yielding and paying therefor, yearly, and every year during said term, unto the said party of the first part, his heirs and assigns, the yearly rent of payable in equal monthly payments in advance upon the first secular day of each and every month during said term, beginning on the day of A. D Provided, and it is hereby agreed by said party of the second part, that if the said rent, or any part thereof, shall be in arrears and unpaid on any day of payment as hereinbefore speci- fied, and shall remain unpaid for the period of days thereafter, or if default shall be made in any of the covenants on the part of said party of the second part herein contaiaed, and such default shall continue for the period of days, then said party of the first part, his heirs and assigns, may at their option, and without pre- vious notice or demand, determine this lease and re-enter upon said premises and repossess the same as of his former estate. And the said party of the second part for himself, his heirs executors and administrators doth covenant with said party of the first part, his. heirs and assigns, in the manner following, to-wit: That the said party of the second part, his heirs, executors, administrators and assigns, shall and will pay the said rent in manner as aforesaid; that they will conform to and obey all such rules and regulations as said party of the first part, or his assigns, may from time to time make with reference to the use and occupation of said premises, and will not occupy the same for immoral or unlawful purposes or in a manner unsatisfactory to said party of the first part or his assigns; that he will permit said party of the first part and his assigns, whenever he or they shall deem it neces- sary, to enter upon said premises to view the same and make necessary repairs; and will at the end of said term or other sooner determination of the lease, peaceably surrender the said premises to the said party of the first part, his heirs and assigns, in as good order as they are now in,, or may be put in during said term, ordinary wear and tear and damages, by the elements excepted. And it is further agreed, that in case said premises shall be dam- aged by fire so as to be rendered untenantable, a just abatement of said rent shall be made -until the said premises shall be repaired by said party of the first part. And the said party of the first part doth hereby covenant that said party of the second part, truly performing all his covenants aforesaid, shall quietly occupy said premises during said term, without lawful let or hindrance from any person. In witness whereof, said parties have hereunto set their hands and seals the day and year first above written. Signed, sealed, etc. 444 DRAFTING DEEDS, ETC. The foregoing form may be modified to conform to the agree- ment between the parties, either by omitting or changing some of the covenants, or adding some of those following: Form 106. COVENANT TO PAY TAXES AND ASSESSMENTS. That the said party of the second part, his executors, administrators and assigns, will, yearly, and every year during said term, promptly pay and discharge all taxes, assessments and levies, ordinary and extraor- dinary, which at any time during said term shall be taxed, levied, assessed or imposed on said premises, or any part thereof, or on the owners thereof on account of the same. Form 107. LESSE'S COVENANT TO KEEP IN REPAIR. That the said party of the second part, his executors, administrators and said assigns, shall and will during said term, at his and their own <;ost, keep the said demised premises and the buildings thereon situated, in good and tenantable repair, etc. Form 108. LESSOR'S COVENANT TO REPAIR. That'in case said premises, or any part thereof, shall be destroyed or rendered untenantable by fire or other inevitable accident, that the said party of the first part, his heirs and assigns, will repair the same within days after request in writing from said party of the second part, his executors, administrators and assigns, and in case of his default, or neglect so to do, said party of the second part, his executors, etc., may make such repairs and recover the same from said party of the first part, etc., or retain the cost thereof out of the rent hereinafter reserved as the same shall become due and payable, or the said party of the second part, his executors, etc., may, at his or their option, determine this lease and surrender up said premises, paying the rents herein reserved up to the time of such fire or accident. In a farm lease the following covenants may be used: Form lOit. COVENANT IN FARM L.EASE. That the said party of the second part, his executors, administrators and assigns, will not carry off from said demised premises any hay, straw, grass, dung, soil, or compost thereon made or grown during said term, but the same will fodder, spread, use and employ on said premises. DRAFTING DEEDS, ETC. 445 Form 110. COVENANT THAT LESSEE MAT ERECT BUILDINGS. That the said party of the second part, his executors, etc., may, at their own proper cost, erect and complete upon said premises a dwell- ing house (or other building, describing it particularly), and the same at all times during said term may occupy, keep and maintain in suit- able repair, and the same remove from said premises at any time prior to the termination of this lease, said party of the second part, his. executors, etc., leaving said premises in the same condition as they were in before said building was erected. Form 111. COVENANT PLEDGING BUILDINGS AS SECURITY FOR RENT. And the said party of the second part hereby pledges and binds all the buildings and other improvements now made or hereafter to be erected and made on said premises, for the payment of the rent herein- before reserved, and of all taxes and assesssments ordinary and extraor- dinary which may be levied, assessed or imposed on said premises, or any part thereof, during the continuance of this lease, and the said buildings or improvements or any part thereof shall not be sold or removed from said premises without the written consent of said party of the first part, his heirs and assigns, nor until all arrears of rent, if any, and all' taxes and assessments shall have been paid as aforesaid. Form lia. COVENANT THAT LESSOR MAY PURCHASE BUILDINGS. That the said party of the first part, his heirs and assigns, shall and may have the right and option, if he or they choose, to purchase the buildings and improvements that said party of the second part shall du^'ing said term, erect on said premises, at such fair and reasonable price as shall be determined by two fair, judicious and disinterested men to be selected and agreed upon by the said parties hereto; and if' the two so selected shall be unable to agree, then they shall select a third fair, judicious and disinterested man who is familiar with the cost and worth of such buildings and improvements and the value of said buildings and improvements as certified by two of said men, so selected, shall be the price at which said party of the first part may pur- chase said buildings and improvements, and upon the payment of said sum to the said party of the second part, his executors, etc., he or they shall convey said buildings and provements to said party of the first part. This fomi may be A^ery easily modified so as to compel tlie lessor to purchase the buildings and improvements at the expira- tion of the term, instead of giving him an option: 446 DRAFTING DEEDS, ETC. Form 113. COVENANT AGAINST SUBLETTING. That the said party of the second part, his executors, etc., shall not at any time during said term, assign or set over, underlease or underlet the said demised premises, or any part thereof, or in any other way part with the possession or occupation of said premises or any part thereof, without the written consent of the said party of the first part, his heirs or assigns first had and obtained. Form 114. ASSIGNMENT OF LEASE. Know all men, that I, A. B., of , in consideration of in hand paid by C. D., of do hereby grant, •assign, transfer and set over to said C. D., his executors, administrators and assigns, the (within described premises, if the assignment is by endorsement on the lease) following described premises, which I now hold as tenant of one B. F., of , under and by virtue of a certain indenture of lease made and entered into on the day of by and between the said E. F. and this grantor (here describe the lease fully, and if it is recorded refer to the record, book and page), as by said lease, to which reference is hereby made for a more particular description thereof, will more fully appear, viz: {Here describe the premises.) To have and to hold the same, with the privileges and appurten- ances thereof, to said G. D., his executors, administrators and assigns, in as ample a manner as the same is conveyed to me, or as I might hold and enjoy the same by virtue of the provisions of said lease, he, the said C. D., his executors, administrators and assigns, paying the rents and performing the covenants therein contained on my part to be paid and performed. And I do hereby covenant with said C. D., his executors, adminis- ' trators and assigns, that I have good right to assign said premises for and during the residue of said term, and that the said C. D., his exec- utors, administrators and assigns may at all times during the residue of said term, hold and enjoy the same, without any legal let or hindrance of me, my executors and administrators, or of any person or persons •claiming by, through, or under me or them. In witness whereof, etc. There are statutory provisions in some states requiring that leases for more than a year shall be recorded, and it is the duty ■of the attorney who drafts a lease to inform the parties fully upon this and all other questions affecting their rights or liabili- ties in the premises, in order that neither party may suffer loss DRAFTING DEEDS, ETC. 447 by reason of neglecting anything necessary to be done for their protection. - The law of landlord and tenant is a very important branch of practice, and every lawyer ought to be thoroughly informed upon all questions relating thereto. In most, if not all, of the states there are statutory provisions relating to proceedings for the re- covery of possession of premises in the possession of tenants holding over; the termination of a tenancy by notice to quit and what notice is required; proceedings to recover possession of premises for the non-payment of rent, etc. These provisions should be carefully studied, as well as the decisions of the court of final resort in your state, relating to these subjects. Business of this kind is often intrusted to young attorneys, and if the client finds his attorney well informed upon one branch, of the law, and capable of carrying through to a siiccessful termination even a small and unimportant ease, it may result in more and better business and in securing an influential friend and client. Bibliographic Note. — The best works upon the subjects referred to in this chapter are Jones on Mortgages, Jones on Chattel Mortgages, Her- man on Mortgages, Herman on Chattel Mortgages, Hilliard on Mort- gages, Pierce on Fraudulent Mortgages of Merchandise, Pingrey on the Law of Mortgages of Real Property, Pingrey on Chattel Mortgages, two vols., 1893, Thomas on Mortgages, Boon on Mortgages, Wiltsie on Mort- gage Foreclosure, Devlin on Deeds, Elphinstone, Norton and Clark on the Interpretation of Deeds, Abbott's Clerks' and Conveyancers' Assis- tant, Curtis' American Conveyancer, Jones' Forms of Conveyancing, 1893, Martindale's Law of Conveyancing, Oliver's Conveyancing, Biddle on Warranties in the Sale of Chattels, Cobbey on Chattel Mortgages, Benjamin on Sales. See also Bump on Fraudulent Conveyances and Walt on Fraudulent Conveyances. On the subject of leases see Taylor's Landlord and Tenant, Wood on Landlord and Tenant, Woodfall on Land- lord and Tenant, and Hawley on the Law of Tenants. CHAPTER XXIV. WILLS. It is not often that a lawyer is called upon to perform a more difficult service or one demanding a higher order of skill and technical knowledge than that of drafting a last will and testa- ment. A will is, as its name signifies, the last testament, the final disposition of the maker of the will, and directs how his property shall be divided or disposed- of after his decease. This being so, a great responsibility rests upon liim to whom is entrusted the drafting of this solemn and important instrument, to see that he ascertains fully and correctly the wishes of his client, and that the instrument, when completed, will carry those wishes into effect. A lawyer should never attempt to draft a will until he has become thoroughly acquainted with the law of wills. He should have a thorough knowledge of the common law rules relating to the construction of wills, the creation of trusts, life estates, re- mainders and reversions, but, above all,, he must have a thorough knowledge of the statutory provisions in his own state relating to these subjects. He must know to what extent he may impose restrictions upon the alienation of real estate, during how many lives the property may be retained in the hands of trustees, what' limitations there are upon the creation of powers and uses, whether the law will permit trusts for religious or charitable uses or purposes, and if so, under what conditions or restrictions, whether the statutes will permit the disinheritance of children, what provisions for a wife will bar her dower, etc. Without this knowledge it will be impossible to correctly and intelligently draft a will other than one of the simplest form, and an attempt to do so may result later on in disastrous litigation among the heirs-at-law or beneficiaries imder the will. WILLS. 449 Wlien called upon to draft a will, the lawyer should make a minute of the full name of the maker of the will, his residence, etc., and then ascertain carefully just what disposition he wishes to make of his property. He should make notes of the names of the persons to whom legacies or bequests are to be given, their relationship to the maker of the will, and the names of their • parents, in order that each beneficiary may be positively identi- fied. He should also make notes of what each is to receive, whether it be real or personal property or money, and whether for life, during widowhood, during the life of another, or abso- lutely. Where a trust is created, the terms thereof must be carefully noted, together with the names of the trustees, the names of the cestuis que trust, and the time whefl the trust shall terminate. If there are to be any life estates or remainders carved out, make full notes of the testator's wishes in order that you may carry them out intelligently. A most important matter is to be sure that you understand what the maker of the will wants, that you understand the matter in all its details in exactly the same way he understands it. You will then be able to point out to him any impracticable features in his plan and suggest changes which will accomplish the same or nearly the same result. . Be sure, too, that he knows what will be the result of carrying out his wishes in the manner proposed; he may change his mind when he realizes the legal effect of his plans and wishes. When you have both come to an understanding, take all the time necessary to enable you to draft an instrument that will accomplish the desired results. Look up the law and satisfy yourself upon questions. of which you have any doubt, and do not let the draft go out of your hands until you are thoroughly satisfied with it. When the draft is completed submit it to your client for his consideration; do not explain it to him, but ascertain, by careful questioning, whether he clearly understands its provisions and conditions in the manner in which you wish them to be under- 450 WILLS. stood, bearing in mind always tlie rule of law so quaintly but forcibly stated in tbe old text writers, that the will must be construed by what is contained within the four corners thereof, although extrinsic evidence is sometimes admissible to explain surrounding circumstances in cases of ambiguity. After ascer- taining what the maker's construction is, explain the instrument to him fully, and make such changes as may suggest themselves either to him or to you. It is a general rule, that courts, in construing wills, will endeavor to ascertain the actual intent of the testator, and to carry that intent into effect. The instrument will be construed as a whole, and the courts will endeavor to so construe it as to give effect to every part thereof. In drafting a will it is advisable to use the simplest language possible, and words should always be used in their ordinary sense. Technical words should be avoided as far as possible, but when their use cannot be avoided they should be so used or explained as to render it impossible that the meaning thereof or the sense in which they are used may be misunderstood. EXECUTION OF A WILL: It is a very common practice to affix a seal or scroll to the signature of the testator; and, while it is not always necessary, it can do no harm. The most important detail in the execution of wills is to see that the will is properly witnessed. There should always be at least two witnesses, and many careful lawyers always have three.' The vdtnesses should be persons who are acquainted with the maker of the will, and who are themselves well known. They should be residents of the place where the will is executed, in order that they may be available when wanted for the purpose of proving the will. It is a good practice, followed by many lawyers, of requiring witnesses to write their address after their signatures. ' 'In some states three witnesses are required by law. "This is required by statute in New York. WILLS. 451 The will should be signed hy the maker, although if he is unable from any cause to do so, it may be signed by some other person by his express direction and in his presence. The will must be signed in the presence of the witnesses, who must all be present at the time. It should be declared to be the last will and testament of the maker, and he should request the witnesses to witness it. The following is a common form of will: Form 115. COMMON FORM OF WILL. I, A. B., of do make the following as and for my last will and testament, Intending hereby to dispose of all my estate and property, both real and personal, of which I shall die seized and pos- sessed: First. I direct the payment of all my just debts and funeral expenses as soon as practicable after my decease. Second. I give and devise unto my beloved wife, C. B., the home- stead farm whereon I now reside, which is bounded and described as follows: (description of premises) to her the said C. B., her heirs and assigns forever, or (for and during the term of her natural life). Third. I give and bequeath unto my said wife, C. B., all my house- hold furniture and family supplies, and also the sum of dollars, to be paid and delivered to her by my executor within months after my decease. I declare the foregoing devise and legacy to my said wife to be in lieu of her dower in my estate. Fourth. I give, devise and bequeath unto my beloved son, D. B., all the rest and residue of my estate^ and property both real and per- sonal of every kind, nature and description, and wheresoever the same may be situated, to him, his heirs, executors, administrators and assigns forever. Lastly, I hereby nominate and appoint sole executor of this my last will and testament, and do hereby revoke all other and former wills by me made, and publish, declare and establish this and this only as my last will and testament. In witness whereof, I have hereunto set my hand (or hand and seal) at , this day of , A. D Signature. Signed, published and declared by A. B. as and for his last will and testament, in our presence, who have, at his request, in his presence and in presence of each other, hereunto set our names as witnesses. A. G., Residence B. F., Residence G. H., Residence 452 WILLS. Another form with trust for wife and children : Form 116. I, A. B., of , being in sound health of body, and of dis- posing mind and memory, do make and publish this my last will and testament; hereby revoking all former wills by me at any time made. First. I direct the payment of my just debts and funeral expenses as soon as possible after my decease. Second. I devise and bequeath unto C. D., of , and his heirs and assigns the following described real estate (describing it accurately as in a deed): In trust, nevertheless: For the following purposes and no other, that is to say, 1. To pay to my beloved wife, C. B., for and during the term of her natural life; the sum of dollars annually, in equal monthly (or quarterly) payments, the first payment to be made one month from and after my decease, or as soon thereafter as the condi- tion of my estate will permit. 2. To pay the expenses of supporting, maintaining and educating each and all of my children in such manner as my said wife, with the advice of said trustee shall deem proper and reasonable, having due regard to the condition and income of my said estate, until my said children shall have arrived at the age of twenty-one years. (Follow with other provisions as may be required, and close with the attesting clause, and witness as in the preceding form.) Where the maker of a will desires to add to or change any of the provisions thereof, he may do so either by making a new will or by executing a codicil. If the changes are very great, and in conflict with the existing will, it is th^ better practice to have an entirely new will, unless, on account of age or infirmity, or for other reasons of policy, it may be deemed wise to allow the existing will to remain in force, and make the desired changes by means of a codicil. Grreat care must be exercised to see that the will, as amended by the codicil, is consistent, that it expresses the wishes of the maker of the will and codicil, and that they can he carried into effect. WILLS. 453 Form 117. CODICIL. I, A. B., of , do make and publish this codicil to my last will and testament by me executed on the day of , in manner following, that is to say, that whereas in my last will and testament I have given to my wife, C. B., the sum of dollars, I do now declare that it is my will that instead of that provision she shall have absolutely, as of her own property, one- half of all my personal property of which I shall die seized and pos- sessed. And I hereby order this, my codicil, to be annexed to and made a part of my last will and testament, to all intents and purposes. In witness whereof, etc. Signature. Signed, etc., and witnessed. Wills should be fairly written, without interlineation or era- sure, but if such do occur they should be carefully noted in the attesting clause. Wills are sometimes typewritten, and there is no legal objection to a will so drawn, but we regard it as by far the better practice to have it carefully written out by hand for the reason that there is less danger of forgery, changing sheets, or making alterations. It is a very common practice to have the will drafted in duplicate, one copy of which is deposited in the Probate Court, or retained by the family attorney. Where the will appoints the wife executrix, it is a gracefid thing to provide that she be not required to give bonds. This will often relieve her from great trouble and annoyance in pro- curing sureties, but we cannot too forcibly protest against the practice of appointing friends, neighbors or business associates as executors or trustees,, and providing that they be exempt from giving bonds. The duty that a man owes to his family requires that he take no chances of the estate being embezzled or wasted. Let him appoint whom he will as executor or trustee, but let the court determine the question of bonds. When an attorney is employed to draft a will, he should realize that he has been paid the highest compliment in the power of a client to bestow. It is evidence that the client regards the attorney as a man who is competent to undertake so important a 454 WILLS. piece of business, and to advise him in relation to matters tliat lie closer to his heart than any others, and that he believes that the attorney will keep as a sacred trust the confidential communi- cations made to him. It therefore behooves every lawyer to be ever upon his guard, to see that no confidential communication is ever allowed to escape through his carelessness, or the careless- ness of his employes, and that no confi'dential communication be permitted to reach the ears of the public or those from whom the client wishes them to be kept. When a lawyer receives a fee, it covers not only his services, but his silence as well. Bibliographic Note. — The law of wills Is discussed in the following works: Jarman on Wills, Bigelow's American edition, 1893, with notes, Redfield on Wills, a very complete work, with forms, Schouler on Wills, 2d edition, 1892, Thornton on Lost Wills, Hayes and Jarman's Concise Forms of Wills, an English work, Taylor's Precedents of Wills, an old work, Williamson on Wills, and Wigram and O'Hara on Wills, the first part of which, by James Wigram, treats of the law of extrinsic evi- dence in the construction of wills, and the second part, by John P.. O'Hara, treats of the construction of wills. INDEX ABATEMENT: pleas of defined, 60. order in which they should be pleaded, 61. when truly pleaded, plaintiff should amend, 65. common law rules of practice under, 65. must give plaintiff a better writ, 60. when may be pleaded, 65, 119, 128, 196. new matter by way of abatement, how set up under code pleading, -226. ACKNOWLEDGMENTS : defined, 414, 415. purpose and effect of, 415. by whom may be taken, 415. how executed and what care required, 415. oflicer taking, should know that the parties acknowledging the instrument are the persons described therein, 415. should be in the form prescribed by statute, 416. should be dated the day the acknowledgment is taken, 416. how executed by the oflicer, 416. seal, when necessary, 417. to what credit entitled, 417. separate examination of wife, suggestions in relation thereto, 417, 418. liability of oflicer taking acknowledgment, 418. ACTION: questions to be considered before bringing an, 40. whether action has accrued, 41. whether all conditions precedent have been performed, 41. how to commence an action, 41. in what name must be brought, 41, 48. common law forms of, 46. cause of under code pleading, how stated, 216, 217, 218. ex delicto, forms of, 78, 79. distinctions between trespass and case, 79. malice the gist of the, in malicious prosecution, 113. gist of in an action for trespass to real property, 181. gist of action in slander and libel, 98. forms of abolished under code pleading, 211. 455 456 INDEX. ACTION— Continued. actionable, what words are per se, 99. what words are by reason of special damage, 100. where words are actionable per se, measure of damages, 104. when words are not actionable,- meaning can not be enlarged by an inuendo, 101. ADMINISTRATOR: may maintain trover when, 127. may bring replevin, 190. how far may be made liable upon covenants running with the land, 147. how described in legal proceedings, 214. not subject to garnishee process unless expressly provided by statute, 260. when may revive suit in equity, 366. AFFIDAVIT: what is an affidavit, 411. when to be entitled, 411. common form of, 411, 412, 413. by an attorney or agent, commencement of, 412. when may be made by an agent, 248, 259. by member of a co-partnership, commencement of, 412. of a corporation, commencement of, 412. how attested, 411. seal of ofiicer, when necessary, 412. practical suggestions in relation to drafting, 413. affirmation, when allowable and form of, 414. AGENT: affidavit by, commencement of, 412. not personally liable upon contracts made in representative capacity, 49. when may be joined with principal, as defendant, 49. case proper remedy, damages arising through negligence of, 78, 79. agent standing in position of the master, not fellow servant of employe, 90, 91, 92. demand by in trover, agent should show authority, 125. authority can not be proved by statement of agent, 125. verification of complaint by, 220. affidavit for attachment, agent may make, 248. affidavit for writ of garnishment, when may make, 259. has not authority to submit principal's controversy to arbitra- tion, 292. INDEX. 457 AMENDMENTS: of declaration, when allowed, 59. after plea in abatement, 65. after defect pointed out by demurrer, 70. amendment preferable to a new assignment, 175. to bill in equity, 364. ANIMALS: damages by, case the proper remedy for, 78, 79. trover will lie to recover possession of, 121, 122. trespass will lie for unlawfully impounding, 178. lawfully impounded, trespass will lie for maliciously injuring, 178. APPEALS AND WRITS OF ERROR: general rules in relation thereto, 303. effect of an appeal, 303. from what judgments and decrees appeal or writ of error will lie, 303, 304. final judgments and decrees, what are, 304. interlocutory and final decrees, difference between, 304. appeal will not lie from an interlocutory decree or judgment, 304. who may appeal, 304. error, writ of, how issued, 305, 309. will lie only after final judgment, 305. who may sue out a writ of error, 305. < within what time the writ must be sued out, 305. practice in relation to writs of error, 308. bills of exception, what may be incorporated in, 306. settling bills of exceptions, practice in relation to, 308. within what time must be presented for settlement, 308. what evidence should be incorporated in bill of exceptions, 308. objections to evidence, how brought upon the record, 305. exceptions to rulings of court, how made, 306. frivolous objections should be avoided, 306. assignments of error, how prepared, 307. practice in relation thereto, 308, 309. rule in United States Circuit Courts of Appeals, 307, 308. records and briefs, practice in relation thereto, 309. briefs, suggestions in relation to preparing, 310, 311. briefs, what should be set forth in, 310, 311, 312. briefs, observations in relation to submitting case on, 310. prosecution of appeal or writ of error, suggestions in relation thereto, 310. argument, practical suggestions in relation thereto, 311, 312, 313. hearing and decision, practice in relation thereto, 310. what questions will be reviewed by the court, 313, 314. when the judgment will be affirmed, 314, 315. 458 INDEX. APPEALS AND WRITS OF ERROR— Continued. presumptions in favor of the judgment below, 315. proceedings upon reversal, 316. hew trial, when the court will remand for, 316. when appellate court will enter final judgment, 316. rehearing, how obtained, practice in relation thereto, 316. review of proceedings of state courts by Federal Supreme Court, 316, 317. stay of execution pending appeal, how obtained, 318. expediency of appeal or writ of error, 318, 319. practical suggestions in relation thereto, 318, 319, 320. APPEARANCE: waives defects in the service of process, 60. general, waives objections to the jurisdiction of the court, 60. garnishee can not enter voluntarily so as to confer jurisdiction, 259. rule in relation to entering, in Appellate Court, 309. proceedings to enforce appearance, in equity, 342, 343. in equity proceed^ings, when and how must be entered, 344. ARBITRATION: nature of the proceeding by arbitration, 286. common law arbitration, nature of, 286. statutory arbitration, nature and effect of, 286, 287. statutory arbitration, manner of submitting to, 293. common law submission, how made, 287. what the agreement should, set forth, 287. forms of common law submission, 288, 289, 290. suggestions in relation to selecting arbitrators, 291. who may submit to arbitration, 291. attorney has no power to submit to a common law arbitration, 292. attorney may submit to a statutory arbitration, 292. agent can not submit to arbitration without express authority, 292. public officer has no right to submit public claims without express authority, 292. advisability of submitting to arbitration, 293. attorney's duty in relation thereto, 293, 294. revocation of agreement to submit to arbitration, 294. award, nature and effect of, 294. who bound by, 295. to what extent binding upon the parties, 295. what will invalidate, 295. effect of fraud upon, 295. should be complete, 296. must be certain, 296. must be mu^tual, 296. must be final, 297. INDEX. 459 ARBITRATION— Continued. enforcement of award, 297. proof, nature and order of, 299. damages, measure of in action to enforce an award, 299. joining original cause of action, when advisable, 300. arbitration bond, proceeding upon, 300. proof, nature and order of, 299. equity, proceedings in, to enforce award, 301. defenses to proceeding in equity, 301, 302. statutory awards, enforcing, 302. effect of statutory award when confirmed, 302. ARRESTS IN CIVIL ACTIONS: observations in relation to the proceeding, 234. process whereby the body of a debtor may be arrested, 234. proceedings based entirely upon statutory provisions, 234. affidavit, form of, 235. what must be set forth in, 235. manner in which grounds of arrest must bp set forth, 235. exemptions from arrest, 236. who are exempt from arrest, 236, 237. writs of protection, when will issue, 237. proceedings upon arrest, 237. bail, nature of and how given, 237, 238. bail, discharge of, 242. declaration and other pleadings, when to be filed, 237. discharge from arrest, how obtained, 238. habeas corpus, when will lie to obtain discharge of debtor, 238. motion to quash, when proper, 238, 239. what should be set forth in motion to quash, 239. proceedings under the statute, observations in relation thereto, 239. what questions will be determined under proceedings to obtain discharge from arrest, 240. privilege, how claimed, 240.' proceedings after judgment, 240. jail limits, release "upon, 240. escape, what constitutes and effect of, 240, 241. discharge of defendant imprisoned upon execution, how affacted, 242, 243. illegal arrest, liability for, 243. remedy by person illegally arrested, 243, 244. attorneys, a warning to, 244. 460 INDEX. ARGUMENT: of counsel, in habeas corpus proceedings, 275. oral in Appellate Courts, suggestions in relation thereto, 310, 311, 312, 313. in briefs, suggestions in relation thereto, 310, 311, 312. to what it should be confined, 310-313. in equity proceedings, practical suggestions in relation thereto, 360, 361. submitting case without, 361, 362. upon hearing of motions, 379. non-suit argument of motion for, 403, 404. closing arguments in trials of causes, practical suggestions, 407. ASSAULT AND BATTERY: trespass, the proper civil remedy for, 164. when the action will lie, 164. when the action will not lie, 164. what constitutes an assault, 164. battery defined, 164. declaration should allege both an assault and battery, 164. what should be set forth in the declaration, 165. pleas, what appropriate in this action, 165, 166. damages in, measure of, 165. counts for assault and battery may be joined with counts for false imprisonment, when, 171, 172. ASSUMPSIT: when the proper remedy, 47. when the action will lie, 47. questions to be considercji before bringing, 47. when the action accrues, 47. breach, what constitutes, 48. breach, how assigned, 53. parties who may be joined as, 48. in whose name action must be brought, 48, 49. joint and several contractors, rule in relation thereto, 49, 50. limitations, statute of must be considered, 50. frauds, statute of, effect of, 50, 51. declaration, form thereof, 51, 55, 56, 57, 58. what must be set forth in, 52. variance defined, effect of, 53. damages, measure of, 54. special counts, nature of, when necessary, 54: special counts, suggestions in relation to drafting, 58, 59. common and special counts, when to be combined, 55. promissory notes, how declared on, 56, 57, 58. pleadings in assumpsit, 60. INDEX. 461 ASSUMPSIT— Continued. pleas in abatement (see that title), 60-65. pleas in bar, 65-68. in assumpsit usually coupled with plea of non-assumpsit, 67. rule for determining whether special pleas are necessary, 67. demurrers, nature and effect of, 70. general issue, nature and effect of, 71. what is put in issue by plea of general issue, 71. evidence, what may be introduced under general issue, 72. set-off, defined, 73. when may be pleaded and effect thereof, 74, 76. recoupment, how it differs from set-off, 75. recoupment, when may be pleaded, 75. practice in relation thereto, 76. to what extent defendant may recoup damages, 76. ATTACHMENTS: nature of, 246. preliminary steps, 246. grounds of attachment, 246, 247. aifidavit, nature and requisites of, 247. how grounds of attachment must be set forth, 247. by whom afladavit should be made, 248. attorney should not make affidavit, 248. parties to the action, how described in affidavit, 248. bond, object and nature thereof, 248, 249. sureties, suggestions in relation thereto, 249. writ, how served, 249. what property subject to attachment, 250. what property exempt, 250. dissolution of attachment, how effected, 251. effect of giving bond to dissolve attachment, 251. proceedings under the statute for a dissolution, 251, 252. motion to quash, when proper, 252. remedy in absence of statutory provisions, 252. what will be inquired into under proceedings to dissolve, 252. effect of dissolution, 253. effect in cases where there has been no personal service upon defendant, 253. illegal or malicious attachment, liability of plaintiff for, 253, 254. good faith, effect of, 253. malice, effect of, 255. attorneys, liability of, 255. when an action will lie against, 255. practical suggestions as to an attorney's duty, 255. sheriff, liability of, 256. obligation of the sheriff to both parties defined, 256. duty of the sheriff in relation to property attached, 256, 257. 462 INDEX. ATTORNEYS: practical suggestions to, 38, 39, 40, 41, 43, 255. questions to be considered by before commencing an action, 40, 41, 42, 81, 212. advice of, when a defense in malicious prosecution, 116. suggestions in relation to demand by attorneys in trover suits, 123. practical suggestions to in relation to actions of trover, 125. should not have other -than professional dealings with clients, 135. liability for damages by reason of false or malicious arrest, 170, 243, 244. when may verify complaint, 220. form of verification by, 223. when may make affidavit for attachment, 248. should not request friends to become surety upon bonds, 249. may make affidavit for writ of garnishment, 259. may submit client's controversy to statutory arbitration, 292. practical suggestions in relation thereto, 293. suggestions in relation to appeals and writs of error, 318, 319, 320, 321. preparation and trial of causes, practical suggestions in relation to, 396, 397. . affidavits by, commencement of, 412. suggestions to in relation to drating wills, 447, 448. confidential communications should be kept sacred, 453, 454. money or property in hands of may be reached by garnishee process, 260. ATTORNEY, POWERS OF: to execute deeds, mortgages, etc., should be recorded, 431. AWARD: See title Arbitration and Award. BAIL: nature of in civil actions, 237. plaintiff unlawfully or maliciously held to, how alleged in declara- tion for false imprisonment, 172, 173. held to, how alleged in action for malicious prosecution, 117. proceedings after judgment for the purpose of holding, 240. demand upon sureties to produce body of defendant, 240. liability of bail to satisfy judgment, 228, 241. jail limits, bail for defined, 241. practice in relation thereto, 241. discharge of bail, how effected, 242. INDEX. 463 BAIL— Continued . excessive, when prisoner held to, habeas corpus will lie, 270. when court will reduce, 270. case lies against a justice or other officer for refusing, 78. BAILEE: negligence of, case lies to recover for, 78; trover-wlU lie against, when, 122. trespass against, will lie when, 178. property in hands of, when not subject to attachment, 250. BANKING CORPORATION: how described in legal proceedings, 214. BAR TO ACTION: in actions upon statutes, what constitutes, 209. judgment in garnishment proceedings, when a bar, 266. judgment of court of law, when a bar, 382, 388. judgment dismissing action upon demurrer sustained, 389. mandamus proceedings, how far a bar, 278. decree in equity, when it constitutes, 388. status of limitations as, 50, 146, 199, 217. BAR, PLEAS IN: Forms of, see Index of Forms, nature and effect of, 65. traverse, by way of, what are, 60, 66. traverse pleas, when proper, 66.- confession and avoidance, pleas in, when proper, 66. in assumpsit, usually coupled with general issue, 67. rule for determining when plea in bar is proper, 67. BILL OF EXCEPTIONS: what may be incorporated in, 306. settling, practice in relation thereto, 308. within what time must be presented for settlement, 307. what evidence should be incorporated in, 307. BILLS OP SALE: what necessary to constitute a valid, 427. when valid as against creditors, 427. recording, suggestions in relation thereto, 428. execution thereof, suggestions in relation thereto, 428. 464 INDEX. BOOKS AND PAPERS: either party may compel the production of, 161. how produced if compelled, 161, 162. how identified, marked and offered in evidence, 359. BOND: debt the proper remedy to recover upon, 154. judgment upon, form of, 155. actual damages only recoverable, 155. pleadings in actions upon, 156. profert of, how made, 157. lost or destroyed, how referred to in declaration, 157. execution of, must be proved, 158. practice in relation thereto, 158, 159, 160. breach must be proven in action upon, 161. bail bonds, suggestions in relation thereto, 237. to sheriff, in attachment suits, 248. attorneys should not request friends to become surety on, 249. for dissolving attachment, 251. effect of giving bond to dissolve attachment, 251. to dissolve attachment, proceedings to enforce, 303. arbitration, proceedings upon, 300. practice in relation thereto, 300, 301. stay of execution by, 318. effect of, 318. BREACH: what constitutes, 48, 148. action will not lie until after, 48, 138. how assigned in actions of assumpsit, 53. several breaches, how assigned, 53, 149. should be co-extensive with contract or promise declared upon, 53. must be proved at the trial, 160. of covenant, action for, 146. of covenant, what constitutes, 146, 147. of contract, what constitutes, 148, 149. of covenant of seisin, what constitutes, 138. of covenant of right to convey, what constitutes, 148. of covenant against encumbrances, 148. of covenant for quiet enjoyment, 148. of above covenants, when it occurs, 148. how assigned in action of covenant, 149, 150. of arbitration bond, action for, 300. INDEX. 465 BRIEFS: suggestions in relation to preparing, 310, 311, 312. what should be set forth in, 310, 311. what should be avoided in preparing, 311, 312. suggestions in relation to submitting case on, 310. for use at trial of the cause, suggestions in relation to making, 397. BURDEN OF PROOF: incapacity or untrustworthiness of servant, upon plaintiff, 89. in slander and libel, 311. in malicious prosecution, 120. in action of deceit, 134, 135. in action of debt, 160, 161. in action for false imprisonment, 176. in action to enforce an award, 299. CAPIAS: ad respondendum, nature of, 234. right to sue out, based upon statutory provisions, 234, 235. ad satisfaciendum, when should be sued out, 382. see arrests in civil actions, 234, et seq. CARRIERS: duties and liabilities of, 80, et seq. of passengers, duty owing to passengers, 81, 82. case will lie for breach of duty by, 80. CASE, TRESPASS ON THE: action of defined, 78. distinction between and trespass, 78, 79. rules for determining whether case or trespass the proper remedy, 79. when the action will lie, 78, 79. when the action will not lie, 79. personal injuries, when the proper remedy for, 80, et seq. slander and libel, proper remedy in actions for, 98. malicious prosecutipn, proper remedy for, 112. trover, case proper remedy for, 121. deceit, case proper remedy for, 130, 131. enticing away servants, case proper remedy for, 136. seduction, case proper remedy for, 137. nuisances, case proper remedy for, 141. statutes, when case proper remedy in actions upon, 78, 207. CATTLE: injuries by, actions for, 79. in replevin, taking how alleged in declaration, J.95. 466 INDEX. CERTIFICATE: of counsel, when must accompany plea or demurrer, 347, 348. form of prescribed by U. S. Court rules, 348. CERTIFIED COPY: of judgment not competent evidence in absence of statutory pro- vision, 157, 385. of restraining order or injunction must be served upon defendant in order to bring bim into contempt, 373. CHANCERY: See Practice in Courts of Equity, 322-375. CHALLENGE OF JURORS: upon what grounds jurors may be challenged, 399. for cause, grounds of, 399. peremptory, right of, 399. CHASTITY: words concerning a woman imputing a want of, not excused by a declaration of disbelief, 98. CHATTEL MORTGAGES: suggestions in relation to drafting, 437. forms of, 437-440. CIVIL ACTIONS: ■ See title Actions. CLIENT, ATTORNEY AND: observations concerning the relation of, 38, 39, 40, 135. confidential communications between should be kept sacred, 453, 454. CLIENT: should be required to furnish attachment bonds, etc., 249. should be required to decide as to expediency of submitting to arbi- tration, 292. attorneys should consult with in relation to appeals, 320. suggestions of, how to be received, 320. should be allowed to decide upon expediency of further litigation, 320. INDEX. 467 CLOSE: description of, what necessary in replevin, 195. CODE PLEADING AND PRACTICE: distinction between code pleadings and pleadings at common law, 210, 211. nature of code pleading, 211. preliminary considerations before commencing an action, 212. complaint or petition, nature of, 213. form of, 222. should be drafted with great care, 213. what must be set forth in complaint or petition, 213. parties, who may be Joined and how described, 213, copartnership, how described, 214. corporations, how described, 214. national banks, how described, 214. executors or administrators, how described, 214. cause of action, how stated, 214, 215, 216, 217, 218. jurisdiction, every fact necessary to confer must be stated, 215. complaint must set forth facts, not propositions of law or legal conclusions, 216. written instruments, how set forth, 216. irrelevant, scandalous or impertinent matter should not be set forth, 217. defense, matter of must not be stated, 217. exceptions to the rule, 217. demand, when must be alleged, 218. relief, how demanded, 218. relief, what should be demanded in certain cases, 218. relief will be consistent with the case made by the complaint, 218, 219. relief under a default judgment, what may be granted, 219. relief, several kinds may be demanded when, 219. relief, alternate may be demanded when, 219. practical observations in relation to, 219. verification, when complaint must be verified, 220. by whom complaint may be verified, 220. form of, 223. demurrers, 220. • form of, 223. when demurrer to complaint will lie, 220. practice in relation to demurrers, 220, 221. will be deemed a waiver of what objections, 221. must specify grounds of objection, 221. must be to the whole or to part of the complaint, 221. relates back to the first defective pleading, 221. what is admitted by demurrer and for what purpose, 221, 222. amendments, effect of, 222. 468 INDEX. CODE PLEADING AND PRACTICE— Continued. answer, nature of and into what classes divided, 224. general denial, form and effect of, 224. general denial, what it puts in issue, 224. special denials, nature and effect of, 225. new matter, nature of, 226. counter claim, set off and cross-complaint, nature of, 226. relief, what must he demanded under, 227. what may he set up under counter claim, 227. set offi, distinction between and recoupment, 227. what claims may he set off, 228. nature of proceedings in set off, 228. how amount recovered in set off will he applied, 228. cross-complaint, nature of, 228. to what it must relate, 228. what may he set up under a cross-complaint, 228. verification, when necessary, 229. demurrer to answer, grounds of, 229. reply the, nature of, 229. reply must set forth what, 230. effect of failure to reply to a material allegation, 230. defendants may demur to reply, 230. motions, when proper, 230. motion to strike from the files, when proper, 231. motion to strike out, when proper, 231. motion to make definite, when proper, 231. motion to separately state and number, when proper, 231. motions, practice thereunder, 231. forms of pleadings, observations in relation thereto and rules, 232. suggestions in relation to drafting pleadings, 232. statutory provisions, practitioner must be thoroughly familiar with, 232. COLLATERAL ATTACKS UPON JUDGMENTS: general rules in relation thereto, 382, 387. exceptions to above rules, 387. COLLOQUIUM: nature and effect of, 106. when necessary, 106, 111. COLLUSION: must he denied under oath by party filing bill of interpleader, 341. INDEX. 469 COMMENCEMENT OF DECLARATION: See Declaration. COMMENCEMENT OF BILL IN EQUITY: forms of, 329, 330. COMMON COUNTS: In assumpsit, forms thereof, 55. when special counts should be joined with, 54. when joined with special counts in actions upon written instru- ments, 56, 57. COMMUNICATIONS, PRIVILEGED: what are, 102, 103. words spoken by member of legislative body during a debate, 102. words spoken by an attorney in the course of a trial, 102. words spoken by a judge in the discharge of his duty, 102. testimony of witnesses in court, 102, 103. communications honestly and fairly made, when, 103. characters given to servants, when, 103. reports of commercial agencies, when, 103. honest criticism of official acts, when, 103, 104. privilege will not excuse a malicious or unwarranted attack, 103. COMPLAINT (UNDER THE CODES): See Code Pleading and Practice. CONDITION PRECEDENT: must be performed before action will lie, 41, 48. performance of must be alleged in the declaration, 52, 59, 155. CONFESSION AND AVOIDANCE: pleas in bar by way of, nature of, 66, 67. when may be pleaded, 67. CONFIRMATION: of statutory award, effect of, 302. 470 INDEX. CONSIDERATION: must be alleged in declaration -where action is upon contract not under seal, 52. need not be alleged when action is upon a sealed instrument, 155. but when the consideration is the performance of some act by plaintiff, performance must be alleged, 155. failure of may be set up as a defense when, 161. CONTEMPT: of court, when person committed for will not be released upon habeas corpus, 275. proceedings in, proper remedy to enforce obedience to writ of mandamus, 284. proceedings will lie to compel defendant to answer bill in equity, 343. proceedings in, proper remedy to enforce obedience to writ of injunction, 374. party in will not be heard until purged of contempt, 374, 375. CONTRIBUTORY NEGLIGENCE: doctrine of explained, 83. what constitutes, 83. what does not constitute, 83, 84. when will not prevent recovery, 384, 385. CONVERSION: of personal property, trover will lie for, 121. action for will lie, in what cases, 121, 122^ 223. what constitutes evidence of, 126. by an agent or servant, when master liable for, 127. plaintiff may Join as defendants, all who participated in, 127. successive, will not enable plaintiff to bring action against defend- ants jointly, 127. of goods purchased under false representations, what constitutes, 127. COPARTNERS: full name of each should be set forth in actions by or against copartnership, 214. rule as to charging firm as garnishee of individual, 263. CORPORATION: how described in legal proceedings, 214. INDEX. 471 CORPORATION— Continued. liability of for personal injuries caused by negligence of servants of, 75, 80, 81. municipal, as a rule not chargeable as garnishee, 260. may be compelled by mandamus to exercise its franchise, 280. officer of may be compelled by mandamus to allow stockholder or director to examine books of, 280. officer of may be compelled to issue certificate of stock, 280. may submit to arbitration, 291. shares of stock in are personal property, 393. shares of stock in may be reached by execution, 393. COSTS: security for, 43, 345. in garnishment proceedings, 268. a party unnecessarily joined will recover, 342. a party in contempt will be required to pay costs of attachment, 343. COUNTER CLAIM: may be set off how in common law actions, 75. under code pleading, nature of, 226. what matter may be set up by way of, 226, 227. how matter by way of may be set up, 227. practice in relation thereto, 227. garnishee having should set it up in his disclosure, 264, 265. COVENANT: when the action of will lie, 146. express or implied covenants defined, 146. practice in states where distinction between sealed and unsealed instruments is abolished, 146. who may maintain the action, 146, 147. running with the land, what is, 147. breach of, action will not lie until there has been, 147, 148. rules for determining when a breach has occurred, 148, 149. what covenants are broken when made, 148, 149. declaration in, what it must set forth, 148. written instruments, how must be set forth in declaration, 149. pleas in actions of, 149, 150, 151. evidence in actions of, 150 variance in actions of, effect of, 152. damages in actions of, measure of, 152. 472 INDEX. COVENANTS IN DEEDS AND OTHER INSTRUMENTS: in statutory forms of conveyances, covenants created by operation of law, 426, 427. efEect thereof, 427. meaning and efEect of should be disclosed and explained by convey- ancer, 427. exceptions from covenants, suggestions in relation thereto, 430. CRIME: words imputing commission of actionable per se, 99. belief that a crime has been committed by the person charged, how far a justification in an action for false imprisonment, 168. every person charged with entitled to speedy trial, 270. CROPS: trespass will lie for destroying or carrying away, 178. one who has exclusive possession of land for the privilege of har- vesting may maintain trespass for an injury to the crop, 182. unlawfully carried away, replevin will lie to recover, 190. growing, when subject to levy under execution, 393. CROSS-EXAMINATION : suggestions in relation thereto, 397, 398. CUSTODY: of the law, property in is exempt from attachment, 250, 251. process for taking defendant into in civil actions described, 234. defendant on bail in a civil action deemed to be in, 241. of personal property attached, 249. of goods and chattels levied upon, officer liable therefor, 380. of children, right of may be determined by habeas corpus proceed- ings, 271, 276. prisoner detained in, when will be remanded, 275. DAMAGES: how laid in the writ and declaration, 42. when may be recovered, 47. what may be recovered in actions upon the common counts, 54. in set off, how applied, 75. in recoupment, how applied, 75. arising through negligence of agents or servants, case the proper remedy for, 78. INDEX. 473 DAMAGES— Continued. for personal injuries, case the proper remedy, 80. what necessary to create a liability to respond in, 81, 82. for slander and libel, case the proper remedy in, 98. aggravation of, evidence may be introduced in, 105, 111. special, -words actionable by reason of, 100, 104. special, must be alleged and proved when, 104, 106. mitigation of, what may be shown in, 105. measure of, in action for malicious prosecution, 121. measure of, in trover, 130. in seduction, measure of, 141. ~ fpr a nuisance, measure of, 144. in covenant, measure of, 152. for false imprisonment, measure of, 171, 173. for trespass to personal property, measure of, 181. for trespass upon real property, measure of, 189. for malicious arrest, jury will award substantial, 243. may be recovered for illegal or malicious attachment, 253. measure of, for malicious attachment, 254. measure of, in actions upon awards, 299. ' measure of, in action upon arbitration bond, 300. action for will lie against officer taking an acknowledgment, when, 418. vindictive or exemplary, when jury may award, 104, 106, 141, 144, 171, 181, 243. DANGER: duty to warn visitors of defined, 81. one placed in condition of cannot be blamed for doing that which at the time seemed best, 84, 85. where none is to be apprehended,, failure to look out for not con- tributory negligence, 84, 85. DEBT, ACTION OP: theory underlying the action, 155. when the proper remedy, 154. upon statutes, when will lie, 154. declaration in, what must be set forth in, 155. breach, how assigned, 155. pleas in, what proper, 156. evidence in, what necessary to sustain the action, 157, 158, 159, 160. defenses to, what may be shown and in what manner, 160, 161. DEBT OF ANOTHER: agreement to pay the, void unless in writing and signed by party to be charged thereby, 50. 474 INDEX. DEBT: imprisonment for, observations in relation thereto, 234. See Arrests. DECEIT: case the proper remedy in actions for, 78. assumpsit, when the better remedy, 1.55. common law action of based upon fraud, 130. rule in this country, 131, 132. what deemed fraudulent representations, 131, 132, 133. pleadings in, 133, 134. declaration in, what must be set forth in, 133. evidence in, what must be introduced to support the action, 134, 135. DECLARATION: in assumpsit, observations in relation thereto, 51, 52. in assumpsit^ what must be set forth in, 52, 53, 54, 57, 59. variance, effect of and practice, 53. breach, how assigned, 53. special counts, when necessary, 54, 55, 56. drafting special counts, 58, 59. common counts, when sufiScient, 51, 52. in slander and libel, what must be set forth in, 106. malicious prosecution, what must be set forth in, 117. in trover, form of, 128. in deceit, what must be set forth, 133. for enticing away servants, form of, 136. for nuisances, what must be set forth in, 143. in covenant, what must be set forth in, 149. in debt, suggestions in relation thereto, 155. for assault and battery, suggestions in relation thereto, 164. for false imprisonment, what must be alleged in, 171, 172, 173. for trespass to personal property, what it must contain, 179. in trespass upon real estate, form of, 184. in replevin, 194, 195. in an action to enforce an award, 297, 298. evidence must support the, 106, 120, 176, 180. DECREE: form of, how drafted and entered, 362, 363. rules in relation thereto, 362, 363. should contain what, 363. forms of in United States Courts, 363. costs should be provided for by, 364. enrollment of, 364. INDEX. 475 DECREE— Continued. from what an appeal will lie, 303, 304. final, what is, 304. interlocutory, difference between and final, 304. interlocutory, appeal will not lie from, 304. DEEDS: suggestions in relation to drafting, 426. statutory forms of, observations in relation thereto, 426, 427. ' requisites of, 429. delivery of, what constitutes evidence of, 158, 159. exceptions in, of encumbrances, how made, 430. practical suggestions in relation thereto, 430, 431. powers of attorney to execute should be recorded, 431, 432. DEFAULT: relief granted upon a judgment by cannot exceed the amount demanded by the complaint, 219. of garnishee, effect of, 267. DEFENSES: considerations in planning, 44, 45, 50, 220. frauds, statute of, 50, 51. See Abatement, Bar, Demurrers. under plea of general issue, 71, 72, 166, 174, 187. set off, 73, 74, 75, 227. recoupment, 75, 76. in slander and libel, 110, 111. in malicious prosecution, 116, 119, 120. in trover, 128, 129. in debt, 160, 161. in actions for false imprisonment, 174, 175. for trespass to personal property, 180, 181. for trespass to real estate, 187. in replevin, 196, 197, 198. in actions upon statutes, 209. under code pleading, 225, 226, 227, 228, 229. garnishee should set up all he has against defendant, 265. in actions upon an award, 301, 302. in proceedings in equity, 344, 345, 346, 347. DEMAND: in trover, when necessary, 125, 126, 127. upon whom should be made, 127. How made, 125, 126. 476 INDEX. DEMAND— Continued. by an agent, suggestions In relation thereto, 125. attorney should not make, 123. must be proved, '129. in replevin, when necessary, 191, 192. practical suggestions in relation thereto, 191, 192. for performance of award must be proved, 299. DEMURRERS: when may be used, 70, 110, 166. effect of, 70, 71. general, when sufficient, 70. special, when necessary, 70. not always good practice, 70. under code pleading, 220. when will lie, 220. failure to demur, effect of, 221. relate back and attach to first defective pleading, 221. admit what, 221, 222. effect of when sustained, 222. when overruled, practice, 222. to answer, 229. in equity pleading, 346. when will lie, 346. general and special defined, 346, 347. when must be supported by certificate of counsel and affidavit, 347. several causes of, how stated, 349. to supplemental bill, when proper, 365. to bills of review, when proper, 369, 370. DEPOSITIONS: practice in relation thereto, 420. interrogatories, suggestions' in relation to drafting, 421. cross interrogatories, suggestions in relation to drafting, 421. how taken, practice in relation thereto, 422. witnesses, how examined in taking, 422, 423. objections, how taken, 423. instructions for taking must be carefully followed, 423. opening, practice in relation thereto, 424. taken by stipulation, 424. effect of as evidence, 425. DIRECTING VERDICT: practice in relation thereto, 402, 403, 404. INDEX. 477 DISCLOSURE OP OARNISHEE: nature and effect of, 264, 265. what should he set up in, 264, 265, 266. DISEASE: words imputing a contagious or loathsome actionable per se, 99. DISSOLUTION OP ATTACHMENT: See Attachment. DOCUMENTARY EVIDENCE: suggestions in relation thereto, 160, 161, 162. DOWER: release of in deeds and mortgages, 427. suggestions to conveyancers in relation thereto, 430. DUTY: must be owing to plaintiff from defendant in order to create liability, 80, 81. of carriers defined, 81, 82. to warn persons coming upon premises by invitation of dangers in so doing, 81. of street railway companies, 82. of railway companies, 82. of employers to employes, 82, et seq. EJECTMENT: the proper proceedings by which to try the title to real property, 184. EMPLOYER: duty of to employe, 82 et seq. liability of for violation or neglect of duty to employe, 82, 85. ENTICING AWAY SERVANT: case the proper remedy for, 136. when the action will lie, 136. when the action will not lie, 136. measure of damages in action for, 137. 478 INDEX. EQUITY, PRACTICE IN COURTS OF: equity defined, 322. courts of equity, with what powers and jurisdiction invested, 322. maxims and principles, 323, 327. proceedings in equity, nature of, 328. hill in equity, frame of, 325. the address, form of, 329. introduction or commencement, 329, 330. stating part, what must be set forth in, 330, 331. rule in United States Courts in relation thereto, 331. multifariousness, rules in relation thereto, 331, 332. scandal and impertinence defined, 332. practice in relation thereto, 332. confederating and charging part and jurisdictional clause, rules in relation thereto, 333. when confederating clause may he omitted, 333. interrogating part, practice in relation thereto, 334. prayer for relief, great care required in drafting, 334. practical suggestions in relation thereto, 334. forms of prayers, 334, 335. prayer for process, practice in relation thereto, 336. interpleader, bill of must he accompanied by an affidavit denying collusion, 341. when filed by a corporation, by whom affidavit may be made, 341. parties to the bill, rules as to whom necessary parties, 341, 342. want of parties, effect of and how taken advantage of, 342. unnecessary parties, who are, effect of joining, 342. appearance, proceedings to enforce, 342. defendant may plead to part of a bill and answer part, 347. subpoena, how served and returned, 342. service when defendants are beyond the jurisdiction of the court, 343. proceedings to enforce answer by defendants properly served, 342. attachment, nature of and practice in relation thereto, 343. when it will be granted to compel an answer, 343. appearance, when should be entered and how, 344. rule in United States Courts, 344. duty of solicitors in relation to entering appearance and defending suit, 344. costs, security for, practice in relation thereto, 345. defense, preparing the, questions to be considered, 345. demurrer, when proper and when it will lie, 346. general demurrer nature of, 346. special demurrer, nature of, 346, 347. upon what a demurrer must be based, 347. what is admitted by a demurrer, 347. speaking demurrer, what is, 347. separate and distinct causes of demurrer must be set forth in sepa- rate paragraphs, 347. INDEX. 479 EQUITY, PRACTICE IN COURTS OF— Continued. demurrer may be to the whole or part of a bill, 347. demurrer will not lie to a plea in equity, 352. certificate of counsel, when required, 347. pleas, to what they relate, 349. need not go to the whole bill, 349. when must be accompanied by certificate of counsel, 350. pleas, when must be sworn to, 351. rule in United States Courts, 351. issue upon pleas, how joined and hearing thereon, 351. practice in relation to pleas, joining issue thereon, and effect of, 351. allowance of plea, effect of, 352. answer, the, practice in relation thereto, 352. may combine demurrers and pleas, when, 352. rule in United States Courts, 352. general rules in relation to answers, 353. practical suggestions in relation to drafting an answer, 353. answer must be sufficient, meaning of the rule, 353, 354. affirmative relief cannot be had under an answer alone, 354. when answer must be sworn to, 354. infants, answers by, nature and effect of, 354, 355. replication, practice in relation thereto, 356. special replications abolished by rule in many states, 356. cross bill, nature of and when necessary, 357. who may be made parties thereto and how joined, 357. usually filed in suit already commenced, 357, 358. when cross bill may be incorporated in answer, 358. practice in relation to cross bills, 358. demurrer to cross bill, when will lie, 358. answer to cross bill, practice in relation thereto, 358. hearing, how suits in equity may be brought on for, 359. witnesses, how examined, 359. manner of conducting the hearing, practical suggestions In relation thereto, 359. written instruments, how proved, marked, introduced and referred to, 359, 360. objections to evidence, suggestions in relation thereto, 360. argument, suggestions in relation to, 360, 361. submitting cases without argument, practice condemned, 361, 362. decree, forms of, how drafted and entered, rules in relation to decrees, 362, 363. what decree should contain, 363. form of in United States Courts, 363. costs should be provided for by decree, 364. enrollment of decree, 364. supplemental bills, nature of and when they will lie, 364. amendment, when proper, 364. hy whom supplemental bill may be filed, 364. 480 INDEX. EQUITY, PRACTICE IN COURTS OF— Continued. how filed, practice in relation thereto, 365. defenses to supplemental bills, practice in relation thereto, 365. revivor, bills of, nature of and when they will lie, 366. when, by whom and how a bill of revivor may be filed, 366. rule in United States Courts, 366. review, bills of, nature of and when they will lie, 367. can be filed only upon leave of the court, 367. leave of court, how obtained, 367. defenses, what may be set up to bill of review, 369, 370. injunction and restraining orders, practice In relation thereto, 370, 871. temporary injunction, how obtained, nature and effect of, 370, 371. restraining order, riature and effect of, 373. bond, suggestions in relation thereto, 372. injunction, how dissolved, 372, 373. violation of, how punished, 374. contempt proceedings, nature and effect of, 374. how defendant brought into contempt, 374. ERROR, WRITS OF: general rules in relation thereto, 303. , how issued, 305, 306. will lie only after final judgment, 303, 304, 305. who may sue out, 305. within what time must be sued out, 305. practice in relation thereto, 308, et seq. ESCAPE: what constitutes, 241. liability of officer for, 241, 242. EVICTION: covenant for quiet enjoyment broken by, 148. but eviction must have been lawful, 148. by one holding a paramount title constitutes breach of covenant of warranty, 148, 149. - EVIDENCE: must support the declaration. 111, 112, 134, 150, 176, 180. wliat may be introduced under the general issue, 71, 72, 73, 110, 111, 128, 187. in slander and libel. 111, 112. in malicious prosecution, 120. in trover, 129, 130. in deceit, 134. INDEX. 481 EVIDENCE— Continued. of fraud, courts allow a wide range of inquiry, 135. in covenant, 150. , in debt upon judgment, 157, 158. of execution of bonds, deeds and other instruments, 158, 159, 160, 161. in debt, 157-162. production of books and papers, liow enforced, 161, 162. in action for false imprisonment, 176, 177. in mitigation of damages, 105, 106. in aggravation of damages, 105. in trespass to personal property, 180, 181. in trespass to real property, 185. in replevin, 199, 200. bow far tbe court will hear, in habeas corpus, 275. in action to enforce common law award, 299. admitted over objection, incorporated in bill of exceptions, 306. taken in open court, advantage of, 359. documentary, how marked, referred to and offered, 359. papers, writings, deeds, etc., must be proved before being offered, 360. suggestions as to order of introducing, 403. to support defendant's case, how introduced, 404. EXECUTION OF INSTRUMENT: how proved, 158, 159. must be proved before being offered in evidence, 158, EXECUTIONS: See Judgments and Executions. EXECUTORS: may maintain trover when, 127. may bring replevin, when, 190. how far may be made liable upon covenants running with the land, 147. how described in legal proceedings, 214. not subject to garnishee process when, 260. may revive suits in equity when, 366. should not be relieved from giving bond, 453. FALSE IMPRISONMENT: nature of the action, 167. what constitutes, 167, 168. damages for, measure of, 171. 482 INDEX. FALSE IMPRISONMENT— Continued. declaration in, what must be set forth, in, 171, 172. who may be joined as defendants in action for, 171, 172. defenses to the action for, 174-177. defendant in, may plead what, 174. new assignment, nature and effect of, 176. evidence in action for, 176. See trespass, 166-177. FEDERAL SUPREME COURT: power of to review final proceedings of state supreme court defined, 316, 317. FELLOW SERVANTS: doctrine of; 88-95. negligence of exempts master from liability when, 88, 89, 90. who are fellow servants, 88-96. vice-principal not a fellow servant, 90. See Master and Servant and Independent Contractors. FOOD: selling unwholesome, case will lie for, 78. FORMS OF ACTIONS: distinction between abolished under code pleading and practice, 211. how discussed in this work, 45. rules for determining what the proper, 79, 80. FORMS: See Index of Forms. FORMER JUDGMENT: a bar to another suit upon same cause of action, 66. what must appear to constitute a bar, 388, 389. should be pleaded how, 388. questions determined by, how ascertained, 388, 389. FRAUD: trover lies to recover for goods obtained by, 123. replevin will lie to recover goods obtained by, 190, 191. vendor may rescind sale when, 123, 124. actual need not be proved, 124. what will constitute evidence of, 124, 125. INDEX. 483 , FRAUD— Coatlnued. in actions based upon, courts allow a wide range in introduction of evidence, 124, 135. must be shown in order to maintain action of deceit, 130. what evidence of sufficient, 130, 131, 132, 134, 135. a person may become guilty of by his silence, 132. what concealment will constitute, 132. declaration must allege facts which constitute, 133. GARNISHMENT: garnishment defined, 258. jurisdiction of the court, upon what it depends, 258. affidavit, by whom it should be made, 258. process, nature of and how issued, 259. garnishee, the, who may be liable as, 259, 260. garnishee, who may not be liable as, 259, 260. garnishee, when maker of negotiable paper may he made liable as, 261, 262. garnishee must act in good faith, 262. garnishee may make himself doubly liable by bad faith, 262. garnishee ' may by his answer charge himself without paying the debt, 262. property, effects and credits, how words construed, 262. joint liability and joint obligations, rule in relation to, 263. liability of garnishee, how determined, 264, 265, 266. judgment, the, nature and effect of for and against garnishee, 266. judgment against garnishee by default, .effect of, 267. cannot be entered against garnishee until after judgment against the principal defendant, 267. discontinuance or non-suit will discharge garnishee, 267. adverse claimants, garnishee should have them brought in, 267. appeals and writs of error, when will lie, 267. proceedings thereunder, 268. costs, when garnishee will recover, 268. when court may refuse to award costs to garnishee, 268. GENERAL APPEARANCE: See Appearance. GENERAL ISSUE, PLEA OF: When may be pleaded, 67, 71, 110, 128, 156, 166, 174, 180, 184. what evidence may be introduced under, 71, 72, 73, 110, 111, 128, 174, 180, 184. puts in issue what, 71, 72, 129, 174. forms of, 71, 150, 156, 174, 184. general denial under code pleading corresponds with, 224. 484 INDEX. GOOD FAITH: evidence showing may be offered in mitigation of damages in actions for slander and libel, 105. garnishee must act in, 263. HABEAS CORPUS: origin of the writ, 269. constitution of the United States, provision of, 269. habeas corpus is a writ of right, 269. purpose of the writ, 269. will issue for what purpose, 269, 270, 271. petition, habeas corpus will issue upon only, 271. what petition must set forth, 271, 272. petition must negative what, 272. form of petition, 272, 273. when petition Is brought to recover possession of children, what must be set forth, 273. petition must be verified, 273. the writ, when it will issue, 273. form of, 274. return, when and how it must be made, 274. body of the person detained must be brought in, 274. the traverse, where necessary, 275. hearing, proceedings upon, 275. court will remand the prisoner, when, 276. court will discharge the prisoner, when, 276. children, proceedings to obtain custody of, 276. statutory provisions, 276, 277. HEAEING: in habeas corpus proceedings, practice, 275. in appellate courts, upon appeal or writ of error, 310. practical suggestions in relation thereto, 310-313. in courts of equity, practice, 359, 360. upon motions, petitions, etc., practice, 379. IMPANELING JURY: See Jury. IMPRISONMENT: See Arrests, False Imprisonment, Malicious Prosecution, Habeas Corpus. INDENTURE: See Deeds. INDEX. 485 INDEPENDENT CONTRACTOR: whether one is a servant or, rule for determining, 94, 95. employer not liable for injury caused by negligence of, 93, 94. doctrine of discussed, 93, 94, 95, 96. INFANTS: suggestions in relation to bringing actions for, 41. form of commencement of a bill in equity brought by, 329. may be made defendants in equity proceedings, 342. may answer through guardian ad litem only, 354, 355. can make no admissions that will relieve complainant from proving the material allegations in his bill, 354. decree pro confesso cannot be taken against, 355. right to custody of may be determined by habeas corpus, 370, 371 what the court will consider in awarding custody of, 376. INJURY: to the person, when case the proper remedy for, 78, 79, 165. to the person, when trespass the proper remedy for, 79, 164, 165. liability for arising from negligence, 80-98. test of liability for, 81. liability of carriers for, 82. one who voluntarily exposes himself to cannot recover, 83. caused by contributory negligence, plaintiff cannot recover for, 83. caused by negligence of servant, master liable for, 85, 86. caused by negligence of fellow servant, when master not liable for, 88, 89, 90, 91, 92, 93, 94. jury may compensate in damages for in action fOr seduction, 141. caused by illegal or malicious arrest, action will lie for, 243, 244. caused by illegal or malicious attachment, action will lie for, 253, 254. INJUNCTION: temporary, how obtained, nature and effect of, 370, 371. how dissolved, 372, 373. violation of, how punished, 374. See Equity Pleading and Practice. INUBNDO: meaning and use of, 101. INSANE PERSON: forms of commencement of bill in equity in behalf of, 330. decree pro confesso cannot be entered against, 355. INTERPLEADER: See Equity Pleading and Practice. 486 INDEX. INTERROGATORIES : See Depositions. JAIL LIMITS: defined, 241. bond for, when may be given, 241. prisoner released on, technically in the custody of the sheriff, 242. JOINDER OP PARTIES: rule for determining who must be joined, 49, 50. in equity proceedings, 341, 342. JOINT CONTRACTORS: who are, 49, 50. JUDGMENTS AND EXECUTIONS: judgments, practice in relation to entering, 381. stay of proceedings, how effected, 381. nature and kinds of judgments, 382. effect of jildgment, 382. judgments, how enforced, 382, 383. when execution or other process to enforce judgment should bfe sued out, 382. 'executions against the body, suggestions in relation thereto, 382. actions upon judgments, when necessary to enforce, 383. judgments of. sister states, effect of, 383, 384. debt, action of, will lie to enforce judgment, 384. defenses to such action, 384. proceedings at the trial of actions upon judgments, 385. setting aside and vacating judgments, 385. power of courts to set aside of vacate judgments, 385, 386. impeachment of judgment by bill in equity, 386. when equity will grant relieif against a Judgment, 386, 387. collateral attacks upon judgments, general rules relating to, 387, 388_ judgment as a bar to another suit, when, 388, 389. what must appear to render a judgment conclusive, 388, 389. how former judgment should be pleaded, 388. satisfaction and discharge, practice in relation thereto, 389. what will operate as a satisfaction and discharge, 390. executions, nature and effect of, 390, 391'. what must be set forth in, 390. how returnable, 390. levy of an execution, how accomplished, 391. power of officer charged with service of execution, 391, 392, 393. upon what property or goods execution may be levied, 392, 393.. partnership property, rule in relation thereto, 392. exempt property, observations in relation thereto, 392. INDEX. 487 JUDGMENTS AND EXECUTIONS— Continued. growing crops, how levied upon, 393. choses in action, shares of stock, etc., rule in relation to, 393. personal property, how levied upon, 393. sale, property levied upon, how disposed of, 393, 394. notice of sale suggestions relating thereto, 393, 394. return, when made and what it must show, 394. who protected hy an execution, 394. void execution, effect of, 394, 395. JURISDICTION: whether court has, considered in planning defense, 44. plea in abatement to the, when proper, 61. in replevin, depends upon what, 194. every fact necessary to confer must be set forth in complaint, 213. in attachment proceedings depends upon what, 247. in garnishment proceedings depends upon what, 258. question of in habeas corpus proceedings, 275. of courts of equity, 322, 323. want of, a defense in actions upon judgments, 384, 385, 388. JURY: empaneling, suggestions in relation thereto, 398, 399. judge of questions of fact, 39. appellate court will not review findings of, 313. question of damages for, 104, 121, 141. may consider what in awarding damages in slander and libel, 104. may consider what in awarding damages in action for malicious prosecution, 121. may consider what in trover, 130. cannot arbitrarily fix damages, 152. in action for nuisance may award what damages, 144. JUSTIFICATION: may be pleaded in defense of action for slander or libel, 110. caution against pleading, 110. advice of counsel constitutes, when, 116. as a defense in actions for assault and battery, 166. may be pleaded in action for trespass, 180. in replevin, nature of plea of, 197. KNOWLEDGE: defendant (in equity proceedings) must answer to the best of his, 353. 488 INDEX. LANDLORD: tenant in possession may maintain trespass against, when, 182. may maintain trespass against tenant, when, 182. suggestions in relation to law of landlord and tenant, 447. LEASES: suggestions in relation to drafting, 442. what should be set forth in, 442. covenants in, 444-446. recording, suggestions in relation thereto, 446, 447. LEVY: See Judgments and Executions. LIBEL AND SLANDER: case the proper remedy for, 78, 98. when an action will lie for, 98. malice the gist of the action of, 98. in action for, malice will he implied when, 98, 89. in action for, malice a question for jury, 99. words actionable per se, what are, 99, 100. words actionable by reason of special damage, what are, 100. inuendo, when necessary and effect thereof, 101. publication, what constitutes, 101, 102. declaration in, what it must set forth, 99. privileged communications, what are, 102, 103. damages in, measure of, 104, 105. damages in, when special must be alleged, 104. defenses in, 110. evidence in. 111, 112. LIMITATIONS: statute of, defenses under must be pleaded specially, 67, "174. when may be pleaded, 129, 174, 209. suggestions in relation thereto under code pleading, 217. claims nearly barred by statute of, should not be pleaded in set off when, 74. demurrer will lie to complaint which appears to be barred by statute of, 220. MACHINERY: duty of master to provide safe, 82. not contributory negligence to use defective when, 84. INDEX. 489 MALICIOUS PROSECUTION; case the proper remedy for, 78. malice the gist of the action In, 112, 115. in action for, when malice will be inferred, 115, 116. what necessary before action will lie, 112, 113, 114, >15. original action must have terminated in favor of plaintiff, 112, 113. ■ what termination sufficient, 113, 114, 115. probable cause defined, 116. want of probable cause must be shown, 112-116. advice of counsel, ■ when a justification, 116. declaration in, what it must set forth, 117, 118. defenses to the action for, 119, 120. evidence, 120. damages, measure of in, 113. MALICE: what constitutes, 98, 99. when will be inferred, 98, 99. is the gist of the action in what cases, 98, 112. express, need not be proved when, 99. must be proved when, 99. a question of fact for the jury, 99. MANDAMUS: nature of the writ, 278. when mandamus is the proper remedy, 279. when the writ will be awarded, 279. mandamus not in the nature of a writ of error, 279, 280. mandamus will lie from a superior to an inferior court, when, 280. mandamus will lie to compel public officers to perform a specified duty imposed by law, 280. object of the writ is to enforce the performance of an existing duty, 280. when will issue against corporations and the officers thereof, 280. when will issue against board of supervisors, 280. when will issue to a school board, board of canvassers, etc., 281. when will issue to restore one to an office, 281. mandamus will not be granted when, 281. federal court has no power to interfere with a state court or the officers thereof by mandamus, 281. procedure, who may apply for mandamus, 282. mandamus, how applied for, 282. petition, what must be set forth in, 282. petition should pray for what, 283. 490 INDEX. MANDAMUS— Continued. orders, upon whom served, 283. return, the, by whom must be made, 283. what must be set forth in, 283, 2S4. alternative writ, nature of, 284. judgment in mandamus, how reviewed, 284. obedience to writ, how enforced, 285. MASTER AND SERVANT: when the relation exists, 85, 86. liability of master for negligent act of servant, 85, 86. temporary master, doctrine of, 87. liability of temporary master defined, 87, 88. fellow servants, doctrine of non-liability of master for injury caused by, 88, 89, 90, 91, 92, 93, 94. duty of master to provide safe tools and machinery, 82, 90, 91. master must exercise what care" in selection of servants, 89, 90. duty of master to guard dangerous machinery, 82. duty to warn inexperienced employes, 82. can not delegate duty, 90, 91. servants in same general employment, working to same common end, relation of to the common master and to each other defined, 92, 93, 94. independent contractors, doctrine of defined, 94. See Master and Servant, Carriers, Damages, etc. MAXIMS, 323, 324, 325. See Practice in Courts of Equity. MITIGATION OF DAMAGES: See Damages. MORTGAGES: suggestions in relation to drafting and executing, 430, 431, 432. forms of, 432-440. MOTIONS: either special or of course, 376. special, what are, 376. of course, what are, 376. NEWLY-DISCOVERED EVIDENCE: when bill of review may be filed by reason of, 367. how brought to the attention of the court, 367. nature and suificiency of, 367. practice in relation thereto upon motion for new trial, 369. INDEX. 491 NEW TRIAL, MOTION FOR: whea must be made, 408. practice in relation thereto, 408, 409. what should he set forth as the basis of, 409. when based upon newly-discovered evidence, practice, 409. when must be supported by affidavit, 409. notice thereof, 410. NON-SUIT: motion for, when should be made, 402.' practice in relation thereto, 403. grounds of motion for, 403. counsel for plaintiff should be prepared to meet motion for, 403. course to be pursued when motion overruled, 404. NUISANCE: case the proper remedy for, 78, 141. for what the action will lie, 141, 142. nature of the action, 141, 142. who may maintain the action, 142. declaration in, what it must set forth, 143. damages in, measure of, 144. OBJECTIONS: suggestions in relation to making, 306, 360. frivolous should be avoided, 306. grounds of should be stated, 306. raised for the first time in the appellate court, will not be con- sidered, 306. will not be considered 'where there was no exception to the ruling, 306. OFFICER'S RETURN: should be made when, 394. should show what, 394. should be true, 394. OPENING CASE: practical suggestions in relation thereto, 359, 400. should contain what, 400. case should not be overstated, 400. defendant's opening, suggestions in relation thereto, 400, 401. 492 INDEX. ORAL ARGUMENT: in appellate court,- suggestions in relation thereto, 311, 312, 313. ORDERS: suggestions in relation to drafting and filing, 378. practice in relation thereto, 278, 279. ORDER TO SHOW CAUSE: when will issue, 283, 373. nature and obiect of, 283, 373. return to, suggestions in relation to drafting, 283, 374. PAPERS: production of at trial, how compelled, 161, 162. service of, in bringing suit, 43. PARTIES: to actions, who should be made, 41, 48, 49. who should be made plaintiff and defendant, 48, 49. to proceedings in equity, 341, 342. PARTNERSHIP: property of not subject to garnishment in action against one partner, 263. property of not subject to -levy for debt of one partner, 392. PEREMPTORY CHALLENGE: right of defined, 399. suggestions in relation thereto, 399, 400.. PERSONAL INJURY: See Injury, Negligence, Master and Servant, and Damages. PETITIONS: practice in relation thereto, 377. hearing upon, 379. PLEADINGS: in assumpsit, 60. in slander and libel, 110. in trover, 128. in deceit, 133. in covenant, 149. INDEX. 493 PLEADINGS— Continued. in debt, 155, 156. in trespass, 164, 171, 172, 173, 174, 175, 176, 179, 180, 184. in replevin, 194, 195, 196, 197, 198, 199. PRACTICE: defined, 37. practical suggestions in relation thereto, 38, 39, 40, 41, 42, 43, 44, 45. in courts of equity, see equity, practice in courts of. PREPARATION AND TRIAL OP CAUSES: preparation necessary, in'order to become a successful lawyer, 396. observations in relation to preparing cases for trial, 396, 397. brief should always be prepared for use at the trial, 397. what brief should contain, 397. witnesses, suggestions in relation to conversation with, 398. trial, the successive steps of the, 398, 399. empaneling the jury, suggestions in relation thereto, 398. opening statement, nature of, 398. examination of jurors, suggestions in relation thereto, 398, 399. challenges, nature of and how used, 399. opening case to jury, practical suggestions in relation thereto, 400, 401. defendant's opening, suggestions in relation thereto, 400, 401. introduction of evidence, calling witnesses, etc., 401, 402. non-suit, motion for when proper, 402. practice in relation to, 402, 403. suggestions to counsel for plaintiff, 403. defendant's case, suggestions in relation to putting it in, 404. defenses, how supported, what evidence necessary, 404. objections to evidence, and exceptions, suggestions in relation thereto, 405. requests to charge, how drafted, rules in relation thereto, 405, 406. charge of the court, suggestions in relation thereto, 406. exceptions to the charge, how and when taken, 406. closing arguments, suggestions in relation thereto, 407, 408. verdict, proceedings after, suggestions in relation thereto, 408, 409. motion for new trial, when should be made, 409. practical suggestions in relation thereto, 409, 410. PRIVILEGE FROM ARREST: See arrest in civil actions. PRIVILEGED COMMUNICATIONS: See slander and libel. 494 INDEX. PRODUCTION OF BOOKS AND PAPERS: practice in relation thereto, 161, 162. PROOF: See evidence. PROXIMATE CAUSE: defined, 96. doctrine of in negligence cases explained, 96, 97. PUBLICATION: in libel and slander, what constitutes, 101, 102. QUESTIONS: to be considered before commencing an action, 40, 41. to be considered in preparing a defense, 44, 45. of law, should be carefully considered before giving an opinion, 38. of fact, jury is the judge of, 313, 314, 406. of expediency of an appeal may be left to client, 318, 319. RECOUPMENT: nature of the proceeding, 75. when may be pleaded, 75. effect of plea of, 76. damages in must have sprung from a violation by the plaintiff of the contract sued upon, 75. common law rule in relation to damages thereunder, 75. statutory provisions, 75. advisability of resorting to, 76. RE-HEARING: motion for, 316. practice in relation thereto, 316. REPLEVIN: when the proper remedy, 190. when the action will lie, 190. in order to maintain, plaintiff must have what interest in the property, 190. will lie to recover goods obtained by false or fraudulent representa- tions, 190, 191. demand, when necessary, 191. •demand, when not necessary, 192. demand, must be alleged when, 199. INDEX. 495 REPLEVIN— Continued. tender, when necessary, 192, 193. writ of, bow issued, 194. writ of, how executed, 194. pleadings in, 194, 195. declaration in, what must contain, 195. property replevied, how described, 196. pleas in, 196, 197. non cepit, nature and effect of, 197. non cepit, plea of admits what, 197. defendant cannot have &■ return of the property under plea of non cepit, 197. what plaintiff must prove in order to maintain the action, 197. non detinet, plea of, nature and effect, 197. non detinet admits what, 197. non detinet puts in Issue what, 197. distinction between non cepit and non detinet explained, 197. justification or avowry, nature of, 197. justification admits what, 197. avowery puts in issue what, 197. avowery, when it may be pleaded, 197. property in a stranger or in the defendant, how pleaded, 198. replication, suggestions In relation thereto, 198. evidence in, what must be proved under the various pleas, 199. what may be shown by the defendant, 199. judgment in, what plaintiff may have if he prevails, 200. judgment in, what defendant may have under the various pleas if he prevails, 200. REMOTE CAUSE: defined, 97. doctrine of non-liability for injuries arising from, 97, 98. REQUESTS TO CHARGE: suggestions in relation to drafting, 405, 406. when better practice not to offer, 406. SALE: property levied upon under execution, how brought to, 393, 394. SCILICET: meaning of the word, 411. SEAL: official acts of officers should be attested by when, 413. 496 INDEX. SEDUCTION: case tlie proper remedy for, 78, 137. action based upon loss of service, 137. what services are sufficient, 137, 138. may be maintained by mother when, 140. under what circumstances the female seduced may sue, 138, 139. declaration in, 140. measure of damages in, 141. SERVANT, ENTICING AWAY: when action will lie for, 136. when action will not lie for, 136. declaration in action for, 136, 137. measure of damages for, 137. SET-OFF: what claims the subject of, 73, 74. statutory provisions, 73, 226. how pleaded, 74. effect of, 75. when not advisable to plead in, 74. distinction between and recoupment, 214. amount found for defendant, how applied, 75, 226. claim pleaded in, and passed upon becomes res adjudicata, 75. SETTING ASIDE AWARD: See arbitration. SHERIFF: trespass will lie against, in what cases, 177. replevin will lie against, when, 190. prisoner upon jail limits, technically in custody of, 228, 229. liability of for an escape, 241, 242. bond to, in attachment proceedings, 248, 249. service of writ of attachment by, 249. liability of for attached property, 256. SLANDER: case the proper remedy for, 78. when the action will lie, 98. malice the gist of the action, 98. malice may be implied when, 98, 99. malice a question for the jury, 99. words actionable per se, what are, 99, 100. words actionable by reason of special damage, 100. inuendo, when necessary, and effect of, 101. INDEX. 497 SLANDER— Continued. publication, what constitutes, 101, 102. publication must be alleged and proved, 111. what communications are privileged, 102, 103. damages in, measure of, 104. special damages, 104. aggravation of damages, 105. mitigation of damages, 105. declaration in, what it must contain, 106. defenses to th'e action, 110. evidence. 111, 112. STATUTES, ACTIONS UPON^ what the proper remedy in, 78, 207, 208. nature of the action, 207. declaration must follow the statute, 208. rules of pleadings in actions upon, 208, 209. STAY OP EXECUTION: practice in relation to upon appeal, 318. SUBMISSION TO ARBITRATION: See arbitration and award. TESTIMONY: See evidence. TRESPASS: when the action will lie, 164. assault and battery, action for, when it will lie, 164. when it will lie, 164. what constitutes an assault, 164. battery, what constitutes, 164, 165. action will not lie where injury was result of an accident, 165. no distinction between different degrees of violence, 165. declaration for assault and battery, what it must contain, 165. damages, what may be recovered, 165. defective declaration, how taken advantage of, 166. justification, when may be pleaded, 166. other defenses, 166. false imprisonment defined, 166, 167. if the restraint was lawful, the action will not lie, 167. restraint need not be accompanied by actual force, 167. arrest, what constitutes, 167. submission to a show of force, not evidence of consent, 167. 498 INDEX. TRESPASS— Continued. private person, when he may make an arrest, 167, 168. officers of the law, when they may arrest without a warrant, 168. warrant, to what extent it protects officers acting thereunder, 169. how far warrant protects private citizen assisting officer at his request, 169, 170. how far warrant protects a volunteer, assisting an officer, 170. arrest in civil actions, 170. proceedings upon which writ issues, 170. judicial act, where writ issues as a, protects all persons acting law- fully thereunder, 170. attorneys, liability of, 170. damages, allegation in relation thereto must he specific, not general, 171. damages, measure of in actions for false imprisonment, 171. declaration, may join counts for assault and battery, when, 171, 172. declaration, what must be set forth in, 171, 172. matters in aggravation of damages must be specially set forth, 172, 173. date of arrest, exact date need not be set forth, 172. defenses, what may be interposed, 174. general issue, what may be shown under, 174. new assignment, when necessary, 175. new assignment, effect of, 175, 176. evidence in false imprisonment, 176, 177. trespass to personal property, when the action will lie, 177, 178. actual or constructive possession in plaintiff necessary, 178. ownership not necessary, 178. declaration, what must be set forth in, 179. action is transitory, 179. pleas, what may be set up by the defendant, 180. evidence, must support the declaration, 180. several trespasses may be proved, 180. what plaintiff must show in order to recover, 180, 181. what may be set up by the defendant, 181. damages, measure of in actions for trespass to personal prop- erty, 181. trespass to real property defined, 181, 182. trespass, defined, 181. injury to the possession, gist of the action, 181, 182. plaintiff cannot recover unless he was in actual or constructive possession of the premises, 181, 182. owner of freehold may maintain trespass although land is in pos- session of a tenant at will, 182. where and in whose favor the action will lie, 182, 183. when the action will not lie, 184. trespasser ab initio, who will be regarded as, 183. six carpenters' case explained, 183, 184. I pleadings, nature of in trespass to real property, 184, 185. ' INDEX. 499 TRESPASS— Continued. declaration, wliat it must set forth, 184. general issue, what defenses may be made thereunder, 184. special pleas, when necessary, 184. action is local, 185. evidence, what must be shown by plaintiff, 185. what may be introduced by the defendant, 185, 187, 188. damages, measure of in trespass to real property, 189. TRESPASS ON THE CASE: when the proper remedy, 78, 79. rules for determining whether case or trespass the proper remedy, 79, 80. where distinction between trespass and case is abolished either will lie, 78. may be waived and action brought in assumpsit, when, 80. See slander, libel, malicious prosecution, trover, deceit, enticing away servants, seduction and nuisances. TRIAL: See preparation and trial of causes. TROVER: case the proper remedy for, 78, 121. when the action will lie, 121, 122, 123, 124. conversion the gist of the action of, 121. fraud, when the basis of the action, 123, 124. demand, when necessary, 125. how and by whom demand should be made, 125, 126. refusal, what constitutes, 126. who may maintain the action of, 126, 127. pleadings in, 128, 129. special counts, when advisable, 128. evidence in, 129, 130. . special damages, when may be recovered in action of, 130. VACATING JUDGMENT: See judgments and executions. VARIANCE: material will be fatal, 53. what will constitute a, 53. how taken advantage of, 53. 500 INDfi'Jf. VICE PRINCIPAL: doctrine of explained, 90, 91, 92. WILLS: suggestions in relation to drafting, 448'. duties of a lawyer in relation to drafting, 448, 449, 450, 454; construction of, 450. execution of, suggestions in relation thereto, 450. should be written how, 453. executors, appointment of, 453. suggestions in relation to bonds, 450. witnesses, suggestion in relation thereto, 450. WITNESSES: suggestions in relation to the examination of, 39Si, how' should be cautioned before trial, 398. to will, who should be selected as, 450. subscribing, proof of instrument in writing by, 158, 159, 160. WRITTEN INSTRUMENTS: how proved, 158, 159, 160.